Spitzer Motor Sales, Inc.

National Labor Relations Board - Board Decisions

Jan 21, 1953

102 N.L.R.B. 437 (N.L.R.B. 1953)

SPITZER MOTOR SALES, INC. 437
NOW THEREFORE , we and each of us hereby demand that said Organizing
Committee , United Brotherhood of Carpenters and Joiners of America, AFL,
Local Union No. 2399 , or United Brotherhood of Carpenters and Joiners of
America, AFL , Local Union No. 2399, cease and desist from intimidating us, and
from threatening us into accepting the said United Brotherhood of Carpenters
and Joiners of America , AFL, Local Union No . 2399 , as our bargaining agent,
and from otherwise persisting in trying to represent us in any manner whatsover.
Witness our hands this 29th day of November 1950.
(29 Signatures)
SPITZER MOTOR SALES, INC. and AMALGAMATED UNION LOCAL 259,
UNITED AUTOMOBILE, AIRCRAFT AND AGRICULTURAL IMPLEMENT
WORKERS OF AMERICA, CIO. Case No. 2-CA-1549. January 21,
195$
Decision and Order
On January 8, 1952, Trial Examiner Thomas S. Wilson issued his
Intermediate Report in the above-entitled proceeding, finding that
Respondent had engaged in certain unfair labor practices and recom-
mending that it cease and desist therefrom and take certain affirmative
action.' Thereafter, Respondent and the General Counsel filed
exceptions to the Intermediate Report, and briefs.
The Board 2 has reviewed the Trial Examiner's rulings made at the
hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
the cases Because of its disagreement with many of the Trial Ex-
aminer's findings and inferences, the Board hereby makes its own
findings :
Respondent, a Ford dealer,' operates a sales and service business
in New York City. At its 30th Street plant it has its offices, show-
rooms, and mechanical repair shop ; at its 80th Street plant it does
body-repair and refinishing work and most of its new car get-ready
work, including porcelainizing and undercoating. During the period
in 1950 with which we are here concerned, the 80th Street plant
operated under the supervision of Archie Ascher. His immediate
superior was Service Manager Brown, who was headquartered at 30th
Street and was responsible also for the service and mechanical repair
1 Pursuant to the provisions of Section 10 (b) and ( c) of the National Labor Relations
Act.
2 Pursuant to Section 3 (b) of the Act, the Board has delegated its powers in connection
with this case to a three -member panel [ Chairman Herzog and Members Houston and
Murdock. ]
3 Respondent 's request for oral argument is denied because the record and briefs
adequately set forth the positions of the parties.
4 Respondent concedes that it is engaged in commerce within the meaning of the Act.
N. L. R. B. v. Davis Motors , Ino., 192 F . 2d 782 (C. A. 10), enfg . 93 NLRB 206.
102 NLRB No. 39.
250983-vol . 102-53-29
438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
functions at that location. Brown reported directly to President
Sidney Spitzer.
In early or mid-June 1950, after some talk among the employees
about unions, President Spitzer held a shop meeting for the 30th
Street service employees at which he encouraged them to bring up
any grievances which they might have. After various complaints
had been voiced, employee Heffner said, "How about a union?" To
this Spitzer replied that before he signed with a union he would
lock up the place, adding "and most of you guys won't work for Ford
dealers again." 5
On the evening of June 21, employees from both of Respondent's
shops met at the Family Bar and Grill, near the 30th Street plant,
to confer with a representative of Local 259, United Automobile, Air-
craft and Agricultural Implement Workers of America, CIO, herein
called the Auto Workers. While some of the men were standing
outside the building waiting for the representative to arrive, Foreman
Ascher, who had just heard a rumor that Spitzer employees were
organizing, walked over to where they were. Becoming angry at
seeing among the group a car washer named Davis and a polisher
named Rodriquez, who worked under him at 80th Street, Ascher told
them that they were fired .6 Afterwards the employees entered the
Family 'ar and Grill, where they listened to a talk by the Auto
Workers' representative. Then membership-application cards were
passed around and filled out by many of the employees.
We find that, by Spitzer's threatening remarks at the meeting in
the 30th Street shop,' by Ascher's surveillance of the union-organiza-
tion meeting at the Family Bar and Grill," and by Ascher's discharge
of Rodriquez and Davis on the latter occasion, Respondent 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 (a) (1)
thereof.
On June 22, the day following the Family Bar and Grill meeting,
a committee from the Auto Workers met with Spitzer and unsuccess-
5 This finding is based principally on the testimony of employee McHugh, which we
credit, as did the Trial Examiner
8 However , when they reported for work as usual the next morning , Foreman Ascher
helped Davis find his timecard to punch ; and both were permitted to work . Ascher him-
self confirmed the discharge incident insofar as it related to Davis. True, Ascher was
no longer working for Respondent at the time of the hearing. He had been discharged
in August of 1950. He conferred frequently with Auto Workers' Representative Harrison
between that time and the hearing . However, in view of the fact that Ascher denied
most of the unfair labor practices attributed to him by the General Counsel 's witnesses,
we, like the Trial Examiner , do not regard this corroborative testimony as so biased
against Respondent as to be unworthy of belief. But, also like the Trial Examiner, we
do not credit Ascher's denial that he also discharged Rodriquez on this occasion.
T N. L. R. B. v. Deena Artware, Inc., 198 F. 2d 645 ( C. A. 6), enfg . in this respect 95
NLRB 9.
8 Keeshin Poultry Co ., 97 NLRB 467.
SPITZER MOTOR SALES, INC. 439
fully requested recognition. At that time the Auto Workers had not
yet been designated by a majority of Respondent's employees.
On June 23, Respondent received from the Auto Workers a written
request for recognition. By that day the Auto Workers was, as the
Trial Examiner found, the majority representative of Respondent's
employees within an appropriate unit .9 Respondent made no reply
to this letter.
About June 26 or 27 O'Brien, a representative of Local 917, Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, AFL (herein called the Teamsters), who had
learned that employees Heffner and McHugh were the leaders in the
organization movement, sought them out and conferred with them
at lunch at the Family Bar and Grill. He then went across the.
street, obtained an interview with President Spitzer, and allegedly
asked for contract negotiations. Spitzer allegedly challenged his,
majority, and O'Brien then withdrew." But he returned frequently
that week and solicited memberships in the 30th Street shop during
working hours. Several weeks later he also solicited in the 80th
Street shop, with Foreman Ascher's assistance, as found below.
On June 30 the Auto Workers' committee called on Spitzer again
and handed him a proposed contract. Spitzer refused to recognize
them or to discuss the contract, whereupon Auto Workers' Repre-
sentative Harrison informed him that the Auto Workers had filed a
petition for a Board election'-
The Changes in Vacations and Hours
Beginning about June 30, employees who inquired of Service Man-
ager Brown or Foreman Ascher regarding their scheduled vacations
were individually informed that all paid vacations were indefinitely
postponed. About July 3, Foreman Ascher carried out instructions
which he received from Brown to inform the 80th Street employees
that their regular Saturday hours, for which they were being paid
time and a half, were to be eliminated beginning July 8. The circum-
stances attending these changes in working conditions, together with
the inconsistent nature of the reasons advanced by Respondent, per-
suade us, as they did the Trial Examiner, that they were deliberately
put into effect for the purpose of discouraging the employees from
supporting the Auto Workers.
