Spencer Auto Electric, Inc.

National Labor Relations Board - Board Decisions

Jun 4, 1947

73 N.L.R.B. 1416 (N.L.R.B. 1947)

In the Matter of SPENCER AUTO ELECTRIC , INC. and OFFICE EM-
PLOYES INTERNATIONAL UNION LOCAL 46 (A. F. or L.)
Case No. 10-C-1838.-Decided June 4,1947
Mr. John C. McRee, for the Board.
Shackle f ord, Farrior & Shannon, of Tampa, Fla., by Messrs. R. W.
Shackle f ord and Baya M. Harrison, Jr., for the respondent.
Mr. J. 0. Bloodworth, Jr., of Tampa, Fla., for the Union.
Mr. Paul Bisgyer, of counsel to the Board.
DECISION
AND
ORDER
On November 22, 1946, Trial Examiner Irving Rogosin issued his
Intermediate Report in the above-entitled proceeding, finding that
the respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the In-
termediate Report attached hereto. Thereafter, the respondent filed
exceptions to the Intermediate Report and a supporting brief.,
The Board has reviewed the rulings of the Trial Examiner and
finds that no prejudicial error was committed. The rulings are hereby
affirmed. The Board has considered the Intermediate Report, the
exceptions and brief, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommendations of the Trial
Examiner with the exceptions, modifications, and additions noted
below.
1. We agree with the Trial Examiner's finding that the respondent
interfered with, restrained, and coerced its employees, in violation of
Section 8 (1) of the Act. As more fully discussed in the Intermediate
Report, the prohibited conduct occurred over a 2-week period during
the initial stages of union activity among the respondent's employees,
and consisted chiefly of the following acts and statements of General
I By letter dated January 13, 1947 , the respondent withdrew its prior request for oral
argument before the Boaid.
73 N. L. R. B., No. 245.
1416
SPENCER AUTO ELECTRIC , INC. 1417
Manager Spencer , and of employee Beasley at his behest :v (a) in-
structing Beasley to check and report upon the employees ' organiza-
tional activities ; (b) Beasley's consequent efforts to acquire the
requested information and the identity of employees who attended
the December 21, 1945, organizational meeting; (c) interrogating em-
ployee Rickard on December 28 as to whether she had joined the
Union, and intimating that a contemplated raise had been jeopardized
by her membership therein; ( d) interrogating employee Childers on
the morning of the December 29 walkout concerning the employees'
union activities , warning her that employees had been discharged
for "agitation" and, apparently further to dissuade her from joining
the Union , impressing upon her that it was the respondent 's custom
to give wage increases twice a year ; ( e) questioning Zaborowski, a
striking employee , during her interview for reinstatement on Janu-
ary 9, 1946 , concerning her union views and the walkout , and as to
whether Harte was "the ringleader," and informing her that her walk-
out, without notifying the respondent , had caused her to lose her job;
(f) similarly , in effect, reminding Jones, another returning striker,
during her interview that absence from work without notice resulted
in discharge ; and (g ) requiring a personal interview as a condition
for reinstatement of the striking employees , in derogation of their
rights under the Act 3
2. The Trial Examiner found that the respondent , in violation of
Section 8 (3) and ( 1) of the Act , discharged employee Harte because
of his union activities and not, as the respondent contends , because of
his inefficiency and incompetence . We agree. That Harte's asserted
shortcomings were not the reason motivating his dismissal, but
were merely a pretext for eliminating the known leader of the union
movement at the respondent 's place of business , is apparent from the
evidence detailed in the Intermediate Report. Thus , shortly after the
Union appeared and requested recognition , the respondent , without
any provocation on Harte's part, summarily terminated his employ-
ment on December 28, 1945.4 Although the respondent asserts that it
decided upon this action about December 1, before the inception of
union activity , no notice or prior warning was given to Harte, as
2 Although, as the Trial Examiner found, the record does not establish that Beasley was a
supervisory employee within our customary definition , we find that , inasmuch as her acts
were performed under General Manager E . W. Spencer 's instructions, the respondent was
accountable therefor
3 We, unlike the Trial Examiner, do not find that the respondent ' s refusal to recognize
the Union , under the circumstances herein, constituted an unfair labor practice or was
indicative of opposition to the Union.
4 The testimony of "Spencer" mentioned in footnote 32 of the Intermediate report, is
intended to refer to that of Assistant Manager Arthur Spencer.
1418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would reasonably be expected if the respondent had in fact made its
decision on December 1 or if inefficiency were the true motive for the
discharge; in fact, there is no satisfactory explanation for the re-
spondent's failure to defer the dismissal until the first of the year
when, according to the respondent, Harte had notified it that he would
quit, or until January 5, the end of his normal work period. The
respondent's explanation of its hasty action on the ground that it had
obtained a replacement the day before the discharge is, as the Trial
Examiner found, unconvincing. For not only is the absence of any
prior notice or warning not thereby adequately accounted for, but also
the evidence clearly discloses that there were sufficient jobs for the new
employee as well as Harte, and that the respondent was then experi-
encing a serious labor shortage. Nor is the respondent's assertion,
that its decision to terminate Harte's employment antedated Harte's
union activity, borne out by the record, inasmuch as only 2 weeks after
its alleged decision and before the employees' interest in self-organiza-
tion, the respondent concededly printed business cards bearing Harte's
name. This belies any prior determination to dispense with Harte's
services.
We are further persuaded that Harte's discharge was discrimina-
torily motivated by, among other things, General Manager E. W.
Spencer's statement to employee Childers on the morning after the
discharge, when the employees walked out in protest, that he had "to
let" Harte and another employee "go" because of "a little agitation
around here"; his inquiry of employee Zaborowski, during her inter-
view for reinstatement on January 9, whether Harte was the "ring-
leader" of the walkout, and his statement that no union was needed;-
his outburst at Harte, as the latter was leaving the respondent's place
of business after being notified of his discharge, to "get the hell out of
here-you have caused enough trouble as it is," simply because Harte
remarked to another employee, "Well, this is it"; and, finally, the
respondent's general anti-union attitude reflected in its coercive con-
duct outlined above.
While the record contains evidence-much of which is probably
exaggerated-that Harte was not an entirely satisfactory employee,
we are, nevertheless, convinced by all the facts and circumstances
herein, that Harte was not discharged for that reason. It is clear
that, notwithstanding his asserted shortcomings, the respondent was
content to continue Harte in its employ until it learned of the promi-
nent role he played in organizing its employees. We have uniformly
recognized that "an employer may discharge an employee for good
reason, a poor reason or no reason at all so long as the provisions of
the National Labor Relations Act are not violated." s However,
where, as here, anti-union considerations precipitate the discharge, we
5 Edward G. Budd Manufacturing Company v N L. R. B, 138 F . ( 2d) 86, 90 ( C. C. A. 3).
SPENCER AUTO ELECTRIC, INC. 1419
have found, and the Courts have agreed, that such a discharge is dis-
criminatory and prohibited by the Act, even though valid reasons exist
which might warrant this,action.s
Accordingly, we find, as did the Trial Examiner, that the respondent
discharged Harte because of his union activities, and thereby discrimi-
nated in regard to his hire or tenure of employment to discourage
membership in a labor organization, in violation of Section 8 (3) of
the Act.7 We also find that by such conduct the respondent interfered
with, restrained, and coerced its employees in the exercise of the rights
.guaranteed in Section 7 of the Act, and thus violated Sectiofi 8 (1)
thereof. Whether the respondent's discriminatory conduct be viewed
as a violation of Section 8 (1) or Section 8 (3) of the Act, we find
that effectuation of the policies of the Act requires the remedy set forth
below 8
3. We agree with the Trial Examiner that the December 29, 1945,
walkout was caused by Harte's discriminatory discharges We also
find, as the Trial Examiner apparently did, that the respondent dis-
criminatorily refused to reinstate three returning strikers,", who un-
conditionally applied for reinstatement on January 9, 1946, a day
after the conference attended by the respondent's attorneys, the union
representative and a Federal Conciliator, wherein the union repre-
sentative announced the termination of the strike and that the strikers
were going to return to work.
The respondent, although not disputing the strikers' unconditional
application for reinstatement, in effect contends, in defense, that they
were not entitled to their jobs because their activity was not protected
°Matter of Tualatin Valley Cooperative , Incorporated , 72 N L R B 907 , Matter of
The Life Insurance Company of Virginia , 65 N L R B 1140 , Matter of Carl L No) den,
Inc, 62 N. L . R. B. 828, Matter of English Freight Company, 61 N L It B 375, enf'd 152
P 2d 756 ( C. C A 10 ) , Matter of Johnson Bronze Company, 57 N L R B 514 , enf'd as
mod 148 F. 2d 818 (C C. A. 3) , Matter of Allen Boat Company, 52 N. L R B 751,
Matter of Oklahoma Transportation Company , 50 N. L R B 907 , enf'd 140 F 2d 509
(C C. A. 5) ; Matter of Columbia Products Corporation , 48 N. L R B 1452 , enf'd 141 F 2d
687 (C C A. 2 ) ; Matter of Edward G Budd Manufacturing Company , 41 N L R B 872,
enf'd 138 F. 2d 86 (C C A 3) ; cert den 321 U S 773
7 We find , contrary to the respondent 's contention , that the unlawful purpose to discour-
age membership in the Union is plainly inferable fiom the fact of Haite's discharge for
activity on behalf of the Union, as well as fiom the other evidence in the case Such
discrimination necessarily discourages union membership-at the very least that of the
discharged employee " N. L. R B v J. G Boswell Company, 139 F. 2d 585, 596, (C C A.
9), cited with approval in N L R B v Malt Disney Productions, 146 F 2d 44 (C C. A 9)
and N L R B ', Brenner Tanning Co , Inc , 141 F 2c1 62 (C C A 1)
8 See, for example. N L R B. v Hymie Schwartz d/b/a Lion Brand Manufacturing Com-
pany, 146 F 2d 773 (C C A 5). enf gas mod 55 N L R B 798
We do not find , as did the Trial Examiner , that the December 29 walkout was also
caused by the respondent 's denial of recognition to the Union and its interrogation of
employees.
11 As discussed in the Intermediate Report, of the four striking employees, Neta Rickard,
Ethel Zaborowski, Margaret F Childers, and Lilah D Lagrew, who unconditionally applied
for reinstatement on January 9, only Zaborowski was reinstated because she submitted
to the personal interview discriminatorily imposed by the respondent as a condition of
reinstatement. A fifth striker , Johnnie Jones, who submitted to a personal interview the
following day , was also reinstated
1420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
concerted activity and that, even if it were, they forfeited their right to
reinstatement by failing to submit individually to a personal interview
by General Manager E. W. Spencer. We have examined these con-
tentions and find them to be without merit. The record is clear, and we
find, that the employees in question did engage in group action in pro-
test against the unlawful discharge of a fellow employee and, whether
this conduct is called a strike, a walkout, or merely concerted activity,
it was protected under the Act. Nor was this protection lost because of
their failure to give the respondent advance notice of their demand
for Harte's reinstatement .l At any rate, there is no question that, at
least when they reported for work and were denied reinstatement, the
respondent was aware of the purpose of the strike.
With respect to its second contention, the respondent seeks to justify
the imposition of a personal interview as a condition for reinstatement
on the ground that it desired to speak to the returning "employees
separately rather than in a group" for the reason that, on the occasion
of the walkout, they left without notice to the respondent, thus violat-
ing an established plant rule. Obviously, the purpose of the personal
interviews was not merely to secure future observance of a plant rule,
for that could equally well have been achieved by immediately re-
instating the returning strikers, as a group, and directing their atten-
tion to the plant rule I'- It is clear, however, not only from the necessary
implication of its argument and its answer to the complaint, but also
from the facts and circumstances of the strikers' application for rein-
statement, that the respondent required the individual interviews be-
cause it considered the strikers new employees who had forfeited their
former employment status by striking, and because it intended thereby
to impress this fact upon them. Thus, the respondent did not replace
the strikers' time cards in the racks before they reported for work, even
though it was apprised that they were returning; Assistant General
Manager Fred Spencer told the returning strikers that they were no
longer in the respondent's employ; and General Manager E. W.
Spencer indicated to Zaborowski and Jones, during their interviews for
reinstatement, that their failure to report their absence had resulted in
discharge.
The respondent's treatment of the returning strikers and its at-
tempted justification are based upon a misconception of its obliga-
13 See Home Beneficial Life Insurance Co , Inc. v. N. L R B , 159 F. (2d) 280 (C C A
4), enf ' e as mod 69 N L R. B. 32, where the Fourth Circuit Court of Appeals held
that a discharge of strikers was, nonetheless , unlawful , even though the employer at
the time of the discharge was unaware of the strike.
