River Mfg. Corp.

662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD exclusive representative of the employees in the bargaining unit described below. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL, upon request, bargain with the above-named Union, as the exclusive representative of all employees in the bargain- ing unit described below with respect to rates of pay, wages, hours of employment, and other terms and conditions of employ- ment and, if an understanding is reached, embody such under- standing in a signed agreement. The bargaining unit is: All our production and maintenance employees, excluding all office clerical employees, guards, and supervisors as defined in the Act. J. BRENNER & SONS, 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, Telephone No. 752-2159, if they have any questions concerning this notice or compliance with its provisions. Rivers Mfg. Corp. and International Union of Mine, Mill and Smelter Workers. Cases Nos. 26-CA-1991 and 26-CA-2022. August 23,1965 DECISION AND ORDER On May 17, 1965, Trial Examiner C. W. Whittemore issued his Decision in the above-entitled proceeding, finding that the Respond- ent had engaged in and was engaging in certain unfair labor prac- tices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, Respondent and General Counsel filed exceptions to the Trial Examiner's Decision with supporting briefs. 154 NLRB No. 51. RIVERS MFG. CORP. 663 Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Members Brown, Jenkins, and Zagoria]. 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 Trial Examiner's Decision, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings,' conclusions, and recom- mendations 2 of the Trial Examiner.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner, as modified herein, and orders that the Respondent, Rivers Mfg. Corp., Center- ville, Tennessee, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as so modified : 1. Reletter paragraph (c) of section 1 of the Recommended Order as paragraph (d) and insert the following as paragraph (c) : "(c) Continuing to use application blanks containing unlawful interrogations as to union affiliation, past or present." 2. Delete paragraph (a) of section 2, insert the following para- graph between paragraph (b) and paragraph (c), section 2, and re- letter all the paragraphs in that section accordingly : "(b) Reinstate the practice of giving its employees the paid holi- days, sick pay, and vacations canceled on December 26, 1964, and make the employees whole for any losses they may have suffered by reason of that cancellation." 'The Respondent has excepted to the credibility findings made by the Trial Examiner. It Is the Board's established policy, however, not to overrule a Trial Examiner's resolu- tions with respect to credibility unless, as is not the case here, the clear preponderance of all the relevant evidence convinces us that the resolutions were incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544, enfd. 188 F. 2d 362 (C.A. 8). 'Although the Trial Examiner found that Respondent's announcement of the termina- tion of all paid holidays, sick pay, and vacation was a violation of Section 8(a) (1), he failed to include a remedial order to correct the actual cancellation of these benefits. We shall correct this inadvertent omission and, accordingly, amend the order to direct the reinstatement of these benefits. We shall also modify that portion of the Recommended Order In which the Trial Examiner directed Respondent to destroy completed application forms and direct that Respondent cease and desist from the continued use of the illegal forms. s Respondent excepts to the Trial Examiner's statements In section III, A and B, of his Decision that the discharges were "admittedly" summary and that it was "undisputed" that Baker warned Sanders against talking about the Union. Whether or not these matters were conceded, the findings are supported by the record. Nor do we find merit in the Respondent's argument that the Trial Examiner misled it at the hearing by stat- ing that he was satisfied that Baker was not a foreman. The record clearly reveals that the Trial Examiner commented that, as of that time, if no further evidence were adduced, be would find that Baker was not a supervisor, but thereafter additional evidence was introduced which the Trial Examiner notes and relies upon In his Decision. 664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. Amend the second paragraph of the Appendix to read as follows : WE WILL NOT threaten you with reprisals or grant or revoke any benefits to discourage you from joining any union. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE A charge and an amended charge in Case No. 26-CA-1991 were filed by the above-named labor organization on December 11, 1964, and January 25, 1965, respectively. A charge was filed by the same labor organization in Case No. 26- CA-2022 on February 1, 1965. On February 12, 1965, an order consolidating the two cases and a consolidated complaint were issued and served by the General Counsel of the National Labor Relations Board. Thereafter an answer dated March 6, 1965, was filed by the above-named Respondent. The complaint alleges and the answer denies that the Respondent has engaged in and is engaging in unfair labor practices in violation of Section 8(a) (1) and (3) of the National Labor Relations Act, as amended. Pursuant to notice, a hearing was held in Centerville, Tennessee, on March 29 and 30, 1965, before Trial Examiner C. W. Whittemore. At the hearing General Counsel and the Respondent were represented by counsel and were afforded full opportunity to present evidence pertinent to the issues, to argue orally, and to file briefs. Briefs have been