See discussion of this point below.
19 Such is the testimony of O'Brien and Spitzer , who were the only persons present at
this conference.
"The petition was filed June 29. Following a hearing on August 15, the Board Issued
a Direction of Election on October 16, 1950 (Case No. 2-RC-2481 , not reported in printed
volumes of Board decisions). Because of the pending unfair labor practice charges, the
date of the election was indefinitely deferred by Board order of November 2; and on May
81, 1951 , the Auto Workers was permitted to withdraw the petition.
440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It had been the practice of Respondent to grant paid vacations to
employees who had served 6 months or more. Early in June 1950,
before the Family Bar organization meeting, Brown and Ascher had
individually ascertained eligible employees' preferences as to dates
and had drawn up vacation schedules. As noted above, these were
set aside a few weeks later, after the Family Bar meeting and the
requests for recognition. Foreman Ascher so informed employee
Michalek by telling him that there would be no more vacations "until
this mess is cleared up." At the hearing Ascher explained :
I was told through the office there is no vacations.... I just
don't remember who it was, Brown or Spitzer.... The old
fellows, they had their vacations marked down and being this
thing came up, they said no more vacation.... The boss got
wise that they all got together, something was happening. I
don't remember.
Employee Rodriquez had booked passage to Puerto Rico in reliance
upon the vacation schedule established in early June. On June 30
or July 1, when he asked for the customary advance payment of his
vacation wages, Ascher replied (in Rodriquez' words) :
... you sign the union, the boss is no going to pay you; go to
the union, the union is going to pay you now.
Respondent endeavors to explain away the cancellation of the
scheduled vacations as follows : Brown allegedly came to Spitzer the
first week of June and showed him the vacation schedules which he
and Ascher had drawn up. Spitzer supposedly objected to them
on the ground that sales of new cars were expected to be three times
as great in July and early August as they had been the previous year.
So Spitzer instructed Brown to postpone all vacations until Sep-
tember or the end of August, a time when he expected a lower volume
of sales and service activity.
This explanation implies that when Brown drew up the original
vacation schedules he was unaware that sales of new cars would be
at a high level in July and early August. No such inference is war-
ranted. Respondent's new-car sales in the automobile-hungry years
of 1949 and 1950 depended entirely upon the number of units made
available to it by the Ford Motor Company. Ford regularly notified
Respondent of its expected deliveries about 2 months in advance. As
it is most unlikely that Spitzer would have concealed this vital statis-
tical information from his service manager, Brown must have been
well aware of the new-car sales prospects , at least for the month of
July, when he made up the original vacation schedules the first week
in June. That it was possible to take care of expected July business
and still give the usual vacations may be seen from the fact that,
SPITZER MOTOR SALES, INC. 441
the previous April, Respondent had successfully handled a volume of
new-car sales 18 percent higher than the volume forecast for July,
of which Spitzer was allegedly apprehensive.''2
Further light on Respondent's real motives is shed by the fact that
it set aside the vacations even of the body repairmen at 80th Street,
Yet no one contended that they did any substantial amount of work on
new cars; and Service Manager Brown admitted that they were not
very busy in July and early August.
In addition, Respondent did not explain why, if Spitzer had really
given such instructions early in June, Brown did not immediately make
a general announcement so that all the men could replan their vaca-
tions. Instead, Brown waited until late June or July and gave last-
minute notifications to individual employees with whom he had occa-
sion to talk just before arrival of their previously scheduled vaca-
tion periods. Moreover, neither Brown nor Ascher prepared any new
vacation schedules for September and late August. For all of these
reasons we, like the Trial Examiner, do not credit Respondent's al-
leged explanation.
As for the Saturday hours at 80th Street, Respondent eliminated
them at the very time when, according to Respondent's defense, it
was so unexpectedly busy that it had to disrupt its employees' estab-
lished vacation schedules. This shop handled not only the body repair
work mentioned above, but also most of Respondent's new-car get-
ready work. Only when the volume of the latter work was too great
to be done at 80th Street was the overflow done by the 30th Street
employees. Thus the cutback in hours at 80th Street placed an addi-
tional load on the allegedly overloaded 30th Street operations. It is
clear, then, that if Respondent had really wished to avoid disappoint-
ing its employees with respect to their planned vacations, it could
have done so merely by postponing until September or late August
the change in hours at the 80th Street new-car get-ready department.
To explain its action Respondent first took the position at the hear-
ing that the "body shop" (by which it meant the entire operation at
"Respondent submitted no figures to indicate what the Ford Company' s anticipated
deliveries were for the months of August and September 1950, nor any actual sales figures
for those allegedly slacker months. The statistics submitted showed the following new-car
sales :
1949 1950
Jan-------------------------------------------------- $128,941.00 $69,062.00
Feb--------------------------------------------------- 121,073.00 102, 364.00
March--------------------------------------------------- 122, 342. 00 158, 765. 00
April-------------------------------------------------- 114,290.00 186,687.00
May--------------------------------------------------. 46,929.00 180,241.00
June-------------------------------------------------- 50,859.00 166,375.00
July--------------------------------------------------. 81,906.00 153,035.00
August------------------------------------------------ 88,293.00
Sept--------------------------------------------------- 34,477.00
Oct--------------------------------------------------- 89,550.00 Not given
Nov--------------------------------------------------- 80,853.00
Dec--------------------------------------------------- 67,339.00
442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
80th Street) was losing money, that it was a cancer in Respondent's
business, and that elimination of the 5 Saturday hours, which were
being paid for at the rate of time and a half, was a business necessity.
To support this position it introduced a financial statement showing
- that the body repair department of the 80th Street shop lost $432
for the fiscal year ending July 31, 1950. At the insistence of the Gen-
eral Counsel, however, a breakdown of monthly operating results was
later introduced. This revealed that the body repair department,
although previously unprofitable, had gone from red to black in
April 1950, showing $390 profit in that month. In May 1950 the
profit was $2,265; and in June, $1,330. Yet it was in late June, just
after Spitzer had received his accountant's statement showing the
large May profits in the body repair department, that he decided to
economize so drastically at 80th Street.
It seems to the Board very significant that the reduction in hours
at 80th Street included the new-car get-ready department, and not
just the body repair department 13 This fact is basically inconsistent
with Respondent's position that get-ready work was so urgent that
the scheduled vacations both there and at 30th Street had to be dis-
rupted. Respondent made no effort to show any financial necessity
for altering the hours of the get-ready men. The abortive attempt
to prove that losses were occurring at 80th Street related only to the
operations of the body repair department. None of the get-ready
operations except undercoating was included in the operating figures
which Respondent adduced in that connection.
Most employees at 80th Street had been originally hired at a stated
weekly wage based upon a 6-day, 45-hour week. Respondent's office
had broken down this weekly wage into equivalent straight and over-
time hourly rates. By eliminating the 5 Saturday overtime hours,
therefore, Respondent effected a drastic reduction in the 80th Street
13 This is clear from Service Manager Brown's testimony that Respondent made an
effort to induce the new-car get -ready department employees to come in and work on a
single Saturday about a week after the cutback , but that they refused unless given a
guarantee of regular Saturday work , a guarantee which Brown was unable to give them
in view of his instructions from Spitzer . This testimony seems to us more credible than
that of Spitzer , who asserted that the reduction in hours had been ordered merely for
the body repairmen and that the get-ready men had refused to work on Saturdays unless
the entire 80th Street shop worked regular Saturday hours. It is noteworthy that
Respondent's brief to the Trial Examiner accepts Brown's version and rejects Spitzer's.
