Kentucky News, Inc.

KENTUCKY NEWS, INCORPORATED 707 for a period of 60 consecutive days thereafter , in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify said Regional Director, in writing, within 20 days from the receipt of this Decision,5 what steps it has taken to comply herewith. 5In the event that this Recommended Order is 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 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 Rela- tions Act, as amended , we hereby notify our employees that: WE WILL NOT refuse to recognize and bargain collectively with Local Union 170, Sheet Metal Workers International Association, AFL-CIO, as the repre- sentative of our employees in the unit described below . The bargaining unit is: All production and maintenance employees , including shipping and receiv- ing employees , truckdrivers, and leadmen, but excluding all office clerical and professional employees , guards, watchmen, and supervisors. WE WILL recognize the above -named labor organization as the exclusive representative of our employees in the aforesaid appropriate unit; upon request, meet and bargain collectively with said labor organization concerning the provisions of a contract ; and, if an understanding is reached , embody said understanding in a signed agreement. PATT ENGINEERING & MANUFACTURING CO., INC., Employer. Dated------------------- By------------------------------------------- (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of post- ing, 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, 849 South Broadway, Los Angeles, California, Telephone 688-5204. Kentucky News, Incorporated and General Drivers, Warehouse- men and Helpers, Local Union No. 89, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America . Cases 9-CA-3710, 370, and 3682. June 20,1966 DECISION AND ORDER On March 30, 1966, Trial Examiner Alba B. Martin issued his Deci- sion 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 Trial Examiner's Deci- sion. Thereafter, the Respondent filed exceptions to the Trial Exam- iner's Decision and a supporting brief. 159 NLRB No. 56. 708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 Jenkins]. 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 Trial Examiner's Decision , the exceptions and brief, and the entire record in these cases , and hereby adopts the findings,' conclusions,' and rec- ommendations of the Trial Examiner, as modified below. The Trial Examiner found that President Murphy violated Section 8(a) (3) and (1) of the Act by "constructively and discriminatorily discharging" Leroy Carney. In our opinion , the General Counsel has not sustained his burden of proving by a preponderance of the evidence that Carney was discharged for his union activities . On the day of the election and lockout, Carney returned from his route, having made about 13 of his 34 stops . Murphy told him to deliver the rest of his route that night or he would no longer have a job. Carney refused to go out again and complete his route because he was very tired and feared that he might have an accident if he continued driving. When Carney reported for work the next morning , he was advised by. Pres- ley that he had been discharged . There is no evidence in the record that the treatment accorded Carney for his refusal to work as ordered differed from that customarily accorded employees who refused to obey instructions concerning their work . Moreover, although the Trial Examiner found that Carney was discharged by Murphy, at least in part, because she suspected he had voted for the Union, it is clear from the record that his name was not on the eligibility list to vote in the election and that he did not vote in the election because he was not an employee during the eligibility period. In view of the foregoing, and as there is a lack of convincing evidence that Carney would have received more compassionate and generous treatment 1 We concur with the finding of the Trial Examiner that George Presley, during the critical period between August and September 1965, was performing supervisory functions, and that his interrogations were imputable to the Respondent . Although the record-in- dicates that Presley did not become a "manager ," as evidenced by a wage increase, until sometime in October 1965, it is clear that prior to his promotion, and during the critical period, Presley was a supervisor within the meaning of the Act. As the Trial Examiner pointed out, the parties excluded Presley from the unit on the ground that he was a supervisor. In addition , the record indicates that Presley was assigning employees to jobs, giving orders to employees concerning their work, hiring employees , and generally acting in a supervisory capacity during the period in question 2 Although we agree with the Trial Examiner's conclusion that Mrs Murphy locked out her employees in violation of Section 8(a) (3) and (1) of the Act, we do not rely on his assumption that she locked out all but the five who voted against the Union in the elec- tion. We do not agree with the Trial Examiner's speculations and assumptions as to how particular employees voted in the election. See Bauer Welding & Metal Fabricators, Inc, 154 NLRB 954. KENTUCKY NEWS, INCORPORATED 709 from Murphy had lie given her similar cause for discharge prior to the advent of the Union, we are not persuaded that Carney's discharge was unlawfully motivated. Accordingly, we find that the evidence does not support the Trial Examiner's findings that Car- ney's discharge constituted a violation of Section 8 (a) (3) and (1) of the Act, and we amend the Trial Examiner's Conclusions of Law by deleting the name, "Leroy Carney," from paragraph 