Dealers Engine Rebuilders, Inc.

National Labor Relations Board - Board Decisions

Aug 8, 1951

95 N.L.R.B. 1009 (N.L.R.B. 1951)

DEALERS ENGINE REBUILDERS, INC. 1009
If a majority of these employees vote for the Petitioner, they will
be taken to have indicated their desire to be included in the production
and maintenance unit currently represented by the Petitioner, and the
Petitioner may bargain for such employees as part of the existing
unit.
[Text of Direction of Election omitted from publication in this
volume.]
DEALERS ENGINE REBUILDERS , INC. and LODGE No. 325 , INTERNATIONAL
ASSOCIATION OF MACHINISTS . Case No. 32-CA- 1 48. August 8,
1951
Decision and Order
On April 12, 1951, Trial Examiner John H. Eadie issued his In-
termediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it he ordered to cease and desist
therefrom and take certain affirmative action, as set forth in the copy
of the Intermediate Report attached hereto. Thereafter the Re-
spondent and the charging union 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 the case and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, with the following additions and
modifications:
1. We agree with the Trial Examiner's conclusion that the Re-
spondent refused to bargain with the Union in violation of Section
8 (a) (5) and (1) of the Act on and after February 14, 1949.
The Union was certified as the collective bargaining representative
on November 29, 1949. By letter of December 1, 1949, the Union
requested a prompt bargaining conference and enclosed a copy of
their proposed contract. No reply was received. After a number
of phone calls and personal visits to the Respondent, a bargaining
conference was finally held almost 2 months after the initial request,
on January 20, 1950, at the office of Wayne Owen, the Respondent's
attorney. When the Union requested discussion of their proposed
1 Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its
powers in respect to this case to a three -member panel [Members Houston, Reynolds, and
Styles]
95 NLRB No. 125
1010 DECISIONS OF• NATIONAL LABOR RELATIONS BOARD
contract, Owen replied that he had probably sent his copy to another
attorney, Burrow, a labor specialist, who had been retained by the
Respondent in December to conduct their negotiations with the
Union, but who was not present at this meeting: The next bargain-
ing conforence was held at Burrow's office on February 14, 1950, but
only after an earlier conference had been canceled by Owen. Bur-
row. submitted the Respondent's proposed contract. Clauses con-
cerning wages and vacations, both issues which were of paramount
importance to the Union, were, left blank. The meeting terminated
with the agreement that the parties would meet again on February
20, at which time the Respondent would submit their wage and vaca-
tion proposals. The Union in the interim was to redraft clauses
which they found objectionable in the Respondent's proposed contract.
On February 17, the Union sent Burrow a letter with the contract
clauses they had agreed to submit and requested the Respondent's
wage and vacation proposals.
' The February 20 conference was postponed by Owen to February
24, and on February 24 it was again postponed by Owen until March
3, 1950. At this March 3 meeting the Respondent rejected the
Union's proposed contract clauses and made no proposals whatso-
ever concerning wages and vacations. A meeting on March 29,
again arranged as a result of persistent phone calls by the.Union,
was held at Burrow's office, and lasted only 25 minutes. Burrow
adjourned this meeting, stating that he had another appointment.
The next meeting, which was held on April 12, at Burrow's office, was
devoted to a discussion of job classifications, and a tentative agree-
ment was reached on this issue.
Again, only after a number of phone calls by the Union, was another
conference held on May 9, at Burrow's office. The Union reiterated
its desire to negotiate a contract and agreed to "accept the Respondent's
initially proposed contract if the Respondent would agree to a general
wage increase and vacation plan. The Respondent refused to accede
to.this. At the close of the meeting the Union expressed its dissatis-
faction with the bargaining progress and stated they were going to get
a Federal labor conciliator to arrange the next meeting.
The next meeting, on May 24, 1950, was arranged and attended by a
U. S. labor conciliator and held in Little Rock's Post Office build-
ing. The parties agreed that wages, vacations, and job classifications
were the major issues, but could not agree on a resolution of them.
On June 2, 1950, union representatives met with the Respondent at
the Respondent's plant and an agreement was reached on job classi- -
fications. The Union's renewed suggestion of a 10 cents per hour
general wage increase was flatly rejected.
DEALERS ENGINE REBUILDERS, INC. 1011
A final meeting, at the Post Office building, with a conciliator pres-
ent, was held on June 22, 1950. The Union again, urged a wage in-
crease. At the conclusion of the meeting the Union stated. that it
would accept the Respondent's proposed contract without any wage
increase, if the Respondent would reinstitute a vacation plan. The
Respondent replied that "vacations are still money" and that their
financial position was such that they could make no offer to the Union
which involved any additional expense.
