Klinka's Garage

National Labor Relations Board - Board Decisions

Aug 26, 1953

106 N.L.R.B. 969 (N.L.R.B. 1953)

KLINKA'S GARAGE 969
refrain may be affected by an agreement in conformity with Section 8 (a) (3) of the National
Labor Relations Act.
The appropriate bargaining unit is
All office and clerical employees at the Allis-Chalmers Manufacturing Company
tractor branch, Toledo, Ohio, excluding branch manager, assistant branch manager,
service manager , parts foreman, office manager , warehouse foreman , accountant,
guards , outside salesmen , secretary to branch manager , confidential employees,
warehouse , receiving and shipping employees , professional employees and super-
visors as defined in Section 2 (11) of the Act, as amended.
ALLIS-CHALMERS MANUFACTURING COMPANY,
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.
JOHN A. KLINKA, An Individual doing business as KLINKA'S
GARAGE and INTERNATIONAL UNION, UNITED AUTO-
MOBILE WORKERS OF AMERICA, AFL. Case No. 13-CA-
1259 . August 26, 1953
DECISION AND ORDER
On May 28, 1953, Trial Examiner Eugene F. Frey issued his
Intermediate Report in the above-entitled proceeding, finding
that the Respondent had engaged in and was engaging in certain
unfair labor practices within the meaning of Section 8 (a) (1), (3),
and (5) of the Act 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 had not engaged in
certain other unfair labor practices as alleged in the complaint.
Thereafter, the Respondent filed exceptions to the Intermediate
Report with a supporting brief and the General Counsel filed a
memorandum in opposition to Respondent's exceptions.
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, brief,
and memorandum of opposition, and the entire record in
the case, and adopts the findings, conclusions, and recom-
mendations of the Trial Examiner to the extent consistent
with the findings, conclusions, and order hereinafter.'
1 The following minor corrections of the Trial Examiner's findings are noted:
(1) The Intermediate Report states, in its text following footnote 1, that "All purchased
parts and accessories are shipped to Respondent from points within the State of Wisconsin "
(Emphasis supplied.) The parties stipulated at the hearing, however, as correctly found by the
Trial Examiner elsewhere, that the motor vehicles and accessories sold by Respondent are
106 NLRB No. 156.
97 0 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. We find, in accord with the Trial Examiner, that the
Respondent, as an essential element in a nationwide system
of automobile manufacture and distribution, is engaged in
commerce within the meaning of the Act, and that it will
effectuate the policies of the Act to assert jurisdiction
herein.2
Our dissenting colleague, without directly challenging the
Board's legal authority to assert jurisdiction over this em-
ployer,, would dismiss as a matter of "administrative self-
restraint" and, for the further reason, that the Wisconsin
board is perhaps better adapted to handling a dispute of this
nature.
To accept the first promise would require revision of the
Board's jurisdictional policy--concededly not binding on the
Chairman as he had no part in its formulation- -which in our
view is a reasonably definite yardstick for industry and labor,
and has received general acceptance since first announced
several years ago. Granted that the Board could, in its dis-
cretion, alter the jurisdictional criteria so as to exclude this
employer from the reach of Federal power, we think that
should be done only as part of an overall examination of our
jurisdictional standards. The second premise seems to us
hardly tenable, even assuming the undoubted competence of
the Wisconsin board, when it is noted that by the provisions
of the very Act we administer it is not possible to cede juris-
diction to the Wisconsin board.
It appears to us, therefore, that assertion of jurisdiction
here is not an instance of over-reaching by a Federal agency,
but adherence to settled administrative and statutory criteria.
2. We also find, as did the Trial Examiner, that the Re-
spondent violated Section 8 (a) (3) and (1) by the October 3,
1952, discharges of his employees. By these discharges, by
illegal interrogation of Arthur Kiefer as to his union affiliation,
and by statements to the employees constituting threats of
discharge in the event the Union organized the shop, the Re-
spondent also violated Section 8 (a) (1). Contrary to the
shipped from points outside the State ofWisconsin and that parts are shipped to the Respondent
from points within that State.
(2) The Kiefers, on October 3, 1952, worked 42 minutes on the Justman car and an hour
and 50 minutes on the Meyer car whereas the Trial Examiner inadvertently reversed the
totals. Finally, we note a typographical error in footnote 31 of the Intermediate Report rec-
ommending that the complaint be dismissed "in this report" rather than "in this respect."
None of these inaccuracies or inadvertencies in the Trial Examiner's report is of srch a
nature as to affect his ultimate conclusions or our findings herein.
2See Baxter Brothers, 91 NLRB 1480; N. L. R. B. v. Somerville Buick, Inc., 194 F. 2d 56
(C. A 1); N L. R. B. v. Ken Rose Motors, Inc., 193 F. 2d 769 (C. A. 1); N. L. R B. v. Davis
Motors, Inc., 192 F 2d 782 (C. A. 10); N L. R B. v. Conover Motor Co., 192 F. 2d 779
(C. A. 10).
BAs, indeed, would appear to us fruitless in view of the decided cases See, e.g , N. L. R. B.
v. Denver Building Trades Council, 341 U. S. 675; N. L. R. B. v. Cowell Portland Cement
Co., 148 F. 2d 237, cert. den. 326 U S. 735; N L R. B v. Kudile, et al , 130 F. 2d 615,
cert. den. 317 U S 694, where the courts have affirmed the Board's jurisdiction over enter-
prises with annual inflow of goods across State lines in accounts comparable to that herein
KLINKA'S GARAGE 97 1
exceptions filed by the Respondent , the record fully supports
the fact and credibility findings made by the Trial Examiner
with respect to these violations . Inasmuch, however, as we
find hereinafter that the September 22 reductions in pay and
hours were not in violation of the Act , it is clear that the
Respondent made a valid offer of reinstatement to Robert
Kiefer on January 26, 1953, which extinguished further liability
for back pay due that employee. As Robert Kiefer rejected
the Respondent ' s valid offer of reinstatement and as Arthur
Kiefer was reemployed by the Respondent shortly after his
discharge , we hereby amend the Remedy, as ordered by the
Trial Examiner , to provide that back pay for Robert Kiefer
be limited to the period between the date of his discharge and
the date of Respondent ' s offer of reinstatement and we shall
not direct that the Respondent make further offer of reinstate-
ment to either employee.
3. We do not agree with the Trial Examiner that the Re-
spondent violated Section 8 ( a) (3) and ( 1) with respect to the
September 22, 1952, reductions in hours and the rate of pay
on body work . We are persuaded , instead, on the entire
record, that the Respondent initiated and executed such
reductions for economic reasons. In this respect we note that,
although the statistics offered by the Respondent as to the
body shop are not entirely conclusive as to the actual profit
and loss situation of that division , there is considerable
evidence of economic justification for the reductions. More-
over, it is clear that the Respondent considered such reductions,
or like economies , necessary even prior the advent of the
Union and its organization of his employees . Further, after
the reductions had been accomplished , there is no evidence
that the reduced hours necessitated overtime work to keep
the work load current. Accordingly, we find that the Re-
spondent did not violate Section 8 ( a) (3) and ( 1) by discrim-
inatorily reducing the hours of work and rate of pay on
September 22, 1952, in an attempt to discourage continuation
of his employees ' union affiliation and we shall dismiss the
complaint as to this allegation.4
4. As set forth in the Intermediate Report, Schaefer, the
union representative , visited the Respondent ' s place of bus-
iness on September 26, 1952. The visit was in response to a
request by Respondent ' s employees , both of whom had joined
the Union previously , to see if something could be done about
the September 22 reduction in hours and rate of pay. Schaefer,
accompanied by the employees , identified himself as the union
representative and made inquiry as to what could be done
towards rescinding the hour and wage cut. Respondent de-
fended his action in regard to the cut and accused Schaefer
of wanting to start "trouble ." Upon the union representative's
4In view of this finding, we do not pass upon the Respondent ' s objections to the amendment
of the complaint , after hearing, to allege the reduction of the pay rate on body work as a
violation of the Act.
972 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
disavowal of any desire to start trouble and statement that
his intent was to attempt to reinstate the previous hours and
rates, Respondent stated that no union had ever been in his
establishment and that he would not allow one there. Schaefer
then pointed out that he was not present "that day to nego-
tiate or bargain" on a contract and noted that the Union was
not "after the rights without an election." Respondent, in
reply, stated that he would not bargain with the Union even if
an election was to be held and won by that organization.
