Spicher Motors, Inc.

344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Spicher Motors, Inc. and Teamsters Local Union 538 a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Ameri- ca. Case 6-CA-6670 January 11, 1974 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO On September 28, 1973, Administrative Law Judge Lowell Goerlich issued the attached Decision in this proceeding. Thereafter, the 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,' and conclusions of the Administrative 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 the Respondent, Spicher Motors, Inc., Kittanning, Pennsylvania, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order except that the attached notice is substituted for the Administrative Law Judge's notice. i 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 Administrative Law Judge 's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect Standard Dry Wall Products, Inc, 91 NLRB 544, enfd 188 F 2d 362 (C A 3, 1951 ) We have carefully examined the record and find no basis for reversing his findings The Respondent has requested oral argument This request is hereby denied as the record , the exceptions and supporting brief adequately set forth the issues and positions of the parties APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial in which all parties were permitted to introduce testimony and other evidence, it has been decided that we violated the National Labor Rela- tions Act, as amended, among other things, by discharging Harvey A. Fox in retaliation for our employees choosing Teamsters Local Union 538 a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America as their collective-bargaining representative and to discour- age our employees' affection for the Union. WE WILL offer Harvey A. Fox his job or, if his job no longer exists, a substantially equivalent job. WE WILL restore his seniority and pay him the backpay and veteran's benefits he lost because we discharged him, with 6-percent interest. WE WILL NOT unlawfully discharge any of our employees for the same reason we discharged employee Fox. WE WILL restore the existing employee work rules and employee privileges which we changed on April 10, 1973, as they existed on that date, which include the rights of employees to purchase automobile parts at a discount, repair and service their own cars in our shop,-and place and receive personal telephone calls as were permitted on April 10, 1973. WE WILL NOT unlawfully threaten you with economic reprisals because you chose the Union as your collective-bargaining agent or continue your union affection. SPICHER MOTORS, 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 concerning this notice or compli- ance with its provisions may be directed to the Board's Office, 1536 Federal Building, 1000 Liberty Avenue, Pittsburgh, Pennsylvania 15222, Telephone 421-254-9469. DECISION STATEMENT OF THE CASE LOWELL GOERLICH, Administrative Law Judge: The charge filed by Teamsters Local Union 538 a/w Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America , herein called the Union, on April 16, 1973, was duly served by registered mail on Spicher Motors, Inc., the Respondent herein, on April 16, 1973. An amended charge filed by the Union on June 18, 1973, was duly served by registered mail on the Respon- dent on June 28, 1973. A complaint and notice of hearing 208 NLRB No. 49 SPICHER MOTORS, INC. was issued on June 21, 1973, and duly served on the Respondent on June 28, 1973. The complaint charged that the Respondent had violated Section 8(a)(1) of the National Labor Relations Act, as amended, herein referred to as the Act, by unlawful interrogations, by threats of loss of benefits and economic reprisals, and by changes in work rules and employee privileges. It was further alleged that the Respondent had violated Section 8(a)(3) of the Act by terminating its employee, Harvey A. Fox, on April 14, 1973. The Respondent filed a timely answer denying that it had engaged in or was engaging in any of the unfair labor practices alleged. The case came on for trial on July 19 and 20, 1973, at Kittanning, Pennsylvania. Each party was afforded a full opportunity to be heard, to call, examine, and cross- examine witnesses, to argue orally on the record, to submit proposed findings of fact and conclusions, and to file briefs. All briefs have been carefully considered. FINDINGS OF FACT,' CONCLUSIONS, AND REASONS THEREFOR 1. THE BUSINESS OF THE RESPONDENT Respondent, a Pennsylvania corporation with its sole facility located at Kittanning, Pennsylvania, is engaged in the retail sale and service of new and used automobiles and the sale of automobile parts. During the past 12-month period immediately preceding the issuance of the com- plaint, a representative period, Respondent had a gross volume of business in excess of $500,000. During this same period, Respondent received goods and materials valued in excess of $50,000 for use at its Kittanning, Pennsylvania, facility directly from points outside the Commonwealth of Pennsylvania. Respondent is now, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union is now, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Union Activity On March 9, 1973, the Respondent received written notification that the Union had filed a petition (Case 6-RC-6414) to represent all mechanics and bodymen employed by the Respondent . On March 19 the parties signed an agreement for consent election calling for an election to be held on March 29, 1973. The petition was withdrawn on March 22, 1973, and a new petition was filed t The facts found herein are based on the record as a whole and the observations of the witnesses The credibility resolutions herein have been derived from a review of the entire testimonial record and exhibits, with due regard for the logic of probability, the demeanor of the witnesses, and the teachings of N L R B v Walton Manufacturing Company & Loganville Pants Co, 369 U S. 404, 408 345 in Case 6-RC-6414 in which the Union sought to represent all mechanics, bodymen, car-wash-men, and other service employees employed by the Employer. On March 29, 1973, an agreement for consent election in Case 6-RC-6414 was approved setting the election for April 10, 1973. At the election, out of the six valid ballots cast, four were cast for the petitioner. The alleged discriminatee, Harvey A. Fox, served as the Union's observer. After an investigation of the Respondent's objections to the election by the Regional Director the Union was certified as the collective-bargain- ing representative on June 18, 1973. The Union's organizational campaign which culminated in the filing of the first petition commenced shortly prior to March 3, 1973, on which date employees Fox, Richard A. Hogue, and Richard Zentz met with Union Representative Raymond Baker at the Teamsters union hall where each signed a union authorization card. Thereafter Fox solicited employee Westwood, an employee in the body shop, but was unsuccessful in procuring his signature to an authori- zation card. B. The Supervisory Status of Service Manager Jeff L. Wilson At all times material herein Gerald Spicher was the president of the Respondent, Frank A. Stewart, Jr., its general manager, and Jeff L. Wilson, its service manager. The Respondent concedes that Spicher and Stewart, Jr., are supervisors within the meaning of the Act but the Respondent contends that Service Manager Wilson does not fall within such classification. At the time of the election Wilson supervised employees Harry C. McManus, Richard A. Hogue, Fox, and William F. Waltenbaugh, Jr., who were engaged in auto service and repair work, and cleanup man Francis Battaflino. When a customer presented an automobile, Wilson determined the service to be rendered or the repair to be effected. He then assigned the work to one of the auto mechanics, selecting the mechanic based on thr' nature of the job and the experience and capability of the employee. Wilson re- viewed the work of the mechanics and directed them to correct work which he did not approve. Wilson was authorized to grant time off to employees. Wilson's immediate supervisor was General Manager Stewart who, unlike Wilson (Wilson had 13 years' experience in the automobile industry), had no experience as an auto machanic. Stewart spent little time in the shop; he consulted with Wilson when he wanted to find out how the mechanics were doing. When Fox was hired Stewart and Wilson jointly interviewed him and together decided on his employment. Stewart testified that he discussed Fox's work habits and those of other employees with Wilson and when he decided to fire Fox he told Wilson "to do it" in that Stewart "felt that he was the one who should tell him, since he was his immediate superior." Stewart also said that Wilson (1962) As to those witnesses testifying in contradiction to the findings herein, their testimony has been discredited, either as having been in conflict with the testimony of credible witnesses or because it is in and of itself incredulous and unworthy of belief All testimony has been reviewed and weighed in the light of the entire record 346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD received customer complaints and determined whether customer complaints were justified. Wilson spent less than 10 percent of his time in auto service and repair work. He did not vote in the election. The foregoing indicia of supervisory status bring the duties and responsibilities of Wilson within the definition of supervisor as set forth in Section 2(11) of the Act. The exercise of supervisory authority by Wilson was "not of a merely routine or clerical nature." He "responsibly" 2 directed other employees, exercised independent judgment in the assignment of their jobs, reviewed their work, and reported upon their achievements. He was the only supervisor to whom the employees working under him reported for work assignments and direction. Accordingly, Wilson was a supervisor within the meaning of the Act. C. The Alleged Violations of Section 8(a)(1) of Act 1. The alleged misconduct of Service Manager Wilson The General Counsel alleges that Wilson unlawfully interrogated employees on March 9, 1973. To support this claim the testimony of Fox was offered in which he said that Wilson asked Hogue about a letter received by the Respondent. Fox quoted Wilson as saying "they got a letter inside, somebody was talking about joining the Union." Wilson then asked Hogue "if he knew anything about it."3 Hogue's version of the conversation was that Wilson said, "Mr. Spicher said that he was going to try to get to the bottom of this and he was going to lay off or fire anybody that started it, and Mr. Wilson said that he didn't think he could do it, that he'd better check into it, first. So he went down. Mr. Spicher and Frank went downtown to see what to do." In view of the testimony of Hogue which contains no reference to a coercive interrogation, it is found that the General Counsel has not proved by a preponderance of evidence coercive interrogation by Wilson. 