Mid-Ohio Automotive, Inc.

National Labor Relations Board - Board Decisions

Dec 1, 1972

200 N.L.R.B. 680 (N.L.R.B. 1972)

680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mid-Ohio Automotive , Inc and Teamsters Umon, it to the Regional Director for his disposition Therefore the Respondents
exce tions to recommendations relatin to the representation case are not
Local No 413, affiliated with the International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America and William
p g
properly addressed to us
DECISION
Lee Shotsky Cases 9-CA-6798-1 and
9-CA-6798-2
STATEMENT OF THE CASE
December 1, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND PENELLO
On September 7, 1972, Administrative Law Judge
Benjamin B Lipton issued the attached Decision in
this proceeding Thereafter , Respondent filed excep-
tions and a supporting brief
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings ,' findings,2
recommendations ,3 and conclusions of the Adminis-
trative Law Judge and to adopt his recommended
Order
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent Mid-Ohio Automo-
tive, Inc, Columbus, Ohio, its officers, agents,
successors , and assigns , shall take the action set forth
in the said Order
i In his Decision the Administrative Law Judge inadvertently stated that
the motion to sequester the witnesses was made by counsel for Respondent
As Respondent correctly contends the motion to sequester was made by
counsel for the General Counsel rather than Respondent
2 The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge It is the Board s established policy not to
overrule an Admimstrative Law Judge s resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions were incorrect Standard Dry Wall
Products Inc 91 NLRB 544 enfd 188 F 2d 363 (C A 3) We have carefully
examined the record and find no basis for reversing his findings
3 With respect to Respondent s contention that the Administrative Law
Judge erred in directing that the ballots of Shotsky and Smith be opened
and counted and in refusing to determine the supervisory status of John
Neidigh we note that as the election in Case 9-RC-9405 was conducted
pursuant to an Agreement for Consent Election , the Administrative Law
Judge properly severed the related representation proceeding and remanded
BENJAMIN B LIPTON, Administrative Law Judge A
consolidated complaint was issued by General Counsel'
alleging that Respondent2 discriminatorily discharged
Richard L Smith and William L Shotsky, and further
engaged in certain coercive conduct , violating Section
8(a)(3) and (1) of the Act In Case 9-RC-9405, pursuant to
an Agreement for Consent Election , a Board election was
conducted by the Regional Director on February 25,
1972 3 Of 16 ballots cast in a unit of truckdnvers,
warehousemen and order clerks, 8 were for the Union, 5
were against the Union, and 3 were challenged The
challenged ballots, sufficient in number to affect the
election results, were cast by the alleged discnminatees,
Smith and Shotsky, and by John Neidigh, alleged by the
Union to be a supervisor On April 18, the Regional
Director issued his report on the election with an order
consolidating the complaint and representation cases
herein for the purpose of a heanng Resolution of the
discharge issues involving Smith and Shotsky would
determine their employee status and eligibility to vote in
the election
On May 17, with all parties represented, a hearing was
held before me in Columbus , Ohio Upon the entire record
in the cases , with due consideration of the briefs filed by
General Counsel and Respondent , and from my observa-
tion of the demeanor of the witnesses , I make the
following
FINDINGS OF FACT
I JURISDICTION AND LABOR ORGANIZATION
Respondent is engaged in the wholesale sale of automo-
bile parts at its facility in Columbus , Ohio During the year
preceding issuance of the consolidated complaint , Respon-
dent had a direct inflow and a direct outflow in interstate
commerce , in each instance , valued in excess of $50,000
Respondent admits, and I find , that it is engaged in
commerce, and that the Umon is a labor organization,
within the meaning of the Act
1 In Case 9-CA-6798- 1 the charge was filed on February 10 and served
by registered mail on February 12 1972 In Case 9-CA-6798-2 the filing
and service took place on March 2 and March 3 1972 respectively The
consolidated complaint issued on March 20 1972
2 The reporter mistakenly indicated in the transcript that Harvey B
Rector appeared as an attorney for Respondent
3 All dates hereafter are in 1972 unless otherwise specified
200 NLRB No 105
