Betts Cadillac Olds, Inc.

268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of employment to entitle him to a'voice in the selection of a bargaining` representative a We shall therefore direct 'an election in the following voting'group : All garage employees at the Employer's Muncie plant, excluding guards, professional employees, and supervisors as defined ' in the Act. If a majority of these employees vote for the' Petitioner, they- will 'be taken to have indicated their desire to be included in the production and maintenance unit currently represented by the Petitioner, and the Petitioner may bargain collectively for such employees as part of' such unit. [Text of Direction of Election omitted from publication in this vol- ume.] BETTS CADILLAC OLDS, INC. and LODGE No. 254 OF THE INTERNATIONAL ASSOCIATION OF MACHINISTS BRADY MOTORS, INC. and LODGE No. 254 OF THE INTERNATIONAL ASSOCIA- TION OF MACHINISTS CHAMBERS MOTOR CO. and LODGE No. 254 OF THE INTERNATIONAL ASSOCIATION OF MACHINISTS CRESCENT CHEVROLET COMPANY and Lore }E NO.' 254 OF THE' INTERNA-. TIONAL ASSOCIATION OF MACHINISTS DES MOINES NASH COMPANY, INC. and LODGE No. 254 OF THE IN'TERNA-. TIONAL ASSOCIATION OF MACHINISTS, FRIEDMAN MOTORS, INC. and LODGE No. 254' OF THE INTERNATIONAL' ASSOCIATION OF MACHINISTS GAMBS-HOLMES MOTOR Co. and LODGE No. 254 of THE INTERNATIONAL ASSOCIATION OF MACHINISTS GOODMAN MOTOR COMPANY and LODGE No. 254 OF THE INTERNATIONAL ASSOCIATION OF MACHINISTS HUDSON-JONES AUTO COMPANY and LODGE No. 254 OF THE INTERNA- TIONAL ASSOCIATION OF MACHINISTS JENSEN-DUNN COMPANY and IADGE No. 254 OF THE INTERNATIONAL ASSOCIATION OF MACHINISTS MANBECR: MOTOR SALES Co. and LODGE No. 254 OF TAE INTERNATIONAL ASSOCIATION OF MACHINISTS PAUL MANNING CHEVROLET and LODGE No. 254 OF THE INTERNATIONAL ASSOCIATION OF MACHINISTS 6 See Van Raalte Company, Inc., supra. 96 NLRB No. 46. BETTS CADILLAC OLDS, INC. 269 MEANS MOTOR COMPANY , INC. and I1ODGE No. 254 OF THE INTERNA- TIONAL ASSOCIATION OF MACHINISTS MIDTOWN MOTORS and LODGE No. 254 OF THE INTERNATIONAL ASSOCIA- TION OF MACHINISTS O'DEA CHEVROLET COMPANY and LODGE No. 254 OF THE INTERNATIONAL ASSOCIATION OF MACHINISTS ORVILLE LOWE, INC. and LODGE No. 254 OF THE INTERNATIONAL ASSO- CIATION OF MACHINISTS PEVERILL MOTOR SALES and LODGE No. 254: OF THE INTERNATIONAL ASSOCIATION OF MACHINISTS SUMNER PONTIAC COMPANY and LODGE No. 254 OF THE INTERNATIONAL ASSOCIATION OF MACHINISTS UNION MOTOR SALES COMPANY and LODGE No. 254 OF THE INTERNA- TIONAL ASSOCIATION through 18-CA-142. OF MACHINISTS. Cases September 21, 1951 Decision and Order Nos. 18-CA-124 On May 4, 1951, Trial Examiner Charles W. Schneider issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had not engaged in certain unfair labor practices and recommending that the complaint be dismissed in its entirety, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the IAM, the charging party, and the General Counsel filed exceptions to the Intermediate Report and supporting briefs. The Respondents filed exceptions, limited to the jurisdictional findings of the Intermediate Report, and a brief in support of the exceptions and of the remainder of the Intermediate Report. The National Au- tomobile Dealers Association, an intervenor, also filed a brief. The request of the IAM, the National Automobile Dealers Associa- tion, and the Respondents for oral argument is hereby denied, as the record, including the briefs and exceptions, in our opinion adequately present the issues and the positions of the parties. The Board 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 In- termediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner.' 1 In his Intermediate Report the Trial Examiner inadvertently noted that the hearing was held in January 1950 . The hearing took place in January 1951. Also , briefs sub- mitted by the parties to the Trial Examiner were filed in 1951, and not in 1949 , as stated by the Trial Examiner. 270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Davis Furniture, 94 NLRB 279, relied on by the General Counsel in his brief, is distinguishable because in that case, unlike the situa- tion in the instant case, the Board found that the shutdown was in re- prisal for the strike sponsored by the bargaining representative.2 Order Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National La- bor Relations Board hereby orders that the complaint herein against the Respondents be, and it hereby is, dismissed. CHAIRMAN HERZOG took no part in the consideration of the above Decision and Order. Intermediate Report and Recommended Order STATEMENT OF THE CASE On August 9, 1949, Lodge No. 254 of the International Association of Ma- chinists, herein called the Union, filed charges of unfair labor practices against the Respondent Companies named in the caption above. On August 31, 1949, the Union filed amended charges against some of the Respondents and on November 9, 1950, amended charges against all the Respondents. On November 20, 1950, the General Counsel of the Board issued his complaint alleging the commission by the Respondents of unfair labor practices within the meaning of Section 8 (a) (1) and (3) of the National Labor Relations Act. Copies of the complaint, the charges, and notice of hearing were duly served upon the Respondents and the Union. With respect to the unfair labor practices the complaint alleged, in sub- stance, that the Respondents, automobile dealers in Des Moines, Iowa, and members of the Des Moines Automobile Dealers Association : ... on or about July 16, 1949 did respectively lock out, lay off, and discharge all of their service department employees . . . and did until on or about October 17, 1949, fail and refuse to reinstate and reemploy said employees for the reason that they joined, assisted and supported the Union and engaged in concerted activities with other employees for the purpose of collective bargaining and other mutual aid and protection, and for the fur- ther specific reason that the union, on July 16, 1949, called a strike at the establishments of Howard Sole, Inc., and Sanders Motor Company, who are also engaged in the business of purchase and sale of automobiles and automotive products in Des Moines, Iowa, and are fellow members of the Des Moines Automobile Dealers Association. On December 29, 1950, the Respondents filed a motion to dismiss and an answer, more fully discussed hereinafter. Upon due notice a hearing was held at Des Moines, Iowa, from January 15 to 20, 1950. Limited motions to intervene filed by the National Automobile Deal- 2 Board Member Reynolds desires to note that if he had participated in the Davis Furni- ture case he would have dissented for the reasons set forth in his dissenting opinion in the Morand case, 91 NLRB 409, and that for the same reasons he concurs in the dismissal of the complaint herein. I BETTS CADILLAC OLDS, INC. 271 ers Association and by the Iowa Automobile Dealers Association were granted without objection. All parties were afforded full opportunity to be heard, to examine and cross-examine witnesses , and to introduce evidence bearing upon the issues. During the course of the hearing the complaint was, without ob- jection, amended in various nonsubstantive particulars . Opportunity for oral argument and for filing of briefs and proposed findings was afforded all parties. Proposed findings and/or briefs were received from the General Counsel on March 29, 1949, the Respondents and the National Automobile Dealers Asso- elation on April 2, and from the Iowa Automobile Dealers Association on March 30, 1949. These have been considered. Procedural Issues 1. The charges - Three different sets of charges were filed, the first on August 9, 1949, against all the Respondents, charging the 8 (a) (1), and (3) violations concerning which the complaint was ultimately issued. In addition these charges alleged a refusal to bargain by the Respondents, as of about July 22, 1949, in violation of Section 8 la) (5) and 8 (d). On August 31, 1949, amended charges substantially reiterating the allegations of the August 9, 1949, charges were filed against some, but not all, of the Respondents. The only apparent change wrought by the August 31 charges is in the names of the individual employees assertedly dis- criminated against. On November 9, 1950, second amended charges were filed against all Respondents. As nearly as I can ascertain, the November 9 charges merely abandoned the 8 (a) (5) and 8 (d) allegations contained in the prior charges. All charges were timely served on the Respondents. The complaint and notice of hearing issued had attached to it copies of the November 9 charges only, and not those of August 9 and August 31. At the hearing, however, the General Counsel offered all the charges in evidence. To this the Respondents objected, urging that the complaint was based upon the November 9 charges only, since they alone accompanied it, and that the August 9 and 31 charges were irrelevant and immaterial ; the relevant charges therefore untimely; and, consequently, the complaint should be dismissed. This objec- tion was overruled and the motion to dismiss denied. A complaint, to be sure, must be based upon a charge. But as I read the statute and the Board's Rules and Regulations, there is no requirement that a copy of the charge upon which the complaint is based accompany the com- plaint. Thus, Section 10 (b) of the statute states, in part: Whenever it is charged that any person has engaged in or is engaging in any such unfair labor practice, the Board or any agent or agency desig- nated by the Board for such purposes shall have power to issue and cause to be served upon such person a complaint stating .the charges in that respect . . . Provided, That no complaint shall issue based upon any unfair practice occurring more than six months prior to the filing of the charges.- .. . Section 203.15 of the Board's Rules and Regulations then in force, said : After a charge has been filed, if it appears to the regional director that formal proceedings in that respect should be instituted , he shall issue and cause to be served upon all the other parties a formal complaint in the name of the Board stating the charges... . The instant complaint appears to be based upon all the charges filed and not merely the charges of November 9, 1950. For what reason the Regional Director 272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD attached the November 9, 1950, charges to the complaint is not affirmatively dis- closed. The answer that suggests itself is that he wished the -parties to be in- formed as to which allegations the Union persisted in and which it had aban- doned. In any event the act of attaching the November 9 charges to the com- plaint appears to have no significance on the question of process, and in that respect is to be regarded as surplusage. Since a charge is a jurisdictional, and not a mere pleading, -requirement, all charges relating to an issue being litigated are relevant, indeed perhaps necessary, to the proceeding. It has been held that an amended charge is sufficient basis for a complaint. Kansas Milling Co., 185 F. 2d413•(C.A.10). 