International Harvester Co.

466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD International Harvester Company and International Brotherhood of Firemen & Oilers, AFL-CIO, Local 1205. Case 10-CA-9530 March 19, 1973 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO On November 16, 1972, Administrative Law Judge Jennie M. Sarrica issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief, and General Counsel filed cross-exceptions 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 briefs and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt her 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 of the recom- mended Order of the Administrative Law Judge and hereby orders that the Respondent, International Harvester Company, Albany, Georgia, its officers, agents, successors, and assigns, shall take the action act forth in the Administrative Law Judge's recom- mended Order. DECISION JENNIE M. SARIUCA, Administrative Law Judge: Upon due notice, this proceeding under Section 10(b) of the National Labor Relations Act, as amended (29 U.S.C. 151, et seq.), hereinafter referred to as the "Act," was tried before me at Albany, Georgia, on June 27, 1972, pursuant to a charge filed April 12, 1972, a complaint issued May 25, 1972, presenting allegations that the Respondent , Interna- tional Harvester Company, committed unfair labor prac- tices within the meaning of Sections 8(a)(1) and (3) and 2(6) and (7) of the Act, and Respondent's answer denying those allegations. Present and participating in the hearing were representatives of the Respondent and the General Counsel. The Charging Party did not enter an appearance. Based on the entire record, including my observation of witnesses and the after due consideration of briefs, I make the following: FINDINGS OF FACT AND CONCLUSIONS OF LAW I. JURISDICTION Respondent, a Delaware corporation, at its Albany, Georgia, location is engaged in both retail and nonretail sales and servicing of farm and industrial equipment. During the year preceding issuance of the complaint, a representative period, Respondent caused to be shipped to this facility, from sources located outside the State of Georgia, products valued in excess of $50,000. Respondent admits, and I conclude, that it is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. Respondent pleads no knowledge as to the status of the Charging Party as a labor organization.' The president of Local 1205, International Brotherhood of Firemen & Oilers, AFL-CIO, testified as to the nature, purpose, and function of the Charging Party, hereinafter referred to as the Union. I conclude that the Union is a labor organiza- tion within the meaning of Section 2(5) of the Act. II. THE UNFAIR LABOR PRACTICES ' We do not pass upon the General Counsel's contention that Respondent also violated Sec. 8(aX3) of the Act since such an additional finding would not affect the remedy. 2 The Resppndent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to, credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions were incorrect . Standard Dry Waif Products, Inc., 91 NLRB 544, enfd. 188 F.2d 362 (C.A. 3). We have carefully examined the record and find no basis for reversing her findings. We also note and correct the following minor errors which in no way affect the results in this case . The Administrative Law Judge in that section of her Decision entitled "Interrogation and Threats" inadvertently referred to mid-December, rather than January, as the time when the employees began expressing an interest in union representation and in that section of her Decision entitled "Discharge of Sims" inadvertently omitted any reference to the Respondent's statement to Sims when he was rehired that he would have to control his temper. A. The Issues It is alleged in the complaint that Respondent violated Section 8(a)(1) of the Act when its supervisor , Aubrey Jones, interrogated its employees concerning their union membership, activities, and desires ; threatened that Re- spondent would close its store if employees were successful in their organizing campaign ; and threatened employees with discharge if they joined a union or engaged in union activities. It is further alleged that Respondent discrimina- ' Respondent also denied that the Charging Party "acts or claims to act" as representative of the employees here involved. To the extent it is intended as a challenge to the validity of the charges, the denial is rejected as without merit. 