G. Lowry Anderson, Inc.

National Labor Relations Board - Board Decisions

Apr 8, 1953

103 N.L.R.B. 1711 (N.L.R.B. 1953)

UTAH COUNTY TRACTOR SALES 1711
G. LOWRY ANDERSON, INC., AND G. LOWRY ANDERSON , INC., D/B/A UTAH
COUNTY TRACTOR SALES and INTERNATIONAL ASSOCIATION OF MA-
CHINISTS , DISTRICT LODGE 114, LOCAL LODGE 1066 , AFL. Case No.
°'0-C A-711. April, 8,1953
Decision and Order
On February 4, 1953, Trial Examiner David F. Doyle 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 Inter-
mediate Report attached hereto. The Trial Examiner also found that
the Respondent had not engaged in certain other alleged unfair labor
practices. Thereafter, only the General Counsel and the charging
Union filed exceptions and supporting briefs.
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 [Members Houston, Styles, and
Peterson].
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 Inter-
mediate Report, the exceptions, and the entire record in the case, and
hereby adopts the findings,, conclusions, and recommendations of the
Trial Examiner.
Order
Upon the entire record in the case , and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
I We note and correct the following inadvertent errors in the Intermediate Report :
(1) Anderson's talk to the assembled employees, during the course of which he said that
if Swenson persisted in union membership he would be laid off , took place on or about
April 9, 1952, and not April 9, 1950; ( 2) Anderson 's conversation with Swenson con-
cerning Swenson 's motives for joining the Union took place on or about a week before
the commencement of the strike on April 23, 1952, and not on or about April 2, 1952.
These errors do not affect the Trial Examiner 's ultimate conclusions or our concurrence
therein
As we agree with the Trial Examiner that Johnson was not discharged for his union or
concerted activities, we find it unnecessary to pass upon the Trial Examiner's finding that
Section 10 (b) of the Act also precludes a finding of & (a) (3) violation in this discharge.
In addition , we find, as did the Trial Examiner, that McPherson was discharged for cause,
and we find it unnecessary to pass upon the Trial Examiner's finding that McPherson was
a supervisory employee As to the eviction of Lucas, we find, as did the Trial Examiner,
that his eviction was not a violation of Section & (a), (1) of the Act. We so find because
he was not evicted for any reason connected with his union activity.
103 NLRB No. 150.
1712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Board hereby orders that the Respondent, G. Lowry Anderson, Inc.,
and G. Lowry Anderson, Inc., d/b/a Utah County Tractor Sales, its
officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Questioning employees about their union activities, affiliations,
and interests; attempting to dissuade employees from joining or assist-
ing International Association of Machinists, District Lodge 114, Local
Lodge 1066, AFL; threatening to lay off or discharge employees if they
join or assist the above-named Union.
(b) In any other manner interfering with, restraining, or coercing
their employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist International Association of Ma-
chinists, District Lodge 114, Local Lodge 1066, AFL, or any other
labor organization, to bargain collectively through representatives of
their own choosing, and to engage in concerted activities for the pur-
pose of collective bargaining or other mutual aid or protection, or to
refrain from any or all such activities, except to the extent that such
right may be affected by an agreement requiring membership in a labor
organization as a condition of employment, as authorized in Section 8
(a) (3) of the Act, as guaranteed in Section 7 thereof.
2. Take the following affirmative action which the undersigned finds
will effectuate the policies of the Act :
(a) Post at its shop at Springville, Utah, copies of the notice at-
tached hereto and marked "Appendix A." 2 Copies of such notice,
to be furnished by the Regional Director for the Twentieth Region,
shall, after being duly signed by the Respondent's authorized repre-
sentative, be posted by the Respondent immediately upon receipt
thereof, and maintained by it for a period of sixty (60) consecutive
days thereafter, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable steps shall
be taken by the Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(b) Notify the Regional Director for the Twentieth 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 that
the Respondent has violated the Act by conduct other than that found
to be violative herein, be, and it hereby is, dismissed.
2 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."
UTAH COUNTY TRACTOR SALES 1713
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, we hereby notify our employees that :
WE WILL NOT question our employees about their union activi-
ties, affiliations, or interests ; or attempt to dissuade employees
from joining and assisting INTERNATIONAL ASSOCIATION OF MA-
CHINISTS , DISTRICT LODGE 114 , LOCAL LODGE 1066 , AFL, or any
other labor organization ; or threaten to lay off or discharge our
employees if they join or assi ,t the above-named labor organiza-
tion or any other.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self -organi-
zation , to form labor organizations , to join or assist any labor
organizations , to bargain collectively through representatives of
their own choosing , and to engage in concerted activities for the
purpose of collective bargaining or other mutual aid or pro-
tection, 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.
All our employees are free to become or remain members of the
above-named union or any other labor organization.
G. LOWRY ANDERSON , INC., and G . LowwRY ANDERSON, INC.,
d/b/a UTAH COUNTY TRACTOR SALES,
Employer.
Dated------------------- By----------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
This proceeding , brought under Section 10 ( b) of the National Labor Relations
Act, as amended, herein called the Act, was heard at Provo, Utah, on November
4-7, 1952, pursuant to due notice to all parties. At the hearing all parties were
represented , were afforded full opportunity to be heard, to examine and cross-
examine witnesses , to introduce evidence bearing on the issues , to argue the
issues orally upon the record , and to file briefs and proposed findings. The
General Counsel and the Respondent have filed briefs which have been considered.
The complaint, dated July 22, 1952 , was issued by the General Counsel of the
National Labor Relations Board and duly served on the Respondent. It was
1714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
based on a charge filed by the above-named Union on May 5, 1952, and amended
July 16, 1952. It alleged in substance that the Respondent: (1) On various
dates had discharged and failed or refused to reinstate employees Randall John-
son, Floyd McPherson, and Mark Sumsion, because of their membership in and
activities on behalf of the Union; (2) on or about November 28, 1951, and there-
after had refused to bargain collectively with the Union which is the certified
bargaining representative of Respondent's employees in an appropriate unit;
(3) on or about October 1, 1951, and at various dates thereafter had coerced
and interfered with its employees by (a) questioning employees about their union
activities, (b) attempting to dissuade employees from joining or assisting the
Union, (c) threatening to lay off or discharge employees if they joined or assisted
the Union, (d) threatening to lay off or discharge employees if they engaged in
a strike or other concerted activities, (e) threatening to discontinue business
operations if the employees joined the Union, (f) vilifying, discouraging, and
expressing disapproval of the Union and its representatives, (g) evicting em-
ployees from living premises owned or controlled by the Respondent; and (4)
that by the foregoing conduct the Respondent had violated Section 8 (a) (1),
(3), and (5) of the Act.
The duly filed answer of the Respondent admitted: (1) The jurisdictional
facts set forth in the complaint as to the nature and extent of the Respondent's
business; (2) that the Union, at all times material to the issues, was a labor
organization within the meaning of Section 2 (5) of the Act; (3) that the unit
set forth in the complaint is appropriate within the meaning of Section 9 (b) of
the Act; and (4) that at all times material to the issues herein the Union was
the exclusive representative of the employees in the aforesaid appropriate unit,
but denied the commission of the unfair labor practices.
Upon the entire record in the case, and from his observation of the witnesses,
the undersigned makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
G. Lowry Anderson, Inc., and G. Lowry Anderson, Inc., d/b/a Utah County
Tractor Sales, a Utah corporation, maintains its principal office and place of
business, and a branch place of business, in Springville, Utah, where it operates
a Ford motorcar and truck sales agency and service garage, and a Ford tractor
sales agency, pursuant to the terms of franchise agreements with the Ford Motor
Company and Intermountain Ford Tractor Sales. During the year 1951, the
Respondent purchased new and used cars, trucks, tractors, parts, accessories,
and supplies valued in excess of $600,000 of which amount $180,000 worth were
purchased and shipped at points located outside the State of Utah to the Re-
spondent's places of business located in Springville, Utah.
At the hearing the Respondent stated that it did not deny that the Board
had jurisdiction over its operations. Upon the pleadings, stipulations, and the
entire record in the case, I find that the Respondent is engaged in interstate com-
merce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Upon the pleadings and the entire record, I find that International Association
of Machinists , District Lodge 111, Local Lodge 1066, AFL, is a labor organization
within the meaning of the Act.
UTAH COUNTY TRACTOR SALES 1715
III. THE UNFAIR LABOR PRACTICES
A. Background; admitted facts
It was stipulated by the parties that sometime prior to October 30, 1951, the
Union filed a petition for the certification of representatives for a unit of Re-
spondent's employees in Case No. 20-RC-1611. On October 30, 1951, the Re-
spondent and the Union entered into an agreement for a consent election. On
November 6, 1951, pursuant to this agreement the Regional Office conducted an
election which was won by the Union. On November 27, 1951, the Regional
Office issued its certification of representatives to the Union for the unit of
mechanics and servicemen here involved.
