Moore-Handley, Inc.

MOORE-IIANDLEY, INC. 1127 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 members have any question concerning this notice or compliance with its provi- sions they may communicate directly with the Board's Regional Office, Fifth Floor, Squibb Building, 745 Fifth Avenue, New York, New York, Telephone No. 751-5500. Moore-Handley, Inc. and Teamsters, Chauffeurs, Helpers and Taxicab Drivers Local Union 327, affiliated with the Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case No. 06-CA-1840. September 10, 1965 DECISION AND ORDER On May 20, 1965, Trial Examiner W. Gerard Ryan issued his Deci- sion in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices alleged in the complaint 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. 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 [Chairman McCulloch and Members Brown 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 brief, and the entire record in this case, and finds merit in certain of the exceptions of the Respond- ent. We therefore adopt the findings, conclusions, and recommenda- tions of the Trial Examiner only to the extent that they are consistent with this Decision and Order.' 1. The Trial Examiner found, and we agree, that the Respondent interrogated employee Neil Porter on June 2, 1964, in violation of Sec- tion 8(a) (1) of the Act. We also agree, for the reasons stated by the Trial Examiner, that the Respondent's discharge of employees John Wells and Francis Greenhill on June 3, 1964, was in violation of Sec- tion 8 (a) (1) and (3) of the Act. 'We hereby correct the following inadvertent errors in the Trial Examiner 's Decision: Phillip Chamblee was discharged on June 3, 1964, not June 4, 1964; of the 14 employees discharged by the Respondent, all signed union authorization cards with the exception of Draper and Mahan, rather than Draper and Ogilvie: and, of the 9 employees remain- ing in the warehouse after the reduction in force, all had signed union cards except Goodrich , Phelps, and Akin. Contrary to the Trial Examiner , Edwards had signed a union card. 154 NLRB No. 96. 1128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. The Trial Examiner also found that on June 2, 3, and 4, 1964, the Respondent discharged, in violation of Section 8(a) (1) and (3) of the Act, 12 additional employees, viz : Bill Kelsey, Phillip Chamblee, James Perkins, Edward Schade, Jr., Howard Patton, Ronald O'Guin, Joe Parsley, Malcom Mahan, George Ogilvie, Houston Draper, Wil- liam Tubbs, and Kirk Dunnavant. We find merit in the Respondent's exceptions to this finding. As the Trial Examiner found, in the latter part of May 1964, the Respondent decided, for economic reasons, to revise its system of inven- tory distribution by carrying its major inventory in its Birmingham warehouse, thus curtailing its warehouse operations in Nashville, the warehouse involved here. While the Trial Examiner found that eco- nomic reasons existed for the discharge of the foregoing 12 employees, he nevertheless concluded that the real reason for the discharge was to prevent union organization. We do not agree. As the Respondent's basic decision was made for economic reasons, any finding of violation must rest on a finding of discrimination in selection of the employees. While we agree with the Trial Examiner on such a finding in the cases of Wells and Greenhill , supra, the record does not establish that the Respondent discriminatorily selected any of the 12 other employees. While most of the 12 employees selected for discharge were union adherents, this fact is without significance, since about 18 of the full complement of 23 employees were also union adherents at the time of the reduction in force. Moreover, two-thirds of the employees retained in the Nashville warehouse following the reduction in force were union members . Under these circumstances, we are not persuaded that the General Counsel has sustained his burden of proving by a pre- ponderance of the evidence that the foregoing 12 employees were selected for discharge in violation of Section 8 (a) (1) or ( 3) of the Act, and, accordingly, we shall dismiss the allegations of the complaint with respect to these employees. THE REMEDY The Trial Examiner recommended, inter alia, that the Respondent be required to reinstate the discriminatees to their former positions, but that, in case of unavailability of such employment at the Respondent's Nashville location, the Respondent be required to place the employees on a preferential hiring list for future employment at its other opera- tions, with backpay to the date of the Respondent's offer of reinstate- ment or preferential listing. As we have found violations of Section 8(a) (3) only with respect to employees Wells and Greenhill, however, we do not believe that the remedy, insofar as it pertains to the placing of the discriminatees on a preferential hiring list , is appropriate. We shall, therefore , modify the Trial Examiner's Recommended Order to provide for our customary reinstatment and backpay remedy. MOORE-HANDLEY, INC. ORDER 1129 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, Moore-Handley, Inc., Nash- 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. Delete paragraph 2 (a) of the Recommended Order and substitute in lieu thereof the following: "(a) Offer to John Wells and Francis Greenhill immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make each of them whole for any loss of earnings he may have suffered as a result of the discrimination practiced against him, in the manner set forth in the section of the Trial Examiner's Decision entitled `The Remedy,' as modified by the Board's Decision." 