Motor Coils Manufacturing Co

282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Motor Coils Manufacturing Company and Donald Allison. Case 6-CA-4827 December 15, 1970 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS BROWN AND JENKINS On June 25, 1970, Trial Examiner Wellington A. Gillis 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 further 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 filed exceptions to the Trial Examiner's Decision, a supporting brief, and a brief in answer to the General Counsel, and the General Counsel filed an answering brief, limited cross-exceptions, and a brief in support thereof. 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, the briefs, and the entire record in this case, and hereby adopts the Trial Examiner's findings,' conclusions, and recom- mendations. 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, and hereby orders that Respondent, Motor Coils Manufacturing Com- pany, Braddock, Pennsylvania, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as so modified: 1. Substitute for paragraph 2(a) of the Trial Examiner's Recommended Order the following: "(a) Offer to Donald Allison immediate and full reinstatement to his former job or, if that job no longer exist, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole in the manner and 187 NLRB No. 39 according to the method set forth above in the section entitled `The Remedy.' " 2. Substitute for the fourth indented paragraph of the Notice to Employees the following: WE WILL offer to Donald Allison immediate and full reinstatement to his former job or, if that 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 and according to the method set forth in the section entitled "The Remedy." CHAIRMAN MILLER, dissenting: Even accepting all of the Trial Examiner's credibili- ty resolutions, this record does no more than support the Trial Examiner's conclusion (second par. of the sec. of the Trial Examiner's Decision entitled "Analysis and Conclusions") that it evidences "the lack of a convincing case having been made out by either party." When that is the situation, it is incumbent upon us to dismiss the complaint, since the burden rests on General Counsel to prove his case by a preponder- ance of the evidence. i We find that there is no evidence to support the Trial Examiner's finding that employee Duffy "left the Respondent's employ under other than favorable circumstances " However, even if there were such evidence, it would not warrant a modification of the Trial Examiner's conclusions and recommendations TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE WELLINGTON A. GILLIS, Trial Examiner: This case was heard before me at Pittsburgh, Pennsylvania, on April 27 and 29, 1970, and is based on a charge filed on November 26, 1969, by Donald Allison, an individual; upon a complaint, issued on February 27, 1970, by the General Counsel for the National Labor Relations Board, hereinaft- er referred to as the Board, against Motor Coils Manufac- turing Company, hereinafter referred to as Respondent or the Company, alleging violations of Section 8(a)(1) and (3) and Section 2(6) and (7) of the National Labor Relations Act, as amended (61 Stat. 136), and upon an answer timely filed by the Respondent denying the commission of any unfair labor practices. At the hearing, both parties were represented by counsel, and were afforded full opportunity to examine and cross- examine witnesses, to introduce evidence pertinent to the issues, and to engage in oral argument. Subsequent to the close of the hearing, timely briefs were filed by counsel for the General Counsel and for the Respondent.' Upon the entire record in this case, and from my observation of the witnesses, and their demeanor on the witness stand, and upon substantial reliable evidence "considered along with the consistency and inherent i A motion to correct Resp Exh 6 also was filed after the hearing MOTOR COILS MFG. CO. 283 probability of testimony" (Universal Camera Corp. v. N.L.R B., 340 U.S. 474, 496), I make the following' FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPGNDENT The Respondent is a Pennsylvania corporation with its principal office located in Braddock, Pennsylvania, where it is engaged in the manufacture and nonretail sale of electric motors and coils. During the 12-month period immediately preceding the issuance of the complaint, the Respondent received goods and materials valued in excess of $50,000 directly from points outside Pennsylvania, and, during the same period, Respondent shipped from its Braddock, Pennsylvania plant goods valued in excess of $50,000 directly to points outside the Commonwealth of Pennsylva- nia. The parties admit, and I find, that the Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The parties admit, and I find, that General Teamsters, Chauffeurs, and Helpers Local 249, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, hereinafter referred to as the Union, is a labor organization within the meaning of Section 2(5) of the Act. III THE ALLEGED UNFAIR LABOR PRACTICES Issues 1. Whether, on one occasion in October 1969,2 Respondent's Vice President Emil Olyarnik indicated to employees the futility of supporting the Union; and, on another occasion in November, Respondent's President Ralph Lauro interrogated employees concerning union activities and threatened employees with discharge if they supported the Union. 