Hribar Trucking, Inc.

HRIBAR TRUCKING, INC. 327 affected by an agreement requiring membership in a labor organization as a condi- tion of employment as authorized by Section 8(a) (3) of the Act. MARYLAND CITY 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, Sixth Floor, 707 North Calvert Street, Baltimore, Maryland, 21202, Telephone No. 752- 8460, Extension 2100, if they have any question concerning this notice or compliance with its provisions. APPENDIX D 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 Relations Act, as amended, we hereby notify our employees that- WE WILL NOT Solicit, induce, or assist our employees to revoke their previ- ously executed cards authorizing Baltimore Building and Construction Trades Council, AFL-CIO, to represent them for the purpose of collective bargaining, or in any like or related manner interfere with, restrain, or coerce employees in the exercise of their rights guaranteed in Section 7 of the Act, except to the extent permitted by Section 8(a)(3) of the Act. KRUPNIK BROTHERS, INC., 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, Sixth Floor, 707 North Calvert Street, Baltimore, Maryland, 21202, Telephone No. 752- 8460, Extension 2100, if they have any question concerning this notice or compliance with its provisions. Hribar Trucking, Inc. and Milton Frankwick and Teamsters and Chauffeurs Union Local No. 43 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Party to the Contract. Case No. 13-CA- 5041. June 28, 1963 DECISION AND ORDER On March 8, 1963, Trial Examiner C. W. Whittemore 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 Intermediate Report. Thereafter, exceptions to the Intermediate Report and briefs in support thereof were filed by the Respondent and the Party to,the Contract, hereinafter referred to as the Union.' The General Counsel filed a brief in support of the Intermediate Report. 1 By Trial Examiner's order dated November 27, 1962, the Union's petition to inter- vene and participate to the extent of its interest was granted 143 NLRB No. 46. 328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 Rodgers, Leedom, and Fanning]. 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 Inter- mediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions , and recommenda- tions of the Trial Examiner , except to the extent modified herein. The complaint alleged and the Trial Examiner found that the Re- spondent violated Section 8 ( a) (3) and (1) of the Act by discrimina- torily discharging employee Milton Frankwick on June 2, 1962, be- cause he had not made application for membership in, or become a member of, the Union .' In agreement with the Trial Examiner, we find that the record establishes that the Respondent discriminatorily discharged Frankwick on June 2, 1962 , because he was not a member of the Union. On September 12, 1961, representatives of the Respondent and the Union executed a collective-bargaining agreement which contained certain union-security and jurisdiction clauses in effect when Frank- wick was discharged. Frankwick worked for the Respondent as a truckdriver for parts of 1957 and 1961, and again from April to June 2, 1962. He was never a member of the Union. During the period from January to August 1962 , Hribar was noti- fied six times by Leo Lotharius , the Union's business agent, that its em- ployees were behind in their union dues and that some of them had ,not yet joined the Union. About 2 weeks prior to Frankwick 's discharge the Respondent posted its contract with the Union and a notice which read : "Notice to all Drivers, Union Hall will be open on Saturday morning . . . And all members, anyone not belonging to the Union should go down and get their dues paid up." In addition, the contract was posted, at least, in April, May, and June of 1962. On June 2, 1962 , Leo Hribar, president of the Respondent, dis- charged Frankwick after receiving a telephone call from Lotharius, who advised him, among other things , that Frankwick was not a mem- ber of the Union . When Leo Hribar discharged Frankwick , he asked Frankwick : "How come you didn't join the Union , I asked you a long time ago." Frankwick said lie "had got away with it last year and he thought he could get away with it another year." Moreover, the record contains two admissions of Leo Hribar , presi- dent and controlling stockholder of the Respondent , which were 2 See discussion infra. 3 The complaint further alleged that the union security and jurisdiction clauses con- tained in the agreement between the Respondent and the Union were not authorized by Wisconsin law. As we find herein that the foregoing union-security clause does not com- ply with Section 8(a) (3) of the Act, we do not find it necessary to decide whether or not it was authorized under Wisconsin law. HRIBAR TRUCKING, INC. 329 admitted into evidence as General Counsel's Exhibits Nos. 3 and 4 4 One is contained in a pretrial affidavit made to a representative of the Board which reads in part : Frankwick came in late that afternoon (June 2, 1962). I told him he was through. I told him-how come you didn't join the union-I asked you to a long time ago. I told him I had a sign up saying he had to join the union. I asked him if he saw the sign the year before. I told him if he couldn't obey the rules I would have to let him go. Frankwick told me had [sic] had seen the sign the year before and also this year but he didn't see any need to pay the union his money. Leo Hribar also admitted in proceedings before the Industrial Com- mission of Wisconsin that one reason Frankwick was discharged was that: "He would not follow the rules of the company. The contract with the company states we have to have union men." Consequently, as we have found that the Respondent violated Sec- tion 8(a) (3) and (1) of the Act by discriminatorily discharging Frankwick pursuant to its contract with the Union, we shall enter an appropriate order requiring the Respondent to reinstate Frankwick with backpay.1 ORDER The Board adopts as its Order the Recommended Order of the Trial Examiner with the following modifications : 6 1. Paragraph 1(c) shall be amended by adding the word "other" after the words "In any" therein. 