C. & O. Motors, Inc.

National Labor Relations Board - Board Decisions

Nov 7, 1978

239 N.L.R.B. 227 (N.L.R.B. 1978)

C. & O. Motors, Inc. and Lawrence E. Isaac and Wil-
lie W. Asbury. Case 9-CA-1 1524-1, -2
November 9, 1978
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS PENELLO
AND TRUESDALE
On September 26, 1978, Administrative Law Judge
Thomas D. Johnston issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered 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 recom-
mended Order.
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 and hereby
orders that Respondent, C. & O. Motors, Inc., St.
Albans, West Virginia, its officers, agents, successors,
and assigns, shall take the action set forth in the said
recommended Order.
' Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to over-
rule 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 Dr' Wall Products. Inc. 91
NLRB 544 (1950). enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully
examined the record and find no basis for reversing his findings.
C. & O. MOTORS, INC.
es that C. & O. Motors, Inc. (herein referred to as the
Respondent), violated Section 8(a)(l) and (3) of the Na-
tional Labor Relations Act, as amended (herein referred to
as the Act), by coercively interrogating employees about
their union activities and the union activities of other em-
ployees; by implying surveillance of an employee's union
activities; and by discriminatorily discharging Lawrence
Isaac and Willie Asbury and refusing to reinstate them
because of their membership in, sympathy for, and/or ac-
tivities on behalf of the Union.
Respondent in its answer filed on August 31 denies hav-
ing violated the Act.
The issues involved are whether Respondent violated
Section 8(a)(1) and (3) of the Act by unlawfully interrogat-
ing and implying surveillance of employees concerning
their union activities and whether it discriminatorily dis-
charged Isaac and Asbury and thereafter refused to rein-
state them because of their union activities.
Upon the entire record in this case and from my obser-
vations of the witnesses and after due consideration of the
brief filed by the General Counsel,. I hereby make the fol-
lowing.
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
Respondent, a West Virginia corporation, with its place
of business located at St. Albans, West Virginia, is engaged
in the business of the retail sale and service of automobiles.
During the 12-month period preceding August 19, a rep-
resentative period, Respondent's gross volume of business
exceeded $500,000 and it pruchased and received goods
and materials valued in excess of $50,000 which were
shipped directly to its West Virginia facility from points
located outside the State of West Virginia.
Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
IL THE LABOR ORGANIZATION INVOLVED
Local 598, International Association of Machinists and
Aerospace Workers, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
Ill. THE UNFAIR LABOR PRACTICES
DECISION
STATEMENT OF THE CASE
THOMAS D. JOHNSTON. Administrative Law Judge: This
case was heard at Charleston, West Virginia, on January
31, 1978, pursuant to a charge filed on July 5, 1977,' in
Case 9-CA-1I 1524-1 by Lawrence E. Isaac, an individual,
and a charge filed on July 8 by Willie W. Asbury, an indi-
vidual, in Case 9-CA-1 1524-2, and a complaint issued on
August 19.
The complaint, which was amended at the hearing, alleg-
All dates referred to are in 1977, unless otherwise stated
A. Background Unlawful Interrogations, and Alleged
Impression of Surveillance
The Respondent operates a facility located at St. Albans,
West Virginia, where it is engaged in the retail sale and
service of automobiles. Its official and supervisory person-
nel include James Love, who is the president and owner:
Daris Nida, who is the manager of the body shop; and Joel
Woodrum, who is the director of service, parts, and body. 4
2 Neither the Respondent nor the Charging Parties submitted briefs.
Unless otherwise indicated the findings are based on the pleadings, ad-
rmissions, stipulations, and undisputed evidence contained in the record,
which I credit.
These three individuals are each supervisors under the Act
227
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As part of its operations, Respondent operates a body shop
which is located in two separate buildings. In April it em-
ployed in the body shop eight employees who performed
just body work and nine painters.
