W. W. Wallwork Fargo, Inc.

National Labor Relations Board - Board Decisions

Mar 10, 1959

123 N.L.R.B. 91 (N.L.R.B. 1959)

W. W. WALLWORK FARGO, INC. 91
Booker Carroll , an employee , called as a witness by the Company , testified
that on the morning of the election , he overhead some conversation about the
Union emanating from the plant washroom . Although he could not see the
individuals concerned , he recognized one of the voices as that of James Dob-
bins, an employee. Carroll testified that he heard Dobbins say "If the Union
don't win , the Union man was going to picket again."
Dobbins, called as a witness by the Union , denied making the statement
attributed to him by Carroll. Dobbins further testified that he attended all of
the union meetings and that the only statement made by Ford regarding a
union loss at the election was that if the Union lost , it would be a year before
another election could be held.
Dobbins impressed the hearing officer as a forthright and honest witness
and the hearing officer credits his denial.
Moreover , concerning the alleged remarks made by Taylor and Dobbins, even
if the two individuals made the remarks about picketing , as contended by the
Employer, there is no evidence to support a finding that Taylor and Dobbins were
acting as agents of the Union or vested with any authority. Absent evidence
of union responsibility for the alleged remarks of the rank -and-file employees,
and since these incidents were essentially isolated in nature, there is no basis for
a finding that such remarks tended to create an atmosphere rendering a free
election impossible.3
CONCLUSIONS AND RECOMMENDATIONS
Having found that Ford did not tell the employees that unless the Union was
voted in the Union would picket the plant , trucks would be stopped, and the
Company would have to cease operations ; that neither Taylor nor Dobbins made
substantially similar remarks , and that the facts do not establish interference
with the election or the exercise of a free choice of representatives by the em-
ployees, it is recommended that the Employer's objection No. 6 be overruled.
As provided in the Board's Order of October 16, 1958, within 10 days from
the date of issuance of this report , any party may file with the Board in
Washington , D.C., an original and 6 copies of exceptions thereto. Immediately
upon the filing of such exceptions , the party filing the same shall serve a copy
thereof upon each of the other parties , and shall file a copy with the Regional
Director.
8 Orleans Manufacturing Company, 120 NLRB 630.
W. W. Waliwork Fargo, Inc. and General Drivers, Warehouse-
men, Dairy Employees , and Inside Workers, Local Union No.
116, of the International Brotherhood of Teamsters , Chauf-
feurs, Warehousemen & Helpers of America, and Local No.
2172, International Association of Machinists , AFL-CIO
General Drivers, Warehousemen , Dairy Employees , and Inside
Workers, Local Union No . 116, of the International Brother-
hood of Teamsters, Chauffeurs, Warehousemen & Helpers of
America, and Local No. 2172, International Association of
Machinists, AFL-CIO and W. W. Waliwork Fargo, Inc. Cases
Nos. 18-CA-862 and 18-CC-48. March 10, 1959
DECISION AND ORDER
On July 8, 1958, Trial Examiner Robert E. Mullin issued his
Intermediate Report in the above-entitled proceedings, finding that
the Respondent Company and the Respondent Unions had engaged
in and were engaging in certain unfair labor practices and recom-
123 NLRB No. 15.
92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mending that they cease and desist therefrom and take certain
affirmative action, as set forth in the copy of the Intermediate
Report attached hereto. Thereafter, the General Counsel, the
Respondent Company, and the Respondent Unions filed exceptions
to the Intermediate Report and supporting briefs.
The Board 1 has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Intermediate Report, the exceptions and briefs, and the entire
record in these cases, and hereby adopts the findings, conclusions,
and recommendations' of the Trial Examiner, as modified herein.'
ORDER
Upon the basis of the entire record in these proceedings, and
pursuant to Section 10(c) of the National Labor Relations Act,
the National Labor Relations Board hereby orders that :
A. The Respondent Company, W. W. Wallwork Fargo, Inc.,
Fargo, North Dakota, its officers, agents, successors, and assigns,
shall :
1. Cease and desist from :
(a) Refusing to bargain collectively concerning rates of pay,
wages, hours of employment, and other conditions of employment
with General Drivers, Warehousemen, Dairy Employees, and Inside
Workers, Local Union No. 116, of the International Brotherhood
of Teamsters, Chauffeurs, Warehousemen & Helpers of America,
and Local No,. 2172, International Association of Machinists, AFL-
CIO, as the exclusive representative of its employees in the following
appropriate unit :
'Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its
powers in connection with these cases to a three-member panel [Members Bean, Jenkins,
and Fanning].
We adopt the Trial Examiner 's recommendation , to which no exceptions have been
taken, that the evidence fails to establish that the Unions unlawfully induced or en-
couraged the employees of K. W. McKee, Inc., not to handle freight for Respondent
Company. We shall therefore dismiss this allegation in the complaint.
3 The Trial Examiner found that William Wright, who was classified as a janitor but
performed certain guard functions during the strike, was appropriately part of the exist-
ing bargaining unit because he spent less than 50 percent of his time as a plant protection
employee. He therefore concluded that the unilateral wage increase which Respondent
Company granted to him constituted another instance of its unlawful refusal to bargain
with the Union. The Respondent Company contends that Wright was a guard regardless
of the time spent in performing those duties and that any wage increase accorded to him
was not unlawful . For the reasons set forth in Walterboro Manufacturing Corporation,
106 NLRB 1383, 1384, we find merit in the contention that Wright was a guard and
further agree that any increase given him did not unlawfully undermine the Union's
bargaining agency. However , such finding does not otherwise affect the propriety of the
Trial Examiner 's findings , or our concurrence therein, that the Company violated Sec-
tion 8(a) (5) of the Act by granting increases to other employees in the unit without
prior consultation with the Union.
We also concur in the Trial Examiner 's finding that the Respondent violated Sec-
tion 8 ( b) (4) (A). In doing so, we find it unnecessary to, and do not , rely upon the
incident involving the truckdriver employed by Associated Transport, Inc.
W. W. WALLWORK FARGO, INC. 93
All employees of the parts and service departments of W. W.
Wallwork Fargo, Inc., excluding office clericals, salesmen, watch-
men, guards, professional employees, and all supervisors as defined
in the Act.
(b) Making or effecting any changes in rates of pay, wages,
hours, or other terms or conditions of employment of its employees
in the appropriate trait without giving notice to, and consulting
with, the aforesaid Unions as the exclusive representatives of the
employees.
(c) In any like or related manner interfering with, restraining,
or coercing its employees in the exercise of their right to self-organi-
zation, to form labor organizations, to join or assist the aforesaid
Unions 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
such activities except to the extent that such right may be affected
by an agreement requiring membership in a labor organization as
a condition of employment as authorized in Section 8(a) (3) of the
Act.
2. Take, the following affirmative action which the Board finds
will effectuate the policies of the Act :
(a) Upon request, bargain collectively with the aforesaid Unions
as the exclusive representative of all its employees in the unit found
appropriate hereinabove and embody any agreement reached in a
signed contract.
. (b) Post at its plant in Fargo, North Dakota, copies of the
notice attached hereto marked "Appendix A." 4 Copies of said
notice, to be furnished by the Regional Director for the Eighteenth
Region, shall, after being signed by Respondent Company's repre-
sentative, be posted by the latter immediately upon receipt thereof
and maintained by it for 60 consecutive days thereafter in con-
spicuous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by Respond-
ent Company to insure that said notices are not altered, defaced,
or covered by any other material.
(c) Post at the same places and under the same conditions as
set forth in (b), above, and as soon as they are forwarded by the
Regional Director, copies of the Respondent Union's notice herein,
marked "Appendix B."
(d) Notify the Regional Director for the Eighteenth Region in
writing, within 10 days from the date of this Order, what steps it,
has taken to comply herewith.
B. Respondents, General Drivers, Warehousemen, Dairy Employ-
ees, and Inside Workers, Local Union No. 116, of the International
4In 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."
94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
-Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers
of America, and Local No. 2172, International Association of Ma-
chinists, AFL-CIO, their officers, representatives, agents, and
assigns, shall:
1. Cease and desist from :
(a) Engaging in, or inducing or encouraging the employees of
any employer other than W. W. Wallwork Fargo, Inc., to engage
in, a strike or concerted refusal in the course of their employment
to use, manufacture, process, transport, or otherwise handle or
work on any goods, articles, materials, or commodities, or to perform
any services, where an object thereof is to force or require any
employer or other person to cease using, selling, handling, transport-
ing, or otherwise dealing in the products of, or to cease doing
business with, W. W. Wallwork Fargo, Inc.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
.(a) Post at their respective business offices in Fargo, North
Dakota, copies of the notice attached hereto marked "Appendix B."
Copies of said notice, to be furnished by the Regional Director
for the Eighteenth Region, after being duly signed by official rep-
resentatives of the Respondent Unions, shall be posted by them
immediately upon receipt thereof and maintained by them for a
period of 60 consecutive days thereafter in conspicuous places where
notices to members are customarily posted. Reasonable steps shall
be taken by Respondent Unions to insure that said notices are not
altered, defaced, or covered by any other material.
(b) Mail to the Regional Director signed copies of "Appendix
B," for posting by Respondent Employer at its Fargo, North Da-
kota, premises, as provided above herein, and by the Hart Motor
Express, Inc., at its Fargo, North Dakota, premises, that employer
willing.
(c) Notify the Regional Director for the Eighteenth Region, in
writing, within 10 days from the date of this Order, what steps
Respondents have taken to comply herewith.
IT IS FURTHER ORDERED that the complaint, insofar as it alleges
that the Respondents unlawfully induced or encouraged the em-
ployees of K. W. McKee, Inc., not to handle freight for W. W.
Wallwork Fargo, Inc., be, and it hereby is, dismissed.
5 See footnote 4.
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 bargain collectively, upon request, with General
Drivers, Warehousemen, Dairy Employees, and Inside Workers,
Local Union No. 116, of the International Brotherhood of
W. W. WALLWORK FARGO, INC. 95
Teamsters, Chauffeurs, Warehousemen & Helpers of America,
and Local No. 2172, International Association of Machinists,
AFL-CIO, as the exclusive representative of all our employees
in the bargaining unit described below with respect to rates
of pay, wages, hours of employment, and other conditions of
employment, and if an agreement is reached, embody such
understanding in a signed contract. The bargaining unit is :
All employees of the parts and service departments,
excluding office clericals, salesmen, watchmen, guards, pro-
fessional employees and supervisors.