The Trial Examiner, upon this evidence, found that the
Respondent had violated Section 8 (a) (5) and (1) by refusing
to bargain collectively in good faith with the Union as the
statutory bargaining representative of its employees in an
appropriate unit. We do not agree. The Board has previously
ruled that, absent special circumstances, a clear and un-
ambiguous request to bargain must precede a finding that
Section 8 (a) (5) has been violated. In the instant case, the
Respondent's employees had joined the Union and that organi-
zation had filed a petition for an election by this Board. In
this background Schaefer appeared before the Respondent and
attempted to discuss a reduction affecting their basic condi-
tions of employment. The Respondent and Schaefer discussed
this specific grievance and the Respondent informed the Union
of his economic reasons for the reductions. Schaefer specifi-
cally rejected any intention of approaching the Respondent
as the bargaining representative of the employees or of any
claim by the Union to assume bargaining rights prior to the
holding of an election by this Board. While it is true that the
Respondent, on this occasion, made statements to the effect'
that he would not bargain with the Union even if that group
won the election, the comments of the Respondent on a question
not then in issue cannot be held to be sufficient evidence of a
violation of Section 8 (a) (5). To hold otherwise would be to
find that a refusal to bargain has occurred where there has
not been a request for such bargaining and, indeed, where a
specific disavowal of such a request is on record. Accord-
ingly,s we find that the Respondent did not violate Section 8 (a)
(5) by refusal to bargain with the Union and we shall dismiss
the complaint in that respect. 6
ORDER
Upon the entire record in the case, and pursuant to Section
10 (c) of the National Labor Relations Act, the National Labor
Relations Board hereby orders that Respondent , John A.
5 See Zall Milling Co. v. N. L. R. B., 202 F. 2d 947 (C. A. 2); N. L. R. B. v. Valley Broad-
casting Co., 189 F. 2d 582 (C A. 6).
6Member Houston would assert jurisdiction in this case, but does not join in the dismissal
of the refusal to bargain allegation and consequently must dissent from that part of the
decision.
KLINKA'S GARAGE 97 3
Klinka, doing business as Klinka ' s Garage, West Bend, Wis-
consin, his agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Interrogating his employees regarding their union affili-
ation or activities.
(b) Threatening his employees with discharge if the Inter-
national Union, United Automobile Workers of America, AFL,
or any other labor organization of his employees , organizes
his shop.
(c) Discouraging membership in International Union, United
Automobile Workers of America, AFL, or any other labor
organization of his employees , by discharging any of his
employees , or by discriminating in any manner in regard to
their hire or tenure of employment or any term or condition
of employment.
(d) In any other manner interfering with, restraining, or
coercing his employees in the exercise of their right to self-
organization , to form labor organizations , to join or assist
International Union, United Automobile Workers of America,
AFL, or any other labor organization , to bargain collectively
through representatives of their own choosing , and to engage
in other concerted activities for the purpose of collective
bargaining or other mutual aid or protection , or to refrain
from any or all of such activities , except to the extent that
such right may be affected by an agreement requiring member-
ship in a labor organization as a condition of employment,
as authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board
finds will effectuate the policies of the Act:
(a) Make whole Robert Kiefer and Arthur Kiefer for any
loss of pay which they may have suffered by reason of the
Respondent ' s discrimination against them in the manner
described in the section of the Intermediate Report entitled
"The Remedy " as modified under the Board ' s Decision and
Order herein.
(b) Upon request, make available to the National Labor
Relations Board, or its agents, for examination and copying,
all payroll records, social - security payment records, time-
cards, personnel records and reports, and all other records
necessary to analyze and compute the amounts of back pay
due under the terms of this Order.
(c) Post at his place of business in West Bend, Wisconsin,
copies of the notice attached hereto and marked "Appendix
A."'► Copies of said notice , to be furnished by the Regional
Director for the Thirteenth Region, shall , after being duly
signed by Respondent or his authorized representative, be
posted by Respondent immediately upon receipt thereof and
maintained by him for sixty ( 60) consecutive days thereafter
7In the event that this Order is enforced by a decree of the 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."
974 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall be
taken by Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for the Thirteenth Region
in writing within ten (10) days from the date of this Order
what steps Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it
hereby is, dismissed insofar as it alleges that the Respondent
violated the Act by refusing to bargain in good faith, dis-
criminatorily reducing hours and rate of pay on September
22, 1952, and by discriminatorily threatening loss of employ-
ment through is agent, Mrs. John A. Klinka.
Chairman Farmer, dissenting:
I would not assert jurisdiction over this small employer.
Without purporting to be able to state with complete assurance
whether or not the broad sweep of the Board's jurisdiction
under the statute extends so far as to reach this small local
businessman I would not, as a matter of administrative
self-restraint, exercise the authority which we may have over
his employer -employee relationships.
The Respondent is a small automobile and truck distributor
and garage owner who employs at most two garage mechanics
and who, with the aid of his wife, manages and works in his
own garage. He imports about $62,000 worth of motor vehicles
and accessories annually and sells them in and around the
little town of West Bend, Wisconsin, where his business is
located. He has a franchise arrangement with General Motors
Corporation.
The Trial Examiner has found that under these facts Re-
spondent is an integral part of the General Motors Corpora-
tion multistate enterprise, and, indeed this may in a sense be
true. But, this small business is an essential part of the
operations of General Motors Corporation in precisely the
same respect and roughly to the same degree as a single
drop of salt water is an essential ingredient of the Pacific
Ocean. The time and money necessarily spent in investigating,
processing, and considering this case have been substantial,
and, in my view, could have been better employed in dealing
with cases having a more substantial impact on our national
life. This seems to me to be particularly so in this case since
it happens to arise in Wisconsin, which has long had a State
statute and a State board set up for the specific purpose of
handling local disputes. I strongly suspect that its more simple
machinery is better adapted to handling a local dispute of
this kind. Since I would dismiss on this ground, I do not reach
and need not consider the merits of the case.
Members Murdock and Styles tookno part inthe consideration
of the above Decision and Order.
KLINKA'S GARAGE
APPENDIX A
NOTICE TO ALL EMPLOYEES
975
Pursuant to a Decision and Order of the National Labor
Relations Board and in order to effectuate the policies of the
National Labor Relations Act, as amended, I hereby notify
my employees that:
I WILL NOT interrogate my employees regarding their
union affiliation or activities, or threaten my employees
with discharge if International Union, United Automobile
Workers of America, AFL, or any other labor organiza-
tion of my employees, organizes my shop.
I WILL NOT discourage membership of my employees
in the above-named Union or any other labor organization
by discriminatorily discharging any of them, or in any
other manner discriminating in regard to their hire or
tenure of employment, or any term or condition of em-
ployment.
I WILL NOT in any other manner interfere with, restrain,
or coerce my employees in the exercise of their right to
self-organization, to form labor organizations, to join or
assist the above-named Union or any other labor organi-
zation, to bargain collectively through representatives of
their own choosing, to engage in other concerted activities
for the purposes of collective bargaining or other mutual
aid or protection, or to refrain from any or all of such
activities, except to the extent that such rights may be
affected by an agreement requiring membership in a
labor organization as a condition of employment, as au-
thorized in Section 8 (a) (3) of the National Labor Relations
Act, as amended.
I WILL make whole Robert Kiefer and Arthur Kiefer
for any loss of pay which they may have suffered by reason
of discrimination against them.
All my employees are free to become, remain, or to refrain
from becoming or remaining members of the above-named
Union or any other labor organization, except to the extent
that such right may be affected by an agreement in con-
formity with Section 8 (a) (3) of the Act.
JOHN A. KLINKA, doing business as
KLINKA'S GARAGE,
Dated ................ By....................................................
(Representative ) (Title)
This notice must remain posted for 60 consecutive days
from the date hereof , and must not be altered, defaced, or
covered by any other material.
97 6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Intermediate Report
STATEMENT OF THE CASE
The issues in this case are: (1) Whether John A. Klinka, an individual doing business as
Klinka's Garage, herein called the Respondent, in his business described below is subject to
the jurisdiction of the National Labor Relations Board (herein called the Board); (2) whether
Respondent since August 1952, has interrogated his employees regarding their union activities,
reduced their workweek and pay rate, threatened to discharge and discriminatorily dis-
charged 2 employees on October 6, 1952, and refused thereafter to reinstate them because of
their union affiliation and concerted activities, and (3) whether Respondent has since September
26, 1952, refused to bargain collectively with International Union, United Automobile Workers
of America, AFL (herein called the Union), as the statutory bargaining representative of all
his employees in an appropriate unit. These issues arose on a complaint filed January 9.
1953, by the General Counsel of the Board through the Regional Director for the Thirteenth
Region (Chicago, Illinois) based on charges duly filed by the Union, and alleging that the
above conduct of Respondent constitutes unfair labor practices affecting commerce, within
the meaning of Sections 8 (a) (1), (3), and (5) and 2 (6) and (7) of the National Labor Relations
Act, as amended, 61 Stat. 136, herein called the Act Copies of the complaint and charges
upon which it is based, with notice of hearing thereon, were duly served upon Respondent
and the Union Respondent filed an answer denying the jurisdiction of the Board, admitting
his reduction of the working hours and the discharge of 2 employees for cause, but denying
the commission of any unfair labor practices.
