Southern Illinois Petrol, Inc.

160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Southern Illinois Petrol, Inc. and Teamsters Local 347, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Cases 14-CA-17326, 14- CA-17326-2, 14-CA-17326-3, and 14-RC- 9828 31 October 1985 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY CHAIRMAN DOTSON AND MEMBERS DENNIS AND BABSON On 22 October 1984 Administrative Law Judge Thomas D. Johnston issued the attached decision. The Respondent filed exceptions and a supporting brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge's rulings,' findings,2 ' The Respondent contended that employee Robert Reiman's testimo- ny that he was told by Foreman Emory that Emory did not tell Vice President Rice that Reiman stole a CB radio was inadmissible hearsay. The statement by Emory, an admitted supervisor and agent of the Re- spondent, was not hearsay but an admission by party-opponent and there- fore properly allowed by the judge Fed R Evid. 801(d)(2). 2 The Respondent has excepted to some of the judge's credibility find- ings. The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings In adopting the judge's finding that the Respondent's stated reason for discharging Reiman, because it suspected he stole a CB radio, was pretex- tual, we note that the judge discredited Vice President Rice's testimony that Foreman Emory informed Rice that Reiman stole the radio Absent this information from Emory there is no record evidence on which the Respondent can rely to claim that it suspected Reiman stole the radio. In the absence of exceptions, we pro forma adopt the judge's recom- mendation to overrule Objections 2, 5, 8, 9-11, 13-15, and part C-E Chairman Dotson disagrees with his colleagues that the Respondent violated Sec 8(a)(1) when Foreman Anders told Robert Reiman in the presence of three other employees that there would be no more union campaigning and when owner West (pointing to Reiman's union button and saying Reiman was showing his true colors) indicated that he knew Reiman would vote for the Union Anders had instructed Reiman and other employees on several previous occasions not to discuss the Union on company time and there is no evidence that employees were allowed to discuss other nonwork subjects while working. The record does not show whether the Respondent had a no-solicitation rule. Under the cir- cumstances the General Counsel failed to show that Anders telling Reiman there would be no more union campaigning on company time constituted disparate treatment. Houston Coca-Cola Bottling Co., 265 NLRB 766, 782 (1982), modified 740 F 2d 398 (1984). Because Reiman openly proclaimed his union sentiment by wearing the union button, West's indicating that he knew how Reiman would vote was not inher- ently coercive Members Dennis and Babson find that under the circumstances of the Respondent's coercive and discriminatory conduct (the Respondent dis- charged employee Robert Reiman shortly after the representation elec- tion, before the election Reiman had been the target of repeated 8(a)(1) conduct, including the following. the Respondent's owner interrogated him several times about union organizing, threatened to withdraw bene- fits, threatened to fire employees who signed authorization cards, and and conclusions and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Southern Il- linois Petrol, Inc., DuQuoin, Illinois, its officers, agents, successors, and assigns, shall take the action set forth in the Order. IT IS FURTHER ORDERED in Case 14-RC-9828 that the election held on 9 March 1984 is set aside and the case is remanded to the Regional Director for Region 14, who shall conduct a new election in the appropriate unit at such time as he deems the circumstances permit the free choice of a bargain- ing representative. [Direction of Second Election omitted from pub- lication.] threatened plant closure), the foreman's and owner's actions reasonably tend to coerce within the meaning of Sec 8(a)(1). Robert S. Seigel, Esq., for the General Counsel. Mark J Rubinelli, Esq. and James M. Talent, Esq. (Moller, Talent, Kuelthau and Welch), of St. Louis, Missouri, for the Respondent. Nancy M. Watkins Esq., of St. Louis, Missouri, for the Charging Party. DECISION STATEMENT OF THE CASE THOMAS D. JOHNSTON , Administrative Law Judge. These consolidated cases were heard at Murphysboro, Il- linois, on July 16 through 18, 1984,' pursuant to charges filed by Teamsters Local 347, affiliated with Internation- al Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (the Union) on March 15 in Case 14-CA-17326, on March 20 in Case 14-CA-17326- 2, and on March 28 in Case 14-CA-17326-3 and an amended consolidated complaint issued on May 3. The amended consolidated complaint, as amended both prior to and at the hearing,2 and as clarified by the General Counsel in response to a motion filed by the Re- spondent for a bill of particulars, alleges that Southern Illinois Petrol, Inc. (the Respondent) violated Section 8(a)(1) of the National Labor Relations Act, by unlawful- ly interrogating employees about their union activities and those of other employees and about their knowledge of the union, requested and solicited employees to engage in surveillance of employees' union activities, of- fered to compensate an employee if the employee en- gaged in surveillance of employees' union activities, gave i All dates referred to are in 1984 unless otherwise stated. 2 Various allegations of par. 5, namely , subpars. 5(d), (I), (n), (o), (p), and (q) were deleted from the amended consolidated complaint based on the unopposed motion of the General Counsel which was granted after no evidence had been presented to establish those allegations. 277 NLRB No. 17 SOUTHERN ILLINOIS PETROL 161 the impression employees' union activities were under surveillance, threatened to and engaged in surveillance of employees' union activities, threatened to withhold em- ployees' benefits if employees chose union representation or in retaliation for employees' union activities, threat- ened to close the facility in retaliation for employees' union activities, denigrated an employee because of the employee's union activities, threatened to discharge em- ployees in retaliation for their union activities, solicited an employee to organize a petition opposing unioniza- tion, gave an employee the impression that union repre- sentation would be futile, solicited an employee to do whatever was necessary to induce employees to reject union representation, informed an employee that a regu- larly scheduled raise was being withheld because of em- ployees' union activities, instructed employees not to dis- cuss the union, and advised an employee that Respond- ent's owner knew how the employee would vote in the representation election; and violated Section 8(a)(1) and (3) of the Act by discriminatorily imposing more onerous working conditions on Robert Reiman by transferring Reiman from the mechanic shop to the tire shop, dis- charged and refused to reinstate Robert Reiman and James Leonard, Sr. and withheld regularly scheduled wage increases from William Sizemore because they joined, supported, or assisted the Union and engaged in concerted activities for the purpose of collective bargain- ing or other mutual aid or protection and to discourage employees from engaging in such activities or in other concerted activities for the purpose of collective bargain- ing or other mutual aid or protection. The amended con- solidated complaint further alleges that because of these unfair labor practices a remedial order requiring the Re- spondent to recognize and bargain with the Union is warranted. The Respondent in its answer served on May 15 denies having violated the Act as alleged. The issues involved are whether the Respondent vio- lated Section 8(a)(1) and (3) of the Act as alleged by en- gaging in unlawful interrogations, solicitations, offers, and surveillances, by creating impressions of surveillance; by issuing threats, statements, and instructions regarding employees' union activities; by discriminatorily transfer- ring Robert Reiman, discharging Robert Reiman and James Leonard Sr., and withholding wage increases from William Sizemore because-of their union or protected concerted activities; and whether a bargaining order is warranted. An additional issue is whether the objections to the conduct of the election discussed infra have merit to warrant setting aside the election results. The Regional Director for Region 14 by order con- solidated for hearing with the issues involved in the amended consolidated complaint the resolution of certain objections filed by the Union and certain "Other Acts and Conduct" not specifically alleged but disclosed by the investigation concerning the election held in Case 14-RC-9828. That election which the Union lost3 was 3 The Regional Director's Report on Objections, Order Approving Withdrawal of Certain Objections, and Order Directing Hearing, and Order Consolidating Cases and Notice of Hearing dated April 13, reflects out of approximately 12 eligible voters, 5 cast valid votes for and 6 cast valid votes against the Union, with 1 challenged ballot conducted on-March 9 pursuant to a Stipulation for Cer- tification Upon Consent Election approved by the Re- gional Director on February 16 based on a petition filed by the Union on February 3. The Union's Objections involved are as follows: 1. On or about February 6, 1984 the Employer's agent, Mr. Valley West, informed the employees that if the Union won the election the Company might quit supplying uniforms and gasoline for their automobiles. Mr. West further stated that those terms would be changed over time, that the compa- ny would begin utilizing three shifts, and the com- pany would stop giving Christmas bonuses if the Union won. 2. On or about February 6, 1984 Mr. West held a meeting with two employees after which they signed a petition stating that they did not want a union shop and then requested other employees to sign said petition. 3. On or about February 6, 1984 Mr West inter- rogated employees in his office with regard to their Union activity and specifically asked whether the employees had contacted the National Labor Rela- tions Board or a Union organizer. 4. On or about February 8, 1984 Mr. West threat- ened to "buy" the authorization cards filed with the National Labor Relations Board to discover who signed them. 5. On or about February 9, 1984 Mr. West inter- rogated certain employees regarding whether they had signed authorization cards. 6. On or about February 9, 1984 Mr. West told employees that they would lose their benefits, in- cluding health insurance, if the Union won the elec- tion. 7. On or about February 9, 1984 Mr. West made the statement that he knew which employees were behind the Union activity. 8. On or about February 14, 1984 Mr. West threatened to lay off five (5) employees if the Union won the election. 9. On or about March 5, 1984 employees were transferred from one position to a less desirable po- sition. 10. On or about March 5, 1984 Mr. West interro- gated certain employees regarding whether they in-, tended to vote for the Union. 11. On or about March 5, 1984 and March 6, 1984 Mr. West listened in on the private phone con- versation of the Company's employees. 13. On or about March 7, 1984 certain employees were denied their regularly scheduled wage in- crease and were interrogated regarding their Union activities. 