New Mexico Transportation Co., Inc.

NEW MEXICO TRANSPORTATION COMPANY, INC. 47 closer to those of the other clerks thanto those of the operating employees. Accordingly, we will include them in the unit of clerical employees . We find that the following units of employees of the Em- ployer at its Doremus Avenue terminal are appropriate within the meaning of Section 9 (b) of the Act: (1) All operating employees, including tank truck salesmen, rack truckdrivers, truck mechanics, pump mechanics, ware- housemen, yardmen, and truck and car washers, but excluding office clerical employees, salesmen, junior salesmen, real estate representatives , professional employees , guards, 11 and supervisors as defined in the Act. (2) All office clerical employees, including senior clerks, intermediate clerks, and junior clerks, but excluding confi- dential employees, u guards, and supervisors as defined in the Act. [Text of Direction of Elections omitted from publication.] 13 There is one employee classified by the Employer as a watchman. As he spends part of his time watching for intruders, we find that he is a guard within the meaning of the Act. Walterboro Manufacturing Corporation, 106 NLRB 1383. 14 The parties stipulated that K. E. Albert, A. T. Dougher, and A. Christiansen are con- fidential employees and agreed that they should be excluded from the unit. We will, therefore, exclude them. NEW MEXICO TRANSPORTATION COMPANY, INC. and DI- VISION 1483, AMALGAMATED ASSOCIATION OF STREET, ELECTRIC RAILWAY AND MOTOR COACH EMPLOYEES OF AMERICA, AFL. Case No. 33-CA-213. November 13, 1953 DECISION AND ORDER On July 10, 1953, Trial Examiner Wallace E. Royster issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended dis- missal of those allegations. Thereafter, the Respondent filed exceptions to the Intermediate Report. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions, and 107 NLRB No. 8. 4 48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the entire record in the case, and finds merit in the Respond- ent's exceptions . 1. We do not agree with the Trial Examiner that the pre- ponderance of the evidence establishes that the Respondent, in violation of Section 8 (a) (3) and(1) of the Act, discriminatorily discharged Oma McReynolds because she was primarily responsible for the Union's organizing the Respondent's office employees and not because of her inattention to her duties and poor work performance, as the Respondent insists. What apparently persuaded the Trial Examiner, in part at least, to reject the Respondent ' s asserted reason for the discharge was his belief that McReynolds had not been previously criticized in a serious manner for her alleged deficiencies. However, McReynolds, herself, testified that her immediate supervisor, Lee Chambers, had indicated dissatisfaction with her production record to the point of comparing her perform- ance with the amount of work he could turn out. We cannot assume that such criticism was intended to be taken lightly. Moreover, it is not without significance that Chambers, who complained to Garton, the Respondent's comptroller and assistant secretary -treasurer , about McReynolds ' deficiencies, and thereby was virtually responsible for her discharge, was by no means an individual hostile to the organization of the Respondent's office employees. Indeed, it was Chambers who started the union movement among the clerical employees shortly before his promotion to a supervisory position. According to McReynolds' testimony, Chambers approached her concerning organizing the clerical employees and she volunteered the use of her home for a meeting place only because Chambers told her that his home was too small for the purpose. The foregoing undisputed facts do not stand alone in casting doubt upon the validity of the Trial Examiner's finding that the Respondent was motivated by antiunion considerations in discharging McReynolds. The record is devoid of any evidence of hostility on the Respondent's part to the organization of its employees, and particularly to the Union herein. In fact, not only is there no history of union animus, but the Respondent has bargained with the Union as the representative of the Respondent's drivers. In the facts and circumstances of this case, we are not convinced that the Respondent penalized this employee because of her membership in or activities on behalf of the Union. Contrary to the impression of our dissenting colleague, we do not hereby reject any of the Trial Examiner's credibility findings. It is on the basis of the facts as set forth by the Trial Examiner, and as fully set out in the Intermediate Report, that we reach a contrary conclusion. The suggestion that we have reversed a credibility finding based on observation of witnesses , must arise from the fact that at one point the Trial Examiner discredited Garton's and Chambers' testimony NEW MEXICO TRANSPORTATION COMPANY, INC. 49 "to the effect that McReynolds had so abruptly become an undesirable employee, because of the quality or quantity of her work." The Trial Examiner did not discredit the testi- mony of these two witnesses that they had observed McReynolds' work performance and found it below standard. Instead, he concluded, from her testimony, that she had not been criti- cized in any serious manner. Indeed, Garton's testimony that McReynolds' performance had made her undesirable was a statement of the asserted reason for the discharge, and his way of denying the allegation that her union activity, instead, was objectionable to the Respondent. In rejecting this testimony of the witnesses, the Trial Examiner was