MID-OHIO AUTOMOTIVE, INC 681
II THE UNFAIR LABOR PRACTICES the plan until this time , and he later spoke to several
A Organizational Activity and Background
In November, 1971, Richard L Smith generally dis-
cussed with other employees the subject of seeking union
representation On January 4, Smith spoke with James
Woodley, a truckdriver making a delivery to Respondent,
who suggested that an organizational effort be made
through the Teamsters Union That evening, Smith went to
Woodley's home and obtained blank union authorization
cards together with certain Teamster "ballots " On January
5, before work and at lunch, Smith distributed the cards
and ballots to all 10 of the employees then employed at the
warehouse He received back 10 signed cards, which he
turned over to Woodley the same day Thereafter, until his
discharge on January 15 (treated infra), Smith acted as the
leader in the campaign, regularly communicating with the
Union and reporting to the employees After January 15,
the same role and activities of Smith were assumed by
William L Shotsky, until his discharge on February 18
(infra) By letter to Respondent dated January 18, the
Union claimed majority representation, requested recogm-
tion, and cautioned Respondent not to take "punitive
action" against the employees Dated January 21, Respon-
dent replied that its "policy" was not to grant recognition
without Board certification A petition was filed by the
Union on January 20 and, as earlier shown, the election
was conducted on February 25 Preceding the election,
other acts and conduct of Respondent are raised in issue 4
B Restraint and Coercion
1 Interrogation of Shotsky and Webb
Shotsky gave testimony, essentially as follows On or
about January 20, he was called over the loudspeaker and
reported to the office of Larry Skolnick, vice president and
general manager Also present were Louis Levy, president,
and Paul McKinney, district manager in charge of
personnel Levy said he had just received a letter from the
Union and read part of it to Shotsky 5 He asked Shotsky if
he was trying to get the Union in Shotsky said, yes Asked
why, he replied that the employees were not making
enough money Levy remarked, "How do you know we
won't give you more money9" Shotsky stated that, when
hired (in October 1971), he was promised "good starting
salaries plus company benefits," and requested Levy to
"explain about that " Levy then indicated that Respondent
had a profit-sharing plan, under which Respondent
"matched" a percentage of the employee's wages as its
contribution into a fund which the employee could draw
out after 2 years of employment It was a new plan the
Company was going to try out with the warehouse
employees Levy showed him a small chart on which it
appeared that specific amounts of money were ascribed to
the names of certain employees purportedly as accumulat-
ed profit-sharing contributions Shotsky had never heard of
employees who were similarly unaware of it Skolnick and
Levy further questioned Shotsky as to why the employees
wanted a union And, finally, Levy stated that Respondent
was going to fight to keep the Union out
Kenneth Webb has been employed about 4 years with
Respondent, presently as a lead man He was called into
Levy's office on the loudspeaker With Skolnick present,
Levy first inquired, "What's this all about9" Webb was
shown the Union's letter seeking recognition, and they
asked him why the people wanted a union He answered
that most of them wanted money At the time, Webb was a
forklift operator
McKinney, Levy, and Skolnick testified for Respondent
concerning the events above In substance, they averred
that Shotsky and Webb were summoned together to the
same meeting, that Respondent's purpose stemmed from
the "confusion and turmoil in the warehouse", that at the
meeting Shotsky voluntarily announced the employees
were going to bring in the Union, that this was Respon-
dent's first awareness of an organizational campaign, and
that upon Shotsky's revelation the meeting was abruptly
discontinued Levy stated that he did not receive the
Union's letter until January 21, and that therefore it could
not have been produced at the meeting Asked to describe
the "turmoil," Levy testified that Skolnick told him "work
wasn't being done and it seemed like they were having
activities going on " Skolnick testified that Shotsky was
questioned as to the cause of the "turmoil " Shotsky's reply
was that "the guys don't like the working conditions", they
"don't understand why Rick Smith was fired", and they
"thought they could solve the problem by asking the union
to come in " Only these two employees were called to the
