Ken Rose Motors, Inc.

National Labor Relations Board - Board Decisions

May 28, 1951

94 N.L.R.B. 868 (N.L.R.B. 1951)

868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
therefrom, and that it take certain affirmative action designed to effectuate the
policies of the Act. Having also found that the 'Union represented and now
represents a majority of the employees in the appropriate unit, and that Re-
spondent has refused to bargain collectively with it, I recommend that Respond-
ent, upon request, bargain collectively with the Union
Upon the basis of the above findings of fact and upon the entire record in the
case, I make the following:
CONCLUSIONS OF Lxw
1. International Brotherhood of Electrical Workers, Local 790, is a labor
organization within the meaning of Section 2 (5) of the Act
2. All employees in the electrical operations in the Jacksonville Division of
Respondent employed at its Jacksonville plant, exclusive of all employees of the
Central Division, ice plant employees, professional employees, clerical employees,
guards, watchmen, shift operators, and supervisory employees, constitute a unit
appropriate for the purposes of collective baigainmg within the meaning of
Section 9, subdivision (b), of the Act.
3. International Brotherhood of Electrical Workers, Local 790, was on July 17,
1950, and at all times thereafter, has been and is. the exclusive representative of
all employees in the aforesaid appropriate unit for the purposes of collective
bargaining within the meaning of Section 9 (a) of the Act
4. By refusing on September 19, 1950, and•at all times thereafter, to bargain
collectively with International Brotherhood of Electrical Workers, Local 790, as
the exclusive representative of its employees in the aforesaid appropriate unit,
Respondent has engaged and is engaging in unfair labor practices within the
meaning of Section 8 (a) (5) of the Act
5 By the aforesaid refusal to bargain, Respondent has interfered with, re-
strained, and coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act, and has thereby engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (a) (1) of the Act
6. The aforesaid unfair labor practices inc unfair labor practices affecting
commerce within the meaning of Section 2 ((i) and (7) of the Act.
[Recommended Order omitted from publication in this volume.]
Kai ROSE MOTORS, INC. and LOCAL 841, INTERNATIONAL BROTIIERIIOOD
OF TEADISTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF
AMERICA, AFL, AND LODGE 1898 or DISTRICT 38, INTERNATIONAL
ASSOCIATION OF MACFIINiSTS, AFL. Case No. 1-CA-765. May
28, 1.951
Decision and Order
On March 5 , 1951, Trial Examiner Hamilton Gardner issued his
Intermediate Report in the above-entitled proceeding , finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices , and recommending that it cease and desist therefrom
and take certain affirmative action , as set forth in the copy of the
Intermediate Report attached hereto. Thereafter , the Respondent
filed exceptions to the Intermediate Report and a supporting brief,
h4 NLRB No. 141.
KEN ROSE. MOTORS, INC. 869
and the General Counsel filed a brief in support of the Intermediate
Report.
The Board I has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed.
The Board has considered the Intermediate Report, the exceptions
and briefs, and the entire record in the case,2 and hereby adopts the
findings, conclusions, and recommendations of the Trial Examiner,
with the following additions and modifications:
We agree with the Trial Examiner's conclusion that the Respond-
ent refused to bargain with the Unions, and thereby violated Section
8 (a) (5) and (1) of the Act.
On June 1, 1950, the Unions informed the Respondent by letter
that they represented a majority of the Respondent's employees in
all appropriate unit; at the same time they also requested a bargain-
ing conference. As the Trial Examiner found, when the Unions
made their bargaining request on June 1, they jointly represented
eight of the nine employees in the unit involved, and were therefore
the duly designated bargaining representative of such employees.
Upon receipt of the Unions' letter, the Respondent immediately
embarked upon the course of unlawful antiunion conduct which is
detailed in the Intermediate Report. Such conduct began on June 2
when the Respondent's president threatened the employees with
reprisals in the event that the Unions were brought into the Respond-
ent's shop, and it continued throughout July and most of August.'
On June 7, the Respondent replied to the Unions' June 1 letter,
but merely referred the Unions to the Respondent's attorney "for
further information." However, before the reply was received, the
Unions on June 8 filed a representation petition in C ise No. 1-RC-
1 Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its
powers in connection with this case to a three -member panel [ Members Houston, Reynolds,
and Styles].
