B &, G Chrysler-Plymouth, Inc.,

282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B &, G Chrysler-Plymouth, Inc., and its successor Bill George Chrysler-Plymouth, Inc. and District Lodge 71, International Association of Machinists and Aerospace Workers, AFL-CIO. Case 17-CA-4068 October 31, 1970 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND JENKINS On July 6, 1970, Trial Examiner E. Don Wilson issued his Decision 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 attached Trial Examiner's Decision. He also found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended that such allegations be dismissed. Thereafter, the Respondent and Charging Party filed exceptions to the Trial Examiner's Decision together with supporting briefs, and Respondent filed a reply brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings,' conclusions, and recommendations2 of the Trial Examiner, as modified below. Order Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommend- ed Order of the Trial Examiner, as modified below, and hereby orders that the Respondent, B & G Chrysler-Plymouth, Inc., and its successor Bill George Chrysler-Plymouth, Inc., Kansas City, Kansas, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommend- ed Order. I In his findings of fact, the Trial Examiner inadvertently states that the Respondent, "maintains facilities at Kansas City, Kansas, and Kansas City, Missouri." However, the record shows that Respondent is a Kansas corporation and its only place of business is located in Kansas City, Kansas, at 1244-1245 Minnesota, where the unfair labor practices here involved occurred. See Case 17-RC-035, Decision and Direction of Election in the related representation case. 2 The Charging Party moves the Board to grant its request that the backpay remedy for discriminatee, D. Loughery, be augmented by a cost- of-living adjustment to reflect the decline in the value of the dollar due to inflationary pressures since Loughery was discharged in violation of Section 8(a)(3). In his disposition of this request , the Trial Examiner recommends that the Board award, "at least 9-percent interest to Loughery, in connection with money due and owing to him." We note that the General Counsel takes no position with respect to this issue . Under the circumstances, we do not agree that our practice of awarding interest on backpay pursuant to our decision in Isis Plumbing & Heating Co., 138 NLRB 716, should now be amended. Accordingly, we hereby deny the Charging Party's request for a cost-of-living adjustment to the discriminatee's backpay. We also reject the Trial Examiner's recommenda- tion that we increase the amount of interest to be added to the backpay award. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE E. DON WILSON, Trial Examiner: Upon a charge filed on September 11, 1969, by District Lodge 71, International Association of Machinists and Aerospace Workers, AFL-CIO, herein the Union, the General Counsel of the National Labor Relations Board, herein the Board, issued a complaint dated December 23, 1969, alleging that B & G Chrysler-Plymouth, Inc.,',2 violated Section 8(a)(1) and (3) of the National Labor Relations Act, herein the Act. Pursuant to due notice, a hearing in this matter was held before me at Kansas City, Missouri, on January 29 and 30, 1970. The parties fully participated. General Counsel's and Respondent's briefs have been received and considered. 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 RESPONDENT Respondent is a corporation engaged in the sale , service, and leasing of new and used automobiles . It maintains facilities at Kansas City, Kansas, and Kansas City, Missouri. In its business operations , Respondent annually purchas- es goods valued in excess of $50,000 originating outside the States where it does business and annually sells goods and services valued in excess of $500 ,000. At all material times, Respondent has been an employer engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED At all material times, the Union has been a labor organization within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES A. Background About March 1969,3 the Union began an organizational drive, among retail auto salesmen in the Kansas City, Kansas, and Missouri areas and according to Counsel for General Counsel the Union filed at least 50 petitions for elections beginning in March or April. Most of the auto I Name of Respondent appears as amended at hearing. 2 Note supra that there is a successor as named in the caption. 3 Hereinafter all dates refer to 1969 , unless otherwise specified. 