Garon, Milton J., and Richard B. Bergman d/b/a Autoglass and Upholstery Co.

AUTOGLASS AND UPHOLSTERY CO. Milton J. Garon and Richard B. Bergman d/b/a Au- toglass and Upholstery Co. and International Brotherhood of Painters and Allied Trades, Gla- ziers Local 1529, AFL-CIO. Cases 9-CA- 16728 and 9-RC-13721 September 27, 1982 DECISION, ORDER, AND DIRECTION BY CHAIRMAN VAN DE WATER AND MEMBERS FANNING AND ZIMMERMAN On May 27, 1982, Administrative Law Judge Benjamin Schlesinger issued the attached Decision in this proceeding. Thereafter, Respondent filed ex- ceptions and a supporting brief. 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 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 Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Milton J. Garon and Richard B. Bergman d/b/a Autoglass and Upholstery Co., Louisville, Kentucky, its offi- cers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. DIRECTION It is hereby directed that the Regional Director for Region 9 shall, pursuant to the Rules and Regu- lations of the Board and within 10 days from the date of this Decision, open and count the ballot of Ralph Curtis Rexroat and thereafter issue and serve on the parties a revised tally of ballots and issue the appropriate certification. I 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 lass judge'r resolutions with respect to credi- bility unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions are incorrect. Standard Dry Wall Products Inc., 91 NLRB 544 (1950). enfd 188 F.2d 362 (3d Cir. 1951) We have carefully examined the record and find no basis for reversing his findings In the first paragraph of the Administrative Law Judge's Decision the date April 6. 1981. should read April 21, 1981. DECISION BENJAMIN SCHI ESINGER, Administrative Law Judge: This proceeding was heard before me in Louisville, Ken- 264 NLRB No. 22 tucky, on March 3 and 4, 1982, and involves miscella- neous allegations of interrogation of employees, threats. and other violations of Section 8(a)(1) of the National Labor Relations Act, as amended, 29 U.S.C. Sec. 151, et seq., as well as an alleged violation of Section 8(a)(3) and (I) of the Act by Respondent's discharge of employee Ralph Curtis Rexroat on April 6, 1981.' whose chal- lenged ballot was sufficient to affect the results of a tied representation election held on May 20.2 Respondent Autoglass and Upholstery Co.. which is principally engaged in the installation of glass and uphol- stery in automobiles, is a partnership of Milton J. Garon and Richard Bergman, and does business at four loca- tions in Louisville, Kentucky, one of which is involved herein, and nine other locations in Kentucky. Respond- ent stipulated and admitted, and I find that, during the 12 months prior to the issuance of the complaint. it has de- rived gross revenues in excess of $500,000 and has pur- chased and received at its Louisville facilities products, goods, and materials valued in excess of $50,000 directly from points outside the Commonwealth of Kentucky. I therefore conclude that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. I also find and conclude, as Respondent admits, that the Union is a labor organization within the meaning of Section 2(5) of the Act. Respondent's principal defense to the Rexroat dis- charge is grounded upon its assertion that at a meeting of its principal executives held on November 27, 1980, a suggestion was made by Michael Hobbs, Respondent's general manager, to expand the residential and commer- cial glass plate division from its downtown Louisville and Elizabethtown locations, the only facilities where Respondent was so engaged, to others of its facilities throughout the Commonwealth of Kentucky'. Sue Jew ell, Respondent's marketing representative, was very much opposed to the expansion. claiming that agents of Nation- wide Insurance Company, Respondent's principal client and one which would normally be looked to to create substantial billing in this area, had criticized this part of Respondent's operations, primarily because promises of repairs and deliveries were often not kept, wrong meas- urements were taken, and damages to window frame- works, draperies, and carpeting were frequent. If the Louisville operation was not being run efficiently, Jewell argued, why should the operation be expanded to other areas of the State. Rather, the Louisville operation should first be put into proper order, and that could only be accomplished by immediately terminating the entire department of three employees: Supervisor Harold Jones, lead installer Rexroat, and helper Bobby Grant. I Except as otherwise stated, all dates herein refer to the ),ear 1981 2 The relevant docket entries are as follows: The unfair labor practice charge was filed by Charging Party International Brotherhood of Paint- ers and Allied Trades. Glaziers Local 1529, AFt -CIO (the Union). on April 22. 