14. On or about March 8, 1984 Mr. West made the statement that the Employer would be able to discharge people even if the Union won the election because he could just "write up" an employee who was late for work and fire him. 162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 15. On or about March 8, 1984 Mr. West made the statement to an employee that a fellow employ- ee was no good. The "Other Acts and Conduct" not specifically al- leged are as follows: Part A It is alleged in the complaint at paragraph 5, sub- paragraph F(ii), that Employer Owner West threat- ened to close the facility in retaliation for employ- ees' union activities, in violation of Section 8(aXl) of the Act, and that such conduct occurred between the date the petition was filed and the date of the election. Part B It is alleged in the complaint at paragraph 5, sub- paragraph I, that Employer Owner West gave an employee the impression that union representation would be futile, in violation of Section 8(a)(l) of the Act, and that such conduct occurred between the date the petition was filed and the date of the elec- tion. Part C It is alleged in the complaint at paragraph 5, sub- paragraph N, that Employer Owner West gave an employee the impression that union representation would be futile, in violation of Section 8(a)(1) of the Act, and that such conduct occurred between the date the petition was filed and the date of the elec- tion. Part D It is alleged in the complaint at paragraph 5, sub- paragraph Q, that Employer Owner West implied that bargaining with the Union would start from scratch, in violation of Section 8(a)(1) of the Act, and that such conduct occurred between the date the petition was filed and the date of the election. Part E It is alleged in the complaint at paragraph 5, sub- paragraph R, that Employer's Foreman Anders in- structed employees not to discuss the Union, in vio- lation of Section 8(a)(1) of the Act, and that such conduct occurred between the date the petition was filed and the date of the election. Since parts C and D of "Other Acts and Conduct" were based on paragraphs 5(n) and (q) of the amended consolidated complaint, respectively, and those allega- tions were deleted on the grounds no evidence was prof- fered to support them, I find those two objections have no merit and they are overruled. On the entire record in this case and from my observa- tions of the witnesses and after due consideration of the briefs filed by the General Counsel and the Respondent4 I make the following5 FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent, an Illinois corporation with its prin- cipal office and place of business located at DuQuoin, Il- linois, is engaged in the business of providing nonretail truck repair and service and nonretail sale and distribu- tion of tires, gasoline, fuel oil, and related products. During the year ending March 31, a representative period, Respondent in the course of its operations pro- vided truck repair and service and caused to be sold and distributed tires, gasoline, fuel oil, and related products at its DuQuoin, Illinois facility, valued in excess of $50,000, of which services and products, valued in excess of $50,000, were furnished to enterprises each of which meet other than a solely indirect standard of the Board for the assertion of jurisdiction. The Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Teamsters Local 347, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Background and the Appropriate Unit The Respondent operates a facility located at Du- Quoin, Illinois, where it is engaged in the nonretail truck repair and service and sale and distribution of tires, gaso- line, fuel oil and related products. Included among its of- ficials and supervisors were Owner and President Vallie West, Vice President James Rice,6 Shop Foreman Dee Anders, and Shop Foreman James Emory7 who left in May. About the middle of January the Union began an orga- nizing campaign among the Respondent's employees. It filed a petition with the Board on February 3, seeking to represent the Respondent's employees. On March 9 an election was held which the Union unit lost; however, objections to the conduct of the election were filed by the Union. The pleadings admit and I find that the following unit constitutes a unit appropriate for the purposes of collec- tive bargaining within the meaning of Section 9(b) of the Act: All employees employed by the Employer at its DuQuoin, Illinois facility, excluding all office cleri- 4 The Union did not submit a brief e Unless otherwise indicated the findings are based on the pleadings, admissions, stipulations, and undisputed evidence contained in the record which I credit ® Rice is the son-in-law of West. 7 These four persons were supervisors under the Act SOUTHERN ILLINOIS PETROL 163 cals and professional employees , guards, and super- visors as defined in the Act. B. Signing Union Authorization Cards During the period from January 27 through February 6 there were, 13 unit employees employed by the Re- spondent. They were Rodney Carrothers, Joseph Clark, Frederick Davidson, James Leonard, Sr., Jackie Loucks, Terry Loucks, Daniel Morski, Leonard Moss, David Newton, Robert Reiman, William Sizemore, Benjamin Moss, and William Lyle, Jr. Among this group of 13 employees 8 of them, includ- ing James Leonard, Sr., William Lyle, Jr., William Size- more, David Newton, Joseph Clark, Robert Reiman, Leonard Moss, and Benjamin Moss all signed union au- thorization cards during the period from January 17 through 27 which list the Respondent as their employer. These cards are entitled "Authorization For Representa- tion and Union Shop" and list the name of the Union provided in the body as follows: I hereby request and accept membership in the above named union, and of my own free will au- thorize it, their agents or representatives to act for me as a collective bargaining agency in all matters pertaining to pay rates, wages, hours of employ- ment and other conditions of employment. I agree to be bound by and comply with the Constitution, rules and regulations of the Teamsters's Union Local 347, Affiliated with I.B.T.C.W. & H of America. The union authorization cards of James Leonard, Sr., David Newton, and Joseph Clark were identified by those employees themselves who acknowledged reading the cards and then signing them. James Leonard, Sr., who solicited employees to sign cards, identified the cards of William Lyle, Jr., Benjamin Moss, Leonard Moss, and Robert Reiman's who he stated signed them in his presence. Leonard also said Lyle appeared to read the card before signing it. However, Leonard denied knowing whether Benjamin Moss and Leonard Moss who took the cards home with them had read their cards before signing them. Another employee, Harry Peterson who worked as a helper in the mechanic shop until he was laid off on Jan- uary 21, also identified a card he signed on January 18 after reading it. Peterson further stated he solicited Wil- liam Sizemore9 to sign a card telling him the card was to help unionize and would show a certain amount or per- centage of people interested in joining a union and if they had a certain amount of people then there would be an election. Peterson denied saying the card would be used only for an election. Sizemore then took the card and returned it to Leonard a couple of days later already filled out, signed, and dated January 19. Leonard, who initially contacted the Union and was instrumental in attempting to organize the employees, testified on first meeting with Union Organizer and Busi- Reiman acknowledged signing a card after reading it. Sizemore did not testify ness Agent Melvin Allen on January 17 about organizing the employees Allen gave him union authorization cards to get signed. Allen explained the cards had two pur- poses. These purposes were to obtain a majority and ask for voluntary recognition of the employer or, after ob- taining a sufficient showing of interest, to have an elec- tion conducted by the National Labor Relations Board. After discussing these options Leonard stated based upon opinions expressed to him by the other employees inter- ested in organizing that they decided asking for volun- tary recognition would not be the way to go. Leonard then signed his own card and gave it to Allen. Allen, who is presently an organizer for Teamsters Joint Coun- cil No. 65, corroborated Leonard's testimony and ac- knowledged that Leonard was opposed to seeking volun- tary recognition. Leonard, who then solicited other employees to sign cards including William Lyle, Jr., Harry Peterson, Benja- min Moss, Leonard Moss, Joseph Clark, and Robert Reiman, stated on talking to them about signing the cards that he explained to them prior to their signing the cards the two options. However, they rejected the option of seeking voluntary recognition. Leonard denied telling any of the employees the sole purpose of the cards was to obtain an election. Harry Peterson in recounting what Leonard had told him about signing the card made no mention of the option of seeking voluntary recognition but denied Leon- ard said the cards would be used only for an election. Contrary to his direct testimony, however, Leonard admitted having signed an unworn statement given by him to Respondent's attorney Rubinelli concerning both what Allen told him about the cards and what he told the employees. This statement reflects that Allen in- formed Leonard that all signing the card meant was that it showed interest in a petition to vote for a union and that Leonard told employees it only meant it was show- ing an interest in getting an election. There was no men- tion in this statement about the option of seeking volun- tary recognition. Leonard also acknowledged in an affi- davit given by him to a Board agent concerning what Allen had told him about the cards that there was noth- ing in the affidavit about approaching the Respondent for recognition. Joseph Clark, presented as a witness by the Respond- ent, testified that Leonard who got him to sign a card informed him the cards were just to have a vote. Another employee, Terry Loucks, who did not sign a card and testified as a witness for the Respondent, stated Leonard talked to him several times about signing a card and the only thing Leonard said about the card was he needed a majority to get a union vote to come in. Based on Leonard's own testimony, corroborated in part by Business Agent Allen, Leonard as well as those employees solicited by Leonard to sign authorization cards had prior to signing their cards ruled out the option of the Union using them to seek voluntary recog- nition by the Respondent. Thus, implicit in their actions was they signed the authorization cards solely for the purpose of getting an election. This finding that the cards would be used only to get an election is also con- 164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sistent with Leonard's signed statement in which he said he informed employees whom he solicited to sign cards that all signing the card meant was that it was showing an interest in getting an election and with Joseph Clark's testimony that Leonard informed him the cards were just to have an election. C. Unlawful Interrogations, Solicitations, Offers, Surveillances, Threats, Statements, and Instructions Several employees testified concerning conversations they had with Owner West and Shop Foreman Anders concerning the Union. On February 6 James Leonard Sr . testified that West in the presence of Anders asked him where he had been the previous Friday and whether he had been to a union office and talked to a union representative . Leonard denied it and West asked him whether he went to the NLRB and filed a charge against West. Leonard also denied it whereupon West looked at Anders and re- marked he believed Leonard . West then said there was union talk going on which he wanted stopped and asked Leonard if he knew who was responsible . Leonard denied knowing and West asked Leonard if Leonard found out who was responsible or if anyone approached Leonard for him to let West know. West stated if the Union got in he did not have to furnish uniforms, insur- ance, Christmas bonuses, or the weekly tank of gas they received. 