Lew Chevrolet Co.

National Labor Relations Board - Board Decisions

Jun 12, 1961

131 N.L.R.B. 1123 (N.L.R.B. 1961)

LEW CHEVROLET COMPANY 1123
ent gave out checks for the anniversary ,gift, the striking employees had not been
replaced and they still had employee status. But for the Respondent 's unlawful
discrimination , all the strikers who had been employed by the Respondent for at
least 1 year by September 1, 1959, would have been qualified to receive, and should
have received, the anniversary gift. Whether or not the Respondent 's discrimina-
tion between those induced by the Respondent to abandon the strike nand those not
so induced Abe found to be a violation of Section 8(a)(3) and (1) of the Act or
only of Section 8(a)(1), the remedy must be the same. In order to eliminate the
effect of such unlawful discrimination , therefore , I shall recommend that the
Respondent pay to each of its employees who remained on strike after the date
when the checks for the anniversary gift were distributed and who had been in the
Respondent 's employ for at least 1 year by September 1, 1959, the sum of $300
(the amount of the anniversary gift paid to each employee in the unit who abandoned
the strike).
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the Act.
3. All mechanics, welders, and helpers employed by the Respondent, excluding
sales and office personnel , partsmen, guards, supervisors , and professional 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.
4. The Union is, and at all times material hereto has been , the exclusive repre-
sentative of the employees in the unit described in paragraph 3, above, for the
purposes of bargaining concerning wages, hours, and other conditions of employ-
ment within the meaning of Section 9(a) of the Act.
5. By failing and refusing to bargain (in good faith ) with the Union , the Respond-
ent has engaged in and is engaging in unfair labor practices within the meaning of
Section 8(a) (5) of the Act.
6. By interfering with, restraining, and coercing employees in the exercise of the
rights guaranteed in Section 7 of the Act, as herein found , the Respondent has
engaged in and is engaging in unfair labor practices affecting commerce within
the meaning of Section 8 (a) (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Lew Chevrolet Company and International Association of Ma-
chinists Lodge No. 622. Case No. 19-CA-92002. June 12, 1961
DECISION AND ORDER
On February 14, 1961, Trial Examiner Howard Myers issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had not engaged in certain alleged unfair labor prac-
tices and recommending that the complaint herein be dismissed, as set
forth in the copy of the Intermediate Report attached hereto. The
General Counsel filed exceptions to the Intermediate Report and a
supporting brief. Thereafter, Respondent filed a reply brief.
Pursuant to the provisions of Section 3(b) of the Act, as amended,
the Board has delegated its powers in connection with this case to a
three-member panel [Chairman McCulloch and Members Leedom and
Brown].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
131 NLRB No. 141.
1124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.'
[The Board dismissed the complaint.]
'While not entirely free from doubt, we find, in agreement with the Trial Examiner,
that the Respondent did not discriminatorily refuse to recall Douglas Mohr because of
the latter's union activities
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge duly filed on June 6, 1960,1 by International Association of Ma-
chinists Lodge No. 622, herein called the Union, the General Counsel of the Na-
tional Labor Relations Board, herein respectively called the General Counsel 2 and
the Board, through the Regional Director for the Nineteenth Region (Seattle, Wash-
ington), issued a complaint, dated July 22, against Lew Chevrolet Company, herein
called Respondent, alleging that Respondent had engaged in and was engaging in
unfair labor practices affecting commerce within the meaning of Section 8(a) (1)
and (3) and Section 2(6) and (7) of the National Labor Relations Act, as amended
from time to time, 61 Stat. 136, herein called the Act.
Copies of the complaint, the charge, and notice of hearing thereon were duly
served upon Respondent and copies of the complaint and notice of hearing were duly
served upon the Union.
