Goode Motor Co.

National Labor Relations Board - Board Decisions

Oct 22, 1952

101 N.L.R.B. 43 (N.L.R.B. 1952)

GOODE MOTOR COMPANY 43
carries the Bonwit Teller doctrine too far. The Board is here decid-
ing, it seems to me, that an employer interferes unlawfully with an
election whenever he seizes the strategic advantage of speaking on
his premises just before a Board election, even in the situation where
the union has never asked for an equal chance to address his em-
ployees in the event that he should do so.4 It is true, as the majority
opinion says, that by timing his speech as he did, the Employer "made
impossible the holding of any further meetings before the election,"
thereby denying the union "an opportunity to reply under comparable
circumstances." But I had not supposed until today that this Board
believed that its obligation to assure free choice in elections included
a requirement that labor organizations, like others sometimes thought
weaker, must always have the last word.
4 Cf. Onondaga Pottery Company, 100 NLRB 1143, where the union made an antici-
patory request to address the employees in the event that the employer did so.
H. I. GOODE D/B/A GOODE MOTOR COMPANY and INTERNATIONAL AS-
SOCIATION OF MACHINISTS , DISTRICT LODGE No. 176. Case No.
10-CA-1260. October 22, 1952
Decision and Order
On March 11, 1952, Trial Examiner Albert P. Wheatley 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.
The Board l has reviewed the rulings of the Trial Examiner and
finds that no prejudicial error was committed. The rulings are hereby
affirmed. The Board has considered the Intermediate Report, the
exceptions and brief, and the entire record in this case, and hereby
adopts the findings, conclusions, and recommendations of the Trial
Examiner.
Order
Upon the entire record in the case, the National Labor Relations
Board hereby orders that H. I. Goode, doing business as Goode Motor
Company, Bristol, Tennessee, his agents, successors , and assigns shall :
'Pursuant to the provisions of Section 3 (b), of the National Labor Relations Act as
amended, the Board has delegated its powers in connection with this case to a three-
nmember panel [Members Houston, Murdock, and Styles].
101 NtRB No. 17.
44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Cease and desist from :
(a) Discouraging self-organization or concerted activities among
employees for their mutual aid and protection as guaranteed in Sec-
tion 7 of the Act or discouraging membership in International As-
sociation of Machinists, District Lodge No. 176, or any other labor
organization of his employees, by discharging any of his employees,
or in any other manner discriminating in regard to their hire or
tenure of employment or any term or condition of employment.
(b) Promising employees rewards in return for relinquishment of
membership in or activity on behalf of International Association of
Machinists, District Lodge No. 176, or any other labor organization.
(c) Threatening employees with economic reprisals because of their
membership in or activities on behalf of the above-named Union or
any other labor organization.
(d) In any other manner interfering with, restraining, or coercing
employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist International Association of
Machinists, District Lodge No. 176, or any other labor organizations,
to bargain collectively through representatives of their own choosing
and to engage in other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to refrain from any
or all of such activities, except to the extent that such right may be
affected by an agreement requiring membership in a labor organiza-
tion as a condition of employment, as authorized in Section 8 (a) (3)
of the Act.2
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer C. H. McCorkle immediate and full reinstatement to his
former or substantially equivalent position,3 and make him whole for
any loss of pay which he may have suffered by reason of Respondent's
discrimination against him 4 in the manner provided in the section
of the Intermediate Report entitled "Recommendations," (recommen-
dations not printed).
(b) Upon request, make available to the National Labor Relations
Board or its agents, for examination and copying, all payroll records,
social security payment records, time cards, personnel records and re-
ports, and all other records necessary to analyze the amount of back
pay due and the right of reinstatement under the terms of this Order.
2 See Standard Dry Wall Products, Inc., 91 NLRB 544 enforced 188 F. 2d 362 ( C. A. 3).
' In accordance with the National Labor Relations Board's consistent interpretation of
the term, the expression "former or substantially equivalent position " Is interpreted to
mean "former position whenever possible and if such position is no longer in existence,
then to a substantially equivalent position ." See The Chase National Bank of the City
of New York , San Juan, Puerto Rico, Branch , 65 NLRB 827.
