Modern Motors, Inc.Download PDFNational Labor Relations Board - Board DecisionsOct 19, 195196 N.L.R.B. 964 (N.L.R.B. 1951) Copy Citation 964 DECISIONS OF NATIONAL, LABOR RELATIONS BOARD the Company to recognize or bargain with, it as- the, representative of its em-, ployees in an appropriate unit, notwithstanding the fact that the UAW had been certified by the Board as the exclusive representative of said employees, engaged in unfair labor practices, within the meaning of Section 8- (b) (4) (C) of the Act. , [Recommended Order omitted from publication in this volume.] Appendix A NOTICE TO ALL MEMBERS AND EMPLOYEES OF UNION CHEVROLET COMPANY Pursuant to the recommendations of a Trial, Exaiuiller of the ,National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our members and employees of Union Chevrolet Company, that : During the operative and effective period of a certain certification of employee-representatives issued by the National Labor Relations Board on December 23, 1949, in Case No. 17-RC-521, or any other certification of a labor organization, other than INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, OVER-THE-ROAD AND CITY TRANSFER DRIVERS, HELPERS, DOCKMEN AND WAREHOUSEMEN LOCAL NO. 41, A. F. or L., we will not induce or encourage the employees of Union Chevrolet Company, or of any employer, to engage in a'concerted refusal in the course of their employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commod- ities or to perform any services, where an object thereof is forcing or requiring Union Chevrolet Company to recognize or bargain with us as the representative of any employees of Union Chevrolet Company, in the col- lective bargaining unit-of employees covered by such certification. INTERNATIONAL BROTHERHOOD OF TEAM- STERS, CHAUFFEURS, WAREHOUSEMEN, AND HELPERS OF AMERICA , OVER-THE- ROAD AND CITY TRANSFER DRIVERS, HELP- ERS, DOCKMEN AND WAREHOUSEMEN, LOCAL No. 41, A. F. OF L. By -------------------- ----------------- (Representative ) (Title) Dated ------------------------ MODERN MOTORS, INCORPORATED and INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, GENERAL TEAMSTERS, CHAUFFEURS' AND HELPERS' LOCAL 460, A. F. OF L. Case No. 17-CA-269. October 19,1951 Decision and Order On May 31, 1951, Trial Examiner Henry J. Kent issued his Inter- mediate 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 96 NLRB No. 138. MODERN MOTORS, INCORPORATED 965 take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief. The Respondent's request for oral argument is denied inasmuch as the record and brief, in our opinion, adequately reflect the issues and the positions of the parties. The Board' has reviewed the rulings of the Trial Examiner 2 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 following corrections,3 additions, and modi- fications : 1. The Trial Examiner found, and we agree, that the Respondent violated the Act by discharging employees Banks, Sullivan, and Zeiber on December 27, 1949. The Respondent argues that Banks,. Sullivan, and Zeiber were discharged for insubordination not pro. tected by the Act. We find no merit in this contention. It is well established, as the Trial Examiner found, that the conduct of a group. of employees in stopping work and concertedly presenting a grievance, concerning conditions of employment is within the protection of the Act 4 The employees here involved acted concertedly to present a grievance arising out of the Respondent's refusal to pay a bonus as it, had in previous years. Although the Respondent's president, Talia ferro, met with the employees and furnished some explanation for not, paying the bonus, he was not thereafter privileged to discharge Banks,. Sullivan, and Zeiber merely because, instead of obeying his back-to-- 'Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated Its, powers in connection with this case to a three-member panel [Members Houston, Mur- clock, and Styles]. 2 The Trial Examiner, over the Respondent's exceptions, granted the General Counsel's motion to amend the complaint to include allegations that on or about January 10, 1950, the Respondent violated Section 8 (a) (1) of the Act by interrogating employees as to membership in the Union and by threats of economic reprisal. As the alleged unfair labor practices occurred within 6 months of the filing and service of the original charge, these allegations were properly and timely added in the amended complaint. Cat hey Lumber Company, 86 NLRB 157, enfd., 185 F. 2d 1021 (C. A. 5). In the absence of ex- ceptions thereto, the Trial Examiner' s dismissal of the additional allegations is affirmed. 8 The Intermediate Report contains certain inadvertances, none of which affects the Trial Examiner's ultimate conclusions nor our concurrence therein. Accordingly, we note the following corrections : (1) Picketing the Respondent's truck division commenced on December 29, 1949, not a week or two after December 27; (2) Sullivan and Banks went to Olmsted as a result of their meeting with Church and then were directed to. Kranitz; and (3) on December 27 or within a few days thereafter, the document designat- ing Banks and Sullivan to arrange for employment of legal counsel to pursue the bonus claim was signed by 5 of the 11 employees who participated in the work stoppage rather than by "substantially all of the employees who engaged in the work stoppage. . . . 4N. L. R. B. v. Kennametal, Inc., 182 F. 2d 81 (C. A. 3) ; Gullett Gin Company, Inc. v. N. L. R. B., 179 F. 2d 499 (C. A. 5) ; Olin Industrtas, Inc. Y. N, L. R. B., 191 F. 2d 613:. (C. A. 5) ; Carter Carburetor Corp. v. N. L. R. B., 140 F. 2d 714 (C. A. 8). 974176-52-vol. 96-62 966 DECISIONS OF NATIONAL LABOR RELATIONS BOARD work order, they chose to strike .5 Taliaferro had expressed firm opposition to further dealing with the group of employees, and had coupled this with a threat of discharge for continued refusal to work. The employees, confronted with the threat of discharge unless they abandoned their collective effort to obtain a bonus, had the right to leave the building on strike in order to exert the maximum economic pressure. However, as Sullivan testified credibly, Zeiber suggested that Banks and Sullivan "go and get us some legal advice." While Banks and Sullivan left the building in search of legal counsels all the employees except Zeiber returned to work.' It is clear that Banks, Sullivan, and Zeiber enjoyed, under the Act, the right to press the bonus demand by striking." As economic strikers they did not forfeit their status as employees, and the Respondent was not free to discharge them for striking. Accordingly, we find that by discharging Banks, Sullivan, and Zeiber, the Respondent violated Section 8 (a) (1) of the Act .9 2. The Respondent further contends that the discharges did not discourage membership in a labor organization because no labor or- ganization was organized at the Respondent's plant at that time. Contrary to the Respondent's contention, however, it is sufficient to constitute a "labor organization" within the meaning of Section 2 (5) of the Act that the employees acted in concert for the purpose of pre- 5 We do not adopt the Trial Examiner ' s comment with regard to Taliaferro ' s lack of "a pronounced anti -union bias." 8 The Respondent excepts to the Trial Examiner 's finding that Taliaferro was aware that Banks and Sullivan left the building in search of an attorney . In view of Talia- ferro ' s unqualified threat to discharge any employee who remained away from his job regardless of the nature of the concerted activity , it is immaterial whether Taliaferro knew of the specific purpose for which Banks and Sullivan left the plant . We thus deem it unnecessary to rely on the Trial Examiner ' s finding. 