Overseas Motors, Inc.

DECISIONS ()F NATIONAL LABOR RELATIONS BOARD Overseas Motors, Inc. and Miroijub Mitkovski. Cases 7-CA-18251, 7-CA-18355, and 7-CA- 18477 March 11, 1982 DECISION AND ORDER BYi MEMBERS FANNING, JENKINS, AND ZIMMERMAN On October 20, 1981, Administrative Law Judge Lowell Goerlich issued the attached Decision in this proceeding. Thereafter, Respondent and the General Counsel filed exceptions and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,' and conclusions2 of the Administrative Law Judge and to adopt his recommended Order," as modified herein. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modi- fied below, and hereby orders that the Respondent, Overseas Motors, Inc., Livonia, Michigan, its offi- cers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: i Respondent has excepted ito certain credihilii findings nmade by the Administrative I a\r Judge It is the Board's eslabhlshed policy not to overrule an administrative las judge's resolutilons v ith respect to credi- hility unless the clear preponderanice of all of the relevanlt evidenice conl- ·inces us that the reolutitoins are il correct Slriuncird i)r IW'all Prldlrdciit, Inc.. 91 NLRBH 544 (1950), cnld 11) 2f d 128 F2 d 2 ir (151) '4 c ha:le carefully exanined the record and find no hasis for reversing his firndinig We also Fiud totally .ilhoul merit Responrdenr ' allegatioiils of bias andl prejudice on the part of the Administratlie l, a.s Judge, nor doi we per- ceive anlly evidenlce that the \dminislratlie I.ass Jadge prejudcged tlhe case, made prejudicial rulings. or dcriinsl-; lted a hias against Responldeii in his analysis or discussoll io' the cvsidcllce 'ce further findl Ih;l Re spondent wsas aaccrdred a falir hearinlg in all respects I Contrary to Rcsplidcnlt's conltellioni, ce finld ith I hird C ltcll s de cision in Ih-Cruji Clothing C<i s N 1 R B.. 66( 1: 2d 910 (1981), to be inapposite In that Case, unlike the iistanlt case. the discrinliall;le \ .as supervisor vwithin the meaning of the Act, anld o1l thallt basil the culr held that the Board had no a;uthorit) to granl relief The Adminislraitil.c Iasw Judge itadxerltellls oinittcdl f'rolti his rcv ornmended O)rder and nltic a requiremenlc thilt Respondelnt expunge froni Nlitnkosski' personnll record aniy relfrence to his discharge, ai vsei1 as teo his suspcnsionll Accordiingly . \r ha;lc added such ai requireill1Cil Member Jenkins sould pro\ide ilnlerest ion the baclkpas ailwasrd inl il cordance vith his partial dissenlt mi oh/,mph lcd.i./ (o'porui... nl 250i NlRB 146 (1980) 1. Delete the phrase "and expunge said suspen- sions from his personnel record" from paragraph 2(b). 2. Insert the following as paragraph 2(c) and re- letter the subsequent paragraphs accordingly: "(c) Expunge from its files any references to the suspensions of Miroljub Mitkovski on September 15 and October 6, 1980, and to his discharge on October 23, 1980, and notify him in writing that this has been done and that evidence of these un- lawful actions will not be used as a basis for future discipline against him." 3. Substitute the attached notice for that of the Administrative Law Judge. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT unlawfully interfere with our employees' rights under Section 8(a)(4) of the National Labor Relations Act, or unlawfully suspend or discharge our employees for filing charges with the National Labor Relations Board or for giving testimony under the Na- tional Labor Relations Act, as amended, in violation of Section 8(a)(4) of the Act. WlI Wll. NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL offer Miroljub Mitkovski, whom the Board found we unlawfully discharged be- cause he filed charges with the National Labor Relations Board, immediate and full reinstate- ment to his former job or, if his job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges previously enjoyed, dis- charging, if necessary, any employee hired to replace him, and WE wn.L make him whole, with interest, for any loss of pay he may have suffered because we unlawfully discharged him. WiE wil. additionally make Miroljub Mit- kovski whole for any loss of pay he may have suffered by reason of his suspensions on Sep- tember 15 and October 6, 1980. WE Wii.I. expunge from our files any refer- ences to the suspensions of Miroljub Mitkovski on September 15 1980, and October 6, 1980, and to his discharge on October 23, 1980, and WE wt .l. notify him that this has been done and that evidence of these unlawful actions 260 NLRB No. 105 810 OVERSEAS MOTORS. INC. will not be used as a basis for future discipline against him. OVERSEAS MOTORS, INC. DECISION STATEMEN NT OF ITHEI CASE LowFI.Ii GOI RI ICH, Administrative Law Judge: The charges filed by Miroljub Mitkovski in