2. Whether, in discharging employee Donald Allison on November 24, the Respondent did so because he engaged in union activities. The Facts In the process of manufacturing electric motors that drive diesel locomotives for the railroad industry, the Respon- dent takes worn motors, rebuilds them, and in turn, sells them back to the railroad industry. In this connection, the Respondent operates two plants, one in Braddock, Pennsylvania, where it employs some 150 employees in its production and maintenance unit represented by a local of the International Union of Electrical Workers, and one in closed Said motion, stipulated to and signed by representatives of all parties, is hereby granted and made part of the record in this matter 2 Unless otherwise noted, all dates hereinafter set forth refer to the year 1969 3 Double load is the term used to refer to the practice of hauling one customer 's load, say, from the Respondent's plant in Braddock to Altoona, proceeding to Emporium, picking up another customer's load, and driving back to Braddock While the driver is paid the actual mileage for the whole trip, Allison's gripe was that, had two separate trips been made, the mileage Emporium, Pennsylvania, where approximately 170 prod- uction and maintenance employees are employed and represented by a different local of the IUE. Working out of its Braddock operations, the Respondent employs several truckdrivers who provide the transportation necessary to transport the 7,000 pound motors back and forth between the Respondent's two plants and the railroad terminals throughout most of the United States and Canada. Lauro, Respondent's president, actively runs the busi- ness, with Emil Olyarnik as his vice president in charge of manufacturing operations. During the period here in- volved, James Patterson was the plant manager and, as such, responsible for all hourly production personnel as well as for the direct supervision of the three full-time truckdrivers and one part-time driver-dispatcher. Drivers are paid on the basis of mileage fees and waiting time, with a flat payment for intercity runs based on the number of rules and a $3-per-hour rate for waiting time (time lost on mileage fee trips due to unavoidable delays). Donald Allison, the alleged discriminatee herein, a truckdriver with up to 10 years' experience, was first employed by the Respondent in January 1969 and drove for the Company until his discharge on November 24. According to Allison, a former Teamster, because he felt working conditions were not good, starting in September he became interested in bringing in a Umon. On several occasions he inquired of one Cabby, known to Allison as president of the IUE Local, about getting the Union in. On two other occasions, the first occurring in late September, in connection with double loads and working conditions generally, he told Patterson that "if we had a union in there, that we wouldn't get all the crap that we were getting." 3 On the second occasion, about 3 weeks before his November 24 discharge, Allison went in to see Patterson because the drivers were not being paid for extra drops and, in the presence of former employee-truckdriver Donald Duffy, citing a Chicago and Omaha run, Allison told Patterson that, if the Union were in there, the drivers would be paid extra for that Patterson said he would see about getting the extra pay.4 During a conversation in October, Allison and Duffy were discussing working conditions and double drops with Olyarnik in the latter's office. At some point, Allison asked Olyarnik what he thought about getting a Union in for the drivers. Olyarnik replied that if the Teamsters were to come in "we wouldn't be staying in the best motels and eating the best food or running as many trips as we were . . . because we'd be regulated on our time" by the Teamsters, adding that "the only way the Union would come in there anyway was when Ralph Lauro was ready for it."5 Toward the latter part of October, upon returning from a would have been greater and therefore the driver should have been paid for the additional mileage 4 Duffy corroborated Allison's testimony concerning this conversation Although Patterson was not questioned on either of these conversations, he testified that he never heard Allison say he wanted a Union 5 Duffy corroborated Allison's unrefuted testimony as to this conversation Olyarnik was not specifically questioned on this conversation, but, in reply to counsel's question, denied that he ever told any employees that it would be futile to support or loin the Teamsters. 284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 5-day trip and reporting to the shop, Robert Zaberoski, a shop foreman,6 told Allison in Duffy's presence that he had to go out right away on another trip. When Allison told Zaberoski that he was too tired to go and needed a rest, Zaberoski replied that, if he did not like working there and running the way the Company wanted him to, he should go some place else and find a job. Allison then stated that if they had a union in the shop the drivers would not have to run like this. At this point, Allison left and went home, but Duffy followed Zaberoski into the office where Zaberoski made a telephone call. According to the testimony of Duffy7 he heard Zaberoski say, "Mr. Lauro . . . Allison refuses to go out on a trip." And then, referring to both Allison and Duffy, added, "all these dnvers want to do is go home and rest and talk Union." On a Saturday toward the latter part of October, which I find to have