4 The loss of pay shall be computed from the date of the discrimination to the date of
a proper offer of reinstatement . In computing the loss of pay the customary formula of
the National Labor Relations Board shall be followed . See F. W. Woolworth Company,
90 NLRB 289.
GOODE MOTOR COMPANY 45
(c) Post at his place of business in Bristol, Tennessee, copies of the
notice attached hereto and marked "Appendix B." 5 Copies of said
notice, to be furnished by the Regional Director for the Tenth Region,
shall, after being duly signed by Respondent's authorized representa-
tive, be posted by the Respondent immediately upon receipt thereof,
and maintained by him for sixty (60) consecutive days in conspicuous
places, including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to insure that
said notices are not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for the Tenth Region (Atlanta,
Georgia), in writing, within ten (10) days from the date of this Order
what steps the Respondent has taken to comply herewith.
8 In the event that this Order is enforced by a decree of a United States Court of Appeals,
there shall be substituted for the words "Pursuant to a Decision and Order" the words
"Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
The above-entitled matter involves allegations that H . I. Goode, doing business
as Goode Motor Company , herein called Respondent , on or about March 24, 1951,
discriminatorily discharged C. H. McCorkle , and allegations that Respondent (1)
threatened its employees with discharge and other reprisals because of their
union membership and activities , ( 2) threatened its employees with loss of bene-
fits and other reprisals because of their union membership and activities, and
(3) promised its employees rewards and benefits on condition that they cease
their union membership and activities .' Respondent denies the above-mentioned
conduct and asserts (1) that the business involved is of a local character and
(2) that business activities during 1951 "necessitated a reduction in the working
force" and that McCorkle was laid off "because said employee's record of pro-
ductivity reflected that he was the lowest producing employee in his classifi-
cation."
A hearing in the above -entitled matter was conducted by the undersigned in
Bristol, Tennessee , on October 31, 1951, and on January 8 and 9 , 1952, at which
the issues were fully litigated . At the hearing the undersigned took under con-
sideration a motion to dismiss the complaint . This motion is now disposed of in
accordance with the following findings and conclusions . After the close of the
hearing, briefs were received from counsel for the General Counsel and from
counsel for Respondent which have been considered in the preparation of this
Report.
Upon the entire record in the case and from his observation of witnesses, the
undersigned makes the following findings of fact, conclusions of law, and recom-
mendations.
BUSINESS OF BESPONDENT
Respondent,' a direct dealer for Chrysler Corporation , Dodge Division, is
engaged in Bristol, Tennessee , in the sale and servicing of new and used motor ve-
hicles. Its sales of new motor vehicles are made in accordance with an agree-
1 Certain other allegations of the complaint were dismissed at the hearing and will not
be discussed herein.
2 Respondent is a sole proprietorship owned and operated by H. I . Goode.
46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment with the Chrysler Corporation (Dodge Division) giving Respondent
exclusive rights for the sale of Dodge motor vehicles and nonexclusive rights for
the sale of Plymouth motor vehicles in the territory assigned to it. The sales
area defined in the agreement consists of :
In the State of Tennessee : That part of Sullivan County lying east of a
line drawn north and south thru the western limits of the town of Blount-
ville.' In the State of Virginia: In Washington County the Districts of
Goodson and Kinderbrook.
During the year beginning September 1, 1950, Respondent purchased new cars,
trucks, parts, and supplies valued at more than $200,000 and sold automobiles,
trucks, and repair parts valued at more than $500,000. More than 90 percent of
the new cars, trucks, parts, and supplies were shipped to Respondent from points
and places beyond the State of Tennessee. Approximately $2,923 represents auto-
mobiles, trucks, and repair parts sold and shipped by Respondent, during this
period, to points and places beyond the State of Tennessee. In addition, Respond-
ent made sales in the approximate amount of $64,031.08 as local retail sales to
purchasers who resided out of the State of Tennessee but made such purchases
and accepted delivery in Bristol, Tennessee.
Upon the foregoing facts and the entire record herein the undersigned finds
that Respondent's business operations affect commerce within the meaning of
the National Labor Relations Act, as amended, herein called the Act, and that
it will effectuate the purposes of the Act to exercise jurisdiction over said opera-
tions. (See N. L. R. B. v. Conover Motor Company, 192 F. 2d 779 (C. A. 10) ;
N. L. R. B. v. Davis Motors, Inc., 192 F. 2d 782 (C. A. 10) ; N. L. R. B. v.
Ken Rose Motors, Inc., 193 F. 2d 769 (C. A. 1) ; and N. L. R. B. v. Somerville Buick,
Inc., 194 F. 2d 56 (C. A. 1).
The Labor Organization Involved
International Association of Machinists, District Lodge No. 176, herein called
the Union, is a labor organization within the meaning of Section 2 (5) of the
Act.