meeting Chris Mobech, the warehouse manager immedi-
ately in charge, and his assistant, John Neidigh, were not
consulted regarding the "turmoil "
Shotsky and Webb are credited in the essentials of their
evidence Levy described the "turmoil" as related to
"activities" in the warehouse This vague reference was
otherwise not explicated by the three witnesses of Respon-
dent 6 Their version of the interview with Shotsky and
Webb does not reflect concern with disruption of work on
account of the asserted "turmoil " It must be concluded
that the "activities" pertained to the organizational drive
then being conducted in the warehouse, principally by
Shotsky That Respondent summoned Shotsky, and only
one other employee, pointedly reinforces the inference,
which I draw, that Respondent had knowledge of the
union activities, and it decided upon the meeting in
question as a tactic to counteract the efforts of its
employees Except as to the credibility aspect, it is not
critical whether Respondent was then in receipt of the
Union's letter 7 I find in fact that it had the letter
Shotsky and Webb were separately called, by loudspeak-
er, into the locus and presence of high management
authority, tending to create an intimidatory atmosphere
There they were questioned concerning the reasons that the
4 Respondent s motion was granted to sequester the witnesses 7 The letter dated January 18, was specifically addressed to Jim
5 Identified by Shotsky as the Union s recognition demand dated Parker Respondent s operations manager There is no clear testimony that
January 18 it was not received by him or other Respondent s agent, on or before
6 In other respects, as to each of them their testimony impressed me as January 20 Nor is there positive evidence that the meeting took place on
evasive and implausible January 20 and not a day or two later
682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees were seeking a union No legitimate purpose
was shown to justify such action by Respondent And no
assurances were given these employees against reprisal if
they revealed incriminating information I find that
Respondent was prepared in advance to disclose the
existence of the profit-sharing plan, and that the purpose of
the disclosure to Shotsky was to dissuade the employees
from their adherence to the Union In all these circuiii-
stances, I conclude that Respondent, by the foregoing
conduct, interrogated Shotsky and Webb in a coercive
manner in violation of Section 8(a)(1) 8
2 The no-sohcitation rule
Two or three days after the meeting, above, Respondent
posted on the bulletin board a "Notice to All Employees "
As testified by Shotsky, without contradiction, it stated
that the Company was aware that employees were "trying
to organize the union," and that anyone caught discussing
union activities on company time or property would be
discharged immediately The notice was removed following
the Board election on February 25 There is no evidence
that a rule against solicitation existed before such posting
Respondent's witnesses were obscure in their testimony
concerning the posting of this notice and its contents, and
Respondent did not produce the document, or a copy
Warehouse Manager Mobech described the rule as
prohibiting union activities on the job during "business
hours," i e , "from 8 o'clock on "
I find that the posted rule, which was not rescinded, is
presumptively invalid in that it broadly restricts union
solicitation or activities on company property during
nonworking time,9 and that, in any case, the rule is
unlawful in view of the clear indication that it was adopted
for the discriminatory purpose of defeating the Union's
organizing campaign 10
annual basis, is paid by the Company into a trust fund
Kohn could not "actually say that every employee has
allocated to their account a specific amount " No other
evidence was adduced, verbal or documentary, to show
that it was mandatory under the plan that contributions by
Respondent be made for every employee covered, that any
amounts were in fact allocated for the benefit of the
employees in the warehouse, or that any of the warehouse
or other employees were apprised of the plan prior to
January 2011 I am constrained to consider Kohn's
presentation as ambiguous and insufficient to refute
Shotsky's testimony, or to justify the announcement in the
February 18 letter as nothing new In my opinion, the
employees could reasonably have believed that Respon-
dent's revelation of the profit-sharing and pension plan, on
both occasions, was intended to induce their rejection of
the Union