186 NLRB No. 45 B & G CHRYSLER-PLYMOUTH, INC. 283 dealers were members of the Kansas City Auto Dealers Association, including Respondent. Numerous unfair labor practice charges were filed. About July, the Union was granted a new Local charter for the Auto Salesmen Union in the area. From April through July there was considerable open and nonconcealed talks and activity at Respondent about various phases or activities of the Union. I find as a fact that Respondent was well aware of Delbert Loughery's union activities from the date in April when he signed a card for the Union until he was discharged on July 31, or August 1. Loughery had been employed as a new- (and sometimes used-) car salesman for about a little more than a year, beginning June 16, 1968. At the time of and until his discharge he had been an auto salesman for at least 20 years. He was 60 years old. He signed a union authorization card on April 9, and almost immediately made the fact known to members of management. The Union filed a petition for an election on April 29 and he was the sales employee witness for the Union at the Board hearing on June 11. From the time he signed his card until his discharge it was well known that he was the most active supporter of the Union at Respondent. General sales manager of Respondent, Charles E. Burris, an agent, testified that from April until his discharge on August 1, he considered Loughery the leading and most outspoken advocate of the Union. He found this demoral- ized the morale of Respondent's employees. He found that Loughery, through his union activities, was interfering very much with the success of Respondent's business. That was one of the reasons4 for Loughery's termination. As Respondent puts it in his brief, "Loughery voluntarily and constantly told the sales manager and others about his union activities so that it became a matter of general knowledge." After Loughery and Respondent's witnesses testified at the RC hearing on June 11, the Regional Director, on July 3, directed an election to be held, but the Union filed an 8(a)(5) charge on July 16, which successfully blocked the scheduled election. The 8(a)(5) charge was dismissed on August 26, and there has been no election. While Respondent's service employees have had bargaining with Respondent, through a union for about 10 years, Respon- dent has never bargained with a union for its sales employees. B. The Alleged 8(a)(1) Violations 1. The complaint alleges five separate violations of Section 8(a)(1). I shall endeavor to consider them in order. In paragraph 5(a) of the complaint, it is alleged that Burris, whom I find to a supervisor and agent of Respondent, told employees during May through July, at the new and used- car vacilities of Respondent,5 that they would not be hired by Kansas City area automobile dealers if they were active in behalf of any labor organization and would have to leave the city. Burris is supposed to have made such threat in June, while speaking to employees Loughery and Walter Liddle. Allegedly, he also stated that the Local's president (Harper) would have to go out of town to work. Liddle named an employee, Orem,6 as being present at this conversation in June in Burris' office with Loughery also present. According to him Burris, Loughery, Orem, and he talked about different things" and employers losing elections with the Union. Burris allegedly stated that, if anyone got tied up too "tight" with the Union, the Dealers' Association wouldn't let them work. He allegedly said Harper? and a few others had done that and they couldn't work. Burris did not say an employee could lose his job but did say the Association would stick together and the employee couldn't get another job. Burris added the Union lost too many elections. Liddle worked for Respondent from April 30 to July 10.8 On cross, he quoted Burns as saying that, if an employee got too strong for the Union, he would not be hired by a member of the Association. Loughery testified that one time Burris told Liddle and him, in June, that any salesman involved in the union drive would not be able to work for a dealer in Kansas City. Liddle allegedly said nothing. Loughery allegedly said he didn't believe such could happen. Burris categorically denied the truth of the above testimony. I found Burns, on the whole to be a frank and honest witness. Were the issue solely between him and Loughery as to credible testimony, I think I would credit Burris. But Liddle impressed me as a sincere and honest witness with no axe to grind, and I unhesitatingly credit his truthful testimony as corroborated by Loughery. I find General Counsel has, with a preponderance of the credible testimony, established the truth of his paragraph 5(a) of the complaint. I am not impressed to the contrary by the testimony of Bums that he hired two men who had been active in the Union, one of whom had filed an 8(a)(3) charge against his ex-employer.9 2. In paragraph 5(b) of the complaint it is charged that Burris, in July, questioned an employee concerning the outcome of the pending election. As pointed out, Loughery's prounion sympathies were widely self-broadcast. There was no need for Burris to interrogate him in this regard after April. General Counsel seems to claim in his brief that, on one occasion in June, Bums asked Loughery if the election came up which way he thought it would go. He also claims that Bums admitted he asked other employees as to which way they thought the election would go. First, and foremost, the entire record reveals to me that the subject of unionization or how the election would go was a matter of common and free and unconcealed discussion among the employees and management. Loughery testified that he, a well-known most active union member, on one occasion in June, was asked by Bums, if there were an election, how he thought it would go. Loughery answered by saying he had no way of knowing. He then volunteered that all the salesmen had signed cards. Bums admitted that when the men, without 4 The prime reason . T The Local's president. b Located across the street from each other. 