WE WILL NOT make or effect any changes in rates of pay,
wages, hours, or other terms or conditions of employment of
our employees in the appropriate unit without giving notice
to and consulting with the aforesaid Unions as the exclusive
representative of our employees.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees in the exercise of their right
to self-organization, to form labor organizations, to join or
assist the aforesaid Unions, or any other labor organization, to
bargain collectively through representatives of their own choos-
ing, 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 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 employ-
ment as authorized in Section 8 (a) (3) of the Act.
All our employees are free to become or remain, or refrain from
becoming or remaining, members of any labor organization except
to the extent above stated.
W. W. WALLWORK FARGO, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
APPENDIX B
NOTICE TO ALL MEMBERS OF GENERAL DRIVERS, WAREHOUSEMEN,
DAIRY EMPLOYEES, AND INSIDE WORKERS, LOCAL UNION No. 116,
OF THE INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS,
WAREHOUSEMEN & HELPERS OF AMERICA AND TO ALL MEMBERS OF
LOCAL No. 2172, INTERNATIONAL ASSOCIATION OF MACHINISTS,
AFL-CIO
Pursuant to a Decision and Order of the National Labor Relations
96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby give notice that :
WE WILL NOT induce or encourage the employees of any em-
ployer other than W. W. Wallwork Fargo, Inc., to engage in
a -strike or concerted refusal in the course of their employment,
to' use, manufacture, process, transport, -or otherwise handle
or work on goods, articles, or commodities, or to perform any
services for their respective employers where an object thereof
is to force or require any employer or person to cease doing
business with W. W. Wallwork Fargo, Inc.
GENERAL DRIVERS, WAREHOUSEMEN,
DAIRY EMPLOYEES, AND INSIDE
WORKERS, LOCAL UNION No. 116,
OF THE INTERNATIONAL BROTH-
ERHOOD OF TEAMSTERS, CHAUF-
FEURS, WAREHOUSEMEN & HELP-
ERS OF AMERICA,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
LOCAL No. 2172, INTERNATIONAL Asso-
CIATION OF MACHINISTS, AFL-CIO,
Labor Organization.
Dated---------------- By-----------------------=-------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other ' material.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This proceeding, brought under Section 10(b) of the Labor Management
Relations Act, 61 Stat. 136 (herein called the Act), was heard in Fargo, North
Dakota, on April 22 to 24, 1958, pursuant to an order of consolidation and due
notice to all parties. The complaint in Case No. 18-CA-862 alleged, in
substance, that, since about March 23, 1957, the Respondent Company has
refused to bargain in good faith with the Unions. In its answer to this complaint,
W. W. Wallwork Fargo, Inc. (herein called Wallwork or the Company) conceded
certain facts with respect to its business operations but denied the commission
of any unfair labor practices. The complaint in Case No. 18-CC-48 alleged that
the Teamsters and Machinists, in violation of Section 8(b) (4) (A) of the Act,
induced and encouraged employees of certain other employers to engage in con-
certed refusals to transport or handle goods of, or to perform services for, Wall-
work with the object of forcing or requiring these other employers to cease
doing business with Wallwork. In their answers to this complaint the Teamsters
and Machinists denied all allegations that they had violated the Act.
At the hearing the General Counsel, Wallwork, and the Teamsters were
represented by their respective attorneys and the Machinists by their authorized
representatives. Full opportunity to be heard, to examine and cross-examine
W. W. WALLWORK FARGO, INC. 97
witnesses, and to introduce all evidence pertinent to the issues was afforded all
parties. On May 29, 1956, unusually able and comprehensive briefs were filed
by counsel for the General Counsel, Wallwork, and the Teamsters.
Upon the entire record in the case, and from my observation of the demeanor
of the witnesses, I make the following:
FINDINGS OF FACT
There is no dispute, and I find, that (1) Wallwork is engaged in commerce I
and (2) the Teamsters and Machinists are labor organizations, all within the
meaning of the Act. The only disputed issues are (1) whether Wallwork
refused to bargain with the Unions in good faith, and (2) whether the Unions
induced or encouraged employees of Hart Motor Transfer and Associated Trans-
port to engage in concerted refusals to transport or handle freight for Wallwork,
with the objects described in the complaint.
1. THE UNFAIR LABOR PRACTICES
A. Introduction and sequence of events
In the summer and fall of 1956, the Teamsters and Machinists conducted a
joint organizational campaign among the employees of the automobile garages
in Fargo, North Dakota, and Moorhead, Minnesota. In September the Unions
filed representation petitions involving eight of the automotive sales and service
agencies in that area. Subsequent thereto the Board-conducted elections at these
garages. The Unions lost the election at one, the Corwin-Churchill Company,
but _won elections. at the plants of the other seven employers. Accordingly, on
October 31, 1956, the Unions were certified as the exclusive representative of the
parts and service department employees at each of the following: W. W. Wallwork
Fargo, _Inc., W. W. Wallwork Moorhead, Inc., Berrell Motor Company, Hustad-
Kelly Company, Service Chevrolet, Inc., Valley Lincoln Mercury,. Inc., and Auto
Parts, Inc. In a separate proceeding before the State of Minnesota labor concilia-
tor, an election was held at the Balmer Motor Company, Moorhead, Minnesota,
on October 31, 1956, and shortly thereafter the Unions were certified as the
exclusive representative of the employees at that garage by the State agency.
On November 23, the Unions, represented by Ernest J. Mertens, vice president
of Local 116, Teamsters, and Earl P. Hogan, international representative of the
Machinists, called upon Mr. W. W. Wallwork, Jr., to request negotiations with
Wallwork Fargo and to present a proposed contract. At about this time, the
Unions presented a similar proposal to Service Chevrolet, and on about November
29, 1956, Mertens left a copy of a suggested contract with Mr. William Corwin,
president of Auto Parts, "Inc. Mr. Wallwork, Jr., told the union representatives
that in all bargaining sessions his company would be represented by Mr. Lloyd
M. MacAloon, of Minneapolis. In fact, Mr. MacAloon had been retained as
labor relations consultant by all of the eight auto dealers at whose shops the
Unions had recently won elections. Mr. MacAloon testified that Mr. Hogan told
him in November 1956 that when the Unions learned that he was to represent all
of the employers in the Fargo-Moorhead area, they did not proceed any further
with the submission of proposed contracts but came directly to him. This was
denied by Hogan. However, it was conceded that after they had left identical
contract proposals with Wallwork Fargo and Service Chevrolet and brought a
copy of another type of agreement to Auto Parts, Inc., the union representatives
did not make individual contract demands on any of the other dealers. It is my
conclusion that MacAloon's version of his conversation with Hogan is sub-
stantially accurate.
The first bargaining conference was held on December 7, 1956. Thereafter,
numerous other meetings were held until July 11, 1957, when the last formal
conference occurred. On August 19, 1957, the employees at Wallwork Fargo
1 Wallwork Fargo, a corporation, is a franchised Ford motor car dealer, auto parts,
and compressed air distributor. In connection therewith it operates a garage in Fargo,
North Dakota, where it also has its principal office and place of business. In the conduct
of its business Wallwork annually purchases a large volume of merchandise, over $500,000
of which is, received directly from outside the State of North, Dakota. Wallwork, in turn,
annually, ships over $100,000 worth of merchandise to points and places outside the State
of North Dakota. The Respondent Company concedes that It is engaged in commerce
within the meaning of the Act.
508889-60-vol. 123-8
98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
voted to go on strike and on August 20, the Unions called a strike at that
garage which has been in progress ever since. Picketing, initiated at the outset
of strike, has continued up to the present. On September 20, Wallwork Fargo,
put into effect a number of wage increases which are in controversy here. On
that same day, the Unions filed the charge in Case No. 18-CA-862, alleging that
the Company had refused to bargain in good faith. On November 26, 1957, the
Company filed the charge in Case No. 18-CC-48, alleging that the Unions had
violated Section 8(b)(4)(A) of the Act.2
B. The case against the Company (No. 18-CA-862)
The General Counsel alleged that the Company had, since about March 23,
1957, refused to bargain collectively with the Unions in that: (1) it participated
in negotiations with the fixed determination never to arrive at a collective-
bargaining agreement; (2) in addition to negotiating for employees in the unit
at Wallwork Fargo it insisted, during the course of negotiation meetings beginning
on or about January 25, 1957, and at all times thereafter, on bargaining for a
larger unit by submitting proposals on behalf of seven other automobile dealers
and parts concerns and by insisting upon negotiating for them at all conferences
involving Wallwork Fargo; (3) during the course of negotiations it withdrew
offers previously made, for the purpose of preventing consummation of a collective-
bargaining agreement; and (4) beginning on about September 20, 1957, granted
unilateral wage increases to employees in the unit without notification to, or
consultation with, the Unions. The Respondent's answer conceded that the unit
set forth in the complaint was appropriate and that at the time of certification the
Unions represented a majority of the employees in such a unit. It denied, how-
ever, that the Unions have continued to represent a majority of the employees
and, as an affirmative defense alleged that the Unions refused to bargain . , in
good faith by insisting that the Respondent bargain for a unit larger than the
one which had been certified.
1. The appropriate unit
The General Counsel alleged, the Respondent conceded, and I find, that a unit
consisting of the employees of the parts and service departments of Wallwork
Fargo, excluding office clericals, salesmen, watchmen, guards, professional em-
ployees, and supervisors, is appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
2. The bargaining conferences
One of the principal issues in this case is whether during the negotiations
which began in December 1956, and continued for many months, the Unions
consistently sought to bargain only as to the unit which it represented at Wallwork
Fargo and whether throughout most of that period Mr. MacAloon sought to
bargain not only on behalf of the latter employer but also on behalf of the
seven other garages and auto parts establishments which he represented in the
Fargo-Moorhead area.3 As noted earlier, the Unions had been certified as the
employee representative at all of these concerns. Similarly, Mr. MacAloon had
been retained to represent each of the eight different employers in all collective-
bargaining negotiations. In addition, Mr. Dixon testified that Mr. MacAloon had
also been retained by the Automobile Association of North Dakota.
On November 26, 1956, Hogan, on behalf of the Unions, addressed a letter
to Wallwork Fargo,4 in which he requested that the first bargaining conference
be held no later than December 7. On the latter date, the parties met. Wallwork 5
2In March 1958, the General Counsel filed a petition for an injunction under Sec-
tion 10(1) of the Act in the United States District Court for the District of North Dakota.