Spitzer also testified that he asked his bookkeeper to give him weekly statements of
body repair department volume during the month of June and that , when he saw from
these statements that June volume would be about $700 less than the May volume, lie
took action to reduce the body shop labor costs There are three defects in this explana-
tion. First , Spitzer gave this testimony only after Respondent 's original contention that
the "body shop" was losing money had been conclusively refuted. Second , it relies on
alleged weekly reports which were without precedent In Respondent 's operations and
which were allegedly destroyed prior to the hearing. Third, the $700 drop in volume
took place wholly in the body repair department , so that it could scarcely have motivated
a general change of hours for the entire 80th Street shop. Like the Trial Examiner, we
do not credit this testimony of Spitzer.
SPITZER MOTOR SALES, INC. 443
employees' originally agreed-upon remuneration 14 And it did so at
a time when it needed top output from the new-car get-ready depart-
ment. Such behavior, we believe, could not have been motivated by
genuine business considerations. We find instead that Respondent,
realizing that it was too late to forestall organization of its employees
by improving working conditions, deliberately reduced wages at 80th
Street and altered its practice regarding vacations at both shops, for
the purpose of inducing them to reconsider their designation of the
Auto Workers and to look with favor on the organizing efforts of the
Teamsters.- In doing so, we find that Respondent discriminated
against its employees with respect to their terms and conditions of
work to encourage membership in the Teamsters and discourage mem-
bership in the Auto Workers, in violation of Section 8 (a) (3) of the
Act. Because we find below that the Auto Workers during the period
was the exclusive bargaining representative of Respondent's service
employees, we find also that these changes in working conditions,
which were made unilaterally and without consultation with the
Auto Workers, constituted a violation of Section 8 (a) (5) of the
Act 16
Assistance to the Teamsters
As related above, the Teamsters began an organizing effort at the
30th Street plant on Monday or Tuesday, June 26 or 27,1950. During
the rest of the week, which ended July 1, Teamsters' Organizer
O'Brien visited the 30th Street shop and solicited the employees there
during working hours almost every day. The Auto Workers also did
some of its organizing of Spitzer employees on company time. How-
ever, on June 30 President Spitzer informed Auto Workers' Repre-
sentative Harrison that thenceforth Harrison should not talk to the
employees during working hours. No similar instructions were ever
given to the Teamsters. Sometime in July,17 Service Manager Brown
telephoned Foreman Ascher and instructed him to keep Harrison out
of the 80th Street shop during working hours. Ascher obeyed these
instructions. Asked at the hearing whether he had perhaps been
instructed to keep all organizers out of the shop, Ascher replied : "No,
he [Brown] just told me to keep Mr. Harrison out."
Early in July Phil Romano, an employee in the 30th Street parts
department, came to the 80th Street shop and asked Ascher if he
would try to get five employees to sign up with the AFL. Ascher
replied : "I am still working with Spitzer." The next day he spoke
"For example, employee Davila before the change was earning $47 a week (40 hours
at $.9894 and 5 hours at $1 484). After the change he made only $39 58 a week
11 See the next section.
Is N. L. R B. v Crompton-Highland Mills, 337 U. S. 217.
'' The precise date cannot be determined from the conflicting dates given In the record.
444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to Paul Bachorik, a car polisher who, next to Ascher himself, was the
oldest employee at 80th Street in point of service and who acted
as an informal assistant to Ascher in minor matters. Ascher told
Bachorik that "they told me downtown he wants to get five men to
join up by tomorrow for the AFL," that Bachorik should go around
and talk to the men and see if they would join, and that, if Bachorik
did so, Ascher would see to it that he would have a good job as long
as Ascher remained with Spitzer." Bachorik followed these instruc-
tions, but reported back to Ascher that none of the men would join.
On July 17 or 18, a man arrived at 80th Street, asked for Ascher,
introduced himself as being from the AFL, and said that he wanted
to talk to the men. Ascher introduced him to Bachorik, and the AFL
man then proceeded to solicit employees throughout the shop. Later
Ascher returned to Bachorik and urged him to sign up. After the
AFL man had left, Ascher asked Michalek why he had not signed up
and added that Spitzer had agreed to enter into a contract with the
AFL if they signed's
In appraising the significance of these facts we are not unmindful
that there is no evidence that any pressure was exerted by Respondent
on behalf of the Teamsters at the 30th Street shop. However, the
evidence of what went on at the 80th Street shop clearly establishes
that Respondent assisted the Teamsters. Considering Ascher's un-
questioned supervisory authority over the entire 80th Street shop,
Respondent must answer for his unlawful acts of assistance.20 We
cannot say, on this record, that his acts were isolated ones in conflict
with any generally announced and enforced neutrality policy laid
Is The exact identity of the organization assisted at 80th Street was not clearly indicated
by the witnesses , who referred to it only as "the AFL ." Michalek alone went further and
said he "thought" the AFL man said he was from "the Teamsters ." Although Teamsters
Local 917's Organizer O'Brien was present at the hearing , none of the witnesses was asked
to look at him and say if he was the "AFL man" mentioned in their testimony. On the
other hand , O'Brien admitted having visited the 80th Street shop in July and having
solicited the employees there. He also testified that he identified himself to one of the
men as "A . F. of L." There is no evidence that any other AFL union than O'Brien's was
interested in the Spitzer employees at this time . True, Local 13 of the Jewelry Workers,
AFL, wrote Respondent on August 8, 1950 ( the day after the Auto Workers' strike began),
claiming to represent a majority and demanding a bargaining conference. Moreover, Local
13 filed a petition with the Board on August 14 (the day before the hearing was scheduled
on the Auto Workers ' petition ). However, there is no indication in the record that Local
13 ever did any solicitation at the 80th Street shop . It withdrew its petition on August
23, 1950. We therefore infer and find that the "AFL" whose solicitation was assisted by
Ascher at 80th Street was Local 917 of the Teamsters.
19 Except for the conversation with Michalek , which was denied by Ascher , the events
set forth above follow the account given by Ascher himself and confirmed by Bachorik. In
addition, various witnesses for the General Counsel testified to numerous other acts of
solicitation and verbal pressure by Ascher on behalf of the AFL during July and early
August As all of these alleged acts were denied by Ascher , and as they would furnish
only cumulative evidence of Respondent ' s violation of Section S (a) (2.), we find it
unnecessary to consider and decide whether they occurred . Stilley Plywood Company,
94 NLRB 932, 933.
20 N. L. If. B. v. Fitzpatrick and Weller, 139 F. 2d 697 ( C. A. 2), enfg. 46 NLRB 28.
SPITZER MOTOR SALES , INC. 445
down by higher officials.2l We therefore find that, by reducing wages,
by disrupting vacation plans, by discharging Rodriquez as discussed
below, by establishing and enforcing discriminatorily a rule against
solicitation during working hours,22by actively soliciting and causing
employees to be solicited for membership in the AFL, 23 and by
promises of benefit,- Respondent gave assistance to the Teamsters in
violation of Section 8 (a) (2) and (1) of the Act.