4 therein. [The Board adopted the Trial Examiner's Recommended Order with the following modification : [1. Paragraphs 2(a), (b), and (c) of the Recommended Order are amended by deleting the name Leroy Carney wherever it appears therein. [2. The last two paragraphs of the notice attached to the Trial Examiner's Decision are amended by deleting the name, Leroy Car- ney wherever it appears therein : [3. Add the following immediately above the signature line at the bottom of the Appendix attached to the Trial Examiner's Decision: [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 application, in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces.] TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE This proceeding, with all parties represented by counsel, was heard before Trial Examiner Alba B. Martin, in Louisville, Kentucky, on December 20 and 21, 1965, on complaints' of the General Counsel and answers of Kentucky News, Incorpo- rated, herein called Respondent. The issues litigated were whether Respondent unlawfully discharged six employees and unlawfully interrogated, threatened, and promised benefits to employees; and whether immediately after the Union won the election, Respondent unlawfully locked out employees for a few hours; in viola- tions of Section 8(a)(3) and (1) of the National Labor Relations Act, as amended, 29 U.S.C Sec 151 et seq. herein called the Act. After the hearing Respondent filed a brief, which has been carefully considered. Upon the entire record and my observation of the witnesses, I hereby make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF RESPONDENT Respondent is a Kentucky corporation engaged as a distributor of magazines. paperback novels, scratch sheets, racing forms and records, at wholesale, in and around Louisville, Kentucky During calendar year 1964, a representative period, Respondent had a direct inflow of goods and materials in interstate commerce, val- ued in excess of $50 ,000, which goods and materials were purchased and trans- 1 The charge in Case 9-CA-3710 was filed by the Union on October 1, 1965, and served upon Respondent on October 5, 1965. The charge in Case 9-CA-3720 was filed by the Union on October 11, 1965, and served upon Respondent on October 12, 1965 The charge in Case 9-CA-3682 was filed by the Union on September 1, 1965 , and served upon Re- spondent on September 2, 1965. 710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ported directly to Respondent's location in Louisville, Kentucky, from points out- side of the State of Kentucky. I find that Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED General Drivers, Warehousemen and Helpers, Local Union No. 89, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers 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 A. Thumb-nail chronology All events herein occurred during 1965. Upon the initiative of employee Height- chew, who obtained the cards from a representative of the Union, employees of Respondent signed union cards in early August. Within hours after receiving the Union's request-for-recognition letter on August 18, Respondent 's president, Mrs. Gertrude Murphy, discharged the six employees then working on the "make-up table." Within minutes after the Union won a consent election on September 28, Murphy locked out the employees for a couple of hours. Later that day she told employees who owed her money that they must pay up faster than had earlier been arranged. That evening she precipitately discharged a new employee, Car- ney. The following evening she discharged the employee , Heightchew, who had taken the initiative to organize the Union. A week later, on October 5, she summarily discharged Alfred Moore. B. Self-organization of the employees and Respondent's hostility thereto As has been seen, in early August 1965, employee Heightchew took the initiative to get the men to sign cards for the charging Union, and enough of them signed to get to an election, at least . Upon a consent election agreement entered into September 15, the election was held from 6:45 to 7:30 on the morning of Sep- tember 28. The Union won the election 17 to 5. There were 26 in the appropri- ate unit, 14 inside people , mostly all men and boys, and 12 outside men (drivers) called routemen. Respondent opposed this self-organizational effort with a campaign of interroga- tions, threats, discharges , and in other ways. Murphy, who sometimes loaned the employees money and "would do anything for" the employees , was absolutely tough toward the employees in her hostility toward the Union. 1. On about August 20 President Murphy held a meeting for routemen in her office Supervisor George Presley was present. She opened the meeting with the phrase, "What's this crap I hear about the Union." She told the employees she had been a good employer to them, and had loaned them money from time to time: that she was up in years; that she had some money and no one to leave it to, that she would leave it to her faithful employees. She asked the employees what their complaints were. At this time the routemen were working 531/2 hours per week. Murphy told them that she would fight the Union in every legal way, that if it came in the first thing she would do would be to cut them all to 40 hours per week, that she was not going to have any union in her business , and that if it came in she would close the doors. For several years Murphy had talked to employees of leaving her money to employees, but there was no proof that theretofore she had talked of leaving it to "faithful" employees. George Presley, who had worked for her for over 12 years and was close to her by virtue of being manager several of