Mid-Ohio Automotive, Inc.

680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Mid-Ohio Automotive, Inc and Teamsters Umon, it to the Regional Director for his disposition Therefore the Respondents exce tions to recommendations relatin to the representation case are not Local No 413, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America and William p g properly addressed to us DECISION Lee Shotsky Cases 9-CA-6798-1 and 9-CA-6798-2 STATEMENT OF THE CASE December 1, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO On September 7, 1972, Administrative Law Judge Benjamin B Lipton issued the attached Decision in this proceeding Thereafter , Respondent filed excep- tions and a supporting brief Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel The Board has considered the record and the attached Decision in light of the exceptions and brief and has decided to affirm the rulings ,' findings,2 recommendations,3 and conclusions of the Adminis- trative Law Judge and to adopt his recommended Order ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that Respondent Mid-Ohio Automo- tive, Inc, Columbus, Ohio, its officers, agents, successors, and assigns, shall take the action set forth in the said Order i In his Decision the Administrative Law Judge inadvertently stated that the motion to sequester the witnesses was made by counsel for Respondent As Respondent correctly contends the motion to sequester was made by counsel for the General Counsel rather than Respondent 2 The Respondent has excepted to certain credibility findings made by the Administrative Law Judge It is the Board s established policy not to overrule an Admimstrative Law Judge s resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions were incorrect Standard Dry Wall Products Inc 91 NLRB 544 enfd 188 F 2d 363 (C A 3) We have carefully examined the record and find no basis for reversing his findings 3 With respect to Respondent s contention that the Administrative Law Judge erred in directing that the ballots of Shotsky and Smith be opened and counted and in refusing to determine the supervisory status of John Neidigh we note that as the election in Case 9-RC-9405 was conducted pursuant to an Agreement for Consent Election , the Administrative Law Judge properly severed the related representation proceeding and remanded BENJAMIN B LIPTON, Administrative Law Judge A consolidated complaint was issued by General Counsel' alleging that Respondent2 discriminatorily discharged Richard L Smith and William L Shotsky, and further engaged in certain coercive conduct , violating Section 8(a)(3) and (1) of the Act In Case 9-RC-9405, pursuant to an Agreement for Consent Election , a Board election was conducted by the Regional Director on February 25, 1972 3 Of 16 ballots cast in a unit of truckdnvers, warehousemen and order clerks, 8 were for the Union, 5 were against the Union, and 3 were challenged The challenged ballots, sufficient in number to affect the election results, were cast by the alleged discnminatees, Smith and Shotsky, and by John Neidigh, alleged by the Union to be a supervisor On April 18, the Regional Director issued his report on the election with an order consolidating the complaint and representation cases herein for the purpose of a heanng Resolution of the discharge issues involving Smith and Shotsky would determine their employee status and eligibility to vote in the election On May 17, with all parties represented, a hearing was held before me in Columbus, Ohio Upon the entire record in the cases, with due consideration of the briefs filed by General Counsel and Respondent, and from my observa- tion of the demeanor of the witnesses, I make the following FINDINGS OF FACT I JURISDICTION AND LABOR ORGANIZATION Respondent is engaged in the wholesale sale of automo- bile parts at its facility in Columbus , Ohio During the year preceding issuance of the consolidated complaint , Respon- dent had a direct inflow and a direct outflow in interstate commerce, in each instance, valued in excess of $50,000 Respondent admits, and I find, that it is engaged in commerce, and that the Umon is a labor organization, within the meaning of the Act 1 In Case 9-CA-6798- 1 the charge was filed on February 10 and served by registered mail on February 12 1972 In Case 9-CA-6798-2 the filing and service took place on March 2 and March 3 1972 respectively The consolidated complaint issued on March 20 1972 2 The reporter mistakenly indicated in the transcript that Harvey B Rector appeared as an attorney for Respondent 3 All dates hereafter are in 1972 unless otherwise specified 200 NLRB No 105 MID-OHIO AUTOMOTIVE, INC 681 II THE UNFAIR LABOR PRACTICES the plan until this time, and he later spoke to several A Organizational Activity and Background In November, 1971, Richard L Smith generally dis- cussed with other employees the subject of seeking union representation On January 4, Smith spoke with James Woodley, a truckdriver making a delivery to Respondent, who suggested that an organizational effort be made through the Teamsters Union That evening, Smith went to Woodley's home and obtained blank union authorization cards