The Board has also officially noticed the record in Ken Rose Motors , Inc, Case
No 1-RC-1614 (unpublished Decision and Direction of Election dated July 28, 1950),
the representation proceeding before the Board cited in the Intermediate Report, 'which
involves the Respondent ' s employees Pursuant to Section 7 (d) of the Administrative
Procedure Act, the parties will be given the opportunity to show, upon filing a timely
motion for reconsideration , the contrary of any fact of which the Board takes official
notice herein. See J S Abercrombie Company. 83 NLRB 524, enforced, 180 P. 2d
,578 (C A. 5).
3 As set forth fully in the Intermediate Report , the Respondent ' s antiunion activities
consisted of the June 2 speech by its president and a series of statements , remarks, and
interrogations by its service manager . In the course of such antiunion activities, the
Respondent , we find, ( 1) interrogated its employees concerning their union affiliations;
(2) warned its employees not to assist , remain , or become members of the Unions ; (3)
promised economic benefits to its employees for so refraining ; and (4 ) threatened its
employees with reprisals for assisting the Unions . Like the Trial Examiner, we find
that by such conduct the Respondent violated Section 8 (a) (1) of the Act. In so con-
cluding, we do not rely, however, upon the remark attributed to the Rcpsondent's president,
and cited in the Intermediate Report, to the effect that he was unable to understand why
the Unions were trying to organize a small dealer like himself.
870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1614, on the basis of which the Board directed an election among
the employees in the appropriate unit'
The election directed by the Board was scheduled for August 24,
1950. Before that date, however, the Unions, learning of the Re-
spondent's course of unlawful, antiunion conduct referred to above,
requested, and were granted, permission to withdraw their petition,
and the scheduled election was not held.
In its answer to the complaint herein, the Respondent admits
that it refused to bargain with the Unions. It contends, however,
that its refusal to bargain was not unlawful because it is not engaged
in commerce within the meaning of the Act,5 and because the Unions
do not represent a majority of the employees in the appropriate unit .6,
The issue of whether the Respondent's operations affect commerce
within the meaning of the Act was decided by the Board adversely
to the Respondent in the representation proceeding and we see no
reason for reaching a contrary conclusion in this proceeding. More-
over, since the decision in the representation proceeding the Board
has specifically considered this type of problem and concluded that
the operations such as those engaged in by the Respondent affect
commerce within the meaning of the Act and that it would effectuate
the policies of the Act to assert jurisdiction over them.'
Nor do we believe that the Respondent's refusal to bargain with the
Unions was the result of a bona fide doubt as to the Unions' majority
status. No such doubt was expressed in the Respondent's reply on
dune 7 to the Unions' request for a bargaining conference, which
merely referred the Unions to the Respondent's attorney; nor did
the Respondent at any other time express any such doubt to the
Unions. The question of the Unions' majority status was, in fact,
raised for the first time in the Respondent's answer to the complaint
herein. In view of this fact and, particularly, in view of the Respond-
ent's extensive antiunion campaign, the inception of which coincided
with the Unions' request for a bargaining conference, we are convinced
and find that the Respondent did not in fact entertain any doubt as
to the Unions' majority status, but that its failure to accede to the
request for a bargaining conference was motivated solely by a rejection
'The findings in the paragraph of the text preceding this footnote reference are based
on the record in Case No. 1-RC-1614, of which we hereby take official notice. See
footnote 2, above.
5 We take official notice that at the hearing in Case No. 1-RC-1614 , the Respondent's
principal contention was that it was not engaged in commerce within the meaning of the
Act. The contention was expressly rejected by the Board in Its Decision and Direction
of Election.
6 The Respondent's answer denies the Unions' majority status. Both at the hearing
and in its exceptions to the Intermediate Report, the Respondent took the position that
it would concede the jurisdictional question if the issue with respect to the Unions'
Majority status were to be settled by an election.
* Baxter Bros ., 91 NLRB 1480.
KEN ROSE MOTORS, INC. 871
of the principles of collective bargaining and by a desire to gain time-
in which to dissipate the Union's strength.