1981; the complaint issued on June 2, and the representation proceeding was consolidated with the unfair labor practice proceeding by order of the Regional Director for Region 9. dated June 8 The Inion's representation petition was filed on April b, 1081 a stipulation consenting to an election was executed on April 22 and approsed hy the Regional Director on April 28 149 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Jewell's suggestion received some support, but a gen- eral consensus was finally reached that, instead of termi- nating the three imnediately, they should be replaced as soon as possible with competent people and that priority should be given to that effort. In fact, Jones was dis- charged on January 23, 1981, and Rexroat on April 21, 1981, the latter occurring only after Frank Hatfield was hired as Rexroat's replacement in March, only 12 days after Respondent learned of the Union's petition, and shortly after Respondent allegedly learned that Rexroat had instigated the attempt to organize, which gives the General Counsel the basis of his claim of a violation of the Act. Respondent contends, however, that its decision to discharge Rexroat was made in November 1980, long before Rexroat engaged in any union activities and before it had knowledge of any union activities. Respondent's prime contention, although appealing on its face, has a number of faults. Although it produced 58 pages of warnings, disciplinary memoranda, and termina- tion notices covering 1980 and 1981, only one warning had been given to Rexroat prior to November 27, 1980, and that for use of drugs on the job. Jones had received two, and one was, to be sure, for poor work perform- ance by him and his installers, but apparently Respond- enlt did not think enough of the installers' errors to warn them individually. Furthermore, although complaints were registered at the November meeting about the work of the glass plate division, it appears that the prime complaint was directed at Jones' supervision and particu- larly his state of disorganization in not scheduling ap- pointments and handling complaints promptly, missing appointments, and generally ensuring that jobs were at- tended to and completed. Other than that, there is noth- ing in the warnings to reveal the damage to property and incorrect measurements of which Rexroat had allegedly been accused.:' Finally, although demeanor evidence is often minimally compelling, I was impressed by the simi- larity of the testimony of Respondent's witnesses about the November meeting. Their memories may all be equally remarkable; but I found that their similar recol- lections of a particular meeting, at a particular house, on a particular date almost 1-1/2 years prior to their testi- monty, somewhat reflective of the fact that they ,were tes- tifying not from individual recall but from joint coach- ing. Hardly anyone strayed from the basic underlying events testified to by each other, a rather curious amal- gam of memories of what seemed a rather forgettable meeting. I am convinced that there were some problems in the glass plate division and have little doubt that they were perceived to originate from Jones' supervision, but the evidence does not support the decision that all the par- ticipants testified had been made at the meeting. It is true that Jones was discharged on January 23, 1981, but at- tem, were made by Hobbs before that to instruct him on the correct way to handle orders and complete his jobs. The prime example is a memorandum of Hobbs criticizing Jones' work, noting that Jones had promised :' Admittedly, there ear numerous vcomplaints against Rexroat afjtr the Noenlmber meeting, discussed infiu Hut the prime citentieon of Re spllidenlt is Ihat it decided ill No.ember to termlilalte Rerodt as a resulh of his carlicl soirk performaince to "do better," and ending with: "January 2 is the date agreed upon when Harold can have every [thing] in order and keep it handled properly"-hardly reflecting that Hobbs was carrying out a group decision to replace Jones as soon as possible. Rather, he was attempting to rehabilitate Jones and to make him function properly so that he would not have to be replaced. When that failed, Hobbs had Terry Davis, then the general manager of the downtown Louisville facility, take over supervision of the plate glass division. Indeed, Davis had assumed the same duties a half year before, when Jones left for vaca- tion, without notice. The point is that Hobbs did not, after the November meeting, start a search for a replace- ment for Jones, as he testified repeatedly that he did be- cause Bergman was prodding him and asking about his efforts every few days. Similarly, although Hobbs testified to some efforts to replace Rexroat, his