12 The record discloses that Rickard , one of the strikers who applied for reinstatement
on January 9, had not violated any company rule. According to her uncontradicted
testimony which we credit, she was out sick on December 29, the day of the walkout,
having obtained permission to leave the plant the day before, and she telephoned "Mr.
Spencer" that she would remain away from work because of her "sympathy with the
strike."
SPENCER AUTO ELECTRIC, INC. 1421
tions under the Act. As we have already noted, the strikers were
engaged in protected concerted activity for which they could not law-
fully be discharged or punished. Under the express provisions of
Section 2 (3) of the Act, they retained their status as employees.
Therefore, when they abandoned their strike, the respondent was duty-
bound to reinstate them on application. It could not, as it endeavored
to do, deprive the strikers of their collective protection at a time when
they required it most, namely, at the abandonment of what was to
them an unsuccessful strike, by isolating each applicant from the group
and treating each application on an individual basis. Such conduct
amounted to a denial of their continued employee status and of the
right to group reinstatement which they enjoyed'13 and served to
penalize the strikers for their concerted union activity in striking.
Under the circumstances, we find that the requirement of a personal
interview constituted an unlawful condition for reinstatement; 14 by
failing to reinstate the returning strikers who refused to comply with
this condition, the respondent discriminated against them.
Accordingly, we find that the respondent on January 9, 1946, dis-
criminated in regard to the hire or tenure of employment of Rickard,
Childers, and Lagrew, thus discouraging membership in the Union,
in violation of Section 8 (3) of the Act. We also find that, by such
conduct and by unlawfully conditioning their reinstatement, the re-
spondent interfered with, restrained, and coerced its employees in
the exercise of the rights guaranteed in Section 7 of the Act, and
thereby violated Section 8 (1) thereof. Whether the discriminatory
conduct is viewed as a violation of Section 8 (3) or of Section 8 (1) of
the Act, we find that effectuation of the policies of the Act requires the
remedy set forth below.
THE REMEDY
We have found that the respondent violated the Act by, among other
things, interrogating its employees concerning their union member-
ship and activities, and the identity of members and the leaders of
the Union, by instructing an employee to check and report upon the
employees' organizational activity, by intimating that contemplated
wage increases were jeopardized because of the employees' union ac-
tivity, by warning that it discharged employees for "agitation" and
for striking without prior notification of their demands, and by requir-
ing striking employees to submit to a personal interview as a condi-
11 Matter of Draper Corporation , 52 N L R B 1477, set aside on other grounds, 145 F.
2d 199 (C C A. 4) ; Matter of Rapid Roller Company, 33 N L. R B 557, enf'd as mod.
126 F. 2d 452 (C. C. A 7), cert denied, 317 U S. 650; Matter of Good Coal Company, 12
N. L R. B. 136, enf'd 110 F. 2d 501 (C C. A. 6), cert denied 310 U S. 630, Matte of
Sunshine Mining Company, 7 N L R B 1252, enf'd 110 F 2d 780 (C. C. A. 9), cert.
denied 312 U S 678, Matter of American Manufacturing Company, 5 N L. R B 443
14 The unlawful character of this condition was not, under the circumstances, nullified
by the respondent's invitation to Bloodworth , a union official , to attend the personal
interviews, a fact apparently not communicated to the returning strikers.
1422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion for reinstatement . In addition , the respondent actually penalized
a number of employees for their organizational and concerted activ-
ities , by discriminatorily discharging one of them and refusing to
reinstate , on application , other employees who engaged in a strike,
without a personal interview . Such discrimination , in the language
of the Circuit Court of Appeals for the Fourth Circuit, "goes to the
very heart of the Act." 15
Upon the entire record, we infer and find that the respondent's
illegal activities , mentioned above, disclose an intent to defeat self-
organization and its objects, and an attitude of opposition to the pur-
poses of the Act. Because of the respondent 's unlawful conduct and
the underlying purposes manifested thereby, we are convinced that
the unfair labor practices found are persuasively related to the unfair
labor practices proscribed by the Act, and that danger of commission
in the future of any or all of the unfair labor practices defined in the
Act is to be anticipated from the respondent 's conduct in the past.
The preventive purposes of the Act will be thwarted unless our order
is coextensive with the threat 16 In order , therefore, to make effective
the interdependent guarantees of Section 7, to prevent a recurrence of
unfair practices , and thereby minimize industrial strife which burdens
and obstructs commerce, and thus effectuate the policies of the Act, we
shall order the respondent to cease and desist, not only from the unfair
labor practices herein found, but also from in any other manner inter-
fering with , restraining , or coercing its employees in the exercise of
the rights guaranteed in Section 7 of the Act, and to take certain
affirmative action designed to effectuate the policies of the Act.
Having found that the respondent discriminated in regard to the
hire and tenure of employment of Charles B. Harte, we shall order
the respondent to offer him immediate and full reinstatement to his
former or a substantially equivalent position ,17 without prejudice to
his seniority or other rights and privileges , and to make him whole
for any loss of pay he may have suffered by reason of the discrimina-
tion against him, by payment to him of a sum of money equal to the
amount which he normally would have earned as wages from the date
of his discharge to the date of the respondent 's offer of reinstatement,
less his net earnings 18 during said period.
11 N L. R. B. v. Entwistle Manufacturing Co. 120 F 2d 532, 536 (C. C A 4) See
also N L. R B v. Automotive Maintenance Machinery Co , 116 F 2d 350, 353 (C C A 7)
'ON L R B. v Express Publishing Company, 312 U. S. 426, May Department Stores
Co v N L R B, 326 U S 376
11 In accordance with the Board's consistent interpretation of the term, the expression
"former or a substantially equivalent position" is intended to mean "former position
,,vlienever possible, but if such position is no longer in existence, then to it substantially
equivalent position " See Matter of The Chase National Bank of the City of New York,
San Juan, Puerto Rico Branch, 65 N L R B 827, 829
11 By "net earnings " is meant earnings less expenses , such as for transportation, room,
and boar d , incurred by an employee in connection with obtaining work and working
SPENCER AUTO ELECTRIC, INC. 1423
We have also found that the strike which began on December 29,
1945, directly resulted from, and was prolonged by, the respondent's
unfair labor practices. We shall, therefore, order the respondent to
offer Neta Rickard, Margaret F. Childers, and Lilah D. Lagrew, the
striking employees who applied for reinstatement on January 9, 1946,
and, on application, the other striking employees who have not pre-
viously applied for reinstatement, immediate and full reinstatement
to their former or substantially equivalent positions, without prej-
udice to their seniority or other rights and privileges, dismissing, if
necessary, any employees hired since December 29, 1945, to replace
them. Inasmuch as Rickard, Childers, and Lagrew were discrimi-
nated against when they were denied reinstatement on January 9,
1946, we shall also order the respondent to make them whole for any
loss of pay they may have suffered by reason of the discrimination
against them, by payment to each of them of a sum of money equal to
the amount she normally would have earned as wages from January
9, 1946, the date of the discrimination against her, to the date of the
respondent's offer of reinstatement, less her net earnings during said
period. With respect to the striking employees who have not pre-
viously applied for reinstatement, we shall provide that each employee
whose application is denied by the respondent, in violation of the
Order issued herein, shall be entitled to payment of a sum of money
equal to the amount she normally would have earned as wages during
the period from 5 days after the date of her application to the date
of the offer of employment, less her net earnings during said period.
Finally, we shall order that Ethel Zaborowski and Johnnie Jones,
who were reinstated on January 9 and 10, 1946, respectively, after a
personal interview, be restored, if still in the respondent's employ, to
their former seniority or other rights and privileges.
We expressly reserve the right to modify the back-pay and rein-
statement provisions if made necessary by a change of conditions in
the future, and to make such supplements thereto as may hereafter
become necessary in order to define or clarify their application to a
specific set of circumstances not now apparent.19
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
elsewhere , which would not have been incurred but for his unlawful discharge and the
consequent necessity of his seeking employment elsewhere . Matter of Crossett Lumber
Company, 8 N L R. B. 440 Monies received for work performed upon Federal , State,
county, municipal, or other work -relief projects shall be considered as earnings Republic
Steel Corporation v. N. L. R. B., 311 U. S. 7.
19 Matter of Fairmont Creamery Company, 64 N L. A B 824, of N L R B v New
York Merchandising Co, 134 F. 2d 949 (C C A 2) ; International Union v. Eagle Picher
Mining 1f Smelting Co , 65 S. Ct. 1166.
739926-47-vol 73-91
1424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Board hereby orders that the respondent, Spencer Auto Electric, Inc.,
Tampa, Florida, and its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in Office Employees International
Union Local 46 (A. F. L.), or any other labor organization of its
employees, by discharging or refusing to reinstate any of its em-
ployees, or in any other manner discriminating in regard to their
hire or tenure of employment, or any term or condition of their
employment ;
(b) Interrogating its employees concerning their union member-
ship, activities, or sympathies, or concerning the identity of members
or leaders of the above-named union or any other labor organization;
(c) Instructing any employee to check and report upon the em-
ployees' self-organizational activities;
(d) Warning or threatening its employees that wage increases
would be jeopardized by membership in the above-named union or any
other labor organization ;
(e) Warning its employees that they would be subject to discharge
for engaging in concerted or union activities;
(f) Requiring its striking employees to submit to a personal inter-
view as a condition for reinstatement;
(g) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist Office Employees International
Union Local 46 (A. F. L.), or any other labor organization, to bargain
collectively through representatives of their own choosing, and to
engage in concerted activities, for the purpose of collective bargaining
or other mutual aid or protection, as guaranteed in Section 7 of
the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
(a) Offer Charles B. Harte immediate and full reinstatement to his
former or a substantially equivalent position, without prejudice to his
seniority or other rights and privileges;
(b) Make whole Charles B. Harte for any loss of pay he may
have suffered by reason of the respondent's discrimination against
him, by payment to him of a sum of money equal to the amount which
he normally would have earned as wages during the period from the
date of his discharge to the date of the respondent's offer of reinstate-
ment, less his net earnings during said period;
(c) Offer Neta Rickard, Margaret F. Childers, and Lilah D. La-
grew, who went on strike and applied for and were denied reinstate-
ment, and also, upon application, offer those striking employees who
have not previously applied for reinstatement, immediate and full
SPENCER AUTO ELECTRIC, INC. 1425
reinstatement to their former or substantially equivalent positions,
without prejudice to their seniority or other rights and privileges,
dismissing, if necessary, any employees hired since December 29,
1945, to replace them ;
(d) Make whole Neta Rickard, Margaret F. Childers, and Lilah
D. Lagrew, for any loss of pay they may have suffered by reason of
the respondent's discrimination against them, by payment to each of a
suns of money equal to the amount which she normally would have
earned as wages during the period from the date of the discrimination
against her to the date of the respondent's offer of reinstatement, less
her net earnings during said period;
(e) Make whole the other striking employees, who have not pre-
viously applied for reinstatement, for any loss of pay they may suffer
by reason of the respondent's refusal, if any, to reinstate them, by
payment to each of them of a sum of money equal to the amount that
she normally would have earned as wages during the period from 5
days after the date of her application for reinstatement to the date
of the respondent's offer of reinstatement, less her net earnings during
said period;
(f) Restore Ethel Zaborowski and Johnnie Jones, if still in its
employ, to their former seniority or other rights and privileges;
(g) Post immediately at its place of business at Tampa, Florida,
copies of the notice attached hereto, marked "Appendix A." 20 Copies
of such notice, to be furnished by the Regional Director for the Tenth
Region, shall, after being duly signed by the respondent's representa-
tive, be posted by the respondent immediately upon receipt thereof,
and maintained by it for sixty (60) consecutive days thereafter, in
conspicuous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the respondent
to insure that said notices are not altered, defaced, or covered by any
other material;
(h) Notify the Regional Director for the Tenth Region in writing,
within (10) days from the date of this Order, what steps the respond-
ent has taken to comply herewith.
AND IT IS FURTHER ORDERED that the complaint be, and it hereby is,
dismissed, insofar as it alleges that the respondent discriminated in
regard to the hire or tenure of employment of Ena Wynstra on Decem-
ber 28, 1945.
CHAIRMAN HERZOG took no part in the consideration of the above
Decision and Order.
10 In the event that this Order is enforced by decree of a Circuit Court of Appeals, there
shall be inserted before the words "A DECISION AND ORDER" the words "A DECREE
OF THE UNITED STATES CIRCUIT COURT OF APPEALS ENFORCING."
1426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
We will not discourage membership in Office Employees Inter-
national Union Local 46 (A. F. L.), or any other labor organiza-
tion of our employees, by discharging or refusing to reinstate
any of our employees, or in any other manner discriminating in
regard to their hire or tenure of employment, or any term or
condition of employment.
We will not interrogate our employees concerning their union
affiliation, activities, or sympathies, or the identity-of members or
leaders of the above-named union, or any other labor organization.