Cases 7-CA- 18251, 7-CA-18355, and 7-CA-18477 on September 15, October 8, and November 5, 1980, were served on Over- seas Motors, Inc., Respondent herein, by certified mail on September 17, October 10, and November 8, 1980, re- spectively. An order consolidating cases and second amended complaint and notice of hearing was issued on December 22, 1980. The original complaint was issued on October 8, 1980, and an amended complaint was issued on October 29, 1980. Complaints in the consoli- dated cases alleged that Respondent had violated Section 8(a)(1) and (4) of the National Labor Relations Act, as amended, herein referred to as the Act. Respondent filed timely answers denying that it had engaged in or was engaging in the unfair labor practices alleged. The consolidated cases came on for hearing in Detroit, Michigan, on July 22 and 23, 1981. Each party was af- forded 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 conclu- sions, and to file briefs. All briefs have been carefully considered. FINDINGS OF FACT, CONCI.USIONS, ANI) RFASONS THIRI FOR I. IHE BUSINESS 01 RESPONDEN I Respondent is, and has been at all times material herein, a corporation duly organized under, and existing by virtue of. the laws of the State of Michigan. At all times material herein, Respondent has maintained its office and place of business at 32400 Plymouth Road in the city of Livonia and State of Michigan, herein called the Livonia place of business. Respondent is engaged in the retail sale and servicing of automobiles. During the calendar year ending December 31, 1979, which period is representative of its operations during all times materi- al hereto, Respondent, in the course and conduct of its business operations, had gross revenues in excess of $500,000 and purchased and received at its Livonia place of business products valued in excess of $50,000 directly from points located outside the State of Michigan. Respondent is now, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THI UNI AIR I ABOR PRACTICd S First: On September 15. 1980, Respondent suspended Miroljub Mitkovski for 2 days "for arriving at 10:00 a.m. without valid explanation'" (G.C. Exh. 4.) The incident which gave rise to the suspension occurred on Seplem- ber 12, 1980. Mitkovski, who had worked as an auto me- chanic for Respondent since the spring of 1976, was given a raise on September 12, 1980, as were other em- ployees. However, Mitkovski was given a 60-cent-an- hour raise whereas the other mechanics received $1.60 an hour. Mitkovski complained to Samuel Demrovsky, "service manager and personnel hiring and firing griev- ance man" for Respondent. Mitkovski asserted that he was being "discriminated against" and said that he would go to the Secretary of State or the National Labor Rela- tions Board,' whichever was responsible for handling the case, where he would file a complaint. Mitkovski contin- ued in his testimony: His reply on that-as a matter of fact I have to take back-it was Mr. Demrovsky which is the third brother of Sam Demrovsky. He replied . . . "you will be fired if you do that." So my reply was "I would like to see that happen just for filing the charges that I can get fired." And either Mr. Sam Demrovsky or Andy Demrovsky stated to me, "Okay, you will not be fired but you won't get any jobs to make enough living so you will fire your- self." 2 Mitkovski then asked approval to "take off' on Monday morning until 10 o'clock so that he could file charges. Demrovsky replied, "I don't care. Okay." However, Demrovsky instructed Mitkovski that he would be re- quired to bring a "written receipt" of where he had been. Also present during this conversation were Andy Demrovsky, John Demrovsky, and Helen Demrovsky.3 On the next Saturday, September 13, Mitkovski worked one-half day. Mitkovski inquired of Demrovsky whether he had reviewed the matter of raises and wheth- er he would receive more money. Demrovsky answered that "everything would stay the same." Mitkovski re- minded Demrovsky again that he would take time off Monday to file charges. Demrovsky replied, "Suit your- self," On Monday morning, Mitkovski appeared for work at 10 a.m. Demrovsky asked for a "receipt." Mitkovski re- sponded, "I do not have a receipt. The people I have contacted will contact you very soon; the people from the NLRB will contact you very soon." 4 On Monday morning Mitkovski called the office of the Secretary of State which informed him that the Secre- tary of State did not handle Mitkovski's type of com- plaint. Mitkovski then phoned the National Labor Rela- tions Board in Detroit. He talked to Ms. Sylvia "for about 45 minutes." Ms. Sylvia advised Mitkovski to l)nDerio sk> admitned that Mlko ., ki s:aid he "as going tlo the l ahbor Boa rd Demro, r