Tom Wood Pontiac, Inc.

TOM WOOD PONTIAC, INC. Tom Wood Pontiac, Inc. and District 90 of the International Association of Machinists and Aerospace Workers , AFL-CIO. Case 25-CA-3318 November 14, 1969 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND ZAGORIA On July 9, 1969, Trial Examiner Henry L. Jalette 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. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended that these allegations be dismissed. Thereafter, the General Counsel and the Respondent filed exceptions to the Trial Examiner's Decision and supporting briefs. 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 recommendations of the Trial Examiner as modified herein. We find,'contrary to the Trial Examiner, and in agreement with the General Counsel, that the conducting of the opinion survey by Respondent's labor consultant, Robert Laster, was a violation of Section 8(a)(1). The material facts are as follows. About a week after the Respondent entered into a stipulation for certification upon consent election, on approximately November 21, 1968, the Respondent summoned' all its bodymen to a meeting. Eight employees were present and were introduced to Laster. Laster told them that he wanted to take a survey among the employees to learn their gripes or complaints and how Tom Wood could make it a better place to work. Each employee was given a questionnaire containing 33 questions and asked to fill it out, but not to sign it; the employees were also told that the answers would be tallied secretly and that no one would know what each employee said. They were requested to select one of their number to receive the questionnaires and he was to read the 581 answers to Laster who would prepare a tally. James Roberts, the Union leader, was selected, and after the tally, he destroyed the questionnaires. Question 32 asked, "If you were the boss, what would you do to make this a better place to work'?" The Trial Examiner stated that he had no doubt that Respondent's purpose in conducting the opinion survey was to learn of what complaints its employees had which might cause them to want a union. However, he concluded that the mere taking of the opinion survey was not a violation of Section 8(a)(1), because the survey was not only conducted so as to preserve secrecy, but also, the questions were too general in nature to be equated with the solicitation of grievances. We do not agree. Granted that the Respondent was not interested in learning the identity of any employee who might have grievances and that for that reason it sought to preserve 'the secrecy of the survey. That fact, however, is irrelevant. The Respondent's main purpose, as the Trial Examiner found, was to learn what complaints the employees had which might cause them to want a union and that purpose, it would seem, would not depend on Respondent's knowing which employee had which grievance. It was the Respondent's act of questioning that, we find, would naturally lead the employees to believe that Respondent was inviting direct dealing and thus suggesting that union organizing activities were unnecessary. Conduct of that nature, when engaged in, as we find it was here, for the purpose of undermining union organizational efforts, constitutes an infringement of employee rights under Section 7 of the Act.' Nor can we agree with the Trial Examiner that all questions asked of the employees were of such a general nature so as to suggest to employees that the Respondent was directing his questions at some objective other than learning their grievances. The questions concentrated on the employee and his reactions to his job, and question 32 was a direct, if subtle, invitation to disclose what the Respondent could do to satisfy employee grievances. Indeed, Respondent's purpose was made evident when, as the credited testimony shows, at the outset of the meeting Laster conceded that the survey was to learn the employees' gripes or complaints and how Respondent could make it a better place to work, and thereafter stated: "There are some things that we can get corrected now. Some things that are going to take a while to correct, and there are some things that may never be corrected." In these circumstances, there can be no doubt that the conducting of the opinion survey, in a preelection context, constituted a solicitation of grievances and that such solicitation carries with it an implied promise that the grievances will be remedied. Such conduct we conclude violates Section 8(a)(l) of the Act. 'Texaco Inc (Evansville, Indiana Bulk Station) . 178 NLRB No 72 179 NLRB No. 98 582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD THE REMEDY We have found in agreement with the Trial Examiner that the Respondent engaged in conduct violative of Section 8(a)(I) and (3) of the Act and accordingly, we adopt his remedial recommendations in that regard. However, we have found, contrary to the Trial Examiner, that the Respondent has engaged in an additional unfair labor practice in violation of Section 8(a)(1) We therefore order that the Respondent cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact and upon the record as a whole, we make the following. ADDITIONAL CONCLUSION OF LAW By conducting an opinion survey among the employees on or about November 21, 1968, Respondent has engaged in and is engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner, as modified herein, and hereby orders that Respondent, Tom Wood Pontiac, Inc., Indianapolis, Indiana, its officers, agents, successors, and assigns , shall take the action set forth in the Trial Examiner's Recommended Order, as so modified: 1. Add the following paragraph as paragraph 1(e) of the Recommended Order and reletter present paragraph I(e) as paragraph 1(f). "Conducting opinion surveys for the purpose of soliciting grievances and impliedly promising benefits." 2. Add the following sentence after the sixth paragraph in the Appendix attached to the Trial Examiner's Decision WE WILL NOT conduct opinion surveys for the purpose of soliciting grievances and impliedly promising benefits. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Henry L Jalette, Trial Examiner The charge and amended charge were filed by the above-captioned Union on January 22, and February 3, 1969, respectively Pursuant thereto on February 19, 1969, the Regional Director issued a complaint alleging that the above-captioned employer (herein called the Respondent) had engaged in unfair labor practices in violation of Section 8(a)(I) and (3) of the Act On March 17, 19, and 24, 1969, a first, second, and third amendment to complaint were issued The issues presented by the complaint as amended are whether Respondent discharged James A Roberts, James K Louden, and Donald W Caldwell because of their union activities and whether Respondent engaged in certain independent 8(a)(I) conduct i A trial of the issues was held on April 2 and 3, 1969 Upon the entire record, including my observation of the witnesses, and after due consideration of the brief filed by General Counsel, I make the following 2 Findings of Fact I THE BUSINESS OF THE RESPONDENT AND THE LABOR ORGANIZATION INVOLVED Respondent is an Indiana corporation with its principal office and place of business at Indianapolis, Indiana where it is engaged in the sale and service of new and used automobiles at 3120 and 3215 East Washington Street Only the 3120 East Washington Street location is involved herein During the year preceding the issuance of complaint, in the course and conduct of its business operations Respondent sold and distributed products valued in excess of $500,000 and purchased goods and materials valued in excess of $50,000, which were shipped to it directly from states other than the State of Indiana Respondent admits, and I find, that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. The Union is a labor organization within the meaning of Section 2(5) of the Act II THE ALLEGED UNFAIR LABOR PRACTICES A. The Independent 8(a)(1) Conduct 1 Background Union activity among the Respondent's employees began on October 8, 1968,' when Union Representative Charles Deppert met with some 15 of Respondent's employees at a bar near Respondent's place of business Union meetings were thereafter held on October 12, 22, November 6 