In latter January or early February, Operations Manager
James Parker told Shotsky he is a good worker and will try
to get him a raise In his next pay check, Shotsky received a
raise of 10 cents an hour A "couple" of other employees
were given wage increases at the same time In the
circumstances of the earlier events,12 it was incumbent
upon Respondent to come forward and show some
justification for these increases granted to Shotsky and
other employees It failed to do so On February 17, the
day before he was discharged, Warehouse Manager
Mobech approached Shotsky, then working on the job with
employee Johnson Mobech insisted upon talking about
the Union He said the Company was going to give the
employees "raises and a few more benefits "13
As to each instance described above, I find that
Respondent promised and granted benefits to the employ-
ees to discourage their support of the Union, and to
influence their votes in the Board election
3 Promises and grants of benefits
On or about January 20, as earlier found, President Levy
informed Shotsky of the existence of a profit-sharing plan
On February 18, in a preelection letter to the employees,
Respondent stated, inter aha "In the past two years, Mid-
Ohio has been contributing 15 percent of each eligible
employee's gross pay into a pension plan For example, if
you earned $6,500 per year over this 2-year period, you
have accumulated $1,950 in this pension plan " (Emphasis
supplied) This statement presupposes that not all employ-
ees are eligible The pertinent details of the plan, and the
qualifications for employees to participate, were not
otherwise disclosed at the hearing Respondent established
through Richard Kohn, an attorney, that a profit-sharing
plan was prepared, was later approved by the Internal
Revenue Service, and was placed in operation as of
January 9, 1970 The plan contemplates that "up to 15
percent" of an employee's gross compensation, on an
8 E g Blue Flash Express Inc 109 NLRB 591 Action Advertising Co
Inc 195 NLRB No 122
9 Walton Manufacturing Company 126 NLRB 697 enfd 289 F 2d 177
(C A 5) Stoddard Quirk Manufacturing Co 138 NLRB 615 (lead cases)
10 The Wm H Block Company 150 NLRB 341, 342-343
11 With the books in its possession the Respondent could readily have
proved that warehouse employees were receiving allocations under the plan
C Discharge of Smith
In September 1970, Smith commenced work for Respon-
dent as a warehousemen, in July 1971, he was advanced to
order clerk On January 15, he was terminated by
Warehouse Manager Mobech, who merely commented
that it was an unpleasant task to perform Smith testified
that when he asked the reason , Mobech said he did not
know, and was just following orders Earlier that day,
Mobech had mentioned to him that he was working too
slowly
At the outset of the hearing, Respondent gave as the
ground for Smith's discharge-"gross insubordination "
The decision was obstensibly made by Vice President
Skolnick and Operations Manager Parker, and conveyed to
Mobech to carry out Various reasons were given in the
testimony of Skolnick, Parker and Mobech
Skolnick stated that, since July 1971, he received some 8
or 10 adverse reports on Smith from Mobech and Parker
And if this were the fact it is difficult to conceive that the employees would
not have been made aware of it within the 2 years of its existence
12 E g the Union s recognition request the pending election petition,
Shotsky s leadership role and the interrogations of Shotsky and Webb on or
about January 20
13 Uncontroverted testimony of Shotsky
MID-OHIO AUTOMOTIVE, INC 683
At one point he gave as "the chief factors" causing Smith's
discharge his "lack of speed and the inaccuracies to some
extent " As reported to him, on each occasion that Smith's
supervisors attempted to correct him in his work, he would
use "abusive language," e g, that he did not have to do this
work for this kind of pay On one earlier occasion, Smith
threw down his order form in disgust The same behavior
of Smith again occurred on January 15 as "the direct
incident related to his being fired "
Parker testified that, on January 15, Mobech reported to
him he had spoken to Smith about speeding up, and Smith
said he was not getting paid enough, threw down the
delivery schedule, and "used profane language" regarding
the money He and Skolnick then decided upon the
discharge
Mobech testified he had spoken to Smith a "couple of
times" about picking up speed in pulling orders The first
time was about 30 days before his discharge On January
15, he told Smith "to try to knock out this order " Smith