search consisted primarily of asking the managers of others of Respondent's stores whether they knew of a qualified replacement. Hobbs also testi- fied that he placed an advertisement in the local newspa- per. I have difficulty crediting this testimony in light of the fact that it took almost 4 months to find one qualified glazier in all of Kentucky. That appears to be most un- likely; but even if I credited it, I find that the search for Rexroat's replacement was hardly of the calibre one would expect if Rexroat was the disaster he was por- trayed to be, if the decision to replace him as soon as possible had actually been made, and if Bergman was pushing Hobbs to take care of the problem as hard as both Bergman and Hobbs insisted. Instead, Rexroat remained on the job, receiving (so Respondent alleges) from time to time criticisms of his work, but there is nothing in them which portends his discharge. Rather, many of the alleged warnings are the typical notations of an employer which is attempting to record an employee's misdeeds and to teach the employ- ee to become of better service to an employer. Thus, 8 days after the decision to terminate Rexroat was made, Hobbs noted in a memorandum to Rexroi't's file that he discussed with him the importance of shovsiig helper Grant the correct way to measure insulated glass and that Rexroat replied that lie always would teach correct procedures in the future. Hobbs mentioned his discussion with Rexroat about incorrect glass sizes he ordered, but Rexroat replied that Jones wxas to blame. On January 28, 1981, Hobbs again criticized Rexroat, this time for cut- ting incorrect sizes oF glass so that Respondent lost money on the job. TIhe memorandum ended: "I told him he didn't use his head on this job at all." On February II11, Hobbs complained of a job requiring installation of doors, to which Rexroat replied that "he \would check more closely the niext ltlne."4 These documents are hardly consistent with Respond- ent's contention that it hired Frank Hatfield to replace Rexroat pursuant to its earlier November decision, but there are documents which support its position. For ex- ample, on March 4, 1981, Hobbs wrote to Bergman that 4 i credit Rexrloai, t nlliai oit ulabllit) t o no, t (o i the crit. lism aimed at him and find rec td ulupport that Jotec% recorded incrrcc t meas- uremtents. 150 AUTOGLASS AND UPHOLSTERY CO. he had talked to Hatfield, stating that he "might be able to replace Curt Rexroat who is not producing well nor teaching Bobby enough to suit me." While this supports the theory of Respondent's replacement of Rexroat with Hatfield, it still indicates that Hobbs had not made up his mind about Rexroat, despite the alleged decision 3 months before that Rexroat had to be discharged. Rather, it indicates that Respondent was still reviewing Rexroat's work and had made no decision. Nine days later, Hobbs reported to Bergman that he had made an offer to Hatfield, adding: I explained the difficulties he would experience with Curt until I could terminate Curt but he said Curt didn't bother him. If Frank decides to come to work for us it would be a great improvement of skill in plate. As soon as he decides I will make plans to let Curt go immediately. Hatfield testified to the contrary, that Hobbs never told him anything other that the fact that he would be assisting Rexroat and that there was no intimation from Hobbs that Rexroat would be terminated or that Hatfield was hired to replace Rexroat, a statement which Hobbs testified he made to Hatfield. 5 Further, although sup- portive of Respondent's defense, there is a memorandum, dated April 8, 1981, from Bergman to the Rexroat file that Hatfield complained to him that Rexroat was "un- cooperative . . . not a hard worker [and] wants others to 'do all the work & carry the tools,"' the latter statement Hatfield categorically denied and, as I understood his testimony, implicitly denied that he made any other com- plaints. The memorandum ended with the notation that Hobbs said that matters should come to a head by April 10, which coincidentally was the day after Respondent was advised by the Board's Regional Office that the Union's representation petition had been filed. Hatfield made a most appealing witness and I was im- pressed by his candor. He appeared to be reluctant to side with either party. His acquaintance with Rexroat was brief. His refusal to have words pushed into his mouth on cross-examination was both sincere and candid. As a current employee thrust into the Union's organization dispute, he appeared to be aloof, although he indicated his belief that Respondent tried to pin too many faults of its supervisors upon the employees. As a current employee, with little to gain and much to lose.6 he testified compellingly. I credit him and find that my doubts of