4 General Counsel's Exhibit No . 4 is an authenticated copy of a transcript of proceed- ings conducted before the Industrial Commission of Wisconsin , and is the basis of Hribar's statement to the Commission . These proceedings concerned Wisconsin unemployment com- pensation and involved the issue of whether Hribar discharged Frankwick because of mis- conduct or because he was not a member of the Union. We find that both statements in the text which were introduced by the General Counsel as admissions against interest are admissible, and may be used as substantive evidence as well as for purposes of impeach- ment. (See 3'Wigmore, Evidence §§ 1048, 1051 (3d ed ) , C. A. Rafeland Co., 131 NLRB 1191, 1194 , footnote 7; and Pekelis v. Transcontinental & Western Air, Inc, 187 F 2d 122 (C.A. 2).) 5 We find that the Trial Examiner erroneously precluded the Respondent from asserting the union-security clause ,of its collective-bargaining contract as a 'cond'itional, alternative defense in the event the Trial Examiner found that the Respondent discharged Frankwick because he was not a member of the Union . In this regard, the record shows that the Trial Examiner would not consider the contract as a defense unless the Respondent was willing to state unconditionally that one of the reasons Frankwick was discharged was because he failed to become a member of the Union as the contract required . However, we also find that the foregoing error was not prejudicial , because the contract could not be a defense to the discriminatory discharge as it contains a union -security clause which does not 'comply with Section 8(a) (3) of the Act. The clause unlawfully provides in part that new employees "shall make application for membership in the Union immediately upon commencement of the term of employment ." See Philadelphia Sheraton Corporation, 136 NLRB 888, 889 ; and Imperial Wire Company, Inc., 118 NLRB 775, 778. e We also hereby amend paragraph 3 of the Trial Examiner 's Remedy which is incorpo- rated into his Recommended Order, adopted herein, by adding the words "per annum" Immediately after the phrase "6 percent" therein. 330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Paragraph 2 (b) shall be deleted and the following paragraph substituted therefor : (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. 3. The notice shall be amended by deleting paragraph 4 thereof and substituting therefor the following paragraph: WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self- organization, to form labor organizations, to join or assist the above Union, or any other labor organization, to bargain collec- tively through representatives of their own choosing, to engage in concerted activities for the purposes of collective bargaining or mutual aid or protection, or to refrain from any or all such activi- ties, 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. 4. The notice shall also be amended by deleting the "Note" thereof and substituting therefor the following "Note": NoTE.-We will notify the above-named employee if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selec- tive Service Act and the Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE On July 30, 1962, a charge was filed by Milton Frankwick, an individual. On October 31, 1962, the General Counsel of the National Labor Relations Board issued his complaint and notice of hearing thereon . On November 21, 1962, the Respondent filed its answer . The complaint alleges and the answer denies that em- ployee Milton Frankwick was discharged on June 2, 1962, because he had not joined Local No. 43, Teamsters, and in violation of Section 8(a)(1) and ( 3) of the Na- tional Labor Relations Act, as amended . Pursuant to notice, a hearing was held on January 3 and 4 , 1963, in Racine, Wisconsin, before Trial Examiner C. W. Whittemore. At the hearing all parties were represented , and were afforded full opportunity to present evidence pertinent to the issues , to argue orally, and to file briefs . Briefs have been received from the Respondent , General Counsel, and the Intervenor. Disposition of the motion to dismiss the complaint, upon which ruling was reserved at the hearing, is made by the following findings, conclusions , and recommendations. After the close of the hearing a motion to correct the transcript was received from General Counsel. Service of said motion upon other parties is shown upon its face. No objections having been received , said motion is hereby granted and is made a part of the record. Upon the record thus made , and from his observation of the witnesses , the Trial Examiner makes the following: HRIBAR TRUCKING, INC. FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT 331 Hribar Trucking, Inc.,' is a Wisconsin corporation, with its principal office and trucking terminal at Caledonia, Wisconsin. During the year preceding issuance of the complaint the Respondent engaged in transportation operations which constitute a link in the chain of interstate commerce and