been the 25th, Allison and Duffy visited Lauro in the hospital, where he had been confined since the first part of September and was to remain until November 16. Allison and Duffy went to see Lauro to complain about faulty equipment, specifically, the condition of the trucks and because Duffy had had an argument with Olyarnik. Lauro, upon listening to them, called the plant and made arrangements to purchase three new trucks, commenting that he had good drivers and wanted to keep them. Within the next few weeks, the new trucks arrived.8 On Monday following the hospital visit of Duffy and Allison, during one of Olyarnik's daily visits with Lauro, the latter asked Olyarnik why he was picking on Allison. Olyarnik replied that Allison was turning in too much waiting time, "we've been having trouble with him." Lauro told Olyarnik to use his own judgment, and then let the matter drop.9 On or about Monday, November 17, as dispatcher John Harbison was making up the payroll for the pay period November 2 through 16, he noted an excessive amount of waiting hours on Allison's trip tickets for November 8 and 12, and, taking it to Patterson, told him that he could not sign the payroll, that there were too many waiting hours. Patterson agreed to take care of it and to discuss the matter with Allison. As the latter was on a trip at the time, 6 It is not contended that Zaberoski is a supervisor within the meaning of the Act. However, it appears that, in the absence of Olyarnik and Patterson, Zaberoski is responsible for passing orders on to the truckdrivers r Allison corroborated Duffy's testimony as to the above, and, as Zaberoski was not called as a witness, Duffy's testimony as to the rest of the incident is unrefuted However, Lauro did deny that Zaberoski ever called him on the telephone 9 Lauro's version differs from that of Allison and Duffy, in that Lauro testified that they came to see him because Olyarnik was picking on Allison, and that at some point Allison stated that Connors, the third driver, was trying to organize a Union Both Allison and Duffy denied that Allison made this accusation or that the subject of unions came up at all during the visit 9 A trip ticket is a form which each driver fills out and leaves with the dispatcher upon returning from a trip It provides spaces for dates, indicating the time of leaving, destination, time of arrival , any stops for deliveries or pickups en route , and waiting time, and serves as the basis for computing a driver's pay io Allison had mistakenly computed his waiting time at 20 hours instead of 24 hours Accordingly, Patterson first added the 4 hours Allison had left off, then substracted the 5 hours Allison was not entitled to, resulting in 7- 1/2 hours being deducted from the two trip sheets . The fact still remains, however, that Allison had claimed a total of 11-1/2 hours to which, according to Patterson, he was not entitled According to Allison this was Patterson waited until Allison returned. Thus, on Wednes- day, November 19, Patterson called him into his office and questioned him about his trip sheets for the pay period in question, wherein he had claimed a total of 79-1/2 hours of waiting time. Patterson, going into detail with respect to two trips, told Allison that on an Omaha trip he had charged 14-1/2 hours waiting time when he was entitled to charge only 8 hours. He then deducted 6-1/2 hours from the time claimed, with which Allison did not object. Patterson then raised a question concerning a Montreal run for which Allison had claimed 13 hours' waiting time, while waiting for a permit at North East, Pennsylvania, before entering New York State. Patterson, in deducting 5 hours from the total, told Allison he should not have waited that long for a permit, that he should have run without it and paid the fine.10 Again, without much discussion, Allison agreed to the change. No other tickets were raised and, according to Patterson, who, although telling Allison that it was a lot of hours, testified that "we discussed waiting time to a very minor extent." On Saturday, November 22, having previously been offered some suits and other clothing which was much too large for Lauro because of his having lost a considerable amount of weight, Duffy went out to Lauro's home, where he was recuperating from his hospitalization. During the visit, after idle talk concerning weight, Lauro asked Duffy what was the matter with Allison, he seems to be a troublemaker. Duffy then apprised Lauro of the fact that Allison had 80 hours of waiting time during the last 2 weeks. Lauro asked, how can one get 80 hours of waiting time during a 2-week pay period? Duffy replied that, if the dnvers turned in all of their waiting time, they would get 180 hours in 2 weeks. Lauro then called the plant, and, when Harbison answered the telephone, told him not to use Allison until he discussed the matter with Olyamik, that Allison had too many waiting hours. Duffy then picked up his suits and went back to the plant.ii Allison was scheduled for an early morning trip on Monday, November 24. Upon arriving at the plant shortly after 3 a.m., he was informed by the guard that he had been taken off the load and that Connors was taking it. Upon only the second time he had been questioned concerning his waiting hours, the other having occurred in September or October, when Patterson took away 6 or 7 hours ii With respect to this incident, Lauro and Duffy testified to conflicting stories, neither