Based upon the undisputed testimonies of Lawrence
Isaac and Willie Asbury, who were both employed in the
body shop, the body shop employees were paid on the ba-
sis of 50 percent of the hourly labor rate for work per-
formed. The hourly labor rate was $10 an hour until about
March, at which time President Love held a meeting of the
body shop employees and informed them the hourly labor
rate was being increased to $13 an hour; however, they
would not receive an increase. The reason Love gave them
was because the body shop was losing money, and he of-
fered to show them the Company's books. The following
day the body shop employees again met with President
Love and unsuccessfully attempted to get him to pay them
50 percent of the new hourly labor rate. Love informed
them if they didn't like it or did not want to work for him,
they could pack their tools and leave and also told them he
was not going to operate the body shop at a loss and men-
tioned he would first rent it out.
On May 13 the organizing committee for the Interna-
tional Association of Machinists and Aerospace Workers
distributed handbills at the Respondent's facility, which
stated, inter alia, that an effort to organize the automobile
dealerships was underway and an organizing meeting
would be held at the Machinists Building at 7:30 p.m. on
May 17.
Both Isaac and Asbury attended the May 17 union meet-
ing. They were the only employees of Respondent present.
Asbury testified that the following day Director Wood-
rum approached him at work and asked him how the meet-
ing went.
Woodrum, while not asked specifically about having a
conversation with Asbury, denied interrogating any em-
ployees about their union activities or those of other em-
ployees.
I credit the testimony of Asbury, who impressed me as
being a more credible witness than Woodrum, and find
that on May 18 Director Woodrum interrogated Asbury
about the union meeting he had attended.
Asbury futher testified that in the latter part of May
President Love took a United Auto Workers sticker off of
a customer's lunch bucket and stuck it on Asbury's toolbox
and told him it was a sticker to put on the toolbox to go
with the union cards he was passing out.
President Love was not asked specifically about the inci-
dent. However, he denied having any conversation with
Asbury about his union sympathies or affiliation or wheth-
er he had attended union meetings.
While I credit Asbury rather than Love, whose testi-
mony I discredit, inasmuch as Asbury also acknowledged
he had brought union authorization cards to Respondent's
facility and solicited other employees while there to sign
them, which conduct could have been readily observed by
Respondent's officials and supervisors without requiring
their resorting to surveillance, I do not find that Love's
statements to Asbury on that occasion were sufficient to
constitute an unlawful impression of surveillance of
Asbury's union activities as alleged. Apart from my obser-
vations of the witnesses in discrediting Love, his testimony
was both self-contradictory and contradicted by Respon-
dent's own witnesses.
Isaac stated that on May 27 he had a conversation with
President Love and Director Woodrum during which Love
asked him whether he had attended the union meeting,
what went on at the meeting, and what the men wanted.
He informed Love he had attended the meeting and said
the men mainly wanted their 50 percent back. When Love
asked who else was at the meeting and whether Asbury and
another employee named Terry were there, he replied that
the only persons there were Asbury and himself. Woodrum
also asked whether Darrell, who is a mechanic in the ser-
vice department, was there, whereupon he told them there
was no one there from the service department. Isaac fur-
ther stated Love asked him whether he was planning on
attending the next meeting, whereupon his response was he
had not made up his mind but probably would.
President Love denied having any conversation with
Isaac about the Union. Director Woodrum, while not
asked specifically about this incident, denied he interrogat-
ed any employees concerning their union activities or those
of other employees.
I credit the testimony of Isaac rather than President
Love and Director Woodrum, whom I have previously dis-
credited, and find that on May 27 President Love interro-
gated Isaac about whether he had attended a union meet-
ing, what went on at the union meeting, and who was
present at the union meeting and that Director Woodrum
interrogated Isaac about whether another employee had
attended the union meeting.
According to Isaac, at the next union meeting he attend-
ed he informed the Union's officials about his conversation
with Love and Woodrum.
The International Association of Machinists and Aero-
space Workers then sent President Love a letter dated June
3, which was received by Love on June 7 or 8, setting out
certain rights of employees under the Act, and informed
Love it had received reports of violations under the Act,
demanded that such conduct cease, and threatened to take
legal action if necessary.
B. The Discharges of Willie Asbur), and Lawrence Isaac
Willie Asbury was employed by Respondent for approx-
imately 5 or 6 years prior to his discharge on June 9. He
worked as a body repairman in the body shop and was the
third oldest employee in the body shop.