The Discharge of Rodriquez
Miguel Rodriquez, a polisher, had been hired by Ascher in 1948
shortly after the 80th Street shop was opened. His competence is not
in issue, as he was admittedly one of the Respondent's most experi-
enced and useful polishers. He was among the first of the 80th Street
employees to sign an application for membership in the Auto Workers,
having done so at the Family Bar and Grill meeting on June 21. On
this occasion, as found above, he was discriminatorily discharged by
Foreman Ascher, but was taken back the next day.
It will be recalled that when Rodriquez applied to Ascher for his
vacation pay on June 30 so that he could take his scheduled trip to
Puerto Rico, Ascher told him in effect that, as he had signed with the
Union, he would have to look to the Union instead of to Respondent
for his vacation pay. However, Ascher made no objection to Rod-
riquez' departure ; and the latter took his vacation as scheduled, though
without pay. He returned to work on July 17. On or about the day
of his return to work, a Teamsters' man approached him in the shop
and solicited his membership. After consulting Michalek, who was
the Auto Workers' shop steward, Rodriquez refused to join. Fore-
man Ascher was nearby when this happened.
The events which immediately led to Rodriquez' discharge on July
26 are especially difficult to reconstruct from the conflicting testimony
of the participants. According to Rodriquez, he was porcelainizing
a car on July 25 when Ascher came over and told him to go and help
employee Davis on another car. Ascher added : "No worry, anyway
I am going to fix you." Rodriquez pulled his Auto Workers' receipt
from his shirt pocket, showed it to Ascher, and said : "You can do
nothing with me. The union take care of you." Ascher replied :
"I throw out you and the union too." The following morning Ascher
asked, "Mike, you want to sign A. F. of L. ?" Rodriquez told him no.
n See N. L R. B V. Globe Wireless, Ltd., 193 F. 2d 748, 751, (C. A. 9), enfg. 88
NLRB 1262.
21 S. H. Camp & Co. V. N. L. R. B., 160 F. 2d 519 , 524 (C. A. 6), enfg. 52 , NLRB 1078.
23 Jack Smith Beverages, 94 NLRB 1401 ; S. H. Camp & Co. v. N. L. R. B., supra, at 523.
24 Salant & Salant , 92 NLRB 417 , 441-448.
446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
That evening Ascher handed him his termination check.25 Much of
this story was substantiated by employee Davis.
Ascher's version of the discharge was quite different. According
to him, he several times asked Rodriquez to go over and help Davis.
Rodriquez finally replied :
I am breaking my a long enough. The boss is f me
long enough, and I am going to f the boss.
But Ascher did not testify that Rodriquez delayed any further in
carrying out the instructions. Ascher at once telephoned to Service
Manager Brown, and the next day Brown brought him Rodriquez'
termination check. Several days later, at Spitzer's requ6st, Ascher
made out a statement regarding the cause of the discharge and had
a friend across the street type it for him?s
Service Manager Brown testified to still another version. While
he was visiting the 80th Street shop on July 26 Ascher told him about
the Rodriquez incident, which had happened earlier the same day.
Brown sought out Rodriquez and asked him whether it was true,
whereupon Rodriquez replied, "Mind your own business." At that,
Brown immediately returned to 30th Street, where he reported the
events to Spitzer. Acting under the latter's instructions, he returned
to 80th Street the same day with Rodriquez' separation check.
Concededly, if Rodriquez really did tell Service Manager Brown to
mind his own business, he was guilty of an act of insubordination
serious enough to raise a strong inference that Respondent was legiti-
mately motivated in discharging him for that reason. However, al-
though Spitzer directed Ascher to prepare and sign a written
statement to the effect that Rodriquez' vulgar remarks to Ascher were
the cause of the discharge, he never requested Brown to prepare and
sign a similar written statement attributing the discharge to Rod-
riquez' alleged insubordinate remark to Brown. It is scarcely to be
believed that Spitzer, who was concerned enough about the matter
to consult his lawyer before ordering the discharge, would not have
been as careful to have a written record made of Brown's more seri-
ous accusation if it had really motivated the discharge. Furthermore,
the Trial Examiner, who observed the demeanor of the witnesses,
discredited Brown's testimony?'
w As employees were normally paid by cash, payment by check signified termination.
26 The statement read : "July 26, 1950, 2 PM . On the above date I, Archie Ascher, had
four cars to be polished . With two polishers to do the four cars I told Mike Rodriquez to
let Dave do one car and he the other, that is two men were not to work the same car.
He replied , What do you want from me The boss is f- me and I'm f- the boss.
This was said to me in such a manner so as to be heard by the entire shop, so he was fired
at the end of the day. Archie Ascher, Foreman."
27 Although Rodriquez was not called to the stand and asked directly whether he did
or did not make the alleged statement to Brown, he did testify that he did not talk to
Brown when the latter arrived at 80th Street late in the afternoon of July 26 with the
SPITZER MOTOR SALES, INC. 447
There seems little question but that Rodriquez did use the language
attributed to him by Ascher 28 An employer might well take offense at
such an expression of grudging service, especially when couched in
vulgar language, and might legitimately have discharged Rodriquez
for it. The question here is whether Respondent did, in fact, dis-
charge Rodriquez for this reason, or whether the dismissal was sub-
stantially motivated by resentment at Rodriquez' refusal to join the
Teamsters and his declaration of faith in the Auto Workers.29 Like
the Trial Examiner, we conclude that the latter motivated the dis-
charge. Vulgar language of this kind was apparently in rather com-
mon use among Respondent's employees. President Spitzer admitted
that if he heard the mechanics use such words, he never thought any-
thing of it. We cannot believe that, in the absence of the Auto Work-
ers' and the Teamsters' organizing activities and Respondent's
displeasure with Rodriquez' relation thereto, a remark of this kind
would have brought such immediate and drastic retribution to an
employee who had been with the shop since almost its beginning and
whose work was admittedly superior.-30
We therefore find that, by discharging Miguel Rodriquez, Respond-
ent was guilty of discrimination in regard to his tenure of employment
to encourage membership in the Teamsters and to discourage member-
ship in the Auto Workers, in violation of Section 8 (a) (3) and (1)
of the Act 31
final check . The Trial Examiner evidently credited, and we think properly, Ascher'a
testimony that he gave his report to Brown on the telephone . Thus Brown would have
had no occasion to speak to Rodriquez any earlier than the late afternoon of the 26th.
Brown in other matters showed himself a not too dependable witness. For example, he
testified that he did not know that there was any union activity among the employees
until the day of the strike , August 7, 1950 . Elsewhere , however , he admitted that
employee Heffner had introduced Auto Workers' Representative Harrison to him on June
22, and that he had thereupon telephoned Spitzer that a union committee was there to
see Spitzer.
28 Neither Rodriquez nor Davis took the stand to deny it.
29 Where unlawful motivation is shown, the coexistence of what might otherwise con-
stitute good cause for discharge is not a defense . N. L. It. B. v. Ford Brothers , 170 F. 2d
735 (C A. 6 ), enfg. 73 NLRB 49.