7 Zeiber testified that he was following Banks ' and Sullivan 's instructions to "stay and watch over the men until they got back." The Trial Examiner found that after the Respondent decided to discharge Banks and Sullivan , Zeiber informed his foreman that he was not returning to -work until Banks and Sullivan returned from their conference with a lawyer , whereupon Zeiber was dis- charged . The record shows , however, that when Banks and Sullivan returned at noontime , Zeiber indicated his readiness to resume work , at which point he was dis- charged by his foreman. The Trial Examiner's finding is amended accordingly. Zeiber's action was clearly in support of the efforts of Banks and Sullvan to convince the Re- spondent that it should continue its bonus payment practice . Cf. N. L. R. B. v. American. Manufacturing Company , 106 F. 2d 61 , 68 (C. A. 2). As Banks, Sullivan , and Zeiber offered unconditionally to return to work on the day of their discharge , we shall, like the Trial Examiner , order back pay from the date of their discharge. 8 Cf. Globe Wireless, Ltd., 88 NLRB 1262. The work stoppage in the present case was not accompanied by violence , and was not a sitdown nor an attempt by the employees to fix for themselves the terms and conditions of employment. 8 We do not adopt the Trial Examiner ' s discussion of N. L. R. B. v. Condenser Corpora- tion, 128 F . 2d 67 ( C. A. 3), as distinguished from the instant case . In the Condenser case, the discharge was upheld because the employees stood around in the plant refusing to work though promised a meeting with the employer later in the day. In the view of that court "Employees cannot insist that their demands be met in the middle of a work- ing day , when the employer has promised to deal with them as a group at the end of the day." In the instant case, the three employees were discharged because, following a meeting with the Respondent , they chose to engage in an economic strike. MODERN MOTORS, INCORPORATED 967 -senting a grievance relating to their terms or conditions of work 1e We therefore find that by acting in concert to compel the Respondent to entertain their bonus grievance, the employees involved constituted themselves a labor organization, and that the discrimination against Banks, Sullivan, and Zeiber therefore discouraged membership in a labor organization in violation of Section 8 (a) (3) of the Act. We further find that the remedy of reinstatement and back pay is appro- priate and necessary to remedy the unfair labor practices involved herein without regard to whether the discriminatory discharges be deemed a violation of Section 8 (a) (1) or of Section 8 (a) (3) of the Act." The Remedy The Respondent's discharge of John J. Banks, Joseph H. Sullivan, and Harry Zeiber in violation of Section 8 (a) (3) and Section 8 .(a) (1) of the Act "goes to the very heart of the Act" 12 and, in our opinion, discloses a purpose to defeat self-organization and its objec- tives. Because of this conduct and its underlying purpose, we are convinced that the unfair labor practices found are persuasively re- lated to other unfair labor practices proscribed by the Act; that the danger of their commission in the future is to be anticipated from the Respondent's conduct in the past; and that the preventive purposes of the Act will be thwarted unless our order is coextensive with the threat.13 Like the Trial Examiner, we shall therefore order the Re- spondent to cease and desist from infringing in any manner upon the rights of employees guaranteed in Section 7 of the Act. Order Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the Respondent, Modern Motors, Incorpo- rated, St. Joseph, Missouri, and its agents, officers, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in any labor organization of its employees, by discharging or refusing to reinstate any of its employees, :LO N L. R. B. v Kennametal, Inc., supra ; Smith Victory Corporation , 9& NLRB 2089,- enfd . 190 F. 2d 56 (C. A. 2) ; N L. R. B. v. Tovrea Packing Company, 111 F. 2d 626, 629 (C. A. 9) Moreover, that the group of employees approved Banks and Sullivan as spokesmen is evidenced by the fact that no effort was made to disclaim the grievance representations made by Banks and Sullivan to Taliaferro in the presence of the group. It further appears that the role of spokesmen fell to Banks and Sullivan by virtue of their seniority in the shop. n The Sandy Hilt Iron & Brass Works, 55 NLRB 1, enfd. 145 F. 2d 631 (C. A. 2) ; Alside, Inc., 88 NLRB 460. 12 N L. R. B. v. Entwistle Manufacturing Company, 120 F. 2d 532 (C. A. 4). 13 See N. L. R. B. v. Express Publishing Company, 312 U. S. 426; May Department Stores Company v N. L. R. B., 326 U. S 376. 968 DECISIONS OF NATIONAL LABOR RELATIONS BOARD or by discriminating in any other manner in regard ,to their hire or tenure of employment or any term or condition of employment. (b) 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 bargain collectively through representatives of their own choosing, and to engage in concerted activities for the pur- pose of collective bargaining or other mutual aid or protection, or to- refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. _ 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Offer to John J. Banks, Joseph H. Sullivan, and Harry Zeiber immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make each of them- whole in the manner set forth in the section of the Intermediate Report entitled "The Remedy` for any loss of pay he may have suffered by reason of the Respondent's discrimination against him. (b) Upon request, make available to the Board, or its agents, for examination and copying, all payroll records, time cards, personnel records and reports, and all other records necessary to analyze the amounts of back pay due and the right of reinstatement under the terms of this Order. (c) Post at each of its St. Joseph, Missouri, garages, copies of the notice attached to the Intermediate Report marked "Appendix A." 14 Copies of said notice, to be furnished to the Respondent by the Re- gional Director for the Seventeenth Region, shall, after being duly signed by the Respondent, be posted by it immediately upon receipt thereof, and be maintained by it for sixty (60) consecutive days there- after in conspicuous places, including all places where notices to em- ployees 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. (•d) Notify the Regional Director for the Seventeenth Region, in writing, within ten (10) days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint, insofar as it alleges that the Respondent violated the Act by conduct other than that found to be violative in this Decision and Order, be, and it hereby is, dismissed. 