Venus Pen and Pencil Corp.

VENUS PEN AND PENCIL CORPORATION 115 WE WILL offer Henry Maez, Andy L. Lucero, Joe Jaramillo, and Gilberto Martinez immediate and full reinstatement each to his former or substantially equivalent position, without prejudice to seniority or other rights and privileges, and we will make each of them as well as Felipe Maez whole for any loss of pay suffered by reason of their discharge on January 26. WE WILL NOT discourage concerted activity among our employees by dis- criminatorily discharging any of them or in any other manner discriminating against them in regard to their hire or tenure of employment or any other term or condition of employment. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their right to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a)(3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. SAN JUAN LUMBER COMPANY, Employer. Dated------------------- By------------------------------------------- (Representative) (Title) NOTE.-We will notify any of the above-named employees presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, 609 Railway Exchange Building, Denver, Colorado, Telephone No. Keystone 4-4151, Extension 513, if they have any question concerning this notice or compliance with its provisions. Venus Pen and Pencil Corporation and Stove, Furnace and Allied Appliance Workers International Union of North America, AFL-CIO. Case No. 26-CA-1436. August 01, 1963 DECISION AND ORDER On May 27, 1963, Trial Examiner Thomas S. Wilson issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Intermedi- ate Report. Thereafter, the Respondent filed exceptions to the In- termediate Report and a supporting brief. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Leedom, Fanning, and Brown]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the In- termediate Report, the Respondent's exceptions and brief, and the 144 NLRB No. 17. 72 7-083-64-v of 144--9 116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD entire record in this case, and hereby adopts the findings,' conclusions, and recommendations 2 of the Trial Examiner. ORDER The Board adopts as its Order the Recommended Order of the Trial Examiner with the following modification : 3 Substitute the following for paragraph 2(a) Offer E. M. Woodard immediate and full reinstatement to the position he held at the time he was discharged, or a substantially equivalent position, without prejudice to his seniority and other rights and privileges, and make him whole for any loss of pay he may have suffered as a result of the discrimination against him, with interest, in the manner set forth in the section of the Inter- mediate Report entitled "The Remedy," as modified by the Board's Decision and Order. 1 The Respondent excepted to the Trial Examiner's resolutions of credibility The Board does not overrule a Trial Examiner's resolutions as to credibility except where the clear preponderance of all the relevant evidence convinces usithat the Trial Examiner 's resolu- tion was incorrect Standard Dry Wall Products, Inc, 91 NLRB 544, 545, enfd 188 F 2d 362 (CA. 3). As no such conclusion is warranted in this case, the exception is with- out merit 2 Having found , in agreement with the Trial Examiner , that Respondent discriminatorily discharged and refused to reinstate E. M Woodard , we shall order that the Respondent offer him immediate and full reinstatement to his former or substantially equivalent posi- tion, without prejudice to his seniority and other rights and privileges . Interest on back- pay at 6 percent per annum shall be computed in the manner set forth in Isis Plumbing d Heating Co , 138 NLRB 716. 3The following changes are hereby made in the notice : ( 1) Substitute the following for the second indented paragraph: WE) WILL offer E M Woodard immediate and full reinstatement to the position he held at 't'ie time he was discharged , or a substantially equivalent position , without prejudice to his seniority and other rights and privileges, and make him whole for any loss of pay he may have suffered as a result of the discrimination against him, with interest thereon at 6 percent per annum. (2) Insert the following immediately below the signature line: WE WILL notify the above -named employee if presently serving in the Armed Foices of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces. INTERMEDIATE REPORT STATEMENT OF THE CASE Upon a charge and an amended charge duly filed on December 19, 1962, and January 30, 1963, respectively, by Stove, Furnace and Allied Appliance Workers International Union of North America, AFL-CIO, hereinafter called the Union, the General Counsel of the National Labor Relations Board, hereinafter called the Gen- eral Counsel ' and the Board, respectively , by the Regional Director for the Twenty- sixth Region (Memphis, Tennessee ), issued its complaint dated January 31, 1963, against Venus Pen and Pencil Corporation, herein called the Respondent The com- plaint alleged that Respondent had engaged in and was engaging in unfair labor 1 This term specifically includes the attorney appearing for the General Counsel at the hearing VENUS PEN AND PENCIL CORPORATION 117 practices affecting commerce within the meaning of Section 8(a)(1) and (3) and Section 2(6) and (7) of the Labor Management Relations Act of 1947, as amended, herein called the