We will not instruct any employee to check and report upon our
employees' self-organizational activities.
We will not warn or threaten our employees that wage increases
would be jeopardized by membership in the above-named union
or any other labor organization.
We will not warn our employees that they would be subject to
discharge for engaging in concerted or union activities.
We will not require our striking employees to submit to a per-
sonal interview as a condition for reinstatement.
We will offer to the employees named below immediate and full
reinstatement to their former or substantially equivalent posi-
tions, without prejudice to any seniority or other rights and privi-
leges previously enjoyed, and make them whole for any loss of
pay suffered as a result of our discrimination :
Charles B. Harte
Neta Rickard
Margaret F. Childers
Lilah D. Lagrew
We will offer, on application, our striking employees who have
not previously applied for reinstatement, immediate and full
reinstatement to their former or substantially equivalent positions,
without prejudice to their seniority or other rights and privileges.
We will restore Ethel Zaborowski and Johnnie Jones, if still in
our employ, to their former seniority or other rights and privi-
leges.
We will not in any manner interfere with, restrain, or coerce
our employees in the exercise of their right to self-organization,
to form labor organizations, to join or assist the above-named
union, or any other labor organization, to bargain collectively
SPENCER AUTO ELECTRIC, INC. 1427
through representatives of their own choosing, and to engage in
concerted activities for the purpose of collective bargaining or
other mutual aid or protection.
All our employees are free to become or remain members of the
above-named union or any other labor organization. We will not
discriminate in regard to hire or tenure of employment or any term
or condition of employment against any employee because of mem-
bership in or activity on behalf of any such labor organization.
------------------------------
( Employer)
Dated---------------------- By ------------------------------
(Representative ) ( Title)
NOTE : This notice must remain posted for 60 days from the date
hereof, and must not be altered, defaced, or covered by any other
material.
INTERMEDIATE REPORT
Mr John C. MeRee, for the Board.
Shaclcieford , Fariior & Shannon, of Tampa , Fla., by Messrs. R. IF . Shackleford
and Baya M Harrison , Jr., for the respondent.
Mr. J. 0. Bloodworth , Jr., of Tampa , Fla, for the Union.
STATEMENT OF THE CASE
Upon an amended charge duly filed by Office Employes International Union
Local 46, affiliated with the American Federation of Labor, herein called the
Union, the National Labor Relations Board, herein called the Board, by its
Regional Director for the Tenth Region (Atlanta, Georgia), issued its complaint
dated May 17, 1946, against Spencer Auto Electric, Inc., Tampa, Florida, herein
called the respondent, alleging that the respondent had engaged in and was
engaging in unfair labor practices within the meaning of Section 8 (1) and (3),
and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat 449,
herein called the Act. Copies of the complaint, amended charge, and notice of
hearing thereon were duly served upon the respondent and the Union.
With respect to the unfair labor practices, the complaint alleged, in substance,
that the respondent: (1) since on or about December 21, 1945, by (a) interrogating
its employees regarding their union affiliation, (b) warning them to refrain from
assisting, becoming, or remaining members of the Union, (c) stating to them
that they would not receive wage increases in the event they joined or assisted
the Union ; that it would not tolerate "agitation"; and that it had discharged
employees who had "agitated" for higher wages; (d) vilifying, disparaging, and
expressing disapproval of the Union; (2) on or about December 28, 1945, by dis-
charging, and thereafter failing and refusing to reinstate Charles B. Harte and
Ena Wynstra, because of their affiliation with and activity in behalf of the Union,
thereby discriminating in regard to their hire and tenure or terms or conditions
of employment, and discouraging membership in the Union; and (3) by the fore-
going conduct, has interfered with, restrained, and coerced its employees in the
exercise of the rights guaranteed in Section 7 of the Act, in violation of Section
S (1) and (3). The complaint further alleged that, on or about December 29,
1945, as a result of the foregoing unfair labor practices, the employees of the
respondent concertedly ceased work and went on strike.
1428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On May 27, 1946, the respondent, appearing specially, moved to dismiss the
complaint for lack of jurisdiction on the ground that it was not, at the times
alleged in the complaint, engaged in commerce within the meaning of the Act.
In its verified answer, hied the following day, while expressly reserving its right
to contest the jurisdiction of the Board, and renewing its denial of jurisdiction,
the respondent admitted the allegations concerning its corporate status, the status
of the Union as a labor organization, and the discharge of the employees named in
the complaint, but denied generally the remaining allegations, including those
charging the commission of any unfair labor practices, and asserted that it had
offered to enter into an agreement for a consent election. Further answering,
the respondent denied that the discharges of the employees involved were moti-
vated by considerations of union activity or affiliation, but alleged that the said
employees were discharged. and refused reinstatement solely because of their
Inefficiency, unsuitability for the work required, and insubordination. Affirma-
tively the respondent averred that each of the employees who "voluntarily termi-
nated their relations" with the respondent on December 29, 1945, and who offered
to return to work were reemployed irrespective of union affiliation.
Pursuant to notice, a hearing was held at Tampa, Florida, on June 12, 13, 14,
and 15, 1946, before Irving Rogosin, the undersigned Trial Examiner duly desig-
nated by the Chief Trial Examiner. The Board and the respondent were repre-
sented by counsel ; the Union by one of its representatives. All parties partici-
pated in the hearing and were afforded full opportunity to be heard, to examine
and cross-examine witnesses, and to introduce evidence bearing upon the issues.
At the commencement of the bearing, the respondent moved to strike certain
allegations of the complaint on the ground that they failed to state a violation of
the Act.' The motion was denied. The respondent's motion to dismiss the com-
plaint for lack of jurisdiction, filed prior to the hearing, was denied with leave
to renew before the close of the hearing. The motion was renewed at that time,
and ruling thereon was reserved 2 For reasons appearing hereinafter the motion
is denied Motion of counsel for the Board made before the close of the hearing
to conform all the pleadings to the proof with respect to formal matters, not
affecting the substantive issues, was granted by the undersigned without objection.
Counsel for the Board and for the respondent, availed themselves of the oppor-
tunity afforded all parties to argue orally upon the record Although all parties
were also extended the opportunity of filing briefs, only the respondent has
done so.
Upon the entire record in the case, and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Spencer Auto Electric, Inc., a Florida corporation, organized in 1944,3 with its
principal office and place of business in Tainpa, Florida, is engaged in the sale
and distribution, principally at wholesale, and the replacement, service, and re-
1 Reference was to Paragraph VII, Sub -section ( a) alleging that the respondent, by its
officers, agents, and employees, had engaged in
Interrogating its employees regarding their union affiliations
The tianscript of the proceedings at page 851 erroneously states that ruling on the
motion to dismiss was "rejected " The record is hereby corrected in this respect to
conform to the ruling actually made at the time
' The business enterprise has been in existence for approximately 27 years, but was not
incorporated until 1944
SPENCER AUTO ELECTRIC, INC. 1429
pair of automotive parts, accessories, and equipment, as representative and dis-
tributor for various manufacturers in certain designated areas within the State
of Florida ° In connection with its business, the respondent maintains an
expert service department, employing some four or five electrical mechanics,
and a sales staff of seven salesmen covering the territory involved. The respond-
ent, under its agreement with Electric Auto Lite Company, has the exclusive right
to enter into contractual relations with so-called contract dealers, and has
entered into such contracts with some 50 to 60 dealers or distributors, under
various arrangements depending upon their status as service station distributors,
parts dealers, registered preferred dealers, and Class B service stations. Under
the terms of these agreements, the respondent furnishes sales and advertising
material to these dealers, who are required to stock certain quantities of parts,
and to maintain service, in return for which they are entitled to display an
emblem as an authorized dealer. Each of these dealers, in turn, has contractual
relations with sub-distributors or jobbers The respondent, under its arrange-
ment with the manufacturers, is authorized and required to replace defective
parts and equipment in accordance with the manufacturers' warranty agreements,
and in connection therewith ships defective parts to the manufacturers, receiving
credit for the value of replaced parts and service furnished.
During the fiscal year ending May 31, 1946, the respondent purchased parts,
accessories, and equipment valued at approximately $450,000, of which 95 percent
was shipped, principally by rail, to its place of business from States other than
the State of Florida. During the same period, the respondent sold and distributed
parts, accessories, and equipment valued at approximately $564,000, substantially
all of which was shipped from its place of business to points within the State
of Florida.`
Thus, it will be seen that substantially all parts, accessories, and equipment
sold by the respondent in the conduct of its business were shipped to it from
States other than the State of Florida, although an insubstantial amount was
shipped from the respondent's place of business to points outside the State of
Florida. This clearly affords an adequate basis for the Board's assertion of
jurisdiction ° Upon the basis of the foregoing and upon the entire record, the
* Among manufacturers whom the respondent represents , under contractual arrangements,
either as exclusive representative, or as distributor, are Electric Auto Lite, United Motors
(Delco-Remy), Trico, Briggs & Stratton, Wico Auto Pulse, American-Bosch, A C Fuel Pump,
Bendix-Stromberg, J I Case, Carter Carburetor, Fairbanks-Morse, G E Bulbs, Gilmer,
Gerrard, Eismar. Edison-Plitdorf, Johns-Manville, Leece-Neville, Purolator, Pierce-Gover-
nor, Shaler, Standardize, and Stewart-warner. With respect to some of these manufactur-
ers, as, for example, Electiic Auto Lite, the respondent is the exclusive representative (ex-
cept for automobile dealers and distributors, who are permitted to sell and distribute parts),
in that area east of Tallahassee and south to Miami, or east of the Apalachicola River
Arrangements with other manufacturers may. vary in particular instances as to territory
and type of representation, but, in the main, are substantially similar in other respects
The respondent is one of about 48 similar "exclusive agencies" representing Electric Auto
Lite Company throughout the country
G The only pioducts purchased within the State of Florida, were General Electric bulbs,
shipped to the respondent from that manufacturer's warehouse within the State Less than
1 percent of the respondent's sales during the period involved were to agencies of the U S
Government During the calendar year 1945, the respondent also sold and shipped to The
Electrical Equipment Company, Havana, Cuba, a distributor for Electric Auto Lite
Company, outside the territory allocated to the respondent, parts valued at $680 40, and
lesser amounts for the several preceding years, for the accommodation of that distributor.
An undetermined, but apparently insubstantial, amount of sales was made to Tampa
Shipbuilding Co , Inc . engaged in building ships for the U S Navy and foreign countiies.
6 "There can be no difference in principle between the case in which manufacture precedes
and that in which it follows interstate commerce. If the flow of commerce is obstructed
by labor disputes, it can make no difference from which direction the obstruction is applied
N. L B B v Newport News Shipbuilding & Dry Dock Co., 101 F 2d 841 (C C A. 4)
1430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
undersigned finds, contrary to the respondent's contention, that it is engaged in
commerce within the meaning of the Act!
H. THE ORGANIZATION INVOLVED
Office Employees International Union Local 46, affiliated with the American Fed-
eration of Labor, is a labor organization admitting to membership employees of
the respondent.
111. THE UNFAIR LABOR PRACTICES
A. Interference , restraint , and coercion
1. Introduction
The facts related hereinafter occurred within the general framework of the
following events. In mid-December 1945, a group of office and stock rooin em-
ployees approached Employee Charles B. Harte, whose alleged discriminatory
discharge is considered hereinafter, with a view to organizing a union at the
respondent's place of business. After canvassing these employees, Harte tele-
phoned J. O. Bloodworth, Jr., vice-president of the International, and business
manager of the local Union Bloodworth ascertained from IJarte the nature of
the work performed by the employees, and suggested that Harte arrange for them
to sign union membership applications Several days later, Harte again tele-
phoned Bloodworth, advised him that the employees had decided to organize,
and requested him to attend a meeting to be held for that purpose on the evening
of December 21, 1945, at Los Novedados, a public restaurant, in neighboring
Ybor City.
At the meeting held as scheduled, Harte introduced Bloodworth to the group of
12 employees, out of a unit of about 16, who had assembled Among those
present, including Harte, was Ena Wynstra, who is also alleged herein to have
been discriminatorily discharged. All but one of the employees present, including
Harte and Wynstra, signed membership application cards that evening.