together with certain Teamster "ballots " On January 5, before work and at lunch, Smith distributed the cards and ballots to all 10 of the employees then employed at the warehouse He received back 10 signed cards, which he turned over to Woodley the same day Thereafter, until his discharge on January 15 (treated infra), Smith acted as the leader in the campaign, regularly communicating with the Union and reporting to the employees After January 15, the same role and activities of Smith were assumed by William L Shotsky, until his discharge on February 18 (infra) By letter to Respondent dated January 18, the Union claimed majority representation, requested recogm- tion, and cautioned Respondent not to take "punitive action" against the employees Dated January 21, Respon- dent replied that its "policy" was not to grant recognition without Board certification A petition was filed by the Union on January 20 and, as earlier shown, the election was conducted on February 25 Preceding the election, other acts and conduct of Respondent are raised in issue 4 B Restraint and Coercion 1 Interrogation of Shotsky and Webb Shotsky gave testimony, essentially as follows On or about January 20, he was called over the loudspeaker and reported to the office of Larry Skolnick, vice president and general manager Also present were Louis Levy, president, and Paul McKinney, district manager in charge of personnel Levy said he had just received a letter from the Union and read part of it to Shotsky 5 He asked Shotsky if he was trying to get the Union in Shotsky said, yes Asked why, he replied that the employees were not making enough money Levy remarked, "How do you know we won't give you more money9" Shotsky stated that, when hired (in October 1971), he was promised "good starting salaries plus company benefits," and requested Levy to "explain about that " Levy then indicated that Respondent had a profit-sharing plan, under which Respondent "matched" a percentage of the employee's wages as its contribution into a fund which the employee could draw out after 2 years of employment It was a new plan the Company was going to try out with the warehouse employees Levy showed him a small chart on which it appeared that specific amounts of money were ascribed to the names of certain employees purportedly as accumulat- ed profit-sharing contributions Shotsky had never heard of employees who were similarly unaware of it Skolnick and Levy further questioned Shotsky as to why the employees wanted a union And, finally, Levy stated that Respondent was going to fight to keep the Union out Kenneth Webb has been employed about 4 years with Respondent, presently as a lead man He was called into Levy's office on the loudspeaker With Skolnick present, Levy first inquired, "What's this all about9" Webb was shown the Union's letter seeking recognition, and they asked him why the people wanted a union He answered that most of them wanted money At the time, Webb was a forklift operator McKinney, Levy, and Skolnick testified for Respondent concerning the events above In substance, they averred that Shotsky and Webb were summoned together to the same meeting, that Respondent's purpose stemmed from the "confusion and turmoil in the warehouse", that at the meeting Shotsky voluntarily announced the employees were going to bring in the Union, that this was Respon- dent's first awareness of an organizational campaign, and that upon Shotsky's revelation the meeting was abruptly discontinued Levy stated that he did not receive the Union's letter until January 21, and that therefore it could not have been produced at the meeting Asked to describe the "turmoil," Levy testified that Skolnick told him "work wasn't being done and it seemed like they were having activities going on " Skolnick testified that Shotsky was questioned as to the cause of the "turmoil " Shotsky's reply was that "the guys don't like the working conditions", they "don't understand why Rick Smith was fired", and they "thought they could solve the problem by asking the union to come in " Only these two employees were called to the meeting Chris Mobech, the warehouse manager immedi- ately in charge, and his assistant, John Neidigh, were not consulted regarding the "turmoil " Shotsky and Webb are credited in the essentials of their evidence Levy described the "turmoil" as related to "activities" in the warehouse This vague reference was otherwise not explicated by the three witnesses of Respon- dent 6 Their version of the interview with Shotsky and Webb does not reflect concern with disruption of work on account of the asserted "turmoil " It must be concluded that the "activities" pertained to the organizational drive then being conducted in the warehouse, principally by Shotsky That Respondent summoned Shotsky, and only one other employee, pointedly reinforces the inference, which I draw, that Respondent had knowledge of the union activities, and it decided upon the meeting in question as a tactic to counteract the efforts of its employees Except as to the credibility aspect, it is not critical whether Respondent was then in receipt of the Union's letter 7 I find in fact