While the Respondent at the hearing in this case stated its present
willingness to bargain with the Unions if certified pursuant to a Board'
election, this statement does not, in our opinion, reflect the Respond-
ent's acceptance of the collective bargaining principle, but rather a
belief that its antiunion campaign has obviated any likelihood that the
Unions would win such an election 8
Accordingly, upon the entire record we conclude that the Respond-
ent's admitted refusal to bargain with the Unions was not in good'
faith, and that it thereby violated Section 8 (a) (5) of the Act.9
The Remedy
As stated above, we are convinced and find that the Respondent, by
refusing to bargain with the Unions, and by its other unlawful conduct,
has displayed an attitude of general opposition to the purposes of the
Act. The violations of the Act which the Respondent committed are,
we think, related to other unfair labor practices proscribed by the Act,
and the danger of their commission in the future is to be anticipated
from the Respondent's conduct in the past. The preventative purposes
of the Act will be thwarted unless our order is coextensive with the
threat. In order, therefore, to make more effective the interdependent
guarantees of Section 7 and prevent a recurrence of unfair labor prac-
tices, and thereby minimize industrial strife which burdens and
obstructs commerce, and thus effectuate the policies of the Act, we•
shall order the Respondent to cease and desist from infringing in any
manner upon the rights guaranteed in Section 7 of the Act.
Order
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, Ken Rose Motors, Inc.,
Wakefield, Massachusetts; its officers, agents, successors, and assigns,
shall :
1. Cease and desist from :
(a) Interrogating its employees concerning their union affiliations.
(b) Warning its employees to refrain from assisting, becoming
members of, or remaining members of Local 841, International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
s See Dismuke Tire and Rubber Company, Inc., 93 NLRB 479.
Joy Silk Mills, Inc., 85 NLRB 1263, enforced Joy Silk Mills, Inc. v. N. L. R. B.,
185 F . 2d 732 (C. A., D. C. ) ; Long-Lewis Hardware Company , 90 NLRB 1403; Dismuka
Tire and Rubber Company, Inc., supra.
872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
America, AFL, or Lodge 1898 of District 38, International Association
of Machinists, AFL, or any other labor organization, from offering its
employees economic benefits for so refraining, and from threatening
its employees with discharge and other reprisals for joining and assist-
ing the aforesaid labor organizations.
(c) Refusing to bargain collectively with Local 841, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, AFL, and with Lodge 1898 of District 38, International
Association of Machinists, AFL, as the exclusive representative of all
the Respondent's employees engaged at its Wakefield- shop in repair-
ing, servicing, and maintaining automotive equipment, including me-
chanics, body men, painters, helpers, on-the-job trainees, parts men,
greasers, and washers, but excluding office and clerical employees,
guards, professional employees, and supervisors as defined in the Act.
(d) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist Local 841, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer-
ica, AFL, or Lodge 1898 of District 38, International Association of
Machinists, AFL, or any other labor organization, to bargain collec-
tively through representatives of their own choosing, and to engage
in concerted activities for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any and all such activi-
ties, except to the extent that such right may be affected by an agree-
ment requiring membership in a labor organization as a condition of
'employment, as authorized in Section 8 (a) (3) of the National Labor
Relations Act.
2. Take the following affirmative action which the Board finds will
,effectuate the policies of the Act:
(a) Upon request, bargain collectively with Local 841, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, AFL, and with Lodge 1898 of District 38, International
Association of Machinists, AFL, as the exclusive bargaining repre-
sentative of the employees in the above-described appropriate unit,
with respect to rates of pay, wages, hours of employment, and other
terms and conditions of employment, and, if an understanding is
reached, embody such understanding in a written signed agreement.
(b) Post at its shop in Wakefield, Massachusetts, copies of the
notice attached hereto and marked Appendix A.10 Copies of said
notice, to be furnished by the Regional Director for the First Region,
shall, after being duly signed by the Respondent's representative, be
"In the event that this Order is enforced by a decree of a United States Court of
Appeals , there shall be inserted before the words, "A Decision and Order ," the words,
"A Decree of the United States Court of Appeals Enforcing "
KEN ROSE MOTORS, INC. 873
posted by the Respondent immediately upon receipt thereof, and be
maintained by it for a period of sixty (60) consecutive days thereafter
in conspicuous places, including all places where notices to employees.
are customarily posted. Reasonable steps shall be taken by the Re-
spondent to insure that said notices are not altered, defaced, or covered
by any other material.
(c) Notify the Regional Director for the First Region in writing
within ten (10) days from the date of this Order, what steps the
Respondent has taken to comply herewith.
Appendix A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT interrogate our employees concerning their union
affiliations.
WE WILL NOT warn our employees to refrain from assisting,
becoming members of, or remaining members of LOCAL 841, IN-
TERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WARE-
HOUSEMEN AND HELPERS OF AMERICA, AFL, or LODGE 1898 OF-
DISTRICT 38, INTERNATIONAL ASSOCIATION OF MACHINISTS, AFL,
or any other labor organization. Nor will we offer our employees.
economic benefits for so refraining, or threaten them with dis-
charge and other reprisals for joining and assisting the aforesaid
labor organizations.