It was also stipulated by the parties that the services of the three employees
named in the complaint were terminated on the following dates : Randall John-
son, October 15, 1951; Floyd McPherson, November 23, 1951; Mark Sumsion,
January 31, 1952.
From the entire record it is clear that on or about October 8, 1951, the me-
chanics and service employees of the Respondent joined the Union. Prior to
that date they had not been organized
G. Lowry Anderson is the owner of the Respondent and in active control of
all phases of the business. At the time of the Union's organizational campaign,
the service manager of the Respondent was Charles Merrill. He had charge of
all the employees in the above-described appropriate unit and was responsible
for the efficient operation of the Respondent's service department. Merrill
exercised all the conventional authority of service manager, having full au-
thority to hire and fire employees and to responsibly direct their work. Merrill
left the employ of the Respondent on November 10, 1951, and was replaced by
Morris Richmond on November 23, 1951.
B. The termination of Johnson
Anderson, Merrill, and employee Johnson testified to the events leading up to
Johnson's discharge on October 15, 1951. They agreed as to the facts of John-
son's early employment but there is some disagreement between these three as to
the manner in which Johnson performed his work, and to the events leading up
to his discharge.
Randall Johnson testified that he began his employment with the Company in
July 1950. He was employed as an apprentice body and fender man at a rate
of 75 cents an hour. On February 8, 1951, he received an accidental burn while
at work and was hospitalized for approximately 6 months thereafter. On or
about August 24, 1951, Johnson, who had recovered, went to the service depart-
ment of the Respondent. Merrill, then service manager, talked to Johnson,
inquiring when he would be ready to return to work. Merrill explained that
he had some cars to paint, and that he would like Johnson to return to work and
paint them. Johnson told Merrill that he was looking for another job, and that
he did not intend to return to the Company unless his pay was raised to $1.25 an
hour. Johnson testified that at that time he had prospects of a job at Provo,
Utah, at a rate of pay of $1.35 an hour. However, Merrill said to him on this
occasion that the Respondent would pay him $1.25 an hour. Johnson reported for
work on the following day, August 25. Johnson worked continuously until
October 15, and was paid at the rate of $1.25 an hour. On October 15, Merrill
told Johnson to report to Anderson's office. In the office Anderson told Johnson
that "he didn't think he could afford to pay me $1.25 an hour, that he would
1716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
try to pay me $1.00 an hour, and I told him, `Well, Mr. Anderson, I wish you
would have told me this before I came back to work, because Chuck promised me
the $1.25, and I have (had) been looking for a job elsewhere,' and he says he
couldn't pay me that ; and that is what he said."
Later this witness testified that Anderson "Just called me in and says that
he couldn't afford to keep me any more, that business wasn't too good, and that
he would have to let me go." 1 Johnson stated that he was laid off that day.
Merrill, the service manager, gave a somewhat different account of the events
leading up to Johnson's discharge. He testified that he had some cars to paint
so needed the services of Johnson on the occasion that Johnson came as a visitor
to the shop. He inquired of Johnson when he would return to work. Johnson
said that he would like to rest up for a while longer, saying that he would not
come back to work for the wages he had been paid previously. He said that he
had a much better position in prospect. Then Merrill agreed to pay Johnson at a
rate of $1.25 per hour.
When it came to Anderson's attention that Merrill had agreed to pay Johnson
at a rate of $1.25 an hour, Merrill was called to Anderson's office and reprimanded
by Anderson for giving Johnson the increased rate of pay. After the reprimand,
Merrill went to Johnson and told him that Anderson refused to pay him $1.25 an
hour, and that Johnson was to see Anderson. Merrill testified that he was not
told to terminate Johnson. He was merely told not to pay Johnson that much
money. He did not know the circumstances of Johnson's termination. In
answer to a question by the Trial Examiner, Merrill testified that he told Johnson
that he was "commanded to advise him that I had made a mistake, that I couldn't
give him $1.25 an hour and I also told him that I was terminating my affiliation
with G. Lowry Anderson, Inc." Merrill testified that Anderson's action in over-
ruling Merrill's decision to hire Johnson at that rate of pay, ultimately led to
Merrill's severance of his connection with the Respondent. For some time prior
to this incident, Merrill had been considering accepting another job. This inci-
dent shaped his decision to leave the Respondent because he felt that his
authority had been curtailed, and that he had been personally humiliated before
the employees. Shortly thereafter lie gave notice to Anderson that he would quit
as soon as Anderson obtained his replacement. The replacement, Richmond,
was not secured until approximately November 19, 19..11. Merrill left the employ
of the Company on November 10, 1951.
Anderson was called by the General Counsel and examined as an adverse
witness under rule 43 (b) of the rules of Civil Procedure, on the subject of the
discharges. He testified that Johnson's work had not been entirely satisfactory
before he suffered the accident, and that upon his return, his work was not
improved and the shop required the services of journeymen mechanics.
Merrill testified in a frank and candid manner. From his own testimony, and
the testimony of other witnesses, he appeared to be more favorably disposed
toward the employees than toward the Respondent, but appeared fair to both
parties. I credit Merrill's testimony fully, and that portion of the testimony of
Anderson and Johnson as is consistent with Merrill's testimony.
At the close of the hearing the Respondent moved for the dismissal of this
allegation of the complaint on the ground that a finding of unfair labor prac-
tice could not be based on Johnson's termination because of the statute of limita-
tions contained in Section 10 (b) of the Act.
i I do credit this later version of Johnson's layoff. His first version coincides with
Merrill's testimony , which I hereafter credit.
UTAH COUNTY TRACTOR SALES 1717
Concluding Findings'
I find that after Johnson suffered an accident, Merrill, then service manager,
raised Johnson's pay from 75 cents per hour to $1.25 per hour, and that Ander-
son honestly considered that raise to be excessive, and ordered Merrill to re-
duce Johnson's pay. When the service manager did not reduce Johnson's pay,
Anderson told the employee that he could not afford to pay him more than the
$1 per hour. When Johnson did not agree to accept the pay cut, he was dis-
charged. I find, therefore, that Johnson was not discharged because of his union
or concerted activities. Furthermore, the date of Johnson's termination was
October 15, 1951, and the date of the original charge herein was May 5, 1952.
I therefore find that the statute of limitations contained in Section 10 (b) of
the Act prohibits the finding of any unfair labor practice based upon the dis-
charge of Johnson e Respondent's motion to dismiss this allegation of the com-
plaint is hereby granted on the basis of both the above findings.
C. The termination of McPherson
Floyd McPherson testified that he had worked for the Respondent from 1933
until November 23, 1951, with the exception of 3 years, 1942--45, when he was em-
ployed elsewhere. McPherson stated that he was a mechanic for the Respondent,
and that for several years, for various periods of time, he performed the duties
and exercised the authority of service manager. At one time during a pericd
when one McAllister was service manager, he had taken the service manager's
place for a period of 7 months. McPherson's occupancy of the position at that
time had not been satisfactory to him, because Anderson did not pay him the
bonus which was customarily paid to the service manager. Anderson had
paid McAllister a proportional bonus for 5 months of that particular year, but
had not paid McPherson any bonus for the 7 months during which he was the
service manager. McPherson stated that during Merrill's tenure as service
manager , he had taken charge of the shop at Merrill's or Anderson's orders when
Merrill was forced to leave the shop for any extended period of time. Mc-
Pherson also assisted the other mechanics with difficult jobs on occasions. From
all of McPherson's testimony it is clear that he was not only the senior mechanic
in the service department but was the person who exercised all the functions
of service manager when the service manager was absent. McPherson stated
that he was paid $12.50 a month more than the other mechanics in order to reim-
burse him for the time he spent in assisting the service manager, and other
mechanics, during which time he did not have an opportunity to earn commis-
sions for himself.'
On cross-examination McPherson admitted that the check which he received
semi-monthly showed that he was paid a guaranteed wage of $12.50 per month
-In reaching all the conclusions hereafter set forth , I have considered the testimony
narrated , and in addition the testimony of all other witnesses and exhibits . Brevity has
required that some of this proof not be narrated in this report. However the testimony of
all witnesses and all exhibits has been considered ; first, to determine if any of the conduct
of Respondent constitutes an unfair labor practice ; second, to determine if any particular
conduct, taken with any other incidents or the case as a whole, establishes the commission
of any unfair labor practices ; and third to determine if any particular conduct shows
certain knowledge or improper motivation on the part of the Company. The concluding
findings are based on the entire record, including the demeanor , bearing, and conduct of
the witnesses on the stand.
8N. L. R. B. v. Penn woven, Inc., 194 F. 2d 521 (C. A. 3).
*All journeymen were paid on a basis of a guaranteed wage, plus commissions based
on customer charges.
257965-54-vol . 103-109
1718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
more than the other employees for performing the duties of assistant service
manager in the service department.