8 When he voluntarily quit his job. 6 Orem did not testify . 9 At the end of July. 284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD concealment, were discussing the Union, he would join in and ask them how they thought the election would go. He did not express his opinion as to how he thought it would go. He truthfully fixed the time as April and May. He did not tell employees how to vote, or ask them how they as individuals intended to vote . These inquiries occurred in a natural atmosphere with no hint of coercion. The record indicates no more than an expression of natural curiosity by Burris, free from hostility . I do not find that a violation of Section 8(a)(1) was proved by General Counsel's evidence in support thereof. The one or more innocuous inquiries as to how employees thought the election would go, in the circumstances of this case, where union activities and proclivities were freely discussed by the employees in the presence of management, were not violative of Section 8(a)(1). 3. In paragraph 5(c) of the complaint it is alleged that Respondent's agents William George and George Powell threatened an employee with reprisals because the employ- ee attended and testified at an R case hearing involving Respondent. I have read General Counsel's brief very carefully, more than several times, but I find no reference to this allegation.'° Respondent, through Burris, freely gave Loughery permission to attend the Board for an R case hearing. When Loughery came back from the hearing he simply made a "passing remark" " before George Powell and others and said he had been told that afternoon by the Local President Harper that they had mailed him a subpena to appear at the Board, and he remarked that it must have been mailed to him at his home on the farm. He said he hadn't gotten it. No one in management had objected to his testifying at the hearing. Powell12 merely remarked to him 13 when they both came back from the hearing, and in the presence of others "You should have said you haven't received a subpoena and you shouldn 't have gone." Loughery clearly and explicitly testified that Powell did not threaten him with any reprisals because he testified on behalf of the Union . I find that Powell's testimony as to what was said on this occasion is more accurate . Powell told Loughery that, if it had been he, he would not have honored a subpena, "until it got into my hands." I find there is insufficient probative and substantial evidence that Respondent violated Section 8(a)(1) of the Act as alleged in paragraph 5(c) of the complaint. I find definitely that Loughery was threatened with no reprisals by anyone for appearing and testifying at the R case hearing. 4. Paragraph 5(d) of the complaint alleges that William George14 violated Section 8(a)(1) of the Act by telling an employee how he was going to vote and threatening him with reprisals for voting for the Union (in July). Loughery testified that on one occasion , Respondent's agent, Bill George, said to him, "Del, you worry me." Loughery asked, "Why?" George allegedly said, "I know how you are going to vote." 15 Loughery replied, "You 10 1 concede I may have overlooked it. 11 According to Loughery. 12 An agent of Respondent. 13 According to Loughery. 14 An agent for Respondent. should know, I have told you before my attitude... . Allegedly George replied, "Del, I really have no objections to the Union, but I don't want to be first." That was that. As Loughery testified, they knew he was a union member and he had told them as far back as April . During this alleged conversation, George told him he had heard him voice his opinion that the Union was badly needed. All George said was that he had no objection to the Union but he didn't want to be first. Loughery had told all of Respondent's agents that he had joined the Union back in April. He volunteered this information. Before this conversation with George about July 15, he had put all of Respondent's agents on notice that he would vote for the Union. George clearly denied any such statement, as alleged by General Counsel , and, based on his demeanor, I credit his testimony, but I think this is irrelevant because I find, assuming arguendo that I credited Loughery in this regard, George's statements would have been protected by Section 8(c) of the Act, and contained neither interference, restraint, or coercion in violation of Section 8(a)(1) of the Act. George, from April on, knew that Loughery was the union leader in the shop and must have assumed he'd vote for the Union.16 Loughery admitted that at the time of this alleged conversation with George, several dealers had already lost elections to the Union. George must have known this. He would have known he would not be "first" under any circumstances.17 I find insufficient probative evidence to support a finding of violation as alleged in paragraph 5(d) of the complaint. 