ik' affida ii to the Board includes the statement: I recall that he tas fIiring him rell' A' iued hirrin I)rnro,sk! sill refer It Santllil D)cmr, sksy unless ottiher , SC lilotd Re' pnlllltl had x orkllig rulves hich wv ere r otllmlltted Iii rillng In Junie Il eniiltied. "C'harter iofl l i ." I nder the ht Ia . s, on Is ahsencIes Ofr o.se 2 dlay, etrt' requlred to hasc a "alid e. plallnatiln In "mrllilg )One of ie h.nellis, cited in the bhia', sa, D)ass Oiff Ill be grinled , heII asked s 1iih 1io pil! No cliplse, c ta.d. er he'll asked Ih, fturnir ll a it ril l "rt'ccpl I tildtr clrcullllltct.nc Inilll i to l iikr - kli ca.'C 811 DECISIONS OF NATIONAL LABOR RELATIONS BOARD come to the office at 1:15 p.m. to "talk with her some more, and to file the charges." After the above conversation with Demrovsky, Mit- kovski went to work on his job. At or around 10:45 Demrovsky approached Mitkovski and gave him the sus- pension above noted. When Mitkovski inquired as to why he was given the suspension, Demrovsky said, "Well, you came in late and you didn't have no written receipt, no written receipt where you have been." Demrovsky's affidavit to the Board reveals, "I decided to issue the suspension to Mitkovski on September 15, 1980, because he told me he was going to the Labor Board. I felt that by telling me this he was trying to test me to see what I would do. I felt it was necessary to crack down then. "5 Second: On October 6, 1980, Mitkovski was again sus- pended, this time for 3 days. Citing punch-in times of 8:19, 8:46, and 10:59 for Friday (October 3), Saturday (October 4), and Monday (October 6), respectively, the suspension read, "No improvement in starting time there- fore third warning must be issued, which is also the last one." 6 (G.C. Exh. 6.) On October 6, 1980, Mitkovski arrived at work at or about 8:15 a.m. Mitkovski asked Demrovsky whether he could be excused until 10 o'clock since he had an ap- pointment with his lawyer. Demrovsky answered, "If you don't have enough work you can go." Mitkovski re- turned around 10:15. Demrovsky called him to his desk and asked him where he had been. Mitkovski replied, "I went to see my lawyer." Demrovsky entered in a book the date, "ten ten, went to see lawyer." Around 10:50 Demrovsky asked Mitkovski whether he had punched in. Mitkovski had forgotten and then punched in. He re- turned to his job. At 12:30 p.m. Demrovsky received a telephone call from Patrick Labadie from the Board's Detroit office. Demrovsky was informed that the Nation- al Labor Relations Board had decided to issue a com- plaint in respect to Mitkovski's charge. Thereafter Demrovsky brought Mitkovski the suspen- sion letter above mentioned. After Mitkovski read the suspension letter he reminded Demrovsky that he had asked for the time off and otherwise would not have left. Later in the day Mitkovski wanted to discuss the matter with Demrovsky. Demrovsky commented, "I am fed up of your threats and the only way I can listen what you talk is with the representative or the NLRB or the lawyer and I am not going to personally talk with you." Third: On October 23, 1980, Mitkovski was dis- charged. On October 21, 1980, the investigator for the National Labor Relations Board visited Demrovsky. After the investigator left Demrovsky went to the place where Mitkovski was working and said, "You know, Mire, I think it is better for you if you look for another job." Mitkovski asked why and said that he did not intend to quit. Demrovsky replied, "You might not but you might be fired tonight or tomorrow. We will see." 5 Of this statement Demrovsks testiied, "It is the truth a;rld it still exists. However, there should he a division made" s Mitkovski had been late ,on the average of tvo or three time, a svcek during his entire tenure of enlplosnment He had recei ved one 'u ritten dis- ciplinary warning for tardiness on May 2(), 19( Mitkoskl ki colltinlled lo he late after NMas 20) with(Lut written vsarnlng until Septerlher 15 I 80() On October 23, 1980, Mitkovski was called to the sales- room in the presence of Samuel and Andy Demrovsky. Thus Mitkovski describes what occurred: A. When I went there he explained to me that I had my first warning letter; that I had my second warning letter and I had my third warning letter, so he also blamed me that I falsified Mr. Terry Gon- terman's timeclock from I believe it was October 4 on that Saturday when he punched along with me. We both punched at eight forty-six. I don't know why. Why should I falsify some timeclock to eight o'clock when it doesn't help my case? It just ruins it . .. He claimed that I falsified that. He had already my check prepared and he also told me that he has got a letter from the insurance company that they are threatening that I would have put them on high risk policy because of me having suspended driving license. Then he said the company already had lost a suit and they were on a high risk policy at the moment when I was dismissed.... I tried to ask, first of all I tried to tell him that the first letter of May 20th is outdated because of by-laws of the company says it takes three let- ters. . .. 