2. Delete the second substantive paragraph of the Appendix 2 and substitute in lieu thereof the following : WE WILL offer to John Wells and Francis Greenhill immediate and full reinstatment to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and will make each whole for any loss of earnings suf- fered as a result of the discrimination against him. IT Is FURTHER ORDERED that the complaint be dismissed insofar as it alleges unfair labor practices not herein found by the Board. 2 The telephone number for Region 26 , appearing at the bottom of the Appendix at- tached to the Trial Examiner's Decision, is amended to read. 534-3161. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE This proceeding was held before Trial Examiner W. Gerard Ryan at a hearing in Nashville, Tennessee, on September 21, 1964, on the complaint of General Counsel, as amended at the hearing and the answer of Moore-Handley, Inc., herein called the Respondent.' Paragraph 8 of the complaint was amended to read: Commencing early in June 1964, Respondent pursuant to a plan to curtail or discontinue its Nashville, Tennessee, operation, terminated the employment of its employees John Wells, Francis Greenhill, Bill Kelsey, Phillip Edwin Cham- blee, James Perkins, Edward Schade, Jr., Howard A. Patton, Ronald O'Guin, Joe Parsley, Malcolm Mahan, George L. Oglivie, Houston G. Draper, William C. Tubbs and Kirk Dunnavant. i The original charge was filed by the Union on June 8, 1964, and served on the Re- spondent on or about June 8, 1964. The first amended charge was filed by the Union on July 15 , 1964, and served on the Respondent on or about July 15, 1964 . The com- plaint issued on July 23, 1964. 1130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The issues litigated were whether the Respondent violated Section 8 (a) (1) and (3 ) of the Act. The parties waived oral argument. The General Counsel and the Respondent filed briefs on November 2, 1964.2 Upon the entire record in the case and from my observation of the witnesses, I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT Moore-Handley, Inc., herein called the Respondent, is now, and has been at all times material herein, an Alabama corporation, with an office and place of business located at Nashville, Tennessee, where it is engaged in the wholesale sale and distribu- tion of hardware. During the past 12 months, in the course and conduct of its business, Respondent, from its Nashville, Tennessee, location, sold and shipped goods valued in excess of $50,000 directly to points located outside the State of Tennessee, and during the same period received at its Nashville, Tennessee, location, directly from points located outside the State of Tennessee, goods and materials valued in excess of $50,000. Respondent is now, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Teamsters, Chauffeurs, Helpers and Taxicab Drivers Local Union 327, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America, herein called the Union, is now, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES The complaint as amended alleged, the answer denied, and I find that in violation of Section 8(a) (1) of the Act the Respondent (1) interrogated an employee concern- ing the union membership, activity, and desires of its employees; (2) terminated the employment of 14 named employees pursuant to a plan to curtail or discontinue its Nashville, Tennessee, operation; and (3) curtailed or is discontinuing its Nashville operation "and/or" terminated its employees because they joined or assisted the Union, or engaged in other union activity or concerted activity for the purpose of collective bargaining or mutual aid or protection. The complaint as amended further alleged, the answer denied, and I find that in violation of Section 8(a)(3) of the Act the Respondent (1) terminated the employment of the named employees pursuant to a plan to curtail or discontinue its Nashville operations; and (2) curtailed or is discontinuing its Nashville operation "and/or" terminated its employees because they joined or assisted the Union or engaged in other union activity or concerted activities for the purpose of collective bargaining or mutual aid or pro- tection. My reasons follow: John Wells was employed by Respondent from approximately February 15, 1964, until his discharge on June 3, 1964.3 He was employed in the warehouse as an "order puller" or "filler" which brought him into contact with nearly all the employees daily. Around the middle of April he became interested in having a union organize the ware- house employees and talked with fellow employees and with an office employee iden- tified in the record only as "Kates" as to the means to be followed in organizing the employees. Prior to his discharge on June 3, Wells had received three monthly pay increases. On June 1, Wells met William L. Ellis, business agent for the Union, at approxi- mately 8 o'clock in the morning and talked with him about union representation. Ellis gave Wells 15 authorization cards to have signed by the employees. During that day Wells succeeded in obtaining signatures to all the cards and that evening Wells returned the signed cards to Ellis. At the same time Wells signed his card and gave it to Ellis. Wells and Ellis then arranged for a meeting of the employees to be held at the union hall on the following night June 2. 