Denver Automobile Dealers Association

National Labor Relations Board - Board Decisions

Jan 17, 1939

10 N.L.R.B. 1173 (N.L.R.B. 1939)

In the Matter of DENVER AUTOMOBILE DEALERS ASSOCIATION, A COR-
PORATION; THE MOUNTAIN MOTORS COMPANY, A CORPORATION; R. R.
HALL, INC., A CORPORATION; MARCUS MOTORS, INC., A CORPORATION;
LARSON-NASH MOTORS CO., A CORPORATION; NEIL R. CULLEN, F. C.
CULLEN, AND WARD J. THOMPSON, INDIVIDUALS DOING BUSINESS UNDER
THE FIRM NAME AND STYLE OF CULLEN-THOMPSON MOTOR COMPANY;
HOWRY-BERG, INC., A CORPORATION; DENVER AUTOMOBILE DEALERS
ASSOCIATION, THE MOUNTAIN MOTORS COMPANY, E. J. JOHNSON,
INC., R. R. HALL, INC., HOSKINS-BEATTY MOTOR CO., LARSON-NASH
MOTORS Co., THE MCCARTY-SHERMAN MOTOR COMPANY, MARCUS
MOTORS, INC., METROPOLITAN PONTIAC, INCORPORATED; DENVER AII-
TOMOBILE DEALERS ASSOCIATION, COLORADO REO, INC., NEIL R. CuL-
LEN, F. C. CULLEN, AND WARD J. THOMPSON, INDIVIDUALS DOING
BUSINESS UNDER THE FIRM NAME AND STYLE OF CULLEN-THOMPSON
MOTOR COMPANY, HOWRY-BERG, INC., JAMES MOTOR COMPANY,
STOVALL-HILLIKER MOTOR COMPANY and CAPITOL AUTOMOTIVE LODGE
No. 606, INTERNATIONAL ASSOCIATION OF MACHINISTS
Cases Nos. CD.f4 to 0-552 , inclusive .Decided January 17, 1939
Automobile, Automobile Trailer, and Automobile Parts and Accessories Sales
and Servicing Industry-Interference, Restraint, and Coercion: charges of, dis-
missed as to certain respondents-Units Appropriate for Collective Bargaining:
designated categories of wvorkers.engaged in the care and maintenance of auto-
mobiles employed by each of the automobile dealers or distributors, respectively,
excluding those having authority to employ and discharge and those whose
duties are of a clerical nature-Representatives: proof of choice: membership
in union-Collective Bargaining: bargaining with individual dealers or dis-
tributors precluded by agreement imposing penalty of $1,000, refusal of dealers
and distributors to bargain upon a collective basis, failure to offer counter-
proposals, and failure to negotiate in good faith ; charges of failure to bargain
collectively dismissed as to certain respondents-Strike: caused by employers'
unlawful refusal to bargain collectively with union-Company-Dominated Unions:
domination of and interference with formation and administration ; coercion
to join; disestablished, as agencies for collective bargaining ; charges of, dis-
missed as to certain respondents-Contracts: with organizations found to be
company-dominated, void; employers ordered to cease giving effect to-
Discrimi-nation: refusal to reinstate striking employees except on condition that they
renounce affiliation with union ; refusal to reinstate striking employees on appli-
cation ; employers' failure to displace employees' hired after commencement of
.unfair labor practices, upon application of striking employees; discrimination
by hiring of new employees after striking employees had' applied for reinstate-
ment ; charges of, dismissed as to certain respondents, and as to ten employees
of other respondents-Reinstatement Ordered: strikers, to former or substan-
10N L R B, No 108.
1173
147541--39-vol 10-75
1174 NATIONAL LABOR RELATIONS BOARD
tially equivalent positions , dismissing , if necessary , newly hired employees; if
no employment immediately available, employees to be placed on preferential
list and to be offered employment as it becomes available-Baclc Pay: awarded
to each of the strikers who was discriminatorily refused reinstatement from
date of discrimination to date of offer of employment or placement upon prefer-
ential list ; monies received by employees for work performed upon Federal,
State, county, municipal, or other work-relief projects to be deducted and paid
over to agency which supplied funds for said projects.
Mr. Charles A. Graham, for the Board.
Mr. Wilbur M. Alter, of Denver, Colo., for the Association, R. R.
Hall, Inc., E. J. Johnson, Inc., Hoskins-Beatty Motor Co., Colorado
Reo, Inc., Cullen-Thompson, Howry-Berg, and Stovall-Hilliker.
Lewis cC Grant, by Mr. Irving J. Hale, Jr., of Denver, Colo., for
Mountain Motors and James Motor Company.
Berman ce Holland, by Mr. Fred N. Holland, of Denver, Colo.,
for Marcus Motors.
Yeaman, Gove c Huffman, by Mr. Kenaz Huffman, of Denver,
Colo., for Larson-Nash.
Mr. Frank L. Fetzer, of Denver, Colo., for The McCarty-Sherman
Motor Company.
Mr. David Rosner, of Denver, Colo., for Metropolitan Pontiac,
Incorporated.
Mr. Paul Hutchings, of Washington, D. C., for Lodge 606.
Mr. Lester Asher, of counsel to the Board.
DECISION
AND
ORDERS
STATEMENT OF THE CASES
Upon charges and amended charges duly filed by Capitol Automo-
tive Lodge No. 606, International Association of Machinists, herein
called Lodge 606, the National Labor Relations Board, herein called
the Board, by George O. Pratt, Regional Director for the Seventeenth
Region (Kansas City, Missouri) and by Aaron W. Warner, Regional
Director for the Twenty-second Region (Denver, Colorado), issued its
complaints alleging that certain companies, herein collectively called
the respondents, had engaged in and were 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 following
table sets forth the name of each company, the date upon which each
complaint was issued, the case number assigned by the Regional
Director, the designation of the case upon being transferred to the
Board, and the specific subdivisions of Section 8 of the Act which
DECISIONS AND ORDERS 1175
are alleged in each complaint as the unfair labor practices in which
the respondent has engaged :
Name of respondent Date of com-plaint (1937)
Regional case
No
Board
case
No.
Subdivisions of sec-
tion 8 of the act
Denver Automobile Dealers Association --- November 4 XVII-C-15D C-544 (1) and (5).
The Mountain Motors Company __-______ November 4 X V I1-C-32D C-545 (1) and (5).
E J Johnson, Inc_________________________ November 4 XVII-C-33D (1) and (5).
R. R Hall, Inc--------------------------- November 4 XVII-C-44D C-546 (1), (2), (3), and (5)
Hoskins-Beatty Motor Co________________ November 4 XVII-C-45D (1), (2), (3), and (5).
Larson-Nash Motors Co------------------- November 4 XVII-C-41D C-548 (1), (2), (3), and (5)
The McCarty-Sherman Motor Company_ November 4 XVII-C-47D (1), (2), (3), and (5).
Marcus Motors, Inc ---------------------- November 4 XVII-C-48D C-547 (1), (3), and (5).
Metropolitan Pontiac, Incorporated------- November 4 XVII-C-49D (1), (2), (3), and (5).
Denver Automobile Dealers Association,
The Mountain Motors Company E. J
Johnson, Inc , R R Hall, Inc , Hoskins-
Beatty Motor Co, Larson-Nash Motors
Co, The McCarty-Sherman Motor
Company, Marcus Motors, Inc , Metro-
pohtan Pontiac, Incorporated ----_______ ovember 4 VII-C-55D -551 1), (2), and (5).
Neil R. Cullen, F C Cullen, and Ward J
Thompson, individuals doing business
under the firm name and style of Cullen-
Thompson Motor Company. _-_________ ecember 17 XII-C-80 -549 1), (2), (3), and (5).
Colorado Reo, Inc_________________________ December 17 XXII-C-81 (1), (3), and (5)
James Motor Company___________________ December 17 XXII-C-82 (1), (2), (3), and (5).
Stovall-Hilliker Motor Company__________ December 17 XXII-C-83 (1), (2), and (5).
Howry-Berg, Inc-------------------------- December 17 XXII-C-84 C-550 (1), (2), and (5).
Denver Automobile Dealers Association,
Colorado Reo, Inc., Neil R Cullen, F C
Cullen, and Ward J. Thompson, indi-
viduals doing business under the firm
name and style of Cullen-Thompson
Motor Company, Howry-Berg, Inc,
James Motor Company, Stovall-Hilliker
Motor Company ____________-_________- cember 21 II-C-85 552 ), (2), and (5).
On September 11, 1937, the Board, acting pursuant to National
Labor Relations Board Rules and Regulations-Series 1, as amended,
ordered that the first three cases listed in the above table be consoli-
dated for the purposes of hearing. On November 2, 1937, the Board
ordered that the remaining seven cases instituted in the Seventeenth
Region be consolidated with the three cases previously consolidated
under the order of September 11, and that one record of the hearing
be made. On November 16, 1937, the Board, acting pursuant to
Article II, Section 37 (c), of the°Rules and Regulations, ordered that
the 10 cases instituted in the Seventeenth Region be transferred to
and continued in the Twenty-second Region. On December 23, 1937,
the Board ordered that all the cases listed in the above table be con-
solidated for the purposes of hearing.
Copies of the complaints, accompanied by notice of hearing, were
duly served upon the respective respondents, upon Lodge 606, and
upon the locals of The Independent Automobile Employees' Union,
Inc., herein called the Independent, of each respondent alleged to
have engaged in an unfair labor practice within the meaning of
Section 8 (2) of the Act. Each respondent filed an answer in which
it denied that it had engaged in or was engaging in the alleged unfair
labor practices and also, with the exception of James Motor Company,
it motion to dismiss the complaint on the ground that the respondent
1176 NATIONAL LABOR RELATIONS BOARD
was not engaged in any business affecting commerce and that the
Board was without jurisdiction to hear and determine any of the
matters set forth in the complaint.
Pursuant to notice, a hearing was held at Denver, Colorado, from
December 2, 1937, to January 26, 1938, before Albert L. Lohm, the
Trial Examiner duly designated by the Board.. The Board and
each of the respondents were represented by counsel and participated
in the hearing. Full opportunity to be heard, to examine and cross-
examine witnesses, and to introduce evidence bearing upon the issues
was afforded all parties. At the commencement of the hearing Wil-
bur M. Alter, counsel for Denver Automobile Dealers Association,
herein called the Association, and for certain other respondents, was
engaged in the preparation and trial of a criminal action which had
been set for trial prior to the issuance of the complaints herein. In
his absence the hearing proceeded upon the issues involving those
respondents who were represented by other counsel. Issues affecting
the respondents whom he represented were not considered, until he
was available and participated in the hearing.
Also at the outset of the hearing, Horace F. Phelps appeared spe-
cially on behalf of the locals of the Independent established at The
McCarty-Sherman Motor Company, Hoskins-Beatty Motor Co., R. It.
Hall, Inc., herein called Hall, Inc., and Larson-Nash Motors Co.,
herein called Larson-Nash, and moved that these organizations be
not bound by any ruling of the Trial Examiner or the Board. The
Trial Examiner denied the motion.' Thereupon Phelps moved that
the organizations for whom he was appearing specially be granted
48 hours within which to enter their appearances and file petitions
for intervention, if they so desired. The Trial Examiner also denied
this motion. The ruling is hereby affirmed?
On December 3, 1937, the Association, Hall, Inc., Larson-Nash,
E. J. Johnson, Inc., Hoskins-Beatty Motor Co., and Marcus Motors,
Inc., herein called Marcus Motors; entered oral objections to, the
orders of consolidation entered by the Board. On December 8, 1937,
Marcus Motors filed additional written objections setting forth that
the orders of consolidation were entered without notice and were
prejudicial to its rights. The Trial Examiner overruled the objec-
tions to the orders of consolidation. This ruling is hereby affirmed.
During the course of the hearing the Trial Examiner denied the
motions to dismiss the complaint filed by the respondents and re-
1 The purport of this motion is not clear If the motion was intended to preclude an
order directed against the Independent, the ruling of the Examinee was not piejudicial
since our order does not inn against the Independent or its locals. IIowever, since the
motion may have contemplated preventing the Board from ordering any respondent to
withdraw recognition from and to disestablish the Independent or its locals, the denial
by the Trial Examiner is hereby affirmed
2 Cf National Labor Relations Boa,d v . Pennsylvania Greyhound Lines, Inc. and
Greyhound Management Company, 303 U S. 261
DECISIONS AND ORDERS 1177
newed by certain of them at the close of the Board's case and at the
conclusion of the hearing. This ruling is hereby affirmed except in
so far as it applies to the Association.
On December 22, 1937, upon motion of the Board's counsel, the
allegations of the complaint against Hall, Inc., were dismissed as to
certain employees.3 At the conclusion of the hearing, counsel for
the Board moved to amend the complaints to indicate that a majority
of the employees had designated Lodge 606 as their bargaining agent
by joining Lodge 606 and "by other acts," and to conform to the
proof as to any other matters. No objection was offered by Wilbur
M. Alter who was the only counsel for the respondents then partici-
pating in the hearing. The Trial Examiner granted the motions.
The Trial Examiner made various rulings on other motions of the
parties, 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 January 26, 1938, counsel for the Board announced that Lodge
606 had requested that charges be withdrawn in the following cases :
Respondent
E J Johnson, Inc--------- -------------------------------------------------------
Hoskms-Beatty Motor Cc---------------------------------------------------------
The McCarty-Sherman Nlotor Company--------------------------- ----------------
Metropolitan Pontiac Incorporated ---------------------------------------------------
Colorado Reo , Inc -------------------------------------------------------------------
James Motor Company -------------------------------------------------------------
Stovall-HUhker _\dotor Company -----------------------------------------------------
Proceedinginsti-
tuted under case
No -
X V II-C-33D
X V II-C-45D
X V I I-C-47D
XV11 C-49D
XXII-C-81
XX1I-C-82
XXII-C-83
On the same day the Regional Director, acting pursuant to Article
II7 Section 1, of the Rules and Regulations, dismissed the complaints
in these seven cases.
On March 28, 1938, the Trial Examiner issued his consolidated
Intermediate Report which was filed with the Regional Director and
duly served upon all the parties, finding that the respondents had
engaged in and Were engaging in unfair labor practices within the
meaning of Section 8 (1), (2), (3), and (5) and Section 2 (6) and (7)
of the Act.4 In addition to the recommendation that the respondents
cease and desist from their unfair labor practices, the Trial Examiner
3 The names of these employees are : C. K Puckett, George Zonal, Walter Mikel, and
William Schmelzla
4 The Trial Examiner found that the Association and I3owry-Berg had each engaged
in unfair labor practices, affecting commerce within the meaning of Section 8 (1), (2),
and (5) and Section 2 (6) and (7) of the Act; that Mountain Motors had engaged in
unfair labor practices , affecting commerce , within the meaning of Section 8 (1) and (5)
and Section 2 (6) and ( 7) of the Act ; that Marcus Motors had engaged in unfair labor
practices, affecting commerce within the meaning of Section 8 (1), (3), and (5) and Sec-
tion 2 ( 6) and ( 7) of the Act ; and that Hall, Inc , Larson-Nash, and Cullen -Thompson had
each engaged 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 Act.
1 178 NATIONAL LABOR RELATIONS BOARD
recommended that the Association withdraw all recognition from and
disestablish the locals of the Independent at Hall, Inc., at Larson-
Nash, at Howry-Berg , Inc., herein called Ho-wry-Berg , and at Neil
R. Cullen, F. C. Cullen, and Ward J. Thompson , individuals doing
business under the firm name and style of Cullen -Thompson Motor
Company herein called Cullen -Thompson , and upon request enter
into negotiations with Lodge 606 ; that The Mountain Motors Com-
pany, herein called Mountain Motors, upon request enter into nego-
tiations with Lodge 606 ; that Hall, Inc., withdraw all recognition
from and disestablish its local of the Independent , upon request enter
into negotiations with Lodge 606, and reinstate , with back pay,
certain of its employees ,.5 found to have been refused reinstatement
because of their activities on behalf of Lodge 606 ; that Marcus
Motors upon request enter into negotiations with Lodge 606 and
reinstate , with back pay, Richard La Point and Glen Vogel, two of
its employees found to have been refused reinstatement because of
their activities on behalf of Lodge 606 ; that Larson-Nash withdraw
all recognition from and disestablish its local of the Independent,
upon request enter into negotiations with Lodge 606 , and reinstate,
with back pay, certain of its employees 6 found to have been refused
reinstatement because of their activities on behalf of Lodge 606;
that Cullen-Thompson withdraw all recognition from and disestab-
lish its local of the Independent , upon request enter into negotiations
with Lodge 606 , and reinstate , with back pay, Arnold Light, one of
its employees found to have been refused reinstatement because of
his activities on behalf of Lodge 606 ; and that Howry-Berg with-
draw all recognition from and disestablish its local of the Inde-
pendent and upon request enter into negotiations with Lodge 606.
The Trial Examiner also recommended that the complaint be dis-
missed as to certain employees 7 whom the Examiner found not to
have been discriminated against.
On April 27 , 1938, the Association , Mountain Motors, Hall, Inc.,
Marcus Motors, Larson-Nash , Cullen-Thompson , and Howry-Berg
each filed exceptions to the Intermediate Report. On May 3, 1938,
these respondents and certain others filed a motion that the oral
argument which they had previously requested and which had been
set for one -half hour be extended to at least 4 hours. The Board
thereupon extended the time allotted to the respondents to 1 hour.
c The names of these employees are : F. E. Veigen, F. Rameriz (incorrectly referred to
in the complaint as F. Ramenez), Stanley Wysakawski (incorrectly referred to in the
complaint as Stanley Wysakowski), and Ray Sullivan.
The names of these employees are, I. H. Riley, Emil Idler, Fred Ford, Henry Dreier,
J. T Nunn, Dick Richardson, Kenneth Cutforth, Estelle Davis, Pat Troy, Robert Fredericks,
and Charles Amador.
4 The names of these employees are, with respect to Marcus Motors : Joe Trostel ; with
respect to Larson-Nash : Benny Anderson and Ed Ball.
DECISIONS AND ORDERS 1179
Pursuant to notice, a hearing was held before the Board on August
2, 1938, in Washington , D. C., for the purpose of oral argument.
