Bert Wolfe Ford

BERT WOLFE FORD Bert Wolfe Ford and Jackie Ray Batten, George Ed- ward Coe, and International Association of Machin- ists and Aerospace Workers, AFL-CIO, Petitioner. Cases 9-CA- 11526-1, 9-CA- I 1526-2, and 9 -RC- 12102 December 4, 1978 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On August 28, 1978, Administrative Law Judge Thomas R. Wilks issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and has decided to affirm the rulings, findings,' and conclu- sions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Bert Wolfe Ford, Charleston, West Virginia, its officers, agents, succes- sors, and assigns, shall take the action set forth in the said recommended Order. IT IS FURTHER ORDERED that the election conducted on August 18, 1977, in Case 9-RC-12102 be, and it hereby is, set aside and that the case be remanded to the Regional Director for Region 9 for the purpose of conducting a new election in the appropriate unit at such time as he deems the circumstances permit the free choice of a bargaining representative. [Direction of Second Election and Excelsior foot- note omitted from publication.] i Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to over- rule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products. Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. DECISION STATEMENT OF THF CASE THOMAS R. WILKS. Administrative Law Judge: The peti- tion in Case 9-RC 12102 was filed on June 13, 1977. A Stipulation for Certification upon Consent Election was approved by the Regional Director on July 25, 1977.' The election was held on August 18. The tally of ballots dis- closed that the Petitioner failed to obtain a majority desig- nation. On August 19, the Regional Director issued a com- plaint in Case 9-CA 11526-1, based on a charge previously filed by International Association of Machinists and Aerospace Workers, AFL-CIO, herein called the Union. On August 22, the Union filed objections to con- duct affecting the results of the election. On September 2. the Regional Director issued a complaint in Case 9-CA- 11526-2, based on unfair labor practice charges previously filed by the Union. On October 13, the Regional Director issued a report on objections to election wherein he over- ruled Objections 1, 2, 3, and 5 of the Union's objections but consolidated Objection 4 for hearing in the unfair la- bor practice proceeding inasmuch as it alleged the identical issue of the discriminatory discharge of George Edward Coe. The hearing was held in Charleston, West Virginia, on February 15, 1978. The issues litigated were whether Re- spondent violated Section 8(aXl) and (3) of the Act by the discriminatory discharges of Jackie Ray Batten and George Edward Coe and by engaging in other coercive conduct and whether Respondent interfered with the elec- tion by the discriminatory discharge of George Edward Coe. Subsequently, counsel for the General Counsel filed a brief. Upon the entire record, including my observation of the demeanor of the witnesses, and after due consideration of the brief submitted, I make the following: FINDINGS OF FACT I. JURISDICTION Bert Wolfe Ford, herein referred to as Respondent, a West Virginia corporation, is an automobile dealership en- gaged in the retail business of selling and servicing automo- biles and related products in the Charleston, West Virginia, area. During a representative period, Respondent pur- chased and received goods and materials valued in excess of $50,000 which were shipped directly to its Charleston, West Virginia, facility from points outside the State of West Virginia. During the same period of time, Respon- dent received gross revenues in excess of $500,000. Respondent is and has been at all material times herein, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. International Association of Machinists and Aerospace Workers, AFL-CIO, is and has been at all times material a labor organization within the meaning of Section 2(5) of the Act. All dates are in 1977. unless otherwise indicated 555 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II THF UNFAIR LABOR PRACTICrES A. The Facts Sometime prior to March 1977, Respondent commenced consideration of increasing the labor rate charged to cus- tomers for repair services. Although Service Director Wil- liam Keeling testified that the impetus for the increase was the recent areawide increase in the flat rate for body shop- work, his testimony reveals that some consideration was also given by Respondent to increasing the flat rate for the work done by the service mechanics as well. Ultimately, the increase was announced on or about April I and charged to all body shopwork on or after that date. All mechanics and body shopmen share in a portion of the labor rate charged to the customer by the dealership, ac- cording to a traditional formula. The rate increase of April I was limited to the body shopwork. The body shop per- sonnel received an increase in wages somewhat less than what the employees thought should have been granted un- der the traditional formula. Prior to the increase of April 1, rumors of an impending increase of the labor rate charge spread throughout the shop. It was also rumored that the rate of distribution would be less than what some had considered traditional. One of the mechanics who became apprised of this rumor was Jackie Ray Batten, who had been employed by Re- spondent from 1971 with a year's hiatus between 1974 and 1975. Batten testified that a meeting of about 12-15 me- chanics and body shopmen was held in mid-March, at lunchtime, in part at a fast food restaurant and thereafter, in part, at the Respondent's back lot. Batten testified that he participated in arranging the meeting. There is some conflict in testimony as to whether the subject of union representation was raised at that meeting. Batten's testi- mony sets forth that the discussion not only dealt with the means of protesting the impending rate increase, which the employees felt was not satisfactorily apportioned, but that all present discussed and decided upon a plan to obtain union representation, and that Joseph Lindner, body shop- man, was elected to make contact with the Union. Lindner, a witness for the Respondent, testified that he and other bodymen did attend a meeting at the restaurant but that there was no discussion at that meeting of union represenation, per se. He testified that the meeting was called at the behest of the mechanics who had heard ru- mors that an increase was imminent in the service rate; that the share to be apportioned to the mechanics was, in their opinion, unfairly low; that the mechanics wished to and did discuss possible means of protesting, such as a concerted refusal to work; and that the mechanics wanted to know whether the body shopmen would support them. According to Lindner, the bodymen were satisfied with the rate at that time and were unaware that the body shop repair rate charge was also to be increased, until it was actually announced, at which time their own dissatisfaction became manifest. Lindner was very uncertain as to the dates and sequences of events, but he estimated that about I week after the body shop rate increase became effective he and two other body shop representatives met with own- er Bert Wolfe and protested that, if the rate increase were implemented as proposed, the employees might seek union representation, inasmuch as some employees had already commenced discussions of that objective. Lindner's recol- lection was that the announcement date was also the same date as the effective date of the rate increase. Lindner testi- fied that about I week after his talk with Wolfe he contact- ed the Union, informed it of the unsatisfactory rate in- crease, and was advised not to engage in a walkout but that he and other employees should first seek union representa- tion. William Keeling, service director and general supervisor of all service department and body shop personnel, testi- fied that he first became aware of union activity among employees during the second week of April, when someone in the body shop advised him of such. Keeling admitted that he had earlier heard about a meeting of his employees on the back lot, and that the bodymen had approached some of the mechanics for the purpose of engaging in a concerted effort, as one group, to confront owner Bert Wolfe in protest of the proposed rate increase and the ap- portionment thereof. Keeling testified that, as a result, a meeting was held between three bodymen, including Lind- ner, Bert Wolfe, and himself, at which time the employees unsuccessfully requested a higher apportionment of the body shop rate proceeds. Keeling testified