Sullair P.T.O., Inc.

National Labor Relations Board - Board Decisions

Jul 15, 1980

250 N.L.R.B. 614 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sullair P.T.O., Inc. and Terry Lee Boyle. Case 7-
CA-16518
July 15, 1980
DECISION AND ORDER
BY MEMBERS JFNKINS, PENEI.I.O, ANI)
TRUESDAI. I
On April 7, 1980, Administrative Law Judge
Jerry B. Stone issued the attached Decision in this
proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, and the General Coun-
sel filed a brief in answer to Respondent's excep-
tions.
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, find-
ings,' and conclusions2 of the Administrative Law
Judge and to adopt his recommended Order, as
modified herein. 3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Sullair P.T.O., Inc., New Buffalo, Michigan, its of-
ficers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order, as
so modified:
1. Substitute the following for paragraph 2(b):
"(b) Expunge from its records any reference to
Terry Lee Boyle's discharge on June 1, 1979."
] The Respondent has excepted to certailn credibility finillirng mande tb
the Administrative I.aw Judge It is the IBHard"s esl;lhli hedr policy not to
overrule an administrative law judge's resolutions with respect to cred-
bility unless the clear preponderance of all of the relevaniit evidence clt-
vinces us that the resolutions are incolrrcct Stan,rdard I)ri, 1'all I'rot,,.
Ian, 91 NL RB 544 (1'51)., enfd 188 F:2d 362 (3d Cir 1')511) W hiac
carefully examined the record arid rind fi n basis for reversinlg his findinlgs
2 We agree with the Admnilistralive I.;Li Juldge Iha;l Iyle wals cn-
gaged in protected concerted activity when iie prolested Respondenl's
change in the gasoline policy We also agree tehut Byle was disch arged
as a result of his protest, and thit, conisidering Ihe totality of circuim-
stances, Boyle's comments to Snmmer did nol render Hoyle's protest un-
protected Accordingly, we find i.n agrcemenlt with the Adnmiistrative
Law Judge, that Respondent's discharge of I yle vial;ctd Sec g(a)(n) ift
the Act.
1 In remedying the X(a)(l) vilalio,. Ithe Administraissic l.. i Judge
failed to require Responldenl tI, expunge frlom its records lrany refereCice to
Terry Lee toyle's discharge on June I, 197 '9. Accordingly,. oir Order
herein modifies the Administrative L.aw Judges, recomrltenided ()rdcr It,
provide for such expungement Amnerican anrd Indol-(hinru I) 'lnipnpme ti a/:
k/a Projeci ,4id. 240 NI.RB 743. fN. 2 (1979); IAmtriaun 1i'h'phnr & Ilph-
graph Co., 211 NLRB 782. 783 (1974)
250 NLRB No. 104
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NoricEi To EMPI.OYIt, S
POSI I) BY ORI)I.R OFI THI-
NATIONAL LABOR R.l ATIONS BOARD
An Agency of the United States Government
WF WIL.L NOTi discharge or otherwise dis-
criminate against employees in regard to hire
or tenure of employment, or any term or con-
dition of employment because of their protect-
ed concerted activities.
WE WIL.L NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of their rights guaranteed in Sec-
tion 7 of the Act, except to the extent that
such rights may be affected by lawful agree-
ments in accordance with Section 8(a)(3) of
the Act.
WI. winl. offer to Terry Lee Boyle immedi-
ate and full reinstatement to his former posi-
tion or, if such position no longer exists, to a
substantially equivalent position, without prej-
udice to his seniority or other rights previous-
ly enjoyed, and make him whole for any loss
of pay or other benefits suffered by reason of
the discrimination against him, with interest
thereon.
WE wit expunge from our records any ref-
erence to Terry Lee Boyle's discharge on June
1, 1979.
SUIt AIR P.T.O., INC.
I) .CISI(ON
S I A I MI-NI (OFI Ti1 CASI
JERRY 13 B. SIONi , Administrative Law Judge: This pro-
ceeding, under Sections 10(h) and 9 of the Nalional
Labor Relations Act, as amended, was heard pursuant to
due notice on February 7, 1980, in St Joseph, Michigan.
The charge was filed on June 26, 1979. The complaint
in this matter was issued on July 23, 1979. The issues
concern whether Respondent discharged Terry Lee
Boyle on June 1, 1979, because he engaged in protected
concerted activities in violation orf Section 8(a)(1) of the
Act.