202 NLRB No. 67 INTERNATIONAL HARVESTER CO. 467 torily discharged, and failed and refused to reinstate, employee Clarence Sims in violation of Section 8(a)(3) and (1) of the Act. Respondent asserts that Sims' discharge was for cause rather than for his union views or activity, and that no other violation occurred because, even if the alleged statements were made by Jones, he is not a supervisor within the meaning of the Act, nor was he acting as a "real or ostensible `agent' on behalf of the Company in making such statements." B. The Supervisory Status of Aubrey Jones McKay L. Pettus, Jr., manager of Respondent's Albany, Georgia, facility, testified that Aubrey Jones is classified as the leadman mechanic at this location. In describing Jones' day-to-day functions, Pettus stated: He assigns work, supervises people, make sure that the work is performed and all the various things .. . that are peculiar to a leadman mechanic or service foreman except [certain managerial functions of the latter ].2 The method of hiring for this facility was described by Pettus as follows: "We" decide that additional help is needed; a newspaper ad directs applicants to contract Jones; Jones takes the application, conducts the employ- ment interview relating to qualifications and experience, and then takes the application, and sometimes the applicant, to the manager's office where, after review, .. . a decision is made. . . . This is how we hire a man. So . . . as I see it I actually hire the man after the leg-work is done by Mr. Jones... . I make the final decision, both that we do put him on and the salary he is to receive when he is put on the payroll. Jones testified that when he "hired someone . . . it never even dawned on me that I was asking . . . permission." Jones could not recall an instance wherein Pettus did not follow his recommendation. With respect to employee discharges Pettus testified that in the period since May 18, 1971, when he came to the Albany, Georgia, facility, there have been three such instances. One employee, Jimmy Bonham, was discharged "in my office . . . Mr. Jones told him that we no longer needed his services. .. ." Pettus indicated that the reason this employee came to his office was to verify the discharge .3 The second discharge was by Jones in the absence of Pettus; it involved a truckdriver caught drinking on the job. Discharge was immediate, but the employee waited for the manager's return to his office seeking permission to go home, recover, and return to work. This request was denied. The third discharge is the 2 Reviewing the official job descriptions for store service supervisor (service foreman), designated as a salaried position , and leadman mechanic, described as hourly rated, Pettus testified that there was a substantial overlap in the duties assigned these two occupational classifications. He explained that the service foreman position has never been filled and that, while Jones does not actually hold this classification , he performs all the duties outlined in the job description except those relating to collection of moneys, reviewing operating costs, new business promotion, and keeping subject of the instant proceeding. In this respect, Pettus stated that, on Thursday preceding the discharge, Jones reported "another temper outburst" by Sims, and Pettus asked Jones: what he thought we should do. . . . On Friday morning Jones reported that Sims' condition was unchanged and that he didn't see any recourse except to let the man go. I told Aubrey (Jones) that if that is what we need to do, did he want me to do it now. He said, "No, let him finish the job he is on and we'll do it this evening. . . . I asked Aubrey if he wanted me to tell him. He said "No, I will tell him." So he did... . Jones testified he had mentioned Sims' agitated disposi- tion to Pettus on Thursday, but no decision was made and that Friday around midmorning, when Sims' temper problem continued, Jones again brought this to the attention of Mr. Pettus: ... and told him we needed to do something about it. Then he asked me-well, I think something was brought up, I don't know if it was he or I that brought up the subject of discharge. I think it was myself. I think it was, and he asked me when, and I told him to let him finish working out the day. . . . At the time of the discharge of Mr. Sims, I called him into the shop office.... I told him that if he wouldn't give us a resignation that he was fired, that he didn't have a job anymore. He said he would not accept this, that he would talk with Mickey [Pettus]. . . . Monday morn- ing and see what he had say about it. And I said, "Well, okay.11 Phillip E. Ricks, an employee in the Albany, Georgia, shop of Respondent during the period relevant herein, testified that while he was so employed Jones was known to him as the service manager and his supervisor. It was his observation that Jones assigned work and hired and fired people. He had seen Jones and Jimmy Bonham late on a Friday through the plate glass construction of the office talking alone for 15 to 20 minutes, whereupon Bonham came directly to him and said, "Aubrey just fired me." That Jones has not been assigned the job title of store service supervisor (service foreman) officially is of no consequence in determining his supervisory status under the Act .4 That determination must rest on the function actually performed and the authority actually possessed by Jones. Although Manager Pettus claimed for himself the "final decision" in the hire of new applicants, it is clear from his testimony and that of Jones' that this final decision rests heavily upon the evaluation and recommen- dation of Jones. The extent to which Pettus relies on Jones' judgment and recommendation in matters affecting shop employment tenure is further demonstrated in Pettus' testimony concerning the various discharges. Admittedly, Pettus even deferred to Jones' judgment on who should informed on management policies. 