the bona fides of Respondent's claim are cor- roborated. I thus find the Bergman memorandum of April 8 un- worthy of belief insofar as Hatfield's complaints are con- cerned. That leaves the remaining portion of the memo- randum at issue, to the effect that on April 8 Hobbs ad- vised Bergman that matters would come to a head by s Respondent's attorney testified that Hatfield told him that he was hired by Hobbs to replace Rexroat. I do not credit this testimony, finding that the attorney merely misinterpreted what Hatfield had said. If a mis- understanding was not the result of the attorney's impression. but a direct statement were made by Hatfield. I believe it probable that Hatfield would have been called by Respondent to testify. 6 Georgia Rug B.uilt 131 NLRB 1304. 1305 at fn. 2 (1961), enfd. as modified 308 F 2d 89 (5th Cir 1962). April 10. Further support is found in the testimony of Will Casper, contract sales representative of Louisville Plate Glass Company, who stated that, on a Thursday morning before the Friday afternoon that his employees told him that a representation petition had been filed against Respondent, Hobbs called him to ask whether Louisville Plate was going to hire Rexroat; if it did not, Hobbs would fire Rexroat. Hobbs identified the date as April 9. Casper also testified that, in late March, Hobbs called him to ask whether Louisville Plate was interested in hiring Rexroat because Respondent was planning to let him go. Finally, to show that Respondent did not know of any union activities, Bergman testified that, when he received a telephone call from the Board's Re- gional Office the afternoon of April 9, he was surprised and thought it was a prank or joke, leading him to ask his employees whether they knew anything about the Union-all of which was verified by employee Daniel Harris. The fact is that on March 23, 1981, Rexroat arranged for Respondent's employees to meet with the Union on March 31. He told some of the employees of the meeting before work and during lunch break on March 24. Seven employees attended that meeting. I find it probable that word filtered back to Bergman that Rexroat had done something with respect to union activities because, as will be discussed, infra, I have credited testimony that Respondent thought that Rexroat was in the forefront of union activities. Furthermore, I discredit any testimony that Respond- ent intended to discharge Rexroat before the union cam- paign became known and I find that the sole motivating factor was his perceived union activities.7 Indeed, I note that, in Respondent's numerous disciplinary notices, it appears customary that employees (even Supervisor Jones) were warned that if their behavior did not im- prove, they would be discharged. No such warning was ever given to Rexroat. Further, I find it improbable that Respondent, if it were truly going to fire Rexroat on or about April 10, would have granted permission to Rex- roat several weeks before to take a week's vacation start- ing on April 13. I reject Hobbs' contention that the reason he waited so long to fire Rexroat was because he found discharging employees unpleasant. Hobbs testified that for 3 years, up to July 1981, he was in charge of disciplining employees at all 13 of Respondent's loca- tions," and many employees were discharged prior to Rexroat. Finally, much is made of Casper's testimony, but it must be recalled that Casper never mentioned the date of his second telephone conversation, only that it was a Respondent argues that both William McMillin and Harris portrayed Rexroat as the leader of his peers in commencing organization; but Rex- roat testified that he was merely a messenger boy, that McMillin and Harris had been talking about obtaining union representation for a year, and that they merely asked him whether he knew of a union to contact and, if so, to arrange for an appointment. Respondent contends, there- fore, that if Respondent obtained word of Rexroat's activities, it surely knew that McMillin and Harris instigated his participation and would have discharged them, rather than Rexroat From the credited evidence, I can conclude only that Respondent had some knowledge of Rexroat's activities. and no one else's. I Errors in the transcript have been noted and corrected. 