After a hearing on the petition, the court took the matter under advisement pending a
decision by the Supreme Court of the United States in Local 1976, United Brotherhood of
Carpenters and Joiners, et at. v. N.L.R.B., and related cases, 357 U.S. 93. On June 23,
1958, the court denied the petition.
8 Le., Auto Parts, Inc., Balmer Motor Company, Berrell Motor Company, Hustad-Kelly
Company, Service Chevrolet, Inc., Valley Lincoln Mercury, Inc., and W. W. Wallwork
Moorhead, Inc.
4 No similar letter was addressed to any of the other automobile dealers that had been
certified on October 31.
6 Except as hereinafter noted Wallwork Fargo will be referred to solely as Wallwork.
W. W. WALLWORK FARGO, INC. 99
was represented by Mr. MacAloon, while present for the Unions were Messrs.
Mertens and Hogan and two Wallwork employees, Harvey Baxter and Ernest
Stewart. The latter two individuals had been selected by the union members at
the Wallwork shop, Baxter by the Machinists and Stewart by the Teamsters, to
serve on the bargaining committee during the negotiations. Throughout the course
of all meetings held until the time of the strike the parties had these same repre-
sentatives, although at times MacAloon was accompanied by Mr. George Dixon,
manager of the Automobile Association of North Dakota, and, on at least one
occasion, the union group included Howard Fortier, Jr., a Teamster official from
Minneapolis. It was conceded by Mr. MacAloon, the Respondent's principal
witness, that Baxter and Stewart were the only employees present during the
conference and that no rank-and-file employees from any of the other garages
were on the union bargaining committee with whom he met. Mertens and
Hogan testified that at the outset of the Conference they told the company
representative that at that time they wanted to bargain for a contract only as
to the Wallwork employees. According to MacAloon, however, at this early date
the Unions did not make a point of negotiating only as to Wallwork. On the
other hand, there was general agreement in the testimony as to the balance
of the discussion that day. Mertens testified, "MacAloon stated that in order
to save time because he was going to represent other employers, too, that the
body of the contract, the noncost items, he would like to get those out of the
way first, and where they would be . . . the same, or approximately the same,
in other garages that he saw no reason why we should have to go over this
same thing for each and every individual employer. And it was for this reason
only that we let the other garages be mentioned...."
The Unions' contract proposal, given to Mr. Wallwork, Jr., before the negotia-
tions began, was discussed, in part, and Mr. MacAloon promised that before
the next meeting he would submit counterproposals. In addition, the latter
testified that at this conference the participants spent much ,time discussing the
length of the workweek. According to MacAloon, he was anxious to get the
maximum hours down to 40, although this was not a problem as to Wallwork
because that employer was already on a 40-hour week with time and one half
after 40. He testified, however, that this was not true of the other dealers and
"by reason of our agreement in commencing this meeting and these negotiations,
I was obligated to try to effect a contract that could be standardized at least in
general terms." MacAloon testified that he suggested a 5-cent increase in hourly
wages with a reduction in hours but that "the union representatives, in no uncer-
tain words said that five cents wasn't even worth talking. about. They suggested
thirty cents on the. basis of the present work week and said that would have to
be increased if there was a shorter work week."
On about January 14 MacAloon sent the Unions his counterproposal. This was
submitted in the name of the "Automobile Dealers, Fargo-Moorhead." The
opening paragraphs read as follows:
The following proposal has to do only with the contract general terms.
A statement relative to the employers' position as related to cost item condi-
tions is being submitted in separate memorandum.
I believe it is understood that each of the employments is to be recognized
as a separate unit for the purposes of collective bargaining. However,
general terms of a labor contract may be substantially identical in all of the
businesses involved. An exception will, of course, be made in Article I,
titled "Recognition," inasmuch as the collective bargaining relationship was
established in some instance by an election under the Minnesota Labor
Relations Act.6
I accordingly submit this proposal in behalf of all the businesses repre-
sented by this office, with the exception of this necessary change in Article I.
[Italics supplied.]
There followed some 17 articles dealing with a large number of the subjects
which the Unions had covered in its first proposal. These included recognition,
layoffs, promotions, retentions, arbitration procedure, probationary periods, leaves
of absence, and related matters. The accompanying memorandum on cost items
had almost three pages devoted to provisions on holiday pay and numerous
conditions to be met by an employee to be eligible. There was a paragraph on
vacation pay and another on minimum rates of pay. In the latter section it was
proposed that: (1) mechanics receive pay on a 50-percent commission basis;
6 Only the Balmer Motor Company had been certified under the Minnesota Act.
100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(2) parts department employees have a starting rate of $1 per hour and go to
$1.40 per hour after 3 years; and (3) utility classifications (described as car
washers, car runners, errand runners, and used car lot men) have a minimum
starting rate of $1 per hour and graduated rates from that point on "to be
negotiated." A fourth category, service salesman, was mentioned but was not
included in any pay proposal on the ground that "present rates and system of
pay are considered on a high level."7
On January 25, a second bargaining conference was held. At this meeting
the Unions' original proposal and MacAloon's counterproposal were discussed.
In the former, all employees had been listed at an hourly rate, whereas in the
latter MacAloon proposed that mechanics work on a commission basis. In the
counterproposal, mechanics were to get a 50-percent commission on customer
charges. The Unions stated that this would be satisfactory if, in addition, the
mechanics had a weekly guarantee. Mr. MacAloon then qualified the 50-percent
rate by proposing that for work on house-owned cars 8 the rate be 40 percent.
Prior to this time the rate at Wallwork had been 50 percent on all work. Reduc-
tion of the workweek to 40 or 44 hours was also discussed. The Unions were in
accord with MacAloon's expressed desire to shorten the 49-hour week then pre-
vailing but only on condition that there be no cut in the employees' take-home
pay. In addition, they proposed a 10-cent increase on the hourly rate for the
shorten week. The union witnesses testified that there was some discussion of
the different vacation plans, health and welfare benefits, and related matters at
the different garages. Among these issues was a brief discussion of the employee
rates peculiar to Auto Parts, Inc., a firm that specialized in selling parts and
equipment and had no service department in contrast with the other automobile
agencies whom MacAloon represented. Hogan testified that because of the many
different programs' in effect at various employers it would have been impossible
to negotiate a basic contract for all the garages. According to him, for that
reason, at this meeting the' Unions discussed a standardized contract for Wallwork
which would serve as a basic agreement and enable them to negotiate individual
contracts with the other garages for which the Unions were certified.
On about February 14, the Unions submitted another proposed contract on the
frontispiece of which the employer was referred to as "The Blank Company."
Throughout the document all specific references to an employer were left blank.
In this the Unions proposed a workweek of 45 hours, with time and one half
for all hours worked in excess of 40. In a proposed wage scale the minimum
requested was $1.40 per hour with a provision that mechanics and any other
classification be put on a 50-percent commission, such commission employees to
be paid at least the minimum for their classification. On February 19, MacAloon
commented by letter on the Unions' proposal. He protested, in particular, to the
inclusion of an "agency shop"9 clause and a provision for a checkoff in his
letter he stated that if the Unions insisted upon such provisions, nothing could be
accomplished toward arriving at an agreement. Another meeting was held on
February 27. Neither the union representatives nor MacAloon had a detailed
recollection as to the subjects discussed at this time, although the latter testified
that he renewed the employers' objections to the agency shop, checkoff, strike
clause, and several other provisions.
On March 13, on behalf of the Fargo-Moorhead auto dealers MacAloon sub-
mitted a written supplement to his earlier proposals. Of the numerous clauses
in this submission the most significant dealt with the pay items. As to commis-
sion paid employees, it was proposed that they receive 50 percent "of the customer
or house charge, whichever the case may be, and such employees shall be
guaranteed monthly earnings of Two Hundred Fifty Dollars ($250.00) or the
equivalent thereof based on the number of hours the employee is required to be
in the shop and available for work during each month. . . . (Italics supplied.)
The proposal as to the parts department employees started with a minimum of
$1 per hour and provided a maximum of $1.40 per hour for those with more
than 36 months of service. This proposal also had a note which read "The fore-
going rates do not apply to Auto Parts, Inc., wherein the job duties and responsi-
bilities for Parts Department employees are considered different." There was also
a proposal that the service salesmen be guaranteed minimum earnings of $65
7 The quotations in this paragraph are from MacAloon's counterproposal.
8 Such as used cars taken in on trade. This was also known as "internal work."
9 An "agency shop" clause, as used herein, requires that an employee must pay dues to
the majority representative,' as a condition of employment, but need not be a member of
such union.
W. W. WALLWORK FARGO, INC. 101
per week whether that be based on commissions, on salary, or a combination of
both. The utility classifications, mentioned in earlier proposals, were not
specifically included other than in a proposal that no employee on a straight time
hourly rate should be paid less than $1 per hour. The concluding paragraphs"
of this document had the following language:
In the light of the many formal and informal meetings between repre-
sentatives of the parties and the thorough discussions of the proposals and
counterproposals submitted over a period of many weeks, it appears reason-
able that this be considered Employers' final proposal as it incorporates the
two written proposals submitted by the Employers under date of January 14,
one covering general terms and the other cost item conditions.
It must also be understood that the Employers, in whose behalf this
proposal is submitted, are intending to be parties to the same identical labor
contracts. What is to be applied to one is to be applied to each of the
others. The only exception to this will be in the instance of the wage rates
covering employees of Auto Parts, Inc. [Italics supplied.]
Submitted by Lloyd M. MacAloon, duly authorized representative of the
following named Employers:
AUTO PARTS, INC., FARGO,
BALMER MOTOR COMPANY, INC., MOORHEAD,
BERRELL MOTOR COMPANY, INC., FARGO,
HUSTAD-KELLEY COMPANY, FARGO,
SERVICE CHEVROLET, INC., FARGO,
VALLEY LINCOLN MERCURY, INC., FARGO,
W. W. WALLWORK FARGO, INC.,
W. W. WALLWORK MOORHEAD, INC.,
LLOYD M. MACALOON AND ASSOCIATES,
(S) By LLOYD M. MACALOON.
The, above was the first proposal which Mr. MacAloon signed as the representative
of the eight auto dealers and which he plainly submitted on behalf of all of them.