On June 26, 1950, union negotiators visited the plant in a last at-
tempt to reach an agreement and were told by the Respondent's
president that they had nothing further'to offer the Union.
On August 4, 1950, the Union filed an unfair labor practice charge
with the Board. About November 1, 1950, in a telephone conversation
with the Respondent, the Union again attempted to resume contract
negotiations. The Respondent refused because of the pending charge.
The Union offered to withdraw the charge if a contract were nego-
tiated. The Respondent replied that its position had not changed
since the last June meeting and that it would not enter into any con-
tract which provided for any wage increase or vacation plan.
On these facts, more fully described in the Intermediate Report, we
conclude, as did the Trial Examiner, that the Respondent's entire
course of conduct during the period in question was characterized by
delays and other dilatory tactics, which stamps that conduct as some-
thing less than the good-faith bargaining which the statute requires.
Meetings were held only after persistent requests by the Union and
after numerous postponements by the Respondent. When they were
held the Respondent usually appeared without any concrete proposals
to resolve the disputed issues, and generally failed to demonstrate
any sincere purpose, to reach an agreement 2 And finally, the Re-
spondent refused to negotiate at all because of the pending unfair
labor practice charges.
Other facts in the record before us further demonstrate the Re-
spondent's bad faith in negotiations with the Union. As noted above,
during the entire period of negotiations the Respondent adamantly
refused all demands for wage increases on the ground that its financial
position made it impossible to grant any increases. Even when the
Union proposed to drop its wage demands in return for a vacation plan
the Respondent refused, asserting that "vacations are still money," and
that it could not afford to increase its expenses in any respect. Yet'
during this same period-from March to December, 13, 1949,-the
2 In making this finding, however, we do not rely, as did the Trial Examiner, on the
period of time consumed in bargaining or on the failure of the Respondent to make
conceae ona.
961974-52-vol. 95-65
1012, DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent saw fit, and found the means, to grant 17 individual merit
increases to its employees. l The gross inconsistency between this con-
duct and the position the Respondent took in negotiations with the
Union on the wage issue is an additional indication of the Respond-
ent's lack of good faith in bargaining. When considered together
with the generally dilatory conduct of the Respondent discussed above,
the conclusion that the Respondent bargained in bad faith during the
period in question, is clear.
2. In addition to the 17 merit increases discussed above, the Re-
spondent granted about 40 individual merit increases during the
period from December 13, 1950, through January 1951. On 5 occa-
sions the Respondent advised the Union of its desire to grant the
increases , and asked the Union's advice. The Union protested the
increases , reiterated its desire for a general wage increase and re-
quested a conference to discuss the problem. The Respondent failed
to- reply and thereafter granted the wage increases.
The Respondent contends that its action was .justified because a
bargaining impasse had been reached .s We cannot agree. Part of
the Union's response to the Respondent's inquiry to the Union concern-
ing the proposed increases was a request to discuss the problem with
the Respondent. This the Respondent ignored. In these circum-
stances it can hardly be said that an impasse existed on that issue.
Accordingly, we find that the Respondent's unilateral institution of
the wage increases was in disregard of its duty to bargain collectively
and undermined the authority of the Union, and that the Respondent
thereby further violated Section 8 ( a) (5) and (1) or the Act.'
.3. We agree with the Trial Examiner's finding that Foreman Estes'
promise to employee Gillham, "that he could get him a pretty nice
raise if he would forget the Union," constituted an independent vio-
lation of Section 8 (a) (1) of the Act. However, particularly in view
of our finding of violations of Section 8 -(a) (5), we do, not agree
with the Trial Examiner that this violation is so isolated as to warrant
its exclusion from our order. Accordingly we shall include a pro-
vision directed against this violation in the order herein.
Order
Upon the entire record in the case and pursuant to Section 10 (c) of
the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Dealers Engine
8 See J. I. Case Company v. N. L. R. B., 321 U. S. 332; W. W. Cross Incorporated,
77 NLRB 1162 (and cases cited therein).
4 Crow-Burlingame Company, 94 NLRB 997.
t)EAttR8 ENGINE II,EEIJILDERS, INC. 1013
Rebuilders, Inc., Little Rock, Arkansas, its officers, agents, successors,
and assigns shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with Lodge No. 325, Inter-
national Association of Machinists as the exclusive representative of
all employees in the appropriate unit with respect to rates of pay,
wages, hours of employment, or other conditions of employment.