Pursuant to notice, a hearing was held before me at West Bend, Wisconsin, on January
27, 1953, in which all parties participated, being represented by counsel, and were afforded
full opportunity to be heard, to examine and cross-examine witnesses, to introduce evidence
bearing on the issues, to make oral argument, and file briefs and proposed findings of fact
and conclusions of law At the close of General Counsel's case, Respondent's motion to
dismiss the complaint as amended at the hearing for lack of jurisdiction was denied; his
motion to dismiss various paragraphs of the amended complaint for lack of proof was
granted as to paragraph 7b, insofar as it charged that Respondent interrogated his employees
through Mrs. John A. Klinka as his agent, and was denied otherwise. At the close of the
case, General Counsel's motion to conform the pleadings to the proofs in matters of minor
variance was granted without objection. Respondent's motions to dismiss the complaint for
lack of jurisdiction and on the merits were taken under advisement, they are disposed of
by the findings and conclusions in this report. All parties waived oral argument Respondent
has filed a brief with the Trial Examiner. On February 18, 1953, the parties submitted a
stipulation for correction of the record, which is hereby accepted and made part of the
record, and the record is corrected accordingly On March 20, 1953, General Counsel moved
on notice to amend paragraph 8 of the complaint to add Respondent's reduction of the pay
rate for certain body work as an additional violation of Section 8 (a) (3) and (1). For reasons
stated hereafter, the motion is hereby granted, and the complaint is amended accordingly.
Upon the entire record in the case, and from my observation of the witnesses. I make
the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent , John A. Klinka, is an individual who, at all times mentioned herein , has owned
and operated an automobile sales and service business under the name and style of Klinka's
Garage at West Bend, Wisconsin , where he is engaged in the purchase and sale of new and
used cars , automotive parts and accessories , and the general service and repair of all
types of motor vehicles. In the course of his business , Respondent sells and distributes
Oldsmobile automobiles , General Motors Corporation (GMC) trucks, and GMC parts and
accessories , under agreements with GMC Truok-Coach Division and Oldsmobile Division of
General Motors Corporation , a multistate enterprise doing business throughout the United
States In his business , Respondent annually buys motor vehicles and accessories valued
at approximately $ 62,000 which are shipped to his place of business from points outside
Wisconsin . All GMC trucks bought by Respondent are shipped directly to him from Illinois,
KLINKA'S GARAGE 977
all passenger cars are manufactured in Michigan and shipped to him through the GMC zone
office in Milwaukee. Wisconsin. I All purchased barts and accessories are shipped to Re-
spondent from points within the State of Wisconsin All his sales are made within that State.
Respondent orders passenger vehicles from GMC by writing his own order for the cars,
and sending it to the GMC zone office in Milwaukee, Wisconsin , whence it is sent to the
factory in Michigan. where it is filled. When the vehicle is shipped from the factory in
Pontiac , Michigan , to the Milwaukee zone office , Respondent is advised that it is in transit
by a production notice sent him from the zone office , upon arrival at Milwaukee , the vehicle
is apparently transshipped by truck to Respondent ' s place of business without further request
from him. Under his agreement with GMC, Respondent must pay all freight charges on the
vehicles from Pontiac, Michigan 2 The record does not show why or for what purpose the
vehicles go through the Milwaukee zone office , whether any operation is performed on them
there, or whether that is a storage warehouse or distribution point . However , it is clear
that Respondent 's orders are filled at the factory in Michigan , not from a stock of vehicles
at Milwaukee, and that he pays for their shipment from Michigan, not from Milwaukee.
Respondent argues that his business is entirely local in character , precluding any finding
that his activities affect interstate commerce to such an extent that a stoppage of its opera-
tion by industrial strife would cause substantial interruption to or interference with the free
flow of such commerce . 3 He also claims that the provisions of his "Direct Dealers" selling
agreements with GMC do not make him an agent or employee of GMC such as to render his
business an integral part of that multistate enterprise , within the policy of the Board stated
in The Borden Company (Southern Division), 91 NLRB 628, and applied by the Board to
franchised automobile dealers in Baxter Bros , 91 NLRB 1480, but that the contracts estab-
lish only a vendor -purchaser relationship which does not grant GMC substantial control
over Respondent's business or integrate it with the GMC enterprise, or any other GMC
dealer , outlet, or branch , or give it an interstate character . He relies on N. L. R, B. v. Bill
Daniels, Inc , 202 F. 2d 579 (C A. 6) (decided January 20, 1953) as establishing the "law on
the case " This last contention requires a review of Respondent's contracts with GMC.
Respondent ' s yearly dealer agreements with the above - named GMC divisions provide, in
pertinent part, substantially as follows:
(1) Respondent is granted a nonexclusive franchise to sell GMC motor vehicles , chassis,
parts, and accessories in Washington County , Wisconsin, and to use the GMC trade name
and trademarks during the life of the agreement (para FIRST, Sec 1).4
(2) Respondent is required to devote his full time, attention, and energy to the dealership
business (Sec 11), to properly develop to the satisfaction of GMC the sale of GMC products
in the area described in the agreement (Secs 1, 16), and to maintain a staff of salesmen
and a selling and customer relations organization adequate to take care of the sales potential
in said area (Sec 17)
(3) If the dealer requests it, GMC will furnish a suggested building plan and layout (Sec.
13): however , the dealer must maintain a place of business with service, parts , and acces-
sory facilities, and used car and truck facilities, satisfactory to GMC, which is given the
right to inspect the facilities at reasonable times (Sec 12 ) The dealer is required to buy and
erect standard GMC product and authorized service signs, and such other advertising signs
as are mutually satisfactory to both dealer and GMC (Sec 22) The dealer cannot move his
business to a new location , or establish a branch sales office, service station , or place of
business , including any used car or truck lot, without prior written consent of GMC (Sec. 12)
(4) The dealer must establish and maintain a net working capital and net worth in amounts
and form specified by GMC, in order to conform to standards of dealer capital and net worth
established and determined by GMC as necessary properly to conduct a dealer 's business
(Sec. 14). He must set up and use a satisfactory uniform accounting system designated by
GMC, maintain it in strict accordance with a GMC Accounting Manual and, to assure its
i The proportionate value of trucks and passenger cars in the annual figure does not appear
in the record.
2The agreements provide for shipment ofcertam vehicles f.o.b. Pontiac, Michigan, freight
paid by dealer, and for shipment of others freight prepaid by GMC from that point, with the
dealer paying such transportation charges as an addition to his invoiced price,
SN L. R. B. v. Baltimore Transit Co., 140 F. 2d 51 (C. A 4), certiorari denied 321 U S.
795.
4Provisions of the basic agreement are denoted "Para. FIRST" etc.; provisions in the
standard "Terms and Conditions" attached thereto are denoted "Sec. 1," etc.
978 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
proper maintenance , GMC has the right at any time to examine the dealer ' s accounts and
records; the dealer is given a copy of the report of such examination (Sec. 15 ) He must
also maintain complete records regarding his sales and servicing of GMC products, and
permit GMC inspection thereof at any time (Sec. 18)
(5) The dealer must also submit to GMC monthly financial and operating statements showing
the true condition of his business (Sec. 15)
(6) To maintain customer goodwill toward GMC products , the dealer must service new
vehicles before delivery to buyers in accordance with a GMC predelivery inspection sched-
ule, and must service such vehicles after delivery in accordance with an "Owner ' s Service
Policy" prescribed by GMC which the dealer must give each purchaser on delivery of a new
vehicle to him. The dealer must always stock GMC parts and accessories sufficient to
enable him to fulfill the service policy , and GMC may at any time inspect his service facilities
and stock (Sec 21).
(7) The dealer 's contract with GMC is a personal one, he cannot transfer or assign it,
or make any changes in the ownership , financial interests in, or active management of, his
business without prior written approval of GMC ( Para THIRD).
(8) If the dealer does not develop the sales of GMC products in his area to the satisfaction
of GMC, or does not conduct his business in accordance with the requirements of Sections
11, 12, 14, 15, 16, 17, 18, and 21 noted above, to the satisfaction of GMC, the latter may
terminate the agreement on 3 months ' written notice (Sec. 25 (B) 2) The dealer can termi-
nate the agreement on 1 month ' s written notice (Sec. 25A).
Considering the facts as to the nature of Respondent ' s business and his agreements with
GMC, I conclude that his arguments are without merit , and that the decision in Bill Daniels,
Inc., supra is distinguishable on the facts and therefore not controlling or persuasive here.
In the first place , the court there found that the dealers ' operations were entirely intrastate,
their purchases and sales both being entirely intrastate Here , however, all vehicles and
accessories purchased by Respondent come to him from out-of -State sources : trucks are
shipped to him directly from Illinois, and passenger cars from Pontiac, Michigan, there is
no proof to indicate that the latter vehicles are furnished from stock in Wisconsin. Thus,
his entire stock of merchandise (except for parts and accessories) originates outside the
State , and it is clear that any industrial dispute affecting his business which tended to cut
off deliveries thereof would substantially affect interstate commerce 5
In the second place, the provisions of Respondent's contracts with GMC grant GMC far
more control over Respondent and his business than the contract in the Bill Daniels case.
