Spicher Motors, Inc.

National Labor Relations Board - Board Decisions

Jan 11, 1974

208 N.L.R.B. 344 (N.L.R.B. 1974)

344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Spicher Motors, Inc. and Teamsters Local Union 538
a/w International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Ameri-
ca. Case 6-CA-6670
January 11, 1974
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND
PENELLO
On September 28, 1973, Administrative Law Judge
Lowell Goerlich issued the attached Decision in this
proceeding. Thereafter, the 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,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Spicher Motors,
Inc., Kittanning, Pennsylvania, 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 the Administrative
Law Judge's notice.
i 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 Administrative Law Judge 's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect Standard Dry Wall Products,
Inc, 91 NLRB 544, enfd 188 F 2d 362 (C A 3, 1951 ) We have carefully
examined the record and find no basis for reversing his findings
The Respondent has requested oral argument This request is hereby
denied as the record , the exceptions and supporting brief adequately set
forth the issues and positions of the parties
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial in which all parties were permitted to
introduce testimony and other evidence, it has been
decided that we violated the National Labor Rela-
tions Act, as amended, among other things, by
discharging Harvey A. Fox in retaliation for our
employees choosing Teamsters Local Union 538 a/w
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America as their
collective-bargaining representative and to discour-
age our employees' affection for the Union.
WE WILL offer Harvey A. Fox his job or, if his
job no longer exists, a substantially equivalent
job.
WE WILL restore his seniority and pay him the
backpay and veteran's benefits he lost because we
discharged him, with 6-percent interest.
WE WILL NOT unlawfully discharge any of our
employees for the same reason we discharged
employee Fox.
WE WILL restore the existing employee work
rules and employee privileges which we changed
on April 10, 1973, as they existed on that date,
which include the rights of employees to purchase
automobile parts at a discount, repair and service
their own cars in our shop,-and place and receive
personal telephone calls as were permitted on
April 10, 1973.
WE WILL NOT unlawfully threaten you with
economic reprisals because you chose the Union
as your collective-bargaining agent or continue
your union affection.
SPICHER MOTORS, 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 concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, 1536 Federal Building , 1000 Liberty
Avenue, Pittsburgh, Pennsylvania 15222, Telephone
421-254-9469.
DECISION
STATEMENT OF THE CASE
LOWELL GOERLICH, Administrative Law Judge: The
charge filed by Teamsters Local Union 538 a/w Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America , herein called the Union, on
April 16, 1973, was duly served by registered mail on
Spicher Motors , Inc., the Respondent herein , on April 16,
1973. An amended charge filed by the Union on June 18,
1973, was duly served by registered mail on the Respon-
dent on June 28 , 1973. A complaint and notice of hearing
208 NLRB No. 49
SPICHER MOTORS, INC.
was issued on June 21, 1973, and duly served on the
Respondent on June 28, 1973. The complaint charged that
the Respondent had violated Section 8(a)(1) of the
National Labor Relations Act, as amended, herein referred
to as the Act, by unlawful interrogations, by threats of loss
of benefits and economic reprisals, and by changes in work
rules and employee privileges. It was further alleged that
the Respondent had violated Section 8(a)(3) of the Act by
terminating its employee, Harvey A. Fox, on April 14,
1973.
The Respondent filed a timely answer denying that it
had engaged in or was engaging in any of the unfair labor
practices alleged.
The case came on for trial on July 19 and 20, 1973, at
Kittanning, Pennsylvania. Each party was afforded a full
opportunity to be heard, to call, examine, and cross-
examine witnesses, to argue orally on the record, to submit
proposed findings of fact and conclusions, and to file
briefs. All briefs have been carefully considered.
