Huttig Sash & Door Co.

HUTTIG SASH & DOOR COMPANY Huttig Sash & Door Company and Freight Drivers, Warehousemen and Helpers Local Union No. 390, an Affiliate of International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America. Case 12-CA-7846-2 December 5, 1978 DECISION AND ORDER BY MEMBERS JENKINS, MURPHY, AND TRUESDALE On July 7, 1978, Administrative Law Judge Sidney J. Barban issued the attached Decision in this pro- ceeding. Thereafter, Respondent filed exceptions 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 record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order. 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 the Respondent, Huttig Sash & Door Company, Miami, Florida, its officers, agents, suc- cessors, and assigns, shall take the action set forth in the said recommended Order. X 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 Dry 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. DECISION STATEMENT OF THE CASE SIDNEY J. BAREAN. Administrative Law Judge: This mat- ter was heard before me in Miami, Florida, on January 10, 1978, upon a complaint issued on October 13, 1977, based on a charge filed on September 6, 1977, by the above- named Charging Party (herein called the Union). The com- plaint alleges that the above-named Respondent violated Section 8(aX1) of the National Labor Relations Act, as amended (herein called the Act), by (1) interrogating em- ployees concerning union activities and sympathies, (2) re- questing that an employee become involved in conversa- tions of other employees and report talk about the Union, (3) lending an employee money with a request that he keep this in mind when voting in a scheduled representation election, and (4) maintaining a work rule which prohibited any kind of meetings or solicitation on Respondent's prop- erty; and violated Section 8(a)(3) and (1) of the Act by discharging employee Kenneth Rush on or about August 26, 1977. The answer to the complaint denies the commis- sion of the unfair labor practices alleged, but admits allega- tions of the complaint sufficient tojustify assertion of juris- diction under current standards of the Board (Respondent, a multistate enterprise, engaged at Miami, Florida, in the wholesale distribution of millwork and building materials, during a recent annual period received goods and materials valued in excess of $50,000 at its Miami facility shipped directly from outside the State of Florida) and to support a finding that the Union is a labor organization within the meaning of the Act. Upon the entire record in this case, from observation of the witnesses and their demeanor, and after due consider- ation of the briefs filed by the General Counsel and Re- spondent, I make the following: FINDINGS AND CONCLUSIONS I. THE FACTS The decision of the issues in this case depends to a large extent upon resolution of conflicts in the testimony among the various witnesses. In assessing the credibility of the witnesses, I have considered my impressions of the witness- es and their testimony on the record considered as a whole, the arguments in the briefs, as well as the probabilities in- herent in the situations involved. The following findings are based on my resolution of the issues of credibility. To the extent that the testimony is not consistent with these findings, I do not credit that evidence. In some cases, where it seems particularly advisable, I have indicated the basis for credibility findings. A. The Employment of Kenneth Rush At its Miami facility, Respondent maintains a warehouse where it receives, stores, and distributes millwork and building material. Also, part of the warehouse is an area in which Respondent does certain millwork operations. Dur- ing the period with which we are concerned here, there were between 8 and II nonsupervisory employees engaged in warehousing and driving tasks in the warehouse opera- tions. Adjacent to the warehouse area, Respondent con- ducted its office operations, including its sales activities. During the times material to this case, Gordon E. Fair- banks was Respondent's warehouse superintendent at this facility. He was directly responsible to Carl McVay, Re- spondent's general manager in Miami. It is admitted that both are supervisors and agents of Respondent within the meaning of the Act. Kenneth Rush, while employed by another employer, had occasion to make a number of deliveries to Respon- 571 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dent's warehouse. Fairbanks became impressed with Rush and several times pressed Rush to file an application for employment with Respondent; Rush did so in May 1977 (all dates hereafter are in 1977 unless otherwise noted). He began working for Respondent in late May. Fairbanks told Rush that he wanted Rush to learn the warehouse opera- tions as quickly as he could in order to be of assistance to Fairbanks. Thereafter, Rush's duties principally consisted of loading and unloading trucks and freight cars (together with other warehouse employees) and checking invoices or tallies of goods and materials received by Respondent. In light of issues raised in this matter, it is of some