2. The motion to dismiss and the answer Factually, the Respondents' answer denied the commission of unfair labor practices. In addition, the answer and the motion to dismiss raised a number of legal and constitutional contentions as basis for dismissal. These contentions were overruled at the hearing, some on the ground that they raised factual issues, others on the ground that they did not, as a matter of law, warrant dismissal. The denial was without prejudice however to renewal of the motion upon the whole record; the motions were renewed, and are now disposed of by the follow- ing findings and recommendations. Several of the contentions, however, may be mentioned at this point. One is to the effect that an administrative ruling of the Board's former General Counsel refusing to issue a complaint under circumstances assertedly present here, estop the Board from pressing the present complaint. This contention is found not to be sustained. In the first place, the ruling referred to, involving unfair labor practice charges against Washington, D. C., dairies, was issued in June 1950. The instant events occurred in 1949. The General Counsel's 1950 opinion could not have been the basis for the Respondents' actions in 1949. In the second place, estoppel is not invokable against the Government. West Texas Utalitses Co. v. N. L. R. B., 184 F. 2d 233 (C. A. D. C.). In the absence of the provision in the law protecting acts under such circumstances, reliance upon an administrative construction of a statute, while having undoubted bearing on the good faith of the actor,- does not legalize the conduct if the interpretation is subsequently judicially determined to have been erroneous. The law and not the mistaken opinion must prevail, As the Board said in the case of West Texas Utahtaes Company, 85 NLRB 1396: One who commits an unlawful act because of an honest, but mistaken under- standing of the law is not absolved from responsibility for his unlawful conduct [citing cases ]. The case is no different because the Respondent apparently relied upon an interpretation of the statute advanced by the General Counsel , a statutory officer. His primary function is to investigate charges and prosecute cases before the Board . The -task of making binding interpretations of the meaning of the Act is a judicial function, vested in the Board Members with ultimate power of review in the courts. • Secondly, it is urged that the General Counsel and the Board have been "guilty of laches and undue delay," and the issuance of the complaint therefore improper. The doctrine of lathes, however, is inapplicable to the Board. Agar Packing & Provision Corp., 81 NLRB 1262; Olin Industries Inc., 86 NLRB 203; and see N. L. R. B. v. Electric Vacuum, 315 U. S. 685, 697; Bentley Lumber Co. v. N. L. R. B., 180 F. 2d 641 (C.A.5). • Thirdly, it is urged that James Ashe, Grand Lodge representative of the Union, who signed the charges, is not a qualified person to file charges, for -the reason BETTS CADILLAC OLDS, INC. that the. Local Union and not Ashe or the International Union, is the bargaining agent of the affected employees. However, a charge, may be fled by any person. See Section 203.9 of the board's Rules and Regulations: "a charge that any person has engaged in or is engaging in any unfair labor practice affecting com- merce may be made by any person.. ." [Emphasis supplied.] Upon the entire record in the case, including my observation of the witnesses, I make the following: FINDINGS OF FAOT 1. THE BUSINESS OF THE RESPONDENTS 273 The Respondents are all retail automobile dealers in the city of Des Moines, Iowa, engaged in the purchase and sale of new automobiles manufactured outside tile•State of Iowa, and of automotive products. In addition, the Respondents service and repair automobiles and buy and sell used cars. All hold dealer franchises issued either by the manufacturer or his sales organization for the sale and servicing of nationally advertised automobiles. All are members of the Des Moines Automobile Dealers Association, a nonprofit corporation which exists for the purpose of bargaining collectively with employee representatives of the dealers, and for other matters of common dealer interest. All the Respondents but Peverill Motor Sales are Iowa corporations. Peverill is an Iowa partnership. The following table shows facts stipulated to by the parties as to the Respond- ents' involvement in commerce. Column 1 gives the name of the Respondent dealer, column 2 the make of car handled, column 3 the dollar value of the dealer's total purchases in the calendar year 1949 of automobiles and automo- tive products. Here the actual amounts were stipulated to be "In excess of" those given. Column 4 shows the percentage of those purchases representing purchases and shipment from sources outside the State of Iowa. Here also the actual percentages were stipulated to be "more than" those given. All but a fraction of the Respondents' sales are intrastate. I 3 4 Name Betts Cadillac Olds----------------- Brady Motors---------------------- Chambers Motor------------------- Crescent Chevrolet----------------- Des Moines Nash------------------- Friedman Motors ------------------- Gambs-Holmes- -------------------- Goodman Motor -------------------- Hudson-Jones----------------------- Jensen-Dunn----------------------- Manbeck Motor-------------------- Paul Manning______________________ Means Motor ----------------------- Midtown Motors------------------- O'Dea Chevrolet------------------- Orville Lowe ----------------------- Peverill Motor---------------------- Sumner Pontiac-------------------- Union Motor----------------------- Car Cadillac and Oldsmobile------------------ Desoto and Plymouth-------------------- Ford-------------------------------------- Chevrolet--------------------------------- Nash-------------------------------------- Chrysler and Plymouth------------------- Kaiser and Frazer ------------------------- Willys-Overland-------------------------- Hudson----------------------------------- Ford-------------------------------------- Chrysler and Plymouth------------------- Chevrolet--------------------------------- Studebaker-------------------------------- Mercury and Lincoln--------------------- Chevrolet--------------------------------- Ford-------------------------------------- Packard autos and White Trucks--------- Pontiac----------------------------------- Studebaker------------------------------- Purchases 2,000,000 1,400, 000 2,300,000 1,700,000 972,500 1, 000,000 1225,000 1, 100, 000 729, 000 1,600, 000 1,600,000 2,300,000 330, 000 1,700,000 1,300,000 1,200,000 1,100, 000 1,200,000 1,600,000 Percent of purchases made out of State I Part of year only. The Respondents contest the jurisdiction of the Board, urging that they are neither engaged in nor do their activities affect, commerce. It will be seen from the foregoing stipulation, however, that in 1949 the Respondents' combined pur- 14 274 DECISIONS -OF NATIONAL LABOR RELATIONS BOARD chases of automotive products and nationally distributed automobiles amounted- to more than $25,000,000, of which over $16,000,000-roughly 64 percent-repre- sented interstate purchases. That would seem to constitute substantial involve- ment in commerce. The total operations of the Respondents are to be considered in determining jurisdiction. Vaughn-Bowen, 93 NLRB 1147; cf. Jamestown Build- ers Ea,chamge, 93 NLRB 927. But jurisdiction appears even if the Respondents are considered separately. In the case of N. L. R. B. v. M. L. Townsend, 185 F. 2d 378 (C. A. 9), cert. den. 341 U. S. 909, the Ninth Court of Appeals held that a franchised Hudson dealer whose 1947 sales of new automobiles amounted to $70,700 was within the jurisdiction of the Board. For other cases to similar effect see Conover Motor Co., 93 NLRB 867; Harbor Chevrolet Co., 93 NLRB 1326, and cases cited in the Intermediate Report therein. It is found here that whether considered in combination or individually the activities of the Respondents are such as to affect commerce. Oertel Brewing Co., 93 NLRB 530. II. THE LABOR ORGANIZATION INVOLVED Lodge No. 254 of International Association of Machinists is a labor organiza- tion admitting to membership employees of the Respondents. III. THE UNFAIR LABOR PRACTICES As has been indicated, the Respondents are retail automobile dealers in the city of Des Moines, franchised to sell and service various nationally known makes - of automobiles. The employees of the service or repair shops of the Respondents are, and have been for many years, represented for collective bargaining purposes by the Union, Local 254 of the Machinists International. The Dealers have for many years jointly recognized and contracted with the Union as the representa- tive of their employees. - In their dealings with the Union the Respondents are represented by the Des Moines Automobile Dealers Association, an organization of new car dealers, to whom they have delegated the authority to negotiate agreements with the Union. With changes in membership and ownership from time to time, the Association has so acted on their behalf since 1937. Generally a committee of dealers, some- times with outside assistance, does the actual negotiating for the Association. Though signed by the individual dealers, the Association is a party to the result- ing contract. Since 1937 written agreements have been executed and maintained- between the parties, generally annually and after negotiation. During all this period of time relations between the parties have been and are today, seemingly amicable. Three times there have been work interruptions when contract nego- tiations reached an apparent impasse : in 1938, in 1941, and again in July 1949: On the first 2 occasions the Union struck all the dealers ; in 1949 it struck only 2, the remaining 19 dealers then closing down. It is the 1949 dispute, ultimately settled by the negotiation of a new contract, which gives rise to the instant case. In sum, the situation is one in which collective bargaining has been for over a decade on a multiple-employer basis, and which seems to have resulted in a mutually satisfactory relationship and generally stabilized conditions. At the time the instant events arose the parties were operating under the then current contract, due to expire July 15, 1949. Both sides gave notice, early in May 1949, of intent to change the terms of that contract on its expiration and to negotiate a new one. At the suggestion of the Association, and by mutual consent, negotiations were begun June 13, 1949, and continued up to and including July 15, 1949, the date of expiration of the contract. There was full and com- BETTS CADILLAC OLDS, INC . 275 plete discussion of the outstanding issues. Proposals and counterproposals were exchanged, concessions were made, and there was earnest attempt on both sides to reach agreement before the expiration date of the existing contract. Never- theless the parties were unable to arrive at a meeting of the minds . The exact points of difference and the details of the negotiations and the exchange of views need not be recited . It suffices to say that the differences, which were basically over the Union's request for a wage increase, and the Respondents' request for the establishment of an incentive or bonus plan , were genuine and purely economic , and the efforts to resolve them real, but unsuccessful ; and by July 15, the parties had reached an apparent deadlock. Late in'June, during the course of the negotiations , the local union membership voted to request authority from the International Union to strike if no agreement could be reached. This authority or sanction was received from the Inter- national about July 11. During the week preceding July 15, 1949, some of the dealers, in anticipation of a possible strike after July 15, issued instructions to their service departments to complete all large repair jobs and not to take in further work that could not be turned out the same day. July 15 At the July 15 meeting both sides made concessions in an effort to reach an accord before midnight, but without success. The Union reduced its demands ; the Association withdrew its proposals for contract changes and offered to renew the old contract. As Union Representative J. P. O'Connell testified : ... The discussion was quite lengthy that day. It was the last day of the old contract; in other words, the old contract expired at midnight that night, and, of course, there was long, hard bargaining that day to try to reach an agreement before it expired. That is why I think that there were some concessions made from both sides. When we ended up that night we still had an offer from the Dealers Association of our old contract, either with