(b) Promising wage increases if employees resign from the Union.
(c). In any like or related manner interfering with, restraining,
or coercing its employees in the exercise of the right to self-organi-
zation to form labor organizations, to join or assist Lodge No. 325,
International, Association of Machinists, or any other labor organi-
zation, to bargain collectively through representatives of their own
choosing and to engage in other concerted activities for the purposes of
collective bargaining or other mutual aid or protection, or to refrain
from any or all of such activities, except to the extent that such 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 Lodge No. 325, Inter-
national Association of Machinists as the exclusive representative of
all employees in the appropriate unit, and embody any understanding
reached in a signed agreement.
(b) Post at its plant in Little Rock, Arkansas, copies of the notice
attached hereto and marked "Appendix A." 5 Copies of such notice,
to be furnished by, the -Regional Director for the Fifteenth Region,
shall, after being duly signed by the Respondent's authorized repre-
sentative, be posted by the Respondent immediately upon receipt
thereof, in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall be taken
by the Respondent to insure that said notices are not altered, defaced,
or covered by any other material.
(c) Notify the Regional Director for the Fifteenth Region in writ-
ing, within ten (10) days.from the date of this Order what steps the
Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed, insofar as it alleges that the Respondent discharged N. G.
Gillham in violation of Section 8 (a) (3) and 8 (a) (1) of the Act.
6 In the event that this Order is enforced by a decree of a United States Court of Appeals,
there 'shall be inserted before the words, "A Decision and Order" the words , "A Decree
of the United States Court of Appeals Enforcing."
1014 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Appendix A :
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
WE WILL NOT refuse to bargain collectively with LODGE No. 325,
INTERNATIONAL ASSOCIATION OF MACHINISTS as the exclusive rep-
resentative of all employees in the appropriate unit described
below.
WE WILL NOT promise wage increases if employees resign from
the Union.
AVE WILL NOT in any like or related manner interfere with, re-
strain, or coerce our employees in the exercise of their right to
self-organization, to form labor organizations, to join or assist
LODGE No. 325, INTERNATIONAL ASSOCIATION OF MACHINISTS, or
any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in other
concerted activities for the purposes of collective bargaining o I r
other mutual aid or protection, or to refrain from any or all of
such activities, except to the extent'that such right may be affected
by an agreement requiring membership in a labor organization as
a condition of employment as authorized in. Section 8 (a) (3) of
the Act.
WE WILL bargain collectively upon request with LODGE No. 325,
INTERNATIONAL ASSOCIATION OF MACHINISTS as the exclusive rep-
resentative of all employees in the bargaining unit described
herein, with respect to grievances, labor disputes, wages, rates of
pay, hours of employment, and other conditions of employment,'
and if an understanding is reached, embody such understanding
in a signed agreement. The bargaining unit is:
All production and maintenance employees at Respond-,
ent's Little Rock, Arkansas, plant, including all employees
engaged in dismantling and assembling motors, partsmen and
inspectors, but excluding office-clericarls, professional and
and technical employees, watchmen, guards, and supervisors.
All our employees are free to become or remain members of the
above-named union or any other labor organization.
DEALERS ENGINE REBUILDERS, INC.,
Employer.
Dated ---------------- By ----------------------------------
(Representa .tive ) (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.
-,DEALERS ENGINE REBUILDERS, INC. 1015
. Intermediate Report
STATEMENT OF THE CASE.,
Upon a charge duly filed by Lodge No. 325, International Association of
Machinists, herein called the Union, the General Counsel of the National Labor
Relations Board, respectively called herein the General Counsel and the Board,
by the Regional Director for the Fifteenth Region (New Orleans, Louisiana),
issued a complaint dated January 23, 1951, against Dealers Engine Rebuilders,
Inc., herein called the Respondent, alleging that the Respondent has engaged in,
and is engaging in, unfair labor practices affecting commerce within the meaning
of Section 8 (a) (1), (3), and (5) and Section 2 (6) and (7) of the National
Labor Relations Act, as amended, 61 Stat. 136, herein called the Act.