On December 26, Business Manager Bloodworth wrote a letter to the re-
spondent, addressed to the attention of E. W. Spencer,' asserting the Union's
claim of majority representation of the office and clerical workers, requesting
a conference for the purpose of discussing formal recognition and negotiation
of a collective bargaining agreement, and suggesting that the same be held at
the respondent's convenience on December 27, on either of the two succeeding
days, or any other date mutually agreeable. The letter was received on the
morning of December 27. The respondent made no immediate reply Early
in the afternoon of the following clay, Harte was discharged Wynstra was
discharged the same evening' Later that day, Bloodworth wrote to the re-
spondent referring to the Union's earlier letter, and the failure of the respondent
to reply. Bloodworth also advised that he intended to be absent from the city
during the week beginning December 31, and that, unless the respondent com-
municated with the Union by January 7, he would file a petition for investigation
7 See N. L R B v. Suburban Lumber Co, 121 F. 2d 829 (C C. A 3), cert. denied 314
U S 693; N. L R B v Henry Levaur, Inc, 115 F. 2d 105 (C C A 1), cert. denied 312
U S. 682; Williams Motor Co v. N L R B., 128 F 2d 960 (C C A 8). See also Matter
of Alden MacLellan, Inc., 31 N L R. B 762 It was conceded by the respondent that its
employees are subject to the provisions of the Fair Labor Standards Act
sUnless otherwise indicated or required by the context, all refeiences hereinafter to
Spencer are intended to apply to E W Spencer, the respondent 's treasurer and general
manager
° According to the undisputed and credited testimony of Fred Spencer , vice-president and
assistant general manager of the respondent , Wynstra was dischaiged shortly before 6
o'clock in the evening of the same day.
SPENCER AUTO ELECTRIC, INC. 1431
and certification with the Board.10 Bloodworth continued, that he had been
informed that, following receipt by the respondent of the Union's first letter,
the respondent had interrogated employees individually in his office in an
attempt to ascertain who had been responsible for the organization of its
employees, and reminded the respondent of the protection afforded employees
by the Act. Bloodworth further charged that, following this interrogation, the
respondent had discharged Harte because of his union activity, and advised that
the Union would have no alternative but to file an unfair labor practice charge,
unless the respondent reinstated Harte with back pay."
This letter was received by the respondent on the morning of December 29.
No reply was made to either of the Union's letters until January 2.12 On the
morning of the 29th, the employees reported for work as usual Shortly after
8 o'clock, after consulting with Bloodworth by telephone, a number of the office
employees punched their time cards, concertedly left work, and went on strike
in protest, according to their testimony, against the discharge of Harte and
Wynstra the day before.
2. Events preceding the strike
On Thursday afternoon, December 27, shortly after lunch, according to the
mutually corroborative and credible testimony of Neta Rickard and Hilda Jaster,
General Manager E . W. Spencer and Employee Ruth Beasley engaged in a con-
versation in Spencer's private offlee.13 Rickard and Jaster were working at
their harder cabinets in the outer office to the left and right respectively of
the door to the private office, and several feet away. The door was open. Ac-
cording to Rickard's testimony, she was occupied with her work and heard
only a portion of the conversation. She testified, however, that she did hear
Beasley state to Spencer that Harte had given a party several nights before
Christmas at the Columbia. a restaurant in neighboring Ybor City,' for the
30 A petition was later filed with the Regional Office on January 10, 1946 , docketed Case
No. 10-R-1702 In view of the Union ' s unwillingness to waive the original charge filed,
in accordance with the Board ' s policy, the petition was not further processed.
"The letter made no mention of Wynstra. It is apparent, however, that although
Bloodwoith was notified sometime on the 28th that Wynstra had been discharged, the
letter was mailed before she was discharged
" December 29, 1945, fell on a Saturday, on which the employees worked half a day.
New Year's Day occurred on a Tuesday in 1946. Although it was stipulated that both
union letters were received at the respondent's place of business on the dates already
indicated , as will be seen elsewhere , General Manager Spencer denied that he acquired
actual knowledge of the letters until after the discharge of Harte and Wynstra , and the
consequent strike . This contention is considered and disposed of hereinafter in the
discussion of the alleged discriminatory discharges
13 Beasley , although not shown to have been a supervisor within the Board ' s usual defini-
tion, had direct supervision of the Kardex system , a type of perpetual inventory , operated
by three or four employees including those named above She instructed these employees
in the performance of their duties , supervised their work , and assisted them whenever
necessai y Inasmuch as she usually rectified any errors , which may have appeared in their
work, with the employees themselves , she bad no occasion to report , nor, so far as the
record discloses , was she ever called upon to report , on the work of the employees under
her supervision Although she was paid at an hourly rate, and punched a time clock, this
was equally true with respect to Marie D . Varela, an admitted supervisor in charge of the
shipping department . It is apparent from the record as a whole, including the fact that,
as will appear presently , she did not enjoy the confidence of the employees in connection
with their union activity, and was not invited to participate therein, that she was reason-
ably regarded by the employees, as being identified with management
14 It will be recalled that the dinner meeting was actually held at Los Novedados, also
located at Ybor City. Beasley testified, however, that she was uncertain whether it had
been reported to her that the meeting had been held at the Columbia, but that she knew
it was a restaurant in Ybor City.
1432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
purpose of organizing the Union According to Rickard. Spencer instructed
Beasley to "go ahead about her duties and find out what she could" Jaster
testified that while she was similarly occupied with her posting, she beard
Harte's name mentioned in the conversation between Spencer and Beasley, and
heard Spencer tell Beasley to find out what-she could about the Union and let
hint know
Both Spencer and Beasley admitted that a conversation had taken place in
his private office, although, according to Beasley, it occurred before noon on
December 28, the day before the strike, but while Harte was still employed.15
Spencer maintained that he did not learn of the organizational activities of
the employees until Friday, the day before they went on strike. Beasley, how-
ever, admitted that, although she first learned on Friday from Employee Parker,
a Kardex employee, that the employees were organizing, she had learned of
the "party" that had been held, at least as early as the afternoon before Christmas,
and that she had learned from Parker the naives of all the employees who had
attended Testifying that she had been "hurt" at not being invited, she inquired
of I-larte that day why she had not been invited, protesting that they had been
good friends Harte assured her that there was nothing personal or intentional
in her not having been invited 10
Beasley testified that "there had been a very strained atmosphere among the
employees" for some time, and that she had ascribed this to a personal difference
she had had with Rickard According to her, she went to Spencer to ascertain
if there had been any complaint against her, and asked him if that was the
"trouble." Spencer reassured her, stating that her work was satisfactory.
According to Spencer, Beasley complained to him that she had been upset because
of the attitude of one of the girls toward her, and that she was unable to as-
certain the reason. He suggested that she see what she could learn, and that
he would then attempt to straighten it out Both denied that there had been
any mention of the Union, and Spencer denied any mention of Harte as well
On cross-examination, however, Beasley admitted that she had informed
Spencer of "Harte's party" to which she had not been invited, and that she had
surmised from this that the employees may have had "something against" her.
The undersigned found the testimony of Beasley and Spencer regarding this
incident unconvincing and lacking in verisimilitude In view of Beasley's testi-
mony that she learned of the party within a few days after it was held on De-
cember 21, it seems unlikely that she did not also discover its purpose until the
day before the strike Moreover, as will appear presently, the inquiries directed
by Beasley to Rickard and faster soon after her discussion with Spencer lend
further support to their testimony. In view of all the circumstances, and upon
the resolution of the conflicting testimony, the undersigned finds that the con-
versation between Spencer and Beasley occurred at about noon on December
27, and that so much of the conversation as Rickard and Jaster related oc-
curred substantially as testified by them "
Soon afterward, according to Beasley's own testimony, having learned that
the employees intended to form a union, she asked Jaster whether that had been
15 As will appear hereinafter, Harte was discharged shortly after 1 p in on December
28. Spencer , although he agreed with Beasley that the conversation occurred on the 28th,
did not fix the time of day.
16 Beasley testified further that she had overheard the switchboard operator ask Foreman
Harry Kaurish, in charge of the shop, earlier the same day, why he had not attended the
party When Beasley inquired to which pasty the operator was referring , the latter men-
tioned the party given by Hart at the Columbia See footnote 14
17 Furthermore , it is apparent from the foregoing that even if the conversation between
Spencer and Beasley occurred on December 28, it is clear from her testimony that it
occurred prior to Harte 's discharge on that day
SPENCER AUTO ELECTRIC, INC. 1433
the purpose of the party When Jaster acknowledged that it had, Beasley inquired
why she had not been invited. She received no reply Beasley then inquired
as to the purposes of the Union, remarking-that she wanted to learn what she
could regarding the Union, so that she could determine whether she wished to
join According to Jaster, in a conversation in the outer office, lasting some 40
minutes, while Spencer was seated at a desk there, and contrary to a rule
forbidding conversation not directly related to their work during working hours,
and without any hindrance from Spencer, Jaster, in response to Beasley's in-
quiry as to how to go about joining the Union, told her that she would accom-
pany her to the Labor Temple if Beasley desired to join a union. Beasley
replied that that was not what she meant; that she was interested in the or-
ganization of office workers at the respondent's place of business Beasley also
asked Jaster, during the conversation, if she had attended the union dinner
meeting, referring to the patty which had been held Jaster admitted that she
had, but when she was asked the names of others who had attended, she declined
to reveal them, remarking that she could only speak for herself. In reply to
a suggestion that Beasley had assumed that the party had been given by Harte
personally, Jaster informed her that it was not so,-that the party had been
"Dutch treat."
After her conversation with Jaster, Beasley approached Rickard and inquired
whether she knew anything about unions Rickard informed her that she knew
very little about then, but that her brother had been a union member. When
Beasley asked her if she knew how to proceed to join a union, Rickard replied
that she did riot, that she had never belonged to one before. Beasley not only
substantially admitted the conversations testified to by Jaster and Rickard, but
further admitted that she interrogated other office employees on this subject.
Although she suggested in her testimony that her inquiries where prompted by
her desire to ascertain whether to join the Union, the undersigned finds, upon
the basis of the foregoing and the entire record, that she (lid not seriously con-
template joining the Union, but utilized that purported reason as a pretext for
ascertaining the extent of the employees' union activities pursuant to Spencer's
instructions.
Between 4 and 4. 30 the following afternoon, on December 28, Rickard coin-
plained of feeling ill, and asked permission of Spencer to leave early. Spencer
consented, but told her that he wanted to talk to her in his private office first.
When they reached his office, he told her that he understood that she was dis-
satisfied, and asked her if she had signed a union card. She admitted that she
had, and told him that she needed more money. Spencer informed her that he
had intended to give her a raise, but that he would not "be driven."'g
3. The unfair labor practice strike
On Saturday morning, December 29, employees of the office and stock room
reported for work at 8 o'clock as usual. Following the discharge of Harte and
Wynstra on the previous day, these employees telephoned Union Business Mana-
ger Bloodworth and asked his advice as to what they should do. He informed
them that it was unnecessary for him to tell them what to do. At about 8 - 10
a in, employees Lilah D. Lagrew, Hilda H. Jaster, and Ethel Zaborowski, punched
their time cards, concertedly left work, and went out on strike, in protest, accord-
is Although Spencer denied generally the statements attributed to him by Rickard, he
did not specifically deny the incident which, according to Rickard, gave rise to them In
view of his unconvincing denials, and the facts found above with respect to the incidents
which preceded this incident, the undersigned does not credit his denials.
1434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing to them, at the discharge of Harte and Wynstra.9 As will hereinafter appear,
they remained on strike until January 9, 1946, when, following a conference
between representatives of the respondent and the Union, in the presence of a
Commissioner of Conciliation, they reported for work. The events which tran-
spired are related hereinafter.
4. The events following the strike
Margaret F. Childers, a Kardex employee, (lid not join the other employees
when they went on strike on Saturday morning. That morning, shortly after
ascertaining that Childers had not joined the strikers, Beasley notified her
that Spencer wanted to talk to her in his office. When Childers arrived there,
he inquired whether she had been invited to the union meeting at the Co-
lumbia Restaurant.21 She replied that she had not. He thereupon remarked
that it appeared she had been neglected. She agreed. Spencer then inquired
whether she knew "anything about it." She stated that she did riot. He
continued, "Well, I just wanted to know. . . . We have been having a little
agitation around here, and I have had to let two or three of them go." In re-
sponse to her inquiry as to who they were, Spencer, according to Childers, men-
tioned the names of Harte and Jaster,21 but did not name the third. He also told
her that he had sent for her to tell her that he had been in the habit of grant-
ing a wage increase twice each year, in January and June, and wanted to be
sure that she was aware of that. Spencer added, according to Childers, that
he had experienced "some agitation" the year before, and had been obliged
to discharge an employee for that reason.'* Childers worked the remainder of
the day. The following (lay, Sunday, the striking employees visited her at her
home, and she joined them in the strike.
On January 2, 1946, the respondent acknowledged the Union's letters for
the first time, when General Manager Spencer wrote the Union,
I have not replied to these two letters earlier because of the disturbance,
confusion and business rush caused by the Holiday season and am taking the
first opportunity, after things have settled down to normalcy.
The letter , couched in broad generalities , stated that the respondent was will-
ing that all "eligible employees . . . be solicited [for union membership] at
any and all proper occasions . . . and [would] encourage their association with
organized labor for their protection and my security provided that this is pur-
sued in an orderly and legal manner without- duress or attempt to monopolize."
