Williams Motor Co.

National Labor Relations Board - Board Decisions

May 9, 1941

31 N.L.R.B. 715 (N.L.R.B. 1941)

In the Matter Of WILLIAMS MOTOR COMPANY and LODGE 1426 INTER-
NATIONAL -ASSOCIATION OF MACHINISTS, A. F. OF L. and WILLIAMS
MOTOR COMPANY EMPLOYEES UNION, PARTY TO THE CONTRACT
Case No. C-1593.-Decided May 9, 1941
Jurisdiction : automobile buying and selling industry.
Unfair Labor Practices
Interference, Restraint, and Coercion: anti-union statements.
Company-dominated Union: formation of, for the purpose of defeating "outside
organizational attempts-participation by representatives of management in
initiation, formation, and administration-contract entered into without proof
of,.majority designation
Discrimination: discontinuing operations of one department to eliminate union-
ism from plant ; charges alleging demotion and discharge of two employees,
dismissed.
Collective Bargaining: majority established by membership and designation
cards-refusal to meet and negotiate : failure to reply to union's letter request-
ing a conference; refusal to negotiate with union because of outstanding con-
tract with dominated labor organization.
Remedial Orders: disestablishment of dominated union; abrogation of contract;
order to bargain collectively ; employees discriminated against ordered rein-
stated or placed upon a preferential list and if department reopened to be
offered immediate reinstatement therein ; back pay from 'date of discrimina-
tion to date of reinstatement or placement upon preferential list.
Unit Appropriate for Collective ' Bargaining : mechanical employees, including
the auto mechanics, auto body and fender men, trimmers, auto painters and
greasers, radiator repairmen, ignition men, electricians, helpers and appren-
tices, but excluding office and clerical workers, salesmen, janitors, porters
and delivery boys, and supervisors with power to hire and discharge ; no
controversy-as to.
Mr. Lee Loeviin,.ger, for the Board. -
Sifford & Wadden, by Mr. B. L. Sifford and Mr. S. F. Wadden, of
Sioux City, Iowa, for the respondent. -
Mr. P. L. Siemiller, of Washington, D. C., for the I. A. M.
Miss Marcia Hertzmark, of 'counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by Lodge 1426,
International Association of Machinists, A. F. of L., herein called
31 N. L. R. B., No. 122. ,
715
716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the I . A. M., the National Labor Relations Board, herein called the
Board, by the Regional Director for the Eighteenth Region (Minne-
apolis, Minnesota ), issued its complaint dated October 20, 1939,
against Williams Motor Company, Sioux City, Iowa, herein called
the respondent , and Williams Motor Company Employees ' Union,
party to the contract , herein called the Employees ' Union, alleging
that the respondent had engaged in and was engaging in unfair
labor practices affecting commerce, within the meaning of Section 8
(1), (2), (3), and ( 5) and Section 2 (6) and ( 7) of the National
Labor Relations Act, 49 Stat . 449, herein called the Act. The
complaint and notice of hearing were duly served upon the respond-
ent, the I. A. M., and the Employees ' Union.
Concerning the unfair labor practices , the complaint alleged in
substance ( 1) that the respondent , on or about March'7, 1939, insti-
gated the formation of the Employees ' Union and thereafter advised,
urged, threatened , and warned its employees to join the Employees'
Union, dominated and interfered with its administration , " and con-
tributed financial and other support to it; (2) that on or about April
1, 1939, the respondent entered into a written agreement with the
Employees ' Union, although the Employees '.- Union was not the law-
ful representative of a majority of the employees in an appropriate
unit, for the purpose of furthering and maintaining its domination
and control of the Employees' Union; ( 3) that on or about March 8,
1939, the respondent demoted Clifford Fallon from the position of
department manager or foreman to the position of a non-supervisory-
employee , for the reason that he refused to participate in the forma-
tion of the Employees ' Union; ( 4) that on or about July 29, 1939, the
respondent discharged and thereafter refused to reemploy Clifford
\ Fallon , William ' Carlson, Edwin Hanson, and John Herbst for the
reason that they joined and assisted the I . A. M. and engaged in
concerted activities for the purposes of collective bargaining and
other mutual, aid and protection ; '( 5) that - on or about July 26, 27,
and 31 , _ 1939, the respondent refused to bargain collectively with
the I . A. M. as the representative of its employees within an appro-
priate unit; and ( 6) that since about February 15, 1939, the respond-
ent advised , urged , threatened , and warned its employees to refrain
from becoming or remaining members of the I. A. M.
On October 30, 1939, the respondent . filed an answer to the com-
plaint denying that it was engaged in commerce within the meaning
of the Act, that the I. A. M. represented a majority of the employees
within an appropriate unit, and that it had engaged in the unfair
labor practices alleged in the complaint.
Pursuant to notice, a hearing was held at Sioux City, Iowa, from
February 29 through March 5, 1940, before Berdon M. Bell; the
WILLIAMS MOTOR COMPANY 717
Trial Examiner duly designated by the Board. The Board and the
aespondent were represented by counsel and participated in the
hearing: - The I. A. M. was represented by its Grand Lodge Repre-
sentative. No appearance was entered on behalf of the Employees'
Union. Full opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence bearing on the issues was af-
forded all-parties. At the close of the Board's case the respondent
moved to dismiss the complaint. This motion.,was denied. The
Trial Examiner granted a motion by counsel for the Board to amend
the complaint to conform to the proof. At the conclusion of the
hearing the respondent moved to strike certain allegations of the
complaint and also moved to dismiss the complaint. Ruling was
reserved on these motions. They are hereby denied. During the
course of the hearing the Trial Examiner made a number of other
rulings on motions and on objections to the admission of_ evidence.
The Board has reviewed the rulings and finds that no prejudicial
errors were committed. The rulings are hereby affirmed.
Thereafter, the Trial Examiner issued his Intermediate Report,
dated May 20, 1940, copies of which were duly served upon all the
parties, finding that the respondent had engaged in and was engaging
m;unfair-•labor practices, within the meaning of Section 8 (1), (2),
of -(5) of the Act. He recommended that'the respondent cease and
desist from engaging in such practices; that it disestablish the Em-
ployees' Union, and that, upon request, it bargain- collectively with
the I. A. M. He recommended further that the complaint, in so far
as it alleged that the respondent had engaged in unfair labor prac-
tices within the meaning of Section 8 (3) of the Act, be dismissed
The. I.'A: `M. and the respondent filed exceptions to the Intermediate
Report. The Board has considered the exceptions and, in so far as
they are inconsistent with the findings; conclusions, and order set
forth below, finds no merit in them.
On July 13, 1940, the Board issued an Order reopening the record
in the case and ordering that a further hearing be held for the purpose
of adducing further testimony relative to the respondent's reasons
for closing its body and fender shop and for such other purposes as
the- parties. desired: The Order referred the proceeding to the Re-
gional Director and authorized him to issue notice of such further
hearing.
- Pursuant to notice, a further hearing was held at Sioux City, Iowa,
on October 7, 1940, before Horace A. Rtickel, the Trial Examiner
duly designated by the Board. The Board and the respondent were
represented by counsel and participated in the hearing. Full oppor-
tunity to be heard, to examine and cross-examine witnesses, and to
introduce evidence bearing on the issues was afforded all parties.
718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
During the course of the hearing the Trial Examiner made a number
of rulings on motions and on objections to the admission of. evidence.