With respect to the unfair labor practices, the complaint alleges that: (1) On
or about November 18, 1949, a majority of the employees in an appropriate unit
designated and selected the Union as their collective bargaining representative
in an election conducted by the Board; (2) on or about December 1, 1949,
the Union requested the Respondent to recognize it as.the exclusive representative
of the employees in the appropriate unit and to bargain collectively with respect
to rates of pay, wages, hours of employment, and -other conditions of employ-
ment; (3) on and after February 5, 1950, the Respondent bargained directly
and individually with its employees in the appropriate unit; (4) on or about
February 5, 1950, and at all times thereafter, the Respondent failed and refused
to bargain collectively with the Union; (5) the Respondent on or about
April 17, 1950, discharged N. G. Giliham and thereafter failed and refused to
.reinstate him because of his membership in and activities onbehalf of the Union;
and (6) beginning on or about February 5, 1950, the Respondent engaged
in certain acts of interference, restraint, and coercion.
The Respondent filed an answer in which it admitted the jurisdictional allega-
tions of the complaint but denied the commission of any unfair labor practices.
Pursuant to notice, a hearing was held at Little Rock, Arkansas, on March 5
,and 6, 1951, before the undersigned Trial Examiner duly designated by the
Chief Trial Examiner. All of the parties were represented by counsel. Full
opportunity to be heard, to examine and cross- examine witnesses , and to introduce
evidence bearing on the issues was afforded all -parties. At the close of the
whole case, the Respondent moved to dismiss the complaint. Ruling on the
motion was reserved. The motion to dismiss is disposed of as hereinafter
indicated. The General Counsel moved to conform the pleadings to the proof
as to names, dates, and other minor variances. The motion was granted without
objection.
None of the parties presented oral argument" at the conclusion of the case.
The General Counsel has filed a memorandum brief with the Trial Examiner.
Upon the entire record in the case, and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent Is an Arkansas corporation with its place of business located
at Little Rock, Arkansas, where it is engaged under a franchise from the Ford
Motor Company in rebuilding motors for Ford automobile dealers in a territory
embracing parts of the States of Arkansas, Missouri, Alabama, Mississippi,
Tennessee, and Kentucky.
The Respondent annually spends approximately $300,000 for materials, sup-
plies, and services, of which amount in excess of $250,000 is for parts shipped
1016 DECISIONS O' . NATIONAL LABOR RELATIONS BOARD
from the Ford Motor Company's branch at Memphis, Tennessee, and in excess
of $25,000 is for the reconditioning of parts by the Midland Manufacturing Com-
pany of St. Joseph, Missouri. The Respondent annually performs services having
a value in excess of $300,000, of which amount in excess of $250,000 is received
for services for dealers located outside the State of Arkansas.
II. THE ORGANIZATION INVOLVED
Lodge 325, International Association of Machinists, is a labor organization
which admits to membership employees of the Respondent.
M. THE UNFAIR LABOR PRACTICES
A. The refusal to bargain
1. The appropriate unit and representation of a majority therein
The complaint alleges that all production and maintenance employees at
•Respondent's Little Rock, Arkansas, plant, including all employees engaged in
dismantling and assembling motors, partsmen, and inspectors, but excluding
office-clericals, professional and technical employees, watchmen, guards, and
supervisors, constitute a unit appropriate for the purposes of collective bargain-
ing. The Respondent's answer admits this allegation of the complaint. No
evidence was adduced at the hearing which would conflict with the unit alleged
to be appropriate.
Accordingly, the undersigned finds that said unit has at all times material
herein constituted and does now constitute, an appropriate unit within the
meaning of the Act ; he finds that said unit will insure to the employees of the
Respondent the full benefit of their rights to self-organization and collective
bargaining, and otherwise effectuate the purposes of the Act.
The record discloses that on November 18, 1949, a majority of the employees
in said unit by a secret election conducted by the Board designated and selected
,the Union as their exclusive representative for the purposes of collective bar-
gaining.' The Board certified the Union as such representative on November
29, 1949. The Respondent's answer admits the complaint's allegation of ma-
jority.
Accordingly, I find that the, Union on and at all times after November 18, 1949,
represented a majority of the employees in the appropriate unit for the purposes
of collective bargaining.
2. The negotiations ; merit wage increases
By letter dated December 1, 1949, the Union requested the 'Respondent for
a bargaining conference. A proposed contract was enclosed with the letter.
After waiting several days and not receiving an answer from the Respondent,
W. C. Harris, a special representative of the Union, went to the office of Wayne
Owen, the Respondent's attorney, in order to make arrangements for a bar-
gaining conference. However, Owen would not agree to a date for a conference,
explaining that the Respondent at the time was changing the manager of its
plant. Thereafter, and through the early part of January 1950, Harris made
,a number of telephone calls to Owen.in an attempt to set a date for a conference,
but was unable to get Owen to agree to any definite date.