The respondents , all represented by Wilbur M. Alter , and Lodge 606,
represented by Paul Hutchings , of counsel to International Associa-
tion of Machinists , participated in the oral argument . At the coin-
mencement of the argtm7ent, counsel for the respondents took excep-
tion to the denial of his motion for an allowance of 4 hours for the
purpose of oral argument . We find no merit in this exception. Dur-
ing the oral argument counsel were advised that written briefs could
be submitted to the Board . The Board has considered the exceptions
to the Intermediate Report and , in so far as they are inconsistent
with the findings , conclusions , and Order below, finds them to be
without merit.
Upon the entire record in the cases , the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENTS
The complaints with respect to Mountain Motors, Hall, Inc.,
Marcus Motors, Larson-Nash , Cullen-Thompson , and Howry-Berg
allege that each respondent has its principal place of business in
Denver, Colorado , and is engaged "in the business of buying , selling,
distributing , dealing in, disposing of, repairing , and servicing auto-
mobiles; and buying, selling, distributing, dealing in, and disposing
of parts and accessories pertaining to automobiles ." In addition,
the complaints with respect to Howry-Berg also state that it is
engaged in the above activities with reference to trailers. These
allegations were admitted in the answer filed by each of these re-
spondents.
The general operations of these respondents , as distributors or
dealers, may be described as follows :
The dealer is appointed by the distributor and represents him
within a designated territory . Pursuant to the terms of a written
sales agreement which is furnished by the manufacturer and which
governs the relationship between the distributor and his dealer, the
dealer is granted the right to purchase from the distributor the
products of the manufacturer for resale within the described terri-
tory. The dealer agrees to furnish reports of, the operations of his
business as requested by the distributor , and the distributor has
complete supervision over the sales activities of his dealers.
Often cars are shipped by the manufacturer from its place of
business , which is in all the instances here involved outside the State
of Colorado, directly to the dealers or individual purchasers. In
other cases , the dealers or individual purchasers take possession of
1180 NATIONAL LABOR RELATIONS BOARD
the cars at the manufacturer's place of business. However, in all
cases the purchasers, either individuals or dealers, place their orders
with and make payment to the distributor, and the distributor then
transmits the orders and makes payment to the manufacturer.
All purchases are for cash, both between the distributor and the
manufacturer and between. the individual purchaser or dealer and
the distributor. The sales price of new cars established by the dis-
tributor or his dealers is based upon the manufacturer's list price.
Included in the sales price, either as a separate item or as part of the
total price, is a charge covering national advertising conducted by
the manufacturer.
To further the sales of their products, the manufacturers conduct
at their places of business conferences which are attended by the
distributors. The distributors here involved, in turn, often conduct
similar conferences at Denver, Colorado, which are attended by their
respective dealers.
Defective parts are in most cases transmitted by the dealer to
his distributor who in turn forwards them to the manufacturer.'
Any allowance from the manufacturer is granted to the distributor
who then credits it to the dealer or individual purchaser.
Automobiles which are delivered by the manufacturer to the dis-
tributor are transported by railroad or truck to Denver, Colorado.
The automobiles are transported without bumpers, accessories, oil,
water, or gas. In some instances the automobiles are shipped in
small railroad freight cars and the front wheels are removed. From
the railroad station the automobiles are transported to the place of
business of the distributor by independent transfer companies or by
employees of the distributor. When received by the distributor the
cars are conditioned, serviced, tightened, and tested by the employees
within the unit herein involved, and made ready for delivery to the
individual purchaser or dealer. The cars are greased, washed, and
oiled; gasoline is put in; bumpers, accessories, and extra equipment
are installed; the altitude jets are changed; the lights, carburetor,
transmission, motor adjustments, and brakes are checked; and
scratches in the paint work are touched up. The distributor makes
a charge to cover this conditioning and servicing work.
A. Mountain Motors, a Colorado corporation, is a distributor of
automobiles, parts, and accessories produced by Packard Motor Car
Company, herein called Packard, of Detroit, Michigan. The terri-
tory in which it is authorized to appoint dealers includes the entire
State of Colorado together with designated portions of Nebraska,
New Mexico, and Wyoming. It is represented by 11 dealers in
8 However, this not the general practice in connection with Marcus Motors since its.
manufacturer maintains a "parts depot" In Denver.
DECISIONS AND ORDERS 1181
Colorado, 1 in Nebraska, 1 in New Mexico, and 4 in Wyoming. It
employs two representatives or "wholesale men" who supervise the
conduct of the business of the dealers throughout the territory, and
one service supervisor who instructs the dealers concerning problems
,of proper conditioning and servicing.
The gross business done, by Mountain Motors amounted to over
$954,900 during the first 10 months of 1937. Mountain Motors pur-
chased 628 automobiles from Packard during 1936, and 655 during
the first 9 months of 1937. These cars were transported by Packard
from Detroit, Michigan, to the following destinations:
1936
First 9
months
of 1937
Number of cars shipped to Mountain Motors____________________________________ 411 354
Number of cars shipped direct to dealers within Colorado_______________________ 164 251
Number of cars shipped direct to dealers outside Colorado_______________________ 53 50
628 655
Of the cars shipped by Packard to Mountain Motors at Denver,
Colorado, 40 during 1936 and 22 during the first 9 months of 1937
were sold by Mountain Motors to dealers having their places of
business outside Colorado.
Of its total sales of parts and accessories amounting to approxi-
mately $48,000 during 1936, dealers outside Colorado purchased
$3,700 worth. During the first 9 months of 1937, the sales of parts
and accessories amounted to approximately $44,700 of which about
•$3,400 represented purchases by dealers outside Colorado.
In January 1937 Mountain Motors serviced 448 cars, 22 of which
bore license plates of States other than Colorado. Of 878 cars serv-
iced in July 1937, 158 cars bore license plates other than those of
Colorado.
B. Hall, Inc., a Colorado corporation, is a distributor of auto-
mobiles, parts, and accessories produced by Cadillac Motor Car
Division-General Motors Sales Corporation, herein called Cadillac,
,of Detroit, Michigan.° Prior to 1937, Hall, Inc., discontinued its
additional operations as a distributor of Oldsmobile automobiles.
The territory in which it is authorized to appoint dealers includes
designated portions of Colorado, Wyoming, and Nebraska. It is
represented by three dealers in Colorado, three in Wyoming, and one
in Nebraska. The gross business done by Hall, Inc., during the
first 11 months of 1937 amounted to - approximately $586,000. - It
purchased 166 cars from Cadillac during 1936, and 275 during the
9 Cadillac manufactures automobiles known by the names of Cadillac and La Salle.
1182 NATIONAL LABOR RELATIONS BOARD
first 11 months of 1937.10 These cars were shipped from Cadillac
at Detroit, Michigan, to the following destinations :
1936
First 11
months
of 1937
Number of cars shipped to Hall, Inc--------------------------------------------- 161 263
Number of cars shipped directly to individuals or dealers, within Colorado or
picked up by them at Cadillac factory----------------------------------------- 3 12
Number of cars shipped directly to individuals or dealers, outside Colorado or
picked up by them at Cadillac factory----------------------------------------- 2 0
166 275,
Of the cars shipped by Cadillac to Hall, Inc., at Denver, Colorado,
8 during 1936 and 19 during the first 11 months of 1937 were sold
by Hall, Inc., to dealers having their places of business outside
Colorado. During 1936 Hall, Inc., sold four new Cadillac and La
Salle cars, five new Oldsmobiles, and six used cars, and during 1937
it sold four new Cadillac and La Salle cars and three used cars to
individuals giving addresses outside the State of Colorado.
Of its total sales of Cadillac and La Salle parts and accessories
amounting to approximately $16,000 during 1936, dealers outside
Colorado purchased approximately $1,000 worth. During the first
11 months of 1937, the sales of parts and accessories also amounted
to approximately $16,000, of which about $1,300 represented purchases
by dealers outside Colorado.
In January 1937 Hall, Inc., serviced 592 cars, 12 of which bore
license plates of States other than Colorado. Of 873 cars serviced
in July 1937, 167 bore license plates other than those of Colorado.
C. Marcus Motors, a Colorado corporation, is a distributor of
automobiles and trucks produced by The Studebaker Corporation,
herein called Studebaker, of South Bend, Indiana. The territory
in which it is authorized to appoint dealers includes designated por-
tions of Wyoming and New Mexico as well as practically the entire
State of Colorado. It is represented by 26 dealers in Colorado, 4 in
Wyoming, and 2 in New Mexico.
During 1936 and during the first 11 months of 1937, Marcus Motors
purchased 705 and 548 cars and trucks from Studebaker, respectively.
Sales made by Marcus Motors included the following :
1936
First 11
months
of 1937
Number of cars and trucks sold to dealers having their places of business outside
Colorado ---------------------------------------------------------------------- 144 117
Number of cars and trucks sold to individuals giving addresses outside Colorado- 24 21
10 The record also includes figures pertaining to the business of Hall, Inc., for the years
of 1934 and 1935.
DECISIONS AND ORDERS 1183
In January 1937 Marcus Motors serviced 321 cars and trucks, 11 of
which bore license plates of States other than Colorado. Of 586 cars
and trucks serviced in July 1937, 135 bore license plates other than
those of Colorado.
D. Larson-Nash, a Colorado corporation, is a distributor of auto-
mobiles, parts, and accessories produced by Nash-Kelvinator Corpora-
tion (Nash Motors Division), herein called Nash, of Kenosha and
Racine, Wisconsin. The territory in which it is authorized to appoint
dealers includes the entire State of Colorado together with designated
portions of Nebraska, Wyoming, and New Mexico. It is represented
by 18 dealers in Colorado, 4 in Wyoming, and 1 in Nebraska. Its
Colorado dealer at Trinidad, maintains a subdealer in New Mexico.
It employs two territory supervisors who supervise the conduct of
the business of the dealers throughout the territory.
The gross sales of Larson-Nash during the first 10 months of 1937
amounted to over $882,000. Its secretary-treasurer estimated that
between 85 and 90 per cent of its total purchases are made outside
Colorado.
During 1936 Larson-Nash purchased 805 cars from Nash. Eight
of these cars were shipped directly from Wisconsin to'dealers outside
Colorado. Of the cars shipped to Larson-Nash at Denver, Colorado,
91 were sold to dealers in Wyoming, 33 to dealers in Nebraska, and 21
to dealers in New Mexico. During 1936 Larson-Nash also sold five
new cars and six used cars to individuals giving addresses outside the
State of Colorado.
During the first 9 months of 1937,11 Larson-Nash purchased 23 cars
which were shipped directly from Wisconsin to dealers outside Colo-
rado. During the same period, 862 cars were shipped to Larson-Nash
at Denver, Colorado, and of these cars 58 were sold to dealers in
Wyoming, 22 to dealers in Nebraska, and 22 to -dealers in New Mexico.
Larson-Nash also sold 10 new cars and 4 used cars during this period
to individuals giving addresses outside the State of Colorado.
In January 1937 Larson-Nash serviced 647 cars, 82 of which bore
license plates of States other than Colorado. Of 673 cars serviced in
July 1937, 236 bore license plates other than those of Colorado.
E. Cullen-Thompson, a partnership, is a distributor of automo-
biles, parts, and accessories produced by Chrysler Corporation, herein
called Chrysler, of Detroit, Michigan.12 The territory in which it is
authorized to appoint new car dealers covers designated portions of
the State of Colorado. However, its actual sales operations covering
11 The record also includes figures pertaining to the business of Larson -Nash during
1934 and 1935.
12 The automobiles manufactured by Chrysler which are sold by Cullen-Thompson are
known by the names of Chrysler and Plymouth.
1184 NATIONAL LABOR RELATIONS BOARD
new and used cars extend over the States of Wyoming, South Dakol a,
Nebraska, Kansas, and New Mexico.
During 1936 Cullen-Thompson purchased 1,798 cars from Chrysler,
and during the first 11 months of 1937 it purchased 1,907 cars.'
Ward J. Thompson, the managing partner, submitted estimates indi-
cating that during 1937 from 20 to 50 per cent of the sales to dealers
were by direct shipments from the factory.
Among the sales made by Cullen-Thompson were included the
following :
1936
First 11
months
1937
Number of cars accepted at Chrysler factory by dealers-------------------------- 77 75
Number of cars sold as accommodation sales to dealers outside Colorado ------__ 6 13
Number of cars accepted at Chrysler factory by individual purchasers giving
Colorado addresses--------------------- -------------------------------------- 5 8
Number of cats accepted at Chrysler factory by individual purchasers giving
addresses outside Colorado---------------------------------------------------- 1
Number of new cars sold to individuals giving addresses outside Colorado------- 28 15
Number of used cars sold to individuals giving addresses outside Colorado------- 23 17
In connection with the sale and distribution of parts and acces-
sories, Cullen-Thompson's operations are not restricted to any desig-
nated territory. It is known as a "Chrysler Corporation parts depot,"
and handles items with respect to Chrysler, Plymouth, and DeSoto
automobiles. The parts and accessories are, for the most part,
shipped to Cullen-Thompson from Detroit, Michigan, or Kansas City,
Missouri, but often shipments are made directly from the factory to
the dealer upon Cullen-Thompson's order. Cullen-Thompson em-
ploys two parts and accessories salesmen whose territory outside
Colorado includes Wyoming, South Dakota, Nebraska, Kansas, and
New Mexico.
Of its total sales of parts and accessories amounting to approxi-
mately $56,900 during 1936, dealers outside Colorado purchased ap-
proximately $3,200 worth. During the first 11 months of 1937, the
sales of parts and accessories amounted to approximately $110,000,
of which about $16,000 worth was purchased by dealers outside
Colorado.
In January 1937 Cullen-Thompson serviced 829 cars, 21 of which
bore license plates of States other than Colorado. Of 1,154 cars
serviced in July 1937, 186 cars bore license plates other than those of
Colorado.
F. Howry-Berg, a Colorado corporation, is a dealer in Chrysler
and Plymouth automobiles, parts, and accessories pursuant to an
agreement with its distributor, Cullen-Thompson; is a distributor of
a The record also includes figures pertaining to the business of Cullen-Thompson during
the year 1935.
DECISIONS AND ORDERS 1185
trailers produced by Hays Body Corporation, herein called Hays, of
Grand Rapids, Michigan ; and is also in the automobile finance and
small-loan business under charter from the State of Colorado.
Howry-Berg purchased 334 new automobiles from Cullen-Thomp-
son during 1936, and 215 during the first 11 months of 1937. The
purchase orders for these cars were all placed through Cullen-Thomp-
son. Shipments were made by Chrysler at Detroit, Michigan, upon
sight draft bills of lading made out to Cullen-Thompson and marked
"Notify Howry-Berg." When the cars arrived in Denver, Colorado,
Howry-Berg paid the amount of the sight draft to Cullen-Thompson,
paid the freight and unloading charges, and then had the cars taken
directly to its place of business. Five cars during 1936 and four
cars during 1937 were received at the Chrysler factory by purchasers
from Howry-Berg who were individuals giving Colorado addresses.
During 1936 Howry-Berg sold two new cars to purchasers in Wyo-
ming, two in Kansas, and one my Nebraska. During the same period it
also sold three used cars to purchasers in Wyoming, and one to a pur•
chaser in Kansas. During the first 11 months of 1937,14 it sold two
new cars and three used cars to purchasers in Wyoming, one new car
and one used car to purchasers in Kansas, and one used car to a pur-
chaser in California.
As to its trailer-distributing business, the territory in which Howry-
Berg is authorized to appoint dealers includes the entire State of
Colorado together with designated portions of Wyoming, New Mex-
ico, Nebraska, and South Dakota. It is represented by 10 dealers in
Colorado, 8 in Wyoming, 5 in New Mexico, and 2 in Nebraska. The
trailers are in most cases towed from Hays at Grand Rapids, Michi-
gan, to Howry-Berg at Denver, Colorado. The first few deliveries
were made by a transportation company owned by Hays, but almost
all other deliveries were made by employees of Howry-Berg who
drove their own cars to Grand Rapids and then towed the trailers
back to Denver.
At the place of business of Howry-Berg, the trailers are serviced
and cleaned, and in some cases the front ends are repainted if they
have become sand pitted during the towing trip.
During the first 11 months of 1937, Howry-Berg purchased 47 trail-
ers from Hays at a cost price of $23,740. Of this number, 12 were
sold to dealers outside Colorado. This total of 12 trailers consists
of 5 that were received at the Hays factory by the dealers, 4 that
were towed by Howry-Berg from its Denver place of business and
with its own cars to dealers outside Colorado, and 3 that dealers out-
side Colorado towed from Denver to their places of business.
14 The record also includes figures pertaining to the new- and used-car business of Howry-
Beig duiing 1934 and 1935
1186 NATIONAL LABOR RELATIONS BOARD
In January 1937 Howry-Berg serviced 418 cars, 3 of which bore
license plates of States other than Colorado. Of 410 cars serviced in
July 1937, 20 cars bore license plates other than those of Colorado.
G. The Association is a non-profit corporation organized under the
laws of Colorado. It is engaged in the business of fostering, pro-
moting, and protecting the interests of the 34 automobile distributors
and dealers who constitute its membership. Concerns which deal
exclusively in second-hand cars are not eligible for membership.
Each of the respondents named in the complaints herein discussed is
a member of the Association.
H. THE ORGANIZATIONS INVOLVED
Capitol Automotive Lodge No. 606, International Association of
Machinists, is a labor organization affiliated with the American Fed-
eration of Labor. As more fully discussed below, it admits to mem-
bership certain employees of the service and repair shops maintained
by the automobile dealers of Denver, Colorado.
The Independent Automobile Employees' Union, Inc., is a labor
organization which charters locals among the employees of the auto-
mobile industry in Denver. The locals which it has chartered at
Hall, Inc., Larson-Nash, Cullen-Thompson, and Howry-Berg are
labor organizations admitting to membership all employees of Hall,
Inc., Larson-Nash, Cullen-Thompson, and Howry-Berg, respectively,
except those with authority to hire or discharge.
