Savin Business Machines Corp.

National Labor Relations Board - Board Decisions

May 22, 1979

242 N.L.R.B. 435 (N.L.R.B. 1979)

SAVIN BUSINESS MACHINES CORPORATION
Savin Business Machines Corporation and Stuart
Portner. Case 1-CA-14154
May 22, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND MURPHY
On January 24, 1979, Administrative Law Judge
Robert Cohn issued the attached Decision in this pro-
ceeding. Thereafter, Respondent filed exceptions and
a supporting brief, and the General Counsel filed a
brief in support of the Administrative Law Judge's
Decision and a motion to strike portions of Respon-
dent's brief. Respondent thereafter file a reply to the
General Counsel's motion.'
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
ders that the Respondent, Savin Business Machines
Corporation, Brighton, Massachusetts, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order, except that
the attached notice is substituted for that of the Ad-
ministrative Law Judge.
I Respondent excepted to the Administrative Law Judge's refusal to re-
open the record to admit evidence concerning the alleged implication of the
discriminatee, Portner, in criminal misconduct at Respondent's premises on
a date subsequent to the events at issue in this case. The General Counsel
moved to strike references to this alleged misconduct from Respondent's
brief. It is our opinion that the record as a whole supports the finding that
Portner's discharge was discriminatorily motivated, and that evidence of
events subsequent to this discharge would not affect this finding. However,
evidence of Portner's alleged wrongdoing may have an effect on his right to
reinstatement to his former job. We will leave that matter to be considered at
the compliance stage of this proceeding. In light of this disposition, the Gen-
eral Counsel's motion to strike is denied.
2 The Administrative Law Judge inadvertently failed to conform his notice
with his recommended Order. We shall correct his notice accordingly.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportunity
to present evidence, the National Labor Relations
Board has found that we violated the National Labor
Relations Act, as amended, and has ordered us to
post this notice. We intend to abide by the following:
The Act gives all employees these rights:
To organize themselves
To form, join, or help unions
To bargain as a group through representa-
tives they choose
To act together for collective bargaining or
other mutual aid or protection
To refuse to do any or all of these things.
All of our employees are free to remain, or refrain
from becoming or remaining, members of a labor or-
ganization.
WE WILL NOT unlawfully discharge employees
for lawfully engaging in union activities or pro-
tected concerted activities.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the ex-
ercise of their rights guaranteed by Section 7 of
the Act.
WE WILL offer Stuart Portner his former job
or, if such job no longer exists, a substantially
equivalent position, and will restore his seniority
and other rights and privileges.
WE WILL pay him any backpay he may have
lost because we discharged him, with interest.
SAVIN BUSINESS MACHINES CORPORATION
DECISION
STAIEMENI OF THE CASE
ROBERT COHN, Administrative Law Judge: This case was
heard at Boston, Massachusetts, on September 6. 7, 26, and
27, 1978, based upon a charge filed on February 21. 1978,
and a complaint issued April 5, 1978. The sole issue to be
resolved is whether Savin Business Machines Corporation
(herein the Company or Respondent) violated Section
8(a)(3) and () of the National Labor Relations Act, as
amended (herein the Act), by its discharge (on or about
December 14, 1977) and subsequent refusal to reinstate the
Charging Party to his former or substantially equivalent
position of employment.
At the close of the hearing, oral argument was made by
counsel for the General Counsel. Post-hearing briefs had
been received from both counsel for the General Counsel
and counsel for Respondent, as well as a statement from the
Charging Party, all of which had been duly considered.
I Subsequent to the filing of briefs. counsel for General Counsel filed a
motion to strike an alleged prejudicial statement in Respondent's brief which
referred to a robber) at the premises of Respondent during the hiatus be-
tween the hearing dates and the alleged implication of the Charging Party
herein. On December 27. 1978. Respondent filed its motion to reopen the
record. based upon such incident, in which it was stated:
On or about October 27, 1978, information was obtained by Respon-
dent that reflected the charging part) was either directly or indirectly
(Continued)
242 NLRB No. 82
435
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in the case, including my observa-
tion of the demeanor of the witnesses,' I make the follow-
ing:
FINDINGS OF FACT
I. THE ALLEGED UNFAIR LABOR PRACTICES 3
A. The Facts
As previously noted, the sole issue in this case is whether
Stuart Portner, the Charging Party, was terminated by Re-
spondent on or about December 14, 1977, because of his
activities on behalf of the Union or for just cause.