This is particularly true with respect to the requirements that Respondent maintain sales,
service and parts facilities , a sales and service staff, records and accounts , and financial
status , satisfactory to GMC, which apparently were not present in the Bill Daniels case
Moreover , the requirements that Respondent devote full time to his GMC dealership, and
that GMC must approve any move or expansion of his business, under penalty of possible
cancellation of his contract , are more indicative of a principal -agent or employer -employee
arrangement , than a vendor-purchaser relationship Although it can be said, as the court
found in the Bill Daniels case , that such provisions are "efficient mutual arrangements,"
which redound to the benefit of both parties. I conclude that they give GMC much more
effective control over all aspects of Respondent ' s business than a normal vendor -purchaser
contract would entail . In fact , the agreement here, in its "control " provisions , is more
like that in N. L. R. B. v Ken Rose Motors, 193 F. 2d 769 (C. A. 1), enforcing 94 NLRB
868, where a Ford dealer franchise agreement specified in detail the manner in which the
dealer must conduct his business , limitations on use of the seller ' s trade name and trade-
mark, the type of premises to be maintained , his method of bookkeeping , manner of adver-
tising, and amount of stock to be maintained. In that case, the Court upheld the Board's
assumption of jurisdiction on the basis of the nature of the agreement , even though the
dealer ' s purchases and sales were entirely local , as in the Bill Daniels case . See also Baxter
Brothers, 91 NLRB 1480, which involved an exclusive Chevrolet "dealer franchise" with
" control" provisions similar to those here , and A. E. Rogers Co., 103 NLRB 1274.
5 N. L. R . B. v. Conover Motor Co , 192 F. 2d 779 (C A 10); N. L R. B v. Davis Motors,
Inc., 192 F. 2d 782 (C A. 10). Respondent 's sales potential in 1952 was greater than the
$62,000 value of vehicles sold for he said he could have sold more than the 25 units he
received that year , which was only half of his allotment of the preceding year.
KLINKA'S GARAGE 979
On all the above facts and circumstances, I find, contrary to Respondent's contentions,
that Respondent's operations affect interstate commerce, and that it would effectuate the
policies of the Act for the Board to assert jurisdiction in this case 6
IL THE LABOR ORGANIZATION INVOLVED
International Union , United Automobile Workers of America . AFL, is a labor organization
within the meaning of Section 2 (5) of the Act, which admits to membership employees of
Respondent.
M. THE UNFAIR LABOR PRACTICES
A. Preliminary union activity; the appropriate unit; majority
status of the Union
In August and September 1952, the Union conducted an organizing campaign among em-
ployees of automobile dealers and service garages in and around West Bend. Wisconsin. In
this period, Arthur and Robert Kiefer, brothers, and the sole employees in Respondent's
garage, signed cards authorizing the Union to represent them for purposes of collective
bargaining Robert Kiefer signed his card August 25, 1952, and Arthur signed his early in
September, about a month before his discharge on October 6, 1952
Respondent admitted at the hearing, and I find, that all employees of Respondent at his
place of business in West Bend, Wisconsin, excluding executives, salesmen, office clerical
employees, and all supervisors as defined in the Act constitute, and at all times material
herein, have constituted, a unit appropriate for purposes of collective bargaining within the
meaning of Section 9 (b) of the Act. The two Kiefers were the only employees in that unit
during the above period and at the time of their discharge. I therefore find that on September
26, 1952 (the date of the sole conversation between the union representative and Respondent
described below), and at all times since, the Union was and has been the bargaining repre-
sentative of a majority of Respondent's employees in the above unit, and by virtue of Section
9 (a) of the Act, was and has been the exclusive representative of all employees in said unit
for purposes of collective bargaining with Respondent'7
B. Interrogation and threats
After Robert Kiefer joined the Union on August 25, 1952, the two brothers had several
talks with Respondent at the shop about the Union. When they first told Respondent the Union
was coming to town, Respondent thought it was a good idea, as it might equalize service
charges among the local dealers, in later discussions, he changed his view, stating a union
would not work in his shop, because it was a small place and not like an industrial plant. He
also told them in these discussions that there would not be any union in his place, and that
he would get rid of them before he would have a union there In all the discussions, the
Kiefers indicated to him that they favored the Union. On September 15, 1952, or a day or
two after, when Arthur Kiefer received his mid-September pay check at the shop. Respondent
asked him if he belonged to the Union When Arthur admitted he did, Respondent told him
that there would be no union in his place, that before there would be a union there, he would
61 have examined other Board decisions cited by Respondent and conclude that they are
distinguishable on the facts, inasmuch as none of them contained facts indicating control over
the employer's business by a multistate enterprise, to the extent shown here. The same is
true of N. L. R. B. v. Shawnee Milling Co., 184 F. 2d 57 (C. A. 10).
7Respondent relies upon an admission of Robert Kiefer on cross-examination, that when he
signed the union card he had no "intention" of having anybody bargaining for him because
"we weren't organized into a local union yet." However, the context of this answer indicates
that he had in mind formal bargaining through a bargaining "committee." Although he was
not clear at the hearing as to his intent when he signed the union card, the fact that he and
his brother asked the union representative in the week of September 22 to speak for them
with Respondent over their cut in hours and pay, as found hereafter, was a reaffirmation of
their prior designation of the Union as bargaining representative, which persuades me that
both clearly intended to have the Union act as their bargaining agent when they signed the
cards.
322615 0 - 54 - 63
980 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lay off Arthur and do the work himself. 8 Respondent 's inquiry as to Arthur Kiefer' s union
affiliation was illegal interrogation and per se coercive under settled law , and I find that
Respondent thereby violated Section 8 (a) (1) of the Act. His statements to both employees that
he would get rid of them or lay them off and do the work himself, before he would have a
union in the shop , was a clear threat of discharge if the Union organized his shop and was
calculated to discourage their continued union affiliation . I find that by this remark, Re-
spondent further interfered with, restrained , and coerced his employees in the exercise of
rights guaranteed by Section 7 of the Act, in violation of Section 8 (a) (1) of the Act.
C. The reduction in hours and rate of pay
On September 12, 1952, the Union filed a petition with the Board in Case No. 13-RC-2955,
for an election and certification as collective -bargaining agent of Respondent 's employees
in the appropriate unit found above Respondent received notice of the filing of the petition
on September 13, 1952 On September 18, 1952, Respondent had a conversation in West Bend
with Mrs Dom, a Board agent assigned by the Thirteenth Regional Office to investigate the
petition, in which he learned that his 2 employees were affiliated with the Union. He later
received verification of this fact from the representation petition, which he received on
October 1, 1952, and which indicated the scope of the appropriate unit as found above, that
there were 2 employees in the unit, and that 2 employees supported the petition. 9
Just prior to September 22, 1952, Arthur Kiefer was getting $1.35 an hour as a garage
mechanic Robert was getting $1.40 an hour for the same work, and $2 an hour for body
work on customers' cars. Starting October 1951, both employees worked 60 hours a week
until the summer of 1952 when, at their request, they were allowed to take off alternate
Saturday afternoons, so that just prior to September 22, 1952 , they were working alternate
55- and 60-hour weeks
On September 22, 1952, Respondent reduced the Kiefers' working hours from 55 and 60
hours to 40 a week When he made the change, he told them he was going on shorter hours
because he was paying out too much money for labor , and he would not pay for "loafing
hours," for something he was not getting . He also told them " That's what the union is doing
for you, it will be forty hours." At the same time, Respondent reduced Robert Kiefer's pay
rate for body work on customers ' cars to $1.55 per hour . Robert Kiefer first learned of the
cut in pay and hours from Respondent at the shop on Sunday, September 21, 1952. Shortly
after he came to work Monday, September 22, at 7 a in., Mrs. Klmka called him at the
shop on the telephone , and asked what he was doing in the shop. He replied that he wanted
to start work at 7 a. m., instead of at 8, as previously ordered by Respondent, so that he
could get out in time to report to an evening part - time job between 4 and 5 p m.10 Mrs.
Klinka replied, "Oh, no, you don't; that makes no difference, from now on you are going to
do as we tell you." She also asked Robert if her husband had told him he was being cut in
his hourly rate. When Robert said "no," she then told him she wanted him to understand
that he was getting only $1.55 an hour for body work thereafter, and said "that's what the
union did for you; all our former contracts are out the back door " and "it ' s all off now, if
you want a union that's what you are getting " She also told Robert that if he wanted a union,
he should "get out and go somewhere where they had a union ," and leave them alone. 11
Respondent claims that the real and only reason for the reduction in hours and pay rate
was economic necessity, that he had been paying out more for labor in the service work than
8 These findings are based on credited testimony of both Kiefers, as corroborated in part
by admissions of Respondent Testimony of Respondent inconsistent with these findings is not
credited for reasons stated elsewhere herein.
9 These findings are based on the petition in Case No. 13-RC-2955, stipulated facts, ad-
missions of Respondent, and testimony of Frances Dom.