1 Of 12 elI'ible voters in the appropriate unit, 10 cast'their votes in favor of the Union
,and none voted against it . There was 1 void ballot.
DEALERS ENGINE REBUILDERS, INC. 1017
Through the efforts of a conciliator of the United States Conciliation Service,
the date for the first bargaining conference was scheduled for January 20, 1950,
at Owen's office. Harris, Charles Mulholland, a Grand Lodge representative
of the Union, and a negotiating committee of the employees represented the
Union at the meeting. Owen and a Mr. Toms, Respondent's production manager
at the time, represented the Respondent. The conciliator also was present at
the meeting. When the Union suggested a discussion of its proposed contract,
Owen was unable to locate it and stated that he probably had sent it to Law-
rence B. Burrow, an attorney who had been retained by the Respondent to
represent it during the negotiations. Although the Respondent had decided
at some time during December to retain Burrow, the Union had not been notified
until the meeting at Owen's office.
The next meeting was scheduled for February 8, but was postponed by Owen
until February 14. This meeting was held at Burrow's office. Burrow, Toms,
and William Kelley, president and general manager of the Respondent, rep-
resented the Respondent . Burrow presented to the union representatives a
proposed contract that he had drafted.. This proposal was shorter than the
Union 's, and clauses, covering wages and vacations were left blank . Some of
its clauses, particularly those pertaining to hours of work, overtime, seniority,
and grievance procedure, were not acceptable to the Union. It was agreed that
the Respondent would present its vacation and wage proposals at the next
meeting, and that the Union would redraft and forward to Burrow the clauses
"which it had found objectionable.
Harris sent Burrow a letter, dated February 17, 1950, in which he requested
that Toms forward to the Union the Respondent's wage and vacation proposals:
Enclosed with the letter were the proposed contract clauses which the Union
had agreed to submit.
At the February 14 meeting, the parties had agreed tentatively on February 20
as the date of the next meeting. Owen called Harris on February 20 and post-
poned the meeting until February 24. On February 24, Owen called Harris and
again postponed the meeting until March 3. A meeting was held on that date
in Burrow's office. The Respondent stated that the Union's proposed clauses
which Harris bad submitted to Burrow were not acceptable. The Respondent
did not make any wage or vacation proposals. In this connection, the Respond-
ent's representatives stated that the employees were not producing sufficiently
and were turning out too many rejected motors,, and that the Respondent's wages
compared favorably with those of its competitors in Little Rock. .
After making a number of telephone calls to Owen, Harris finally succeeded in
getting a conference scheduled for March 29. This meeting also was held at
Burrow's office, and lasted for only about 25 minutes. It was adjourned by
Burrow who stated that he had another engagement. At the conclusion of the
meeting, Harris told Kelly that he thought the Respondent was "trying to give
[the Union] the run-around on these meetings" and that he was going to have the
conciliator arrange the next meeting. -
A meeting was held on April 12 at Burrow's office. It appears that discussion
at this meeting was confined mainly to job classifications. It was agreed by
the parties that the union representatives would go to the plant with Toms and
attempt to reach agreement on this subject. The union representatives met with
Toms that same day. William Barenthaler, who later replaced Toms as pro-
duction manager, also was present as a representative of management. A tenta-
tive agreement between Toms and the union representatives was reached on
job classifications. However, Barenthaler objected for the reason that two
skilled employees were not included in the top classification.
1018 DECISIONS' OF NATIONAL LABOR RELATIONS BOARD
By making telephone calls to Owen and Burrow, Harris arranged for another
bargaining conference on May 9 at Burrow's office. At the start of this meeting
the Respondent set up a recording machine. Toms was not present as he had
been replaced by Barenthaler as production manager. At the start of the meet-
ing, Mulholland wanted to know who, was authorized to negotiate for the
Respondent. Kelly stated that he was the authorized representative. Mulhol-
land then said that the Union had been negotiating with the Respondent "for a
good while" ; that the parties should try to reach "some kind of an agreement" ;
that the Union wished to negotiate an agreement that would be acceptable to both
the Respondent and the union members ; that the Respondent's proposals were
not "to the liking" of the employees ; and that if the Respondent would agree
to a "substantial" wage increase and "restore the' vacations," 2 he would recom-
mend to the employees that they accept the Respondent's proposals. At the con-
clusion of the meeting, Mulholland accused the Respondent of "trying to stall
the bargaining" and of not bargaining in good faith, and stated that he was going
to get the conciliator to arrange another meeting. '
The next meeting was arranged by the conciliator. It was held on May 24
at the United States Post Office in Little Rock, and was attended by the con-
ciliator. The parties agreed that job classifications, wages, and vacations were
the main issues which were holding up an agreement. Concerning job classifi-
cations, Kelly stated that anything agreed to by Barenthaler would be acceptable
to him. No agreements were reached at the meeting.