On March 28 the parties met again. Hogan testified that at this meeting the
Unions insisted that the bargaining be confined to Wallwork. MacAloon testified
that this was not correct. Hogan further testified that the Unions objected to
the $1 minimum wage for hourly employees and that when they did so, Mac-
Aloon stated that the dealers, particularly Mr. Churchill of the Corwin-Churchill
Motor Company, insisted on it. According to Hogan, he objected at the time
to Churchill having anything to do with the negotiations in view of the fact that
the Unions had lost the election held at his garage and had no bargaining rights
there. MacAloon denied this testimony but here, it is my conclusion, based
upon the record and my observation of the witnesses, that the remark as to
Churchill's position was made and made substantially as Hogan testified. As to
the general tenor of this meeting Mr. MacAloon testified that in reviewing the
proposals there seemed to be agreement on more articles than previously. The
company proposal as to commission employees was that they receive a 50-percent
commission on the "customer or house charge." The distinction between these
two types of charges had been discussed earlier at the meeting on January 25.
Yet, at this time, MacAloon testified that he did not understand that there was
any such distinction and that when he learned that there was such a distinction
after submitting the proposal of March 13 he explained to the parties that the
commission on "house work" would have to be less than on "customer work."
According to Mr. MacAloon, however, his proposal would not cut the commission
on house work at a garage where the rate prior to negotiations was already 50
percent. He explained that a "good-faith" clause in his proposal would prevent
any employee from suffering a cut in his commission rate. A reading of this
clause, however, does not readily support MacAloon's interpretation of it.b0
On April 4, MacAloon submitted another proposal to the Unions which was
entitled "Complete and Final Draft of Labor Contract for Consideration of the
10 This was Article X of the March 13 proposal. It read as follows :
Good Faith Conduct
s s • s • • •
Furthermore the Employer shall not worsen or discontinue any basic cost item condi-
tion of employment uniformly made applicable to all employees in order to defeat
the purpose of this Agreement.
102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Parties." With respect to pay, he proposed the following : ( 1) commission rate
employees "shall receive fifty percent ... of the customer labor charge and such
employees shall be guaranteed weekly earnings of $50.00. . . . The internal labor
rate for commission or flat rate employees will be forty per cent of the regular
customer labor charge." (Italics supplied .) It is significant that whereas
in the proposal of March 13 , MacAloon offered these employees guaranteed
monthly earnings of $250, on April 4 this was reduced to guaranteed weekly
earnings of $ 50. Moreover , the 50 -percent rate which the March proposal
applied to both customer and house charges was now reduced to 40 percent on
the latter . The offer as to the parts department employees and service salesmen
remained the same as in the earlier proposal of March 13. There was no
rate at all for utility employees nor was there any mention of a minimum wage.
Mr. MacAloon had various explanations for this latter omission . Although the
proposal was captioned as a "Final Draft" he testified that it was intended to
cover only what had been tentatively agreed upon and that utility employees
were not mentioned because there had been no agreement as to them. Later
he testified that the dollar minimum was left out in error. At another point he
testified that no rates were proposed for these employees because he was
unable to classify them. The failure to include a proposed rate for the utility
employees or to mention a minimum wage was of particular concern to the
Unions because MacAloon's "Final Draft" also proposed a reduction of the
workweek to 44 hours . With no corresponding pay increase this would have
meant a substantial reduction in take -home pay for the hourly paid employees.
MacAloon's proposal of April 4 was for all the Fargo -Moorhead dealers which
he represented. Moreover , its language made it plain that insofar as he was
concerned not only this but all other proposals had been made solely on that
basis."
On April 10 the Unions filed notice with the Federal Mediation and Conciliation
Service of a dispute between them and Wallwork. As a result of this step,
Mr. George Wilson of the FMCS met with the parties on April 18. In addition
to Mr. MacAloon, Mr. George Dixon, manager of the Automobile Association
of North Dakota, appeared on behalf of the dealers. It was uncontradicted that
at the outset of this meeting the Unions made it clear to all present that they
were negotiating solely for the employees in the unit at Wallwork Fargo. This
was the testimony of not only the union witnesses but of Mr. MacAloon as well.
According to the latter , he told the union representatives he would proceed on
any basis they desired and that they then discussed the various proposals at length.
Mr. MacAloon testified that at this meeting the general terms of a contract,
including vacations and holiday pay, were agreed upon and that at the con-
clusion of the conference there remained only three issues in dispute, viz , ( 1) pay
rates for the parts department; (2) rates for the utility or miscellaneous employees;
and (3 ) a guarantee for the commission employees . Thereafter , on April 26,
Mr. MacAloon submitted a letter to Mertens and Hogan which was entitled
"Supplement and/or Amendment to Employers ' Labor Contract Proposal of
April 4, 1957." At the hearing in the instant case MacAloon testified "after that
meeting I sent this to the unions to clarify again the position of the employers
with reference to specific issues or questions raised by the union ." ( Emphasis
supplied. ) He stated that he referred to "employers " in the plural from "force
of habit" on his part.12 Whereas the proposal of April 4 had no provision for
employees in the utility or miscellaneous classification , in his letter of April 26,
MacAloon stated "the employers are agreeable to spelling out that employees
in the category of runners, washers, greasers , wrecker drivers , used car lot men,
polishers , tiremen, and janitors shall not receive less than the hourly rate now
paid them but the contract minimum must stay at $1.00 per hour." ( Emphasis
supplied. ) On March 13 , MacAloon had offered the commission employees
guaranteed monthly earnings of $250, on April 4 he had reduced this offer to
guaranteed weekly earnings of $50. In his letter of April 26 he stated: "The
employers are agreeable to changing the $50.00 per week guarantee as contained
"An opening paragraph contained thefollowing language:
Like all other proposals this is submitted in behalf of all businesses identified on
the signatory line hereto . The only exception will be in the instance of Auto Parts,
Inc., and that exception will govern wage rates and job classifications only inasmuch
as it is a different type of business from the others.
12 The quotation is from his testimony.
W. W. WALLWORK FARGO, INC. 103
in Article XIX of the contract proposal to a $250.00 per month guarantee. They
are not agreeable to the Union 's proposal ." 13 MacAloon concluded his letter
with the following statement:
All of the dealers concurred in this position as outlined in the foregoing.
As a matter of fact it is reiteration of their position as given to the unions
several times in past meetings . If this is not satisfactory to the union, I have
no further suggestions or ideas as to how an agreement can be executed.
[Emphasis supplied.]
On May 15, the parties met again . 14 Again the Unions insisted that the
negotiations be confined to Wallwork . Mertens testified that the Unions proposed
a substantial wage raise for the utility men with the lowest rate $ 1 for runners
and the highest $ 1.50 for wrecker drivers. Mertens could recall no counter-
proposal to this offer . For the parts men, the Union proposed a starting rate
$1.45 per hour , progressing to $1.65 per after 1 year. MacAloon proposed that
the parts men start at $ 1 and progress to $1.40 after 2 years. The Unions'
proposals were predicated on a 44-hour week with overtime after 40. Mertens
further testified that as to commission employees MacAloon proposed a guarantee
of $250 a month for employees in their first 90 days of service and $275 per
month thereafter . Mr. Hogan also testified that at this meeting Mr . MacAloon
offered the hourly rate employees a 5-cent per hour increase . In this, however,
Hogan was contradicted by MacAloon who testified that he had at the early
meetings made an "exceedingly indefinite " 15 offer of a 5-cent increase but when
the Unions scorned his proposal he had never renewed it thereafter . MacAloon
was corroborated by Mertens who conceded that the former had never made a
firm offer of a 5-cent raise . By itself Hogan 's testimony on this issue was not
persuasive . Since it lacked corroboration even from his bargaining associate and
was denied by Mr. MacAloon, I conclude and find that the latter made no such
offer at this meeting.
On May 22 MacAloon addressed another letter to the Unions . It was entitled
"Verification of Oral Interpretation of Employers ' Last Contract Proposal." Again,
as he had with respect to all correspondence , MacAloon made it clear that he
was speaking not for Wallwork alone but for all of the auto dealers . The most
controversial aspect of this letter was on commission employees and read as
follows:
Commission or flat rate employees who have been employed ninety days or
longer shall be given a guarantee draw of $275 . 00 per month. Those who
have been employed less than ninety days to receive $250.00 per month as a
guarantee . This is an alternate to the weekly draw previously proposed by
the employers . The union may take either one or othe other. [Emphasis
supplied.]
In another paragraph it was further provided that holidays for commission em-
ployees would be paid for on the basis of their "guaranteed draw. " This was
the first time the word "draw " had appeared in the written proposals which
MacAloon submitted . In all prior memoranda the amount guaranteed the com-
mission employees was described as "guaranteed weekly earnings of $50.00," as
in the proposal of April 4, or "guaranteed monthly earnings" of $250, as in the
earlier proposal of March 13. Use of the word "draw" in the letter of May 22
aroused much consternation among the Unions. Mertens testified that a protest
to MacAloon about the use of this term was unavailing . At the hearing MacAltoon
endeavored to establish that the words "guarantee" and "draw" were synonymous
and that his use of the latter on May 22 did not change the terms of the
Respondent 's earlier proposals . However, he was unable to point to any other
written proposals submitted prior to that date when he had used the word and
his testimony that the words "guarantee" and "draw" had been used inter-
changeably at earlier bargaining conferences was most unpersuasive . He defined
a "draw" as a "draw of money as against something else . . . for a stipulated
"The Unions had asked for a $75 -per-week guarantee . Wallwork employees in this
category had had a $50-week guarantee since 1952.
"Howard Fortier , business agent for a Teamsters ' local in Minneapolis , participated in
this meeting along with the regular members of the union contingent.
'- The quotation is from MacAloon ' s testimony.
104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
period of time." 16 Upon cross -examination he conceded that neither a "guaran-
teed draw" was the same as a guaranteed wage. Very plainly the "guaranteed
draw" that was offered on May 22 was not the same as the guaranteed weekly
and monthly earnings which MacAloon had proposed at the earlier conferences.
On July 11 the parties met again . 17 At this conference Hogan credibly testified
that he told MacAloon that the men had voted to accept the 50-percent rate
for commission employees and the $50 minimum weekly guarantee contingent on
a satisfactory compromise as to the rate for the hourly paid employees . At either
this meeting or the one held in June, neither MacAloon nor Hogan could recall
which, the former proposed that the Unions accept what had been agreed upon
up to that time in an interim contract . Although MacAloon testified that he
offered to let the Unions determine the duration of such an agreement , he testi-
fied later that the proposal was not agreed upon because the Unions insisted
upon a contract that would extend to - June 1, 1958 . There were no other
meetings before the strike. There were, however , several telephone conversations
between the principals . According to MacAloon , on July 19 Hogan called him
and suggested that they might settle their differences by leaving out the utility
or miscellaneous classifications provided MacAloon would guarantee that their
current rates would not be reduced. According to MacAloon he agreed to make
such a guarantee . On the other hand, MacAloon testified that on July 23, Hogan
called to tell him that the Unions wanted a 5 -cent increase for the miscellaneous
classifications on the basis of their current hours rather than a shorter workweek.