Lawrence Isaac was employed by Respondent from June
6, 1975, until his discharge on June 10. He worked as a
painter in the body shop. Two other employees in the body
shop, namely, Bill Whit and Carl Burns, had worked there
less time than Isaac. Whit performed both body and paint
work, while Burns primarily painted, although he occasion-
ally did small repair jobs. The other painters had worked
there longer than Isaac.
Both Asbury and Isaac were active in the Union. Their
union activities consisted of attending union meetings and
soliciting other employees to sign union authorization
cards. Isaac also signed a union authorization card.
228
C. & O. MOTORS. INC.
President Love, whose testimony was corroborated in
part by Director Woodrum and Manager Nida, testified
that in November or December 1976 a decision was made
to move the new automobile service work from Respon-
dent's mechanical shop to the body shop because the body
shop had not been profitable since it began using two sepa-
rate buildings in 1973 or in 1974. 5 However, no records
were proffered to support this position, and the parties sti-
pulated that Respondent's records show that from July 31,
1974, through July 31, the level of work in the body shop
either remained constant or slightly increased, while no
employees 6 were terminated for lack of work.
Two racks used to service the new automobiles on were
purchased by Respondent in March. They were received
on April 15 and subsequently installed in the body shop.
Although the record does not establish the exact date these
racks were installed, the testimonies of Isaac and Asbury
reflect that it occurred prior to their discharges.
According to President Love, the installation of the
racks in the body shop took up space 7 there, which re-
quired a reduction in the work force that resulted in the
discharged of both Isaac and Asbury.
Asbury was discharged on the evening of Thursday,
June 9. On that occasion, while working on an automobile
on the frame rack, Manager Nida informed him he was
being laid off for lack of work.i Manager Nida, unlike As-
bury, also stated he told Asbury the reason he had been
selected was because he had a drinking problem which he
didn't like and drank on the job.
Manager Nida, who testified he had previously been
asked by President Love and Director Woodrum for his
recommendations concerning which employees should be
selected for layoff because of lack of work,9 testified that 2
days before he discharged Asbury he had observed Asbury
drinking a can of beer in the washroom, at which time he
made up his mind to discharge him and talked to President
Love, who told him to use his own judgment, which he did.
Nida stated that from the time he started work in 1975 he
had noticed beer or whiskey in the body shop and had
talked to Asbury on different occasions about not wanting
it in the shop and told him the next time he caught him he
was going to let him go. Under cross-examination, how-
ever, Nida stated that every payday since 1975 he had
warned Asbury about drinking on the job and had com-
plained to President Love about it twice and to Director
Woodrum about 25 times. Contrary to this reason for se-
lecting Asbury, Manager Nida subsequently stated the rea-
sons were because he had already made up his mind that if
anybody had to leave it would be Asbury because Asbury
would start a repair job and then maybe tear up something
the Company would have to end up paying for because he
Isaac acknowledged that in April oir Mas. President los-oe had men-
tioned making such a change.
6 The stipulation included the two discriminatees Asburs and Isaac
The area involved was where AsburN worked.
According to Asbury, in the past when work was slow emplohees would
either wait at the body shop for work or ask if the) could got home
9Manager Nida first stated he was asked for his recommendation in April
but subsequently stated this occurred about a week before the discharges
occurred.
didn't do the job and also because Asbury would take off
at different times and maybe be gone a week.'0
Asbury did not deny drinking at the body shop.
President Love, who stated he discussed Asbury's termi-
nation with both Director Woodrum and Manager Nida,
first testified Asbury was selected to be discharged for lack
of work because he drank on the job and because of an
incident which occurred on June 3.
Love testified that on that occasion Asbury was drunk
and was belligerent to him by stating he wasn't going to
work on the hoists and after using profanity told him that
he was going to whip him, at which point Love stated he
made the decision on Asbury's discharge." Asbury ac-
knowledged that on June 3 he had been drinking and had
used profanity but stated it was after quitting time and the
profanity was directed at the kids who cleaned out the ga-
rage because they threw needed parts in the trash. He stat-
ed the only thing he said to Love was they would like to get
their 50 percent.