1o Shortly before September 21, Respondent had ordered Robert Kiefer to report for work
at 8 a. in., instead of his usual 7 a. in. starting time. When Robert learned of his reduction
in hours, he got a part-time job for 4 or 5 hours in the evening, arranging to start it the
night of September 22. He had already told Respondent he still wanted to start work at 7 a, in.,
and for that reason reported for work at 7 a. in. on the 22nd.
ii These findings are based on credited testimony of the two Kiefers and admissions of
Respondent and Mrs. Klinka. I do not credit testimony of Respondent and his wife in conflict
with these findings, in view of their admissions and other facts found herein which clearly
indicate Respondent's antiunion animus and other unfair labor practices.
KLINKA'S GARAGE 981
he took in in that department, and that he had to cut down expenses because business had
declined during the last 6 months of 1952. I have already found above that at the time of the
reduction he told the Kiefers substantially the same thing, including the fact that he would no
longer pay for idle hours during which he received no production In addition, Respondent
adduced proof from his records which indicated that during the first 9 months of 1951 his
service department showed a cash gross profit of $332.47, while for the like period in 1952,
it suffered a gross loss of $1,443.56 Respondent and his wife also testified that in June
1952, during a discussion of the business finances, his wife had complained that the income
from the service department was not sufficient to keep two employees, and had suggested
the immediate layoff of one man, but they decided to defer that action until after their
vacation, in hopes that the tourist trade would increase their business. However, analysis of
these contentions and testimony in the light of other circumstances disclosed by the record
persuade me that economic necessity was not the real or compelling reason for the reductions.
In the first place, the profit and loss figures produced by Respondent are misleading,
because the gross receipt figures do not include any charges to customers for the Kiefers'
labor in predelivery servicing of new vehicles and the replacement of parts or correction
of defects during the manufacturer's warranty period Respondent does not show how much of
the labor cost for such work is included in the gross labor costs for either year, nor did
he indicate whether or not he received any allowance in price or credit otherwise from the
manufacturer for such labor items. Thus, his figures do not reveal the true relationship
between all his income, whether cash or credit, based on the Kiefers' labor, and the pay-
ments made to them for their labor. Second, while Respondent intimated in his testimony
that the "loafing hours" he complained about were due to loafing on the job by the Kiefers,
there is no substantial proof that they were deliberately cheating in this respect; 12 rather,
the testimony of Respondent and Arthur Kiefer indicates that the service business fluctuated,
at times to such an extent that the volume was more than the Kiefers could handle, and there
was work for three full-time mechanics, while at other times it became slack and they were
idle. It appears that idle hours were at times a natural concomitant of the business, and
while Respondent often complained about it, there is no proof that he tried to use the Kiefers'
time more efficiently in such periods. Moreover, in their early discussions of economy
measures, Respondent and his wife determined only upon a layoff of one man as the means
to that end; they did not even discuss reductions of hours or pay. Respondent claimed that
he found out about the alleged loss of money on customer body work only on the day he
reduced Robert Kiefer's pay rate for that work, but he produces no figures from his records
to support that claim These facts and circumstances persuade me that Respondent did not
consider the "loafing hours" as a threat to his business sufficient to warrant remedial
action until September 22, and that he first conceived the idea of reducing the work hours
and pay rate at the time he put it into effect on that date (or the day before). His sudden
decision on that date, and prompt action on it, coming within a week after he learned that
Arthur Kiefer had joined the Union, and about 3 days after he learned that his employees
were supporting the Union's petition for certification, when considered with his threat to
Arthur around the 15th, and to both at other times in the same period, that they would be
discharged if the Union organized the shop, and the statements of him and his wife 13 to the
Kiefers at the time of the reductions "That's what the union did for you," convince me that
Respondent conceived and instituted the reductions in retaliation and as a penalty for his
employees' adherence to the Union and support of its attempts to secure collective-bargaining
12 The question of their nonproductive hours on October 3, 1952, will be considered in the
discussion of their discharge.
13Mrs. Klinka's principal duties in the business are those of bookkeeper, handling and
keeping the records and accounts, including payrolls, and paying all bills; she performs
these duties at home. In practice she does not usually give orders directly to employees
regarding their duties There is no formal partnership agreement between her and Re-
spondent, and she draws no salary from the business. However, Respondent admitted, and I
find, that she has equal control with him over the conduct of the business That she has
definite authority to speak and act for Respondent on personnel problems is indicated by the
facts that: (1) She was the one who initiated the idea of reducing the work force for economy
reasons in June 1952; (2) she ordered Robert Kiefer, at Respondent's request, on September
22, 1952, to report for work at 8 a m., instead of 7 a. m.; and (3) she recalled Arthur Kiefer
to work on October 8, 1952, as found hereinafter. On these facts it is clear, and I find, that
her acts and conduct found herein are chargeable to Respondent
982 DECISIONS OF NATIONAL LABOR REALTIONS BOARD
status in his shop. This conduct amounted to a discrimination against his employees as to
their rates of pay and hours of employment because of their union affiliation and was calcu-
lated to discourage continuance of that affiliation. I find that Respondent thereby violated
Section 8 (a) (3) of the Act. u Such conduct also tended to interfere with, restrain, and
coerce employees in the exercise of their guaranteed rights, and I conclude and find that
Respondent thereby also violated Section 8 (a) (1) of the Act. is
D. The request and refusal to bargain
Following Respondent's reduction in their hours and pay on September 221 1952, the Kiefer
brothers told Robert Schaefer, the Union's representative, about it at a union meeting that
week, and asked him to see if something could be done about it. On Friday, September 26,
1952, Schaefer visted Respondent's place of business about noon to discuss the matter with
Respondent. When he arrived, he asked the Kiefers to join him, and he then talked to Respond-
ent in their presence in the service department After introducing himself to Respondent by
name and identifying himself as the union representative, is Schaefer told Respondent that the
Kiefers were members of his Union and that he was speaking for them, that he understood
they had received a cut in hours and in the pay rate for body work, and asked Respondent what
he was going to do about restoring them to their former hours and pay Respondent admitted
the reductions, and said he had to watch expenses, that there were "too many loafing hours,"
that he would not pay for something he was not getting. He also said that from then on he
would only pay $1.55 an hour for body work, the same as other local garages were paying.
Respondent also told Schaefer that he was just there to "start trouble." Schaefer denied this,
saying he was there to try to get the boys back to their regular wages and hours, and to
straighten out the problem the best way to help the boys and save trouble for Respondent.
Respondent replied that Schaefer was wasting his time, that Respondent had not had a union in
his place in 30 years, and did not see why he should have one now. He further stated that
neither the National Labor Relations Board nor the Union was going to come in there and tell
him what to do, that no one was going to make a "clown" out of him Schaefer stated that he
had no desire to negotiate a contract at that time, that the Union was not seeking bargaining
rights without an election, and that an election would be held sooner or later. Respondent then
said it made no difference if the boys did win an election, he would not bargain with the Union,
and would go to jail before he would see a union in his place, that "this is not Russia yet."
During this discussion, Schaefer made notes on a pad, and Respondent told him he could "fill
14 Westinghouse Pacific Coast Brake Company, 89 NLRB 145; Falstaff Distributing Company,
104 NLRB 760.
isOn March 20, 1953, after the hearing closed, General Counsel moved on notice to add
Respondent's reduction of pay for customer body work to the complaint as an additional
violation of Section 8 (a) (3) and (1). Respondent opposed the motion on various grounds. While
neither the original complaint nor the answer mentioned the pay reduction, Respondent's
brief does not argue the point specifically, and Respondent was assured by General Counsel
at the close of the hearing that the motion to conform pleadings to proofs did not involve a
change in the substantive issues, it appears nevertheless that Respondent, his wife, and
Robert Kiefer testified fully at the hearing on the pay reduction. It occurred at the same time
as the reduction of hours and Respondent advanced substantially the same economic reasons
for both at the hearing and in his brief. Respondent does not indicate in his opposition to the
motion that he has any other defense to the pay reduction, aside from that he offered on the
cut in hours, which he would have introduced if the complaint had mentioned the pay reduction
from the outset. Thus, the issue was fully litigated, Respondent had full opportunity to adduce
evidence thereon, and has suffered no surprise. The violation was contemporaneous with and
of the same type as the illegal reduction in hours. Under the circumstances, if the Board has
jurisdiction to make a finding as to the one act, it can certainly deal likewise with a similar,
contemporaneous act having the same illegal object. Cf. Somerset Classics, Inc., 90 NLRB
1676, 1678, enforced 193 F 2d 613 (C. A. 2), certiorari denied 344 U S 816. I find Respond-
ent's objections to the amendment without merit, and hereby grant the motion Pacific Mills,
91 NLRB 60; Fulton Bag & Cotton Mills, 75 NLRB 883, 885; Marshall & Bruce, 75 NLRB 90,
93.