All parties were afforded full opportunity to partici-
pate in the proceeding. Briefs have been filed by the
General Counsel and Respondent and have been consid-
ered
Upon the entire record in the case and from my obser-
vation of witnesses, I hereby make the following:
614
SU I.AIR P'.TO., INC.
FINIINGS OF FAC'I
I. I HI BUSINISS 01 lli IMP'I OYIR '
Sullair P.T.O., Inc., is, and has been at all times mate-
rial herein, a corporation duly organized under, and ex-
isting by virtue of, the laws of the State of Indiana. At
all times material herein, Sullair P.T.()., Inc., has main-
tained an office and place of business at R#l, U.S. 12, in
New Buffalo, Michigan, herein called the New Buffalo
plant. Respondent maintains other plants in several for-
eign countries and in the States of Indiana, Delaware,
Colorado, North Carolina, and Texas, and is, and has
been at all times material herein, engaged in the manu-
facture, sale, and distribution of air compressors installed
as power-take-off units at its Michigan plant. The plant
located at New Buffalo, Michigan, plant is the only fa-
cility involved in this proceeding.
During the year ending December 31, 1978, which
period is representative of its operations during all times
material herein, Sullair P.T.O., Inc., in the course and
conduct of its business operations, purchased and caused
to be transported and delivered at its New Buffalo place
of business, metal parts and other goods and materials
valued in excess of $3 million, of which goods and mate-
rials valued in excess of $50,01X) were transported and
delivered to its plant in New Buffalo, Michigan, directly
from points located outside the State of Michigan.
As conceded by Respondent and based on the forego-
ing, it is concluded and found that Respondent is, and
has been at all times material herein, an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
II. THE UNFAIR L.ABOR PRACTICES
A. Preliminary Issues Supervisory Status2
At all times material herein, the following named per-
sons occupied the positions set opposite their respective
names, and have been and are now supervisors of Re-
spondent, within the meaning of Section 2(11) of the
Act, and its agents:
Alan Jones General Manager
Douglas Lee Sommer Accountant/Controller
B. Introduction and Background
Terry Lee Boyle was initially hired by Respondent on
November 28, 1977, and worked thereafter for Respond-
ent until his discharge on June 1, 1979. This discharge is
the subject of the issues in this case.
At the time that Respondent hired Boyle and continu-
ing until June 1, 1979, Respondent provided for employ-
ees a benefit concerning the purchase of unlimited
amounts of gasoline for one automobile at the price of 35
cents per gallon. On or about May 31, 1979, the Re-
spondent posted a notice to employees concerning a
change in gasoline benefits.
Thereafter, Respondent's officials Jones and Sommer,
on different occasions, on or about June 1, 1979, spoke to
The facts herein are based upon the pleadintgs nt ant i msionl therein
2 The facts, are based upoln the pleadings and admnlssrins therein
employees concerning the change in gasoline benefits. At
the meeting which Sommer held with six or seven em-
ployees, Boyle protested the change in benefits. Follow-
ing this meeting, Respondent discharged Boyle on the al-
leged grounds of insubordination.
Respondent contends in effect that it did not discharge
Boyle because of his protests but because of the manner
of his protests and because such alleged insubordination
occurred after prior warnings thereto. To do justice to
the parties' contentions, I find it proper to set forth the
following additional background facts.
Respondent has around 12 production and mainte-
nance employees. Respondent has no first line supervi-
sion and employees are accorded a great latitude in conm-
plaints and usage of swear words. The usage of vulgar or
obscene words of sexual connotation is relatively
common and understood to be shop talk The overall
facts reveal that Boyle was a person who became easily
upset and who used the aforementioned type of shop obh-
scenities or vulgar expressions apparently more than
other employees.
Around December 7, 1978, Boyle and General Man-
ager Jones had a heated exchange concerning an annual
wage review. Such exchange mainly concerned whether
Boyle was receiving what he should have under a profit-
sharing arrangement. During such exchange. Boyle made
remarks about getting f--d again and at one place called
Jones a liar. Later, Boyle realized that he was in error
about his understanding of the profit-sharing arrange-
ments and apologized to Jones. On this occasions Jones
told Boyle that he had been insubordinate, that he could
have been fired for such insubordination, and that if it
happened again, he would be terminated.
During Boyle's tenure as an employee, some employ-
ees complained to Sommer and Jones, around February
13, 1979, that Boyle bitched and complained too much.
Some of the employees, at the time of an expected trans-
fer, around May 9, 1479. complained that they did not
want to have to work with Boyle. And on January II.