and 19, and December 4 Sometime prior to October 23, the Union sent a letter to Respondent demanding recognition as the representative of its employees On October 23, the Union filed a petition in Case 25-RC-3919 covering the employees of Respondent at both the 3120 and 3215 East Washington Street locations Another petition was filed on November 14 in Case 25-RC-3934 for the body shop employees at 3120 East Washington Street, and on the same day, the parties entered into a stipulation for election upon consent agreement, pursuant to which an election was held on December 13. Five votes were cast for the Union, 3 against, and there was 1 challenged ballot On December 20, Respondent filed objections to the election The Board issued its certification of the Union on February 18, 1969. At the conclusion of General Counsel's case , I granted a motion to dismiss the 8(a)(I) allegations contained in par 5 (d) and (g) of the complaint, as amended 'General Counsel moved to correct the record by substituting "except to" for "accept" on I 17, p 399, of the transcript The motion is granted 'Unless otherwise indicated, all dates hereinafter refer to 1968 TOM WOOD PONTIAC, INC. 583 The unit certified in RC-3934 is a unit of all body and fender shop employees of the employer at its 3120 East Washington Street, Indianapolis, Indiana, establishment, including body and fender repairmen, partsmen, partsdrivers, washers, janitors and service clerks An election was also held in the unit of employees at 3215 East Washington Street in Case RC-3919 on December 12 The Union lost that election. 2 The conduct of Robert Laster General Counsel alleges that on various dates in late November and early December, Robert Laster, a labor consultant for Respondent, interrogated employees, promised them benefits, solicited employee grievances and promised to adjust them, and warned them they would be discharged if they became members of or supported the Union About a week after the Respondent entered into a stipulation for an election (about November 21), Body Shop Manager Schmaltz called a meeting of all the bodymen in the salesmen's meeting room Eight employees were in attendance, and they were introduced to Robert Laster, who identified himself as a labor relations consultant. Laster told them that he wanted to take a survey among the employees to learn their gripes or complaints and how Tom Wood could make it a better place to work Each employee was given a questionnaire containing 33 questions Twenty-four questions called for yes or no answers, for example- 4. When a betterjob becomes vacant, (-) Yes does the best qualified person get the promotions? 29. Would you advise your friends to come here for a job? (8) No (2) Yes (6) No Seven questions were multiple choice, for example 5. How do your Employee Benetit Plans (-) Better (insurance, vacations, holidays, etc.) (-) About compare with those of your friends the same who work for other companies? (8) Not as good 18. Do you feel that discipline here is (I) Too tough too tough, too lax, or about right? (5) About right (2) Too lax The last two questions were. 32. If you were the boss, what would you do to make this a better place to work? 33. What do you like best about your company? The employees were asked to fill out the questionnaire, but not to sign them, they were told that the answers would be tallied secretly and no one would know what each employee answered. They were requested to select one of their number to receive the questionnaires (employee James Robert was selected) and he was to read the answers to Laster who would prepare a tally. The numbers opposite the questions above represent the tally of the answers received to those questions After the tally, Roberts destroyed the questionnaires According to Roberts, during this meeting Laster stated "There are some things that we can get corrected now Some things that are going to take a while to correct, and there are some things that may never be corrected According to employee Madden, Laster told the employees he was going to try to do some things, that he [Tom Wood] had not owned the business very long, he had not been able to do too much yet, and if the employees gave him some time he would do some things Thereafter, until the election on December 13, Laster was in the shop nearly every day talking to the employees For example, he would stop where Roberts was working and make general remarks, and the conversation would turn to some of the employees' grievances, such as the shop was dirty and the ventilation poor. On some occasions, Roberts would initiate the conversation They discussed such matters as job security, retirement, insurance, and wages, although none of these matters was related to a specific grievance of Roberts Laster asked Roberts what the employees felt they could gain by having union representation Laster said, "Well now, we can take care of these things on our own, we don't have to get involved with the union All you really need to do is give Tom Wood a chance. Tom Wood knows he's made a mistake and is going to try and straighten these matters out But it takes a little time, and you fellas ought to give Tom Wood a chance " Employee Louden testified that Laster would come around to him and say, "How're you doing, Jim? . You got any problems today9 You got any complaints?" Louden described this as "just normal conversation" and if he had anything to say he would and Laster replied, "Well, those are some of the things we're trying to get worked out, . " As examples of specific grievances, Louden mentioned the need for an exhaust fan for ventilation and Laster said they were going to put one in Louden also aired complaints about not getting his share of work and conditions in the shop in general, but he did not testify to Laster's replies On a few occasions, Laster came up and said, "I don't know what you want the union in for After all, the Union's not doing anything for you It's Tom Wood that's going to do all this even if you - no matter if you get the union in, Tom Wood will be doing it all, so why not let him do it now." Employee Madden was also approached by Laster and he described the conversation as starting about the job he would be working on, then lead around to the Union, with Laster saying that the Union could not do any more for the employees than Mr. Wood could On the day of the election Laster came to Louden while he was working and said, "Jim, I know how you are going to vote There's a few others in doubt here, why don't we just, all of us get together and make it a hundred per cent for Tom Wood?" Louden replied that he was busy and had a couple jobs that he had to get out Laster also approached Roberts and told him, "You're a bright young man, you know and we know how this election is going to go, why don't you be the right kind of guy and make it a hundred per cent." Roberts replied that Laster was going to have to wait until 3.30 to find out for sure which way it was going to go Laster told employee Madden, "We about all know how this is going and why don't you make it a hundred 584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD per cent - in the same words - and vote against the Union and make it a hundred per cent " On one occasion, Laster told Madden if the employees got a union, he was pretty sure they would be out on the street by the first of January. The foregoing is based on the undenied and credited testimony of employees Roberts, Louden, and Madden Laster was present at the trial, but he did not testify Several issues are presented by the foregoing, the principal one being General Counsel's contention that the opinion survey "openly solicits employee complaints and the mere taking of the survey could only leave the employees with the impression that the Company was going to try to remedy the matters complained of. This amounts to a clear promise of benefit and where it occurs, as here, in a pre-election context, it is violative of Section 8(a)(I) of the Act " In support of this contention, General Counsel cites Fairchild Camera & Instrument Corporation, 169 NLRB No 11, enforcement denied 404 F.2d 581 (C A 8), and Eagle-Picher Industries, Inc , 171 NLRB No 44 In my opinion, neither of those cases supports such a broad proposition as General