Notwithstanding that Bloodworth's first letter clearly stated that the Union
was seeking to represent only the respondent's "office and clerical employees,
19 Rickard , who had left early the day before on account of illness , telephoned Spencer
and informed him that she was remaining away from work, and joining the strikers.
Although five of the office employees had planned to go on strike that morning, only those
named above did so Varella and Parker, who, according to Jaster, were to have joined
the others, as well as Margaret F. Childers, who was not a member of the Union at the
time, remained at work Childers joined the strikers after they visited her at her home
on Sunday , the following day
20 It is significant that Spencer, like Beasley, referred to the meeting place as the Columbia
Restaurant, although it had in fact been Los Novedados
21 Although Childers testified positively that Jaster's name was mentioned, it was obvi-
ously known to the employees that Jaster had not been discharged Childers, a college
graduate and former supervisor with Farm Security Administration , impressed the under-
signed as an intelligent and credible witness In view of her insistence that Spencer men-
tioned Jester 's name , the undersigned concludes and finds that Spencer did in fact name
Jaster, probably through inadvertence Although Spencer denied the statements attributed
to him by Childers, his denial is not credited
22 Childers did not inquire about , nor did Spencer volunteer the name of the employee,
according to her testimony
SPENCER AUTO ELECTRIC, IN C. 1435
excluding production and maintenance employees," Spencer's letter stated
that in his opinion the employees were classified into at least three sepa-
rate appropriate units, namely, mechanics, clerks, and salesmen. The letter,
after indicating that the respondent would not recognize the Union without
an election, questioned the jurisdiction of the Board, although conceding it to
be "subject to legal interpretation." Spencer directed attention to "Section 12
of the Bill of Rights" for the State of Florida, recognizing collective bargain-
ing, and stated that the respondent would recognize the Union if it were selected
as bargaining representative. Despite the matters dealt with in the Union's
second letter, particularly the charge that the respondent had interrogated
employees regarding union matters, and had discriminatorily discharged Harte,
whose reinstatement was requested, the respondent's letter ignored these
charges.
At a conference held on January 3, 1946, at the office of respondent' s counsel,
attended by Attorneys Harrison and Shannon,23 in behalf of the respondent, and
Bloodworth, in behalf of the Union, Commissioner Owen W. Schaefer, who was
present and participated, suggested that the employees return to work in order
to "establish back pay" Although Bloodworth testified that the respondent's
attorneys agreed to recommend that the employees' time cards be replaced in the
racks the following day, pending the return of Attorney Shackleford, Commis-
sioner Schaefer testified that if actual agreement had been reached, the same
would have been reduced to writing, and that no such agreement was executed "
In any event, it is apparent from what transpired that the respondent was
willing to reinstate all striking employees, except Harte and Wynstra, and that
Bloodworth agreed to instruct the striking employees to return to work. Spen-
cer, however, insisted upon the right to interview all returning employees indi-
vidually. While Bloodworth objected to this, he notified them to report for work
the following morning, advising them not to engage in individual discussions
with Spencer. Bloodworth admitted that Spencer and his attorney had invited
him to "sit in" on the interviews with the employees, but testified that he declined
because the respondent had refused to recognize the Union.
The following day, employees Rickard, Childers, Zaborowski, and Lagrew
reported for work, but discovered that their time cards had not been replaced.
On questioning Assistant Manager Fred Spencer about this, they were informed
that they no longer worked there. Rickard telephoned Bloodworth and informed
him what had transpired. He suggested that they await General Manager E. W.
Spencer's arrival. When Spencer arrived, he insisted upon interviewing each of
these employees individually before permitting them to return to work. They
objected, and again communicated with Bloodworth, who advised them not to
talk to Spencer unless he agreed to talk to them as a group. All, except
Zaborowski, refused to be interviewed individually, and left for Bloodworth's
office.25
22 Attorney Shannon , an associate of Mr. Shackleford , had been invited by Mr. Harrison
to:'sit in" on the conference , in Sliackleford 's absence from the city.
24 The undersigned deems is unnecessary to make a specific finding as to whether actual
agreement iias reached on this point. Schaefer , who has since resigned from the Concilia-
tion Division of the Department of Labor, and who testified that he had destroyed his
records on the case , testified from memory concerning the conference.
.25 These findings are based upon the combined testimony of Rickard , Childers, Zaborowski,
Lagrew, and Bloodworth , which the undersigned credits . E W. Spencer did not testify
directly that he insisted upon interviewing the employees individually , although it is
apparent from what has already been stated, as well as what occurred thereafter, that he
did Respecting the statement attributed to Fred Spencer, the latter testified that, when
he saw Rickard and Lagrew start from the waiting room to the office, he asked where they
were going . They replied that they were going to work According to Spencer , he there-
1436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
When Zaborowski consented to be interviewed, she was invited into E W.
Spencer's private office, and there questioned as to whether she did not think she
had erred in leaving work without first notifying him. She replied that, inas-
much as she had signed a union card, and considered that her signature "meant
something" to her, she had agreed to "walk out." Spencer asked *hether she
did not realize that her failure to report that she intended to lie absent had
resulted in her discharge. She acknowledged that she was aware of the rule
requiring that absences be reported In response to Spencer's inquiry as to who
had asked her to join the "walk out," Zaborowski informed him that she had
been met outside the respondent's place by Varela, Lagrew, Harte and Jaster,
lino had requested her to join them in sympathy with the discharged employees.
apencer asked her whom she believed to be the instigator, suggesting that Harte
was the "ring leader." She stated that there was no "specific ring leader " She
then stated that she desired to return to work, and he agreed to reinstate her
inasmuch as she had not been replaced.
During the further discussion which ensued, Spencer asked her opinion of the
Union She stated that she thought it a good thing; that it afforded an opportun-
ity for discussing grievances with hint. Spencer asked if she did not realize that
"his door was open" to office employees at all times, observing that he had been a
"union man" himself, and a member of the Electrical Union. He added, however,
that, although there had been need for a union there, because of the thousands of a
employees involved, there was no need for one at the respondent's place of busi-
ness, with comparatively few employees, inasmuch as employees were always free
to talk to him. He also remarked that he had built up his business, and that
he intended to see that it was run "with or without a union ." Zaborowski con-
ceded that /Spencer told her that it made no difference to him whether she was a
member of the Union ; that she would be treated fairly and without discrimination.
She was thereupon reinstated, and continued in the respondent's employ until
April 1946, when she left, apparently voluntarily. She agreed that during this
period she observed no indication of discrimination toward her.
Johnnie Jones, another female office employee, had not joined the Union until
atter the employees went on strike She remained at work on Saturday, ap-
parently unaware that the other office employees had concertedly left work, as-
suming , when she saw one of the women check out, that she was leaving because
of illness. The following Monday, on her way to work, she learned from a group
of employees that they had gone on strike, and, after some discussion, signed a
membership application, and left with Harte for the union office. She remained
on strike until January 10, the day atter the other office employees had reported
for work. Learning at the union office that the striking employees had been told
to return to work, she reported to the office In a discussion with Spencer, he
reminded her of the rule that employees remaining absent from work for 5 days
without notifying the respondent would be considered discharged. When she in-
formed him that she had signed a union card, he stated that it was all right to
belong to a union if she wished, and then asked her to tell him what she knew
about it. She related the circumstances under which she had signed the union
card, mentioning that she had been approached by Harte after the employees
had gone on strike, and had gone to the union office with him. At her request, she
was reinstated, and remained at work thereafter without discrimination 26
upon told them that they could not go to work until they had seen E W Spencer, but said
nothing more. The undersigned finds upon the basis of all the pertinent testimony and
the surrounding circumstances that Fred Spencer made the statement attributed to him
on this occasion
26 The above findings regarding the interviews with Zaborowski and Jones are based
upon their respective testimony, corroborated in substantial part, by Spencer himself, who
admitted that he interviewed them, and did not deny the rest of their testimony
SPENCER AUTO ELECTRIC, INC. 1437
B. Disciimination in repaid to hire aid tenure of employment
1. The discharge of Charles B Harte
Chan les B. Harte was employed in the latter part of June 1945 as a salesman.
At the time he was inter'iewed for the position by Spencer, Harte informed
him that he had been employed by a local automobile parts concein at a monthly
salary of $200, but that plans to put him on the road had failed to materialize.
It was agreed that Harte would begin as a counter man, selling pacts at whole-
sale and retail over the counter, in order to familiarize himself with the busi-
ness . As part of his duties Harte was also required on occasion to assist in
filling and packaging orders in the shipping department Spencer agreed to
pay him a starting salary of $225 per month, with the understanding, according
to Harte, that if his services proved satisfactory, his salary would be increased
to $250 at the end of 30 days a He received this increase at the appointed time.
On about December 15, Harte undertook to organize the office and stock
room employees, and, as has been related, arranged for the meeting on De-
cember 21, 1945, at Los Novedados, where all but one of the 12 employees
present, out of a total of 16 employees in the unit, signed membership appli-
cations
Shortly before he had undertaken the organization of the employees, Harte,
in a discussion with General Manager E W. Spencer and Assistant General
Manager Fred Spencer, expressed his dissatisfaction, reminding them that he
had been hired as a salesman, and that he did not want to be a counter man.
He complained that several men had been put out on the road ahead of him,
and that it appealed that the respondent did not intend to do so with him E. W.
Spencer informed Harte that he had misrepresented his experience at the time
he had been hired. Harte replied that Spencer was mistaken, and reminded
him that lie had told him at the time that his experience in connnection with
automobile parts was limited, and that he had offered Spencer references which
lie had declined, with the remark that he formed his own impressions of pros-
pective employees,28 Spencer stated that the respondent reserved the right
to determine the qualifications of its employees ; that he slid not consider that
Harte was ready to go on the road, and that he would be sent out, at the
respondent's discretion, when it determined that he was qualified. Harte
replied that this was unsatisfactory and too indefinite; that he did not wish
to continue as a counter man, and that if that was all the respondent had to
offer, he would probably go into business for himself rather than continue
in that capacity. He explained that he had been thinking tentatively of entering
the transit auto parts business , although he had made no definite plans.
According to Harte's testimony, he informed the Spencers that, although he
had someone in mind who might assist him in the proposed undertaking,
Harte was unprepared to undertake it because he lacked sufficient capital,
and was therefore unwilling to terminate his employment with the respondent
until necessary arrangements had been completed. E W. Spencer thereupon
suggested that Harte consider the matter for 2 or 3 weeks, and inform him
27 Spencer , in his testimony substantially confirmed this arrangement, except for the
fact that be denied that the increase was conditioned upon Harte ' s satisfactory perform-
ance of his duties This conflict is discussed elsewhere hereinafter
zs It is apparent from Spencer 's testimony that he had made no effort to communicate
with any of the references which Harte had offered , in spite of the fact that at least one
of them , located in the same city, was a customer of the respondent . In any event, it is
clear from Spencer ' s admission that lie did not do so because of the acute labor shortage,
and more especially from the fact that it had been contemplated that Harte should undergo
a training period , that Spencer placed no substantial mch ance upon any representations
which may have been made by Harte regarding his previous experience
1438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of his decision at the end of that time. Harte testified that lie agreed, thanked
him for his consideration, and stated that lie would advise him at the end
of that time whether he would remain as a counter man or resign his position.
The Spencers' version of this discussion differed to the extent that, according
to them, Harte stated that he intended to go into business in competition with
the respondent, and discussed his plans with them in considerable detail. They
testified that they told him not only that they did not regard his venture as com-
petition, but encouraged him, suggesting that they would give him a contract
whenever he could qualify, offering to sell him merchandise at wholesale in the
meantime. According to them, Harte stated definitely that he intended to leave
the first of the year and they advised him to proceed with his plans because it
was apparent that he would not qualify as a satisfactory salesman or stock
room man2° They further testified that Harte left no doubt of his intention to
terminate his employment on the first of the year. E. W. Spencer denied that
he made any suggestion that Harte consider the matter for several weeks before
making any final decision.
An appraisal of the pertinent testimony and the surrounding circumstances
convinces the undersigned that Harte made no definite commitment that he
would leave the respondent's employ the first of the year, and that the respondent
did not so regard it.3° It is apparent that the respondent realized that Harte was
probably in no financial position to go into business, as was indicated by what
Harte had stated. The record indicates, moreover, that Harte was apparently
resorting to the strategem of threatening to leave the respondent's employ and
go into business for himself, as a tactical maneuver to induce the respondent to
put him on the road as a salesman While the undersigned is not entirely con-
vinced that the respondent granted Harte several weeks to reach a decision, the
undersigned is satisfied that Harte did not definitely state that he would leave
the first of the year. Furthermore, in view of the respondent's contention, later
discussed, that it retained him in its employ after its decision to discharge him
because it had been unable to replace him sooner, it is apparent that it was
desirous of retaining him for a time at least.
