Van Dyne Crotty Co.

National Labor Relations Board - Board Decisions

Mar 12, 1990

297 N.L.R.B. 899 (N.L.R.B. 1990)

VAN DYNE CROTTY CO 899
Van Dyne Crotty Company and United Rubber,
Cork, Linoleum & Plastic Workers of America,
AFL-CIO, CLC. Case 8-CA-21523
March 12, 1990
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On August 15, 1989, Administrative Law Judge
Thomas C Ricci issued the attached decision The
Respondent filed exceptions and a supporting brief
and the General Counsel filed an answenng brief
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel
The Board has considered the decision in light of
the exceptions and bnefs and has decided to affirm
the judge's rulings, findings, 1 and conclusions and
to adopt the recommended Order as modified 2 and
set out in full below
1 The Respondent has excepted to the judge's
finding that it unlawfully discharged employee
Harper The Respondent contends that the judge
failed to apply the standard set out in Wright Line,
251 NLRB 1083 (1980), enfd 662 F 2d 899 (1st Cir
1981), cert denied 455 U S 989 (1982), in his dis-
cussion of Harper's discharge, and that if a Wright
Line analysis were applied, no violation would be
found 3 In this regard, the Respondent asserts that
the General Counsel failed to establish a prima
facie case of unlawful discharge under Wright Line
because the General Counsel failed to show that
the Respondent knew of Harper's union activities
before it decided to fire him The Respondent
therefore contends that its decision to discharge
Harper could not have been motivated by antiun-
' The Respondent has excepted to some of the judge's credibility find-
ings The Board's established policy is not to overrule an administrative
law judge s credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
2 We note that the judge recommended a broad cease-and-desist provi-
sion ordering the Respondent to cease from violating the Act "in any
other manner We find that the broad order is not warranted in the cir
cumstances of this case Accordingly, we shall issue a narrow cease-and-
desist order requiring the Respondent to refrain from violating the Act in
'any like or related" manner The judge Inadvertently failed to Include
an expunction provision in his recommended Order We Include such a
provision in our Order Finally, we have modified other provisions in the
recommended Order so as to conform to the Board's customary lan-
guage
3 In Wright Line, supra, the Board established a two-part causation test
in cases alleging violations of Sec 8(a)(3), turning on employer motiva-
tion Under the Wright Line analysis, the General Counsel has the initial
burden of establishing a prima facie showing that protected activity was a
"motivating factor" in the employer's decision Once the General Coun-
sel has met this burden, the burden shifts to the employer to demonstrate
that it would have taken the same action even in the absence of the pro-
tected activity
ion animus For the reasons set forth below, we
find no merit in the Respondent's exception
Initially, we note that the judge essentially ap-
plied a Wright Line analysis in his discussion of
Harper's discharge, although he did not expressly
use Wright Line terminology In this regard, the
judge set forth the factors requisite to the General
Counsel's pnma fame case Thus, the judge's find-
ing that Supervisor Prosser stated that Harper
would be fired because the Respondent knew for a
fact that he had started the "union business" at the
plant and that "he would not be the only one to
go," establishes that the Respondent knew of Harp-
er's union activities before it decided to discharge
him 4 Additionally, Prosser's comments provide
evidence of the Respondent's animus toward the
Union Regarding the specific circumstances sur-
rounding Harper's discharge, the timing of Harp-
er's discharge, and the Respondent's departure
from its own written rules in discharging Harper
without warmng 5 also support a prima facie case
that the Respondent's discharge of Harper was un-
lawfully motivated
We also agree with the judge's finding, based
largely on his credibility determinations, that the
Respondent's asserted reason for terminating
Harper, i e, his poor performance, was pretextual 6
4 Absent specific evidence to the contrary, a supervisor's knowledge of
union activity is imputed to the employer See Dr Phillip Megdal, 267
NLRB 82 (1983), cited by the judge in his decision
5 As the judge notes, Harper was given a copy of the Respondent s
"Plant rules and regulations for probationary employees in October 1988
shortly after he began work In his decision, however, the judge Inad-
vertently quotes from a document entitled 'Company Rules" Instead of
from the "Plant rules" that were given to Harper The latter document
provides that any of the offenses listed in sec 2 "Other Offenses" will
result in a written warning, that receipt of a second written warning