Counsel urges herein While the Trial Examiner's Decision in Fairchild contains language appearing to support such a proposition, I am not persuaded that the Board in adopting the Decision was thereby adopting such language In the final analysis, the Trial Examiner predicated her 8(a)(1) finding on a combination of facts, including the adjustment of one grievance (posting of a seniority list) and promises of a paid sick leave plan In Eagle-Picher, the Board agreed with the Trial Examiner's findings that the employer had violated Section 8(a)(1) by initiating a series of "gripe" sessions at which it solicited employees' complaints and promised corrective action In my view, the gravamen of the violation is not the opinion survey in and of itself, but rather, the use of such information in the promising or granting of benefits. Cf Family Bargain Centers, Inc , 160 NLRB 816, 825 I have no doubt in my mind, and the record fully supports a finding, that Respondent's purpose in conducting the opinion survey was to learn of what complaints its employees had which might cause them to want a union However, in this case, unlike the cases cited by General Counsel, the survey was not only conducted so as to preserve secrecy, but also, the questions were too general in nature to be equated with the solicitation of grievances Accordingly, I reject the General Counsel's contention that the mere taking of the opinion survey was a violation of Section 8(a)(1) of the Act. General Counsel contends that even if the survey standing above were lawful the subsequent acts of Laster rendered it unlawful. The subsequent acts referred to are as follows He continually solicited complaints and "artfully" promised correction, all the while telling the employees to let Tom Wood take care of them and to abandon the Union; he threatened employees with discharge; and by telling employees he knew how they were going to vote, he unlawfully created the impression of surveillance As to the last point, I note that despite the fact that the complaint was amended three times, and despite the fact that General Counsel alleged with particularity that on December 13 Supervisor Joseph Wiethoff imposed new work rules, he did not allege any violation of the Act by Laster on December 13 and he did not allege that Laster created the impression of surveillance. Under these circumstances, I do not believe Respondent had notice that General Counsel was contending that Laster violated Section 8(a)(l) by his statements to Roberts, Louden, and Madden on the day of the election, and I do not believe that it can be held that the issue was fully litigated Accordingly, a finding of 8(a)(1) with respect to such conduct is not warranted The alleged threat of discharge consists of the statement of Laster to Madden that if the employees got a union, he was pretty sure they would be out on the streets by the first of January. The statement is ambiguous, and Madden did not give any details of the conversation into which Laster injected this remark. Nevertheless, I cannot conceive of a noncoercive meaning in such a statement, and absent an explanation by Laster, I find that the statement constituted a threat of discharge in violation of Section 8(a)(1) of the Act The principal conduct of Laster which requires consideration consists of his daily visits to the shop and his conversations with employees Roberts, Madden and Louden. A blanket indictment of Laster's conduct suggests much more than is warranted by scanning the testimony of each of the witnesses about what he said Apart from the remark to Madden discussed above, all that Laster told Madden was that the Union would not do anymore for the employees than Mr Wood could. He did not solicit complaints and made no promises Laster asked Louden whether he had any complaints and, upon hearing some, would reply, "Well, those are some of the things we're trying to get worked out" In Roberts' case, the statement was "we can take care of these things on our own, we don't have to get involved with the union " In my judgment, such "inexact and indefinite language" does not constitute an "Operative promise" of benefits Crystal Lake Broom Works, 159 NLRB 423, 437, National Can Corporation, 159 NLRB 647, 659. While there was specific mention of the need for an exhaust fan by Louden and a statement by Laster that one would be put in, I consider that single promise, which was not conditioned on rejection of the Union, insufficient basis to hold that Laster's conversations with employees were unlawful Laster is also alleged to have interrogated employees, but General Counsel has not specified which of his acts constituted interrogations. I find no interrogation on the occasion of the opinion survey, and neither Madden nor Louden testified to any. Laster's conduct in asking Roberts what the employees felt they could gain by having union representation is arguably interrogation under King Chrysler-Plymouth, Inc , 174 NLRB No 80. However, I deem this single instance distinguishable. At the time of Laster's conversations with Roberts, Roberts was a known union adherent having appeared at the R-case conference on behalf of the Union on November 14. In this circumstance, I fail to see how the question could be held to be for the purpose of ascertaining Roberts' union sympathies and desires, rather I find the question rhetorical and designed to initiate a discussion of the pros and cons of union representation. Moreover, Roberts' description of his conversations with Laster do not convey any impression that the conversations were coercive Roberts appears to have viewed the discussions about conditions in the shop as part of a "general course of conversation" Louden, on the other hand, described the discussions as, "Just normal conversation like that " Such testimony affords no basis for an 8(a)(1) finding. In summary, I conclude that with the exception of the threat to Madden the evidence is insufficient to support a TOM WOOD PONTIAC, INC. 585 finding that Respondent violated the Act by the conduct of Laster There is no question that Respondent was campaigning against the Union and attempting to persuade the employees to reject it, Respondent had a right to do this under Section 8(c) of the Act, and I do not believe that the single threat by Laster, an ambiguous threat at that, would warrant a holding that Respondent forfeited that right 3. The conduct of Don Schmaltz On two occasions , Don Schmaltz asked employee Roberts if the employees had had a meeting and how things were going. One morning after a union meeting, Schmaltz asked employee Madden how the meeting came out the night before At the time of these conversations , Schmaltz was body shop manager He later became a rank-and -file employee and Joe Wiethoff became shop manager Schmaltz did not testify The foregoing represents the entire testimony adduced by the General Counsel in support of the complaint allegation that Respondent , by Don Schmaltz , gave its employees the impression that it had engaged in prior surveillance of union meetings The testimony is notably sketchy and lacks all the details which can ordinarily be looked to in evaluating the legality of this type of conduct. Be that as it may , the inquiries are unlawful on their face and if there was an explanation or justification for them, it was incumbent on Respondent to provide it The remarks to Roberts do not convey the impression of surveillance but are rather impermissible inquiries about union meetings, the remark to Madden clearly implies that Respondent had engaged in surveillance . Schmaltz did not use the word Union, but Roberts and Madden both understood his questions to relate to Union; understandably so, since there is no evidence that meetings on other subjects were taking place, and the inquiries were made in the course of an organizational campaign which included union meetings Accordingly , I find that Respondent by the acts of Don Schmaltz , violated Section 8(a)(1) of the Act 4 The conduct of Tom Wood Employee John Madden testified that on January 23, 1969, he quit his job and as he was leaving the shop, he had a conversation with Tom Wood, president of Respondent, during the course of which Wood expressed surprise that Madden was for the Union, and in a discussion