that the employ- ees stated that all they wanted at that time was merely an increase in their share of the rate charge. Keeling placed the meeting between April I and the actual implementa- tion date.2 Keeling also testified that there were one or two other meetings with the bodymen's spokesman "some time before." He also testified that at one of those meetings the employees' spokesman made explicit reference to a union, i.e., to the effect that their real goal was a rate adjustment and if they obtained that goal then they did not need union representation. It would, thus, appear to me that Keeling's own testi- mony would tend to support Batten's testimony that at least the topic of possible union representation was raised in late March explicitly or by implication, much earlier than Lindner's rather clouded and uncertain recollection. Furthermore, Lindner's testimony itself suggests a pre- April I discussion with Wolfe, since the topic was the pro- posed wage increase, whereas, in fact, it was announced on April I and applied to customer charges immediately thereafter. Moreover, Lindner in cross-examination, admit- ted that, prior to the meeting with Wolfe, the bodymen had commenced discussions among themselves as to the feasi- bility of joining with the mechanics for the purpose of seek- ing union representation. Bill Keeling also expressed un- certainty as to the date of the announced increase and conceded that it could have occurred I or 2 days prior to April 1. I therefore conclude that, if not at the restaurant-back lot meeting, then sometime prior to March 31, employee discussions relating to union organization had taken place. I credit Lindner's testimony that Wolfe was advised that such discussions had taken place. I do not find Keeling's somewhat more watered down version really inconsistent 2 Although customers were charged immediately, the pay period did not end until April 9, and checks were calculated sometime in between. 556 BERT WOLFE FORD or contradictory with Lindner's. Even under Keeling's ver- sion, the intimation of the employee spokesman was clear, i.e., that union organization of employees was imminent if their requests were denied. Although Batten's testimony, with respect to the next event, was somewhat generalized, it was not explicitly con- troverted. He testified that within a day or two of the res- taurant and back lot meeting, all shop personnel attended a meeting conducted by Bill Keeling, during which Keeling stated that he was aware that there had been union talk among the employees, that Respondent had decided that there was to be no flat rate increase for any of them to share, and that if they were unhappy with the manner in which the shop was being managed then they should seek employment elsewhere. Keeling was not questioned as to this incident. He did testify that at some undated meeting with the mechanics a rate increase for mechanics was dis- cussed and that it was decided that an increase in the ser- vice repair charge rate of mechanics was unwarranted inas- much as it was "high enough." It is also Batten's uncontroverted testimony, corrobo- rated to some extent by the union representative, that a union meeting attended by 10 employees was held at the union hall on the evening of March 31. Batten testified that he was active in soliciting employee attendance at that meeting, which he also attended. On March 31, Batten had inspected the automobile of a friend, in Respondent's shop, pursuant to the requirements of the state motor vehicle inspection statute. The test pro- vided for 25 checkpoints, including the checking of brake linings on two wheels. It is not disputed that Batten had performed state inspections for numerous friends and had, thus, generated a certain amount of business for Respon- dent in this regard. On March 31, he admittedly did not inspect the brake linings. He testified that he did not do so because he had inspected those selfsame linings I month earlier at his home while performing repair brake work on the car and that he had concluded that the linings had been subjected to insufficient additional mileage to warrant an- other inspection. Doy Maston, a shop clerk, who had cus- tody of inspection certification stickers, reported this fail- ure to Keeling, who summoned Batten and, on Batten's admissions, discharged him. He did so despite Batten's ex- planation that he had checked the linings earlier in the month. It is Batten's testimony that Keeling denied Batten's accusation that his union activities were the true motivation for the discharge, but thereafter in the conver- sation Keeling disclosed his awareness of rumors that there had been a union meeting and he questioned Batten as to the identity of those in attendance. Batten merely respond- ed that "everyone" had attended. Keeling then offered to intercede with Bert Wolfe to reinstate Batten if Batten would promise to abandon his union activities. Batten re- sponded, ". . . if that's the way you want it." Batten was told by Keeling to contact him the next day after he, Keel- ing, had had an opportunity to consult with Bert Wolfe. That night, Batten attended the meeting at the union hall. According to Batten, the next morning he telephoned Bill Keeling to ask of the "verdict," and he was told that he should not have attended the union meeting "last night," and that he was discharged. Keeling i::itially testified that it was he who decided to discharge Batten. According to Keeling, he had had a prior discussion with Maston several days earlier, wherein Ma- ston expressed a suspicion that Batten was not actually inspecting all those cars that were brought in by Batten's friends. Keeling could offer no convincing explanation as to why Maston drew such an adverse inference from the fact that Batten was responsible for bringing in this type of business except that Maston had harbored other unrelated suspicions concerning Batten's use of warranty parts which apparently went uninvestigated by an unconcerned Keel- ing. Indeed, mechanic Jerry Humphreys, a witness for Re- spondent, admitted that in the course of a month, he per- formed about 100 inspections, including inspections for relatives and friends. Batten's testimony that he actually had inspected the brake linings of his friend's cars is unre- butted. Keeling testified that he took Maston's warnings under advisement and agreed to watch Batten on the next inspection where the customers specifically requested Bat- ten for inspection work. Keeling did not testify as to the basis for his receptivity to Maston's suspicions. Keeling testified that upon Maston's report that Batten did not pull the wheels and inspect the linings he therefore discharged Batten. Keeling testified, without controversion, that state law requires that the wheels be rechecked regardless of the fact that they may have been checked on an earlier inspec- tion or repair. However, Keeling conceded that he did in fact tell Batten that he would attempt to get him reinstated by interceding with Wolfe. He testified that he did so he- cause he considered Batten to have been a good mechanic and that discharge was unjustified. Despite Keeling's testi- mony that it was his decision to discharge Batten, Keeling testified on cross-examination that, in his opinion, suspen- sion for a week or two would have been adequate punish- ment. He did not deny that Batten explained his reason for not pulling the wheels. He denied interrogating Batten as to the union meeting and denied making any reference to the Union. After Keeling's initial confrontation with Batten, the brake linings were actually inspected and found to be satis- factory. Keeling did not explain why he changed his posi- tion with respect to the severity of punishment. In the meantime, Keeling claimed that he had heard that Batten did not actually possess the required state license to per- form inspections and therefore he gave up any attempt to talk to Wolfe about reinstatement. On cross-examination directed to the apparent anomaly in the testimony of Keel- ing that he had decided to discharge Batten in the first place, in the face of his testimony that he was constrained to discuss reinstatement with Wolfe, Keeling modified his testimony by claiming that he discussed Batten's discharge with Wolfe beforehand and that Wolfe had instructed him to discharge Batten if he were caught in the act of nonin- spection. Keeling also testified, contrary to his earlier testi- mony, that he did thereafter talk to Wolfe and recommend reinstatement after suspension, and it was afterward that he had heard from another employee, who claimed to have quoted Batten to the effect that he, Batten, did