i6Respondent denied that Schaefer introduced himself as the union representative, but
admitted that early in the conversation he could "read between the lines," and "see what
was going on," and learned that Schaefer was the union representative
KLINKA'S GARAGE 983
up that tablet on both sides," that itwould not help, that he would get rid of the boys before he
would allow a union there, and do the work himself. After further discussion, during which
Respondent refused to rescind the reduction in hours and pay, the meeting terminated. 17
I find that Schaefer's query of Respondent as to what he would do about rescinding the cut in
hours and pay of his employees, and his statement of his desire to straighten out the matter
for the benefit of both parties, all made in the presence of all employees in the unit, was a
sufficient request by the Union, as representative of such employees, to Respondent to bargain
collectively with the Union as such representative with respect to their rates of pay and
hours of employment. 18 The fact that the union representative did not present a contract then
or later, and expressly disclaimed any desire at that time to negotiate a contract, does not
detract from the validity of the request. Moreover, even if the request had been insufficient
in fact or in law, or had not been uttered at all, the Union would have been excused from making
it by Respondent's announcement that he would not have a union in the shop, whether or not
the Union won an election. In the face of Respondent's announced determination not to recog-
nize the Union under any circumstances, the Union was not required to make a request that
would have been a useless gesture 19 I further find that Respondent's statements to Schaefer
that he was just there to "start trouble," that he was wasting his time, that neither the Board
nor the Union was going to come in there and tell him what to do, that "it was going to stay
just the way it was for the time being," that it made no difference if the employees did win
an election, he would not bargain with the Union and would go to jail before he would see a
union in his place, and that he would get rid of the employees and do the work himself before
he would allow a union in his shop, clearly evidence Respondent's determination not to recog-
nize or bargain with the Union, and I conclude and find that Respondent thereby refused to
bargain collectively in good faith with the Union as the statutory bargaining representative of
his employees in an appropriate unit, in violation of Section 8 (a) (5) and (1) of the Act?i Re-
spondent's final threat in the presence of his employees to discharge them if the Union organ-
ized his shop was also an independent violation of Section 8 (a) (1) of the Act.
E. The discharges
When Arthur Kiefer came to work at 7 a in. on Monday, October 6, 1952, he found his and his
brother's timecards missing from the rack at the time clock. When he approached Respondent
to ask where they were, Respondent handed him a pay check and said, "That's it." Arthur
said he would return at 8 a. m to pick up his tools and turn in his keys, and Respondent re-
plied, "All right." When Arthur returned at 8 a. in , Robert Kiefer was then reporting for
work, and Respondent handed Robert a pay check and said he was "through " The brothers
then procured a trailer, came back and loaded their tools, and turned in their keys to Re-
spondent. Arthur asked Respondent why they were being laid off, and Respondent replied, "I
told you guys if you wanted a union, this is it, I'll do the work myself, that's what the union
did for you." The brothers then left the premises. These findings are based on credited
testimony of both Kiefers, as corroborated in part by that of Respondent, and warrant the
conclusion prima facie that the Kiefers were discriminatorily discharged because of their
affiliation with the Union.
t These findings are based on the credited and mutually corroborative testimony of Schaefer
and the two Kiefers, which is corroborated in part by the testimony and admissions of Re-
spondent. He admitted that the discussion got heated, that there was loud talk, and indicated
that he got angry because Schaefer was trying to "dictate" to him "out of the clear sky,"
and that he finally told Schaefer "it was going to stay just the way it was for the time being."
18 Respondent clearly recognized Schaefer's remarks as a request to negotiate, for he
immediately countered with his economic explanation of the reduction in pay and hours. A
request to bargain need not be formal or express, so long as there is a request by clear
implication, Joy Silk Mills v. N. L R. B., 185 F. 2d 732 (C A. D. C.), certiorari denied
341 U. S. 914.
19 Old Town Shoe Company, 91 NLRB 240; Norfolk Southern Bus Corp. v. N. L. R. B„ 159
F. 2d 516 (C. A. 4) enforcing 66 NLRB 1166, certiorari denied 330 U. S. 844.
20 The fact that Respondent gave certain economic reasons for the reduction in pay rates
and hours, in answer to Schaefer's request to negotiate thereon, did not discharge his bar-
gaining duty, for he immediately foreclosed any discussion or negotiation on the subject by
his ensuing remarks found above.
984 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In his brief, Respondent claims the Kiefers were discharged because of their derelictions
of duty on October 3, 1952, and also because of their prior conduct. The record shows, and I
find, that almost from the start of his employment in November 1950, Robert Kiefer was
often embroiled in arguments, at first with a former employee who left shortly after Robert
was employed, and thereafter with Respondent. The arguments with Respondent involved who
should do the customer body work, how it should be done, whether body work on certain of
Respondent's cars should be paid for at the higher customer rate of $ 2 per hour or the
garage rate, whether or not Robert should make out certain bills, the time when he should
report to work, and the price to be charged by the Kiefers for certain installation work.
However, the record also shows that many of these arguments, while heated, were short-lived,
and Respondent and Robert apparently worked amicably after they passed, despite his dis-
agreement with Respondent on methods of work, hours, etc., and his general truculence,
there is no substantial proof that Robert was insubordinate; he usually did what he was told
after each spat, although after one argument with Respondent about body work on a garage
car, Robert himself complained to Mrs. Klinka about Respondent's attitude and threatened
to quit, but was dissuaded from doing so by her 21 Further, despite the arguments about body
work, Respondent still permitted Robert to do that work up to his discharge and bought new
body repair equipment whenever Robert suggested it, even buying an expensive sanding ma-
chine at his suggestion shortly before his discharge. In addition, when Respondent and his
wife went on a 10-day vacation in July and early August 1952, they left the Kiefers in full
charge of the garage in their absence, and they also left them in charge on Friday, October
3, 1952, when they went to Milwaukee on business These facts indicate that, despite their
shortcomings, the Respondent apparently reposed much confidence in the Kiefers and their
work right up to their discharge It is also significant that both employees were given several
pay raises during their employment 22
Finally, Respondent himself admitted that, after discussing the events of October 3, 1952,
with his wife over that weekend, he decided to discharge them both "for what they did on Friday, " 23
and Mrs. Klinka admitted that "we wouldn't have fired them yet, but on October 3rd, that
was the final clinch " From all these circumstances, I find that the Kiefers' conduct prior to
October 3, 1952, was not the real or a motivating reason for their discharge. I turn to their
conduct on October 3, on which Respondent places his main reliance.
On that Friday, Respondent and his wife went to Milwaukee on business, leaving the two
Kiefers in charge of the garage The day before, one Fellenz had arranged with Robert
Kiefer to bring in his truck early on Friday-to have some panels on the body sealed with
lead, which was about a day's job. Robert Kiefer did between a half hour's and an hour's
work on that job, completing one panel, during the morning. Besides attending the gasoline
pump and other routine duties, the brothers worked an hour and 50 minutes on one Justman's
car, and about 42 minutes on Meyer's car 24 About noon, Mrs Herman Persike, the wife
of an up-State Ford dealer passing through town, brought in her Lincoln automobile for
emergency repair, claiming the engine was missing. Robert started to trace the trouble,
both brothers worked on it at times singly, at times together. They tested the ignition
system with a standard testing machine, and installed new spark plugs, but could not locate
21Practically all the arguments were between Respondent and Robert; Arthur apparently
had few disagreements with Respondent and never "stood up" to him like Robert. That Re-
spondent and Robert struck "sparks" from each other during arguments is apparent from
their demeanor on the stand: Robert is a young, well-spoken man with a determined air and
manner of speech; Respondent. is an elderly man of apparent foreign extraction who manifested
an equally determined air and had a brusque and abrupt manner of speech.
22 Robert received three 5-cent an hour raises within the first year of his employment, and
from October 1951 onward also received a special rate of $2 per hour for customer body
work, which continued until September 22, 1952, as found above. Arthur, who started work
October 22, 1951, received two 5-cent raises in 1952, on May 1 and September 1, respectively.
23Shortly after this admission, in response to a leading question from his counsel, he said
"there's more to it than that, I mean we found that out, but that was what happened on the
third mostly."
24 The time on these jobs is derived from the charge tickets made out by Robert that day,
which show the amount charged to and paid by each customer; the time is figured by dividing
the charged amount by the shop rate of $2.50 an hour. It was a shop practice for the Kiefers
and Respondent to punch the time spent on each job on timecards, and the charges to the
customers were based on that record.