5. Paragraph 5(e) of the complaint alleges that George Powell, an agent of Respondent, questioned employees as to whether they filed unfair labor practice charges against Respondent. General Counsel's Exhibit 3 shows that, on July 16, the District Lodge of the Union, as plainly set forth in the charge, filed an 8(a)(5) charge against Respondent. Loughery is nowhere mentioned in the charge. Loughery testified that , on July 17, he had a conversation with George Powell in Powell's office. According to Loughery Powell asked him, "Did you file unfair labor charges at" the Board. According to Loughery, Powell added, "If you did, I want you to know I will not stand for it." Loughery allegedly denied that he had filed the charges. Powell admitted that he had received the charge and he didn't understand it and "we" inquired around and nobody made any comments. Slightly later he called the firm which was representing him and was told in effect not to worry about it because many charges had been filed and to send theirs to them . He truthfully denied that he questioned Loughery or any other employee as to whether he had filed a charge, because there was no individual employee's name on it. He probably told Loughery, as well as other employees, that the machinists had filed an 8(a)(5) charge and asked him if he knew anything about it. No one seemed to know what the charge was about. I credit Powell. I find no violation of the Act in Powell making such general inquiries as to what the charge was about. He did not ask 15 At all times, beginning in April, Loughery made it plain to all that he was for the Union. 16 Loughery had made this clear. 17 Such a conversation simply would not have taken place. B & G CHRYSLER-PLYMOUTH, INC. any individual employee if he had filed the charge. General Counsel has failed to prove by a preponderance of the probative and substantial evidence that Respondent violated Section 8(a)(1) of the Act as alleged in paragraph 5(e) of the Act.18 The 8(a)(3) allegation with respect to Loughery While from time to time I have not credited Loughery's testimony, I do find Respondent's witnesses' testimony against their substantial interest to be true and correct and substantial evidence establishing a violation of Section 8(a)(3) and ( 1) with respect to Loughery's discharge. The record reveals in its substance that Respondent was opposed to union organization in its sales dealership. Respondent was definitely opposed to being organized by the Union so far as its salesmen were concerned. It is true that I have found some of the alleged 8(a)(l) unproved by a probative and substantial amount of the evidence. This was due to the lack of substantial evidence. I find ample proof of the 8(a)(3) and (1) violations as admitted by Respon- dent's witnesses.19 I consistently advised witnesses that I did not wish to put words in the witnesses' mouths, but that General Counsel on cross-examination might do so. We are here dealing with the alleged discharge of Loughery by Burris and his superiors, and refusal to reinstate since "July 31" or "August 1.- 20 First may I find that Respondent did not wish the Union to represent the Respondent's sales employees . Loughery made Respondent know according to Respondent's brief (p. 21) that the Union was a "badly needed thing." Respondent in its brief states (p. 21) that the Union "was unstable and would not be conducive to sound labor relations." Liddle truthfully testified that Burns, in front of himself, Loughery, and Orem,21 said that an employee who got too tied up with the Union would not be employed by any member of the Association. This was in June. I credit Liddle's testimony that at this time, Loughery, Orem, and he were told the Association would stick together and was much against the Union. It might appear on its face that, when Loughery's sales of cars dipped to four or five in July, Respondent discharged him for this reason but not for union or protected concerted activities. For Loughery, I find to the contrary. Respondent itself made clear and abundantly clear that Loughery was discharged for union and other protected concerted activities. I find all of Loughery's ^supervisors^ or Respondent's agents knew he was a union agent or activist at all material times. They all knew at or about the time he signed the card for the Union in April that he was active for the Union. Before July 25, he had put all of his Employer's agents on notice as to his voting intentions. Loughery had made it 16 Noted particularly I do not credit Loughery's testimony in this regard 19 Particularly Burris who played the most prominent role in the discharge 20 I find the actual date of discharge was August 1 21 In the unit 22 Even at company sales meetings 285 clear to Respondent that he was attending union meetings.22 Burris admitted he considered Loughery "the leading and most outspoken advocate of the Union." Burris testified that Loughery by his union activities was interfering very much with the success of Respondent's business. "This" was one of the reasons he was terminated. There was no termination by mutual agreement. Burris admitted that one of the reasons Loughery had been discharged was that he had been telling his fellow employees that things had deteriorated so that the only way the men could work successfully would be to unionize. Loughery would go to the union meetings and come back and report to the men and Burris would overhear the conversations. Loughery would phone the union president (Harper) about union problems. Bums was aware of this. Burris admitted