2. The alleged misconduct of President Spicher Two or three weeks before the election President Spicher remarked to employee William Westwood that "he was just going to close the shop down if the Union goes in." This threat was clearly a violation of Section 8(a)(1) of the Act. "Threats such as to move the plant . . . or close it if the union won . . . in the course of an organizational campaign constitute interference and restraint within the scope of Section 8(a)(1)." Marshfield Steel Company v. N.LR.B., 324 F.2d 333, 336 (C.A. 8, 1963); Holly Hill Lumber Co. v. N. L. R. B., 380 F.2d 838, 841 (C.A. 4, 1967). About 3 days after Spicher had received the letter notifying him of the Union's pending petition for an election, Spicher told Fox in the shop, "If you fellows are going to get tough with me, I'm going to get tough with 2 "To be responsible is to be answerable for the discharge of a duty or obligation Responsibility includes ,judgment, skill, ability, capacity, and integrity, and is implied by power." Ohio Power Co v N LR B, 176 F.2d 385, 387 (C A. 6, 1949) 3 Wilson's signed statement offered into evidence relates, "1 believe I asked Dick Hogue what was going on and asked him about the union after Spicher showed me the letter." you. I'm going to put you all on flat rate after the first of the month. And if we had any cars backed up, we would do them on our own time." A "couple of weeks" before the election Spicher remarked to Hogue that a flat rate would be instituted on the first of the month, a thoughi which he also expressed to employee Waltenbaugh about a month before the election. At the time employees were being paid an hourly rate. A flat rate provided for the employees receiving a fixed amount for a job even though the time consumed for its performance exceeded the amount of time figured in setting the fixed amount. In addition the employee was required to work on comebacks4 without additional compensation. The flat rate was not instituted. Neverthe- less, the threat to institute a flat rate, a threat "to get tough," was the kind of reprisal banned by Section 8(a)(1) of the Act and in violation thereof. Shortly prior to the election Spicher told employee Edward A. Buffington that "there would be different working conditions if the Union came in, that the fellows wouldn't be standing around in huddles and talking." This threat of economic reprisal was likewise in violation of Section 8(a)(1) of the Act. 3. The misconduct of General Manager Stewart, Jr. Shortly after the Respondent learned of the Union's petition Fox was summoned by General Manager Stewart to his office where he told Fox that he would sign his V.A. cards but, since Fox's work was not improving, he was uncertain about the future. Stewart said that "[u]p to this point, he was willing to let it go; but now that we were joining the Union, he didn't know whether he should sign any more cards or not." Stewart added, "We will have to wait until the end of the month and see what happens."6 In view of the current election situation Stewart's statement to Fox above detailed constituted a clear threat to cause a termination of his veteran's benefits because of the Union's advent. Such misconduct violated Section 8(a)(1) of the Act. On the same day after the election had been concluded, Stewart and Spicher called a meeting of the employees in the shop. Stewart opened his remarks by saying, "Now, you men want some changes around here. We are going to make some changes." Whereupon Stewart listed the changes which he described in his testimony as follows: . . if they brought [their own] cars in the shop, I wanted repair orders on them, I wanted them to be billed the regular customer rate, if they wanted parts, I wanted them billed at the customer rate and I wanted to discontinue personal phone calls unless they were emergencies. . . . I told them if any more of this [standing in a corner talking 15 to 20 minutes at a time] went on, I was going to give a couple of days off for it.... "At the time employees were 4 Comebacks were automobiles which had not been satisfactorily serviced or repaired and were returned by the customer 5 Fox was enrolled in a Veterans' Administration on-the-lob training program In order that Fox could receive benefits Stewart was required to submit a signed card for Fox each month 6 Stewart admitted the conversation, but did not testify that the Union was mentioned. SPICHER MOTORS, INC. 347 paying 10 percent above wholesale for parts purchased and were allowed to work on their own cars after hours and on lunch periods. Stewart explained the institution of the changes immediately after the election as matters which he had been considering for 3 or 4 years. He testified, "I didn't decide it then; I had decided it three or 4 years ago." When asked whether