from such operations it derived a gross revenue of more than $100,000. During the same period it derived a gross income of more than $100,000 for services rendered under contractual arrangements with various enterprises, including Consumers Company, Division of Vulcan Materials Company, for the transportation of building materials including sand, stone, and gravel which was used in the con- struction of highways and expressways within the State of Wisconsin, which high- ways and expressways are essential links in the interstate highway system. Consumers Company, Division of Vulcan Materials Company, is a New Jersey corporation engaged in the sale and supply of building materials and in the operation of its business maintains facilities in various States outside the State of Wisconsin, and annually performs services and/or ships materials and goods between various States of the United States valued at more than $100,000. The complaint alleges, the answer admits, and it is here found that the Respondent is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED Teamsters and Chauffeurs Union, Local No. 43, of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organi- zation within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES A. Setting and issues The chief issue raised by the complaint is whether the admitted discharge of em- ployee Milton Frankwick on June 2, 1962, was in violation of Section 8(a)(1) and (3) of the Act. The complaint also alleges as violative of the same sections of the Act certain clauses in a contract effective at material times between the Respondent and Local No. 43. B. The discharge of Frankwick Before being recalled for work in April 1962, Milton Frankwick had hauled road materials as a truckdriver for the Respondent in the seasons of 1957 and 1961. He had never joined Local No. 43, but in 1957 had been a member of another local of the same international. When rehired in 1961 he was told by Leo Hribar, head of the Respondent, that he must join Local No. 43, but he failed to do so and worked during the remainder of that hauling season. At various times during his employment he was advised by Hribar to have $5 or $10 in his pocket and if "stopped" by a union representative to give him the money and "he will let you work." a About or shortly before noon on June 2 Frankwick was in his truck at the Con- sumers Quarry yard, waiting for the one truck ahead to be loaded. An individual identified later as Lotharius, head of Local No. 43, suddenly appeared on the running board and asked Frankwick how he "was fixed with union dues." The driver asked who he was. Lotharius gave his name. Frankwick asked for some identification, remarking that if he was expected to "pay money out" he wanted to know who was getting it. Lotharius then called Frankwick a foul name. Apparently not complimented Frankwick demanded an apology. Lotharius ran ahead to the equipment loading the truck ahead and told the operator not to load Frankwick's truck.3 'At the opening of the hearing the word "Leo" was stricken from the caption as it appeared in the complaint 2 Frankwick's testimony concerning the receipt of such "advice" is not disputed And Hribar admitted that he knew Frankwiek was not a member of Local No 43 throughout 1961 and at the time of his discharge in 1962 8 Frankwtck was a forthright and impressive witness ; his version of the incident is accepted as more reasonable of belief than that offered by Lotharius. Although the union agent denied that he called Frankwick any name, and claimed that he merely asked him if 332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD From the conflicting testimony of Lotharius and Frankwick it seems reasonably to be inferred that Frankwick, who looms some 6 feet 4 inches, was further dis- pleased by the order not to load his truck, given by someone who had not satis- factorily identified himself, especially as to authority to halt the loading. And while there can be little doubt that words were passed, and that both Frankwick and Lotharius are articulate, even Lotharius' extravagant testimony, if credited, fails to support any finding of actual violence. About 3 o'clock that afternoon Frankwick returned to the Respondent's terminal. While "gassing up" his truck, he was approached by Hribar, who promptly told him that he was "through." The driver asked why. Hribar told him it was because of his "not being in the union" and because of his "run-in" with Lotharius at the quarry. Hribar further said that this would never have happened if he had done as told to do many times-get into the Union. He said that Lotharius had called him and told him not to "send" him "out any more," and that he would not be permitted to work in Racine County again? Frankwick was paid off and has not been reinstated. The Trial Examiner is inclined to believe that Hribar was precipitated into firing Frankwick by fear of retaliation by Lotharius who, according to Hribar's affidavit referred to in a foot- note below, had called him and "told me to let the man go." Since Hribar's own testimony makes it plain that he did not ask Frankwick about the "run-in" it would appear that the altercation itself was a minor matter. And his immediate response to the effect that his nonmembership was the reason for the discharge indicates that this matter was uppermost in his mind, suggesting that had Frankwick in fact become a member, as he had urged, the incident at the quarry would not have taken place. Since the Respondent makes no claim-but specifically denies-that Frankwick was discharged pursuant to any contract with