151 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Thursday before the Friday on which his own employ- ees told him that Respondent's employees petitioned for a representation election. It might well be that word travels quickly in Louisville; but, in light of the relation- ship between Bergman and Casper's principal, there seems to be more there than meets the proverbial "eye." Specifically, I note that Bergman testified (supported with a memorandum to the file) that, approximately 2 weeks before the first Casper conversation, he talked with Bill Stone, Louisville Plate's president, and asked about Rexroat's application for a job there. Stone pro- fessed that he did not want to hire Rexroat because "he would not insult me for anything." Bergman asked Stone to call him in a few weeks as he was "planning a change."" That, of course, supports Respondent's posi- tion that it planned to discharge Rexroat long before Rexroat's union activities. However, it becomes suspect when compared with Casper's alleged conversation on March 31 with Hobbs. Hobbs wrote a memorandum con- cerning that conversation, in which he wrote that Casper had said that Rexroat had applied for a job but he "wouldn't make him an offer because of your [Berg- man's] friendship with Bill [Stone]." Because Bergman had already given Stone his approval for hiring Rexroat, it seems improbable that hurt feelings was still an issue 2 weeks later. I have difficulty raising the two memoranda to a level of probability and deem it improbable that both Bergman and Hobbs were attempting to persuade different officers of the same company to hire someone they were so completely dissatisfied with in November 1980. Indeed, upon close analysis, Respondent's entire defense appears carefully concocted and contrived; and I believe none of it.L' I conclude that Respondent's dis- charge of Rexroat violated Section 8(a)(3) and (1) of the Act. With that credibility finding, I credit the General Counsel's witnesses, finding them generally credible in any event, and conclude that the General Counsel's case- in-chief fits the classic mold of an employer fraught with fear of union organization and attemptirg to use what- ever means to nip organization before it met with the ul- timate success of a Board certification. Thus, it interro- gated employees to find out who was supporting the Union, created the impression that union activities were under surveillance, attempted to ascertain the cause of the employees' discontent, solicited grievances and im- I" The NMalrch 16 nielnloranldum, which is directed to Hobbs, is rather stra:lllgely Aordt-d AI the heginning it reads like a report of Bergman's conlcrsatiinll ith SlllOe In the middle, there is inserted, not as a quota- lion: "Please call Ile ill a fcw weeks as we swere planning a change." ta Further indicaltion, to support this conclusion are: (I) Respondent's thorouglhly documeinted lelter to Rexroat of the reasons for his discharge. I find no such letter sas wricten to other employees who were earlier discharged by Respondenti. 2) Respondent's calling of a meeting on April 22. 191I. to explain its reasons For discharging Rexroat. I find no such custom before and no reason for the meeting, other than Respond- ent's attempt to cover up its illegal motivation. (3) When Rexroat re- turned lo Respondent's premises and accused Mike Reid of Respondent's attempt to conceal the real motivation for his discharge. Reid admitted that Rexroat had put "two and tvo together." (4) Although what alleged- ly gave impetus to Respondent's decision to discharge Rexroat was its desire to expand its residential and commercial business, no explanation was forthcominig is to how that "as possible, if I were to believe that it took Respondent 4 months to find one glazier, no less the number of gla- zcrs required 'or tile expanlsion of Respondent's business. pliedly promised to resolve them, promised new benefits, threatened closure of the plate glass division, and solicit- ed an employee to discourage other employees' union ac- tivities. Specifically, I find violations of Section 8(a)(1) of the Act based upon the following credited testimony: (I) On April 9, 1981, Bergman told employees Harris and Alan Faulkner that he had just received the funniest phone call: a woman (from the Regional Office) called and told him about the Union's representation petition." Berg- man asked the employees whether they knew anything about it; both employees denied knowledge. Bergman then said that his employees have never lied before and, if there were any truth in the call, "We'll have to close this fucking place down."' 2 (2) On April 13, Bergman asked McMillin to walk with him to the parking lot. There, Bergman asked whether McMillin had heard any talk about the Union. McMillin said he had, and Berg- man asked how he felt about it. McMillin replied that it was all right if it did something for the employees, but he had been a member of a union, and it only took dues. Bergman stated that he knew that Rexroat was behind the union movement and thought that Grant was, too. He added that, if the Union was successful in organizing Respondent's employees, he would close down the plate glass department (where, of course, both Rexroat and Grant were employed). (3) That same week, Bergman also told Harris that he thought that Rexroat was the