THE UNFAIR LABOR PRACTICES
McCorkle
Charles Homer McCorkle, an automobile mechanic for 35 or 40 years, worked
for Respondent for approximately 7 years as a mechanic. At the time of Mc-
Corkle's discharge on March 24, 1951, there was only one mechanic (Fred
O'Dell) ' who had been in Respondent's employ longer than McCorkle.
McCorkle joined the Union in 1942 and throughout his employment with
Respondent maintained an active interest therein. He frequently voiced
"strong" sentiments in favor of the Union and there was no one in Respondent's
shop (where McCorkle worked) more active, or as active, on behalf of the
Union. His enthusiasm for the Union was readily apparent and "generally
known" throughout the shop. Two or three years after McCorkle began working
for Respondent he attempted to organize Respondent's employees, but apparently
ceased these activities after his foreman, Parks O'Dell, called him into the office
and asked him to quit having anything to do with the Union. Nevertheless,
McCorkle thereafter frequently voiced strong sentiments for the Union.
' About 12 miles from Bristol.
• There is a dispute herein as to whether Fred O 'Dell is a supervisor . In view of the
findings hereinafter made the undersigned believes it unnecessary to resolve this issue.
GOODE MOTOR COMPANY 47
On March 18 or 19, 1951, McCorkle attended a meeting of mechanics of the
States Motor Company and Bristol Lincoln-Mercury Company which was held
at the Bristol headquarters of the Union. McCorkle told Curtis C. Cochran,
business representative for the Union, that Respondent's employees were inter-
ested in organizing and requested that he (McCorkle) be furnished application
cards. McCorkle was given some cards authorizing the Union to represent the
signatories thereto for the purposes of collective bargaining. McCorkle took
these cards to Respondent's place of business and there solicited signatures
among Respondent's shop workers. Eight of the approximately nine shop
workers signed the cards. The cards were signed at various times on or about
March 20, 21, and 23, 1951. After obtaining the afore-mentioned signatures,
McCorkle took the cards to the union hall and gave them to Cochran. Through-
out this organizing campaign, which as noted herein lasted only a few days,
McCorkle was the recognized leader of the union activities. It is clear from
the entire record herein that Parks O'Dell, the shop foreman, was aware of these
union activities and the record infers, and the undersigned finds, that he (Parks
O'Dell) also had knowledge of McCorkle's leadership of these activities.
On March 24, 1951, about 21/2 days after the signing of union authorization
cards by most of the shop workers and within a week of the day the 1951 union
activity began, H. I. Goode, owner and operator of Respondent, called McCorkle
to the office and told him that business was falling off and that he (Goode) had
to lay off somebody. McCorkle asked "why it should be me [McCorkle] since I
was the oldest man" and Goode stated he was laying him (McCorkle) off
because he had the lowest productivity (was "producing less than the rest of
them"). McCorkle was thus discharged on March 24, 1951.
H. I. Goode testified that "several weeks"' before March 24, 1951, he talked
to shop foreman, Parks O'Dell, about business "falling off," and the shop not
"making expenses" and that he told O'Dell that if "business didn't improve we
was going to have to lay off somebody." Goode further testified that prior to
the layoff of McCorkle he did not consult with O'Dell concerning the selection
of McCorkle for layoff and that he (Goode) made this selection on the basis of
figures concerning production (hereinafter discussed) which he received "ten
days or two weeks before he [McCorkle] was discharged." Goode testified
that he concluded "ten days or two weeks before he [McCorkle] was discharged
that he should be discharged" and that he waited ten days or two weeks before
making this discharge effective because "I hated to lay off anybody. I was
hoping that business would pick up. I didn't want to lay him off." Goode
testified that before laying off McCorkle he examined "the figures [concerning
over-all business] for the ten days or two weeks" and they "showed no increase
[in business]."
Goode testified that prior to March 26, 1951, he was not aware of union activi-
ties among Respondent's employees.'
Respondent contends that there had been a substantial reduction in its cus-
tomer labor sales immediately preceding the discharge of McCorkle, making it
necessary to effect a reduction in force. To support this contention, Respond-
ent introduced into evidence an itemization by months from January 1950
through September 1951 of the dollar value of "customer labor sales."
From testimony at various points in the transcript, it appears that "customer
labor sales" occur either when a new car is serviced prior to being delivered to
I Later in his testimony Goode fixed the time of this conversation as "approximately
around the first or second week in March ," after he received "February figures "
For reasons hereinafter noted the undersigned does not credit this testimony.