On August 7 Hogan called MacAloon again to state that there would be a
strike if no agreement was reached on minimum rates. On the following day, in
another telephone conversation , Hogan told MacAloon that unless the afore-
mentioned employees received a 5-cent raise on the basis of their current work-
hour schedule there would be a strike against Wallwork. In reply , MacAloon
stated that no such offer had been made earlier and that it would not be forth-
coming then.18
The strike at Wallwork began on August 20 . According to the testimony of
Mr. MacAloon , at that time everything had been agreed upon except wage rates
for the miscellaneous classifications of employees . However, after the initiation
of the strike , no bargaining conferences were held. It happened that during the
fall of 1958, MacAloon and Mertens had several meetings with respect to
another client whom MacAloon was representing in the Fargo area.19 At one
of these conferences Mertens asked that MacAloon take back to the employer
a new proposal on wages which he then gave to him. MacAloon subsequently
reported to Mertens that the employer 's position was unchanged . It was Mac-
Aloon's further testimony that after the strike began he did not change any of his
earlier offers . On or about November 8, 1958, Wallwork filed a decertification
petition with the Board . MacAloon stated that since that time he has refused
to meet officially with the union representatives.
On about September 13 Wallwork , in a letter to all of its striking employees
solicited their return to work. This read, in relevant part , as follows:
We are now in a position to use more employees and intend , effective
September 18, 1957, to start hiring additional employees on a permanent
basis to replace employees on strike.
We would prefer to use employees who are now out on strike but who are
willing to return actively to work, as a matter of fairness to them. We are,
therefore , giving this notice to all employees on strike prior to hiring
additional employees as permanent replacements . Our operations will not
require the services of all striking employees , so that employees who are
19 Mertens defined a weekly draw as an amount the employees "can draw against and
make up next week. If you had a fifty dollar draw [ and earned only $25], you can have
the extra twenty-five dollars , but you have to make it up the next week of subsequent
week ' s time. While a guarantee , the Company would give you the twenty-five and you
never would have to make it up again."
14 Another meeting was held on June 10 but none of the witnesses could recall any of
the discussion or anything which transpired.
18 The foregoing findings as to the telephone conversations of Hogan and MacAloon are
based on the testimony of the latter . Most of it was undenied except that Hogan testified
that he did not recall a conversation with MacAloon on July 19.
19 This was the American Linen Supply Company.
W. W. WALLWORK FARGO, INC. 105
reporting prior to that date will be accepted in the order in which they
return, that is, first-come-first served provided, of course, that they are
qualified for the work available.
Shortly after the circulation of this letter a number of the strikers returned to
work.
On September 20 Wallwork initiated a series of wage increases to non-
strikers and returned strikers. The Respondent likewise hired a number of new
employees at rates higher than those previously paid for similarly classified jobs
before the strike and above the offers which it had made during the course of
negotiations. The Respondent conceded that these raises and new rates were
established unilaterally and without notification to, or consultation with, the Unions.
On September 20, increases of 10 cents per hour were given to 4 hourly paid
nonstrikers, Carmen Christianson, a car jockey, William Wright, a janitor, and
Julius Peterson and Lewis Prellwitz, service salesmen. On the same day a similar
raise was given to three returned strikers. These were John Dittel, tire repairman,
who returned to work on August 26, Elmer Kurtz, parts counterman, and James
Moore, car jockey. The latter two had returned to work on September 18. Three
employees, newly hired in August through October, were employed at rates above
those previously paid to employees whom they replaced. Thus, Clifford Erbele,
was hired on September 20 as radio repairman at a 60-percent commission, whereas
Walter Matz, his predecessor, who had been at Wallwork for over 8 years, was
paid a 50-percent commission. Another, Richard Lakeman, was hired on October
31 as a parts truckdriver at $1.15 per hour, while his predecessor, Ernest Simonsen,
an employee of approximately 6 years standing, had been paid $1.10. The third
new employee, Jerome Rage, was hired on August 23 for parts counter work at
$1.25. Walter Navratil, his predecessor had been paid $1.15.
The Respondent contends that these higher wage rates paid the foregoing named
nonstrikers, returned strikers, and new hires were not true increases in that the
duties of the aforesaid individuals differed substantially from those which they
had prior to the strike or from those of their predecessors. Hence, in an able
exposition of this theory in its brief, counsel for the Respondent argues that the
increases in question were new and temporary rates for emergency jobs made
necessary by the strike and the subsequent conduct of the Unions. From this
point of departure the Respondent contends that, not being permanent, these wage
adjustments were not within the area of collective bargaining. To the evidence as
to the issue here involved we will now turn.
Peterson and Prellwitz, as service salesmen prior to September 20, had received
$1.40 and $1.25 per hour, respectively, plus a commission on particular service
items which they sold to customers in the course of their work. Respondent
contends that the 10-cent increase which they received on September 20 only
partially compensated them for the loss of commissions which these employees
incurred after the strike began. This conclusion, however, is not immediately
apparent from an examination of the earning records of these employees. Thus,
in the 6-week period prior to the strike, Peterson received $581.77 in wages and
$70.53 in commissions. In the same period after the strike he received $594.32
in wages and $68.46 in commissions. Prellwitz received $498.60 in wages and
$70.53 in commissions. In the same length of time immediately after the strike
began he received $498.69 in wages and $68.46 in commissions. It was further
contended that after the strike began these individuals also had to perform addi-
tional work since the shortage of mechanics compelled them to spend about
an hour and a half per day making minor mechanical adjustments for customers.
The testimony, however, indicated that none of this additional work was markedly
different from the work of an alert service salesman, even under normal
circumstances.
Christianson, a nonstriker, and Moore, a striker who returned to work on
September 18, were both car jockeys. The Respondent contends that a 10-cent
per hour increase which they received on September 20 was justified in that after
the strike these men had to drive through picket lines to and from the used
car lot and in picking up new cars at secret rendezvous away from the plant.
Dittel, a striker who returned to work on August 26, was the shop tire
repairman. Since the strike caused a decline in that type of repair work he
was given a variety of miscellaneous jobs in his free time such as occasionally
accompanying the pickup truckdriver to points away from the premises to obtain
spare parts. He, too, received a 10-cent raise on September 20.
106 DECISIONS , OF NATIONAL LABOR RELATIONS BOARD
Erbele was newly hired on September 20 as a radio repairman at a 60-percent
commission . His predecessor was Walter Matz, then on strike , who had been
employed since 1949. At the time of the strike the latter was receiving a 50-
percent commission . Matz was admittedly better qualified than Erbele in that
he could repair not only radios but speedometers , clocks , and related accessories.
The Respondent seeks to justify the higher rate for Erbele on the ground that
since he was unqualified to perform any job except the repair of radios he was
idle for longer periods of time and had to have a higher commission to compen-
sate for the smaller volume of work. The 60-percent commission paid Erbele
was in contrast with the top offer of 50 percent for the commission employees
which Respondent made during the course of the bargaining conferences.
Kurtz, another striker who returned to work on September 18, was a parts
counterman . Two days after he returned , he received a 10-cent increase. The
Respondent concedes that the basic character of his duties did not change but
contends that his responsibilities were heavier after his return because he did not
have the assistance of Harold Pepmeier , a striker and an experienced parts man.
The Respondent further contends that when originally hired Kurtz had been
promised a rate increase . Kurtz , however , had been employed in August 1956
and his wage rate had remained constant until 2 days after he quit the ranks
of the strikers.
Rage, a new hire who was employed on August 23 to work in the parts
department , was paid $1 . 25 an hour . This was 10 cents an hour more than the rate
for William Navratil , the striker whom Rage replaced . Here , too the principal
distinction which the Respondent makes between the job of the striker and
that of the replacement is that the latter had to help haul parts from rendezvous
points which the strike necessitated.
Lakeman, a new hire, employed on October 31 as parts truckdriver , was paid 5
cents per hour more than Ernest Simonsen who had held the job for 5 years before
the strike . At the hearing Respondent contended that this was because Lakeman
had more hauling to do than Simonsen. The record , however, does not support
this argument . By contrast , Curtis Natvig , a part-time student hired in August
1957, shortly before the strike at $ 1.15 per hour to help in the parts department,
run errands and pick up and deliver merchandise , was given no increase.
Wright , a nonstriker was plant janitor at $1 an hour. Normally he was on
duty until midnight . After the strike the Company hired a watchman to police
the plant during the night . There was uncontradicted evidence that after the
watchman 's services were discontinued , Wright assumed those duties in addition
to his janitorial functions . On September 20, Wright, along with the others
mentioned above, received a 10-cent increase . The Respondent contends that
because of his additional duties Wright should be classified as a watchman and,
that , as a result , he was no longer in the bargaining unit during the period in
question . Although Wright performed certain guard functions after the strike
began, there is no evidence that he spent over 50 percent of his time doing so.
That being the case , it is my conclusion , and I find, that he remained primarily
a janitor (The McKay Machine Company , 93 NLRB 822, 825; National Cash
Register Company, 95 NLRB 27, 33 ; Wiley Mfg ., Inc., 92 NLRB 40, 41) and
that he did not become a plant protection employee who should be excluded from
the bargaining unit. (Gates Engineering Company , 115 NLRB 1528 , 1532; Drexel
Furniture Company, 116 NLRB 1434, 1437 ). As to the other employees men-
tioned above it is my further conclusion that their duties were not so changed or
enlarged as to justify a finding that after the strike their specific jobs were new
and different or that they were substantially altered.
The case of Noel Mjoness and Robert Suko, two other new hires should be
mentioned . Mjoness was employed in the parts department on October 1, 1957,
at $1.20 to replace Harold Pepmeier . The latter was a striker who had been on
that job for over 6 years and at the time of the strike was getting $1 . 35 per hour.zo
Suko was hired on September 16, for work in the same department at $1.20 to
replace Lovell Larson. The latter was a striker who had been an employee of
the parts department from 1952 and at the time of the strike was being paid
$1.35 per hour . MacAloon's last offer with respect to the parts department em-
ployees was a starting rate of $1. Notwithstanding this position during the course
of the negotiations and the fact that Mjoness had no prior experience in auto-
20 The transcript at page 181 , in reporting a stipulation of the parties , gives $1.55 as
his rate. This is in conflict with the later testimony of both C. O . Paulsruud , manager of
the parts department , and of Pepmeier himself. For that reason , I 'have concluded that
the $1 .55 figure is the result of a stenographic error and that the correct rate was $1.35.