According to President Love, Asbury had been drinking
on the job from time to time during the entire period he
had been employed and stated he had been warned about
it. However, under cross-examination when questioned
about whether Asbury was terminated for a drinking prob-
lem, Love only gave as the reason Asbury had been select-
ed that he had been belligerent to him on June 3.
Manager Nida, who testified it was he who made the
decision to discharge Asbury, denied having any knowl-
edge of the June 3 incident involving President Love and
Asburv.
Although Director Woodrum stated he took part in the
decision about who to terminate, he did not testify con-
cerning the reasons for Asbury's discharge. While he testi-
fied he had talked to Asbury several times about his drink-
ing on the job, he also acknowledged other employees
drank on the job and admitted he himself had probably
had a beer and had brought beer of which otiher employees
drank.
President Love testified that about a month or two after
Asbury's discharge Asbury was in the shop, at which time
he told Asbury they were going to put someone back on
and would hire him. However, Asbury replied he didn't
want it and said something about if they would give him 50
percent or something. Upon being asked whether he of-
fered Asbury exactly what he had when he left, Love, with-
out testifying specifically what was said, replied he offered
Asbury his job back on the same basis. Asbury did not
testify concerning this incident, and neither did Director
Woodrum or body shop employee Jim Wolfe, who Love
stated were also present.
President Love acknowledged that at that time there had
been no changes in the body shop since Asbury's dis-
charge, except stating he could use another man. Accord-
ing to Manager Nida, about July 18 there were seven body
repairmen and eight painters employed in the body shop,
" President L.ove described Asburv as a good worker
] I do not fl:ld President .oe's testimons that Asburs threatened to
whip him plausible. especially since no disciplinar? action was taken against
Asbur, at the time nor was his supervisor Manager Nida notified, as dis-
cussed ttral
229
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
but since then three combination employees 2 have been
hired for the body shop, the most recent on January 1,
1978.
Isaac was discharged on June 10. That afternoon Isaac
was informed by Manager Nida he was being discharged
for lack of work. Isaac, who had worked the previous day,
acknowledged he had not been assigned a job and there
was not any work available that particular day.
President Love testified Isaac was selected for discharge
for lack of work because they had two or three combina-
tion employees in the body shop who were more valuable
than a painter like Isaac and because Isaac and a girl, who
had worked in the office and was discharged at the same
time, were seeing too much of each other in the body shop
on company time. Under cross-examination Love denied
he made the decision to discharge Isaac or knew when it
was made, but stated that between June 7 and 9 Director
Woodrum, Manager Nida, and himself had discussed who
would have to get out of the space. Love also denied know-
ing when Isaac first started seeing the girl.
Manager Nida did not testify it was his decision to dis-
charge Isaac, but stated he had suggested Isaac be dis-
charged because work had slowed down in the paint shop
and they had already gotten rid of three of the body men
and because Isaac was dating a girl who worked in the
office who was spending too much time in the body shop
where Isaac worked. While Nida stated he had talked to
both Isaac and the girl about it and had asked the girl to
stay out of the paint shop, he did not testify that he actual-
ly warned Isaac about seeing the girl, as President Love
alleged.
Although Director Woodrum stated he took part in the
discussions about who would be terminated, he did not
testify concerning the reasons for Isaac's discharge.
Isaac did not deny the allegations involving his seeing
the office girl.
C. Analysis and Conclusions
The General Counsel contends, contrary to Respon-
dent's denials, that Respondent violated Section 8(a)(l)
and (3) of the Act by unlawfully interrogating and imply-
ing surveillance of its employees concerning their union
activities and by discriminatorily discharging and refusing
to reinstate Asbury and Isaac because of their union activi-
ties.
Section 8(a)(l) of the Act prohibits an employer from
interfering with, restraining, or coercing its employees in
the exercise of their rights guaranteed in Section 7 of the
Act. Section 8(a)(3) of the Act provides in pertinent part:
"It shall be an unfair labor practice for an employer . . .
by discrimination in regard to hire or tenure of employ-
ment or any term or condition of employment to encour-
age or discourage membership in any labor organization."
The findings supra establish that on May 18 Director
I Combination employees are those emplosees who perform both hod6
repair and painting work.