merely disagreeing with their contention as to what motivation truly underlay the discharge. We, in turn, after considering all of the same facts revealed in the record, reach a conclusion different from that of the Trial Examiner. We not only do not depart from the salutary practice mentioned in the dissent, but like our colleague, fully intend to continue to accept the credibility findings of Trial Examiners based on their personal observation of the demeanor of witnesses, unless the clear preponderance of allthe relevant evidence demonstrates that the Trial Examiner's resolution was incorrect. As the preponderance of the evidence does not establish that the Respondent was motivated by antiunion considerations in discharging McReynolds, we shall overrule the Trial Ex- aminer's contrary conclusion and dismiss these allegations of the complaint. 2. The Trial Examiner also found a single instance of interrogation of an employee to be violative of Section 8 (a) (1) of the Act. We are not convinced that, under the facts and circumstances of this case, such an isolated act interferes with, restrains, and coerces employees in the exercise of their self-organizational rights within the meaning of Section 8 (a) (1) of the Act. As we have found that the Respondent has not engaged in any unfair labor practices alleged in the complaint, we shall dismiss the complaint in its entirety. [The Board dismissed the complaint.] Member Peterson, dissenting: I am unable to concur in the majority's reversal of the Trial Examiner's finding that the Respondent, in violation of Section 8 (a) (3) and (1) of the Act, discriminatorily discharged employee Oma McReynolds because of her union organiza- tional activities. In my opinion, the majority's decision represents a departure from the Board's salutary practice, which the courts have approved, to accept the Trial Examiner's credibility findings based on his personal observation of the demeanor of witnesses, unless the clear preponderance of all 5 0 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the relevant evidence demonstrates that the Trial Examiner's resolution was incorrect. i As fully discussed in the Intermediate Report, McReynolds, before her discharge , was in the Respondent ' s employ for almost 3 years and was admittedly a good employee at least until sometime in October 1952, when she allegedly became inattentive to her duties and her work allegedly began to deteriorate . During that period she received 4 pay increases and was progressively advanced to more difficult work. Her last increase was given the preceding September at which time, according to McReynolds ' undisputed testimony , Garton, the Respondent ' s comptroller and assistant secretary -treas- urer , cryptically told her , in reply to her remark that she had been wondering how long she would have to wait for the increase , " Just stick with me ." In the face of this recox'd of McReynolds ' service as a satisfactory employee, Garton, whom the Trial Examiner discredited , testified that in October, Chambers called his attention to the deterioration in her work and that he probably decided to discharge her the following month but withheld such action on advice of counsel until January 1953, because of the pendency of a representa- tion proceeding which the Union had instituted. It appears to me, as it did to the Trial Examiner, that it was more than a mere fortuitous circumstance that the alleged deterioration in McReynolds ' work should conveniently coincide with the union organizational activities among the office employees , which included union meetings in McReynold's home, and that Garton's decision to discharge McReynolds should follow so closely the Union's request on October 28 for recognition as the majority representative of the office employees . The incredulousness of the Respondent's ex- planation for McReynolds ' discharge becomes more apparent when we consider McReynolds ' credited testimony that neither Garton nor McReynolds ' immediate supervisor , Chambers, ever reprimanded her for her alleged deficiencies or warned her that she courted discharge if she did not improve, as would be reasonably expected where, as here , the employee concededly had a good employment record. Indeed, Garton and Chambers admitted not reprimanding or warning her. Although McReynolds also testified that Chambers told her that she was not turning out as much work as he could do, I cannot assume that such a statement was intended to, or actually did, serve as a warning to McReynolds that her job was precarious if she did not improve . In fact , McReynolds testified without contradiction that at the time of her discharge she complained to Garton that if her work was unsatisfactory, 'Standard Dry Wall Products, Inc., 91 NLRB 544, enfd. 188 F. 2d 262 (C A. 3); N. L R. B v. Dant & Russell, Ltd., 92 NLRB 307, enfd. 207 F. 2d 165 (C. A. 9), cf. N. L. R. B. v. Universal Camera Corp., 190 F. 2d 429 (C. A. 2), on remand from Universal Camera Corp. v. N. L. R. B., 340 U. S. 474. NEW MEXICO TRANSPORTATION COMPANY, INC. 51 she should have at least been forewarned . There is no evidence that Garton denied this assertion. It is also significant that McReynolds testified without contradiction that Garton in the past had expressed satisfaction with her work. ' Moreover , she credibly testified that she had always done the work that was normally expected of her. In view of the foregoing evidence , much of which is undis- puted, I am not persuaded that the preponderance of the evidence warrants disturbing the Trial Examiner's credibility findings . Accordingly, I would sustain his finding that the Respondent discriminatorily discharged McReynolds in viola- tion of the Act and order her reinstatement with back pay. Member Murdock took no part in the consideration of the above Decision and Order. 