the latter years, testi- fied that Murphy has always said that she did not want anyone telling her what to do: and that she has several times expressed the thought that she would "close up " Although at this meeting of drivers President Murphy said, after opening the meeting with the above reference to the Union, that they were not gathered to talk about the Union, all the facts concerning the meeting proved that in fact the meeting was held to try to talk the employees out of supporting the Union and out of bringing it into the plant. On the preponderance of the evidence I believe and find that Murphy's threats to reduce the working hours to 40, and to close the plant, if the Union came in, were calculated to interfere with, restrain, and coerce employees in the rights guaranteed in Section 7 of the Act, Respondent thereby violating Section 8(a)(1). In the context of this meeting , Murphy's statement that KENTUCKY NEWS, INCORPORATED 711 she would leave her money to her "faithful" employees carried the implication that she would do so only if the employees rejected the Union and that the recipient "faithful" employees would be those who helped reject the Union. By this implied promise of benefit Respondent further violated Section 8(a)(1) of the Act. Murphy's hostility toward the Union was further disclosed on September 28 after the Union had that morning won the election. She called into her office three employees who owed her money and who were paying off their indebtedness weekly. At least one of them, employee Weedman, was, by arrangement with her, paying her off at the rate of $5 per week. She told all three of them that hereafter she wanted them to pay off at the rate of $25 per week. In addition to these threats and this promise of benefit, about August 24 or 25, President Murphy asked several employees if they had attended a union meeting the night before and whether refreshments had been served; and on August 25 in an employment interview, she asked the applicant, Leroy Carney, how he felt about the Union. When he indicated he was against it she told him he could be of help to her and she to him. In the context of, and substantially contemporaneous with, the other violations of the Act found herein, these interrogations about attendance at a union meeting and whether an applicant was in favor of the Union reasonably tended to interfere with, restrain, and coerce employees in the rights guaranteed in Section 7 of the Act, Respondent thereby further violating Section 8 (a)( I ). Sometime in September Murphy told employee Ronald Ryan that she did not need a union in there and would do everything legal to keep it out. 2. Expressing the same hostility to the Union as Murphy, in mid-September, Lewis Murphy, who was no relation to Murphy, told employee Alfred Moore that no union was needed, and that if the Union came in, Moore could be cut to 40 hours or could lose his job, and that if he were Moore, he would not vote for the Union. Lewis Murphy told Moore he would try to get him a raise if he had been there over six months, but that "If they joined the Union they probably wouldn't get it." On August 14, the day Blair signed a union card, Lewis Murphy told him, according to Blair's uncontradicted testimony, that "You guys think they are going to be smart to get this Union in here but it's not going to work. Mrs. Murphy won't let it work. She will close the doors first " During the organizing period Lewis Murphy told a group of employees that if they vote for the Union they might lose their jobs. At the time of these threats and this promise of benefit, Lewis Murphy was the "inside boss" over the makeup table. He responsibly directed employees in bringing stacks of magazines, books, and newspapers up near the makeup table, and then in preparing the bundles in correct amounts. Employee Leroy Carney testified that from September 16 to 21, when Carney worked on the makeup table making up the bundles, Lewis Murphy told him what to do. When they reported for work in the morning Murphy would tell employees to stack books or to go to the other end of the building (about 150 feet away) and strip magazines. He told them what to do that day. If he needed additional help on the make-up table, he would go and get someone and bring them up to the table and assign them work. Lewis Murphy assisted the crew by working on the table from time to time. For several weeks during this period he served as manager (under Murphy) of the entire operation, a position it is doubtful he would have been given if he were not previously a part of management . If Lewis Murphy's authority to assign and direct employees in their work did not involve the use of independent judgment, then some seven or eight employees worked at one end of the building, 150 feet from the other end of the building where other employees worked under other supervision, under routine guid- ance without the exercise of independent judgment. As the proper assembling of the bundles and the routes, which had to be done correctly, was under his supervi- sion, I hold that Murphy had to use independent judgment in the exercise of his authority. Murphy had some words with an employee and discharged him. When Murphy explained the situation to President Murphy the latter called the employee over and talked to him and told him she was backing Murphy 100 percent, that if Murphy said he was fired he was fired. Upon the above facts I find that in August and September, Lewis Murphy had authority to discharge employees and responsibility to assign and direct them in their work, that the exercise of his duties required the use of independent judgment, and that he was