that it had the letter Shotsky and Webb were separately called, by loudspeak- er, into the locus and presence of high management authority, tending to create an intimidatory atmosphere There they were questioned concerning the reasons that the 4 Respondent s motion was granted to sequester the witnesses 7 The letter dated January 18, was specifically addressed to Jim 5 Identified by Shotsky as the Union s recognition demand dated Parker Respondent s operations manager There is no clear testimony that January 18 it was not received by him or other Respondent s agent, on or before 6 In other respects, as to each of them their testimony impressed me as January 20 Nor is there positive evidence that the meeting took place on evasive and implausible January 20 and not a day or two later 682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees were seeking a union No legitimate purpose was shown to justify such action by Respondent And no assurances were given these employees against reprisal if they revealed incriminating information I find that Respondent was prepared in advance to disclose the existence of the profit-sharing plan, and that the purpose of the disclosure to Shotsky was to dissuade the employees from their adherence to the Union In all these circuiii- stances, I conclude that Respondent, by the foregoing conduct, interrogated Shotsky and Webb in a coercive manner in violation of Section 8(a)(1) 8 2 The no-sohcitation rule Two or three days after the meeting, above, Respondent posted on the bulletin board a "Notice to All Employees " As testified by Shotsky, without contradiction, it stated that the Company was aware that employees were "trying to organize the union," and that anyone caught discussing union activities on company time or property would be discharged immediately The notice was removed following the Board election on February 25 There is no evidence that a rule against solicitation existed before such posting Respondent's witnesses were obscure in their testimony concerning the posting of this notice and its contents, and Respondent did not produce the document, or a copy Warehouse Manager Mobech described the rule as prohibiting union activities on the job during "business hours," i e , "from 8 o'clock on " I find that the posted rule, which was not rescinded, is presumptively invalid in that it broadly restricts union solicitation or activities on company property during nonworking time,9 and that, in any case, the rule is unlawful in view of the clear indication that it was adopted for the discriminatory purpose of defeating the Union's organizing campaign 10 annual basis, is paid by the Company into a trust fund Kohn could not "actually say that every employee has allocated to their account a specific amount " No other evidence was adduced, verbal or documentary, to show that it was mandatory under the plan that contributions by Respondent be made for every employee covered, that any amounts were in fact allocated for the benefit of the employees in the warehouse, or that any of the warehouse or other employees were apprised of the plan prior to January 2011 I am constrained to consider Kohn's presentation as ambiguous and insufficient to refute Shotsky's testimony, or to justify the announcement in the February 18 letter as nothing new In my opinion, the employees could reasonably have believed that Respon- dent's revelation of the profit-sharing and pension plan, on both occasions, was intended to induce their rejection of the Union In latter January or early February, Operations Manager James Parker told Shotsky he is a good worker and will try to get him a raise In his next pay check, Shotsky received a raise of 10 cents an hour A "couple" of other employees were given wage increases at the same time In the circumstances of the earlier events,12 it was incumbent upon Respondent to come forward and show some justification for these increases granted to Shotsky and other employees It failed to do so On February 17, the day before he was discharged, Warehouse Manager Mobech approached Shotsky, then working on the job with employee Johnson Mobech insisted upon talking about the Union He said the Company was going to give the employees "raises and a few more benefits "13 As to each instance described above, I find that Respondent promised and granted benefits to the employ- ees to discourage their support of the Union, and to influence their votes in the Board election 3 Promises and grants of benefits On or about January 20, as earlier found, President Levy informed Shotsky of the existence of a profit-sharing plan On February 18, in a preelection letter to the employees, Respondent stated, inter aha "In the past two years, Mid- Ohio has been contributing 15 percent of each eligible employee's gross pay into a pension plan For example, if you earned $6,500 per year over this 2-year period, you have accumulated $1,950 in this pension plan " (Emphasis supplied) This statement presupposes that not all employ- ees are eligible The pertinent details of the plan, and the qualifications for employees to participate, were not otherwise disclosed at the hearing