When Merrill quit as service manager on November 10, 1951, Anderson asked
McPherson to take the job of service manager for a few days, until he could get
a new service manager. Anderson was not able to find a new service manager
quickly, so he requested that McPherson continue to act in the position. Mc-
Pherson complied with these requests. In the course of his search for a new
service manager , Anderson asked several of the mechanics whom they would
like for service manager . According to McPherson, several of these men told
him of Anderson's inquiry, and that they had told Anderson that they would
like McPherson to be the service manager. McPherson also testified that Ander-
son offered him the job of service manager. He told Anderson that he did not
want the job. Finally Anderson made arrangements to have Morris Richmond
take the position of service manager and word that Richmond was to be the
new service manager circulated throughout the service department.
On November 23, Anderson sent word to all the employees to assemble at a
meeting place in the basement, in order that he might introduce Morris Rich-
mond , the new service manager, to them. McPherson testified that all the men
assembled and that Anderson introduced Morris Richmond to them. Anderson
then turned to McPherson and asked him if he would "break in" Richmond and
show him the ropes. McPherson refused. Anderson then said, "I guess we will
have to let you go this morning then," and with that McPherson walked out of
the meeting. He went upstairs to the cashier and obtained a check for his
wages, and left the premises.
Anderson testified that McPherson had been performing the duties of assistant
service manager, or shop foreman, for the Respondent for several years. When-
ever it was necessary for the service manager to leave the shop for any lengthy
period, McPherson took over as service manager. When Merrill quit, Anderson
asked McPherson to take charge of the shop until he could get a new service
manager . McPherson complied with his request. A few days later he offered
the job to McPherson but McPherson declined the offer and then Anderson
started to look for another man, and ultimately secured Richmond. Anderson
made his arrangements with Richmond on or about November 13, about 10 days
before Richmond started work. At that time he told McPherson he had hired
Richmond, and again requested McPherson to continue as service manager until
Richmond showed up. McPherson reluctantly agreed to continue to act in that
position. On November 23 the day after Thanksgiving Day, Anderson had a
meeting of the mechanics and shopmen with Richmond to introduce Richmond
to the group. He suggested that McPherson continue in his capacity as service
manager for Friday and Saturday during which time he could help Richmond to
become familiar with the shop procedure and the work on hand so that on the
following Monday, Richmond would be able to take over and McPherson return
to his prior status. He asked McPherson if that arrangement would be satis-
factory, to which McPherson replied, "I won't do it; I'm not going to help him."
According to Anderson, he was momentarily taken aback by this statement. He
asked McPherson if he meant he wouldn't help Richmond get started and show
him how to proceed. McPherson said that he wouldn't have a thing to do with
the service manager's job. Whereupon Anderson said , "Well, if you're going to
take that attitude, Floyd, we might have to let you go." McPherson said, "It Is
good enough for me," and stomped out of the meeting and went home. I credit
the above testimony of both McPherson and Anderson.
UTAH COUNTY TRACTOR SALES 1719
A the close of the hearing, the Respondent moved for the dismissal of the
pertinent allegation of the complaint on the ground that McPherson was a
superior as defined by the Act.
Concluding Findings
There is little dispute as to the facts of McPherson's termination. Accord-
ing to his own testimony, McPherson felt that he had not been treated fairly by
Anderson in the matter of bonus on a prior occasion when he had occupied the
position of service manager. When Anderson asked him to take temporarily
the position of service manager he reluctantly complied. Before making a
search for a serviceman, Anderson offered the position to McPherson, who re-
fused it. When Anderson secured the services of Richmond as service man-
ager , he immediately told McPherson about it. On November 23, 1951, at a
meeting of all employees, McPherson refused to "break in" Richmond or to have
anything to do with the position of service manager. Anderson's request that
McPherson assist Richmond was reasonable under all the circumstances, and
McPherson's refusal before the assembled employees to comply with his em-
ployer's request was certainly such an act of insubordination as might warrant
discharge. McPherson had refused to cooperate with the new service manager.
If discipline was to be maintained in the shop, and Richmond have any chance
of success, McPherson's antipathy to Richmond's authority could not be over-
looked. It is worthy of note that Anderson at that time gave McPherson a
final opportunity to withdraw from his insubordinate position. Anderson said to
McPherson in substance, "If that is the way you feel about it, I will have to let
you go." McPherson did not take advantage of that opportunity. He replied, "It
Is good enough for me," and left the meeting, requested his pay, and quit the
premises. Upon the entire record, including specifically McPherson's own tes-
timony, I find that McPherson was discharged for cause, in that he had refused
to comply with the reasonable request of his employer to assist the new service
manager. I find that his discharge was unconnected in any way with his union
membership or union activities.
It was undisputed that McPherson had for several years, as standard pro-
cedure in the shop, always assumed the duties and exercised the authority of
service manager at times when the service manager was absent from the shop.
One of these periods when he was service manager was of 7 months duration,
during the tenure of McAllister as service manager . During Merrill's tenure as
service manager, 11IcPherson always assumed the duties and exercised the au-
thority of service manager when Merrill was absent. When Merrill quit, Mc-
Pherson took over the position of service manager effectively recommending the
employment of one Delley. McPherson was paid $12.50 a month more than any
other journeyman mechanic. The check which was given to him in payment of
his wages showed that he received this added compensation because of his duties
as assistant service manager. He assisted and advised the other mechanics, as
needed. Upon all the evidence on this point, I find that McPherson was occupying
a supervisory position with the Respondent. This supervisory position is refer-
red to in the testimony sometimes as assistant service manager, and sometimes
as shop foreman . Regardless of title, it is clear that McPherson performed su-
pervisory duties and exercised supervisory authority. Respondent's motion to
dismiss the allegations of the complaint based on McPherson's discharge is hereby
granted on the grounds that McPherson was a supervisor, and was discharged
for cause by Respondent.
1720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
D. The termination of Sumsion
Mark L. Sumsion testified that he weilt to work for the Respondent when
he graduated from high school. He was hired as an apprentice mechanic at a
rate of $1 per hour. After his termination he returned to school, becoming a
student at Brigham Young University. He testified that on January 31, 1952,
Morris Richmond, then service manager, told him that his services were no
longer required. Later in the afternoon he had a talk with Anderson in the
showroom. Anderson told him that the Respondent was hiring better mechanics,
men with more years of experience and training. Sumsion told Anderson that
he was happy to have had the chance to work for Anderson.
Morris Richmond, testifying on this subject, stated that he entered upon his
employment with Respondent with the purpose of improving the quality of the
work in the shop. He had a policy of only employing journeymen mechanics.
This witness pointed out that in his tenure as service manager he had not laid
off one journeyman mechanic. He said that Sumsion was a very active worker,
but very inexperienced. Sumsion had several comebacks on the job, and Rich-
mond had cautioned him about these. Richmond stated that prior to the dis-
charge of Sumsion he had discussed the matter with Anderson on several occa-
sions over a period of about a month, but they did nothing, hoping that the
quality of Sumsion's work would improve. However Sumsion did not seem to
improve. Richmond stated that Sumsion had good ability for the amount of
experience that he had, but that as an apprentice he did not fit into the organiza-
tion because the Respondent needed the services of competent journeymen. He
did not hire anyone to replace Sumsion.
Anderson testified that Richmond made the decision to let Sumsion go and that
Richmond handled the matter. Anderson stated that Sumsion was discharged
because the Company was trying to upgrade the men, and Sumsion was an
apprentice and he hadn't done to good a job ; and the work had fallen off at that
time of the year so Sumsion, the least experienced of the men, was let go. I
credit the above-related testimony of Sumsion, Richmond, and Anderson.
Concluding Finding
According to Sumsion, Service Manager Richmond told him on January 31
that his services would be no longer required. Later on that day Anderson
told him that the Respondent was hiring better trained mechanics, men with
more experience. Richmond, testifying on this subject, stated that Sumsion's
termination was effected because Richmond wanted to man the shop with better
trained personnel. Richmond testified credibly and I find nothing in this record,
beyond mere suspicion, to justify a finding that Sumsion was discharged because
of his union or concerted activities.
From the testimony introduced on the subject of these discharges, it is ap-
parent that the General Counsel relies to some extent on identical testimony of
McPherson, Branam, and Lucas to establish that these discharges were effected
pursuant to an illegal plan. According to those employees, Merrill told them,
on or about November 1, 1951, that Anderson had told him that he would get rid
of the union men, one by one, and keep them on commission, and starve them
out 6 Merrill, who testified credibly, denied this testimony, as did Anderson.
I credit Merrill and Anderson on this point, and reject the testimony of the em-
ployees on this point. The manner in which each of these terminations came
about, each one having distinctive feat»res and based on different circumstances.
6 This testimony was received for specifle purposes only. See section entitled "Interfer-
ence, restraint, and coercion."
UTAH COUNTY TRACTOR SALES 1721
eliminates all but the most remote possibility that they were the result of an
antiunion plan. The undisputed fact that Anderson offered the service man-
ager's job to McPherson, and later offered it to Branam , another union mechanic
who participated in the negotiations hereafter related, is also evidence that An-
derson was not motivated by antiunion animus in these terminations, or in get-
ting a replacement for Merrill. It is also worthy of note that at the time Mc-
Pherson was terminated, Branam, another union employee, was promoted to
replace McPherson.