a supervisor within the meaning of the Act It follows, and I find, that by his threats and promises of benefits to employees Respondent further violated Section 8(a) (1) of the Act. 712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. In late August George Presley interrogated employee Lloyd Crady about what he thought about the Union. Under all the circumstances of this case these interro- gations, if they were imputable to Respondent, reasonably tended to interfere with, restrain, and coerce employees in the rights guaranteed in Section 7 of the Act, further violated Section 8(a)(1). On this record it is clear that at the time of these interrogations Presley was a supervisor within the meaning of the Act He had worked for Respondent for some 12 years and had served as manager of the business, the highest authority under President Murphy, for about 2 years prior to late 1964, when he had a misunder- standing with President Murphy and resigned as manager; he did not leave Respond- ent's employ but continued working as a driver. He became manager again in 1965 and the testimony is in dispute as to just when in 1965. Presley testified he became manager in early October, just after the September 28 election. However on Septem- ber 15, 1965, both Presley and Lewis Murphy were excluded from eligibility to vote by the Company and the Union on the ground that they were supervisors. Murphy told Presley he was excluded because he was considered to be a foreman or a super- visor. Murphy testified (although Presley did not so testify) that he did not again become manager until he got a wage increase, and this was during the week of October 7, 1965. However, in his pretrial affidavit given September 15 Presley said that he was helping Lewis Murphy supervise about 30 men. On about September 21 Presley changed the assignment of employee Carney from makeup crew to route- man. At about the same time, or before, Presley, on behalf of Respondent, made arrangements with Carney to repair one of Respondent's trucks. On September 15 President Murphy told an employee he was discharged for refusing to obey an order of Presley's the day before. Presley interviewed applicants for employment prior to the time he allegedly became manager again and hired a man just before Labor Day 1965. On September 15 an employee reported to Presley that he would be absent because he had to go to court and Presley relayed that word to Murphy. On election morning, September 28, Presley told the men not to sign in, and later Murphy had him call the police. Presley testified that "I had a couple of men go up and vote early." On September 29, when Carney reported to work, Presley told him he could not sign in When Heightchew took over the Fort Knox route in April or May 1965, Presley told him to give a customer full credit for a missing bundle val- ued at $38. Upon all the above facts and on the preponderance of the evidence I conclude that after he resigned as manager Presley continued to be looked upon by the employees as having, and in fact continued from time to time to exercise, super- visory authority; that during August and September 1965, Presley performed super- visory duties for Murphy, including interviewing and hiring applicants and assigning duties to employees, and that the performance of these duties required the use of independent judgment. It follows and I conclude that Respondent was responsible for his interrogations of employee Crady in late August, as found above, thereby further violating Section 8(a)(1) of the Act. C. The discharge of Baker, Blair, and Mattingly Within hours after she received the Union's demand letter on August 18 in the form of a request that she recognize the Union as the employees' exclusive bargain- ing representative,2 Murphy, admittedly very angry at the time, discharged all six of the employees then working on the makeup table. About 2 days later she took back the two youngest in seniority and an old employee, Max Bennett, who was only temporarily working on the makeup table; but despite their several requests, she refused to take back three of long seniority: George Baker, James Mattingly, and Richard Blair. The record did not show the exact time on August 18 when Mrs. Murphy received the Union's demand letter; but only that mail arrived at the plant at 8 a.m., 9 a.m., and 3 p.m., and that she received this letter that day. As August 18 fell on a Wednesday in the middle of the month, the employees on the makeup table were especially busy, because that was the time for delivery of the monthly magazines in addition to the regular deliveries. The makeup or inside 'The letter read: "Be advised that your employees have voluntarily joined General Drivers, Warehousemen and Helpers. Local Union No 89 We are therefore requesting of you recognition as their exclusive bargaining representative We would appreciate an opportunity to meet with you for the purpose of discussing this matter." KENTUCKY NEWS, INCORPORATED 713 employees, classified on the eligibility list as laborers, made up and assembled the bundles for each route, getting them ready to be loaded on the trucks for delivery. The employees on the makeup table were especially busy and even overloaded at this time, also, because during the period just before August 18 they were short handed. One of them, Blair, had been off for 4 days in bankruptcy court; another, Moore, had been off sick 2 days; two others, Marvin Jones and Jim Mouser, had quit, and during this period Lewis Murphy assisted at the table only occasionally. During these absences there had been only one replacement, and it took one of the seasoned men some time to show him around. As