within the 90-day probationary period will result in a 3-day suspension
and that receipt of three written warnings within the 90-day probationary
period will result in discharge One of the offenses listed under sec 2 is
"Carelessness or faulty workmanship" Because the Respondent's Plant
rules and regulations for probationary employees," as well as its 'Compa-
ny Rules," Incorrectly cited by the judge, provided for the Issuance of
written warnings for poor performance, and because in any event Harper
received none, we find that the judge s Inadvertent error does not affect
the result of his analysis
6 The Respondent excepts, Inter slut, to the judge s finding that be
cause there were only 25 telephone memos recording customer complaints
about alleged discrimmatee Harper, there were therefore only 25 total
customer complaints about him The Respondent contends that the
judge's credibility resolutions must be reversed because they were based
solely on this erroneous finding Although we find some factual merit in
the Respondent's exception, we disagree with its contention that the
judge's credibility findings were erroneous Thus, as the Respondent con-
tends, the testimony makes clear that the Respondent made phone memos
of customer complaints only when officials were not in the office to
answer the complaint calls Accordingly, the 25 phone memos may not
be evidence of all the customer complaints that the Respondent actually
received about Harper We find, however, that the judge did not base his
credibility resolutions primarily on the number of phone complaints that
the Respondent received about Harper Indeed, before discussing the
memos, the judge stated his conclusion that the Respondent's defense that
Harper was a poor employee was a fabricated story" and that the Re-
spondent's officials lacked credibility The judge based his credibility de-
Continued
297 NLRB No 148
900 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Because the Respondent has not demonstrated that
it would have discharged Harper even absent his
union activity, we find that it has failed to rebut
the General Counsel's prima facie case of unlawful
discharge We, therefore, agree with the judge's
conclusion that the Respondent violated Section
8(a)(3) by discharging employee Harper because of
his union activities
2 The Respondent has also excepted to the
judge's finding of independent violations of Section
8(a)(1) because the charge contained no such alle-
gations and that the 8(a)(1) violations alleged in the
complaint are not closely related to the 8(a)(3) alle-
gations contained in the charge We find this ex-
ception without merit In Nickles Bakery of Indi-
ana, 296 NLRB 927 (1989), which was issued sub-
sequent to the judge's decision, the Board held that
for an 8(a)(1) complaint allegation to be "closely
related" to a charge allegation, the 8(a)(1) com-
plaint allegation must "be factually related to the
allegation in the underlying charge" In finding
that such a factual nexus exists here, we emphasize
that the alleged violations of Section 8(a)(1) oc-
curred in the course of a conversation during
which Supervisor Prosser specifically identified
Harper, the alleged discrimmatee, as an employee
who would be discharged for engaging in union
activity, that the Respondent discharged Harper
only 2 days after Prosser threatened that he would
be discharged, and that Prosser's conduct as well
as the Respondent's discharge of Harper occurred
at virtually the same early juncture of the union
campaign and was aimed at undermining union
support
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified and set forth in full below and
orders that the Respondent, Van Dyne Crotty
Company, Akron, Ohio, its officers, agents, succes-
sors, and assigns, shall
1 Cease and desist from
(a) Discharging or otherwise discriminating
against its employees in retaliation for their pro-
tected concerted, union activities
termination on his finding that if Harper had actually stolen as much as
the Respondent claimed he had through reporting excessive overtime, the
Respondent would have discharged him long ago, for that reason Thus,
according to the judge, "No reasonable employer would keep a man who
stole that much money from the company for so long a time" The judge
also based his determination on the fact that, despite its asserted unhappi-
ness with Harper's work, the Respondent failed to produce any evidence
that It had issued warnings to Harper or counseled him about his per-
formance although its own rules provided that written warnings be Issued
for unsatisfactory work This factor only becomes more persuasive when
considered in the context of the Respondent's claim in its exceptions that
It received more customer complaints than the judge found
(b) Coercively interrogating employees as to
their knowledge of union activities, telling employ-
ees the Respondent has knowledge of their union