of which I credit in full. In fact the credibility of each leaves something to be desired . Duffy testified that he told Lauro that Allison wanted to bring the Teamsters in, later testifying that he told Lauro that he, like Allison, wanted the Union in; that Lauro was the one who first mentioned Allison's 80 hours; that Lauro, before talking with Harbison on the phone, first talked with Olyarnik , asking whether Allison had talked about the Union with him and telling Olyarnik not to use Allison, that Lauro then asked Harbison on the telephone if Allison had talked about the Union Lauro, on the other hand, denied having talked with Olyarnik, denied mentioning anything about the Union with Duffy , and further testified that , in talking with Harbison, the latter told him that he thought that Allison had been turning in too much waiting time, that Allison would not take the truck assigned to him , and that he was generally giving him a hard time Harbison testified that Lauro only told him on this occasion not to use Allison because he had too many waiting hours, that Lauro said nothing else Harbison denied that he told Lauro that he was having trouble with Allison in crediting Harbison on this matter , finding that Lauro did not question him concerning Allison and the Union , I find that the Union was not mentioned at all during Duffy's visit and that the incident occurred approximately as set forth above MOTOR COILS MFG. CO. learning this, Allison talked with Duffy when he arrived around 4:30 a.m., and asked Duffy if he would back him up if he tried to bring Local 249 in, with which Duffy agreed. Allison then went home and got a few hours more sleep. When Patterson arrived at the shop at or about 8:45 a.m., he inquired of Harbison as to the weekend trucking operations, and learned that Allison had not gone out that morning, that Lauro had directed that he was not to be given any future trips. In reply to Patterson's question, Harbison told him that it was because of excessive waiting time that Allison had for the previous pay period. A few moments later Patterson saw Olyarnik and, in discussing Allison, Patterson asked if it were his decision. Olyarnik informed Patterson that Lauro had made the determination that Allison should have no more runs, that Lauro was upset over Allison's excessive waiting time. When Patterson asked Olyarnik whether this amounted to a termination, Olyarnik's reply was that, as far as he knew, it was. Later in the morning, Allison came in, and, in Patterson's presence, asked Olyarnik when he was going to be sent out next. Olyarnik told him that he was not going to be sent out, and, in reply to Allison, explained that it was because of his excessive waiting hours. During the discussion that followed concerning whether or not the hours were excessive, Olyarnik told Allison that he felt very definitely that they were, reminding Allison that he had talked to him about them previously and that they were higher than those claimed by any other driver. Olyarnik then asked the question, "how can anybody turn in 80 hours in a 2-week period-it amounts to two full weeks' work in waiting time." Allison ended the conversation with, "I kept my card up in the Teamsters Local and I'm going down and see if they can give me some help," adding that he was not going to let this rest right where it was. Allison then left and called a Don Hickman, business agent for Local 249, and, because he was not there, talked with a Mr. Mazza. At noon, Olyarnik had lunch with Lauro at the latter's home. Together they examined Allison's trip tickets which Olyarnik had brought with him. Olyarnik told Lauro that Allison's tickets were running 40 percent higher than the other drivers with respect to waiting time. It was then decided that Allison was to be discharged.12 Analysis and Conclusions The General Counsel contends that the Respondent discharged Allison because he engaged in union activities. The Respondent, denying the allegation, asserts that it was unaware of any union activities on the part of Allison and that he was discharged for turning in trip tickets with excessive waiting time, and because of "general attitude problems" the Company had with him. The resolution of the issue concerning Allison is complicated, first, because of the existence of a general credibility problem, and secondly because of the lack of a 12 Allison, in what I consider an obvious attempt to add substance to his case, testified to a completely different set of facts , refuted by Patterson , whom I credit fully, and in part by Lauro and Olyarnik. Allison, contrary to his pretrial affidavit , testified that he called the Union before talking with Patterson at the plant ; that the first thing he stated to Olyarnik was that he wanted to set up a meeting between Lauro and Local 249's Mazza, and that subsequently Olyarnik took him aside and told him that if 285 convincing case having been made out by either party. I had a distinct feeling during the hearing, as well as in perusing the transcript, that Allison and Duffy, who left the Respondent's employ under other than favorable circum- stances, were not altogether truthful, both contradicting their pretrial affidavits in more than one instance. As to the Respondent's witnesses, many of whom in one respect or another contradicted each other, Lauro did not impress me with his candor while testifying, contradicting his pretrial affidavit on one important matter. Olyarnik was an