On June 2, 1950, the union representatives met with Barenthaler at the
Respondent's plant. They reached an agreement on job classifications 8 At this
meeting Mulholland suggested a general wage increase of 10 cents per hour.
Another meeting was held at the Post Office on June 22 with the conciliator
present. At the start of the meeting conditions at the plant were discussed.
Kelly admitted that production had increased and that motor rejects had
lessened. The union representatives argued that in view of the better conditions
at the plant the Respondent should grant a wage increase. The Respondent's
representatives stated that they were not in a position to offer any wage increase.
At the end of the meeting, Harris stated that he would recommend to the
employees that they accept the Respondent's proposed contract without a general
wage increase if the Respondent would "restore the vacations." Kelly replied
that "vacations are still money" and that the Respondent's financial position was
such that he could not make any offer to the Union 4
Harris and Mulholland called at the Respondent's plant on June 26, 1950,
and spoke to Kelly. They told him that they were anxious to reach an agree-
ment with the Respondent. Kelly replied that he did not have anything further
to offer the Union.
On August 4, 1950, the Union filed with the Board an unfair. labor practice
charge against the Respondent. On about November 1, 1950, Harris had a
z Before 1949 , the Respondent' s employees received paid vacations. With the exception
of some three or four old employees, vacations were not granted during 1949. It is not
contended that vacations were abolished because of the advent of the Union.
8 As related above, a tentative agreement on job classifications was reached with Toms
on April 12. It appears that the June 2 agreement took care of Barenthaler' s original
objections. The General Counsel does not claim this to be a retraction 'on the Respondent's
part.
4 Harris and employee Alfred Quick, a member of the employees' bargaining committee,
testified that Harris made the above offer to Kelly. Kelly denied that Harris made such
an offer . Barentbaler and Clarence Thomas, secretary. of the Respondent, testified that
the conciliator told the Respondent's representatives that in his opinion the Union would
accept the Respondent 's proposals if vacations were restored. The undersigned credits
the testimony of Harris and Quick in this connection.
DEALERS ENGINE REBUILDERS, INC. 1019
telephone conversation with Kelly. Harris stated, in substance, that he wanted
to resume negotiations for a contract. Kelly replied that he could not resume
negotiations since the Union had filed an unfair labor practice charge. Harris
then said that the charge could be withdrawn if the Respondent would sign
an agreement with the Union. Kelly replied to the effect that the Respondent's
position had not changed since the last bargaining conference ; that the Respond-
ent would sign a contractrwhich,kdid not provide for vacations and a general wage
increase ; and that if this was not acceptable to the Union, the dispute should be
left for the Board to decide.'
On about December 1, 1950, Richard Brown, Respondent's production manager
at the time, requested Harris to come to the plant. He requested Harris'
approval of an incentive plan that he wished to put into effect in the plant.
Harris told Brown that he would have to call a meeting of the employees in
order to get their approval. Thereafter, Harris met with the employees and
they rejected the plan. Harris wrote a letter to • Kelly on December 6, ' 1950,
in which he advised him that the incentive plan was not acceptable to the
employees, that they desired a general wage increase, and that the Union would
be "pleased" to negotiate agreements covering wages and other conditions of
employment.
The record discloses that during the bargaining negotiations the Respondent
granted wage increases to some of its employees. The increases were based
upon merit, and the Respondent did not advise or consult with the Union when,
they were granted,' Four such increases were granted in March 1950, one in
August, four in October, five in November, and three on December 1, 1950.
From December 13, 1950, to January 23, 1951, the Respondent sent the Union
five letters in which the Respondent stated it desired to grant "merit
increases" to certain employees- and asked for the Union's "consideration and
advice." By letters dated January 6'and January 24, 1951, the Union advised
the Respondent that it did not approve of the merit increases, protested that
they were illegal, and suggested that contract negotiations be resumed. The
Respondent did not' answer the Union's letters. Without further negotiations
with the Union the Respondent granted about`40 merit wage increases.'