1o Robert Reiman also testified that on February 6 West in the presence of Anders asked him if he knew anything about the Union trying to get in and whether he had called or had a relative working for the NLRB. Reiman denied knowing anything about the Union trying to come in or having a relative working for the NLRB but mentioned he had a relative who was a union steward. West then asked Reiman if he could find out anything and to let them know . Anders also indicated the Union was no good. David Newton testified about a couple of weeks after he had signed a union authorization card, which was on January 26 , West asked him if he knew anything about the union business going on, which Newton denied. On February 6 Owner West stated he received from the NLRB a copy of the union petition in Case 14-RC- 9828 filed on February 3 along with a transmittal letter and accompanying documents requesting commerce in- formation, designation of agent for service, appearance notice, procedures to be followed, and a notice advising employees of their rights . West after showing these doc- uments to Vice President Rice and Shop Foreman Anders stated he then, or shortly afterwards, talked to almost every employee about receiving the documents and asked them if they knew anything about it, which they denied. Under cross-examination, however, West said when he spoke to the employees he asked them if they knew anything about the Union. 10 The employees' benefits as described by Owner West include a free tank of gasoline each week, uniforms, double pay for overtime work, free hospitalization and life insurance, a noncontributing pension plan, and Christmas bonuses West acknowledged talking to both Leonard and Reiman. However, he stated he only asked them like the other employees whether they knew anything about the documents and he denied making the statements attrib- uted to him by Leonard and Reiman. When Leonard denied having any knowledge about them West said he told Anders who was present that he believed Leonard. According to West no one else was present when he talked to Reiman. West also stated a few days later that Reiman informed him he had "kin folks" on the NLRB and he could help him; however, he told Reiman he did not want anything to do with them. i, i While Foreman Anders testified, he did not testify about these conversations. I credit Leonard, Reiman, and Newton rather than West. Apart from my observations of the witnesses in discrediting West his testimony was both contradictory and implausible. Having credited them I find that on February 6 Owner West interrogated James Leonard Sr. about his union activities, solicited Leonard to report to West who was responsible for the union talk going on or if anyone approached Leonard about it, and threatened Leonard if the Union got in West did not have to furnish uniforms, insurance, Christmas bonuses, or the weekly tank of gas which benefits employees were then receiv- ing; on February 6 Owner West interrogated Robert Reiman about his knowledge of the Union trying to or- ganize the Respondent's employees, and solicited Reiman to find out about the Union trying to organize the Re- spondent's employees and to let West know; and about February 6 Owner West interrogated David Newton about his knowledge of the union trying to organize the Respondent's employees. However, I do not find as further alleged that Owner West on or about February 6 interrogated an employee about the employee signing a union card or gave an em- ployee the impression the employees' union activities were under surveillance. Robert Reiman stated that, about a week later, al- though it could have been earlier or later, Owner West asked him what he had found out about the Union and if he knew who all was involved. When Reiman denied he had found out anything West mentioned he felt Leonard was behind it and had stabbed him in the back and given him a raw deal because he had helped Leonard out by helping him get up there and giving him a job. West asked Reiman to see what else he could find out about the Union and to let him know, whereupon he promised West he would see what he could do. During the con- versation West said that one way or the other he was going to get the cards that were signed and he men- tioned he knew Neal Moss and Benny Moss had signed cards. West also told Reiman he did not have to let them have free gas, Christmas bonuses, supply uniforms, and the other fringe benefits they had and they could be taken away if the Union was brought in. West further said he could fire those employees who had signed cards and if the Union got in he would close the place down. 11 Reiman denied making such statement SOUTHERN ILLINOIS PETROL Owner West denied having such a conversation with Reiman or making such statements to him . However, I credit Reiman rather than West, whom I have previously discredited, and find that about the week of February 13 Owner West interrogated Robert Reiman about his union activities and those of other employees, threatened Reiman if the Union got in the free gas , Christmas bo- nuses, uniforms, and other fringe benefits could be taken away and the plant would be closed down , solicited Reiman to find out about the Union and to let West know, and denigrated James Leonard Sr. by mentioning Leonard was behind the Union and accusing Leonard of stabbing West in the back and giving West a raw deal by trying to organize the Respondent 's employees. Reiman testified that about a week or so later (which would have been about the week of February 20 or 27) he had another conversation with West. West asked Reiman what he had found out, whereupon Reiman re- plied he had not found out much but he promised to see what he could do. West repeated that he felt Leonard had given him a raw deal and questioned Reiman about whether he felt West had mistreated him. Reiman denied West had mistreated him and remarked it really was not against West but a lot of employees were afraid of what might happen if Vice President Rice took over. West named four employees-Rodney Carrothers, Jack Loucks, Dan Morski, and Fred Davidson-and said he knew they had not signed cards and were against the Union and were for the Company and that the other em- ployees were pretty well for the Union. Reiman, who said lie had previously told West he was undecided, agreed . West then mentioned if the Union got in he would not have to bargain with them and he would close it down. On Reiman replying there would probably be some trouble and picketing West remarked he had friends in high places and he used to be police chief in DuQuoin and he could handle it; he even had shotguns. West also said he would pay $ 100,000 to keep the Union out. West asked Reiman how his wife felt about the Union whereupon Reiman said she was kind of neutral and did not care. West asked Reiman to get a petition together and to try to get a bunch of employees to sign a petition to keep the Union out and to take it to the NLRI;I to stop the election. Reiman promised to see what he could do. West again asked him to find out what he could and to let him know and Reiman said he would. During the conversation West also said if the Union got in the double time overtime , bonuses, and all the benefits would stop . West further said he was going to get the cards even if he had to pay to get them and if he got the cards those whose names were on the cards would be fired. Owner West denied having such a conversation with Reiman or making the statements attributed to him by Reiman. Based on Reiman's testimony, which I credit for rea- sons previously given, I find that about the week of Feb- ruary 20 or 27 Owner West interrogated Robert Reiman concerning what he had found out about the Union; so- licited Reiman to organize a petition and get employees to sign it to keep the Union out and to stop the Board election; solicited Reiman to find out what he could 165 about the Union and to let West know; informed Reiman if the Union got in West would not have to bargain with it and West would close the plant down thereby giving Reiman the impression that union representation would be futile; threatened Reiman with obtaining the union au- thorization cards employees had signed and to fire those employees who had signed authorization cards; and of- fered to pay money to keep the Union from organizing the Respondent's employees. 12 I do not find such evi- dence establishes as further alleged that West offered to compensate Reiman for engaging in surveillance of em- ployees' union activities. Robert Reiman also testified about a week before the election held on March 9 he received a telephone call at work from Union Business Agent Allen, whom he had attempted to call earlier that day from the plant. Reiman, who was paged on the intercom system for this call by the secretary, stated that, on going to the telephone which was located on the wall outside Vice President Rice's office and picking up the receiver, the only blink- ing light among the lights for four lines on the telephone lighted up. According to Reiman, Allen identified him- self as Mel and asked if they could talk. However, Reiman said at the time there was a clicking sound on the telephone and he saw Owner West in the secretary's office with a telephone receiver from the telephone on the secretary's desk in his hand which he was holding by his ear. Reiman said he informed Allen they could not talk then and as he hung up the telephone he saw West also hang up. Under cross-examination Reiman acknowl- edged it was possible West had been on another line and also that one of the lights on the telephone might have been out. Allen acknowledged that on one occasion, although he could not recall the date, he had called Reiman at work and Reiman had said he could not talk then. Allen denied identifying himself to the secretary who answered the telephone and said he only identified himself as Mel to Reiman. Owner West, who stated that employees received per- sonal telephone calls at the plant all the time, denied ever listening in on a telephone conversation regarding Reiman and I credit his denial. Further, Reiman's own version fails to establish that West was actually listening in on the call since logically West could have been at- tempting to place a call himself. James Leonard Sr., while wearing a union button on his vest and serving as the Union's only observer in the election, stated that about 8:30 a.m. on March 9, the day of the election, Owner West told him he was not telling him how to vote but reminded him West did not have to furnish gas, uniforms, and their benefits if the Union came in. West said he had had two heart attacks himself and that