3 Pettus later indicated that this employee was discharged because his production was below standard two-thirds of the time. Pettus and Jones had discussed the record of individual employees each month, and they had done so that morning at which time he observed "we are going to have to let Jimmy go." 4 Nor is it controlling that Sims did not perform the particular managerial functions identified in the official job description. 468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD carry out the discharge agreed on and when this should be effectuated. On the basis of the foregoing , I find that Jones not only responsibly directs the work of the shop mechanics, but also posesses and exercises authority to hire and fire employees or, at the very least, to effectively recommend such action. Accordingly , I conclude that Aubrey Jones is a supervisor within the meaning of Section 2(11) of the Act. C. Interrogation and Threats Expressions of interest in union representation by employees at the Albany, Georgia, facility occurred in mid-December 1971, after the Respondent instituted a new insurance plan and held a meeting with employees to explain the coverage. At that meeting, several employees raised questions concerning the comparative benefits of the old and new plans and one employee, Clarence Sims, also raised the question of the low pay of shop employees which elicited irritated responses from Mr. Pettus who rejected such discussion as out of order. Following this event the six mechanics who worked in and out of the shop began exchanging views concerning the merits of and need for union representation. Former employee Ricks credibly testified that because employees were dissatisfied with their pay scale, as well as with their changed insurance benefits, such discussions took place on a frequency of about every other day. Aubrey Jones had a glass-enclosed air-conditioned office in the shop. Mechanics frequently congregated there at lunchtime to eat, relax, and converse. From time to time, discussions involved organizing and obtaining representa- tion. On one such occasion, around the first week of January 1972, with Jones and four mechanics present, the discussion involved the "pros and cons of union and insurance." Credible testimony of Ricks and Sims estab- lishes that Sims asserted that had there been a union in the shop the employees' "insurance would not have been cancelled and a lesser plan substituted," and that if the employees "were going to get any better insurance [they] would have to have a union organize the whole shop." In response to this, Jones commented "if we wanted a union that was us-he wouldn't vote for it . . . that Mr. Pettus had told him that if a union ever came there the . . . Company would just close the doors." On the day following the above noontime discussion, Sims had occasion to go to the office to review a job ticket with Jones. When the business at hand was completed, Jones said: Sims . . . you have been talking too much about the union around the men in the shop. Mickey [Pettus] has already got on to me about you talking with them. He said he is going to have to let you go. I've already talked to him and got him to change his mind... . Sims, I am going to warn you now . . . not to talk about [the union], just slack off and not say anything about it. Sims promised he would do this. During the last week of January 1972, Ricks rode with Jones to a bank during their lunch hour. On the way, Jones asked him how he felt about a union. Ricks replied he believed it would be good if the employees could get organized. Jones told Ricks that if he was in favor of a union not to let Pettus know because Pettus knew Sims was in favor of a union and had wanted to get rid of Sims then, but that he (Jones) had talked Pettus out of this. Jones testified he "thought" he had expressed to Sims his personal dislike of unions but denied he stated or even knew the Respondent's policy regarding unions. Jones admitted hearing Sims say that, if they had a union, employees would have better insurance benefits and higher salaries and it would be a better store. But he denied ever telling Sims or any employee that if they joined a union or engaged in union activities they would be discharged. He also denied saying to anyone that Mr. Pettus knew of their union activities and to be on guard. Rather, he asserted that Mr. Pettus never talked to him about the Union. Jones gave testimony revealing a far from perfect recollection of past events. Indeed, during cross-examina- tion concerning the contents of his pretrial affidavit, he pointed out that his memory is faulty and that he could not remember something he had just read. On the other hand, Ricks, who is no longer employed by Respondent and who has no personal interest in