that he knew Loughery had been telling the men that things had so deteriorated that the only way the men could successfully earn a living would be to "organize." Loughery had conversations along these lines with a much later hired employee, Guy Smith.23 Burris testified unhesitatingly that Loughery was a "good retail salesman . . . a professional retail salesman." According to Bums, Loughery was discharged mostly because of his "attitude" and secondly because of his "sales." According to Burns, he laid off a "boy" 24 who claimed "he could not work with Loughery who" demoralized him. It appears these remarks were made before 1969 and the "boy" quit or was terminated before 1969. Powell admitted knowledge that Loughery was active in behalf of the Salesmen's Union since April. It "was a fairly open subject to discussion around the business show floor area and sort of grouping together of the salesmen and conversations being tossed back and forth." Union membership, etc., was an open area of discussion before the scheduled and canceled election. Loughery's activities in behalf of the Union were well known to employees and Respondent's agents. When Burris terminated Loughery and said, according to him, "I guess you know why you are in here," 25 Burris admitted that at that time he considered Loughery as a good retail salesman-a professional retail salesman. Burris, as did others of the management group, found Loughery kept other employees away from doing a good job of selling by his union activities. Burris testified he terminated Loughery (1) because of mostly his "attitude" and (2) poor production, in July.26 Loughery received plaques as "salesman of the month" in March, April, and May27 from Respondent. Of all eligible new-car salesmen for those months, Loughery sold the most cars. Burris believed he had five salesmen in March and in April about three or four and he "thought" they had three in April. When Bums discharged Loughery, he did not mention his "attitude," 28 but only "poor" production. Burris knew that Loughery was telling his fellow 23 Hired a couple of days before Loughery was discharged 24 Loughery was 60 25 1 find Loughery was not there 26 He sold four or five cars 27 It is common knowledge that even the best of salesmen can have "bad" months 28 Which was allegedly the prime reason for the termination 286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees that car salesmen work had so deteriorated over the last several years that the only way salesmen successfully could earn a living would be to unionize. I find Burris considered this to be a bad attitude and was included in the "prime" reason for his discharge. Allegedly, Loughery had similar conversations with a new employee, Guy Smith.29 It appeared from company records examined by Burris that Smith was hired on July 28. He hired another allegedly union man who had been walking a picket line, DeAtlay, on July 29. Bums admitted that in that business a "good salesman" could have a poor month of selling. Loughery was terminated mostly because of his "attitude" in demoralizing the other salesmen. "Part of his attitude was that he would sit down with the men and tell them about how things have been deteriorating over the years and they should join together and get themselves regular wages." He was discharged, at least partly, according to Burris because he had been telling fellow salesmen "the men should get themselves organized so that they could get a regular good pay." Burris found Loughery's attitude bad and demoraliz- ing, "because he was actively attempting at work, and maybe when he was off from work to organize the employees into the machinist union because he was telling them things have deteriorated in his opinion." 30 Burris further testified that Loughery would state that in his opinion "they needed a union to represent them and that if they didn't have such representation, things would go from bad to worse." I find this all part of Loughery's "bad attitude" for which he was similarily discharged. Bums found Loughery's outspoken advocacy of the Union was demoralizing the morale of his employees, and that his union activities were interfering very much with the success of Respondent's business, and that was at least one of the reasons for termination of Loughery. Partner William George testified he knew Loughery was the union leader in the shop. They (his partner, Powell and Bums, and he) decided to terminate Loughery about 2 days before his discharge. Burris had told him he had a salesman who was demoralizing the other men and falling down in his own efforts, because he was spending too much time trying to organize the other men and explaining to them "that if they had a Union in there they could get a regular wage." George didn't remember the name of the man (obviously Loughery) but he told Burris to get rid of the man.31 Incidently, I do not credit Burris in his testimony that he had a person-to-person conversation with Loughery on the day of the latter's discharge 32 I credit Loughery's testimony to the contrary. The termination was not by "mutual agreement," but Burris told Loughery, by telephone, he was being laid off for selling only five cars in July. I consider it immaterial, but Respondent seemed to set great store by it, that Guy Smith testified that, out of the presence of any supervisor, Loughery remarked to him that 29 Smith allegedly had been fired for union activities by another car dealer. 