not have a state inspection license. Therefore, Keeling telephoned the state police and ascertained that they had no record of Batten's license in their files. Batten was not confronted by 557 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Keeling on this point. Although Keeling generally denied referring to the Union in his conversation with Batten, he failed to testify with any specificity as to the substance of the post-discharge conversation with Batten. Although he was positive that Batten did not call him the next day, he became confused as to exactly what date Batten did call him. He admitted that he had great difficulty in recalling those events with accuracy. He also testified at first to a single conversation with the state police, then later he testi- fied that there were two such conversations within a period of 1 week. Ultimately, in effect, Batten was not reinstated because Keeling believed that Batten did not possess the proper inspection license. Batten testified that he had obtained a license in 1958; that he subsequently lost it; that he entered military service and had assumed that the police depart- ment maintained a copy in their records; that he recently telephoned the state police and was informed that the rec- ords did not go back to 1958; and that the state police could not provide him with a copy. It appears that during the earlier hiatus in Batten's employment, all mechanics were required to renew their licenses by viewing a state police motion picture film. There is no evidence that Bat- ten, a former shop foreman of Respondent, an experienced mechanic of 16 years, and highly regarded by Keeling, could not have easily obtained another license. Further- more, Keeling admitted that he was reassured by the state police that an employer who innocently utilized a licensed mechanic on inspection jobs was not subject to any liabili- ty, but rather the obligation was upon the individual me- chanic to obtain a license. Keeling made no explanation as to why he did not offer to reinstate Batten upon Batten's presentation of a new license, nor why he did not even discuss that possibility with Batten. Batten and fellow discriminatee Coe testified that it is common practice for mechanics to abbreviate an inspec- tion by not pulling wheels if they are aware of recent work of break relining. Batten testified that abbreviated inspec- tions had been performed in the past when prior work had been done on the car. His testimony that Bill Keeling per- sonally pulled prior work orders to determine if brakes had recently been relined was not specifically rebutted. Al- though Keeling had testified that state law and Respon- dent's policy required an actual recheck every time a car was brought in for inspection, regardless of how recent the prior work, he did not deny knowingly permitting the past practice of abbreviating inspections. Keeling admitted that he did not know what the statutory penalty was for non- compliance with the state law. I. The discharge of George Edward Coe Coe was employed by Respondent as a mechanic since June 1973. In January 1976, he was awarded a "Top Tech- nician" award, by Keeling in recognition of the high qual- ity of his work. The award was in the form of a certificate signed by Keeling himself. Coe's work record was unblem- ished prior to the onset of union activity at Respondent's dealership. Coe and Batten were good friends. They rode together to and from work. They both resided in the same community about 60 or 70 miles from the dealership. They pooled their earnings and shared them equally. Coe had not been active in any union activity until the day that Batten was fired. Thereafter, he solicited at least 12 other employees to join the Union. He commenced attending union meetings on April 6 and thereafter. The morning after his first union meeting, according to Coe, he was con- fronted by Keeling at the timeclock, where Keeling re- proachfully cried: "George, not you-I suspected ev- erybody would be in the Union but you-I really like you." Later during the same day a fellow employee, as had several other employees, took some union literature that Coe had placed on his toolbox and was seen by Coe going into Keeling's office. Thereafter, Coe was summoned to Keeling's office and told not to distribute literature during the time when he was supposed to be working and not to interfere with the work of anyone else. When Keeling was asked whether he ever interrogated Coe concerning his union sympathies, he responded by not answering the question directly but by alluding to his con- versation with Coe in regard to the distribution of union literature. He did not explicitly deny the timeclock encoun- ter, nor did he ever answer that question. Instead he testi- fied in general terms that one or two employees had in- formed him that Coe had asked them to sign cards on company time despite the fact that the union agent told them that they were not supposed to do so and that one employee, Stephen Darnell, had complained that Coe was "aggravating" him. Keeling testified that he, therefore, told Coe not to distribute cards on "company time." It is undis- puted that prior thereto Respondent maintained no rules prohibiting the distribution of literature, solicitations, or talking during working time. Outside salespersons freely solicited business from the mechanics. Darnell, a former employee, testified that he was ques- tioned by Keeling as to what Coe had given him; that when he responded that it was union literature Keeling asked for it and retained it, i.e., an unsigned union authori- zation card. Darnell testified that he had already executed a union card at that point in time having been given several cards from other employees, and that he had not com- plained of harassment by Coe. He did complain to Keeling on another occasion that some unidentified person "messed up" his car. He testified that Keeling asked him on another occasion whether Coe had been "pushing" and "bugging" him about the Union and that he responded negatively. I found Darnell to have been a straightforward, responsive, and credible witness. I credit his testimony. Keeling did not identify any other employees who purport- edly had complained of Coe's union solicitations or of in- terfering with their work. I therefore conclude that Keeling had no basis to infer that Coe was interfering with anyone's work and that his objective simply was to make Coe aware that his activities were being monitored. Coe testified that on June I he was called to Keeling's office and told that successful union organization of the shop would be futile inasmuch as "Bert will close the doors or sell the business," in such eventuality. According to Coe, on June 3, Keeling again spoke to him regarding the Union and asked him where he expected to work if the Union did not in fact succeed in its organizing efforts. Coe responded that he expected to remain employed by Respondent, but 558 BERT WOLFE FORD Keeling retorted "1 don't think so." Keeling denied that he ever told any employee that Bert Wolfe would close down the business in retaliation for a union vote, but he did not deny that he engaged in a conversation with Coe on June I in his office or on June 3, wherein the subject of the Union was discussed. He did not deny the substance of the June 3 conversation. In light of Keeling's generalized testimony, his failure to make specific denials in some instances, his generalized denials in other instances, his uncertain and confused demeanor, I credit the specific, more detailed tes- timony of Coe, which was coupled with a much more spon- taneous, free-flowing, certain, and, to my view, more can- did demeanor. I therefore credit Coe's version of his encounters with Keeling subsequent to Coe's initial en- gagement in union activities. On June 6, Coe came into work early to perform some work on his personal vehicle, a truck. Before the shift com- menced, he placed a toolbox behind the seat and parked the truck on the back lot. Keeling testified without corrob- oration that two employees came to him and accused Coe of carrying off a box and, thus, possibly stealing some- thing. The contents were not disclosed by these employees. Keeling did not explain the basis for these employees' sup- position that the box contained stolen materials. Rather, about 4:30 p.m., Coe was summoned to Keeling's office and either directly or indirectly accused of stealing some- thing. In consequence, Keeling and Coe proceeded to Coe's truck in the back lot where Keeling ultimately found a box of old parts that he had admittedly cared nothing about and some welding rods. He requested Coe to pro- duce a receipt