I deem it also of some significance that at the time of the terminations of
these men, none of the three discbargees made any immediate complaint that
he was being discharged for his union or concerted activities. In fact the Union
did not make any such claim, according to this record, until many months after
the terminations, when on May 5, 1952, it filed the instant charge, and on May 26,
1952, when Egbert stated in a letter to the Respondent that the Union would
like to negotiate concerning the discharges of the three named employees. The
charge that these men were discharged for union activities seems to have been
an afterthought which the Union had, after its bargaining had not resulted
in a contract, and after the men had gone out on strike.
E. The alleged refusal to bargain
H. B. Egbert, business representative of District 114, International Association
of Machinists, was the union representative who organized the mechanics in
Respondent's shop and who represented them in negotiations for a contract.
Anderson himself conducted negotiations for the Respondent, with the assistance
and counsel of Callister, his attorney.
It is undisputed that negotiations between the parties were instituted by the
Union, by a letter dated November 23, 1951, signed by Egbert ° The letter
requested a meeting at Respondent's earliest convenience. This letter also stated,
"Enclosed please find proposed contract of Lodge 1066, International Association
of Machinists. This contract is an exact copy of the contracts now in effect in
the Provo shops." Provo, Utah, is approximately 5 miles from Springville,
and is the urban center of the surrounding agricultural and mining area.
It was undisputed that the contract enclosed was in fact an exact copy of
the contract between the Union here involved and the Provo auto dealers. The
mechanics in the various automobile agencies at Provo, had previously been
organized by the Union, and the contract was the agreement currently in effect
between those parties. Callister, attorney for the Respondent herein, was and
is attorney for the Provo auto dealers. Apparently Anderson, Callister, and
Egbert were familiar with the Provo contract. The most important features
of this contract to this case, are the provisions for wages and for overtime.
Section II, wages, of the Provo contract, states that the minimum hourly rate
shall be $1.65 per hour for all journeymen mechanics, and that in addition
journeymen shall participate in an incentive plan on a 50-50 basis of customer-
labor charges, performed in excess of double their weekly hourly pay for that
workweek. Section I, workweek and overtime, of the same agreement, pro-
vides that the workweek shall consist of 40 hours, and that all work performed
in excess of that amount shall be paid for at 1% times the regular rate. At
that time Anderson had a rate of $1.51 per hour for journeymen, but employed
1 journeyman at a rate of $1.35 per hour, with a similar incentive plan.
E The negotiations took place in late 1951 and early 1952. For the sake of brevity the
year will not be stated as to each date in this section of the report.
1722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
H. B. Egbert testified that on November 26 Anderson phoned him saying that
he had received Egbert's letter and was ready to negotiate, and asked if it
would be convenient for Egbert to meet with him on November 30. The men
agreed on that date. Before this meeting could occur, however, Callister phoned
Egbert postponing the meeting and tentatively suggesting a meeting on December
3. The record is not clear as to the arrangement between the men, but evidently
Callister was to call Egbert on December 3, for on that date, when Callister did
not call him, Egbert phoned Lyle Johnson, the United States conciliator for that
district. Egbert requested Johnson to call a meeting of the parties.
Thereafter the parties encountered several postponements, but they finally
met on December 14. At this meeting Anderson and Richmond represented the
Company and Egbert and employee Branam represented the Union! According
to Egbert, most of the time was spent by the conferees in examination of certain
company records which Anderson showed the union representatives. These
records showed that the mechanics, for the previous quarter, were producing at a
rate substantially below their guaranteed minimum wage. Of all the mechanics
in the Respondent's shop, Branam alone earned commissions in addition to his
guaranteed wage. Anderson, by the wage records of each individual employee,
attempted to substantiate his claim that it was impossible for the Respondent
to pay the minimum rate of $1.65 per hour in the Provo contract. The meeting
concluded with the Company agreeing to prepare similar records for the month of
December and to produce them at a meeting on January 3.
On January 3, Branam and Egbert and Anderson and Richmond again met.
The conferees talked about the contract in general, including wages, paid holi-
days, vacations, and several other subjects. Just before the meeting broke up,
Anderson said that he didn't have too much objection to signing the Provo agree-
ment, if Callister, his counsel, didn't object. The parties agreed to have another
meeting with Callister present.
On January 7 Egbert met Callister at Nephi, Utah, where both men were
engaged in another labor matter. The men discussed having a meeting with
Anderson and, according to Egbert, Callister said, "You and Mr. Anderson had
better get together. Mr. Anderson is not going to sign an agreement with you.
He's got lots of money. He's tough." Callister also said there would not be an
agreement for 2 years. Callister told Egbert that he would call him.
Representatives of the parties again met February 9 at Anderson's place of
business. Egbert and Branam again represented the Union, and Anderson and
Richmond the Company. The records of performance of the men for the month
of December had been prepared by the Company, so the conferees examined
them and discussed them, but neither party changed its position. The meeting
ended with an understanding that Egbert would call Anderson for another
meeting in the first part of the following week.
Around February 11 Egbert met Anderson, and they agreed that Anderson
would call Egbert after he had talked to Callister. On February 20 Egbert went
to the Respondent's place of business and talked to Branam and several other
of the employees. On that occasion he saw Anderson in the showroom and asked
him again what they were going to do about a meeting. During the period Febru-
ary 20-28 Egbert saw Callister several times and talked to him about the
Anderson contract. He also called Anderson on 2 or 3 occasions.
On April 3, 1952, Egbert held a meeting of the employees at which the men
voted to strike. Prior to the meeting, Egbert had received permission of the
' Callister was also at the meeting, as appears from Egbert's cross -examination and
Callister's direct examination.
UTAH COUNTY TRACTOR SALES 1723
Lodge to take a strike vote. Egbert stated that the strike vote was taken because
of the continual postponement of negotiating meetings, and because of the dis-
charge of Johnson, McPherson , and Sumsion After the men had voted to strike,
the actual strike action was held in abeyance.
On April 10 Egbert called Anderson and told him that the men had voted to
strike and that he wanted to confer with Anderson and Conciliator Lyle Johnson
before any further action was taken. A meeting was agreed upon for April 14.
Egbert is apparently confused about this meeting because he also stated that
Conciliator Lyle Johnson phoned him and told him that the conciliator had
arranged a meeting for April 14.
On April 14, at the time of the appointment, as Egbert understood it, he ap-
peared at the showrooms of the Respondent. None of the other conferees was
there. After about 20 minutes Anderson appeared and Egbert asked him where
the people were for the meeting, and why Anderson had not been on time.
Anderson told E'gbert that he did not know a meeting had been scheduled for that
day, that was the first he had heard of a meeting. Egbert became angry and told
Anderson, "You are not prepared and Callister is not here," and he left the
office and went home. That afternoon Egbert called the conciliator and asked
him to arrange a meeting . Egbert testified that it was the policy of the Inter-
national to have a conciliator sit in on at least one meeting before men went out
on strike . The conciliator called back and said that a meeting had been arranged
for Callister 's office at Salt Lake City on April 22.
On April 15 Egbert called Callister to make arrangements with him for a
meeting of representatives of the Union with representatives of the Provo auto
dealers at Provo. They agreed to meet on the evening of April 17, and Callister
and Egbert then agreed that it might be advisable to have Anderson attend that
meeting , and the three of them could discuss the Anderson contract at that time.
On April 17 the meeting of the auto dealers was held as scheduled . When the
business of the auto dealers' meeting was finished, Egbert took the committee of
the emplWees of the Provo auto dealers with him downstairs to confer with
Egbert and Callister. Callister immediately questioned the propriety of having
a committee of mechanics , who were not concerned in any way with the discus-
sion , present. Egbert said that he wanted the men to be present at the meeting.
Callister objected. Egbert then said, "Lou, you don't think I'm going to meet
with you and Mr. Anderson alone," and he and the mechanics walked out.
On April 22 Conciliator Johnson, Callister, Branam, and Egbert met at
Callister's office. Anderson did not appear for the reason that he had been
designated on a school survey committee by the Governor of Utah and was
attending to the committee 's business . Egbert stated that at this meeting he
asked Callister if he was going to sign the Provo agreement . Callister said
that he was not, and that that ended the discussion.
On April 23, at 12 noon, the employees went on strike.
On May 1 the parties again met at a meeting arranged by Conciliator Johnson
at Egbert's request. Present were Branam and Egbert, representing the Union,
Anderson and Richmond, representing the Respondent, and Conciliator Johnson.
The production records of the men were brought out again and shown to Johnson.
The conferees discussed the subject of wages for some time , and then Egbert
asked Anderson if his position had changed from the original meeting that had
been held, and Anderson said no. However, according to Egbert , Anderson
offered to pay $1 .55 an hour to Branam , the mechanic who customarily made
more than his guaranteed wage. Egbert asked Anderson if $1.55 was offered to
all the men, and Anderson said no, it was offered only to Branam.