Respondent established through Richard Kohn, an attorney, that a profit-sharing plan was prepared, was later approved by the Internal Revenue Service, and was placed in operation as of January 9, 1970 The plan contemplates that "up to 15 percent" of an employee's gross compensation, on an 8 E g Blue Flash Express Inc 109 NLRB 591 Action Advertising Co Inc 195 NLRB No 122 9 Walton Manufacturing Company 126 NLRB 697 enfd 289 F 2d 177 (C A 5) Stoddard Quirk Manufacturing Co 138 NLRB 615 (lead cases) 10 The Wm H Block Company 150 NLRB 341, 342-343 11 With the books in its possession the Respondent could readily have proved that warehouse employees were receiving allocations under the plan C Discharge of Smith In September 1970, Smith commenced work for Respon- dent as a warehousemen, in July 1971, he was advanced to order clerk On January 15, he was terminated by Warehouse Manager Mobech, who merely commented that it was an unpleasant task to perform Smith testified that when he asked the reason, Mobech said he did not know, and was just following orders Earlier that day, Mobech had mentioned to him that he was working too slowly At the outset of the hearing, Respondent gave as the ground for Smith's discharge-"gross insubordination " The decision was obstensibly made by Vice President Skolnick and Operations Manager Parker, and conveyed to Mobech to carry out Various reasons were given in the testimony of Skolnick, Parker and Mobech Skolnick stated that, since July 1971, he received some 8 or 10 adverse reports on Smith from Mobech and Parker And if this were the fact it is difficult to conceive that the employees would not have been made aware of it within the 2 years of its existence 12 E g the Union s recognition request the pending election petition, Shotsky s leadership role and the interrogations of Shotsky and Webb on or about January 20 13 Uncontroverted testimony of Shotsky MID-OHIO AUTOMOTIVE, INC 683 At one point he gave as "the chief factors" causing Smith's discharge his "lack of speed and the inaccuracies to some extent " As reported to him, on each occasion that Smith's supervisors attempted to correct him in his work, he would use "abusive language," e g, that he did not have to do this work for this kind of pay On one earlier occasion, Smith threw down his order form in disgust The same behavior of Smith again occurred on January 15 as "the direct incident related to his being fired " Parker testified that, on January 15, Mobech reported to him he had spoken to Smith about speeding up, and Smith said he was not getting paid enough, threw down the delivery schedule, and "used profane language" regarding the money He and Skolnick then decided upon the discharge Mobech testified he had spoken to Smith a "couple of times" about picking up speed in pulling orders The first time was about 30 days before his discharge On January 15, he told Smith "to try to knock out this order " Smith told him, in effect, to get someone else to do it faster for the wages being paid, threw the order book on the floor, and "cussed and swore " He did not say very much to Smith but reported exactly what happened to Parker That day when he terminated Smith, as instructed, Smith said nothing, but grabbed the check and walked off Undisputed testimony by Smith reveals that, on several occasions during his last 3 months of employment, Parker told him he was doing a good job and was the "most valuable man he had " During the week before his discharge, Smith was working as the only order clerk, with Shotsky assisting him They worked overtime one night until 1 a in, following which Parker expressed his apprecia- tion to both of them On January 1, Smith received a raise in pay, instead of the Christmas bonus given to other employees Parker then told him it was a "small token of appreciation from the company" for the work he did There are substantial conflicts in the testimony produced by Respondent Particularly Skolnick and Mobech were prone to exaggerate and to give vague, shifting, and unresponsive answers The view Respondent projected that Smith was an unsatisfactory employee over a long period does not comport with the wage increase and repeated compliments he received He was not cautioned concern- ing these alleged offenses And it appears that Respondent deliberately withheld giving him a reason for the discharge I am unable to accept Respondent's grounds as convincing and credible Smith was the principal organizer among the employees of the union drive actively in progress, com- mencing January 4 He personally solicited all the warehouse employees then employed Parker testified that he heard "rumors" over a substantial period of time of the Union trying to organize the warehouse He also indicated that, on "several occasions," Smith spoke to him about the Union Respondent's union animus has been demonstrat- ed, particularly in the violations earlier found herein Considering all the evidence, Respondent's contention that it was unaware of Smith's union activities is rejected It is my conclusion upon this record that the true reason for Smith's discharge was his leadership activity in the Union and