III. THE UNFAIR LABOR PRACTICES
A. The refusals to bargain collectively
Each of the complaints alleges, in substance, that on and prior to
May 5, 1937, and at all times thereafter, Lodge 606 had been desig-
nated by a majority of the employees in the appropriate unit to
represent them in collective bargaining; that on May 5, 1937, Lodge
606 requested the Association, as the agent of and in the interests of
its members, and requested the respondent dealer or distributor,
through its officers, agents, and employees and especially through its
agent, the Association, to bargain collectively with Lodge 606; that
on said date and at all times thereafter the Association, as the agent
of and in the interests of its members, and the respondent dealer or
distributor, through its officers, agents, and employees and especially
through its agent, the Association, refused to bargain collectively
with Lodge 606, in that it refused to make a bona fide attempt to
come to an agreement with Lodge 606; that on July 30, 1937, as a re-
sult of the refusal to bargain collectively in good faith with Lodge
606, a majority of the employees in an appropriate unit went on
DECISIONS AND ORDERS 1187
strike; that on said date, and on various dates thereafter, Lodge 606
requested the Association and the respondent dealer or distributor to
bargain collectively; that the Association and the respondent dealer
or distributor refused to bargain collectively with Lodge 606.
1. The appropriate units
The complaints allege that the auto mechanics; machinists; body,
fender, radiator, frame, and axle repairmen; auto electricians; weld-
ers; trimmers; Class A and Class B painters; servicemen; testers;
partsmen; car washers; and helpers and apprentices employed by
each of the respondent dealers or distributors constitute separate
appropriate bargaining units.
During the course of the hearing it appeared that the units desig-
nated in the complaints are based upon the eligibility requirements
of Lodge 606. In general, Lodge 606 accepts as members workers
engaged exclusively in the care and maintenance of automobiles.
It likewise appears from the record that lubrication men (greasers)
are eligible for membership in Lodge 606. On the lists of employees
of Hall, Inc., Cullen-Thompson, and Howry-Berg the greasers are
grouped with the car washers, and during the dealings between Lodge
606 and the members of the Association, car washers and lubrication
men were discussed together. In determining the number of em-
ployees contained in the appropriate unit, the Trial Examiner in his
Intermediate Report included greasers in the cases of Mountain
Motors, Marcus Motors, Hall, Inc., and Larson-Nash, and no objec-
tions were offered by the respondents. Lodge 606 limits its mem-
khership, however, to those employees who do not have authority to
hire or discharge 15 and whose duties are not primarily of a clerical
nature.
The position of the respondents with reference to the units con-
tended for by Lodge 606 is not clear. It was stipulated at the hearing
that the units urged by Lodge 606 were appropriate with respect to
Cullen-Thompson and Howry-Berg. In the exceptions and objec-
tions filed to the Intermediate Report of the Trial Examiner, the
Association and Hall, Inc., objected to the finding that the units
claimed by Lodge 606 were appropriate, but Mountain Motors, Marcus
Motors, and Larson-Nash did not offer any similar objections or
1+ Jerome 'Al Kelleher, business agent of Lodge 606, testified on several occasions during
the hearing that an employee within the designated classifications who possesses the power
to line and discharge is not eligible to apply for membership in Lodge 606 If a member
of Lodge 606 acquires, by promotion, the authority to employ or dischaige, he may retain
only an inactive membership, but may not attend meetings nor participate in any of the
deliberations of the organization
However, the position of Lodge 606 NN as not consistent. Kelleher also testified that a
certain employee was not eligible to apply for membership "for the reason that lie has
the privilege of making recommendations for the hiring and discharging of employees
under him."
1188 NATIONAL LABOR RELATIONS BOARD
exceptions. The record does not disclose the reasons for the objec-
tions of the Association and Hall, Inc., nor does it indicate any other
unit which they suggest as satisfactory. _
We find that the auto mechanics; machinists; body, fender, radiator,
frame, and axle repairmen ; ,into electricians ; welders ; trimmers ;
Class A and Class B painters ; servicemen ; testers ; partsmen ; car
washers and lubrication men or greasers; and helpers and apprentices,
excluding those having the authority to employ and discharge and
those whose duties are of a clerical nature, constitute, in the case of
each automobile dealer or distributor named as a respondent, a unit
appropriate for the purposes of collective bargaining, and that said
unit will insure to employees of each of the said respondent auto-
mobile dealers or distributors, respectively, the full benefit of their
right to self-organization and to collective bargaining and otherwise
effectuate the policies of the Act.
2. Representation by Lodge 606 of the majority in the appropriate
units
A. Mountain Motors submitted lists of its repair-shop employees
on May 5, 1937, the date upon which Lodge 606 first requested it to
bargain, and on July 30, 1937, the day the strike was called. The
lists show a total of 23 employees on May 5, and 26 on July 30.
Lodge 606 contends that the four employees listed as servicemen
perform duties of a clerical nature and are in fact service salesmen;
that one of the servicemen, Joe Young, acts as service manager; that
one of the greasers, William Schaefer, acts in this capacity only
during rush periods, but normally acts as an errand boy for deliv-
ering cars to and from customers;, that among those listed as car
washers, Earl Poole is in fact a janitor; and that among the helpers,
George McQueary is a part-time employee who is not regularly
employed.
We are not persuaded by the arguments of Lodge 606 that the
servicemen employed by Mountain Motors should be excluded from
the appropriate unit as being clerical employees, because they write
up orders and only use light tools such as pliers or screw drivers.
The requirement of handling the tools of the trade which was the
test suggested by Lodge 606 in support of its contention that the
servicemen in question are clerical employees does not seem to be
applied consistently by Lodge 606. The president of Lodge 606
stated that a tester does not perform mechanical work nor use the
tools of the trade. Moreover, the record does not show that any
mechanic's tools are handled by car washers, painters, or partsmen.
We find that three of the employees of Mountain Motors classified
as servicemen should be included within the appropriate unit. As to
DECISIONS AND ORDERS 1189
the fourth serviceman, Joe Young, we find that he also acts as
service manager and we shall, therefore, exclude him from the unit.
We find further that William Schaefer is employed as an errand
boy; that Earl Poole is employed as a janitor; and that George
McQueary is a part-time employee who acts as a helper only after
school hours and during the summer. We shall exclude Schaefer,
Poole; and McQueary from the appropriate unit.
Thus, Mountain Motors employed 19 persons in the appropriate
unit on May 5, and 22 on July 30, 1937.
Lodge 606 introduced into evidence six applications for inenlber=
ship signed prior to May 5, 1937, and, in addition, two cards signed.
during June 1937 which indicated the desire of the signers to become,
members of Lodge 606. The financial secretary of Lodge 606 testi-
fied from his record books that each of these eight employees was a
member in good standing of Lodge 606. In addition, four other em-
ployees,16 all mechanics, testified that by attending meetings prior to
May 5, 1937, and by other acts they had indicated their desire to, be
represented by Lodge 606.
. At the hearing Mountain Motors objected to the introduction of
the applications for membership in Lodge 606 on the ground that
the cards had not been signed in the presence of the financial secre-
tary, who submitted them without establishing the authenticity of
the signatures. However, Mountain Motors introduced no proof to
refute this evidence of membership.
Another important consideration in determining whether Lodge
606 represented a majority of the employees in the appropriate unit
is the fact that 12 employees within the unit went on strike on July
30 and followed the leadership of Lodge 606. Moreover, Lodge 606,
did not call the lubrication men out on strike despite the fact that
two of its members were employed in this capacity.
We find that on May 5, 1937, Lodge 606 represented 10 employees,
and on July 30, 1937, 12 employees, and thus represented a majority
of the employees in the appropriate unit.
B. Hall, Inc., submitted lists of all its employees showing a total
of 46 persons employed on May 5, and 48 on July 30, 1937. After
excluding certain persons 17 who do not come within the classifications
of the proper unit, we find that there were 26 persons on May 5 and
11 The names of these employees are : Michael C. Doetzel, W. H Stephens, C A. Duerr,
and Harry Burr.
17 Those employees of Hall, Inc , excluded from the appropriate unit are • the errand
boys who pick up cats and run errands about the city ; the janitor ; the new-car and used-
car salesmen , the parts manager, service manager, shop foreman, used-car sales manager,
new-car sales manager, manager and president, and office manager and secretaiy since each
is a supervisory employee possessing authority to employ and discharge ; and the parts
clerk and Helper and office employees because their duties are of a clerical nature In
addition, one used-car mechanic was excluded from the May 5 list, and one washer and
greaser from the July 30 fist, since it was shown by testimony during the hearing that
they were not employed on those dates
147541-30-vol 10--76
1190 NATIONAL LABOR RELATIONS BOARD
27 persons on July 30, 1937, employed by Hall, Inc., in the unit ap-
propriate for the purposes of collective bargaining.
Lodge 606 introduced into evidence a membership list which in-
eludes initiation dates and records of the last dues payments. The
record indicates that counsel for Hall, Inc., checked the membership
.and financial accounts of Lodge 606 which were used as the basis for
the list of members submitted in evidence. An inaccuracy in the list
was noted by counsel for Hall, Inc., and thereupon corrected. Coun-
sel's other objection to the list was upon the ground that it was im-
material and did not tend to prove or disprove any of the issues of
-the-case. We believe this objection to be without merit and, in ac-
,cordance with the membership list submitted by Lodge 606 and
checked by counsel for Hall, Inc., find that on May 5, 1937, Lodge
.606 represented 14 employees and on July 30, 1937, 23 employees and
,thus represented a majority of the employees in the appropriate unit.
Of further significance in corroborating the claim of majority rep-
resentation asserted by Lodge 606 is the fact that 24 employees within
the appropriate unit went on strike on July 30, and that one of the
members of Lodge 606, a car washer and greaser, was not called out.
C. Marcus Motors submitted lists of its repair-shop employees
showing a total of 18 employees on May 5, and 19 on July 30, 1937.
From the total number of repair-shop employees on each list we
exclude Hosford, the service manager, and Rinn, the shop foreman,
because they are supervisory employees possessing the authority to
hire and discharge; and Hubert, listed as a partsman, but who actu-
ally performs clerical duties as time clerk and billing clerk.
Lodge 606 also urges that Cook, a serviceman, be excluded from
the appropriate unit because he never worked as a mechanic before
assuming his present position in the service department. However,
Lodge 606 does not contend for the exclusion of the remaining two
servicemen whose duties are similar to those of Cook. Cook testified
that in his work he uses all the tools of a mechanic and that he had
been asked to join Lodge 606 and to go out on strike. We are of
the opinion that he should be included within the appropriate unit.
We find, therefore, that Marcus Motors employed 15 persons in the
appropriate unit on May 5, and 16 on July 30, 1937.
Lodge 606 introduced into evidence nine applications for member-
ship signed prior to May 5, 1937. The signatures on these applica-
tion cards were not authenticated. By July 30 the membership indi-
cated by the application cards had been reduced to seven, since one
member resigned his position with Marcus Motors on May 11 and
another resigned on July 19. The financial secretary of Lodge 606
testified that although he could not produce his application card,
-Sherart, an electrician, was a member of Lodge 606, had been rein-
stated to membership during February, and had last paid dues during
DECISIONS AND ORDERS 1191
Tune 1937. Even if we accept this proof of the membership of
Sherart, Lodge 606 only had 8 members out of the total of 16 persons
who constituted the appropriate unit on July 30, 1937.
Lodge 606 bases its claim of majority representation upon the fact
that on July 30 nine employees went on strike . It contends that in
addition to its eight members, another employee , Crabtree , also went
on strike. However, this employee did not testify at the hearing.
We find that on July 30, 1937, Lodge 606 did not represent a majority
of the employees in the appropriate unit.
D. Larson-Nash submitted in evidence a list of 29 employees in
its repair shop. This list does not include two partsmen, admitted by
Lodge 606 to be within the appropriate unit. The total of 31 em-
ployees includes the shop foreman and a warehouseman.
Lodge 606 introduced into evidence 16 applications for member-
ship together with 4 cards which indicated the desire of the signers
to become members of Lodge 606 , all signed prior to May 5, 1937.
In addition , Lodge 606 introduced into evidence two applications for
membership signed during the latter part of May 1937. The financial
secretary of Lodge 606 testified from his record books that each of
these 22 employees was a member in good standing.
At the hearing Larson-Nash objected to the introduction of the
applications for membership in Lodge 606 on the ground that the
-cards had not been signed in the presence of the financial secretary
who submitted them and who, therefore, could not establish the
authenticity of the signatures. However, Larson-Nash introduced no
proof to refute this evidence of membership . Moreover , 17 employees
within the unit went on strike on July 30. The significance of this
number of strikers is strengthened by the further fact that five of the
members of Lodge 606 were not called out on strike.
We find that on May 5, 1937, Lodge 606 represented 20 employees
of Larson-Nash, and on July 30, 1937, 22 employees, and thus repre-
sented a majority of the employees in the appropriate unit.
E. and F. Cullen-Thompson and Howry-Berg stipulated that on
May 5 and on July 30, 1937, Lodge 606 had been designated as repre-
sentative for the purposes of collective bargaining by a majority of
the persons employed by each of said respondents, respectively, in
the unit appropriate for collective bargaining in the case of each
.of them.
We find, therefore, that on May 5, 1937, and at all times there-
after, Lodge 606 was the duly designated representative of the
majority of the employees of Mountain Motors, Hall, Inc., Larson-
Nash, Cullen-Thompson, and Howry-Berg, respectively, in the unit
appropriate for collective bargaining in the case of each of said
respondents, and pursuant to Section 9 (a) of the Act, was the ex-
clusive representative of all the employees in each of said units for
1192 NATIONAL LABOR RELATIONS BOARD
purposes of collective bargaining in respect to rates of pay, wages,
hours of employment, and other conditions of employment.
On the record before us, we do not find that Lodge 606 represented
a majority of the persons employed by Marcus Motors in the unit
which we have found to be appropriate for purposes of collective
bargaining. We, therefore, find that the respondent, Marcus Motors,
has not refused to bargain collectively with the representative of a
majority of its employees in an appropriate unit. We will order that
the complaints with respect to Marcus Motors be dismissed in so far
as they allege that said respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section 8 (5) of
the Act.
3. The refusals to bargain collectively
Lodge 606 received its charter from the International Association
of Machinists during the fall of 1933. In April 1937 it began an
intensive campaign to strengthen its organization by increasing its
membership and by formulating an agreement for presentation to the
automobile dealers of Denver.
(a) The chronology of events
May 5, 1937: Lodge 606, by separate letters, requested the Associa-
tion and each of its members to meet with it for the purposes of col-
lective bargaining. On the same date and shortly thereafter, Lodge
606 made similar requests of garage and repair-shop owners and of
others in the general automobile business who were not members of
the Association. With each letter Lodge 606 enclosed a proposed
form of contract with respect to wages, hours, and general working
conditions. Chief among the provisions contained in the agreement
were: (1) a minimum wage of $1 an hour for mechanics; machin-
ists; servicemen; testers; body, fender, radiator, frame, and axle
repairmen; auto electricians; welders; painters; and trimmers; (2) a
guarantee of $35 a week; (3) the abolition of piece, flat-rate, or
bonus-system work; (4) an 8-hour day and a 40-hour week; and (5)
the establishment of a closed shop.
May 14: The first meeting took place between the committees of
Lodge 606 and the Association. The Lodge 606 committee consisted
of Kelleher, business agent and grand lodge representative, Orcine,
president, Hill, vice president, Westley, financial secretary, and
Gathercole. The members of the Association had agreed, to quote
the words of its president, "to stick together on the thing" and to act
collectively. The committee which represented them was composed
of Young, James, Thomas, who was president of the Association,
Braden, its secretary, and Alter, its counsel. Various problems were
DECISIONS AND ORDERS 1193
discussed, but no definite conclusions were reached either at this
meeting or at a second meeting held on May 21.
June 7: A meeting was held between the committee of Lodge 606,
the Association committee, and various independent automobile deal-
ers of Denver who were not members of the Association. At this
meeting the Association committee submitted as a counterproposal
an agreement is which, among other things, provided for: (1) a wage
of 75 cents, an hour or 40 per cent of the flat-rate labor charge made
to the car owners; (2) a 48-hour week; and (3) a guarantee against
discrimination on account of union membership. Kelleher testified,
and we find accordingly, that- at this meeting the representatives of
Lodge 606 were notified that the Association committee had no power
to enter into any contract, but that its powers were limited to negoti-
ating and then carrying the results of the negotiations and its recom-
mendations back to the members of the Association.
'Thomas testified during the hearing, and Alter stated during the
,oral argument before the Board, that at one of these conferences the
Lodge 606 committee was advised that if a substantial majority of
the members of the Association, approved any agreement reached by
the committees, the agreement would then be signed by the president
and secretary of the Association, and Lodge 606 would be given the
names of those members who refused to be bound by the agreement
so that it could deal with these members individually. Kelleher and
Orcine denied that these statements were ever made and contended
that it was their understanding that any agreement which would be
signed by the officers of the Association would be, binding upon all
members of the Association. The interpretation ' furnished by Kc;lle-
her and Orcine is strengthened by the admission of the president of
the Association, which we noted above, that the members of the
Association had agreed "to stick together on the thing." We are
persuaded by the entire course of the negotiations and by the record
that the statements of the representatives of Lodge 606 are more
reasonable, and we so resolve the conflict of testimony.
At the June 7 meeting Lodge 606 insisted that its jurisdiction over
oar washers, lubrication men, servicemen, testers, and partsmen be
recognized regardless of whether or not these employees were included
within the terms of any agreement which might be concluded.
June 14: The Association presented its second proposed contract.
The chief provisions of this proposal were: (1) a minimum wage of
80 cents an hour or 40 per cent of the flat-rate labor, charge, at the
option of the employer; (2) a guarantee of $30 a week; (3) a 5-day,
40-hour week; and (4) a guarantee against discrimination on account
I$ This proposed agreement was drawn in the name of the Association, party of the
first part, and Lodge 606, party of the second part.
1194 NATIONAL LABOR RELATIONS BOARD
of union membership. That night, this second proposal of the As-
sociation was rejected by a meeting of the members of Lodge 606, and
the reasons were set forth in a letter sent to the Association. At the
same meeting the negotiating committee was given full power to con-
summate an agreement with the Association.