WE WILL NOT in any other manner interfere with, restrain,
or coerce our employees in the exercise of the right to self -organi-
zation, to form labor organizations, to join or assist LOCAL 841,
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WARE-
HOUSEMEN AND HELPERS OF AMERICA, AFL , or LODGE 1898 OF
DISTRICT 38, INTERNATIONAL ASSOCIATION OF MACHINISTS, AFL,
or any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in concerted
activities for the purpose of collective bargaining or other mutual
aid or protection, or to refrain from any or all of such activities,
except to the extent that such right may be affected by an agree-
ment requiring membership in a labor organization as a condition
of employment, as authorized in Section 8 (a) (3) of the Act.
WE WILL bargain collectively upon request with the above-
named labor organizations as the exclusive representative of all
employees in the appropriate bargaining unit described below,
874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with respect to rates of pay, wages, hours of employment, and
other terms and conditions of employment, and, if an under-
standing is reached, we will embody such understanding in a
signed agreement. The bargaining unit is:
All employees engaged at our Wakefield shop in repairing,
servicing, and maintaining automotive equipment, including
mechanics, body men, painters, helpers, on-the-job trainees,
parts men, greasers, and washers, but excluding office and
clerical employees, guards, professional employees, and su-
pervisors as defined in the Act.
KEN ROSE MOTORS, INC.,
Employer.
Dated -------------------- By --------------------------
(Representative ) (Title)
This notice must be remained posted for sixty (60) days from the
date hereof, and must not be altered, defaced, or covered by any other
material.
Intermediate Report
Robert S. Fuchs, Esq., for the General Counsel.
Edmund J. Blake, Esq., Boston, MBass., for the Respondent.
STATEMENT OF THE CASE
This proceeding arose upon a charge filed on August 25, 1950, by Local 841,
International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help-
ers of America, AFL, and Lodge 1898 of District 38, international Association of
Machinists against Ken Rose Motors, Inc.' Upon the basis of such charge, the
General Counsel of the National Labor Relations Board, acting through the
Regional Director of the First Region (Boston, Massachusetts), issued a com-
plaint against the named company on December 20, 1950. This alleged that the
Respondent had engaged in, and was engaging in, unfair labor practices affecting
commerce within the meaning of Section 8 (a) (1) and (5) and Section 2 (6)
and (7) of the Act. Copies of the complaint and the charge upon which it was
based, together with notice of hearing thereon, were duly served upon the
Respondent and the Unions.
The complaint alleged in substance that the Respondent engaged in unfair labor
practices : (1) On and since June 2, 1950, by interfering with, restraining, and
coercing its employees through interrogating them concerning their union affilia-
tions and activities, warning them to refrain from joining the Unions, offering
them economic benefits for so refusing, threatening them with reprisals for join-
References in this Report will be : Ken Rose Motors , Inc., as the Respondent or the
Company ; Local 841, International Brotherhood of Teamsters , Chauffeurs , Warehousemen
and Helpers of America, AFL, and Lodge 1898 of District 38, International Association
of Machinists, as the Unions or the Carpenters or Machinists , respectively; the General
Counsel and his representative at the hearing , as the General Counsel ; the National Labor
Relations Board, as the Board ; the National Labor Relations Act, as amended by the
Labor Management Relations Act (61 Stat. 136), as the Act.
KEN ROSE MOTORS, INC. 875
ing or assisting the Unions and keeping their union and concerted activities under
surveillance ; and (2) on and since June 3, 1950, by refusing to bargain collectively
with the Unions as the exclusive representative of the employees. Thereby, it is
alleged, the Respondent had violated Section 8 (a) (1) and (5) and Section 2 (6)
and (7) of the Act and deprived its employees of the exercise of the rights
.guaranteed in Section 7.
The answer of the Respondent admitted its corporate existence and the general
nature of-its business ; denied that it was engaged in interstate commerce ; ad-
mitted that it refused to bargain collectively with the Unions and denied spe-
-cifically the unfair labor practices alleged.
Pursuant to notice, a hearing was held at Boston, Massachusetts, on January
9, 1951, before Hamilton Gardner, the undersigned Trial Examiner, duly desig-
nated by the Chief Trial Examiner. The General Counsel and the Respondent
were represented by counsel. Full opportunity was afforded all parties to be
heard, to examine and cross-examine witnesses, and to introduce evidence bearing
on the issues. At the beginning of the bearing the General Counsel filed a writ-
ten motion to amend paragraph 4 of the complaint which in effect rearranged the
titles of the Unions. In the absence of objection the Trial Examiner granted
this motion. At the end of the hearing he also granted a motion of the General
Counsel, to which no objection was entered, to amend the pleadings in minor
matters to conform to the proof.