activities, telling employees a unionizer would be
discharged because of union activities, or telling
employees other employees would be discharged
because of their union activities
(c) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act
2 Take the following affirmative action neces-
sary to effectuate the policies of the Act
(a) Offer Michael Harper immediate and full re-
instatement to his former job or, if that job no
longer exists, to a substantially equivalent position,
without prejudice to his seniority or any other
rights or privileges previously enjoyed, and make
him whole for any loss of earnings and other bene-
fits suffered as a result of the discrimination against
him, with interest to be computed in the manner
prescribed in F W Woolworth Go, 90 NLRB 289
(1950), and New Horizons for the Retarded, 283
NLRB 1173 (1987)
(b) Remove from its files any reference to the
unlawful discharge of Michael Harper and notify
him in writing that this has been done and that the
discharge will not be used against him in any way
(c) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, 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
Order
(d) Post at its facility in Akron, Ohio, copies of
the attached notice marked "Appendix " Copies
of the notice, on forms provided by the Regional
Director for Region 8, after being signed by the
Respondent's authorized representative, shall be
posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in
conspicuous places including all places where no-
tices to employees are customarily posted Reason-
able steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or
covered by any other material
(e) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply
7 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board"
• VAN DYNE CROTTY CO

901
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice
WE WILL NOT discharge or otherwise discrimi-
nate against our employees because of their union
activities
WE WILL NOT question employees as to their
knowledge of union activities
WE WILL NOT tell employees that we have
knowledge of their union activities
WE WILL NOT tell employees a unionizer would
be discharged because of his union activities
WE WILL NOT tell employees that other employ-
ees will be discharged because of their union activi-
ties
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees in
the exercise of rights guaranteed them by Section 7
of the Act
WE WILL offer Michael Harper immediate and
full reinstatement to his former job or, if that job
no longer exists, to a substantially equivalent posi-
tion, without prejudice to his seniority or any other
nghts or privileges previously enjoyed and WE
WILL make him whole for any loss of earnings and
other benefits resulting from his discharge, less any
net interim earnings, plus interest
WE WILL remove from our files any reference to
the unlawful discharge of Michael Harper and
notify him in wntmg that this has been done and
that this disciplinary action will not be used against
him in any way
All our employees are free to join or assist United
Rubber, Cork, Linoleum & Plastic Workers of
America, AFL-CIO, CLC or any other labor or-
ganization of their choice
VAN DYNE CROTTY COMPANY
Cathy Modic, Esq and Susan E Fernandez, Esq , for the
General Counsel
Jonathan R Vaughn, Esq (Vorys, Sater, Seymour &
Pease), of Columbus, Ohio, for the Respondent
Craig Hemsley, of Massillon, Ohio, for the Charging
Party
DECISION
STATEMENT OF THE CASE
THOMAS A Ricci, Administrative Law Judge A hear-
ing on this proceeding was held at Akron, Ohio, on June
5 and 6, 1989, a complaint of the General Counsel
against Van Dyne Crotty Company (the Respondent or
the Company) The complaint issued on March 9, 1989,
upon a charge filed by United Rubber, Cork, Linoleum
and Plastic Workers of America, AFL-CIO, CLC (the
Union) The main issue of the case is whether Michael
Harper, an employee of the Respondent, was discharged
because of his proumon activity, in violation of Section
8(a)(3) of the Act Bnefs were filed by the General
Counsel and the Respondent
On the entire record and from my observation of the
witnesses, I make the following'
I THE BUSINESS OF THE RESPONDENT
Van Dyne Crotty Company, an Ohio corporation, pro-
vides industrial clothing and laundry services out of its
place of business in Akron, Ohio Annually in the course
of its business it purchases and receives at that location
products, goods, and materials valued in excess of
$50,000 directly from points outside the State of Ohio I
find that the Respondent is an employer within the
meaning of the Act
II THE LABOR ORGANIZATION INVOLVED
I find that United Rubber, Cork, Linoleum and Plastic
Workers of America, AFL-CIO, CLC is a labor organi-
zation within the meaning of Section 2(5) of the Act
III THE UNFAIR LABOR PRACTICES
This entire case centers on the discharge of an em-
ployee who openly started a campaign among Respond-
ent's approximately 35 rank-and-file employees Michael