June 15: The committees held another conference at which the
objections raised by Lodge 606 with respect to the Association's pro-
posal of the preceding day were discussed . At the conclusion of the-
meeting the committees were in accord upon all except the following
points: ( 1) the classifications to be included in the contract (the
desire of the Association being to exclude servicemen , testers, and
partsmen ) ; (2) the minimum wage (Lodge 606 insisting upon $1
an hour, and the Association agreeing to 80 cents); (3) the piece-
work and flat-rate system which Lodge 606 wanted abolished; and
( 4) the establishment of a closed shop.
June 18: The Association submitted its third proposed contract.
This proposal raised the minimum wage to 85 cents an hour , but did
not change the Association 's position as to the other three contro-
verted points . On the same night, the proposal was rejected by the
executive board of Lodge 606, and a letter was forwarded to the
Association requesting further consideration of the four provisions
upon which the parties had not agreed.
June 21: The two committees held a further conference at which
Lodge 606 withdrew its demand for the establishment of a closed
shop.
June 23: At the conference on this date, Lodge 606 agreed that
partsmen were not to be included in the contract which it was seeking
at that time. During the next few' days the committees reached an
agreement with respect to a contract providing for : (1) a sliding
scale minimum wage and weekly guarantee, respectively, of 90 cents
an hour and $30 a week until September 30, 1937, of 95 cents on hour
and $32.50 a week until December 31, 1937, and of'$1 an hour and
$35 a week thereafter ; (2) the continuance of piece, flat-rate, or bonus
system work until August 1, 1937, but not thereafter; (3) the recog-
nition of the International Association of Machinists as the exclusive,
bargaining agency for all employees covered by the contract; and
(4) the inclusion of servicemen and testers within the terms of the•
-contract, but not partsmen, car washers, or lubrication men..
June 30: The Association, at a meeting attended by all the members,
except one, rejected the agreement reached by the - two committees.
Lodge 606 was notified that the officers of the Association were au-
thorized, on behalf of the membership, to execute the proposed con-
tract submitted by the Association on June 18. At the same meet-
ing, the Association appointed a new committee composed of Davis,
DECISIONS AND ORDERS 1195
chairman, Hall, Howry, Eppinger, Marcus, Leeman, and Gillespie-
to represent its members.
July 0: Lodge 606 sent a letter to the Association stating that the-
proposed contract of June 18 was not acceptable, that it was with-
drawing its consent to the agreement reached by the committees, ands
that it stood ready to continue negotiations. About the same time
Kelleher was informed by Davis and Thomas that the Associations
committee "did not have authority to go into any negotiations .. .
and did not have power to act."
July 6: The Denver Post, and on July 7 the Rocky Mountain News,
carried a half-page advertisement over the name of the Association,
entitled,
ATTENTION CITIZENS OF DENVER
Denver Automobiles Dealers Want the Public to Know All then
Facts About the Controversy Which Has Arisen Over Wages an&
Working Conditions in Their Service Shops.
In part the advertisement set forth :
It is necessary for the members of the Denver Automobile
Dealers' Association to make this statement, because this is the
only way they have to get before the union membership details
of the offer they have made.
No question of recognition of the union is involved in this-
dispute. The, dealers are willing to enter into a contract with.
the union.
The dealers have offered to :
1. Increase wages 15 to 20 per cent, and pay a minimum of 85
cents an hour...
2. Guarantee them a minimum of $30 a week.
3. Sign a contract with the union for a 5-day, 40-hour week,
with time and one-half for overtime and on national holidays.
4. Make no discrimination on account of union membership.
But this does not satisfy union leaders. The are demanding.-.
1. A minimum wage of $1 an hour.
2. A guarantee of $35 a week.
3. A closed shop.
4. Abolition of piece work.
Among other things, the advertisement discussed, at length, the
evils of the closed shop and the necessity for maintaining the piece-
work, flat-rate, and bonus system.
July 7: The membership of Lodge 606 voted to strike. Representa-
tives of-Lodge 606 held several conferences with the mayor of Denver-
in an effort to bring about further negotiations and avoid a strike.
As a result of the mayor's intervention, the two negotiating commit-
1196 NATIONAL LABOR RELATIONS BOARD
tees held further meetings on July 13, 16, and 19, but no conclusions
were reached.
July 21: The two committees succeeded in drafting the terms of
another agreement.19 The chief provisions of the contract agreed
upon were : (1) a minimum of 90 cents an hour or 40 per cent of the
flat-rate labor charge, at the option of the employee; (2) a guarantee
of $30 a week; (3) a normal 40-hour week, except that a 48-hour week
might be established "at the option of the employee and through
mutual consent of the parties"; (4) a guarantee against discrimina-
tion on account of union membership; and (5) an agreement to arbi-
trate all disputes arising between the parties with respect to indus-
trial relations.
July 26: The members of the Association rejected the contract
which was approved by the two committees. In lieu thereof the
'Association submitted an agreement which, together with certain
other changes, provided for : (1) a minimum wage of 85 cents an
hour until January 1, 1938, and 90 cents an hour thereafter, or 40
per cent of the flat-rate labor charge at the option of the employer;
and (2) an agreement to arbitrate those disputes arising between the
parties with respect to industrial relations as defined in the proposal.
This proposal of the Association was rejected by the membership of
Lodge 606 on the same night.
July 27: The two committees again agreed upon a form of contract.
'This proposed contract contains the essential provisions of the agree-
ment of July 21, except that it provided for a minimum wage of 90
cents an hour or 40 per cent of the flat-rate labor charge. Although
not expressly stated in the agreement, the employer was to retain the
option of establishing the percentage system of 40 per cent of the flat-
rate labor charge made to the automobile owner. The two committees
also approved a supplemental contract whereby Lodge 606 agreed
that within 30 days it would bring 75 per cent of the independent
,car dealers, repair shops, and service shops of Denver under the terms
of the principal agreement.
July 29: The members of the Association, at a luncheon meeting,
rejected the agreement decided upon by the committees. At the same
time, the Association withdrew its approval of the proposed contract
which it had submitted to Lodge 606 on July 26. During the course
of the same meeting, Alter, counsel for the Association, prepared an
agreement which was signed by all the members of the 'Association,
with the exception of one or two who are•not involved in this proceed-
ing. Under the terms of this agreement each member of the Associa-
tion who signed paid the sum of $1,000 to three trustees, upon the
19 This agreement, together with those prepared subsequent thereto, is drawn in the
name of the Association, "a non-profit corporation .. . and representing the membership
thereof, party of the first part" and Lodge 606, party of the second part.
DECISIONS AND ORDERS 1197
condition that if the member entered into a contract with Lodge 606
without the consent of a majority of the negotiating committee of
which Davis was chairman, the trustees could declare the $1,000 for-
feited. At the oral argument before the Board, Alter stated that
when he drew up the agreement, "I expressed serious doubt as to the
propriety of drawing this up."
That evening Kelleher spoke to Braden, secretary of the Associa-
tion. We adopt Kelleher's uncontroverted testimony concerning the
following conversation with Braden : "He told me the agreement had
been rejected. I asked him if he could tell me what points were-
rejected. He said, they just rejected the agreement was all he could'
tell me. He said he was leaving for the east and would not be back
for a month's time ...
July 30: A strike was called by Lodge 606. A majority of the-
employees in the shops of the members of the Association, taken as a
whole, went out on strike. On this and the succeeding day repre-
sentatives of Lodge 606 went to the places of business of the members
of the Association and submitted a new proposed contract.20 The
principal provisions of this proposal were: (1) servicemen, testers,,
and partsmen to be included within the terms; and (2) a sliding
scale minimum wage and weekly guarantee, respectively, of 90 cents
an hour and $30 a week until November 30, 1937, of 95 cents an hour
and $32 a week until March 31, 1938, and of $1.00 an hour and $35
a week thereafter, or at the option of the employee with the consent
of Lodge 606, 40 per cent of the flat-rate labor charge.
The representatives of Lodge 606 were told by many of the dealers-
to whom they presented the proposed contracts that there was a
negotiating committee acting for them and that individual dealers
could neither negotiate nor sign any agreement. Copies of the pro-
posed contract were left at Mountain Motors , Hall, Inc., Larson-Nash,.
Cullen-Thompson, and Howry-Berg. The position of the dealers on
July 30 is stated in the following manner by Ward J. Thompson,
partner in the firm of Cullen-Thompson : "We had designated a com-
mittee to act for us with the union. I would not negotiate without
taking it up with the committee acting for us."
August 5: A meeting was held at the office of the Board's Regional'
Director which was attended by representatives of Lodge 606 and by
Davis, Thomas, and Alter for the members of the Association. The-
Regional Director expressed the opinion that it was necessary for
the Association to set aside the $1,000 forfeiture agreement so that
the dealers could act as individuals or else grant to the negotiating
committee full power to act.
20 This agreement omitted the name of the employer and contemplated signature by
individual dealers.
1198 NATIONAL LABOR RELATIONS BOARD
August 8: The $1,000 forfeiture agreement signed by the members
of the Association was destroyed. Thirty-three members of the Asso-
ciation, including all those named in this proceeding, signed a new
agreement authorizing: (1) the negotiating committee headed by
Davis, or a majority thereof, to enter into and consummate a contract
or agreement with Lodge 606 and fully and completely to bind the
members who signed; and (2) the forfeiture of the $1,000 deposit
made by each member with the three trustees on July 29 in the event
that any contract executed should be violated by any member.
August 11: Kelleher called Davis, chairman of the Association com-
mittee. We adopt Kelleher's uncontroverted testimony which is as
follows : '.Mr. Davis told me that the committee had been given full
power to act, but lie requested from me that his men on strike be
put back to work pending settlement of the negotiations. I asked
Mr. Davis if his committee would be willing to sign an agreement
with us to the effect that an agreement would be effectuated and he
was very brief and said `Of course not', and that was all the conversa-
tion that was had at that time. There was no date or anything set
for a meeting."
August 13: The two committees held another conference. At the
start of the meeting Davis stated, "What are we here for? . . . What
have you got to offer?" Kelleher told him that it was his under-
standing that the meeting was for the purpose of taking up the last
agreement, determining what points had caused the rejection by the
members of the Association, and attempting to settle the differences.
Davis replied, "Hell, man, you have done all the damage that you
,can, you have pulled the men out on strike, wrecked our business and
we would not be willing to talk any kind of settlement." The Asso-
ciation committee demanded that the strikers return to work before
any negotiations were started. Kelleher agreed to have the strikers
go back to work upon the condition that the differences be submitted
to an arbitration board if they were not settled within 20 days. There
was some discussion with respect to the composition of the arbitration
board, but the Association committee refused to accept the proposal.
August 25: After conferences had been held with the Governor of
`Colorado and the mayor of Denver, a further meeting of the two
committees took place. Lodge 606 offered to discuss the provisions
of the last proposed agreement of July 27. Davis declared, "Hell,
you had this last time, I thought you were to have something to offer
at this time." To quote the words of Thomas, president of the Asso-
ciation, with reference to this meeting : "I remember Mr. Davis read-
ing an excerpt of a decision that when negotiations reached an impasse
and it was futile to continue, then we were under no obligations to
-attend further meetings . . . We always told the union we were
-willing to negotiate with them whenever there was any reason for
DECISIONS AND ORDERS 1199
having a meeting, but that if we were deadlocked and getting nowhere
and nobody had anything new to bring up, we saw no reason to have
any additional meetings until we heard from the union. All agree-
ments were off and if we met to talk the thing over, we would simply
have to start from the beginning again." Thomas admitted that the
bargaining committee of the Association made no suggestion with
respect to the basis for subsequent negotiations or what the starting
point should be. There were no subsequent meetings between the two
committees.
(b) Conclusions with respect to the refusals to bargain
In the light of the foregoing events, we conclude that the respond-
ents did engage in collective bargaining with Lodge 606 during the
period from May 5 to July 27, 1937. The fact that the negotiating
committees which represented the members of the Association were
without authority to enter into a binding contract and were required
to bring the results of their negotiations to the membership of the
Association for approval tends to cast some suspicion upon the re-
spondents' good faith in their dealings with Lodge 606. However,
the lack of authority was made known to the representatives of Lodge
606 and they acquiesced in this method of conducting the negotiations.
The good faith of the Association in authorizing the advertisements of
July 6 and 7 is also questionable since the demand for a closed shop
had been waived by Lodge 606 prior to those dates. Furthermore, the
announcements, in other respects, displayed a lack of fairness and
complete accuracy. Nevertheless, the respondents thereafter met
frequently with Lodge 606 to discuss the proposals and counterpro-
posals. Indeed, on July 26 the Association offered to enter into a
contract with Lodge 606. We believe that the bargaining by the
respondents during the period from May 5 to July 27, 1937, was in
good faith.
On July 29, 1937, however, the conduct of the respondents with
respect to collective bargaining with their employees changed ma-
terially. The accomplishments of the negotiating committee which
had been representing the members of the Association upon a collec-
tive basis were rejected. No reasons were offered for the rejection,
no counterproposals were submitted, and no efforts were made to
continue the negotiations. In fact, approval of the contract which
had been offered to Lodge 606 on July 26 was withdrawn. Thus the
members of the Association brought to a complete halt their bargaining
with Lodge 606 upon a group basis.
At the same time the individual respondents agreed to forfeit $1,000
in order to discourage individual bargaining with Lodge 606. The
penalty of $1,000 was imposed as a method of precluding any bar-
1200 NATIONAL LABOR RELATIONS BOARD
gaining with Lodge 606 upon an individual basis. Thus the mem-
bers of the Association by their activities on July 29, 1937, barricaded
any avenues to collective bargaining which might be open to Lodge
606. Their activities constituted a refusal to bargain collectively.
Lodge 606 called the strike on July 30 because of this refusal of
the respondents to bargain collectively with it. The respondents, con-
tend that on July 30 when the representatives of Lodge 6'06' distributed
copies of the contract which they were seeking to have signed, they
slid not in most cases spell out a precise request for the individual
dealer to bargain collectively. The record supports this contention
and discloses that the representatives of Lodge 606 presented a copy
of the contract to each dealer and without much discussion cal'l'ed the
men out on strike. In view of the forfeiture agreement which had
been consummated the preceding day and in view of the statements,
made by many members of the Association that the committee was
acting for them and they therefore could not negotiate individually,
we are of the opinion that it was unnecessary for Lodge 606 to request
each respondent to bargain collectively upon an individual basis.
To insist upon such conduct by Lodge 606 in the face of an agreement
which set a $1,000 penalty upon an individual dealer who might desire
to fulfill his obligations under the Act seems wholly unreasonable.
On August 8 the negotiating committee of the Association was
given full power to act on behalf of the membership and to consum-
mate a contract with Lodge 606. The subsequent activities of the
Association committee cannot be considered honest and sincere bar-
gaining efforts. No proposal was offered to Lodge 606, no attempt
was made to negotiate with an honest intent to reach a collective,
agreement. The attitude of the Association committee was charac-
terized by the question which its chairman directed to Lodge 606,
"What have you got to offer?" The suggestion of Lodge 606 that
the discussions center upon the last contract on which the committees
had been in accord-a reasonable suggestion-was rejected. Yet the
Association committee offered no other basis for the negotiations, it
merely declared that an impasse had been reached. We are per-
suaded that the impasse, if in fact there was one, was created by the
efforts of the Association committee. 21
21 The following language of the United States Circuit Court of Appeals for the Fourth,
Circuit in the case of Jeffery-Dewitt Insulator Company v. National Labor Relations
Board (91 F. (2d) 134 ; cert. den 302 U. S 731) is in this connection generally
applicable.
It is true that the act does not requite the paities to agree but merely to
negotiate with each other; but it is based upon the idea that negotiations honestly
entered into will generally result in the settlement of differences , and commands
negotiation for that reason Statistics show the reasonableness of the hope upon
which it proceeds ... If an employer in the presence of a strike could rid himself
of the obligation to negotiate by declaring further negotiations to be useless and
refusing to recognize as employees those failing to return to work on his terms,
the statute enjoining collective bargaining would largely fail of its purpose. We
do not think that it can be brushed aside so easily.
DECISIONS AND ORDERS 1201
With respect to the Association, the record discloses that this re-
spondent acted as the agent, and on behalf, of its members. 'rhe
evidence of the activities of the members themselves and of the activi-
ties of their authorized agent, the Association, leads us to conclude
that the respondents, Mountain Motors, Hall, Inc., Larson-Nash,
Cullen-Thompson, and IIowry-Berg, each refused to bargain collec-
tively with Lodge 606.
The foregoing events and the record reveal the following facts :
1. That on July 29, 1937, the respondents Mountain Motors, Hall,
Inc., Larson-Nash, Cull en-Thompson, and Howry-Berg refused to
bargain collectively, with Lodge 606.
2. That the above refusals to bargain collectively resulted in the
strike called on July 30, 1937.
3. That throughout the negotiations which took place during the
period from August 8, 1937, to August 25, 1937, the aforesaid respond-
ents further steadfastly refused to bargain collectively in good faith
with Lodge 606.
We find, therefore, that on July 29, 1937, and at all times there-
after, the respondents Mountain Motors, Hall, Inc., Larson-Nash,
Cullen-Thompson, and Howry-Berg each refused to bargain collec-
tively with Lodge 606 as the representative of its employees in the
appropriate unit in respect to rates of pay, wages, hours of employ-
ment, and other conditions of employment, and thereby engaged in
unfair labor practices within the meaning of Section 8 (5) of the
Act.
We find that the aforesaid respondents, by the acts above set forth,
also interfered with, restrained, and coerced their employees in the
exercise of the rights guaranteed by Section 7 of the Act, and en-
gaged in unfair labor practices within the meaning of Section 8 (1)
,of the Act.
We will order that the complaints with respect to the Association
be dismissed in so far as they allege that the said respondent has
engaged in and is engaging in unfair labor practices within the mean-
ing of Section 8 (5) of the Act.