W. W. WALLWORK FARGO, INC. 107
motive parts work and that Suko was lacking in parts department experience of
any kind, after the strike began the Respondent hired both at a starting rate of
$1.20 per hour.
All of the employees given wage increases were within the bargaining unit.
Approximately one-third of the 45 employees in this unit were hourly paid. It is
significant that all hourly paid employees who did not go on strike , with one
exception , 21 were given a 10-cent per hour increase , and, further , that a similar
raise was granted all of the hourly paid strikers , again with one exception,22 who
quit the strike and returned to work. It is undenied that not only did the
Respondent fail to consult with the Unions relative to the foregoing increases,
in January 1958 it rejected an offer of the Unions to call off the strike if the
strikers would be returned to work at the wage rates then being paid the non-
strikers , returned strikers , and new hires . The Respondent was under a statutory
duty to consult with and notify the duly designated bargaining agent as to the
aforesaid increases . N.L.R.B. v. Crompton -Highland Mills , Inc., 337 U.S. 217;
Wheatland Electric Cooperative , Inc. v. N.L.R.B ., 208 F. 2d 878 , 883 (C.A. 10).
This it did not do and its failure to adhere to the statutory standard was a
violation of Section 8(a)(5) of the Act. In its brief, Respondent candidly states
that the wage increases were made without advice of counsel or knowledge of the
labor law involved , and that, in addition , they were rescinded on February 13,
1958, when the Respondent was apprised of the fact that a complaint was about
to be issued in Case No. 18-CA-862. For that reason, the Respondent now
urges that it has purged itself of any taint that may have arisen from the original
unilateral grant of the increases . This argument might have merit if con-
sidered only by itself. It may not, however , be viewed in isolation and without
reference to the Respondent 's entire course of conduct.
The General Counsel contends , and the Respondent denies, that from the outset
of the bargaining conferences the Unions sought to negotiate only for Wallwork
and that MacAloon persisted in negotiating on behalf of all the auto dealers
simultaneously.
It is clear that the Unions initially requested bargaining conferences only with
Wallwork and Auto Parts, and that the only written demand for such meetings
was made on Wallwork on November 26, 1956 . Thereafter , the union committee
which met with MacAloon had two rank -and-file members, both of whom were
Wallwork employees. Throughout the subsequent conferences the employees of
no other auto dealer served on this committee . The union representatives
testified , credibly, that at the outset of the meetings they were negotiating only
for the employees of Wallwork . It is equally manifest , however, that they
hoped to obtain a contract from Wallwork which would serve as the standard for
all of the Fargo -Moorhead dealers . For this reason , in the early meetings it is
plain that much time was spent discussing the problems of all these employers.
There came a time, however , when the Unions reiterated their demand that the
negotiations be confined to Wallwork . Thus, even MacAloon conceded that
the notice of dispute filed on April 10, 1957 , with the Federal Mediation and
Conciliation Service involved only Wallwork and that at the conference of April
18, arranged by the conciliator , he agreed to limit the negotiations to Wallwork.
Despite this fact, his subsequent written proposals and every amendment to his
earlier proposals were made in the name of all the eight different auto dealers
and in no way confined to Wallwork . In his written submission of April 26 he
stated that the employers would agree only to three amendments to their contract
proposal of April 4. This latter document was entitled "Complete and Final
Draft of Labor Contract Proposal for Consideration of Parties ." In the opening
paragraph of this instrument , MacAloon wrote "Like all other proposals this is
submitted in behalf of all businesses identified on the signatory line hereto." The
signature element listed the eight auto dealers whom MacAloon represented.
Finally, on May 22, in the last written submission which MacAloon made, and
which was captioned "Verification of Oral Interpretation of Employers ' Last Con-
tract Proposal" ( emphasis supplied ) he again made it obvious that he was con-
tinuing to negotiate for all of the dealers. The Unions had not been certified
to represent the employees in a multiple -employer unit . They had been certified
21 This was Vernon Beahl , who was classified as a "new car get-ready man." As such,
Beahl received $1.50 per hour , a rate that was substantially above the normal scale at
the Wallwork garage.
22 This was Curtis Natvig, a student who worked at Wallwork 's only half days. He had
been hired less than 3 weeks before the strike and was a new and inexperienced employee
at the time the strike began.
108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as to individual units at the eight different automotive establishments and having
requested negotiations only as to Wallwork, MacAloon was not free to expand the
area of bargaining so that the negotiations involved the other seven dealers as
well as Wallwork. While there may have been a mutual desire on both sides
to discuss the whole field in the early conferences, there was no basis for Mac-
Aloon's professed ignorance of the Unions' desire to negotiate only as to
Wallwork after the intervention of the FMCS on April 10. Consequently, on the
facts outlined above, it is my conclusion that subsequent to the latter date Mac-
Aloon persisted in negotiating for all the dealers rather than for Wallwork alone.
For this reason, I find that he was insisting on bargaining for a unit different
from the one which had been certified, a fact which of itself is an index of
bad faith.23 International Longshoremen's Association, etc. (New York Shipping
Association, Inc.), 118 NLRB 1481, 1483.
The General Counsel also alleged that during the course of the negotiations the
Respondent withdrew offers previously made, for the purpose of preventing the
consummation of a collective-bargaining agreement. As found above, on March
13, MacAloon offered a 50-percent commission to the commission paid employees
on house or internal work. On April 4, however, this commission was reduced to
40 percent. Likewise, on the earlier date the commission-paid employees were
offered "guaranteed monthly earnings of Two Hundred Fifty Dollars," and on
the latter date this was cut to "guaranteed weekly earnings of $50.00."24 This
difference might be explained on the ground that fringe benefits in the latter
proposal compensated for the apparent difference in the total of the guaran-
teed monthly earnings. Such an explanation, however, is not available to
reconcile these earlier offers of guaranteed weekly and monthly earnings with
the offer on May 22 of a guaranteed draw. The latter represented a very sub-
stantial change of position, for a "draw" in wage parlance is far different from
"guaranteed earnings." Approximately two-thirds of Wallwork's employees were
paid on a commission basis and vitally interested in the manner of their com-
pensation. Mr. MacAloon, as an experienced consultant in the field of collective-
bargaining, well knew that the union representatives would object to this inter-
change and that such a shift would prolong the negotiations. The test of good
faith in collective bargaining is whether a party to negotiations conducted himself
during the entire negotiations so as to defeat rather than to promote an agreement.
N.L.R.B. v. Reed & Prince Manufacturing Co., 205 F. 2d 131 (C.A. 1), cert.
denied 346 U.S. 887. It is my conclusion that on the foregoing findings the
Respondent has not met that test here.
The General Counsel also alleged that during the course of the negotiations the
Respondent first offered a 5-cent increase to the hourly paid employees and later
withdrew it. I have already found that the record does not support such an
allegation. Actually, as Mr. MacAloon testified, any such offer which he made:
had been "exceedingly indefinite," and the fact is that all references which.
MacAloon made to a wage increase for the hourly paid employees was coupled.
with a reduction in their workweek from 49 hours to 44 or 45. In contrast
with this position of the Respondent during the negotiations, after the strike
began it unilaterally granted a 10-cent increase to a substantial bloc of its hourly
paid employees and without effecting any reduction in the workweek. Moreover,
in January 1958, when the Unions offered to settle the strike on the basis of the
higher rates then being paid to the nonstrikers, returned strikers, and new hires,
the Respondent declined the offer.
In the light of the above facts, I conclude that the Respondent refused to bar-
gain in good faith with the Unions, as demonstrated by its insistence on April 4,
1957, and thereafter, in submitting proposals and negotiating only on behalf of
all the auto dealers and thus bargaining for a unit larger than the one certified,
by its withdrawal of offers made as to the commission-paid employees on that
date and thereafter, and by its unilateral grant of wage increases after the strike
began. I further find, on this evidence, that in so doing the Respondent mani-
fested a fixed determination never to arrive at a final agreement in its negotiations
with the Unions. It is my conclusion, on the findings set forth above, that the
21 Conversely, I find no support in the record for the contention of the Respondent
Company that the Unions had insisted that the negotiations embrace a unit larger than
the one which had been certified.
2s The quotations are from the contract proposals.
W. W. WALLWORK FARGO, INC. 109
Respondent, by its conduct on and after April 4, 1957, violated Section 8(a) (5)
and (1) of the Act.25
The strike did not extinguish the Respondent's duty to bargain with the Unions.
N.L.R.B. v. Jeffery-DeWitt Insulator Co., 91 F. 2d 134, 139-140 (C.A. 4), cert.
denied, 302 U.S. 731; N.L.R.B. v. Mackay Radio & Telegraph Co.; 304 U.S. 333,
344-346. Yet, it was conceded that in November 1957, upon the filing of a
decertification petition, MacAloon declined to have any further official contact
with them. This was on the asserted ground that the Unions no longer represented
a majority of the employees. That position was not well founded for on the record
herein any loss of majority among the Wallwork employees may be correctly
attributed to the Respondent's unfair labor practices. It is well settled that
unilateral wage increases accorded to nonstrikers, returned strikers, and the hiring
of new employees at rates above those proposed during negotiations constitutes
disparagement of the collective-bargaining process and of the employees' bar-
gaining representative. This established principle in the law is borne out by the
record here 26 The antagonism and bitterness engendered by such disparate treat-
ment of strikers and their bargaining agent always tends to prolong a strike.
When such conduct by an employer leads to a turnover of personnel, the
employer cannot profit by his wrongdoing and urge that the Unions' subsequent
loss of a majority frees him of any obligation to bargain. Franks Bros. Company
v. N.L.R.B., 321 U.S. 702; N.L.R.B. v. Mexia Textile Mills, Inc., 339 U.S. 563,
565-568. It is, therefore, my conclusion that the Respondent's unilateral pay
action tended to extend the strike, that any loss of members suffered by the
Unions among the Wallwork personnel must be attributed to that Company's
unfair labor practices and that the Respondent remains obligated to bargain in
good faith with the duly designated exclusive bargaining representative of its
employees. Moreover, since the Respondent has admittedly refused to meet with
the Unions since a decertification petition was filed in November 1957, I find
that this conduct constituted a further and continuing violation of Section 8(a)(5)
and (1) of the Act.