that Respondent therefore violated Section 8(a)(3) of the Act D Discharge of Shotsky In October 1971, he was hired as a general laborer, and sometime after January 15, he was made an order clerk Mobech terminated him on February 18 Shotsky testified, when he asked the reason , Mobech told him only that he was "participating in union activities during working hours 1114 Mobech testified he had previously reprimanded Shotsky for "union activities," and for threatening the employees in the warehouse, naming Bill Jeffers and Steve Wyman Jeffers gave him the information He did not remember when the reprimands occurred possibly in the latter part of 1971 At that time he told Shotsky to do things and they were not done to his satisfaction Parker instructed him to discharge Shotsky because "he was conducting union activities during business hours", he did not do the job he was supposed to do, he had been noticed in other parts of the warehouse "talking to other people he was not supposed to", and he had "threatened employees in the warehouse " A few days before Shotsky was discharged, Jeffers told him that, "With this union thing Shotsky has threatened to fight me or beat or kick me " This was the only time he was directly informed by an employee of a threat by Shotsky He did not talk to Shotsky about this but reported it to Parker He also "heard" that Shotsky had threatened other people in the warehouse , e g , Wyman, about the same time as the Jeffers incident, but he couldn't remember who told him Again, there are major inconsistencies in the versions of Skolnick and Parker Skolnick related that, on the discharge date, he was told by Parker that Shotsky threatened Jeffers, and that Jeffers quit his job on account of it In addition, Shotsky had intimidated other employ- ees Three occasions or incidents, all of a similar vein, were reported to Skolnick by Parker, including that, above, on February 18 The first was less than a month before the discharge Another involved a report from Mobech to Parker, who conveyed it to Skolnick No action was taken on the earlier dates, and he did not undertake to question Shotsky or Jeffers However, he was told by Parker "that he and several others, in a joint meeting, had warned" Shotsky Parker testified that, a week before the discharge, he told Shotsky, in the presence of Mobech, that he was made aware Shotsky had been "threatening and intimidating people, and he would be discharged if it happened again " The actual incident purportedly occurred the day before this warning On February 18, Mobech told him he "had gotten word that Shotsky was threatening and intimidating fellows in the warehouse again " Parker took Mobech's word for it He immediately went to Skolnick and recommended discharge, and then instructed Mobech to carry out the order These two occasions were the only ones that he learned Shotsky was threatening employees 14 Mobech s testimony was constantly shifting and conflicting as to what was said in the terminal discussion Finally in cross examination he stated he told Shotsky he was fired for conducting union activities during business hours later adding he could not swear to it 684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Mobech also advised him that Jeffers "walked off the job for no reason at all " Further testimony was adduced for Respondent from William Goldberg, an order picker at the time of the incident, and presently operations manager One or two weeks before February 18, he overheard Shotsky telling Jeffers, "if he wasn't for the union that they would go outside and get it settled because he wouldn't be here after the union was in " He promptly informed Skolnick and Mobech of this conversation Jeffers left the week before Shotsky was terminated Steve Wyman was also called concerning a discussion he had with Shotsky, but he didn't tell anyone from the Company about it Shotsky testified as to the following incident Jeffers was in a corner conversing with Parker He later asked Jeffers whether Parker was talking to him about the Union Jeffers replied affirmatively, but refused to reveal what was discussed Shotsky then said, "If you don't tell me I am going to take you outside and beat the shit out of you " After this occurrence, Shotsky never spoke to Jeffers, avoided him, and made no further threats 15 A week after the argument with Jeffers, he was complimented by Parker and given a pay increase, as previously indicated The essential question presented is whether Respondent discharged Shotsky for reasons, in whole or substantial part, which bear upon his union activities On the material facts, I am ultimately disposed to credit Shotsky Respon- dent's evidence is substantially lacking in probity, consist- ency, and plausibility I find there was only one incident involving an alleged threat to Jeffers, which occurred 2 weeks or more before Shotsky's discharge No action was then taken Thereafter, he was complimented and received a wage increase In my opinion, the other grounds variously enumerated by Respondent's witnesses were dredged up as afterthoughts in justification of the dis- charge The closest to reality was the assertion