48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a customer, or whenever repair and maintenance work is performed on other
customer cars brought into the shop. However, the extent of profit or loss can-
not be determined from a revenue account only. To determine whether the
labor-sales end of the repair shop was growing less or more profitable in the
period for which Respondent chose to introduce evidence, it would he necessary
to have corresponding monthly figures as to the costs of the labor sold each
month. The record herein does not reveal these latter figures. For example,
it is noted that in the month of August 1950 customer labor sales totaled
$2,425.55. This however does not necessarily mean that August 1950 was a
more profitable month with respect to labor sales than September 1950, in which
there was a decline of $213.16 from August's labor sales, or even than February
1951, which was $878.90 below the August figures. Costs of the labor sold in
each of these months need to be computed before satisfactory conclusions may
be made concerning profit or loss. If August 1950 was one of the rush months
in which many hours of overtime at time and a half rates were worked by the
employees, while February 1951 was a slow month in which the employees never
worked overtime and in which some employees, such as G. M Shankle, may not
have even worked 40-hour weeks, it might well have been that Respondent' s gross
profit on customer labor sales in February 1951 was equal to or even greater
than August 1950.
Even if this record contained information with reference to the cost of labor
sold each month, the picture as to the profit or lack of profit of the repair shop
for any specific period would be incomplete without the inclusion of the profit
or loss arising from the sale of parts. Thus, although the months of December
1950 and January, February, and March, 1951, might have shown a loss, or a
great reduction in profit, when compared with August through November 1950,
yet profits arising from the sales of parts which were installed by the repair
shop's mechanics in the later months might have been large enough to overcome
a loss, or bring up a small profit, in an amount sufficient to give the repair shop
a brighter financial outlook than in the earlier months. The absence of figures
concerning parts sold makes it impossible to infer that this actually did happen
or to infer that sales of parts also declined along with sales of labor and that
profit derived from both declined simultaneously.
It is noted that Respondent's labor sales fluctuate from month to month, that
in February 1951 Respondent's labor sales were $200 less than in January 1951,
and that the labor sales during this month (February 1951) were lower than in
any month since January 1950. However, it is further noted that in February
1950 Respondent' s labor sales were $234.32 less than in January 1950: in July 1950
its labor sales were $263.85 less than in June 1950; in September 1950 its labor
sales were $213.16 less than in August 1950; and in December 1950 its labor sales
were $495.48 less than in November 1950. In August 1951, Respondent's labor
sales were $63.27 less than in February 1951 and sales in this month (August
1951) were lower than in any month from January 1950 through September
1951. Nevertheless, there is no evidence that during these periods Respondent
made effective, or even considered, a reduction in force
The monthly figures for 1950 (the only complete year for which figures were
supplied) reveal an increase in amount of labor sales in the spring, rising to a
peak in later summer, with no significant diminution until December. This
sales behavior is probably because of the greater use of automobiles for pleasure
during summer vacations and in periods of mild weather. In any event, assum-
ing the monthly fluctuations for the year 1950 as presented in Respondent's
"customer labor sales" exhibit to be characteristic of the business, the more
significant comparisons of monthly figures are not those of one month with the
GOODE MOTOR COMPANY 49
previous month, but those of one month with the same month in the previous
year. Such a comparison of the relevant 1951 months with their counterparts
in 1950, shows that January 1951 was only $63.10 off from January 1950, while
February 1951 was only $73.38 below February 1950, and March 1951 was only
$103.24 below March 1950. These figures seem to indicate that so far as labor
sales are concerned there was not a substantial difference between the first
months of 1951 and the same period in 1950.
Customer labor sales in March 1951 totaled more than such sales in January
or February 1951 and to this extent at least, cast suspicion upon Goode's testi-
mony that he examined the figures concerning over-all business for the 10 days
or 2 weeks immediately preceding McCorkle's discharge and that they showed no
increase in business. Furthermore, the rise in labor sales in March 1951 (an
increase of $34485 over the previous month) is almost exactly what could have
been expected and predicted from the 1950 figures which show March up $374.71
over February 1950.
The record reveals that Respondent's customer labor sales fluctuated, some-
times better than at the time of McCorkle's discharge and sometimes worse, but
at no time other than in the month of March 1951 did Respondent lay off or
discharge employees because of a slack season. As noted above, it was during
this month (March 1951) that union activity by Respondent's employees, under
the leadership of McCorkle, was at its height.
On the basis of the entire record, the undersigned is not persuaded that Re-
spondent considered a reduction in force necessary because there had been a
substantial reduction in its customer labor sales.
Respondent makes no contention that McCorkle was discharged for incompe-
tence, but takes the position that inasmuch as it was necessary to effect a reduc-
tion in force "the man [in the shop] that cost me [Goode] the most money is the
man that I [Goode] laid off."