81 Rubin Brothers Footwear , 91 NLRB 10 , 43 ; Salant & Salant, 92 NLRB 417, 451-453.
11 The Trial Examiner credited testimony that Rodriquez displayed his Auto Workers'
receipt to Ascher, and that Rodriquez expressed to Ascher his belief that the Union would
protect him from discharge . There is insufficient internal inconsistency or inherent im-
probability to warrant us in disturbing that resolution of credibility . Standard Dry Wall
Products, 91 NLRB 544. In addition , the Trial Examiner credited certain testimony bear-
ing on the issue of Rodriquez ' discharge as follows : (1) That both before and after
Rodriquez ' vacation Ascher repeatedly urged him to join the AFL and several times
threatened to replace him with another man if he did not do so; ( 2) that when Rod-
riquez asked for his vacation pay on June 30, Ascher told him, "You f- the boss, you
sign the union , the boss is no going to pay you" ( i. e. that Ascher had set Rodriquez an
example in the use of vulgar language). We do not here find it necessary to decide
whether the record would warrant findings regarding these additional events. If they
occurred , they would provide only cumulative evidence of the unlawful discharge and
would in no way alter our findings or conclusions herein . Stilley Plywood Company, 94
NLRB 932, 933.
448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Refusal to Bargain
As set forth earlier, the Auto Workers wrote a letter which was
received by Respondent on June 23, 1950, in which the Auto Workers
claimed to represent Respondent's employees and requested contract
discussions. 32 Respondent never answered this letter. In order to
determine whether this constituted an unlawful refusal to bargain
within the meaning of Section 8 (a) (5) of the Act, it is first necessary
to ascertain whether the Auto Workers did in fact represent a majority
of Respondent's employees in an appropriate unit during the period in
question.
The unit issue was considered and decided by this Board in the
representation proceeding initiated by the Auto Workers 33 There
the Board decided that the appropriate unit for the purposes of
collective bargaining consisted of
All employees of the service, body, and parts departments at
the Employer's New York, New York, plant, excluding office em-
ployees, salesmen of new and used cars, guards, and all super-
visors as defined in the Act.
It was also expressly decided that
the parking lot attendants, whose duties include looking after
cars while on the Employer's lot, releasing them to customers,
and performing services on used cars which have been sold, are
not guards, and are included in the unit.
... As the duties of the employee referred to as the "tester,"
who serves as night foreman of the service department, appear
similar to those of the day foreman of the same department, we
also find him a supervisor and exclude him from the unit.
At the hearing in the present proceeding, both Respondent and the
General Counsel adduced additional evidence as to the status of the
parking lot attendants and the night foreman. Having considered
the evidence in both proceedings, we find no reason to salter the Board's
original unit placement of these job categories."
a, The letter notified that "your employees ... have designated us as their collective
bargaining agent for the purpose of negotiating a contract covering wages, hours of work,
working conditions , etc." It added , "Trusting to hear from you in the very near future
so that we can discuss the aforementioned matter." We interpret this as a request for
both recognition and bargaining.
33 Case No . 2-RC-2481 (not included in printed volumes of Board decisions).
$4 Pine and Blackwell, the daytime parking lot attendants, were principally occupied in
placing and shifting cars on the lot and caring for used cars, washing and polishing them
and changing or repairing their tires and batteries . Although they occasionally substituted
for night attendant Bundy, who was a guard , we reaffirm the finding that they were not
guards. N. L. R. B. V. Qunicy Steel Casting Co ., 200 F. 2d (C. A. 1).
Brody, the night foreman, was in charge of the 30th Street shop at a time when no other
person of supervisory authority was present. There is testimony, moreover, which we
credit, that he hired at least one mechanic , granted him time off, and obtained a raise for
him.
SPITZER MOTOR SALES , INC. 449
On June 23, 1950, there were 38 employees in the appropriate unit.
At least 22 of these had by then validly designated the Auto Workers
as their collective bargaining agent 35 Respondent contends that the
dates when the various employees signed their membership-applica-
tion cards were not established with sufficient precision. We disagree.
Each of the 22 employees took the witness stand, identified his signa-
ture, and fixed the date of signing in relation to the date of the Family
Bar and Grill meeting of June 21, a date well known and easily re-
membered by all of the Respondent's employees. Like the Trial Ex-
aminer, we credit this testimony.-
On June 30, 1950, moreover, the Auto Workers held its second meet-
ing wil h Spitzer and was admittedly refused recognition. There were
at that time 36 employees in the appropriate unit. At least 27 of
these had by then validly designated the Auto Workers.-17 And on
August 7, 1950, all the employees in the unit at 80th Street and 19 of
the 26 employees in the unit at 30th Street responded to a strike call
issued by the Auto Workers. Although the Teamsters had begun:
organizational efforts on June 26 or 27, it was never able to persuade
any of the employees to designate it as bargaining representative.38
Accordingly, we find that on and after June 23, 1950, the Auto
Workers represented a majority of Respondent's employees in an
appropriate unit 39
8S In Appendix A is set forth a list of these 38 employees , with annotations showing
which ones had designated the Auto Workers . We have excluded from the unit 2 temporary
employees ; Cuzzo, who worked from June 22 to July 12, and Wall , who worked from June
22 to June 30.
Respondent challenges the date of Baker's designation on the ground that his card bears
the serial number TT 468126, whereas the cards signed at the Family Bar and Grill on
June 21 bear numbers in the TT 15100 series. It points out that the card of employee
Harris, who did not sign until August 4, bears a serial number similar to Baker 's : namely,
TT 468129 . However, there is no evidence that the Auto Workers used its application
cards in serial order. An indication that it did not do so is given by the fact that Cecil
Smith's card , which was signed on June 22, bears the serial number TT 239098 and Juan
Rodriquez ' card, which was signed June 26, bears the serial number TT 299922. Accord-
ingly , we do not believe that any inference which might be drawn from the serial number
on Baker's card could properly outweigh his credited testimony as to the date when he
signed.
86 Respondent appears also to challenge the validity of some of the signatures on the
cards. However, it made no effort at the hearing to have any of the card signatures
compared physically with other signatures written by the employees concerned.
37 See Appendix A. We have excluded from the unit a third temporary employee, Weiss,
who worked from June 29 to July 6.
38 No application cards or dues receipts were introduced at the hearing to show that
any of the employees ever designated the Teamsters . True, O'Brien testified that Heffner,
McHugh , and Citrollo (who were the employees most active on behalf of the Auto Workers
at 30th Street ), as well as three employees at 80th Street, signed Teamsters cards. If this
were really true, it could easily have been substained by written proof Moreover, O'Brien
admitted that, when he called on Spitzer on June 26 or 27, after his talk with Heffner,
McHugh, and Citrollo, he had not yet signed up a single employee . Accordingly, we do
not credit his bare claim.
w The record shows that the Jewelry Workers requested recognition on August 8, a
month and a half after the Auto Workers' request, and that it filed a petition on August
14, and withdrew that petition on August 23, 1950. In the absence of any other evidence,
we are unwilling to infer (as Respondent would have us) that the Jewelry Workers ob-
tained the designations of any of the employees in the unit, or even that it sought to
obtain any.