2 After the close of the hearing, and on or about January 18, 1965, the Respondent filed a motion with me to reopen the record for the purpose of receiving in evidence affidavits purporting to show that on or about December 31, 1964, the Respondent offered employment to several employees heretofore discharged . The General Counsel opposed the motion. The foregoing motion is denied. If and when the compliance stage is reached such evidence may be considered. 8 A11 dates hereafter refer to the year 1964 unless otherwise stated. MOORE-HANDLEY, INC. 1131 On June 2, the following day, Wells notified the employees as he came in contact with them about the meeting scheduled for that night at the union hall. While talking with employee Joe Parsley on the dock in the afternoon and telling him about the meeting, Wells and Parsley noticed Charles Horsley, the division operations manager, and another supervisor, John Pickard, the head stockman, standing in a doorway about 5 to 8 feet away. Wells and Parsley ceased talking and walked away. Pickard and Horsley admitted seeing Wells and Parsley but denied hearing any part of their conversation. On June 2, Charles T. Horsley in a conversation with employee Albert Neil Porter questioned Porter as to whether he had been asked by employee John Wells to sign a union card and also inquired from Porter whether there was to be a union meeting of the employees. While this conversation was initiated by Porter inquiring what Horsley thought about the Union, Horsley exceeded the expression of his opinion about unions by asking if it was Wells who asked Porter to sign a card and if there was to be a union meeting. Porter did not identify Wells nor give information as to a union meeting. Such questioning I find to be interference, restraint, and coercion vio- lative of Section 8(a) (1) of the Act. Horsley did not deny the conversation but did testify it occurred on the evening of June 5, after the 14 discharges had occurred. Porter was obviously a reluctant witness. At the time of the hearing he was no longer in the employ of the Respondent from which he had resigned. When Porter executed a prehearing affidavit in July, he stated that the date of that conversation was June 2. At the hearing he testified the conversation was after Wells was dis- charged which would be on or after June 3. After some vacillation as to the date of the conversation Porter concluded his testimony by stating that the probable date was June 2. In that conversation, Horsley stated to Porter that he knew the Team- sters was trying to organize the plant. Accordingly I find that the date of that con- versation was June 2. Further reasons for fixing the date as June 2 are that since the conversation did in fact occur, it seems there would be less reason for such question- ing on June 5 after 14 of 23 employees had been discharged. Any information sought on June 5 would be of no particular value to the Respondent but information sought on June 2 before any discharges occurred could be of value to the Respondent if it was interested in determining who was to be discharged for the reasons alleged in the complaint. The fact that Horsley inquired whether Wells had solicited Porter to sign a card and whether there was to be a union meeting may well indicate that Horsley did overhear Wells tell employee Joe Parsley on June 2 that there was to be a union meeting that same night. Horsley could hardly be interested in whether or not such meeting was to be held after the 14 employees had been discharged. Accordingly I have found June 2 to be the date of the conversation between Horsley and Porter. Approximately 19 employees attended the union meeting on the night of June 2 at which time several others joined. On the basis of all the cards turned into Ellis a petition was filed by Ellis for an election with the Regional Office of the National Labor Relations Board. The Respondent received notice of the filing of the petition on June 8. On June 3, Wells was notified by Pickard to report to Horsley's office. At that time Wells was soliciting Malcolm Mahan to sign a card. Because Pickard appeared on the scene, Mahan did not hand back the signed card to Wells. Horsley stated to Wells that the reasons for his discharge were that his work was slow, not up to par, and the work force was being reduced because of lack of work. After Horsley told him of his termination and the reasons therefor, Wells stood up, pulled a union card from his pocket, and laid it on Horsley's desk saying "I guess you know I have