Goode's testimony indicates that after making a comparison of certain records
of class "B" mechanics for the period January 1950 through February 1951 (see
Appendix A) he (Goode) concluded that McCorkle was the man in the shop
who cost Respondent the most money. The record reveals there were approx-
imately nine men employed in the shop, that five or six of these were mechanics,
and that some of the mechanics were in a classification other than class "B."
Nevertheless the record does not indicate that Goode examined the records of
any employees other than the class "B" mechanics, which included McCorkle.
If Goode was "strictly interested in profit" and in the elimination of the man
costing Respondent the most money, as testified by him, then it would appear
likely that he would have examined the records of all employees of the shop
without confining himself to a comparison of records of the three class "B"
mechanics only, thus failing to ascertain the relative costs of each employee
in the shop.
Furthermore, the record as a whole reveals that mechanics at various times
perform sundry jobs of a productive nature which are not reflected by the records
examined by Goode. Thus, these records do not reflect the productive work
performed by a mechanic in rectifying defective work of another mechanic. In
fact, the mechanic who performed the defective work gets credit on Respondent's
records for having done productive work and the mechanic rectifying this de-
fective work is not credited therefor unless there is a second charge to the
customer for such work, in which case the second mechanic is credited only for
the rectifying work done. In addition , the records do not reflect productive
preparatory work preformed during periods when mechanics are not busy on
specific jobs, i.. e., when not busy on specific jobs mechanics put linings on brake
50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
shoes and set these relined brake shoes aside. Then as Respondent gets jobs
relining brakes these relined brake shoes are placed on the vehicle involved in
place of the brake shoes on that vehicle. However, only the mechanic exchanging
the brake shoes (not the one that did the relining during a slack period) receives-
credit on Respondent's records. McCorkle did more of this noncredited relining
work than any other mechanic. Goode was aware of this fact (that the records
are not an accurate reflection of productivity) and consequently knew that these
records alone were not an accurate means of computing the productivity of
mechanics. Nevertheless, he did not, according to his own testimony, confer
with the shop foreman (Parks O'Dell), the individual most likely to know the
relative efficiency of mechanics, concerning the lowest producing employee.
Goode's failure to confer with O'Dell about this matter and his determination
of productivity upon the basis of deficient records alone impugns his testimony
that he was interested only in profit and in releasing the employee producing
the least.
McCorkle performed about 90 percent of the servicing of new automobiles.
The record infers, and the undersigned finds, he was selected for this work be-
cause of his efficiency on accurately servicing these vehicles, thereby keeping
Respondent's profits and customer good will at their peak. In figuring its profit
on Appendix A, Respondent credited $12.50 per new automobile serviced to the
mechanic doing the servicing. However, Respondent charged its customer $50
for "servicing and handling" and the difference of $37.50 was reflected in
Respondent's records concerning new car sales and not in the records concerning
work by mechanics. During the period January 1950 through February 1951,
Respondent sold approximately 68 automobiles. The total value of new car
servicing , which is not reflected on Appendix A is, therefore, 68 X $37.50 or
$2,550. If McCorkle performed 90 percent of this work, Respondent made a
total of $2,295 as a result of his work, for which he received no credit. When
these figures are considered with those on Appendix A, it becomes apparent that
McCorkle's work reflected a greater profit for Respondent than any other class
"B" mechanic. Respondent's failure to give McCorkle full credit for the profits
resulting from his servicing of new vehicles casts further suspicion upon
Respondent's interest only in profit and in laying off "the man that cost me the
most money."
The data presented in Respondent's "Comparison of Production Records"
(Appendix A), aside from not dealing with productivity, is given in a lump sum
for each of the three employees named for a total 14-month period and is not
subject to an intelligent analysis of the relative gross profitability of the cus-
tomer labor sales produced by these three employees. Thus, a high ratio of
wages paid to labor produced may be due either to employment during slack
periods of business when hours of actual work at productive labor are fewer
than hours spent in the shop for which wages are paid, or to periods of em-
ployment during rush periods at overtime rates, or to a combination of the two.
For example, in determining whether Shankle was a more profitable employee
than McCorkle, it would not be sufficient to rest on the type of comparison made
in Respondent's exhibit. The record shows that Shankle had a supplementary
occupation, horse and cattle trading, in which Respondent permitted him to en-
gage and which resulted in his being "off a lot ... several days a month." It
is reasonable to infer that during slack periods Shankle was permitted to go off
horse trading, Respondent thus incurring no labor costs as to him, while Mc-
Corkle, as to whom Goode testified, "very seldom he is off," would be on the
pcyroll during the slack periods when he would receive his $1.10 an hour re-
gardless of whether or not he was actually producing $2.50 of customer labor
GOODE MOTOR COMPANY 51
sales every hour or not. Under such an arrangement , it is inevitable that over
a total 14-month period , the employee who is employed through slack as well as
fully productive periods, will incur a higher percentage of wages paid him rela-
tive to labor sales produced by him.