FINDINGS OF FACT,' CONCLUSIONS, AND REASONS
THEREFOR
1. THE BUSINESS OF THE RESPONDENT
Respondent, a Pennsylvania corporation with its sole
facility located at Kittanning, Pennsylvania, is engaged in
the retail sale and service of new and used automobiles and
the sale of automobile parts. During the past 12-month
period immediately preceding the issuance of the com-
plaint, a representative period, Respondent had a gross
volume of business in excess of $500,000. During this same
period, Respondent received goods and materials valued in
excess of $50,000 for use at its Kittanning, Pennsylvania,
facility directly from points outside the Commonwealth of
Pennsylvania.
Respondent is now, and has been at all times material
herein, an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is now, and has been at all times material
herein , a labor organization within the meaning of Section
2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Union Activity
On March 9 , 1973, the Respondent received written
notification that the Union had filed a petition (Case
6-RC-6414) to represent all mechanics and bodymen
employed by the Respondent . On March 19 the parties
signed an agreement for consent election calling for an
election to be held on March 29, 1973. The petition was
withdrawn on March 22, 1973, and a new petition was filed
t The facts found herein are based on the record as a whole and the
observations of the witnesses
The credibility resolutions herein have been derived from a review of the
entire testimonial record and exhibits, with due regard for the logic of
probability, the demeanor of the witnesses, and the teachings of N L R B v
Walton Manufacturing Company & Loganville Pants Co, 369 U S. 404, 408
345
in Case 6-RC-6414 in which the Union sought to represent
all mechanics, bodymen, car-wash-men, and other service
employees employed by the Employer. On March 29, 1973,
an agreement for consent election in Case 6-RC-6414 was
approved setting the election for April 10, 1973. At the
election, out of the six valid ballots cast, four were cast for
the petitioner. The alleged discriminatee, Harvey A. Fox,
served as the Union's observer. After an investigation of
the Respondent's objections to the election by the Regional
Director the Union was certified as the collective-bargain-
ing representative on June 18, 1973.
The Union's organizational campaign which culminated
in the filing of the first petition commenced shortly prior to
March 3, 1973, on which date employees Fox, Richard A.
Hogue, and Richard Zentz met with Union Representative
Raymond Baker at the Teamsters union hall where each
signed a union authorization card. Thereafter Fox solicited
employee Westwood, an employee in the body shop, but
was unsuccessful in procuring his signature to an authori-
zation card.
B. The Supervisory Status of Service Manager Jeff
L. Wilson
At all times material herein Gerald Spicher was the
president of the Respondent, Frank A. Stewart, Jr., its
general manager, and Jeff L. Wilson, its service manager.
The Respondent concedes that Spicher and Stewart, Jr.,
are supervisors within the meaning of the Act but the
Respondent contends that Service Manager Wilson does
not fall within such classification.
At the time of the election Wilson supervised employees
Harry C. McManus, Richard A. Hogue, Fox, and William
F. Waltenbaugh, Jr., who were engaged in auto service and
repair work, and cleanup man Francis Battaflino. When a
customer presented an automobile, Wilson determined the
service to be rendered or the repair to be effected. He then
assigned the work to one of the auto mechanics, selecting
the mechanic based on thr' nature of the job and the
experience and capability of the employee. Wilson re-
viewed the work of the mechanics and directed them to
correct work which he did not approve.
Wilson was authorized to grant time off to employees.
Wilson's immediate supervisor was General Manager
Stewart who, unlike Wilson (Wilson had 13 years'
experience in the automobile industry), had no experience
as an auto machanic. Stewart spent little time in the shop;
he consulted with Wilson when he wanted to find out how
the mechanics were doing. When Fox was hired Stewart
and Wilson jointly interviewed him and together decided
on his employment.
Stewart testified that he discussed Fox's work habits and
those of other employees with Wilson and when he decided
to fire Fox he told Wilson "to do it" in that Stewart "felt
that he was the one who should tell him, since he was his
immediate superior." Stewart also said that Wilson
(1962) As to those witnesses testifying in contradiction to the findings
herein, their testimony has been discredited, either as having been in
conflict with the testimony of credible witnesses or because it is in and of
itself incredulous and unworthy of belief All testimony has been reviewed
and weighed in the light of the entire record
346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
received customer complaints and determined whether
customer complaints were justified.