The Respondent opened his case with a brief statement, but both counsel waived
closing oral arguments. The parties were advised of their right to file proposed
findings of fact, conclusions of law, and briefs. Briefs have been received from
counsel for both parties.
Upon the entire record in the case and from my observation of the witnesses,
I make the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Ken Rose Motors, Inc. is a corporation of the Commonwealth of Massachusetts
with its office and place of business at Wakefield, near Boston, therein. It is en-
gaged in the sale and service of Ford passenger cars, trucks, and automotive
parts under a franchise from Ford Motor Company, of Dearborn, Michigan,
which is in evidence. All new cars, trucks, and 90 percent of the parts sold by
the company is purchased from the Somerville, Massachusetts, plant of the Ford
Motor Company. Annual purchases of the Respondent amount to approximately
$100,000 of which 70 percent is expended for cars and trucks. Annual sales total
about $130,000 of which 50 percent represents sales of used cars and trucks. The
Company also sells oils, the annual purchases and sales being $6,000 and gasoline
with $4,000 annual purchases and sales. All purchases and sales by the Re-
spondent are made within the Commonwealth of Massachusetts.
The foregoing facts were stipulated at the hearing.
Tn addition, Kenneth M. Rose, president of the Company, testified for the Re-
spondent that the Fords purchased at Somerville, Massachusetts, were assem-
bled there from parts manufactured in Dearborn, Michigan, and in other States
and shipped to Somerville. One-half of 1 percent of the spare parts purchased
were shipped directly to the Company from New Jersey. It also sells General
tires which are made at Akron, Ohio. The gasoline and oil it retails are produced
in Texas and other States. But all its purchases of tires, gasoline, and oil are
bought through local Massachusetts dealers. Rose testified that he advertised
the Company's goods, but did not disclose the media.
876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The franchise under which the Respondent sells Ford cars, trucks, and parts
contains provisions as to the-retail sale prices of Ford products ; details as to the
specific manner of conducting the Company's business, including the type of its
premises, its method of bookkeeping, its manner of advertising; rendering
periodic reports to Ford Motor Company ; the restricted use of Ford names and
trademarks ; the amount of stock it may maintain; the manner of demonstrating
cars and trucks ; the avoidance of competition with other Ford dealers ; and
certain kinds of protective advantage from Ford in its dealership. The Ford
Somerville plant is part of a Nation-wide organization engaged in the manu-
facture, assembly, and distribution of Ford products.
The Respondent denies it is engaged in interstate commerce as defined by the
Act.
Very recently the Board passed upon the jurisdictional question involved in the
retail automobile business. That was in the Baxter Bros. case,2 where the facts
were identical with those at bar, including the sale of cars exclusively within
the State. In assuming jurisdiction, the Board said: '
Having recently reexamined Board policy concerning the exercise of
jurisdiction, we are of the opinion that when an employer is an integral
part of a multistate enterprise, the Board should exercise its discretion in
favor of taking jurisdiction. We consider franchised automobile dealers
. . . to be enterprises of this nature, even though, as here, the business may
be locally owned and make all its sales within the State In reaching this
conclusion, the Board has considered the franchise arrangements under
which the Respondents opet ate and the fact that they function as an essential
element in a Nation-wide system devoted to the manufacture and distribution
of automobiles. Accordingly, we find that it will effectuate the policies of
the Act to assert jurisdiction over the Respondents
Under the evidence of record I find that the Respondent is engaged in com-
merce within the meaning of the Act e
- II. THE LABOR ORGANIZATIONS INVOLVED
It was stipulated by the parties in open hearing that International Brotherhood
of Teamsters, Chauffeurs, Warehousemen, and Helpers of America and Local 841
thereof, affiliated with the American Federation of Labor ; and International
Association of Machinists, unaffiliated, and Lodge 1898 of District 38 thereof,
unaffiliated, are labor organizations within the meaning of Section 2 (5) of the
Act.
I so find.
III. THE UNFAIR LABOR PRACTICES
A. The ovee-all surrounding circumstances
A brief historical sketch of the events occurring in this case will facilitate an
understanding of the issues involved. Only undisputed facts are here set
forth.