Local No. 43, the Trial Examiner con- cludes and finds that by discharging Frankwick on June 2, 1962, for the stated reason that he was not a member of that labor organization, the Respondent violated Section 8(a) (3) of the Act and interfered with, restrained, and coerced employees in the exer- cise of rights guaranteed by Section 7 of the Act. Such action tended clearly to encourage membership in a labor organization, and such discrimination in employ- ment is prohibited by Section 8(a) (3) unless it is invoked pursuant to a valid union- security agreement. Since the Respondent does not raise the proviso of Section 8(a)(3) as a defense- and specifically disclaims that the discharge was pursuant to any such agreement, it appears unnecessary to consider the allegation of the complaint, and the position urged by General Counsel in his able brief, to the effect that Frankwick actually was discharged pursuant to an existing agreement but that the contract was unlawful under the Federal Act because certain provisions of a Wisconsin law had not been complied with. General Counsel sums the matter up properly in his brief: "Frank- wick was fired because Lotharius demanded that he be fired." It follows that such action tends to encourage membership in Local No. 43. To discharge an employee to encourage union membership is prohibited by Section 8(a)(3) of the Act-unless such act of encouragement falls within the proviso of that same section. Defense under the proviso being disclaimed, it appears that it is immaterial to the discharge issue. he was a union member, he did not deny telling the equipment operator not to load the driver's truck. Nor can the Trial Examiner rely upon the testimony of Parr, a Consumers' employee, a witness called by the Respondent for the apparent purpose of corroborating Lotharlus Parr placed the incident as occurring in the afternoon, between 1 :30 and 2 •30 Both Lotharius and Frankwick were in agreement that it took place about or just before noon. And Parr's account is seriously inconsistent with that of Lotharius in other respects, notably as to where the altercation took place and the number of trucks await- ing loading. 4 The findings as to the discharge interview are based upon the driver's credible testi- mony. Although much of Hribar's later testimony is a remarkable maze of self- contradictions and inconsistencies, culminating in his candid admission that it was his custom under oath "to tell anybody anything," when first called as an adverse witness by General Counsel be agreed that when Frankwick asked why he was being fired be had re- plied by saying: "How tome you didn't join the Union, I asked you [to] a long time ago." In an affidavit executed before a Board agent in August 1962, which Hrlbar at first dis- avowed but finally conceded to be the truth, he stated that at the time of discharging Frankwick he reminded him that "I lead a sign up saying he had to join the union." HRIBAR TRUCKING, INC. 333 C. The contract The complaint alleges and the answer admits that during the material period there has existed a contract between the Respondent and Local No. 43 containing, among others, the following provisions: ARTICLE 1. Union Security Clause It is understood and agreed by and between the parties thereto that as a condition of continued employment, all persons who are hereafter employed by the Employer in the unit which is the subject of this agreement shall make ap- plication for membership in the Union immediately upon commencement of the term of the employment and become a member of the Union on or immediately after the thirtieth day following the beginning of their employment and that the continued employment by the Employer in said unit of persons who are already members in good standing of the Union shall be conditioned upon those persons continuing their payment of the periodic dues of the Union. The failure of any person to make application to and become a member of the Union within said period of time shall obligate the Employer, upon written notice from the Union to such effect and to the further effect that union membership was available to such person upon the same terms and conditions generally available to other members, to forthwith discharge such person. Further, the failure of any per- son to maintain his union membership in good standing by failure to pay the periodic dues of the Union shall, upon written notice to the Employer by the Union to such effect, obligate the Employer to discharge such person. ART. 2. Jurisdiction It is agreed between the parties hereto that the terms and conditions of this agreement shall apply to all mechanics, truck drivers, helpers, yardmen and warehousemen in the employ of the Employer, but shall not apply to owners of vehicles who operate their own vehicles under lease and agreement with Employer. Such owner operators shall be governed by their respective separate agreements with Employer. It is further agreed that all trucks shall be driven by members of Teamsters and Chauffeurs Union Local No. 43 (unless sanctioned by the Local Officers). The complaint further alleges and the answer concedes that: At no time material herein has a referendum election been conducted by the Wisconsin Employment Relations Board, pursuant to Chaper M. Sub-chapter I, Section 111.06 of the Wisconsin Statutes to determine whether at least two- thirds of the Respondent's employees voting by secret ballot are in favor of and thereby authorize the union security provisions contained in paragraph VI (b) above. Finally, the complaint alleges that by "maintain[ing] in effect