KLINKA'S GARAGE 985
the trouble immediately While they worked, Mrs Persike called her husband on the phone
and had Robert talk to him. Persike told Robert to check the ignition coil, lead wires in the
ignition system, the, fuel pump and another part of the fuel system, but gave specific orders
not to touch the distributor which he said had been renewed about 300 miles back. Following
these instructions, the Kiefers checked the parts indicated, and tried other tests, but without
success. Mrs Persike then made arrangements to have the car towed to the garage of the
local Ford dealer after she learned from the Kiefers that they had no authority to loan her
anothercar in which to traveltoher destination while the Lincoln was being repaired. When the
car reached the Ford garage, the dealer's mechanic located the trouble in the ignition
system, and installed new ignition points and a condenser in the ignition system, all in
about an hour's time The Kiefers charged Mrs Persike, and she paid Respondent, $5.00
for their labor , representing 2 hours' work. During the afternoon, Robert Kiefer also did
a carburetor and ignition overhaul job on a United States Government truck which was
brought in shortly after lunch and had to be finished that day 25 Fellenz did other work on
his truck that day while the Kiefers were engaged on other jobs, and took it out with the
body unfinished that night; he complained to Respondent when he returned that night about
the length of time the Kiefers had spent on the Lincoln job at the expense of work on his
own truck. 26 About 3:45 p in,, 15 minutes before Arthur Kiefer's quitting time, another
customer, Rodenkirk, brought in a car with fuel piimp trouble, but Arthur refused to start
on it , as it was too late and Robert was busy on another vehicle which had to be delivered
by 5 p m. Arthur suggested the customer bring the car in Saturday morning when Respondent
would be working Respondent installed a new fuel pump kit on that car in about an hour on
Saturday 27
Respondent's timecard records and Robert Kiefer's testimony indicated that the Kiefers
accounted for only about 7 hours ofworkbetween them on Friday, leaving 9 hours unaccounted
for However, this figure must be reduced by the unspecified amount of time Robert Kiefer
spent on the Government truck, the time allowed them for their morning snack about 9 or
9:30 a. in , and time spent in attending the gas pump and other routine duties. It is clear,
however, that the Kiefers did 5 repair jobs that day (Persike, Rahn, Justman, Meyers, and
the Government truck), and part of the Fellenz body job, 2 of these cars came in during the
afternoon and were "rush" jobs to be finished that day; Robert apparently abandoned the
Fellenz body job after working a short while on it, in favor of the regular and emergency
repair and service work on other cars Thus, the record indicates that they were quite
busy in the afternoon, much more so than in the morning Respondent intimates that the
Kiefers were derelict in their work on the Persike car The record shows that they followed
standard testing procedures in checking the ignition and fuel system on that car, just as the
Ford mechanic did later that day, and they failed to find the distributor trouble, as he did,
only because they followed the owner's orders not to check that unit 28 Moreover, there are
25I credit Robert Kiefer's clear testimony on this point, even though the shop record he
made out for the job had no entries for parts or labor on it; Kiefer testified that at times he
failed to make out tickets after the job is finished; in this instance, he had no clear recollection
of filling out this charge ticket, and it is evident he did not make it out at the end of that day,
and he had no chance to do it on Monday, October 3, because he was discharged as soon as he
reported for work that morning. I do not credit Respondent's testimony that he did all the
work on that truck Saturday morning, October 4; he admitted the "hood had been raised" on
the vehicle when he inspected it Friday night, which indicated that Robert had started on it;
and although Respondent detailed the work he claims he did on it, he did not produce any time-
card record, or bill to the customer, to support his story, although his wife was able to pro-
duce other labor and charge records for work done by the Kiefers the day before, as appears
above,
26Fellenz was apparently not charged for the partial work done on his truck that day; there
is no proof as to when the job was finished, or what Respondent charged him for it.
27 The above findings are based on credited testimony of both Kiefers, Mrs. Klinka, and
Respondent. Testimony of Respondent in conflict therewith is not credited, in view of the
deficiencies of his testimony about the Government truck noted above, his admissions on
other subjects noted herein, and other indicia of his general unreliability as a witness
mentioned herein.
28While they could have used more initiative, ignored his order and checked the distributor
anyway, and thus located the trouble, in all the circumstances I am unable to conclude that
their compliance with the owner's orders was a dereliction of duty toward Respondent,
986 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other circumstances which indicate that the Kiefers' seeming waste, of time and poor work
on October 3 were not the real or motivating reasons for their discharge First, Respondent
did not question them about events of that day, before their discharge, merely acting upon
a complaint of a disgruntled customer who ridiculed the Kiefers' work when they dropped it
in favor of other and emergency work, and a report from the Ford dealer; he did not bother
to learn the Kiefers' version of the events of that day before firing them. In addition, he did
not mention their alleged loafing or poor work on the 3rd to them at the time of discharge,
although their "loafing" had always been a sore point with him, and he had specifically
mentioned that to them and Schaefer on September 22 and 26 as reasons for reducing their
hours and pay His silence on these subjects, and his summary discharge of them on the
morning of the 6th, when considered in the light of his clear antiunion animus, his prior
coercive threats to discharge them, and his other unfair labor practices as found above,
and his remarks anent the Union when he discharged them as found above, are circumstances
which in combination indicate persuasively that Respondent discharged the Kiefers on
October 3 because of their union affiliation and in fulfillment of his previous threats of
discharge for that reason, and that he seized upon, and now advances as the reason for
the discharge, their alleged conduct of the 3rd as a pretext to conceal the real discriminatory
motive for their discharges.
Respondent's rehiring of Arthur Kiefer shortly after the discharges, and the circumstances
of his recall, compel the same conclusion. Respondent tried to operate the shop for 3 days
by himself, and then had Mrs. Klinka call Arthur Kiefer on the phone the night of October 8,
1952, to recall him to work. She asked Arthur to return to work saying the work was too
much for Respondent, that he could not handle it alone She also said, "We'll be working
more than 40 hours." Arthur returned to his job October 9, 1952. A few days afterward,
Respondent told him that if any customers or others should ask where he had been, he
should say he had gone hunting. Respondent's rehiring of an allegedly unsatisfactory em-
ployee within a few days after conduct which is claimed to have caused his discharge, and
his request that the employee disguise the reason for his absence, are further indications
that misconduct was not the real reason for the discharges, and that Respondent desired to
conceal the true discriminatory motive. Further, Respondent's own admissions show that
he never intended to fire either or both for misconduct. Under questioning of his own counsel,
Respondent said the discharges were "for the time being," i e , temporary, and also said,
"Well, I would have hired somebody, sure if I wouldn't have got one of them I would have to
have somebody, I was going to have one man come back." On cross-examination, he testified:
0. At the time you fired him (Arthur), you didn't then expect you would take him back,
is that correct?
A. I wouldn't say that.
He then said he determined to rehire Arthur on the evening of the 8th, when his wife called
him on the phone. This testimony contradicts his story that he intended to do the work
himself after October 3, and indicates, rather, that he was planning, even when he fired
both, to rehire one When pressed for the reason why he rehired either when both were
guilty of the same misconduct, he equivocated, finally saying "That's just my privilege."
He explained that he rehired Arthur, rather than Robert, because he was the cheaper of
the two, had more dependents, and was easier to get along with There is no substantial
proof that Respondent intended, or tried, to hire new help. The above further disproves
his contention that both employees were unsatisfactory and discharged for that reason.
In addition, his choice of Arthur was a poor one from the economic point of view because
Robert was clearly the more valuable: Respondent admits both men were equal in mechanical
ability, but Robert was more experienced, and also was the only one with experience and
proven ability in body work 29 Furthermore, the discharge of Respondent's whole work
particularly where he got paid for their work. Respondent intimates that the Kiefers' story
regarding Persike's orders not to touch the distributor was a recent fabrication, concocted
after Arthur Kiefer learned from the Ford mechanics what they had done to repair the
Lincoln, in order to account for their inability to find the trouble. Respondent did not produce
the Persikes to testify on this subject and in the absence of their testimony I must accept the
clear, straightforward, and uncontradicted testimony of the Kiefers in preference to any con-
trary inference suggested by Respondent and unsupported by substantial proof.
29Respondent admitted that he has been doing the body work since Arthur's recall and that
the latter has been learning that work by helping him.
KLINKA'S GARAGE 987
force on the 3rd was impractical, as he quickly discovered after trying to carry on alone
for 3 days, and was also contrary to his alleged retrenchment plan of June which contem-
plated the layoff of one man; if that plan still prevailed in the fall when Respondent reduced
the hours and pay, it is strange that he did not follow through on October 3, and lay off only
Robert who was allegedly the least satisfactory of the two This deviation from his professed
economy plan further indicates an ulterior motive in the discharges.
Finally, when the above circumstances are considered together with the facts that Re-
spondent recalled Arthur the night of October 8, in accordance with his admitted intent to
rehire one of the brothers, shortly after his counsel had learned the same day from a Board
agent about the Board's established policy against holding elections in one-man units, 30 I am
convinced that Respondent conceived the plan on or before the 6th of October of discharging
both employees because of their union activity, using their misconduct on the 3rd as a pre-
text, and shortly rehiring one of them, and that he actually put the plan into effect on the 8th,
for the purpose of reducing his work force to one man, thereby bringing himself within the
above Board policy, forestalling an election and thus thwarting the Union's attempt, after it
had secured majority status, to secure official sanction for that status through Board proce-
dures, all in furtherance of his previously expressed determination not to have a union in his
shop under any circumstances
On the basis of all the above facts and circumstances, I find and conclude that Respondent
discharged Robert and Arthur Kiefer on October 6, 1952, because of their union affiliation
and support of its attempt to secure statutory bargaining status through a Board-conducted
election, and that by such discharge Respondent has discriminated against his employees in
regard to their hire and tenure of employment in order to discourage membership in the
Union, in violation of Section 8 (a) (3) and (1) of the Act. 31
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above, occurring in connection with the
operations of Respondent described in section 1, above, have a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States and tend to lead to labor
disputes burdening and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in certain unfair labor practices, I shall recom-
mend that Respondent cease and desist therefrom and take certain affirmative action which I
find will effectuate the policies of the Act.