there were normally only seven or eight on the makeup table, these absences were significant. Murphy, who kept close tabs on her establishment, must have known all of this, and must have known that all of these factors were contributing to the makeup table's having been behind for the last several days. At about 4:30 on August 18, Lewis Murphy asked the makeup group to stay awhile that evening and if necessary, to come in an hour early the following morn- ing. All the employees agreed to do this. They were getting up the bundles and routes for delivery the following day, a regular delivery day, and were behind schedule. A few minutes later Murphy came out to the table, asked how they were getting along, and then paced up and down, telling the men they were slow and that if they could not get their work out she was going to get a whole new makeup crew. Then she and Lewis Murphy went to her office for about 20 minutes, during which, according to her testimony, she got madder and madder. To be remembered is that 4 days before Murphy had accused, "You guys of being smart at bringing in the Union. Then she returned to the men and discharged them in high anger. The men signed out at about 6:15 p.m. According to the credited testimony of James Mattingly, who impressed me as a very credible witness, if they had been allowed to continue, they could have finished their work by 9 o'clock that night. Although Murphy frequently threatened employees with discharge, this was the first time she had ever discharged the entire makeup crew at one time .3 The following day Mattingly telephoned Murphy, and during the conversation President Murphy said, "somebody was misleading" Mattingly and referred to "them playing around." President Murphy also told Mattingly that he always did his work. The 8(a)(3) charges covering these three discharges were filed by the Union on September 1. Shortly thereafter, by appointment Mattingly went to Murphy's office to try to get his job back. Presley and Murphy were there. President Murphy said she would leave it up to Presley whether she would take Mattingly back to work. Presley said he would like to take Mattingly back but that Murphy's lawyer had advised her not to take him back until the charge filed against her was "taken care of." Then Murphy told Mattingly she could not take him back at this time because her lawyer advised her not to, that she would like to but couldn't, that Mattingly "might be able to (come) back after the charges were taken care of." Two days after his discharge, on August 20, George Baker returned and asked Murphy for his job back. During his 4i/2 years of employment by Respondent, this was the first time he had been in her office. She replied, according to his undenied, credible, and credited testimony, that he could not have his job back because he was jeopardizing her business. Asked by Baker what that meant, she replied, "You were a Union observer last year 4 and you are trying to bring a union in here now." Baker observed that, "My four years with you don't mean a thing." and President Murphy replied, "My forty years don't mean a thing." Richard Blair telephoned Murphy twice August 20 to try to get his job back. She accused him of stalling on the job, which he denied. She said he was jeopardiz- ing her business by trying to get the Union in. Respondent contended that the six employees on the makeup table were dis- charged because they were stalling'and had been for some time, and that this was why they were behind in their work. They had been behind for several weeks. Con- tributory to this state of affairs, however, as has been seen, was the fact that they had been short handed during this period. Possibly contributory also was the fact that they had been putting in long hours at their work. During the week for which 3'Before leaving that night Blair went to Murphy and begged her not to fire him, speaking of his family which he had to take care of. Murphy replied, "The hell with your family. I got myself to look after " 6 A year before a different Teamsters local had tried to get in and Baker had served as the union observer at the election 714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD August 7 was the payday Baker, Blair, and Mattingly had worked 531/2 hours. The following week Baker and Mattingly had worked 541/2 hours , and Blair had worked 45 hours although he was off one day. After these figures came into the record Murphy testified that it was before August 7 that they were stalling. If this was so then the only new element in the situation on August 18 was Murphy's receipt of the Union's demand letter and Murphy's increasing anger as she read it and con- templated its meaning to her. If stalling was the cause for the discharges , no rea- son appears why the discharges did not occur while the alleged stalling was occurring rather than after it had ceased. President Murphy's explanation for permitting three of the six discharges to return to work a day or so after the discharges was that she cooled off somewhat, thought the matter over , and that some of the men were "very new on the table" and "shouldn't be blamed exactly for the whole crew not having the routes tied." Two of the men who returned , Moore and Reed, were relatively new employees, but the third who returned , Bennett, had worked for Respondent for 25 years. When Moore returned to work on August 20, Lewis Murphy told him they had not been doing their work fast enough , that Murphy was going to try to get Mat- tingly, but not Baker back, that Baker was behind the Union. Respondent adduced testimony that in recent months the establishment was piled high and cluttered