On the basis of the entire record, the undersigned is not persuaded that Mc-
Corkle was discharged because Respondent made less profit from his work than
from work performed by other employees at a time when there was a reduction
in force due to lack of business . In view of the failure of Respondent's con-
tentions "to stand up under scrutiny ," McCorkle 's seniority ( second in seniority),
McCorkle 's experience as a mechanic ( 35 or 40 years-the last 7 as a mechanic
for Respondent ), and McCorkle 's regular servicing of new vehicles ( which when
performed efficiently keeps Respondent 's profits and customer good will at high
levels ), it appears and the undersigned finds that McCorkle 's discharge was
not motivated by economic consideration . Furthermore , in the opinion of the
undersigned it stretches credulity too far to believe that there was only a coin-
cidental connection between McCorkle 's enthusiastic and successful solicitation
upon behalf of the Union ' and the abrupt termination of his employment (dis-
charge within 2% days after the signing of union cards).
The undersigned believes and finds that the evidence in this case demonstrates
that the discharge of McCorkle was due, not to the reasons assigned therefor,
but to his union membership and activity.
INTERFERENCE, RESTRAINT, AND COERCION
A consent election was held on May 3 , 1951 , in which the Union appeared on
the ballot. The Union lost the election.
Thomas Hayes Wood, a grease man, for several months prior to May 3, 1951,
had been requesting promotion to a mechanic . About a week before May 3, 1951,
a mechanic 's helper quit and Wood , several days before the election , asked the
shop foreman , Parks O'Dell , to promote him to this job. He was not promoted.
During the morning of May 3 , 1951 , and before the election was conducted, Parks
O'Dell asked Wood what he thought about voting for the Union . Wood said
"Frankly I don't hardly know." O'Dell then asked Wood which would be better,
voting for the Union or getting raised to a mechanic ? Wood said being raised
to a mechanic would be better "if I could have gotten it when I asked for it."
O'Dell then answered , "I think that can be arranged."
During the afternoon of May 3 , 1951, Wood had some difficulties with his work-
had a "hard time getting it done," didn't "know how to do it," and got "some
help." At quitting time that day Parks O'Dell, "in a kinds a mad tone, " said to
Wood , "There has been something wrong with you all day ." Wood answered,
"Well, Mr . O'Dell , it looks like it has been wrong with everyone in the shop.
O'Dell then said , "You are going to have to get right or get out ." Wood re-
sponded he didn't know whether he "could get right or get out either one" and
put on his coat and went home.
Wood testified that "because we had had the election that day" he took it for
granted that O'Dell was referring to the Union. Wood also testified O'Dell could
a In view of the size of Respondent 's shop, the limited number of employees involved,
McCorkle 's unconcealed union activities , the sequence of events , the suddenness of the
discharge, the failure of Respondent 's defense to stand up under close scrutiny, and the
shop foreman's knowledge of the efforts to organize Respondent 's employees , it is reason-
able to infer that Respondent was aware that McCorkle , immediately prior to his discharge,
was engaging in such union activities . Respondent's contention that it was without such
knowledge is rejected by the undersigned.
242305-53-5
52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have been referring to the difficulties which he (Wood) had had with his work
that afternoon.
Counsel for the General Counsel contends that O'Dell's statement that Wood
would have "to get right or get out" had reference to union activity and con-
stituted an attempt to discourage union activity by a threat of discharge for
continuation of such activity. The undersigned rejects this contention and finds
the evidence adduced insufficient to warrant such an inference.
Employee R. B. Henderson testified that 3 or 4 days prior to the election, Parks
O'Dell talked to him "about things that Mr. Goode had been giving us in the past
such as laundry bill, well, insurance, and bonus he give us for Christmas" and
that O'Dell said, "if we got the Union out there that we would probably lose
that." Over objections by counsel for the General Counsel, Henderson further
testified concerning this conversation :
Q. There were no promises or threats or anything else given?
A. No.
As stated at the hearing, the undersigned believes this testimony (that no threat
was made ) not determinative of the issue as to whether the remarks were
actually violative of the Act. Furthermore, it is apparent from the remarks
themselves that O'Dell was threatening a loss of benefits "if we got the Union
out there."