On December 28, 1945, at 1 o'clock in the afternoon,91 Arthur Spencer, vice
president and assistant manager, summoned Harte to his office as the latter was
leaving for lunch, and informed him that lie had an unpleasant duty to perform.
He then told Harte that he, Harte, was no longer to be associated with the
respondent. Harte inquired whether Spencer meant that he was fired. Spencer
replied, "No. Let's say you just terminated your connection with the Company."
Harte inquired as to the reason for this action, remarking that, in view of the
fact that he had been hired on a monthly basis, it appeared "rather strange"
that he was not to be permitted to complete the month. Spencer replied, "Yes,
21 Although Harte, in his testimony, denied that any complaint was made at the time
that his services had been unsatisfactory, or that he would never qualify as a salesman,
he conceded that E. W. Spencer had remarked that he was glad it had worked out that way,
and that they hoped he would go into business for himself because he had been an expense
to them as a counter man at $250 a month, and that they could procure all the counter
men they wanted at $170 ; that the only basis on which they had justified the expenditure
was that they had contemplated putting him on the road as a salesman. As will be seen
hereinafter, however, the respondent admitted that these was an acute shortage of both
types of personnel during this period.
3° That General Manager Spencer did not regard Harte's threat to go into business for
himself as competition, is indicated by Spencer's testimony : "That (Harte's statement
that he was going into competition with the respondent] kind of tickled me because we
have contracts with the manufacturers and I didn't see how anybody could go in competi-
tion with us "
a Contrary to Arthur Spencer's testimony, which the undersigned does not credit, that
Harte was discharged at about 3: 30 p. m.
SPENCER AUTO ELECTRIC, INC. 1439
that is the way it is," adding that he had understood that Harte was leaving,
and that they had consequently made arrangements to hire someone to replace
him. Harte observed that this action was somewhat "premature," and reminded
Spencer that E W. Spencer had suggested that Harte take several weeks to
make up his mind about leaving. Arthur Spencer replied that that was "neither
here nor there" ; that the respondent had decided that it was best for all con-
cerned that Harte leave.'2 The men shook hands and Harte proceeded to leave,
but returned for his hat and coat Observing one of the employees, who had
joined the Union, he remarked, "Well, this is it " Just then he heard E W.
Spencer behind him. Spencer exclaimed, "All right, that will be enough out of
you Just get your hat and coat and get the hell out of here . . . You have
caused enough trouble as it is." As Harte started to leave, Spencer repeated,
"All right, hurry up, get out of here." With that Harte left the respondent's
place of business He has not been reinstated since3Y
Respondent's contentions regarding Harte's discharge; conclusions
The respondent contends that Harte was discharged for general incompetence,
inefficiency , unsuitability for the work involved , and his proclivity toward making
errors. It denies that it was motivated by union considerations , disclaiming any
knowledge of union activity , or of Harte 's participation therein, until after the
employees went on strike , the day after Harte's discharge . This latter contention
is based upon the testimony of General Manager E W. Spencer , and other re-
spondent 's witnesses , particularly Grace Peter, the former's private secretary and
office manager , that, although the Union 's first letter , demanding recognition, was
received on the morning of December 27, the day before Harte 's discharge, it was
not actually seen by Spencer until after the employees went on strike . Although
the respondent went to considerable length in an effort to establish that this was
due to the accumulation of correspondence , and the dereliction of Spencer's sec-
retary in bringing it to his attention , the undersigned found this evidence un-
convincing , particularly in view of the fact that the respondent 's letter of Janu-
ary 2, acknowledging the Union 's letters , while stating that the delay in replying
was occasioned by the pressure of business and the intervening holidays , made no
mention of the fact that, as the respondent later contended , the Union 's letters
32 According to Spencer , Harte stated that he had intended to quit anyway , as he had
already advised the Spencers , and that one time was as good as another ; that he realized
that the job of salesman was pretty complicated; and that possibly be had not done as
well as lie should have. Spencer further testified that they spent 20 or 30 minutes dis-
cussing Harte 's new business venture, during which Harte asked him if he could obtain
a contract from the respondent , and Spencer told him that he could if he were able to
qualify He also informed Harte that , " if he wanted ," the respondent would pay him
through December 31 ; and that as Saturday was an extremely busy day he had sent for
him on Friday , when he would have more time to talk to him. Harte was not called to
testify in rebuttal , although it is apparent from his testimony on direct and cross -examina-
tion, which the undersigned credits, that he did not make the admissions attributed to him
by Spencer regarding his lack of qualification for the job. The record indicates , moreover,
and the undersigned finds, that, although it is probable that some discussion was had
regarding Harte's proposed venture , the same was prompted by the latter 's pique and
chagrin at being discharged , and did not arise out of any prior intention to terminate his
employment voluntarily.
33 Although E. W Spencer testified that he did not iecall making any such statements, lie
admitted that, when he saw Harte walk to the rear of the establishment, he told hum that
"there was no conversation here ; just get your stuff and get out," but testified that he
did not "believe" he made the remarks attributed to him by Harte. It is apparent that
this episode was accompanied by some rancor on Spencer's part as indicated by his own
admission Spencer's qualified denial of the remarks which Harte ascribed to him tends
to support Harte's version of the encounter , which the undersigned credits
7 19 02 6-4 7-vol 73-92
1440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had not come to Spencer's notice until 2 days later 34 The undersigned rejects
the testimony of the respondent's witnesses that the letter in question was not
brought to Spencer's attention until after the employees went on strike, and finds, on
the contrary, that Spencer learned of it soon after its receipt. Moreover, it is ap-
parent, as has already been found, in regard to the convei sation which occurred
between Spencer and Beasley, the employee in charge of the Kardex system, on
the afternoon of December 27, the day the letter was received and before Harte's
discharge, that Spencer then learned not only of the union activity among the
office and clerical employees, but also of Harte's participation therein.
Turning to the contentions regarding Harte's incompetence and inefficiency, the
respondent adduced evidence that he was derelict in the performance of his
duties in a number of respects Thus, evidence was offered that he permitted
merchandise to be charged by customers who had no charge accounts; neglected
to indicate on sales invoices whether used parts had been turned in on account of
new parts purchased; and rang up cash sales incorrectly. These types of errors
occurred, according to the respondent, with varying degrees of frequency, ranging
from several occasions altogether to as often as 7 to 10 times a week. According
to Peter, whose bookkeeping duties brought her into contact with these errors,
Harte's rate of error was three times as high as that of any other employee
similarly engaged.''
Further complaints centered about Harte's alleged inability to memorize and
retain the numbers of the more commonly used parts, necessitating his frequent
resort to various manufacturers' catalogs " It was contended that, because of
his lack of familiarity with parts, he frequently undertook to make unsuitable
substitutions, which resulted in inconvenience to customers, embarrassihent to the
respondent, and actual loss of business. In addition, it was complained that
Harte was constantly making errors in writing up invoices; neglecting to include
charges ; failing to give proper refunds, credits, and discounts to customers on
exchanged parts and equipment; failing to check bins to determine whether parts
were in stock before informing customers that desired parts were not in stock.
The record is so replete with testimony from the respondent's witnesses regard-
ing Harte's alleged incompetence, inefficiency, and unsatisfactory performance,
during all his employment, resulting, according to the respondent, in loss of
business and good-will, that it is remarkable that the respondent's business was
able to sustain 6 months of such unmitigated incompetence. About the only
attribute which the respondent, somewhat grudgingly, conceded Harte was a
"pleasing personality ," and a memory for faces in dealing with customers.
34 Although, according to Spencer, whose testimony was substantially corroborated by
Shop Foreman Harry Kaurish , Kaurish informed him, on Saturday , after the employees
had gone on strike, that Spencer was supposed to have received a letter from the Union,
this testimony, even if credited, does not establish that Spencer dud not have actual prior
knowledge of the receipt of the letter Both union letters, which were specifically directed
to the attention of E. W. Spencer, bore the respondent 's time stamp, an indication of
the fact that the respondent regarded the time of the receipt of communications as impor-
tant , and it is unrealistic to assume that Spencer would not have acqui red actual knowl-
edge of the letter soon after its receipt . Moreover , the fact that Spencer denied any knowl-
edge of the receipt of the Union 's second letter until the Monday following the strike, not-
withstanding his testimony that, following the advice from Kaurish , he made a search for,
and discovered , the original union letter, further discredits his testimony.
38 Although Harte was the only counter man , besides W. K Thompson, manager of the
stock room , others in the stock room helped from time to time
39 The respondent sold and distributed some 20 , 000 different items, each bearing a differ-
ent part number . These parts numbers, listed in manufacturers ' catalogs, 10 to 12 inches
in thickness , contained no less than 5 or 7 digits, in any one number, in addition to alpha-
betical letters
SPENCER AUTO ELECTRIC, INC. 1441
Although Harte admitted that he had been criticized by the Spencers prior to
mid-December "only in a constructive sense," had been told to pay more attention
to orders he wrote, and to observe certain company policies regarding discounts
and similar matters, Harte maintained that this had occurred chiefly during the
early stages of his employment, and that other employees, including salesmen,
committed proportionately more mistakes than he did, considering their length
of employment. On the other hand, Harte testified credibly and the undersigned
finds, contrary to general denials, that lie had been told by Arthur Spencer, some
2i/ months after Harte's employment began, that he was making satisfactory
progress although he required further training; and that Spencer anticipated
that he would be able to put Harte on the road before very long. In addition,
according to Harte, Arthur Spencer stated to him, several days before his dis-
charge, that the respondent was pleased that, for the first time in 5 years, the
catalogs (which it was Harte's duty to maintain) were up to date. It is ap-
parent, from the entire record, and an evaluation of all the pertinent testimony,
that, apart from the fact that other employees with considerably more expe-
rience committed errors in varying degrees, that the respondent exaggerated the
nature and frequency of Harte's errors.
Harte had been employed approximately 6 months at the time of his dis-
charge The respondent admits that at least 30 days are required for an em-
ployee to familiarize himself with its stock, methods and policies. For that
reason, it contends that there was no significance in the fact that Harte was
granted an increase at the end of 30 clays. Spencer testified that it had been
his experience that new employees "would get [so] scared, because it was com-
plicated . . . that [the respondent] made a practice of hiring a person at
a certain salary and promising them an increase at the end of 30 days," pre-
sumably without regard to whether his services had proved satisfactory.
Assuming this to be so, although it seems doubtful that the respondent would
do so regardless of whether the employee had demonstrated any aptitude for the
job, it is clear from the testimony of Spencer, as well as other witnesses for the
respondent, that it was convinced at the end of 60, or at most, 90 days that
Harte would "never make a stock room man or a salesman." The respondent
contends, however, that despite this, and the complaints by Fred Spencer, com-
mencing soon after his return from service in the armed forces, and his insistence
on Harte's discharge ; complaints from supervisors, including Sales Manager
Charles W. Terrell, who allegedly informed Spencer that be would not accept
him on his staff, the respondent continued Harte in its employ for the reason
that it was in "dire need" of counter men and salesmen; that it had been con-
fronted with an acute shortage of personnel resulting from the war; and that
it could not be as discriminating in its selection of employees as it might other-
wise have been" According to Spencer, he would have hired a man to replace
Harte 60 clays after he was first employed if he had been able to do so.
Finally, early in December, according to the respondent's officials, and prior to
any indication by Harte of any contemplated separation, it was determined to
discharge him. Although it was contended that the respondent's officials fre-
quently criticized Harte, he was not notified of the respondent's decision ; nor
was he ever notified that he risked discharge, despite the fact that Spencer con-
tended lie had advised Harte that he would never "make a salesman" if he did
not "wake up."'7 Moreover, although Spencer testified that he would not normally
01 The respondent had advertised for stock room employees and salesmen over a period
of several years, in the Help Wanted columns not only in local newspapers but also In
those in Atlanta, Miami, and Detroit
181t is significant in this connection that, in about mid-December , according to Harte's
uncontradicted and credited testimony , the respondent had printed , at its own expense,
1442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
retain a dissatisfied or unsatisfactory employee, but would terminate his employ-
ment instantly, paying him several weeks' pay rather than retain him, he did not
do so in Harte's case. Instead, even though, according to the respondent, Harte
had definitely committed himself to leave on the first of the year, it did not dis-,
charge him when, according to it, it learned of his intention, but waited until
several days before the expiration of the year 30 It is significant that Arthur
Spencer, to whom the task of discharging Harte fell, made no effort to ascertain
whether Harte still intended to leave, if, as the respondent maintained, it relied,
even incidentally, upon that as a ground for terminating his employment Only
after notifying him that he was discharged did Spencer mention the matter of
Harte's alleged determination to leave. It is clear, therefore, that the overt act
of discharge was made by the respondent. Otherwise, it is reasonable to assume
that if Ifarte had definitely committed himself to leave on the first, the respondent
would either have waited for him to carry out his intention, or, at least, inquired
whether he intended to do so. Instead, it chose to discharge him rather than
take the risk of his decision. The only explanation offered for this action was that
an applicant, who had allegedly applied for a job as counter man in response to
an advertisement by the respondent, had been hired for the job the day before.