with books and magazines that should have been delivered of returned to where Respondent got them. This proof did not clearly relate to the condition prior to the August 18 discharges , and the condition may well have resulted from these discharges and Respondent's other unfair labor practices found herein. Conclusions : Upon the preponderance of the evidence I conclude that Mrs. Murphy discharged the entire makeup crew on the evening of August 18 out of rage at receiving the Union's demand letter and refused to take back Baker, Blair, and Mattingly because she suspected them of trying to bring the Union in. The defense that the makeup crew had been stalling for some time was clearly a pretext, as witnessed by the fact that after the figures as to the hours-per-week-worked came into the record Murphy testified that the stalling had occurred prior to August 7. From the fact that Baker had been the union observer at an election involving another Teamster local about a year before , Murphy must have assumed that he was also behind this year's organizing effort and that his long -time working com- panions, Blair and Mattingly, were allied with him. Thus, on August 19, President Murphy told Mattingly that somebody was misleading him, and on August 20, in separate telephone conversations , she accused Baker and Blair of trying to bring the Union in. Of note also is that on August 20 Supervisor Lewis Murphy told Mattingly he was not going to try to get Baker and Blair back because they were behind the Union . To be remembered also is that on August 14, Supervisor Lewis Murphy had accused Blair and other "guys" of thinking they were smart by bring- ing the Union in. Upon the preponderance of the evidence and the entire record considered as a whole, I hold that by discharging and refusing to reinstate Blair, Baker , and Mat- tingly because of their suspected union activities and because of the Union 's request to be recognized, Respondent interfered with, restrained , and coerced employees in the rights guaranteed in Section 7 of the Act and thereby further violating Section 8(a)(3) and ( 1) of the Act. D. The events of September 28, 1965 As appears above, the election was held in the plant on September 28 from 6:45 to 7:30 a.m. The Union won 17 to 5. When the men arrived for work that morning at the usual hour of 7, they did not start working because Supervisor George Presley told them not to until the election was over. So most of them voted and waited around for instructions. When an employee asked Presley what he thought would happen he replied that he thought Murphy would close the doors and lock the place up . When employee Robert Heightchew, who served as the Union's observer at the election, came back where the men were and reported that the Union had won the election , Presley said that they were not going to work until Murphy come out. About a half hour after the conclusion of the election Murphy, who had been present all morning, came out to the men and asked them if they were drunk. An employee asked Presley if they were going to work, and Presley relayed the question to Murphy. KENTUCKY NEWS, INCORPORATED 715 She replied in the negative , told Presley not to let the men sign in,5 and added that she was just going to lock the doors .6 All but five or six of the employees imme- diately walked out.7 Murphy made no statement or move to hold them in, and did not tell them to go to work. Nor did she address herself at all to the five or six employees and Presley and Lewis Murphy who remained inside. Presley knew that those who stayed in were not in favor of the Union. The men sat and stood around outside on company property for about 2 hours, during which they were orderly and did not interfere with the loading of one truck and the unloading of another in the area . Late in that 2-hour period Murphy went back to them, taunted and dared them by asking if any of them wanted to hit her and by stating that if they were men they would hit her. No one did or made any offensive move or statement toward her. Sometime during that period she told them to get off her property and she directed Supervisor George Presley to call the police. She returned to the men later on and announced that all who wanted to could return to work. They all returned immediately. The General Counsel contended that Murphy locked the employees out that morning, and Respondent contended that to the contrary , the employees went on strike. There had been no discussions among the employees about striking or walking off the job. There was no picketing , there were no picketing signs, and the employees returned to work immediately when invited. Further, at that moment, there was no indicated reason to strike; the Union had won the election, but had not yet requested to bargain. So, I conclude the employees did not go out on strike. The preponderance of the evidence supports the conclusion that President Murphy locked out for about 2 hours that morning the employees she suspected of voting for the Union. This is a logical conclusion from the fact that she sent out about the same number as had voted for the Union and did not send out about the same number as had voted against the Union, the group Supervisor George Presley knew were against the Union ; and from her taunting and daring the locked- out employees while they were outside. She had previously threatened to close up rather than accept a union in her place of business and Supervisor Lewis Murphy had earlier made the same threat. Her first act toward the employees after the Union had won the election was to ask them if they were drunk; and then, when the employees wondered aloud