been trying to organize a union in here." Horsley picked up the card, put it in his pocket, and replied "Due to what you just told me, I think you had better leave and don't ever come back." Wells then left but the next morning he returned to Horsley's office and apologized for losing his temper on the day previous. On June 3, in addition to Wells, Francis Greenhill and Bill Kelsey were termi- nated. On June 4, Ronald O'Guin, Joe Parsley, Howard Patton, Malcolm Mahan, Houston G. Draper, Phillip Chamblee, James Perkins, George Oglrvie, and Edward Schade, Jr., were terminated. On June 5, William Tubbs and Kirk Dunnavant were terminated. All the foregoing had signed cards except Draper and Oglivie. Of the foregoing 14 employees who were terminated 12 had signed union authori- zation cards. After the terminations nine employees remained, viz, Goodrich, Phelps, Henry, Edwards, Porter, Dodd, Akin, Carruthers, and Larkin Batey of whom all had signed cards except Goodrich, Phelps, Edwards, and Akin. Wells was the first employee to receive a termination notice on June 3 and the first employee discharged on that day. He testified as did each witness called by 1132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD General Counsel that they received no prior indication or warning that a mass termination such as here was imminent. Such testimony is uncontradicted. Employ- ees Francis Greenhill and Bill Kelsey were also discharged on June 3. Francis Greenhill testified that he was advised by Horsley that his termination was for insubordination to his supervisor, John North. Greenhill testified that he had never received any warnings concerning such matters. On Monday, June 1, he had been given certain time study forms to fill out showing the amount of time spent on each job. He misunderstood the method to be followed and had noted the time for a total job and not for each part of the job. This was called to his attention by his supervisor North and he attempted to fill out the forms properly after that. However, later in the day he made another mistake and was told by North "Now, you know, I'm getting sick of this . . . I ain't going to keep continuously telling you what you have got to do about that time sheet " Greenhill asked for clarification about the manner in which to enter such item and North replied "Well, you know, I'm getting tired of this ... you have been riding me all day," to which Greenhill replied "I haven't been riding you all day because I haven't been here all day ... I don't understand it." At some time during the day Greenhill asked North why there was no union in the plant since there was a union in Respondent's plant in Birmingham. On June 1 Greenhill signed a union card upon Wells' solicitation. Later that day Greenhill and Carruthers were taken to the office by North where North told Horsley that he seemed unable to get the instructions as to the filling out of the timesheets over to them. Horsley explained to them the need for the sheets and the proper method for filling them out and the men returned to work. No mention was made of firing them and no warnings given. Greenhill was fired 2 days later. All the other terminated employees were advised at the time of their termination that the reason for such was a cut in working force and lack of work. The Respondent's Defense The reason advanced by the Respondent for the termination of Wells is that his work was slow, not up to par, and the work force was being reduced because of lack of work. It is undemed that during his relatively brief tenure with the Respondent he received three raises in pay, approximately one per month. Wells also testified that he had received no complaints about his work and no evidence was offered to contradict this by the Respondent. Horsley testified in fact that "Wells always seemed like a person who had some good potential." Horsley also admitted that by Respondent's own record Wells' performance was improving during the last week of his employment, yet he was the first to be dismissed. In Greenhill's case the Respondent relied upon the alleged incident of insubordi- nation already referred to. Upon cross-examination Robert Todd, the warehouse manager, admitted that the incident concerning the time study sheets actually had no bearing upon the decision to discharge Greenhill since his mind was already made up at that point. Respondent accordingly relied upon two alleged prior incidents in March and May, which involved an alleged refusal by Greenhill to do work assigned in March and his improper use of a card in May. Todd testified that in March he observed North tell Greenhill to go around and load a customer's order which he had lust then brought him. Greenhill who was a truckdriver then told North to get someone else to do it-that he was busy. Todd testified that at the time Greenhill was burning some trash. North then told Greenhill that everyone else was busy and that he was the only one left to do it, at which time Greenhill complied with instruc- tions. Todd testified that this incident happened in the presence of a customer and that Todd mentioned the matter in a development report and that Greenhill indicated his