The first steps toward union organization began on April 18, 1950, when
Theodore Hustler, service manager of the Company, told its nine maintenance
S 91 NLRB 1480 See also Ivy-Russell Motor Compaoiy, 90 NLRB No. 260, which was
a case of a Ford agency operating under a franchise identical with that at bar.
8 See : Ken Rose Motors, Inc ', Employer, and Local 841 of the International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL, et al., Case
No. 1-RC-1614, decided by the Board July 28, 1950 (unpublished).
KEN ROSE MOTORS, INC. 877
employees that they must work the next day, which was Patriot's Day, a legal
holiday in Massachusetts. They had not worked formerly on this holiday.
Several of the employees then made contact with the Unions and a few days
later five of them met with Thomas M. Hawes, a union organizer for the Joint
Committee for Organization of Automotive Repair Workers, made up of repre-
sentatives of the Carpenters and the Machinists Hawes explained the union
setup to them and all five signed union cards authorizing the Unions to represent
them in collective bargaining negotiations and otherwise. Within the next few
'days three other employees signed similar cards and mailed them to the Unions.
These eight cards are in file.
Following this, on June 1, 1950, the Joint Committee wrote the following
letter to the Respondent:
In accordance with the provisions of the National Labor, Relations Act,
the International Brotherhood of Teamsters and the International Associa-
tion of Machinists desire to notify you that we represent a majority of
the employees of your Wakefield Garage and desire to make arrangements
with you for a meeting for the purpose of negotiating a contract covering
the questions of wages, hours, and other conditions of employment for
these employees.
Hoping for an early answer to this request, we are,
Thus letter was never answered.
Immediately upon its receipt, Rose, company president, gathered his nine
maintenance employees together in the shop during the noon lunch hour.
Hustler, service manager, was also present. Rose read the Unions' letter to
the gathering and then made some remarks.
A few days thereafter the Unions petitioned the Board for a representation
election and a hearing was held June 28, 1950 The Board, by decision of
July 28, 1950, directed that an election be held. This was later fixed for
August 24 But one day before that time the Unions withdrew their petition
and on August 24 the Board cancelled its election order. Then followed the
chaige in the present case which was filed August 25
I find the facts to be as stated above.
B. Into? fci ence, i cstraint, and coercion
Before considering the proof of alleged violations of Section 8 (a) (1), it
is necessary to determine whether Hustler, service manager, was a supervisor
as determined by the Act. The Respondent contends he was not.
John Ozoonian. an employee of the Company for : years, testified for the
General Counsel that President Rose introduced hun to Hustler as the service
manager He stated that Hustler's duties included : To assign work-jobs to the
employees ; to write up repair orders : to transfer workmen from one job to
another ; to take chai ge of the shop in the absence of President Rose; to authorize
overtime: to reprimand and discipline the employees Hustler performed no
physical labor and was paid by salaiy instead of by the day, as were the other
employees Alvin D. Brewer, a former company employee, included the foi e-
going as Hustler's duties and added that lie granted permission to be absent from
duty. Herbert R Crocker, currently in the Respondent's service, testified to
the same effect Hustler did not appear at the hearing to take the witness
stand
Rose, president, agreed that Hustler exercised the duties listed, but denied
he had any authority to hire or fire. as testified by (`zoonian, Brewer, and Crockei
878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Rose's denial, however, was thoroughly impeached when he was confronted with
his testimony at the earlier representation hearing where he had sworn that
Hustler did have power to hire and fire. Moreover he frankly admitted on
cross-examination that Hustler possessed a "supervisory status."
I credit the testimony of Ozoonian, Brewer, and Crocker on this point.
I find, therefore, that Hustler, service manager, was a supervisor in accord-
ance with the definitions contained in the Act.
1. The speech by President Rose
It has already been found that immediately after receiving the Unions' letter
of June 1, 1950, quoted above, President Rose met with all of his nine mainte-
nance men in the shop during the lunch hour, read the letter to them, and then
made some remarks about it An abundance of proof was placed in the record
concerning what he said.
Ozoonian, a forthright witness for the General Counsel, narrated Rose's state-
ments as substantially : He didn't know what "you fellows think you're doing,
but there's no power on earth that can make this shop a Union shop" ; 3 or 4
years ago the Unions would have stood a better chance because of slack condi-
tions ; he had just sent a large check to an insurance company for sick and benefit
policies and this would be dropped if the Unions came in ; in that event "I'll
close down the doors and myself and one other will polish and service new cars" ;
he would also send out his body work and make 15 percent on that; he had once
been a union member "and the Union never did anything for him" ; he asked
why the men had not come directly to him if they had a gripe; if slack times
come and the Unions are in the shop he would have to send the men home.