if they were to go to work, she told them no, that she was going to close the doors Just a few minutes before, Presley had predicted she would do this. The employees must have interpreted this as the threatened retaliation in the event the Union won the election, and reacted accordingly by leaving, assuming that they were not going to be allowed to go to work. The fact that Murphy made no move to stop them as they were leaving, or to invite them back for 2 hours thereafter, confirms that it was she who was keeping them from working , not they. She was the absolute boss, and her statement that they were not to go to work and that she was going to lock or close the doors, signified to the employees that there was no work for them and that they were symbolically locked out. The fact that the doors remained open and a truck was being loaded and another unloaded, did not mean that they could have gone to work. They could not have gone to work until Murphy told them to, and, knowing her, they knew that. The record is devoid of any evidence that they could have returned to work any sooner than they did, and their return was occasioned by Murphy 's invita- tion that they return , not by any abandonment of a strike by them. Upon these considerations and the entire record I believe and hold that Murphy locked out all but five or six of the employees that morning, all but five having voted against the Union in the election, in retaliation against the employees for having supported 5 Normally the men signed in by signing a piece of paper when they arrive That morn- ing some of the men had already signed in. Presley told at least one that he was not supposed to 9 Some witnesses quoted her as saying she would close the doors. Which word she used did not change her meaning to the employees or my conclusions herein. Presley quoted Murphy as saying it was cool. As this was uncorroborated and not consistent with the other testimony I do not credit it I Respondent's testimony contended Heightchew led the employees out. The General Counsel's witnesses, including Ieightchew, denied this. Whether he did or did not does not affect my findings below If he did, that fact helps support the conclusion that Heightchew's discharge was a violation of the Act. 716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Union at the polls and having selected the Union as their collective -bargaining representative . By this act for this purpose , Respondent discriminated against employees in regard to their tenure and conditions of employment to discourage further support for the Union, thereby violating Section 8(a)(3) and (1) of the Act. According to the credible , uncontradicted , and credited testimony of Alfred Moore , sometime on September 28 after the men had returned to work, President Murphy expressed the thought to the employees that now that they had gotten the Union in, it was going to get harder for them. This was consistent with her earlier threat, seen above, to reduce their work hours to 40 hours per week, the first thing if the Union came in, and to close down the plant This was consistent with her action the same day, set forth above, of increasing the weekly amount by which those indebted to her should pay her off. By this September 28 threat, that things would now get harder, Respondent further interfered with, restrained , and coerced employees in the rights guaranteed in Section 7 of the Act and thereby further vio- lated Section 8(a)(1). E. The reverence of Leroy Carney Leroy Carney worked for Respondent from September 6 to the evening of Sep- tember 28, 1965, a period of 3 weeks and 2 days. For the last week, he drove a truck and delivered the bundles on a route . He also had a night job working at a gasoline station until 9 p.m. He signed a union card when the others did. He was not on the eligibility list to vote in the election and did not vote in the election, because he was not an employee during the eligibility period. He was one of those locked out that morning by Murphy, whom she suspected of voting for the Union. For nearly a week prior to his severence on September 28, Carney had been los- ing sleep at night because of special circumstances. For four nights he had been putting a new connecting rod in one of Respondent 's trucks, by arrangement with Supervisor George Presley. He did this at the filling station where he worked. On Monday night, September 27, he had worked until after midnight completing the truck job. He had worked that late and finished the job because Supervisor Pres- ley had told him that if he did not have the truck done by Tuesday, he would not have a job.8 In addition , Carney's wife had given birth to a baby the previous Fri- day morning, and he had lost sleep the night before that event. When the men who had been locked out September 28, including Carney, returned to work that morning, they loaded their trucks and started on their deliv- eries. Normally deliveries would have begun early that morning. Carney did not get started on his deliveries until around noontime . He had about 34 stops to make on his route, which was a large one . He returned to Respondent's place of business around 5 p.m., having made only about 13 of the 34 stops on his route. Remaining on his truck were bundles for delivery at 21 stops. Carney told Murphy that as a new man he could not possibly start his deliveries on that route, one of the largest routes, at noon and be finished by 5 o'clock, normal quitting time. Mur- phy told him that he would have to work overtime and finish his deliveries. Car- ney told her that he had lost a lot of sleep working on the truck and because of his wife's being in