2 There is evidence that on one occasion in June 1952, Garton told her to discontinue the practice of going for coffee in the afternoon This practice thereafter ceased. Intermediate Report and Recommended Order STATEMENT OF THE CASE Upon a charge duly filed by Division 1483 , Amalgamated Association of Street , Electric Railway and Motor Coach Employees of America, AFL, herein called the Union, the General Counsel of the National Labor Relations, Board issued his complaint against New Mexico Transportation Company, Inc., herein called the Respondent, alleging that the Respondent had committed unfair labor practices affecting commerce within the meaning of Section 8 (a) (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 61 Stat. 161, herein called the Act. In respect to unfair labor practices , the complaint alleges in substance that the Respondent interrogated employees concerning their union affiliation , threatened and warned them to refrain from assisting or becoming members of the Union, withheld a wage increase in order to affect the result of a representation election, and on January 21, 1953, discriminatorily discharged its employee, Oma B. McReynolds. Respondent's answer denies the commission of unfair labor practices. Pursuant to notice a hearing was held before the undersigned Trial Examiner in Roswell, New Mexico, on June 2 and 3, 1953. The General Counsel and the Respondent were represented by counsel, participated in the hearing, and were afforded full opportunity to examine and cross-examine witnesses and to introduce evidence relevant to the issues. At the conclusion of the taking of evidence counsel for the Respondent made motions to dismiss, directed to the various unfair labor practices alleged in the complaint, upon which I reserved ruling. The motions are disposed of in accordance with the findings, conclusions, and recommenda- tions hereinafter made. Upon the entire record in the case and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent is a New Mexico corporation with its principal office and place of business in Roswell, New Mexico. It is now and at all times herein mentioned has been engaged in the transportation of passengers, baggage, express, and mail by motor coach. During the 12-month period preceding the issuance of the complaint the Respondent has maintained offices and other facilities at various points in New Mexico and Texas, and has been engaged 52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in the transportation of passengers , baggage, express , and mail by motor coach on regular schedules between points in those States . Its annual revenues exceed $ 100,000, of which approximately 40 percent derives from the transportation of persons and things in interstate commerce. J.I. THE ORGANIZATION INVOLVED The Union is a labor organization affiliated with the American Federation of Labor, ad- mitting to membership employees of the Respondent. Ill. THE UNFAIR LABOR PRACTICES A. Interference , restraint , and coercion Respondent employs about 10 clerical workers in its principal office at Roswell, who have not been represented for purposes of collective bargaining . In early August some of them met at the residence of Oma McReynolds to discuss the possibility of forming or joining a union. Among those present was Lee Chambers, who later that month was promoted to a supervisory position in Respondent 's office, and Thomas Hardin. Shortly after the occurrence of this meeting, according to Hardin, as he was leaving the office at the close of a workday, H. L. Garton, Respondent's comptroller and assistant secretary-treasurer , stopped him and asked if Hardin had been invited to join the Union. Hardin said that he had. Garton then asked what Hardin thought about it. Hardin replied that he had not yet made up his mind. Garton then went on to say , "Do you think the Union can do more for you than I could? " Hardin answered that he did not know . When called as a witness , Garton at first denied that any such conversation occurred , but on cross-examination recalled that in talking to Hardin he may have mentioned "what he thought about the Union, if he had heard of it" and explained that there had been some rumor that the office employees were considering joining a union . Garton admitted that it was possible that he asked Hardin how the latter felt about that idea. In view of Hardin's testimony and Garton 's admission , it is clear that the latter did interrogate the former in connection with his convictions or desires in respect to a union. As the Board has consistently found such interrogation to constitute per se a violation of the Act, I find that by Garton's inquiries the Respondent interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act and thereby has violated Section 8 (a) (1) of the Act. The move toward organization progressed and on October 28, the Respondent was notified by the Union that a majority of the office employees had designated it to represent them, that it was prepared to present proof of this claim, and that it desired to begin negotiations in respect to wages , hours, and other conditions of employment. Within a few days Respondent was notified by the Wage Stabilization Board that its petition for permission to establish higher wage rates for mechanical , station, and office employees had been approved.' After the Union had filed a petition for