for the rods which he did in a day or two. Coe testified that Keeling initially found nothing and became flustered and mumbled dejectedly several times: "What am I going to do now," and that Keeling then spot- ted the box with welding rods. This was not specifically denied by Keeling in his more generalized testimony. Coe testified that as he drove Keeling back to the shop in his truck, Keeling confided that Batten had been fired because he had engaged in union activities. Coe further testified that Keeling, when later presented with the receipt for the welding rods, responded with great surprise and stated: "Well, it's not for me; it's for the higher ups. I always did believe you." However, Keeling did make a general denial of telling any employee that another employee had been fired because of union activities. Coe further testified that, when he received his paycheck upon presenting the weld- ing rods receipt, he commented to Keeling that his pay- check was unusually low and that Keeling retorted: "You ought to go get your job at the union hall." This was not specifically denied by Keeling when he gave his cryptic generalized account of the event. Keeling did not even deny that there was more to the conversation than his own cryptic account. I again credit the more detailed testimony of Coe, whom, for the same reasons noted above, I find to be a more trustworthy witness. On June 10, Coe was given a written reprimand for bringing his personal vehicle into the shop on "June 7," and performing work on it without permission or without obtaining a repair order and for using "our grease and equipment without permission or payment." The repri- mand stated that future violation of rules "will be grounds for dismissal." When Keeling gave this reprimand to Coe, Coe protested that although he did not pay for the grease he did pay for the oil and the filter which he purchased from an outside source and for which he could produce a receipt. Coe demanded to know whether such a rule ap- plied to everyone and Keeling responded that it did and added: "George, you'd better watch your step because I'm going to be watching you very close." Coe testified that he responded that Keeling could watch him as much as he liked but that he intended to make no mistakes and he was aware that Keeling was "after" him, but, nevertheless, he was "going to get the Union in." Keeling's only testimony relating to this incident is as follows: Q. Did you tell or threaten any employee that he would be closely watched because of his sympathy for, and activities, on behalf of the union? A. No, sir. Q. Did you in fact closely watch and check on any- body; put them under surveillance because of their union activities? A. No. Keeling in no other way contradicted Coe, nor did he give his version of the conversation. I therefore credit Coe's detailed, certain, and straightforward account of the event. Under Coe's version, it was Coe who suggested that he was being watched closely because of the union activities. However, that accusation was not disavowed by Keeling. Under the circumstances and by his silence, I construe that that was the import that Keeling intended and implied. The written reprimand issued to Coe was admittedly the only reprimand issued to any employee up to that time by Keeling during his entire 8-year tenure as service manager. Between January 1, 1975, and June 10, 1977, Respondent's records reveal no written reprimand of any kind issued to any employee.3 The next week, Coe discovered two mechanics perform- ing work in the shop on personal vehicles without having obtained work orders. He confronted Shop Foreman Charles Keeling (Bill Keeling's brother) and demanded to know whether he was aware of Coe's reprimand. Upon an affirmative response, Coe pointed out that one mechanic was performing a tuneup on his own car in the shop with- out a work order. The shop foreman then went out in the shop and forced the furious mechanic to obtain a work order. However, no written reprimand was issued, nor is there any evidence that he was verbally reprimanded or warned of discharge, as Coe had been. The other mechanic nearby continued to balance the wheels of his own pickup truck without any work order. A few weeks later, Charles Keeling freely gave permission to Coe to install a muffler on his own car without having to obtain a work order. It appears that Charles Keeling was preoccupied with some other matters and did not wish to be disturbed. It had been the practice of the mechanics to work on their own personal vehicles during slack periods and to use Respondent's grease and facilities. Thus, when business 3 Subsequently. written reprimands werc issued to a mechanic on Septem- ber 23 for improper work and on December 9 to a mechanic for egregious horseplay which purportedly might have caused injury 559 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was down, the shop activity remained at a high level as mechanics would bring in cars owned by themselves or friends. Coe testified that he would bring in personal vehi- cles for repair or service, e.g., grease and lubrication once every 2 weeks without permission or obtaining a work or- der. Coe admitted that it was generally understood by the mechanics that Bill Keeling's rule was that they should ob- tain work orders, but they had tried to avoid it as much as possible, because most of the work was quick service of short duration. However, according to Coe, if general re- pair was required involving several days' time, a work or- der was generally obtained by the mechanics in order to avoid a confrontation with Bill Keeling. The petition in Case 9-RC-12102 was filed by the Union on June 13, 1977. On July 7, Coe was discharged allegedly because of his failure to properly reinstall a front wheel of a car he had serviced. It is clear that Coe performed a brake relining job on that car, and that shortly thereafter the customer drove the car away and in less than a quarter of a mile the front wheel fell off, thus causing the vehicle to fall to the pavement on a main thoroughfare near a traffic signal, which resulted in damages of about $135 to the fender and to the body trim of the car. No one was in- jured.4 There is no evidence that the occupants of the car were subjected to any hazards due to the car's collapsing on the street nor was there any testimony to the condition of traffic at the time. The customer's husband, an attorney and an old customer, was outraged and demanded the dis- charge of the mechanic responsible. Coe admitted at the hearing that because of the routine nature of the function he could not recall whether he did in fact tighten the lug nuts on that wheel. It is a job function that had become so set in his routine that upon retro- spection he simply could not recall actually performing the act. Several employees testified that prior to Coe's dis- charge they told Bill Keeling that when Coe was advised of the accident he exclaimed, "I fucked up," or words indicat- ing that he apparently had forgotten to tighten the lug nuts. Based on a review of their testimony and their demeanor, I credit them. Keeling's only investigation of the incident was that a search was made for the missing lug nuts on the street by his brother, Charles Keeling, accompanied by Coe and the wrecker driver. No cogent explanation could be offered by Charles Keeling as to his purpose in searching out the loca- tion of the nuts, which were never found. The customer's husband talked to Charles Keeling initially. Bill Keeling talked to him thereafter, at which time he had admittedly calmed down. Bill Keeling told him that because a repre- sentation petition had been filed he had to proceed with caution before he could discharge the mechanic who worked on the car. Bill Keeling consulted with Respon- dent's legal counsel and decided to discharge George Coe without confronting Coe. Coe was summoned to Bill Keeling's office and at that time served with a written no- tice of discharge. At that time as Coe commenced to read this discharge notice, Keeling commented to Coe, "Left them lug nuts loose, didn't you?" Coe admittedly respond- 4 Keeling testified that he was uncertain as to the amount of damage and vaguely estimated the damage to be about $125-$135. ed "Well, I never have left one loose before." Coe admit- tedly made no explicit denial, but it is Keeling's testimony that Coe also stated to him that he could not remember whether he actually did or did not tighten the nuts. Keeling made no further inquiry with Coe and did not question Coe about his statements to fellow employees.5 Prior to the initial release of the car to the customer, preceding the