Act. Copies of the charge, amended charge, complaint, and notice of hearing thereon were duly served upon the Union and Respondent. Respondent duly filed its answer admitting certain allegations of the complaint but denying the commission of any unfair labor practices. Pursuant to notice, a bearing thereon was held at Lewisburg, Tennessee, on April 9 and 10, 1963, before Trial Examiner Thomas S. Wilson. All parties appeared at the hearing, were represented by counsel or representative, and afforded full opportunity to be heard, to produce, examine, and cross-examine witness, to introduce evidence material and pertinent to the issues, and were advised of their right to argue orally upon the record and to file briefs and propose findings and conclusions or both. At the conclusion of the hearing General Counsel made a short oral argument. A brief was received from Respondent on May 15, 1963 Upon the entire record in the case, and from his observation of the witnesses, I make the following FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Venus Pen and Pencil Corporation is now, and has been at all times material herein, a New York corporation operating a plant known as American Pencil Company at Lewisburg, Tennessee, where it is engaged in the manufacture and sale of pencils. During the past 12 months, Respondent purchased and received at its Lewisburg, Tennessee, plant, directly from points outside the State of Tennessee, goods and ma- terials valued in excess of $1 million. During the same period of time, Respondent manufactured, sold, and shipped from its Lewisburg, Tennessee, plant, directly to points outside the State of Tennessee manufactured products valued in excess of $1 million. The complaint alleges, the answer admits, and I find that Respondent is engaged in commerce within the meaning of the Act. II. THE UNION INVOLVED Stove, Furnace and Allied Appliance Workers International Union of North America, AFL-CIO, is a labor organization admitting to membership employees of Respondent. III. THE UNFAIR LABOR PRACTICES A. The main issue The main issue for decision here is whether Respondent discharged employee E. M. Woodard for reporting to work under the influence of alcohol or for shouting in front of a foreman, Baucom, that he, Woodard, was "100 percent for the Union." B. The facts About October 1962, the Union began an organizing campaign among Re- spondent's employees. Employee E. M. (Sleepy) Woodard, who had been continuously employed by Respondent since March 13, 1950, attended its first meeting, became inter- ested in the Union, and there signed a union authorization card. Thereafter Wood- ard was active in soliciting other employees to sign authorization cards, in attending the weekly union meetings, and in taking an active part therein. On November 7, 1962, the Union petitioned the Board for certification. Respond- ent received notice thereof the following day. One week later, November 15, Woodard and his wife attended another union meeting until about 9:30 p m. when they returned home. That evening prior to the end of the union meeting Woodard admittedly had consumed a half pint of some unspecified alcoholic beverage. A half pint was not unusual consumption for Woodard. Prior to retiring at or about 11 p m. the Woodards had a few words about Woodard's drinking over a cup of coffee. The next morning Woodard arose about 4:30 a.m., had another argument with Mrs. Woodard when she refused to help him bring in the cows, got the cows 118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and milked them, had a big breakfast , and then hitchhiked a ride to Respondent's plant for work arriving at or about his usual time.2 The Farlers , husband and wife, from whom Woodard hitched his ride to the plant in a closed cab truck, neither smelled anything on Woodard's breath nor noted any- thing strange in his behavior. Woodard punched in at 6 . 49 a.m. in the "out" column on Respondent's clock which had to be manually shifted each morning from the "out" column to the "in" column by the first employee punching in, a task not infrequently forgotten. Woodard then proceeded to the restroom to await the 6:55 a .m. bell and to chat with fellow employees who had preceded him there . Woodard lolled on a bench in the restroom while chatting with his fellow employees . Among other bits of conversation, Woodard mentioned the "chewing out" he had received that morning . One employee offered to drive Woodard home again . Others considered that Woodard was "no more strange than usual" that morning . None of them smelled liquor on his breath. A few minutes before the 6:55 a.m. bell rang , Foreman Baucom and Assistant Foreman Jett came into the restroom . As Baucom was washing his hands , Woodard rose and in a loud voice shouted, "Hurrah for the union . I am for it 100 percent." Whereupon Baucom said , "What's the matter with you, boy?" When Woodard answered, "Nothing," Baucom stated that he thought Woodard was drunk and refused to permit Woodard to go to work on his machine , telling him to take the day off Baucom and Woodard then walked to the timeclock where Woodard punched "out" in the clock's "in" column at 6:56 a.m.3 Woodard then proceeded to a cafe where he had a cup of coffee with taximan Pete Fowler. He then hired Fowler to drive him to the bank at Pulaski and thence home. About 