B. The Independent Automobile Employees' Union, Inc.
The complaints allege that respondents, the Association, Hall, Inc.,
Larson-Nash, Cullen-Thompson, and Howry-Berg, urged, threatened,
and persuaded the employees of the respondents, other than the
Association, to organize, vote for, adopt, and participate in the for-
mation and administration of the Independent and its locals, and in
other respects extended aid and support thereto.
On about July .30 an organization was formed by the employees
of Stovall-Hilliker Motor Company, a member of the Association.
.Johnson, employed on week ends and during his vacations from
1202 NATIONAL LABOR RELATIONS BOARD
school, was active in the formation of the organization. He received
suggestions and advice from a Denver attorney, Horace F. Phelps.
On August 10 a meeting was held at Phelps' office and was attended
by Johnson, by several other employees of Stovall-Hilliker Motor
Company, and by a small group of employees of various other mem-
bers of the Association. At this meeting it was decided that those
present would secure the attendance of employees of other shops at
a meeting to be held the next day. The meeting on August 11 was
attended by about 35 persons and was also held at the office of Phelps.
Phelps outlined his plans for the formation of the Independent and
its locals.
During the remainder of August, Phelps distributed to employees
of certain members of the Association various mimeographed ma-
terials which included a "Proposal for the organization of Independ-
ent Associations of Employees to be chartered by The Independent
Automobile Employees' Union, Inc.," proposed articles of incorpo-
ration, proposed bylaws, a form of agreement whereby the duly
elected bargaining committee of a local of the Independent is granted
recognition by the employer as the representative of the majority of
the employees, a form of resignation from Lodge 606, and a set of
minutes of the organization meeting of a local which merely required
the filling in of certain blanks.
The following table sets forth the dates upon which the local organi-
zations of the Independent were organized in accordance with these
mimeographed materials, the local number, the names of the mem-
bers of the Association who were their employers, and the dates upon
which these employers signed a recognition agreement.
Date organized ( 1937) LocalNo Employer
Date of recog-
nition agree-
ment (1937)
July 30------------------------ 1 Stovall-Hilliker Motor Company------------- August 10
August 13--------------------- 2 O'Meara Motor Co --------------------------- August 23
August 20--------------------- 3 The McCarty-Sherman Motor Company----_ August 27
August 25-- ------------------ 4 Ray Young---------------------------------- August 27.
August 27--------------------- 5 George Irwin , Inc ----------------------------- September 13.
August 28--------------------- 6 I arson-Nash---------------------- ------------ August 31
August 30--------------------- 7 James Motor Company ----------------------- August 31
August 31 --------------------- 8 Cullen-Thompson ----------------------------- September 2.
August 31--------------------- 9 Howry-Berg--------------------------------- September 1.
September 2------------------ 10 Hoskins-Beatty Motor Co -------------------- September 30.
September 3------------------ 11 Mountain Motors -------- --------------------- September 9.
September 8------------------ 12 Ervin-Platt Chevrolet Co -------------------- September 8.
September 8------------------ - 13 Walker-Buick , Inc ---------------------------- None
September 9------------------ 14 Pall, Inc------------------------------------- September 10.
October 13 -------------------- 15 Denver -Buick , Inc ---------------------------- None.
The formal organization of the Independent was completed at a
meeting at the office of Phelps on September 2. Representatives of
the locals chartered at that time met and elected officers.
There is nothing in the record to show that the Association insti-
gated or initiated the formation of the Independent or in any way
interfered with its administration. We find that the Association has
DECISIONS AND ORDERS 1203,
not dominated or interfered with the formation or administration
of the Independent or contributed financial or other support to it or
to any of its locals. We will order that the complaints with respect
to the respondent, the Association, be dismissed in so far as they
allege that the said respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8 (2) of the Act.
1. The Independent Association of Employees of Hall, Inc.
On August 5 the following telegram from R. R. Hall, president, to
L. T. Sparkman, sales manager, sent from Detroit, Michigan, was
read to each striking employee when he came to the place of business
of Hall, Inc., to receive his salary check :
When Paul pays off striking men today impress upon each one
without exception that his employment is definitely ended and
reinstatement will be only for those whom we wish to employ
again on application Stop Use this telegram to impress this.
fully on everyone receiving his July check and attend to it
personally where possible Stop There seems to be plenty of
Cadillac mechanics here who would willingly leave for a steady
job so I think we had better lay our plans for a loyal working
force in the future.
On Thursday, September 9, 193T a committee of striking employees
composed of Boston, Hance, Sweeney, and Norton spoke to R. R.
Hall and asked whether the men who were out on strike could return
to work. Hall told them that he would think it over and let them
know. That night the four striking employees attended a meeting
at a Denver hotel which had been arranged by`Hasenhauer, a sales-
man at Hall, Inc., after discussions among the salesmen and office
employees. Phelps appeared at the meeting and presented his forms
for the organization of a Hall, Inc. local of the Independent. On
the following day, Boston, Hance, Sweeney, and Norton again met
with R. R. Hall. Hall told them he "was not bargaining with the
committee as any representatives of a union," that lie would not
recognize Lodge 606, but that if they wanted to return to work they
could do so under the same conditions that existed at the time the
strike was called. Hall and the service manager, Gaut, then an-
nounced that the four members of the committee, together with three
other strikers, could return to work the next morning, that several
others would be taken back the following week, and that the remain-
ing strikers would be reinstated as work was available.
That same evening another meeting of the Hall, Inc. local of the
Independent was held, and an organization was established with C. J.
Mankin, bookkeeper, as president; H. T. McClure. salesman, as vice
president; and Mary Mitchell, Hall's stenographer, as secretary-
1204 NATIONAL LAB O1. RELATIONS BOARD
treasurer. At the close of the meeting, the members of Lodge 606
who were present stayed behind and heard Hance announce the names
of those who were to return to work the next day.
Later during the same evening, Hall signed an agreement recog-
nizing Hance, Sweeney, and Hasenhauer as the collective bargaining
committee of the Hall, Inc. local of the Independent and as the ex-
clusive representative of all the employees. On the following morn-
ing seven strikers, including Hance, Sweeney, Boston, and Norton,
returned to work.
We find, in accordance with the testimony of numerous witnesses,
that Mankin solicited membership in the Hall, Inc. local of the In-
,dependent and also distributed forms of resignations from Lodge
-606 during working hours. Meetings of the local of the Independ-
ent after the end of September were held at the offices of Hall, Inc.
In addition, we find that applicants for positions at Hall, Inc., were
required to see Mankin and obtain his approval. We adopt the fol-
lowing testimony of Vergen, a striker who applied for reinstate-
ment on September '13 : "I went down and seen Mr. Gaut. He told
me he said, `The job is here,' and he stated at that time he would have
to see Chuck (Mankin), and Chuck happened to be standing right
next to him . . . I turned to Chuck, and Chuck showed me what he
had. He had a little form he had been presenting to all of them,
I suppose, to sign . . . It was something about joining the company
union, or company association, as they called it." When Jack Ray-
mond, another striker, applied for reinstatement on September 22,
Gaut also told him to see Mankin.
We find the inference to be inescapable that membership in the
Independent local was made a requirement for reinstatement. Our
conclusion is confirmed by the solicitation in the shop which was
carried-on during working hours and by the significant role in the
campaign of support for the Independent which was played by
Gaut, the service manager and ranking supervisory official of the
service department and shop. Gaut possessed authority to hire and
discharge. He testified that he never required any employee to see
Mankin, but that "it was always at their own suggestion, for some
knowledge about th'a't (the Independent local) ... And I would
refer them-I would tell them if they wanted to know anything about
that they would have to talk to Mankin, as I understood that he was
the one that would know about it." Mankin explained that Gaut
referred applicants for employment to him, "Well, mainly for me
to tell them about our organization, our employees association in the
company, so that they would understand that; that was the only rea-
son they were referred to me."
Upon the foregoing facts, it is apparent that the Hall, Inc. local
of the Independent was not free from the sponsorship of the respond-
DECISIONS AND ORDERS 1205
ent Hall , Inc. The initial formation of the Hall , Inc. local of the In-
dependent was directly bound up with the reinstatement of a commit-
tee of members of Lodge 606 . The committee members were not ad-
vised that they could return to work until September 10, the day after
they had attended the first meeting of the Independent . The names
of the men who were to return to work were announced at the conclu-
sion of the meeting of the Independent that evening . Later that
same night Hall, the president of Hall, Inc., signed an agreement
recognizing the Independent local. On November 1, Hall, Inc.,
signed a closed-shop contract with its local of the Independent.
We find that the respondent Hall, Inc., has dominated and inter-
fered with the formation and administration of the Independent
Association of Employees of Hall, Inc., an organization chartered by
the Independent as Local No. 14, and has contributed support to it,
and has thereby engaged in unfair labor practices within the meaning
of Section 8 (2) of the Act. We also find that by such illegal spon-
sorship of its local of the Independent , the respondent Hall, Inc. has
interfered with, restrained , and coerced its employees in the exercise
of the rights guaranteed by Section 7 of the Act, and has thereby
engaged in unfair labor practices within the meaning of Section 8 (1)
of the Act.
2. The Independent Association of Employees of Larson-Nash
The Larson-Nash local of the Independent held its first meeting
on August 28, 1937, after several employees had conferred with
Phelps. On August 31, Larson-Nash entered into a recognition agree-
ment with its local of the Independent . The second meeting of the
Larson-Nash Independent was held near the end of September at a
Denver hotel . The subsequent meetings during November and De-
cember were held in the salesmen 's room at Larson-Nash.
The record does not show that the respondent Larson-Nash has
dominated and interfered with the formation and administration of
the Independent Association of Employees of Larson -Nash, an or-
ganization chartered by the Independent as Local No. 6, or contrib-
uted financial or other support to it. We will order that the com-
plaints with respect to the respondent Larson -Nash be dismissed in
so far as they allege that the said respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section
8 (2) of the Act.
3. The Independent Association of Employees of Cullen-Thompson
The Cullen -Thompson local of the Independent was organized on
August 31 , 1937. The following officers were elected : President,
Frank C. Polak, bookkeeper and accountant ; vice president, A.
147841-39-vol. 10--77
1206 NATIONAL LABOR RELATIONS BOARD
Spiker, collection man; secretary-treasurer, A. E. Valentine, credit
or office manager. Polak is also president of the central organiza-
tion of the Independent. On September 2 Cullen-Thompson signed
a contract recognizing a committee of its local of the Independent
as the representatives of a majority of the employees.
Woods, a member of Lodge 606, applied for reinstatement on Sep-
tember 10. Thompson, one of the partners in the firm of Cullen-
Thompson, told him that in order to come back to work he would
have to "get rid" of his union book.22 When Woods returned on
September 15 he spoke to Holt, the service manager, with reference
to employment, and he was advised to see Polak. Polak told him he
would have to turn in his Lodge 606 membership book. After
Woods agreed to do this, Polak referred him to Holt and told the
service manager that it was satisfactory for Woods to be employed.
Thereupon Holt permitted Woods to go to work.
On September 10 Holt told another applicant for employment,
Gatliff, to see Polak and Spiker. Subsequently Polak explained to
Gatliff that he could go back to work if he surrendered his Lodge
606 membership book. About the same day, Holt sent two other
applicants, Van Gorder and Taubold, to see Polak. Polak spoke
to them about the Cullen-Thompson local of the Independent and
then asked them to turn over their. Lodge 606 membership books.
When Polak was handed the membership books, he put them into the
Cullen-Thompson safe and then handed each applicant a white slip
of paper marked "0. K." The applicants presented the pieces of
paper to Holt and went to work.
Fry, a new employee, applied for work on October 12. The shop
foreman, Sawyer, asked him about his experience and then sent him
to Polak. As in the other cases, Polak discussed the Independent
local, told Fry that it was necessary to turn over his membership
book in Lodge 606, and when Fry replied that he was willing, Polak
called Sawyer and announced that Fry was satisfactory. Sawyer
then put Fry to work.
The service manager, Holt, was the supervisory official in charge
of the Cullen-Thompson service department and shop and was re-
22 In his Intermediate Report the Trial Examiner noted the fact that Thompson was
present at the hearing and did not deny that he had made the statement which woods
attrituted to him The exceptions to the Intermediate Report contain the following
remark : .. the failure to deny the particular testimony to which the Trial Examiner
calls attention was through the inadvertence of counsel , and had it occurred to counsel
that the Trial Examiner would have attached such importance to this particular testi-
mony as therein stated , counsel would have realized the futility of denying the same
because the Trial Examiner throughout the hearing of this and other causes by his findings
of fact clearly indicated that all testimony offered by respondents was wholly discredited
by him "
We believe this comment of counsel as well as other references to the bias and prejudice
of the Trial Examiner to be unwarranted and without justification in the record.
DECISIONS AND ORDERS 1207
sponsible for the hiring and discharging. Holt admitted the accu-
racy of the testimony of Gatliff, Fry, Taubold, and Van Gorder, and
the occurrence of the events which they described and which we have
set forth above. In defense of his activities, however, he testified
as follows : "There was nothing suggested by either Mr. Cullen or
Mr. Thompson in any respect in seeing Mr. Polak. Mr. Polak sug-
gested to me he wished to converse with all men before going
back to employment' in Cullen-Thompson . . Merely by his sug-
gestion I did that. Did not know the purpose or reason for it." We
find it impossible to accept the explanation of Holt as anything other
than an unmistakable admission of his support of the Cullen-Thomp-
son local of the Independent. The respondent Cullen-Thompson is
responsible for the acts of its representatives, certainly for the un-
denied acts of a high supervisory official, its service manager.
As we have noted above, the Lodge 606 membership books which
were surrendered to Polak were placed in the Cullen-Thompson safe.
Polak does not possess the combination to the safe, it being known only
to the Cullen-Thompson partners and to Valentine, the secretary-
treasurer of the Independent local. It is significant that although
Polak described Valentine as the credit manager, he is listed as office
manager on the pay roll which was introduced in evidence. We are
persuaded that Valentine's designation on the pay roll indicates that
it is reasonable to consider him a supervisory official and a represen-
tative of the management.
In addition to using the Cullen-Thompson safe, the Independent
local utilized other facilities of the respondent. Notices of meetings
were posted on the time clock, and the meetings were all -held in the
Cullen-Thompson salesroom. An announcement of a meeting to be
held on October 19, 1937, was attached to the salary checks which were
then distributed by the.department heads. The-announcement con-
tained the statement: "This is an important meeting and every em-
ployee should be present . . . Do not ignore this notice."-
We conclude from the above facts that the respondent Cullen-
Thompson has dominated and interfered with the formation and ad-
ministration of the Independent Association of Employees of Cullen-
Thompson, an organization chartered by the Independent as Local
No. 8, and has contributed support to it,-and has thereby engaged in
unfair labor practices within the meaning of Section 8 (2) of the Act.
We also find that by such illegal sponsorship of the Cullen-Thompson
local of the Independent coupled with the antagonism shown towards
Lodge 606, the respondent Cullen-Thompson has interfered with,
restrained, and.coerced•its employees in the exercise of the rights guar-
anteed by Section 7 of the Act, and has thereby engaged in unfair
labor practices within the meaning of Section .8 (1) of the Act.
1208 NATIONAL LABOR RELATIONS BOARD
4. The Independent Association of Employees of Howry-Berg
The Howry-Berg local of the Independent was organized on August
31, 1937. On September 1, Howry-Berg entered into a recognition
agreement with its local of the Independent.
The record does not show that the respondent Howry-Berg has
dominated and interfered with the formation and administration of
the Independent Association of Employees of Howry-Berg, an organ-
ization chartered by the Independent as Local No. 9, or contributed
financial or other support to it. We will order that the complaints
with respect to the respondent Howry-Berg be dismissed in so far as
they allege that the respondent has engaged in and is, engaging in
unfair-labor practices within the meaning of Section 8 (2) of the Act.
C. The refusals to reinstate
At the time of the hearing the strike called by Lodge 606 on July 30,
1937, had not been officially ended, About September 10, 1937, and
thereafter, many of the strikers returned to work. The complaints
which allege that certain respondents had engaged in unfair labor
practices within the meaning of Section 8 (3) of the Act set forth that
on or about September 10, and at subsequent dates, the fespondents
were requested to reinstate certain named strikers, but refused to rein-
state said employees because they encouraged and assisted Lodge 606.
1. Hall, Inc.
F. Rameriz and Stanley Wysakawski were employed as painters'
helpers at the time they struck on July 30, 1937. Rameriz received
his membership book in Lodge 606 on August 1, but had paid dues
during June 1937. Wysakawski joined Lodge 606 about 8 months
before the strike. Both of them returned t6 seek reinstatement on
September 15 because they had been told that Gaut, the service man-
ager, wanted to see them. Gaut was not in the shop and they could
not find him. On the used-car lot they met Mankin, the bookkeeper
and the president of the Independent local, who told them, "You have
to go back to work the same way you got out . . . and besides that,
you have to sign your resignation from your union." As stated by
Rameriz, "We told him we had to find out first, and we left."
Mankin did not have authority to hire or discharge. Nevertheless,
as heretofore stated, Gaut, the ranking supervisory official of the
service department and shop, referred to Mankin several striking
employees who applied for reinstatement during this period. We
have also found that the Independent local, in which Mankin was
the outstanding figure, was fostered by the employer, Hall, Inc., and
that membership in this organization was made a requirement for
DECISIONS AND ORDERS 1209
reinstatement, We are satisfied that the activities of Mankin were
so allied with those of Gaut and the management that the action.
taken by Mankin •in stating to Rameriz and Wysakawski' that they
could not go back to work until they resigned from Lodge 606 must
be held that of the respondent Hall, Inc.
The pay-roll lists submitted by Hall, Inc., show that one painters'
helper who had struck on July 30 was reinstated on October 10, that
several new employees 23 were hired as painters' helpers during the
latter part of September and during October, and that two other
painters' helpers were hired during November but did not continue
as regular employees.24 It is apparent from the foregoing that the
respondent Hall, Inc., would have been able to have restored Rameriz
and Wysakawski to their former positions at the time of, or shortly
after, their application for reinstatement on September 15.25
By refusing available employment to Rameriz and Wysakawski on
September 15, 1937, except on the condition that they renounce their
affiliation with Lodge 606, Hall, Inc., has discriminated against these
employees with regard to their hire and tenure of employment,
thereby discouraging membership in Lodge 606 and interfering with,
restraining, and coercing its employees in the exercise of the rights
guaranteed in Section 7. of the Act.26
In addition, Gaut testified, and we find accordingly, that Rameriz
and Wysakawski again came into the shop and requested reinstate-
ment around the beginning of November. Gaut told them that there
was no work for them, that he had all the men he could use at that
time. It is thus apparent that the respondent Hall, Inc., would
28 "New employees ' were those persons hired by the respondent after July 30, 1937, who
were not on its pay roll as of that date , and who , in so far as the record shows, had
never previously been employed by the respondent.