signifi- cance to note that Rush was not told at this time of the recent retirement of Millwork Superintendent Bill Dyer, or that Rush might be expected to do millwork operations. He was told that Respondent had a probationary period but not the length of that period. He also was not told that he was considered a trainee, although that is what Respon- dent now contends he was.' During this employment with Respondent, Rush re- ceived no complaints concerning the performance of his work or his conduct.2 B. Rush's Union Activities In late June or early July, Rush began discussing the possibility of unionization with other warehouse employ- ees. Receiving some encouragement, Rush set up a meeting for the warehouse employees at a local tavern. At this meeting he was asked to obtain union authorization cards. He did so and arranged another meeting of the employees at the same tavern on July 28, which was attended by most of the warehouse and millwork employees. Apparently all of those employees signed authorization cards in favor of the Union. Other such meetings of the employees took place at the tavern in August and September. By letter to Respondent dated August 18, received on August 23, the Union claimed to represent a majority of Respondent's warehouse employees and drivers and re- quested recognition and bargaining. The Union about this time or soon thereafter filed a petition for representation of these employees with the Regional Office of the Board. The Board held an election among the warehouse em- ployees and drivers on October 19, following a hearing on September 27 on the Union's petition. C. Respondent's Talks With Rush and Other Employees 1. In the first part of August, on the Monday after the employees signed union authorization cards, or on the Monday of the following week, when Rush was in Fair- IThis contention, like some other parts of the testimony of Fairbanks and McVay, tended to become confusing. At different points it was indicated that it was intended that Rush also might be trained for other duties or that he was being groomed to succeed Fairbanks when he retired. I am not convinced as to these contentions, although the latter may have been thought of as a possibility for the distant future. On the record as a whole. the testimony of Respondent's witnesses seemed to equate "trainee" with "probationer." 2 Fairbanks seemed to equivocate on this issue. McVay stated that he made no complaint. I credit Rush as set forth above. banks' office turning in some paper work, Fairbanks asked Rush if there had been a union at his previous employer. When Rush answered that there had not been, Fairbanks asked if Rush had ever belonged to a union or if he had been approached by a union since working for Respon- dent. Rush answered in the negative. 2. In the following week, when Rush was again in Fair- banks' office with some paper work, Fairbanks asked Rush if he would be a "good company man," and if he saw any group of employees talking, "to find out what they were talking about, if it was union or whatever, and report back to him." 4 After some uncertainty in his testimony, Fairbanks denied that he had asked Rush "to keep his ears open and report back . . . if he heard anybody talking union or engaging in union activities," stating that "I told him to keep his eyes and ears open. . . for stealing." Fair- banks stated that Respondent "had a lot of problems with stealing" (not otherwise specified) and that he did not want strangers in the warehouse. In his testimony, Fairbanks also tied this explanation in with the following incident related by Rush. 3. Shortly after the above incident, when Rush was again in Fairbanks' office in connection with his work, FIairbanks showed him a list of company rules, which Rush had not previously seen in the plant. Fairbanks pointed out one of these rules to Rush, which, as the latter recalled, forbade "solicitation or passing out printed matter on com- pany property and company time." Later that day, Rush saw these rules posted on a bulletin board in the ware- house. Fairbanks recalled only that he had a discussion with Rush in which he told Rush "to keep his eyes and ears open for strange people [identified elsewhere as pedlars or solicitors] coming in this warehouse," again because of as- serted problems with stealing. He did not recall pointing out any particular company rule to Rush and denied that he had any similar discussion with any other employees. Jeff Patey, Respondent's office manager, recalled being in the office in early August when he overheard Fairbanks telling Rush to keep his eyes and ears open. But he heard no mention of the Union in that conversation, or any men- tion of pedlars or solicitation. Rush did recall an instance in which Fairbanks spoke to him about strangers coming into the warehouse, but denied that this was mentioned, or that stealing was mentioned on the occasions set forth above. Upon considering the record as a whole and my impression of the witnesses, I credit Rush's testimony as set forth above, as to both incidents. I believe that Fairbanks' testimony confuses several differ- ent conversation. 