14 Said notice , however, shall be, and it hereby Is, amended by striking therefrom the words "The Recommendations of a Trial Examiner" and substituting in lien thereof the words "A Decision and Order ." In the event that this Order is enforced by decree of a United States Court of Appeals , there shall be inserted before the words, "A Decision and Order ," the words , "A Decree of the United States Court of Appeals Enforcing." MODERN MOTORS, INCORPORATED 969 Intermediate Report and Recommended Order STATEMENT OF THE CASE Upon a charge duly filed on February 20, 1950, by General Teamsters', Chauf- feurs' and Helpers' Local 460, an affiliate of International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, A. F. of L., herein called the Union; against Modern Motors, Incorporated, herein called the Re- spondent, the General, Counsel for the National Labor Relations Board, the latter 7iereinafter called the Board, by the Regional Director for the Seventeenth Re- gion, Kansas City, Missouri, on August 24, 1950, issued his complaint, alleging that the Respondent had engaged in and was engaging in unfair labor practices -within the meaning of Section 8 (a) (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act. Copies of the complaint, the charge, and notice of hearing were duly served upon the Respondent. With respect to the unfair labor practices, the complaint as amended at the :hearing, alleged in substance : (1) Respondent discharged employees John J. Banks, Joseph H. Sullivan, and Harry Zeiber, on or about December 27, 1949, and has since failed to reinstate each of them because they engaged in concerted .activities with other employees (adherents of the- so-called "Employee's Com- mittee") for the purpose of collective bargaining and other mutual aid or protec- tion ; (2) in the alternative, because the above-named employees engaged in activities-upon behalf of the charging Union; and (3) Respondent on or about January 10, 1950, interrogated its employees regarding union membership and activities and threatened the said employees by voicing threats to its employees that adherence to the Union would result in a reduction of wages. - The Respondent duly filed its answer admitting the allegations of the com- plaint regarding its business operations and also admitting that it had discharged Banks, Sullivan, and Zeiber, but averring that the discharges had been validly imposed for insubordination and misconduct connected with the work of the three said employees. The answer further denied that the so-called "Employee's -Committee" was a labor organization within the meaning of the Act, and that Respondent had engaged in any of the alleged unfair labor practices. As -an affirmative defense, the answer further averred that the three allegedly dis- criminatorily discharged employees had unsuccessfully prosecuted actions based upon alleged wrongful discharges before tribunals duly established by the Di- vision of Employment Security of the State of Missouri, and that by reason thereof the matter is res judicata insofar as the question of discriminatory dis- charges is involved, in the instant case. Pursuant to notice, a hearing was held at St. Joseph, Missouri, on December 4 to December 6, both inclusive, 1950, before me, the duly designated Trial Ex- aminer. The General Counsel and the Respondent were each represented by counsel and the Union by a representative. Full opportunity was afforded all parties to be heard, to introduce evidence, and to examine and cross-examine witnesses. At the opening of the hearing, counsel for the General Counsel moved to amend the complaint by adding certain specific 8 (a) (1) allegations to the effect that Respondent, on or about January 10, 1950, interrogated employees concerning membership in the Union and also threatened that membership and adherence to the Union would result in reduced earnings. The motion was granted over objections interposed by the Respondent that the proposed amend- It is noted that the charge was signed by one Warren S. Welsh, as business represent- ative of Local 460, General Teamsters,' Chauffeurs' and Helpers' Union. 970 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ments were invalid, because the charge filed'by the Union failed to include these allegations. Since the proposed amendments pertained to unfair labor prac- tices allegedly committed after the filing of the charge and were purportedly discovered during the General Counsel's preliminary investigation of the case, the Respondent's contention may not be sustained? The parties engaged in oral argument before the undersigned at the close of the hearing and requested time in which to file briefs. Time was fixed and later extended. Briefs have been duly received from the Respondent and the General Counsel. Upon the entire record and from my observation of the witnesses, I make the following : FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Modern Motors, Incorporated, is a Missouri corporation principally engaged in the sale and servicing of Ford automobiles, trucks, replacement parts, and other supplies for such automotive equipment at St. Joseph, Missouri. It is a direct dealer of, and under franchise with, the Ford Motor Company of Dear- born, Michigan. New automobiles, trucks, and parts are shipped to the Re- spondent from the Ford Motor Company assembly plant at Kansas City, Mis- souri, substantially all of which items were initially processed outside the State of Missouri. During the year of 1949, Respondent purchased new automobiles, trucks, and replacement parts valued at in excess of $1,138,000. During the same period, the sales and services to customers by the Respondent were valued in excess of $1,844,000, approximately 2 percent of which was sold to customers residing outside the State of Missouri. On the record made, the undersigned finds that the Respondent is engaged in commerce within the meaning of the Act, and that it will effectuate the policies of the Act to assert jurisdiction in the case.3 II. THE LABOR ORGANIZATIONS INVOLVED General Teamsters', Chauffeurs' and Helpers' Local 460, an affiliate of In- ternational Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, A. F. 'of L., is a labor organization admitting to membership em- ployees of the Respondent. The so-called - "Employee's Committee" (more particularly -discussed below) is also a labor organization within the meaning of Section 2 (5) of the Act, informally organized to deal with grievances on behalf of the Respondent's em- ployees at its truck service garage. III. THE UNFAIR LABOR PRACTICES A. Introductory findings concerning the factual and labor relations background For several years before December 1948, the Respondent conducted all of its automotive service and repair work at a building located at Tenth and Francis Streets in St. Joseph, Missouri. In December 1948, the truck sales and service operations were transferred to a building located at Fourth and Monterey Streets, also in St. Joseph, Mis- 2 National Licorice Company v. N. L. R B., 309 U. S. 350, 362 ; Cathey Lumber Company, 86 NLRB l57; Biggs Antique Co, Inc, 80 NLRB 345, 348. 8 The Strang Garage Company, 93 NLRB 900 ; Conover Motor Company, 93 NLRB 867 ; Baxter Bros., 91 NLRB 1480. 