that followed, Wood remarked that he would not operate a shop with a union in it. On March 3, 1969, Madden returned to work for Respondent and had another conversation with Wood in which Wood repeated the statement that he would not have a shop with a union Wood did not testify The statements attributed to him by Madden, which I credit, were tantamount to threats of plant closure and were clearly coercive. By such statements, Respondent violated Section 8(a)(1) of the Act as alleged in paragraph 5(h) and (k) of the complaint, as amended 5 The imposition of harsh new work rules by Joseph Wiethoff General Counsel alleges in paragraph 5(e) of the amended complaint that on December 13, Joseph Wiethoff threatened to and did impose harsh new work rules, because Respondent's employees joined or gave assistance and support to the Union. The allegation involving Wiethoff is based on undisputed testimony that on December 13, after the election which the Union won, employee Louden, in the company of employees Caldwell and Madden, asked Wiethoff it they could go home early because they were caught up and had nothing to do Wiethoff replied, "You'll stay here till five o'clock, ring out at five o'clock, ring in at eight, one hour off for lunch You'll take a half an hour off for Thursday night supper period " Louden said, "You're making it pretty rough on us, aren't you, Joe9" And Wiethoff said, "It's going to get a lot rougher than this before it's over " According to Wiethoff, when Louden asked if the employees could leave early on December 13, it was between 3 and 3 30 p m and Louden, Madden and Caldwell all had work in their stalls. Wiethoff viewed the requests as typical of the problem in the shop before he became foreman so he told the employees they would work a full day and as long as there was work in their stalls they would be there to work on it He denied that his statement that it was going to be a lot rougher before it was over was precipitated by the results of the election I do not credit him The first circumstance is the timing of Wiethoffs directive The hours of work he described in his reply to Louden had always been the regular hours of work However, there is uncontradicted testimony by employees that Respondent had always been lax in requiring employees to conform to these working hours, and Joe Wiethoff admitted that when he started work with Respondent as foreman on November I, he found that about half of the employees were either reporting to work late or leaving early. Despite this admission, there is no evidence that he issued any orders or reprimanded anyone prior to December 13 either for tardiness or leaving early. True, Wiethoff described how he talked to Louden and worked him down to reporting for work at 8 15 a m , with a final directive to be there at 8 a.m., however, there is no indication that this transpired before December 13 The situation is similar in the case of Roberts who did not receive a written reprimand about tardiness until December 16, the first work day after the election and after Wiethoff's announcement that the rules would thenceforth be enforced. The second circumstance is the evidence concerning Wiethoff's discussions with Tom Wood and Manager Schmaltz about the changes to be made in the shop After evading giving responsive answers to several questions, Wiethoff admitted that in these discussions the Union had been referred to and that the existence of certain conditions was deemed to be the reason the employees had shown interest in the Union. Accordingly, he had been instructed to improve those conditions as quickly as possible. The conditions which Wiethoff admitted were discussed with reference to the Union were generally the dirty condition of the shop. Although admitting that he also discussed a tightening of hours with Wood and Schmaltz, Wiethoff denied that the Union had any bearing on these discussions I do not credit him. Given the admission that the Union was referred to in discussing 586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD improvements in working conditions, it strains credulity to believe that a change in the enforcement of working hours announced on the heels of the Union's victory was made without reference to that victory Finally, there is the matter of Wiethoffs own words on December 13 Assuming that Louden, Caldwell and Madden did have work to perform (the matter is not entirely clear, Madden admits he had work and states Louden and Caldwell did not, but there is no showing that he knew this to be a fact, Louden claims he did not have any work, but I do not consider his testimony on this point reliable), their request to leave early need not have evoked the reply which Wiethoff admitted making The statement, "It's going to be a lot rougher than this before it's over" had no relevance except as a reflection of Wiethoff's anger at the employees' for selecting the Union as bargaining representative The only difference between his remark and that of the employer in N L R B v Neuhoff Bros Packers, Inc , 398 F 2d 640 (C A 5), is that there was an admission by that employer that he was getting rough because of the Union In this case, the circumstances compel the conclusion that the change in the rules was in retaliation for the employees' selection of the Union in the election and that it was violative of Section 8(a)(1) of the Act ° 6. The institution of new shop rules by Jim Morelock General Counsel alleges in paragraph 5(f) of the amended complaint that foreman Jim Morelock "instituted new shop work rules" in early January 1969, because Respondent's employees joined or gave assistance and support to the Union In support of this allegation, he offered the testimony of employee Roberts that on January 3, 1969, he reported to work 9 minutes late and was met by Foreman Morelock who told him there was no reason for his being late since he lived across the street and he better not be late again. He also told Roberts that he was to keep himself in the front of the shop where his work area was Roberts argued that he was supposed to be learning metal work and he could not do so if he was up in the front of the shop and the metal men were in the back He asked how Morelock proposed that he learn the metal work Morelock replied that was Roberts' problem and stated that he knew that Roberts wanted to run the shop but he was not going to because Wood owned it and ran it Morelock admitted getting on Roberts once about being late, but he was not examined specifically about the remarks attributed to him by Roberts, and they therefore stand undenied Moreover, Morelock's conduct was consistent with his description of the assignment he received upon being hired, i e , to run the shop, in particular, to carry out rules on when to come and to leave Thus, Morelock on this occasion was enforcing a rule that I have found above was adopted not for reasons of effiency but in reprisal against employees because they had voted for the Union However, General Counsel has not explicitly alleged the enforcement of an unlawful rule, as noted, he has alleged that Morelock instituted new shop work rules Nowhere in his brief does General Counsel clarify the form of his pleading, he merely contends of Morelock's conduct that the reprimand was an implementation of an unlawfully adopted rule and that it was discriminatorily issued to Roberts (this latter contention is separately alleged in 'United States Radwav Equipment Company, 172 NLRB No 51 paragraph 6(c) of the complaint, as amended) I have considered the possibility that the allegation of new shop work rules related to Morelock's admonition to Roberts to stay in the front of the shop, or that it related to an incident on January 22, 1969, when Roberts, who had come to the shop to pick up some personal property, was told to get out by Morelock Apart from the fact that General Counsel has not contended these were the new shop work rules intended by his complaint allegations, I conclude that the evidence is insufficient to warrant a finding that either instance described by Roberts constituted the institution of a new shop work rule Despite the form of the pleading, and since the matter of Morelock's conduct vis-a-vis Roberts was fully litigated, I find on the basis of Roberts' undenied