extremely poor witness, seemingly unable to recall important aspects of his part in the matter. Harbison I feel was attempting to answer questions truthfully, but his demeanor indicated on occasion that he was having trouble really remembering what did take place. Patterson, who voluntarily left the Respondent in March 1970, to operate his own business, was, I find, for the most part reliable. Turning to the Respondent's assertion concerning the discharge of Allison, other than perhaps a little friction between Allison and Olyarnik, and the possibility that Allison was considered a griper, the facts do not disclose the existence of any real "general attitude problems." In this regard, in answering the question of whether he had talked to Allison about any problems, Plant Manager Patterson testified that he had conversations with Allison each time he came into the office from a run, conversations relating to equipment, waiting time, and rates the Company was paying on various runs. Patterson also testified that he talked with Allison about other minor problems, some of which related to his equipment, but that he had never issued any written reprimands or taken any disciplinary measures against him. Thus, the Respondent's basis for terminating Allison really boils down to his having claimed excessive waiting time on his trip tickets. The record reveals that the discrepancies in Allison's November 8 and 12 trip tickets, resulting in the reduction of hours claimed from 79-1/2 to 68 was based partly on an honest error in addition and on Allison's having counted sleeping time on one trip and time waiting on a permit on the other. Allison accepted the adjustments and Patterson, while not condoning the amount of waiting time claimed, did not question the remaining tickets as being unreasonable. The record further reveals that, on one prior occasion in September or October after discussing a trip ticket with Allison, Patterson reduced Allison's waiting time by 6 or 7 hours. However, it appears that the Respondent on a number of occasions discussed waiting time with many of the drivers, that during 1969 most all of the drivers had their waiting time reduced for one reason or another, with or without consultation with the driver,13 and these included Duffy, Connors, and even Harbison, in addition to Allison. In fact, company records indicate that, while Allison's waiting time was slightly higher than the others, compared with six pay periods when his time was reduced (at least four without his knowledge he would let everything lie, he would smooth everything over for him, to which Allison allegedly replied that it was too late, he was going to bung the Union in. In the absence of any corroborative evidence, coupled with a complete lack of credulity concerning Allison's testimony generally, I find his testimony in this regard to be completely without foundation 13 Respondent employed a total of eight drivers at one time or another during 1969. 286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and without the Company bunging it to his attention), Connors had his time reduced during five consecutive pay periods between July and September, and Duffy had his reduced on four occasions. Thus, with the Respondent having gone along with this particular problem among its drivers for some time, it is somewhat surprising that all of a sudden, with no prior warning or reprimand of any kind, Lauro decided to take the severest of action with Allison and, without even talking to him about the matter, summarily discharged him. Lauro's own testimony as to why he decided to terminate Allison reveals, in my opinion, the weakness of his case. In reply to counsel, Lauro testified that it was based on "the fact that he [Allison] repeatedly turned in waiting time and allowed the Company to reduce the waiting time" without his objecting or standing up for the hours he claimed. It is not disputed that, while his time had been reduced on a number of occasions, as had that of other drivers, Allison was questioned on his waiting time on but two occasions, the second one resulting in his discharge. Additionally, indicative of an ulterior motive in this regard is the fact that 4 weeks earlier, based on the visit of Allison and Duffy and their complaint concerning Respondent's equipment, Lauro had authorized the purchase of three new trucks, commenting at the time that he had good drivers and wanted to keep them. This, I maintain, under the circumstances just outlined, is totally inconsistent with his subsequent decision to summarily terminate Allison for the reason asserted. The evidence with respect to Allison's union activity reveals that, until November 24 at least, such did not include any formal or overt activity on his part of the type frequently associated with ardent union adherents, and, for the most part was limited to making casual inquiries concerning the possibility of getting a union in the plant, discussing the subject with fellow driver Duffy (but not Connors), and occasionally making reference to the need for a union in gripe conversations around the plant. Specifically, Allison let Patterson know on two occasions that "if we had a union in there, that we wouldn't get all the crap that we were getting," and, 3 weeks before his termination, that, if the union were in there, the drivers would be paid extra for extra drops. On another occasion in October, Allison asked Olyarnik for his opinion on getting a union in the