0 MODERN MOTORS, INCORPORATED 971 souri, and since this time special shops have been maintained for servicing of passenger automobiles and trucks. During the year of 1946, the Respondent initiated a bonus plan devised to give all of its rank-and-file employees an opportunity to share in the profits earned during that year. This bonus arrangement was continued during the years of 1947 and 1948, but dropped in 1949, because of an asserted curtailment of profits, and resumed again in 1950. Usually a substantial part of the bonus earned during a current year was distributed at the annual Christmas party given by the Respondent for its employees. Customarily, when the checks for the balance of the earned bonus for a current year were handed out at the Christmas parties, an announcement was simultaneously made that the bonus arrangement would continue in force during the following year. Bonus checks for the unpaid balance of the amounts due on the 1948 bonus were distributed at the 1948 Christmas party. On this occasion, however, no. announcement was made that a similar bonus would be paid in 1949, as had been announced at the previous Christmas parties held in 1946 and 1947. The Respondent, credibly asserts without contradiction that the failure to announce the payment of a bonus for 1949 was due to the fact that rumors were rampant that a strike was imminent at the main manufacturing plant of the Ford Motor Company and the Respondent feared that its earnings for 1949 would be materially reduced. A few weeks later the Ford plant was struck and out of operation for sev- eral weeks or months during 1949. Thereafter, during 1949, the Respondent voiced no promise regarding a bonus payment in 1949, but, at most, stated that it might be able to pay some bonus in the latter part of the year if earnings improved.' Insofar as the record shows, none of the Respondent's employees engaged in activities on behalf of any formally organized labor union until after employees- Banks, Sullivan, and Zeiber, the alleged discriminatorily discharged workers had been discharged on December 27, 1949. B. The grievances of the unorganized mechanics at the Respondent's truck division According to the testimony of Taliaferro, Respondent's president, he announced at the Christmas party held on December 24, 1949, that no bonus could be paid to the employees for 1949, but said he gave no detailed explanation why one- could not be paid 6 As might be expected, Taliaferro's above announcement and the failure to receive bonus checks at this party created much discussion and dissatisfaction among the employees, especially among the mechanics working at the truck division. Before the party ended, McAllister, Respondent's vice president, informally stated to some of the employees present that the Respondent was presently at= tempting to work out a new bonus plan for 1950. A few weeks later a bonus plan for 1950 was established. 4 The above findings are based upon the credited testimony of J. R Taliaferro and E. C. McAllister, Respondent's president and vice president, respectively, which has not been. convincingly contradicted 5 Sullivan, one of the dischargees, however, admitted while testifying for the General Counsel that Taliaferro stated at the time that the Company had not earned enough to justify paying a bonus. 972 DECISIONS OF NATIONAL LABOR-RELATIONS BOARD C. The so-called "Employees' Committee" at the truck division; the work stop- page on December 27; the discharges of employees Banks, Sullivan , and Zeiber, on December 27, 1949 1. The activities of the so-called "Employees' Committee" and the work stoppage on December 27, 1949 Before work began at 8 o'clock on the morning of December 27, 1949, at the truck division shop e 11 of the shop mechanics informally met and agreed not to start work until an effort was made to convince Taliaferro, Respondent's presi- dent, that they were entitled to a bonus for 1949. During informal discussions, before the group met with Taliaferro on this morning, a general understanding was reached that employees Banks and Sullivan would act as spokesmen for the group.? When the 11 employees failed to start work at 8 o'clock on this morning Ralph Evans, the line foreman in the shop, asked them why they were not work- ing. According to Evans' credited and undenied testimony, either employee Banks, Sullivan, or Zeiber asserted that these employees were not going to work until they were given an opportunity to meet with Taliaferro and urged the latter to pay them a bonus for work performed during 1949. Evans then notified Mc- Allister, Respondent's vice president, regarding the situation and about an hour later Taliaferro and McAllister came to the shop to meet with the employees who had engaged in the work stoppage. According to Taliaferro's credited and undenied testimony, he and the group of dissatisfied employees engaged in the following conversation : They advised me they thought they were entitled to a bonus. They were not going to work, Banks and Sullivan [emphasis supplied] stated that they were not going to work until they received their bonus. I, in detail, outlined to them that no bonus plan had been outlined for 1949, and that the Company had lost considerable money in the operations of the truck division, that we were not in any position to pay a bonus, and that no bonus had been promised or would be paid. I further stated that the plant was full of work, that there was work to be done, customers were waiting, there was work for all of them to do, and that they should go to work or leave the building. After further discussion about returning to work, Mr. Sullivan stated [emphasis supplied] "I think we are entitled to legal advice." In reply, I stated, "I am not dealing with your' attorneys, I am dealing with you men as individuals and always have dealt with you as individuals, there is work to be done and I ask you to go to work or leave the building." Following this, discussion, Tabaferro left the group and walked into the plant office, presumably to wait and ascertain if the employees were going to return to work. A few minutes later, while Taliaferro was in the plant office, Banks used the telephone in the shop to call one Sam Church (described by Banks as a prominent citizen of St. Joseph, Missouri), to obtain the name of a competent local lawyer to advise Banks and Sullivan regarding future action the employees might take to secure a bonus for 1949. Immediately after making the call, Banks and Sullivan e Because Christmas fell on Sunday in 1949, and Monday was ordered as a holiday,- Tuesday, December 27, was the next working day after Respondent had announced at the Christmas party held on December 24, that no bonus would be paid for 1949. 7 These findings are based upon the credited testimony given by employees George Morey and Harry Zeiber which was not convincingly contradicted. MODERN MOTORS, INCORPORATED 973 left the shop,to meet with Church who had agreed to help them obtain counsel. As a result-of their meeting with Church, they conferred with Louis Kranitz, a local lawyer, on the same morning.' Kranitz prepared and handed to Sullivan a document in evidence which authorized Banks and Sullivan to retain counsel to press a claim upon behalf of all the employees who signed it for monies pur- portedly due them as a bonus for 1949,9 whereupon about noon on this same morning the two employees left Kranitz' office and returned to the shop with the purpose of returning to work and advising all of the other employees who had engaged in the work stoppage to do likewise. Meanwhile, a few minutes after Banks and Sullivan had left the shop to consult counsel, Taliaferro walked back into the shop to ascertain if the group had re- turned to work. On learning that some of them had and others had not done so, and that Banks and Sullivan had left the building, Taliaferro announced to the employees in the shop that he was discharging Banks and Sullivan forthwith for their refusal to return to work, and he then ordered all of the others who had participated in the work stoppage to "go to work or get your tools and leave the building." After this remark from Taliaferro, all of the dissident group present there who had not previously returned to their jobs, except