told him, in effect, to get someone else to do it faster for
the wages being paid, threw the order book on the floor,
and "cussed and swore " He did not say very much to
Smith but reported exactly what happened to Parker That
day when he terminated Smith, as instructed, Smith said
nothing, but grabbed the check and walked off
Undisputed testimony by Smith reveals that, on several
occasions during his last 3 months of employment, Parker
told him he was doing a good job and was the "most
valuable man he had " During the week before his
discharge, Smith was working as the only order clerk, with
Shotsky assisting him They worked overtime one night
until 1 a in, following which Parker expressed his apprecia-
tion to both of them On January 1, Smith received a raise
in pay, instead of the Christmas bonus given to other
employees Parker then told him it was a "small token of
appreciation from the company" for the work he did
There are substantial conflicts in the testimony produced
by Respondent Particularly Skolnick and Mobech were
prone to exaggerate and to give vague, shifting, and
unresponsive answers The view Respondent projected that
Smith was an unsatisfactory employee over a long period
does not comport with the wage increase and repeated
compliments he received He was not cautioned concern-
ing these alleged offenses And it appears that Respondent
deliberately withheld giving him a reason for the discharge
I am unable to accept Respondent's grounds as convincing
and credible Smith was the principal organizer among the
employees of the union drive actively in progress, com-
mencing January 4 He personally solicited all the
warehouse employees then employed Parker testified that
he heard "rumors" over a substantial period of time of the
Union trying to organize the warehouse He also indicated
that, on "several occasions," Smith spoke to him about the
Union Respondent's union animus has been demonstrat-
ed, particularly in the violations earlier found herein
Considering all the evidence, Respondent's contention that
it was unaware of Smith's union activities is rejected It is
my conclusion upon this record that the true reason for
Smith's discharge was his leadership activity in the Union
and that Respondent therefore violated Section 8(a)(3) of
the Act
D Discharge of Shotsky
In October 1971, he was hired as a general laborer, and
sometime after January 15, he was made an order clerk
Mobech terminated him on February 18 Shotsky testified,
when he asked the reason , Mobech told him only that he
was "participating in union activities during working
hours 1114
Mobech testified he had previously reprimanded Shotsky
for "union activities," and for threatening the employees in
the warehouse , naming Bill Jeffers and Steve Wyman
Jeffers gave him the information He did not remember
when the reprimands occurred possibly in the latter part
of 1971 At that time he told Shotsky to do things and they
were not done to his satisfaction Parker instructed him to
discharge Shotsky because "he was conducting union
activities during business hours", he did not do the job he
was supposed to do, he had been noticed in other parts of
the warehouse "talking to other people he was not
supposed to", and he had "threatened employees in the
warehouse " A few days before Shotsky was discharged,
Jeffers told him that, "With this union thing Shotsky has
threatened to fight me or beat or kick me " This was
the only time he was directly informed by an employee of a
threat by Shotsky He did not talk to Shotsky about this
but reported it to Parker He also "heard" that Shotsky had
threatened other people in the warehouse , e g , Wyman,
about the same time as the Jeffers incident, but he couldn't
remember who told him
Again, there are major inconsistencies in the versions of
Skolnick and Parker Skolnick related that, on the
discharge date, he was told by Parker that Shotsky
threatened Jeffers, and that Jeffers quit his job on account
of it In addition, Shotsky had intimidated other employ-
ees Three occasions or incidents , all of a similar vein, were
reported to Skolnick by Parker, including that, above, on
February 18 The first was less than a month before the
discharge Another involved a report from Mobech to
Parker, who conveyed it to Skolnick No action was taken
on the earlier dates, and he did not undertake to question
Shotsky or Jeffers However, he was told by Parker "that
he and several others, in a joint meeting, had warned"
Shotsky
Parker testified that, a week before the discharge, he told
Shotsky, in the presence of Mobech, that he was made
aware Shotsky had been "threatening and intimidating