Leonard's heart trouble was all this union stuff. ;i While the evidence further establishes on this occasion Owner west also indicated to Reiman he knew the identities of those employees who were both for and against the Union and was going to get the union au- thorization cards even if he had to pay to get them both of which are alleged in the Union's objections and again threatened that employees' benefits would stop if the Union was selected to repi esent the employees, this was not alleged and no violation would be found 166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD While Leonard also testified West mentioned something to the effect if the Union got in it would not stop West from firing people, Leonard did not testify specifically what West said about it. Owner West, who acknowledged seeing Leonard wearing a union button the day of the election and knew he was the Union's observer, denied having a conversa- tion with Leonard that day or making such statements to Leonard. I credit Leonard and find that about 8.30 & in. on March 9 Owner West impliedly threatened James Leon- ard, Sr. if employees voted for the union the Respondent did not have to furnish gas, uniforms, and other benefits. About a week before the election on March 9 David Newton testified that Owner West asked him how he thought the election would go, whereupon he replied they would just have to wait and see. While West did not specifically deny such conversation and I credit Newton's undisputed testimony this was not alleged and no violation will be found. Robert Reiman testified that about 2 weeks before the March 9 election he was in the tire shop talking to em- ployee Benjamin Moss about the Union when Shop Foreman Anders came and told them he did not want any union talk on company time. After Reiman was transferred to the tire shop about that same time he stated that at several times, the dates of which were not established, Anders told him not to be talking union on company time. On the day before the election Reiman, who was wearing a union button, stated he was in the tire shop talking to James Leonard Sr., Joe Clark, and Dave Morski about the election when Anders told him there was no more campaigning and if Reiman did not think they did not know he was campaigning Anders would take Reiman up front and prove it to him. Reiman denied he was campaigning. Shop Foreman Anders did not deny having such con- versations with Reiman. I credit Reiman's undenied testi- mony and find that about February 24 Shop Foreman Anders instructed Robert Reiman and Benjamin Moss and several times afterwards instructed Reiman not to discuss the Union on company time13 and on March 8 Anders instructed Robert Reiman in the presence of three other employees there would be no more union campaigning. Following this conversation with Anders, Reiman tes- tified he then went and asked Owner West what proof they had he was campaigning. West' s response was they did not have to have any proof and he said the proof was on Reiman's shirt. Reiman then asked West why they had transferred him from the other shop at which time West replied he would move him wherever he wanted because he owned the place. Owner West acknowledged having a conversation with Reiman that day but claimed on that occasion Reiman pointed to the union button he was wearing and told him the reason he was wearing the button was be- cause they had transferred him from the mechanic's shop 1s The record does not reflect whether the Respondent had a no-sohcl- tation rule or whether employees were allowed to discuss other nonwork subjects while working. to the tire shop.14 West said he informed Reiman he was not allowed to talk to him before the election or to talk anything about it which ended the conversation. West denied anything else was discussed. While I credit Reiman rather than West for reasons previously stated this statement was not alleged and no violation will be found. Reiman testified that early on the morning of March 9, election day, Owner West pointed to the union button Reiman was wearing and said he saw Reiman showed his true colors, Reiman's response was he had to do what he had to do. Owner West denied making such statement to Reiman. however, I credit Reiman and find that early on the morning of the Board election, March 9, Owner West in- dicated to Reiman that he knew Reiman would vote for the Union. D. Alleged Withholding of William Sizemore's Wage Increase New employees are paid wages as described by Presi- dent West at the rate of $170 a week for the first month, then raised to $180 a week for the second month, and the third month they are raised to $215 a week. West denied the 3-month pay progression program is a hard- and-fast rule for every employee and explained that em- ployees who are already trained when hired can move up more quickly. Employees hired without experience are on a 3-month trial period and they receive salary in- creases during that period as indicated. William Sizemore who worked as a mechanic was hired on December 14, 1983, and quit about March 12 or 14. According to West, Sizemore started at the base pay rate. While West first said he did not know but did not think Sizemore received increases, after that he subse- quently testified he could not remember whether Size- more received pay raises prior to the election. Robert Reiman testified that about the second or third week in February he was present during a conversation between Sizemore" and Owner West during which Si- zemore asked West when Sizemore was going to get his raise. West responded by saying, "Well, until this union business is done, I can't give no raises because it might look like that I'm trying to give a favoritism towards you.,, Owner West did not specifically deny making such statement and, based on Reiman's testimony which I credit, I find that about the second or third week of Feb- ruary Owner West informed William Sizemore, who asked about a wage increase , that until the union business was done he could not give any raises. E. The Discriminatory Discharge of James Leonard Sr. James Leonard Sr. was employed by the Respondent from May 27, 1983, until March 19 and worked as a tire service man under the supervision of Shop Foreman 14 Reiman denied making such a statement 15 Sizemore as previously indicated did not testify SOUTHERN ILLINOIS PETROL Anders. His duties included changing and repairing tires and installing earth- moving-type tires. Leonard's union activities included initially contacting the Union about organizing Respondent's employees, at- tending meetings, soliciting employees to sign authoriza- tion cards, wearing a union button at work on March 9, and serving as the only union observer in the Board-con- ducted election. Robert Reiman credibly testified without denial that about a week before the March 9 election he overheard employee Rodney Carrothers tell Shop Foreman Anders since Leonard was involved with this "union activity _„ 216 that he felt "Leonard ought to get all the - jobs." Anders responded by informing Carrothers that Leonard "would get all the jobs." 17 On Friday, March 16, Leonard, while performing work at a customer's facility, accidently lacerated his finger when a chain he was using on a tire snapped. Vice President Rice gave Leonard a ride to his vehicle to go to the doctor. Leonard went to the doctor, who treated him and gave him a release telling him not to work until he saw him on Monday which would have been March 19. Leonard testified he took the release to the Respond- ent that same day and gave it to Shop Foreman Anders, who looked at it and said, "Okay," and to take it easy. Anders did not dispute Leonard's testimony which I credit. Vice President Rice acknowledged Leonard in- jured his finger and he gave him a ride to go to the doctor. He also stated later that day Leonard gave him the doctor's excuse but denied anything was said. On Monday morning, March 19, on arriving at the Re- spondent, Leonard was informed Rice wanted to see him. Leonard testified on going to Anders' office Rice told Leonard he was having a problem with Leonard being hurt and also said Leonard should have come in over the weekend and supervised if nothing else. Rice further said he had no problem with Leonard until he took the weekend off with his hurt finger. When Rice mentioned a problem with the fifth gear in one of the trucks and something about one of the other boom trucks, Leonard informed Rice unless he had concrete proof he would advise Rice not to make allegations to him. Rice then told Leonard he was terminating him. Rice also commented he did not understand what was going on and said for awhile they "had good people and things were getting done and then all this start- ed. "18 Vice President Rice, who claimed he alone made the decision to discharge Leonard,19 acknowledged dis- charging Leonard on March 19. Rice said he told Leon- ard he felt Leonard could have helped them out over the weekend and with his finger being hurt he could have gone out on a truck with another individual. When Leonard responded he did not know he was able to do 16 The omitted word used in this conversation in a vulgar expression for excrement 11 This conversation was not alleged as a violation 18 The omitted word is a vulgar expression for a bull's excrement and I find that Rice in using such term in his statement was referring to union activity 19 Although Owner West was at the plant on March 19 both West and Rice denied they discussed discharging Leonard prior to the discharge. 167 that, he told Leonard if Leonard thought anything and could have helped them out he felt that would have been one way to offer. According to Rice they also talked about Leonard's accident record. Although Leonard said he felt he was not getting hurt that much and he could not help getting hurt, Rice said he felt Leonard had been getting hurt too much and with people getting hurt in- surance rates were getting high. Rice then informed Leonard he was terminated. Shop Foreman Anders, who was present, corroborated Rice's version of the discharge conversation. While Rice stated he did not recall using the word 11"20 in the conversation, Anders said he did not hear Rice make such a remark. To the extent the testimony of Leonard conflicts with that of Vice President Rice and Shop Foreman Anders I credit Leonard. Besides my observations of the witnesses in discrediting Rice and Anders I do not find their testi- mony plausible; Rice also gave contradictory testimony. Rice, who acknowledged 'he had not previously warned Leonard, stated he made the decision the previ- ous Saturday to discharge Leonard. His reasons, which he denied had anything to do with the Union, were be- cause he felt they were short handed at the time and did not have many big tire service people and Leonard could have volunteered to go on the truck with another person and supervise or tell the other person what to do to get the job done, and also because Leonard was getting hurt quite a bit. Under cross-examination however Rice acknowledged he had not asked Leonard to come in and work over the weekend. According to Rice, Leonard's injuries included three finger injuries which occurred in July 1983, October 1983, and on March 16 and two head injuries which oc- curred in August 1983 and January; he stated Leonard lost a few days on each of those occasions.21 Leonard acknowledged having suffered a couple of in- juries besides his finger injury on March 16. They in- volved incidents when pieces of metal from machines nipped him above the eye on one occasion and hit him in the palm of his hand on the other occasion, for which he believed he missed 1 day's work on each occasion. Under cross-examination Leonard said an injury to his left hand and thumb occurred in the summer of 1983 and on January 21 he had an injury to his head which result- ed in a concussion. The Respondent's records of workmen's compensation claims filed reflect Leonard suffered a finger injury on July 16, 1983, for which he lost 1 day from work; suf- fered an injury to his forehead on August 11, 1983, for which he lost one-half a day from work; injured his finger on October 5, 1983, for which he refused treat- ment and no lost days were shown; suffered a concussion on January 21 and lost 5 days from work; and injured his finger on March 16 at which time he lost 3 days from work. 20 The omitted word is the same word previously described. 