person who started the Union, and that Rexroat did so because he thought that Hatfield had been hired so that Rexroat could be dis- missed. Bergman said that Rexroat was mistaken and that Bergman had nothing bad planned for him. 13 (4) On Friday, April 17, Bergman held a meeting of employees. After reading a letter written by his attorney about what Respondent could or could not do as a result of the Union's petition, he told the employees that, if they had any questions, they could see him after the meeting. McMillin, who was about to undergo surgery for a work-related condition, accepted that offer, asking Berg- man whether and when his workmen's compensation claim against Respondent would be paid. Bergman re- plied that he could not pay him while he was away from work on disability because that would look like a bribe. McMillin also testified that Garon said that he knew that Rexroat was behind the Union and that McMillin, after '' Respondent contends that Bergman's reaction to the telephone call proves that he had no knovwledge of ally union acivitirs before this date An equally probable scenario is that he had somec knowledge. that there had been some discussion of it, and that someone was playing a practical joke by inflating the rumor into something practical, real, and threaten- ing. 12 Bergman admitted that. when he received the telephone call, he asked employees whether anyone knew about the Uniont and, when an employee asked what his partner, Milton Garon, would do. Bergman re- plied that he would probably consider closing the place, hut that Berg- man needed the business. Even if I were to credit Bergman, I would find the same violations. r: This neither sustains nor rebuts my prior finding that Respondent did not determine in November 1980 to fire Rexroat, because it is diffl- cult to assess whether Bergman was telling Harris the truth. But no matter whether Bergman was or was not, he was trying to impede the employees' organizational activities by attempting to resolve what he thought may have given the initial impetus to those activities 152 AUIFOGLASS AND UPHtOLSIFERY C() Mike Reid, who was then supervising employees at the downtown Louisville facility, said that he had been in a union and had been displeased and Bergman again asked him what he thought about the Union, answered essen- tially what he had told Bergman before--he (McMillin) had previously been a member of a union, all it took was his dues, and that he was not in favor of a union. Berg- man then asked him to help Bergman out by telling the other employees that a union had not done him any good. (5) On Monday, April 20, Bergman asked Harris why he did not remain after Friday's meeting to ask Bergman questions. 4 A meeting ensued, during which Bergman asked Harris why he signed a union card. Harris denied that he did. Davis, then Respondent's district manager, said to Bergman that Harris was not in the meeting to be put on the spot, so Harris was permitted to return to work. (6) McMillin had his surgery on April 20 and called Bergman within I or 2 days to report on his prog- ress. Bergman asked how he was making out financially. and McMillin replied that he thought he could make it. Berman stated that, when McMillin returned to work, perhaps Garon could help him out financially. (7) After Rexroat was discharged, and during the same week. Bergman asked Harris whether he was happy and whether he thought that Hatfield and McMillin were, too. Bergman stated that, if Harris had a problem or was unhappy, he could come to Bergman and talk about it (8) Harris also testified that Davis and Reid each asked Harris once or twice during the week of the April 20 meeting whether he had heard anything about the Union. There is one remaining allegation which arose at the hearing as a result of the testimony of Hatfield. Shortly after the unfair labor practice charge herein had been filed, Respondent requested that Hatfield submit to an in- terview by Respondent's attorney, so that Respondent could prepare its defense. Proper advice s as then giv en to Hatfield pursuant to Johnnie's Poultr,' Co. and Johnt Bishop Poultry Co.. Successor, 146 NLRB 770 (1964) When the complaint came on for hearing, Bergman once again asked Hatfield to help him out and submit to an- other interview. He drove Hatfield to the attorney's office, and the attorney again gave the Johnnie's Poultry warning. The General Counsel contends that Bergman, by not giving the warning but requesting Hatfield to submit to the interview, violated Section 8(a)(1) of the Act. The crux of Johnnie's Poultry is to seek an accommo- dation between an employer's duty not to coercively in- terrogate its employees and an employer's legitimate cause to inquire about, for example, facts in connection with its preparation of a defense to an unfair