Harper was hired as a driver salesman on September 7,
1988, and worked until November 11 of that year He
was to be a probationer for 90 days, paid at $6 per hour
for regular work and $9 per hour for overtime work
On October 18 he prepared a petition for representa-
tion by the Union and circulated it among the employ-
ees Within 4 or 5 days, soliciting signatures to his peti-
tion in the plant dunng breaktime and when he was off
duty, he succeeded in obtaining 16 signatures For No-
vember 5 he arranged to have a meeting of employees
with a representative of the Union in his home About
four employees came to meet the union representative
The Union's agent, Michael Skipper, gave them union
authonzation and membership cards to be distributed
Harper and the other employees then weht about the
plant talking up the Union and obtaining signatures On
December 9 the Union filed a petition with the Board
for an elections an election was held and later the Board
'After the close of the hearing the General Counsel filed a motion,
without opposition, to withdraw those elements of the complaint which
relate to the discharges of Kimberly Weaver and Tambra Williams The
motion is granted
902 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
certified the Union as exclusive representative of all the
employees
Marilyn Ball, an employee, testified, without contra-
diction by anyone that on November 9, Norma Prosser,
an admitted supervisor, asked her if there was a union
meeting to be held Ball answered she knew nothing
about that Prosser then said, according to Ball's testimo-
ny, "I think there's a union meeting today and then
she went on to state that she knew Michael was going to
get fired because they knew for a fact he had started the
union business And she said he would not be the
only one to go" Prosser was not called as a witness
Two days later, on November 11, with no advance indi-
cation of any kind, Harper was discharged
Decision here rests entirely on a question of credibil-
ity
Harper testified that throughout his employment he
was not ever told by any supervisor that his work per-
formance was unsatisfactory, that he was never given a
warning of any kind, oral or written, that no member of
management ever found fault with his work He added
that when, on the night of November 10, Michael Frier-
mood called him at home to tell him he was fired, all the
boss said was "I know you don't like to work a lot of
overtime Maybe this job isn't cut out for you"
One of the reasons why Harper started the movement
towards being represented by the Union was that he felt
the overtime which his job required was too great a
burden on him Shalenberger, the route supervisor over
Harper, admitted that Harper told him he favored a
Union and about his dissatisfaction with having to do too
much overtime work
The Respondent's essential defense is that Harper was
an incompetent worker, that he made all kinds of mis-
takes in scheduled deliveries, that he had insufferable
faults throughout his period of employment, and that
these were among the many reasons why he was dis-
charged
As stated above, I am presented with a pure question
of credibility—do I believe Harper that he was not criti-
cized, or warned in any way for his work performance,
or do I believe the many defense witnesses who directly
contradicted him9 For reasons which will be explained
below, I completely credit Harper and completely dis-
credit the management representatives who gave con-
trary testimony
When Harper first started to work here, early in Octo-
ber, the receptionist gave him a copy of the Company's
"Plant rules and regulations for probationary employ-
ees" The document was received in evidence One sec-
tion lists a number of "dischargeable offenses," and an-
other list "other offenses" The rules then read
Any of these offenses listed below will result in a
written notice Upon receipt of third written warn-
ing notice in any 12 month period an employee will
be given a (five) working day suspension Any em-
ployee who receives four written warning notices in
any (12) month period will be discharged Note
That the warning notices need not be given for the
same offense in order for a suspension or discharge
to result
Immediately below this statement in the rules and reg-
ulations is listed the following as an offense "unsatisfac-
tory work performance"
The Respondent admits that Harper was never given
any written warning, or any suspension, pursuant to the
established rules A number of management witnesses, in-
cluding those who had supervised Harper, said clearly
they had power to issue warnings and disciplines to em-
ployees pursuant to the written rules Towards the close
of the hearing, Fnermood, the man who actually fired
Harper, just said those rules do not apply to route driv-
ers, such as Harper On this record it was a meaningless,
completely unsupported statement