At its Brighton facility, Respondent has been engaged in
the sale, leasing, and servicing of highly sophisticated busi-
ness machines. Prior to his discharge, as aforesaid, the
Charging Party had been employed by Respondent since
1969 in the service and maintenance of such machines.
During this period of time he had advanced to a position of
"FE-4"4 which is the next to the highest nonsupervisory
rank in the service department. As an FE-4, he was ex-
pected to service the machines of the customers assigned to
him, assist in the training of other technicians, and repair
machines that other technicians were not competent to re-
pair. The bulk of such service and repair duties was carried
on at the establishments of Respondent's customers. Ac-
cordingly, it was incumbent for a field engineer to have his
own means of transportation since the Company did not
provide company cars.5
The record is abundantly clear that the Charging Party
possessed and displayed a high degree of skill and compe-
tency as far as his technical ability was concerned. This
involved in the unlawful removal and possession of part of all of the
material mentioned above.
Since time is of the essence, affidavits of the facts of the robbery have
not been attached but will be supplied if required.
On January 9, 1979, counsel for the General Counsel filed his reply in
opposition to Respondent's motion to reopen the record. On January II,
1979, Respondent filed its response to the General Counsel's opposition.
The fact of the alleged robbery admittedly occurred after the alleged dis-
crimination. Accordingly, it could have no direct bearing on that issue. Were
the Charging Party shown to have been guilty of participation in the rob-
bery, such would have a bearing on the issue of remedy (cf N.L.R.B. v. Big
Three Welding Equipment Co., 359 F.2d 77 (5th Cir. 1966). However, there is
a lack of supporting data in the record upon which to base such a finding.
Therefore, the motion of Respondent to reopen the record is denied; the
motion of the General Counsel to strike is granted.
'Cf. Bishop and Malro, Inc., d/b/a Walker's, 159 NLRB 1159, 1161
(1966).
3 There is no issue herein respecting thejurisdiction of the National Labor
Relations Board over this Respondent nor of the status of the labor organi-
zation involved. The complaint alleges sufficient facts respecting the inter-
state operations of Respondent, which are admitted in Respondent's answer,
upon which I may, and do hereby, find that Respondent is an employer
engaged in commerce within the meaning of the Act.
It is further alleged in the complaint and admitted in the answer of Re-
spondent that International Brotherhood of Teamsters. Chauffeurs, Ware-
housemen and Helpers of America (herein the Union) is a labor organization
within the meaning of Sec. 2(5) of the Act. I so find.
'FE stands for field engineer.
The record reflects that during the time in question Respondent reim-
bursed the servicemen on the basis of 14 cents per mile traveled on company
business.
technical proficiency was recognized by both low level su-
pervisors of the Company (as they testified at the hearing),
as well as by high company officials. For example, as re-
cently as September 13, 1977, the Charging Party received a
commendation in the form of a letter and check from the
president of Respondent for his suggestion which appar-
ently was an improvement to one of the company's prod-
ucts or procedures. However, the Company contends that
the Charging Party had deficiencies as an employee which
eventually overcame his proficiencies as a technician and
led to his ultimate termination.,
During August 1977 the Charging Party became involved
in an organizational campaign on behalf of the Union.'
Portner testified that during this time he received some au-
thorization cards from a representative of the Union and
proceeded to distribute such cards to other Company tech-
nicians during nonworking hours on the Company's park-
ing lot and at a social affair which took place at his home.