9 o'clock Mrs. Woodard met Baucom in the plant and asked what had hap- pened. Baucom said, "Well, Sleepy [Woodard ] came in and there was something wrong with him," that Baucom thought Sleepy was drunk so he told Sleepy to take the day off because he was afraid to let Sleepy run his machine .4 Having been informed by his immediate superior , Foreman Gambill, that his card had been "pulled" on Friday, Woodard did not report at 7 a.m. on Monday but, instead , went in about 8 a.m. to see Personnel Manager Comstock. There is only one point of similarity between the testimony of Woodard and Comstock as to this meeting : Woodard testified that he denied to Comstock that he had been drinking whereas Comstock acknowledged that Woodard did not admit to having been drunk. According to Woodard , after Woodard had denied drinking, Comstock told him that there was to be a meeting of management officials to de- termine whether Woodard was to be discharged or not and that Comstock would let his wife know the result of the meeting . However, according to Comstock, Wood- ard merely stated that he was "sorry and ashamed " and wanted to go back to work, that he had intended to ask for the day off on Friday but that Comstock had told him that "you came on the premises under the influence and you know that's a violation of policy," and stated that he would have Woodard's check ready for him 2 Woodard generally drove to the plant with his wife. The Woodards testified that Woodard hitchhiked this morning because the school bus was late and Dirs. Woodard had to wait to put their son on it. Regardless of whether it was the lateness of the school bus or the words between them that morning , the undisputed fact is that Airs Woodard was late for work that morning. 8 Woodard testified that as he went down the steps Baucom called out that lie would see Woodard on Monday Baucom, on the other hand , testified that in the restroom he had told Woodard that Woodard had automatically fired himself by being on company property in a drunken condition. 4 Baucom's version of this 9 o'clock conversation is considerably different . According to him, Mrs Woodard stated that she knew that Sleepy was drunk and she had not intended for him to come to work that morning, that she had been "hauling him around" at night because he had been drinking "for the last 3 weeks," and that she did not feel hard at Baucom or Respondent for discharging Woodard. Baucom also testified that he told Mrs. Woodard , "We have no alternative but to let him go , because that is the company policy and we can't pass it up on that." This is not the only instance where Baucom 's testimony varied from that of the other witnesses Baucom was the only one to note that Woodard was "off balance " , the only one to note that Woodard's eyes "didn't look right" ; one of very few who "smelled liquor" on Woodard ; and practically the only one to testify that he thought Woodard was "drunk." VENUS PEN AND PENCIL CORPORATION 119 on Wednesday, which was not the regular payday. Comstock also testified that he "was impressed by Mr. Woodard's attitude that morning." Later that morning Mrs. Woodard visited Comstock. Again the testimony was entirely conflicting. According to Mrs. Woodard, she also denied that Sleepy had been drunk and was told by Comstock that there would be a meeting that day to determine Woodard's fate and that he would thereafter let her know but that he was pretty sure Woodard would be reinstated. However, according to Comstock, Mrs. Woodard had merely inquired as to what had happened, had denied that Wood- ard was under the influence of liquor, and then began talking about making changes in the hospitalization policy for the family. The next day Comstock informed Mrs. Woodard that "they decided it [the dis- charge of Woodard] would have to stand the way it was." Thereafter Woodard was paid off and has never since been reinstated. When produced at the hearing Woodard's timecard contained the following nota- tion in pencil: "Pay in full-discharged for drunkenness, cursing employees and general disorderly conduct," and signed by what appears to be the initials "GAW." 5 On or about December 28, 1962, at the suggestion of her brother-in-law, Foreman John Hargrove, Mrs. Woodard saw the then president of Respondent, Sam Linton, in his office and asked about Sleepy's case. Linton answered, "Well, he [Woodard] got pretty ugly and he was fired." Linton then told Mrs. Woodard "how hard the girls were in the department on Mrs. Woodard because she was for the union." Mrs. Woodard remarked that no one knew how she felt about the Union. Linton then said, "Well, I'll tell you one thing, you had better get back out there and let the girls know how you feel about this, because I'm not working anyone out here that I don't want to work and I can always get rid of you. . I'm keeping down on these people that are for the Union and the ones that are for the Union I'll get rid of. . I've run a plant before and I can do it again." Early in January, Mrs. Woodard was sitting in Foreman Hargrove's car in the parking lot when Linton came by and remarked that the two of them "may be brothers and sisters, but . [they] sure didn't look like it and sure didn't act alike." As the two drove off after this remark, Mrs. Woodard inquired what Linton had "against" her. Foreman