7 Mitkovski asked for a letter of dismissal which was re- fused by Demrovsky. The problem with insurance apparently arose because Mitkovski held a suspended driver's license. The renewal date of Respondent's insurance policy with Citizens Insurance Company was November 9, 1980. Sometime prior to that time the insurance agency, Kapnick and Company, Inc., requested data on Respond- ent's employees who would be covered by the insurance. The purpose of this inquiry was to ascertain if any of Re- spondent's employees were high risks. Demrovsky had known for over a year that Mitkovs- ki's driver's license had been suspended.' On this point Demrovsky testified: Back to the driver's license situation. I knew he had driver's license suspended. I knew every bit of it and I had pushed him to get it reinstated. I was hiding in '79. Mr. Spain does not have a check on him because I purposely was trying to save Mr. Mitkovski's job by saying, look, you must have your driver's license because the insurance is going to cancel me. These were numerous warnings. Not only for the time but for the driving record and of course the misconduct with the customers. They were given not only to him but a couple other em- ()in Ma 20. q190, NMitko, ski had recev ed a armiing letter in respect it his -" 4s5 rris al Mitkor ski testilied that he ',as told that this letter sy tild llit ,ourilt oiti lrd diSlissil sinCe iI %as dated prior to the isuance f Ih the rititct "Chairlir itf 11N ;l t," I)cmro, sky denied Nlitkoi , klis esti- ilkois ski's drlcr', licen se had been suspended in Octo l ber 7. 1979. and DI)C lhe r i). q,7 liir failiire to ippealr il court tr -energs rpeed" i,iola;tiilll At the llil f the t hel rilg lhereinr he had cleared ulp the viola- ilnlls tand ecld a .alid lit,,sc 812 ()\'VIRSF AS NI()I()RS, INC ployees their records were had but he had no driv- er's license., Demrovsk, also testified, "I didn't w ant to fire that man [Mitkovski]. so he doesn't lose his job. I was--well, I was doing everything in my power not to has e him terminated." In regard to the insurance co(mpany 's request to fur- nish names of employees. IDemro sky testified: Now this letter is in September, the early part of September. which is Hwell beforc the \ational Labhor Relations Board ever got into thc act oJ filing these suits. They had requested and w'ere furnished names, addresses as stated, and, therefore, were not fur- nished immediately because I was trying to see how I could go around. how I could go around by not reveal- ing the record of our employees, especiully .Miro Mit- kovski. I couldn 't help it. There was a second request letter that come in which we did not answer the first one. Voluntarily I didn't answer it. I wanted to save the man's job. Therefore, we did answer the second one and they found out there is a license that is in suspension with a couple of warrants out for arrest in Westland and Livonia. [Emphasis supplied.] After the "National Labor Relations Board . . . got into the Act" Demrovsky submitted the names and re- ceived a communication thereafter dated September 23, 1980, from Donald E. Spain. vice president in charge of sales of Kapnick and Company, Inc. Spain commented on the "bad" employees and asked "what we can do about the real bad ones." (G.C. Exh. 8.) Comments were made about three employees: Concerning Mitkovski: "FAC means he failed to appear in Court. Otherwise he ignores the law" and "Should not drive Co. cars"; Vuli- cevia: "should not drive company cars"; Schueltz: "This guy also ignores the law. Twice he failed to appear in court." About the first or middle of October Spain conversed with Demrovsky. While Spain was not wholly clear as to the scope of the conversation he testified that he "in- dicated" to Demrovsky that "having an employee with an expired driver's license created a very serious prob- lem for us, and to continue on with that kind of an em- ployee driving a company vehicle would probably result in termination of insurance, at least with this carrier." According to Spain, Demrovsky asked him to "write this letter simply to validate with the employee that [his] statement to them is in fact true." On October 21. 