or without the bonus, and we still were demanding a 15 cents an hour increase over the old contract. During this session the union representatives stated that the local had authori- zation to strike at the expiration of the contract. It was agreed at the con- clusion of the meeting that the union representatives would take the Association's last proposal to the membership that evening for acceptance or rejection and would notify Dale Derrick, one of the Association's negotiators, as to the result. The local union membership met that night and voted to reject the Associ- ation's last offer. The membership also voted not to strike all the Association shops, and authorized the Union's negotiating committee and its business agents to select two shops to be struck. During a recess the committee and the business agents selected Sanders Motor Company and Howard Sole, Inc., the strikes to begin the next morning at 8 a. m. This action was ratified by the membership. Union Representative O'Connell then telephoned Association Representative Derrick at the latter's home, and informed him that the membership had re- jected the Association's last proposal. Derrick asked in substance what would happen now, and O'Connell responded substantially to the effect that the Union would probably exercise its strike sanction, but as to when, where, or against how many dealers, he•could not say. Derrick said "alright," and the conversa- tion terminated. The reason for the selection of Sanders and Sole, O'Connell testified, was that Sanders and Sole "drove the hardest bargain" ; the Union's feeling being that pressure on those two would likely accelerate agreement with all the dealers. The Union never made any separate demands on Sanders and Sole. 276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Association Meeting at Sanders' Home Immediately after his telephone conversation with O'Connell, Derriek con- tacted other members of the Association's negotiating committee and a meeting of the Association membership was arranged at Sanders' home-the most con- venient meeting place. This meeting, informal in nature, began shortly before midnight and lasted several hours. Most of the dealers were present. It is difficult to extract an altogether coherent narrative from the testimony as to what occurred, probably partly because there seems to have been little semblance of orderly procedure. Dealers arrived at various times and as they arrived were brought up to date by others already there. Small groups wandered off into various parts of the house and carried on separate discussions. The excite= ment of the occasion was also, no doubt, unconducive to protocol. This is not to say that the meeting was completely without point or direction. Its purpose was to inform the dealers of the breakdown in negotiations and quite obviously to discuss what could be done about it. Derrick reported his telephone con- versation with O'Connell. Sanders reported that one of his employees ' had called him and said that the Union would strike Sanders and Sole on the next morning. Opinion was divided among the dealers as to whether there would be a strike, some maintaining that there would not; offering various plausible reasons therefor ; others maintained that there would be a strike. Some were persuaded that in no event would the Union call a strike against less than all the dealers ; some that no strike would begin without notice. Thesr differences were not resolved. The dealers wished to know of Derrick, a specialist in the field of labor relations, what their "rights" were. Derrick informed them that, in his view, a strike against one member of the Association was a strike against all. Questions were asked as to whether the employees would be entitled to unemployment compensation if the shops did not open the next morning. Der- rick, citing a local case where a union had struck some but not all members of an employer group, whereupon all members closed down, replied that they un- doubtedly would not.' Someone suggested that the attorney for the Iowa Automobile Dealers Asso- ciation, Roberts, be asked for an opinion, and he was called and came to the meeting. After discussion of the problem, Roberts stated that he could give no recommendation without opportunity for fuller study. Derrick said that he could give no advice until it was ascertained what was going to happen. It was finally decided to await the events of the next day and it was arranged that the negotiating committee would meet at Sanders' place of business the next morning, there to receive and relay information to and from dealers as to what was happening in the various shops. The uncontradicted and uniform testimony of the participants in the meeting at Sanders' home was that no decision, agreement, or understanding was reached as to any course of action other than what has been outlined above. It is clear from that testimony, however, that the advisability and legal consequences of a general shutdown in the event of a strike against less than all of the dealers was discussed. The testimony does not disclose what considerations, economic or otherwise, were advanced as a reason for such a step.' 1 In general , under the Iowa statutes the employer 's unemployment compensation tax rate is determined by unemployment experience in his shop : The fewer claims against his account, the lower his contribution. 2 The findings as to the Sanders meeting are based on the testimony of Derrick and the dealers who testified about it. BETTS CADILLAC OLDS, INC. July 16: The Strike and the.Shutdown 277 On the following morning, Saturday , at about 8 a. in., the Union struck Sanders and Sole and established a picket at each place. At all the other Association shops, however, the employees reported for work as usual. But by 12 noon all of these shops , with one exception , either had closed their doors or had announced that they would not reopen Monday. The exception was Goodman , who closed on Monday morning July 18. At two of the shops, Crescent and Means , the men were permitted to complete the regular half clay of work but were told that there would be no other work until further notice. The shops other than Crescent, Goodman, and Means closed between S a. in. and noon . Most of them, in fact, did not open for business Saturday morning. At all shops the employees, when informed of the closedown , were told that there would be no work until further notice. The shutdown came about in the following manner. Before 8 o'clock on the morning of July 16 the Association committee met at Sanders ' place of business, where they received and dispatched communiques as to the situation at each dealer's shop. Most of the dealers did not accept any work that morning , though some did; and many told their employees not to punch in. All but a small per- centage of the service work is normally on a daily intake basis ; that is, is taken in in the morning and completed before the end of the day. It has been noted before that in the week prior to the closings the dealers had begun, in anticipation of a possible strike , to refuse all work that could not be completed the same day. After receii ing the information as to the situation at Sanders' and Sole's, and at various times between 8 a. m and noon , most of the Respondents spoke to their employees and closed the shops. By Monday morning, July 18, all had closed. Testimony having been introduced on both sides as to the circumstances of the shutdown at each place , there is understandable variation both in what each dealer said to the employees , and in what he is asserted to have said. That perceptions or recollections of an event should vary is scarcely an uncommon human experience . History is always to some extent what the historian ob- serves, remembers, thinks important , and desires. Moreover, expression being the individualistic process that it is, it would be unusual if 19 persons simul- taneously said the same thing in exactly the same way even if they had agreed in advance to do so. The uniform testimony of the dealers is that there was no common agreement to close down , but that each did it upon his own judgment, without influence, persuasion , or conference with the others . Though this seems surprising, it probably makes little difference , as to its legality here, whether the action was individual or joint. Though it might not be so where other concepts, such as antitrust, are involved, so far as this Act is concerned the Respondents could lawfully do concertedly what they could lawfully do individually, and vice versa. No useful purpose will be served by analyzing all the testimony as to what the employers said to the employees at each of the 19 shops . In my judgment the employers' statements to the employees may be properly summarized and synthesized as follows . Not all these statements were made by each dealer, nor necessarily in this order ; and no dealer made all of them ; usually what was said was a combination of the declarations. Two members of the Association had been struck, a strike against 2 was a strike against all the dealers. The dealer had no assurance that he would not be the next to be struck. There might be further strikes at any moment. The dealer would have to go along with the other dealers. 974176-52-vol. 96-19 278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Unless there were assurances or guarantees that there would be no strike, or that in the event of strike the men would complete the unfinished work, the shop would have to close. The dealer could not risk tying up customers' cars in an uncompleted'; state of repairs. The action was being taken to protect the dealer's and customer's in- terests. " In some instances the dealers asked the men what assurance they had that work would continue or be completed In most such cases, the men replied that they could give none; and that in the event of a strike they would have to-go out when called. In at least one shop, however, that of Means Motor Company- smallest and most isolated of the dealers, employing live men-the employees, asked for a guarantee that they would complete any work taken in, reported that" the Union would give Means a 5-day notice before it struck. Means asked for the assurance in writing. When the men reported that the Union would not give such a guarantee, Means closed also. In sum, in most cases, Respondents did indicate or suggest to the employees that the prospect of operative difficulties resulting from the possibility of sud- den strike was a consideration in their decision. And in no case except that of Means did the employees take any action which could be interpreted as dis- pelling that apprehension! Neither the Association nor any of the Respondents communicated with the Union to ascertain whether they would be given notice of a strike or whether unfinished work would be completed if strikes against them were called. Nor, other than hits been noted, did the Union inform the Association or any of the Respondents whether they would or would not be struck, whether they would receive advance notice, or whether unfinished work would be completed if further strikes were called. All the Association shops remained closed until October 17, 1949. The Union continued to picket Sanders and Sole, but none of the other dealers. For a week or more after the 19 Respondents closed, their employees continued to report but either found the service doors closed or were told that there was no work. There was in fact no service work to do, since the dealers had ceased'to accept any. Only the service departments were shut down. The parts and sales de- partments of each dealer remained open and continued to do business. On July 16, 1949, the Des Moines Ti ibneic, an evening newspaper, published the following account of an interview with George Betts, of Bats Cadillac Olds,, and then president of the Association; and of statements by Union Business Agents Brand and O'Connell Except as to one point, adverted to hereinafter, Betts' testimony was that his statements to the Tribune were substantially correctly reported. The story stated, in part: In a prepared statement issued by Business Agents J. D. Brand and J. P. O'Connell, the Union said "The only strikes that have been called are against' ,Howard Sole, Inc., and Sanders Motor Co., and no strikes have been called' against any of the other Des Moines dealers and none is anticipated at this time." S 2 # i • i R George Betts, president of the dealers association, contended, however, that a strike against an association member is a strike against the associa- tion itself. . 