that Shotsky was conducting union activities during business hours Respondent was undoubtedly conscious of the union campaign under way, one week before the election, and of Shotsky's leading role therein Indeed, he had previously singled out Shotsky for the purpose of unlawful interroga- tion Respondent's motive to engage in discrimination is substantially present in the record The evidence warrants the finding that Shotsky was discharged to eliminate him as a factor and to discourage union support in the preelection period A further basis for the same conclusion follows from Respondent's admitted ground that he was discharged for conducting union activities "during business hours " Thus, Respondent is relying upon the invalid no- solicitation rule, supra 16 There was no attempt by Respondent to show that Shotsky's activities took place on working time Shotsky gave credible testimony to the contrary Thus, he was engaged in a protected right under Section 717 Accordingly, I find that, by discharging Shotsky, Respondent violated Section 8(a)(3) and, inde- pendently, Section 8(a)(1) of the Act 15 Jeffers was not called to testify 16 E g Heritage House of Connecticut Inc etc 192 NLRB No 158 17 See S E Nichols of Ohio Inc 195 NLRB No 172 18 N L R B v Express Publishing Co 312 U S 426, N L R B v Entwistle E The Representation Case As Smith and Shotsky were unlawfully discharged employees, they were eligible to vote in the election It is therefore recommended that their challenges be overruled, their ballots be opened and counted, and the Regional Director issue the appropriate certification of the election results It is unnecessary, in my opinion, to pass upon the challenge involving John Neidigh , an alleged supervisor III THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent, set forth in section II, above, occurring in connection with its operations de- scribed 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 IV THE REMEDY Having found that Respondent has engaged in certain unfair labor practices , I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act A broad cease-and-desist order is warranted, in view of the discriminatory discharges and other violations 18 It has been found that Respondent unlawfully terminat- ed Richard L Smith and William L Shotsky, respectively, on January 15 and February 18, 1972 It will therefore be recommended that Respondent offer these employees immediate and full reinstatement to their former positions, or if such positions no longer exist, to substantially equivalent positions, without prejudice to any seniority or other rights and privileges they previously enjoyed, and make them whole for any loss of pay suffered as a result of its discrimination against them, by payment to them of a sum of money equal to that which they normally would have earned, absent the discrimination , with backpay and interest computed under the established standards of the Board 19 It will be further recommended that the Respon- dent preserve and make available to the Board, upon request, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary and useful to determine the amounts of backpay and the rights of reinstatement under the terms of these recommendations Upon the foregoing findings of fact, and upon the entire record in the cases, I make the following CONCLUSIONS OF LAW 1 Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act 2 The Union is a labor organization within the meaning of Section 2(5) of the Act 3 By terminating Richard L Smith and William L Mfg Co 120 F 2d 532 (C A 4) 19 F W Woolworth Company 90 NLRB 289 Isis Plumbing & Heating Co 138 NLRB 716 MID-OHIO AUTOMOTIVE, INC 685 Shotsky, thereby discouraging membership in the Union, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act 4 By the foregoing, and by other acts and conduct interfering with, restraining, and coercing employees in the exercise of their rights guaranteed in 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 affecting commerce within the meaning of Section 2(6) and (7) of the Act 6 Richard L Smith and William L Shotsky were eligible to vote in the Board election on February 15, 1972, and the challenges to their ballots are overruled Upon the above findings of fact, conclusions of law, and the entire record in the cases, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended 20 ORDER Respondent, Mid-Ohio Automotive, Inc, of Columbus, Ohio, its officers, agents, successors, and assigns, shall 1 Cease and desist from (a) Coercively interrogating employees concerning their union activities and those of their fellow employees, or coercively announcing, promising, or granting employees wage increases, a new profit-sharing and pension plan, or other benefits to discourage their union activities, or to influence their votes in a Board election (b) Promoting, maintaining, or enforcing a rule which prohibits employees from engaging in union solicitation or activities during their nonworking time (c) Discouraging membership in Teamsters Union, Local No 413, Affiliated With The International Brotherhood Of Teamsters, Chauffeurs, Warehousemen And Helpers Of America, or any