Specifically, the complaint, as amended at the hearing, alleged that- (1) Between
April 25 and June 8, Respondent selected for economic layoffs only its employees
who were union members because of their union membership and activities in be-
half of the Union; (2) on or about May 16, 17, and 18, Respondent provided
employee Gordon Meyer with less employment than he normally would have re-
ceived because of his union membership and activities; (3) on or about May 5,
Respondent discharged employee Ralph Bracken because of his union membership
and activities; (4) on or about June 6, Respondent failed and refused to recall or
reinstate employee Douglas Mohr from layoff status because of his union member-
ship and activities; and (5) by the foregoing acts and conduct, Respondent has inter-
fered with, restrained, and coerced its employees in the exercise of the rights guaran-
teed in Section 7 of the Act.
On August 1, Respondent duly filed an answer denying the commission of the un-
fair labor practices alleged.
Pursuant to due notice, a hearing was held from August 30 through September
2, before the duly designated Trial Examiner. The General Counsel and Respondent
were represented by counsel; the Union by an official thereof. Full and complete
opportunity was afforded the parties to be heard, to examine and cross-examine
witnesses, to introduce evidence pertinent to the issues, to argue orally at the con-
clusion of the taking of the evidence, and to file briefs on or before September 26.
Briefs have been received from the General Counsel and from counsel for Re-
spondent which have been carefully considered .3
Upon the entire record in the case, and from his observation of the witnesses, the
Trial Examiner makes the following:
1 Unless otherwise noted, all dates herein mentioned refer to 1960.
z This term specifically includes counsel for the General Counsel appearing at the
hearing.
son September 20, the General Counsel filed with the Trial Examiner a motion, after
having served copies thereof upon counsel for Respondent and upon the official of the
Union appearing at the hearing, to amend the complaint with respect to a date appearing
in paragraph numbered 8 thereof The motion is hereby granted and the motion papers
are received in evidence and are marked "Trial Examiner's Exhibit No. 1."
On September 27, there was filed with the Trial Examiner a stipulation, duly signed by
the General Counsel and by counsel for Respondent, correcting certain inaccuracies
appearing in the stenographic transcript of the hearing . The stipulation is hereby
approved and received in evidence and marked "Trial Examiner 's Exhibit No 2 "
LEW CHEVROLET COMPANY 1125
FINDINGS OF FACT
I. RESPONDENT'S BUSINESS OPERATIONS
Respondent, a Montana corporation, has its principal offices and place of business
at Billings, Montana, where it is engaged in the retail sale of new and used auto-
mobiles, automobile parts, and service. During its fiscal year immediately preceding
the issuance of the complaint herein, Respondent's gross business amounted to in
excess of $1,000,000 and during said period, Respondent's out-of-State purchases of
automobiles and merchandise amounted to more than $50,000.
Upon the basis of the foregoing facts, it is found, in line with established Board
authority, that Respondent is engaged in, and during all times material was engaged
in, business affecting commerce within the meaning of Section 2(6) and (7) of the
Act and that its business operations meet the standards fixed by the Board for the
assertion of jurisdiction.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization admitting to membership employees of
Respondent.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Prefatory statement
Prior to 1956, employees in Respondent's service department were not repre-
sented by a labor organization.
Pursuant to a representation petition filed by the Union a secret ballot election
was conducted under the auspices of the Regional Director for the Nineteenth Re-
gion on August 7, 1956, among Respondent's mechanic department employees, in-
cluding working foremen, mechanics, body builders, body and fender repairmen,
welders, auto painters, helpers, and apprentices. The Union won the election by a
large majority and subsequently was certified as the exclusive collective-bargaining
representative of the persons in the aforesaid unit.
On August 17, 1956, shortly after the certification had been issued, the Union
called a strike to force its demands for a contract. The strike lasted about 84 days
and ended upon the signing of a collective-bargaining contract on October 16, 1956.
The aforesaid contract, which was a 3-year contract, provided for a maintenance
of membership which required Respondent to furnish each new employee hired a
copy of the union-security clause of the contract and for said employee to acknowl-
edge receipt thereof in writing. The contract further required each new employee
to become a member of the Union unless he mailed to Respondent and to the Union
a notice of his election not to become a member thereof; such notice to be post-
marked not earlier than 15 days and not later than 30 days after the date of his
hiring; and if no such notice was given, the employee was required to become a
member of the Union following the 31st day of his hiring as a condition of con-
tinued employment.