450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent apparently contends that, even if the Auto Workers did
have a majority, Respondent did not violate Section 8 (a) (5) of the
Act because it did not refuse to bargain with that Union until after
Respondent learned that the Teamsters also claimed to represent its
employees. After acquiring that knowledge, it is argued, Respond-
ent could not have recognized the Auto Workers without thereby
giving the Auto Workers unlawful assistance in violation of Section
8 (a) (2) of the Act. On this record, we find no merit in this
contention.
It is true that an employer who refuses recognition to a majority
union because of a good-faith doubt as to its majority status normally
is not guilty of a violation of Section 8 (a) (5) of the Act.- And it
is also true that the presence of one or more rival claims can reason-
ably contribute to an employer's doubt and hence can be considered
by the Board in weighing the employer's motive.41 Indeed, in the
ordinary case the employer who is confronted with claims by rival
organizations is under a duty not to recognize one of them until the
Board has resolved the question concerning representation 418 How-
ever, the facts of this case lead us to agree with the Trial Examiner
that Respondent entertained no good-faith doubt as to the Auto
Workers' majority, and to find that the principle just referred to is
not applicable here. O'Brien frankly admitted that on June 26 or
27, when he paid his visit to Spitzer, the Teamsters had not succeeded
in signing up a single employee. That Respondent must have been
aware of this lack of success is shown by its effort, through Foreman
Ascher and employee Bachorik, to sign up "five" employees at 80th
Street early in July-just enough to give the Teamsters' claim the
appearance of substantiality. On that occasion Bachorik reported
back to Respondent that none of the employees favored the Teamsters.
Moreover, Respondent showed itself so little impressed by the Team-
sters' claim that it made no mention of it either in refusing the Auto
Workers' claim on June 30, or in the prehearing conference at the
offices of the Board on August 3, or in the letter which it wrote to the
Jewelry Workers on August 9 explaining that it would not accede to
that union's request for recognition because of the Auto Workers'
claim. Finally, the overwhelming way in which the employees hon-
ored the Auto Workers' strike call on August 7 negatived the posses-
sion by the Teamsters of any significant following among Spitzer
employees.-
Respondent's lack of any bona fide doubt of the Auto Workers'
majority is shown also by the measures which it took, in violation of
10 Celanese Corporation of America , 95 NLRB 664, 671.
a Crosby Chemicals, 85 NLRB 791.
•'• Cf. Sunbeam Corporation , 99 NLRB 546.
4 New Jersey Carpet Mills, 92 NLRB 604.
SPITZER MOTOR SALES, INC. 451
the Act, to destroy that majority by influencing its employees to
withdraw support from the Auto Workers and to join the Team-
sters 43 Its decision to eliminate Saturday hours at 80th Street was
made during the last week of June, and it began to give notifications
of its alteration of its practice regarding vacations on June 30-only
a few days after its receipt of the Auto Workers' letter requesting
recognition. Later came the active assistance to the Teamsters' or-
ganizing efforts at 80th Street; then the discriminatory discharge of
Rodriquez. In August, President Spitzer admittedly remarked to a
group of his striking employees that he "wouldn't sign up with 259
[the Auto Workers] but if they picked the AFL, [he] would consider
it." This remark was reminiscent of his statement at the shop meet-
ing in early June, before the advent of the Teamsters, that before he
signed up with a union he would lock up the place.
On all the facts, we find that Respondent did not have and could not
have had a bona fide belief that the Teamsters' bare claim raised a sub-
stantial question concerning representation or that the Auto Workers
lacked a majority. This being so, Respondent was under a duty to
recognize and bargain with the Auto Workers. Any other conclusion
would produce the absurd result of permitting an employer confronted
with a claim of majority by one union, as to which he has no bona fide
doubt, to defeat his obligation to bargain by successfully urging his
own unlawful conduct in subsequently sponsoring a rival organization
and despite his knowledge that the latter does not represent any
employees. If Respondent had recognized the Auto Workers, it
would clearly not have been found guilty of any violation of Section
8 (a) (2) of the Act.-
The fact that the Auto Workers expressed an intention of filing a
representation petition with the Board if Respondent would not grant
it recognition voluntarily, and that it did so, does not justify Respond-
ent's refusal to recognize it45 The argument that Respondent was
41 In general , the commission of unfair labor practices by an employer contemporaneously
with his refusal to bargain has been held to support an inference that the refusal was not
motivated by a bona fide doubt of majority . Jackson Press, 96 NLRB 897 , 901 ; Top Mode
Manufacturinq Co , 97 NLRB 1273 . There are cases , however , in which special circum-
stances negatived the usual inference , such as I. Spiewak ct Sons, 71 NLRB 770 ; Crosby
Chemicals , 85. NLRB 791 ; and Beaver Machine d Tool Co., 97 NLRB 33. In Spiewak and
Beaver, the unions competing with the charging union were, respectively, the certified
and the currently recognized bargaining representatives , and had been for some time past.
In Crosby , one of the competing unions had recently struck and picketed the plant. In the
present case there were no such factors pointing to any substantiality in the Teamsters'
claim
44 N. L. R. B. v. Flotiil Products , 180 F . 2d 441 ( C. A. 9) ; Ensher, Alexander d Barroom,
74 NLRB 1443 . Sunbeam Corporation , 99 NLRB 546 , is distinguishable . In that case at
least one of the rival unions, the IUE, had an unmistakably substantial card representa-
tion : another rival , the IBEW , had polled a substantial number of votes in a recent
Board election . Moreover , neither the IUE nor the IBEW were assisted organizations,
as was the Teamsters here; and the I . A. M., which was held to have been unlawfully
recognized , enjoyed only a very slim card majority.
45 N. L . R B, v. Star Beef Co., 193 F . 2d 8 (C . A. 1), enfg. 92 NLRB 1018 ; Hawley Broad-
casting Co, 100 NLRB 791; Stewart Oil Co ., 100 NLRB 4.
452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
merely awaiting the more conclusive verdict afforded by a Board elec-
tion comes with ill grace from an employer which deliberately en-
gaged in unfair labor practices to make the holding of a fair election
impossible.
Consequently , we find that on June 23 , when Respondent received
the Auto Workers ' letter and failed to respond to it,46 and thereafter,
Respondent refused to bargain with the Auto Workers in violation of
Section 8 (a) (5) and (1) of the Act.
The Strike
On August 4, 1950, the Auto Workers held a membership meeting
to discuss the situation at Spitzer's. Numerous grievances were aired.
Among them were the change in hours (and hence in pay) at 80th
Street, the cancellation of vacations, the discharge of Rodriquez, Re-
spondent's assistance to the Teamsters, and Respondent's refusal to
bargain with the Auto Workers. All of these things we have found
to be unfair labor practices. In addition, the men also talked about
their desire for higher pay and complained that Respondent was
deliberately delaying the representation proceedings initiated by the
Auto Workers' petition of June 29 47 Then a motion was made and
passed giving authority to the shop stewards to call a strike. The
strike began on the morning of August 7, 1950.