received from both parties. Upon the record thus made, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Rivers Mfg. Corp., is a Tennessee corporation, with plant and principal place of business in Centerville, Tennessee, where it is engaged in the manufacture of out- door plastic signs. During the year preceding issuance of the complaint it made, sold, and shipped finished products valued at more than $50,000 directly to points outside the State of Tennessee. The complaint alleges, the answer admits, and it is here found that the Respond- ent is engaged in commerce within meaning of the Act. H. THE CHARGING UNION International Union of Mine, Mill and Smelter Workers is a labor organization admitting to membership employees of the Respondent. IH. THE UNFAIR LABOR PRACTICES A. Setting and major issues The chief violations of the Act alleged by the complaint stem from the admittedly summary discharge of five employees on October 2, 1964, and of four others on various dates thereafter, up to and including December 7, 1964.1 It is General Counsel's contention, denied by the Respondent, that the purpose of such discharges was to discourage union membership and activity. General Counsel's claim is also disputed by the Respondent that these dis- missals occurred during a continuing period of unlawful interference, restraint, and coercion of employees in their exercise of rights guaranteed by Section 7 of the Act. B. Interference, restraint, and coercion It appears that James Sanders, a welder who had been hired in August 1964, assumed leadership among the Respondent's some 80 employees in efforts toward 'On October 2: Billie Joe Brown, Sammy Haley, Edward Shelton, William Mayberry, and James Sanders ; on November 27: Ronald Gossett and Herbert Hatley ; on Decem- ber 2: Calvin Johnson ; and December 7: Bruce Green. RIVERS MFG. CORP. 665 self-organization during the latter part of September 1964. As a welder receiving only $1.25 an hour-the minimum wage prescribed by law-he was understand- ably dissatisfied. While working on the second shift, under Foreman Lonnie Baker, Sanders complained to Baker about his low wages, declaring that he might as well go back to sweeping, where at least he would not "burn up" his clothing, and further voiced the opinion that "we needed a union around here." It is undisputed that Baker warned him that he "wouldn't be there very long" if he talked about the Union.2 Shortly after Baker's warning to Sanders, apparently, Plant Supervisor Barber approached the employee, while he was still on the second shift, and, according to Sanders' credible testimony, asked how he was "getting along." The employee repeated his complaint about wages and the need for a union. Barber asked him directly if he would be in favor of a union, and the employee replied that he "sure would " (Barber's denial that Sanders ever spoke to him about a "union" is not credited.) On or about September 23 Sanders himself signed a union authorization card and obtained signatures to similar cards from other employees. Their sudden lay- offs on October 2 are discussed in a later section. The following findings as to incidents occurring after this first layoff are based upon the credible testimony of the employees involved which to a large degree is supported, insofar as they related to President R. T. Rivers, by admissions against interest in an affidavit he gave to a Board agent before the hearing, and by his admissions as a witness in this proceeding: (1) Employee Ray McFarlin signed a union card the night of November 5, 1964. The next day he was called to Rivers' office, where the latter told him he assumed he had signed a union card. McFarlin admitted that he had. Rivers then asked him what he thought a union card could do for him, and then instructed him to send in another employee, Marvin Ferguson. (2) Pursuant to Rivers' instructions, Ferguson came to the office, where the president asked him if he was "mixed up" in this "union trouble" and if he had signed a card. Ferguson admitted the fact, whereupon Rivers asked how many others had signed. The employee said he did not know.3 (3) According to his own affidavit, Rivers admitted: "I have asked about five or six employees (M. Ferguson, Ray McFarlin, Lonnie Qualls, Dewey Gordon, Hugh Coleman) . how many employees had signed cards." (4) The same affidavit contains this admission: "I have told employees in my office since November 29 that I had heard they had gone to union meetings. This was asked of Ray McFarlin and Marvin Ferguson in my office." (5) Shortly after mid-November Rivers went into the plant and asked employees Swope and Constant if they had heard any "union talk." Swope admitted that he had. Rivers then asked them to report to him "any talk" they heard. (As a witness Rivers admitted the foregoing facts.) (6) On December 4 Rivers asked employee Dewey Gordon if he had been attending union meetings. Gordon admitted that he had been. Two days later Rivers asked him if he had signed a union card. (7) In his affidavit Rivers admits- "I have asked employees if they were taking part in the Union. I have asked about half of the employees at the plant since about November 29 at various places and at various times." 