malfunction, other work was performed on it, and two other employees drove it several hundred feet. One of the individuals, James Morgan, the service writeup man, had had prior experience elsewhere as a shop fore- man and had exercised duties including that of test driving automobiles. Both of these individuals noticed nothing un- usual in the handling or steering of the automobile which necessitated making sharp turns. Neither of them was in- terviewed by any supervisor prior to Coe's discharge. The wheel in question was not covered by a wheel cover or a hubcap. No one was asked if he noticed anything unusual about the exposed lugs or how the car handled. Prior to Coe's discharge interview, when Keeling dis- cussed the incident on the telephone with his legal counsel and when he decided to discharge Coe, Keeling admittedly did not know the "seriousness" of the incident. He later ascertained the nature of the body damage to the car, but he had no idea of whether there was any personal injury that had been caused. He was never apprised of any per- sonal injury. Keeling testified that he had had no past experience wherein an automobile had been serviced improperly which, thereafter, caused an accident or malfunction which caused some damage. Jerry Humphreys, a witness called on behalf of Respon- dent, testified that in 1970 or 1971, shortly after he was hired, he had inspected a 1964 vintage car and certified it. The customer drove the car away and as it hit a chuckhole a tie rod fell out. The car collapsed and was immediately returned to the dealership by a wrecker. It caused Hum- phreys a great deal of concern and embarrassment. Hum- phreys testified that the faulty tie rod was not detected by him because the car had been greased before his inspection and therefore the amount of excessive play in the tie rod was concealed. Afterward, verbal reprimands, i.e., a chew- ing out, were given to Humphreys, the grease boy, and the employee in the "control tower" who assigned the car to the grease boy initially. There was no testimony of the ex- tent of the damage caused by the falling tie rod. Coe testified without contradiction that in 1975 a me- chanic worked in the stall next to him and had installed a drive shaft in an automobile that fell out shortly afterward as the car drove through the middle of town. The mechanic had failed to install the proper retaining fittings. He was not suspended or discharged. There was no record of any reprimand issued to any mechanic for such negligence. There was no evidence as to monetary damage due to the expulsion of the drive shaft. 5 Keeling could offer no explanation for his inconsistent testimony that he had given before a hearing officer in a state unemployment proceeding to the effect that he conducted an investigation before discharging Coe, wherein Coe told him that he could not remember whether he put the wheels on the car or not or whether he tightened the lug nuts or not. 560 BERT WOLFE FORD There is also uncontradicted evidence of incidents in- volving vehicles falling from hydraulic lifts in the shop which resulted in damage greater than $135, but there is no evidence as to whether a mechanic was at fault or whether it was the fault of the lift. Batten testified that about April 1975 he was involved in three incidents wherein he performed repair services which resulted in the subsequent loosening of a wheel and that in one of those incidents the wheel came off. Subsequently he testified credibly and without contradiction that he was told by Bill Keeling, "You've got to stop leaving wheels loose on the cars or somebody is going to get hurt." Batten received no reprimands or other discipline, and he contin- ued to be considered a good employee by Keeling. Bill Keeling testified that he could recall an incident where Batten worked on a car and thereafter the wheel subse- quently loosened and became ruined, but that it did not come off the car. He testified that he was not "aware of' the incident of the wheel coming entirely off but conceded there were probably other incidents of negligently installed wheels which subsequently became loose and thereby ruined. 6 2. The paint department meetings Keeling testified that within a week or two after April 1 he realized that the painters' helpers had not been given a share in the increased body shop rate by the painter in charge. Inasmuch as the biweekly paychecks had not been calculated yet, he decided to provide for a raise for the painters' helpers after consulting with and obtaining the approval of Bert Wolfe. He had not decided how to distrib- ute a portion of the increased charges to the painters and he therefore called a meeting to discuss with them the man- ner in which they might like to share the proceeds. Accord- ing to Keeling, they were asked whether they desired to receive a flat $1-per-hour wage increase or whether they preferred an incentive wage supplement plan. Keeling ad- mitted that prior to this meeting with the painters he had become aware of union organizing efforts. Painters' helpers Hunter and Steadman testified that the meeting occurred in early June. However, I credit Keeling's more specific and certain testimony that it oc- curred in early April. According to Keeling, at the meeting the employees elected to receive an incentive plan rather than the flat increase in wages. Steadman and Hunter testified that Keeling requested that, in return for the resulting increase in earnings, the employees should write a letter addressed to the Union, wherein they would withdraw their support of the Union and also request return of their union authorization cards. According to Steadman, Keeling had asked them at the meeting if they had signed union cards and why they had wanted union representation.7 Keeling by all accounts did not finalize the bonus plan at the meeting but stated that he would have to obtain final approval from Bert Wolfe. Keeling testified that after the meeting, before he talked to Wolfe, "word came up about authorization cards." Then 6The wobbling motion caused by drving a loose wheel damages the wheel studs. There was no such damage caused in the Coe incident. Hunter could not recall with any accuracy Keeling's conversation he testified that one of the employees, he could not recall who, raised the question at the meeting as to how they could retrieve their authorization cards that they had exe- cuted for the Union, inasmuch as they felt that they would be "getting in trouble" by having accepted the raise while at the same time having executed a union card. Keeling testified that in response to such question he told the em- ployees that the only way to retrieve their cards was to ask for them by letter. He further testified that he related the discussions of the meeting to Wolfe, who, after consulting with legal counsel, told him to tell the employees that a letter was not necessary. According to Keeling, Wolfe was concerned about the suspicious appearances that would arise if the Union were confronted with multiple letters of withdrawal requests. In cross-examination, Keeling could only offer supposition as to the basis of the unidentified employees' problem. He did not deny Steadman's testimony that he had asked the painters whether they had signed cards or that he had asked them why they wanted union representa- tion. Steadman testified that after the meeting he and other paint department employees decided to write a letter to the Union rescinding their support and requesting a return of their executed cards, and that he and paint department employee, Bob Childers, went to Keeling in Keeling's of- fice and told him "that if he upped our wages, we would write the letter." Thereafter, according to Steadman, the employees discussed it among themselves and decided that they would not write such a letter. A second meeting was held between Keeling and the painters but Steadman decided not to attend because he decided to support the Union "100 percent," and he decid- ed to reject the offer of a raise. After the second meeting, according to Steadman, Keeling came out of his office and told him that even though he rejected the offer he would still be included in the incentive plan and would share the increase, but that all Keeling wanted now was a written personal note from him indicating appreciation so that it would serve as a "reminder on election day." Keeling testified that he held a second meeting with the paint department employees and told them that they would share in the increased body shop rate by means of an in- centive pay plan supplement. According to him, two of the employees, whom he did not identify, came to him in his office before