1980, Spain addressed a letter to Demrovsky as requested, citing Mitkovski's failure to "meet the underwriting standards set by your insurance carrier." (G.C. Exh. 7.) Upon receipt of the letter Demrovsky immediately fired Mitkovski, On November 3, 1980, Demrovsky advised Kapnick and Company, Inc., by letter, that Mitkovski had been discharged on October 23, 1980. ' Spain was the insurance agent Demrovsky testified that prior to October 23, 1980, he had never mentioned to Mitkovski "the possibility of dis- charge." Mitkovski's driving record was never submitted to the insurance carrier to ascertain whether it would coxer him (Spain represented the agency), nor did Re- spondent request that Mitkovski's name be submitted to the carrier for an opinion. At the time of Mitkovski's dis- charge Respondent's insurance was effective and would not have expired until November 9, 1980. Moreover, the insurance could not have been canceled except upon 10 days' notice. Mitkovski, prior to his discharge, was not given the opportunity to reinstate his driver's license. In respect to unacceptable driving records Spain stated the policy thus: We simply explain to the clients that a person with a driving record that is unacceptable will not be able to drive company cars. If the job compels that they do then some action has to be taken. This is entirely up to the employer. During the hearing Demrovsky cited several other reasons which were considered by Respondent in dis- charging Mitkovski. These reasons generally involved al- leged misconduct which had been overlooked by Re- spondent prior to Mitkovski's contact with the Board and which had not been initially cited as reasons for dis- charge. l In his affidavit Demrovsky described his discharge of Mitkovski as follows: I said we had a larger problem, that we could not get insurance on him to cover his driving to and from work and his driving of company and custom- er's cars. I showed the letter from Donald Spain. He read the letter. He did not say anything. I told him he was discharged immediately. That he should pick up his toolbox and leave. He said so that's it huh? And I said, yes, that was it. Mitkovski then locked his toolbox and left. That was all that was said. I did not mention that Mitkovski had changed Terry Gonterman's timecard. [G.C. Exh. II11.] Demrovsky's affidavit further reveals: "My policy is that I will keep an employee who has a bad driving record as long as he has a license that is in effect." Demrovsky further testified that Mitkovski was a good auto mechanic. Fourth: The General Counsel has established through credible evidence and by the admission of Demrovsky ("I decided to issue the suspension to Mitkovski on Sep- tember 15, 1980, because he told me he was going to the Labor Board") that Mitkovski was suspended on Sep- tember 15, 1980, because he expressed the intention of complaining to the National Labor Relations Board. The suspension of Mitkovski "because he made known a deci- sion to seek Board assistance" interfered with the rights guaranteed under Section 8(a)(4) of the Act and was in " Demrovsky. at the hearing. asserted as additional reasons for dis- chairge horsepla. , use of Ihe telephone. an expired mechanic's license, and "fondling of female customers" No written warnings were e.er glxcil fir ais of this alleged mis-conduct 813 DLECISIO(NS ()F NATI()NAI. LABO)R RELAII()NS B()ARD violation of Section 8(a)(4) of the Act. Hoover Design Corporation, 167 NLRB 461, 462 (1967); Mitsubishi Air- craft International, Inc., 212 NLRB 856, 866 (1974). Moreover, for the same reason Respondent violated Section 8(a)(4) when it threatened Mitkovski that he would not "get any jobs to make enough living so [he] would fire [himself]" if he filed a complaint with the Board and when Respondent required Mitkovski to pres- ent a receipt of his contact with the Board's offices. These actions of Respondent placed an unlawful restraint on Mitkovski whereas the Act demands that there be free access to its protection. To hold otherwise would afford the employer a means by which it could frustrate the Act and render Section 8(a)(4), as here, ineffective under certain circumstances. This the Act forbids. Addi- tionally, the General Counsel has established that Mit- kovski was suspended again on October 6, 1980, almost immediately after Respondent had been notified that the Board was issuing a complaint on Mitkovski's charge even though a cause for the suspension had been tardi- ness for which Mitkovski had been excused. (Mitkovski had been excused to see his lawyer.) It is obvious that Respondent was prompted by Mitkovski's charge filed with the Board when it suspended him. Thereby Re- spondent violated Section 8(a)(4) of the Act. " In respect to Mitkovski's discharge, the General Coun- sel's prima facie case disclosed that (1) Respondent threatened that if Mitkovski complained to the Labor Board he would not receive any desirable working