C. The case against the Unions (No. 18-CC-48)
At the outset of the strike the Teamsters and the Machinists pledged each other
their mutual support and cooperated fully in maintaining a picket line at the Wall-
work premises. The Respondent Teamsters has a contract with many, if not all,
of the carriers with whom Wallwork does business. This agreement has a "pro-
tection of rights" or "hot-cargo" clause familiar to such contracts. On November
26, 1957, Wallwork filed the charge in the above-numbered case wherein it
"N The General Counsel relies on one other incident which should be mentioned : Bert
Gendreau testified that while he was on the picket line shortly after the strike began,
one Tony Wolf engaged him in conversation and declared to him that Wallwork would
never sign a contract with the Unions. This testimony was undenied. The General
Counsel attributes this remark to the Respondent Company on the ground that Wolf was
its acting service manager at the time. The record, however, does not support this
assertion. Gendreau was the only witness who gave any affirmative evidence as to Wolf's
duties. He testified that prior to the strike Wolf had supervisory status and was at
times the acting service manager. Gendreau conceded, however, that he had no knowledge
as to Wolf's duties or authority after the strike began. James C. Blinkenberg, who was
hired as service manager on September 19, 1957, testified that prior to the time he was
employed, Wolf "might have been acting service manager." There is no other evidence in
the record as to Wolf's position or function at the time in question. As a result, it is
my conclusion that the General Counsel failed to establish that Wolf had a supervisory
status at the time of his conversation with Gendreau. Accordingly, no reliance has been
placed upon this incident in reaching the conclusions set out above.
=6 Thus, it was undenied that in October, during the course of the strike, Service
Manager James C. Blinkenberg approached Harold Pepmeier on the picket line and asked
him if he was interested in coming back to work. Pepmeier answered in the negative and
stated that he did not think it was fair that Elmer Kurtz 'had been hired at 5 cents an
hour more than he was getting. Blinkenberg stated that he agreed with him and asked
if Pepmeier would come back to work in the event he (Blinkenberg) secured a raise for
him. In Pepmeier's case the solicitation by the service manager was unsuccessful, but
the resentment which Respondent 's unilateral pay action had engendered is manifest from
this incident alone.
110 DECISIONS, OF NATIONAL LABOR RELATIONS BOARD
alleged that the Unions had violated Section 8(b) (4) (A) of the Act. The inci-
dents on which the General Counsel offered evidence in support of the complaint
in Case No. 18-CC-48 will now be considered.
1. The first incident involving the Hart Motor Express
On about August 22, the Fargo terminal of the Hart Motor Express, Inc.,
received a pool shipment of Ford merchandise consigned to several dealers in the
area. Some of it was for Wallwork Fargo and some for Wallwork Moorhead.27
Edmund D. Rydeen, district manager for Hart, testified that because of the picket
line at the former establishment he contacted the Minneapolis office of the Ford
Company to ask what disposition should be made of the shipment consigned to
Wallwork Fargo. According to Rydeen, upon instructions from that office, he
reconsigned the shipment to Wallwork Moorhead. On August 23, Bill A. Will-
mann, terminal manager, ordered two Hart employees, Charles Munkirs, and
one Bjorland to deliver the shipment to Wallwork Moorhead. Rydeen testified
that prior to their departure he had changed the freight bill to clearly reflect the
reconsignment of the merchandise from Fargo to Moorhead. Munkirs testified,
however, that the bill had not been changed and that it still indicated that the
freight was destined for Wallwork Fargo. In any event, Munkirs was concerned
about whether he should make the delivery. He discussed the matter with Bjor-
land and the two agreed that they should seek advice from the Union. Accord-
ingly, Munkirs telephoned the Teamsters' hall, and talked with Kenneth C. Spry,
president and business agent for Local 116. Munkirs testified "I called to find
out if we was able to deliver Fargo's load to the Moorhead terminal, if I was
violalting a picket because I don't want to cross a picket line; and according to
the way he put it to me, . I don't deliver it because I am crossing a picket
line." 28 According to Spry, he told Munkirs that "under the contract it was his
right to refuse. to deliver that freight." Upon concluding his discussion with the
president of the local, Munkirs relayed a summary of it to Bjorland, his fellow
employee. Munkirs testified that he "Just told him the part of the conversation
with Kenny [Spry]-go back . And not make the delivery." Thereafter, Mun-
kirs telephoned the Hart terminal and told Rydeen that he and Bjorland would
not deliver the shipment to Moorhead. Rydeen then ordered them to either
complete the delivery or return to the terminal and quit. Munkirs and Bjorland
elected to follow the latter course 29
2. The Associated Transport incident
In October 1957, Melvin C. Kistner, a leased operator for Associated Transport
in Kansas City, Missouri, arrived in Fargo with an automobile trailer loaded with
trucks, one of them consigned to Wallwork and another to an establishment known
as the Smith Body Works. Kistner unloaded the truck for Smith's first and then
proceeded toward the Wallwork garage. When within approximately a block of
the latter premises he was stopped by Bert Gendreau, a Wallwork mechanic who
was then on strike. Gendreau, a member of the Machinists, had been active on
the picket line. He testified that on this occasion he was on his way home after
visiting the Teamsters' hall. Upon first accosting Kistner, Gendreau told him
that Wallwork was on strike and that he should not unload there. Kistner turned
around at this point and returned to Smith's to obtain certain receipts in connec-
tion with the shipment. Gendreau followed the Associated driver and when the
latter arrived at Smith's Gendreau called Mertens, business agent for Local 116.
Shortly thereafter Mertens arrived on the scene and engaged Kistner in a con-
versation. Mertens did not testify as to this incident. Gendreau averred that
although he was present he was unable to hear all of the conversation. Accord-
ing to Kistner, however, at this point, Gendreau and two companions came up
to him, told him that they were union men, that they were on strike and that
Kistner could not unload the Wallwork shipment. Kistner testified that he ex-
plained to the men that he would then have to call his supervisor. According
to Gendreau, Kistner also told them that he would have to call his local union.
In any event, Kistner then left Smith's and drove to a truck stop in West Fargo
from which point he telephoned his Company for further instructions.
'• The -record. is silent as- to the corporate relationship,, if any,. between these. two
companies.
'There was no picket line at Wallwork Moorhead.
29They were rehired the same day, however , when Local 116 protested their discharge.
W. W. WALLWORK FARGO, INC. 111
In the meantime Gendreau had followed the truck and, according to his own
testimony, from this location he again telephoned Mertens to report the where-
abouts of the Associated truck. This time Mertens instructed Gendreau to
examine the union book of the Associated driver, obtain his name and the number
of his local in the Teamsters' union and report back. Gendreau obtained the
foregoing information from Kistner and relayed it to Mertens.
Kistner was not followed further. Before leaving the truck stop he telephoned
Wallwork and requested instructions from James C. Blinkenberg, the service
manager. The latter advised him to unload the consignment at a small town to
the north of Fargo. Kistner did so and returned to his terminal in Missouri.
He conceded that no one from his local union ever talked to him about the
matter. He also testified, however, that his terminal manager subsequently told him
that Associated would make no more shipments to Wallwork.
3. The second incident involving the Hart Motor Express
On about January 22, 1958, Clifford O. Paulsruud, manager of the Wallwork
parts department, telephone Mr. Rydeen at the Hart terminal to inquire as to
whether a small shipment of floor mats had arrived. Rydeen answered in the
affirmative, but volunteered that the Hart firm would not deliver the merchandise
to Wallwork's garage. Prior to the strike it had not been unusual for Wallwork
employees to go to the Hart dock to pick up a small order that was urgently
needed. On this occasion Paulsruud asked if he could follow that same pro-
cedure. Rydeen assured him that he was free to do so but that whether Hart could
give Paulsruud the shipment would depend on whatever circumstances arose upon
his arrival. When the latter reached the Hart terminal Rydeen called Marvin
H. Schimelphenig, the only man on the dock at the time and asked him if he
would give the Wallwork shipment to Paulsruud. This employee at first responded
"Well, it is o. k. . . . I will give it to him." Rydeen then pointed out to Schimel-
phenig that he was not ordering or requesting him to turn the material over and
that the decision would be left up to the employee completely. The latter then
said "Well I will call the union and ask them if it is o. k." The employee there-
upon in the presence of Rydeen and Paulsruud, put in a telephone call to the
union office. When he concluded the conversation he turned to those present and
announced "Mertens says, send it back to Minneapolis." It was undenied that
Schimelphenig talked with Business Agent Mertens on this occasion. Moreover,
the testimony of the employee completely corroborates the testimony of Rydeen
and Paulsruud as outlined above. In his testimony as to this conversation, Schi-
melphenig added that Mertens told him "not to give it to them because they
were not in the business of hauling freight, that was our [the union employees']
work." Mertens was not called to testify as to this conversation. After Schimel-
phenig's conversation with the business agent, Paulsruud departed and the Wallwork
shipment of floor mats remained at the Hart terminal.
The Respondent Teamsters contends that Schimelphenig is a supervisor within
the meaning of the Act and that, for this reason, no violation could have occurred
here. It is undisputed that Schimelphenig is classified as a lead man, that he
works with eight other employees on the dock, and that he gets 10 cents per hour
more than the regular dock personnel. Rydeen testified that Schimelphenig re-
ceives the higher rate for carrying out certain specified duties. According to Bill
Willman, the terminal manager, when he is absent for brief periods, Schimelphenig
"sees that things are kept going while I am not around," and that, in those in-
stances, the latter is responsible for the movement of freight on the dock. How-
ever, in the event any of the employees fail to carry out Willmann's orders,
Schimelphenig merely reports the matter to Willmann without making any recom-
mendations. It is undenied that Schimelphenig has no authority to hire, fire,
promote, discipline, or reward other employees, nor does he have the authority
to effectively recommend such action. Moreover, he is covered by the Teamsters'
contract with Hart, along with the rest of the rank-and-file men with whom he
works. Upon the foregoing facts, it is my conclusion and I find that Schimel-
phenig is an employee and not a supervisor within the meaning of the Act.