certification , about mid-November, in a conversation with Hardin, Paul McCutchen, Respondent 's president, said, according to Hardin 's credited and undenied testimony, that wage increases had been approved for everyone other than the drivers, but as the Union was seeking recognition as representative of the office workers, he, McCutchen, had "decided to wait and see what they was going to do before putting out the raise." This bit of testimony was offered for the obvious purpose of establishing that the Respondent was holding out to the employees a promise of increased wages should they withdraw their support from the Union, and threatening that an approved wage increase would not be placed in effect if the Union established its majority. Karl Mueller, Respondent's counsel, testified that upon learning of the Union's claim and of the authority to install new and increased wage rates , he advised the Respondent to withhold any action ir.:hat respect until the question of representation was resolved , and to respond to any inquiry of an em- ployee in the matter that wage rates would remain unchanged pending the holding of the election. Mueller explained that he feared the granting of a wage increase during the pendency of the petition might be construed as an attempt to influence the employees against the Union and thus form the basis for an unfair labor practice charge. i The petition was filed in September It is not contended, or found, that the filing was motivated by any unlawful purpose. NEW MEXICO TRANSPORTATION COMPANY, INC. 53 The granting of a wage increase at a time when an unresolved question of representation exists is not per se an unfair labor practice , although it may be evidence of one . If, in con- text, it appears tit the increase is granted or withheld in order to influence employees in the exercise of statutory rights, it may amount to such coercion as the Act forbids. The statement attributed to McCutchen is not clearly coercive. It is as susceptible of the interpre- tation that the wage increase would be withheld pending the necessity of bargaining in such matters as of any other. I find that the Respondent did not commit an unfair labor practice by the announcement in respect to the wage increase. B. The discharge of Oma McReynolds McReynolds became Respondent 's employee in April 1950 as a general office worker at 75 cents an hour. In September of that year her wage was increased to 80 cents . In March 1951 she was transferred to a different type of work in the office, and in August of that year, along with other employees , received a further increase. In January 1952 her wage was raised to 90 cents, and in March, Garton, who was her superior, transferred her to different and apparently more difficult work, telling her thatshe would get a wage increase. In Septem- ber 1952, Garton told McReynolds that her wage as of September 1 had been increased to $1 an hour. McReynolds commented that she had wondered how long she would have to wait for it. Garton answered, cryptically, "Just stick with me." As has been said, a meeting of the office employees concerning the possibility of self-organization was held at McReynolds' house in early August. Further meetings took place in September , October, and December of that year. At the October meeting eight of the employees, McReynolds among them, made application to the Union for membership. On December 8, Respondent's drivers began a strike which lasted until about January 20, 1953.2 For the period of the strike some of the clerical work, related to the amount of passenger traffic , lessened or ceased, but the office force was retained and McReynolds was assigned to bring more nearly to date Respondent's records on past reclaims. On January 21, 1953, Garton told McReynolds that he had been making a check on her work and found that she was not producing enough. McReynolds said that she was unaware of it, that she thought her work was pretty well caught up, and that she felt that she had mastered the routine , of her new duties. McReynolds went on to say that she thought she should have had a little warning, having been there nearly 3 years, and that at least she should have been told if she had not been producing work to the satisfaction of Garton. Garton said, according to McReynolds, that he had to make a report how much each employee was doing, that he disliked to report that McReynolds was not producing as much as she had, and that he desired her to resign. This McReynolds refused to do, and so Garton discharged her. According to McReynolds Garton had expressed himself in the past as being satisfied with her work, and that the only occasion upon which he said anything reflecting upon her conduct as an employee was in June of 1952 when he asked her not to go out for coffee in the afternoon. According to McReynolds she then ceased that practice. Lee Chambers, who it may be recalled was one of the employees present at the first meeting in McReynold's home concerning the Union, testified that he was promoted to a supervisory position in late August and as such became McReynolds immediate superior. In October, according to Chambers, he noted that McReynolds was not doing as much work as she should and was spending much time either in unnecessary trips out of the office or at her desk staring vacantly about or filing her nails. He reported this development to Garton, he testified, who finally instructed him to keep a close check on the amount of McReynolds' production and to report the result to him. Chambers testified that for the period from about December 4 to December 18 he observed McReynolds daily and made a calculation at the end of each day of the amount of work she had produced. From his familiarity and experience in the same type of work, Chambers testified that McReynolds' production was woefully inadequate. According to Chambers, he continued to observe McReynolds. althoug:not so closely, until the time of her discharge and that her work performance continued to jXteriorate. Chambers reported the result of his observations to Garton, without recommendation. Chambers testi- fied that all employees understood that there was a coffee break in the morning and if they wanted to go downstairs in the afternoon for a similar purpose the Respondent did not object. 