21 While Leonard was off work from about February 21 until March 8 because of a minor heart attack Rice denied relying on it as a basis for his discharge. 168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Rice testified that about October 20 or 21, 1983, he had terminated another employee Danny Prather because he was getting hurt too much. The Respondent's work- men's compensation claims records reflect Prather in- jured his ankle on May 3, 1982, and lost 5 days from work; injured his shoulder and collarbone on March 3, 1983, for which no lost days were shown; and injured his shoulder, neck, and wrist on August 2, 1983, and lost 70 days from work. Rice also stated that about the end of June 1983 Prather was off work about 20 to 25 days as a result of a fight in a bar. Since Leonard's discharge he has not been offered his job back. F. The Transfer and Discriminatory Discharge of Robert Reiman Robert Reiman was employed by the Respondent from October 10, 1983, until March 26. On being hired Reiman stated that Owner West who hired him informed him he was being hired as a mechanic. However, Reiman acknowledged West did not tell him he would be doing only mechanic's work. Owner West stated that when he hired Reiman he discussed with him that he would be working where they needed him and Reiman indicated he could do anything and was willing to do anything West needed done. According to West, the Respondent's policy is to use employees wherever they are needed and other employees, including mechanic J. Evilsizer have been transferred from the mechanic's shop to the tire shop. From the time he was hired up until about 2 weeks before the March 9 election, which would have been about February 24, Reiman, who was a skilled and certi- fied mechanic, worked as a mechanic in the machine shop. His duties included inspecting, tuning up, and overhauling trucks. Reiman worked under the supervi- sion of Foreman James Emory after Emory was hired in January. Reiman's union activities included attending a union meeting, signing an authorization card, and on March 8 and 9 wearing a union button at work. About 2 weeks prior to the March 9 election Reiman stated he had been discussing the election with employee Daniel Morski when Foreman Emory came in and, using profanity mentioned unions were poor and did not do another company (which he referred to by name), any good. Emory did not testify and I credit Reiman's undis- puted testimony. About February 24 Reiman was transferred to the tire shop where he worked until his discharge under the su- pervision of Shop Foreman Anders. Reiman stated that on that date he was called into the office at which time Owner West told him to report to Shop Foreman Anders to work with him. West acknowledged transfer- ring Reiman to the tire shop in late February. While Reiman denied any reason was given West said he told Reiman they were busy over there and they needed him. West testified he made the decision to transfer Reiman and the reason was because they were busy in the tire shop while Reiman was not busy at the time in the me- chanic's shop. Reiman's basic rate of pay and level of benefits remained the same following his transfer. Reiman had never worked in the tire shop before and did not know how to perform the work. He described his duties there included using a chopper to break down tires which was back bending, dirty, and more strenuous work than mechanic's work. Further, the work in the tire shop was more hazardous because when work was being performed on split rims, which is done inside a cage, a rim could come out from between the bars of the cage and hurt the person performing the work. On March 9 Reiman was injured on the job when a stack of tires being unloaded from a truck fell off and struck him on the leg resulting in a bad sprain. He was taken to the hospital where he was treated and told by the doctor (who gave him a slip) to lay off from work for a week. Following this Reiman returned to the Re- spondent the same morning prior to the election held that day at which time he stated he told both Vice Presi- dent Rice and Foreman Anders the doctor did not want him to work for a week at which time Reiman was to report back to the doctor who would tell him whether he could return to work then. Rice and Anders both told Reiman not to report back until he had a return-to-work slip. Both Owner West and Vice President Rice acknowl- edged Reiman was injured on the job on March 9. While Rice denied talking to Reiman that day Anders did not deny doing so. I credit Reiman rather than Rice for rea- sons previously given. About a week later Reiman stated he informed Rice the doctor did not want to release him because the swell- ing was too bad; he wanted him to stay off his foot and had given him some crutches. Rice said, "Okay" and for him not to return unless he had a return-to-work slip. Rice then took Reiman into the mechanic's office where Reiman stated Rice asked him whether he had stolen the CB radio which had been on the shelf, which Reiman denied. Rice then told him Foreman Emory had said Reiman had taken the CB radio whereupon Reiman ac- cused Emory of lying and said he would be happy to go to court to prove it. Vice President Rice acknowledged on that occasion telling Reiman he was accused of taking the CB radio from the wrecker, which Reiman denied, and said he told Reiman probably the sheriffs office would contact him. According to Rice on March 8 Foreman Emory had told him it had just come to his attention Reiman had said the CB radio in the wrecker belonged to him and Reiman had previously taken it home with him. Emory explained his reason for waiting so long to inform Rice was because he had an occasion the other day to be in the wrecker and the radio was out. Rice, who said he had remembered the CB radio being in the shop office, then reported it to West that same day. West also stated on March 8 Rice told him Foreman Emory had in- formed him Reiman had taken a CB radio stored there home and had told Emory it was his. West said he in- structed Rice not to do anything about it that day be- cause the election was the next day and he did not want to cause a hassle. West said he then reported it to the SOUTHERN ILLINOIS PETROL 169 sheriff and the deputy sheriff later took a statement from Emory. Reiman explained at the hearing there used to be a CB radio in the wrecker which -he drove; however, it was not working and when shifting to third gear it would hit the radio. On complaining about it to his prior Foreman Bob Ingram in December 1983 Ingram instructed him to remov& it. Reiman then removed -the CB radio from the wrecker and put it on a shelf in , the mechanic's 'office where he said he last saw it when he first returned to the Respondent following'his injury on March 9. Reiman testified that about March 24 after the doctor had informed him there was a possibility he might be able to return to work the following week on light duty he `vent to the Respondent . On seeing 'Shoo Foreman Emory and confronting him about the accusation ' Emory had allegedly made, to Rice about seeing Reiman steal the CB radio Emory denied making such an ' accusation- and -accused - Rice, of lying. 22 Emory did say the CB radio was` missing and he had already notified Rice and West. Reiman stated he then went -and told Rice and Anders what the doctor had said and they said "okay" and re- minded him not to report' back unless he had a return-to- work slip by the doctor . Reiman stated he then walked over to the mechanic's shop; however, Owner West 'was there and informed him he was not allowed over there and told him -to stay away. On March 26 Reiman was discharged. On that, day, Reiman testified, on going to the plant he told Rice the doctor did not want him to work that day,but he could start the next day on light duty. 'Pursuant to Rice's in- quiry he showed 'Rice the , doctor's slip . ^ This slip from Doctor Fulk dated March 26 reflects Reiman could return to light duty on March 27 . Rice then went over to the service bay area and handed the doctor's slip, to Business Manager Peter Gieschen, who returned it to Rice, and Rice then said ' they did not have any light work ' there. Rice further said besides it was all up in the air about the CB business and he was going to have to terminate Reiman unless he took a lie detector test to prove otherwise. Reiman told ,him okay if that was what he wanted and he ,would be in touch. Reiman, who denied taking-the,CB radio , has not re- turned to work - nor has he ,been offered his job back since. Rice acknowledged that when Reiman reported back to work on March 26 he informed Reiman in the pres- ence of Business -Manager Peter Gieschen that he was accused of taking . the CB .radio out of the wrecker. This Reiman ,denied and Rice said he had to believe Emory and, if Reiman wanted to take , a lie .detector test to prove his innocence, other than that, he would have to, termi- nate,him for suspected- theft of company property.' The following day ,Reiman, stated he went to the- plant and asked Rice for a written termination notice. Rice, who stated this ,was,the same day rather than the follow- ing day, furnished him , a statement signed by Rice and Gieschen which provides as follows: 22 Reiman did not confront Rice with what Emory told him ' On', Monday March -26," 1984 at 11:16, am Mr. Robert Rieman was terminated from employment at Southern Illinois Petrol Inc. 