labor prac- tice complaint. In allowing an employer to interrogate its employees in the latter context, the Board has required that the employees be given certain safeguards to mini- mize the otherwise coercive impact of such employer in- terrogation. Here, no interrogation occurred until Hat- field reached the office of Respondent's counsel. Only at that point, when the interrogation was to commence, "' Harris could not recall whether Bergmaln ended the Friday nlcrilng with the invitation aitrihuted to him hy McMillin. In light of the April 2( conversatiorm I credit Mc Milll 's recollection was Johnnzl Sv Poultry applicable: and the assurances werc, in fact, gisienl before any interrogation took place. I conclude that this allegation has no merit and should be dismisscd. Because I have found that Rexroat was discharged in violation of Section 8(a)(3) and (1) of the Act and rec- omrnmend that he be reinstated to employment, Respond- enrt's challenge to his ballot should be overruled. In this regard, I specifically recommend that the Regional Di- rector for Region 9 shall open and count the ballot of Ralph Curtis Rexroat and cause to be served on the par- ties a revised tally of ballots and issue the appropriate certification. The activities of Respondent as set forth above, occur- ring in conntiwecioil with the operations of Respondent de- scribed above, have a close. intimate, and substantial re- lationship to trade, traffic, and commerce among the sev- eral States and tend to lead to labor disputes burdening and obstructing commerce and the free nflow thereof. Having found that Respondent has engaged in unfair labor practices within the mneaning of Section 8(a)(3) and (I) of the Act, I shall recommnend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Specifically, having found that Respondent discrimilatorily discharged Rex- roat on April 21, 1981, I shall recomniend that it be re- quired to offer Rexroat immediate and full reinstatement to his former position or. it that position no longer exists, to a substantially equivalent position, without preju4ice to his seniority or other rights and privileges previously enjoyed, and to make him w hole for any loss of earnings, lie may have suiffered hb reason of his discharge by paying him a sum otf money equal to that which he would normally have earned absent the discharge, less earnings during such period, with interest thereon, to be computed in the manner prescribed in F UW' Woolworth Comrpany, 90 NI.RB 289 (1950). and Florida Steel Corpo- ration, 231 NI.RB o51 (1977).'i In addition. I shall order. pursuant to the Board's recent decision in Sterling Sugars, Inc., 261 NLRB 472 (1982), that Respondent ex- punge from its records any reference to its unlawful dis- charge of Rexroat and so notify him, in writing. Furthermore, I fivd that the violations herein are egre- gious because Respondent attempted to discourage em- ployees' union activities at their onset by discharging an employee who it perceived was at the forefront of those activities and by threatening the closure of Respondent's facility, a hallmtark violation of the Act. Precision Graph- ics, Inc., 256 NLRB 381 (1981). 1 shall, therefore, recom- mend that a broad cease-and-desist order be granted, re- straining Respondent tn any manner from interfering with, restraining, or coercing employees in the exercise of their Section 7 rights. lickkmott Ifoods. Inc., 242 NLRI3 1357 (1t79). Accordingly. upotn the entire record of this proceed- ing. including my observation (f the demeanor of the witnesses and upon consideration of the briefs submitted by the General Counsel and Respondent. and pursuant to ': See generaIli. Ai, I'.,:iob & nIlcatmI ((x. I i NI RB 716 1962) 153 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Section 10(c) of the Act, I hereby issue the following recommended: ORDER'6 The Respondent, Milton J. Garon and Richard B. Bergman d/b/a Autoglass and Upholstery Co., Louis- ville, Kentucky, their officers, agents, successors, and as- signs, shall: 1. Cease and desist from: (a) Discharging its employees because they joined, supported, and assisted International Brotherhood of Painters and Allied Trades, Glaziers Local 1529, AFL- CIO, and in order to discourage any membership in and support and assistance of the Union by its other employ- ees. (b) Interrogating its employees concerning their sym- pathies for and activities on behalf of the Union and con- cerning the sympathies and activities of its other employ- ees. (c) Threatening its employees with plant or division closure if the Union were selected as their collective-bar- gaining representative, in order to induce its employees to abandon their support for the Union. (d) Creating the impression among its employees of surveillance of their union activities. (e) Soliciting its employees to aid in discouraging their fellow employees' union activities or sympathies. (f) Soliciting its employees' grievances and impliedly promising to resolve them in order to discourage their union activities or sympathies. (g) Promising its employees that it will grant new benefits in order to discourage their union activities or sympathies. (h) In any other manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed them in Section 7 of the National Labor Re- lations Act, as amended. 