He testified that on one occasion, on or about August 17,
while he was passing out union authorization cards in the
parking lot before worktime, he observed Supervisor Pena,
and that Pena approached him. Portner immediately put
the cards away, and nothing was said between the two men
at that time. However, at the close of work that evening, he
had a conversation with Pena in the serviceroom of Re-
spondent's facility. According to Portner's testimony, Pena
advised that some of the other technicians were telling him
(Pena) that Portner was "doing things" which were turning
them against the Company, i.e., that Portner was "making
trouble," and "leading a revolution." Portner denied that
the reports were true, but Pena advised Portner that the
latter would have to change his attitude or he might lose his
job as an FE-4.4
In September Portner claimed that he was being harassed
by the Company by, for example, being sent on "bogus
calls," which are assignments to a field technician by the
dispatcher where there is no complaint by the customer;
therefore, the time of the field engineer is wasted and made
to look nonproductive. Portner testified that the number of
such calls increased markedly in September, and when he
would question the dispatcher about it he was usually told
that the call was placed in his box by Steve Pena.
I These asserted deficiencies will be dealt with more fully, infra.
7There is nothing in the record to indicate that prior to such time the
employees of Respondent at the Brighton facility were ever represented for
purposes of collective bargaining by a labor organization.
I The foregoing findings are based upon the testimony of Portner, which I
credit over Pena's denial of ever having had such a conversation with Port-
ner. In addition to demeanor considerations, I base the credibility resolution,
in part, upon the transcription of a tape recording which Portner secretly
made during his conversation with Pena, which was admitted into evidence
over Respondent's objection. See, e.g., Fontaine Truck Equipment Company,
193 NLRB 190 (1971); cf. Carpenter Sprinkler Corporation, 238 NLRB 139
(1978). where the Board recently altered the rule with respect to collective-
bargaining negotiations. Although Respondent contended that there was a
possibility that the tape may have been altered, there was no evidence pre-
sented of this. and I gave leave of Respondent during the hiatus in the
proceeding to have its experts examine the tape for any such alleged alter-
ation.
Finally, when Pena was presented with the transcription of the tape and
asked whether it was "accurate in any way," he responded:
I can't really say honestly that it's it's accurate or inaccurate be-
cause I don't really recall the conversation, number one. I'd say that it
was possible.
436
SAVIN BUSINESS MACHINES CORPORATION
Abel Mendes, a coworker of Portner at the Company,
testified that in late August or early September Pena spoke
to him and two other technicians (John Larner and Richard
Dubois) late one afternoon at the plant. Pena, after wonder-
ing rhetorically what Portner was trying to prove by start-
ing a union, averred that "a union would not do anyone
any good at Savin [because the employees] were getting
benefits that they would normally get if they had a union."9
As previously noted, Portner was terminated on Decem-
ber 14, 1977. On that day his car became disabled, and he
contacted his supervisors that he would be unable to make
his usual rounds. On that occasion Portner spoke with Pena
at about 10 a.m. (Portner had placed the call to Laws,
whom he considered his immediate supervisor, but Laws,
who shared an office with Pena, was on another call and
Pena spoke with Portner.) Both Pena and Laws testified
that under the circumstances Portner was given the option
to come to the Company's facility and work out of the of-
fice, but that Portner claimed he was unable to even get
transportation to the office.' 0 Pena testified that after 5 or 10
minutes of argument with Portner concerning the latter's
inability to secure transportation and his inability to give
Pena "any reasonable answer at all on when and if he could
get any kind of transportation to do service calls," Pena
told Portner "I think, Stuart, it is about time that Stu Port-
ner and Savin Business Machines part company," and that
Portner at that time said, "I agree.""
On December 16 Portner came back to Respondent's of-
fice for the purpose of having an exit interview with Super-
visor Laws. There was no discussion of his discharge at that
time. Apparently the exit interview consisted solely of Port-
ner's responding to a list of prearranged questions which
Laws asked him.2
9 Although Pena denied having a conversation with Mendes regarding
Portner's union activities, I am inclined to credit Mendes, who impressed me
as a candid and forthwright witness and who was testifying while still an
employee of the Company, against Respondent's interests. (See e.g., Georgia
Rug Mill, 131 NLRB 1304, 1305 at fn. 2 (1961); Asroasystems, Inc., 203
NLRB 49 (1973); Federal Envelope Conany, etc., 147 NLRB 1030, 1036
(1964)). Although both Dubois and Larner were unable to recall any such
statement by Pena in the presence of Mendes, I am unable to believe that
Medes fabricated the incident. Had he desired to fabricate based upon his
friendship with Portner, as suggested by counsel for Respondent, it would
seem unlikely that he would place two other technicians who were still em-
ployed by Respondent at the site of the conversation.