1979, Jones asked Boyle to refrain from continual com-
plaining, as it was having a detrimental effect on work-
ing conditions.:'
During Boyle's tenure as an employee, Respondent did
not give him any written reprimands. The only verbal
warnings or reprimands, other than about the December
incident with Jones, or about Boyle's complaining, con-
cerned some question of damage to company property,
as an example, concerning improper operation of a fork-
lift truck which allegedly could have resulted in injury
to Boyle or other employees.
C. The May 31, 1979 .Noticc Concerning Change in
Gasoline Benefits
On or about May 31, 1979, apparently on or before
June I, 1979, the Respondent posted the following notice
to employees:
' I 1)o iit crcd(il Jontes tei,1o1nsl ill th ie uhld Ihi )c that he .s.otldn oitl
toleril 1hi lllinultit,, n oI ollpl.lts I ntlC Iit )Ti JiLn 4. 191)7. 1 in .1
umnilrnar prepared hy Sllln lter a111 J)ies. s'ich i.lnlIltniltlil "1-a ItI, l tct
oirllft
t15
DECISIONS OF NATIONAL LABOR RELATIIONS O()ARD
SULLAIR CORPORATION - INTER OFFICE
MEMORANDUM
TO: ALL EMPLOYEES
FROM: Human Relations Committee
SUBJECT: Fuel Benefits 5/31/79
The Corporate Operating Committee has found it
necessary to increase the selling price of fuel be-
cause of increasing cost.
Effective June 1, 1979, the price will be $.50 per
gallon. We will maintain this price as long as possi-
ble.
As before the fuel is available only to full time em-
ployees.
All in-town employees may purchase ten (10) gal-
lons a week, out-of-town employees, (25 mile
radius), may purchase fifteen (15) gallons weekly.
This will help maintain an equal fuel treatment for
all employees until the shortage lessens with our
suppliers.
Thank you.
D. Jones Speaks to Employees June 1, 1979
After the May 31, 1979, notice of change in gasoline
policy was posted, Manager Jones spoke to Boyle and
others as is revealed by the following credited excerpts
from Jones' testimony. 4
Q. And what if anything occurred after that doc-
ument was posted?
A. On the date of the posting, whether it was
posted this exact day, I don't know, but on the date
of the posting, in one of my frequent trips to the
front shop, Mr. Boyle was again yelling and
screaming and saying that the company was f--g
the employees again because of this, because now
they have raised the price of gasoline to 50 cents a
gallon. And how the hell was he going to afford to
pay 50 cents a gallon on his f--g salary.
* * * *
Q. What if anything did you do?
A. I explained to Mr. Boyle, I said to Mr. Boyle,
"Terry, if you are not happy with our benefits here
and you feel that you can go out and get another
job that will enable you to afford to pay a dollar a
gallon, then why the hell don't you do it."
* * * *
Q. Okay, did you say anything else to the em-
ployees at that time?
A. Yes. Many questions were asked and when we
get these what we call almost a directive from the
corporation, we have to abide by them. I explained
to the employees we would investigate it and see
what the full story is, whether this was a permanent
directive or merely a temporary directive because
of the energy situation.
Certain worrds edited by usage of first and last letter of word instead
of complete word
Q. Was there any further discussion that you
recall?
A. I met with the employees and discussed the
gas program.
Q. And how did the meeting end?
A. The meeting ended, I believe I stated to the
employees well, all we can do at this point is to in-
vestigate it with the Human Relations Committee
and maybe Doug can get ahold of the people down
there and see what is going to be the tenure of this
new program.
E. The Employees' Meeting With Sommer
Later after the meeting the employees had with Man-
ager Jones, employee Swartz asked Controller Sommer
to come and talk to employees about the change in the
gasoline policy. Thereafter, Sommer met with about 7 of
the 12 production and maintenance employees to discuss
the changed gasoline policy. The facts are clear that
Sommer and Boyle were the main persons who spoke at
this meeting. The main dispute as to facts is whether
Boyle used "shop talk" obscenities and whether Boyle
directed such obscenities at Sommer. Sommer testified
that Boyle directed the words, as herein indicated in ab-
breviated form, m--r f-k-r, and c-k s-k-r, at
him. The overall facts reveal that Boyle did use such
words. Other than Sommer's testimony, cross-examina-
tion of other witnesses reveals testimony unreliable to es-
tablish that the words were directed toward Sommer on
a personal basis. Considering Sommer's and Jones'
memorandum prepared on June 4, 1979, and the omission
therefrom of language indicating such words specifically
directed toward Sommer, I do not believe Sommer on
such point and do not credit his testimony.