Like the Trial Examiner, we find that this strike was substantially
caused by Respondent's unfair labor practices. The fact that the
strikers were partially motivated by a desire for better pay and by
resentment at what they regarded as delaying maneuvers on the part
of Respondent, does not prevent the walkout from being an unfair
labor practice strike.48
Early in October, during the strike, Service Manager Brown sug-
gested to employee Michalek that he get the men together to confer
with Spitzer, that with 1 or 2 exceptions Brown thought they would
all be taken back and given better conditions than before the strike,
but that it would have to be done without the Auto Workers. Simi-
larly, in August, Spitzer invited striker Nolen to return to work
without the Union. By thus soliciting the return of individual strik-
'e The Auto Workers having had a majority at the time Respondent received the letter,
it is immaterial that the situation was otherwise when the Union sent the letter. Nash
San Diego , Inc., 90 NLRB 88.
47 The usual preliminary conference in the representation case had been set for July 5.
To accommodate the vacation period of one of Respondent 's counsel it was reset to
August 3. On that date Respondent 's attorneys failed to bring in the commerce data
requested by the Board. Moreover , they rejected every possible unit combination offered
by the Auto Workers and finally requested additional time to consult with Spitzer, who
had not attended the conference.
4' N. L. R. B. v. Stiliey Plywood Co., 199 F. 2d &19 ( C. A. 4), enfg. as modified , 94 NLRB
932. In the absence of the unfair labor practices , it is extremely unlikely that these other
motives would have caused the men to go on strike.
SPITZER MOTOR SALES, INC. 453
ers in express derogation of their chosen bargaining representative,
we find that Respondent violated Section 8 (a) (1) of the Act 49
The Remedy
Having found that Respondent unlawfully discriminated against
its employees by altering its practices regarding vacations and by
eliminating Saturday work at 80th Street, we will order that each
employee who was eligible for a paid vacation in 1950 be paid by
Respondent that sum of money which he would have received as vaca-
tion pay if Respondent had continued its usual vacation practice.
Moreover, all 80th Street employees should be made whole for the
loss in remuneration caused them by the elimination of their Saturday
work, until such time as Respondent would have eliminated that work
for reasons unconnected with the organizational activities of its
employees.60
Having found that Respondent unlawfully discriminated against
Miguel Rodriquez, we will order that he be reinstated and made whole
by Respondent for the loss of pay which he has sustained. Rodriquez
testified that, about 2 months after the strike began, Service Manager
Brown remarked to him while he was doing picket duty : "Mike, you
want to come back to work? Any time you want to come back to
work, it is all right." 51 We construe this as an unconditional offer
of reinstatement sufficient to suspend Respondent's liability for fur-
ther back pay to Rodriquez so long as he chose to remain on strike.
Rodriquez should therefore be made whole for the period from his
discharge on July 26, 1950, until October 7, 1950,52 and also, as with
all the other strikers, from a date 5 days after his unconditional appli-
cation for reinstatement.53
The sums necessary to make Respondent's employees whole shall be
determined according to the formula set forth in F. W. Woolworth
00.54
Having found that Respondent has engaged in various other unfair
labor practices, we will order other appropriate affirmative and nega-
tive relief. Because the strike of August 7, 1950, has been found to
have been an unfair labor practice strike, we will order that Respond-
ent shall, upon request, reinstate the strikers, dismissing, if necessary,
'0 Jackson Press, 96 NLRB 897; Harcourt and Company; 9'8 NLRB 892.
10 Waldoroth Label Corporation, 91 NLRB 673, 675.
° Brown denied making the statement ; however, we credit this admission of Rodriquez.
03 Although the 80th Street plant was shut down by the strike on August 7 and although
it is possible that Rodriquez , if he had not been unlawfully discharged , would at that time
have gone on strike with the others, we cannot be certain that he would have done so or
that Respondent would not have made use of his services at the 30th Street plant.
Because Respondent 's unlawful discrimination has made it impossible to ascertain what
would actually have happened , the uncertainty must be resolved against Respondent.
a Boeing Airplane Co ., 80 NLRB 447, 456.
°' 90 NLRB 289.
250983-vol. 102-53-30
454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
any replacements hired since that date. Because the variety of unfair
practices engaged in by Respondent evinces an attitude of general
opposition to the purposes of the Act, finally, we deem it necessary to
order that Respondent cease and desist from in any manner infringing
upon the rights guaranteed in Section 7 of the Act.
CONCLUSIONS OF LAW
T. Amalgamated Union Local 259, United Automobile, Aircraft
and Agricultural Implement Workers of America, CIO; Local 917,
International Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, AFL; and Local 13, Novelty Production
Workers, Jewelry and Allied Trades, AFL, are labor organizations
within the meaning of Section 2 (5) of the Act.
2. All employees of the service, body, and parts departments at
Respondent's New York, New York, plants, including parking lot
attendants, but excluding office employees, salesmen of new and used
cars, guards, the night foreman, and all other supervisors as defined
in the Act, constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9 (b) of the Act.
3. Amalgamated Union Local 259, United Automobile, Aircraft and
Agricultural Implement Workers of America, CIO, was on June 23,
1950, at all times material thereafter has been, and now is, the exclusive
collective bargaining representative of all the employees in the above-
described unit.
4. By refusing on June 23, 1950, and at all times thereafter, to
bargain with Amalgamated Union Local 259, United Automobile,
Aircraft and Agricultural Workers of America, CIO, as the exclusive
representative of the employees in the above-described unit, and by
unilaterally changing the hours of work and vacations of its em-
ployees, Respondent has engaged in and is engaging in unfair labor
practices affecting commerce within the meaning of Section 8 (a) (5)
of the Act.
5. By discharging Rodriquez, by eliminating Saturday hours at the
80th Street shop, and by altering its practice regarding vacations at
both plants, in order to discourage membership in Amalgamated
Union Local 259, United Automobile, Aircraft and Agricultural Im-
plement Workers of America, CIO, and to encourage membership in
Local 917, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, AFL, Respondent has en-
gaged in unfair labor practices within the meaning of Section 8 (a)
(3) of the Act.
6. By rendering illegal assistance to Local 917, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers
SPITZER MOTOR SALES, INC. 455
of America, AFL, Respondent has engaged in unfair labor practices
within the meaning of Section 8 (a) (2) of the Act.
7. By surveillance of its employees' organizational activities, and
by otherwise interfering with, restraining, and coercing its employees
in the exercise of the rights guaranteed in Section 7 of the Act, Re-
spondent has engaged in unfair labor practices within the meaning of
Section 8 (a) (1) of the Act.
8. The aforesaid unfair labor practices affect commerce within the
meaning of Section 2 (6) and (7) of the Act.
Order
Upon the basis of the entire record in this case and pursuant to
Section 10 (c) of the National Labor Relations Act, as amended, the
National Labor Relations Board hereby orders that Respondent
Spitzer Motor Sales, Inc., New York City, its officers, agents, suc-
cessors, and assigns, shall :
1. Cease and desist from :
(a) Making unilateral changes in wages, hours, or vacations, or in
any other manner refusing to bargain collectively with Amalgamated
Union Local 259, United Automobile, Aircraft and Agricultural
Implement Workers of America, CIO, as the exclusive bargaining
representative of all the employees in the unit found appropriate in
the accompanying Decision.
(b) Encouraging membership in Local 917, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, AFL, or in any other labor organization, or discouraging
membership in Amalgamated Union Local 259, United Automobile,
Aircraft and Agricultural Implement Workers of America, CIO, or
in any other labor organization, by discriminating against its em-
ployees in regard to their hire, tenure of employment, or any term
or condition of employment.