The contract also provided that the Union could reopen the contract on the issue
of wages at the end of 2 years by appropriate prescribed notice, and that in the ab-
sence of such notice a stated automatic wage increase would be affected. The
Union served timely notice of its desire to reopen the wage clause of the contract.
After some delay, M. E. Evanson, secretary-treasurer of Associated Industries of
Billings and Respondent's collective-bargaining representative, told Wendelin Sattler,
a then special representative of the International Association of Machinists and one
of the Union's collective-bargaining representatives, in November 1958, "The com-
pany's position was that at this time there was nothing to offer."
In January 1959, Respondent granted a 15-cent increase to all the employees in
the bargaining unit without prior consultation or negotiation with the Union. Al-
though requested by Sattler and George Meacham, an International representative of
International Association of Machinists, "to put" the increase into the bargaining
contract, Evanson refused to do so. It was not until an unfair labor practice charge
was filed by the Union with the Board, in the latter part of January 1959, that the
said increase was reflected in the then-existing contract.
Under date of August 10, 1959, Respondent served timely written notice of its
desire to terminate the aforementioned bargaining contract.
Under date of August 12, 1959, the Union wrote Respondent of its desire to effect
a "change" in said agreement and requested Respondent to set a date to negotiate
said change.
About September 12, 1959, Meacham, and Sattler called upon George Israel,
Respondent 's general manager, and requested him to negotiate a new agreement.
Israel declined to do so, stating that he doubted the Union's majority status.
1126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pursuant to a representation petition filed with the Board by the Union, a secret
ballot election among the persons in Respondent's service department was held
under the auspices of the Regional Director for the Nineteenth Region. The Union
won the election by a vote of 22 to 6. On November 27, 1959, the aforesaid Re-
gional Director, for and on behalf of the Board, certified the Union as the exclusive
collective-bargaining representative of the persons in Respondent's service depart-
ment. After a series of meetings between Respondent and the Union were held
between December 1959 and March 1960, 'looking toward a new contract, an im-
passe was reached over the Union's demand for a union shop and negotiations were
suspended.
About mid-April 1960, the Union called a special meeting at which it was voted
not to strike but merely to place a picket at Respondent's establishment in order
to enforce its demand for a union-shop contract. A picket was so placed about
April 22.
On the day the aforesaid picket was placed at Respondent's establishment, Israel,
because he feared the picket's presence would greatly reduce the volume of service
department business,4 told George Weber, Respondent's service department man-
ager, ". . . in order to survive and stay in business about the only thing we could
do, . . . that if any of the employees ran out of work, why, he was to lay them
off. . . . I also . told him that [so] far as seniority or anything else, we [would]
disregard it and I was going to have a meeting with the boys and tell them that over
a period of time, at least by the tail end of the year, that we would see that every-
one was laid off an equal number of hours, or as close as we could possibly get it
that way." Israel also, on that occasion, told Weber that due to loss of business,
he would be obliged to enforce again the provision in the expired contract which
Respondent had with the Union requiring the employees to redo "comebacks" on
their own time, rather than on company time.5
Early in May, Israel assembled the service department employees and told them,
in the presence of George Meacham, a representative of the International Associa-
tion of Machinists who was present at Israel's invitation, ". . due to the condi-
tions,6 . it would be necessary that any comebacks we had they would have to
do on their own time; and . . . if . . . we ran out of work that they would be
laid off, and . . . over the time that this continued, at least by the end of the year
each one's time would be equaled out so that they would all have the same amount
of time off."
B. The discharge of Ralph Bracken
When Bracken reported for work on May 4, there were two vehicles in the shop
which were "comebacks" of Bracken and which had been brought into the shop
that day or on the previous day. One, a Buick car, was in Bracken's workstall and
when Bracken arrived at his stall he was instructed by Weber to repair the Buick
at his own expense. Instead of carrying out Weber's instructions, Bracken, accord-
ing to his own testimony, immediately telephoned Meacham, made an appointment
to meet Meacham at Meacham's apartment, and the two of them then, after talking
the situation over, went to confer with an attorney who advised Bracken that Re-
spondent could require him to perform the comeback work at his own expense, but
that Respondent would have to supply the parts, if 'any.7
4In fact, Israel's undenled and credible testimony establishes that the normal volume
of service business was immediately reduced from about 80 to 100 cars per day to about
25 to 40 cars
5 This represented the implementation of old company policy, but which had not been
generally enforced.