Wilson spent less than 10 percent of his time in auto
service and repair work. He did not vote in the election.
The foregoing indicia of supervisory status bring the
duties and responsibilities of Wilson within the definition
of supervisor as set forth in Section 2(11) of the Act. The
exercise of supervisory authority by Wilson was "not of a
merely routine or clerical nature." He "responsibly" 2
directed other employees, exercised independent judgment
in the assignment of their jobs, reviewed their work, and
reported upon their achievements. He was the only
supervisor to whom the employees working under him
reported for work assignments and direction. Accordingly,
Wilson was a supervisor within the meaning of the Act.
C. The Alleged Violations of Section 8(a)(1) of Act
1. The alleged misconduct of Service Manager
Wilson
The General Counsel alleges that Wilson unlawfully
interrogated employees on March 9, 1973. To support this
claim the testimony of Fox was offered in which he said
that Wilson asked Hogue about a letter received by the
Respondent. Fox quoted Wilson as saying "they got a
letter inside, somebody was talking about joining the
Union." Wilson then asked Hogue "if he knew anything
about it."3 Hogue's version of the conversation was that
Wilson said, "Mr. Spicher said that he was going to try to
get to the bottom of this and he was going to lay off or fire
anybody that started it, and Mr. Wilson said that he didn't
think he could do it, that he'd better check into it, first. So
he went down. Mr. Spicher and Frank went downtown to
see what to do."
In view of the testimony of Hogue which contains no
reference to a coercive interrogation, it is found that the
General Counsel has not proved by a preponderance of
evidence coercive interrogation by Wilson.
2. The alleged misconduct of President Spicher
Two or three weeks before the election President Spicher
remarked to employee William Westwood that "he was just
going to close the shop down if the Union goes in ." This
threat was clearly a violation of Section 8(a)(1) of the Act.
"Threats such as to move the plant . . . or close it if the
union won . . . in the course of an organizational
campaign constitute interference and restraint within the
scope of Section 8(a)(1)." Marshfield Steel Company v.
N.LR.B., 324 F.2d 333, 336 (C.A. 8, 1963); Holly Hill
Lumber Co. v. N. L. R. B., 380 F.2d 838, 841 (C.A. 4, 1967).
About 3 days after Spicher had received the letter
notifying him of the Union's pending petition for an
election , Spicher told Fox in the shop, "If you fellows are
going to get tough with me, I'm going to get tough with
2 "To be responsible is to be answerable for the discharge of a duty or
obligation Responsibility includes ,judgment , skill, ability, capacity, and
integrity , and is implied by power ." Ohio Power Co v N LR B, 176 F.2d
385, 387 (C A. 6, 1949)
3 Wilson's signed statement offered into evidence relates, "1 believe I
asked Dick Hogue what was going on and asked him about the union after
Spicher showed me the letter."
you. I'm going to put you all on flat rate after the first of
the month. And if we had any cars backed up, we would do
them on our own time."
A "couple of weeks" before the election Spicher
remarked to Hogue that a flat rate would be instituted on
the first of the month, a thoughi which he also expressed to
employee Waltenbaugh about a month before the election.
At the time employees were being paid an hourly rate. A
flat rate provided for the employees receiving a fixed
amount for a job even though the time consumed for its
performance exceeded the amount of time figured in
setting the fixed amount. In addition the employee was
required to work on comebacks4 without additional
compensation. The flat rate was not instituted. Neverthe-
less, the threat to institute a flat rate, a threat "to get
tough," was the kind of reprisal banned by Section 8(a)(1)
of the Act and in violation thereof.
Shortly prior to the election Spicher told employee
Edward A. Buffington that "there would be different
working conditions if the Union came in, that the fellows
wouldn't be standing around in huddles and talking."
This threat of economic reprisal was likewise in violation
of Section 8(a)(1) of the Act.
3. The misconduct of General Manager Stewart,
Jr.