(c) Soliciting its employees to join, or in any other manner con-
tributing support to, Local 917, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America, AFL, or
any other labor organization.
(d) Engaging in surveillance of its employees' union activities.
(e) In any other maner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to form
labor organizations, to join or assist Amalgamated Union Local 259,
United Automobile, Aircraft and Agricultural Implement Workers
of America, CIO, or any other labor organization, to bargain col-
lectively through representatives of their own choosing, and to engage
in other concerted activities for the purpose of collective bargaining
456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or other mutual aid or protection, or to refrain from any or all of such
activities, except to the extent that such right may be affected by an
agreement requiring membership in a labor organization as a condi-
tion 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) Upon request, bargain collectively with Amalgamated Union
Local 259, United Automobile, Aircraft and Agricultural Implement
Workers of America, CIO, as the exclusive collective-bargaining rep-
resentative of all employees in the unit found appropriate in the
accompanying Decision, with respect to rates of pay, wages, hours of
employment, vacations, and other conditions of employment and, if
an understanding is reached, embody such understanding in a signed
agreement.
(b) Make whole all those employees who were eligible for paid
vacations in 1950 by paying to each of them a sum equal to that which
he would have received as vacation pay if Respondent had continued
its usual vacation practices.
(c) Make whole all 80th Street employees, in the manner set forth
in the portion of the accompanying Decision entitled "The Remedy,"
for any loss of pay which they may have suffered by reason of the
elimination of Saturday work.
(d) Upon application, offer Miguel Rodriquez and all other strik-
ing employees who have not been reinstated immediate and full rein-
statement to their former or substantially equivalent positions, with-
out prejudice to their seniority or other rights and privileges,
dismissing, if necessary, all persons hired on or after August 7, 1950.
(e) Make whole Miguel Rodriquez, in the manner provided in the
portion of the accompanying Decision entitled "The Remedy," for
any loss of pay he may have suffered by reason of Respondent's dis-
crimination against him.
(f) Make whole the employees specified in paragraph 2 (d) above,
for any loss of pay they may suffer by reason of Respondent's refusal,
if any, to reinstate them in the manner provided in that paragraph,
for the period beginning five (5) days after the date on which each
applies or s pplied for reinstatement and ending with the date of
Respondent's offer of reinstatement.
(g) Post at both its plants in New York City, copies of the notice
attached hereto as Appendix B.55 Copies of this notice, to be fur-
°5In the event that this Order is enforced by a decree of the United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
SPITZER MOTOR SALES, INC. 457
nished by the Regional Director for the Second Region, shall, after
being duly signed by Respondent's official representative, be posted
by it immediately upon receipt thereof, and maintained by it for a
period of sixty (60) consecutive days thereafter in conspicuous places,
including all places where notices to its employees are customarily
posted. Reasonable steps shall be taken by Respondent to insure that
these notices are not altered, defaced , or covered by any other material.
(h) Upon reasonable request make available to the National Labor
Relations Board or its agents, for examination and copying, all pay-
roll records, social-security payment records, timecards, personnel
records, and all other records pertinent to a computation of the
amounts due under the terms of this order.
(i) Notify the Regional Director for the Second Region, in writing,
within ten (10) days from the date of this Order, what steps it has
taken to comply herewith.
Appendix A
Below are listed the names of the employees whom we find to have
been in the appropriate bargaining unit on the dates indicated. Those
marked with an asterisk are those whom we find to have designated
the Auto Workers by the dates indicated.
June 24, 1950
*Amack
Bachorik
*Baker
Blackwell
Branch
Brown, Isaiah
Burkart
*Casesi
*Controllo
Clossin
*Davila
*Davis
Gittens
*Gnatt
*Graham.
*Heffner
Hooks
*Johnson
Ketcher
June 23, 1950-Continued
*Kirshenbaum
*Kuzio
*Larimer
*McHugh
McPhaul
*Michalek
Milazzo
Moss
*Nolen
*Pine
*Rand
Rodriguez, Juan
*Rodriquez, Miguel
Romano
*Smith, Cecil
Staton
*Tighe
Whittaker
*Zorzopian
458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
June 30, 1950
*Amack
*Bachorik
*Baker
*Blackwell
*Branch
Brown, Isaiah
*Casesi
*Citrollo
Clossin
*Davila
*Davis
Gittens
*Gnatt
*Graham
*Heffner
Hooks
*Johnson
Ketcher
June 30, 1950-Continued
*Kuzio
*Larimer
*McHugh
McPhaul
*Michalek
Milazzo
*Moss
*Nolen
*Pine
*Rand
*Rodriguez, Juan
*Rodriquez , Miguel
Romano
*Smith, Cecil
Staton
*Tighe
*Whittaker
*Zorzopian
Appendix B
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 encourage membership in LOCAL 917, INTERNA-
TIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSE-
MEN AND HELPERS OF AMERICA, AFL, or in any other labor organ-
ization, or discourage membership in LOCAL 259, UNITED AUTO-
MOBILE, AIRCRAFT AND AGRICULTURAL IMPLEMENT WORKERS OF
AMERICA, CIO, or in any other labor organization, by discharging
any of our employees or in any other manner discriminating in
regard to hire, tenure, terms or conditions of employment.
WE WILL NOT solicit our employees to join, nor will we in any
other manner contribute support to, LOCAL 917, INTERNATIONAL
BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND
HELPERS OF AMERICA, AFL, or any other labor organization.
WE WILL NOT make unilateral changes in wages, hours, or
vacations.
WE WILL NOT engage in surveillance of our employees' union ac-
tivities or in any other manner interfere with, restrain, or coerce
SPITZER MOTOR SALES , INC. 459
our employees in the exercise of their right to self- organization,
to form labor organizations, to join or assist LOCAL 259, UNITED
AUTOMOBILE, AIRCRAFT AND AGRICULTURAL IMPLEMENT WORKERS
OF AMERICA , CIO, 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 bar-
gaining 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 organi-
zation as a condition of employment as authorized in Section 8
(a) (3) of the Act.
WE WILL bargain collectively upon request with LOCAL 259,
UNITED AUTOMOBILE, AIRCRAFT AND AGRICULTURAL IMPLEMENT
WORKERS OF AMERICA, CIO, as the exclusive collective-bargaining
representative of all our employees in the unit described below,
with respect to rates of pay, wages, hours of employment, vaca-
tions, and other conditions of employment; and if an understand-
ing is reached, we will embody such understanding in a signed
agreement. The bargaining unit is :
All employees of the service, body, and parts departments
at our New York, New York, plants, including parking lot
attendants, but excluding office employees, salesmen of new
and used cars, guards, the night foreman, and all other
supervisors as defined in the Act.
WE wiLL upon application offer Miguel Rodriquez and all other
striking employees who have not been reinstated immediate and
full reinstatement to their former or substantially equivalent
positions, without prejudice to their seniority or other rights and
privileges, dismissing, if necessary, all persons hired on or after
August 7, 1950. We will make Rodriquez whole for any loss of
pay he may have suffered by reason of the discrimination against
him.
SPITZER MOTOR SALES, INC.,
Employer.
By ---------------------------------
(Representative ) ( Title)
Dated --------------------
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.