Harry Zeiber, resumed work. 2. The discharges on December 27, 1949 According to Zeiber's credited and undenied testimony, he told Carl Richmond, his foreman, after Taliaferro announced that Banks and Sullivan had been dis- charged, that he would not return to his job until Banks and Sullivan returned from their conference with a lawyer, whereupon Richmond asserted, "you are fired along with John [Banks] and Joe [Sullivan] and your check will be down pretty soon." Although Taliaferro had announced to the employees in the shop, about 10 o'clock on the morning of December 27, 1949, that he had discharged Banks and Sullivan, neither of these employees was formally notified regarding their re- spective discharges until they returned to the shop about 1 o'clock on that after- noon with the intention of returning to work. At this time their respective foremen told Banks and Sullivan that each of them had been discharged by Taliaferro. On the same afternoon each of the three employees received final termination checks. Thereafter each of them received letters dated January 4, 1950, each of which, among other things, stated : The nature of your work was that of automobile mechanic and the charac- ter of your service was good. You were discharged because you refused to work 19 8 According to the credited and undenied testimony of employee Zeiber, Banks and Sullivan, before leaving the shop, requested Zeiber to try and prevail on the other strikers not to return to work until Banks and Sullivan returned from the lawyer's office. 'Substantially all of the employees who engaged in the work stoppage signed this document on the same day Banks and Sullivan received it or within a few days thereafter, but the record fails to show that Kranitz later took any action to press the bonus claim. 10In addition, the respective letters stated that Banks had been regularly employed from February 5, 1946, to February 23, 1949, and from February 28, 1949, to December 27, 1949 ; that Sullivan had been employed from August 26, 1946, to July 12, 1949, and from August 24, 1949, to December 27, 1949. The record further shows, according to Taliaferro, that new employees were not hired to replace Banks, Sullivan, and Zeiber until a week or two after December 27, 1949. '974 DECISIONS OF NATIONAL LABOR RELATIONS BOARD D. Events following the discharges; other alleged interference, restraint, and coercion 1. The advent of the Union According to the credited and uncontradicted testimony of Banks, he called upon Warren Welsh, the business representative of the charging Union, on the night of December 27, 1949, after he had been discharged earlier on that same day. On this same night or a day or two thereafter, Banks and substantially all of the other employees who had participated in the work stoppage.^on the morning of December 27, signed application cards for the Union.'1 By letter dated January 3, 1950, the Union in substance asserted to the Respondent that it represented 12 employees working as mechanics and body shop repairmen at the truck division (whose names were stated in the letter), and requested the Respondent to meet with union representatives on January 4, the following day, for the purpose of according recognition to the Union as the bargaining agent in a claimed appropriate unit L Subsequently by letter dated January 9, 1950, the Union sent another letter to the Respondent naming 5 additional employees at the truck division whom it also claimed to represent. Presumably, although it does not conclusively appear in the record, the Re- spondent questioned the appropriateness of the bargaining unit sought-by the Union, because on January 16, 1950, (according to a stipulation in the record) the Union filed a petition for certification (Case No. 17-RC-654), which petition was dismissed by the Regional Director about 1 month later for the reason that the claimed unit was inappropriate. Meanwhile, about a week or two after December 27, 1949, Banks, Sullivan, and Zeiber started to picket the truck division and carried signs which read, according to Sullivan, "We were discharged by Modern Motors, Incorporated, because we wanted wages for our work." The picket line was maintained by the three men for about 2 or 3 weeks, according to Sullivan's credited testimony. 2. Proceedings taken by Banks, Sullivan, and Zeiber before an agency of the State of Missouri, in an effort to 'recover compensation for alleged wrongful discharges In substance, Banks, Sullivan, and Zeiber each admitted that following their discharges, claims for compensation were prosecuted by them before tribunals set up by the Division of Employment Security of the State of Missouri. They each, in substance, admit that their claims were disallowed and that the agency found that each of them was discharged for insubordination and misconduct connected with their work. 3. Other alleged interference, restraint, and coercion Following the receipt of the letters from the Union requesting recognition of the Union as bargaining agent for the mechanics at its truck division, Taliaferro admits that he called in most of the rank-and-file employees in the passenger automobile as well as the truck service and repair departments, in groups of four or five, and notified them that the Union was claiming to represent the employees at the truck division. u Insofar as the record discloses , these were the first formal union activities engaged in by any of the Respondent's employees. 11 The names of Sullivan , Banks, and Zeiber, the employees discharged on December 27, 1949, were 3 of the 12 employees named in this letter. MODERN MOTORS, INCORPORATED 975 His testimony regarding the statements he made to the employees present at these meetings is as follows : I called a meeting of various groups of employees located at Tenth and Francis [automobile division] as well as Fourth and Monterey [truck division ] and outlined to them that it was their right and privilege to join a union if they so desired and if an election was held and they voted to go into a union that was their privilege, that I had dealt with unions in the past in my,capacity .as assistant manager of the Ford Motor Company and I would be willing to deal with them through a union or individually. If they elected to have a union I would deal with them as a union. I pointed out to them that there were two union agreements covering similar types of work in St. Joseph, the Midland Manufacturing Company and the Inter- national Harvester Company. Those contracts we had examined and.ex- amined their workweek and the amount of pay earned, and that in every instance the employees of Modern Motors were earning in excess of the amount under these two labor agreements. I also pointed out to these employees that they were receiving paid holidays, which was the usual ap- proach to an organizing operation, that they were 'also receiving hos- pitalization benefits, were offered insurance benefits and were certainly enjoying good working conditions. In addition Taliaferro categorically denied that he threatened to cut the hours ,or curtail the work of any employees if they joined the Union, and further asserted in substance" that he merely pointed out to them that the International Harvester plant was working a shorter workweek and paid a lower wage scale than Respondent. The versions given by employees George and Oris Morey, each of whom was called as witnesses by the General Counsel, regarding statements made by Taliaferro at the meetings, with