Hargrove answered, "Well, don't you know? . it is taking a part in that Union." When Mrs. Woodard denied that Linton could know how she felt about the Union, Hargrove said, "Well, nevertheless, he's got you down on his list and I presume he meant for you to be fired since he has already told me he had a list." 6 C. Conclusions 1. The discharge Those are the facts. It seems to me that they speak quite clearly. One week after Respondent knew that it was faced with a union election, an old- time employee shouts out in front of his foreman and his fellow employees that he is 100 percent for the Union. He is thereupon precipitously fired by the foreman present. Admittedly Woodard had had a half pint of whisky the evening before when he and Mrs. Woodard had attended the union meeting. Respondent argues in its brief that Woodard drank one-half pint at dinner and another half pint at the union meet- ing due to the fact that Mrs. Woodard testified that Woodard did his drinking at dinner whereas Woodard himself indicated that some of this drinking, at least, oc- curred at the union meeting. However the only testimony in the record was that there was only one-half pint regardless of where it was consumed. I so find. The evidence is undisputed that that half pint was consumed at or before 9:30 p.m. the previous evening. Unlike Baucom, I claim no expertise on matters of alcoholic beverages, their consumption or effect. Baucom, however, had "seen" plenty of drunks in his 55 years and he "knew." In fact, Baucom made out a good case of drunkenness: Woodard was "off balance," Woodard's eyes "didn't look right," Woodard "wasn't acting right," Woodard talked "loud" and, besides, Baucom smelled liquor on his breath. s Respondent attorney 's information was that the initials were those of George Warner, plant superintendent . Warner did not testify 9 Comstock testified that Linton "left the Company on February 20 and has not been back since." This testimony hardly proves that Linton was unavailable as a witness. He did not testify. Foreman Hargiove did not deny this testimony as it related to him. 120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD There were , however, two things wrong in Baucom 's story. (1) According to Baucom, Mrs. Woodard told him that Woodard had been drinking for "3 weeks" and yet, if that can be believed, Baucom had never before noticed or smelled anything wrong with Woodard throughout that 3-week period. But Baucom had an answer for this. "If [Woodard] hadn't been drinking too late at night . . . I wouldn't have smelled it , I wouldn't have noticed it " But the undisputed testimony here is that Woodard had had nothing to drink after 9:30 p m the night before. (2) The great consensus among those who saw Woodard on the morning of November 16 was against Baucom No one else mentioned Woodard's eyes. One other thought he smelled "something" on Woodard 's breath. And no one else noted the alleged "unbalance ." Even Ray Jett, foreman under Baucom, would only say that Woodard "lust acted more peculiar than ordinary"-whatever that may mean. There was one other, perhaps characteristic, thing about Baucom's testimony. Baucom originally answered the question about the events in the restroom that morn- ing for over two pages of transcript without once mentioning what it was that Woodard had said there-until Respondent's counsel asked him the point blank question . But Baucom had the answer to that also : ". . . but I didn't pay that [Woodard's words] any mind, because that didn't make any difference to me." However, if this explanation can be believed , Baucom was different in this regard than President Linton and Foreman Hargrove , both of whom were on the sensitive side in regard to prounion sentiments In addition to the fact that a majority of all whose opinion on the question of Woodard's being under the influence was sought-and between counsel for the General Counsel and for the Respondent, practically everyone who even had a chance to see Woodard that morning became a witness in the instant proceeding- were opposed to that of Baucom, the only disinterested witnesses to testify were also of the opinion that Woodard was not drunk or under the influence of liquor. The Farlers, husband and wife who drove Woodard in a closed-panel truck to the plant that morning, and Pete Fowler, the taxi driver who drove Woodard to Pulaski and back, smelled nothing and noted nothing indicating that Woodard was under the influence or had been drinking.? There is one other item as to Woodard's condition on November 16. For a person under the influence Woodard had an excellent memory. He recalled that Baucom had scratched out the marks punched on his timecard that Friday morning. When the card was produced , the line Woodard referred to had clearly been erased- and Baucom could not recall whether he, Baucom , had made the erasure or not The addition of the penciled notation regarding "cursing employees and general disorderly conduct" to the "drunkenness " charge on Woodard's card over Warner's initials would indicate that Warner , at least, was not sure that the charge of drunken- ness would stand up under examination. It must also be noted that no one had any idea of any "generally disorderly conduct" on the part of Woodard and that, accord- ing to the testimony of all the witnesses , "cursing" was