Shortly after the Respondent learned of the Union's
petition Fox was summoned by General Manager Stewart
to his office where he told Fox that he would sign his V.A.
cards but, since Fox's work was not improving, he was
uncertain about the future. Stewart said that "[u]p to this
point, he was willing to let it go; but now that we were
joining the Union, he didn't know whether he should sign
any more cards or not." Stewart added, "We will have to
wait until the end of the month and see what happens."6
In view of the current election situation Stewart's
statement to Fox above detailed constituted a clear threat
to cause a termination of his veteran's benefits because of
the Union's advent. Such misconduct violated Section
8(a)(1) of the Act.
On the same day after the election had been concluded,
Stewart and Spicher called a meeting of the employees in
the shop. Stewart opened his remarks by saying, "Now,
you men want some changes around here. We are going to
make some changes." Whereupon Stewart listed the
changes which he described in his testimony as follows:
. . if they brought [their own] cars in the shop, I wanted
repair orders on them, I wanted them to be billed the
regular customer rate, if they wanted parts, I wanted them
billed at the customer rate and I wanted to discontinue
personal phone calls unless they were emergencies. . . . I
told them if any more of this [standing in a corner talking
15 to 20 minutes at a time] went on, I was going to give a
couple of days off for it.... "At the time employees were
4 Comebacks were automobiles which had not been satisfactorily
serviced or repaired and were returned by the customer
5 Fox was enrolled in a Veterans ' Administration on-the-lob training
program In order that Fox could receive benefits Stewart was required to
submit a signed card for Fox each month
6 Stewart admitted the conversation , but did not testify that the Union
was mentioned.
SPICHER MOTORS , INC. 347
paying 10 percent above wholesale for parts purchased and
were allowed to work on their own cars after hours and on
lunch periods. Stewart explained the institution of the
changes immediately after the election as matters which he
had been considering for 3 or 4 years. He testified, "I
didn't decide it then; I had decided it three or 4 years ago."
When asked whether he announced these changes because
the employees had voted for the Union, he answered, "Not
exactly." Stewart's explanation as to why he waited 2 or 3
years until immediately after the Union's election victory
to implement these changes in working conditions is
unconvincing. It is clear that the Union's victory triggered
the announcement. Indeed the fact that the Respondent's
precipitate action occurred before the Respondent consid-
ered or evaluated the Union's collective-bargaining de-
mands stamps its motives as ulterior and unlawful.
While the Respondent claims that the changes were
never put in effect,7 the announced changes were not
rescinded by the Respondent. Nevertheless, the announce-
ment of these changes had the tendency to erode employee
support for the Union.8 By Stewart's announcement of
work rule changes and changes in employee privileges and
by any changes thereof which thereafter followed, the
Respondent violated Section 8(a)(1) of the Act.
D. The Discharge of Employee Harvey A. Fox on
April 14, 1973
1. Harvey A. Fox was employed by the Respondent on
January 3, 1972. Shortly prior to his employment he had
completed a 9-month, 5-day-week, 8-hour-a-day course in
auto mechanics at Lanape Tech, Ford City, a course
approved by Veterans' Administration. He was hired after
an interview with Stewart and Wilson. His starting rate was
$2 an hour. According to Stewart, at the time Fox was
hired "he didn't say he was a first class mechanic," nor did
Spicher view Fox as "a full-fledged" mechanic. About 6
months after he was hired, Fox was sent by the Respon-
dent to a Ford Motor Company transmission school for a
week. Thereafter Fox worked on transmissions but was
unable to perform transmission work satisfactorily. The
Respondent's other auto mechanics were also deficient in
this respect. This resulted in the Respondent's referring
transmission work to other shops.
Fox was laid off in the latter part of December 1972 and
was recalled in January 1973. About 3 months after he
commenced his employment he received a 10-cent-an-hour
merit increase.
After a representative of the state employment office
mentioned to Stewart that Fox would be eligible for a V.A.
program, Stewart contacted the Veterans' Administration
in Pittsburg, Pennsylvania, and arranged for Fox to
participate in the program. Fox received benefits in the
approximate amount of $133 a month.