N.L.R.B. v. Osbrink Manufacturing Company, 218 F. 2d 341, 344 (C.A. 9);
N.L.R.B. v. North Caroline Granite Corporation, 201 F. 2d 469, 471 (C.A. 4);
N.L.R.B. v. Beaver Meadow Creamery Inc., 215 F. 2d 247, 251 (C.A. 3); Stokely
Foods v. N.L.R.B., 193 F. 2d 735, 739 (C.A. 5); N.L.R.B. v. A. E. Nettleton Co.
etc., 241 F. 2d 130, 132 (C.A. 2):
112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. Concluding findings
The General Counsel alleges that the conduct of the Respondent' s agents, as
found above, induced and encouraged the employees of Hart and Associated to
engage in strikes or concerted refusals to handle Wallwork's products and that an
object of this conduct was to force or require the other employers to cease doing
business with Wallwork. In their brief, counsel for the Teamsters, in a compre-
hensive discussion of the law and the facts, have urged the legality of the Union's
conduct.
In the often cited case of International Brotherhood of Electrical Workers, Local
501, et al. (Samuel Langer) v. N.L.R.B., 341 U.S. 694, 701, 702, the Supreme
Court stated that "The words `induce or encourage' are broad enough to include
in them every form of influence and persuasion." With this interpretation of the
Act in mind, it is clear that the conduct of Mr. Spry in the incident on August
22, induced and encouraged Munkirs and Bjorland to concertedly refuse to handle
the Wallwork freight. Munkirs' testimony that the union president told him
"don't deliver it because I am crossing a picket line," is, in itself, conclusive
evidence that Spry's advice constituted inducement of the Hart employees. The
testimony of Spry likewise compels the same conclusion, for he conceded that he
advised Munkirs and Bjorland that under the "hot-cargo" clause of the union
contract they were not obligated to deliver the freight. The Board has held that
where a union such as the Respondent Teamsters has a well-established policy of
not handling "hot cargo" and such a policy is incorporated in the union contract,
as here, it is inducement and encouragement within the meaning of the Act for
a union agent merely to offer advice as to the provisions of the agreement. Capital
Paper Company, etc., 117 NLRB 635, 644-645. In its brief, Respondent Team-
sters contends that the decision of the two employees had been made prior to
Munkirs' conversation with Spry. The General Counsel, however, has answered
this argument with the statement that if the employees had definitely decided not
to deliver the freight, it is obvious that they would not have bothered to make
the telephone call.
In the other two incidents the evidence of inducement is equally plain. As
found above, in the Associated Transport incident, Mertens, Gendreau, and an-
other individual told Kistner he could not unload. Thereafter, Gendreau, at
Mertens' direction, followed Kistner's truck to a point on the outskirts of Fargo
and there demanded that he be permitted to inspect Kistner's union book. The
threat that with the information so obtained Kistner might be called before his
own local for discipline, censure, or even the levy of a fine was implicit in this
demand. For that reason, this conduct was obviously a potent form of induce-
ment.30 Similarly, no other conclusion is possible as to the incident of January
22, when, from the facts found above, it is apparent that Mertens directed Schimel-
phenig that he should neither load the Wallwork freight nor permit the Wallwork
employees to pick it up themselves 31 On this record it is obvious that an object
of this inducement was to compel the motor carriers to cease doing business with
Wallwork. Although the Respondent Teamsters urges that all of the activity in
question was protected by virtue of the "hot-cargo" clause in its contracts, the
Supreme Court has now declared that such a provision in a collective-bargaining
30 In its brief, Respondent Teamsters contends that the Associated Transport incident
occurred at the primary picket line and was, therefore, protected activity under Inter-
national Rice Milling Co., Inc., at at. v. N.L.R.B., 341 U.S. 665. This argument, however,
is without merit for it ignores the fact that Kistner was at a point several blocks distant
from the picket line at the Wallwork premises when Mertens and Gendreau talked to him.
Later that morning when Gendreau followed Kistner's truck to stop him once more and
inspect Kistner's union book, the latter was in West Fargo, and several miles from the
Wallwork garage.
a In its brief, the Respondent Teamsters contends that as to the incident at Hart's
terminal on January 22, there could have been no unlawful inducement of "employees"
within the meaning of the Act because only Schimelphenig was involved. This argument,
however, assumes that the record is barren of other incidents of similar character. As
found above, there were three separate incidents, one of which involved two employees.
The Board and the courts have held that the inducement of single employees of different
employers to engage in parallel action is inducement of concerted action under Sec-
tion B(b) (4) (A). N.L.R.B. v. Local 11, United Brotherhood of Carpenters & Joiners,
etc. (General Millwork Corp.), 242 F. 2d 932 , 935 (C.A. 6) ; Amalgamated Meat Cutters,
etc. v. N.L.R.B., 237 F. 2d 20, 23-24 (C.A., D.C.) ; Capital Paper Company, etc., 117
NLRB 635, 645, footnote 18; Direct Transit Lines, Inc., 92 NLRB 1715, 1721.
W. W. WALLWORK FARGO, INC. 113
agreement may not be used as a defense to a charge of illegal inducement under
Section 8(b)(4)(A) of the Act. Local 1976, United Brotherhood of Carpenters,
et al. v. N.L.R.B., 357 U.S. 93. Consequently, its "protection of rights" clause
is no defense to the Teamsters here.32
There remains the question as to whether the Machinists and the Teamsters
must share responsibility for the unlawful conduct. The answer must be in the
affirmative. Both Respondents were jointly certified as the collective-bargaining
agent for the Wallwork employees, and both have been on strike and have
picketed that Company from the initiation of the strike. Since they have been
engaged in a joint enterprise, each, of course, is responsible for the conduct of
the other in the furtherance of that enterprise. Retail Fruit & Vegetable Clerks'
Union, 116 NLRB 856, 862, footnote 14, enfd. 249 F. 2d 591 (C.A. 9). Further-
more, as noted earlier, the agents of both Unions participated jointly in at least
one of the incidents here involved, when Gendreau, a picket for the Machinists,
collaborated with Mertens, an official of the Teamsters, in an attempt to induce
Kistner, the driver for Associated, to refuse to deliver a consignment to Wall-
work. For these reasons, I conclude and find that the Teamsters and the Ma-
chinists are jointly and severally responsible for the conduct here in question.
Lastly, it is my conclusion, and I find, on the facts set forth above, that by such
conduct both Respondents violated Section 8 (b) (4) (A) of the Act 33
H. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in section I, above, occurring in
connection with the operations of the Company described earlier herein 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.
III. THE REMEDY
Having found that the Respondent Company violated Section 8(a)(1) and (5),
and that the Respondent Unions violated Section 8(b)(4)(A) of the Act, 1 shall
recommend that they cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
Upon the basis of the above findings of fact and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. The Company is engaged in commerce, and the Teamsters and Machinists
are labor organizations, all within the meaning of the Act.
2. All employees of the parts and service departments of the Respondent Com-
pany, excluding office clericals, salesmen, watchmen, guards, professional em-
ployees, and supervisors, constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the Act.
3. At all times since October 31, 1956, the Unions have been and now are
the exclusive representative of all the employees in the aforesaid unit for the
purposes of collective bargaining within the meaning of Section 9(a) of the Act.
4. By failing and refusing at all times since April 4, 1957, to bargain col-
lectively with the Unions as the exclusive representative of the employees in the
aforesaid unit, and by unilaterally granting wage increases to its employees and
' Since the Machinists was not a party to any such contract, this defense is, in no
event, available to Local 2172.
The foregoing findings as to Case No. 18-CC-48 have been made on the transcript of
the proceedings in the United States District Court for the District of North Dakota
which record was received in evidence in the instant hearing upon stipulation of all the
parties. As noted earlier, on June 23, 1958, that court denied the petition of the General
Counsel for an injunction under Section 10(1) of the Act. The conclusions of the court
were reached with respect to the General Counsel's petition for an injunction pending a
final adjudication of the complaint proceedings before the Board. They are not, of course,
res judicata as to any of the findings or conclusions to be made in the unfair labor prac-
tice proceeding. The findings of fact set out above have been made on the undenied and
uncontradicted testimony which appears in the court transcript. Insofar as the inferences
and conclusions of the Trial Examiner differ from those set out In the carefully drafted
opinion of Judge Ronald N. Davies who heard the proceedings under Section 10(1) of the
Act, I must note my respectful disagreement with the decision of the learned court.
508889-60-vol. 123-9
114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by unilaterally setting higher rates of pay for those hired to replace its employees
who were on strike, the Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)(5) and (1) of the Act.
5. By interfering with, restraining , and coercing its employees in the exercise
of rights guaranteed in Section 7 of the Act, the Respondent Company has en-
gaged in and is engaging in unfair labor practices within the meaning of Section
8(a)(1) of the Act.
6. The Teamsters and the Machinists have, and their agents have, engaged in
unfair labor . practices within the meaning of Section 8(b) (4) (A) of the Act by
inducing and encouraging employees of Hart Motor Express and Associated Trans-
port 34 to engage in strikes or concerted refusals in the course of their employ-
ment to perform services for their respective employers, an object thereof being
to force or require such employers to cease doing business with W. W. Wallwork
Fargo, Inc.
7. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
$* The complaint also alleged that the Unions unlawfully induced the employees of
K. W. McKee, Inc ., not to handle Wallwork freight . However, the General Counsel
failed to offer any evidence in support of this allegation.
Revere Metal Art Co., Inc. and Isabelo Rodriguez
Amalgamated Union, Local 5, UAW, Independent and Isabelo
Rodriguez . Cases Nos. 2-CA-5330 and 2-CB-1932. March 10,
1959
DECISION AND ORDER
On October 30, 1958, Trial Examiner Max Al. Goldman issued
his Intermediate Report in the above-entitled consolidated proceed-
ing findings that Revere Metal Art Co., Inc., the Respondent
Company, and Amalgamated Union, Local 5, UAW, Independent,
the Respondent Union, had engaged in and were engaging in
certain unfair labor practices and recommending that they cease
and desist therefrom and take certain affirmative action, as set
forth in the copy of the Intermediate Report attached hereto.
Thereafter, the Respondent Union filed exceptions to the Inter-
mediate Report. No exceptions were filed by the Respondent Com-
pany.
Pursuant to the provisions of Section 3(b) of the Act, the
Board has delegated its powers in connection with this case to a
three-member panel [Chairman Leedom and Members Bean and
Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Intermediate Report, the exceptions, and the entire record in the
cases and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.
1 The Respondent Union's request for oral argument is hereby denied because the record
and exceptions adequately present the issues and positions of the parties.
123 NLRB No. 16.