people, and he would be discharged if it happened again "
The actual incident purportedly occurred the day before
this warning On February 18, Mobech told him he "had
gotten word that Shotsky was threatening and intimidating
fellows in the warehouse again " Parker took Mobech's
word for it He immediately went to Skolnick and
recommended discharge, and then instructed Mobech to
carry out the order These two occasions were the only
ones that he learned Shotsky was threatening employees
14 Mobech s testimony was constantly shifting and conflicting as to what
was said in the terminal discussion Finally in cross examination he stated
he told Shotsky he was fired for conducting union activities during business
hours later adding he could not swear to it
684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mobech also advised him that Jeffers "walked off the job
for no reason at all "
Further testimony was adduced for Respondent from
William Goldberg, an order picker at the time of the
incident, and presently operations manager One or two
weeks before February 18, he overheard Shotsky telling
Jeffers, "if he wasn't for the union that they would go
outside and get it settled because he wouldn't be here after
the union was in " He promptly informed Skolnick and
Mobech of this conversation Jeffers left the week before
Shotsky was terminated Steve Wyman was also called
concerning a discussion he had with Shotsky, but he didn't
tell anyone from the Company about it
Shotsky testified as to the following incident Jeffers was
in a corner conversing with Parker He later asked Jeffers
whether Parker was talking to him about the Union Jeffers
replied affirmatively, but refused to reveal what was
discussed Shotsky then said, "If you don't tell me I am
going to take you outside and beat the shit out of you "
After this occurrence, Shotsky never spoke to Jeffers,
avoided him, and made no further threats 15 A week after
the argument with Jeffers, he was complimented by Parker
and given a pay increase, as previously indicated
The essential question presented is whether Respondent
discharged Shotsky for reasons, in whole or substantial
part, which bear upon his union activities On the material
facts, I am ultimately disposed to credit Shotsky Respon-
dent's evidence is substantially lacking in probity, consist-
ency, and plausibility I find there was only one incident
involving an alleged threat to Jeffers, which occurred 2
weeks or more before Shotsky's discharge No action was
then taken Thereafter, he was complimented and received
a wage increase In my opinion, the other grounds
variously enumerated by Respondent's witnesses were
dredged up as afterthoughts in justification of the dis-
charge The closest to reality was the assertion that Shotsky
was conducting union activities during business hours
Respondent was undoubtedly conscious of the union
campaign under way, one week before the election, and of
Shotsky's leading role therein Indeed, he had previously
singled out Shotsky for the purpose of unlawful interroga-
tion Respondent 's motive to engage in discrimination is
substantially present in the record The evidence warrants
the finding that Shotsky was discharged to eliminate him
as a factor and to discourage union support in the
preelection period A further basis for the same conclusion
follows from Respondent's admitted ground that he was
discharged for conducting union activities "during business
hours " Thus, Respondent is relying upon the invalid no-
solicitation rule, supra 16 There was no attempt by
Respondent to show that Shotsky's activities took place on
working time Shotsky gave credible testimony to the
contrary Thus, he was engaged in a protected right under
Section 717 Accordingly, I find that, by discharging
Shotsky, Respondent violated Section 8(a)(3) and, inde-
pendently, Section 8(a)(1) of the Act
15 Jeffers was not called to testify
16 E g Heritage House of Connecticut Inc etc 192 NLRB No 158
17 See S E Nichols of Ohio Inc 195 NLRB No 172
18 N L R B v Express Publishing Co 312 U S 426, N L R B v Entwistle
E The Representation Case
As Smith and Shotsky were unlawfully discharged
employees , they were eligible to vote in the election It is
therefore recommended that their challenges be overruled,
their ballots be opened and counted , and the Regional
Director issue the appropriate certification of the election
results It is unnecessary , in my opinion , to pass upon the
challenge involving John Neidigh , an alleged supervisor
III THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent , set forth in section II,