During Fox's tenure of employment a substantial
number of comebacks resulted from his work. This was
also true of other employees including Waltenbaugh, Jr.,
who had 2 years' experience as an auto mechanic. When
Wilson was asked to rate Waltenbaugh, Jr., or Fox as the
better mechanic he answered, "It's a tough decision."
Stewart testified that he became aware that customers
were complaining about Fox's work "probably seven to
nine months before his discharge." According to Wilson,
Fox's work started to deteriorate in the middle of February
after which he received an increasing number of come-
backs. It was Wilson's opinion that grounds for Fox's
discharge existed in February.
In February Fox pulled the wheels from William M.
Smith's truck for inspection. In replacing the wheels
apparently Fox placed the lock nut next to the bearing
instead of between the nuts. In any event the next day,
when Smith was driving the truck up a hill, he lost the use
of both the brakes and the gears. The truck rolled
backwards down the hill causing some damage to the
truck. Spicher reimbursed Smith.
Stewart urged Spicher to "do something" about the
wheel incident. Spicher called the three mechanics together
and said, "I don't like to be tough on anybody, but I want
you to know that I don't want this to happen again,
because if it does, you won't have a job here, because I
cannot have a chance of having a lawsuit on me, somebody
could have been killed." Nevertheless, Fox continued in
employment, although comebacks continued.
Three days after the election on April 13, 1973, Wilson
informed Fox that "they were planning on laying [him]
off."9 On April 14, 1973, Stewart told Fox he was going to
lay him off.10 In this regard Stewart said, "We have to
support your Union, but we are going to do it with as few
men as possible ." " Stewart testified that the decision to
discharge Fox was his alone and that he did not confer
with Spicher about the discharge.12 Stewart testified that
he discharged Fox "[b]ecause of the work he was doing. In
the first place, he made some mistakes especially with this
one particular car he worked on, we had a lot of problems
with it and it came back in at that time, for the second
time." 13 Stewart testified that he made the decision to
discharge Fox "[w]henever this car came back in for the
second time."
On that day owner Smith had complained that the car
7 Proof was that the phone restriction was put in effect and that the
employees ceased working on their own cars in the shop There is doubt as
to whether the other changes were effected.
8 "[T]he established rule [is ) that an employer cannot engage in conduct
calculated to erode employee support for the union " N LRB v Deutsch
Company, Metal Components Division, 445 F 2d 902, 906 (C.A 9, 1971)
9 Wilson testified that he told Fox that "he was going to be terminated"
upon instructions from Stewart , that Fox "came back to work for a couple
of days because he wanted someone else to tell him "
10 The record is unclear as to whether Fox was told that he was being
laid off or discharged The Board has recently said, " we do not believe
that the General Counsel's failure to prove that Blenden's termination was a
discharge rather than a layoff is significant , so long as the record establishes
that the motivation for the termination was discriminatory within the
meaning of Section 8(a)(3) " The Colonial Press, Inc, 204 NLRB No. 126.
It Stewart's signed statement submitted to the Board 's agent reads-
After I laid Harvey Fox off because of poor work , I told him that if
the union got in , we were going to stop taking in outside work (Outside
work was work performed on automobiles which had not been sold by
the Respondent Stewart unlike Spicher favored refusing outside
work 1, so that we would need fewer men to work in the shop. 1 told
him we would support the union , but with fewer men, especially if the
wages increased any more.
12 According to Stewart he did not confer with Spicher about Fox's
discharge because he knew Spicher was "dissatisfied with his work, too"
13 Stewart was referring to Stanley Smith 's 1969 Lincoln Continental on
which Fox had worked.
348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"wouldn't start after it got hot." Stewart said that this
complaint brought the matter to a "peak" and thereupon
he decided to discharge Fox.14
Fox had removed the engine head from Smith's Lincoln
and among other things had replaced the piston rings.
Thereafter the automobile would not start when it was hot.