During the period from November 1976 through February. Manager
Nida discharged two employees who worked in the body shop, and another
employee quit.
Woodrum interrogated Asbury about the union meeting he
had attended; on May 27 President Love interrogated
Isaac about whether he had attended a union meeting,
what went on at the union meeting, and who was present at
the union meeting; and on May 27 Director Woodrum in-
terrogated Isaac about whether another employee had at-
tended the union meeting.
The test applied in determining whether a violation of
Section 8(a)(l) of the Act has occurred is "whether the
employer engaged in conduct which, it may reasonably be
said, tends to interfere with the free exercise of employee
rights under the Act," Electrical Fittings Corporation, a
Subsidiary of I-T-E Imperial Corporation, 216 NLRB 1076
(1975).
Applying this test, I find that Respondent by engaging in
these acts of interrogation just enumerated has interfered
with, restrained, and coerced its employees in the exercise
of their rights guaranteed in Section 7 of the Act and has
thereby violated Section 8(a)(l) of the Act.
The remaining issue is whether the Respondent discrimi-
natorily discharged and refused to reinstate Asbury and
Isaac because of their union activities.
Under the law, if an employee's discharge is motivated
by antiunion design, such discharge is violative of the Act
even though the employee has performed misdeeds which
would warrant his dismissal. Frosty Morn Meats, Inc., v.
N.L.R.B., 296 F.2d 617, 620 (5th Cir., 1961).
The fact that layoffs may be economically justified is no
defense if the selection of those employees laid off was
because of their union activities. N.LR.B. v. Bedford-Nu-
gent Corporation, 379 F.2d 528, 529 (7th Cir., 1967); and
N.L RB. v. Denna Products Company, 195 F.2d 330, 335
(7th Cir., 1952), cert. denied 344 U.S. 827. Further direct
evidence of discriminatory motivation is not necessary to
support a finding of discrimination, and such intent maybe
inferred from the record as a whole. Heath International,
Inc, 196 NLRB 318 (1972).
The findings, supra, establish that both Asbury and Isaac
were discharged without any prior notice shortly after Re-
spondent learned they had engaged in union activities. Not
only did Respondent's President Love and Director Wood-
rum unlawfully interrogate Asbury and Isaac about their
union activities, which clearly establishes Respondent's
union animus, but through such conduct it obtained
knowledge or at least reason to believe they were engaged
in union activities.
While Respondent denies Asbury and Isaac, who had
both worked for Respondent longer than some of the other
body shop employees retained, were discharged because of
their union activities and contends instead they were dis-
charged for cause, an examination of the reasons given for
their discharges discloses that such reasons were conflict-
ing, contradictory, and contrary to the evidence and dif-
fered from the limited reasons given to Asbury and Isaac,
namely, that work was slack and, additionally, in the case
of Asbury, because of his drinking.
The reason asserted by Respondent that work was slack
was refuted by its own stipulation, which in effect it now
seeks to ignore, that the level of work in the body shop had
either remained constant or had slightly increased during
the 3-year period from July 31, 1974, through July 31. Inso-
230
C. & O. MOTORS, INC.
far as the alleged unprofitableness of the body shop is con-
cerned, for which no supporting financial records were
proffered, the evidence reflects that only as recently as
March a substantial increase from $10 to $13 an hour was
made in the hourly labor rate, which obviously would have
increased profits, since the level of work in the body shop
had either remained constant or increased while there had
been no increase in the work force or the wages of those
employees during this same period. Additionally, Respon-
dent's contention that the installation of the racks in the
body shop took up space which required the reduction in
force is inconsistent with its alleged offer to hire Asbury
shortly after his discharge on the grounds it needed him,
since this occurred at a time when admittedly there had
been no change in the body shop or the number of employ-
ees to have resulted in providing additional workspace if
such a shortage of workspace had actually existed. Further,
three other body shop employees were also subsequently
hired.
Upon examining the specific reasons given by President
Love and Manager Nida for selecting Asbury and Isaac to
be laid off for lack of work, the evidence, supra, establishes
that Manager Nida first stated Asbury was selected be-
cause of his drinking but subsequently gave as the reasons
that Asbury would start a repair job and then maybe tear
up something the Company would have to pay for because
he didn't do the job and because he would take off from
work. However, the latter reasons were not only unsup-
ported by Respondent's other witnesses but contrary to the
testimony of President Love, who described Asbury as a
good worker.