above, occurring in connection with its operations de-
scribed in section I, above , have a close , intimate, and
substantial relation to trade, traffic , and commerce among
the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce
IV THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices , I shall recommend that it cease and
desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act A broad
cease-and-desist order is warranted , in view of the
discriminatory discharges and other violations 18
It has been found that Respondent unlawfully terminat-
ed Richard L Smith and William L Shotsky, respectively,
on January 15 and February 18, 1972 It will therefore be
recommended that Respondent offer these employees
immediate and full reinstatement to their former positions,
or if such positions no longer exist , to substantially
equivalent positions, without prejudice to any seniority or
other rights and privileges they previously enjoyed, and
make them whole for any loss of pay suffered as a result of
its discrimination against them, by payment to them of a
sum of money equal to that which they normally would
have earned , absent the discrimination , with backpay and
interest computed under the established standards of the
Board 19 It will be further recommended that the Respon-
dent preserve and make available to the Board, upon
request, all payroll records, social security payment
records, timecards, personnel records and reports, and all
other records necessary and useful to determine the
amounts of backpay and the rights of reinstatement under
the terms of these recommendations
Upon the foregoing findings of fact, and upon the entire
record in the cases, I make the following
CONCLUSIONS OF LAW
1 Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act
2 The Union is a labor organization within the
meaning of Section 2(5) of the Act
3 By terminating Richard L Smith and William L
Mfg Co 120 F 2d 532 (C A 4)
19 F W Woolworth Company 90 NLRB 289 Isis Plumbing & Heating
Co 138 NLRB 716
MID-OHIO AUTOMOTIVE, INC 685
Shotsky, thereby discouraging membership in the Union,
Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(3) of the Act
4 By the foregoing, and by other acts and conduct
interfering with, restraining, and coercing employees in the
exercise of their rights guaranteed in Section 7 of the Act,
Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(1) of the Act
5 The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act
6 Richard L Smith and William L Shotsky were
eligible to vote in the Board election on February 15, 1972,
and the challenges to their ballots are overruled
Upon the above findings of fact, conclusions of law, and
the entire record in the cases, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended 20
ORDER
Respondent, Mid-Ohio Automotive, Inc, of Columbus,
Ohio, its officers, agents, successors , and assigns, shall
1 Cease and desist from
(a) Coercively interrogating employees concerning their
union activities and those of their fellow employees, or
coercively announcing, promising, or granting employees
wage increases , a new profit-sharing and pension plan, or
other benefits to discourage their union activities, or to
influence their votes in a Board election
(b) Promoting, maintaining, or enforcing a rule which
prohibits employees from engaging in union solicitation or
activities during their nonworking time
(c) Discouraging membership in Teamsters Union, Local
No 413, Affiliated With The International Brotherhood Of
Teamsters, Chauffeurs, Warehousemen And Helpers Of
America, or any other labor organization, or in any other
manner discriminating in regard to hire or tenure of
employment or any term or condition of employment
(d) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights guaran-
teed in Section 7 of the Act, except to the extent that such
rights may be affected by an agreement in conformity with
Section 8(a)(3) of the Act, as amended
2 Take the following affirmative action designed to
effectuate the policies of the Act
(a) Offer Richard L Smith and William L Shotsky
immediate and full reinstatement to their former positions,
or if those positions no longer exist, to substantially
equivalent positions, without prejudice to their seniority or
other rights or privileges, and make them whole for any
loss of earnings, in the manner set forth in "The Remedy"
section of the Decision of the Administrative Law Judge
(b) Notify Richard L Smith and William L Shotsky, if
presently serving in the Armed Forces of the United States,
of their right to reinstatement upon application, in
accordance with the Selective Service Act and the