30 He had been a car salesman for about 20 years. Further there is no evidence of a no-solicitation rule at Respondent, and the Union was a common topic of conversation among employees and management on the premises. business was bad, and Smith had replied that business was also bad at his former employer. Also, I note that it appears to me from the entire record that in addition to Loughery Respondent had but one other new car salesman in July 33 until its near end when they hired two more, probably in contemplation of Loughery's termination.34 Perhaps I am merely speculating but since the number of salesmen decreased from five to no more than two in a few months, that not only Loughery's business but Respondent's business decreased. But for the admitted discriminatory reasons, Respondent would have held on to a very good, professional salesman. Bums admitted more than several times that the main reason for discharging Loughery was that he was vigorously endeavor- ing to organize his fellow employees into the Union. It is just too bad if Burris and the big bosses thought this was demoralizing to Loughery and his fellow employees. If Loughery's union activities were demoralizing other employees, which I decline to decide, that is "the price which must often be paid in order that the rights guaranteed by Section 7 may be preserved." El Mundo, Inc., 92 NLRB 724, 726. It was protected union activity, and his discharge for such violated Section 8(a)(3) and (1) of the Act. His alleged poor production was a mere pretext. Out of his past 5 months of employment he was three times awarded a lovely plaque as "salesman of the month." As Respondent admits in its brief, Respondent was of the opinion that the Union was unstable and would not be conducive to sound labor relations. Such opinion is by no means violative of the Act but it is with this background that I evaluate Respondent's admissions of discharge for engaging in union activities as evidence of 8(a)(3) and (1) violations even if it thought that such protected activities "demoralized" other employees and Loughery. Around July 1, George talked about the disadvantages of the Union at a general sales meeting, saying it was on the "wrong foundation" and they "were strike happy," and Loughery said "it is a badly needed thing for the retail car salesmen in Kansas City." I find Respondent displayed union animus. I find, without hesitation, that Loughery was discharged by Respondent because of his union and other protected concerted activities in violation of Section 8(a)(3) and (1) of the Act. Upon the basis of the above findings of fact, and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. At all times material, Respondent has been an Employer engaged in commerce within the meaning of the Act. 2. At all times material, the Union has been a labor organization within the meaning of the Act. 3. Some time during May through July, Burris, Respondent's agent, told employees that they would not be 31 George subsequently testified he knew the man Bums was talking about was Loughery. He subsequently denied some of his earlier incriminatory testimony. 32 August 1. 33 And perhaps no other. 34 They may have been disenchanted union members. B & G CHRYSLER-PLYMOUTH, INC. 287 hired by Kansas City Automobile Dealers if they got tied up "too tight" with the Union, since the Association would not let them work. He told these employees that this is what happened to the Local's president and a few others. Any employee who got "too strong" for the Union couldn't work for an Association employer.35 These statements were violative of Section 8(a)(1) of the Act. 4. By discriminatorily discharging Loughery on July 31 or August 1, and by failing and refusing to reinstate him since such time, thereby discouraging membership in the Union, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 5. General Counsel has failed to establish by a fair preponderance of the credited evidence that Respondent committed any other unfair labor practices as alleged in General Counsel's complaint, within the meaning of the Act. THE REMEDY The unfair labor practices found to have been committed by Respondent, particularly the discharge of and failure to reinstate Loughery,36 strike at the very heart of the Act.37 Respondent will be ordered to reinstate Loughery to his former or substantially equivalent employment and to make Loughery whole for any loss of pay he may have suffered because of the discrimination against him, by paying to him a sum of money equal to the amount he would normally have earned from August 1, the date of the discrimination against him to the date Respondent makes a firm and good-faith offer of reinstatement to him.38 He shall be made whole in the manner set forth in F. W. Woolworth Company, 90 NLRB 289, with interest computed in the manner described in Isis Plumbing & Heating Co., 138 NLRB 716.39 RECOMMENDED ORDER Upon the foregoing findings of fact and conclusions of law, and upon the entire record herein, it is recommended that Respondent, its agents, successors, and assigns, shall: 1. Cease and desist from: (a) Coercively telling