3In one other shop, that of Tensen-Dunn, employee Anderson told dealer Dunn, after the announcement of the closedown, that the employees were "loyal," and would not leave work unfinished Dunn replied that he thought that matter "beyond [Anderson's] control," to which Anderson agreed. BETTS CADILLAC OLDS, INC. 279 "The union has a contract with the association, not with the individual members," he said. Betts said that the association' decided to close down all repair shops so that a strike call would not find cars in the process of being repaired. s c s s s s "We can't risk tying up customer's cars in that fashion." Betts said. After the strikes and shutdowns, with the assistance of U. S. Mediation and Conciliation Commissioners, Sherman and Jackson, the parties continued nego- tiations to resolve their differences. An agreement was finally arrived at on November 16, 1949. During part of the intervening period-from the shutdown to late September-the dealer mem- bers of the Association's negotiating committee did not attend the bargaining sessions, although the Union requested their presence. They returned the last week in September, by which time the effects of the strike and shutdown ap- parently had begun to pinch both sides. While there is some testimony on behalf of the Respondents to the effect that the reason for the failure of the dealer members of the Association committee to attend these meetings was to avoid conflict because of differences of opinion at prior meetings, it seems more likely that the action was the result of dealer resentment because of the strikes.' After the first meeting, however, which was purely exploratory, the Association was represented by representatives fully authorized to negotiate an agreement. There was, in fact, exhaustive good-faith bargaining, and there is no charge of 8 (a) (5) violation. It seems no concern of a union who the representatives of the employer should be, so long as they are authorized to and do biirgain. any more than it is the employer's concern who a union's negotiators are. This resentment, however, may have bearing on the motivation for the shutdown-a question later discussed. During the negotiations. while assisting the parties to hammer out their eco- nomic differences, the conciliation commissioners also attempted to have busi- ness resumed in the shops. At a meeting on August 19, Commissioner Sherman proposed that the pickets be removed from Sanders' and Sole's, that the dealer members of the Association negotiating committee join the negotiations, and that all 21 shops reopen under the July 15 working conditions. This proposal was accepted by the Association, a position which it reiterated in later meetings on August 29 and September 19, but was rejected by the Union. The latter then made a counterproposal to the effect that the Sanders and Sole pickets be withdrawn, the dealer members join in the negotiations, but, that Sanders and Sole remain closed. This proposal the Association rejected. At a meeting on September 28, the dealer members returned to the negotiating sessions. By this time there was considerable pressure on the dealers from persons who had bought new cars since July 16 and who were entitled to free inspection service The Union suggested that a 3-day truce might be acceptable, coupled .with a provision giving the employees 5 days within which to return The Association pointed out that the truce period would be ended before the melt returned to work, and they further objected that the 3-day period would not permit the cleaning up of even the free inspection work, much less allow for any pay work. The dealers then suggested a 6-week truce, with 5 days for the men 4 Betts' testimony is that he was misquoted at this point ; that he referred here to individual dealers and not the Association Otherwise the account is substantially correct. 6 A conclusion reinforced by Association Negotiator Derrick's statement at the first of these post-strike meetings to the effect that the individual dealers would not appear unless the strike ganction was "called off" and the pickets were removed from Sanders and Sole At some of these sessions Derrick also accused the Union of having committed unfair labor practices by striking only two of the dealers. 280 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD to return. Union Attorney. O'Malley having, stated, in response to Association complaints that the Union was discriminating between dealers by piecemeal striking, that such discrimination could be avoided by the Union striking every- one if it chose to strike again after the truce, a provision to that effect was added to its proposal by the Association. The Union, however, rejected the proposal and made no further suggestion on the subject at that meeting. But on October 12, 1949, according to Business Agent O'Connell's testimony, the Union suggested a truce whereby it would remove the pickets from Sanders and Sole and the employers open all 21 shops on the following Monday, October 17. Whether due to oversight is not clear, but there is no indication in the record as to the dealers' reply to this proposal. However, after the bargain- ing meeting on that day, October 12, the Association met and decided to reopen all shops on Monday, October 17, substantially on the basis of its last offer, which the Union had rejected. Letters to that effect were then sent to all em- ployees. While that action of the Association was without the concurrence of the Union, it voiced objection only to the terms, and not the fact, of resump- tion. By this time the situation had evidently become too uncomfortable for both sides, and each was amenable to a breathing space.' There is no evidence that at any time during these negotiations the Respond- ents asked the Union for assurances against momentary or "quickie" strikes, or`that the Union protested the shutdown, offered any assurances with respect to strike action, or, except as may be inferred from what has been recited, asked that the 19 shops be reopened. On October 17, 1949, in accordance with the October 12 decision, all the Asso- ciation shops reopened for business, and the Union quietly withdrew its pickets from Sanders and Sole. All employees were given opportunity to return to work and most did; and there was an undeclared truce for several weeks. Dur- ing the truce period negotiations continued on the contract, but without success. Under date of November 1, the Union notified all the Association dealers that because of the failure to reach agreement, the Union was striking them. The strike began on November 3, and affected all shops. It continued until Novem- ber 16, 1949, when the parties arrived at an agreement on a new contract effec- tive to September 1, 1951, and retroactive to July 16, 1949, the date of expira- tion of the old agreement, and the men returned to work. The dispute left no apparent residue of ill feeling between the parties, despite its duration. Relations are presently stabilized and seemingly amicable. In October 1950, the contract was reopened by mutual consent, the employees granted a 10 cents per hour wage increase, and as thus modified, was extended to September 1, 1952. During the period of the closedown thg.employees were not discharged. The Respondents continued to regard the employment relationship as existing and made no effort at replacement or severance. Employee insurance was main- tained in force, vacation pay was paid to most ; and the usual employee priv- ileges, such as the purchase of parts at discount,-continued to be extended. During the shutdown many employees repaired the automobiles of dealer cus- tomers in their back yards, purchasing parts at their shops at regular employee discounts. Some were even loaned shop tools by the dealer to carry on this work. All employees were accorded the opportunity to return to work when the shops reopened. In short, the Respondents did not intend to terminate, and the closedown did not have the effect of terminating, the employment relationship, " Lest a distorted picture be presented,' it should be emphasized that the truce discus- sions occupied only a_small portion of the negotiations between July 16 and October 17. Many meetings were held, mainly devoted to working out the contract differences. Pro- posals and counterproposals were offered and discussed by both sides. BETTS CADILLAC' OLDS, -INC. 281 Conclusion's 1. The issue The complaint alleges that the Respondents . . . did respectively lock out, lay off , and discharge all their service depart- ment employees and ... did until on or about October 17, 1949, fail and refuse to reinstate [them] for the reason that they had joined , assisted and supported the Union , engaged in concerted activities with other employees for the purpose of collective bargaining and other mutual aid and protection, and for the further specific reason that the Union , on July 16, 1949, called a strike at the establishments of Howard Sole, Inc., and Sanders Motor Company . . . This action is•asserted to be violative of Section 8 (a) (3)' of the statute in that it resulted in discrimination discouraging membership in a labor organiza- tion and of Section 8 (a) (1) in that it interfered with , restrained, and coerced employees in their rights to self-organization and with their engagement in concerted activities for their mutual aid or protection. Certain of the allegations may be disposed of without great difficulty. The remainder present questions which , in their precise , factual, and legal context, are of novel impression . It will be well to 'dispose first of the least vexing issues before turning to the hard core of the problem. First there is no charge of refusal to bargain on either side. Though the Union's original charge alleged a refusal to bargain on the part of the Respondents , this allegation was aban- doned-and is not contained in the complaint. In fact the evidence , in my judg- ment, affirmatively demonstrates genuine desire and good -faith effort on the part of both the Association and the Union to reach a solution of their dispute. Their differences were wholly economic in origin and over these they had bargained to a stalemate by July 15, 1949, when the contract expired. Nevertheless negotia- tions were continued and an amicable solution ultimately reached . Indeed this latter fact is urged by the Respondents as independent ground for dismissal. I do not find it so, however. That the economic dispute may have been resolved does not automatically result in absolution for any unlawful acts attendant upon its resolution . As has been suggested before, I do not find significant on the question of the Respondents' bargaining the failure of the individual dealers to attend the -negotiating sessions for a period after the strike , though it is not an action which strikes one as commendable. Secondly , there Is no substantial evidence from which it can be found or inferred that the Respondents closed down for antiunion reasons. Indeed, the record of the parties' relations over the years , and the facts of the disputes, dispel any such suggestion . I find that, whatever the ultimate judgment as to legality of their conduct , the Respondents accepted the Union at all times with- out question