testimony, which I credit, that the oral reprimand of January 3 was violative of Section 8(a)(1) because it was the implementation of an unlawfully adopted rule However, despite the animus against Roberts and Morelock's remark that he knew Roberts wanted to run the shop, I find the evidence insufficient to support a finding that the oral reprimand was discriminatory B. The Alleged 8(a)(3) Conduct 1. The discharge of Donald Caldwell Caldwell did not appear to testify at the trial and the merits of his case depend on the testimony of employee John Madden I make no adverse findings because of Caldwell's failure to appear to testify, but advert to the circumstance to explain why the facts surrounding his discharge were not more fully developed To begin with, all that we can glean from the record about Caldwell is that he was a body repairman and a union adherent, and, like all other employees, he was paid on a 50-50 commission basis on customer paid labor It is undisputed that on January 23, 1969, Caldwell refused to do a repair job on a car because, in his opinion, the amount of the labor charge on the repair order was too low As a result, Caldwell was terminated (Respondent contends that by refusing to do the job, Caldwell quit Whether the separation is called a quit or a discharge is immaterial ) According to employee Madden, the labor work on the car in question was worth $250 and Caldwell had told him that the repair order valued it at $140 Madden had not seen the repair order, and although it was identified as an exhibit it was never offered in evidence From the testimony of Madden and Foreman Morelock, however, based on their examination of the repair order at the trial, it is clear that the amount of labor cost on the job in question had been estimated at $260 80, that is, $10 more than Madden estimated the job to be worth General Counsel contends that Caldwell's refusal to do the job in question was used as a pretext to discharge him In support of this contention, he adverts to an admission by Foreman Morelock to a dispute with Caldwell on an earlier occasion over an estimate on another job, intimating that the estimate on that occasion was low and that Caldwell was only saved from discharge then by his acceptance of the estimate and performance of the job Of course; there is no evidence that that estimate was too low, just as there is no evidence that the estimate on the job Caldwell refused to do on January 23 was too low Under these circumstances, and the absence of any probative evidence that employees were free to accept or reject jobs which they felt had been estimated too low, I TOM WOOD PONTIAC, INC. 587 conclude that that is insufficient evidence to warrant a finding that Caldwell was discriminatorily discharged 2 The alleged discrimination against and discharge of James Louden James Louden was employed by Respondent in November 1967, at about the time Respondent took over the business. Louden was an automobile painter with 19 years' experience He worked alone for 5 or 6 weeks and then with a man named Sullivan. Both were paid on a 50-50 commission basis and they worked as a team splitting the commission. Sullivan worked for only about 2 months and was succeeded by another painter who worked about 6 months and was fired. Thereafter, Louden was assisted by a helper whose wages came out of the commissions paid Louden. When Wiethoff was hired as foreman, Louden was working alone, and was behind in the paint work When asked by Wiethoff if he could keep up with the work, he said no Accordingly, a painter named Charles Boyd was hired on November 5 Prior to the time of Boyd's hire, for the period from January to October 30, 1968, Louden had earned $10,290, or an average weekly wage of $233. Thereafter, his and Boyd's earnings were as follows Week_Endin¢ Louden Boyd November 7 354 35 79 45 November 14 268.00 248.27 November20 196.05 218.65 November 27 183.65 108.005 December 5 42.00 278.10 December 12 206.85 282.35 December 19 189,45 239.70 December 26 173.75 450.456 December 31 137.10 130.50 January? 127.10 370.60 Januaryl4 118 55 288.45 1996.85 2704.52 The complaint alleges that from on or about early November 1968, until January 15, 1969, Respondent discriminated against Louden by providing him with less employment than he normally would have received. According to the General Counsel, this discrimination was 'For some unexplained reason, Boyd 's earnings were recorded as of the week ending November 26 instead of 27 as in Louden's case 'For some unexplained reason, Boyd's earnings were recorded as of the week ending December 24 instead of 26 as in Louden's case achieved by Respondent by Wiethoff's assignment of more and more work to Boyd while refusing to assign work to Louden when he needed it I am not persuaded that the evidence is sufficient to support such a finding To begin with, Louden admitted that he was behind in the paint work when Wiethoff became foreman and that he told Wiethoff he could not keep up the work alone Although he testified that it was about the third week after Boyd was hired that he observed that Boyd was getting a disproportionate share of the work, their respective earnings for the month of November do not establish any discrimination Moreover, while it appears that Boyd's earnings exceeded Louden's after November, there are two possible nondiscriminatory reasons for the disparity After Wiethoff became foreman, the practice in obtaining assignments was to ask for one upon completion of a job Almost from the beginning of his employment, Boyd worked at night after regular hours and thus received assignments that Louden might otherwise have received. Louden appeared to be suggesting that as a result of this overtime work there was no work for him when he reported for work in the morning I am not convinced this was the case, but, in any event the dispositive consideration on this point is that admittedly Louden was offered the opportunity to work at night and he refused That Louden's drop of earnings was partly, if not wholly, attributable to Louden's refusal to work at night also appears from his testimony about a conversation with owner Tom Wood on December 9 Louden talked to Wood about his low earnings of the previous week and Wood told him business was down He also suggested that perhaps Louden's mental attitude had something to do with his low earnings Louden replied, in effect, that if his mental attitude was wrong it was due to the disparity between his and Boyd's earnings Louden did not tell Wood that Foreman Wiethoff was discriminating against him in handing out assignments Moreover, in a conversation with Service Manager Law earlier that day Louden had said that the reason he had not received any more work the previous week was that business was down, yet Boyd had worked until 8 and 9 o'clock at night. In the light of this testimony by Louden, it is difficult to hold that the disparity of earnings was attributable to discrimination in assignments. Louden was free to refuse to work at night, just as Boyd was free to work. There is no showing that Boyd's working at night was part of a plan conceived to discriminate against Louden. In the circumstances, Louden cannot complain about a disparity of earnings General Counsel contends that proof of discrimination is to be found in remarks of Wood in his conversation with Louden that he knew how Louden was going to vote in the election and that after the election he would get it all straightened out. He offered to loan money Louden, which Louden could start repaying in 2 or 3 weeks when the election was over. Louden had not asked for a loan, yet when he left Wood he discovered a check for $100 had been prepared for him. The very next week, Respondent deducted $25 from his wages to repay the loan. Louden talked to Wood about it and Wood told him that the Company would wait 2 or 3 weeks before deducting any more The next pay day, the first pay day after the election, Respondent deducted the remaining $75 General Counsel contends that by his remarks that he knew how Louden was going to vote in the election and that "the work assignment would all be straightened out" 588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD after the election Wood clearly implied that the reason