21 The pay -roll lists cover the months of September, October , and November , 1937, and
reveal that on the dates listed the following painters ' helpers were hired and, except where
so noted , continued on the pay roll :
September 15, McCutclien (new employee).
September 16, Massey (new employee) left September 17.
September 22, Kinney ( new employee).
October 4, Swanson (new employee)
October 10, Pratt ( striking employee).
October 16, Bond (new employee)
October 20 , Koehler ( new employee).
November 9, Warrington (new employee) left November 11.
November 24, Williams ( new employee ) left November 30.
2' Gaut testified that Rameriz had first requested reinstatement on September 11, 1937,
had been told to report to work the following week, but had replied that he did not want
to return to work at the same salary which he had been earning prior to July 30 Although
Rameriz admitted that he had wanted an increase , he testified that the salary had not
motivated his refusal to go to woi k on September 15. We find that when Rameriz re-
quested employment on September 15, lie did not condition his request upon an increase
in wages.
20 Matter of Carlisle Lumber Company and Lumber & Sawmill Workers ' Union, Local 2511,
2 N. L. R . B. 248 , order enforced in National Labor Relations Board v. Carlisle Lumber
Company. 94 F. (2d) 138 ( C. C. A. 9th ), cert den . 304 U . S 575; Matter of American
Manufacturing Company et al and Textile Workers ' Organizing Committee , C. 1. O,
5 N. L. R. B. 443.
1210 NATIONAL LABOR RELATIONS BOARD
have been able, by displacing the new employees, hired as painters'
helpers during September and October, to have restored Rameriz
and Wysakawski to their former positions at the time of their re-
newed applications for reinstatement at the beginning of November.
Under Section 2 (3) of the Act, Rameriz and Wysakawski, as
strikers, remained employees of the respondent Hall, Inc. We have
frequently held that where, as here, a strike has been caused in whole
or substantial part by the respondent's unfair labor practices, the
striking employees are entitled to their former positions upon making
application therefor.2T The failure of the respondent in this case
to reinstate the striking employees, Rameriz and Wysakawski, to
the positions to which they were entitled, by displacing if necessary
persons hired after the commencement of the strike and not in its
employ at the commencement of the strike, in effect and in result dis-
criminated, and constituted a discrimination, concerning hire and
tenure of employment, against such employees. Such discrimination
discourages union membership.
We find that by the foregoing refusal to reinstate F. Rameriz and
Stanley Wysakawski at the beginning of November 1937, the respond-
ent Hall, Inc., has further discriminated with respect to their hire and
tenure of employment, thereby discouraging membership in Lodge 606
and interfering with, restraining, and coercing its employees in the
exercise of the rights guaranteed in Section 7 of the Act.28 Since our
order below will make provisions to remedy the situation brought
about by the unfair labor practices of September 15, 1937, with
respect to Rameriz and Wysakawski, any additional remedy cover-
ing the unfair labor pratices of November is unnecessary.
At the time of the hearing, Wysakawski was unemployed. Ra-
meriz had secured a temporary position with another automobile
concern, and at the time of the hearing had earned about $115.
F. E. Vergen, a member of Lodge 606, went out on strike on July
30, 1937, after he had been employed by Hall, Inc., as a used-car
mechanic for about 2 months. When he reported for work on Sep-
tember 13, Gaut, the service manager, said he would have to see
Mankin, the president of the Independent local. Mankin showed
him an application form for membership in the Hall, Inc. local of
"Matter of Jeffery-DeWitt Insulator Company and Local No. 155, United Brick and
Clay Workers of America, 1 N L R. B 618, order enforced' in Jeffery-DeWitt Insulator
Company v National Labor Relations Board , 91 F (2d ) 134 (C. C. A. 4th ), cert. den.
302 U . S 731; National Labor Relations Board v. Remington Rand , Inc., 94 F ( 2d) 862
(C C. A. 2d), cert den 304 U S 576.
28Matter of Black Diamond Steamship Coipoiation and Marine Engineers ' Beneficial
Association, Local No 33, 3 N L R B 84, order enforced in Black Diamond Steamship
Corp v. National Labor Relations Board, 94 F. (2d) 875 ( C. C. A. 2d ), cert. den. 304
U. S 579 , Matter of McKaig -Hatch , Inc and Amalgamated Association of Iron, Steel,
and Tin Workers of North America , Local No 1139, 10 N L R . B. 33; Matter of Western
Felt Works, a corporation and Textile Workers Organizing Committee , Western Felt Local,
10 N. L R. B 407.
DECISIONS AND ORDERS 1211
the Independent which he would have to sign. Vergen replied, "I
will have to go down and see Mr. Kelleher."
H. J. Reid, used-car manager at Hall, Inc., testified that no one
had been employed as a used-car mechanic to take Vergen's place,
that Vergen was offered employment several times, and that he
refused to go to work. In response to a question concerning his
desire to be reemployed by Hall, Inc., Vergen stated : "I wouldn't
mind going back to work there but I wouldn't really like to go back
as a scab-what we would call a scab, see? If they would recognize
the union, and recognize me as a union man, I wouldn't mind going
back to work ; I would really like to." Upon cross-examination
Vergen stated that he did not desire employment at Hall, Inc., in
September because he would be required to work with men who had
deserted Lodge 606 and joined another union. He testified that even
if he had not been required to sign a resignation from Lodge 606
he still would not have gone back to work'unless he obtained the per-
mission of Lodge 606.
Since no one was employed as a used-car mechanic to take Vergen's
place and since from his own testimony we find that he was unwilling
to accept an offer of reinstatement, we do not find that the respondent
Hall, Inc., discriminated in regard to his hire and tenure of employ-
ment to discourage membership in Lodge 606. However, the respond-
ent, through its service manager, informed Vergen that he could not
obtain employment except on the condition that he joined the Hall,
Inc. local of the Independent. Under the circumstances these state-
ments amounted to interference with the right of self-organization.
We find that the respondent Hall, Inc. interfered with, restrained,
and coerced its employees in the exercise of the rights guaranteed
in Section 7 of the Act.
Ray Sullivan was a member of Lodge 606 when he went out on
strike on July 30. No showing was made that he ever applied for
reinstatement, and he did not testify at the hearing. The evidence
in this case does not sustain the allegation that the respondent Hall,
Inc., refused to reinstate Sullivan because of his activities on behalf
of Lodge 606. We find that the respondent Hall, Inc., did not dis-
criminate against Sullivan in regard to hire and tenure of employ-
ment.
2. Marcus Motors
Joe Trostel, a mechanic, was reinstated by the respondent Marcus
Motors on October 7, 1937. We will dismiss the allegations of the
complaint with respect to him.
Glen Vogel, a member of Lodge 606, was an apprentice painter
at Marcus Motors at the time he struck on July 30. In its answer
the respondent admits that Vogel requested reinstatement "sometime
1212 NATIONAL LABOR RELATIONS BOARD
during September or October 1937" but contends that he was not
reinstated because he did not make application within a reasonable
time and because there was no work available at the time of his
request. No evidence was offered with respect to the alleged dis-
criminatory refusal to reinstate Vogel and he did not testify at the
hearing.
Richard La Point was employed by Marcus Motors as a mechanic.
He joined Lodge 606 during February 1937 and went out on strike
on July 30. According to his testimony he applied for reinstatement
on September 27 or 28 and was told by Samuel M. Marcus, president
of the respondent, that "according to the amount of business and
the number in the shop it is pretty well filled up right now . . ."
Marcus Motors hired one mechanic on September 1 and another on
September 15, neither of whom was on its pay roll of July 30, 1937,
nor, in so far as the record shows, had ever been previously employed
by the respondent. Elliott, a striking employee, was reinstated to
his position of mechanic on October 1, and, as we have noted above,
Trostel was reinstated on October 7. On, October 19 the respondent
hired another new mechanic who had not been in its employ prior
to the strike. The employment records introduced in evidence do
not indicate that any additional mechanics were hired after October
19, 1937.
Marcus denied that La Point had seen him on September 27 or 28,
and testified as follows : "He [La Point] didn't come to see me until
after the other men were back at work . . . When he came to see
me I said, `Dick, you are the last man to make yourself available and
we don't have sufficient work to employ you at this time.' 11
Since we have concluded that the respondent Marcus Motors has
not refused to bargain collectively with the representative of a ma-
jority of its employees in an appropriate unit, we do not find that
the strike of July 30, 1937, was caused in whole or substantial part
by the unfair labor practices of Marcus Motors. Under these circum-
stances the record does not sustain the allegation that the respondent
Marcus Motors refused to reinstate Glen Vogel and Richard La
Point because of their activities in behalf of Lodge 606. We find
that the respondent Marcus Motors did not discriminate against
these employees in regard to hire or tenure of employment.
3. Larson-Nash
Ed Ball and Benny Anderson were both members of Lodge 606
and struck on about July 30. On October 28, 1937, Ball was rein-
stated to his former position as errand boy, and on November 5
Anderson was reinstated as a mechanic. At the hearing each stated
that he was making no claim against the respondent. The allega-
DECISIONS AND ORDERS 1213
tions of the complaint with respect to the refusals to reinstate Ball
and Anderson will therefore be dismissed.
Henry Dreier, Dick Richardson, I. H. Riley, J. T. Nunn, Emil
Idler, Kenneth Cut f orth, and Estelle Davis were at the time of the
strike employed by Larson-Nash as mechanics, while Pat Troy and
Charles Amador were employed as a body and fender repairman and
a painters' helper, respectively. Each of them was a member of
Lodge 606 and went out on strike on July 30, 1937. Dreier had been
elected shop chairman of Lodge 606 during July 1937.
On September 13 Dreier, Richardson, and Troy, acting as a com-
mittee for the striking employees, consulted with O. L. Larson, presi-
dent of Larson-Nash, with reference to obtaining reinstatement for
the strikers. Larson told them that business had dropped off and
that he could not use any of the men. He stated, however, "You
boys go up and see Bahne [the service manager]. If he has work,
he will put you to work."
On September 15, Kelleher, business agent of Lodge 606, told
Larson, "We are trying to get the boys back to work." Larson
answered that he was not in a position to recognize Lodge 606, but
if any men desired to return to work they might apply to the shop
foreman. Neither on September 13 nor on September 15 did any of
the men apply to the service manager or the shop foreman. We do
not find that an application for reinstatement was made on these
dates.
On September 17, however, Dreier returned to the Larson-Nash
shop and saw the service manager, Bahne. As related by Dreier in
his uncontroverted testimony :
I went in there . . . and said, "Mr. Bahne, I come to see about
the men going back to work," and he told me they had all the
men they could use at that time; they had practically a winter's
crew, and I asked him, "If you can't put them all back, how
many can you put back and who?" He told me he would like to
talk to each man individually and he would also like to have them
make out a new application and also a written guarantee that
there would be no tools throwed in the trash can or motor jobs
wrecked or paint jobs messed up'after the new men had finished
their jobs, and he also told me he didn't think it would be fair
to "can" the new men in order to put us old men back to work.
We find that on September 17, 1937, Dreier, by his conversation with
the service manager, made an application for reinstatement on behalf
of all the striking employees of Larson-Nash. In addition, individ-
ual application for reinstatement was made by Nunn and by Amador
on October 12, by Riley on October 13, and by Idler on November
8, 1937. Richardson, Cut forth, Davis, and Troy did not make indi-
1214 NATIONAL LABOR RELATIONS BOARD
vidual application for reinstatement. In view of the general appli-
cation made on September 17 and in view of Bahne's statement which
indicated that the new employees would not be displaced in order to
put the strikers back to work, a subsequent individual application
would have availed the employees nothing. It cannot be said that
because some of the employees did not make individual applications
to go to work they were not refused employment. That would "place •
a penalty on them for not doing what they knew would have proved
fruitless in the doing." 29
The list of its employees submitted by Larson-Nash shows that
among the mechanics, three new employees 30 were hired on September
10, and that one new employee was hired, respectively, on September
23, September 24, October 2, and October 14, making a total of seven
new mechanics who were not in its employment at the commencement
of the strike. Another new employee who was not employed by
Larson-Nash at the commencement of the strike was hired as a
painters' helper on October 11, 1937, and, similarly, a new employee,
was hired as a body and fender repairman on October 14.
It is apparent from the foregoing that the respondent Larson-Nash
hired four new mechanics, a painters' helper, and a new body and
fender repairman after the striking employees named above had ap-
plied for reinstatement on September 17. It is clear that the strikers
who were denied reinstatement were qualified to- fill these positions.
The respondent has introduced no evidence to show why it should
have preferred new employees to the strikers who were willing to
return to work. In addition, the record makes plain that the respond-
ent would have been able, by displacing the three new employees hired
before September 17, to have restored the remaining three striking
employees to their former positions at the time of, or shortly after,
their application for reinstatement on September 17, 1937.
Under Section 2 (3) of the Act, the nine strikers remained em-
ployees of the respondent Larson-Nash.. As heretofore stated, where,
as here, a strike has been caused in whole or substantial part by the
respondent's unfair labor practices, the striking employees are en-
titled to their former positions upon making application therefor.31
The failure of the respondent in this case to reinstate the nine strik-
ing employees to the positions to which they were entitled, by hiring
new employees in preference to striking employees who were willing
to return to work, and by not displacing persons hired after the com-
mencement of the strike and not in its employ at the commencement
29 Matter of Carlisle Lumber Company, footnote 26, supra; National Labor Relations
Board v. Carlisle Lumber Company, footnote 26, supra.
80 See footnote 23, supra.
81 See footnote 27, supra.
DECISIONS AND ORDERS 1215
of the strike, in effect and in result discriminated, and constituted a
discrimination, concerning hire and tenure of employment against
the nine striking employees. We find that by the foregoing refusal
to reinstate Henry Dreier, Dick Richardson, I. H. Riley, J. T. Nunn,
Emil Idler, Kenneth Cutforth, Estelle Davis, Pat Troy, and Charles
Amador on September 17, 1937, the respondent Larson-Nash has dis-
criminated with respect to their hire and tenure of employment,
thereby discouraging membership in Lodge 606 and interfering with,
restraining, and coercing its employees in the exercise of the rights
guaranteed in Section 7 of the Act.32
There was no evidence that any of these employees had obtained
regular and substantially equivalent employment by the time of the
hearing.
Fred Ford and Robert Fredericks, members of Lodge 606, were
on July 30, 1937, employed as a mechanic's helper and a car washer,
respectively.
During the meeting with Larson on September 13, Ford remained
outside the building. On October 12, Ford left an application for
employment with Brown, the shop foreman, who said he would call
him if he were needed. The list of Larson-Nash employees indicates
that the only other mechanic's helper on the pay roll did not go
out on strike, and that no one was hired to replace Ford. Further-
more, there is no showing that Ford had greater seniority than the
employee who was retained.
Fredericks did not testify at the hearing. The list of Larson-Nash
employees discloses that the only other car washer on the pay roll
did not go out on strike, and that no one was hired to replace
Fredericks.
We find that the respondent Larson-Nash did not discriminate in
regard to the hire or tenure of employment of Ford or Fredericks.
4. Cullen-Thompson
Arnold Light had been employed by Cullen-Thompson since March
1928. He was a member of Lodge 606 and went out on strike on
July 30, 1937. At that time he was employed as a mechanic on the
service floor.
On September 7 or 8 Light and four other strikers returned to the
Cullen-Thompson shop. Thompson told them he did not care to talk
to them "right there." Light returned on September 10, at which
time he saw Polak, the bookkeeper. Polak said that he would not be
employed very long if he did not join the Independent local. On the
same day Light saw the service manager, Holt, and was told that
81 See footnote 28, supra.
1216 NATIONAL LABOR RELATIONS BOARD
he would be called. As related by Light, about a week later ".. .
Mr. Holt called out at the house and told me to come down. In the
meantime (he) had taken all the other boys back. I went down there
and he said about the only place he had was in the back end, of the
line in the shop, I could not get my old job back. I told him I did
not know if I wanted that job or not, that I wanted my old job back."
About 3 weeks later Light told the shop foreman that for the time
being he would take any job as.`a mechanic on the front of the shop
line. He was never reinstated by Cullen-Thompson.
Light testified that as a serviceman he had received a weekly sal-
ary; that mechanics working in the shop are paid by the hour; that
the back end of the line in the shop is used for new employees; and
that the mechanics in the front line are the first to he given work
each morning, receive the best jobs, and earn the most money. How-
ever, there is no evidence that any new employee was given Light's
position or that there was any discrimination against him. The Cul-
len-Thompson pay roll indicates that although there were five me-
chanics employed on the service floor on July 30, only three were
working during September, October, and November, 1937, and that
all three were members of Lodge 606.
We find that the respondent Cullen-Thompson did not discriminate
against Light in regard to hire and tenure of his employment.
The allegations contained in, the complaints against Hall, Inc.
with respect to F. E. Vergen and Ray Sullivan; against Marcus
Motors; against Larson-Nash with respect to Ed Ball, Benny Ander-
son, Fred Ford, and Robert Fredericks; and against Cullen-Thomp-
son, that said respondents have engaged in unfair labor practices
within the meaning of Section 8 (3) of the Act will therefore be
dismissed.
IV. TIIE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondents, Mountain Motors,
Hall, Inc., Larson-Nash, Cullen-Thompson, and Howry-Berg, set
forth in Section III above, occurring in connection with the opera-
tions of said respondents 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 burden-
ing and obstructing commerce and the free flow of commerce.