The Board has reviewed the rulings of the Trial Examiner ^ and'-'finds
that no prejudicial errors were committed. The rulings are hereby
affirmed.
On December 4, 1940, the Board, acting pursuant to Article II,
Section 36, of the National Labor Relations Board Rules and Regu-
lations-Series 2, as amended, transferred the proceeding to and con-
tinued. it before the Board for action pursuant to Article II, Section
37, of said Rules and Regulations. Its order directed that no further
intermediate Report be issued, that Proposed Findings of Fact, Pro-
posed Conclusions of Law, and Proposed Order be issued, that the
parties should have the right within 20 days from the date of said
Proposed Findings of Fact, Proposed Conclusions of Law, and Pro-
posed Order, to file exceptions thereto and'to request "oral` arb ment
before the Board, and, within 30 days from the Proposed Findings
of Fact, Proposed Conclusions of Law, and Proposed Order, the right
to file a brief with the Board.
On February 18, 1941, the Board issued Proposed Findings of Fact,
Proposed Conclusions of Law, and Proposed Order, copies of which
were duly served upon all parties.
Exceptions to the Proposed Findings of Fact, Proposed Conclu-
sions of Law, and Proposed Order were filed -by the respondent on
March 10, 1941. The Board has considered the exceptions to, the
Proposed Findings of Fact, Proposed Conclusions of Law, and Pro-
posed Order and in so far as they are inconsistent with the findings,
conclusions and order set forth below, finds no merit in them.
. Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Williams Motor Company, an Iowa corporation, is engaged at
Sioux City, Iowa, in the business of buying, selling,, and distributing
automobiles, trucks, parts, and supplies; and servicing and repairing
automobiles and trucks. The respondent operates under a. sales agree-
ment with Chrysler Corporation, Dodge Division, for the purchase,
sale, and distribution of Dodge and Plymouth automobiles and trucks,
auto parts and accessories as a "direct dealer." The respondent is re-
quired, to appoint and maintain within the area allotted to it, which
includes designated portions of Iowa, South Dakota, and Nebraska,
"dealers" who are acceptable to Dodge Division and who are. governed
by the terms of the sales agreement between the Chrysler Corporation'
and the respondent. Under the agreement the respondent agrees to
WILLIAMS MOTOR COMPANY 719
provide and maintain adequate facilities for servicing automobiles sold
within its allotted area. The dealer purchases automobiles, trucks
and parts from the direct dealer who in turn obtains these items from
the Chrysler Corporation. The respondent has supervision over the
sales activities of the dealers and receives reports from them. The
respondent makes reports to the Chrysler Corporation.
The respondent places directly with the Chrysler Corporation all
orders for automobiles, trucks, parts, and accessories which are shipped
to the respondent by truck from Detroit, Michigan.' The dealers in
South Dakota and Nebraska come to the respondent's place of business
in Sioux City and there obtain the automobiles which the respondent
has ordered for them.
In addition to the sales of new and used automobiles, automobile
parts, and accessories, the respondent is also engaged ,in the business
of operating an automobile service department which is composed of
a lubrication department, a paint department, a body and fender shop,
a used car reconditioning department, and a department in which
mechanical repair work is done on customer's cars, used cars, and new
cars both'before they ale sold and during the guarantee period.
During the period from November 1, 1938, to October 31, 1939, the
respondent purchased new automobiles valued at $346,435.52. It also
made other purchases totaling $63,405.47, of which the sum of $19,664.12
represented purchases from sellers outside the State of Iowa. Of its
total purchases, 89 per cent were shipped to it from outside the State
of Iowa. During the same period the respondent sold parts and ac-
cessories valued at $39,467.18, of which 5.20 per cent were shipped out-
side Iowa. It sold at wholesale to its dealers new cars valued at
$225,067.03, of which 31.04 per cent were sold to buyers from outside
Iowa. Its sales of new cars delivered at Sioux City to retail customers
who live outside the State of Iowa totaled $21,222.85, which amount was
13.78 per cent of, its total retail sales of new cars. Of the used cars
sold at retail, 23.79 per cent of the total value of $120,350.44 were sold
to, persons who live outside Iowa.
II. TIE ORGANIZATIONS INVOLVED
Lodge 1426, International Association of Machinists, is a labor or-
ganization , affiliated with the American Federation of Labor. It
The respondent contends that it makes its purchases of new cars from the Securities
Acceptance Corporation in Sioux City , Iowa, and that it makes no purchases from outside
Iowa. It is clear , hos ever, that the arrangement is one of financing and that the Securi-
ties Acceptance Corporation merely retains title under a conditional sales contract until
payment is made to it by the respondent . See N. L R. B. v. Henry Levaur, Inc., at at.,
decided Octobei 25, 1940 (C. C. A. 1), enf'g Matter of Henry Levaur, Inc and International
Association of Machinists , Local Dealers Association, a corporation, et at, and .- Capital
Automotive Lodge`N6..606, International Association of Machinists , 10 N. L. R. B. 1173.
720 DECISIONS OF NATIONAL LABOR' RELATIONS BOARD
admits to membership machinists, mechanics, helpers, and apprentices
in the machine and,metal industry in the vicinity of Sioux City, Iowa:
Williams Motor Company Employees' Union is an unaffiliated
labor organization admitting to membership employees of the
respondent.
III. THE UNFAIR LABOR PRACTICES
A. Williams Motor Company Employees' Union
The I. A. M. began its organizational activities among the em-
ployees of the respondent about February 1, 1939, and a•riumber,of
employees became members in the following months. During the
early part of these activities, in the spring of 1939, Wilbur S. Wil-
liams, the vice president, treasurer, and general manager of the re-
spondent, told James T. Connor, an employee in the service depart-,
ment, that outside unions would not do the employees any good.
Williams added that he would not let organized labor come into his
shop, that he would close the body shop rather than let organized
labor come in, and that a company union would be a good thing.,
About the same time Max Radcliffe, then an employee engaged in
electrical work but a few days later made foreman of the used car
reconditioning department, told employees that outside labor organi-
zations were coming into town and causing trouble. Radcliffe did
not deny that he made this statement. Williams denied having made
the statements attributed to him by Connor, but, in view of the whole
record and the finding of the Trial Examiner who had an opportunity
to observe the witness, we filid that Williams made the above
statements.
Early in March James H. Fuller, office and credit manager of the
respondent, obtained a copy of the constitution and bylaws of an
outside union existing at the Auto Hospital in Sioux City. Fuller
employed an attorney to whom he gave these copies with instruc-
tions to use them to form an inside union. Fuller arranged a meet-
ing to be held on March 8 at the West Hotel in Sioux City and he
and other supervisory employees of the respondent, including Daniel
Engebret'son;.service manager and shop foreman, invited+temployees
to-attend. Fuller asked Clifford Fallon, foreman of the body and
fender shop, to attend this meeting but Fallon stated that he saw
nothing to be gained by membership in a company union and ex-
pressed a preference for the American Federation of Labor. He
refused to attend the meeting. Fuller, presided at the beginning of
the meeting but shortly thereafter the attorney he employed dis-
cussed the formation of the Employees' Union, and presented a mem-
bership agreement which was signed by several of those present.
WILLIAMS MOTOR COMPANY 721
Engebretson and Neil Thacker, parts department manager, were
among those who attended the meeting and Engebretson and Fuller
signed the membership agreement. An election was held in- which
James T. Connor was chosen president, Neil Thacker, secretary-
treasurer, and Harvey Berry, a painter, vice president. Fuller paid
for the use of the room and for refreshments which were served and
was reimbursed for these expenses by the respondent.