for the discriminatory assignment was Louden's union sympathies General Counsel further contends the loan was an inducement to vote against the Union, the early deduction of $25 was a reminder of Respondent's control over wages, and the $75 deduction after the election was a reprisal for continuing to support the Union I do not agree Wood did not state that the "work assignment would all be straightened out," he said "it" would all be straightened out, and I fail to see where "it" could have referred to discriminatory work assignments, because nowhere in his conversation with Wood did Louden claim he was being discriminated against in the distribution of work Nor can I attach the same significance to the loan that General Counsel urges is warranted If his contentions are correct, the loan matter would be a separate unfair labor practice, not merely evidence of discrimination The complaint does not so allege While Respondent may have deducted the loan more quickly than Wood had promised, I note that on the weeks in question Louden had substantial earnings Another point to be considered on this issue is Louden's testimony that he was passed over by Foreman Wiethoff in the assignment of work during regular work hours Louden gave only one instance when he asked for a job and was refused it and Foreman Wiethoff testified the reason he had not given it to Louden was that it was not ready at the time and that when it became ready Louden was not available for the assignment. I credit Wiethoff in this matter I do not consider Louden's testimony sufficiently clear to hold that the job was ready when he asked for an assignment Moreover, it appears to me that had Wiethoff been discriminating against Louden in this matter, Louden would have been able to give other instances rather than to rely on generalities. Finally, the disparity of earnings between Louden and Boyd after December 5 cannot be attributed to discrimination in assignments, because after December 9, Louden became a bodyman and spent only about 20 percent of his time on painting. This change in jobs occurred at Louden's request because he was unhappy with the situation in the paint shop and his low earnings According to General Counsel, however, Respondent had agreed that Louden's assignment as bodyman was temporary to meet a shortage of bodymen, that as soon as they hired more bodymen, Louden was to receive more paint work, and that Respondent hired one bodyman and returned Manager Schmaltz to body work on January 1 without restoring Louden to paint work In my judgment, the testimony in this regard is too general and vague to support a finding of a promise as definite as that suggested by General Counsel, nor does the record establish with sufficient clarity either the date on which a new metal man was employed or the personnel situation existing in the paint shop at the time One thing is clear, Boyd was still there and in my opinion he was the reason Louden left the paint shop, because he received a larger share of the work by working overtime. It is reasonable to assume Boyd was still doing so and that Louden still refused to work at night. For all the foregoing reasons, I conclude that the General Counsel has not established by a preponderance of the evidence that Respondent discriminated against Louden in the giving of work assignments On January 15, 1969, Foreman Jim Morelock told Louden to redo work on the door of a 1967 station wagon Louden had previously worked on. Louden refused to do so unless he was given a repair order which would have entitled him to payment for redoing the work He was fired for so refusing (As in the case of Caldwell, Respondent says Louden quit, as in the case of Caldwell, whether the separation is called a quit or a discharge is immaterial ) Louden admitted that it is customary for the individual who worked on a job to redo it without payment if the customer complains. There is no question the customer in this instance had complained and the evidence establishes that after Louden was terminated Respondent had to pay other employees to redo the work General Counsel's contention is that Louden had never been paid for his work on the door in question, that he had been promised payment by Schmaltz when he was manager and that he had not received payment It is argued that Louden was therefore justified in refusing to do the work unless paid I do not agree The repair of the station wagon was a major job with the labor for body work alone amounting to $307 30, half of which Louden received. There is much testimony about the work estimate and whether it provided for repair of the door No useful purpose would be served by reviewing all the testimony on this point The record is clear, Louden had accepted the entire body repair job on the 1967 station wagon, and had even reworked the door in question once without complaint. Under the circumstances, whether or not the work order specifically provided payment for the door is wholly immaterial It seems obvious to me that a bodyman would not have the option of accepting part of a job and rejecting other parts. This is essentially Respondent's position. Accordingly, since Louden admittedly refused to perform work which employees were customarily required to do, I find the evidence insufficient to support a finding that his termination was attributable to his union activities 3 The discharge of James Roberts In Mead and Mount Construction Co , v N L R B, 411 F 2d 1154, (C.A. 8), the court adverted to the difficulties in determining whether a discharge is violative of the Act The court quoted the following language from N L R B v Bvrds Manufacturing Corporation, 324 F 2d 329. 332-333 These discharge issues are difficult and sensitive when termination coincides with union activity The employee and the Board present plausible cause for continued employment - a good record, superior comparative production, recent change in assignment, lack of individual warning, and the like - and would tie his discharge solely to union sympathy or activity known to the employer Management in turn presents equally plausible cause for the discharge - under-production, production not in line with ability, troublemaking, attitude, undesirable effect on fellow employees, similar contemporaneous discharges of non-union employees, and the like, - and would tie the discharge to time-honored and accepted management-prerogatives wholly unrelated to union activity or sympathy . . The trier of fact must choose between these two Again its decision, although always outrageous to the losing party and hard for it to accept, is, if supported by an adequate evidentiary basis, not to be retried by this court [Emphasis supplied ] Roberts' discharge is one of these difficult cases Roberts was unquestionably the Union leader and he was the Union observer at the election. (In early January, he TOM WOOD PONTIAC, INC. 589 had been appointed chairman of a committee to formulate contract demands, but there is no evidence the Respondent was apprised of the fact.)' Moreover, as will appear below, prior to his discharge he had been reprimanded and warned about the possibility of termination in reprisal by Respondent against its employees because they had selected the Union to represent them, and because of his union activities. I have also found that the warning given him by Foreman Morelock on January 3, 1969 was unlawful In the light of this background treatment of Roberts, and on the basis of the evidence in the record as a whole, I am persuaded that Roberts was discharged because of his union activities and in order to dissipate the Union's majority and its ability to engage in meaningful bargaining James A. Roberts was employed by Respondent in early June, 1968 by then Body Shop Manager Don Schmaltz. At the time he was hired he was told that his primary job would be bumper installation with the promise that he would be trained to do body and fender repair work Training was to occur as time allowed As in the case of the other alleged discriminatees, Roberts was compensated on a commission basis, 50-50 on a customer paid labor On January 15, when Roberts reported to work, his timecard was not in the timerack. He went to the office and spoke to Wiethoff, who was now manager of the shop Wiethoff