the outcome of this case, impressed me as a forthright and credible witness. Although Sims could benefit in this case, his candid recital of details and his overall narrative of events impressed me as truthful. Moreover, his testimony is corroborated by or consistent with that of Ricks. In these circumstances, I credit Sims and Ricks over Jones and conclude that Respondent violated Section 8(a)(1) of the Act: (1) when Jones related to employees Pettus' threat to close the doors if a union came in; (2) when Jones told Sims to "slack off" his union advocacy because Pettus was displeased and warned Sims that Pettus wanted to fire him for engaging in such activity; (3) when Jones interrogated Ricks concern- ing his union views; and (4) when Jones told Ricks to maintain secrecy if he favored a union or he would endanger his job in view of Pettus' reaction to Sims' union interest and advocacy. D. The Discharge of Sims As indicated above, Respondent sells, services, and repairs farm and industrial equipment. The service and repair shop employs six mechanics under the supervision of Jones. These mechanics perform repairs of both types of equipment in the shop and on location, and unload and service new equipment. Clarence Sims was employed by Respondent as a mechanic from May 25, 1970, until his discharge. Sims was a very good mechanic, a good worker, and a dependable employee. He was also a very nervous person given to quick reactions to irritating situations that were frequently expressed in colorful language and dramatic action. There is no question but that this took the form of exhibiting a temper, cursing equipment, occasionally giving it a kick and, on more than one occasion, quitting his job. Indeed, the latter had occurred once while he was employed by Respondent. In June 1971, Sims quit in anger but "cooled off" in a day or two and was permitted to resume his job; the processing of his "quit papers" was stopped, and he was told he would have to control his temper. Thereafter, INTERNATIONAL HARVESTER CO. both his supervisor and the manager assisted him in his effort to overcome his extreme reactions by making comments such as "let's take it easy" or "let's control it," and by suggesting he take a cigarette break away from the equipment, then come back and try again. Except for the time he quit, when delayed sick leave pay-a departure from previous procedure-upset him, all agree that Sims' irritation related generally to difficulties encountered on the job in getting equipment apart or back together and in not having available appropriate parts and tools needed to perform his tasks. Sims always refrained from directing his expressions of aggravation toward any individual while he worked with Respondent. It also appears that in late 1971 or early 1972 Sims sought medical help and was put on tranquilizer medication, a fact which was known to his supervisor. Ricks testified that from that time Sims had shown a clearly observable improvement in temperament. Following the mid-December 1971 insurance meeting, Sims was particularly vocal in his criticism of the new employee insurance policy and the mechanics' wage scale, and in advancing arguments for his belief that only union representation would cure these ills.5 Since many of the discussions among employees about seeking union repre- sentation took place in Jones' office while Jones was present and in which on at least one occasion he participated, it is clear that Jones was aware of Sims' advocacy of employee representation and concerted activity from the beginning, albeit no specific union was then involved.6 I find that this knowledge is attributable to Respondent.7 At the end of the workday on Friday, March 17, 1972, Jones called Sims into his office and sought to obtain the latter's resignation. When this was refused, Sims was discharged .8 The versions of the discharge interviews given by Jones and Pettus do not differ significantly from that given by Sims, who testified that on Friday, March 17, Jones told him he was being discharged because the men in the shop were complaining that he was getting on their nerves by his "griping all the time" about having no tools 5 Sims testified that around the last of February or first of March 1972, he contacted a representative of the Charging Party inquiring whether the Union "would take [the shop employees] as they had a majority but were a small group" and was told he would be advised in about 2 weeks. Ricks and Sims met Union Representative Webb on Friday evening, March 17, 1972, signed cards, then took cards to the homes of other employees and obtained signatures. However, these were the wrong cards, so signatures were obtained on the correct cards on Sunday. No organizing or card solicitation on behalf of any patlicular union occurred prior to the evening of March 17, and no demand for recognition or claim of majority was presented to Respondent up to the date of the hearing. 