Following this meeting a campaign 'to secure members for the
Employees' Union was launched and actively participated in by
Fuller and other supervisory employees. Engebretson admitted ask-
ing employees Cornish, Herbst, and Carlson to join. Engebretson
urged'Carlson for 2 or 3 days to sign the membership agreement and
the -last time Engebretson spoke to him about it Carlson was told
that he had "better sign it." When Engebretson asked Cornish why
he did not join Engebretson stated, "It might mean you a better job
if you did." He added that Fallon was "slipping," and that Fallon
had refused to sign up in the Employees' Union. Fuller asked Corn-
ish to join, saying that Cornish was the only one in the body shop
who was holding back and that if he joined the Employees' Union the
rest of the men would join. The, membership cards for the Em-
-ployees' Union were multigraphed on the respondent's machine which
was supplied for that purpose,by Fuller.
Subsequent meetings of the Employees' Union were held in the
plant, the first on March 15, and another about a week later. At the
meeting of March 15 a grievance committee was appointed but it
appears, that the committee never functioned in any way. At the
second meeting, and the last so far as the evidence discloses, moving,
pictures were shown by W. S. Williams, Jr., assistant manager and
son of Wilbur S. Williams. About this time Fuller informed Wilbur
S. Williams of the formation of the Employees' Union and, accord-
ing to Fuller's testimony, Williams "didn't seem to be against it
in any way."
On April 1, 1939, the respondent entered into a contract with the
Employees' Union. The contract was to run for 2 years and pro-
vided for recognition of the Employees' Union as exclusive bar-'
gaining agent for the employees of the respondent in regard to
wages, hours, and working conditions; that new employees should,
as a condition of employment, first apply for membership in the
Employees' Union and tender to it dues and assessments; that the
Employees' Union should 'remain a local and unaffiliated organiza-
tion; and that either the respondent or the Employees' Union might
pursue such legal action as was necessary to prevent outside parties
from interfering with the performance of the contract. The con-
tract contained no other provisions. It was - signed upon the state-
722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment of the committee presenting it that the Employees' Union
represented a majority,of the employees and Williams made no
during the course of its brief dealings with the I. A. M.
No dues were collected by the Employees' Union after April 29,
1939, and it engaged in no-activity after that date. The record does
not disclose how many members the Employees' Union had at any
time during its existence. Some time after its activity ceased Wil-
liams asked Connor if it was still functioning and when told that
it was not Williams informed Connor that it should be kept going.
The foregoing recital of the circumstances surrounding the forma-
tion of the Employees' Union and its short life thereafter make it
clear that it was brought into existence by supervisory employees
of the respondent for the purpose of defeating the organizational
attempts of the I. A. M. Although Fuller stated that the original
suggestions as to formation of the organization came from Harvey
T3erry, a painter, who became vice president of the Employees'
Union, and from an employee of the Auto Hospital who was secre-
tary of the union formed there, he admitted that it was his desire
that the Union remain independent, that he took the steps necessary
to bring the Union into being, and that the purpose of the Em-
ployees' Union was to keep any other union from getting into the
shop. Thereafter, whatever activity was engaged in by the Em-
ployees' Union was, directed and participated in by foremen and
other supervisory employees of the respondent with the approval of
its -vice president, Williams: The contract was signed by the re-
spondent without proof that the Employees' Union represented a
majority of the employees and, in itself, discloses the -purpose of
the organization. There is no showing that action was ever taken
pursuant to the contract with regard to any of its provisions.
We' find that the respondent dominated and interfered with the
formation and administration of, and contributed support to - the;
Employees' Union, and that it thereby, and by the statements and
acts of its officials and supervisory employees, hereinabove set forth,
interfered with, restrained, and coerced its employees in the exercise
of the rights guaranteed by Section 7 of the Act. - '
B. The refusal to bargain
1. The appropriate unit
The complaint alleged, and the I. A. M._contended, that an ap-
propriate unit consists of all -mechanical employees who work on
automobiles, including the auto mechanics, auto body and fender
men, trimmers, auto painters' and greasers, radiator repairmen,
ignition men, electricians, helpers and apprentices, excluding office
WILLIAMS MOTOR COMPANY 723
and clerical workers, salesmen, janitors , porters and delivery boys,
and supervisors with power to hire and discharge. The, respondent
made no contention witli respect to the unit either at the hearing or
during the course of its brief dealings with the , I. A. M.
We find that the mechanical employees of the respondent, including
the auto mechanics , auto body and fender men, trimmers, auto painters
and greasers , radiator repairmen , ignition men, electricians , helpers;
and apprentices , but excluding office and clerical workers, salesmen,
janitors, porters and delivery boys, and supervisors with power to
hire and discharge, at all times material herein constituted and that
they now constitute a unit appropriate for the purposes of collective
bargaining with respect to rates of pay, wages, hours of employment,
and other conditions of employment, and that said unit insures to the
employees of the respondent the full benefit of their right to self-
organization and to collective bargaining and otherwise effectuates
the policies of the Act.
2. Representation by the I. A. M. of the majority in the
appropriate unit
The respondent's pay roll for the period from July 20 to October
21, 1939, discloses that there were 18 persons within the appropriate,
unit on July 26, when the I. A. M. made its first request of the re-
spondent to bargain , and that one additional employee was hired prior
to August 5, 1939, when the I. A. M. made its second request to bargain
collectively. The number of employees in the appropriate unit never
exceeded 19 during the period under consideration. Membership and
authorization cards submitted in evidence by the I. A. M. show that
14 of these employees had designated the I. A. M. as their bargaining
representative prior to its first request to bargain , and that it continued
to represent them at all times material herein.
We find that on July 26, 1939, the I. A. M. was, and at all times
thereafter has been, the duly designated representative of a majority _
of the employees of the respondent in the appropriate unit, and that
by virtue of Section 9 (a) of the Act it was the exclusive representative
of all the employees in said unit for the purpose of collective bargain-
ing with the respondent in respect to rates of pay, wages, hours of
employment , and other conditions of employment.
3. The refusal to bargain
On July 26, 1939, the I. A. M. addressed a letter to the respondent
requesting a conference for the purpose of collective bargaining.
The letter stated that the I . A. M. represented a majority of the
respondent 's employees within an appropriate unit and requested
441843-42-vol. 31-4 7
724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
recognition as representative of these employees. Enclosed with the
letter was a copy of a proposed contract. The respondent made no
reply to this letter.
On about August 5, P. L. Siemiller, Grand Lodge Representative
of the I. A. M., and Robert F. Kydney, one of its international rep-
resentatives, called upon Williams at his office and requested that the
respondent enter into a contract with the I. A. M. Williams replied
that the respondent, already had a contract with the Employees' Union,
that it would be illegal for it to negotiate with another union, and
that he was not interested in carrying on negotiations with the I. A. M.
When Siemiller stated that Williams' refusal to negotiate would make
it necessary to file a charge with the Board, Williams told him that he
did not think the Board had jurisdiction over his type of business.
Williams also stated that his son had just finished law school and,
according to Kydney's testimony, which was not denied, Williams
"was going to find out how good an attorney this lad, was, and that
he was willing to spend another $5,000 on this case to find out the lad's
ability, ... that he wanted to give that son of his the opportunity
of having a case before the National Labor Relations Board."