I have found that Respondent discriminated against his two employees on September 22,
1952, by reducing their workweek from alternate 55- and 60-hour weeks to a 40-hour week,
and against Robert Kiefer by reducing his rate of pay for customer body work, and further
discriminatorily discharged both employees on October 6, 1952, all in violation of Section 8
(a) (3) of the Act Both employees are therefore entitled, in accordance with established
Board practices, to reinstatement with back pay to the extent necessary to recreate their
status quo at the time of the discrimination against them. 2 Arthur Kiefer was reemployed by
Respondent on October 9, 1952, at his former job and rate of pay, but has worked a 50-hour
week since, in contrast to his former work schedule. I shall therefore recommend that
Respondent offer Arthur Kiefer immediate and full reinstatement to his former or a sub-
stantially equivalent position, which shall include reinstatement of his former work schedule
with overtime as aforesaid, without prejudice to his seniority or other rights and privileges,
and make him whole for any loss of pay he may have suffered by reason of Respondent's
discrimination against him.
31 Griffin Wheel Company, 80 NLRB 1471 and cases therein cited. Mrs. Dom, a Board
agent assigned to handle the Union's representation petition, told Mr. Marth, Respondent's
local attorney in West Bend, on October 8, 1952, during the day, that if Respondent employed
only one person , under normal Board procedure the Board would not hold an election in a
one- man unit.
311 find no substantial proof that Respondent threatened his employees with loss of jobs
because of their union activities through Mrs. Klinka, as his agent, and I will recommend
that the complaint be dismissed in this report.
31Republic Steel Corporation (Upson Division) 77 NLRB 1107; Westinghouse Pacific Coast
Brake Company, 89 NLRB 145.
988 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On January 26, 1953, Respondent offered Robert Kiefer immediate reinstatement to his
former position as "general auto repairman" at the rates effective at the time of his dis-
charge, i. e , $140 an hour for general repair work and $1.55 per hour for customer body
work On January 27, 1953, Robert Kiefer indicated his willingness to accept the offer,
provided he was reemployed on the identical terms of employment prevailing before Re-
spondent's unfair labor practices, i. e , $1.40 an hour for general repair work, $2 an hour
for customer body work, and alternate workweeks of 56 (sic) 33 and 60 hours. As the reduction
of the employees' workweek to 40 hours and reduction of Robert Kiefer's pay for customer
body work to $1.55 an hour were violations of the Act, it follows that Respondent's offer is
insufficient and not bona fide, insofar as it fails to offer to restore him to his former hours
of employment and rate of pay. I shall therefore recommend that Respondent offer Robert
Kiefer immediate and full reinstatement and make him whole, to the same extent as in the
case of Arthur Kiefer. 96
The requirement of reinstatement is not affected by the circumstances that, since October
9, 1952, Respondent has been handling his service work with the aid of only one employee,
working 50 hours a week. Whether this is due to a drop in volume of business or more effi-
cient use of his own and Arthur Kiefer's time in the garage, it does not relieve Respondent
of his obligation to restore both Kiefers to the employment conditions which prevailed before
Respondent's illegal reduction of hours and pay So far as the record discloses, they would
have been permitted to remain on the job, working alternate 55- and 60-hour weeks, and at
their then existing rates of pay, regardless of business fluctuations had it not been for their
union activity, The only way to undo the wrongs perpetrated against them is to restore them
to their former positions in all respects. If this results in some hardship or loss to Re-
spondent, as he intimates in his brief, he must bear it himself; to permit him to shift it to
the victims of his unfair labor practices would enable him to enjoy the fruits of those prac-
tices and would defeat the remedial purposes of the Act. Southeastern Pipeline Company,
103 NLRB 341.
Respondent argues that he is not obligated to make any further offer of reinstatement to
Robert Kiefer because the latter, in his reply of January 27 to the offer, demanded a guaran-
tee of a 55- or 60-hour week This contention is without merit In the first place, although
Respondent's written offer does not mention any specific hours of work, his brief indicates
that he was offering Robert reinstatement to the same 50-hour week as Arthur was working.
For the reasons and under the cases cited above, this offer was insufficient, and Robert was
justified in treating it as a nullity, because it did not contemplate bona fide reinstatement to
his former or a substantially equivalent position Further, Robert's letter of January 27 was
nothing more than an expression of a willingness to accept reinstatement at the same rates of
pay and hours of employment as he enjoyed prior to Respondent's discrimination against him
Under the above cases, this position was proper and did not relieve Respondent of making a
proper offer of reinstatement
The loss of pay for each employee should be computed in accordance with the formula set
forth in F. W. Woolworth Company, 90 NLRB 289 $ I shall also recommend that Respondent
be ordered to make available to the Board, on request, payroll and other records to facilitate
the analysis and checking of the amount of back pay due
331 consider the variance between the request for a 56-hour week and the prior 55-hour
week a minor one which does not vitiate the demand, since he was in effect requesting
restoration of the 6-day workweek of 10 hours a day, with alternate Saturday afternoons off.
94See cases in preceding footnote, and cf. Pacific Powder Company, 84 NLRB 280.
as The back-pay period for both employees begins on September 22, 1952, the date of the
first discrimination against them, and continues until the date of a proper offer of reinstate-
ment. However, as there is testimony herein indicating some decline in Respondent's business
late in 1952 and even at the time of the hearing. I shall recommend that, if Respondent can
satisfactorily demonstrate in the compliance stage of this case that he would have reduced
the workweek below the alternate 55- and 60-hour schedule, and also reduced the pay rates,
for nondiscriminatory reasons at some time after his discriminatory reductions thereof, he
should not be required thereafter to reinstate the longer workweeks, nor to reimburse his
employees after such date for hours not actually worked nor at their former rates of pay.
In such event, the back-pay period should continue until that time when Respondent would
have reduced either the workweek or the rates of pay, or both, for nondiscriminatory reasons.
Westinghouse Pacific Coast Brake Company, 89 NLRB 145, 147.
SOUTHEASTERN RUBBER MANUFACTURING CO., INC. 989
Having found that Respondent has refused to bargain collectively with the Union as the
statutory representative of his employees in an appropriate unit, I shall recommend that
Respondent, upon request, bargain collectively with the Union as such representative, and,
in,the event an understanding is reached, embody such understanding in a signed agreement.
The scope and`.variety of Respondent's unfair labor practices found above disclose a fixed
purpose on his part to defeat self-organization of his employees and to thwart the fundamental
objectives of the Act, and justify an inference that the commission of other and related unfair
labor practices by Respondent may be anticipated. In these circumstances, the preventive
purposes of the Act would be frustrated unless the remedy were coextensive with the threat.
I will therefore recommend that Respondent be ordered to cease and desist, not only from
continuance of the unfair labor practices specifically found above, but also from in any
other manner interfering with, restraining, and coercing his employees in the exercise of
rights guaranteed to them by Section 7 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 Union, United Automobile Workers of America, AFL, is a labor organiza-
tion within the meaning of Section 2 (5) of the Act.
2. All employees of Respondent at West Bend, Wisconsin, excluding executives, salesmen,
office clerical employees, and all supervisors as defined in the Act, constitute a unit appro-
priate for purposes of collective bargaining within the meaning of Section 9 (b) of the Act.
3. The above Union was on September 26, 1952, and has been since that date, the exclusive
representative of all employees in the aforesaid unit for purposes of collective bargaining
within the meaning of Section 9 (a) of the Act.
4. By his refusal to bargain collectively with said Union as such exclusive bargaining
representative of his employees in the unit aforesaid, Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8 (a) (5) of the Act.
5. By discriminating in regard to the hire and tenure of employment and terms and condi-
tions of employment of Robert Kiefer and Arthur Kiefer, thereby discouraging membership
in a labor organization, Respondent has engaged in and is engaging in unfair labor practices
in violation of Section 8 (a) (3) of the Act.
6. By the aforesaid conduct, as well as other conduct set forth above, Respondent has
interfered with, restrained, and coerced employees in the exercise of rights guaranteed to
them by Section 7 of the Act, and has thereby engaged in and is engaging in unfair labor
practices in violation of Section 8 (a) (1) of the Act.
7. 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)
SOUTHEASTERN RUBBER MANUFACTURING CO., INC. and
THE UNITED RUBBER, CORK, LINOLEUM AND PLASTIC
WORKERS OF AMERICA, CIO. Case No. 10-CA-1578.
August 26, 1953
DECISION AND ORDER
On June 15, 1953, Trial Examiner Horace A. Ruckel 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 further found that the Respondent had not
106 NLRB No. 157.