2 The quotations above are from Sanders' credible testimony. Baker merely replied in the negative when asked leading questions as to whether he "discussed" Sanders' union activities with the employee and as to whether he had any knowledge of the employee's interest in a union As to Baker's supervisory capacity, the answer's denial that he possessed such is refuted not only by Respondent's counsel when calling Baker as "night foreman of the steel shop" but by his questions concerning the quality of work performed by employees under him which clearly indicate that Baker was considered a management representative Finally, the following quotation from an affidavit given to a Board agent by R T. Rivers, head of the company, and received in evidence as admissions against interest, states. "Lonnie Baker (and others named) are supervisors for the company. They are dep't foremen They direct employees in their (employees) work. They are in charge of the employees in their respective departments as to what work is to be done. Their word is almost the final say-so as to the discharge of an employee " 3In substance Rivers admitted or did not deny the interrogation attributed to him by these two employees, although he placed the incidents as occurring shortly before Thanksgiving 666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (8) Also early in December employee Ferguson was again called into Rivers' office, where this official said there had been a meeting the night before and asked if he had attended. When Ferguson replied that he did not go, Rivers asked if he intended to go to the meeting that night. (9) In mid-November Foreman Gilliam4 asked employee Qualls to come by his house after working late. According to Gilliam's own testimony he warned the employee that he "probably could do better if he didn't get in the Union." Accord- ing to the employee's credible testimony, the foreman told him that if he did not take part in the Union he would probably "have a better chance of gaining more pay, rise in position, or whatnot." (10) In his affidavit Rivers admits that in his talk with McFarlin in November, and after the employee "mentioned something about seniority and raises" he promised this employee "and 5 or 6 others" that they were going to get raises soon. (11) On December 7 Rivers called employee Qualls into the office and told him that he had heard he was taking part in "outside activities." After remarking that he hoped he would not "take part in the Union," Rivers warned that if the Union came in "it would force the employees to lose time from their job." (The quota- tions are from the employee's credible testimony.) (12) On December 8 Rivers called Qualls, McFarlin, and several others to the office, accused Ferguson of being the Union' s ringleader in the plant, asked how many had signed cards and what good they thought the Union would do them, and warned them that if the Union were in the plant it would "hurt our elbow room and flexibility." He informed them that he had called James Sanders' father, asked if he knew his son had been "mixed up" in the Union, and had told him that his son probably would never work at the plant again. Rivers, after these severe warnings, promised those assembled a raise in wages (a promise which was kept some 10 days later), and urged them to withdraw or revoke their union cards. They asked him to leave the office so they could discuss the matter among them- selves. Finally they called Rivers back, and told him they would agree to with- draw from the Union. (13) Early that afternoon these employees returned to the office, where Rivers had a copy of a revocation letter which he read to them and copies of which he said he would have his office girl prepare for them. (14) Later the same day Rivers and General Manager Lancaster assembled all plant employees at the entrance. Rivers named the employees who had agreed to withdraw from the Union and, in effect, urged others who had signed cards to do the same. He told them that letters of revocation would be ready for them and their signature in the office, and that they were all to file through this office for that nurpose. (15) Lancaster then announced that beginning January 1 all paid holidays, sick pay, and vacations would be cut off. (16) Pursuant to Rivers' instructions, employees filed through the office, and several signed the revocation letters. (17) The next day Rivers asked employee McFarlin to let him know if anyone else wanted to revoke their card. (18) Applicants for employment, according to Rivers' affidavit, are required to fill out forms containing the question: "Are you now, or have you ever been a member of any union' . . . If yes, give details." (The complaint fails to allege such interrogation of applicants as a specific violation of the Act, although the fact is firmly established by the admission against interest, in an affidavit put in evidence without objection by the Respondent, and since so flagrant a violation should clearly be remedied, I find that such interrogation of an applicant for employment is a violation of Section 8(a)(1) of the Act The record contains credible evidence of additional violations of the same section of the Act, as General Counsel notes in his comprehensive brief. So general and widespread are the admissions by Rivers, however, that I perceive no good purpose in burdening this Decision with more instances. I conclude and find that the foregoing findings of interrogation, threats of reprisals, promises of raises, and granting of raises, reprisals in fact, creation of the impression of surveillance, and persuasion of employees to report union activ- ities of others as well as Rivers' inducement of employees to revoke their union cards, fully support the complaint's allegations of unlawful interference, restraint, • Admitted by Rivers in his affidavit, as noted above, to be a management representative. RIVERS MFG. CORP. 667 and coercion . They also establish beyond reasonable question the employer's marked hostility toward self-organization by his employees, a significant factor to be considered in determining the real reason for the several discharges described in the section following. C. The discharges The October 2 dismissals: In this setting of intensive