Respondent 's establishment was still being picketed.
7 Bracken testified he interpreted Weber's remark, when the latter instructed him to
redo the Buick job, "Here's a comeback [admittedly Bracken's] ; start in on this car and
of this morning you guys are to do your comebacks at your own expense, no cost to the
company whatsoever" to mean that he personally would have to pay for the necessary
parts The Trial Examiner finds this testimony not to be worthy of belief This finding
is buttressed by the fact that admittedly Bracken knew that the Buick had been sold to
the customer by Respondent on the basis that Respondent and the customer were each
to pay half of the cost of putting the car in good running condition and hence knew that
he would not be called upon to pay any portion of the parts needed Such testimony of
Bracken has led the Trial Examiner to give no probative value to those portions of his
testimony which are contradicted or explained and which are not corroborated by objective
circumstances or by the testimony of credible witnesses.
LEW CHEVROLET COMPANY 1127
The same day, May 4, Weber reported to Israel that he had asked Bracken to do
a comeback job and that instead of doing it Bracken took off his coveralls and left
the shop.
Bracken did not return to the shop until starting time the next day, May 5.
However, instead of punching his timecard and working on the Buick comeback,
Bracken merely put on his coveralls and went to his stall. Bracken remained in
his stall, doing no work, until about 9 or 9.30 o'clock when he was called into
Israel's office. There, Israel, in the presence of Weber and two shop committeemen
who were present at Bracken's request, the following transpired, according to Israel's
credible testimony:
I asked Mr. Bracken why he refused to do the work and he said, "Well," he
said, "I didn't think I had to do it, so," he said, "I left and went uptown to
see an attorney."
I asked him, I said, "What did the attorney say?"
He said, "The attorney said I had to do it."
I said, "Well, why didn't you come back and do it?"
He said, "Well," he didn't have a direct answer why he didn't come back
and do it, so at that time I told Mr. Bracken, "Whenever you refuse to do a job
and walk off the job and leave it for a day," I said, "as far as I am concerned
you have quit."
At the conclusion of the above referred-to meeting, Bracken was given a check for
the wages due him and was discharged.
Decisions in cases like Bracken's-involving alleged discrimination in employ-
ment in violation of Section 8(a) (3) of the Act-must rest upon three major sub-
sidiary findings: (1) discrimination in fact, (2) knowledge by the employer of the
employee's union membership or activities, and (3) illegal motivation. Only the
second element is clear on this record. As to the other two elements, the record
in its entirety does not warrant a finding that Bracken was discharged for any reason
other than his refusal to work on the Buick comeback. This finding is clearly war-
ranted, not only by the fact that Bracken walked off the job without permission, but
by the fact, even though both Meacham and the attorney he and Meacham had
consulted told Bracken that he had to do the requested comeback job, that he did
not return to the shop until the following day and then made no effort to do any
work on the Buick. Upon the record as a whole, the Trial Examiner finds that
Bracken was discharged on May 5 for cause and not for the reasons alleged in the
complaint, as amended Accordingly, the Trial Examiner recommends that the alle-
gations of the complaint, as amended, with respect to Ralph Bracken be dismissed.
C. The layoff of Gordon Meyer
Meyer was the only bodyman working in the used-car department, which depart-
ment was under the supervision of Foreman William Hartung.
Commencing about 10 o'clock on Saturday morning, May 14, Meyer did picket
duty at Respondent's place of business for about 4 hours.8
As found above, as soon as picketing commenced on April 22, the volume of
business at Respondent service shop dropped markedly. That as a result of said
picketing, with the accompanying decrease in business, Respondent was obliged to
lay off employees for short periods of time, usually not exceeding 2 or 3 days.