If this record showed no more than the foregoing
facts—timing, complete disregard of its own rules of
conduct, and Prosser's clear threat to discharge the
proumoner, I would find a violation of Section 8(a)(3) of
the Act in Harper's discharge
Respondent called six management representatives, all
supervisors, who testified, some briefly and others at
great length, about the man's complete incompetence, his
disregard of the work rules, his indifference to the inter-
ests of the Company, and his overtime work which was
completely unjustified To hear them say it, this was a
man no rational employer would keep on his payroll for
a single day He was not given the usual warning slips,
he was not fired during the entire time he allegedly kept
hurting the Company's business, but he was summarily
discharged a matter of days after holding a union meet-
ing in his own house The more the Company's witnesses
talked, the less credible they became In my considered
judgment, all of them were giving a fabricated story put
together after the events, about the man's performance
and their claim to have orally warned him about his un-
desirable performance
The work of the driver-salesman is to deliver to the
customers laundered linen, towels, uniforms, mats, and
clothes as well as new purchases They are given a set of
delivery orders before leaving the plant They also act as
salesmen for the Company, soliciting new business as
they proceed along the scheduled route According to
the company records in evidence, Harper worked only a
partial week at the beginning of his employment and at
the end In the interval he worked 8 full weeks—the
weeks of September 16 to November 4 During this
period he did overtime work—a minimum of 17 hours
and a maximum of 28 25 hours His average overtime
was 21 85 hours per week, for which he was paid at $9
per hour—or at average weekly overtime pay of $196 85
With his first 40 hours' pay being $240 per week—at $6
an hour—Harper was getting almost double the amount
of pay the Company thought—as they said at the hearing
7 months later—he was suppose to receive, This went on
for 8 weeks, while the Respondent gave him no written
warning or any discipline of any kind
No reasonable employer would keep a man who stole
that much money from the Company for so long a time
What this means is that Harper correctly explained how
the route delivery assignments simply required him to
keep going until he was through, and that the overtime
was necessitated by the number of orders he had to de-
VAN DYNE CROTTY CO 903
liver during the day In the repeated testimony of the
many supervisors about Harper's general and gross in-
competence, there is the admission by one supervisor
that it is not unusual for the driver—not only Harper—to
have to do 10 or more hours of overtime work weekly'
From the testimony of Edsel White
Q Do you have any idea with respect to route
183, Harper's route, how long that route should
take to perform'
A It vanes actually at a weekly basis, but we try
to maintain a 50 hour a week route, okay" The guys
generally doesn't [sic] like to work anymore Some-
times we have no choice but to have them work 50
hours week
One final element of the alleged proof of Harper's in-
competence will suffice to explain my fundamental credi-
bility conclusion in this case Supervisor after supervisor
testified about calls received from customers who tele-
phone in to complain about the service received As they
would have it Harper was the cause of the greatest
number of such complaints From the testimony of Sha-
lenberger
Q How did the number of complaints you re-
ceived about Mr Harper compare to the number
you received about other drivers'
A I'd say high Usually only a couple of calls
maybe a week on an individual route You know, I
was getting four or five, six calls maybe a day, you
know, at a time
Q For Mr Harper"
A That's correct
From the testimony of Supervisor White
,, 9 What was ypur opinion of his performance
level"
A It was poor
Q All right In what way was it poor"
A On a scale of 1 to 10, probably 2 5, consider-
ing all the other drivers at a scale of 7 5
JUDGE Ricci How soon after he started to work
did you notice these things
THE WITNESS About three weeks down the
road, okay"
Q How often do you receive complaints about
Mr Harper's performance from his customers?
A On a daily basis, depending on how many ac-
counts he had daily Probably four to five on a
daily basis
JUDGE Ricci Everyday four or five customers
called to say that he was wrong
THE WITNESS On the—on the average, okay"
From the testimony of Warner Saerls, a general man-
ager, who started work at this location on November 8,
2 days before Harper was discharged
Q How many calls did you take from customers,
not just pertaining to Harper, but on the whole
during that day or two that you took calls9
A I would say about 20 calls
Q How many of them, to the best of your recol-
lection, pertained to Harper's route?