6 Jones denied knowledge of any formal organizing drive for any particular union . Jones testified that "[t ]he only activities by unions that I knew had been brought up in the manner of speaking,'If we had a union, it would be a better store to work in and you would have higher salaries and there would be better benefits,' and that was the only, but this was brought up at different times." I Around the first week of March 1972, Sims, who had just received some medical service, stated to other employees that if the Respondent had not canceled the employees ' "good insurance" it would have paid for his Xrays. Pettus, who was standing about 15 feet away, commented, "Unions were all right when we had slave labor, but we don't have that anymore." This incident strongly suggests that Pettus had knowledge of Sims' interest in union representation for the shop employees and knew that the changed insurance plan was a key discontent associated with such concerted interest and activity. 6 Sims was not permitted to work after March 17, 1972. The termination 469 or parts, and that on Monday, March 20, Pettus told him "we terminated you Sunday night-Midnight" because "you have been aggravating men in the shop . . . by complaints." The reason for discharge stated on the official records of Respondent was "insubordination." Respondent admits, however, that no insubordination was involved explaining that none of the specific reasons listed on the official coded form adequately described the real reason and that although the form provided for "other" with space in which to specify the true reason, insubordination was used simply as a convenient checkmark. Manager Pettus testified that Sims was discharged "upon personal observations and the `say-so' of Mr. Aubrey Jones" because of Sims' "attitude and actions"-more specifically, his "violent temper and inability to get along with other employees." Jones testified he suggested discharge at midmorning Friday because Sims had engaged in temper displays on Thursday afternoon and Friday morning. Both agreed that crucial in Sims' discharge was an alleged request by employee England not to be assigned to work with Sims anymore because of his cursing and temper. Jones also listed as part of the discharge reason other incidents involving displays of temper in the presence of customers,9 and other "public outbursts" in which Sims expressed views that displeased Jones. An instance of the latter was Sims' conduct at the December insurance meeting when Sims brought up to management officials the subject of mechanics wages.lo In its brief, Respondent gives the discharge reason as "continuous and uncontrolled displays of temper, disrupt- ing the shop, and impaired customer relations." With respect to the events immediately preceding the discharge, Jones testified that late Thursday afternoon, Sims and England were outside the shop dismanteling for replacement a particular piece of equipment, and that Sims who was using a forklift in this operation, was abusing the equipment and using foul language which caused Jones to bring this to the attention of Mr. Pettus, but that date is variously listed as March 17, 19, and 20. As union majority status is not in issue, acceptance of the March 17 date is adequate for this proceeding without resolving conflicting contentions as to the actual date of discharge. 9 Examples of conduct before customers included an instance in June 1971 before Sims quit in which Sims told a customer he had no experience in repairing the particular equipment and did not know what was wrong with it or why he was assigned to perform that repair job. As Sims was subsequently restored to his job on Jones' recommendation, little signifi- cance can be assigned to this incident . The other example given by Jones involved an asserted customer telephone complaint received by Mr. Pettus. Jones had no direct knowledge or memory of details involved in this complaint and Mr. Pettus gave no testimony concerning this or any other similar complaint . This, too, is rejected as unworthy of weight in determining the reason for the discharge. IU Jones testified he "was astounded , the tone of voice and the way it was put, and I was completely ashamed because as far as I was concerned this man had worked under me, and these other men from Atlanta was down, and it embarrassed me .... Well, he asked when we would get an increase in salary. Well, I don't know if he said 'we.' I will assume he was talking about the mechanics in general were going to get an increase in salary .... Well, his outburst when somebody else had a called meeting is what I was embarrassed at .... [T ]he following morning after we had the meeting, I asked him not to show such an outburst of temper because it was uncalled for at the time." The men from Atlanta were officials of Respondent sent to explain the new insurance plan to employees, and were further identified as officials in attendance at the hearing herein. 