4. Rush's employment with Respondent was terminated on Friday, August 26, as discussed hereinafter. On the fol- 3Fairbanks recalled asking Rush if his previous employer had been unionized, but states this was merely conversation, that it had no relation to union activity at Respondent's facility. He further testified, "That's all I remember about union, period." I have credited Rush as set forth above. Fairbanks denied that he had asked "any other employee . .. . whether or not he had been a member of the union." He further denied any knowledge of Rush's union activity until after Rush vwas let go, 4 Rush states that on several occasions during this period Fairbanks spoke to him about being "a good company man." 572 HUTTIG SASH & DOOR COMPANY lowing Monday or Tuesday, General Manager McVay went around the warehouse speaking to the employees present, either singly, or in groups of two or three. McVay asked those employees why they wanted a union at Re- spondent's operation. Some replied (untruthfully) that they did not know anything about it. Others answered that they desired better benefits or were happy with things as they were. In some instances McVay asked if the employees knew what the Union would cost them, and, when they stated they did not know, McVay said he would find out for them. McVay immediately went into his office and wrote down the responses given by the employees. McVay's original testimony on this subject was: "I asked them what they wanted a union for. I said, 'I don't know why you want a union in here.' " Immediately thereafter McVay asserted, "I did not ask them. I said to them, 'I don't know what you want a union in here for.' I made a statement to them. I didn't ask them." To the extent that McVay asserts that he was not asking the employees to inform him as to their reasons for desiring union represen- tation on this occasion, I do not credit his testimony. 5. When employee Robert Brown returned to work after being hospitalized in September 1977, he sought a loan from Fairbanks to help him pay his rent. Fairbanks sug- gested that Brown see McVay, but Brown demurred. Later that day McVay came to Brown and tendered him the amount of money which Brown had sought from Fair- banks, at the same time telling Brown, "Don't forget about me when the voting day comes up." D. The Discharge of Rush It should be noted initially that though Respondent con- tends that Rush was laid off, not discharged, because of "economic reasons," inter alia, I find that he was dis- charged. Rush was not told that he was being laid off when he was let go, nor was he informed that he would be or might be called back to work under any conditions. Fur- ther, Respondent's reasons for letting him go, as discussed hereinafter, do not stand close analysis. The fact that Re- spondent did reemploy Rush after the issuance of the com- plaint in this matter, as set forth hereinbelow, does not alter the nature of the original termination.5 On August 26, Rush was called into McVay's office, where, according to Rush's credited testimony, McVay told Rush that Respondent "no longer needed" him due to the fact that "work was slow"; and because Rush was "no longer needledr' to replace retired Mill Superintendent Bill Dyer, who Rush was informed he had had been hired to replace (Rush had not previously been informed of this); and because Rush "was not taking the proper work load off Mr. Fairbanks." 6 In addition, though it was not stated to Rush, Respondent now justifies its timing of Rush's dis- Even Warehouse Superintendent Fairbanks had some difficulty with the problem. At one point on direct examination he accepted the idea that Rush had been "discharged"; at another point he suggested that Rush had been "dismissed." 6 McVay, early in the hearing, gave the following reasons for letting Rush go: "Economic conditions was one reason. Another reason is that we thought we needed an assistant to [Fairbanks] due to the retirement of our mill superintendent [Dyer] who assisted [Fairbanksl in his duties We found out this was not necessary since we had a trainee [Thomas Arnold] hired charge (3 days after receipt of the Union's demand for recognition) on the basis that Rush's 90-day probationary period was about to expire. The testimony adduced in support of the various reasons given for the testimony of Rush tends to be inconsistent and sometimes shifting. Thus, in the first place, there is a dispute between McVay and Fairbanks as to whether work was actually slow at the time Rush was let go, and also seemingly as to whether Rush was told that work was slow. Thus McVay, when asked if the work was slow when Rush was terminated, replied, "The work, when we let Mr. Rush go was approximately the same as when we hired him. *. ." Earlier, in response to the statement that "Now you say work was slow," McVay asserted "I didn't say it was slow.... ." Fairbanks, on the other hand, when asked what Rush was told when he was terminated, answered, ". . . we had a slack up in business. Business had just kind a slacked off. And due to lack of work . . . I didn't need him"; and also "[Aind I needed more help which I found out he wasn't capable of helping