On May 20, 1952, Egbert on behalf of the Union sent a letter to Anderson"
8 General Counsel 's Exhibit No. 14.
1724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which called attention to the fact that the Union was conducting a strike against
the Respondent and had instituted proceedings before the Board against the
Respondent. It stated that the Union desired to negotiate on the three main
Issues concerned in the strike and the legal proceedings: (1) The matter of a
bargaining contract; (2) a strike settlement providing for the termination of
the strike, and an agreement as to conditions under which the employees would
return to work, with proper compensation for the time lost as a result of Re-
spondent's unfair labor practices; (3) reinstatement of employees McPherson,
Johnson, and Sumsion , and their proper compensation for losses incurred as a
result of Respondent's unfair labor practices; and (4) any other matter not
clearly understood between the parties.'
On June 28, 1952, another meeting arranged by Johnson took place at Callister's
office. The same representatives of the parties attended with the conciliator.
Again the men discussed wages, and Egbert asked Anderson again if his position
had changed from the time of their previous meeting. Anderson answered in
the negative, so the union representative left. That was the last meeting between
the parties, according to the testimony of Egbert.
On the cross-examination of Egbert some very significant facts were developed.
Egbert admitted that at the first meeting Anderson told him that he could not
afford to pay the hourly rate of $1.65 an hour as provided in the Provo contract,
and offered to show him the production records of the men to prove this. Egbert
admitted telling Anderson at that time that he couldn' t sign a contract for a less
hourly wage than the Provo wage rate. He admitted that he told Anderson that
if he signed a contract calling for anything less than the hourly wage rate con-
tained in the Provo agreement, he would get hell from all the businessmen in the
Provo area. He testified that on that occasion he told Anderson that in his
opinion Anderson was competitive with the Provo automobile dealers, and that
there was no reason for Anderson to enjoy an unfair labor advantage. On this
subject of wages he admitted that in conversations with Callister he had said
to Callister, "You represent the Provo Auto Dealers who are now paying $1.65
an hour, so how can you permit Lowry Anderson to pay less." Egbert also
admitted that at the first meeting the company representatives stated that they
"would take the Provo contract as presented with the exception of the overtime
and hourly wage rate." Egbert denied that Callister ever told him that Callister
had exhausted his efforts with Anderson to get $1.65 for the men, and that it was
up to Egbert.
At this point in his cross-examination Egbert testified as follows :
Q. Don't you recall on one occasion that I told you to go to see Mr. Anderson
yourself when you asked me about the dollar sixty-five?
A. No.
Q. Didn't you remember me ever telling you that?
A. No. You didn't say it that way. That isn't the way you said it.
Q. But your differences were between the overtime and the dollar sixty-five
and dollar fifty-five, wasn't it?
A. Pretty much.
Q. That is right.
A. The Provo contract wouldn't be a contract if the wages and overtime and
this and that was out of it.
Q. In other words, you told us that you could not permit us, that is Mr.
Anderson, to have a different contract than Provo auto dealers?
Note that a second letter, dated May 28, 1952, corrected this letter in certain particu.
lars. General Council's Exhibit No. 15.
UTAH COUNTY TRACTOR SALES 1725
A. Correct.
Q. And that you wouldn 't sign anything different?
A. That is right.
Later Egbert denied that at any time Anderson offered to pay all the mechanics
$1.55 an hour.
As to the bargaining, Anderson testified that he had made it plain to Egbert
that he was doing the bargaining for his shop, and that Callister had been re-
tained as his legal adviser. Anderson stated that at the meeting of January 3,
1952, Egbert, Branam, Richmond, and himself were present. The conferees dis-
cussed the various portfolios of the men, and then Anderson told Egbert that he
was willing to sign the contract which was proposed, with the exception of the
hourly rate and overtime provisions. As to those provisions Anderson said that
he would pay all the journeymen $1.55 an hour straight time. Anderson categori-
cally denied that he made the offer of $1.55 per hour for Branam only. Anderson
told Egbert that Branain was the only man who was exceeding his guarantee at
the time, and he pointed out to Egbert that the raise in reality meant nothing
to Branam, as that mechanic was making more than his guarantee. Egbert told
Anderson that he couldn't accept anything less than the wage rate in the Provo
contract. Anderson said that the meeting of January 3 concluded with an agree-
ment by the conferees to meet again on January 8. On January 8 Egbert did not
show up at the appointed time. Anderson then heard gossip in the shop that the
men were planning on coasting through the winter and conducting a strike in the
spring. When Egbert didn't show up, Anderson concluded the gossip was correct.
On February 9, however, Egbert came to the plant and wanted to have a meeting,
though it had not been scheduled. Egbert, Branam, Richmond, and Crandall, the
bookkeeper, held a meeting. Anderson brought out the folders of the men which
contained the December pay data, and the conferees proceeded to discuss each
folder individually. Anderson tried to show Egbert why he couldn't raise the
wage of the men who were then not coming up to their guarantee. According
to the records, none of the men was coming up to his guarantee, with the ex-
ception of Oliver Branam. At that time also, Anderson told Egbert that he would
accept the contract if Egbert would insert $1.55 as the guaranteed rate of pay on
a straight-time basis. Egbert said that he couldn't think of it, that his boss would
raise the devil with him if he accepted anything less than the Provo contract.
Anderson replied that Egbert shouldn't expect him to raise the wages of men who
were not then coming up to their guarantee. Anderson told Egbert that he and the
company representatives would step out of the office and leave Egbert and Branam
to examine the records and discuss the matter in private, that the Company was
not trying to hide anything, or put anything over, and that the records showed
what the men were earning. After about 30 minutes, Anderson went back into
the meeting room, and Egbert said that he couldn't sign anything but the Provo
contract, and if Anderson wouldn't agree to that, they were wasting their time.
Anderson did not hear from Egbert during March.
The next time lie heard from Egbert was on April 14. During the interim
Anderson thought that the gossip he had heard, that the men were going to wait
until the spring to strike, was true, and that accounted for Egbert's absence.
On April 14 Egbert came to the Respondent's showroom, and after exchanging
greetings with Anderson, demanded to know where Conciliator Johnson and
Callister were. Anderson replied that he didn't know, and asked if they were
supposed to be there. Egbert said yes, that they were supposed to be there for
a meeting. Anderson said that he had never been notified of the meeting. Eg-
bert said he understood that a meeting was scheduled. Anderson then suggested
1726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that as long as Egbert was there, they might discuss the matter. When the
men reached Anderson' s office, he showed Egbert the wage and commission
records of the employees again. By that time the records for another pay period
were ready for inspection, and he showed Egbert, again, that the men were not
coming up to their guarantee. Egbert said to Anderson, "Why don't you sign
up today, and let's get this behind us, let's forget all this arbitrating, and finish
the thing up." Anderson said that he was willing to sign the contract if Egbert
would insert the two provisions that he had requested. Egbert said that he
couldn't do it. Egbert then left.
Anderson did not see Egbert again until the night of April 17, at the meeting
of the Provo auto dealers at the Ashton Motor Company salesroom. Prior to
that meeting, Callister had called Anderson and requested him to attend the
meeting. After the meeting of the auto dealers, Egbert, Callister, and Anderson
got together. Egbert asked Anderson what he was willing to do, and Anderson
said that he was still willing to go for $1.55 straight time and no overtime pro-
visions. Egbert said he wouldn't think of taking it. That ended the conference.
The next time Anderson heard from Egbert was on the morning of April 22,
when Egbert phoned him saying he would like to have a bargaining session with
Conciliator Johnson at Salt Lake City in the afternoon at 4 o'clock. Anderson
told Egbert that it would be impossible for him to attend such a meeting on short
notice, as he was serving on a school survey committee that had been appointed
by the Governor, and he was scheduled to be at the Jefferson School every after-
noon that week. Anderson told Egbert he'd be glad to bargain with him at any
time, if Egbert would give him a little more notice so he could arrange his affairs.
Anderson did not attend the meeting in Salt Lake City.
The next time that Anderson met with Egbert was on May 1. At this meet-
ing were Conciliator Johnson, Egbert, Branam, Tipton, and Anderson. Johnson
asked if Anderson was ready to bargain and Anderson said that he was. At
that time the employees were on strike. The conference again was devoted to
the records of the individual men, covering all of them, and showing that Branam
was the only one who earned commission above his guaranteed wage. Anderson
showed the records to all concerned, and stated that it would be impossible for
him to increase the guaranteed wage over $1.55 an hour After about an hour
and a half, Johnston said that it seemed to him the only thing holding up a
contract was the difference between the $1.65 in the Provo contract, and the
$155 which Anderson offered. Ebert said that he couldn't accept the $1.55,
that he couldn't accept anything less than the Provo contract.
Louis H. Callister, attorney for the Respondent, testified that the first con-
versation he had in the negotiations was with Egbert on December 13, 1951, in
Anderson's office.1° Present were Egbert, Anderson, and Callister. Egbert
previously had proposed the Provo contract and the men discussed the contract,
paragraph by paragraph, Callister marking 0. K after each provision as it was
accepted by the Company. At the conclusion of the paragraph-by-paragraph
examination of the contract, Callister told Egbert that the Respondent would
accept his proposal as submitted, with the exception of the wage and overtime
provisions. Egbert told Callister and Anderson that he could not accept any-
thing less than the terms which were in effect with the Provo auto dealers.