2 The drivers were represented by the same organization as that seeking to represent the office workers but the strike was confined to the drivers 54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Chambers testified that in November he told McReynolds that she was not turning out as much work as he , Chambers, could on the same assignment. Garton testified that Chambers had complained to him about McReynolds ' deficiencies sometime in October and that in contrast to the very good work she had previously done it appeared that her attention to her duties was not what it should be. According to Garton, the volume of McReynolds production from October became steadily less, resulting in her discharge. Garton testified that before the detailed check on McReynolds ' work had been made he had determined to discharge her and in late November had consulted with Attorney Mueller in that respect. On Mueller 's advice to delay the discharge until after the repre- sentation election, he postponed any action . 3 Garton denied that he had knowledge of the employee meetings in McReynolds ' home or that he had any information tending to connect McReynolds with the movement toward organization. Chambers denied that he ever mentioned to Garton the fact that the first employee meeting was held at McReynolds ' home. But I have found that Garton interrogated Hardin in connec- tion with the possibility of a union representing the office employees , so it is clear that Garton had at least a suspicion that something of the sort was going on. When it is con- sidered that all of the employees involved, no more than 10, worked in the same office in a small town , that the subject of organization was one of comment among them ,4 the probability that Garton knew of the meetings and where they were held is a strong one. The action of Garton in discharging a promising and, until recently , highly satisfactory employee without attempting to discover a reason for her alleged lack of production, is strange . McReynolds testified that neither Garton nor Chambers had criticized her work in any serious manner or had suggested to her that she was inviting discharge . I credit her testimony. Garton said that he decided to let McReynolds go sometime in November at a time, from his own testi- mony , when her poor production had only recently come to his attention. The progress of McReynolds in her employment appears to have been steady and sure through September 1952. It is of course possible that she did abruptly , in October, manifest such a lack of interest in her work as to merit some criticism, but if that were so one would expect an employer faced with such a circumstance to speak to the employee in an attempt to diagnose the difficulty . Here nothing of the sort was done and the conduct of Garton and Chambers in December is suggestive of a plan to obtain evidence theretofore lacking. McReynolds testified that the summation of her productive efforts given by Chambers for the period December 4 to 18, was incomplete ; that some of the work that she did was not reflected in his testimony. Having made no record of precisely what she did on each day , she could not of course testify except generally that she did the work which normally was expected of her . There is testi- mony of McReynolds , which is undenied and therefore credited, that shortly before Christmas Garton told the office workers that the Respondent was attempting to find enough work to occupy them for the period of the strike, but that perhaps unavoidably there would be some "thumb twiddling." From this it would seem at least possible that during the period of the strike the Respondent did not expect or need such a wholehearted effort on the part of the office employees as would be required during a time of normal operation. McReynolds was one of the leaders in the movement to organize the office employees; meetings held in that connection at her home were certainly known to Chambers and probably to Garton ; she was a satisfactory and competent employee in the opinion of Garton until October 1952 ; the deterioration in McReynolds ' work performance following October, if it in fact existed , was never brought to her attention; and Garton 's decision to discharge McReynolds was made within the month following the Union 's request for recognition. Con- sidering these criteria and circumstances I find that Garton knew of McReynolds ' interest in the Union and determined upon McReynolds ' discharge for that reason. I am convinced that the survey of McReynolds ' work in December was made in an effort to provide Respond- ent with a pretext for discharge. Neither the testimony of Garton and Chambers to the effect that McReynolds had so abruptly become an undesirable employee because of the quality or quantity of her work , nor the demeanor of either in giving it , rang true. I do not credit them. I find that Oma McReynolds was discharged on January 21, 1953, because in the opinion of the Respondent she was one of those primarily responsible for the movement toward union organization among the office employees and that her discharge necessarily dis- couraged membership in and activity in behalf of the Union. I find , therefore , that by the discharge of McReynolds the Respondent violated Section 8 (a) (3) of the Act. 3 The election, which the Union lost, was conducted January 9, 1953. 