The night before the election, H. I. Goode, owner and operator of Respondent,
made a speech to his employees. Goode testified:
I got up and said a few words approximately to this effect : That the Union
was having a vote tomorrow and I want you boys to vote your conscience,
I want you to vote like you want to vote, but I want you to vote. Now I
want to introduce Mr. Grisgby who is familiar with your rights, and if he
has anything to say or you have any questions to ask him, please do so.
And I walked out to the front and bought a package of cigarettes and was
gone about ten minutes and came back and Mr. Grisgby was sitting down.
There wasn't any talking at all, but there was some questions asked during
that meeting.
Q. Did you make any further statements about any promises or any
benefits, anything along that line?
A. No, sir.
Q. Did you make any statements as to your feelings as to what their
rights were or weren' t at all?
A. No, sir.
Thomas Hayes Wood testified concerning this speech :
Q. Weren't you advised at that meeting by Mr. Goode that every man was
free to vote as they pleased?
A. Yes.
Q. There would be no promises , no threats?
A. That's right.
Q. Nothing would be held against anybody regardless of how they voted?
A. That is the subject-that's right, yes, sir.
R. B. Henderson, concerning this speech, testified that Goode advised the em-
ployees that they were free to vote as they pleased and that nobody would be
prejudiced regardless of how they voted. Henderson further testified he had
a poor recollection as to what was said but he remembered that Goode introduced
GOODE MOTOR COMPANY 53
Grisgby and that Grisgby then talked, but that he did not remember what Grisgby
said . Henderson further testified :
Q. (By Mr. Grisgby.) Weren't you advised by me and by Mr. Goode also
that you all were free to vote as you please and vote your own conscience?
A. Yes. I think you asked me that just a few minutes ago, I believe.
Q. Weren't you advised you wouldn't be prejudiced regardless of how the
vote came out the next day?
A. I think-I just don't remember. Now, that is pretty hard to remember,
but I think that is about right.
Q. And that is about all that was said at the meeting, isn't it?
A. There wasn't too much said. That is right.
Q. One other thing that was told you all, you all were asked each one
of you to vote and vote your own conscience and be sure to vote?
A. Yes, that's right. I remember that.
Q. That is about all that was said. Is that correct?
A. That is about all I remember. In fact, it is just pretty hard for me
to remember those things. I am pretty sure.
There can be little doubt that the foregoing promise of reward to Wood and
the threat to Henderson of loss of benefits were coercive in nature. However,
In view of Respondent's declarations of neutrality a question arises as to whether
Respondent adequately repudiated and disavowed this conduct so that this co-
ercive conduct may not now be imputed to it. Employer declarations of neu-
trality couched in general language which do not contain specific disavowals of
past coercive conduct on the part of supervisors and which do not specifically
disclaim responsibility for future acts of a like nature by supervisors are usually
regarded as inadequate to relieve an employer from responsibility for such
conduct. (See N. L. R. B. v. Fulton Bag & Cotton M1118, 175 F. 2d 675 (C. A. 5) ;
Salant & Salant, Inc., 92 NLRB 417, 444; and Beatrice Foods Company, 84 NL[IB
493, enforced, 183 F. 2d 726 (C. A. 10.) In the opinion of the undersigned, Re-
spondent's remarks the night before the election were not an adequate dis-
avowal or repudiation of the antiunion statements made prior thereto and did
not adequately bring home to the employees Respondent's repudiation of any
antiunion statements that might thereafter be made by its supervisors, so that
the employees had no just cause to believe that Parks O'Dell was not acting for
management in making the foregoing statements. Accordingly, the undersigned
finds that by the above-mentioned conduct of Parks O'Dell, Respondent promised
its employees rewards and benefits on condition that they cease their union
membership and activities and threatened its employees with loss of benefits and
other reprisals because of such membership and activities.
ULTIMATE FINDINGS AND CONCLUSIONS
In view of the foregoing, and upon consideration of the entire record, the
undersigned finds and concludes that :
1. Respondent discharged C. H. McCorkle on or about March 24, 1951, and has
since refused to reinstate him, because of his union membership and activity
and thereby discriminated with respect to hire and tenure of employment and
discouraged membership in the Union and interfered with, restrained, and co-
erced employees in the exercise of the rights guaranteed in Section 7 of the Act.
(By discriminating in regard to hire and tenure of employment of C. H. McCorkle,
Respondent engaged in unfair labor practices within the meaning of Section 8
(a) (3) and (1) of the Act.)
54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Respondent ; made promises of reward in return for relinquishment of
union membership and activity.