The respondent has a duty, under the Act, to recognize and bargain
with the labor organization which represents a majority of its em
ployees within an appropriate unit. In view of our finding above
that the Employees' Union is a dominated labor, organization, the
respondent's contract with that union cannot serve as a valid reason,
for refusing to recognize the I. A. M. In fact, as we have found
above, the contract was entered into without proof of majority
and for the sole purpose of foreclosing any attempt to bargain which
should be made by the I. A. M. The respondent's failure to reply
to the letter of July 26, 1939, from the I. A. M., and its subsequent
refusal to consider negotiations with representatives of the I. A. M.
constituted a refusal to bargain.
We find that on July 26, 1939, and at all times thereafter, the
respondent refused to bargain collectively with the I. A. M. as
the exclusive representative of the employees within an appropriate
unit, and that the respondent has thereby interfered with, restrained,
and coerced its employees in the exercise of the rights guaranteed by
Section 7 of the Act.
C. Discrimination
1. The alleged discriminatory demotion of Clifford Fallon
Clifford Fallon ,was employed by the respondent in -September
1935 as a body and fender mechanic. In March 1938 he was made
foreman of the body and fender shop and on January 1, 1939, he was
WILLIAMS MOTOR COMPANY 725
also made foreman of the used-car reconditioning department. The
complaint alleged that on or about March 8, 1939, Fallon was demoted
from a supervisory position because of his refusal to aid in the forma-
tion of the Employees' Union.
The evidence discloses that on about March 20, 1939, Fallon was
removed from his position as foreman of the used car reconditioning
department and replaced by Max Radcliffe. It appears that Fallon
was inefficient in the performance of his duties in connection with
the used car reconditioning department, that he was incapable of
handling the work, that he drank while on duty and that jobs were
delayed because of his neglect. On one occasion in February 1939
he and another employee took a used car out of the shop, for several
hours during which time they were both drinking. W. S. Williams,
Jr., had to go out and find them and drive them back. The evi-
dence shows also that just prior to March 20 Williams called Fallon
in and told him he was to be replaced by Radcliffe and that shortly
thereafter the employees of the service department were called to-
gether by Williams and informed of the contemplated change.
Although Fallon contended that, at .the time he was demoted from
the position of used car reconditioning foreman, he was also demoted
from the position of foreman of the ' body and fender shop, the evi-
dence does not sustain this contention. Prior to March 20 the em-
ployees of the body shop had been paid on a weekly salary. There-
after the respondent inaugurated a new system whereby all the
mechanics worked on a percentage basis and each bid against the
other to secure jobs brought into the body shop. Fallon, as foreman,
had estimated the cost of jobs for that department prior to March
20, 1939, but thereafter he was in the same position as other employees
in this regard. However, there is no showing that Fallon was ever
told that he was no longer foreman of the body shop or that any
action was taken by the respondent which would'be inconsistent with
its position that he retained that status. Fallon had no occasion to
hire or discharge employees after March 20 and, although he testi-
fied that he no longer purchased materials for the body shop, there
is evidence that he did do some purchasing thereafter.
It is admitted that Fallon refused to attend the first meeting
of the Employees' Union when requested to do so by Fuller. How-
ever, Fallon was not then a member of the I. A.- M. and, in fact,
joined the Employees' Union before he joined the I. A. M. We find,
as did the Trial Examiner, that Fallon was removed from his posi-_
tion as foreman of the used-car reconditioning department because
of his inefficiency in that position and that he remained foreman of
the body and fender shop until the date of hiss discharge, which we
shall discuss hereinafter.
726 DECISIONS OF -NATIONAL LABOR RELATIONS BOARD
We find that the respondent did not discriminatorily-demote Fal-
lon as alleged in the complaint. We shall dismiss the complaint in
this respect.
2. The alleged discriminatory discharge of Edwin C. Hanson
Edwin C. Hanson was employed by the respondent on November
27, 1937, as a body and fender mechanic assigned to work on used
cars. He joined the Employees' Union early in March 1939, and
became a member of the I. A. Al. on, April 27, 1939. He attended
most of the I. A. M. meetings and solicited members among the
respondent's employees. -
On or about July 11, 1939, Hanson became ill while at work and
went home at noon. He testified that he attempted to find Radcliffe,
his foreman, but was unable to locate him and that he asked another
employee to tell Radcliffe why he had left the premises. He admitted
that he made no effort thereafter to inform the respondent of the
reason for his absence. Hanson remained at home for several days
and when he returned to work was informed that Robert Miller, who
was also a member of the I. A. M., had been employed in his stead.
Radcliffe testified that Hanson was working' on a rush job, that
he did not know where Hansonshad gone, and that Miller was there-
fore employed to replace Hanson. The respondent also presented
evidence that Hanson was often absent from work without permis-
sion, that he drank during working hours, and that he had twice
been discharged for being drunk on the job. Hanson admitted that
he was absent from work on several Mondays but denied that his
absence was due to drinking. He denied that he drank excessively
while on the job. He also denied that during the period following
July 11, when he was supposed" to be.home, he was seen in a beer
parlor near the respondent's premises by W. S. Williams, Jr., and
that he asked Williams not to'report seeing him. We do not credit
Hanson's denials in this respect. On one occasion W.° S. Williams,
Jr., secured the release of Hanson from jail where he had been
placed following a charge of disorderly conduct.
In view of all the evidence, we. find, as did the Trial Examiner,
that Hanson was discharged because of his continued absence from
work and because of his drinking, and that he was not discharged
because of his union membership and activity. We shall dismiss the
allegations of the complaint with respect to Hanson.
3. The discriminatory discharge of Fallon, Carlson, and Herbst
On July 29, 1939, the respondent discontinued the operation of
its body and fender shop and discharged Clifford Fallon, William
R. Carlson, and John Herbst, the only employees of that subdepart-
WILLIAMS MOTOR COMPANY 727
went., Work on customers' cars, formerly done by the body shop,
was thereafter performed in part by the Auto Hospital and in part
by other body and fender shops in Sioux City. The complaint al-
leged, and the respondent's answer denied, that these employees were
dismissed because of their membership and activity in the I. A. M.
It appears from the record that more activity in behalf of the
I. A. M. was conducted by the employees of the body and fender
shop than by-those of any other department.- Fallon and Herbst,
especially, frequently discussed the I. A. M. with other employees
and solicited members among them, and Fallon was elected a delegate
to the Trades and Labor Assembly. On July 27, 1939, 2 days before
the closing of the body and fender shop, the respondent received from
the I. A. M., a letter requesting a conference for the purpose of col-
lective bargaining.
The respondent contended that the abolition of the body and fender
shop was made necessary by economic conditions. At the first hear-,
ing it introduced much testimony to show that poor business condi-
tions made its operations unprofitable, and that Fallon, as foreman
of the body and fender shop, had been notified that unless conditions
improved and the body and fender shop was able to show a profit
as it had in the past, the respondent would be forced to close it.
Engebretson testified that he suggested advertising in order to secure
more business, and that an advertisement of the body and fender
shop was run shortly thereafter. It was the respondent's contention
that business continued to decline and that on about July 15, prior
to leaving on a vacation, Williams instructed Engebretson to have
all jobs in the body and fender shop completed and to close it there-
after. To illustrate the precipitous drop in the business of the body
,and fender shop, the respondent introduced in evidence the following
table showing the operating statement of the body shop.