Anderson told Egbert that he could not pay the rate in the Provo contract.
Egbert again stated that he would never sign a contract with a lesser wage than
was in the Provo contract. He claimed that Anderson was a competitor in the
10 The witness seems to be mistaken on the date of this conference , and means
December 14.
UTAH COUNTY TRACTOR SALES 1727
Provo area. Egbert said that Springville was only a few miles south of Prove,
and that he would never hear the last of it from his men if he signed a contract
with Anderson. with a wage rate less than that in effect at Provo. Anderson said
he would like to show Egbert his records, to prove that the employees were not
at that time making their guarantee , and that he could not pay the amount of
the Provo contract. Egbert also stated to Callister that he couldn't understand
how Callister , as counsel for the Provo auto dealers , could permit anyone com-
peting with them to sign a contract for a wage rate not equal to the rates paid
by other dealers in the area. Callister told Egbert that the business was Ander-
son's, not his.
Callister testified that in his practice as an attorney he frequently met with
Egbert, who represented the Union, at other plants. In the course of these
meetings on other business, Egbert and Callister frequently spoke about the
Anderson situation . In these discussions Callister told Egbert he had discussed
the $1.65 rate with Anderson but that Anderson insisted that he could not pay
the Provo rate, that Anderson insisted the men were not then making their
guaranteed rate ; and that it was up to Egbert to sell Anderson the $1.65 rate,
that he had tried to sell it to Anderson and failed.
On April 10 Anderson called Callister at Provo and said that Egbert was
coming to Callister's office for a meeting at 4 o'clock that day. Anderson ex-
plained that he couldn 't meet with Egbert because he was on the school survey
committee appointed by the Governor , which was meeting on that afternoon.
Later in the morning Egbert called, and Callister told him that Anderson could
not be present. When Egbert demurred, Callister told him to call Anderson
and voice his complaints to Anderson . Later in the afternoon Egbert met with
Callister and Callister again told him that he simply could not convince Anderson
to pay the $1.65 rate, and that he did not see how he could do anything more.
Actually Callister was a "little disgusted " in the sense that the job of selling
Anderson was really Egbert's job, not his. Egbert again pointed out to Callister
that he was counsel for the Provo auto dealers, and that he should not want to
see a dealer in the same trade area with a lower hourly wage rate than those
paid by the Provo auto dealers. Callister again explained to Egbert that the
business belonged to Anderson , and not him
On April 17 Callister and Egbert attended a meeting of the Provo auto dealers
at the Ashton Motor Company showroom at Provo. On the day before this meet-
ing Callister in talking to Egbert had suggested that the principal representatives
of the parties meet at Ashton's. When the meeting of the auto dealers was con-
cluded, Callister took Anderson downstairs to Egbert and said to Anderson,
"Lowry, please again tell Mr. Egbert what you are willing to do." Callister said
that he had tried to tell Egbert, and didn't seem to get it over to him. Anderson
told Egbert, "We will take the Provo Contract, but I will not give more than $1.55,
or the overtime ." Egbert said , "that isn't enough , I won 't sign anything less
than the Provo contract," and he walked out.
Callister denied that on the occasion he talked with Egbert at Nephi that he
made any statement that there wouldn't be a contract for Anderson' s business
for a period of 2 years , or a statement to the effect that Anderson was a rich
man and could wait forever without a contract. Callister testified that on many
occasions he had told Egbert "we will take the Provo contract with the exception
of the overtime and that Anderson would pay $1.55 per hour."
On cross-examination Callister explained that at the first meeting between
the parties he offered on behalf of the Company to accept the proposed contract
with the exception of the provision as to wages and overtime and that he under-
stood that later Anderson had offered the Union a rate of $1 .55 per hour for
1728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
journeymen. In his conversations with Egbert, when they met in the course
of their business, he urged Egbert to take the contract at $1.55 per hour and try to
work the rate higher in ensuing years. However, Egbert continually told Callis-
ter that as counsel for the Provo auto dealers he should be ashamed of himself for
being willing to accept anything less than $1.65 per hour. Because he was the
counsel for the auto dealers, Egbert continually took the matter up with him, and
Callister continually told Egbert to take the matter up with Anderson.
Concluding Finding
In his testimony Egbert made much of the fact that he encountered considerable
difficulty in arranging bargaining sessions with the Respondent. On the entire
record, I find his complaint on this score entirely unfounded. The Respondent's
representatives met with him at any time he desired, provided only that he gave
the Respondent reasonable notice of his desire for a meeting. He conferred
formally with Anderson on many occasions, and seems to have had practically
continuous, less formal conversations with Callister. On this feature of his
testimony I deem Egbert unreliable. Certainly too, Egbert was far less than
a fair and candid witness. His version of the negotiations, furnished on direct
examination, appeared far different on his cross-examination. Many important
facts favorable to the Respondent in the negotiations were wrung from Egbert
only after patient and persistent cross-examination. That they were finally dis-
closed was a tribute to the patience of the cross-examiner and not to the candor of
the witness. On cross-examination, Egbert appeared to be a highly partisan
witness intent on saying only those things that he thought would help the
union case. In view of his demeanor and bearing as a witness, his obvious par-
tisanship, and his grave lack of frankness, I credit only so much of his testimony,
as to the negotiations, as is consistent with the testimony of Anderson and
Callister. Those two witnesses testified frankly and fairly, and their testimony
is to a large extent supported by Egbert's admissions on cross-examination. I
credit the testimony of Anderson and Callister. On cross-examination Egbert
admitted that the proposal of the Union which he submitted to the Respondent
was the union contract which the Union had with the Provo auto dealers, and
that from the time he submitted that proposal until the negotiations ended, he had
never once in any way offered to modify his original demands. Indeed, on
cross-examination , he admitted that on many occasions he told the Respondent
that he could not take less than the Provo contract. Egbert also testified that
the Respondent's position was that he could not afford to pay the wage rate set
forth in the Provo contract, and that the Respondent opened to Egbert his records
pertaining to the rates of pay and the wages of the men, to prove that point.
Egbert also admitted that early in negotiations the Respondent told him that it
would accept the Provo contract with the exception of the provisions as to wage
rate and overtime.
On the basis of Anderson's and Callister's testimony I find that the Respondent
offered to pay the journeymen mechanics $1.55 per hour straight time, and that
the offer was rejected by Egbert because he would not accept anything but the
Provo contract. From all the testimony on this point it is patent that it was
the Union's adamant attitude that precipitated the impasse on wages, which
ended these negotiations. Egbert's conduct in demanding that the Respondent
accept the Provo contract in toto , without deviation, was in fact an ultimatum
to the Respondent . In all subsequent bargaining sessions Egbert took the
adamant position that the Respondent must bow to the union ultimatum. The
Respondent capitulated to a large extent . It accepted the Provo contract except
UTAH COUNTY TRACTOR SALES 1729
as to wages , and on that point it made a substantial concession and threw open
its wage records to show that it could do no more.
I find that the Respondent bargained in good faith with the Union as required
by the Act , and that the negotiations were fruitless because the parties reached
an impasse on the subjects of wages and overtime . The Board has frequently
recognized that as the Act does not require final agreement or the granting of
concessions, the parties may reach an impasse which does not reflect on the
good faith of the bargaining."
F. Interference, restraint, and coercion; acts alleged to show knowledge or
improper motivation on the part of Respondent
The Eviction of Lucas
Robert Lucas testified that he rented an apartment on North Main Street,
Springville , from Anderson. The apartment was located in a 2-apartment build-
ing on property adjacent to the property devoted to the business . The apart-
ment building was approximately 150 feet from the driveway entrance into the
tractor shop. Between the driveway and the apartment house on Main Street,
the Respondent maintained an outdoor showplace where tractors were placed
on display. Between the apartment house and the outdoor showroom was a
fence . Part of the rented premises was a garage in the rear of the apartment.
There is no direct evidence as to how the landlord-tenant relationship of
Lucas and Anderson began . However, apparently, Lucas occupied the premises
on a month-to-month basis. He was paid the same journeyman rate as the
other journeyman mechanics and he paid Anderson a rental of $35 per month
for the apartment. Apparently there was no other employee who was also a
tenant of Anderson.
Lucas testified that on the 14th day of May 1952, he was served with a notice
by the city marshal of Springville to quit the above-described premises. The
notice required him to deliver up possession of the premises on or before June 1,
1952. Pursuant to the notice to quit, Lucas vacated the premises as required by
the notice. Lucas had paid his rent for the month of May on time.
On cross-examination Lucas was questioned about certain features of his
conduct while picketing in the strike. Picketing was conducted principally
across the driveway which ran from North Main Street back to the tractor shop.
In his picketing Lucas carried a sign which read "This shop unfair to mechanics.