as- signments; (2) Respondent suspended Mitkovski on Sep- tember 15 and October 6, 1980, because he had filed charges with the Board; (3) Mitkovski was considered a good auto mechanic; and (4) Mitkovski was discharged shortly after the investigator from the Board visited Re- spondent, after which visit Respondent remarked to Mit- kovski that it was "better" for him to "look for another job" and that he "might not but [he] might be fired to- night." Thus a prima facie case has been established that Mitkovski was discharged because he filed charges with the Board. Cf. Wright Line, a Division of Wright Line. Inc., 251 NLRB 1083 (1981). Respondent seeks to rebut the prima facie case by of- fering evidence that Mitkovski was discharged, since to have continued him on its payroll would have caused its insurance carrier to have refused to renew its insurance, because Mitkovski's driver's license was suspended. That this reason was pretextual is borne out by these facts: Prior to Mitkovski's filing charges with the Board, Re- spondent knew of Mitkovski's driving record and con- cealed it from the insurance company in order to retain Mitkovski on its payroll. In fact Respondent did not re- spond to the insurance agency's first request for its em- " The General Counsel has cited Alleluia Cushion Co.. Inc. 221 N.RB 999 (1975), to support the claim that Mitkovski was engaged in concerted activities and thus Respondent's misconduct violated Sec 8(a)(l) of the Act. This case is not apposite. Alleluia Cushion Co. Inc.. involved alleged violations of occupational safety rhich, although raised by an individual only, were found by the Board to encompass the swell-heing of fellow employees Unlike the discriminatee in the Alleluia Cushion case Milkovs- ki's complaint was svholly personal. It involved the denial of a wage in- crease which concerned Mitkovski only The complaint did not encom- pass the working conditions of an) other employees Hence there "was no concerted activity and no siolation of Sec 8(a)(1) of the Act ployees' names in order that the agency could check them for driver risk so that those employees who were potential risks, including Mitkovski, could be protected on its payroll. It was only after the Board matter sur- faced that Respondent abandoned its concealment and furnished the insurance agency the information it sought. Although the insurance carrier had not evaluated Mit- kovski as a risk, Respondent discharged him neverthe- less. Finally, at the time of Mitkovski's discharge Respond- ent's insurance was in effect and would not have expired until November 9, 1980. Thus, there was no need for Re- spondent's precipitous discharge action. In this respect this case is not unlike the case of Golden Beverage of San Antonio, Inc., 256 NLRB 469 (1981), in which the Board found wrongful discharges when the "Respondent has failed to advance a cogent explanation indicating a non- discriminating motive for the discharges of these three employees, which occurred prior to their actual exclu- sion from insurance coverage." The respondent had dis- charged them because its insurance carrier had indicated that it would exclude them from coverage. As in the Golden Beverage case Respondent in the instant case had "used alleged problems involving insurance coverage to mask its real reasons." Clearly Respondent discharged Mitkovski in retaliation for his protected activity of con- tacting the National Labor Relations Board and filing a charge with it; Respondent thereby violated Section 8(a)(4) of the Act. CONCL USIONS OF LAW 1. Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and it will effectuate the policies of the Act for jurisdiction to be exercised herein. 2. By unlawfully threatening Mirolijub Mitkovski that he would not "get any jobs to make enough living so [he] would fire [himself]" if he filed a complaint with the National Labor Relations Board, and by requiring Mit- kovski to present a receipt of his contact with the Na- tional Labor Relations Board, Respondent violated Section 8(a)(4) of the Act. 3. By unlawfully suspending Mitkovski for 2 days on September 15, 1980, and for 3 days on October 6, 1980, Respondent engaged in unfair labor practices within the meaning of Section 8(a)(4) of the Act. 4. By unlawfully discharging Mitkovski on October 23, 1980, Respondent has engaged in unfair labor prac- tices within the meaning of Section 8(a)(4) 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. THE REMEDY It having been found that Respondent has engaged in certain unfair labor practices, it is recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It having been found that Respondent unlawfully dis- charged Miroljub Mitkovski on October 23, 1980, in vio- lation of Section 8(a)(4) of the