the second meeting and offered to write the aforementioned letter, but that he responded that it was not necessary and "that if they wanted to write a letter and let me know that they wanted the type of increase that we were going to give them, that was all right." In fact, no letters or notes of any kind were written. According to Keeling, there was merely a "verbal" agreement with the paint employees. Keeling did not specifically deny that he had a conversation with Steadman after the second meet- ing nor did he deny making the statements therein attribut- ed to him by Steadman. Steadman and Hunter were not employed by Respon- dent at the time of the hearing. Their demeanor disclosed them to be detached, objective, candid witnesses, who pos- sessed no perceptible bias. I found them to be more con- vincing than Bill Keeling. Furthermore, I conclude that their version of the encounter is more probable. It was 561 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Keeling who initiated the meeting and not the employees. It was Keeling who raised the subject of the wage increase. According to him, he had decided, subject to Bert Wolfe's agreement, to grant some form of increase. It is improbable that the employees would gratuitously disclose that they had signed union cards and then offer a letter of union renunciation because of some obscure "problem" presum- ably based on a notion of conflicting loyalties unless some condition were attached to the offer of a raise. Steadman's testimony was detailed and to a large extent undenied, even with respect to the interrogation of whether they signed cards and why they did so. Keeling, on the other hand, was inconsistent and vague as to when and how he became aware of the execution of union cards. Accord- ingly, I credit the testimony of Hunter and Steadman and discredit the contradictory testimony of Bill Keeling. 3. The Walsh interrogation Richard Walsh was employed by Respondent during the spring and summer of 1977 as a "lube man." Walsh had requested a transfer to the parts department. He testified that in June he was summoned to Bill Keeling's office, where the two of them discussed the requested transfer, which would result in an improvement in his wages and working conditions. Thereafter, the discussion turned to the Union's campaign. According to Walsh, Keeling stated that he had taken George Coe "off the street" and had given him a trade and now it was a "shame how he was getting organized into a union ... " Thereafter, according to Walsh, Keeling had asked him if he had discussed the Union with anyone or had been approached by anyone regarding the Union, and further questioned him as to what his "views might be." Walsh responded that he had no "specific views." Thereupon, Keeling asked him wheth- er he had signed a union card, but Walsh said he had not. Walsh testified that Keeling noted Walsh's social contacts with fellow employee Loyd Francisco, who had recom- mended Walsh for employment, and asked further if he and Francisco had discussed the Union. Walsh responded negatively. Keeling then told Walsh that he did not want anyone transferred to the parts department who was a union activist because no one in the parts department had yet become active in the Union. Walsh's testimony was detailed, forthright, convincing, uncontradicted, and credi- ble. 4. The motor block incident Stephen Darnell was employed by Respondent from late April to September 1977. About 1 month after Darnell commenced work as a mechanic, he asked Keeling several times for a used engine block to replace the one in his old car. Darnell testified that about I month prior to the Board-conducted election of August 18 Keeling told him that he could have the discarded engine block free of charge stating: Now, I'm going to give this block to you, but I want you to do me a favor. I want you to stay away from George Coe, Floyd, and Hugh Smith, and the rest of the guys in the union-I don't want you fooling around with none of them-just stay away from them. Darnell agreed and accepted the engine block. Keeling acknowledged that he did give Darnell an en- gine block retrieved from a trade-in, used automobile, but that he did not refer to the Union when he did so. Keeling asserted that it was Darnell who raised the subject of Coe and the Union, in that Darnell was the employee who com- plained about Coe's "aggravating him." As set forth above. I conclude that Darnell is the more credible witness. Ac- cordingly, I credit his testimony that Keeling did condition the gift of an engine block upon Darnell's promise to re- frain from association with union activists. B. Analysis and Conclusions 1. 1he discharge of Batten There is no question that Batten and other mechanics openly engaged in concerted protected activities prior to March 31. As set forth above, I credit Batten's testimony that union organizing discussions among employees and bodymen had also commenced prior to March 31. Further- more, it was known to Respondent. Batten was active in notifying employees of the meeting of March 31. Keeling told the meeting of shop personnel that he was aware of union discussions among the employees, that no one would receive a wage increase, that if they did not like the way the shop was run they could seek employment elsewhere. The clear implication of his statement was that the union talk was a factor in that decision. Thus, Keeling evidenced an antiunion hostility prior to March 31. On March 31, Batten was purportedly initially dis- charged because of an incomplete inspection. Keeling's tes- timony with respect to the decision to discharge Batten is inconsistent. That inconsistency is attributable to his ad- mission that he agreed to try to get Batten reinstated be- cause he felt the discharge was a too severe punishment. He needed some explanation to counter Batten's testimony in regard to the interrogation of the identity of union sup- porters and the extracted promise of abandonment of the Union in return for reinstatement as the cause for the de- ferred possible reprieve of his discharge. Therefore, I con- clude that Keeling, as an afterthought in cross-examina- tion, injected Wolfe's participation in the initial decision. There was no reason for Keeling to seek Wolfe's approval to rescind the discharge that he had decided upon. Based on a total review of the testimony of Batten and Keeling, I conclude that the testimony of Batten is more certain and inherently more probable, whereas Keeling's testimony is inconsistent, illogical, improbable, and contrived. I con- clude that Keeling did interrogate Batten as to the union activity of himself and others and did extract a promise from him to abandon the Union as a condition for his reinstatement. I conclude that this, indeed, was the reason Keeling told Batten he would consider reinstatement. Indeed, Keeling had cause to conclude that the dis- charge was unwarranted under the circumstances. There is no probative evidence that Keeling had cause to believe that Batten had in fact made negligent inspections on prior 562 BERT WOLFE FORD occasions. Humphreys, at the time a new employee, was merely orally reprimanded for making an inadequate in- spection which later resulted in an actual breakdown. In Batten's case, there was no resulting damage. The linings were in fact satisfactory. Batten was highly regarded as an experienced long-time employee. No contention was made that Batten had not in fact made an earlier inspection of those linings. Keeling himself was unaware of the statutory sanction. Keeling utilized the incident to place Batten in a vulnerable position from which he could then negotiate Batten's withdrawal of union support. Keeling's penchant for "negotiating" employees away from their prounion sympathies by striking at their vulnerabilities with threats or promises of benefits is evidenced by his conduct throughout the union organizational drive. Having ascertained that Batten attended a union meet- ing despite his promise, Keeling discharged him. I find un- convincing and pretextual Keeling's proffered explanation for nonreinstatement, i.e., that he discovered Batten's non- possession of an extant license. As noted above, he did not even discuss that with Batten. In light of Keeling's union hostility prior to the discharge and thereafter and the pre- textual nature of the discharge, I am convinced that Batten was discharged and refused reinstatement as a direct con- sequence of his and other employees' union and other con- certed protected activities and that Respondent thereby violated Section 8(a)(1) and (3) of the Act. Tom's Ford Incorporated 233 NLRB 23 (1977). 