he announced these changes because the employees had voted for the Union, he answered, "Not exactly." Stewart's explanation as to why he waited 2 or 3 years until immediately after the Union's election victory to implement these changes in working conditions is unconvincing. It is clear that the Union's victory triggered the announcement. Indeed the fact that the Respondent's precipitate action occurred before the Respondent consid- ered or evaluated the Union's collective-bargaining de- mands stamps its motives as ulterior and unlawful. While the Respondent claims that the changes were never put in effect,7 the announced changes were not rescinded by the Respondent. Nevertheless, the announce- ment of these changes had the tendency to erode employee support for the Union.8 By Stewart's announcement of work rule changes and changes in employee privileges and by any changes thereof which thereafter followed, the Respondent violated Section 8(a)(1) of the Act. D. The Discharge of Employee Harvey A. Fox on April 14, 1973 1. Harvey A. Fox was employed by the Respondent on January 3, 1972. Shortly prior to his employment he had completed a 9-month, 5-day-week, 8-hour-a-day course in auto mechanics at Lanape Tech, Ford City, a course approved by Veterans' Administration. He was hired after an interview with Stewart and Wilson. His starting rate was $2 an hour. According to Stewart, at the time Fox was hired "he didn't say he was a first class mechanic," nor did Spicher view Fox as "a full-fledged" mechanic. About 6 months after he was hired, Fox was sent by the Respon- dent to a Ford Motor Company transmission school for a week. Thereafter Fox worked on transmissions but was unable to perform transmission work satisfactorily. The Respondent's other auto mechanics were also deficient in this respect. This resulted in the Respondent's referring transmission work to other shops. Fox was laid off in the latter part of December 1972 and was recalled in January 1973. About 3 months after he commenced his employment he received a 10-cent-an-hour merit increase. After a representative of the state employment office mentioned to Stewart that Fox would be eligible for a V.A. program, Stewart contacted the Veterans' Administration in Pittsburg, Pennsylvania, and arranged for Fox to participate in the program. Fox received benefits in the approximate amount of $133 a month. During Fox's tenure of employment a substantial number of comebacks resulted from his work. This was also true of other employees including Waltenbaugh, Jr., who had 2 years' experience as an auto mechanic. When Wilson was asked to rate Waltenbaugh, Jr., or Fox as the better mechanic he answered, "It's a tough decision." Stewart testified that he became aware that customers were complaining about Fox's work "probably seven to nine months before his discharge." According to Wilson, Fox's work started to deteriorate in the middle of February after which he received an increasing number of come- backs. It was Wilson's opinion that grounds for Fox's discharge existed in February. In February Fox pulled the wheels from William M. Smith's truck for inspection. In replacing the wheels apparently Fox placed the lock nut next to the bearing instead of between the nuts. In any event the next day, when Smith was driving the truck up a hill, he lost the use of both the brakes and the gears. The truck rolled backwards down the hill causing some damage to the truck. Spicher reimbursed Smith. Stewart urged Spicher to "do something" about the wheel incident. Spicher called the three mechanics together and said, "I don't like to be tough on anybody, but I want you to know that I don't want this to happen again, because if it does, you won't have a job here, because I cannot have a chance of having a lawsuit on me, somebody could have been killed." Nevertheless, Fox continued in employment, although comebacks continued. Three days after the election on April 13, 1973, Wilson informed Fox that "they were planning on laying [him] off."9 On April 14, 1973, Stewart told Fox he was going to lay him off.10 In this regard Stewart said, "We have to support your Union, but we are going to do it with as few men as possible." " Stewart testified that the decision to discharge Fox was his alone and that he did not confer with Spicher about the discharge.12 Stewart testified that he discharged Fox "[b]ecause of the work he was doing. In the first place, he made some mistakes especially with this one particular car he worked on, we had a lot of problems with it and it came back in at that time, for the second time." 13 Stewart testified that he made the decision to discharge Fox "[w]henever this car came back in for the second time." On that day owner Smith had complained that the car 7 Proof was that the phone restriction was put in effect and that the employees ceased working on their own cars in the shop There is doubt as to whether the other changes were effected. 