The facts reveal that Boyle asked Sommer what the
f-k was going on with the gasoline discount program. '
Sommer told Boyle that the change was corporate
policy. Boyle told Sommer that Sullair was attempting to
do everything that they could do to f-k the employees
and that all they had was the Company's interest in
mind, that he could not get back and forth to work on
10 gallons a week, that the wages were low. Boyle said
do you mean that those rotten m-f- c-s--, if we
would be short of gas, would limit gas over there.
Sommer told Boyle that he would be glad to stand there
and talk about the gas program but was not going to
stand there with Boyle's using such profanity. 6 Sommer
told Boyle that if he were unhappy, maybe he could get
somewhere else. Boyle told Sommer that if this were his
answer, that Sommer was a f- poor manager.
'The fac.t, are ha.. d in 1 i coiposite C Ialutlla onit of l he I ti ( rnol i o, ll
Sonimmier testified ilali hie told IBoy le that h. "ais o11t going tI) statid
Ithcre and he called all kinds of profal e tIlilnles Cillsiderilng the tol1al Ci-
dece. inlcluding Sonitier', ari d lone June 4, 197. rnilnoranidurn, I (do
rlot heliese oir credil this ilaspect o' Sormnier's te',tirnoniv
616
SULLAIR P.T.O., INC.
F. The Termination of Boyle
Following the above-referred to employee meeting,
Sommer reported the events concerning Boyle to Jones.
Boyle was then called to Jones' office. Jones reminded
Boyle of his warning to him in December concerning in-
subordination and told Boyle that he was being dis-
charged as is revealed by the following credited excerpts
from Jones' testimony:
Q. What if anything did you do?
A. Well, I listened to him and I contacted Terry,
called him to my office, reminded him of the De-
cember meeting and I said "Now, Terry, I told you
then and you understood because you said 'yes, Al,'
and I told you with any further occurrence, you
will be all done," and I says, "Hey, Terry, it's the
worst part of my job to take a guy's job away," it's
the worst part of a manager's job to take a job
away. You try everything first before you do that,
and I said, "I'm sorry, I have no alternative but to
terminate you," which I did.
G. The June 4 Memorandum Evidence-Reason for
Discharge
On June 4, 1979, Sommer prepared a memorandum for
Boyle's personnel file as is revealed by the following:
6-4-79
Terry Boyle
March 13, 1979: Mr. Bob Lozmack stated that it was
impossible to work with Terry Boyle. That some-
thing had to be done. Boyle's attitude was such
that it was becoming difficult to tolerate in the
shop atmosphere.
March 21, 1979: Boyle was given verbal warning re-
garding destruction of company property. Im-
proper operation of forklift that could have been
dangerous to himself and fellow employees and
extremely detrimental to fork lift.
May 8, 1979: Mr. Ben Synder requested that Boyle
not be transferred into his area. He could not
work with an individual with that type of attitude.
June 1, 1979: Mr. Bob Swartz requested my pres-
ence in the lunch room. Boyle then indicated that
the fact that gas was raised from S.35 to $.50 and
that it was necessary to limit the number of gal-
lons was unfair. He stated that Sullair Corp. did
everything for their own best interest without
reward for the employee. Asked if they were
going to increase his salary, Boyle stated that
"Hoodes should be able to get gas for his employ-
ees." Sullair was trying to f-k the employees. I
stated to Boyle that he could, if unhappy at Sul-
lair, seek employment elsewhere. Boyle then said
that if that was my answer, that I was a "f-k-g
poor manager."
On June 4, 1979, Sommer and Jones prepared the fol-
lowing memorandum for Boyle's personnel file.
T. Boyle
Employee 411
6-4-79
Dec. 7, 1978
During a meeting in W.A. Jones' office regarding
annual review, employee became extremely belliger-
ent regarding proposed salary increase, and made
several derogatory remarks i.e., "I'm getting f--d
again."
W.A. Jones accused employee of insubordination,
and issued a formal verbal warning to the effect
that if insubordination occurred again it would not
be tolerated by management, and that termination
would result.
Jan. 11, 1979
As a result of complaints from other shop person-
nel, Boyle was called to W.A. Jones' office and was
asked to refrain from constant complaining, as it
was having detrimental effect on working atmos-
phere.
Feb. 13, 1979
During W.A. Jones' absence from office, shop em-
ployee, R. Lozmack approached D. Sommer and
stated that management would have to do some-
thing about Boyle's bad attitude and complaining, as
it was difficult to work efficiently in such an atmos-
phere.