3. Conclusions on the refusal to bargain
The undersigned finds that the.Respondent in violation of Section 8 (a) (5) of
the Act did not bargain in good faith with the Union on and after February 14,
19508 Although throughout the negotiations the Respondent consistently re-
fused to grant any general wage increase, contending either that it was financially
unable to do so or that it was paying the same wages as its competitors, at the
same time it unilaterally granted merit increases to its employees. Standing
alone, this evidence shows the Respondent's bad faith during the negotiations.
Further, the uncontradicted testimony of Harris conclusively shows that the
Respondent sought to stall and delay the negotiations. He always had to take
the initiative in arranging bargaining conferences and constantly had difficulty
in reaching the Respondent's representatives or in getting them to set dates.
6 The above conversation is based upon th'e testimony of both Harris and Kelly.
6 After several written requests from the Union for information concerning wage
increases . Barenthaler by letter dated July 31, 1950 , advised Harris that since he had
been employed by the Respondent only two employees had received wage increases. . .
P It appears that at least some of the employees involved were not within the appropriate
unit.
8 Since the charge was filed on August 4, 1950 , all evidence before February 5, 1950,
has been considered herein for background purposes only.
1020 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for conferences. When he called Owen's office during his absence, Owen did not
call him back. It appears that Owen only called Harris when he wished to post-
pone a meeting. The conference on March 29 was adjourned by Burrow after
lasting for only about 25 minutes, and-no notice was given previously to the
Union that the meeting would be of such short duration. Taking into con-
sideration the long period of time consumed by the negotiations, and the few,
if any, important concessions made by the Respondent to the Union, I am con-
vinced and find that the delays and stalling were deliberate on the Respondent's
part and that such action constitutes further evidence of the Respondent's bad
faith during the bargaining negotiations.
It is also found that the unilateral wage increases constitute separate and
distinct violations of Section 8 (a) (5) of the Act.
B. The discharge of N. G. Grillham
Gillham was employed by the Respondent from November 1948 until his dis-
charge on April 17, 1950, except for a period of about 2 months during November
and December 1949, when he was absent due to illness. He worked in the Re-
spondent's "cripple" department on rejected motors. He also at times worked
on the production line, helping employees when they were behind on their
operation.
Before his discharge Gillham had been.employed in the machinist trade for'
about 21 years, of which time he had been a foreman for 14 years for another
company. Estes, his foreman at the Respondent's plant, on several occasions
asked his advice and requested him to investigate errors in production.
About July 1949, W. C. Harris, special representative of the Union, heard that
the Respondent's employees desired union organization. Thereafter,. he spoke
to Gillham and employees Quick and Cranford, and gave them union-authoriza-
tion cards. - Gillham distributed the cards among the employees and returned
them to Harris after they had been signed.
On about April 1, 1950, Estes called Gillham into the parts department. He
told Gillham that he could get him and six ,other employees, including himself,
a "pretty nice raise" if they would forget the Union. Gillham replied; that he
"wouldn't do that" but that he would speak to the. other employees about it.,
The subject was not mentioned by either Estes or Gillham thereafter. It is
found that Estes' statement constitutes interference, restraint, and coercion.
At the end of the working day on April 17, 1950, Estes discharged Gillham,
stating at the time, "I hate to do this, but I am going to have to let you go. I
know you are a good man, good machinist, and you can get better jobs than we
are going to have here the way we are going to have to do our work." Gillham
returned to the plant the following morning and asked Estes to give him a letter of
recommendation and a statement showing the reason for his discharge. In the
letter of recommendation Estes stated, "I highly recommend Mr. Gillham as a
skilled automotive machinist." The discharge statement reads as follows :
Mr. Gillham is a very skilled machinist and does excellent work. The
reason for his lay-off by Dealers Engine Rebuilders is that he has had no
experience on assembly line production and does not have speed necessary
for this type of work.
9 Gillham testified credibly and without contradiction to the above conversation. Estes,
who left the Respondent 's employ about June 1950, did not appear as a witness at
the hearing.
DEALERS ENGINE REBUILDERS, INC. 1021
At some time before August 1950, Harris and Gill-ham conferred with Pro-
duction Manager Barenthaler concerning the possibility of Gillham's rein-
statement by the Respondent. Barenthaler stated that in his opinion Gillham
was the type of employee who needed close supervision, but that he was willing
to give Gillham "another chance" if he was willing to take a job on the produc-
tion line. Harris then raised the question of back pay for the time lost by
Gillham. While Gillham and Harris were present, Barenthaler called Kelly
and consulted with him on the question. Kelly refused to approve any back pay
for Gillham. Barenthaler then offered to give Gillham a job without back pay.