and enforc[ing]" the contract containing the above provisions, the Respondent has violated and is violating Section 8(a) (1) and (3) of the Act. The answer denies that the union-security clause, quoted above, has been enforced and states that it has not been enforced "because no referendum election had been conducted by the Wisconsin Employment Relations Board." Undisputed testimony supports the Respondent's position as to the "enforcement" of the questioned clause-insofar as enforcement is considered within its general definition, actually invoking it as an instrument of discharge. The testimony at the hearing is uncontradicted that a number of the Respondent's drivers then employed were not and had not been required to join Local No. 43 to retain their employment. As to the union-security clause as a whole, it therefore appears unnecessary under the circumstances of this case to venture speculation as to whether or not its mere existence in the contract is violative of the Federal law for the sole reason that certain regulatory provisions of a State law have not been complied with. As to the provision in the union-security clause requiring new employees "as a condition of continued employment" to "make application of membership in the Union immediately upon commencement of the term of employment," and the unqualified requirement in the "Jurisdiction" clause to the effect that all trucks must be driven by members of Local No. 43, the Trial Examiner fully agrees with General Counsel's contention in his brief that the inclusion of such provisions and require- ments in a contract, whether actually enforced or not, are violative of Section 8(a)(1) of the Act. He properly cites, in support of his position, Port Chester Electrical Construction Corporation, 97 NLRB 354, at 355, where the Board said: 334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We agree with the Trial Examiner that the Respondent Company and the Respondent Union respectively violated Section 8(a)(1) and 8(b)(1)(A) of the Act by retaining an unlawful closed shop provision in their contract, which they neither intended, to nor did in fact, enforce. Such an unlawful provision serves no less as a restraint on employees' right to refrain from joining an organization than if the parties intend to enforce ... . It is established, in the instant case, that Hribar posted the contract in its entirety, and that he did not post any disclaimer that the offensive provisions would not be enforced. The Trial Examiner therefore concludes and finds that by maintaining in the current contract the two provisions above cited, the Respondent is interfering with, restraining, and coercing employees in the exercise of rights guaranteed by Section 7 of the Act. And because the remedy recommended would be the same, whether or not the same provisions are also violative of Section 8(a)(3) is a point the Trial Examiner deems it unnecessary to pass upon. 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 commerce and the free flow of commerce. Upon the basis of the foregoing findings of fact and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. Teamsters and Chauffeurs Union Local No. 43 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America is a labor organiza- tion within the meaning of Section 2(5) of the Act. 2. By discriminating as to the tenure of employment of Milton Frankwick, thereby encouraging membership in the above-named labor organization, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 3. By interfering with, restraining, and coercing employees in the exercise of rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices within the mean- ing of Section 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent has engaged in unfair labor practices the Trial Examiner will recommend that it cease and desist therefrom and take certain affirma- tive action to effectuate the policies of the Act. It will be recommended that the Respondent offer Milton Frankwick immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings he may have suffered by reason of the unlawful discrimination against him, by payment to him of a sum of money equal to that which he would normally have earned as wages, absent the discrimination, from the date of his discharge to the date of offer of reinstatement, in the manner prescribed by the Board in F. W. Woolworth Company, 90 NLRB 289. The backpay obligations of the Respondent shall include the payment of interest at the rate of 6 percent to be computed in the manner set forth in Isis Plumbing & Heating Co., Inc., 138 NLRB 716. It will also be recommended, in accordance with the Board's Order in the Port Chester case cited herein, that the Respondent cease and desist from continuing to include in its collective-bargaining agreement with Local No 43, or with any other labor organiziation, any provisions which require membership in such union as a condition of employment except as authorized in Section 8(a)(3) of the Act. In view of the serious and continued nature of the Respondent's unfair labor prac- tices, it will be recommended that it cease and desist from in any manner infringing upon the rights of employees guaranteed by Section 7 of the Act. HRIBAR TRUCKING, INC. 335 RECOMMENDED ORDER Upon the basis of the above findings of fact and conclusions of law, and upon the entire record in the case, the Trial Examiner recommends that Hribar Trucking, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Encouraging membership in Teamsters and Chauffeurs Union Local No. 43 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America, or