3. Respondent threatened employees with economic reprisals because of union
membership and activity.
4. The afore-mentioned acts and conduct of Respondent constitute unfair labor
practices affecting commerce within the meaning of Section 8 ( a) (1) and (3)
and Section 2 (6) and (7) of the Act.
Having found that Respondent engaged in unfair labor practices , it will be
recommended that Respondent , to effectuate the policies of the Act, take the
action hereinafter specified.
[Recommendations omitted from publication in this volume.]
Appendix A
GOODS MOTOR COMPANY
BRISTOL, TENN.
Comparison of Production Records
"B" Mechanics
January 1950 through February 1951
Employee name -------- G. M. Shankel C. H. McCorkle S. E. Cunningtiam
Date employed--------- Nov. 1947 Jan. 1944 Aug. 1948
Rate of pay (per hour)__
Customer labor pro-
duced---------------
Cost of labor sold (wages
paid) ---------------
Gross profit ------------
Ratio of wages paid to
labor sold -----------
$1. 10 $1. 10 $1.05
$4,405.05 $4,080.25 $3,901.47
$3,273.75 $3,559.01 $3,077.56
$1,131.30 $521. 24 $823. 91
74% 87. 5% 78.5%a
Appendix B
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the polices of the National Labor Re-
lations Act, notice is hereby given that H. I. Goode, doing business as Goode
Motor Company :
WILL NOT discourage self-organization or concerted activities among em-
ployees for their mutual aid and protection as guaranteed in Section 7 of
the Act or discourage membership in INTERNATIONAL ASSOCIATION OF Mi-
CHINISTs, DISTRICT LODGE No. 176, or any other labor organization by dis-
criminating in any manner in regard to hire or tenure of employment or any
term or condition of employment.
WILL NOT promise employees rewards in return for relinquishment of
union membership or activity or threaten employees with economic re-
praisals because of their union membership or activities.
WILL NOT in any other manner interfere with, restrain , or coerce em-
ployees in the exercise of their right to self-organization, to form labor
organizations , to join or assist INTERNATIONAL ASSOCIATION OF MACHINISTS,
DISTRICT LODGE No. 176, or any other labor organization, to bargain col-
LE ROI COMPANY 55
lectively through representatives of their own choosing , and to engage in
other concerted activities for the purpose of collective bargaining or other
mutual aid or protection , as guaranteed in Section 7 of the Act, or to refrain
from any or all of such activities , except to the extent that such right may be
affected by an agreement requiring membership in a labor organization as a
condition of employment as authorized in Section 8 (a) (3) of the Act.
WILL OFFER C. H. McCorkle immediate and full reinstatement to his
former or substantially equivalent position without prejudice to any sen-
iority or other rights and privileges previously enjoyed and WILL MAKE
whole said C. H. McCorkle for any loss of pay suffered as a result of the dis-
crimination against him.
All employees are free to become , remain, or to refrain from becoming or re-
maining, members of any labor organization except to the extent that his right
may be affected by an agreement in conformity with Section 8 (a) (3) of the
National Labor Relations Act.
Dated --------------------
H. I. GOODE, d/b/a
GOODE Moro& COMPANY
Employer.
By ----------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof, and must not
be altered, defaced, or covered by any other material.
LE Roi COMPANY and INTERNATIONAL UNION, UNITED AUTOMOBILE,
AIRCRAFP AND AGRICULTURAL IMPLEMENT WORKERS Or AMERICA,
CIO, PETITIONER . Case No. 13-RC-P211. October 22, 1962
Supplemental Decision and Order
On March 13,1952, pursuant to the Board's Decision and Direction
of Elections,' elections were conducted, under the direction and super-
vision of the Regional Director for the Thirteenth Region, by secret
ballot among the employees of the Employer in the voting groups
found appropriate, to determine whether or not the said employees
desired the Petitioner to represent them in collective bargaining,
either as a single unit or as separate units.
Upon the conclusion of the elections, tallies of ballots were issued
and served upon the parties hereto in accordance with the Rules and
Regulations of the Board. The tallies show that of approximately
151 eligible voters in voting group (a),2 52 cast valid ballots in favor
of the Petitioner, 82 cast valid ballots against it, and 5 ballots were
198 NLRB No. 24.
2 This voting group was composed of all office clerical employees at the Employer's
Milwaukee , Wisconsin , plant , excluding all employees listed in Schedule A attached to the
Decision and Direction of Elections , nurses, production and maintenance employees,
methods engineers , executives , and supervisors as defined in the Act.
101 NLRB No. 7.