JANUARY 1, 1939, TO JULY 31, 1939
Sales Cost ofsales
Gross
protxt Expenses Net profit
Percent
sales
January__ _ _________'_ $1,488 16 $552 08 $936 08 $435 56 $497 52 33 43
February____________________ 1,248 64 567 46 681 18 387 45 293 73 23 52
March______________________ _ 1,123 31 444 27 679 04 344 07 334 97 29 82
April ________________________ 1,160 13 726 03 434 10 277 04 157 06 13 54
May-------------------------- 500 14 258 06 242 08 238 62 3 46 68
June _________________ ______ 486 14 216 04 270 10 247 15 22 95 4 72
July____________-------------------------- 421 99 294 88 127 11 203 d4 - 76 03 -18 02
The respondent's witness explained that the principal reason for
the decline of business was the loss of contracts usually obtained
from insurance adjusters, and Williams testified that several of them
had told him that the bids of his employees in the body shop were too
high. The increase in the prices bid, it ii-as testified, was due to the
728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD-
I
fact that on about March 20, 1939, all the body and fender mechanics
were put on a percentage basis instead of a weekly salary and that,
in attempting to make more money, the mechanics set their -rates at
exorbitant figures. Fuller admitted that, although he and Williams
had discussed the fact that the changed method of paying the men
resulted in prices being too high, it did not occur to either of them to
return to the previous practice. ' '
Fallon denied that he had been called into conferences with Williams
and other supervisory employees in, March, April, and May and
denied that he had been informed that the body and fender shop
would be discontinued if business did not improve. Carlson denied
the testimony of Engebretson that on or about July 20 or 22 he told
Carlson that the body, and fender 'shop was going to be closed.
Fallon and Herbst denied that work in the body and fender shop
had decreased during the period from January to July 1939. A record
of the earnings of Fallon, Carlson, and Herbst introduced by the
respondent discloses- that Herbst earned more money in May and July
than in any previous month of 1939; that although Fallon's earnings
dropped somewhat there was no radical decrease until July; and that
Carlson's wages did not vary greatly until June. On cross-examina-
tion of Fuller it was brought out that the operating statement intro-
duced by the respondent contained at least one inaccuracy in that the
"cost of sales" figure shown for April, which was almost $300 greater
than that for March, was computed by including the cost of materials
used in prior months. He explained that this was due to the dis-
covery that the respondent had not been charging the body and fender
shop a sufficient amount for materials used by it. , ,
The evidence also disclosed that other subdepartments of the service
department, as well as the service department itself, were showing a
drop in profits, especially the paint department which sustained a
drop of approximately 75 per cent of its gross profits.
The respondent contended, and the Trial Examiner found in his
Intermediate Report, that although it was necessary for the respondent
to operate the paint shop and other subdivisions of the service depart-
ment, it was not essential to the respondent's business that it operate
a customer body and fender shop.2 The Trial Examiner found further
that Williams knew of the I. A. M. membership of Fallon, Carlson,
and Herbst. He stated that, in view of the respondent's previous ac-
tivity in sponsoring and dominating a company union, it was difficult
to believe that the respondent overlooked entirely the effect on union
' The I A. M. excepted to this finding . It contended that the continuance of the paint
shop was no more essential to the respondent 's business than the body and fender shop,
that the respondent retained the former because the only man employed in it was a leader
in the formation of the Employees ' Union , and that it eliminated the latter because it was
a center of activity on behalf of the I. A. M.
WILLIAMS MOTOR COMPANY 729
activities of the discharge of the three employees of the body and
fender shop; but that the evidence was not sufficient to disprove the
respondent's position that the discontinuance of the body and fender
shop was prompted by economic conditions.
The second hearing in this case, held on October 7, 1940, supplies
the deficiency in proof noted by the Trial Examiner and casts an, en-
tirely new and different light on the case.
- From the testimony of James H. Fuller, who was the sole witness
at the reopened hearing, the following pertinent facts appear. The
sales figures shown on the operating statement for the,body and fender
shop, which were introduced at the first hearing, do not include any
used-car work after May 1, 1939, as they previously did. In fact,
from that date until November 1, 1939, work done by any subdivision
of the service department upon used cars was no longer carried in a
sales account but was charged directly to the used car upon which
the work was performed. The effect of this changed method is illus-
trated by the following table which shows sales for the service-depart-
ment and for each of its subdivisions :
Service Customers' Body and Paint Interde-depart- repair fender de- Outside depart- Storage partmentalmerit total ,labor partment work merit repairs,sales went labor
1989 1
January---------------- $3,874 22 $1,043 83 $1,488 16 $178 38 $653 45 $9 25 $501.15
February ______________ 3,611.65 745 30 1,248 64 281 .1 7 638 66 5 50 692 38
March_________________ 3,581 05 837 95 1,123 31 216 45 530 51 3 00 869 83
April__________________ 3,499 45 804 25 1,160 13 152 22 614 98 .50 767 37
May------------------- 1 , 806 91 929 87 500 14 163 38 213 52 __________ ____________
1,732 08 838 25 486 14 247 49 160 20 :_________ ------------
July -------------------- - 1,785 25 895 99 - 421 99 236 87
_
224 . 40
_
6.00 --- ---------
Fuller admitted, and it is obvious that this change in the respond-
ent's method of bookkeeping which had not been used before and
has not been used since November 1, 1939, accounted for the startling
drop in sales shown on the operating statement. The record does not
show the profits made by the -used-car department, but- is is clear
that after May 1, 1939, earnings previously credited to the body
and- fender shop must have been accounted for in the increased
profits made when used cars were sold.
Fuller explained that expenses of the body and fender shop were
arrived at by computing the percentage of expenses to sales in the
entire service department and applying that percentage figure to the
sales of the body and fender shop. Since the new accounting method
was applied to all subdivisions of the service department and all of
the sales dropped drastically, and since many expenses, such as taxes,
heat, insurance, etc., remained fixed, the ratio of expenses to sales
naturally increased and the profits dropped accordingly. In addi-
730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion, one subdivision, of the service department, called interdepart-
mental repairs labor, was entirely removed from the service depart-
ment account and caused a further substantial decrease in the service
department's total sales and therefore an increase in the expenses of
the subdepartments of the service department.
The change in bookkeeping alluded to above resulted' not only in
a decrease in sales for the • body and fender shop and a relative
increase in expenses, but also in a relative increase in cost of sales
for that subdepartment. That was so because the used-car body
and fender work was done at a lower cost than the customer work,'
and the elimination of the former type of work from the accounts
of the body and fender shop resulted in the cost of sales figures for
the months after the change reflecting only work performed at a
higher cost. The relative increase in the cost *of sales figures after
May 1, 1939, necessarily resulted in a corresponding decrease in gross
and net profits.