me enough." On consideration of the testimony of the two men and the record as a whole, I credit McVay over Fairbanks on this issue and find that there was no decline in work at the time Rush was let go. This seems to be the position adopt- ed by Respondent in its brief (p. 5). Respondent's brief (pp. 5-6) argues that even though there was as much work to be done, there was less need for Rush (which the brief recognizes as a seeming inconsisten- cy), because it is asserted that the Respondent had hired another man (identified only as "Clarence") to perform millwork in the operation formerly supervised by Superin- tendent Dyer. A major difficulty with this contention, how- ever, is that, although McVay and Fairbanks assert that Rush was hired in part to take the place of Dyer, neither asserted that the employment of Clarence was brought up for the first time on Fairbanks' cross-examination. At that point, when asked if Clarence had been employed before or after Rush, Fairbanks said, "I really don't know, sir. He's [i.e., Clarencel been there about, oh, maybe eight or nine months."' 7 On direct examination, Fairbanks testified that he and McVay decided that they "just didn't need" Rush at the end of his probationary period because "he [Rush] was supposed to help in the mill with Bill Dyer. More or less take some of Bill Dyers' duties. That the guy in the mill would make the doors. And do a little bit of millwork." On cross-examination, however, when pressed as to what it was Rush was failing to do in the mill that made him thus dispensable, Fairbanks tended to deprecate the work to be done in the mill and emphasize Rush's failings elsewhere, as the following excerpts from his testimony show: Q. (Mr. Richman) Well, you said you hired Mr. Rush because you needed him for the mill. Did you need him for the mill? A. We needed him to help me, sir, wherever I seen fit to put him. prior to Rush who was very efficient at the Job." Later, McVay added, "Economically, we don't feel we needed two [trainees, Rush and Arnoldl." 7 This would indicate that Clarence was employed in Apnl or May. Since Rush was employed in late May. the chances are that Clarence was em- ployed before Rush. 573 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q.... And you said he wasn't doing the job? A. Right. Q. New what kind of work did you expect him to do in the mill? A. Well, sir, the mill is a very small part. It's part of the warehouse. Q. So what work did you expect Mr. Rush to do in the mill? A. He would help me a little bit, sir. If I walked in the mill and I want to nail up a pile of doors, I would ask him to help me nail them up or give him a man to help nail up the doors. Q. And in what way was he not helping you in the mill? A. Well, sir, you're tying in the mill. He helped me a little bit in the mill. But as far as being my assistant he wasn't helping me enough with the checking of the mate- rial. Q. Okay So now it's the checking .... Now had you gone to him and told him, or explained to him that you didn't think he was doing the job? A. No, sir, ... I was expecting him more or less to come to me and ask for a little more work to do. I mean if we had a trailer of doors to put away, I would expect for him, not for me telling him so much, to be a little aggressive and grab it and do it. But he never came to me so much to do these things.... He wasn't helping me enough. [Emphasis supplied.] Inasmuch as this appeared to be a significant shift in Respondent's position, Fairbanks was thereafter asked to explain just how Rush failed to "measure up" in his work, to which Fairbanks replied, "Well, sir, when you say mea- sure up, let me say that my job requires a lot of pencil work. When he was helping me it required a lot of pencil work. And he just wasn't giving me what I needed. And that's about all I can tell you, sir. He wasn't enough help for me. In other words, he wasn't handling the responsibil- ity I wanted him to handle." When asked for specifics, Fairbanks said only that "when it came to a carload of material I found that I was going back and rechecking it myself to make it come out right," but also stated that he could not recall any occasion on which he brought this to Rush's attention. Nevertheless, Fairbanks, at another place in his testi- mony, agreed that Rush did assist him "in the ways that [Fairbanks] asked him to." Based on the above and the record as a whole, I am convinced that Rush was not hired to replace Mill Superin- tendent Dyer or to do his work. I am further persuaded that the various reasons given to Rush and in testimony at the hearing as reasons for Rush's termination were make- weight excuses to justify Respondent's action. 8 $I have not discussed in detail Respondent's claim that Rush was not needed because Respondent had another trainee, Arnold, available. I be- lieve this to be of the same caliber as the contentions which have been discussed. The record is convincing that Arnold then, as now, was employed E. The Rehire of Rush By letter dated December 14, McVay advised Rush: "There is a job opening in our warehouse requiring the same type work that you were doing prior to your lay-off. Since you were the last employee laid off, this job is being offered to you . ... The salary will be the same as your previous earnings." 