8 "[T]he established rule [is ) that an employer cannot engage in conduct calculated to erode employee support for the union " N LRB v Deutsch Company, Metal Components Division, 445 F 2d 902, 906 (C.A 9, 1971) 9 Wilson testified that he told Fox that "he was going to be terminated" upon instructions from Stewart , that Fox "came back to work for a couple of days because he wanted someone else to tell him " 10 The record is unclear as to whether Fox was told that he was being laid off or discharged The Board has recently said, " we do not believe that the General Counsel's failure to prove that Blenden's termination was a discharge rather than a layoff is significant , so long as the record establishes that the motivation for the termination was discriminatory within the meaning of Section 8(a)(3) " The Colonial Press, Inc, 204 NLRB No. 126. It Stewart's signed statement submitted to the Board 's agent reads- After I laid Harvey Fox off because of poor work , I told him that if the union got in, we were going to stop taking in outside work (Outside work was work performed on automobiles which had not been sold by the Respondent Stewart unlike Spicher favored refusing outside work 1, so that we would need fewer men to work in the shop. 1 told him we would support the union , but with fewer men, especially if the wages increased any more. 12 According to Stewart he did not confer with Spicher about Fox's discharge because he knew Spicher was "dissatisfied with his work, too" 13 Stewart was referring to Stanley Smith 's 1969 Lincoln Continental on which Fox had worked. 348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "wouldn't start after it got hot." Stewart said that this complaint brought the matter to a "peak" and thereupon he decided to discharge Fox.14 Fox had removed the engine head from Smith's Lincoln and among other things had replaced the piston rings. Thereafter the automobile would not start when it was hot. Fox suggested to Wilson that a new starter be tried. The new starter was installed but that did not remedy the defect. Spicher told Fox that he thought that he had installed the wrong rings.15 During 1971, 1972, and the first 6 months of 1973 the Respondent operated its repair shop at a loss. 2. As noted above Stewart reacted to the Union's election victory by taking measures calculated to erode employee support for the Union and frustrate the employ- ees' collective-bargaining aspirations. The discharge of Fox was more of the same thing. While "[m]anagement can discharge for good cause, or bad cause, or no cause at all," it may not discharge "when the real motivating purpose is to do that which [the statute ] forbids." Portable Electric Tools, Inc. v. N.L.R.B., 309 F.2d 423, 426 (C.A. 7, 1962). Although Fox's work performance may have warranted the action taken, "the policy and protection provided by the National Labor Relations Act does not allow an employer to substitute 'good' for `real' reasons when the purpose of the discharge is to retaliate for an employee's concerted activities." Hugh H Wilson Company v. N.L R.B., 414 F.2d 1345, 1352 (C.A 3, 1969), cert. denied 397 U.S. 935 (1970). Here the "real motive" i6 for Fox's termination was to retaliate for the employees' choice of the Union as their collective-bargaining agent The reason cited by Stewart was pretextual and was advanced as a coverup for the Respondent's discriminatory motive. While the Respondent suffered the incompetency of Fox and other employees, the situation became intolerable only after the Union's election victory. Such circumstance reveals the speciousness of the Respondent's assertion that Fox was legitimately discharged. See N.L.R.B. v. Elias Bros. Big Boy, Inc., 325 F.2d 360, 366 (C.A. 6, 1963); A. P. Green Fire Brick Company v. N. L. R. B., 326 F.2d 910, 915 (C. A. 8, 1964). Other factors which support the conclusion that union considerations permeated Fox's termination are: (1) The record is barren of any plausible explanation as to why the Respondent delayed discharging Fox until several days after the Union's election victory 17 when the same reasons for his discharge had existed for several months. (2) While Stewart claimed his decision to discharge Fox was prompted and reached on the day Smith's Lincoln was returned to the shop, he, nevertheless (if he is to be believed), waited almost 10 days before taking action, all of which strongly implies that Stewart, spurred into action by the Union's victory, seized upon the incident as a pretext to 14 Stewart testified that Smith's Lincoln "came back in" the day before he told Wilson to discharge Fox which would have been April 12, 1973 Spicher credibly testified that Smith's Lincoln was returned "a week to ten days" before Fox was discharged 15 After Fox was discharged Smith's Lincoln was "torn down " and the trouble was discovered According to Wilson the "ring clearance on the automobile was in excess of nine thousandths and it should be around five, and, consequently, when the engine got hot, it tightened it and it wouldn't start When the engine cooled down , it would start right up " To correct the situation new grooves were cut in the pistons where spaces were added, after discharge Fox. (3) Fox was discharged before it was determined whether it was Fox's faulty workmanship which caused Smith's Lincoln to fail to start when it was hot. Moreover, the Respondent could have reasonably foreseen that the discharge of Fox following on the heels of the Union's election victory would be viewed by the employees as in retaliation for their having chosen the Union as their collective-bargaining