A It was half or more
Finally, from the testimony of the manager, Frier-
mood, who made the decision to discharge Harper
Q And did you, in fact, take calls on an occa-
sional basis from customers complaining about any
dnver9
A Sure
Q All right With respect to Michael Harper, did
you receive calls from complaining customers'
A Yes, I did
Q How would you compare the number of calls
you received about Michael Harper compared to
other drivers at the Akron facility'
A Michael Harper's calls were probably three
times as many as the rest of them
Q Okay Do you recall approximately how many
calls you got on Michael Harper during the course
of his employment there
A I'd say at least 50
Fnermood then said that memos about the complaint
calls are maintained in the office, in the route driver's
personnel file
So much for the generalities spoken by the witnesses
As objective, documentary proof of the veracity of his
witnesses, Fnermood placed into evidence the memos re-
corded of the complaints received from customers con-
cerning Harper's work There are 25 such "phone
memos," the first dated September 9, 1988, 2 days after
Harper started work, and the last dated November 11,
the clay he left the Company The first very revealing
fact shown by these documents is that between Novem-
ber 3 and 11, there were no complaints recorded about
Harper's work What does this do to the testimony of
Warner Saerls, who came to Akron on November 8 and
swore that 50 percent of the complaints he received in-
volved Harper, that "half or more, of "about 20 calls"
concerned Harper" Can there be any question but that
this man was lying at the hearing, was simply repeating
what he was told to say as a witness? I think not
For the rest, the exhibits serve to destroy the testimo-
ny of all the witnesses who spoke of five complaints a
day about Harper, about how from the start the com-
plaints never stopped coming in With these the Re-
spondent's own objective proof, it means the Company
received about three customer complaints each week
from customers on Harper's route The testimony
abounds that complaints were received all the time in-
volving all the routes It was also admitted many of the
customers' complaints did not relate to the driver's work
at all In fact, Fnermood, in trying to explain each of the
phone memos he produced, said some of them he did not
understand at all, and some of them did not involve
Harper at all Again, all this makes perfectly credible
Harper's statement that his work was no less satisfactory
than that of any of the other drivers, and that manage-
ment did not, ever, warn him of wrongdoing or threaten
him with discharge because of his work performance
904 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Consistent with all this I also credit Harper against
Fnermood as to the discharge conversation on Novem-
ber 10 on the telephone To support his story of telling
Harper he was fired for incompetence Fnermood pro-
duced a handwritten slip in which he had listed all kinds
of infractions of rules by Harper, including the many
mistakes charged against the man by the other superviso-
ry defense witnesses Fnermood testified that he read all
these items off to Harper on the telephone when telling
him he was discharged The slip of notes is not a regular
company record, there is nothing to convince me it was
written at the time of the events It does not prove the
correctness of Fnermood's testimony at all
In sum, without belaboring the matter unnecessarily, I
find that by discharging Michael Harper on November
11, 1988, the Respondent violated Section 8(a)(3) of the
Act, as alleged in the complaint Wright Line, 251 NLRB
1083 (1980)
I also find that by Supervisor Norma Prosser's con-
duct in questioning employees as to their knowledge
about union activities, telling employees that the Re-
spondent had knowledge of a scheduled union meeting,
telling employees the union organizer was going to be
discharged because of his union activities, and telling em-
ployees other employees would be discharged because of
their union activities, the Respondent violated Section
8(a)(1) of the Act See also D Philip Megdal, 267 NLRB
82 (1983)
THE REMEDY
It having been found that Respondent discharged Mi-
chael Harper in violation of the statute, it must be or-
dered to reinstate the man to his prior employment and
to make him whole for any loss of earnings he may have
suffered because of the illegal discrimination against him
The make-whole formula must include not only the $240
per week which Harper earned for his regular time, but
must also include the weekly average of $196 85 he
earned for his continuing overtime work The Respond-
ent must also be ordered to cease and desist from com-
mitting further violations of Section 8(a)(1) of the Act It
is also important that the Respondent be ordered to
cease and desist from in any other manner violating the
statute
IV THE EFFECT OF UNFAIR LABOR PRACTICES
ON COMMERCE
The activities of Respondent set forth in section 3,
above, occurred in connection with the operations of its
business, have a close, intimate, and substantial relation-
ship to trade, traffic, and commerce among the several
States and this tends to lead to labor disputes burdening
and obstructing commerce and their free flow of com-
merce
CONCLUSIONS OF LAW
1 By discharging Michael Harper on November 11,
1988, the Respondent has violated and is violating Sec-
tion 8(a)(3) of the statute
2 By the foregoing conduct, by questioning employees
as to their knowledge of union activities, by telling the
employees the Respondent had knowledge of their union
activity, by telling employees a unionizer was going to
be discharged because of union activity, and by telling
employees other employees would be discharged because
of their union activity, the Respondent has engaged in
and is engaging in violations of Section 8(a)(1) of the
statute
3 The aforesaid of the labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of
the Act
[Recommended Order omitted from publication ]_