Brewer, a former company employee, testified to the foregoing and added that
Rose had stated he could not understand why the Unions "were trying to start
an organization with a small dealer like himself."
Crocker corroborated this testimony in full detail.
Rose agreed with this testimony in part and denied it in part. He admitted
saying he felt like cancelling the sick and benefit insurance ; that he believed the
employees were misinformed about the Unions ; that he told employee Goudreau
he would have to close the shop if the coming of the Unions resulted in his not
being able to meet expenses, but insisted this was on another occasion. He denied
saying that no power on earth could make his garage a union shop ; that he related
his previous experience with a union, although in fact he had been a member;
that he mentioned sending out his body work or laying off the men in slack times.
Rose readily agreed that he was intensely surprised and upset by the Union's
letter and that his memory of all the things he said could be "somewhat hazy."
It is noteworthy that Hustler, who was present at the meeting, did not testify.
The stories of Ozoonian, Brewer, and Crocker were not merely preponderant
but more convincing than the mixed admission-denial version of Rose. I credit
them.
The Board has many times decided that threats by an employer to close a
plant, to reduce working time, to eliminate benefits such as sick insurance, and
to lay employees off if a union organizes his plant are coercive per se and violate
the Act.
2. Statements by Hustler, service manager
The evidence shows numerous statements concerning union affairs made to
several employees at various times following the Rose speech on June 2, 1950.
The first three witnesses appeared for the General Counsel.
KEN ROSE MOTORS, INC. 879
a To Ozoonian
Ozoonian testified that early in June Hustler came to the witness' place of
work, told him that Rose had received a letter from the Unions, and asked him
what he knew about the Unions. Ozoonian replied that the men wanted job
security.
A few days later Hustler again approached the witness about the Unions and
when Rose joined them told him to repeat to Rose what he had previously told
Hustler. This Ozoonian did. Hustler then added that if slack periods came
and the shop were unionized the men would not be kept on odd jobs but laid off.
Later in July Hustler told Ozoonian that if the Unions entered the shop the
men would lose the privilege of taking "coffee time."
Finally in August Hustler informed the witness that whereas he had previously
thought Ozoonian was the instigator of the union drive, he had learned on inquiry
it was someone else.
b. To Brewer
Brewer, formerly an employee who left the Company voluntarily, testified that
a few weeks after Rose's speach in early June, Hustler asked him who was the
union instigator. Brewer replied it was none of his business. Later Hustler
informed the witness that if the Unions come in the men would be placed on a
flat piece-rate basis instead of the present hourly basis. Brewer explained that
under Ford repair standards workmen would be paid only for the time actually
allowed for a specific job, which would result in less take-home pay.
c. To Crocker
Shortly after the Rose speech and at successive times, Hustler, according to
Crocker, asked him who instigated the union drive in the shop and asked him
how he felt about the Unions and how he would vote. Crocker declined to answer.
d. To Sells
Douglas J. Kells, an employee, testified for the Respondent. On cross-exami-
nation he admitted that Hustler had questioned him as to what he thought of
the Unions.
e. To Fairfield
Earle R. Fairfield likewise took the witness stand for the Respondent. He
also admitted on cross-examination that Hustler questioned him regarding his
feelings toward the Unions.
Hustler did not testify. The testimony of these five witnesses, therefore,
remains undisputed. I regarded them as credible witnesses. I find their versions
of Hustler's remarks to be correct.
The Board has repeatedly held that when an employer interrogates his em-
ployees concerning their union views, sympathies, or activities he interferes with
their rights under Section 7 of the Act and violates it.
Conclusion as to Interference, Restraint, and Coercion
Under the facts thus set forth, I find that, beginning June 1, 1950, the Re-
spondent interfered with, restrained, and coerced its employees in violation of
Section 8 (a) (1) of the Act.
880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. The appropriate unit and representation by the Unions of a majority therein.
In its answer the Respondent admits paragraph 5 of the complaint, which
sets forth :
All employees of Respondent employed at its Wakefield plant, engaged in
the repairing, servicing and maintaining of automotive equipment , including
mechanics, bodymen, painters, helpers, on the job trainees, partsmen, greas-
ers, and washers, but excluding office and clerical employees, guards, profes-
sional employees, and all supervisors as defined in Section 2 (11) of the Act,
constitute a unit appropriate for the purpose of collective bargaining within
the meaning of Section 9 (b) of the Act.