Feb. 21, 1979
Boyle was given verbal warning by D. Sommer re-
garding damage to Company property . . . improp-
er operation of fork lift truck, that could have re-
sulted in injury to himself and other employees.
Boyle had been warned previously regarding
damage to Company property.
May 9, 1979
P.T.O. employees requested that Boyle not be trans-
ferred to their work area.
June 1, 1979
D. Sommer was requested by R. Swartz to explain
new gasoline program to shop personnel.
During this discussion, Boyle became belligerent.
He stated that increase in gas price was unfair, and
that Sullair Corp. did everything for the Company's
interest, without regard for employee's interest.
Boyle further stated that "Hoodes should be able to
procure gas for his employees," and "Sullair was
trying to F- their employees."
D. Sommer suggested to Boyle that he, Boyle, if so
unhappy, might seek employment elsewhere. Boyle
replied "lf that's your answer, you're a f--g poor
manager."
W.A. Jones called Boyle to his office, reminded
Boyle of Dec. 7, 1978 warning and after discussion,
terminated him.
h617
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In addition, Jones testified as follows concerning the
reason for Boyle's discharge:
Q. Now, what was your reason for terminating
him?
A. The reason for terminating Terry was the
constant disruption of the shop atmosphere, produc-
tivity, his apparent complete disregard or disrespect
for management.
Q. Did the fact that he was complaining about
the fuel policy play any part in your decision to ter-
minate him?
A. Not under normal circumstances. In fact, I did
explain to Terry, I says, "If people complain and
come into my office and sit down in a calm logical
manner and complain about something, we will
listen to them and sit down and talk to them," The
very fact that he complained, no.
H. Contentions and Conclusions
The General Counsel contends that Boyle was en-
gaged in a protected concerted activity on June 1, 1979,
in protesting at an employer-employee meeting about a
change in Respondent's gasoline policy, and that his con-
duct at such a time did not amount to serious misconduct
removing the veil of protection of Section 7 and Section
8(a)(l) of the Act. Respondent concedes in effect that
the events of the June 1, 1979, meeting resulted in
Boyle's discharge, that, however, its motivation for
Boyle's discharge was not because of his complaints or
protected concerted activity, but that his remarks were
vulgar and insubordinate, a continuation of prior similar
type conduct, and in effect that the discharge was for in-
subordination.
The cases cited by Respondent' reveal that a critical
issue in this case is whether the discharge of Boyle was
in whole or in part because the employee engaged in pro-
tected concerted activity or whether other reasons or
facts alone or independently constituted the basis for the
employee's discharge. In this case, the totality of the
facts make it clear that Boyle's June 1, 1979, conduct
was clearly a part of and the overriding reason for Re-
spondent's discharge of him on June 1, 1979.8
I note that part of Respondent's factual contention re-
lates to a contention that Boyle directed his remarks to
Sommer. A careful consideration of all of the facts and
Respondent's post-discharge memorandum requires a
finding that the remarks used by Boyle were generally
directed to the Company, and not to Sommer. Boyle did
tell Sommer, after Sommer had suggested that if Boyle
were unhappy that he could leave, that if this were his
answer that he was a f-k-g poor manager. I am per-
suaded that other derogatory remarks of an insulting
nature directed to Sommer personally would have been
set forth in the post-discharge memorandums. I note also
7 Cumberland Shot, Corporation. 156 NLRB 1130, 1136 (1966): Jackan-
ic's Reinforcing-Erectors. Inc., 158 NLRB 99, I(X), 102 (1966); McDonnell
Douglas Corporation (Douglas Aircraft Company Divition), 189 NLRB 87,
91 (1971); NVorge Diviion, Borg-Warner Corp., 155 NL.RB 1087, 1089
(1965). and others.
" Both Sommer's and Jones' June 4. 1979, memorandums constitute
strong and convincing evidence that the June 1, 1979. conduct was the
overriding reason for the discharge of Boyle
that the postdischarge memorandums are not limited to
the reason for Boyle's discharge. As an example, warn-
ings concerning damage to equipment were not a con-
tributing factor to Boyle's discharge. I also note that the
tenor of the post-discharge memorandums, rather than a
complaint about language, reveals Respondent's unhappi-
ness by Boyle's complaints. Although Boyle's past com-
plaints may have had a bearing upon a disposition to dis-
charge Boyle on June 1, 1979, when he complained on
such date, such does not remove the protection of the
Act from Boyle's June 1, 1979, conduct. The facts are
clear that the overriding reason for Boyle's June 1, 1979,
discharge was his conduct on June 1, 1979. It is clear
that such conduct constituted protected concerted activi-
ty unless the remark to the effect that if this was Som-
mer's answer, he was a f--k-g poor manager, removed
Boyle from the protection of the Act. Considering the
question of language used in the shop, Sommer's state-
ments to Boyle preceding such remarks, such statements
by Boyle are not so improper as to constitute misconduct
removing the veil of protection of the Act.