Another interesting fact was brought to light by, a comparison
of the following operating statements of the body and fender depart-
ment for 1938 and 1939:
JANUARY 1, 1938 TO JULY 31, 1938
Month Sales Cost ofsales
Gross
profit Expenses Net profit
Percent to
sales
January_____ _________________ $772 53 $290 44 $482 09 $356 14 $125 95 16.3
February_____________________ 485 04 247 18 237 86 212 45 25 41 5 2
March_______________________ 627 53 . 293 70 333 83 251 01 82 82 13 2
April _________________________ 494 54 327 54 167 00 176 06 - 9 06 -1 8
May__________________ 569 18 280 99 288 19 194 66 93 53 16 4
June -- --------------- ---------- 440 70 339 31 101 39 161 74 -60 35 -13 7
July__________________________ 661 92 304 50 357 42 249 54 107 88 16 3
JANUARY 1, 1939 TO JULY 31, 1939
January______________________ $1,488 16 $552 08 $936 08 $438 56 $497 52 33 43
February_____________________ 1,248.64 567 46 681 18 387 45 293 73 23.52
March_ ______________________ 1,123.31 444 27 679 04 344 07 334 97 29.82
April__ ______________________ 1,160 13 726 03 434 10 277 04 157 06 13.54
May_______________ 500 14 258 06 242 08 238 62 3 46 .68
June______________ 486.14 216 04 . 270 10 247 15 22 95 4 72
July__________________________ 421 99 294 88 127 11 203 14 -76 03 -18 02
It will be noted that in every month of 1939, except May and
July, the body and fender shop showed a larger net profit than
for the corresponding month in 1938. The` figures for July 1939
were not available at the time the decision 'was made to close the
body shop, and could not have been considered. The above figures
are particularly enlightening in view of Fuller's testimony that he
started keeping a separate operating statement for the body and
' The precise differential between the cost of sales for used -car work and customer work
is*not , apparent from the record.
WILLIAMS MOTOR COMPANY 731-
fender shop in February 1939; since obviously there was no occasion
a that time for a check of the body shop, and in view of the testi-t
mony that Williams constantly. urged that the body and fend'er'
shop must make the showing it had the previous year. Fuller
admitted, however, that Williams had no figures for 1938 before him,
at the time and that, in fact, it was not known what net profit
the body shop made in 1938 because the respondent's books showed
only a computation of sales, cost of sales, and gross profit. The
figures for expenses and net profit were calculated for the purposes
of these proceedings. Furthermore, since Williams was aware of the
changed accounting method inaugurated on May 1, 1939, we may well
question his asserted ignorance as to the reason for the sudden drop
in sales volume and'his good faith in calling for suggestions as to
methods, for improving business conditions. This is especially true
because, in spite of his claim- that the newly adopted system of pay-
ing his employees was causing an increase in prices and a conse-
quent loss of business, he refused to revert to the original method
of payment,for services, a method which had resulted in substantial
profits being earned by the body and fender shop.
Fuller testified that the first "danger sign" appeared in the operat-
ing statement for April 1939 which was compiled about the first
week in May, although Williams stated at the first hearing that
he had called Fallon in for a conference after the March statement
was compiled. Reference to the exhibit discloses that sales in March
were only slightly below those for February and that those for April
were larger than in March. Only because of the inclusion in the
`.'cost of sales" figure for April of materials used in previous months
was the gross profit reduced in April. Since Fuller was well aware
of the reason for the increased cost of sales, it is incredible that
he or Williams was actually alarmed by the April figures: Fuller
also stated that when the decision to close the body shop was finally
made Williams had before him the figures from January through
June.1939 but not for July.- The body and fender shop' showed a
net profit for every month in 1939 until July, while the 1938 operat-,
ing statement shows losses for April and June of that year.
From the evidence before us, we find 'that the following events
occurred in connection with the closing of the body and fender shop
and the discharge of Fallon, Carlson, and Herbst. As heretofore
rioted, the I. A. M. began to organize the respondent's employees
in February 1939 and almost immediately thereafter the respondent
brought into existence the Employees' Union to counteract such organ-
ization. In the same month the respondent commenced to keep an
operating statement for the body and-fender shop, where the most
active proponents of the I. A. M. were employed, and in doing so
732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
followed a method never before used in checking one of its depart-
ments. In the early spring Williams informed Connor of his inten-
tion to close the body shop rather than let organized labor come
into his plant.
About March 20, 1939, the respondent began paying the employees
of the body and fender shop on a percentage basis rather than a•
salary. The respondent contended that this change resulted in higher
bids and a loss of business. However, Fuller admitted without con-
tradiction that the customer' work in the body and fender shop
normally averaged about $400 or $500 a month. The operating
statement for 1939 shows that the body shop continued to average
that much after May 1, 1939, in spite of the removal of all used-car
sales from its totals, and it is apparent that there was no actual
drop in business during this period. Moreover, even if we were
to credit the testimony that sales dropped after May 1, there is no
attempt by the respondent to explain its failure to return to the
original system when the result of the new method was discovered.
We do not believe that the respondent would have given up a
profitable portion of its business merely because of a desire to adhere
to a new method of paying its employees.
In May the respondent, at Fuller's suggestion, changed its bookkeep-
ing system, assertedly because the existing method operated to show a
fictitious profit in the service department. While the respondent may,
of course, use any accounting procedure it desires, we think that the
asserted reason for the adoption of the practice under consideration is
without merit.4 Moreover we cannot give credence to the respondent's
claimed innocence of the reasons for the radical drop in sales, for the
increase in cost of sales and expenses, and for the decrease in profits,
which apparently resulted thereafter. Nor are we impressed It with its
testimony at the first hearing that sales in the body and fender shop
dropped so drastically that it was no longer profitable to operate, a
department which it had apparently operated since the business began.
As noted above, the change in the accounting procedure merely caused a
transfer of profits from the body and fender shop to the used-car de-
partment. The respondent did not offer evidence as to the profits of
the used-car department.
Further doubt is cast upon the respondent's actions by its failure
to assign to one of the men who were slated for discharge the position
4 It is true that the profit of the body and fender shop, resulting from work on used cars,
as reflected in the books , was "fictitious" in the sense that It was created by book entries
and without the immediate receipt of cash or accounts receivable by the respondent. How-
ever, the work performed in the body and fender shop enhanced the value of the used cars
and created an opportunity for profit which was subsequently realized with the sale of the
used car. Under the new system of accounting that profit now accrues to the used-car
department.
WILLIAMS MOTOR' COMPANY 733
left open by the dismissal of Hanson. The respondent contended that
Williams issued orders on July 15, 1939, to discontinue the body shop.
Robert Miller was employed to replace Hanson within a few days of
that time, and Williams admitted that he never considered keeping any
of the complainants when he decided to close the shop.
The evidence indicates that about half of the body and fender work
on customers' cars, which the respondent still accepts, is done by the
Auto Hospital. in Sioux City. This circumstance furnishes an addi-
tional basis for our findings as to the respondent's attitude toward
outside labor organizations,-since it was from the Auto Hospital that
Fuller obtained the constitution and bylaws for the Employees' Union,
and since its owner, Guy Ramesbotham, admitted that he had had
trouble with the I. A. M. and that his shop had been picketed.
Our findings as to the respondent's motives are further fortified by
the fact that it adopted inconsistent positions at the two hearings in this
case, a fact which convinces us that little credit can be given its
testimony as to its reasons for closing the body and fender shop.
It is our conclusion, and we find, that the respondent followed a pre-
conceived plan to stamp out unionization of its employees and that
the steps taken by it, beginning in February 1939, were in furtherance
of such plan. We find that the respondent discontinued the operation
of its body and fender shop on July 29, 1939, and discharged Fallon,
Carlson, and Herbst pursuant to its determination, made in February
1939, to eliminate unionism from its plant.
We find that the respondent has discriminated in regard to the hire
and tenure of employment of Fallon, Carlson, and Herbst, thereby
discouraging membership in a labor organization, and by such action
has interfered with, restrained, and coerced its employees in the exercise
of the rights guaranteed in Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III above, oc-
curring in connection with the operations of the respondent described
in Section I above, have a close, intimate, and substantial relation
to trade, traffic, and commerce among the several States, and tend to
lead to labor disputes burdening and obstructing commerce and the
free flow of commerce.