10 It appears that it is the practice of the Company that when a field
engineer's car breaks down, he is assigned to work with another engineer
until his car is repaired. This would be particularly true with a field engineer
of the experience of Portner, who had the responsibility, on occasion, of
training younger and more inexperienced field engineers.
" Portner's version of the conversation is at variance with the foregoing.
He testified that Pena stated that Portner would be required to rent a car
while his was in repair. and that Portner responded that he could not afford
to rent a car; that Portner offered to take public transportation downtown
and perform service calls on foot, or ride with another technician as he had
done in the past. However, Pens rejected these offers and told Portner that
he was discharged.
I deem it unnecessary to resolve this particular credibility conflict since I
would find in favor of the General Counsel on the ultimate issue of discrimi-
nation even if Respondent's version of the telephone conversation is credited,
as more fully set forth, infra
1 Testimony of Laws.
B. Analysis and Concluding Findings
As mentioned above, it is the position of the Company
that Portner was terminated for "just cause"; that the inci-
dent on December 14 constituted "insubordination" by
Portner to Supervisor Pena, which was the culmination of
many problems and frustrations which the Company had
had with Portner over the years, and ultimately led to his
discharge. Counsel for the General Counsel argues that
Portner was clearly one of the best technicians in the Com-
pany's employ; that whatever deficiencies he may have had
in his personal deportment, the Company had either over-
looked or suffered with over the years, and that it was only
after Portner was found to have been a leader in a union
organizational campaign-to which Respondent was unal-
terably opposed-that these other deficiencies became so
oppresive that they rose to the stature of grounds for dis-
charge. For reasons hereinafter set forth, I agree with the
General Counsel.
The record evidence leaves no doubt that from almost
the beginning of his employment with Respondent in 1969,
Stuart Portner presented somewhat of a problem to the
management of the Company. As previously mentioned,
there can be no doubt that he possessed a very good techno-
logical mind and exercised great skill as a technician. As a
consequence, he rose rather rapidly in the ranks of the
Company's field engineers, and toward the end of his em-
ployment he was acknowledged to be one of the best techni-
cians in the Company's Brighton facility. The Company
had acknowledged his technical proficiency with one or
more letters of commendation and reward. At the same
time, however, Portner had personal deficiencies. The rec-
ord is replete with testimony that he was, from the outset of
his employment, a sloppy dresser and did not adhere to the
Company's dress code. Laws testified that he considered
Portner's dress to be inadequate from the first day of his
employment, and that he spoke to him often about it. Port-
ner's response would normally be that he (Portner) would
try to do better, and the matter was left there. There is no
evidence that any company supervisor ever warned Portner
that unless he improved in his dress and adhered to the
dress code his job was in jeopardy.
There were other deficiencies Respondent raised at the
hearing which, it claims, weighed heavily in the decision to
terminate Portner. 3
Respondent argues that "customer complaints" were a
factor in the decision to discharge Portner. However, prior
to the discharge, the record does not reflect that Respon-
dent viewed such complaints as sufficiently serious to con-
stitute a threat to Portner's employment. There is no evi-
dence in the record emanating from a customer that such
customer ever demanded Portner's discharge. Indeed, the
3 It is noteworthy that none of the factors mentioned hereinafter were
mentioned to Portner at the time of his discharge as a reason for his termina-
tion, nor were records of warnings of such conduct placed in his personnel
file at the time of such occurrences. See Air Products and Chemicals, Inc., 227
NLRB 1281 (1977), where the Administration Law Judge noted that at no
time prior to the dismissal of the two alleged discriminatees did any supervi-
sor ever caution or admonish them that their "attitude" mght lead to dis-
rmssal. "Such action on the part of an employer is not natural," citing E.