Universal Military Training and Service Act of 1948, as
amended, after discharge from the Armed Forces
(c) Preserve and make available to the Board or its
agents all payroll and other records, as set forth in section
entitled "The Remedy" of the Decision of the Administra-
tive Law Judge
(d) Post at its Columbus, Ohio , plant and facilities,
copies of the attached notice marked "Appendix"21
Copies of said notice , on forms provided by the Regional
Director for Region 9, shall, after being duly signed by
Respondent, be posted immediately upon receipt thereof in
conspicuous places, and be maintained for a period of 60
consecutive days Reasonable steps shall be taken to insure
that said notices are not altered, defaced, or covered by
any other material
(e) Notify the Regional Director for Region 9, in writing,
within 20 days from the date of this Decision , what steps
Respondent has taken to comply herewith 22
Further, it is ordered that Case 9-RC-9405 be severed
from this proceeding and remanded to the Regional
Director for his disposition
20 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board the findings,
conclusions and recommended Order herein shall , as provided in Sec
102 48 of the Rules and Regulations be adopted by the Board and become
its findings, conclusions and Order and all objections thereto shall be
deemed waived for all purposes
21 In the event that the Board s Order is enforced by a Judgment of a
United States Court of Appeals the words in the notice reading Posted by
Order of the National Labor Relations Board shall read Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board
22 In the event that this recommended Order is adopted by the Board
after exceptions have been filed, this provision shall be modified to read
Notify the Regional Director for Region 9 in writing , within 20 days from
the date of this Order what steps the Respondent has taken to comply
herewith
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR REL&TIONS BOARD
An Agency of the United States Government
After a trial at which both sides had the opportunity to
present their evidence, the National Labor Relations Board
has found that we violated the law and has ordered us to
post this notice, and we intend to carry out the order of the
Board, and abide by the following
WE WILL NOT ask you anything about your union
activities or those of your fellow employees in a manner
which would coerce you regarding your rights under
the Act
WE WILL NOT announce, offer, promise, or grant you
wage increases , a new profit sharing and pension plan,
or other benefits, to keep you from joining or
supporting a Union, or to influence you regarding your
votes in a Board election
WE WILL NOT issue , maintain, or enforce any rule
which prohibits employees from engaging in union
solicitation or activities during their nonworking time
WE WILL NOT discourage membership in Teamsters
Union, Local No 413, affiliated with the International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, or any other labor organiza-
tion, by discharging employees, or in any other manner
discriminating in regard to their employment or any
term or condition of employment
WE WILL NOT in any other manner interfere with,
686 DECISIONS OF NATIONAL
restrain, or coerce you in the exercise of the rights
guaranteed employees in the National Labor Relations
Act, which are as follows
To engage in self organization
To form, join or help unions
To bargain collectively through a representa-
tive of their own choosing
To act together for collective bargaining or
other mutual aid or protection
To refuse to do any or all of these things
Since it has been found that we unlawfully dis-
charged Richard L Smith and William L Shotsky, WE
WILL offer to give them back their regular jobs, or if
those jobs no longer exist, we will give them substan-
tially equivalent jobs, and WE WILL pay the above-
named employees for the earnings they lost because of
the discrimination against them, plus 6-percent interest
WE WILL notify Richard L Smith and William L
Shotsky, if presently serving in the Armed Forces of the
United States, of their rights to reinstatement upon
LABOR RELATIONS BOARD
application, in accordance with the Selective Service
and the Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces
MID-OHIO AuTOMOTIvE,
INC
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material Any questions concern-
ing this notice or compliance with its provisions may be
directed to the Board's Office, Federal Office Building,
Room 2407, 550 Main Street, Cincinnati, Ohio 45202,
Telephone 513-684-3686