and were desirous of continuing their relationship with it. As to the Union's conduct, it was wholly lawful. Having given the requisite notice under the statute , it was free to strike on July 16, either against the en- tire Association or a segment of it. Morand Brothers Beverage Co., 91 NLRB 409. The strike against Sanders and Sole was peacefully and lawfully con- ducted, with 1 and at times 2 pickets parading before each establishment. Up to the time of the general strike in November, no picket lines were established by the Union at the premises of the 19 Respondents . It is found that the Union was,at all times engaging in.lawful concerted activity. - We turn now to the question as to whether the allegations of the complaint are factually supported . The complaint alleges that the Respondents did four things for three purposes . It avers that they did the following to the em- 282 DECISIONS OF NATIONAL , LABOR RELATIONS BOARD ployees: ( 1) Locked them out; (2 ) laid them off; (3) discharged them; and (4) failed to reinstate them. The first allegation , that of lockout, is a concept of ultimate fact connoting a combination of conduct plus purpose. The question of purpose being a substantial issue in the case, the determination as to whether there was a "lockout" is better deferred till the ground has been cleared of less troublesome issues. As to the second allegation, namely, that the employees were "laid off" ; and the fourth, that they were not reinstated until October 17, there is no con- troversy. The layoff is conceded ; that is in fact what the Respondents claim ; and that the Respondents did not reopen until October 17 is uncontroverted. The third allegation , to the effect that the employees were "discharged" is, as has been seen, factually unsupported. There was neither intent nor effect in the closedown to terminate the employment relationship . It is therefore found that the Respondents' employees were laid off and not reinstated , but that they were not discharged. The purposes or reasons for which the Respondents took their action are 'asserted in the complaint to be the following : ( 1) Because the employees "joined , assisted and supported the Union "; ( 2) because they "engaged in con- certed activities and other mutual aid and protection "; and (3 ) because they called a strike at Sole and Sanders. The first of these allegations I interpret as equivalent to charging animus because the employees adhered to a union organization. Such an allegation I find, for reasons already adverted to, with support in, indeed affirmatively contradicted by, the record. As to the second and third allegations : It is not denied, and it is in fact quite evident, that the shutdown was at least partially a consequence of the fact that the employees had engaged in concerted activities , that is, had struck Sole and Sanders for what they regarded as their mutual aid or protection. That the strike or concerted activities were a factor tending to produce the shut- down does not, however, necessarily make the former the proximate cause of the latter , nor ipso facto establish the illegality of the shutdown. These in fact are among the substantial factual and legal issues to be decided here. In sum, the issues, though superficially manifold , resolve themselves into one fundamental question : Under what circumstances and to what extent may an employer curtail operations as a consequence of union or concerted activity? Apart from his,allegation of discharge, which is found to be unsubstantiated, the General Counsel alleged in his complaint and contends in his brief that the Respondents "locked out" their employees ; that conduct assertedly constituting ,violations of Section 8 (a) (1) and (3) of the Act. One question raised, then, is what constitutes a "lockout"? A "lockout" has been defined at common law as the "cessation tby the em- ployer ] of the furnishing of work to employees in an effort to get for the em- ployer more desirable terms." Iron Molders Union v. Allis-Chalmers Co., 166 F. 2d 45, 52 (C. A. 7). See also Jeffery-DeWitt Insulator Co. v. N. L. R. B., 91 F. 2d 134, 137 (C. A. 4), and cases cited in 173 A. L. R. 675. Other authorities have defined it similarly : Millis and Montgomery, Organized Labor. Vol. III, p. 554; Gregory and Katz Labor Law, pp. 147-8; Webster's New International Dic- tionary, 2d Ed., p. 1450. Though the term has been often used in Federal legislation since the early 1930's, it has never been statutorily defined. See, for example, the first Senate draft of the Wagner Act, subsequently amended , S. 2926, 73rd Congress, 2d Session, original Senate print , which prohibited lockouts, and testimony in the Senate hearings thereon, reprinted in Legislative History of the Wagner Act, .U. S. Government Printing Office , 1949, at pp. 212, 406, 545, 570, 946; cf. Comments BETTS CADILLAC OLDS, INC. 283 .of Senator Walsh, 79th Cong. Rec. 7673, Legislative History, p. 2392 ; and see references to "lockouts" in Executive Order 9017, establishing the National -War Labor Board in'World War II, January 12, 1942; the Wai Labor Disputes . (Smith-Connelly) Act of June 25, 1943; and Sections 8 (d), 203, 206, and 208 of `the Taft-Hartley Act. Whether the term "lockout" as employed in those con- .-texts embraced the common law definition of the term, or instead was used generically 'to describe all voluntary closedowns, other than strike action, con- sequent upon a labor dispute, or was confined to shutdowns for economic or operative reasons, is not immediately evident in all instances, and is probably not necessary , for reasons to be adverted to, to decide here. The significant point is that the term is not statutorily defined, though statutorily used, an -omission possibly suggestive of correction. Usage of the term has consequently not been uniform. See for example, 50 'Col. L. R. 1123, Note 1: "lock-out" means terminating the employment of a group of em- ployees. [Emphasis supplied.] Frequently the . . . term is defined as the termination of employment of a group of employees in order to coerce them or restrain their activities. See Bankstone Creek Collieries v. Gordon, 399 Ill. 291, 299. . . . As used in this Note, however, "lock-out" is not confined to describing conduct designed to coerce. The Board does not appear to have defined the term, and Board decisions do -not reflect any consistent definition. Thus, concepts as widely separated as a closedown to avoid property loss (Duluth Bottling Association, 48 NLRB 1335) a cessation of operations because sporadic strikes interfered with efficient op- -eration (International Shoe Company, 93 NLRB 907) ; a shutdown in a fit of employer temper during an argument with a union representative and without purpose to interfere with union or concerted activity (Lengel-Fencil Co., 8 NLRB 988; and mass discharges in reprisal for union activity (Hopwood Retinning Co., 4 NLRB 922; Scott Paper Box Co., 81 NLRB 534) have been described as -"lockouts." On the other hand, shutdowns because of economic considerations have been found not to constitute "lockouts": Link-Belt Co., 26 NLRB 227, 261-4; 'Hobbs-Wall Co., 30 NLRB 1027; Worthington Creamery, 52 NLRB 121). Nor do the decisions reflect any invidious connotation in use of the term. Thus, in the Duluth Bottlinq, International Shoe and Lengil-Fencil cases the "lockouts" involved were found to be legal, whereas in the Hopwood and Scott cases they were found to be illegal. However, while the complaint does not affirmatively disclose the scope or content of the pleaded term "lockout," the General Counsel's brief indicates that his contention, in substance, is that the Respondents closed their service 'departments in anticipation of strike action or as a weapon against or in reprisal for the action of the employees in voting to strike, and in striking Sanders and 'Sole. , The Respondents' and the Intervenors' defenses are in the alternative. They assert that: (1) The shutdowns were not reprisals for or weapons against the .Union or concerted activity, but motivated purely by economic considerations ; and (2) that, in any event, it is not unlawful for an employer unactuated by union animus to refuse temporarily to provide work for his employees, if employee status is not adversely affected, in order to compel them to accept his terms in a purely economic dispute. In sum, that as thus defined the " )`ockou't" is merely the legal and economic equivalent of the strike and equivalently 'protected. - ` 284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. The applicable principles The Board has held that it is not unlawful for an employer to close down his plant in the face of a strike or other concerted employee activity if the close- down is motivated by economic considerations. See, for example, International Shoe Company, 93 NLRB 907. Since there is nothing per se unlawful in the shutting down of operations, the burden is upon the General Counsel to establish the existence of unlawful motivation. If therefore, that burden has not been sustained, it will be unnecessary to decide whether an employer may, under- the statute, engage in what the Intervenor National Automobile Dealers Asso- ciation appears to deem a common law lockout ; that is, may without adverse effect on employee status, refuse to provide work for employees in order to compel them to accede to his purely economic demands in a dispute over terms of em- ployment, where his action is not motivated by union animus or by a purpose of reprisal or penalty for their having engaged in self organizational or concerted activity. Obviously an employer may not discriminate against employees, whether by discharge or lesser change in employment conditions or status, merely because employees have exercised rights protected by the statute, regardless of whether his motives are economic or merely philosophic. See, as illustrative, Republic Aviation, 324 U. S. 793; National Broadcasting Co., 150 F. 2d 895, 900 (C. A. 2) ; General Motors Corporation, 150 F. 2d 201 (C. A. 3) ; West Virginia Glass Co., 134 F. 2d 551 (C. A. 4) ; Goodyear Tire and Rubber Co., 129 F. 2d 661, 664 (C. A. 5) ; Atlas Underwear Co., 116 F. 2d 1020 (C. A. 6) ; Hudson Motor Co., 128 F. 2d 528 (C. A. 6) ; Allis Chalin-ers Co., 162 F 2d,435 (C A. 7) ; Gluck Brewing Co., 144 F. 2d 847, 853-4 (C. A. 8) ; Idaho Potato Growers, 144 F. 2d 295,-302-3 (C. A. 9) ; Star Publishing Co., 97 F. 2d 465 (C. A. 9). The protected employee activities embrace not only the right to form and join unions, but encompass as well lawful action to assist them, and engagement in legal concerted conduct, such as strike or kindred activity, to influence the employer with respect to the establishment of terms and conditions of employ- ment. The Hoover Company, 90 NLRB 1614. In the language of Section 7, the guarantees extend to the right to "engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection . . ." And with reason. The privilege of joining a union would be a hollow one indeed if after organizing employees could not, without fear of reprisal,- take action designed to secure the objective of the affiliation, namely, the improve- ment of working conditions. Organization is merely the necessary condition to effective joint action ; the vehicle is of little use if one may not make the journey.' And union or concerted activity does not cease to be protected merely because it is, or may be, effective, or because it subjects the employer to economic hardship. ( See cases cited in text, supra.) On the other hand, engagement in such activity is not an absolute protection against adverse employer action. The conduct must be lawful ; here citation to authority is unnecessary. And even legal conduct is not an absolute shield : an economic striker may lose his job by replacement while he is on strike. Mackay Radio Co., 303 U. S. 333, 345. There is, of course, an obvious-perhaps critical- distinction between employer