willingness to try harder. In May Todd testified that he saw Greenhill shoving a wagon or cart into the warehouse after unloading it. He testified that he called this to Greenhill's attention and that Greenhill asked why he was picking on him, why did he not "get on" some- one else, that he did not ever see him [Todd] talking to anyone else. The Respondent contends that with the exceptions of Wells and Greenhill who were discharged for the poorest work record and for insubordination, respectively, the remaining 12 employees were discharged for economic reasons. William French, Respondent's president, and Searcy Johnson, its vice president and secretary in charge of operations, testified on behalf of the Respondent concerning the Company's financial condition and as to the discussions and conferences at the Respondent's home office in Birmingham which resulted in the decision to curtail certain operations at Nashville and Mobile.4 d J. Ernest Hardin, division manager at Nashville, Horsley, and Todd also sat in on those meetings. MOORE-HANDLEY, INC. 1133 Although the Respondent introduced testimony through Johnson that at Nashville on May 28 and 29 Johnson and E. B. Humphrey, from inventory control, reviewed the inventory that was to be moved from Nashville and the personnel that was to be terminated, "name by name," William French testified on behalf of the Respondent that the local manager was not given any definite instructions as to which employees he was to let go and which ones he was to keep. J. Ernest Hardin testified that he is the Nashville division manager and that at the Birmingham meeting it was decided that the regular employees would be discharged first and that the rest of the employees to be let go who were classified as extra employees would follow the discharge of the regular employees. He further testified that John Wells was classified as an extra employee. Searcy Johnson, Jr., testified that extra employees mean extra labor who are not carried on the Company's regular payrolls and paid on a weekly basis. When the curtailment would be made, who would be discharged, and when the individual employees would be terminated was left to the discretion of the local managers. The question then naturally arises since Wells was an extra employee why was he selected as the very first employee to be terminated on June 3 when all the other extra employees were terminated on June 4. In the case of Wells and Greenhill I find that the reasons advanced for their discharges were pretexts to cloak the real reason which was their union activity and the Respondents' desire to discourage union activity. Wells was the most active worker for the Union having obtained on June 1 at least 16 signatures including his own on 20 of the signed cards from a work force of 23 employees. Wells also arranged for the union meeting of June 2. Horsley at least suspected Wells' activity for the Union since he inquired from Porter on June 2 if Wells had solicited his signature and if there was to be a union meeting. It is difficult to believe that Wells had been the poorest worker in view of the fact that he had received three pay increases in the 3 months he had worked there. Almost immediately following his activities on June 1 and 2, he was discharged without notice on June 3 and told by Horsley that if he had tried to organize a union there to leave and never come back. I find the reason given for Greenhill's discharge, namely, insubordination, was a pretext and the true reason was Respondent's motive to destroy any union activity. After lengthy testimony about Greenhill's difficulties on June 1 and 2 concerning filling out the record sheet properly, the Respondent conceded Greenhill's difficulties on June 1 or 2 were not considered in discharging him and the Respondent was forced to rely on instances of alleged insubordination in March and May. Certainly if either the incident in March or the incident in May or both were considered serious enough for discharge, the Respondent would not have waited until June 3 to dis- charge Greenhill for insubordination. It should be remembered that on June 1 Greenhill had inquired from his supervisor North why the Respondent did not have a union in the plant. With respect to the discharge of the remaining 12 employees by which the work force was reduced to 9 employees for economic reasons such is not an adequate defense where as here the Respondent acted to reduce its force (1) because of union animus; 5 (2) in such a way as the discharges were used as an occasion ostensibly for demonstrating to its employees the penalty attendant on union or concerted activities; (3) its timing of the discharges within 2 days of the signing of the cards and the union's meeting; and (4) against the background of the unlawful interrogation of Porter by Horsley. I believe and find that although there probably was good reason for economic discharges to improve the financial position of the Company such was not the sole reason for the discharges here. Such a reason was tainted by using the occasion to demonstrate to the employees and to the Union the Company's ability to discharge over one-half the work force to prevent