No persuasive explanation was offered as to why this employee was not engaged
to begin work on January 2, since he was hired, according to the respondent, on
Thursday, December 27, in view of its contention that Harte had agreed to leave
the first of the year, and since Harte's normal work period did not expire until
January 5 There was no showing that this applicant had any expeiience or
special qualifications for the position 40 On the contrary, Arthur Spencer admitted
that the applicant was "completely green," at least insofar as the location of stock
and the respondent's business methods and system were concerned.41 Moreover,
Arthur Spencer, although assuming several inconsistent and contradictory posi-
tions, acknowledged that there was more than one such job available, finally
admitting that that did not "enter into it one way or the other as to why we let
Harte go on Friday."
In explanation of the delay of nearly 4 weeks between the time it alleged it
had definitely determined upon his discharge and the date on which it carried
out its decision, the respondent asserted that it postponed action until after
Christmas because of an earlier unpleasant experience resulting from the dis-
charge of another employee just before that holiday. Whatever merit there may
be to this position , it is difficult to reconcile with the extreme degree of incom-
petence and inefficiency to which the respondent claimed to have been subjected
during practically the entire period of Harte's employment. E. W. Spencer testi-
fied, however, in explanation, that he regarded "half a loaf better" than none41
A consideration of the foregoing impels the conclusion either that Harte was not
a supply of 1000 or 1500 business cards, bearing Harte 's name as representative of the
respondent , as it had in the case of its salesmen ; and that until as recently as the Saturday
before his discharge he had attended meetings of the traveling salesmen at the respond-
ent's request.
39 Harte was discharged on December 28, a Friday. December 31 occurred on Monday.
40 According to Arthur Spencer's testimony, the respondent had been attempting to engage
a counter man and salesman for several months, and finally procured this applicant for the
position whom he definitely hired the day before Harte's discharge , and before ascertaining
whether Harte intended to leave.
41 Although this employee, lately discharged from a Veterans' Hospital, was hired with
the intention of ultimately putting him on the road as a salesman , he remained for only a
short time, leaving voluntarily, according to the respondent, because of a nervous condition
42 In contrast to his testimony elsewhere that , with only one salesman during the war,
the desperate need of salesmen and stock room men , and the complaints by the respondent's
largest manufacturer at the respondent's failure to have enough salesmen on the road,
he would have put Harte on the road if he "qualified 50 percent."
SPENCER AUTO ELECTRIC, INC. 1443
as incompetent or inefficient as the respondent maintained , or that it was content
to abide his deficiencies for a period of some 6 months because of the acute
shortage of better qualified personnel.
Notwithstanding what has been said , it is patent that the respondent would
have been entitled to discharge Harte for the reasons advanced by it, or, indeed,
for no reason whatever, provided it was not motivated in whole, or material part,
by union considerations . The record establishes , however, that Harte was thy'
protagonist in the organizational activities of the respondent 's office employees
That the respondent was opposed to organization of these employees , despite
Spencer's protests to the contrary, is indicated by the fact that he ignored the
Union's letter demanding recognition ; by his conversation with Beasley on the
afternoon of December 27, soon after the receipt of the Union's first letter, in
which Spencer instructed her to find out what she could about the Union, and in
connection with which Harte's name was specifically mentioned ; and Beasley's
interrogation of these employees regarding the Union almost immediately there-
after, in Spencer's presence , in a discussion lasting some 40 minutes , contrary to
a rule against personal conversation during working hours. Spencer 's later in-
sistence upon interviewing employees individually after they had unconditionally
offered to return to work following their strike , especially his interrogation of
Childers , Zaborowski , and Jones , already related in detail , furnish additional
support for this view . The record leaves little doubt that the respondent was
aware not only of the union activity in the office , but also of the nature and extent
of Harte's participation therein. Zaborowski 's testimony regarding her inter-
view with Spencer , prior to her reinstatement , in which Spencer specifically
sought to ascertain whether Harte was the "ringleader " of the Union , leaves little
doubt that Spencer had so regarded him. Upon the basis of the foregoing, the
undersigned is unable to accept the respondent 's contention that it was not
motivated , in material part, at least, by union considerations in discharging
Harte, but , on the contrary , concludes , that it discharged him, at least in sub-
stantial part, for these considerations . Spencer's parting outburst at Harte
following his discharge , when he irately ordered him out of the respondent's
place of business , with the remark that he had caused enough trouble, could
hardly have been explained on the basis of his irritation at Harte's alleged in-
efficiency. Nor does the fact that Harte stopped to converse with an employee
furnish any justification for Spencer 's reaction . The undersigned therefore
infers and finds that it was the discovery of Harte's union activity and Spencer's
resentment toward him for organizing the employees that gave rise to the
latter's outburst.
In these circumstances, where the evidence discloses that the respondent was
motivated , in discharging Harte, in material part, if not wholly , by his union
activity, there is an obligation upon the respondent to "disentangle the conse-
quences for which it [is] chargeable from those from which it is immune."
This the respondent has failed to do.
Upon the basis of the foregoing and upon the entire record, the undersigned con-
cludes and finds that, by discharging Harte, because of his union activity, the
respondent has discriminated with regard to the hire and tenure of his employ-
ment, thereby discouraging membership in a labor organization , and interfering
with, restraining , and coercing its employees in the exercise of the rights guar-
anteed in Section 7 of the Act, in violation of Section S (1) and ( 3) thereof."
4a See N L R B v. Remington Rand, Inc, 94 F. 2(1 862, 872 (C. C A. 2).
4; The undersigned has considered the evidence that Spencer had himself been a union
member , and that he professed sympathy with the right of self -organization of employees
generally ( although it will be recalled that he had expressed the opinion to at least one
employee that there was no need for a union in a place such as his, employing so few
1444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The discharge of Ena Wynstra 95
Ena Wynstra was originally employed by the respondent in January 1945 as a
billing and checking clerk in the stock room at a weekly salary of $2184 About
a week later her salary was increased to $25 62, ° when she was apparently pro-
moted to the position of supervisor in charge of the shipping department. In
April 1945, Wynstra decided to leave, and gave the respondent 2 weeks' notice. Be-
fore this period expired, however, Spenser requested her to remain for an addi-
lional 2 weeks as an accommodation to the respondent. She agreed, and Spencer
paid her additional compensation of $10 a week. Although, according to Spencer,
she probably made mistakes during this period of her employment, he conceded
that "on the whole her work was satisfactory."
When Wynstra left in April to go North, she was succeeded by Marie D.
Varela, who had started as a beginner packing orders, before Wynstra had been
promoted Sometime in October, Wynstra wrote Varela that she was planning
to return to Florida, and inquired whether the respondent had an opening for
her Varela turned the letter over to E. W Spencer, and later advised Wynstra
that she had shown the letter to Spencer, who had stated that if Wynstra were in
Florida , and there were an opening, he would be willing to reemploy her, but that
he would be unable to keep the position open indefinitely.
In November 1945, Wynstra returned to Florida, and was reemployed by the
respondent, although not at the position which she formerly held, for the reason,
stated to her at the time, that Varela, who had replaced her, was rendering
outstanding service After some discussion with Fred Spencer, who had com-
plete charge of the shipping room, and later with him and Varela, it was agreed
that Wynstra and Varela would share equal authority and responsibility in the
shipping room. Wynstra was rehired at a salary of $26 per week for 48 hours.
Early in December, this was increased to $27 56
Within a week, according to the respondent, dissension developed in the
shipping department due to a conflict in authority between the two women.
According to witnesses for the respondent, Wynstra countermanded orders given
by Varela This finally reached a point where employees appealed to the Spen-
cers to ascertain who was "boss" in the shipping room It was decided to
separate Wynstra and V:u•ela, and Wynstra was assigned to checking incoming
merchandise, while Varela remained in charge of the shipping department At
about this time, and thereafter, Wynstra appeared to lose interest in her work,
became careless and indifferent, and began to make mistakes On a number
of occasions, according to the respondent, Wynstra reported shortages in in-
coming shipments, which, upon further investigation, disclosed that the items
had in fact been received, but misplaced by Wynstra, resulting in inconvenience,
embarrassment, and expense, in lost time On one occasion, when E. W. Spencer,
inquired about a shipment which had arrived, for which there appeared to be
no order, Wynstra, in reply to a request that she search for it, remarked that
she had been unable to find it, and suggested that Spencer search for it himself.
employees ) , that he stated to certain employees during the interviews , following their
application for ienistatement , after they went on strike, that it was immaterial to him
whether they belonged to a union that lie would not discriminate against them, and that
he did not discriminate against them thereafter ; and that lie had hired employees pre-
viously known to have been union members, but concludes that this evidence was insuffi-
cient to overcome the more posit've and persuasive evidence of discriminatory motive
45 Wynstra did not testify It was stated by counsel for the Board prior to the close
of the hearing that she had removed to New Jersey following her discharge , and was
therefore unavailable to testify No request for adjournment , or application for the taking
of her deposition was made to the undersigned The findings in this section are based
almost entirely upon testimony of the respondent ' s witnesses
4° According to Spencer , her salary in each instance was based upon a 54-hour week
SPENCER AUTO ELECTRIC, INC. 1445
At about the same time, the respondent discovered that Wynstra had begun
to make errors in checking orders, resulting in complaints from customers.
When E. W. Spencer complained to Wynstra that she was making too many
mistakes, and reminded her that she had performed her duties satisfactorily
during her former period of employment, remarking that lie could see no reason
for her mistakes, she "walked away" and ignored him Thereafter, according
to the respondent, the quality of her work and her general attitude deteriorated,
until early in December, when, at about the time it had arrived at its decision
to discharge Harte, it concluded that it would be obliged to discharge her. As
in the case of Harte, the respondent contended, however, that it did not want
to discharge her during the Christmas season, and waited instead until De-
cember 28, the day on which Harte was also discharged She was at no time
previously notified that the respondent intended to discharge her.
On Friday evening, December 28, shortly before 0 o'clock, Fred Spencer sent
for Wynstra, reviewed the history of her employment since her 'return to the
respondent, and informed her that the respondent had decided to terminate her
employment According to him, Wynstra replied, "well, that suits me fine. It
is all 'right with me " Spencer remarked that the respondent disliked discharg-
ing anyone, and that he hoped that there would be no "hard feelings." Although,
according to Fred Spencer, her pay period would have ended on January 3, he
informed her that he would have her salary computed and that her employment
would be terminated. She was thereupon discharged and has not been of-
fered reinstatement since.
Inasmuch as Wynstra did not testify at the hearing, the evidence regarding
her work performance, her attitude, and demeanor, as well as statements at-
tributed to her, based almost exclusively on testimony of the respondent's wit-
nesses, stands undisputed. It is evident that Wynstra undoubtedly resented the
necessity for working under Varela, after having formerly held the position of
supervisor herself, and it is probable that most of the complaints against her
stemmed from this fact. On the other hand, the respondent failed to explain
the fact that she was granted an increase, early in December, at about a time,
'according to the respondent, when it had already determined to discharge her
allegedly for incompetence Both Harte and Wynsti a were discharged exactly
1 week after the organizational meeting Although there was no showing that
1\Wynstra's activity in behalf of the Union was exceptional or outstanding, or
distinguished her in any way from some 10 other employees who had s gned
union cards the same night, this is not in itself conclusive of non-disciimination.
While the record discloses no evidence, or basis for finding, that she had been
singled out by the respondent for reprisal, her discharge on the sane day as
Harte can scarcely be accounted for as mere coincidence, despite the respondent's
contention that it had delayed this action until after Christmas for the reasons
indicated The testimony of Fred Spencer on this point appears significant
Said lie, in response to a question as to the reason he selected Friday as the day
for her discharge, `Because when we decided on Mr. Harte, we decided we
might as well eliminate Mrs Wynstra at the same time "
The record regarding Wynstra's discharge, and the antecedent and surrounding
circumstances, give rise to grave suspicion that the respondent's motivation in
discharging her was tainted by anti-union considerations Many of the factors
existing with respect to Harte, such as the shortage of qualified personnel, which
was unrelieved at the time of his discharge, exist with respect to her The
coincidence of timing, the increase granted at a time when her work was being
subjected to criticisms, her comparatively short period of employment, and her
previously satisfactory employment, all point to the direction of discrimination.
On the other hand, the uncontroverted testimony regarding her indifference, in-
1446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
subordination, and conflict with her successor, as well as the statement ascribed
to her at the time of the discharge, cannot be disregarded.