Considering all the facts, I am persuaded that Boyle
was engaged in protected concerted activity in his pro-
testing the gasoline policy, and that his usage of language
was not serious misconduct.9 Thus, I am persuaded and
conclude and find that Respondent's discharge of Boyle
on June 1, 1979, constituted conduct violative of Section
8(a)(l) of the Act.
ill. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section II,
above, occurring in connection with Respondent's oper-
ations described in section 1, above, have a close, inti-
mate, and substantial relationship 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 unfair
labor practices, it will be recommended that Respondent
cease and desist therefrom and take certain affirmative
action to effectuate the policies of the Act. '
It having been found that Respondent discharged
Terry Lee Boyle in violation of Section 8(a)(l) of the
Act, the recommended Order will provide that Respond-
ent offer him reinstatement to his job, and make him
whole for any loss of earnings or other benefits within
the meaning and in accord with the Board's decisions in
F: W. Woolworth Company, 90 NLRB 289 (1950); Isis
Plumbing & Heating Co., 138 NLRB 716 (1962); and
s Cf. Webster Clother. Inc., d/b/a Webster Me'n'i Wear, a Subsidiary of
BetA Indusirict. Inc., 222 NLRB 1262, 1265 (1976).
"' The General Counsel has requested a remedy that Respondent hbe
required to remove from Respondent's personnel records any reference
to the discharge of Terry Lee Boyle on or about June I1 1979 1 am per-
suaded that the action required herein, a notation of the finding herein
and that such June I, 1979. discharge should he disregarded as a person-
nel action, accomplishes the intent of such request
618
SULLI AIR P.TO., INC.
Florida Steel Corporation, 231 NLRB 651 (1977), except
as modified by such recommended Order.
Upon the basis of the above findings of fact and upon
the entire record in the case, I make the following:
CONCI.USIONS OF LAW
I. Sullair P.T.O., Inc., the Respondent, is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. By interfering with, restraining, and coercing its em-
ployees in the exercise of rights guaranteed them in Sec-
tion 7 of the Act, Respondent has engaged in unfair
labor practices proscribed by Section 8(a)(1) of the Act.
3. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
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:
ORDER i
The Respondent, Sullair P.T.O., Inc., New Buffalo,
Michigan, its officers, agents, successors, and assigns,
shall:
I. Cease and desist from:
(a) Discharging or otherwise discriminating against
employees in regard to hire or tenure of employment, or
any other term or condition of employment because of
their protected concerted activities.
(b) In any like or related manner interfering with, re-
straining, and coercing employees in the exercise of their
rights guaranteed in Section 7 of the Act except to the
extent that such rights may be affected by lawful agree-
ments in accord with Section 8(a)(3) of the Act.
II 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 objeclions Ihereto
shall be deemed waived for all purposes
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer to Terry Lee Boyle immediate and full rein-
statement to his former position or, if that position no
longer exists, to a substantially equivalent position, with-
out prejudice to his seniority, or other rights and privi-
leges previously enjoyed, and make him whole for any
loss of pay or other benefits suffered by reason of the
discrimination against him in the manner described above
in the section entitled "The Remedy."
(b) Make notations on all personnel records relating to
Terry Lee Boyle and his discharge on June 1, 1979, that
said discharge has been found violative of Section 8(a)(1)
of the Act and should be disregarded as a personnel
action.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other rec-
ords necessary to analyze the amount of backpay due
under the terms of this recommended Order.
(d) Post at Respondent's facility at New Buffalo,
Michigan, copies of the attached notice marked "Appen-
dix."' 2 Copies of said notice, on forms provided by the
Regional Director for Region 7, after being duly signed
by Respondent's representatives, shall be posted by it im-
mediately upon receipt thereof, and be maintained by
Respondent for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(e) Notify the Regional Director for Region 7, in writ-
ing, within 20 days from the date this Order, what steps
the Respondent has taken to comply herewith.
2 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 L abor Relations Hoard" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National I abor Relalions HBoard"
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