Mechanics strike for a living wage." When asked on cross-examination if he had
not said to Clyde Braithwaite, an employee who continued at work during the
strike, that he was crossing the picket line at his own risk, the witness answered
that he did not remember. When asked if on April 24 at approximately 10 a. in.
he had not said to Carl VanPatton, an employee of the Respondent, "You dirty
black son-of-a-bitch, I will kill you." The witness answered that he did not use
that language, that he had said, "you yellow scabby son-of-a-bitch." In regard
to that incident he did not remember if he said anything else. When asked if
he had not called employees VanPatton and Braithwaite a very obscene epithet in
the presence of his own wife and the lady who occupied the upstairs apartment,
the witness stated that he did not recall using that language. Later he admitted
that on one occasion he saw the women standing near the house when he was
engaged in an encounter with employee Carl VanPatton. The witness testified
that on April 24 while he was engaged in picketing, he had a fracas with Carl
VanPatton. On this occasion VanPatton was driving his automobile out of the
"National Maritime Union, 78 NLRB 971, 981 ; and cases cited therein.
1730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tractor plant. Lucas was picketing at the sidewalk and the driveway. Van-
Patton jumped out of his car and hit Lucas with a piece of pipe. The witness
admitted that before VanPatton bit him with the piece of pipe that he had called
VanPatton and Braithwaite a yellow son-of-a-bitch and a scab. He testified that
he did not remember if he called VanPatton a dirty black son-of-a-bitch in addi-
tion to the above.
Upon cross-examination Lucas admitted that after the start of the strike he
repaired some automobiles in the garage of the apartment. Before the strike he
had repaired 2 or 3 automobiles there without complaint by Anderson.
Carl VanPatton, the employee who struck Lucas with the pipe, testified that
he had his first encounter with Lucas on April 23, 1952. At that time he was
with Braithwaite . When he drove up the driveway, Lucas said to him, "You are
going through at your own risk." Later on April 23, when he left the tractor
shop, he encountered employees Lucas, Branam, Hale, and Jacobson at the gate.
All 4 of the men rushed at his car. Lucas came to the door on the right-hand
side of his car and tried the door, but it was locked. Lucas had a club about 18
inches long in his hand. On the other side of the car Branam made motions,
threatening to throw a whisky bottle through the window. VanPatton had the
windows in the car locked, and managed to escape from the men without damage
to his car or injury to himself. When he reached the highway, he stopped, and
observed that the men did the same thing to employee Braithwaite, who in his
car was following VanPatton.
On April 24 , VanPatton again encountered Lucas, who on this occasion was
accompanied by employee Swenson. VanPatton pulled up to the gate but Lucas
walked in front of him and stood there, and refused to let him go through.
He said to VanPatton, "You dirty black son-of-a-bitch." According to VanPatton,
Lucas then walked over to the left fender of the car and said the same thing to
him again . Then Lucas came towards the door on the left side of VanPatton's
car and he said, "You dirty black son-of-a-bitch, I will kill you." VanPatton
swung the door open , jumped out, and hit Lucas several times with a jack
handle which he had in the car.
VanPatton also testified that about April 29 he had another encounter with
Lucas. At that time Lucas called him very vile names . At the time Lucas was
calling the names two women were standing near the apartment house at the
fence. One of the women was Lucas' wife, and the other was the lady who lived
upstairs in the apartment . On another occasion at approximately that time
Lucas called the same obscene names at VanPatton , when VanPatton drove out
of the garage.
Anderson testified that he served the eviction notice on Lucas because he felt
that his property and buildings would be safer with Lucas evicted from the
leased premises . He testified that after the strike started several things hap-
pened which caused him grave fears for his property . He stated that 8 new
tractors which the Company had received right after the strike had been left
out on the tractor showplace as usual , but on examination several days later it
was discovered that a foreign substance had been put in the gas tank of each
of the tractors. Also, the day after the tampering with the tractors was dis-
covered, one of the salesmen went out to pick up a tractor belonging to the
Company, and he discovered that the brakes on the tractor had been cut with
diagonal pliers. This upset the salesman very much , because he realized that to
drive the tractor in that condition would not only endanger his own life but the
lives of all other people using the highway at that time. On another occasion
12 VanPatton is white, but of dark complexion.
UTAH COUNTY TRACTOR SALES 1731
the Company found that 12 of the best used cars on the used car lot, had been
sprayed with a paint remover and considerably damaged . Anderson stated that
he had no evidence connecting Lucas with any of this vanadalism, nor did he sus-
pect Lucas of having committed the acts, but the various incidents of damage to
his property, coupled with the fact that Lucas was repairing automobiles in the
garage of the rented premises , all influenced him to terminate Lucas' tenancy
by giving him a notice to quit. He stated that he believed his property. much of
which had to remain standing in the open, would be safer with Lucas removed
from the apartment.
Concluding Finding
On occasion the Board has found that an employer has committed a violation
of Section 8 (a) (1) of the Act by the discriminatory discharge of an employee,
and his subsequent eviction from a "company house," and as part of the remedy
has ordered that the employee be returned to the "company house," and reim-
bursed for any financial loss suffered by reason of the eviction. These cases
usually arise in connection with "company towns," and uniformly the occu-
pancy of the "company house" is an incident of employment. In those prece-
dents which I have examined three features are present which are not present
in the instant eviction. First, the occupancy of the company house was an
integral part of the contract of employment. Two, the employer discrimina-
torily discharged the employee tenant. Three, the eviction of the tenant was
usually on the ground that the employer-employee relationship having been
terminated, the right of the tenant to occupy the "company house" had likewise
terminated "
In the instant case there is no proof that Lucas' occupancy of the apartment
on Main Street was in any way related to his employment by the Company. He
,was paid the same rate of pay as all other mechanics, and be paid Anderson a
rent of $35 a month. Apparently no other employee occupied any dwelling
owned by either the Company or Anderson. I find, therefore, that the occupancy
of the apartment by Lucas was not related in any way to the contract of employ-
ment between Lucas and the Respondent. As to the second point of distinction,
it is clear that Lucas was not discriminatorily discharged by Anderson. At the
time of the eviction, he was, and still is, an employee of the Company, though
on strike, and he had not been discriminated against in any way. As to the
third point of distinction, Anderson testified credibly that foreign substances
had been placed in the gas tank of some new tractors, that some of his automo-
biles had been sprayed with paint remover, that the brakes on one of his tractors
had been severed, and that though he did not suspect Lucas of perpetrating
any of this vandalism he felt that his property would be safer if Lucas was
not living next door to his place of business where his tractors and used cars
were displayed out in the open. He also stated that Lucas was conducting a
business of repairing automobiles in the garage of the rented premises. For
these reasons, he caused a notice to quit to be served upon Lucas.
Under this set of circumstances, I find no merit in the General Counsel's
allegation that this eviction constituted a violation of Section 8 (a) (1). From
the foregoing it is clear that both Anderson and Lucas possessed two separate,
distinct, and unrelated sets of rights : Anderson as an employer and as a land-
lord ; Lucas as an employee and as a tenant. Under the circumstances here
present, it is merely a coincidence that Lucas was also a tenant of his Employer.
Is Climam Spinning Company, 101 NLRB 11931; Pacific Mills, 91 NLRB 60; W. T Carter
and Brother , 90 NLRB 2020, 2027 ; Sellers Manufacturing Company, 92, NLRB 279, 296,
are typical cases
1732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I find that the enumerated acts of vandalism caused Anderson to fear for the
safety of his property, and for that reason he caused a notice to quit to be served
on Lucas. I find that his eviction of Lucas was not a reprisal for the union
activities of Lucas, but was a precautionary measure taken to protect his
property. Therefore I find that the Respondent did not violate Section 8 (a)
(1) of the Act by the eviction of Lucas.
G. Other acts of interference, restraint , and coercion
It will be noted that some of the incidents hereafter discussed occurred more
than 6 months prior to May 5, 1952, and that other incidents concerned super-
visors of the Respondent, other than G. Lowry Anderson. When testimony re-
garding such incidents was introduced at the hearing, the Respondent made
proper objection to the acceptance of that testimony on the ground that testi-
mony concerning the incidents was precluded either by Section 10 (b) of the Act,
or by the General Counsel's bill of particulars. However, the General Counsel
contended that testimony as to the Respondent's conduct occurring before Novem-
ber 5, 1951, and as to conduct by representatives of the Company other than G.
Lowry Anderson, was admissible, not as being unfair labor practices provable
under this complaint, but as being evidence of either knowledge or illegal moti-
vation on the part of the Respondent. On that basis only the testimony was
accepted.
One such incident, concerning an alleged statement by Merrill, on or about
November 1, 1951, to McPherson, Branam, and Lucas, has been reviewed here-
tofore.