9 Rush accepted the offer and has re- turned to work in Respondent's warehouse. According to Fairbanks, the job offered Rush became available when Respondent terminated another warehouse employee who had been hired before Rush to be Fair- banks' assistant, but had proved to be completely unrelia- ble. Fairbanks asserts that Rush is now doing the same work as before, but indicates that he is not now Fairbanks' "assistant," that Rush "had a little more authority before." (This last assertion is not explained. Possibly Fairbanks was referring to the fact that he alone is now doing all of the checking of tallies.) On the day before the hearing is this matter, Rush desir- ing to speak with McVay about delay in receipt of subpe- nas issued to the warehouse employees to testify at the hearing, asked permission to come into McVay's office. When McVay agreed, Rush asked if there had been any notification from the union hall concerning the subpenas. McVay responded that he did not "want to hear nothing else about any damn union"; that none of the employees would be released "to go to court without a subpena." 10 II. ANALYSIS AND CONCLUSIONS A. Alleged Interference With and Restraint and Coercion of Employees Interrogation: Shortly after Rush spearheaded the union organizational drive, while Rush was in Superintendent Fairbanks' office, Fairbanks asked Rush whether his previ- ous employer had been unionized, and whether Rush had been a member of a union previously, or whether he had been approached by a union while employed at Respon- dent. Rush replied in the negative. Shortly after Rush's termination, and within a week after the Union claimed majority status and demanded recognition, General Man- ager McVay went into the warehouse and queried the em- ployees as to why they wanted a union in Respondent's operation. Some gave truthful replies; others untruthfully denied that they knew anything about the Union. In the context of this case, and particularly in light of the fact that McVay's attempt to have the employees declare themselves as to the Union followed immediately upon the discharge in a sales capacity, with his base in Respondent's office, and that he was pnrncipally available to Fairbanks on an emergency basis. The indications from Faribanks' testimony (though his testimony on the point tended to be unclear) were that Respondent did not have a seniority policy. notwithstanding the implications of this letter. 0 McVay, called as a hostile witness by General Counsel, testified sub- stantially in accordance with Rush's testimony set forth above, except that he asserts that Rush "busted" into his office, and that he (McVay) probably said that "the union ... is not going to run my business." I have credited Rush as set forth above. However, I was struck at the hearing with the vehemence of McVay's last quoted assertion and his repetition of that posi- tion to General Counsel at the hearing. 574 HUTTIG SASH & DOOR COMPANY of Rush, the leading advocate of the Union, I find that Respondent's actions set forth constitute unfair labor prac- tices in violation of Section 8(a)(1) of the Act. Request to report on union activities: Fairbanks asked Rush to be a good company man and report back to Fair- banks conversations among the employees, in Rush's words, about the "union or whatever." I find that by this conduct Respondent engaged in unfair labor practices in violation of Section 8(aX1) of the Act. The employee loan: McVay loaned a substantial amount of money to employee Brown with the request that Brown not "forget about me when the voting day comes up." Re- spondent argues that since Respondent had a right to soli- cit the employee to vote "no" and did not actually condi- tion this loan or any future loan on the way the employee voted, no violation should be found. However, the vice here is similar to that which attaches to any personal bene- fit granted by the employer just before an election: the demonstration that the employer's beneficence depends upon the employer's good will and may be withdrawn if the employer is not pleased. It is found that by this action Respondent violated Section 8(a)(l) of the Act. The no-solicitation, no-distribution rule: Employee Rush testified that Superintendent Fairbanks, after the employ- ees had signed authorization cards for the Union, for the first time called Rush's attention to a company rule forbid- ding "solicitation or passing out printed matter on compa- ny property and company time." Later that day, Fairbanks posted this on the company bulletin board. In the absence of any explanation to the employees as to their rights to discuss the Union during nonwork periods or distribute written materials on company property away from work areas during nonwork periods, this rule is impermissibly broad and violates Section 8(a)(I) of the Act. See, e.g., Waukegan-North Chicago Transit Company, 225 NLRB 833 (1976). B. Alleged Discrimination Kenneth Rush was employed by Respondent in late May to work in the