Taliaferro which they attended in January 1950, were in substantial agreement with Taliaferro's version related above. Likewise the versions given by employees "Slim" Hodges, Sherman Dixon, Roy Robinson, and Wilford Hrenchir, all of whom were called as witnesses by the Respondent, in respect to the statements made by Taliaferro, at similar meetings, also substantially agreed with the above version related by Taliaferro." On the other hand, Lloyd Roberts and Amos Mitchell, each of whom was called as a witness by the General Counsel, testified in substance that according to their understanding Taliaferro stated that their wages would probably be reduced if they were working under a union contract. When Mitchell, more- over, was recalled for further cross-examination he admitted that Taliaferro did not say that he would cut the wages or hours of the employees if they organized. Basing my opinion upon my observation of the various witnesses I conclude that Taliaferro, and the two Morey' s, Hodges, Dixon, Robinson, and Hrenchir were more reliable and trustworthy witnesses than Roberts and Mitchell, who I concluded were basing their testimony upon conclusions rather than facts. In my opinion the proof offered to support the allegation in the complaint that membership and adherence to the Union would result in a reduction of wages is not of the quality or preponderance to sustain a finding that Respondent threatened to curtail wages or hours of employment if the Union organized the plant. " In addition Hrenchir and Hodges further credibly testified without contradiction that Taliaferro also told them that if they organized he hoped the same union would represent both shops , a statement that would hardly be uttered by a person with a pronounced anti- union bias. 976 DECISIONS OF NATIONAL 'LABOR RELATIONS BOARD E. Concluding findings, 1. The issues Upon the basis of the foregoing and the entire record the issues are: (1) Whether John Banks, Joseph Sullivan, and Harry Zeiber were discriminatorily discharged on December 27, 1949, because they engaged in activities on behalf of the Union; (2) in the alternative, because they engaged in protected con- certed activities with other employees for the purposes of collective bargaining and other mutual aid and protection, thereby discouraging membership in labor organizations in contravention of Section 8 (a) (3) and 8 (a) (1) of the Act; and (3) whether Respondent otherwise interfered with the right of employees to freely organize within the meaning of Section 7 and Section 8 (a) (1) of the Act. a. Alleged discrimination for engaging in union activities Regarding the first issue there is no substantial evidence in the record tend- ing to show that the employees engaged in, or that the Respondent had reason- able grounds to suspect that its employees engaged in, activities on behalf of the charging Union until after they were discharged. At most, the record shows that Banks, Sullivan, and Zeiber joined the Union after they were discharged and thereafter induced some of their fellow employ- ees at the Respondent's truck division to join the Union. On the record made, I am constrained to find that the said named three em- ployees were not discharged because of their activities on behalf of the charg- ing Union and will recommend that this allegation in the complaint be dismissed. b. The discharges of Banks, Sullivan, and'Zeiber for engaging in protected concerted activities Regarding the second issue raised , the Respondent , in effect , argues : (1) Banks, Sullivan, and Zeiber, engaged in no protected concerted activities within the meaning of the Act; (2) the so-called "Employee's Committee" is not a labor organization, and that consequently by discharging employees for engaging in concerted activities in connection with such a group of employees the Respondent has not discouraged membership in a labor organization within the meaning of the Act; and (3) in any event, the issue relating to the discharges must be regarded res judicata because each of the three dischargees unsuccessfully prose- cuted claims for compensation -based upon alleged wrongful discharges before tribunals established under the laws of the State of Missouri to try such actions. In the opinion of the undersigned each of the defenses asserted by the Respond- ent are without merit. The first defense that the activities of the three discharges are not concerted activities protected by the Act is not supported by the record. The facts which are not disputed clearly show that : Eleven of the mechanics at the truck division (including Banks, Sullivan, and Zeiber) became dissatisfied with their working conditions after Taliaferro (Respondent's president) had announced at the Respondent's 1949 Christmas party for the employees, held on December 24, 1949, that no bonus for 1949 would be paid to the employees ; that, thereafter, before work began on the morning of December 27 (the next working day after the Christmas holiday), the said 11 dissatisfied mechanics spontaneously decided not to begin work on this day until Taliaferro came to the shop and gave them an opportunity to present grievances regarding the MODERN MOTORS, INCORPORATED 977 Respondent 's failure to pay them a bonus for 1949; before Taliaferro appeared, Banks and Sullivan, 2 members of the striking group, were informally selected to act as spokesmen at their proposed meeting with Taliaferro ; when Taliaferro later met with the group, Banks and Sullivan on behalf of the entire group voiced the grievances regarding the failure to receive a bonus ; after Taliaferro listened to the grievances presented, he asserted that the Respondent could not afford to pay a bonus" and ordered the strikers to return to work, or leave the building, Sullivan spoke up and told Taliaferro they wished to obtain -legal ad- vice concerning their rights before dropping the grievances, whereupon Talia- ferro asserted, "I am not dealing with your attorneys, there is work to be done, I ask you to go to work or leave the building" ; and that Taliaferro then walked away from the group to go to the plant office, presumably to wait until he ascertained if the strikers were going to return to work. The undisputed facts further show that a few minutes after Taliaferro walked away from the groups of strikers and while he was still in the plant office, Banks and Sullivan left the building to seek legal advice concerning the bonus dispute, that about 15 minutes after Banks and Sullivan departed on their mis- sion Taliaferro returned to the shop, and on learning that they had left the building, he, Taliaferro, announced to the strikers and other employees present in the shop that he was discharging Banks and Sullivan for refusing to work, and that he then ordered the other strikers to go to work or gather up their tools and leave the building. All of the strikers presently in the shop, except Zeiber, thereupon returned to work on their regular jobs. A short time later, Zeiber's foreman discharged Zeiber when the latter told the foreman he was unwilling to return to work until Banks and Sullivan returned from the lawyer's office. It is true that there is no direct evidence in the record showing that Taliaferro had actual knowledge that Banks and Sullivan had merely left the plant to secure legal advice regarding further action to take concerning the employees' griev- ances, but, in view of Sullivan 's assertion to Taliaferro that they wished to obtain legal advice before