told Roberts that the type of work Roberts was doing was not making the Company any money and Roberts was not making any money and it was not fair to him Wiethoff told Roberts that he knew Morelock had been riding him pretty hard, but that he had been doing it under his instructions Wiethoff said it was not really fair for Roberts to be working that way since he was not making any money. Roberts suggested then that he was being canned and when Wiethoff said he preferred not to use such a term, Roberts said he would make it easier by stating the situation to be that Wiethoff was relieving him of any further responsibility Wiethoff said yes and Roberts left Although Wiethoff testified about his reasons for discharging Roberts, he did not testify about the termination conversation He stated that bumper repairs are the last thing done on an automobile and the bumpers had to be ready when the car was done The problem was that the Company was getting a backlog of bumpers that were not ready when cars were ready, and this was due to the fact that there were times when Roberts could have been tearing down and building up bumpers and he was not doing it He claimed that he told Roberts that there was a backlog of bumpers, that there was plenty of room for him to work in, and plenty of work and enough time to do it if he stuck with it Wiethoff stated he had to discuss punctuality with Roberts a number of times and that he told him he expected him to be at work at 8 a m. In addition, a number of times Wiethoff walked into the shop to find a number of men gathered together talking with Roberts. It was allegedly for these reasons that Wiethoff prepared a written reprimand on a Supervisor's Personnel Report form and called Roberts into his office on December 16 He told Roberts "We still got a problem and we've got to get it straighten out " He gave the form 'Caldwell and Louden were also union adherents , and Louden was on the committee with Roberts, and although I did not advert to such activities in analyzing their terminations , I considered them to Roberts to read , Roberts read it and they discussed it Wiethoff told him if they couldn't straighten the matter out within the next 30 days they would have to make some other arrangements and possibly terminate him Roberts said he would work at it and try to get the job done . After this talk Roberts ' work improved and he kept busy, but slowly started to slack off again About the middle of January, Wiethoff decided that Roberts was not going to get the work done and he would not beg him to get it done I do not credit him Wiethoff struck me as a very articulate and knowledgeable individual , yet as I have pointed out earlier he was evasive in his responses when I inquired about discussion of the Union in discussions between him and Tom Wood about conditions in the shop Insofar as his testimony about Roberts' discharge is concerned, the singular thing is the total absence of any details of any significance, plus the total absence of any records to support his testimonial assertions The warning and reprimand of December 16 enumerated three grounds - tardiness , productivity , getting in bull sessions during working hours 8 On the issue of tardiness , Wiethoff failed to specify a single date on which Roberts was tardy and that he was warned . Apart from the postelection warning of January 3, Roberts denied being warned except on one occasion as part of a group . Presumably , Roberts ' timecards would have shown whether he had been tardy and how frequently None was produced The question of Roberts ' productivity does not depend for an answer on Wiethoffs generalized testimony about Roberts ' failure to do his work Since Roberts worked on a commission basis, his earnings reflect his productivity. From his date of hire through October 30 , Roberts' average weekly earnings were $110 , and the mean was $105. There is no evidence that his productivity was criticized at any time prior to November 1 During the month of November , the first month during which Wiethoff was foreman, Roberts ' earnings averaged $122 a week His average weekly earnings from the time Wiethoff became foreman through December 12, just prior to the written warning for lack of productivity was $123 In light of these figures , the written warning of December 16 for lack of productivity was clearly unwarranted From the foregoing , including the fact that the reprimand was issued on the first work day after the election and after Wiethoff had unlawfully adopted more stringent work rules , it is clear that the written reprimand of December 16 was unlawfully motivated and that Roberts was singled out for warning because of his union activities, including his acting as Union observer at the election. The General Counsel has not alleged this reprimand as an unfair labor practice , apparently because he credited Roberts ' denial that it had ever been shown to him, a denial which I have not credited . Nevertheless, the issue was fully litigated and I find that the December 16 reprimand was violative of Section 8(a)(1) and (3) of the Act 'Roberts was very vague about receiving a reprimand on December 16 and denied that he had ever been shown the supervisor's personnel report form, or any other written reprimand Wiethoff was corroborated by clerical employee Joyce Brown, who testified that she saw Wiethoff hand a paper to Roberts who took it and held it "like he was looking at it' Brown's demeanor impressed me and I credit her and I credit Wiethoff about the fact of the reprimand This, of course, still leaves for consideration the justification for the reprimand 590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Of course, the fact that the December 16 reprimand was unlawfully motivated does not preclude a finding that in the period following its issuance, Roberts so conducted himself that a finding that his discharge was discriminatorily motivated would not be warranted Westhoff did not advert to any particular instance wherein Roberts was derelict after December 16, stating merely that Roberts started to slack off again, after first improving Yet, Roberts earned only $34 30 for the week ending December 19 and nothing was said to him (Roberts was absent from work at least I day during that period.) The only time he was spoken to was on January 3 when Morelock warned him for being 9 minutes late Foreman Morelock, who had only been employed on January I, testified that during the 2-week period before his discharge Roberts did not carry out his work properly, and was frequently engaged in discussion with other employees instead of working However, he testified that he talked to Roberts only once and that was about getting there on time and getting his work done. Although he thought poorly about Roberts, when Roberts asked him about doing body work, Morelock did not even bother to tell him why he would not give him a try I was not impressed by Morelock's demeanor He appeared to me to be strongly biased, and I do not credit him Rather than persuade me that Roberts was discharged for nondiscriminatory reasons, his testimony, coupled with the evidence previously discussed, convinces me that in discharging Roberts the Respondent was motivated in substantial part by Roberts' union activities and a desire to dissipate the Union's majority Thus, Morelock's testimony reveals that prior to his discharge Roberts had been moved to a smaller work area, although his earnings for the 2 weeks immediately preceding the hiring of Morelock had been comparable to his earnings throughout his employment This move to a smaller work area, on the heels of an unlawful reprimand, the animosity against Roberts explicit in Morelock's undenied comments to Roberts on January 3, and the vagueness of the testimony about Roberts' derelictions, form a combination of factors that convince me that beginning with the December 16 reprimand Respondent decided to discharge Roberts and that, having laid a foundation, it seized on his low earnings for a 2-week period as a pretext to discharge him Roberts was not replaced and, after his discharge, bumper work was assigned to all the bodymen as part of their duties, a job which Roberts had been promised and was never permitted to qualify for The failure to replace Roberts