2. Take the following affirmative action designed to ef- fectuate the policies of the Act: (a) Offer Ralph Curtis Rexroat immediate and full re- instatement to his former position or, if that position no longer exists, to a substantially equivalent position, with- out prejudice to his seniority and other rights and privi- leges previously enjoyed, and make him whole for any loss of earnings he suffered by reason of the discrimina- tion against him from April 21, 1981, with interest there- on, to be computed as described above. (b) Expunge from its files any references to the dis- charge of Ralph Curtis Rexroat on April 21, 1981, and notify him in writing that this has been done and that evidence of this unlawful discharge will not be used as a basis for future personnel actions against him. (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 16 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings. conclusions, and Order, and all objections thereto shall be deemed waived for all purposes records necessary to analyze the amount of backpay due under the terms of this Order. (d) Post at its downtown Louisville, Kentucky, place of business copies of the attached notice marked "Appen- dix."'7 Copies of said notices, on forms provided by the Regional Director for Region 9, after being duly signed by a representative of Respondent, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to ensure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 9, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. I-r IS FURTHFiR ORDERED that the complaint be dis- missed insofar as it alleges violations of the Act other than those found herein. " In the esent that tilis Order is enforced by a Judgment of a United Stltes Court of Appeals. the sords it) the notice reading "Posted by Order of the National Labor Relationls Board" shall read "Posted Pursu- ant to a Judgment of the United Statec C.ourl of Appeals Enforcing an Order of the National l.abor Relations Board APPENDIX No ricE To EMIPI.OYI1ES POSTED BY ORDER OF THI NA TIONAl LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportunity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has or- dered us to post this notice. WE Wi.l NOT- discharge our employees because they joined, supported, and assisted International Brotherhood of Painters and Allied Trades, Gla- ziers Local 1529, AFL-CIO, and in order to dis- courage the membership in and support and assist- ance of the Union by our other employees. WE WII. NOT interrogate our employees con- cerning their sympathies for and activities on behalf of the Union and concerning the sympathies and ac- tivities of our other employees. WE Wl I. NOl threaten our employees with plant or division closure if the Union were selected as their collective-bargaining representative, in order to induce our employees to abandon their support for the Union. WE WlllI NO1 create the impression among our employees of surveillance of their union activities. WE. Wll NO'r solicit our employees to aid in dis- couraging their fellow employees' union activities or sympathies. W-VE WIll NOT solicit our employees' grievances and impliedly promise to resolve them in order to discourage their union activities or sympathies. 154 AUTOGLASS AND UPHOLSTERY CO. WE Wll L NOT promise our employees that we will grant new benefits in order to discourage their union activities or sympathies. WE WIL NOT in any other manner interfere with, restrain, or coerce our employees in the exer- cise of the rights guaranteed them in Section 7 of the National Labor Relations Act, as amended. WE WILL offer Ralph Curtis Rexroat immediate and full reinstatement to his former position or, if that position no longer exists, to a substantially equivalent position, without prejudice to his senior- ity and other rights and privileges previously en- joyed, and make him whole for any loss of earnings he suffered by reason of the discrimination against him from April 21, 1981, with interest. Wt. wi.l expunge from our files any references to the discharge of Ralph Curtis Rexroat on April 21, 1981, and notify him in writing that this has been done and that evidence of this unlawful dis- charge will not be used as a basis for future person- nel actions against him. MILTON J. GARON AND RICH^ARD B. BERGMAN D/B/A AUTOGI.ASS AND UPHOL- STERY CO. 155