Anthony and Sons v. N..LR.B, 163 F.2d 22, 26-27 (D.C. Cir. 1947). cert.
denied 332 U.S. 773.
437
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
seriousness or frequency of such alleged customer com-
plaints is not clear in the record. The last such complaint,
according to the testimony of Supervisor Laws, occurred in
the spring or early summer of 1977 wherein a company
called Diamond Union Stamp Works complained that
Portner had "tried to jam a maintenance agreement down
his throat." Here again, there is no evidence that Laws
warned or threatened Portner at the time with loss of his
job as a result of such complaint.
Respondent contends that one of the reasons for Port-
ner's discharge was because the latter stole some of the
Company's products. Pena testified that on one occasion in
September or October 1977 he caught Portner in the parts-
room, which was a restricted area. When he asked Portner
what he was doing there, the latter replied that he needed
some switches to repair some equipment in the field." Pena
reported the incident to Laws, but no disciplinary action
ensued. Again, the record reflects that there was nothing in
Portner's personnel file regarding that incident or any other
incident of alleged stealing.
Finally, Respondent contends that a reason for Portner's
discharge was because he engaged in "moonlighting," i.e.,
working on company equipment at customer locations after
normal working hours for personal gain. Although the
Company claims that this practice was against company
policy, Portner candidly testified that he was instructed to
engage in such conduct from time to time (as were other
service technicians), and that the last two occasions oc-
curred in October 1977. Here again, there is no evidence of
warning or threat of discipline for engaging in such conduct
in Portner's personnel file, nor was any customer of Re-
spondent called to testify that such practice was against
company policy.
In sum, all of the "reasons" proffered by Respondent as
set forth above appear to be mere afterthoughts submitted
by Respondent in an attempt to legitimize the termination.
It is significant that such "reasons" were first announced at
the hearing, and they were not cited by management to
Portner either at the time of termination or at the exit inter-
view.'
Moreover, the incident of December 14 (even crediting
Respondent's version) would not seem to constitute such
serious "insubordination" as to warrant the extreme pen-
alty of discharge were not another factor involved.'6 Even
according to Pena's version of the conversation, Portner did
not contest Pena's authority, nor was he otherwise abusive
of Pena." Rather, he simply contended that he had no way
14 Field engineers customarily carry spare parts in their vehicles for the
purpose of repairing machinery at customer locations.
15 See, e.g., Bendix-Westinghouse Automotive Air Brake Co., 161 NLRB
789, 796 (1966), and cases cited.
16 As the United States Court of Appeals for the Ninth Circuit stated the
principle in Shattuck Denn Mining Corporation (Iron King Branch) v.
N.LR.B., 362 F.2d 466, 470 (1966):
If he Ithe trier of the factl finds that the stated motive for a discharge is
false, he certainly can infer that there is another motive. More than that,
he can infer that the motive is one that the employer desires to con-
ceal-an unlawful motive-at least where, as in this case, the surround-
ing facts tend to reinforce that inference.
i7 Webster's New Collegiate Dictionary defines "insubordinate" as "un-
willing to submit to authority."
to get transportation to the office until his car was repaired.
Certainly this would not, under ordinary circumstances, ap-
pear to be "just cause" for discharge unless some other fac-
tor was involved. Furthermore, I note that in discharging
Portner without previous discussion of the reasons, the su-
pervisors involved failed to adhere to personnel policy re-
specting the discharge of employees. The policy is set forth
in the office procedure manual as follows:"
It is the intent of the Company to fairly consider all
facts before releasing any employee. Whenever unsat-
isfactory performance or behavior occurs, the supervi-
sor or manager should deal with the situation
promptly, constructively and in a tactful manner in
order to:
a. Reduce the number of involuntary terminations.
b. Avoid misunderstandings between superior and
subordinate.
c. Ensure that personnel are provided with notice of
unacceptable performance in sufficient time to permit
self correction and improvement.
d. Assure that documentation is available to sup-
port management's position in the event of discrimina-
tion or labor claim charges.