employees that they would not be hired by other dealers particularly fellow members of the Association to which they belong, if they got tied up "too tight" with the Union since the other dealers would not let them work, and that this had already happened to other union activists. (b) Discouraging membership in the Union or any other labor organization by discharging or in any other manner discriminating against its employees with regard to their hire or tenure of employment, or any term or condition of employment. (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights to join the Union or be active in the Union, or assist the Union or any other labor organization or otherwise engage in activities protected by the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Offer to immediately reinstate Loughery to his former job or, if his job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges and make him "whole" in the manner set forth in the Remedy portion of this Decision for any loss of earnings by reason of Respondent's discrimina- tion against him. (b) I note that Loughery is at least 60 years of age, but I nonetheless direct Respondent to notify Loughery, if presently serving in the Armed Forces of the United States, of his full right to reinstatement upon application in accordance with the Selective Service Act, and the Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces. (c) Preserve and upon request, make available to the Board or its agents all records necessary to determine the amount of backpay due under this Recommended Order. (d) Post at its Kansas City, Kansas, and Kansas City, Missouri, facilities, copies of the attached notice marked "Appendix." 40 Copies of said notice on forms provided by the Regional Director for Region 17, after being duly signed by Respondent's authorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily displayed. Respondent shall take reasonable steps to insure that such notices are not altered, defaced, or covered by any other material. (e) Notify said Regional Director, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.41 35 Respondent belonged to the Association. 36 His discharge was precipitous and without any warning 37 A J Krajewskl Manufacturing Co, Inc, 180 NLRB No 173 38 Interim earnings, etc, should be deducted 39 The Charging Party moves that the interest paid should be more than 6 percent so as to be more in keeping with our inflationary economy I can see much justice in this request but I have no Board precedent for granting Charging Party's motion I recommend to the Board that if it should review this case it might well grant the Charging Party's motion and award at least 9-percent interest to Loughery, in connection with money due and owing to him 40 In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations, and Recommended Order herein shall, as provided in Section 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes In the event that the Board's 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 be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals enforcing an Order of the National Labor Relations Board " 41 In the event that the Recommended Order is adopted by the Board, this provision shall be modified to read: "Notify the Regional Director for Region 17, in writing, within 10 days from the date of this Order, what steps it has taken to comply herewith " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government You are free to join or not to join any Union of your choice. 288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE DO NOT have the right to interfere with, restrain, or coerce you in your choice. WE WILL NOT coercively tell any of our employees that they will not be hired by other automobile dealers, particularly fellow members of the Automobile Dealers' Association to which we belong, if they get tied up "too tight" with District Lodge 71, International Association of Machinists and Aerospace Workers, AFL-CIO, or any other Union, and that such nonhiring had happened to other employees. WE WILL NOT discharge or in any other way discriminate against any of our employees because of their activities in or assistance to the above-named Union or any other union or because of other protected concerted activities. WE WILL NOT in any other manner interfere with our employees in exercising their rights to join or assist, or to refrain from joining or assisting, any union, except to the extent that such rights may be affected by an agreement requiring membership in a labor organiza- tion as authorized by Section 8(a)(3) of the Act. WE WILL offer to immediately and fully reinstate Loughery to his former job or, if that job no longer exists, to a substantially equivalent position of employ- ment. WE WILL pay Loughery any wages he lost because of our discrimination against him with interest at 6 percent. B & G CHRYSLER- PLYMOUTH, INC., AND ITS SUCCESSOR BILL GEORGE CHRYSLER-PLMOUTH, INC. (Employer) Dated By (Representative) (Title) Note: We will notify Delbert C. Loughery, if presently serving in the Armed Forces of the United States, of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions, may be directed to the Board's Office, 610 Federal Building, 601 East 12th Street, Kansas City, Missouri, 64106, Telephone 374-5181.