suggests that Roberts' low earnings in the first 2 weeks of January may have been attributable to a decline in the volume of work rather than Roberts' failure to apply himself Noteworthy in this regard is Wiethoff's failure to tell Roberts on January 15 that he was being discharged because he was not producing and that his failure to produce was due to his loafing on the job Under all the foregoing circumstances, I find that Roberts' discharge was discriminatorily motivated and violative of Section 8(a)(1) and (3) of the Act III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section II, above, occurring in connection with its operations described in section 1, 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 thereof IV. THE REMEDY Having found that Respondent violated Section 8(a)(1) and (3) of the Act, I shall recommend that it be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act As I have found that Respondent discriminatorily discharged James Roberts, I shall recommend that it be ordered to offer him immediate and full reinstatement to his former or a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and to make him whole for any loss of earnings he may have suffered by reason of the discrimination against him by payment to him of a sum of money equal to that which he normally would have earned as wages from the date of his discharge to the date of the offer of reinstatement, less net earnings, to which shall be added interest at the rate of 6 percent per annum in accordance with the formula set forth in F W Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co , 138 NLRB 716 In view of the nature of the unfair labor practices committed, and the substantial evidence of Respondent's disregard for the Section 7 rights of its employees, in order to prevent the commission of other unfair labor practices, I shall recommend that Respondent be placed under a broad order to cease and desist from in any manner infringing upon the rights of employees guaranteed in Section 7 of the Act Upon the foregoing findings of fact, and upon the entire record in this case, I make the following- CONCLUSIONS OF LAW 1. Tom Wood Pontiac, Inc is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. District 90 of the International Association of Machinists and Aerospace Workers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act 3 By interrogating its employees about union meetings and creating the impression of surveillance of such meetings, by threats of discharge and plant closure, by imposing more stringent work rules and reprimanding employees in reprisal for union activity, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Sections 8(a)(1) and 2(6) and (7) of the Act. 4. By discharging James Roberts because of his union activities, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Sections 8(a)(1) and (3) and 2(6) and (7) of the Act 5 General Counsel failed to establish by a preponderance of evidence that Respondent violated Section 8(a)(1) and (3) of the Act by discharging James Louden and Donald Caldwell Upon the basis of the foregoing findings of fact, conclusions of law, and the entire record in this case, I hereby issue the following. TOM WOOD PONTIAC, INC. 591 RECOMMENDED ORDER Respondent, Tom Wood Pontiac, Inc , its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Discouraging membership in or activities on behalf of District 90 of the International Association of Machinists and Aerospace Workers, AFL-CIO, or in any other labor organization of its employees, by discharging or otherwise discriminating in regard to the hire or tenure of employment or any terms or conditions of employment of its employees (b) Interrogating its employees concerning union meetings or creating the impression of surveillance of union meetings (c) Threatening employees with discharge or plant closure because of their union activities (d) Imposing more stringent work rules and reprimanding employees where a purpose thereof is to retaliate against its employees for supporting a labor organization or otherwise to restrain or coerce them in the exercise of rights guaranteed to them by Section 7 of the Act (e) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection as guaranteed by Section 7 of the Act, or to refrain from any or all activities 2 Take the following affirmative action designed to effectuate the policies of the Act- (a) Offer James Roberts immediate and full reinstatement to his former or a substantially equivalent position without prejudice to his seniority or other rights or privileges, and make him whole for any loss of pay he may have suffered by reason of the discrimination against him by payment to him of a sum of money equal to the amount he normally would have earned as wages from the date of his discharge to the date of his reinstatement in the manner set forth in the section entitled "The Remedy " (b) Notify the above-mentioned 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 and Universal Military Training and Service Act, as amended, after discharge from the Armed Forces (c) Preserve and, upon request, make available to the Board and its agents for examination and copying, all payroll records, social security records, timecards, personnel records and reports, and all other records relevant and necessary to a determination of the amounts of backpay due under the terms of this Recommended Order (d) Post at its Indianapolis, Indiana, place of business copies of the attached notice marked "Appendix."' Copies of said notice on forms provided by the Regional Director for Region 3, after being duly signed by Respondent, shall be posted by it immediately upon receipt thereof and maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the said Regional Director, in writing, within 20 days from the receipt of this Decision, what steps Respondent has taken to comply herewith.'" As to the allegations of the complaint found not to have constituted violations of the Act, it is recommended that they be dismissed 'In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice if the Board's Order is enforced by a decree of a United States Court of Appeals, the notice will be further amended by the substitution of the words "a Decree of the United States Court of Appeals Enforcing an Order" for the words "a Decision and Order" 'In the event that this Recommended Order is adopted by the Board this provision shall be modified to read "Notify the Regional Director, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that After a trial in which both sides had the opportunity to present their evidence, the National Labor Relations Board has found that we violated the law and has ordered us to post this Notice and to keep our word about what we say in this Notice The Act gives all employees these rights To engage in self-organization To form, join, or help unions To bargain collectively through a representative of their own choosing To act together for collective bargaining or other mutual aid or protection To refrain from any or all of these things WE WILL NOT do anything that interferes with those rights More specifically WE WILL NOT question you about union meetings, nor make statements to you which create the impression we have been watching your union meetings. WE WILL NOT threaten you with discharge, or plant closure because of your union membership, desires, or activities WE WILL NOT impose more stringent work rules or reprimand you because you support a labor organization Since the Board found that we violated the law when we fired James Roberts WE WILL offer him his job back and WE WILL pay him for any loss of pay he may have suffered because we fired him. You are free to become and remain members of District 90 of the International Association of Machinists and Aerospace Workers, AFL-CIO, or any other labor organization, and we won't punish you in any way if you do Dated By TOM WOOD PONTIAC, INC (Employer) (Representative ) (Title) 592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Notify James Roberts 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 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 If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 614 ISTA Center, 150 West Market Street, Indianapolis, Indiana 46204, Telephone 317-633-8921