Following the used-car sales picketing, the first time Meyer was laid off was on
Monday, May 16. The credited evidence convincingly establishes there was no
available used-car department repair or service work for Meyer or for any other
bodyman.
The undenied and credited evidence in the record reveals that Meyer had more
seniority than any bodyman working in Respondent's body shop, where Meyer had
worked for approximately 7 years prior to being transferred to the used 'car de-
partment in about 1953.
The General Counsel, in support of his contention that Meyer's selection for
layoff was discriminatory, points to Meyer's seniority record and to his activities in
behalf of the Union.
8 On May 13 and 14, Respondent promoted a special used-car sale. The Union decided
to have its members employed by Respondent join in the picketing of Respondent's estab-
lishment during this sale Most of the persons named in the complaint as being dis-
criminatees engaged in said picketing and Respondent's official, especially Israel, knew the
identities of the employee-pickets.
1128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The record clearly discloses, and the Trial Examiner finds, that in the past when
business was slow, Respondent, with the consent of the Union during the period
when a bargaining contract was in existence between the parties, disregarded senior-
ity and rotated the layoffs rather than lay off the employees permanently and that
prior to its contract with the Union, and after its expiration, Respondent had no
seniority policy with respect to layoffs.
In addition, three of the five bodymen working in the body shop, where Meyer
formerly worked, had each been laid off for at least 1 day prior to Meyer's May
16 layoff. Another body shop man was laid off for a week commencing on May
24. The remaining body shop man was not laid off because, in addition to being
a bodyman, he was one of Respondent's outside estimators of wrecked cars.
Under the circumstances, the Trial Examiner finds that the General Counsel has
failed to establish by a preponderance of substantial evidence that Meyer's May 16
through 19 layoff was violative of the Act. Accordingly, the Trial Examiner recom-
mends that the allegations of the complaint, as amended, with respect to Gordon
Meyer be dismissed.
D. The refusal to recall Douglas Mohr
Mohr was hired on February 16 as a used-car department apprentice mechanic
and joined the Union about a month later.
At the end of the workday on May 5, Hartung, Mohr's foreman, told him, "We've
been rotatin' the layoffs, we got to lay you off, and we'll call you back when we need
you again."
About a week or so after May 5, Mohr saw Weber and inquired when he would
be recalled. Weber, after explaining that at that time he had no work for an
apprentice mechanic, stated that as soon as such work became available he would
recall Mohr About a week later Mohr again asked Weber for work and again
Weber said that there was none available for an apprentice mechanic.
On May 14 or 15, Mohr, accompanied by his brother, Gerald, who had been in
Respondent's employ about 2 years as a mechanic, walked the aforementioned
picket line On that occasion, Mohr had a short conversation with Israel.
On two occasions, Hartung, upon Weber's instructions, unsuccessfully attempted
to contact Mohr to inform him to return to work. On one occasion, Hartung went
to Mohr's home, which was across the street from Respondent's place of business,
but no one was home On the other occasion, Hartung followed Mohr to the farm
on which Mohr was then working but failed to tell Mohr to return to work.
On June 1, the evening of the day Hartung followed Mohr to the farm, Mohr
went to Respondent's used-car lot and said to Weber that he had heard that Weber
was looking for him. After Weber acknowledged that fact, Weber informed Mohr
that since he had been unable to locate him, Respondent had hired someone else to
take his place.
In support of his contention that Respondent had discriminatorily refused to
recall Mohr because of the latter's union activities, the General Counsel points to
the fact that Respondent had not used effective means for contacting Mohr. He
argues in his brief, "If Respondent wanted Douglas Mohr back, the proximity of
his residence and the presence of his brother in the shop provided effective means
of contact." Whatever may be said of that argument, the fact remains that Weber
sent Hartung to locate Mohr and to tell Mohr to report for work. The fact that
Hartung engaged in, as the General Counsel characterizes Hartung's attempts,
"Alice-In-Wonderland" expositions, does not negate the fact that Weber was desirous
of recalling Mohr to his job and that he made a sincere effort to so inform Mohr.