action designed to assure continuance of productive 'As Senator Robert F. Wagner said during the hearings on the Wagner Act : "While the bill explicitly states the right of employees to organize, their unification will prove of little value if it is to be used solely for Saturday night dances and Sunday afternoon picnics" (Senate Committee on Education and Labor, hearings on S 1958, p. 43, )March 11, 1935; Legislative History of the National Labor Relations Act, U. S. Government Printing Office, 1949, p. 1419.) BETTS CADILLAC OLDS, INC. 285, operations and that directed to shutting It clown. The former is consonant with the statutory purpose of achieving uninterrupted production; the latter recog- nizably at odds with it. Recognition of the useful right of an employer to take action consistent with a basic objective of the Act is not necessarily authority for his taking voluntary and uneconomically motivated action inconsistent with the, objective. But, as an employer is not required to close his enterprise because of strike action-though this omission may be in a factual sense a kind of interference with the effective conduct of a strike-neither is he required to continue it if the Union or concerted activity makes efficient operation impossible. While the right of common law lockout may not be the equivalent of the right to strike at all-a question not decided at this point 8-it does not follow that the employer caught in strike activity must be a sitting duck, stripped of his power to save him- self from attendant loss or operative disruption. He has, and needs, the right to protect himself by reasonable measures from harmful economic or operative consequences of a strike See, as-illustrative, Brown-McClarea Co., 34 NLRB 984; Worthington Creamery, 52 NLRB 121. While he may not close down for the purpose of frustrating the exercise of the employees' statutorily guaranteed rights, he may do so to protect his legitimate interests. A number of Board decisions provide guides for the disposition of the instant situation In the case of Ink-Belt Co, 26 NLRB 227, the employer closed down part of a shift. The reason for the shutdown was that a sitdown strike appeared to be imminent, and union sympathizers had excluded a supervisor from entering the plant during the shift. Charges of lockout were dismissed by the Board. There was no evidence of prospective economic loss. The apparent ground for decision was the likely difficulty of operation inherent in the absence of the supervisor and in the threat of strike. In the case of Hobbs-Wall Co., 30 NLRB 1027, a lumber union had a dispute with a lumber company. It notified the company that it intended to picket opera- tions unless agreement could be arrived at. As part of its operations the com- pany owned a ship which carried cargo to and lumber from the company's head- quarters, the situs of the threatened action. When the Union announced its intention to picket, the ship was lying off shore preparing to discharge freight and to pick up a load of lumber. The lumber union had previously agreed with the Longshoremen's Union, which was not involved in the dispute, not to picket the ship, but there was no evidence that this decision was conveyed to the com- pany. Because of the threat of picketing the company ordered the ship away without unloading. The Board found that this action did not constitute a lockout 8 ,An employer having, after genuine bargaining, reached an impasse with his employees over the question of what the conditions of employment shall be, has the power to establish them, at least within the limits of his proposals to the bargaining representative. N. L. R. B. v. Crompton Highland Mills, Inc, 337 U. S. 217. The employees have no com- parable power or authority. Viewed in this light, the strike is merely a compensating- and possibly inadequate-substitute by which the disparity in economic strength is sought to be reduced. Thus the lockout would be an aggressive, not a corrective device. Whether that view is correct can be decided when the question is reached. However, it is by no means clear either that the common law lockout is protected under the Act. The term "lockout" in Section 8 (d) may mean many things But even if it refers to the common law lockout, its presence in the Section is not necessarily indication that use of the device is legal under all circumstances not therein prohibited, any more than the validation of strikes after 60 days indicates an intent to legalize them in all other situations. In the Morand Bros. decision, 91 NLRB 409, the Board also pointed out that absolute legalization of the common law lockout would extend the area of industrial strife, and multiply the possibility of interruptions to commerce from labor disputes, a result in derogation of the statutory objectives. 286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the longshoremen. -Again there was no evidence of prospective economic loss, nor even indication of the extent of prospective operative disruption. In Duluth Bottling Assocsation, 48 NLRB 1335, the union struck one employer in a multiple-employer bargaining unit following a breakdown in negotiations for renewal of a bargaining contract. The remainder of the employers in the unit then closed down, telling the employees that the reason was the failure to reach agreement. At the hearing the employer asserted various economic grounds for the closedown. All were rejected by the Trial Examiner{ and the Board except one assertion to the effect that the employers anticipated a strike which might have resulted in the spoilage of syrup valued at $100 to $300. This justification the Trial Examiner and the Board accepted as adequate, and charges of lockout were dismissed. In the recent International Shoe Company case, 93 NLRB 907, the employer operated three integrated departments, and work interruptions in one depart- ment would impede operations in the others. The Union and the Company reached agreement on a bargaining contract including a maintenance-of-union- membership clause. To implement a contemporary campaign for union members the union conducted work stoppages in two departments. After the first stop- page the employer withdrew his maintenance-of-membership offer. After the second stoppage he closed the plant altogether and withdrew his entire offer. On the following day the union proposed reopening of the plant and resumption of negotiations. The employer declined to resume operations until the union had signed a contract. containing a no-strike clause and an "escape" period for union members who recently joined. Ultimately a contract was signed and the employer then reopened the plant. The Board unanimously held that the shut- down was dictated by lawful economic considerations. There was disagreement, however, as to whether the refusal to reopen except under the employer's condi- tions was legitimate. Three members, themselves differing as to the grounds for the holding, held it so. Two members dissented. These four cases, seemingly the most apposite here,e appear to me to warrant the following statement of principle applicable to cases of economic shutdown. An employer. is not prohibited from taking reasonable measures, including closing down his plant, where such measures are, under the circumstances, neces- sary for the avoidance of economic loss or business disruption attendant upon a strike. This right may, under some circumstances, embrace the curtailment of operations before the precise moment the strike has occurred. The pedestrian need not wait to be struck before leaping for the curb. The nature of the measures taken, the objective, the timing, the reality of the strike threat, the nature and extent of the anticipated disruption, and the degree of resultant restriction on the effectiveness of the concerted activity, are all matters to be weighed in determining the reasonableness under the circumstances, and the ultimate legality, of the employer's action. Manifestly, where there is no real strike threat, or when the Union has given reasonable assurances against a strike, or assurances of notice sufficient to avoid disruption, there is no objective °Two other cases seem deprived of their significance by reason of subsequent Board action. These are the decisions in Clayton and Lambert, 34 NLRB 504, 523-4, and Pepsi Cola Bottling Co., 72 NLRB 601. The Clayton decision has not been cited as authority by the Board in recent applicable situations, though there was clearly occasion to if the case were still regarded as persuasive. (See, for example. Duluth Bottling Association, supra ; Morand Brothers Beverage Co., 91 NLRB 409 ; and International Shoe Co., supra.) I construe this omission as depriving the Clayton decision of precedential force. The Pepsi Cola case, though cited in the opinion of two members of the Board in the Interna- tional Shoe case, does not appear to have met with the full approval of the . majority of the Board. BETTS CADILLAC OLDS, INC. 287 need for protective measures. By the same token, requirements as to notice may also vary from case to case. Obviously a produce merchant dealing in - perishable commodities, or a steel company requiring days of preparation for closedown; or the operator of a press-while-you-wait cleaning establishment, or a manufacturer of tombstones, are not in the same category. Some busi- nesses may reasonably require assurances of some kind or of differing kind with respect to the completion of work in the shop, others may need none. These are questions to be answered if and when they arise. The application of broad principles involving the balancing of factors whose weight, both absolutely and relatively, will vary according to the circumstances in which they occur, must necessarily await specific cases. We turn now to the application of those principles to the instant situation. 3. Whether the shutdown was a "lockout" Among his other contentions the General Counsel asserts, and the Respondents deny, that the Respondents did not shut down and refuse to accept further work for economic or operative reasons, but that instead they locked out the employees in reprisal for or to checkmate their strike or threatened strike activity. The burden of proof is upon the General Counsel to establish his allegations by a preponderance of the evidence. Since that issue resolves itself into a question of motive, and motive is not, like an act, an easily identifiable fact, it must be inferred from two factors-one testimonial, the other circumstantial. The testimonial element is the oral evidence of the dealers, as to what their purpose was. Such evidence, being largely impossible of direct contradiction, is in a certain sense self-serving, after the fact, and interested, and therefore subject to possible discount. The circumstantial factor involves scrutiny of the dealers ' acts and declarations at the time of the events, on the assumption that what a person does reflects his purpose more certainly than what he may say later. However, merely because testimony cannot be directly contradicted or directly disproved, it does not lose all probative force. The man is, after all, the primary authority as to what his state of mind is. And his affirmation as to what it was is not to be ignored merely because it is favorable to him and adverse to his opponent. Immunity from direct attack is a factor to be considered in assessing any testimony, but it is not to be easily presumed that self-interest or safety make perjury likely. And though the repetition of individual affirmation is not a conclusive clue to fact (Roane-Anderson Co., 82 NLRB 696), certainly the likelihood of the occurrence of distruth normally diminishes with the number of persons who attest to the fact. Allowances must, of course, be made for the possibility of honest self-deception when a witness' interests may be affected by his version as to what has happened before. Under the