While President Love first testified Asbury was selected
because he drank on the job and because he was belliger-
ent to him on June 3, Love subsequently gave as the sole
reason the June 3 incident. However, Manager Nida, who
testified he made the decision to discharge Asbury, denied
having any knowledge of the June 3 incident involving As-
bury and President Love.
Insofar as Asbury's drinking was given as a reason, the
evidence reflects that Respondent had admittedly tolerated
it for several years without discharging Asbury, and in fact
Director Woodrum also acknowledged other employees
drank on the job and that he himself had brought beer of
which other employees drank.
With respect to Isaac's discharge, while both President
Love and Manager Nida gave as a reason that Isaac was
seeing too much of an office girl on company time in the
body shop, President Love, unlike Manager Nida, gave as
another reason that they had two or three combination
employees who were more valuable than a painter like As-
bury, while Manager Nida, unlike President Love, gave as
a reason that work had slowed down in the paint shop and
they had already gotten rid of three body men. However.
President Love denied he made the decision to discharge
Isaac, and Manager Nida only stated he had suggested
these reasons for Isaac's layoff.
The additional reasons now urged by Respondent for
selecting Asbury and Isaac for discharge were never con-
veyed to them.
Based upon the conflicting and contradictory testi-
monies of President Love and Manager Nida concerning
the reasons given for discharging Asbury and Isaac and in
view of the stipulation involving the level of work in the
body shop, I discredit their testimonies concerning the rea-
sons for the discharges of Asbury and Isaac.
Upon considering the foregoing evidence, and more spe-
cifically the union activities of both Asbury and Isaac, Re-
spondent's knowledge of or reason to believe they had en-
gaged in union activities, the unlawful interrogations of
Asbury and Isaac about their union activities engaged in
by President Love and Director Woodrum, Respondent's
union animus established through its unlawful conduct, the
timing of their discharges in relation to learning of their
union activities, the absence of any prior notice they would
be discharged, and the shifting of the reasons given for
their discharges, and having rejected Respondent's defense,
I am persuaded and find that the Respondent discrimina-
torily discharged Asbury on June 9 and Isaac on June 10
because of their union activities and thereby violated Sec-
tion 8(a)(1) and (3) of the Act.
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent, set forth in section III,
above, found to constitute unfair labor practices, occurring
in connection with the operations of the Respondent de-
scribed in section I, above, have a close, intimate, and sub-
stantial relationship to trade, traffic, and commerce among
the several States and tend to lead to labor disputes bur-
dening and obstructing commerce and the free flow
thereof.
CONCLUSIONS OF LAW
I. C. & O. Motors, Inc., is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. Local 598, International Association of Machinists
and Aerospace Workers, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
3. By coercively interrogating employees about whether
they or any other employees had attended a union meeting
and by coercively interrogating employees about what hap-
pened at a union meeting they attended, Respondent has
interfered with, restrained, and coerced its employees in
the exercise of their rights guaranteed in Section 7 of the
Act and has engaged in unfair labor practices in violation
of Section 8(a)(1) of the Act.
4. By discnminatorily discharging Willie Asbury on
June 9, 1977, and Lawrence Isaac on June 10, 1977. be-
cause of their union activities. Respondent has engaged in
unfair labor practices in violation of Section 8(a)(3) and ( )
of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices within the meaning of Section
8(a(1I) and (3) of the Act, I shall recommend that it cease
231
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and desist therefrom and take certain affirmative action to
effectuate the policies of the Act.