The fact that Hartung made, unbeknownst to Weber, a poor messenger cannot be
utilized as a valid reason to warrant a finding that Respondent had refused Mohr
reinstatement because of his union activities. Under the circumstances, the Trial
Examiner recommends that the allegation of the complaint, as amended, with
respect to Doug] as Mohr be dismissed.
E The alleged discrimination in selecting employees for economic layoff
Because of decreased business resulting from the Union's picket activities, as
described above, Israel decided that it would be necessary to reduce the number of
service shop employees 9 and on April 22, directed Weber to lay off employees
when work became unavailable Israel also instructed Weber to rotate the layoffs
insofar as possible so that at least by the end of the year each employee's time
would be equaled out. At a meeting of the service department employees, held
6 The complaint, as amended, alleged, and the Trial Examiner finds, that the layoffs from
April 25 to June 8 were due to economic conditions.
LEW CHEVROLET COMPANY 1129
early in May, Israel announced the aforesaid layoff policy, adding that there would
be some exceptions because some of the employees possessed certain special skills,
such as the painter and the front- end man.
The first layoff was given to Douglas Belcher on April 25 or 26, the first or
second working day after the picketing commenced. This layoff came at 4 p.m.
when Belcher ran out of work but had about 1 hour left in his usual 8-hour day.
The second layoff was given Charles Smith and Edward Allen on April 27. The
third layoff was given Ralph Bracken and Lawrence Handel on April 28. Each of
the aforesaid layoffs were given only when business was slack.
During the period from April 25 and June 8, 13 union members were laid off
for a total of 332.5 hours and -5 nonunion employees were laid off for a total of
73.5 hours. Union employees' average layoffs amounted to 25.5 hours, while non-
union employees averaged 14.7 hours.
A number of employees, both Union and nonunion members, were not laid off
during the period in question because of their special skills. Among those possessing
those skills and who were not laid off were Gerald Mohr, automatic transmission
mechanic; Paul Wagner, front-end man; and Jake Batt, painter's helper, all of
whom were union members; neither were Lewis Polesky, the painter, who with
Batt were the only painters then in Respondent's employ, or Gus Haugen, the person
in charge of the toolroom and building maintenance, or Phillip Rice, formerly a
service salesman but who, during the period April 25 to June 8, worked as a
mechanic.iO
Alex Kindsfater, Ervin Heim, and Joseph Freize, nonunion members, were em-
ployed in the body shop and each was laid off during the April 25 to June 8 period,
except Kindsfater . Kindsfater was not laid off, according to the credible evidence,
because he was needed to make outside estimates of damages to wrecked cars for
insurance companies and others. The total layoff time for each of these men and
for Herman and Gordon Meyer, bodymen, was approximately equal . The record
also establishes, and the Trial Examiner finds, that Freize and John Stafford, another
bodyman and a nonunion member, were laid off before either of the union bodymen.
Other than the employees named immediately above, the only persons named in
the complaint, as amended , as not being laid off because of their nonunion member-
ship were John Calvin and Lloyd Davis. However, the credited evidence establishes
that each of these men was laid off for some time during the period involved,
although in each case some, if not all, of their time off was voluntarily taken; that
is, the employee informed Weber that there was no work for him to do and re-
quested permission that he be allowed to go home instead of another person being
laid off. In addition , both Calvin nand Davis were skilled operators; the former an
air-conditioner specialist and the latter an experienced major wiring operator.
The record is silent as to whether Respondent had any knowledge of the union
membership or activities of Lawrence Handel, Caspar Marquart,ii John Klaus,
Harold Egan, or Melvin Leuenberger at the time of their respective layoffs Like-
wise, there is no credited evidence that Respondent knew of the union activities of
Charles Smith or Edward Allen prior to the time they picketed the used-car depart-
ment on May 14.12
It is the General Counsel's theory and contention that the layoffs during the
period from shortly after the advent of the picketing until the filing, on June 6, of
the charge in this case followed a pattern of antiunion discrimination.