It would seem that had not Respondent desired to utilize
the December 14 incident as a pretext to camouflage its real
reason for terminating Portner, Pena would have simply
instructed Portner to come to the office by taxicab and
would have warned him that if he did not comport to com-
pany policy and work according to management's instruc-
tions he would be discharged.
In view of the foregoing, I am convinced, and I therefore
find, that "but for" Portner's union activities, which Re-
spondent opposed, Portner would not have been terminated
because of the incident on December 14. Accordingly, I
conclude and find that the termination was in order to dis-
courage membership in a labor organization, in violation of
Section 8(a)(3) and (1) of the Act.
11. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section 1, above,
occurring in connection with its interstate operations, have
a close, intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States and tend to
lead to labor disputes burdening and obstructing commerce
and the free flow thereof.
Upon the basis of the foregoing findings of fact, and
upon the entire record, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of the Act.
2. The Union is a labor organization within the meaning
of the Act.
3. By discharging its employee, Stuart Portner, in order
to discourage membership in the Union, Respondent has
"s See G.C. Exh. 4.
438
SAVIN BUSINESS MACHINES CORPORATION
engaged in and is engaging in unfair labor practices within
the meaning of Section 8(a)(3) and (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair la-
bor practices violative of Section 8(a)(1) and (3) of the Act,
I shall recommend that it cease and desist therefrom and
take certain affirmative action designed to effectuate the
policies of the Act.
It having been found that Respondent unlawfully dis-
charged its employee, Stuart Portner, it is recommended
that Respondent offer said employee immediate and full
reinstatement to his former position or, if such position no
longer exists, to a substantially equivalent position, without
prejudice to his seniority or other rights and privileges, and
make him whole for any loss of earnings he may have suf-
fered as a result of the discrimination against him.' Any
backpay and interest thereon is to be computed in the man-
ner prescribed in F. W. Woolworth Company, 90 NLRB 289
(1950), and Florida Steel Corporation, 231 NLRB 651
(1977). 20
As the unfair labor practices committed by Respondent
strike at the very heart of employee rights safeguarded by
the Act, I shall recommend that Respondent be place under
a broad order to cease and desist from in any manner in-
fringing on the rights of employees guaranteed in Section 7
of the Act.2
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER2
The Respondent, Savin Business Machines Corporation,
Brighton, Massachusetts, its officers, agents, successors, and
assigns, shall:
1Nothing contained in Respondent's post-hearing motion to open the
record convinces me that the usual remedy for a Sec. 8(a)(3) violation should
be altered in this case.
OSee. generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
21 N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532, 536 (4th Cir. 1941).
22 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.
1. Cease and desist from:
(a) Discouraging membership in the International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, or any other labor organization, by
discharging or otherwise discriminating against employees
because of their union membership or activities.
(b) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their right to self-
organization, to form, join, or assist the above-named labor
organization, or any other labor organization, to bargain
collectively through representatives of their own choosing,
to engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection, or
to refrain from any and all such activities.
2. Take the following affirmative action which is deemed
necessary to effectuate the policies of the Act:
(a) Offer Stuart Portner immediate and full reinstate-
ment to his former job or, if such job no longer exists, to a
substantially equivalent position, without prejudice to his
seniority or other rights and privileges, and make him
whole for any loss of earnings he may have suffered by
reason of the discrimination against him, in the manner set
forth in the section of this decision entitled "The Remedy."
(b) Preserve and, upon 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 records necessary
and relevant to analyze and compute the amount of back-
pay due under the terms of this recommended Order.
(c) Post at its Brighton, Massachusetts, facility copies of
the attached notice marked "Appendix." Copies of said
notice, on forms provided by the Regional Director for Re-
gion 1, after being duly signed by the Company's autho-
rized representative, shall be posted by it immediately upon
receipt thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by the Company to insure that said
notices are not altered, defaced, or covered by any other
material.
(d) Notify the Regional Director for Region 1, in writ-
ing, within 20 days from the date of this Order, what steps
have been taken to comply herewith.
23 In the event that 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
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"
439