'Mr.' Rieman was terminated over the question of the missing CB' radio that was 'taken - from the shop office. A report 'has `been . filed with the Perry County Shetrifs [sic] Department concerning ` this radio. Mr Rice told Mr, Rieman that he could clear himself and all questions concerning the radio by taking a ,lie detector test. ' Vice President Rice testified that about a week or so after his ' conversation with Reiman about March 16 he made the decision to terminate Reiman. He claimed 'the factor he relied on was-he had to believe Shop Foreman Emory' over Reiman; 'he denied the Union had anything to do with Reiman's discharge. Rice acknowledged he did not know for a fact Reiman had taken the CB radio; he claimed the , only reason he' discharged Reiman was the suspicion he had stolen the CB radio. Rice also said he did not know- when the CB radio was actually taken but he last saw it about late January or early February.' Rice explained his reason for not taking action sooner after learning about: the CB radio on March 8 was because Reiman , was off work because of_ the injury and he felt Reiman-would not return to work. Rice denied advising West he was going to terminate Reiman. However', 'he acknowledged that about a week prior to Reiman's termination ,he had talked to West about , it. West also -denied discussing with Rice about dis- chargmg 'Reiman; _ however, he subsequently acknowl- edged that before Reiman was discharged they had dis- cussed the reason. and West had agreed Reiman should be terminated. Both West and Rice testified that another employee had, also been discharged on - another -occasion for suspi- cion of theft of company property. However, West ac- knowledged this employee , was later, rehired in March.22 F. Analysis and Conclusions The, General Counsel contends, contrary to the Re- spondent's denials, that the Respondent violated- Section 8(a)(1) and (3) of the-Act by engaging`ih unlawful- inter-rogations, solicitations, 'offers, surveillances, created im-' pressions of surveillance, threats, statements,- and instruc-' tions regarding employees'- union activities; discrimina- torily transferred Robert Reiman,, discharged Reiman and James Leonard, and withheld wage increases from William Sizemore because ' of ' their` union or protected concerted activities; and asserts a' remedial bargaining order is warranted because of such unfair labor practices. Section 8(a)(1)' of 'the Act ^ prohibits an employer from interfering 'with, restraining, and -coercing its'- employees in the exercise of the rights , guaranteed in Section 7' of the Act. Section'8(a)(3)of,fhe Act provides in pertinent part: "It shall be an unfair labor practice for an employer ... by discrimination in regard "to hire or-'tenure o'f'em- ployment or any term or condition of employment to en- 23 The Respondent did not have any personnel records for this em- ployeeprior to his rehire. 170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD courage or discourage membership in any labor organi- zation." The test applied in determining whether a violation of Section 8(a)(1) of the Act has occurred is "whether the employer engaged in conduct which, it may reasonably be said, tends to interfere with the free exercise of em- ployee rights under the Act." Electrical Fittings Corp., 216 NLRB 1076 (1975). Interrogation of employees is not illegal per se and to be unlawful under Section 8(a)(1) of the Act it must in some manner tend to re- strain, coerce, or interfere with employee rights. See Rossmore House, 269 NLRB 1176 (1984). Where an em- ployer is confronted by a union organizing campaign it must proceed, including the granting of wage increases, as it would have done had the union not been conduct- ing its campaign. Russell Stover Candies, 221 NLRB 441 (1975). The findings supra establish that on February 6 Owner West interrogated James Leonard Sr. about his union ac- tivities, solicited Leonard to report to Respondent who was responsible for the union talk going on or if anyone approached Leonard about it, and threatened Leonard if the Union got in West did not have to furnish uniforms, insurance, Christmas bonuses, or the weekly tank of gas which benefits employees were then receiving; on Febru- ary 6 Owner West interrogated Robert Reiman about his knowledge of the Union trying to organize the Respond- ent's employees, and solicited Reiman to find out about the Union trying to organize the Respondent's employees and to let West know; about February 6 Owner West in- terrogated David Newton about his knowledge of the Union trying to organize the Respondent's employees; about the week of February 13 Owner West interrogated Robert Reiman about his union activities and those of other employees, threatened Reiman if the Union got in the free gas, Christmas bonuses, uniforms, and other fringe benefits could be taken away and the plant would be closed down, solicited Reiman to find out about the Union and to let West know, and denigrated James Leonard Sr. by mentioning Leonard was behind the Union and accusing Leonard of stabbing West in the back and giving West a raw deal by trying to organize the Respondent's employees; about the week of February 20 or 27 Owner West interrogated Robert Reiman con- cerning what he had found out about the Union, solicited Reiman to organize a petition and get employees to sign it to keep the Union out and to stop the Board election, solicited Reiman to find out what he could about the Union and to let West know, informed Reiman if the Union got in West would not have to bargain with it and West would close the plant down thereby giving Reiman the impression that union representation would be futile, threatened Reiman with obtaining the union authoriza- tion cards employees had signed and to fire those em- ployees who had signed authorization cards, and offered to pay money to keep the Union from organizing the Re- spondent's employees; on March 9 Owner West implied- ly threatened James Leonard Sr. if employees voted for the Union the Respondent did not have to furnish gas, uniforms, and other benefits; on March 8 Shop Foreman Anders instructed Robert Reiman in the presence of three other employees there would be no more union campaigning; on March 9 Owner West indicated to Reiman that he knew Reiman would vote for the Union; and about the second or third week of February Owner West informed William Sizemore, who asked about a raise, that until the union business was done he could not give any raises. Applying the applicable law set forth above to these findings enumerated I find such conduct interfered with, restrained, and coerced the employees in the exercise of the rights guaranteed in Section 7 of the Act and the Re- spondent by engaging in such conduct violated Section 8(a)(1) of the Act. The unlawfulness of the statement by Owner West to Sizemore about not giving any raises until the union business was done was based on the fact that new employees were entitled to raises on a 3-month pay progression program and the statement if carried out would have precluded granting those raises solely be- cause of the Union. While the evidence further establishes that about Feb- ruary 24 Shop Foreman Anders instructed Robert Reiman and Benjamin Moss and several times afterwards instructed Reiman not to discuss the Union on company time absent as here any evidence about whether there was any no-solicitation rule or whether employees were allowed to discuss other nonwork subjects while work- ing, I do not find such instructions by Anders standing alone to be unlawful. The law is well established that to discriminate against employees in their employment because of their union activities violates Section 8(a)(3) and (1) of the Act. Where motivation for discharge is at issue the General Counsel must make a prima facie showing sufficient to support the inference that protected activity by employ- ees was a motivating factor in an employer's decision to discharge and the employer then has the burden of showing that the employees would have been discharged absent the protected activity. Wright Line, 251 NLRB 1083, 1089 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in NLRB v. Transportation Management Corp., 402 U.S. 393 (1983). Direct evidence of discriminatory motivation is not nec- essary to support a finding of discrimination and such intent may be inferred from the record as a whole. Heath International, Inc., 196 NLRB 318 (1972). Regarding the alleged withholding of William Size- more's wage increase, while the evidence establishes that Owner West about the second or third week of February unlawfully informed Sizemore when he asked about a raise that until the union business was done he could not give any raises, no evidence was presented to show Size- more did not actually receive any raise due. Sizemore did not testify and West, who was the only person asked about whether Sizemore received raises, was uncertain and did not remember whether Sizemore received them prior to the election. Moreover, under the Respondent's pay progression program for new hires while it appears Sizemore, who was hired on December 14, 1983, should have received raises about January 14 and February 14 this was not a hard-and-fast rule for all employees; when Sizemore inquired of West about a raise there is no showing what particular raise he was referring to. Fur- SOUTHERN ILLINOIS PETROL ther, there was no showing Sizemore was either prom- ised or otherwise entitled to a raise about March 16. 'Under these circumstances I find the evidence is insuffi- cient to establish that the Respondent unlawfully with- held wage increases from Sizemore about the middle of January and February 1984, and about March 16, 1984, as alleged. The findings supra with respect to James Leonard Sr. establish that he was active in the union organizing cam- paign and served as the only union observer in the elec- tion. Not only was the Respondent well aware of his union activities by the union button he wore to work on March 9 and the fact that he served as union observer on that day but Owner West also informed Robert Reiman he felt that Leonard was behind the Union. Further, Leonard's supervisor, Shop Foreman Anders, indicated to employee Rodney Carrothers about a week before the election that Leonard would get the worst job assign- ments because he was involved in union activity. Leon- ard was also subjected to unlawful conduct engaged in by Owner West including interrogation about his union activities, solicited to report on who was responsible for the Union, and threatened twice with loss of benefits if the Union got in. West also denigrated Leonard to Reiman by accusing Leonard of being behind the Union and stabbing West in the back and giving West a raw deal by trying to organize the Respondent's employees. The Respondent's asserted reasons for discharging Leonard on March 19, because he did not come in to work over the weekend to help out and because of his injuries on the job are unsupported by and contrary to the evidence. Leonard was off work due to a finger injury and not only was he under his doctor's orders not to return to work, of which Respondent was aware, but he was not asked to come to work that weekend. The only employee shown to have been discharged for inju- ries was Danny Prather who was injured on four differ- ent occasions including one as a result of a fight in a bar, as a result of which injuries he missed a total of about 95 to 100 clays from work, whereas Leonard who was in- jured about four times lost a total of only about 9-1/2 days from work. Moreover, Vice President Rice implied to Leonard at the time he discharged him that they had good people until the union activity started. Based on such evidence including Leonard's union ac- tivities of which the Respondent had knowledge; Re- spondent's unlawful conduct directed against Leonard and in particular Owner West's expressed belief that Leonard was responsible for and had stabbed him in the back by trying to organize the Respondent's employees; the Respondent's union animus as established by its un- lawful conduct herein found; and having rejected the Re- spondent's defense which I find was but a mere pretext seized on to conceal its real discriminatory reason, I am persuaded and find that the Respondent discriminatorily discharged James Leonard Sr. on March 19, 1984, and thereafter refused to reinstate him because of his union activities and thereby violated Section 8(a)(3) and (1) of