V. THE REMEDY
The respondents, Mountain Motors, Hall, Inc., Larson-Nash, Cul-
len-Thompson, and Howry-Berg, having engaged in unfair labor
practices, we shall order them to cease and desist therefrom and to
DECISIONS AND ORDERS 1217
take certain affirmative action designed to restore as nearly as possi-
ble the situation that existed prior to the commission of the unfair
labor practices, and thereby to effectuate the policies of the Act.
We have found that the respondents, Hall, Inc., and Cullen-
Thompson, have unlawfully dominated and interfered with their
locals of the Independent. These organizations cannot, in view
of the circumstances, operate as true representatives of the employees.
We shall therefore order Hall, Inc. and Cullen-Thompson to with-
draw recognition from their locals of the Independent and to dis-
establish them as such representatives. Further, Hall, Inc. and
Cullen-Thompson must cease giving effect to the contracts with
their locals of the Independent, since the contracts are void, as made
with organizations not entitled to represent the employees of said
respondents.
We shall also order the respondents, Mountain Motors, Hall, .Inc.,
Larson-Nash, Cullen-Thompson, and Howry-Berg, upon request to
bargain collectively with Lodge 606, and where necessary to accom-
plish this, to secure the cooperation of its agents,33 the Association
and the negotiating committee named in the agreement of August
8)1937 .34
During the hearing, the Trial Examiner ruled that the financial
secretary of Lodge 606 need not answer questions concerning the
payment of dues by members of Lodge 606 after July 30, 1937. The
respondents indicated that they were seeking to prove that after
July 30 Lodge 606 lost its majorities. We have affirmed the ruling
of the Trial Examiner. Section 10 (c) of the Act authorizes the
Board, upon finding that a person "has engaged in or is engaging
in" an unfair labor practice, to order such person "to take such
affirmative action . . . as will effectuate the policies of this Act:"
This section is designed to enable the Board to restore, as nearly as
possible, the status quo, had the unfair labor practices not been com-
mitted. The unlawful refusals to bargain collectively' and, in the
cases of Hall, Inc., and Cullen-Thompson, the sponsorship of company-
dominated unions, necessarily disrupted the morale of the,men, making
serious inroads upon the membership of Lodge 606. The necessary
delays incident to the adjudication of a dispute have postponed the
Board's order until a time' considerably subsequent to the original
wrongful refusals to bargain. To give effect to the policies of the
Act, the Board must disregard the continuing effects, of the unfair
as See National Labor Relations Board V. Hopwood Retinning Company, Inc., and
Monarch Rettinning Company, Inc, 98 F . ( 2d) 97 (C C A 2d).
34 During the oral argument' before the Board , counsel for the respondents stated that
the committee named in the agreement of August 8, 1937, was still in existence and was
still able to bind the members of the Association by a contract with Lodge 606.
1218 NATIONAL LABOR RELATIONS BOARD
labor practices and, in restoring the status quo, base its order upon
the majorities obtaining on the dates of the refusals to bargain.36
Since Rameriz, Wysakawski, Dreier, Richardson, Riley, Nunn,
Idler, Cutforth, Davis, Troy, and Amador were discriminated against
in regard to their hire and tenure of employment, contrary to Section
8 (3) of the Act, we shall order their reinstatement to their former
or substantially equivalent positions, with back pay to be determined
as hereinafter set forth. Since with respect to Mountain Motors,
Hall, Inc., Larson-Nash, Cullen-Thompson, and Howry-Berg the
strikes were caused by the unfair labor practices of these respond-
ents, we shall order each of said respondents, upon application, to
offer reinstatement to their former or substantially equivalent posi-
tions to those of its employees who went out on strike and have not
since been fully reinstated.3° The foregoing offers of reinstatement
shall be without prejudice to seniority and other rights and privileges.
Such reinstatements shall be effected in the following manner with
respect to each respondent : All persons hired after July 30, 1937,
the date of the commencement of the strike, and who were not on the
pay roll as of that date, shall if necessary to provide employment for
those to be offered reinstatement, be dismissed. If, thereupon, by
reason of a reduction in the force of employees needed there is not
sufficient employment immediately available for the remaining em-
ployees, including those to be offered reinstatement, all available posi-
tions shall be distributed among such remaining employees in accord-
ance with the respondent's usual method of reducing its force, without
discrimination against any employee because of his union affiliation
or activities, following a system of seniority to such extent as has
heretofore been applied in the conduct of the respondent's business.
Those employees remaining after such distribution, for whom no em-
ployment is immediately available, shall be placed upon a preferential
list prepared in accordance with the principles set forth in the previous
sentence, and shall thereafter, in accordance with such list, be offered
employment in their former or in substantially equivalent positions,
as such employment becomes available and before other persons are
hired for such work.
See Matter of Bradford Dyeing Association (U. S. A ) (a Corporation ) and, Textile
Workers' Organizing Committee of the C 1 0 ., 4 N. L. R. B. 604; Matter of American
Manufacturing Company et at. and Textile Workers ' Organizing Committee, C. I 0.,
5 N. L. R. B. 443; Matter of Arthur L. Cotten, and A. J. Colman , co-partners , doing busi-
ness as Kiddie Kover Manufacturing Company and Amalgamated Clothing Workers of
America, 6 N. L. R B 355; Inland Steel Company and Steel Workers Organizing Com-
mittee and Amalgamated Association of ,Iron , Steel, and 'Tin Workers of North America,
Lodge Nos 64, 1010, and 1101, 9 N. L. R. B. 783.
se See Matter of Oregon , Worsted Company and United Textile Workers of America,
Local 2435, 3 N. L. R. B. 36, order enforced in National Labor Relations Board v. Oregon
Worsted Company , 96 F. (2d ) 193 (C. C. A. 9th) ; Matter of Bites-Coleman Lumber Com-
pany and Puget Sound District Council of Lumber and Sawmill Workers , 4 N. L. R. B. 679,
order enforced in National Labor Relations Board V. Bites -Coleman Lumber Company,
98 F. (2d ) 18 (C. C A. 9th).
DECISIONS AND ORDERS 1219
Inasmuch as Rameriz, Wysakawski, Dreier, Richardson, Riley,
Nunn, Idler, Cutforth, Davis, Troy, and Amador were discrimina-
torily deprived of employment upon or shortly after their applica-
tions for reinstatement, contrary to Section 8 (3) of the Act, we shall,
in addition to requiring the respective respondent to offer them rein-
statement, order such respondent to make them whole for loss of
wages by payment to each of an amount equal to that which each
would normally have received as wages during the period from the
date of his application for reinstatement to the date of the respond-
ent's offer of employment or placement upon the preferential list
as provided in the order herein.37 As to the remaining employees
who are to be offered reinstatement, our orders will provide that each
employee whose application for reinstatement is refused by the re-
spondent in violation of the order shall be entitled to payment of a
sum of money equal to that which he would normally have received
as wages during the period from 5 days after the date of the refusal
of the application to the date of the offer of employment or placement
upon the preferential list as set forth above.
In each case in which back pay is awarded, a deduction shall be
made for net earnings 38 during the period of such award.
Upon the basis of the foregoing findings of fact and upon the
entire record in the cases, the Board makes the following:
CONCLUSIONS OF LAW
1. Capitol Automotive Lodge No. 606, International Association of
Machinists, The Independent Automobile Employees' Union, Inc.,
and the locals which it chartered at Hall, Inc., Larson-Nash, Cullen-
Thompson, and Howry-Berg are labor organizations, within the
meaning of Section 2 (5) of the Act.
2. The respondents, Hall, Inc., and Cullen-Thompson, by dominat-
ing and interfering with the formation and administration of their
respective locals of The Independent Automobile Employees' Union,
Inc., and contributing support thereto, have engaged in and are en-
gaging in unfair labor practices, within the meaning'of Section 8 (2)
of the Act.
97 For the reasons set forth in Matter of McKaig-Hatch, Inc. and Matter of Western
Felt Works ( supra, footnote 28) we would order the same remedy in this case irrespective
of our specific finding of a violation of Section 8 (3) of the Act.
88 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 particular respondent, which would not have been incurred but for
the unlawful refusal of his application for reinstatement and the consequent necessity of
his seeking employment elsewhere. See Matter of Crossett Lumber Company and United
Brotherhood of Carpenters and Joiners of America , Lumber and Sawmill Workers Union,
Local 2590, 8 N. L. R. B 440. Monies received for work performed upon Federal , State,
county, municipal , or 'other work -relief projects are not considered as earnings, but, as
provided below in the Order , shall be deducted from the sum due the employee , and the
amount thereof shall be paid over to the appiopiiate fiscal agency of the Federal, State,
county, municipal , or other government or governments which supplied the funds for said
work-relief projects.
1220 NATIONAL LABOR RELATIONS BOARD
3. The auto mechanics; machinists; body, fender, radiator, frame,
and axle repairmen; auto electricians; welders; trimmers; Class A
and Class B painters; servicemen; testers; partsmen; car washers and
lubrication men or greasers; and helpers and apprentices, excluding
those having the authority to employ and discharge and those whose
duties are of a clerical nature, employed, respectively, by Mountain
Motors, Hall, Inc., Larson-Nash, Cullen-Thompson, and Howry-
Berg, constitute, in the case of each of said respondents, a unit appro-
priate for the purposes of collective bargaining, within the meaning
of Section 9 (b) of the Act.
4. Capitol Automotive Lodge No. 606, International Association of
Machinists, was at all times between May 5 and July 30, 1937, and
at all times thereafter has been, the exclusive representative of all
the employees of Mountain Motors, Hall, Inc., Larson-Nash, Cullen-
Thompson, and Howry-Berg, respectively, in such units for the pur-
poses of collective bargaining, within the meaning of Section 9 (a)
of the Act.
5. The respondents, Mountain Motors, Hall, Inc., Larson-Nash,
Cullen-Thompson, and Howry-Berg, by refusing to bargain collec-
tively with Capitol Automotive Lodge No. 606, International Asso-
ciation of Machinists, on July 29, 1937, and at all times thereafter, as
the exclusive representative of their employees in the appropriate
units, have engaged in and are engaging in unfair labor practices,
within the meaning of Section 8 (5) of the Act.
6. By discriminating in regard to the hire and tenure of employ-
ment of F. Rameriz and Stanley Wysakawski, thereby discouraging
membership in Lodge 606, the respondent Hall, Inc., has engaged in
and is engaging in unfair labor practices, within the meaning of
Section 8 (3) of the Act.
7. By discriminating in regard to the-hire and tenure of employ-
ment of Henry Dreier, Dick Richardson, I. H. Riley, J. T. Nunn,
Emil Idler, Kenneth Cutforth, Estelle Davis, Pat Troy, and Charles
Amador, thereby discouraging membership in Lodge 606, the respond-
ent Larson-Nash has engaged in and is engaging in unfair labor
practices, within the meaning of Section 8 (3) of the Act.
8. The respondents, Mountain Motors, Hall, Inc., Larson-Nash,
Cullen-Thompson, and Howry-Berg, by interfering with, restrain-
ing, and coercing their employees in the exercise of the rights guar-
anteed in Section 7 of the Act, have engaged in and are engaging in
unfair labor practices, within the meaning of Section 8 (1) of the
Act.
9. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7) of
the Act.
DECISIONS AND ORDERS 1221
10. The operations of the respondent Marcus Motors occur in com-
merce, within the meaning of Section 2 (6) of the Act.
11. The respondents, Larson-Nash and Howry-Berg, have not en-
gaged in unfair labor practices within the meaning of Section 8 (2)
of the Act; the respondent Hall, Inc., with respect to F. E. Vergen
and Ray Sullivan, the respondent Larson-Nash with respect to Ed
Ball, Benny Anderson, Fred Ford, and Robert Fredericks, and the
respondent Cullen-Thompson have not engaged in unfair labor prac-
tices, within the meaning of Section 8 (3) of the Act; the respondent
Marcus Motors has not engaged in unfair labor practices, within the
meaning of Section 8 (1), (3), and (5) of the Act; and the respond-
ents, the Association, E. J. Johnson, Inc., Hoskins-Beatty Motor Co.,
The McCarty-Sherman Motor Company, Metropolitan Pontiac, In-
corporated, Colorado Reo, Inc., James Motor Company, and Stovall-
Hilliker Motor Company have not engaged in unfair labor practices,
within the meaning of Section 8 (1), (2), and (5) of the Act.
ORDERS
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 respond-
ent The Mountain Motors Company, and its officers, agents, successors,
and assigns, shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with Capitol Automotive
Lodge No. 606, International Association of Machinists, as the ex-
clusive representative of all its auto mechanics; machinists; body,
fender, radiator, frame, and axle repairmen; auto electricians; weld-
ers; trimmers; Class A and Class B painters; servicemen; testers;
partsmen ; car washers and lubrication men or greasers; and helpers
and apprentices, excluding those having the authority to employ and
discharge and those whose duties are of a clerical nature, in respect
to rates of pay, wages, hours of employment, and other conditions of
employment;
(b) 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 and 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 application, offer to those employees who went out on
strike on July 30, 1937, and thereafter, immediate and full rein-
147841-39-vol 10-78
1222 NATIONAL LABOR RELATIONS BOARD
statement to their former or substantially equivalent positions, with-
out prejudice to their seniority and other rights : and privileges, in
the manner set forth in the section entitled. "The remedy" above,
placing those employees for whom employment is not immediately
available upon a preferential list in the manner set forth in said
section, and thereafter, in said manner, offer them employment as it
becomes available;
- (b) Make whole the employees referred to in paragraph 2 (a)
above for any loss of pay they may suffer by reason of any refusal
of reinstatement or placement upon the preferential list required by
paragraph 2 (a) above, by payment to each of them of a sum of
money equal to that which each would normally have earned as wages
during the period from five (5) days after the date of application
to the date of the offer of reinstatement or placement upon the pref-
erential list, less his net earnings during said period; deducting,
however, from the amount otherwise due to each of the said em-
ployees, monies received by said employee during said period for
work performed upon Federal, State, county, municipal, or other
work-relief projects, and pay over the amount so deducted, to the
appropriate fiscal agency of the Federal, State, county, municipal, or
other government or governments which supplied the funds for
said work-relief projects;
(c) Upon request bargain collectively with Capitol Automotive
Lodge No. 606, International Association of Machinists, as the ex-
clusive representative of all its auto mechanics; machinists; body,
fender, radiator, frame, and axle repairmen; auto electricians; weld-
ers; trimmers; Class A and Class B painters; servicemen; testers;
partsmen; car washers and lubrication men or greasers; and helpers
and apprentices, excluding those having the authority to employ and
discharge and those whose duties are of a clerical nature, in respect
to rates of pay, wages, hours of employment, and other conditions
of employment; and where necessary to accomplish this, secure the
cooperation of its agents, Denver Automobile Dealers Association
and the negotiating committee named in the agreement signed by
the respondent on- or about August 8, 1937;
(d) Immediately post notices in conspicuous places where they
will be observed by the respondent's employees, and maintain such
notices for a period of at least sixty (60) consecutive days, stating:
(1) that the respondent will cease and desist in the manner afore-
said; and (2) that the respondent will bargain collectively with
Capitol Automotive Lodge No. 606, International Association of
Machinists, as the representative of the employees in the appropriate
unit ; ,
DECISIONS AND ORDERS 1223
(e) Notify the Regional Director for the Twenty-second Region
in writing within ten (10) days from the date of this Order what
steps the respondent has taken to comply herewith.
Upon the basis of the above findings of fact and conclusions of
law, and pursuant to Section 10 (c) of the National Labor Rela-
tions Act, the National Labor Relations Board hereby orders that
the respondent R. R. Hall, Inc., and its officers, agents, successors, and
assigns, shall :
1. Cease and desist from :
(a) Dominating or interfering with the administration of The In-
dependent Association of Employees of R. R. Hall, Inc., being Local
No. 14 of The Independent Automobile Employees' Union, Inc., or
with the formation or administration of any other labor organiza-
tion of its employees, and from contributing support to The Inde-
pendent Association of Employees of R. R. Hall, Inc., being Local
No. 14 of The Independent Automobile Employees' Union, Inc., or
any other labor organization of its employees;
(b) Discouraging membership in Capitol Automotive Lodge No.
606, International Association of Machinists, or any other labor or-
ganization of its employees, by discharging or refusing to reinstate
any of its employees, or in any other manner discriminating in re-
gard to their hire or tenure of employment or any term or condition
of their employment because of membership in or activity in behalf
of Capitol Automotive Lodge No. 606, International Association of
Machinists, or any other labor organization;
(c) Refusing to bargain collectively with Capitol Automotive
Lodge No. 606, International Association of Machinists, as the exclu-
sive representative of all its auto mechanics; machinists; body, fender,
radiator, frame, and axle repairmen; auto electricians; welders;
trimmers; Class A and Class B painters; servicemen; testers, parts-
men ; car washers and lubrication men or greasers ; and helpers and
apprentices, excluding those having the authority to employ and dis-
charge and those whose duties are of a clerical nature, in respect to
rates of pay, wages, hours of employment, and other conditions of
employment ;
(d) Giving effect to its September 10, 1937, and November 1, 1937,
contracts with The Independent Association of Employees of R. R.