V. THE REMEDY
Having found that the respondent has engaged in unfair labor
practices, we shall order it to cease and desist therefrom and to take
certain affirmative action which we find necessary to effectuate the
policies of the Act.
734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We have found that the respondent has dominated and interfered
with the formation and administration of the Employees' Union.
In order to effectuate the policies of the Act we will order the re-
spondent to withdraw all recognition from the, Employees' Union
as the representative of any of the respondent's employees for the'
purpose of dealing with the respondent concerning grievances, labor
disputes, wages, rates of pay; hours of employment, and conditions
of work, and disestablish it as such representative. Since the agree- -
lnent of April 1, 1939, between the respondent and the Employees'
Union embodies recognition of the Employees' Union as such repre=
tentative, we will order the respondent to cease and desist from giving
effect to it or any other agreement it may have entered into With the
Employees' Union in respect to rates of pay, wages, hours of employ-
l,ient, or other conditions of employment.
'We have further found that on July 26, 1939, and at all times there-
.after, the respondent refused to bargain collectively with the I. A. M.
as the exclusive representative of its employees in an appropriate
ulnit. Accordingly, in order to effectuate the purposes of the Act, we
shall order the respondent, upon request, to bargain collectively with
i he I. A. M.
We have found that the respondent discontinued the operation of
its body and fender shop and discharged Fallon, Carlson, and Herbst
in order to discourage membership in the I. A. M., thereby discrimi-
nating in regard to their hire and tenure of employment. We shall,
therefore, in accordance with our usual practice, order the respondent
to offer' them immediate reinstatement to their former or substantially
equivalent positions, or to any other available positions for which
they are qualified, without prejudice to their seniority and other
rights and privileges. We shall further order that, in the event there
sre no positions available for which they are qualified, their names
be placed on a preferential list and that they shall thereafter be of-
fered employment in any positions for which they are qualified as
such employment becomes available and before other persons are hired
for such work ; and that if the body and fender shop is! reopened, Fal-
lon, Carlson, and Herbst shall be offered immediate employment
therein. We shall also order the respondent to make whole Fallon,
Carlson, and Herbst for any loss of pay they have suffered by reason
of their discharge by payment to each of them of a sum of mondy equal
to the amount which he would normally have earned as wages from
July 29, 1939, to the date of the offer of reinstatement,5^ or placement
c The amount of compensation to be paid these employees shall not be diminished on
account of the closing of the body and fender shop since that action itself constituted an
unfair labor practice.
WILLIAMS MOTOR COMPANY 735
,upon the preferential list as above provided, less his net earnings
during said period.
Upon the foregoing findings of fact, and upon the entire record in
the case, the Board makes the fdllowing :
CONCLUSIONS OF LAW
1. Lbdge 1426, International Association of Machinists, and Wil-
liams Motor Company Employees Union are' labor organizations
within the meaning of Section 2 (5) of the Act.
2. The respondent's mechanical employees, including the auto
mechanics, auto body and fender men, trimmers, auto painters, and,
greasers, radiator repairmen, ignition men, electricians, helpers and
apprentices, excluding. office and clerical workers, salesmen, janitors,
porters, and delivery boys, and supervisors with power to hire and
discharge, constitute, and at all times material herein constituted, a
unit appropriate for the purposes of collective bargaining within the
meaning of Section 9 (b) of the Act.
3. Lodge-1426, International Association of Machinists, was on July
26, 1939, and at all times thereafter, The exclusive representative of all
,the employees in such unit for the purposes of- collective bargaining
within the meaning of Section 9 (a) of the Act.
4. By refusing on July 26, 1939, and at all times thereafter, to bar-
gain collectively, with Lodge 1426, International Association of
Machinists, as.the exclusive representative of its employees in such
unit, the respondent has engaged in and is engaging in unfair labor
practices within the.meaning of Section 8 (5) of the Act.
5. By dominating and interfering with the formation and adminis-
tration of, and by contributing support to, the Williams Motor Com-
pany Employees' Union, the respondent ,has engaged in and is engag-
.ng in unfair labor practices within the meaning of Section 8 (2) of
the Act. -
6. By discriminating in regard to the hire and tenure of employment
of Clifford Fallon, William Carlson, and John Herbst, thereby dis-
couraging membership in a labor organization, the respondent has
engaged in and isiengaging in unfair labor practices within the mean-
ing of Section 8 (3) of the Act.
6 By "net earnings" is meant earnings less expenses , such as for transportation, room,
and board, incurred by an employee in connection with obtaining work and working else-
where than for the respondent , which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elseiihere See Matter
of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of Amer-
iua, Lumber and Sawmill Worl, ers Union , Local 2590, 8 N L R . B 440 Monies received
for work performed upon Federal, State; county, 'municipal, or other work-relief projects
shall be considered as earnings See Republic Steel Corporation v N L R B 'decided by-
United States Supreme Court, November 12, 1940
736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
7. By interfering with , restraining , and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the
respondent has engaged in and is engaging in unfair Tabor , practices
within the meaning of Section 8 (1) of the Act.
8. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2 (6) and (7) of
the Act.
9. The respondent , by discharging Edwin Hanson, and by demoting
Clifford Fallon from a supervisory position , has not engaged in unfair
labor practices within the meaning of Section 8 (3) of the Act.
ORDER
Upon the basis of the above findings of fact and conclusions of law,
and pursuant to Section 10 (c) of the National Labor Relations Act,
the National Labor Relations Board hereby orders that the respondent,
Williams Motor Company, Sioux City , Iowa , its officers , agents,
successors , and assigns , shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with Lodge 1426, Interna-
tional Association of Machinists , as the exclusive representative of
its 'mechanical employees , including auto mechanics, auto body and
fender men, trimmers , auto painters and greasers , radiator repair-
men, ignition men, electricians , helpers and apprentices , excluding
office and clerical workers, salesmen , janitors, porters and delivery
boys, and supervisors with power to hire and discharge , with respect
to rates of pay, wages , hours of work, or other conditions of
employment;
(b) Dominating or interfering with the formation or administra-
tion of, and contributing financial or other support to, Williams,
Motor Company Employees ' Union, or any other labor organization
of its, employees;
(c) Recognizing the Employees ' Union as the representative of
any of its employees for the purpose of dealing with the respondent
concerning grievances , labor disputes , wages, rates of pay, hours of
employment , ,or conditions of work;
(d) Giving effect to the contract of April 1, 1939, or any other
agreement which it may have entered into with the Employees'
Union in respect to rates of pay, wages , hours of work, or other
conditions of employment ;
(e) Discouraging membership in Lodge 1426 , International As-
sociation of Machinists or any other labor organization of its em-
ployees, by discriminatorily discharging or refusing to reinstate any
of its employees or in any other manner discriminating in regard
to their hire or tenure or terms and conditions of employment;
WILLIAMS MOTOR COMPANY 737
(f) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to
form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing,' and to engage in
concerted activities for the purpose of collective bargaining or other
mutual aid or protection, as guaranteed in Section 7 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 Lodge 1426, Inter-
national Association of Machinists, as the exclusive representative
of the respondent's mechanical employees, including auto mechanics,
auto body and fender men, trimmers, auto painters and greasers,
radiator repairmen, ignition men, electricians, helpers and appren-
tices, excluding office and clerical workers, salesmen, janitors,
porters and delivery boys, and supervisors with power to hire and
discharge, with respect to rates of pay, wages, hours of work, and
other conditions of employment;
(b) Withdraw all recognition from, and completely disestablish,
the Williams Motor Company Employees' Union as the representa-
tive of any of its employees for the purpose of dealing with the
respondent concerning grievances, labor disputes, wages, rates of
pay, hours of employment, or other conditions of employment;
(c) Offer to Clifford Fallon, William Carlson, and John Herbst
immediate and full reinstatement to their former or substantially
equivalent positions, or to any other available positions for which
they are qualified, without prejudice to their seniority or other
rights, and privileges previously enjoyed; and if no such positions
are presently available, place them upon a preferential list and
thereafter offer them employment as it becomes available, in the
manner provided in the section entitled "The Remedy";
(d) Make whole Clifford Fallon, William Carlson, and John
Herbst for any loss of pay they have suffered by reason of the
respondent's discrimination against them, by payment to each of
them of a sum equal to the amount which he normally would have
earned as wages during the period from July 29, 1939, to the date
of the offer of reinstatement, or placement upon the preferential
list as provided in the section entitled "The Remedy," less his net
earnings 7 during said period; but without diminution on account
of the closing of the body and fender shop ;