Harris stated that he would give Barenthaler an answer later. When Baren-
thaler did not hear from Harris or Gillham, he sent Henry Sanders, who had
been made foreman on June 1, to see Gillham and ask him. if he was going to
return to work.3° As of the date of. the hearing, Gillham had not returned to
work.
I believe and find that the General Counsel has failed to sustain the burden
of proving that Gillham was discharged discriminatorily.
It is undisputed that the quality of Gillham's work was satisfactory and that
lie was a known adherent of the Union. According to Estes' statement, Gillham
was discharged because he did not have enough experience and speed on pro-
duction-line work. Concerning the discharge, Barenthaler, who impressed the
undersigned as a reliable and credible witness, testified to the effect that he re-
quested Foreman Estes to put a man on valve setting so that he could make a
time study of the operation ; that Estes placed Gillham on the job ; that Gillham
was so inefficient on valve setting that a time study was useless ; that he noticed
Gillham walking about the plant when he worked on rejects ; that Estes told
him that he was not "entirely satisfied" with Gillham's work, and that since
there was very little supervision over him on the reject work he wanted to
put him on the production line; that he told Estes that since he (Barenthaler)
was trying to improve the efficiency of the production line, Gillham could not
work on it; and that he also told Estes that if he had "no other recourse," he
should discharge Gillham.
It appears from the record that the final decision to discharge Gillham was
made by Estes. The only evidence from which a discriminatory motive might
be inferred is his conversation with Gillham on or about April 1, 1950, related
above. In my opinion, this is not sufficient. Gillham was one of the original
organizers of the Union and apparently was recognized as one of its leaders
by Estes. However, it appears that other employees were equally or more active
in union affairs, but were not discriminated against by the Respondent. Em-
ployees Quick and Cranford were on the employees' bargaining. committee and
attended the bargaining conferences. In fact, Sanders, who was a member of
the Union and served as its observer at the election, was promoted to foreman
by the Respondent. -
Accordingly, it will be recommended that the complaint be dismissed as to
William.
10 Barenthaler testified credibly and without contradiction to the above facts. Gillham
testified that Sanders told him that he needed a man to run the "line boring machine"
and that he probably could get Gillham the job. Sanders, a witness for the General
Counsel, testified that during August and September 1950, he twice attempted to get
Gillham reinstated ; that he told Barenthaler that he needed a "line ring man" and would
like to get Gillham for the job ; and that Barenthaler later told him that he could not
rehire Gillham because of the "higher ups."
1022 DECISIONS- OF NATIONAL LABOR RELATIONS BOARD
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in Section III, above, occurring in
connection with the operations of the Respondent described in Section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States, and tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices, the
Trial Examiner will recommend that it cease and desist therefrom and take
certain affirmative action designed to effectuate the policies of the Act.
It has been found that the Respondent by its course of conduct on and after
February 14, 1950, refused to bargain collectively with the Union as the ex-
clusive representative of its employees in a unit appropriate for the purpose of
collective bargaining. Accordingly, it will be recommended that the Respondent
bargain collectively, upon request, with the Union as the exclusive representative
of its employees in the appropriate unit,. and that the Respondent embody any
understanding reached in the course of such collective bargaining, upon request,
in a written agreement, signed by the parties affected thereby.
- It has also been found that Foreman Estes' statement to Gillham on about April
1, 1950, constitutes interference. Since this is an isolated instance, the under-
signed does not believe that it would effectuate the purposes of the Act to recom-
mend that the Respondent cease and desist from such action.
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, I make the following :
CONCLUSIONS OF LAW
1. Lodge No. 325, International Association of Machinists, is a labor organiza-
tion within the meaning of Section 2 (5) of the Act.
,2. All production and maintenance employees at Respondent's Little Rock,
Arkansas, plant, including all employees engaged in dismantling and assembling
motors, partsmen, and inspectors, but excluding office-clericals, professional and
technical employees, 'watchmen, guards, and supervisors, constitute a unit ap-
propriate for the purpose of collective bargaining within the meaning of Section
9 (b) of the Act.
3. The Union was on November 18, 1949, and at all times since has been, the
exclusive representative within the meaning of Section 9 (a) of the Act of all
employees in the aforesaid unit for the purposes of collective bargaining.
4. By refusing to bargain collectively with the aforesaid Union as the ex-
clusive representative of the employees in the appropriate unit, the Respondent
has engaged and is engaging in unfair labor practices within the meaning of
Section 8 (a) (5) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2- (6) and (7) of the Act.
[Recommended Order omitted from publication- in this volume.]