in any other labor organization, by discharging, laying off, or refusing to reinstate any of its employees or in any other manner discriminating in regard to hire or tenure of employment, except as authorized in Section 8(a) (3) of the Act. (b) Continuing to include in its collective-bargaining contract with the above- named or with any other labor organization any provision which requires member- ship or application for membership in such union as a condition of employment, except as authorized in Section 8(a)(3) of the Act. (c) In any manner interfering with, restraining, or coercing employees in the exer- cise of their right to self-organization, to form labor organizations, to join or assist any labor organization, to bargain collectively through representatives of their own choosing, 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. 2. Take the following affirmative action, which will effectuate the policies of the Act: (a) Offer Milton Frankwick immediate and full reinstatement to his former or sub- stantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole in the manner set forth in the section entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records and all other records necessary to analyze and compute the amounts of backpay with interest due under the terms of these Recommendations. (c) Post at its terminal in Caledonia, Wisconsin, copies of the attached notice marked "Appendix." 5 Copies of said notice, to be furnished by the Regional Director for the Thirteenth Region, shall, after being duly signed by the Respondent, be posted by it immediately upon receipt thereof and 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 the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for the Thirteenth Region, in writing, within 20 days from the date of the receipt of this Intermediate Report and Recommended Order, what steps the Respondent has taken to comply therewith.6 I In the event that this Recommended Order be adopted by the Board, the words "A De- cision and Order" shall be substituted far the words "The Recommended Order of a Trial Examiner" in the notice. In the further event that the Board's Order be enforced by a decree of a United States Circuit Court of Appeals, the words "A Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "A Deci- sion and Order." 6 In the event that this Recommended Order be adopted by the Board, this provision shall be modified to read: "Notify said Regional Director, in writing, within 10 days from the date of this Order, chat steps the Respondent has taken to comply herewith." APPENDIX 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 Relations Act, as amended, we hereby notify you that: WE WILL NOT encourage membership of any employee in Teamsters and Chauffeurs Union Local No. 43 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or in any other labor organization, by discharging or layng off any employee, or in any other manner discriminating against any employee in regard to hire, tenure of employment, 336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD or any term or condition of employment, except as authorized in Section 8(a) (3) of the Act. WE WILL NOT continue to include in our collective -bargaining contract with the above-named labor organization, or with any other labor organization, any provision whicih requres membership or application for membership in such union as a condition of employment, except as authorized in Section 8(a)(3) of the Act. WE WILL NOT interfere with, restrain, or coerce employees in any other man- ner in connection with the exercise of the right to self-organization , to form labor organizations, to join or assist the above-named or any other labor organization, to bargain collectively through representatives of their own free choice and to engage in other 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 agree- ment requiring membership in a labor organization as a condition of employ- ment, as authorized in Section 8(a) (3) of the Act. WE WILL offer Milton Frankwick immediate and full reinstatement to his former or substantially equivalent position without prejudice to his rights and will make him whole for any loss of pay suffered as a result of our discrimina- tion against him. HRIBAR TRUCKING, INC., Employer. Dated------------------- By------------------------------------------- (Representative ) (Title) NOTE.-We will notify Frankwick, in the event he is presently serving in the Armed Forces of the United States, of his right to full reinstatement upon applica- tion in accordance with the Selective Service Act 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, 176 West Adams Street, Chicago, Illinois, 60603 , Telephone No. Central 6-9660, if they have any queston concerning this notice or compliance with its provisions. Industrial Steel Products Company, Inc. and Shopmen's Local Union 760, of the International Association of Bridge, Struc - tural & Ornamental Iron Workers, AFL-CIO. Cases Nos. 15-CA-2160 and 15-RC-2548. June 28, 1963 DECISION AND ORDER On March 28, 1963, Trial Examiner Morton D. Friedman 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 Inter- mediate Report. He also found that the Respondent had not engaged in certain other unfair labor practices and recommended dismissal of the complaint as to them. He further found that the Respondent had interfered with the election of July 17, 1962, and recommended that it be set aside. Thereafter, the Respondent filed exceptions to the Intermediate 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 these cases to a three- 143 NLRB No. 19.