Fox suggested to Wilson that a new starter be tried. The
new starter was installed but that did not remedy the
defect. Spicher told Fox that he thought that he had
installed the wrong rings.15
During 1971, 1972, and the first 6 months of 1973 the
Respondent operated its repair shop at a loss.
2. As noted above Stewart reacted to the Union's
election victory by taking measures calculated to erode
employee support for the Union and frustrate the employ-
ees' collective-bargaining aspirations. The discharge of Fox
was more of the same thing.
While "[m]anagement can discharge for good cause, or
bad cause, or no cause at all," it may not discharge "when
the real motivating purpose is to do that which [the statute ]
forbids." Portable Electric Tools, Inc. v. N.L.R.B., 309 F.2d
423, 426 (C.A. 7, 1962). Although Fox's work performance
may have warranted the action taken, "the policy and
protection provided by the National Labor Relations Act
does not allow an employer to substitute 'good' for `real'
reasons when the purpose of the discharge is to retaliate for
an employee's concerted activities." Hugh H Wilson
Company v. N.L R.B., 414 F.2d 1345, 1352 (C.A 3, 1969),
cert. denied 397 U.S. 935 (1970). Here the "real motive" i6
for Fox's termination was to retaliate for the employees'
choice of the Union as their collective-bargaining agent
The reason cited by Stewart was pretextual and was
advanced as a coverup for the Respondent's discriminatory
motive. While the Respondent suffered the incompetency
of Fox and other employees, the situation became
intolerable only after the Union's election victory. Such
circumstance reveals the speciousness of the Respondent's
assertion that Fox was legitimately discharged. See
N.L.R.B. v. Elias Bros. Big Boy, Inc., 325 F.2d 360, 366
(C.A. 6, 1963); A. P. Green Fire Brick Company v.
N. L. R. B., 326 F.2d 910, 915 (C. A. 8, 1964).
Other factors which support the conclusion that union
considerations permeated Fox's termination are: (1) The
record is barren of any plausible explanation as to why the
Respondent delayed discharging Fox until several days
after the Union's election victory 17 when the same reasons
for his discharge had existed for several months. (2) While
Stewart claimed his decision to discharge Fox was
prompted and reached on the day Smith's Lincoln was
returned to the shop, he, nevertheless (if he is to be
believed), waited almost 10 days before taking action, all of
which strongly implies that Stewart, spurred into action by
the Union's victory, seized upon the incident as a pretext to
14 Stewart testified that Smith's Lincoln "came back in" the day before
he told Wilson to discharge Fox which would have been April 12, 1973
Spicher credibly testified that Smith's Lincoln was returned "a week to ten
days" before Fox was discharged
15 After Fox was discharged Smith's Lincoln was "torn down " and the
trouble was discovered According to Wilson the "ring clearance on the
automobile was in excess of nine thousandths and it should be around five,
and, consequently, when the engine got hot , it tightened it and it wouldn't
start When the engine cooled down , it would start right up " To correct the
situation new grooves were cut in the pistons where spaces were added, after
discharge Fox. (3) Fox was discharged before it was
determined whether it was Fox's faulty workmanship
which caused Smith's Lincoln to fail to start when it was
hot.
Moreover, the Respondent could have reasonably
foreseen that the discharge of Fox following on the heels of
the Union's election victory would be viewed by the
employees as in retaliation for their having chosen the
Union as their collective-bargaining agent and would
discourage their union affection. Such treatment of
employees inherently creates an inference that the employ-
er's conduct was discriminatorily motivated. Cf. The Radio
Officers' Union of the Commercial Telegraphers Union, AFL
[A. H. Bull Steamship Company] v. N. L. R. B., 347 U.S. 17,
45 (1954); N.L.R.B. v. Great Dane Trailers, Inc., 388 U.S.
26 (1967).
It is well established that "the existence of a proper
reason for a discharge is no defense if the discharge was
actually made [as here] for an improper purpose." John
Klann Moving and Trucking Co., 411 F.2d 261, 263 (C.A. 6,
1969).