warehouse, purportedly as an assistant to the warehouse superintendent; however, so far as this record shows, the only task he performed not regularly as- signed to others was checking tallies of incoming freight. Although Respondent now contends that his work perfor- mance was unsatisfactory, management made no com- plaint to Rush during his tenure of employment. In late July, Rush was apparently solely responsible for organizing the warehouse on behalf of the Union, by arranging meet- ings to discuss organization, securing union authorizations, and getting the employees to sign those cards. Shortly thereafter, Fairbanks, the warehouse superintendent, had a series of talks with Rush concerning union activities. First Fairbanks queried Rush as to whether his previous em- ployer had been unionized, whether Rush had been a member of a union, and whether he had been approached by a union while employed by Respondent. Significantly, no other employees were questioned about such matters at that time. Thereafter, Fairbanks asked Rush to be "a good company man" and report back to Fairbanks what the em- ployees were talking about, including union matters. And last, Fairbanks made a particular point of advising Rush that it would be a violation of company rules to solicit or distribute literature on "company time or company prem- ises." On August 23, Respondent received a letter from the Union claiming that the Union had signed up a majority of Respondent's warehouse employees and demanding recog- nition. On August 26, Respondent let Rush go, giving him reasons for his termination which the record shows were either not true, or at best makeshift excuses for that action. Respondent contends, nevertheless, that there is no evi- dence that Respondent knew of Rush's union activity, and, thus, could not have let him go for that reason, and, in any event, is not shown to have any animus against union orga- nization, and, thus, would not be likely to discharge an employee for such activities. It is true that there is no direct evidence of company knowledge of Rush's union activities. However, the singling out of Rush for questioning concern- ing his union connections shortly after he had signed up the employees for the Union, as well as other union-ori- ented actions in which Respondent involved him, as well as the fact that he was quickly discharged when the Union demanded recognition, raise a strong inference that Re- spondent took these actions because they knew of his activ- ities on behalf of the Union-at least in the absence of credible explanations for Respondent's actions, which, as has been noted, are lacking. In addition, in a small, appar- ently close-knit work group as that employed in Respon- dent's warehouse (8-11 employees) there is a substantial likelihood that management would become informed of the emloyees' union activities and the identity of the leader in those activities." I find that at the time Rush was termi- nated, Respondent knew or had reason to believe that Rush was active on behalf of the Union. As to Respon- dent's union animus, the record is convincing that Respon- dent's management at this facility was opposed to union- ization, and, on the record as a whole, I am convinced that Respondent terminated Rush because of his union activi- ties and, thus, violated Section 8(a)(3) and (1) of the Act. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By coercively interrogating employees concerning their membership in, contacts with, and sympathies in re- gard to labor organizations, by requesting an employee to report back to management employee conversations con- cerning the Union, by granting an employee benefit to af- H Respondent points out that Fairbanks would not logically have re- quested Rush to report back employee conversations about the Union if he knew of Rush's union activities, and, thus, he must not have known. This is a good point and I have given it careful consideration. However, it does not necessarily follow that Fairbanks acted in ignorance of Rush's activities; he may not have fully trusted his information and sought in this manner to test Rush, or, more likely, Fairbanks thought he could persuade Rush to be "a good company man," and forego his adherence to the Union. as indicated by Fairbanks' admonishment to Rush on this and other occasions to he a "good company man." 575 DECISIONS OF NATIONAL LABOR RELATIONS BOARD fect the vote in a representation election, and by maintain- ing an impermissibly broad no-solicitation rule, Respon- dent engaged in unfair labor practices in violation of Sec- tion 8(aX)() of the Act. 4. By the discharge of Kenneth Rush on August 26, 1977, Respondent engaged in discrimination in regard to hire or tenure of employment or other terms or conditions of employment discouraging membership in or activities on behalf of a labor organization in violation of Section 8(aX3) and (1) 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 It having been found that Respondent has engaged in and is engaging in unfair labor practices in violation of Section 8(aXI) and (3) of the Act, it will be recommended that Respondent cease and desist therefrom