Mark L. Sumsion testified that on one occasion when he engaged in conversa-
tion with Anderson in the latter's office, Anderson said to Sumsion that it
wouldn't pay the men to join the Union, and it would be more or less a waste of
time, that he couldn't afford to pay the men any more. Sumsion did not re-
member the date of this conversation, or whether it occurred before or after
he joined the Union, which was October 8. On cross-examination he testified
that "Lowry didn't come right out and say that he didn't like the Union, he more
or less skated around the point, and he said we wouldn't gain anything from
joining it." Sumsion and other employees also testified that a professor from
Brigham Young University, at Anderson's request, addressed a meeting of the
mechanics. By a drawing on the blackboard, the professor illustrated the dol-
lar received by the Respondent in its operations, and where the various seg-
ments of the dollar went in taxes, costs, and expenses . By his illustration the
professor purported to prove that the Respondent could not increase the pay of
the men. I find that none of that testimony establishes any unfair labor practice
on the part of this Respondent.
Robert Lucas, the evicted mechanic, testified that he was hired on March 8,
1949. About a month after he was hired, Anderson had a conversation with him
in which Anderson explained that the company policy was that it was closed to
union shops, that Anderson tried to keep his wage scale in reach of the Unions,
and that Anderson didn't want any union in the shop.
Lucas testified that while Merrill was service manager, the latter had talked
to him about unions on at least 2 occasions. About 10 days after Lucas joined
the Union, October 8, 1951, Merrill said to him that the men might just as well
all look for another job, that Anderson was going to get rid of the men that
joined the Union one at a time, that he was not going to sign a union contract,
and would not have the Union in the shop . The other occasion was the conver-
sation Merrill had with some employees in Hale's car on November 1, 1951.
UTAH COUNTY TRACTOR SALES 1733
Lucas testified that on April 9 Anderson ran a meeting of the employees in the
basement of the garage. Anderson said that this is a small town, there are ru-
mors about there being a strike, if you are going to strike go ahead and strike but
none of you will ever work for me again. In regard to Paul Swenson of the
tractor shop, Anderson said that if Swenson insisted on being union, Anderson
would just have to lay him off. Anderson had no place in the tractor business for
a union . He said that he wouldn't sign any contract. At that point Bob Jacob-
son asked him if he meant he would not sign a contract at the rate of $1.51 per
hour, and Anderson replied that he was not signing any contract.
As a witness, Lucas did not impress the undersigned favorably. He ap-
peared to be too willing. For example, I do not credit his testimony that in
April 1949, 2 years and some months before the first organizational efforts of
the Union, that Anderson discussed with Lucas an alleged antiunion policy of
the Company. That testimony in the context of the circumstances in this case
has no element of plausibility. Also, Lucas attributes 2 statements to Merrill
of an antiunion nature. Merrill, who appeared to be a most creditable witness,
denied that he made any statements of that nature . When cross -examined con-
cerning his conduct in connection with his altercation with VanPatton, Lucas
was hesitant, uneasy, and vague. I credit the testimony of VanPatton on that
point. On his bearing as a witness, and on the substance of his testimony, when
it is examined in the light of the entire record, I reject the testimony of Lucas,
except as to the talk of Professor Smith, and the talk of Anderson on April 9.
I credit his testimony on those points to the extent that it is corroborated by other
witnesses"
Paul Swenson, a journeyman mechanic, testified that he joined the Union
early in October. About a week before the strike, he had a conversation with
Anderson in which Anderson asked him what he thought he would gain by join-
ing the Union. Swenson told Anderson that he felt he would be more secure
in his job. Anderson told Swenson that he didn't think Swenson was eligible
to belong to the Union because he didn't use tools 50 percent of the time, and
that if Swenson insisted on staying in the Union, Anderson would have to lay
him off. Anderson also said that he didn't want to have anything to do with
the Union because he didn't like Mr. Egbert, he just couldn't get along with
him, and that if the men went on strike none of them would ever come back to
work for Anderson, because he could hold out longer than the men could. Swen-
son said that Anderson on that occasion had a list of names of the men who
voted for the strike. Anderson told him that he had voted for the strike and
wanted to know why he had done so. The witness did not testify as to his an-
swer to that question. I credit Swenson's testimony.
Oliver A. Branam testified that he attended a meeting of the employees on
April 9 which was called by Anderson. Anderson told the men that they had
been doing a lot of talking about striking and that it was causing the business
to drop off, and that if it continued business would become so poor that he would
have to lay them off. He told the men, that if they were going to strike to go
ahead, and quit talking about it, to - - - - or get off the pot. Anderson also said
that the little get-togethers the men were having in the shop to talk over the
proposed strike and union shop would have to stop ; that if they were going
to talk about it, they would have to do it outside the gate. Anderson also ex-
plained that Paul Swenson didn't work with tools over half the time, and there-
fore was not considered a mechanic. If Swenson insisted on continuing his union
' Sumsion as to the talk of Professor Smith, and Branam as to the talk of Anderson
on April 9. Previously I found that Smith's talk to the employees did not constitute an
unfair labor practice, inasmuch as it contained no threat of reprisal or promise of benefit.
257965-54-vol. 103-110
1734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
activities, that Anderson would have to lay him off. At that point employee
Jacobson asked Anderson if he would sign a union contract. Anderson said no
under the present setup of business he could not. Jacobson asked him if he would
sign a contract of $1.51 per hour and Anderson said no, he would start Clyde
Braithwaite and Jacobson at a rate of $1.51 an hour, but he would continue to
start journeymen off at $1.35 per hour. Anderson said he was going to try
Braithwaite for 2 weeks and see how he performed The strike started at noon
that day.
On cross-examination Branam testified that on approximately January 1, 1952,
he was assigned the duties previously performed by McPherson, and that at
that time his rate of pay was increased to the rate previously paid McPherson.
He also testified that prior to the hiring of Richmond, Anderson offered him the
job of ser%ice manager but he refused it. With the exception of that portion of
his testimony, which was denied by Merrill, I credit Branam 's testimony.
I find that the Respondent violated Section 8 (a) (1) of the Act by:
(a) The conduct of Anderson on or about April 2, 1952, in which he questioned
employee Swenson as to his motives for joining the Union; attempted to dissuade
Swenson from membership; threatened his discharge if he persisted in union
membership, and questioned Swenson as to the latter' s reason for voting to strike.
(b) The conduct of Anderson on or about April 9, 1950, in which he told the
assembled employees that if Swenson persisted in union membership he would
be laid off. Under the circumstances this was a threat, not only to Swenson, but
to all the men.
I find that the General Counsel has failed to prove by a preponderance of the
evidence that the Respondent :
(a) Threatened to discontinue business operations if the employees joined
the Union.
(b) Vilified, discouraged, and expressed disapproval of the Union and Its
representatives.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in
connection with the operations of the 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 ob-
structing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices, it
will therefore be recommended that it cease and desist therefrom, and take
certain affirmative action designed to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. International Association of Machinists, District Lodge 114, Local Lodge
1066, AFL, is a labor organization within the meaning of Section 2 (5) of the
Act.
2. All shop employees, including mechanics, body and fender men, grease men,
apprentices, and helpers employed by Respondent at its place of business located
nt Springville, Utah, excluding partsmen, office employees, salesmen, guards,
SAWYER DOWNTOWN MOTORS, INC. 1735
and supervisors, constitute a unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9 (b) of the Act.
3. International Association of Machinists, District Lodge 114, Local Lodge
1066, AFL, was on November 6, 1951, and at all times thereafter has been the
exclusive representative of all the employees in the above-mentioned appropriate
unit for the purposes of collective bargaining within the meaning of Section
A (a) of the Act.
4. The Respondent did not refuse to barg.i'n in good faith with the aforesaid
Union on November 28, 1951, or at any time thereafter, and has therefore not
engaged in unfair labor practices within the meaning of Section 8 (a) (5) of
the Act.
5. The Respondent did not discriminatorily discharge Randall Johnson on
October 15, 1951, Floyd McPherson on November 23, 1951, or Mark Sumsion on
January 31, 1952, and therefore has not engaged in unfair labor practices within
the meaning of Section 8 (a) (3) of the Act.
6. The Respondent did not threaten to lay off or discharges employees if they
engaged in a strike or other concerted activities, or threaten to discontinue busi-
ness operations if the employees joined the Union, or vilified, discouraged, and
expressed disapproval of the Union and its representatives, and therefore has
not committed a violation of Section 8 (a) (1) of the Act by virtue of such
,conduct.
7. The Respondent has engaged in unfair labor practices by interfering with,
restraining, and coercing its employees in the exercise of the rights guaranteed
in Section 7 of the Act and thereby violated Section 8 (a) (1) of the Act by
the following conduct :
(1) Questioning employees about their union activities, affiliations, and
interests.
(2) Attempting to dissuade employees from joining or assisting the Union.
(3) Threatening to lay off or discharge employees if they joined or assisted
the Union.
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 in this volume.]
SAWYER DOWNTOWN MOTORS, INC. and RICHARD STAHL AND WILLIAM
SPROTTE. Case No. 13-CA-IO22. April 10, 1953
Decision and Order
On December 30, 1952, Trial Examiner Lloyd Buchanan issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent, Sawyer Downtown Motors, Inc., 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 Re.
port and a supporting brief.
103 NLRB No. 120.