Accordingly, it is found that by the termination of
Harvey A. Fox on April 14, 1973, the Respondent violated
Section 8(a)(3) and (1) of the Act.
CONCLUSIONS OF LAW
1. The Union is a labor organization within the
meaning of the Act.
2. The Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act and it will
effectuate the purposes of the Act for jurisdiction to be
exercised herein.
3. By interfering with, restraining , and coercing em-
ployees in the exercise of rights guaranteed them by
Section 7 of the Act, the Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(1) of the
Act.
4. By unlawfully terminating Harvey A. Fox on April
14, 1973, the Respondent engaged in unfair labor practices
within the meaning of Section 8(a)(3) and (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.
RECOMMENDED REMEDY
It having been found that the Respondent has engaged in
certain unfair labor practices, it is recommended that it
cease and desist therefrom and take affirmative action
designed to effectuate the policies of the Act.
It having been found that the Respondent unlawfully
discharged Harvey A. Fox and thereby violated Section
which the rings were inserted in the grooves
16 .. the 'real motive' of the employer in an alleged § 8(a)(3) violation
is decisive . " N.L R B v Brown Food Store, 380 U S 278, 287 (1965)
See also Local 357, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America [Los Angeles-Seattle Motor Express]
v NLRB , 365 U S 667,675 (1961)
17 " the timing of discharges is a factor which may be weighed by the
Board in drawing inferences " N LR B v Tulsa-Whisenhunt Funeral Homes,
Inc, 84 LRRM 2300 (C A 10. 1973 ), enlg 195 NLRB 106
SPICHER MOTORS, INC
8(a)(1) and (3) of the Act, it is recommended that the
Respondent remedy such unlawful conduct. It is recom-
mended in accordance with Board policy 18 that the
Respondent offer Harvey A. Fox 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, including
Veterans' benefits, which he may have suffered as a result
of the discrimination against him by payment to him of a
sum of money equal to the amount he would have received
from the date of his discriminatory discharge to the date of
an offer of reinstatement, less net earnings during said
period, to be computed on a quarterly basis in the manner
established by the Board in F. W. Woolworth Company, 90
NLRB 289, and including interest at the rate of 6 percent
per annum in the manner set forth in Isis Plumbing &
Heating Co., 138 NLRB 716.
Upon the basis of the foregoing findings of fact, and
conclusions of law, and the entire record in this proceed-
ing, and pursuant to Section 10(c) of the Act, I hereby issue
the following recommended:
ORDER 19
Respondent Spicher Motors, Inc., Kittanning, Pennsyl-
vania, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in Teamsters Local Union
538 a/w International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, or any
other labor organization, by unlawfully discriminatorily
discharging any of its employees or discriminating in any
other manner with respect to their hire or tenure of
employment or any term or condition of employment in
violation of Section 8(a)(3) of the Act.
(b) Unlawfully threatening employees with economic
reprisals because they chose the Union as the collective-
bargaining agent or continue their union affection.
18 See The Rushton Company, 158 NLRB 1730, 1740
19 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
349
(c) Unlawfully changing work rules or denying employ-
ees existing privileges because they selected the Union as
their collective-bargaining representative or continue their
union affection.
2. Take the following affirmative action which will
effectuate the policies of the Act:
(a) Offer Harvey A. Fox immediate and full remstatment
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 pay that he may have suffered by
reason of the Respondent's discrimination against him, in
accordance with the recommendations set forth in the
section of this Decision entitled "the Recommended
Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to analyze the amount of backpay due under the
terms of this recommended Order.
(c) Restore employee work rules and employee privileges
which were unlawfully changed on April 10, 1973, as they
existed on that date.
(d) Post at its Kittanning, Pennsylvania, establishment
copies of the attached notice marked "Appendix."20
Copies of said notice, on forms provided by the Regional
Director for Region 6, after being duly signed by
Respondent's representative, shall be posted by it immedi-
ately upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
insure that said notice is not altered, defaced, or covered
by any other material.
(e) Notify the Regional Director for Region 6 in writing
within 20 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
deemed waived for all purposes
20 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 "