It is so found.
It has already been found in this Report that the number of employees in the
unit was nine. A finding has likewise been made that shortly after Patriot's
Day, April 19, 1950, five of the employees met with Hawes, the Union's organizer
and signed union-authorization cards. These were Alvin D Brewer, Herbert R.
Crocker, John Ozoonian, Earle R. Fairfield, and George R. J. Goudreau. Simi-
larly it appears that shortly thereafter three more employees-Douglas J. Kells,
Ralph R. Perry, Sr, and Frank E. Robinson-signed similar cards and mailed
or sent them to the Unions Thus on June 1, 1950, when the Unions sent the
letter, quoted hereinbefore, requesting that the Respondent bargain with them,
they represented eight of the nine employees in the unit.
Consequently I find that on June 1, 1950, and at all times thereafter, the
Unions were the duly designated bargaining representatives of a majority of
the employees in the unit described above, and that, in accordance with Section
9 (a) of the Act, the Unions were on said date and thereafter, have been and
now are the exclusive representatives of all the employees in said unit for the
purpose of collective bargaining with respect to pay, wages, hours, and other
terms and conditions of employment.
D The refusal to bargain
The request of the Unions that the Respondent enter into collective bargaining
negotiations with them is indisputably clear in their letter of June 1, 1950, which
appears in full in the earlier portion of this Report The refusal of the Respond-
ent to bargain is admitted in its answer The only defense offered to this unfair
labor practice was a statement by Respondent's counsel at the hearing that the
Company was now willing to participate in a Board election and bargain with
the chosen representatives The record shows, however, that at the representa-
tion hearing on June 18, 1950, the Respondent opposed such an election. Under
these facts the Respondent not only refused to bargain collectively but its
manner of doing so clearly evidences lack of good faith Thus it stands without
defense as to this phase of the case.
Conclusion as to Refusal to Bargain
I find that on June 2, 1950, and at all times thereafter the Respondent has
refused to bargain collectively and in good faith with the Unions as the exclusive
representatives of its employees in an appropriate unit; has thereby violated
Section 8 (a) (5) of the Act ; and has deprived its employees of the exercise
of the rights guaranteed in Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
I find that the activities of the Respondent set forth in Section III, above oc-
curring in connection with its operations in Section I, above, have a close,
BEACON MANUFACTURING COMPANY 881
intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Since it has been found that the Respondent has engaged in unfair labor prac-
tices, it will be recommended that it cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the Act. It having been
found that the Respondent has refused to bargain collectively with the Unions as
the exclusive representative of its employees in an appropriate unit, it will be
recommended that the Respondent, upon request, bargain collectively with the
Unions.
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, I make the following :
CONCLUSIONS OF LAW
1. Ken Rose Motors, Inc., is engaged in commerce within the meaning of the
Act.
2. International Brotherhood of Teamsters, Chauffeurs, Warehousemen, and
Helpers of America and Local 841 thereof, affiliated with the American Federa-
tion of Labor ; and International Association of Machinists, unaffiliated, and
Lodge 1.898 of. District 38 thereof, unaffiliated, are labor organizations within
the meaning of Section 2 (5) of the Act.
3. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in,
and is engaging in unfair labor practiceswith i tthe meaning of Section 8 (a) (1)
of the Act.
4. All production and maintenance employees at the Respondent's Wakefield,
Massachusetts, shop, excluding office clerical employees, watchmen, guards, and
supervisory employees, as defined in the Act, constitute a unit appropriate for
the purposes of collective bargaining within the meaning of Section 9 (b) of
the Act.
5. By refusing on June 2, 1950, and at all times thereafter to bargain collec-
tively with the said Unions last hereinabove named, as the exclusive representa-
tives of all its employees in the aforesaid appropriate unit, the Respondent has
engaged in and is engaging in unfair labor practices within the meaning of
Section 8 (a) (5) of the Act.
6. The above-named labor practices are unlawful labor practices affecting
commerce within the meaning of Section 2 ( 6) and (7) of the Act.
[Recommended Order omitted from publication in this volume.]
BEACON MANUFACTURING COMPANY and UNITED TEXTILE WORKERS OF
AMERICA, A. F. OF L., PETITIONER. Case No. 34-RC-181. May 08,
1951
Decision and Order
Pursuant to a Stipulation for Certification Upon Consent Election
entered into between the parties hereto, an election by secret ballot
was conducted in the above-entitled proceeding on March 17, 1950,
94 NLRB No. 28.
953841-52-vol. 94-57