and extensive interference, restraint, and coercion, the Respondent terminated the employment of nine employees between October 2 and December 7, 1964, employees who, as will be noted below, were known by management to be union adherents. Five of the dismissals occurred on October 2 and included James Sanders, above found to have initiated the union campaign late in September, Billie Joe Brown, Sammy Haley, Edward Shelton, and William Mayberry. All four had signed union cards for Sanders on September 23 or 24. Shelton solicited signatures from others. And Mayberry's interest in being a member of a labor organization was plainly well known to management, since he had admitted on his application form, when hired, that he was a member of a union, and while employed always had a union sticker displayed on his car in which he rode to work. In view of Rivers' admission that he had queried at least "half of the employees at the plant" concerning their "part in the Union," and despite his claim that he did not begin such widespread interrogation until late in November as well as his denial that he knew of the union adherence of the five discharged on October 2, I conclude and find that at the date of the discharges management was aware of their organizing efforts The employer's demonstrated resolution to deprive his employees of their lawful rights has been clearly revealed by findings in the foregoing section. The evidence sustaining General Counsel's allegations that these October 2 dis- charges were designed to discourage further self-organization is overwhelming. And it appears unnecessary to describe in detail the confused and in some cases contradictory testimony adduced by the Respondent in its attempt to show that economic necessity occasioned the layoffs and "unsatisfactory work" was the reason for selection of the individuals. The claim of lack of work is flatly refuted by the fact that during this same period the Respondent not only advertised for help, but actually hired new employees. (As will be pointed out later, at least four new employees were hired shortly after October 2 who, themselves, became union adherents and were promptly discharged.) In short, I can find no merit in the Respondent's claims It is concluded and found that the above-named five employees were discharged on October 2, 1964, to discourage union activity, and that by such unlawful dis- crimination the Respondent interfered with, restrained, and coerced employees in the exercise of rights guaranteed by the Act. The November 27 discharges: Employees Gossett and Hatley were dismissed on this date. Both had been hired after October 2, when Rivers claims there was "lack of work." Gossett had been working only a week when he was summarily and without warning fired. Hatley, who was hired on October 21, signed a union card on November 6 and proceeded to solicit other employees to follow suit. On the night of November 24, in company with a union representative, Hatley visited the homes of employees. When he arrived home the night of November 27 he opened his pay envelope and found attached to his check a slip announcing that he was dismissed for "unsatis- factory work." Since he had not been warned about any bad work, he returned to the plant the next day to ask Personnel Manager Allred what the reason was. Allred refused to see him. Gossett was hired November 19. He signed a union card in the plant parking lot on November 25 and, like Hatley, visited the homes obtaining signatures to union cards from other employees. It is undisputed that on November 27 Arnold asked him to work the next day, a Saturday. Yet upon getting his paycheck later that Friday he found stapled to the check a notice that he was fired for "unsatis- factory work." He returned to the plant and asked Arnold if he knew why he had been fired. Arnold said he did not know. The following Monday he tried, like Hatley, to see Allred, but was refused an interview by the personnel manager. These two dismissals occurred after Rivers readily admitted he had begun his campaign of interrogation . It is found that the activities of these two employees were well known to him at the time of the discharges. 668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I cannot credit the general and unspecific claims by Supervisors Barber and Arnold, made in response to clearly leading questions, that the two were "unsatis- factory." It is concluded and found that both employees were discharged to dis- ,courage union membership. Such discrimination interfered with, restrained, and coerced employees in the exercise of rights guaranteed by the Act. Calvin Johnson. Johnson was also hired after the October 2 dismissals. He was employed on November 20 and fired on December 2, within a few hours after Rivers, as admitted both in his affidavit and as a witness, had learned that the employee had signed a union card and "was soliciting signatures for the Union." (Rivers was told of Johnson's activity, according to his own admission, by one Swope who, as found in the preceding section, had been asked by him to inform on his fellow employees.) As a witness, however, Rivers contended that he kept this information to him- self, and that it had nothing to do with the discharge. He declared on the witness stand, in a burst of almost childish naivete, that upon discovering that Barber had fired Johnson, he told Lancaster in "those very words ... Oh, my, he is a member of the Union." In rambling, confused testimony, drawn by leading questions, three supervisors, Barber, Arnold, and Baker, all declared that Johnson's work was unsatisfactory- although the employee had been there less than 2 weeks. Baker merely and blandly declared that all Johnson's work had to be "done over." Arnold, who at first admitted, "I don't remember, to tell the truth," when asked if he had made any "specific statement" to Barber about Johnson's work just before the discharge, was finally pressed into giving an affirmative answer to the question- "Did you request that Mr. Johnson be terminated on the date he was terminated?" I can credit none of the generalized reasons for the discharge of this employee given by the Respondent's witnesses. That he was never warned is undisputed. In short, I am convinced and find that Johnson was discharged on December 2 in order further to discourage union membership and activity. Thereby the Respondent continued its course of interference, restraint, and coercion of its employees. Bruce Green- It may be said that the law of contradictions requires that the case of Bruce Green, by its very nature, is the exception that proves the rule: the rule being that Rivers was resolved to rid the plant of union adherents. Green was hired on October 15, obviously as a replacement for one of the several fired 13 days earlier on the pretext of "lack of work." He was fired on December 7, the day before Rivers, as found above, summoned employees to his office and persuaded them to sign revocation letters he had prepared for them. Green attended union meetings on December 3 and 4, and on December 6, a Sunday, got three employees to sign union cards. It is reasonably inferred, in view of previous findings, that Rivers and Plant Supervisor Barber were promptly informed of Green's activities (Indeed, in his affidavit Rivers admits that shortly after the discharge "someone told me that Green had tried to get employees to sign union cards.") Early the morning of December 7 Barber sent Green to another department to help Foreman Arnold. When he completed the work Arnold assigned to him, he returned to his regular job. He continued unmolested at his regular work until lunch. After lunch he was summoned to Allred's office and fired, on the claim that he had gone back to his regular work without Arnold's permission. It is undisputed that neither Barber nor Arnold gave Green specific instructions as to how long he was to remain in the latter's department. It is undisputed that neither supervisor came to Green and told him to return to Arnold, and there is no con- tradiction of Green's credible testimony to the effect that in this instance he had but followed the customary procedure of returning to his own job as soon as an assignment of helping out in another department was finished. In any event, Rivers did not approve the discharge. About a week and a half later he rehired Green. He volunteered curious reasons for this action. He explained that. (1) he discovered in Green's application form the notation "We are going to have a baby"; (2) "his (Green's) movements in the plant were very much appealing to me"; and (3) "this gentleman (Green) was a member" of the same religious sect. Green did not remain long. He quit voluntarily in January 1965. I conclude and find that the reason given Green for his discharge was but a pretext, and that the real reason was to discourage union membership and activity. Such discrimination interfered with, restrained, and coerced employees in the exercise of guaranteed rights under the Act. RIVERS MFG. CORP. 669 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations of the Respondent, described in section I, above, had a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstruct- ing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action to effectuate the policies of the Act. It will be recommended that the Respondent offer all employees found herein to have been unlawfully discharged, except Bruce Green, immediate and full rein- statement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them (including Green) whole for any loss of earnings suffered by reason of the discrimination against them, by payment to each of them of a sum of money he normally would have earned, absent the discrimination, from the date of such discrimination to the date of offer of full reinstatement (in the case of Green to the date of his reemploy- ment), in the manner prescribed by the Board in F. W. Woolworth Company, 90 NLRB 289, and with interest as prescribed in Isis Plumbing & Heating Co., 138 NLRB 716. Finally, in view of the serious and extended nature of the unfair labor practices, it will be recommended that the Respondent cease and desist from in any manner infringing upon the rights of employees guaranteed by Section 7 of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. International Union of Mine, Mill and Smelter Workers is a labor organiza- tion within the meaning of Section 2(5) of the Act. 2. By discriminating in regard to the hire and tenure of employment of employees as found herein, to discourage membership in and activity on behalf of 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 by 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 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 the case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, it is recommended that the Respondent, Rivers Mfg. Corp., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in International Union of Mine, Mill and Smelter Workers, or any other labor organization, by discharging, laying off, or refusing to reinstate employees, or by discriminating against them in any other manner in regard to their hire or tenure of employment or any term or condition of employment. (b) Threatening employees with economic reprisals, invoking reprisals, promising or granting benefits, engaging in or creating the impression of engaging in surveil- lance, inducing them to withdraw union authorization cards, or interrogating em- ployees