While the respondent's motivation in discharging her is shrouded in consider-
able doubt, the undersigned is not convinced that the record supports the con-
clusion that Wynstra was discharged, wholly or in material part, for union
considerations, and finds that the allegations in the complaint with respect to
her have not been sustained. It will therefore be recommended that those
allegations in the complaint be dismissed.
C. Concluding findings
Upon the basis of the foregoing and upon the entire record, the undersigned
concludes and finds that, by ignoring the Union's demand for recognition, after
the Union had acquired a majority, and without challenging its majority status ;
by thereafter interrogating employees regarding their union organizational ac-
tivity; and by discharging Harte, because lie had engaged in union or other
concerted activities, the respondent has committed unfair labor practices, as a
result of which the respondent's office and stock room employees concertedly
went on strike on December 29, 1945 The undersigned therefore finds that the
said strike was caused by the aforesaid unfair labor practices, and prolonged
by its continuing refusal to recognize the Union after December 29; by its re-
quirement that employees who unconditionally applied for reinstatement on
January 9, 1946, be interviewed individually, for the obvious purpose of ascer-
taining their views regarding the Union, and, in effect, requiring them to make
application for employment as new employees , in derogation of their status as
employees ; and by its interrogation of employees, who subsequently applied for
reemployment and consented to be interviewed, regarding the union activities
and affiliation of its employees."
It is further found that the respondent, by discharging Charles B Harte be-
cause of his membership in and activity in behalf of the Union, thereby discrimi-
nating in regard to his hire and tenure and terms and conditions of employment,
has discouraged membership in the Union.
It is further found that by all the foregoing conduct, hereinabove more specifi-
cally detailed, the iespondent has interfered with, restrained, and coerced its
employees in the exercise of the rights guaranteed in Section 7 of the Act, in
violation of Section 8 (1) and (3) thereof.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III above, occurring in
connection with the operations of the respondent described in Section I above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States, and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce
V. THE REMEDY
It has been found that the respondent has engaged in unfair labor practices.
It will therefore be recommended that it cease and desist therefrom and take
certain affirmative action designed to effectuate the policies of' the Act
47 "The real causes of a strike are to be found 'in the whole sequence of events' preceding
it, and this motivation is to be determined `in the light of the cumulative effect of [the
employer's] prior tainted labor practices'." Matter of Gordon P. Brown, an individual
d/b/a Brown Radio (Service and Laboratory, 70 N L It B 476, and cases cited therein
SPENCER AUTO ELECTRIC, INC. 1447
It has been found that the respondent has discriminated in regard to the
hire and tenure and terms and conditions of employment of Charles B. Harte,
thereby discouraging membership in the Union. Since it has been found that Harte
did not voluntarily terminate his employment, or commit himself to do so, it will
be recommended, in order to remedy that unfair labor practice, and to effectu-
ate the policies of the Act, that the respondent offer the said Harte immediate
and full reinstatement to his former or substantially equivalent position"
without prejudice to his seniority and other rights and privileges, and make
him whole for any loss of pay he may have suffered by reason of the respondent's
discrimination against him, by payment to hun of a sum of money equal to
the amount he would have earned as wages from the date of the discrimination
against him to the date of the respondent's offer of reinstatement, less his net
earnings 4° during said period.
It has also been found that certain employees of the respondent concertedly
went on strike on December 29, 1945, as a result of the respondent's unfair labor
practices, and that the said strike was prolonged thereafter by the said untair
labor practices, and the additional unfair labor practices occurring thereafter.
The undersigned will therefore recommend that the respondent offer the said
employees, who went on strike on December 29, unconditionally applied for rein-
statement on January 9, 1946, and have not since been reinstated, immediate and
full reinstatement to their former or substantially equivalent positions, without
prejudice to their seniority and other rights and privileges, dismissing, if neces-
sary any employees, who have, since December 29, 1945, been hired to replace
said employees, and make the said employees whole for any loss they may have
suffered by reason of the respondent's discrimination, by payment to each of
them of a sum of money equal to the amount they normally would have earned
from January 9, 1946, when they unconditionally applied for, and were de-
nied, reinstatement, to the date of the respondent's offer of reinstatement, less
each employees' net earnings 80 during said period 61
It will be seen from the foregoing and the entire record, especially in view
of the discriminatory discharge, which in itself is regarded as a most effective
method of discouraging employees in their right to self-organization, as well as
the various means resorted to by the respondent to frustrate the employees
in the exercise of that right, that the unfair labor practices committed by the
respondent are persuasively related to other unfair labor practices which the
Act proscribes Moreover, the undersigned is convinced that danger of the
commission of such unfair labor practices is to be anticipated from the respond-
ent's conduct in the past Unless this recommended order is commensuiate
with the threat, the preventive purposes of the Act will be defeated In order,
therefore, to make effective the interdependent guarantees of Section 7, to
4° In accordance with the Board's consistent interpretation of the term. the expression
"former or substantially equivalent position" is intended to mean "former position when-
ever possible, but if such position is no longer in existence, then to a substantially equiva-
lent position ." See Matter of The Chase National Bank of the City of New York, San
Juan, Puerto Rico Branch, 65 N L. R B. 827.
40 By "net earnings" is meant earnings less expenses, such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working else-
where than for the respondent, which would not have been incur red but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere . See Matter
of Crossett Lumber Company, 8 N L R B. 440 Monies received for work performed upon
Federal , State , county , municipal , or other work -relief projects shall be considered as earn-
ings See Republic Steel Corporation v. N. L. R. B ., 311 U. S. 7
50 See footnote 49, supra
"with respect to those employees who went on strike on December 29,'1945, were sub-
sequently reinstated , and have not since left voluntarily , it will be recommended that such
reinstatement be without prejudice to their seniority and other rights and privileges.
1448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
prevent a recurrence of unfair labor practices, and minimize industrial strife
which burdens and obstructs commerce, and to effectuate the policies of the
Act, the undersigned will recommend that the respondent be ordered to cease
and desist from in any manner infringing upon the rights guaranteed in Section
7 of the Act_
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, the undersigned makes the following :
CONCLUSIONS OF LAW
1 Office Employes International Union Local 46, affiliated with the American
Federation of Labor, is a labor organization within the meaning of Section 2 (5)
of the Act.
2 By discriminating in regard to the hire and tenure and terms and condi-
tions of employment of Charles B. Harte, thereby discouraging membership in
Office Employes International Union Local 46, affiliated with the American Fed-
eration of Labor, the respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (3) of the Act.
3. The strike of the respondent's employees which began on December 29,
1945, was caused, and subsequently prolonged by the respondent's unfair labor
practices.
4 By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8 (1)
of the Act.
5. The aforesaid upfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
6 The respondent has not discriminated in regard to the hire and tenure and
terms and conditions of employment of Ena Wynstra
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, the under-
signed recommends that the respondent, Spencer Auto Electric, Inc, Tampa,
Florida, its officers, agents, successors and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in Office Employes International Union Local
46, affiliated with the American Federation of Labor, or any other labor or-
ganization of its employees, by discharging or refusing to reinstate any of its
employees or in any other manner discriminating in regard to their hire and
tenure of employment, or any term or condition of employment;
(b) In any other manner interfering with, restraining or coercing its em-
ployees in the exercise of the right to self-organization, to form labor organiza-
tions, to join or assist Office Employes International Union Local 46, affiliated
with the American Federation of Labor, or any other labor organization, to
bargain collectively through representatives of their own choosing and to engage
in concerted activities for the purpose of collective bargaining, or other mutual
aid or protection as guaranteed in Section 7 of the Act
2. Take the following affirmative action which the undersigned finds will
effectuate the policies of the Act:
(a) Offer Charles B. Harte immediate and full reinstatement to his former
or substantially equivalent position without prejudice to his seniority and other
rights and privileges ;
SPENCER AUTO ELECTRIC, INC. 1449
(b) Make whole Charles B. Harte for any loss of pay he may have suffered
by reason of the respondent's discrimination against him by payment to him
of a sum of money equal to the amount determined in the manner set forth in
the section entitled "The remedy" above ;
(c) Offer all those employees who went on strike on December 29, 1945,
unconditionally applied for reinstatement on January 9, 1946, and have not
since been reinstated, immediate and full reinstatement to their former or
substantially equivalent positions, without prejudice to their seniority and
other rights and privileges, dismissing, if necessary, any employees who have,
since December 29, 1945, been hired to replace said employees; and with respect
to those employees who went on strike on December 29, 1945, were subsequently
reinstated and have not since left voluntarily, restore them to their seniority
and other rights and privileges ;
(d) Make whole all those employees who went on strike on December 29,
1945, unconditionally applied for reinstatement on January 9, 1946, and have
not yet been reinstated, for any loss they may have suffered in the manner set
forth in the section entitled "The remedy" above ;
(e) Post immediately at its offices at Tampa, Florida, copies of the notice
attached to this Intermediate Report marked "Appendix A." Copies of said
notice, to be furnished by the Regional Director for the Tenth Region, after
being duly signed by the respondent, shall be posted by the respondent imme-
diately upon receipt thereof, and maintained by it for sixty (60) consecutive'
days thereafter, in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall be taken by the
respondent to insure that said notices are not altered, defaced or covered by
any other material;
(f) File with the Regional Director for the Tenth Region on or before ten
(10) days from the date of the receipt of this Intermediate Report, a report in
writing setting forth in detail the manner and form in which the respondent
has complied with the foregoing recommendations
It is further recommended that unless on or before ten (10) days from the
receipt of this Intermediate Report the respondent notify said Regional Director
in writing that it will comply with the foregoing recommendations, the Na-
tional Labor Relations Board issue an order requiring the respondent to take
the action aforesaid.
It is further recommended that the complaint be dismissed insofar as it
alleges that the respondent discriminated against Ena Wynstra
As provided in Section 203 39 of the Rules and Regulations of the National
Labor Relations Board, Series 4, effective September 11, 1946, any party or
counsel for the Board may, within fifteen (15) days from the date of service of
the order transferring the case to the Board pursuant to Section 203 38 of said
Rules and Regulations, file with the Board, Rochambeau Building, Washington 25,
D. C., an original and four copies of a statement in writing setting forth such excep-
tions to the Intermediate Report or to any other part of the record or proceeding
(including rulings upon all motions or objections) as he relies upon, together
with the original and four copies of a brief in support thereof ; and any party or
counsel for the Board may, within the same period, file an original and four
copies of a brief in support of the Intermediate Report. Immediately upon the
filing of such statement of exceptions and/or briefs, the party or counsel for the
Board filing the same shall serve a copy thereof upon each of the other parties
and shall file a copy with the Regional Director. Proof of service on the other
parties of all papers bled with the Board shall be promptly made as required by
1450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Section 203.65 As further provided in said Section 203.39, should any party
desire permission to argue orally before the Board, request therefor must be
made in writing to the Board within ten (10) days from the date of service of
the order transferring the case to the Board.
IRvINO RoaoslN,
Trial Examiner.
Dated November 22, 1946.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
We will not in any manner interfere with, restrain, or coerce our employees
in the exercise of their right to self-organization, to form labor organizations,
to join or assist Office Employes International Union Local 46, affiliated with
the American Federation of Labor or any other labor organization, to bar-
gain collectively through representatives of their own choosing, and to engage
in concerted activities for the purpose of collective bargaining or other mutual
aid or protection.
We will offer to the employees named below immediate and full reinstate-
ment to their former or substantially equivalent positions without prejudice
to any seniority or other rights and privileges previously enjoyed, and make
them whole for any loss of pay suffered as a result of the discrimination.
Charles B. Harte
We will offer to all those employees who went on strike on December 29,
1945, unconditionally applied for reinstatement on January 9, 1946, and who
have not since been reinstated, immediate and full reinstatement to their
former or substantially equivalent positions, dismissing, if necessary, any
employees who have, since December 29, 1945, been hired to replace them,
without prejudice to any seniority or other rights and privileges previously
enjoyed, and make them whole for any loss of pay they may have suffered by
reason of the discrimination against them, and with respect to those em-
ployees who went on strike on December 29, 1945, were subsequently rein-
stated, and have not since left voluntarily, we will restore them,"without
prejudice, to any seniority or other rights and privileges previously enjoyed
by them.
All our employees are free to become or remain members of the above-named.
union or any other labor organization. We will not discriminate in regard to
hire or tenure of employment or any term or condition of employment against any
employee because of membership in or activity on behalf of any such labor
organization.
SPENCER AUTO ELECTRIC, INC,
Employer.
Dated----------------------------- By------------------------------------
(Representative) (Title)
NOTE-Any of the above-named employees presently serving in the Armed
Forces of the United States will be offered full reinstatement upon application in
accordance with the Selective Service Act after discharge from the Armed Forces.
This notice must remain posted for 60 days from the date hereof, and must not
be altered, defaced, or covered by any other material.