agent and would discourage their union affection. Such treatment of employees inherently creates an inference that the employ- er's conduct was discriminatorily motivated. Cf. The Radio Officers' Union of the Commercial Telegraphers Union, AFL [A. H. Bull Steamship Company] v. N. L. R. B., 347 U.S. 17, 45 (1954); N.L.R.B. v. Great Dane Trailers, Inc., 388 U.S. 26 (1967). It is well established that "the existence of a proper reason for a discharge is no defense if the discharge was actually made [as here] for an improper purpose." John Klann Moving and Trucking Co., 411 F.2d 261, 263 (C.A. 6, 1969). Accordingly, it is found that by the termination of Harvey A. Fox on April 14, 1973, the Respondent violated Section 8(a)(3) and (1) of the Act. CONCLUSIONS OF LAW 1. The Union is a labor organization within the meaning of the Act. 2. The Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and it will effectuate the purposes of the Act for jurisdiction to be exercised herein. 3. By interfering with, restraining, and coercing em- ployees in the exercise of rights guaranteed them by Section 7 of the Act, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. By unlawfully terminating Harvey A. Fox on April 14, 1973, the Respondent engaged in unfair labor practices within the meaning of Section 8(a)(3) and (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. RECOMMENDED REMEDY It having been found that the Respondent has engaged in certain unfair labor practices, it is recommended that it cease and desist therefrom and take affirmative action designed to effectuate the policies of the Act. It having been found that the Respondent unlawfully discharged Harvey A. Fox and thereby violated Section which the rings were inserted in the grooves 16 .. the 'real motive' of the employer in an alleged § 8(a)(3) violation is decisive . " N.L R B v Brown Food Store, 380 U S 278, 287 (1965) See also Local 357, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America [Los Angeles-Seattle Motor Express] v NLRB , 365 U S 667,675 (1961) 17 " the timing of discharges is a factor which may be weighed by the Board in drawing inferences " N LR B v Tulsa-Whisenhunt Funeral Homes, Inc, 84 LRRM 2300 (C A 10. 1973 ), enlg 195 NLRB 106 SPICHER MOTORS, INC 8(a)(1) and (3) of the Act, it is recommended that the Respondent remedy such unlawful conduct. It is recom- mended in accordance with Board policy 18 that the Respondent offer Harvey A. Fox immediate and full reinstatement 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, including Veterans' benefits, which he may have suffered as a result of the discrimination against him by payment to him of a sum of money equal to the amount he would have received from the date of his discriminatory discharge to the date of an offer of reinstatement, less net earnings during said period, to be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289, and including interest at the rate of 6 percent per annum in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. Upon the basis of the foregoing findings of fact, and conclusions of law, and the entire record in this proceed- ing, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 19 Respondent Spicher Motors, Inc., Kittanning, Pennsyl- vania, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in Teamsters Local Union 538 a/w International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, or any other labor organization, by unlawfully discriminatorily discharging any of its employees or discriminating in any other manner with respect to their hire or tenure of employment or any term or condition of employment in violation of Section 8(a)(3) of the Act. (b) Unlawfully threatening employees with economic reprisals because they chose the Union as the collective- bargaining agent or continue their union affection. 18 See The Rushton Company, 158 NLRB 1730, 1740 19 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 349 (c) Unlawfully changing work rules or denying employ- ees existing privileges because they selected the Union as their collective-bargaining representative or continue their union affection. 2. Take the following affirmative action which will effectuate the policies of the Act: (a) Offer Harvey A. Fox immediate and full remstatment 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 pay that he may have suffered by reason of the Respondent's discrimination against him, in accordance with the recommendations set forth in the section of this Decision entitled "the Recommended Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this recommended Order. (c) Restore employee work rules and employee privileges which were unlawfully changed on April 10, 1973, as they existed on that date. (d) Post at its Kittanning, Pennsylvania, establishment copies of the attached notice marked "Appendix."20 Copies of said notice, on forms provided by the Regional Director for Region 6, after being duly signed by Respondent's representative, shall be posted by it immedi- ately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notice is not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 6 in writing within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. deemed waived for all purposes 20 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 "