2. The reprimand and discharge of George Coe As found above, Coe's union activities were well known to Keeling, and he was subjected to a series of conversa- tions wherein Keeling revealed his antipathy to that activi- ty. Coe was subjected to harassment concerning his distri- bution of union literature and to a baseless accusation that he had engaged in thievery. When the theft charge proved groundless, he was then given a reprimand for engaging in activity commonly engaged in by other employees. Al- though it is true that Respondent's general rule required employees to obtain work orders when they performed per- sonal work, the extent to which they failed to do so for minor work could not have escaped the notice of the ser- vice manager in the past. However, assuming that Keeling was unaware of the past breaches of that rule, the severity of the punishment for Coe's infraction reveals a disparity of treatment which necessitates an inference of ulterior motivation. As already noted, neither Humphreys nor the others involved in the 1971 tie rod incidents received a written reprimand much less a warning of discharge. The 1975 drive shaft incident did not cause issuance of a writ- ten reprimand or suspension or discharge. Batten's failure to tighten lug nuts, which caused damage to a wheel, did not warrant written reprimand nor did it detract from Keeling's high regard for his abilities. Keeling admitted to knowledge of other incidents of failure to tighten lug nuts which damaged the wheels. He gave no written reprimands for those incidents. Indeed, the utilization of a written rep- rimand was unprecedented, if not for Respondent, certain- ly for Bill Keeling. I conclude that the issuance of a written reprimand to Coe was motivated by Keeling's antipathy to Coe's union activities and formed part of his pattern of placing employ- ees in a position of vulnerability in order to wean them away from the Union. I therefore conclude that the is- suance of the reprimand to Coe on June 10 was violative of Section 8(aXl) and (3) of the Act. I further conclude that Keeling impliedly informed Coe that he was being watched closely because of his continued support of the Union and that the natural inference for Coe to have made was that he would be subject to further discipline on the first pretext that would arise because of his continued support of the Union. The stage was set. Coe had been forewarned. He had told Keeling that no mistake would be made by him to accommodate Keeling's need for a pretext to discharge him. However, he did perform work on a car which appar- ently resulted in a serious malfunction. Thus, an objective reason for discipline did exist. The question raised is did Respondent discharge Coe because of the malfunction, or did it seize upon the incident as the long-awaited fortuitous pretext to ostensibly justify the final dispatch of a union protagonist? Respondent was faced with a serious malfunc- tion. An irate customer demanded discharge of the respon- sible mechanic. Keeling testified that he was advised by Respondent's attorney to proceed as he would have pro- ceeded in the absence of union activities. Keeling testified that he was unaware of any prior malfunction of an identi- cal nature and therefore, according to him, the incident was unprecedented. Yet, accepting his testimony that he was unaware of the Batten incident involving the complete falling off of a wheel, he was aware of past occasions of comparable breakdowns, i.e., loose lug nuts that damaged the wheels of vehicles, which necessitated their retrieval by a wrecker, and the Humphreys incident of a falling tie rod. Those incidents did not even warrant a written reprimand. I do not conclude that Coe's negligence, assuming that it was negligence, was so much more severe. Futhermore, Keeling, despite his expressed intent to act cautiously with respect to the decision to discharge, in fact, acted in great haste and engaged in only the pretense of an investigation. He drafted and delivered the discharge no- tice to Coe before he even talked to Coe about the cause of the malfunction. He did not interview the other employees who drove the vehicle after Coe had worked on it and who released it to the customer. He did not interrogate Coe about conversations he had with other employees upon learning of the malfunction. The discharge letter which Keeling had composed with alacrity accused Coe of "gross negligence," which caused an "accident" that resulted in serious property damage to the vehicle and "serious finan- cial loss" and which placed the life of the driver in "jeop- ardy." 8 It is not certain whether the lug nuts were fastened but not tightened or whether they were not put on at all. It is, according to the speculative testimony in the record, very unusual for an automobile to proceed further than a few hundred feet if it had a wheel attached with no lug nuts at all, but it is also unusual for an automobile to lose a wheel 8The letter itself was misdated "June 7. 1977" instead of July 7. 1977. 563 DECISIONS OF NATIONAL LABOR RELATIONS BOARD so quickly if the lug nuts had been fastened but not tight- ened. For a car to have malfunctioned at a distance of a quarter of a mile was clearly a freakish event. Therefore, Keeling's accusation of "gross negligence" was based on speculation and assumption as to what had actually oc- curred, despite Coe's spontaneous utterances to fellow em- ployees. The damages, $135, to body and trim hardly seem to constitute "serious financial loss." It is reasonable to infer that damages suffered from a falling drive shaft or tie rod are comparable. No "accident," i.e., collision, occurred. The car collapsed as the wheel fell off near a traffic signal. Respondent adduced no evidence as to what risks the driver actually incurred. Keeling did not wait to determine whether there were any personal injuries suffered nor did he wait for any further communication from the car own- er.9 I do not mean to suggest by this analysis that such a malfunction should be treated lightly. However, the ele- ments of disparity of punishment, lack of real investiga- tion, exaggerated accusations, and precipitate reaction, viewed against a background of extreme union antipathy, lead me to conclude that Respondent discharged its "Top Technician" of 1976 because of his known union activities and not because of his suspected negligence and thus vio- lated Section 8(a)(X) and (3) of the Act. Terminal Services Houston, Inc., 229 NLRB 1117 (1977). 3. The 8(aXl) allegations In view of the foregoing factual findings, I conclude that Respondent, by its agent, William Keeling, interfered with its employees' rights set forth in Section 7 of the Act and thereby violated Section 8(a)(l) of the Act by the following conduct as alleged in the consolidated complaint: '0 (a) By implicitly telling employees at a mid-March meeting that they would not receive a wage increase be- cause of the union organizational activities of some em- ployees. (b) By coercively interrogating employee Batten on March 31 as to the union activity of fellow employees. (c) By telling employee Batten on April 1 that it was aware of his attendance at a union meeting the night be- fore, thus creating the impression of surveillance of em- ployees' union activities. Federal Pacific Electric Company, 195 NLRB 609, 612 (1972). (d) By telling employee Batten on March 31 that he would be reinstated if he abandoned his support of the Union. (e) By telling employee Batten on April 1 that he had attended a union meeting on March 31 and therefore he was not reinstated impliedly because he attended that meeting. (f) By promising its paint department employees in early April a wage increase on condition that they repudiate their support of the Union. 9There is no evidence that the customer, who had subsequently calmed down, thereafter made any other claims or demands or that he ever fol- lowed up on his demand for discharge by inquiring whether a discharge was effectuated. 10 The General Counsel did not move to amend the complaint to allege any additional violations of the Act. (g) By telling employee Steadman in early April that he would be granted an increase in wages in order to discour- age his support of the Union. (h) By coercively interrogating employee Walsh in June concerning his union sympathies and activities, and the union sympathies and activities of fellow employees. (i) By reproaching employee Coe on or about April 7 for engaging in union activities and thereby coercively creating the impression of surveillance of his union activities. (j) By telling employee Coe on or about June I that em- ployees' union activities were futile inasmuch as it would close its business if such efforts were successful. (k) By telling employee Coe on or about June 3 that if the employees were not successful in their union organizing efforts he would be terminated. (1) By telling employee Coe on or about June 6 that em- ployee Batten had been discharged because of his union activity. (m) By telling employee Coe on or about June 10 that his work activities would be closely monitored impliedly because of his union activities. III. THE OBJECTIONS Having found that Respondent discharged George Ed- ward Coe, on July 7, because of his union activities, I therefore conclude that Objection 4 is meritorious and I recommend that it be sustained. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent has interfered with, restrained, and coerced employees in the exercise of their rights under Sec- tion 7 of the Act in violation of Section 8(a)(1) of the Act. 4. Respondent has discharged Jackie Ray Batten on or about March 31, 1977, because of his union and other con- certed activities protected by the Act, thus violating Sec- tion 8(a)(3) and (I) of the Act. 5. Respondent has on or about June 10, 1977, repri- manded and on or about July 7, 1977, discharged George Edward Coe because of his union activities, thus violating Section 8(a)(3) and (1) of the Act. 6. Such unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 7. By the unlawful discharge of George Edward Coe, the Employer has interfered with the free choice of employees in the election. THE REMEDY Having found that Respondent engaged in certain unfair labor practices, it will be recommended that it be required to cease and desist therefrom, and take certain affirmative action designed to effectuate the policies of the Act. It having been found that Respondent discriminatorily discharged Jackie Ray Batten and discriminatorily repri- manded and discharged George Edward Coe, it will be 564 BERT WOLFE FORD recommended that Respondent shall offer them immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and shall make them whole for any loss they may have suffered by reason of the discrimi- nation against them; and expunge from its records the June 10 reprimand issued to George Edward Coe. Any backpay found to be due shall be computed in accordance with the formula set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), and with interest thereon in accordance with Florida Steel Corporation, 231 NLRB 651 (1977)." In view of the nature of the violations herein, it will be further recommended that Respondent be required to cease and desist from infringing in any other manner upon the rights guaranteed employees by Section 7 of the Act. It is further recommended that the election which was held on August 18, 1977, be set aside and that Case 9-RC 12102 be remanded to the Regional Director for Region 9 for the purpose of conducting a new election at such time that he deems that circumstances permit a free choice of bargaining representative. On the basis of the foregoing findings of fact, conclu- sions of law, and the entire record herein, and pursuant to Section 10(c) of the Act, I hereby issue the following rec- ommended: ORDER ' 2 The Respondent, Bert Wolfe Ford, Charleston, West Virginia, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Coercively interrogating employees concerning their own or other employees' union sympathies or union activi- ties. (b) Coercively creating the impression of surveillance of employees' union activities. (c) Promising employees wage increases on condition that they repudiate their support of a union, or otherwise promising their wage increases in order to discourage their support of a union. (d) Threatening employees with discharge, closure of business, or other reprisals in order to discourage their union activities or their support of a union. (e) Telling employees that an employee was discharged because of union activities. (f) Telling employees that their work activities will be closely monitored because of their union activities. (g) Discouraging membership in or activity on behalf of International Association of Machinists and Aerospace Workers, AFL-CIO, or any other labor organization, or discouraging concerted activity engaged in for employees' mutual aid or protection, by reprimanding or discharging, or otherwise discriminating against employees in any man- ner with regard to their rates of pay, wages, hours of em- ployment, tenure of employment, or any term or condition of employment. (h) In any other manner interfering with, restraining, or coercing employees in the exercise of their right to self- organization, to form labor organizations, to join or assist International Association of Machinists and Aerospace Workers, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their owi, choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activity. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Offer Jackie Ray Batten and George Edward Coe immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent posi- tions, without prejudice to their seniority or other rights and privileges and make them whole for any loss of earn- ings they may have suffered by reason of the discrimina- tion against them in the manner set forth in the section of this Decision entitled "The Remedy," and expunge from all records the reprimand discriminatorily issued to George Edward Coe on June 10, 1977. (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records neces- sary to analyze the amount of backpay due under this Or- der. (c) Post at its facility in Charleston, West Virginia, cop- ies of the attached notice marked "Appendix." Copies of said notice on forms provided by the Regional Director for Region 9, shall be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 con- secutive days thereafter in conspicuous places, including all places where notices to employees are customarily post- ed. Reasonable steps shall be taken by Respondent to in- sure that the said notice is not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 9, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS FURTHER ORDERED that so much of the complaint as alleges unfair labor practices not found herein be dis- missed. See. generally. Isir Plumbing and Healing Co., 138 NLRB 716 (19621. 12 In the event no exceptions are filed as provided by Sec. 102 46 of the Rules and Regulations of the National Labor Relations Board. the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, waived for all purposes. 13 In the event that this Order is enforced by a judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT coercively interrogate employees con- cerning their own or other employees' union sympa- thies or union activities. WE WILL NOT coercively c:eate the impression of sur- veillance of employees' union activities. 565 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT promise employees wage increases on condition that they repudiate their support of a union, or otherwise promise them wage increases in order to discourage their support of a union. WE WILL NOT threaten employees with discharge, clo- sure of business, or other reprisals in order to discour- age their union activities or their support of a union. WE WILL NOT tell employees that an employee was discharged because of union activities. WE WILL NOT tell employees that their work activities will be closely monitored because of their union activi- ties. WE WILL NOT discourage membership in or activities on behalf of International Association of Machinists and Aerospace Workers, AFL-CIO, or any other la- bor organization, or discourage concerted activity en- gaged in for employees' mutual aid or protection, by reprimanding or discharging, or otherwise discriminat- ing against employees in any manner with regard to their rates of pay, wages, hours of employment, tenure of employment, or any term or condition of employ- ment. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of their right to self-organization, or to form labor organiza- tions, to join or assist International Association of Machinists and Aerospace Workers, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protec- tion, or to refrain from any or all such activity. WE WILL offer Jackie Ray Batten and George Ed- ward Coe immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to sub- stantially equivalent positions, without prejudice to their seniority or other rights and privileges, and WE WILL make them whole, with interest, for any loss of earnings they may have suffered as a result of the un- lawful discrimination against them, and WE WILL ex- punge from all records the reprimand discriminatorily issued to George Edward Coe. BERT WOLFE FORD 566