470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD there was no decision made on a Thursday whatsoever, and . . . around the middle of [Friday] morning .. . Sims still had the same problem with his temper; so, I brought it to the attention again of Mr. Pettus and told him we needed to do something about it . . . . Oh, yes; on a Thursday afternoon, Mr. England came in and said that he would prefer not to work with Mr. Sims. ... So, I brought this to . .. Mr. Pettus' attention. Later Jones testified that he was in his office handling telephone matters that Thursday afternoon when England came in and told him Sims was out there cursing and asked that he not be assigned to work with Sims any more because of such conduct. However, Jones indicated he did not hear the cursing because his door was closed and he was on the telephone. Pettus, on the other hand, testified that in the Thursday conversation he asked Jones what he wanted to do and Jones replied, "Well, I will talk with him again." Pettus did not list abuse of equipment as having been mentioned to him and Jones admitted he said nothing to Sims about abuse of equipment. Contradicting Jones is the testimony of both Ricks and Sims that they, together with England and another employee, were engaged in unloading a boxcar of tractors at the railroad siding several miles distant all day on the Thursday and well into the afternoon on the Friday of Sims' discharge, and that neither Jones nor Pettus was at the docks with them. Both indicate that nothing unusual occurred and that Sims did not exhibit any particular display of temper. Although England could not specifically remember what work he had performed on the days preceding Sims' discharge, he did not corroborate Jones' testimony on this matter, recalling only that on one occasion he had participated in welding the type of equipment identified by Jones but that this was performed inside the shop. On the other hand, England categorically denied that he ever registered a complaint about Sims or requested that he be spared from assignments to work with Sims. Indeed, England indicated that, although Sims was more prone to such reactions, expressions of agitation through the curse word vocabulary was not uncommon in the shop and that this did not bother him.11 England impressed me as a truthful witness. In contrast, Jones, as previously noted, had memory difficulties, and also 'contradicted himself and was contradicted by other witnesses including Mr. Pettus. I credit England over Jones and find that England did not register a complaint. Respondent 'presented no other evidence purporting to establish that Sims had difficulty getting along with fellow employees or that his cursing and temper outbursts were affecting the work of others. Further, I credit Sims and Ricks over Jones and find that nothing unusual occurred on the 2 days preceding Sims' discharge. The evidence discloses that Respondent had knowledge 11 England is still employed and gave testimony under subpena after refusing Sims' urging that he give the General Counsel a statement. The record does not support Respondent's suggestion that England was terrorized by Sims into giving testimony helpful to Sims. 12 However, the insurance meeting events may indeed contain the key to the reason for Sims' discharge. It is clear that Sims was presuming to speak to management on behalf of his fellow employees concerning their wages as well as their insurance benefits . Employees were displeased with the changed insurance plan announced at that meeting and this set the tone for of Sims' nervous manifestations and extreme reactions to job irritations from the time he was employed, and, in fact, had reinstated him after one of his more extreme displays-the June 1971 quit. It not only tolerated this problem but also made special allowance for it, encourag- ing ad hoc cigarette breaks away from his work station, and reassigning work even to the extent that the supervisor himself performed the particular job about which Sims registered his complaints to the customer. Jones was performing this job when Sims quit, yet he recommended Sims' reinstatement. Such circumstances negate the asser- tion that temper displays, either as an impairment of customer relations or as a disruptive force in the shop, were the cause of Sims' discharge. The so-called public outburst by Sims at the mid- December insurance meeting with management hardly qualifies for the label assigned, as this was a meeting between company officials and employees. Aside from his departure from the subject matter designated for the meeting, no irregular conduct on the part of Sims is described. Moreover, it must be assumed that the verbal admonishment administered to Sims the following morn- ing was deemed adequate reprimand and that the matter was then closed. I conclude that the incident itself did not enter into the reason for Sims' discharge.12 Having found that there was no employee complaint or temper display during the 2 days preceding the discharge asserted by Respondent as the reason for Sims' discharge, and that the various other incidents advanced as additional and supportive considerations in that decision were either insignificant or were matters on which previous action had been taken, I conclude that the reasons advanced