and take cer- tain affirmative action designed to effectuate the policies of the Act. It has been found that Respondent discriminatorily dis- charged Kenneth Rush in violation of Section 8(aX3) of the Act. Although the record shows that Respondent has since reinstated Rush, the record is unclear as to whether he has actually been returned to his former position. It will therefore be recommended that Respondent be ordered to offer Kenneth Rush immediate and full reinstatement to his former position, or, if such position no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights or benefits, and make him whole for any loss of pay or benefits he may have suffered as a result of the discrimination against him, as found herein- above, by payment to him of a sum of money equal to that he would have earned as wages or other benefits from Au- gust 26, 1977, to the date of his full reinstatement, less his net earnings during such period, and interest thereon, to be computed in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), and Florida Steel Corpora- tion, 231 NLRB 651 (1977)12 In order to make effective for Respondent's employees the guarantee of rights contained in Section 7 of the Act, it will be recommended that Respondent cease and desist from in any manner infringing upon the rights guaranteed by 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 issue the following recommended: ORDER 13 The Respondent, Huttig Sash & Door Company, Miami, Florida, its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Discharging, laying off, or otherwise discriminating against employees in order to discourage membership in or activities on behalf of Freight Drivers, Warehousemen and Helpers Local Union No. 390, an affiliate of International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization. (b) Coercively interrogating employees concerning union membership, activities, or sympathies. (c) Seeking to have employees report on the union activ- ities or conversations concerning unions of other employ- ees. (d) Granting employee benefits to affect employee membership in, or activities on behalf of, or support of a labor organization. (e) Promulgating or maintaining or enforcing any rule or regulation prohibiting its employees from soliciting on behalf of any labor organization on Respondent's premises during their nonworking time, or prohibiting the distribu- tion of union literature in nonworking areas during em- ployees' nonworking time. (f) 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 which will ef- fectuate the purposes of the Act: (a) Offer to Kenneth Rush, if it has not already done so, immediate and full reinstatement to his former position or, if that position no longer exists, to a substantially equiva- lent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings or benefits he may have suffered by reason of Respondent's discrimination against him as set forth in the section of this Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records neces- sary to facilitate the effectuation of the Order herein. (c) Post at its operations at Miami, Florida, copies of the attached notice marked "Appendix." 4 Copies of said no- tice, on forms provided by the Regional Director for Re- gion 12, after being duly signed by an authorized represen- tative of Respondent, shall be posted by it 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 Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 12, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 12 See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962). In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 14 In the event that this Order is enforced by a judgment of the 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." 576 HUTTIG SASH & DOOR COMPANY APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discharge, lay off, or otherwise discrim- inate against any employee in order to discourage membership in, or support of, Freight Drivers, Ware- housemen and Helpers Local Union No. 390, IBTCWHA, or any other labor organization. WE WILL NOT coercively interrogate employees con- cerning union membership, activities, or sympathies. WE WILL NOT ask employees to report on other em- ployees' union membership, or activities, or conversa- tions concerning the Union. WE WILL NOT grant benefits to employees to discour- age union membership or activities, or support for a union. WE WILL NOT make, maintain, or enforce any rule which prohibits employees from soliciting on behalf of the Union, or any other labor organization, on compa- ny premises during employees' nonworking time, or from distributing union literature on company prem- ises in nonworking areas during employees' nonwork- ing time. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of their rights guaranteed by the National Labor Relations Act, as amended. WE WILL offer to Kenneth Rush immediate and full reinstatement to his former position or, if that position no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earn- ings or benefits which he may have suffered by reason of the discrimination against him, with interest thereon. HUNTIG SASH & DOOR COMPANY 577