dropping their grievances, made to Taliaferro a few minutes earlier, a fair inference arises and I find that Taliaferro was aware that this was the reason for the current absence of Banks and Sullivan. Certainly, a mere inquiry directed to Zeiber or other members of the striking group would have given Taliaferro this information, but rather than attempt to ascertain the reason for their absence Taliaferro elected to summarily discharge the two absent strikers. Clearly the action of Banks and Sullivan in leaving the plant to seek legal advice was part and parcel of the entire dispute. At most, together with Zeiber and the other members of the striking group, Banks and Sullivan were participants in an economic strike that was still current and pending at the time Banks and Sullivan walked out of the plant to seek legal advice regarding further action to take concerning the common grievances. The Respondent argues that the course of action taken by the groups of dissatisfied employees here was not of the sort protected by the Act. I do not agree. In giving effect to the specific language of Section 7 as implemented in Section 9 (a) of the Act, every court which has considered the question has held that "It is true , according to credited and uncontradicted testimony given by Respondent's witnesses , that the Respondent 's earnings for the year 1949 were lower than in those years when it had previously paid bonuses to the employees and I am of the opinion ( although Taliaferro was under no legal duty to do so), that if Taliaferro had taken the time to . explain to the employees at the 1949 Christmas party why the Respondent was unable to pay a 1949 bonus the employees' dissatisfaction may well have been dispelled and the work stoppage on December 27 avoided. 978 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the conduct of a group of employees in stopping work and concertedly presenting a grievance concerning wages, hours, or other conditions of employment is within the protection of the Act 16 The Respondent's defense that the so-called "Employee's Committee" is not a labor organization within the meaning of the Act, and therefore that discharges based upon activities in support of such a purported organization do not consti- tute violations of Section 8 (a) (3) of the Act, is also without merit. The facts found above in this Report clearly show that Banks, Sullivan, and' Zeiber were the outstanding leaders of a group of 11 employees at the Respond- ent's truck division all of whom on the morning of December 27, 1949, concertedly engaged in a work stoppage unaccompanied by any form of violence in an effort to prevail upon the Respondent to restore the payment of a wage-bonus similar to one which had been paid to the Respondent's employees during the preceding 3 years. Section 8 (a) (3) of the Act proscribes discriminatory discharges whose aim is the discouragement of membership in "any labor organization." The term "labor organization" is defined in Section 2 (5) of the Act as "any organization of any kind, or any agency or employee representation committee or plan, in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment or conditions of work." It is therefore clear that the employee groups who informally joined together to present their grievances in this case fall well within the statutory definition of a labor organization. The fact that the employees failed to make a convincing showing that the sought-for bonus was wrongfully withheld from them, as argued by the Respond- ent, is immaterial. The entire sequence of activities engaged in by Banks, Sullivan, Zeiber, and the other employees who participated in the effort to restore the bonus payments merely constituted an economic strike. At most, the Respondent was only privileged under the Act to deduct from the wages of each member of the group the time lost from work while they were engaged in these concerted activities protected by the Act. There is no justification for the summary discharges of Banks, Sullivan, and Zeiber, the leaders in such activities. Discharges for the reasons assigned violate Section 8 (a) (3) as well as Section 8 (a) (1) of the Act, for such conduct by an employer clearly discourages mem- bership in labor organizations." In arriving at the above conclusions I have not overlooked the Respondent's contention that the issues regarding the discharges should be governed by the decision rendered in N. L. R. B. v. Condenser Corp. of America, 128 F. 2d 67 (C. A 3), which, among other things, deals with the discharge of employee Panzarella. The court there held that "Employees cannot insist that their de- mands be met in the middle of a working day when the employer has promised to deal with them as a group at the end of the day" and that the employees in the case apparently acquiesced to the arrangement suggested by the employer and returned to work and later without reason changed their minds. The promis- sory element is not present in the instant case. When Sullivan, as a spokesman for the striking group, asserted to Taliaferro that legal advice should be obtained 16 N. L R. B. v. Kennametal, Inc., 182 F 2d 817 (C. A. 3) ; N. L. R B. v. American Mfg. Co, 106 F. 2d 61, 67-69 (C A 2), affirmed, 309 U. S. 629; N. L. R. B. v. Nelson Mfg. Co., 120 F 2d 444, 446 (C A. 8) ; N. L. R. B. v. Tovrea Packing Co., 111 F. 2d 626 , 629 (C. A. 9) ; cert. den. 311 U. S. 668. " N L R. B. v Kennametal, Inc., 182 F. 2d 817 (C. A. 3). See also Gullett (hn Company v. N. L R. B, 179 F. 2d 499, enforcing as modified 83 NLRB 1, remanded by the Supreme Court for enforcement of the Board's order ; The Ohio Oil Company, 92 NLRB 1597. ,MODERN MOTORS, INCORPORATED 979 .before;-they dropped the=grievance's, Taliaferro asserted that "he'would not deal. with their attorneys" thus clearly implying that he regarded the matter closed insofar as the Respondent was concerned and in effect disallowed the grievances. The Respondent's defense that the discharges of Banks, Sullivan, and Zeiber may not be litigated presently before the Board because the issues involved were fully litigated before tribunals established under the laws of the State of Mis- souri, and that these issues are presently barred under the doctrine of res judi- cata is clearly without merit. This asserted defense is based upon admissions made at the hearing by Banks, Sullivan, and Zeiber, to the effect that they unsuccessfully prosecuted claims for compensation for alleged wrongful discharges before tribunals allegedly set up by the Division of Employment Security of the State of Missouri. 