circumstances, the most satisfactory evidence as to motive is probably that which is not subject to the infirmity of bias-namely circumstantial. Virtually all the dealers and/or representatives of them testified. On behalf of the Respondents this testimony was, as nearly accurate as a generalization about so large a number of witnesses can be, in substance to the effect that their purpose in refusing to accept further work was to avoid the effect of the strike on their operations ; more specifically. in most instances, that they did not feel that they could continue to operate under the threat of possible imminent strike without assurances that work taken in would be completed ; and that they could not for business or public relations reasons risk having customers' cars tiedup. There are factors in the evidence which cast some doubt upon this testimony, and make the General Counsel's arguments not untenable. Thus, it is clear from 288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the testimony of the participants of the meeting at the Sanders home on the night of July 15, that the dealers discussed the question as to what, and if any, concerted measures should be taken to meet the strike threat ; and that among these measures was the possibility of a general shutdown in the event of a strike against part of the unit. Negotiator Derrick expressed his opinion there that a "strike against one was a strike against all" and that a general shutdown would be legal. It is significant, too, that there is no evidence that economic or operative difficulties were advanced at this meeting as a ground for shutting down. On the following morning, Saturday, all but 3, and by Monday all, of the 19 Respondents had closed. Some repeated to the employees Derrick's assertion that a strike against some was a strike against all. Some said that they "had to go along with the other dealers." Despite the uniform testimony to the effect that there was no concert of action, the conclusion that all 19 closed virtually contemporaneously and without consultation or understanding among them, while at the same time giving substantially the same explanations to the employees, is not wholly satisfactory. Such simultaneous unanimity of individual and un- rehearsed view among so large a group of independent business competitors whose individual' opinion, according to the testimony, is ordinarily unusually divergent, is not easily accepted. Matters to be weighed too, in support of the General Counsel's position are the absence of evidence of potential pecuniary loss likely to result from a strike without notice ; the failure of the Association to ask assurances of the Union-which was, after all, the bargaining agent ; the plausibility of the assertion that the dealers' public relations would be im- paired by an involuntary closedown, but preserved or enhanced by a voluntary one-a supposition not strikingly persuasive ; the evident pique which prompted the dealers committee to refuse to meet with the union negotiators after the strike until new cars needing servicing began to pile up and the closedown began to pinch the dealers ; and the assertions by dealers or their representatives from time to time to the effect that a "strike against some was a strike against all." On the other hand, other elements suggest that operative considerations were motivating forces in'producing the shutdown. In ascertaining purpose the situa- tion must be viewed from the position in which the dealers found themselves on July 15 and 16. In the first place there was reasonable expectation of a strike against any or all of them after July 15. It has been seen that the Union had received authorization from the International permitting a strike if no agreement could be reached This news reached the dealers, and during the week of July 15, they began to curtail the acceptance of any but routine work in anticipation of a possible strike. The Respondents cannot be accused of not having made efforts to avoid a work stoppage. They bargained in good faith right up to the eve of the strike, made concessions, and finally abandoned all their proposals for revisions of the contract and offered to renew the old agree- ment. It seems evident from the tenor of the negotiations on July 15 that the Association representatives were anxious to reach agreement before the expira- tion of the old contract and avoid a strike. When O'Connell informed Derrick, on the night of July 15, of the Union's rejection of the Association's last offer, the situation was ripe for a strike. O'Connell's next statement to Derrick, in response to the latter's query as to what was going to happen, indicated that there would be strike action, but carefully concealed when it would take place. In addition it suggested that the action might not be against all the dealers, or might occur at different- times. Understandably then, the dealers met that night to discuss the situation. View- ing the prospect from their standpoint each could reasonably conclude that he -might be struck at any moment, whenever the Union deemed him strategically most vulnerable. The information that Sanders and Sole would be struck the BETTS CADILLAC OLDS, INC. . 289 next morning was reasonable evidence that the strike would be piecemeal. But, even if the dealers accepted it as true, that news did not lift the threat from the other 19: Moreover, anyone familiar with strike strategy would accept such intelligence with caution. It could have been planted for the purpose of decep- tion. Some dealers refused to believe it, some said there would be no strike on Saturday because, they reasoned, the Union would not strike on a premium payday. Others said that there would be no strike at all, that the Union would call over the week end and offer to continue working and negotiating if the deal- ers would make the agreement retroactive. Others said that even if there were a strike, it would not be piecemeal, but against every dealer. That-the dealers should have been confused and of differing opinion is not at all unnatural. It was this very confusion that the Union was probably trying to create. It is therefore not implausible at all under the circumstances, but on the contrary quite possible, that the conference at the Sanders horse broke up without any decisions having been made except,to wait to see what happened on Saturday morning. Nor is it surprising that the dealers should have discussed the advisability of a general shutdown. Quite obviously the continuation of operations with a strike threat hanging over their heads which might eventuate in a stoppage at any moment presented operating difficulties. The bulk of the service work is completed the same day it is received. Usually cars are brought in during the early hours of the morning. A strike coming at a moment when the shop was full of vehicles in various stages of dismantlement, could not fgil to result in an obvious inconvenience to the dealer as well as to the customer, and one ,c;trcciv so iniinites.inal as not to justify conieru The automobiles were, it must be remembered, not the property of dealers but of third persons, and the dealers' responsibility presumably that of a bailee. It does not require an assumption that the Respondents had any immoderate concern for the public welfare to warrant the conclusion that they had a genuine interest in forestalling the tying up of customers' cars. During the week prior to the strike they had already begun to refuse to accept major work which they might not have been able to complete before July 16. That is sufficient indication that the possible tie-up of the work in a strike situation was a matter of operating concern and not an afterthought contrived at the time of the shutdown. That there is no evidence of specific pecuniary loss or damage to the Respondents' property likely to result from a "quickie" strike is not critical in the circumstances of this case, though it might be in others. There was no such evidence in the Link-Belt and HobWWall cases, supra. Moreover, the goods of a service customer, for which one has a definite and rather inclusive responsibility, may not unreasonably be subjected to less voluntary risk than might be imposed on one's own. It cannot be said, either, that no prejudice would result from a sudden strike without notice for the reason that the cars would not be harmed ; that if they could be driven in they could be driven out. That would be true only of vehicles that were not dismantled for the purpose of repair. If dismantled it might be difficult, maybe impossible, to ^aul them to another shop. Moreover, the inde- pendent repair shops in the city were also negotiating for renewal of a contract with the Union which had expired at the same time as the Association's. The International Union had authorized the Local to strike them, also, at the same time For all the dealers knew to the contrary on July 15 and 16 the inde- pendents might be struck too 10 'a As a matter of fact, the Union did strike 3 of the 23 independents in August , at dif- ferent times and without advance notice On August 16, 19, and 22 This piecemeal strategy supports the assertion that the Respondents were not unreasonable in July in concluding that they night be struck at any moment and in staggered fashion, 290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is, of course, true that the evidence does not disclose any mention of these factors at the Sanders meeting, a fact obviously not supportive of the conclusion that economic or operative considerations were troubling the dealers that night. And if there were no other persuasive evidence indicating concern on that subject at the time of the shutdown , the conclusion would probably be justified, despite the testimony , that such matters played no part in the decision. There is other evidence, however : There had been previous curtailment of acceptance of work in preparation for strike action , and operative considerations were advanced to the employees the next morning as a basis for the shutdown. On the morning of July 16 the.strikes occurred at Sanders and Sole. The Re- spondents were then preparing to open for business , and a decision had to be made as to whether to accept work or not. The fact that their employees were prepared to go to work established to the'Respondents that they would not strike immediately, but was no assurance as to whether or when they might. There is no evidence that the Respondents knew more of the Union 's decision than what had been conveyed to them the night before. And the Union was careful not to enlighten them Though the General Counsel argues, in his #brief , that the ap- pearance of the pickets at Sanders and Sole, and of the employees at the Re- spondents' shops, made clear that no further immediate action was contemplated, it did little more than that. It is one thing to make a decision when in possession of all the facts ; quite another to make it when the facts are concealed . As it could reasonably appear to the Respondents on the morning of July 16, there were a number of different possibilities of future action by the Union : (1) There would be no further strikes; (2) there would be no further strikes that morning; (3) there would be further strikes against all dealers ; (4) there would be further strikes against some of the dealers. ( 5) If there were further strikes they might come at any time and against any of them. But the possibility of more strikes was no figment of the imagination. Under the circumstances, it cannot be said to have been unreasonable business judgment to conclude that the wisest course would be to close down. .4 fortiori, then, it was not inappropriate to attempt to ascertain whether, if work was taken in , it would be completed . The obvious question at this point is, why did some of the Respondents ask the employees , instead'of the Union? For this omission there is no satisfactory explanation, but