Accordingly, the Respondent, if it has not already done
so,14 shall be ordered to offer immediate and full reinstate-
ment to Willie Asbury and Lawrence Isaac to their former
jobs or, if those jobs no longer exist, to substantially equiv-
alent jobs without prejudice to their seniority and other
rights and privileges and to make each of them whole for
any loss of earnings and compensation they may have suf-
fered as a result of the discrimination against them in their
employment herein found by discriminatorily discharging
Willie Asbury on June 9, 1977, and Lawrence Isaac on
June 10, 1977, until the date of such full and proper offer
of reinstatement. Backpay shall be computed on the basis
set forth in F. W. Woolworth Company, 90 NLRB 289
(1950), with interest computed in accordance with the for-
mula set forth in Florida Steel Corporation, 231 NLRB 651
(1977).15
Upon the foregoing findings of fact, and conclusions of
law and the entire record and pursuant to Section 10(c) of
the Act, I hereby issue the following recommended:
ORDER 16
The Respondent, C. & O. Motors, Inc., St. Albans, West
Virginia, its officers, agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Coercively interrogating employees about whether
they or other employees attend union meetings.
(b) Coercively interrogating employees concerning
union meetings.
(c) Discouraging activities in the International Associa-
tion of Machinists and Aerospace Workers, AFL-CIO, or
any other labor organization by discharging, refusing to
reinstate, or in any other manner discriminating against
employees in regard to their hire or tenure of employment
or any term or condition of employment.
(d) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights guaran-
teed in Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act:
(a) Offer, if it has not already done so, immediate and
full reinstatement to Willie Asbury and Lawrence Isaac to
their former jobs or, if those jobs no longer exist, to sub-
stantially equivalent jobs, without prejudice to their senior-
ity and other rights and privileges, and make each of them
whole for any loss of pay or other compensation they may
have suffered by reason of the discrimination against them
herein found in the manner set forth in that section of this
Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records, and reports and all other records neces-
sary to analyze and determine the amount of backpay due
under the terms of this Order.
(c) Post at its St. Albans, West Virginia, facility copies
of the attached notice marked "Appendix." 17 Copies of
said notice, on forms provided by the Regional Director
for Region 9, after being duly signed by the Respondent's
authorized representative, shall be posted immediately
upon receipt thereof and be maintained by it for 60 consec-
utive days thereafter, in conspicuous places, including all
places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to in-
sure that said notices are not altered, defaced, or covered
by any other material.
(d) Notify the Regional Director for Region 9, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the amended complaint be,
and hereby is, dismissed insofar as it alleges unfair labor
practices not specifically found herein.
i4 Although the evidence establishes a job offer was made to Asbury fol-
lowing his discharge. I find such evidence does not establish whether such
offer of reinstatement was to Asbury's former job or, if that job no longer
existed, to a substantially equivalent job and was without prejudice to his
seniority and other rights and privileges Therefore the reinstatement order
has been qualified to the extent Respondent need not offer full and proper
reinstatement to Asbury if it has already done so. See Fredeman's Calcasieu
Locks Shipyard, Inc., 206 NLRB 399 (1973).
See, generally. Isis Plumbing & Heating Co., 138 NLRB 716 (1%962).
s In the event nc exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations. be adopted by the Board and become
its findings. conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
1 In the event that this Order is enforced by a judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE Wl.L NOT coercively interrogate our employees
about whether they or other employees attend union
meetings.
WE WII.L NOT coercively interrogate our employees
concerning union meetings.
WE WILL NOT discharge, refuse to reinstate, or other-
wise discriminate against our employees because of
their membership in, sympathies for or activities on
behalf of the International Association of Machinists
and Aerospace Workers, AFL-CIO, or any other la-
bor organization.
WE WILl. NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of
their rights to self-organization; to form, join, or assist
any labor organization; to bargain collectively
through representatives of their own choosing; to en-
gage in concerted activities for the purpose of collec-
tive bargaining or other mutual aid or protection; or
to refrain from any or all such activities, except to the
extent that such rights maybe affected by an agree-
ment requiring membership in a labor organization as
a condition of employment as authorized in Section
232
C. & O. MOTORS, INC.
8(a)(3) of the National Labor Relations Act, as
amended.
WE WILL offer, if we have not already done so. im-
mediate and full reinstatement to Willie Asbury and
Lawrence Isaac to their former jobs or, if those jobs
no longer exist, to substantially equivalent jobs, with-
out prejudice to their seniority and other rights and
privileges, and make each of them whole for any loss
of pay or other compensations they may have suffered
by reason of our discrimination against them. with in-
terest.
C & 0 MOTORS, INC
233