Act, it is recommended, in 814 O\'ERSI AS M()T()RS, IN(_ accordance with Board policy, that Respondent offer said employee immediate and full reinstatement to his former position or, if such position no longer exists, to substantially equivalent employment, without prejudice to his seniority or other rights and privileges previously enjoyed, dismissing. if necessary, any employee hired on or since October 23, 1980, to fill any of said position i" and make him whole for any loss of earnings he may have suffered by reason of Respondent's acts herein de- tailed by payment to him of a sum of money equal to the amount he would have earned from the date of his un- lawful discharge to the date of an offer of reinstatement, less net earnings during such period, with interest there- on, to be computed on a quarterly basis in the amount and manner established by the Board in F W. Wool/worth Company. 90 NLRB 289 (1950). and Florida Steel Corpo- ration, 231 NLRB 651 (1977). 1'3 It is further recommended that Miroljub Mitkovski be reimbursed for any loss of pay by reason of his unlawful suspensions, with interest, in accordance wvith the Board's usual policy, and that his suspensions be ex- punged from his personnel record. Upon the basis of the foregoing findings of fact, con- clusions of law, and the entire record in this proceeding, and pursuant to Section 10(c) of the Act. I hereby issue the following recommended: ORDER 14 The Respondent, Overseas Motors, Inc. Livonia, Michigan, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Unlawfully interfering with employees' 8(a)(4) rights. (b) Unlawfully suspending or discharging employees for filing charges with the National Labor Relations Board or for giving testimony under the National Labor 12 Respondent is not precluded. in subsequent compliance proceedings. from contending that, after a good-failh exploration of Mltkoski's insura- bility, he is actually uninsurable with ani carrier, and that its backpay liability should be commensurably reduced See (oI/d,n Beverage o/ San Antonio. Inc. supra See also itchl & Son,. Inc.. 227 NLRB 194(. 195(0. 1951 11977) " See, generally. ,tis Plumbing & Ieaoing Co, 138 Nl.RB 716 (19h2) 4 In the event no exceptions are filed as prov ided hby Sec 102 46 of the Rules and Regulations (of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as pro, lded in Sec 102 48 of the Rules and Regulations, be adopted bs the Board and become its findindings, conclusions, and Order, and all objection, thereto shall be deemed walised fir all purposes Relations Act. as amended, in violation of Section 8(a)(4) of the Act. (c) In any like or related manner interfering with. re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act 2 Take the follow'ing affirmative action which w ill ef- fectuate the policies of the Act: (a) Offer Miroljub Mitkovski immediate and full rein- statement to his former position or, if such position no longer exists, to a substantially equavalent position, wxith- out prejudice to his seniority or other rights and privi- leges previously enjoyed, discharging, if necessary, any employee hired to replace him, and make him whole for any loss of pay he may hasve suffered by reason of Re- spondent's unlawful discharge of him in accordance with the recommendations set forth in the section of this De- cision entitled "The Remedy." (b) Make whole Miroljub Mitkovski, with interest, for any loss of pay he may have suffered by reason of his unlawful suspensions on September 15 and October 6, 1980, and expunge said suspensions from his personnel record. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other re- cords necessary to analyze the amount of backpay due under the terms of this Order. (d) Post at its Livonia, Michigan, establishment copies of the attached notice marked "Appendix." s Copies of said notice. on forms provided by the Regional Director for Region 7, after being duly signed by Respondent's representative. shall be posted by Respondent immediate- ly upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, in- cluding all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by Re- spondent to insure that said notices are not altered, de- faced, or covered by any, other material. (e) Notify the Regional Director for Region 7, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS FURTHFR RECOMMENDI)I) that the complaint be dismissed insofar as it alleges violations of the Act other than those found in this Decision. '' In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the s ords in the notice reading "Posted by ()rder of the National .abor Relations Hoard" shall read "Posted Pursu- ant to a Judgment of the Uniled States Court of Appeals Enforcing an Order of the National Labor Relalions Board "