Hall, Inc., being Local No. 14 of The Independent Automobile Em-
ployees' Union, Inc. ;
"(e) In any other manner interfering with, restraining, or coer-
cing its employees in the exercise of the right to self-organization, to
form, join, or assist labor organizations, to bargain collectively
1224 NATIONAL LABOR RELATIONS BOARD
through representatives of their own choosing, and to engage in con-
certed activities for the purpose of collective bargaining or other
mutual aid and 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) Offer to F. Rameriz and Stanley Wysakawski immediate and
full reinstatement to their former positions, without prejudice to
their seniority and other rights and privileges, in the manner set
forth in the section entitled "The remedy" above, placing those em-
ployees for whom employment is not immediately available upon a
preferential list in the manner set forth in said section, and there-
after, in said manner, offer them employment as it becomes avail-
able; and make them whole for any loss of pay they may have suf-
fered by reason of the respondent's refusal to reinstate them on Sep-
tember 15, 1937, and thereafter, by payment to each of them respec-
tively of a sum of money equal to that which each would normally
have earned as wages during the period from September 15, 1937, to
the date of the offer of employment or placement upon the prefer-
ential list, less his net earnings, if any, during said period, had the
respondent reinstated him on September 15, 1937; deducting, how-
ever, from the amount otherwise due to each of the said employees,
monies received by said employee during said period for work per-
formed upon Federal, State, county, municipal, or other work-relief
projects, and pay over the amount, so deducted, to the appropriate
fiscal agency of the Federal, State, county, municipal, or other govern-
ment or governments which supplied the funds for said work-relief
projects;
(b) Upon application, offer to those employees who went out on
strike on July 30, 1937, and thereafter, including F. E. Vergen and
Ray Sullivan, immediate and full reinstatement to their former or
substantially equivalent positions, without prejudice to their senior-
ity and other rights and privileges, in the manner set forth in the sec-
tion entitled "The remedy" above, placing those employees for whom
employment is not immediately available upon a preferential list in
the manner set forth in said section, and thereafter, in said manner,
offer them employment as it becomes available ; and make whole said
employees for any loss of pay they may suffer by reason of any re-
fusal of reinstatement or placement upon the preferential list, by
payment to each of them of a sum of money equal to that which each
would normally have earned as wages during the period from five
(5) days after'the date of application to the date of the offer of rein-
statement or placement upon the preferential list, less his net earnings
during said period; deducting, however, from the amount otherwise
due to each of the said employees, monies received by said employee
during said period for work performed upon Federal, State, county,
DECISIONS AND ORDERS 1225
municipal, or other work-relief projects, and pay over the amount, so
deducted, to the appropriate fiscal agency of the Federal, State,
county, municipal, or other government or governments which sup-
plied the funds for said work-relief projects;
(c) Withdraw all recognition from The Independent Association
of Employees of R. R. Hall, Inc., being Local No. 14 of The Inde-
pendent Automobile Employees' Union, Inc., 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, and other conditions of employment, and completely
disestablish said organization as such representative;
(d) Upon request, bargain collectively with Capitol Automotive
Lodge No. 606, International Association of Machinists, as the-ex-
clusive representative of all its auto mechanics; machinists; body,
fender, radiator, frame, and axle repairmen; auto electricians; weld-
ers; trimmers; Class A and Class B painters; servicemen; testers;
partsmen; car washers and lubrication men or greasers; and helpers
and apprentices, excluding those having the authority to employ and
discharge and those whose duties are of a clerical nature, in respect
of rates of pay, wages, hours of employment, and other conditions of
employment, and where necessary to accomplish this, secure the co-
operation of its agents, Denver Automobile Dealers Association and
the negotiating committee named in the agreement signed by the
respondent on or about August 8, 1937;
(e) Immediately post notices in conspicuous places where they will
be observed by the respondent's employees, and maintain such notices
for a period of at least sixty (60) consecutive days, stating: (1) that
the respondent will cease and desist in the manner aforesaid; (2)
that employees are free to remain or become members of Capitol
Automotive Lodge No. 606, International Association of Machinists,
and that the respondent will not discriminate against any employee
because of such membership; (3) that the respondent withdraws and
will refrain from all recognition of The Independent Association of
Employees of R. R. Hall, Inc., being Local No. 14 of The Independ-
ent Automobile Employees' Union, Inc., as a representative of its em-
ployees and completely disestablishes it as such representative; (4)
that the contracts executed with The Independent Association of Em-
ployees of R. R. Hall, Inc., being Local No. 14 of The Independent
Automobile Employees' Union, Inc., are void and of no effect; and
(5) that the respondent will bargain collectively with Capitol Auto-
motive Lodge No. 606, International Association of Machinists, as
the representative of the employees in the appropriate unit;
(f) Notify the Regional Director for the Twenty-second Region in
writing within ten (10) days from the date of this Order what steps
the respondent has taken to comply herewith.
1226 NATIONAL LABOR RELATIONS BOARD
AND IT IS FURTHER ORDERED that the complaint be, and it hereby is,
dismissed in so far as it alleges with regard to F. E. Vergen and
Ray Sullivan that the respondent has engaged in unfair labor prac-
tices within the meaning of Section 8 (3) of the Act.
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 Larson-Nash Motors Co., and its officers, agents, suc-
cessors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in Capitol Automotive Lodge No.
606, International Association of Machinists, or any other labor or-
ganization of its employees, by discharging or refusing to reinstate
any of its employees, or in any other manner discriminating in regard
to their hire or tenure of employment or any term or condition of their
employment because of membership or activity in behalf of Capitol
Automotive Lodge No. 606, International Association of Machinists,
or any other labor organization;
(b) Refusing to bargain collectively with Capitol Automotive
Lodge No. 606, International Association of Machinists, as the exclu-
sive representative of all its auto mechanics ; machinists ; body, fender,
radiator, frame, and axle repairmen; auto electricians; welders; trim-
mers; Class A and Class B painters; servicemen; testers, partsmen;
car washers and lubrication men or greasers; and helpers and appren-
tices, excluding those having the authority to employ and dis-
charge and those whose duties are of a clerical nature, in respect to
rates of pay, wages, hours of employment, and other conditions of
employment;
(c) 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 rep-
resentatives of their own choosing, and to engage in concerted activities
for the purpose of collective bargaining or other mutual aid and pro-
tection, 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) Offer to Henry Dreier, Dick Richardson, I. H. Riley, J. T.
Nunn , Emil Idler, Kenneth Cutforth, Estelle Davis, Pat Troy, and
Charles Amador immediate and full reinstatement to their former
positions, without prejudice to their seniority and other rights and
privileges, in the manner set forth in the section entitled "The remedy"
above, placing those employees for whom employment is not imme-
diately available upon a preferential list in the manner set forth in
DECISIONS AND ORDERS 1227
said section, and thereafter, in said manner, offer them- employment
as it becomes available; and make them whole for any loss of pay
they may have suffered by reason of the respondent's refusal to
reinstate them on, September 17, 1937, and thereafter, by payment
to each of them respectively of a sum of money equal to that which
each would normally have earned as wages during the period from
September 17, 1937, to the date of the offer of employment or place-
ment upon the preferential list, less his net earnings , if any, during
said period, had the respondent reinstated him on September 17, 1937;
deducting, however, from the amount otherwise due to each of the
said employees, monies received by said employee during said period
for work performed upon Federal, State, county, municipal, or other
work-relief projects, and pay over the amount so deducted, to the
appropriate fiscal agency of the Federal, State, county, municipal, or
other government or governments which supplied the funds for said
work-relief projects;
(b) Upon application, offer to those employees who went out on
strike on July 30, 1937, and thereafter, including Fred Ford and
Robert Fredericks, immediate and full reinstatement to their former
or substantially equivalent positions, without prejudice to their senior-
ity and other rights and privileges, in the manner set forth in the
section entitled "The remedy" above, placing those employees for
whom employment is not immediately available upon a preferential,
list in the manner set forth in said section, and thereafter, in said
manner, offer them employment as it becomes available; and make
whole said employees for any loss of pay they may suffer by reason
of any refusal of reinstatement or placement upon the preferential
list, by payment to each of them of a sum of money equal to that
which each would normally have earned as wages during the period
from five (5) days after the date of application to the date of the
offer of reinstatement or placement upon the preferential list, less
his net earnings during said period; deducting, however, from the
amount otherwise due to each of the said employees, monies received
by said employee during said period for work performed upon Fed-
eral, State, county, municipal, or other work-relief projects, and pay
over the amount, so deducted, to the appropriate fiscal agency of the
Federal, State, county, municipal, or other government or govern-
ments which supplied the funds for said work-relief projects;
(c) Upon request, bargain collectively with Capitol Automotive
Lodge ,No. 606, International Association of Machinists, as the ex-
clusive representative of all its auto mechanics; machinists; 'body,
fender, radiator, frame and axle repairmen; auto electricians; weld-
ers; trimmers; Class A and Class B painters; servicemen; testers;
partsmen; car washers and lubrication men or greasers ; and helpers
1228 NATIONAL LABOR RELATIONS BOARD
and apprentices, excluding those having the authority to employ and
discharge and those whose duties are of a clerical nature, in respect
to rates of pay, wages, hours of employment, and other conditions of
employment, and where necessary to accomplish this, secure the co-
operation of its agents, Denver Automobile Dealers Association and
the negotiating committee named in the agreement signed by the re-
spondent on or about August 8, 1937;
(d) Immediately post notices in conspicuous places where they will
be observed by the respondent's employees, and maintain such notices
for a period of at least sixty (60) consecutive days, stating : (1) that
the respondent will cease and desist in the manner aforesaid; (2) that
employees are free to remain or become members of Capitol Automo-
tive Lodge No. 606, International Association of Machinists, and that
the respondent will not discriminate against any employee because of
such membership; and (3) that the respondent will bargain collec-
tively with Capitol Automotive Lodge No. -606, International Associa-
tion of Machinists, as the representative of the employees in the ap-
propriate unit;
(e) Notify the Regional Director for the Twenty-second Region in
writing within ten (10) days from the date of this Order what steps
the respondent has taken to comply herewith.
AND IT IS FURTHER ORDERED that the complaints be, and they hereby
are, dismissed in so far as they allege that the respondent has en-
gaged in unfair labor practices within the meaning of Section 8 (2)
of the Act.
AND IT IS FURTHER ORDERED that the complaint be, and it hereby is,
dismissed in so far as it alleges with regard to Ed Ball, Benny
Anderson, Fred Ford, and Robert Fredericks that the respondent has,
engaged in unfair labor practices within the meaning of Section 8 (3)
of the Act.
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 respond-
ent Neil R. Cullen, F. C. Cullen, and Ward J. Thompson, individuals
doing business under the firm-name and style of Cullen-Thompson
Motor Company, and its partners, officers, agents, successors, and
assigns, shall:
1. Cease and desist from :
(a) Dominating or interfering with the administration of The
Independent Association of Employees of Cullen-Thompson Motor
Company, being Local No. 8 of The Independent Automobile Em-
ployees' Union, Inc., or with the formation or administration of any
other, labor organization of its employees, and from contributing
DECISIONS AND ORDERS 1229
support to The Independent Association of Employees of Cullen-
Thompson Motor Company, being Local No. 8 of The Independent
Automobile Employees' Union, Inc., or any other labor organization;
(b) Refusing to bargain collectively with Capitol Automotive
Lodge No. 606, International Association of Machinists, as the exclu-
sive representative of all its auto mechanics; machinists; body, fender,
radiator, frame, and axle repairmen; auto electricians; welders;
trimmers; Class A and Class B painters; servicemen; testers; parts-
men ; car washers and lubrication men or greasers ; and helpers and
apprentices, excluding those having the authority to employ and
discharge and those whose duties are of a clerical nature, in respect
to rates of pay, wages, hours of employment, and other conditions of
employment ;
(c) Giving effect to its September 2, 1937, contract with The Inde-
pendent Association of Employees of Cullen-Thompson Motor Com-
pany, being Local No. 8 of The Independent Automobile Employees'
Union, Inc. ; '
(d) 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 rep-
resentatives of their own choosing, and to engage in concerted activi-
ties for the purpose of collective bargaining or other mutual aid and
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 application, offer to those employees who went out on
strike on July 30, 1937, and thereafter, including Arnold Light, im-
mediate and full reinstatement to their former or substantially equiv-
alent positions, without prejudice to their seniority and other rights
and privileges, in the manner set forth in the section entitled "The
remedy" above, placing those employees for whom employment is not
immediately available upon a preferential list in the manner set
forth in said section, and thereafter, in said manner, offer them em-
ployment as it becomes available;
(b) Make whole the employees referred to in paragraph 2 (a)
above for any loss of pay they may suffer by reason of any refusal
of reinstatement or placement upon the preferential list required by
paragraph 2 (a) above, by payment to each of them of a sum of
money equal to that which each would normally have earned as wages
during the period from five (5) days after the date of application to
the date of the offer of reinstatement or placement upon the prefer-
ential list, less his net earnings during said period; deducting, how-
ever, from the amount otherwise due to each of the said employees,
monies received by said employee during said period for.work per-
1230 NATIONAL LABOR RELATIONS BOARD
formed upon Federal, State, county, municipal, or other work-relief
projects, and pay over the amount, so deducted, to the appropriate
fiscal agency of the Federal, State, county, municipal, or other gov-
ernment or governments which supplied the funds for said work-
relief projects;
(c) Withdraw all recognition from The Independent Association
of Employees of Cullen-Thompson Motor Company, being Local No.
8 of The Independent Automobile Employees' Union, Inc., 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, and other conditions of employ-
ment, and completely disestablish said organization as such repre-
sentative ;
(d) Upon request, bargain collectively with Capitol Automotive
Lodge No. 606, International Association of Machinists, as the exclu-
sive representative of all its auto mechanics; machinists; body, fender,
radiator, frame, and axle repairmen; auto electricians; welders;
trimmers; Class A and Class B painters; servicemen; testers; parts-
men; car washers and lubrication men or greasers; and helpers and
apprentices, excluding those having the authority to employ and
discharge and those whose duties are 'of a clerical nature, in respect
to rates of pay, wages, hours of employment, and other conditions of
employment, and where necessary to accomplish this, secure the co-
operation of its agents, Denver Automobile Dealers Association and
the negotiating committee named in the agreement signed by the
respondent on or about August 8, 1937;
.(e) Immediately post notices in conspicuous places where they will
be observed by the respondent's employees, and maintain such notices
for a period of at least sixty (60) consecutive days, Stating: (1) that
the respondent will cease and desist in the manner aforesaid; (2)
that the respondent withdraws and will refrain from all recogni-
tion of The Independent Association of Employees of Cullen-Thomp-
son Motor Company, being Local No. 8 of The Independent Auto-
bile Employees' Union, Inc., as a representative of its employees and
completely disestablishes it as such representative; (3) that the con-
tracts executed with The Independent Association of Employees of
Cullen-Thompson Motor Company, Inc., being Local No. 8 of The
Independent Automobile Employees' Union, ,Inc., are void and of no
effect; and (4) that the respondent will bargain collectively with
Capitol Automotive Lodge No. 606, International Association of
Machinists, as the representative of the employees in the appropriate
unit;
(f) Notify the Regional Director for the Twenty-second Region in
writing within ten (10) ' days from the date of this Order what steps
the respondent has taken to comply herewith.
DECISIONS AND ORDERS 1231
- AND IT IS FURTHER ORDERED that the complaint be, and it hereby
is, dismissed in so far as it alleges that the respondent has engaged
in an unfair labor practice within the meaning of Section 8 (3)
of the Act.
- 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 're-
spondent, Howry-Berg, Inc., and its officers, agents, successors, and
assigns, shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with Capitol Automotive
Lodge No. 606, International Association of Machinists, as the ex-
clusive representative of all its auto mechanics; machinists; body,
fender, radiator, frame, and axle repairmen; auto electricians; weld-
ers ; trimmers ; Class A and Class B painters ; servicemen ; testers ;
partsmen; car washers and lubrication men or greasers; and helpers
and apprentices, excluding those having the authority to employ and
discharge and those whose duties are of a clerical nature, in respect
to rates of pay, wages, hours of employment, and other conditions
of employment ;
(b) 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 ac-
tivities for the purpose of collective bargaining or other mutual aid
and 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 application, offer to those employees who went out on
strike on July 30, 1937, and thereafter, immediate and full reinstate-
ment to their former or substantially equivalent positions, without
prejudice to their seniority and other rights and privileges, in the
manner set forth in the section entitled "The remedy" above, placing
those employees for whom employment is not immediately available
upon a preferential list in the manner set forth in said section, and
thereafter, in said manner, offer them employment as it becomes
available ;
(b) Make whole the employees referred to in paragraph 2 (a)
above for any loss of pay they may suffer by reason of any refusal of
reinstatement or placement upon the preferential list required by
paragraph 2 (a) above, by payment to each of them of a 'sum of
money equal to that which each would normally have earned as wages
during the period from five (5) days after the date of application to
the date of the offer of reinstatement or placement upon the prefer-
1232 NATIONAL LABOR RELATIONS BOARD
ential list, less his net earnings during said period; deducting, how-
ever, from the amount otherwise due to each of the said employees,
monies received by said employee during said period for work per-
formed upon Federal, State, county, municipal, or other work-relief
projects, and pay over the amount, so deducted, to the appropriate
fiscal agency of the Federal, State, county, municipal, or other gov-
ernment or governments which supplied the funds for said work-
relief projects;
(c) Upon request, bargain collectively with Capitol Automotive
Lodge No. 606, International Association of Machinists, as the ex-
clusive representative of all its auto mechanics; machinists; body,
fender, radiator, frame, and axle repairmen; auto electricians; weld-
ers; trimmers; Class A and Class B painters; servicemen; testers;
partsmen; car washers and lubrication men or greasers; and helpers
and apprentices, excluding those having the authority to employ and
discharge and those whose duties are of a clerical nature, in respect
to rates of pay, wages, hours of employment, and other conditions of
employment, and where necessary to accomplish this, secure the coop-
eration of its agents, Denver Automobile Dealers Association and the
negotiating committee named in the agreement signed by the respond-
ent on or about August 8, 1937;
(d) Immediately post notices in conspicuous places where they will
be observed by the respondent's employees, and maintain such notices
for a period of at least sixty (60) consecutive days, stating : (1) that
the respondent will cease and desist in the manner aforesaid ; and
(2) that the respondent will bargain collectively with Capitol Auto-
motive Lodge No. 606, International Association of Machinists, as
the representative of the employees in the appropriate unit ;
(e) Notify the Regional Director for the Twenty-second Region
in writing within ten (10) days from the date of this Order what steps
the respondent has taken to comply herewith.
AND IT IS FURTHER ORDERED that the complaints be, and they hereby
are, dismissed in so far as they allege that the respondent has en-
gaged in an unfair labor practice within the meaning of Section 8 (2)
of the Act.
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 com-
plaints against Denver Automobile Dealers Association, Marcus
Motors, Inc., E. J. Johnson, Inc., Hoskins-Beatty Motor Company,
The McCarty-Sherman Motor Company, Metropolitan Pontiac, In-
corporated, Colorado Reo, Inc., James Motor Company, and Stovall-
Hilliker Motor Company be, and they hereby are, dismissed.