'The; state laws under which the proceedings were held or the pleadings-filed to define the issues were not offered in evidence. Furthermore it plainly appears that the parties involved are not the same as those participating in the instant case. Moreover, Section 10 (a) of the Act, in effect, vests exclusive jurisdiction in the Board to hear and initially determine whether unfair labor practices have been engaged in within the meaning of the Act. C. Other alleged interference, restraint, and coercion The complaint as amended at the hearing alleged in substance that the Respond- ent interfered with the rights of its employees to freely organize, by interrogating its employees regarding union activities," and by voicing threats to its employees that adherence to the Union would result in a reduction of wages. As further shown by the finding of fact made above in this Report, the evidence adduced by the General Counsel regarding alleged threats made by the~ Re- spondent that adherence to the Union by the employees would result in a reduc- tion of wages is not of the quality or preponderance to sustain the allegation, Accordingly, I will recommend that the independent 8 (a) (1) allegations in. the complaint be dismissed. On all of the foregoing and the entire record, the undersigned concludes and finds that the activities of Banks, Sullivan, and Zeiber in connection with their efforts to restore bonus pay constituted protected concerted activities within the meaning of the Act. Accordingly, I find further that the Respondent, by discharging and refusing to reinstate Banks, Sullivan, and Zeiber because they engaged in lawful concerted activities with other employees for the purposes of collective bargaining and other mutual aid and protection, has discriminated in regard to their hire and tenure of employment thus discouraging membership, in labor organizations within the meaning of Section 8 (a) (3) of the Act, thereby interfering with, restraining, and coercing its employees in the rights guaranteed in Section 7 of the Act, in-violation of Section 8 (a) (1) 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 " When the General Counsel rested his case-in-chief, he conceded that the evidence adduced would not sustain these allegations regarding interrogations and the undersigned granted Respondent's motion to dismiss it. 3s Gullett Gin Company v. N. L. R. B., 179 F. 2d 499, enforcing as modified 83 NLRB 1, remanded by the Supreme Court for enforcement of the Board's Order on January 15, 1951. See also N. L. R. B. v. Kennametal, Inc., 182 F. 2d 817 (C. A. 3), enforcing 80 NLRB 1481. 980 DECISIONS OF. NATIONAL LABOR RELATIONS BOARD among the several States, and tend, to lead. to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor prac- tices within the meaning of Section 8 (a) (1) and (3) of the Act, I will recom- mend that the Respondent cease and desist therefrom and from in any other manner interfering with the employees' self-organizational rights.' It is also recommended that the Respondent take certain affirmative action in order to effectuate the purposes and policies of the Act. I have found that the Respondent discriminated against John J. Banks, Joseph H. Sullivan, and Harry Zeiber in regard to their hire and tenure of employment because of their concerted activity with and on behalf of other employees in, connection with their efforts to obtain a restoration of bonus pay thereby inter- fering with, restraining, and coercing employees in their right to engage in concerted activity for their mutual aid and protection thereby discouraging membership in a labor organization in violation of Section 8 (a) (1) and Section 5 (a) (3) of the Act. It therefore is necessary to recommend reinstatement with back pay in order to effectuate the policies of the Act. Consistent with the Board's recent policy 20 it is recommended that the loss of pay be computed on the basis of each separate calendar quarter or portion thereof during the period from the Respondent's discriminatory action to the date of a proper offer of reinstatement. Loss of pay shall be determined by deducting' from a sum equal to that which each of these employees would normally have earned for each quarter or portion thereof, his net earnings,T1 if any, in other employment during that period. Earnings in one particular quarter shall have no effect upon the back-pay liability for any other quarter. In order to facilitate the computation of back pay it is recommended that the Respondent make available to-the Board upon request payroll and other records to facilitate the checking of the amount of back pay due.22 Upon the basis of the above findings of fact and upon the entire record in the case, the undersigned makes the following: CONCLUSIONS OF'LAW 1. International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, General Teamsters', Chauffeurs" and Helpers' Local No. 460, A. F. of L., and the so-called "Employee's Committee" are labor organiza- tions, within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employment of John J. Banks, Joseph H. Sullivan, and Harry Zeiber because they engaged in con- certed activities with and on behalf of other employees for the purposes of col- lective bargaining and other mutual aid and protection, Respondent interfered with, coerced, and restrained its employees in the exercise of rights guaranteed 19 Gullet Gin Company, supra; Carolina Mills, Inc., 92 NLRB 1140. 20 F. W Woolworth Company, 90 NLRB 289. 21 By "net earnings" Is meant earnings less expenses, such as for transportation, room, and hoard, incurred by an employee in connection with obtaining work and working else- where, which would not have been incurred but for this unlawful discrimination, and the consequent necessity of his seeking employment elsewhere. Crossett Lumber Company, 8 NLRB 440 Monies received for work performed upon Federal, State, county, municipal, or other work-relief projects shall be considered earnings. Republic Steel Corporation v. N. L. R. B., 311 U. S. 7. 22 F. W. Woolworth Company, supra. MODERN MOTORS , INCORPORATED 981 by Section 7 of the Act, and Respondent has thereby engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 3. By engaging in such discrimination , thereby discouraging the formation of and membership in labor organizations , Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and ( 7) of the Act. - 5. The Respondent has not discriminated in regard to the hire and tenure of employment of John J. Banks, Joseph H. Sullivan , and Harry Zeiber because they engaged in activities on behalf of International Brotherhood of Teamsters, Chauffeurs , Warehousemen and Helpers of America , General Teamsters ', Chauf- feurs' and Helpers' Local No. 460 , A. F. of L. 6. The Respondent has not engaged in the unfair labor practices alleged in the independent 8 (a) (1) allegations in the amended complaint. w [Recommended Order omitted from publication in this volume.] 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 discourage membership in any labor organization 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 em- ployment, or any term or condition of their employment. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form, join, or assist any labor organization, to bargain collectively through representa- tives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to re- frain from any or all such activities. WE WILL offer to John J. Banks, Joseph H. Sullivan, and Harry Zeiber immediate and full reinstatement to their former or substantially equiva- lent positions without prejudice to any seniority or other rights and priv- ileges previously enjoyed, and make them whole for any loss of pay suf- fered as a result of our discrimination against them. All our employees are free to form, join, or assist any labor organization, and to engage in any self-organization and other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from such activities except to the extent that such right is affected by an agree- ment made in conformity with the proviso to Section 8 (a) (3) of the Act. MODERN MOTORS , INCORPORATED, Employer. Dated--------------------------- By ------------------------- (Representative) (Title) This notice must remain posted for 60 days from the date hereof and must not be altered, defaced, or covered by any other material. 974176-52-vol. 96-63 Copy with citationCopy as parenthetical citation