4After his promotion, Chambers occasionally asked Hardin what progress the Union was making. Hardin 's customary answer was that all the employees had signed up. NEW MEXICO TRANSPORTATION COMPANY, INC. 55 By this discharge the Respondent interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act, and thereby violated Section 8 (a) (1) of the Act. IV, THE EFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations of the Respondent described in section, I above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free now of commerce. V. THE REMEDY Having ti,und that the Respondent has engaged in certain unfair labor practices, it will be recommended that it be ordered to cease and decease therefrom and to take certain affirma- tive action designed to effectuate the policies of the Act. It therefore shall be recommended that the Respondent be ordered to offer to Oma B. McReynolds immediate and full rein- statement to her former or substantially equivalent position without prejudice to her seniority or other rights and privileges and to make her whole for any loss of pay suffered because of the discrimination against her, by payment to her of a sum or money equal to the amount she would have earned in her employment with Respondent from January 21, 1953, to the date of offer of reinstatement, less her net earnings during that period. Back pay shall be computed in accordance with the Board's Woolworth formula 5 on the basis of each separate calendar quarter or portion thereof during that period. The quarterly periods, hereinafter called "quarters," shall begin with the first day of January, April, July, and October. Loss of pay shall be determined by deducting from a sum equal to that which she would have earned for each quarter or portion thereof, her net earnings, 6 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. It will also be recommended that the Respondent make available to the Board on request payroll and other records convenient for or necessary to the checking of the amount of back pay due. Upon the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Division 1483, Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, AFL, is a labor organization within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the tenure of employment of Oma B. McReynolds the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 3. By the discharge of McReynolds and by interrogating an employee concerning his disposition toward the Union, the Respondent has interfered with, restrained, and coerced its employees in respect to rights guaranteed in Section 7 of the Act and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) 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. [Recommendations omitted from publication.] 5F. W. Woolworth Co , 90 NLRB 289. 6Crossett Lumber Company, 8 NLRB 440 APPENDIX 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: 56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT discourage membership in Division 1483, Amalgamated Association of Street , Electric Railway and Motor Coach Employees of America , AFL, or in any other labor organization of our employees by means of discharge or by discrimination in any other fashion in regard to tenure of employmentor terms or conditions of employment. WE WILL NOT by means of discharge or interrogation or in any other manner inter- fere with, restrain , or coerce our employees in the exercise of the right to self -organi- zation, to form labor organizations , to join or assist tihe above-named Union or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection , or to refrain from any or all such activities , except to the extent that such right may be affected by a valid agreement requiring membership in a labor organization as a condition of employment as authorized by Section 8 (a) (3) of the Act. WE WILL offer to Oma B. McReynolds immediate and full reinstatement to her former or substantially equivalent position, without prejudice to her seniority or other rights and privileges previously enjoyed , and make her whole for any loss of earnings suffered as a result of the discrimination against her. NEW MEXICO TRANSPORTATION COMPANY, INC., 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, PENINSULA AUTO DEALERS ASSOCIATION of the CALI- FORNIA ASSOCIATION OF EMPLOYERS and RETAIL CLERKS UNION, LOCAL 775, AFL, Petitioner. Case No. 20-RC-2271. November 13, 1953 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before M. C. Dempster, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in this case, the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organizations involved claim to represent certain employees of the Employer. 3. A question affecting commerce exists concerning the representation of the employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 4. The Petitioner seeks to represent a unit of all auto- mobile and truck salesmen employed by some 50 employer- members of the Peninsula Auto Dealers Association of the California Association of Employers, hereinafter referred to as the Association. The Intervenor, Local 111, Automobile Drivers & Demonstrators Union, IBTCW & H of America, 107 NLRB No. 22.