shop for the truckdrivers, and was told by the Company's vice president that "the only way the union would come in there anyway was when Ralph Lauro was ready for it." 14 Allison also let Zaberoski know that late in October, in griping about going out on another trip without rest, that if the drivers had a union in the shop they would not have to run like they did. The last incident prompted Zaberoski to apprise Lauro of Allison's dissatisfaction, and 14 I find this statement by this company official , in the presence of Allison and Duffy, supports the complaint allegation that Olyarnik "indicated to employees the futility of supporting the Union," and constitutes restraint and coercion within the meaning of Section 8(a)(1) of the Act I do not find unlawful Olyarmk's opinion, registered just prior to uttering the foregoing statement, that if the Teamsters were to come in the drivers would not be staying in the best motels and eating the best food or running as many trips because the employees would be regulated on their time by the Union 11 To the extent that record testimony would indicate a lack of knowledge by Respondent's officials as to Allison's union interest and the fact that "all these drivers want to do is go home and rest and talk union." Thus, while Allison's interest in a union was, at this point, limited to occasionally indicating a desire to have a union in the shop, the fact remains that Plant Manager Patterson, Vice President Olyarnik, Shop Foreman Zaberoski, and finally President Lauro himself were all aware of Allison's propensity in this regard and of his more than a passing interest in the need for a union to correct what he considered were less than satisfactory working conditions for the Respondent's truckdnvers.is Finally, although Allison's first overt act toward getting the Union in did not come until the day of his discharge and was prompted by his having lost his early morning run to Connors, the credited and undisputed evidence reveals that the final determination by Lauro in Olyarnik's presence to actually sever Allison from Respondent's employ came at lunch after Allison apprised Olyarnik and Patterson that he had kept his Teamsters card and was going to seek help from the Union. Notwithstanding the absence of any substantial independent 8(a)(1) conduct herein, this fact, when considered along with Vice President Olyarnik's expression that the Union would come in only when Lauro was ready to let it come in, in turn coupled with the very questionable grounds asserted by the Respondent for Allison's discharge, warrants the inference, which I make, that union considerations motivated the Respondent in the decision to terminate Allison from its employ, and that the excessive waiting time reported by Allison was but a pretext.16 Accordingly, I find that the Respondent, in discharging Donald Allison on November 24, 1969, did so discriminatonly and in violation of Section 8(a)(1) and (3) of the Act.17 IV. THE EFFECT UPON COMMERCE OF THE UNFAIR LABOR PRACTICES The activities of the Respondent set forth in section III, above, occurring in connection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY It having been found that the Respondent has engaged in certain unfair labor practices, it is recommended that it cease and desist therefrom and that it take certain affirmative action which is necessary to effectuate the policies of the Act. It having been found that the Respondent discriminatori- desires, it is not credited 16 See Agawam Food Mart Inc, d/b/a The Food Mart, 171 NLRB No 121, where the Board, on facts somewhat parallel to the instant case, recently reversed the Trial Examiner, finding an 8(a)(3) violation with respect to two employees, notwithstanding a total lack of independent 8(a)(1) conduct 17 As the evidence fails to establish that Lauro on November 22 interrogated employees concerning union activity or threatened employees with discharge for supporting the Union , I shall recommend that paragraphs 6(b) and (c) of the complaint be dismissed. MOTOR COILS MFG. CO. 287 ly discharged Donald Allison on November 24, 1969, thereby violating Section 8(a)(1) and (3) of the Act, it is recommended that the Respondent offer the above-named individual immediate and full reinstatement to his former or substantially equivalent position without prejudice to any rights or privileges to which he is entitled, and to make him whole for any loss of earnings he may have suffered as a result of the discrimination against him, by making payment to him of a sum of money equal to the amount he would have earned from the earliest date of the discrimina- tion to the date of the offer of reinstatement, less net earnings during said period to be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289, and shall include the payment of interest at the rate of 6 percent to be computed in the manner set forth by the Board in Isis Plumbing & Heating Co., 138 NLRB 716. In this regard, it is further recommended that the Respondent preserve and, upon request, make available to the Board or its agents for examination and copying, all payroll records and reports, timecards, and all other records necessary to compute the amount of backpay. 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. Motor Coils Manufacturing Company is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. General Teamsters, Chauffeurs, and Helpers Local 249, a/w International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. By discriminating in regard to the hire and tenure of employment of Donald Allison, thereby discouraging membership in and activity on behalf of a labor union, the Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act. 4. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed by Section 7 of the Act, Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. 6. Other than as found, the Respondent has committed no violations of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in this case, it is recommended that Motor Coils Manufacturing Company, its officers, agents, successors, and assigns, shall: 18 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, recommendations, 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, conclusions, and order, and all objections thereto shall be deemed waived for all purposes In the event 1. Cease and desist from: (a) Discouraging membership in, or activity on behalf of, General Teamsters, Chauffeurs, and Helpers Local 249, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization, by discharging or refusing to reinstate any of its employees, or in any like manner discriminating in regard to the hire or tenure of employment, or any term or condition of employment, in violation of Section 8(a)(3) and (1) of the Act. (b) Indicating to employees the futility of supporting the Union in violation of Section 8(a)(1) of the Act. (c) In any manner interfering with, restraining, or coercing its employees in the exercise of their right to self- organization to form, join, or assist General Teamsters, Chauffeurs and Helpers Local 249, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, 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 protection, or to refrain from any and all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a)(3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which will effectuate the policies of the Act: (a) Offer Donald Allison immediate and full reinstate- ment to his former or substantially equivalent position without prejudice to any rights and privileges to which he is entitled, and make him whole in the manner and according to the method set forth above in the section entitled "The Remedy." (b) Notify Donald Allison 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. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records and reports, timecards, and all other records necessary to compute the amount of backpay due under the terms of this Recommended Order. (d) Post in conspicuous places at its Braddock, Pennsyl- vania, plant, including all places where notices to employees are customarily posted, copies of the attached notice marked "Appendix." i8 Copies of said notice, on forms provided by the Regional Director for Region 6, shall, after being duly signed by an authorized representa- tive of the Respondent, be posted by it, as aforesaid, immediately upon receipt thereof and maintained for at least 60 consecutive days thereafter. Reasonable steps shall 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 " 288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD be taken by the Respondent to ensure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 6, in writing, within 20 days from the receipt of Decision, what steps the Respondent has taken to comply herewith.19 IT IS FURTHER RECOMMENDED that paragraphs 6(b) and (c) of the complaint be dismissed. 19 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondent 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 WE WILL NOT indicate to our employees the futility of supporting General Teamsters, Chauffeurs and Helpers Local 249, a/w International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America. WE WILL NOT in any like manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form, join, or assist General Teamsters, Chauffeurs and Helpers Local 249, a/w International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, 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 mutual aid or protection, except to the extent that such right may be affected by an agreement requiring membership in a labor organi- zation as a condition of employment, as authorized in Section 8(a)(3) of the Act, as modified by the Labor- Management Reporting and Disclosure Act of 1959. WE WILL NOT discharge and refuse to reemploy or otherwise discriminate against employees in order to discourage membership in or support of General Teamsters, Chauffeurs and Helpers Local 249, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization, or infringe in any like manner upon the rights guaranteed in Section 7 of the Act. WE WILL offer Donald Allison reinstatement to his former or substantially equivalent position, without prejudice to his seniority and other rights and privileges previously enjoyed, and will make him whole for any loss of pay he may have suffered by reason of our discrimination against him. All our employees are free to become or remain, or to refrain from becoming or remaining, members of General Teamsters, Chauffeurs and Helpers Local 249, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a)(3) of the Act, as modified by the Labor Management Reporting and Disclosure Act of 1959. MOTOR COILS MANUFACTURING COMPANY (Employer) Dated By (Representative) (Title) Note: We will notify the above-named employee 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, 1536 Federal Building, 1000 Liberty Avenue, Pittsburgh, Penn- sylvania 15222, Telephone 412-644-2977.