the Act. Insofar as the transfer and discharge of Robert Reiman is concerned the evidence herein found shows that Reiman, who was active in the Union, worked as a me- 171 chanic' in the mechanic's shop until about February 24 when he was transferred to the tire shop where he worked until his discharge on March 26. Not only did the Respondent have knowledge of or was aware of Rei- man's union activities but it unsuccessfully solicited his aid in an attempt to defeat the Union and directed cer- tain unlawful conduct against Reiman. Owner West as revealed by the evidence unlawfully interrogated Reiman several times about his knowledge of the Union trying to organize Respondent's employees and about his union ac- tivities and those of other employees; solicited Reiman on several occasions to find out who was trying to orga- nize them or what he could about the Union and to let West know which Reiman promised to do but did not; threatened Reiman if the Union got in the employees' fringe benefits could be taken away or would stop and the plant would be closed down; solicited Reiman to or- ganize a petition to keep the Union out and to stop the Board election; informed Reiman if the Union got in West would not have to bargain with it and he would close the plant down, giving Reiman the impression that union representation would be futile; threatened Reiman with obtaining the union authorization cards employees had signed and firing those employees who had signed them; offered to pay money to keep the Union from or- ganizing Respondent's employees; and on March 9 indi- cated to Reiman that he knew Reiman, who was wearing a union button, would vote for the Union that day. Shop Foreman Anders, who on several occasions told Reiman not to discuss the Union on company time, also unlaw- fully instructed Reiman there would be no more union campaigning. The Respondent's reason for transferring Reiman to the tire shop about February 24, where his rate of pay and benefits remained the same, was because they were busy in the tire shop and needed him there and Reiman at the time was not busy in the mechanic's shop. No evi- dence was proffered to dispute the validity of such reason relating to the amount of work available in those departments or the assertion by Owner West that it was the Respondent's policy to use employees wherever they were needed. Further, other employees including an- other mechanic on another occasion had also been trans- ferred from the mechanic shop to the tire shop. While Reiman was hired as and worked as a mechanic before the transfer, he admittedly was never informed he would only be doing only mechanic's work. Under these cir- cumstances although Reiman was active in the Union, I find Reiman was not discriminatorily transferred from the mechanic shop to the tire shop about late February 1984 because of union activities in violation of Section 8(a)(3) and (1) of the Act as alleged. However, with respect to Reiman's discharge on March 26 the evidence shows when Reiman, who had been off work on sick leave since the day of the election due to a work injury, attempted to return to work on March 26 he was terminated by Vice President Rice for suspicion of stealing a CB radio from the Respondent's plant. While Rice claimed that Foreman Emory, who did not testify to support such accusation, had reported to him on March 8 Reiman had previously claimed the CB 172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD radio was his and had taken it home with him, Reiman denied taking the CB radio which he saw at the plant while he was still on sick leave. Upon Reiman confront- ing Emory about the accusation Emory denied it and ac- cused Rice of lying. I credit Reiman rather than the un- supported and contradicted testimony of Rice and I find that Reiman neither took the CB radio nor did Emory inform Rice he did. Further, Rice's claim that he delayed in discharging Reiman after learning of the CB radio be- cause he felt Reiman would not return to work after his injury is refuted by the evidence, which shows Reiman kept Rice informed about his doctor's instructions on when he could return to work which clearly indicated Reiman planned to return. Under the circumstances set forth above, including Reiman's union activities of which the Respondent had knowledge; the Respondent's unlaw- ful conduct directed against Reiman because of his union activities herein found; the Respondent's union animus as established by its unlawful conduct herein found; and having rejected the Respondent's defense which I find is a mere pretext to conceal the real discriminatory reason, I am persuaded and find the Respondent discriminatorily discharged Robert Reiman on March 26, 1984, and thereafter refused to reinstate him because of his union activities and thereby violated Section 8(a)(3) and (1) of the Act. The remaining issue to be resolved is whether a reme- dial bargaining order is warranted. Under the general principles enunciated by the Supreme Court in Gissel24 applicable to the issuance of bargaining orders, such orders are authorized to redress those unfair labor prac- tices so coercive that, even in the absence of an 8(a)(5) violation of the Act, a bargaining order would be neces- sary to repair the unlawful effects of such unfair labor practices and additionally in those less extraordinary cases marked by less pervasive practices which nonethe- less still have the tendency to undermine majority strength and impede the election process. In the latter in- stance the Board is to determine the nature and extent of the employer's unlawful conduct and to ascertain wheth- er use of traditional remedies would ensure a fair elec- tion. Where an election has been held a bargaining order will not be issued where otherwise appropriate unless the election is set aside on meritorious objections filed in the representation case. Irving Air Chute Co., 149 NLRB 627 (1964), enfd. 350 F.2d 176 (2d Cir. 1965). A remedial bargaining order to be issued requires a showing that a union represented a majority of the em- ployer's employees in an appropriate unit. Gourmet Foods, 270 NLRB 578 (1984). Unambiguous authoriza- tion cards are invalid because of misrepresentations only if employees are told or intentionally led to believe that the sole purpose of the card is to secure an election. Wal- green Co., 221 NLRB 1096 (1975). While the union authorization cards signed by the em- ployees in the instant case are clear and unambiguous on their face authorizing the Union to act as their bargain- ing representative, the findings supra, however, establish that the employees were solicited and signed such cards 24 NLRB v Gissel Packing Co., 395 U S 575 (1969) solely for the purpose of getting an election. Thus, the cards are invalid for the purpose of establishing that the Union represented a majority of the Respondent's em- ployees and absent, as here, a showing of a majority status by the Union no bargaining order could be issued even if it might otherwise be warranted to remedy the unfair labor practices herein found.25 G. The Objections to the Elections Having found the Respondent violated Section 8(a)(1) of the Act by Owner West on February 6 threatening James Leonard Sr. if the Union got in West did not have to furnish uniforms, insurance, Christmas bonuses, or the weekly tank of gas; on February 6 interrogating James Leonard Sr., Robert Reiman, and David Newton about the Union; about the week of February 13 mentioning James Leonard Sr. was behind the Union; about the week of February 13 threatening Robert Reiman if the Union got in the plant would be closed down; and about the week of February 20 or 27 informing Robert Reiman if the Union got in West would not have to bargain with it and West would close the plant down thereby giving Reiman the impression that union representation would be futile, and further findings, although not alleged as violations of Section 8(a)(1) of the Act, that about the week February 20 or 27 Owner West indicated to Robert Reiman he knew the identities of those employ- ees who were both for and against the Union and he was going to get the union authorization cards even if he had to pay to get them, and such conduct all occurring during the critical period between the filing of the peti- tion on February 3 and the holding of the election on March 9, I find the Union's Objections 1, 3, 4, 6, and 7, and part A and part B of "Other Acts and Conduct" enumerated supra all have merit and are sustained. Inso- far as the remaining Union's Objections 2, 5, 8, 9, 10, 11, 13, 14, and 15 and part E of "Other Acts and Conduct" are concerned, I find they are unsupported by the evi- dence and lack merit and are overruled. The Board has long held that conduct violative of Section 8(a)(1) of the Act is, a fortiori, conduct which interferes with the laboratory conditions of an election. Life Savers, Inc., 264 NLRB 1257 (1982); and Dal-Tex Optical Co., 137 NLRB 1782, 1786 (1962). Having found the Union's Objections 1, 3, 4, 6, and 7 and part A and part B of "Other Acts and Conduct" have merit and should be sustained, I find such conduct was sufficient to have interfered with the election held on March 9, and to warrant setting the election aside. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, found to constitute unfair labor practices oc- curring in connection with the operations of the Re- spondent described in section I, above, have a close, inti- mate, and substantial relationship to trade, traffic, and 25 Since no bargaining order can issue I do not find it necessary to determine whether the unfair labor practices are sufficient to warrant such an order. SOUTHERN ILLINOIS PETROL 173 commerce among the several States an d tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof.` CONCLUSIONS OF LAW 1. Southern Illinois Petrol, Inc. is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2,' Teamsters Local 347, affiliated with International Brotherhood-of Teamsters, Chauffeurs, Warehousemen and Helpers of America is a labor organization within the meaning of Section 2(5) of the Act. 3. By interrogating employees about their union activi- ties and those of other employees, about their knowledge of the Union trying to organize the Respondent's em- ployees, and about what they-have found out about the Union; by soliciting employees to find out about and to report to the Respondent "about the Union trying to or- ganize-the Respondent's employees and who was respon- sible for the union talk going on or if anyone approached the -employees 'about it; by threatening or impliedly threatening employees, if the Union got in or if employ- ees'voted for the Union the Respondent did not have to furnish - uniforms, insurance, Christmas bonuses, the weekly tank of gasoline, and other fringe benefits ` em- ployees were then receiving or that such benefits could be taken away; by threatening employees if the" Union got in the plant would be closed down; by denigrating an employee by mentioning the employee was behind the Union and accusing the employee of stabbing Respond- ent's owner in the back and giving the owner a raw deal by trying to organize the Respondent's employees; by so- liciting an employee to organize a petition and get em- ployees to sign it to keep the Union out and to stop the Board election; by informing an -employee if the Union got in the Respondent would not have to bargain with it and the Respondent would close the plant down thereby giving the employee the impression that union represen- tation would be futile; by threatening an employee with obtaining the union authorization cards employees had signed and to fire those employees who have signed such cards; by offering to pay money to keep the Union from organizing the Respondent's employees; by instructing an employee in the presence of other employees that there would be no more union campaigning ; by indicating to an employee that the Respondent knew the employee would vote for the Union; and by informing an employ- ee who asked about a raise that,- until the union business was done, the Respondent could not give any raises, the Respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of, the Act and has engaged in unfair labor practices in violation,of Section 8(a)(1) of the Act. 4. By discriminatorily discharging James Leonard Sr. on March 19,,1984, and Robert Reiman on March 26, 1984, and thereafter refusing to reinstate them because of their union activities, the Respondent has engaged in unfair labor practices in violation of Section 8(a)(3) and (1) of the Act. 5. These unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 6. The Union's Objections 1, 3, 4,'6, and 7 and part A and part B of "Other Acts and Conduct" 'all occurring during the critical period have been sustained by the evi- dence and the Respondent has thereby interfered with and illegally affected the,results of the election held on March 9, 1984. THE REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices within the meaning of Section 8(a)(!') and ' (3) of the Act, I shall recommend -that it cease and desist therefrom and take certain' affirmative action to effectuate the policies of the Act. Accordingly, the Respondent shall be ordered to' offer immediate and full -reinstatement to James Leonard Sr. and to Robert 'Reiman to' their former jobs or, if those jobs no longer exist, to substantially equivalent jobs with- out prejudice to their seniority and other rights and privileges and make them whole for any loss, of earnings and other, compensation- they may have suffered as a result of the discrimination'against them in their employ- ment herein found by discriminatorily discharging James Leonard Sr., on March 19, 1984,, and Robert Reiman on March 26, 1984, and thereafter refusing ,to reinstate them. ,pay shall' be computed, in, , accordance with _ the Back manner prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest as prescribed in Florida Steel Corp., 231 NLRB 651 (1977). See generally Isis Plumbing Co., 138 NLRB 716 (1962). The Respondent shall also be ordered to expunge from its files any references to the discriminatory discharges -of James Leonard Sr. and Robert Reiman and the refusals to reinstate them and to notify both Leonard and Reiman in writing that this has been done and that evidence of its unlawful conduct will not be usedoas a basis for future personnel actions against them. Further, ' in Case-,1,4-RC-9828 -having found that cer- tain objections to the conduct of the election sufficient to warrant setting 'aside the election were sustained by the evidence, I shall recommend that 'the election held - on March 9, 1984,' be set aside -and the case 'be remanded to the Regional Director for Region 14 and a new election shall be conducted. On these findings of fact and conclusions, of law and on the entire record, I issue the following recommend- ed26 ORDER - The Respondent, Southern Illinois Petrol, Inc., Du- Quoin, Illinois, by its officers, agents, successors, and assign, shall. - ' 1. -Cease and desist from (a) `Interrogating employees about their union activities and those of other employees, about their knowledge of 2 s If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and -Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the, Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses. 174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Union trying to organize the Respondent's employ- ees, and about what they find out about the Union. (b) Soliciting employees to find out about and to report to the Respondent about the Union trying to or- ganize the Respondent's employees and who is responsi- ble for the union talk going on or if anyone approaches the employees about it. (c) Threatening or impliedly threatening employees if the Union gets in or if employees vote for the Union the Respondent does not have to furnish uniforms, insurance, Christmas bonuses, the weekly tank of gasoline, and other fringe benefits employees are receiving or that such benefits could be taken away. (d) Threatening employees that if the Union gets in the plant would be closed down. (e) Denigrating employees by mentioning the employ- ees are behind the Union and accusing the employees of stabbing Respondent's owner in the back and giving the owner a raw deal by trying to organize the Respondent's employees. (f) Soliciting employees to organize a petition and get employees to sign it to keep the Union out and to stop the Board election. (g) Informing employees if the Union gets in the Re- spondent would not have to bargain with it and the Re- spondent would close the plant down thereby giving em- ployees the impression that union representation would be futile. (h) Threatening employees with obtaining the union authorization cards employees sign and to fire those em- ployees who sign such cards. (i) Offering to pay money to keep the Union from or- ganizing the Respondent's employees. (j) Instructing employees that there will be no more union campaigning. (k) Indicating to employees that the Respondent knows the employees would vote for the Union. (1) Informing employees who ask about raises that until the union business is done the Respondent cannot give any raises. (m) Discouraging membership and activities in Team- sters Local 347, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization, by discharg- ing, refusing to reinstate, or in any other manner dis- criminating against employees in regard to hire and tenure of employment or any term or condition of em- ployment. (n) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of their rights guaranteed Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Offer immediate and full reinstatement to James Leonard Sr. and to Robert Reiman to their former jobs or, if those jobs no longer exist, then to substantially equivalent jobs without prejudice to their seniority and other rights and privileges and make them whole for any loss of earnings and other compensation they may have suffered by reason of the discrimination against them by discriminatorily discharging Leonard on March 19, 1984, and Reiman on March 26, 1984, and thereafter refusing to reinstate them in the manner set forth in that section of this decision entitled "The Remedy." (b) Expunge from its files any references to the dis- criminatory discharges of James Leonard Sr. on March 19, 1984, and Robert Reiman on March 26, 1984, and the refusals to reinstate them and notify each of them in writing this has been done and that evidence of its un- lawful conduct will not be used a basis for future person- nel actions against them. (c) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze and determine the amount of backpay due under the terms of this Order. (d) Post at its DuQuoin, Illinois plant copies of the at- tached notice marked "Appendix."27 Copies of the notice, on forms provided by the Regional Director for Region 14, after being signed by the Respondent's au- thorized representative, shall be posted by the Respond- ent immediately upon receipt and maintained for 60 con- secutive days in conspicuous places including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. IT IS FURTHER ORDERED that the amended consolidat- ed complaint is dismissed insofar as it alleges unfair labor practices not specifically found herein. IT IS FURTHER ORDERED in Case 14-RC-9828 that the election held on March 9, 1984, is set aside and the case is remanded to the Regional Director for Region 14, who shall conduct a new election in the appropriate unit at such time as he deems the circumstances permit the free choice of a bargaining representative. 27 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al 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 " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT interrogate our employees about their union activities and those of other employees, about their knowledge of the Union trying to organize our employ- ees, and about what they find out about the Union. WE WILL NOT solicit our employees to find out about and to report to us about the Union trying to organize our employees and who is responsible for the union talk going on or if anyone approaches our employees about it. SOUTHERN ILLINOIS PETROL 175 WE WILL NOT threaten or impliedly threaten our em- ployees if the Union gets in or if employees vote for the Union that we do not have to furnish uniforms , insur- ance, Christmas bonuses, the weekly tank of gasoline, and other fringe benefits our employees are receiving or that such benefits could be taken away. WE WILL NOT threaten our employees that if the Union gets in the plant would be closed down. WE WILL NOT denigrate our employees by mentioning the employees are behind the Union and accusing the employees of stabbing our owner in the back and giving the owner a ra'w deal by trying to organize our employ- ees. WE WILL NOT solicit our employees to organize a peti- tion and get employees to sign it to keep the Union out and to stop the Board election. WE WILL NOT inform our employees if the Union gets in we would not have to bargain with it and we would close the plant down thereby giving employees the im- pression that union representation would be futile. WE WILL NOT threaten our employees with obtaining the union authorization cards employees sign and to fire those employees who sign such cards. WE WILL NOT offer to pay money to keep the Union from organizing our employees. WE WILL NOT instruct our employees that there will be no more union campaigning. WE WILL NOT indicate to our employees that we know they would vote for the Union. WE WILL NOT inform our employees who ask about raises that until the union business is done we cannot give any raises. WE WILL NOT discourage membership and activities in Teamsters Local 347, affiliated with International Broth- erhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America, or any other labor organization, by discharging, refusing to reinstate , or any other manner discriminating against employees in regard to hire and tenure of employment or any term or condition of em- ployment. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed Section 7 of the Act. WE WILL offer James Leonard Sr . and Robert Reiman immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to a substantially equivalent position, without prejudice to their seniority or any other rights or privileges previously enjoyed and WE WILL make them whole for any loss of earnings and other ben- efits resulting from their discharge , less any net interim earnings, plus interest. WE WILL expunge from our files any references to the discharges of James Leonard Sr . on March 19, 1984, and Robert Reiman on March 26, 1984 , and WE WILL notify each of them in writing this has been done and that evi- dence of our unlawful conduct will not be used as a basis for future personnel actions against them. SOUTHERN ILLINOIS PETROL, INC.