organization. Nor were the discharges made all at once; they were made, so to speak, in three jolts, by discharges on June 3, 4, and 5. Here, as in Family Laundry & Dry Cleaning, Inc., 147 NLRB 251, the question is not whether there existed valid and lawful reasons why the Respondent might have discharged the employees, but rather whether those were the reasons which, in fact, motivated Respondent in its decision to discharge them. It is perfectly well settled that "Mere existence of valid grounds for a discharge ... is no defense to a charge ... that the discharge was unlawful ... unless the discharge was predicated solely on those grounds and not by a desire to discourage union activity." N.L.R.B v. Symons Mfg. Co., 328 F. 2d 835 (C.A. 7). "The existence of some justifiable ground for discharge is no defense if it was not the moving cause " Wells, Incor- porated v. N.L.R.B., 162 F. 2d 457, 460 (C.A. 9). See also: N.L.R.B. v. Solo Cup 5 As demonstrated by Horsley telling Wells to leave and not return if it was true that Wells had been organizing the Union in the plant. 1134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Company, 237 F. 2d 521, 525 (C.A 8); NL.R.B. v. Jamestown Sterling Corp., 211 F. 2d 725, 726 (C.A. 2); N.L.R.B, v. Whitin Machine Works, 204 F. 2d 883 (C.A. 1). I find that by such 14 discharges the Respondent violated Section 8(a)(1) and (3) of the Act. However, whether the violations are considered as confined to violations of Section 8(a)(1) or include Section 8(a)(3), the remedy of reinstatement and backpay is the same. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent, set forth in section III, above, occurring in connec- tion with the operations of Respondent described in section 1, 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. V. THE REMEDY Having found that Respondent engaged in certain unfair labor practices I shall recommend that it cease and desist therefrom and take certain affirmative action which will effectuate the policies of the Act. Having found that the Respondent violated Section 8(a)(1) and (3) of the Act by discharging the 14 employees named in the complaint as amended at the hearing, I shall recommend that Respondent offer them immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights or privileges, and make each whole for any loss of earnings he may have suffered as a result of the discrimination against him, by payment to him of a sum of money equal to that which he normally would have earned as wages from the date of his discharge to the date of the Respondent's offer of reinstatement, or such time as he may find equivalent employment, less his net earnings during such period with backpay and interest thereon to be computed in the manner prescribed by the Board in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. If such employment is not available I shall recom- mend that Respondent offer them transfers to such of its other operations as might provide such employment. In the event of such unavailability of employment at its Nashville, Tennessee, location Respondent should be required to place the employees not offered reinstatement on a preferential hiring list for future employ- ment should such become available. Because the Respondent by its conduct violated fundamental employee rights guaranteed by Section 7 of the Act, and because there appears from the manner of commission of this conduct a disposition to commit other unfair labor practices, it will be recommended that Respondent cease and desist from in any manner infringing upon the rights guaranteed employees 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. The Respondent is an employer within the meaning of Section 2(2) of the Act and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By interfering with, restraining, and coercing employees in the exercise of their rights guaranteed by Section 7 of the Act in the manner hereinabove found the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. By discriminating with respect to the hire and tenure of employment of John Wells, Francis Greenhill, Bill Kelsey, Phillip Edwin Chamblee, James Perkins, Edward Schade, Jr., Howard A. Patton, Ronald O'Guin, Joe Parsley, Malcolm Mahan, George L. Oglivie, Houston G. Draper, William C. Tubbs, and Kirk Dunnavant, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) and (1) of the Act. 5. 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 proceeding and pursuant to Section 10(c) of the National MOORE-HANDLEY, INC. 1135 Labor Relations Act, as amended, I hereby recommend that Moore-Handley, Inc., its officers, agents, successors, and assigns be ordered to: 1. Cease and desist from: (a) Discouraging membership in Teamsters, Chauffeurs, Helpers and Taxicab Drivers Local Union 327, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organiza- tion, by discriminating in regard to the hire and tenure of employment of its employees. (b) Interrogating employees concerning their union activities and sympathies. (c) In any other manner interfering with, restraining, or coercing employees in the exercise of their right to self organization , to form, join, or assist the above- named or any other labor organization, to bargain collectively through representa- tives 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. 