The record clearly discloses , and the Trial Examiner finds, that in fact a much
larger percentage of union adherents were laid off during the period in question
than nonunion persons. In cases where a grossly disproportionate selection of
union adherents for layoff occur, the courts have repeatedly held that such evidence
is indicative of a discriminatory plan 13 and therefore it then becomes incumbent
upon the employer to offer adequate proof negating the inference that the employees
10 Lewis Stalter , Garland Wattles , and Daniel Goldsmith were named in the complaint,
as amended , as being nonunion employees who were not laid off during the period under
consideration The record clearly establishes , and the Trial Examiner finds, that Stalter's
employment terminated on April 5 , that Goldsmith was not hired until June 8, and that
Wattles was first employed on June 1
u In fact , Marquart did not join the Union until after he had left Respondent ' s employ
lz Smith and Allen were laid off prior to May 14
18 See, for example , W C. Nabors Company, 89 NLRB 538 enfd 196 F 2d 272 (C A 5) ;
F W Woolworth Company v N L.R B , 121 F 2d 658 ( C A 2) ; Hamilton -Brown Shoe
Company v NLRB , 104 F 2d 49 (C A 8 ) ; NLRB v W. C. Bachelder, 120 F 2d 574
(C A 7) , Montgomery Ward & Co v N .L R B , 107 F 2d 555 (CA 7 ) ; Agwilines, Inc v
NLRB, 87 F 2d 146 (CA 5)
1130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had been selected to be laid off on a discriminatory basis. Respondent fully and
amply met this burden. Respondent's management assigned plausible and reason-
able grounds for the selection of each of those who were laid off between April 25
and June 8. The factual basis for the selections as given by Respondent's witnesses
were largely, if not entirely, uncontradicted. The Trial Examiner cannot conceive
of any reason , since Weber and Israel impressed him as being credible witnesses,
why he should reject the reasons asserted for the layoffs. Under the circumstances,
the Trial Examiner recommends that the allegations of the complaint, as amended,
with respect to the April 25 to June 8 layoffs be dismissed.
Upon the record as a whole, the Trial Examiner finds that the allegations of the
complaint, as amended, that Respondent had engaged in certain acts and conduct
violative of Section 8(a)(1) and (3) of the Act, are not supported by substantial
evidence. Accordingly, the Trial Examiner recommends that the allegations of the
complaint, as amended, that Respondent violated Section 8(a)(1) and (3) of the
Act, be dismissed.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. Lew Chevrolet Company, Billings, Montana , is engaged in, and during all
times material herein was engaged in, commerce within the meaning of Section
2(6) and (7) of the Act.
2. International Association of Machinists Lodge No. 622 is a labor organization
within the meaning of Section 2 (5) of ,the Act.
3. The allegations of the complaint, as amended, that Respondent has engaged
in and is engaging in unfair labor practices within the meaning of Section 8 (a)( 1)
and (3) of the Act, have not been sustained by substantial evidence.
[Recommendations omitted from publication.]
Ohio Valley Carpenters ' District Council , United Brotherhood
of Carpenters and Joiners of America , AFL-CIO and Vencil
Pruitt and E. M. Redington Co., D. W. Winkelman Co., Inc.,,
Maxon Construction Co., Inc. and Gateway Erectors, Inc.,
Parties to the Contract
Local Union No. 1477, United Brotherhood of Carpenters and
Joiners of America , AFL-CIO and Vencil Pruitt and E. M.
Redington Co., D. W. Winkelman Co., Inc. , Maxon Construc-
tion Co., Inc. and Gateway Erectors , Inc., Parties to the Con-
tract. Cases Nos. 9-CB-601 and 9-CB-602. June 12, 1961
DECISION AND ORDER
On July 28, 1960, Trial Examiner James T. Rasbury issued his In-
termediate Report in the above-entitled proceeding, finding that the
Respondents had not engaged in and were not engaging in the unfair
labor practices alleged in the complaint, and recommending that the
complaint be dismissed in its entirety, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter the General Counsel
filed exceptions to the Intermediate Report and a supporting brief.
The Respondents filed a brief in support of the Intermediate Report.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
131 NLRB No. 139.