other labor organization, or in any other manner discriminating in regard to hire or tenure of employment or any term or condition of employment (d) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights guaran- teed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement in conformity with Section 8(a)(3) of the Act, as amended 2 Take the following affirmative action designed to effectuate the policies of the Act (a) Offer Richard L Smith and William L Shotsky immediate and full reinstatement to their former positions, or if those positions no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights or privileges, and make them whole for any loss of earnings, in the manner set forth in "The Remedy" section of the Decision of the Administrative Law Judge (b) Notify Richard L Smith and William L Shotsky, if presently serving in the Armed Forces of the United States, of their right to reinstatement upon application, in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces (c) Preserve and make available to the Board or its agents all payroll and other records, as set forth in section entitled "The Remedy" of the Decision of the Administra- tive Law Judge (d) Post at its Columbus, Ohio, plant and facilities, copies of the attached notice marked "Appendix"21 Copies of said notice, on forms provided by the Regional Director for Region 9, shall, after being duly signed by Respondent, be posted immediately upon receipt thereof in conspicuous places, and be maintained for a period of 60 consecutive days Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material (e) Notify the Regional Director for Region 9, in writing, within 20 days from the date of this Decision, what steps Respondent has taken to comply herewith 22 Further, it is ordered that Case 9-RC-9405 be severed from this proceeding and remanded to the Regional Director for his disposition 20 In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board the findings, conclusions and recommended Order herein shall, as provided in Sec 102 48 of the Rules and Regulations be adopted by the Board and become its findings, conclusions and Order and all objections thereto shall be deemed waived for all purposes 21 In the event that the Board s Order is enforced by a Judgment of a United States Court of Appeals the words in the notice reading Posted by Order of the National Labor Relations Board shall read Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board 22 In the event that this recommended Order is adopted by the Board after exceptions have been filed, this provision shall be modified to read Notify the Regional Director for Region 9 in writing, within 20 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 REL&TIONS BOARD An Agency of the United States Government After a trial at 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 we intend to carry out the order of the Board, and abide by the following WE WILL NOT ask you anything about your union activities or those of your fellow employees in a manner which would coerce you regarding your rights under the Act WE WILL NOT announce, offer, promise, or grant you wage increases, a new profit sharing and pension plan, or other benefits, to keep you from joining or supporting a Union, or to influence you regarding your votes in a Board election WE WILL NOT issue, maintain, or enforce any rule which prohibits employees from engaging in union solicitation or activities during their nonworking time WE WILL NOT discourage membership in Teamsters Union, Local No 413, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organiza- tion, by discharging employees, or in any other manner discriminating in regard to their employment or any term or condition of employment WE WILL NOT in any other manner interfere with, 686 DECISIONS OF NATIONAL restrain, or coerce you in the exercise of the rights guaranteed employees in the National Labor Relations Act, which are as follows To engage in self organization To form, join or help unions To bargain collectively through a representa- tive of their own choosing To act together for collective bargaining or other mutual aid or protection To refuse to do any or all of these things Since it has been found that we unlawfully dis- charged Richard L Smith and William L Shotsky, WE WILL offer to give them back their regular jobs, or if those jobs no longer exist, we will give them substan- tially equivalent jobs, and WE WILL pay the above- named employees for the earnings they lost because of the discrimination against them, plus 6-percent interest WE WILL notify Richard L Smith and William L Shotsky, if presently serving in the Armed Forces of the United States, of their rights to reinstatement upon LABOR RELATIONS BOARD application, in accordance with the Selective Service and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces MID-OHIO AuTOMOTIvE, INC (Employer) Dated By (Representative) (Title) 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 concern- ing this notice or compliance with its provisions may be directed to the Board's Office, Federal Office Building, Room 2407, 550 Main Street, Cincinnati, Ohio 45202, Telephone 513-684-3686