by Respondent for discharge are pretextual. As found above, both Jones and Pettus had knowledge that Sims was in the forefront of the concerted activity and the chief advocate for seeking union representation to secure better wages, insurance benefits, etc. Such activity frequently takes the form of "bitching and griping," as Pettus labeled Sims' actions, but, in the context of advocacy for union representation, does not lose its protection because it may be unpleasant. On the basis of the entire record, I conclude that it was Sims' persistence as the foremost unionization advocate, .despite threats and warnings, that caused Respondent to discharge him. Accordingly, I find that Respondent discharged Clarence Sims in violation of Section 8(a)(1) of the Act. 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 1, above, have a close, intimate, and further concerted activity among the employees, some of which admittedly took place in the presence of Jones. Sims' vociferous expressions on this subject were beginning to affect other employees to the extent that a majority of the shop employees were ready to sign union authorization cards for representation. In this respect, I need not determine whether Respondent knew Sims had made inquiry of the Union herein and was about to take formal organizational steps, for such a finding would not affect the remedy required. INTERNATIONAL HARVESTER CO. substantial relationship 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. 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 unlawful discharge and other violations.13 It has been found that Respondent unlawfully dis- charged Clarence Sims on March 17, 1972. It will therefore be recommended that Respondent offer him immediate and full reinstatement to his former position or, if such position no longer exists, to a substantially equivalent position, without prejudice to any seniority or other rights and privileges he previously enjoyed, and make him whole for any loss of pay suffered as a result of its discrimination against him, by payment to him of a sum of money equal to that which he normally would have earned , absent the unlawful discharge with backpay and interest computed under the established standards of the Board .14 It will be further recommended that the Respondent preserve and, upon request, make available to the Board all payroll records, social security payment records , timecards, per- sonnel records and reports, and all other records necessary and useful to determine the amount of backpay and the right of reinstatement under the terms of this recommend- ed Order. Upon the foregoing findings of fact, and upon the entire record to the case, 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 Clarence Sims for engaging in concerted activity for the employees mutual aid and protection, by interrogating employees, threatening to close the plant, and threatening discharge, 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. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 13 N.L.R.B. v. Express Publishing Company, 312 U.S. 426; N.LR.B. v. Entwistle Mfg. Co., 120 F.2d 532 (C.A. 4). 14 F. W. Woolworth Company, 90 NLRB 269; Isis Plumbing & Heating Co., 138 NLRB 716. is 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 471 Upon the basis of the above findings of fact, conclusions of law, and the entire record in the case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, I hereby issue the following recommended:15 ORDER Respondent, International Harvester Company, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Coercively interrogating employees concerning their union sympathies or activities to discourage their concert- ed activities. (b) Threatening employees with reprisal for concerted activity for their mutual benefit or activity on behalf of any labor organization. (c) Terminating or effecting other reprisals against employees because they have engaged in concerted activities for their mutual aid or protection or on behalf of any labor organization, or in any other manner discrimi- nating 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 Clarence Sims immediate and full reinstate- ment to his former position or, if such position no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings, in the manner set forth in "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents all payroll and other records, as set forth in "The Remedy." (c) Post at its Albany, Georgia, plant and facilities, copies of the attached notice marked "Appendix." 16 Copies of said notice, on forms provided by the Regional Director for Region 10, after being duly signed by Respondent's representative, shall be posted by it immedi- ately upon receipt thereof, and be maintained by Respon- dent 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. (d) Notify the Regional Director for Region 10, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. its findings, conclusions and Order, and all objections thereto shall be deemed waived for all purposes. 16 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."