concerning their union activities in violation of Section 8(a)(1) of the Act, for the purpose of discouraging union membership in the above-named or any other labor organization. (c) In any other manner interfering with, restraining, or coercing employees in the exercise of rights guaranteed by Section 7 of the Act. 670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Take the following affirmative action to effectuate the policies of the Act: (a) Destroy all employment application forms, filled out or blank , containing the unlawful interrogation as to union affiliations , past or present. (b) Offer Billie Joe Brown, Sammy Haley, Edward Shelton, William Mayberry, James Sanders, Ronald Gossett, Herbert Hatley, and Calvin Johnson immediate and full reinstatement to their former or substantially equivalent positions , without prejudice to their seniority or other rights and privileges, and make them and Bruce Green whole for any loss of earnings they may have suffered by reason of the unlawful discrimination, in the manner set forth above in the section entitled "The Remedy." (c) 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 determine the amounts of backpay due. (d) Notify any of the above-named employees except Green 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. (e) Post at its plant in Centerville, Tennessee, copies of the attached notice marked "Appendix." 5 Copies of this notice, to be furnished by the Regional Director for Region 26, shall, after being duly signed by an authorized representa- tive of the Respondent, be posted immediately upon receipt thereof , and be main- tained for 60 consecutive days thereafter , in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered , defaced, or covered by any material. (f) Notify the said Regional Director , in writing, within 20 days from the date of the receipt of this Recommended Order, what steps have been taken to comply herewith.6 5 In the event that this Recommended Order be 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 In the further event that the Board's Order be enforced by a decree of a United States Court of Appeals , the words "a Decree of the United States Court of Appeals , Enforcing an Order," shall be substituted for the words "a Decision and Order". 6In the event that this Recommended Order be adopted by the Board , this provision shall read , "Notify the said Regional Director, in writing , within 10 days from the date of this Order, what 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 conduct our labor relations in compliance with the National Labor Relations Act, as amended, we notify you that: WE WILL NOT unlawfully discourage you from being members of Interna- tional Union of Mine, Mill and Smelter Workers, or any other union. WE WILL NOT threaten you with reprisals, or grant any benefits, to discourage you from joining any union. WE WILL NOT violate any of the rights you have under the National Labor Relations Act, to join a union of your own choice or not to engage in any union activities. WE WILL offer immediate reinstatement to the following employees and pay them and Bruce Green backpay. Billie Joe Brown Sammy Haley Edward Shelton William Mayberry James Sanders Ronald Gossett Herbert Hatley Calvin Johnson Rlvrxs MFG. CORP., Employer. Dated------------------- By------------------------------------------- (Representative ) (Title) INT'L UNION OF OPERATING ENGINEERS, LOCAL 925, ETC. 671 NoTE.-We will notify any of the above-named employees , except Green, pres- ently serving in the Armed Forces of the United States of their right to full rein- statement 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. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board 's Regional Office, 746 Federal Office Building, 167 North Main Street, Memphis, Tennessee, Telephone No. 534-3161. International Union of Operating Engineers, Local 925, AFL-CIO, and its Business Manager, H. B. Roberts (J. L. Manta, Inc., et al.) and Herman Dewey Ross. Cases Nos. 12-CB-734 and 12- CB-743. August 24,1965 DECISION AND ORDER On April 28, 1965, Trial Examiner Thomas A. Ricci issued his Decision in the above-entitled proceeding, finding that the Respond- ent had engaged in and was engaging in certain unfair labor prac- tices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief. The General Counsel filed limited exceptions to the Trial Examiner's Decision.' Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with these cases to a three-member panel [Chairman McCulloch and Members Fanning and Brown]. 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 Trial Examiner's Decision, the exceptions and briefs, and the entire record in these cases, and hereby adopts the findings,2 conclusions, and rec- ommendations of the Trial Examiner with the modification noted below. ' General Counsel's exception was to the Recommended Order only , and we find such exception to have merit . The fact that employment in the construction industry is usually of short term with many different employers and the fact that six employers have already been caused by Respondents to discriminate against Ross , considered in the light of the nature of the violations committed by Respondents , justify an order requiring desistance as to "any other employer" as requested by the General Counsel. Local 542, Interna- tional Union of Operating Engineers, AFL-CIO ( Elmhurst Contracting Co., Inc., etc.), 141 NLRB 53. 2 The Respondent has excepted to the Trial Examiner 's credibility resolutions, but we are not persuaded that a clear preponderance of all the relevant evidence is contrary to the Trial Examiner's credibility findings. Standard Dry Wall Products, Inc., 91 NLRB 544, enfd. 188 F. 2d 362 (C.A. 3) 154 NLRB No 56.