(e) Post immediately in conspicuous places in its premises and
maintain for a period of at least sixty (60) consecutive days from
7 See footnote 6.
738 DECISIONS OF' NATIONAL LABOR RELATIONS BOARD
the date of posting, notices to its employees stating (1) that the
respondent will not engage in 'the conduct from Which it is ordered
to cease and desist in` paragraphs 1 (a), (b), (c), (d), (e), and (f)
of,this Order; and' (2) that the respondent will take the affirmative
action set forth in `paragraphs 2 (a), (b), (c)', and (d) of this,
Order; and that its employees are free to become or remain members
of the International Association of Machinists and the respondent
will not discriminate against any employee because of membershii
or activity in that organization; .
(f) Notify the Regional Director for the Eighteenth Region in
writing within ten (10) days from the date of this Order what steps
`it has taken to comply herewith.
_MR. EDWIN S. SMITH, dissenting in part:
I agree with the finding of the majority that the respondent discon-
tinued the operations of its body and fender shop and discharged
Fallon, Carlson, and Herbst in order to discourage membership in
the I. A. M. I do not think that the remedy provided by the majority
will effectuate the purposes of the Act. Efectuation of the policies of
the Act is achieved by restoration 'in so far as possible of the status
quo existing before the commission of the unfair labor practices." The
majority orders the respondent to reinstate Fallon, Carlson, and Herbst
to their former or substantially equivalent employment, or to any other
available positions for which they are qualified; but if no such posi-
tions are available orders that they be placed upon a preferential list
for future employment in positions for which they are qualified.
Since the respondent no longer operates a body and fender shop, and
since it appears from the evidence that it has no intention of reestab-
lishing such a shop in its plant, the respondent may be permitted to,
comply with the Board's order merely by placing on a preferential
list the names of the employees against whom it has discriminated.
As far as appears, they may remain in that status indefinitely. Clearly
the-employees will not have been placed in status quo by such action.
In order to remedy the situation as it exists and place the employees
discriminated against in status quo, the respondent should be required
to offer them immediate reinstatement to their former or substantially
equivalent employment. The Board should also order that, if neces-
sary, the respondent reopen the body and fender shop to provide such
N L R. B v. Jones & Laughlin Steel Corp , 301 U. S . 1,, reversing 83 F. (2d) 998
(C. C. A. 5) and enf 'g 1 N L. R . B. 503; N. L. R B v Black Diamond Steamship Corpora-
tion, 94 F (2d) 875 (C. C. A. 2), enforcing 3 N. L R B 84, cert denied 304 U. S. 579 ;
N L R B. v. Hamilton-Brown Shoe Co, 104 F (2d) 49 (C C. A 8), enforcing as mod.
9N.L R . B 1073.
WILLIAMS MOTOR COMPANY 739
employment. The Board has frequently dealt with situations in which
similar affirmative action has been ordered.9
The respondent, evidently anticipating that the Board might issue
,an order directing it- to reopen its body and fender' shop, presented
evidence that physical -changes made in its service department left
no space available for the body and fender shop. The respondent
should not be permitted to evade its obligations under the Act by
setting up the contention that it lacks space for a body and fender
shop after it has eliminated that shop and discharged the employees
thereof for the purpose of discouraging union membership.
To require the respondent to reopen its body and fender shop
would not necessitate drastic change since it has continued to operate
.all of- its other departments without curtailment, since it already
,employs one person as a body and fender mechanic to. do work on
its used cars, and since the respondent holds itself out to the public
as accepting body and fender work.10 .
I believe that under the circumstances the effectuation of the pol-
icies of the Act requires, and I would order, that the respondent
reopen its body and fender shop, if necessary, in order to provide
employment for Fallon, Carlson, and Herbst. '
See Matter of Isaac Schieber, A. J. Rosenberg , and Ben L. Shifrin (the last office) s and
directors of Schieber Millinery Co ) as trustees of Schicber Millinery Co and Isaac Schieber,
individually, and Allen Hat Co. and United Hatters, Cap and Millinery Woe hers' Interna-
tional Union, affiliated with the American Federation of Labor, 26 N L R B 937, in
which the Board ordered the respondents either to move their plant back to its original
location or to employ those discriminated against in the new location and compensate them
for any necessary expense entailed in their transportation, the removal to a new location
having been found to constitute an unfair labor practice (In a supplemental opinion in
this case I stated That I thought the respondents should have been ordered to return their
business to its original location and to reinstate the employees there ) Matter of Jacob
H. Klotz and Ruth Klotz, doing business under the name and style of J. Klotz and Company
and Joint Board of Suitcase, Bag and Portfolio Makers' Union, A F. of L, 13 N L R B-
746, in which the Board stated that, although a return to New York City'of the plant (the
transfer of which the Board found was an unfair labor practice) would most nearl3 achieve
the restoration of the status quo, in view of peculiar circumstances the respondent was or-
dered either to pay foi the reasonable expenses entailed in the transportation and mom ing of
the New York City union members and their families from New York City to Pawling of to
pay for the transportation biweekly from Pawling to New York City and back for those em-
ployees who wish to visit their families, at the option of the individual union members ;
Matter of Kuehnc Manufacturing Company and Local No 1;91, United Brotherhood of Car-
pentees and Joiners of America, 7 N. L R B. 304, where the plant was closed after a lock-
out and ienianied closed at the time of the hearing ; the Board ordered reinstatement either
to the closed plant when it resumed operations or to another of the respondent's plants
,See also X L. R. B. v. Republic Steel Corp, 107 F (2d) 472 (C. C. A. 3), enf'g as modified,
J N L R B 219 Cf. Dubinsky v. Blue Date Dress Co , N. Y Sup. Ct., N Y L J, Dec 31,
1936, p 2454, col 1, 50 I-larv L Rev. 700, in which the court upheld an agieement prohibit-
ing the iemoial of factories outside of a restricted area and ordered the employers to move
back within the agieed area all the machinery and other effects removed, and United States
v American Lii.estocl, Commission Company, 279 U S 435, 'wherein the court upheld an
order of tie Secretaiy of Agriculture requiring the company to discontinue a boycott
against another company, found to be in violation of the Packers & Stockyards Act, 42
Stat. 159, and by v loch boycott the first company refused to do business with the second
10 As stated in the majority opinion, the respondent accepts body and fender work from
customers but turns such wok over to other shops
44184:;-42-i of 31-48