all but nonexistent that morning. In addition, although Woodard testified that a half pint was not an unusual amount of liquor for him to consume in an evening , he had been for 13 years, as Respondent's brief acknowledges, "a good worker" and the testimony showed that he had never before been absent from work without a good excuse or appeared with liquor on his breath or under the influence. The one notable difference in Woodward on the morning of November 19 was his public announcement of his adherence to the Union. Accordingly I must conclude that Woodward was not drunk or under the influence of liquor on November 16 and that Baucom discharged him on that occasion for displaying his prounion feelings and in order to discourage union adherence and activities in violation of Section 8 (a) (3) and ( 1) of the Act. 2. Interference , restraint, and coercion The comments of President Linton and Foreman Hargrove made to Mrs Wood- ard in the latter part of December 1962 and the early part of January 1963 were 7In his brief Respondent attempts to discredit Farler on the ground that he, like Woodard , was a member of the Union although employed at the plant of another employer I cannot believe that mere membership in the same International union would cause a man to be dishonest on the stand even while testifying regarding another individual in the same union Farler appeared to be an honest witness. Furthermore this argument would not disqualify Mrs. Farler , who also appeared to be an honest witness VENUS PEN AND PENCIL CORPORATION 121 intended to discourage Mrs. Woodard from continuing to engage in activities on behalf of the Union and thus violated Section 8(a)(1) of the Act. The testimony of Mrs. Woodard regarding these conversations remain undenied in the record and, therefore, must be credited both on that account and because Mrs. Woodard impressed me as a witness worthy of credit. ,Even if Linton should be considered as unavailable as a witness, the undenied remarks made by Foreman Hargrove in the automobile constituted interference. restraint, and coercion by themselves. II accordingly find that the above referred to comments by Linton and Hargrove violated Section 8(a)(1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in con- nection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. V. THE REMEDY It having been found that Respondent has engaged in certain unfair labor practices, it will be recommended that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. It having been found that Respondent discriminated in regard to the hire and tenure of employment of E. M. (Sleepy) Woodard by discharging him on Novem- ber 16, 1962, and thereafter refusing to reinstate him, I will recommended that Re- spondent make him whole for any loss of pay he may have suffered by reason of said discrimination against him by payment to him of a sum of money equal to that which he would have earned as wages from the date of the discrimination against him to the date of his reinstatement, less his net earnings during such period, in accord- ance with the formula set forth in F. W. Woolworth Company, 90 NLRB 289, together with 6 percent interest per annum thereon. Because of the varety of the unfair labor practices engaged in by Respondent, I sense an attitude of opposition to the purposes of the Act in general, and hence I deem it necessary to order that Respondent cease and desist from in any manner infringing upon the right guaranteed in Section 7 of the Act. CONCLUSIONS OF LAW 1. Stove, Furnace and Allied Appliance Workers International Union of North America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 2. By discharging E. M Woodard on November 16, 1962, and thereafter refusing to reinstate said employee, thereby discriminating in regard to his hire and tenure of employment and discouraging union activities among its employees, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed to them in Section 7 of the Act, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)( I) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in this case , I recommend that the Respondent, Venus Pen and Pencil Corporation, Lewisburg , Tennessee, its officers , agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership or activities in Stove, Furnace and Allied Appliance Workers International Union of North America, AFL-CIO, or in any other labor organization, by discriminatorily discharging or refusing to reinstate any of its employees or by discriminating in any other manner in regard to their hire or tenure of employment or any term or condition of employment. (b) In any manner interfering with, restraining or coercing its employees in the exercise of their right to self-organization , to form labor organizations , to join or 122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD assist Stove, Furnace and Allied Appliance Workers International Union of North America, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized by Section 8(a) (3) of the Act. 2. Take the following affirmative action which I find will effectuate the policies of the Act: (a) Make E. M. Woodard whole for any loss of earnings he may have suffered as a result of the discrimination against him of November 16, 1962, in the manner set forth in the section of this Intermediate Report entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Recommended Order. (c) Post at its plant in Lewisburg, Tennessee, copies of the attached notice marked "Appendix A." 8 Copies of said notice, to be furnished by the Regional Director for the Twenty-sixth Region, shall upon being duly signed by Respondent's representative, be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive 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 the Twenty-sixth Region, in writing, within 20 days from the date of the receipt of this Intermediate Report, what steps have been taken to comply with the foregoing Recommended Order .9 I further recommend that unless, within 20 days from the date of the receipt of this Intermediate Report, Respondent has notified the Regional Director that they will comply with the foregoing Recommended Order, the Board issue an order requiring the Respondent to take the aforesaid action. s If this Recommended Order is adopted by the Board, the words "A Decision and Order" shall be substituted for the words "The Recommended Order of a Trial Examiner" in the notice If the Board's Order is enforced by a decree of a United States Court of Appeals, the notice will be further amended by the substitution of the words "A Decree of the United States Court of Appeals, Enforcing an Order" for the words "A Decision and Order " 9If this Recommended Order is adopted by the Board, this provision shall be modified to read, "Notify the Regional Director for the Twenty-sixth Region, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, as amended, we hereby notify you that: WE WILL NOT discourage membership or activities in Stove, Furnace and Allied Appliance Workers International Union of North America, AFL-CIO, or in any other labor organization, by discriminatorily discharging or refusing to reinstate any of our employees or by discriminating in any other manner in regard to their hire and tenure of employment or any term or condition of employment WE WILL make E. M Woodard whole for any loss of pay he may have suffered by reason of the discrimination practiced against him together with interest thereon at 6 percent per annum. WE WILL NOT in any other manner interfere with, restrain, or coerce em- ployees in the exercise of their right to self-organization, to form labor organizations, to join or assist Stove, Furnace and Allied Appliance Workers International Union of North America, AFL-CIO, or any other labor organiza- tion, to bargain collectively through representatives of their own choosing, and to engage in any other concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a)(3) of the Act, as amended. NEVADA TANK AND CASING 123 All our employees are free to become, remain , or to refrain from becoming or remaining, members in the above -named or in any other labor organization. VENUS PEN AND PENCIL CORPORATION, Employer. Dated ------------------- By------------------------------------------- (Representative ) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, Seventh Floor, Falls Building, 22 North Front Street, Memphis, Tennessee, Telephone No. Jackson 7-5451, if they have any question concerning this notice or compliance with its provisions. Nevada Tank and Casing and International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths & Forgers, Local #10, AFL-CIO. Case No. 20-CA-23.94. August 31, 1963 DECISION AND ORDER On April 29, 1963, Trial Examiner Eugene K. Kennedy issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the attached Intermediate Report. There- after, the General Counsel filed exceptions to the Intermediate Report and a supporting brief, and the Respondent filed a brief in support of the Intermediate Report. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three- member panel [Chairman McCulloch and Members Rodgers and Fanning]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report and the entire record in this case, including the ex- ceptions and briefs, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, except as noted below.' i We are not convinced that a clear preponderance of all the relevant evidence warrants overruling the Trial Examiner's credibility resolutions with respect to the alleged unlawful statements made by Plant Manager Walker. Accordingly, we agree with the Trial Ex- aminer's finding that such statements were not made . Standard Dry Wall Products, Inc., 91 NLRB 544, enfd. 188 F. 2d 362 (C.A. 3). We agree, without however adopting the en- tire discussion of the Trial Examiner relating to an employer's responsibility for the con- duct of his supervisors , that in the particular circumstances of this case a finding of a violation of Section 8(a) (1) and ( 5) is not warranted on the basis of the statements made by Hughes and Griffith to employees. We concur, therefore, in the Trial Examiner's con- clusions that there was no unlawful refusal to bargain because of such alleged statements, that the strike following unsuccessful bargaining negotiations neither commenced as nor was converted to an unfair labor practice strike, and that there was no possible unlawful discrimination at the end of the strike with respect to a delay in offering reinstatement to four of the economic strikers who had been replaced. However, we find it unnecessary to, and do not , pass upon the Trial Examiner's assumptions arguendo that if Walker made 144 NLRB No. 6.