the failure does not appear fatal under the circumstances . For, in truth, the Union had al- ready stated its position-there might be more strikes at any moment. In any event, the important fact is that the bulk of the dealers suggested to the employ- ees, in substance , that the imminence of strike action and uncertainty with respect to the completion of work impelled them to close . At no time thereafter, though they certainly must have learned of the Respondents' statements to the employees and undoubtedly read the Tribune 's July 16 account of the interview with Betts, did the union officials seek to reassure the dealers, except in the case of Means. In some shops the employees specifically told their employers that no notice of walkout would be given ; they would have to go out whenever the Union called them. The Union thus put the Respondents in a perplexing position. If the latter's judgment of the situation was inaccurate the Union , knowing of the quandary , could easily have dispelled it. The Union 's failure to take any such ac- tion requires the conclusion that the Respondents' evaluation was correct, and that the Union intended to keep most of them in the difficult position of attempt- ing to operate under the threat of a strike at any moment . Assurances of comple- tion of work on the floor would not have substantially interfered with the strike. As has been seen, 95 percent of the work taken in is finished the same day, and it is the rare job that will require more. BETTS CADILLAC OLDS, INC. 291 I think it not unreasonable, under the circumstances, for the Respondents to have desired assurance as to completion of work before they committed them- selves'and took any in. What seems to me the critical factor here, on the issue, of proof, is that the Union did not give the commitment it must have known the Respondents asserted they wanted. Had it done so, and the Respondents had nevertheless closed, the conclusion would have been required that the closedown was not for operative reasons. The facts were thus left in an equivocal state. In such a circumstance they should probably be evaluated against him who pro- duced and who could have avoided the situation. The evidence does not disclose that at any time thereafter the Union protested the closedown or sought to allay the Respondents' apprehension that they might be struck at any moment. Under the circumstances the only conclusion that can be drawn is that the Union's strategy, except in the case of a small operator like Means, was to keep the Respondents off balance with the threat of momentary strike hanging over their heads at all times. While some union witnesses testified that they understood from the union meeting of July 15 that 5 days' notice would be given before any further strikes were called, there is no substantial basis in the record for such a conclusion. In any event, except in the case of Means, no such understanding was conveyed to the Respondents. Moreover, that understanding was not generally held by union members. It will be noted that in many cases the employees indi- cated to their employers that a strike might come at any moment. The correct- ness of that conclusion is not affected by the Tribune newspaper story of July 16 attributing to Union Business Agents Brand and O'Connell the statement that "the only strikes that have been called are against Howard Sole, Inc., and Sanders Motor Co., and no strikes have been called against any of the other Des Moines dealers and none is anticipated at this time." The statement scarcely constitutes an assertion that other strikes might not be called at any moment. Concededly there was nothing unlawful in the Union's strategy, and it was en- titled to pursue it; but having apparently set out to produce an uncertain operat- ing situation it cannot complain now because it succeeded, or be heard to say that it should not have been taken seriously. These circumstantial factors indicate that operative difficulties were a sub- stantial consideration in motivating the shutdown. The situation that confronted the Respondents was put thusly in the testimony, on cross-examination, of How- ard Howlett, of O'Dea Chevrolet, and president of the Dealers Association at the time of hearing : ,A. Well, as I see it, whether it was my place of business, our operation, or what operation it was, you can't carry on a service business in an auto- mobile concern in a half-way manner. You can't afford to-it is tough enough to do business and keep everybody happy, all of your customers, without running a chance of tearing down 15 or 20 automobiles and then find yourself out on strike at 11: 30. So in my opinion as I looked at it there was only two alternatives, you either gamble with peoples' automobiles and money or you close up, one or the other. A. Well, I will answer your question this way. I will go back to what I said a few minutes ago. There is only two alternatives. Naturally, you wouldn't work your men until half past 10 and then decide to close down your shop. You can't operate an automobile business that way. Neither would you operate your business until 2: 30 in the afternoon of the same day and then decide to close. You can't do that way either. Therefore, you have to decide to either do business or not do business at the start of a day or the start of a week. You are going to do one of two things, you are 292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD going to operate, run a chance of having your men called out on strike at any hour or you are not going to take in any work and not operate, one or the other. In my opinion that would be the reason that some of them did the same thing at approximately the same time. In my opinion these operative factors were, in the circumstances, sufficiently 'hdequate and substantial as a matter of law to have impelled and warranted a 'reasonably prudent person to have considered shutdown, arld to justify it. This is not to say that it would be so under every circumstance or in every busine§s. The validity of the justification must inevitably be determined on a case-to-case basis. It is thus my judgment that, wholly apart from the ''self-serving" testimony 'of the Respondents as to their purpose, there is substantial circumstantial evidence that these operative considerations were factors producing the close- down. That is not to say there is no evidence from which it can be inferred that the shutdown was also motivated by desire to checkmate the Union's piece- meal strike strategy. On balance, though, it is nay opinion that the General Counsel has not sustained the burden of proving thesoperation of such a factor by a fair preponderance of the evidence. The statements of several of the Respondents to the effect that a strike against some of them was a strike against all, are some support for the General Counsel's position, but in the circumstances scarcely conclusively so. In a sense the strike was directed against the whole Association. And the Respondents' recognition or iteration of that fact does not necessarily establish the invalidity of their conduct. Nor does the dealers' evident resentment of the strike, as evidenced by their refusal to attend the negotiating sessions in person for a period after July 16, constitute convincing evidence of union animus. That action, in truth, had something of the aspect of unadult spite, but it is humanly understandable that there might have been vexation. The dealers did continue to bargain by authorized representatives, and I am not persuaded from the circumstances that their temporary pique reflected anything more sinister. As to the allegation of refusal to reinstate, the Union never made a clear-cut request which the Respondents refused for reopening the shops, at least under circumstances indicating a willingness, express or implied, to continue working for any period of tinie Though the employees presented themselves at the shops each morning for some days after July 16, they gave no indication either that their position as to the impermanence of their presence had changed. Hence I find no refusals to reinstate violative of the statute." I have not overlooked the fact of relatively simultaneous closings Despite the testimony, it is my judgment that in the circumstances the action of the Respondents, undisclaimed and indeed evidently adopted by the Association, was so related in time and purpose as in effect to constitute concerted action. Roane- Anderson Co, 92 NLRB 696; U. S. v. Railroad Trainmen, D C. Northern Dist., Ill. Feb. 0, 1951, 27 L.R.R.M. 2308; Jaffee v Newspaper & Mail Deliverers Unto),?, D. C Southern Dist. N Y., April 10, 1951. Indeed some dealers indicated to the employees when closing down that the action was in concert. As I have,pre- viously suggested, however, such a finding does not establish per se the illegality of the conduct The action of the Respondents having been substantially con- certed, the case against Means Motor Company is to be weighed in the same scale with the others, not in isolation, and with the same result "Compare International Shoe Company, 93 NLRB 907, where a majority of the Board found the employer justified in continuing a general shutdown caused by sporadic strikes even though the Union coupled specific requests to reopen with an agreement to engage in no further strikes GEORGE B. PECK'S, INC. 293 In view of my conclusion that the General Counsel has not proved that the shutdown was motivated by other than economic considerations, it follows that the allegations of unfair labor practices have not been sustained, and that the complaint should therefore be dismissed in its entirety. It is therefore unnecessary to consider the question, ably briefed by counsel for the National Automobile Dealers Association, whether the Respondents would have had the right to shut down if motivated by the desire to compel the Union to submit to the Association's terms for settlement of their economic dispute. Counsel for the Respondents, and counsel for the National Automobile Dealers have submitted proposed or requested findings of facts, along with their briefs. All findings proposed by the National Automobile Dealers Association are ac- cepted. With respect to the findings proposed by the Respondents, findings 12 and 13 are rejected. Findings 3 and 4 are accepted with the qualification that the record does not support by substantial evidence the contrary of the facts proposed. All other findings requested by the Respondents are accepted. Recommendations It is recommended that the complaint against the Respondents herein be dismissed in its entirety. Betts Cadillac Olds, Inc. et al. Cases Nos. 18-CA-124-142 Since the within report was written and approved for issuance, the Board, on May 3, 1951, issued its decision in the case of Davis Furniture Co., et at., 94 NLRB 279, apparently disposing of some of the legal issues raised or adverted to in the instant case. Briefly, the Board held in the Davis case that a layoff of employees, unaccompanied by adverse effect on employee status, by 11 em- ployer members of an association-wide bargaining unit, because the union representative in that unit had struck one of the members after a bargaining impasse, constituted violations of Section 8 (a) (1) and (3) of the Act. The union there did not threaten to strike any other member of the association. Assuming the validity of my factual findings, the Davis decision does not appear to affect the ultimate conclusions reached in the Betts Intermediate Report. MAY 4, 1951. GEORGE B. PECK'S, INC . and AMALGAMATED CLOTIIING WORKERS OF AMERICA, C. 1. O., PETITIONER . Case No. 17-I?C-1056 . September t1, 1951 Decision and Order Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Eugene Hoffman, hear- ing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. 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, Murdock, and Styles]. 9d NLRB No. 42. 974176-52-vol. 9C- - -21)