2. Take the following affirmative action which is necessary to effectuate the poli- cies of the Act: (a) Offer to John Wells, Francis Greenhill, Bill Kelsey, Phillip Edwin Chamblee, James Perkins, Edward Schade, Jr., Howard A. Patton, Ronald O'Guin, Joe Parsley, Malcolm Mahan, George L. Oglivie, Houston G. Draper, William C. Tubbs, and Kirk Dunnavant immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges and make each of them whole for any loss of earnings he may suffered as a result of the discrimination practiced against him, in the manner set forth in the section of this Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board and its agents for examination and copying all pertinent records necessary to insure expeditious com- pliance with the Recommended Order. (c) Notify any of the above-named employees if presently serving in the Armed Forces 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. (d) Post at its offices and places of business copies of the attached notice marked "Appendix." G Copies of said notice, to be furnished by the Regional Director for Region 26, shall, after being duly signed by the Respondent's representative, be posted immediately upon receipt thereof, and be maintained by it for a period of at least 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 shall not be altered, defaced, or covered by any other material. (e) Respondent shall notify the Regional Director for Region 26, in writing, within 20 days from the date of the receipt of this Decision, what steps it has taken to comply herewith.7 e 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". 7In 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, what steps 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 Rela- tions Act, as amended, we hereby notify our employees that: WE WILL NOT discourage membership in or activities on behalf of Teamsters, Chauffeurs, Helpers and Taxicab Drivers Local Union 327, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or in any other labor organization, by discriminating in any manner with regard to hire, or any term or condition of employment, except as author- ized by Section 8(a) (3) of the Act. 1136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL offer to John Wells, Francis Greenhill, Bill Kelsey, Phillip Edwin Chamblee, James Perkins, Edward Schade, Jr., Howard A. Patton, Ronald O'Guin, Joe Parsley, Malcolm Mahan, George L. Oglivie, Houston G. Draper, William C. Tubbs, and Kirk Dunnavant immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges and will make each whole for any loss of earnings suffered as a result of the discrimination against them. If such employment is not available, we will offer them transfer to such of our other operations as might provide such employment. In the case of such unavaila- bility at our Nashville, Tennessee, operation we will place the employees not offered reinstatement on a preferential hiring list for future employment should such become available. WE WILL pay to the above-named employees backpay to cover their loss of earnings, with interest, until such time as we offer them reinstatement, or such time as they find equivalent employment. WE WILL NOT interrogate employees concerning activities on behalf of the above-named or any other labor organization, in a manner constituting inter- ference, restraint, or coercion violative of Section 8(a)(1) of the Act. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the right to self-organization, to form labor organi- zations, to join or assist the Union or any other labor organization, to bargain collectively through representatives of their -own choosing, or to engage in con- certed activities for the purpose of collective bargaining, or other mutual aid of protection, or to refrain from any or all such activities. All our employees are free to become or remain, or to refrain from becoming or remaining, members of any labor organization, except to the extent that this right may be affected by an agreement in conformity with Section 8(a)(3) of the Act. We will not discriminate in regard to hire or tenure of employment, against any employee because of membership in, or activity on behalf of, any labor organization. MOORE-HANDLEY, INC., Employer. Dated------------------- By------------------------------------------- (Representative) (Title) NoTE.-We will notify the above-named employees if presently serving in the Armed Forces of the United States of their right to full reinstatement upon applica- tion 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 Building, 167 North Main Street, Memphis, Tennessee, Telephone No. FR. 2-4361, Extension 512. G & W Electric Specialty Company and William W. Helson. Case No. 13-CA-6031. September 13,1965 DECISION AND ORDER On September 10, 1964, Trial Examiner Abraham H. Mailer issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in certain unfair labor practices and recom- mending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. There- after, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief. 154 NLRB No. 91.