the hospital and the birth of his baby, and that if he went back out, he might fall asleep at the wheel and have an accident . He told her that Pres- ley had threatened Carney would be out of a job if he did not finish the truck the night before. Murphy said that she did not authorize Carney to work on the truck, that he was working on his own time on the truck , that his wife's being in the hos- pital was no concern of hers, but that the routes were her concern and that she wanted them delivered. Carney told her that she owed him some money for repairing the truck and asked if she was going to pay him . When she replied in the negative, he told her that he had a check of hers from a customer and that he could take what she owed him out of that. She replied that she would have pay- ment stopped on the check . Before the conversation ended , Carney gave 9 Murphy 8 Presley admitted asking Carney several times when he would be finished with the truck but denied telling him that if he did not finish it by a certain time he would be out of a job. As Carney was a credible witness , and as I do not believe Carney would have worked so late Monday night finishing the truck job if he had not felt Presley 's pressure on him, I credit Carney's testimony 8 Murphy testified Carney threw the check at her and it landed on the floor As her pretrial affidavit said that Carney gave her the check and said nothing about his throw- ing it at her, I do credit Murphy's testimony that he threw it. KENTUCKY NEWS, INCORPORATED 717 his bill for repairing the truck (in the amount of about $56) and she said that she would pay it, but not that night. Carney also gave Murphy her check from the customer. During the conversation, Murphy gave Carney to understand that he would have to work that night, that the bundles on his route had to be delivered. He said that he was not going to work that night. She replied that if he did not work that night and deliver his route that he would no longer have a job. He told her that he would be taking the risk of killing somebody with the truck and killing himself if he went out. Murphy told him that if he did not go out, he was quitting, that she was not discharging him. Carney did not go out again that night and did not finish his deliveries. When he came in the following morning, George Presley would not let him go to work and told him he had been discharged the night before. Murphy was capable of a compassionate, generous, and helpful attitude toward her employees, as shown by her talk through the years of leaving her money to the employees, by her loans to employees, and by Presley's estimate that "she would do anything for us" even though "in a way she had been tough with all of us." Had she not been in a "tough" mood because of the results of the election she would have understood that Carney had been working hard and overtime in the interest of the Company and was at that time physically exhausted. She would have checked with Presley about how hard and late the man had been working on the truck. It is inconceivable to me that if she had been in a normal frame of mind she would have insisted that Carney go out on his route again, at night, at great risk of a pos- sible accident and damage to persons and property including one of her own trucks. Instead of being so "tough" toward him, it appears likely to me that, before insist- ing he go out at such great risk, she would have first made some effort to, or had Presley try to, find another driver to finish the route that night. The fact that she was so adamant toward Carney and made no effort to alleviate his situation is con- vincing, on all the evidence in this case, that she accepted his situation as an oppor- tunity to force him to quit. A few weeks before as an applicant Carney had told her he was against the Union. Then that morning he was among the group Murphy locked out suspecting that they were the ones who had voted for the Union. I find on the preponderance of the evidence that President Murphy constructively and discriminatorily discharged Carney by demanding that he return to his route know- ing that physically he could not, because she suspected he voted for the Union con- trary to his earlier expressed disinterest in the Union, and because she was making it "harder" on employees now that they had supported the Union at the polls. Thus by this discriminatory constructive discharge she was attempting to discourage fur- ther employee interest in and support tor the Union, thereby further violating Section 8(a)(3) and (1) of the Act. F. The discharge of Robert Heightchew Robert Heightchew worked for Respondent for about 9 months, from January or February 1965, to September 29, 1965, the day after the election. From April or May until the day before his discharge, he drove the Fort Knox route. Early in August Heightchew initially obtained union cards from the union representative after employees had been discussing the possibility of finding a union to represent them. Within a couple of days some 15 employees had signed the cards. There was no direct proof that Respondent knew of this organizing activity of Heightchew. However, Heightchew served as the union observer at the election on September 28, and Respondent knew that. Prior to the opening of the polls Murphy protested to the Board agent that George Baker should be the union observer instead of Heightchew. When, mid-morning September 28, Murphy invited the employees to return to work after the lock out, she told Heightchew he could not go back on the Fort Knox route, that he was to go to work on the makeup table; which Heightchew did the rest of that day. The following day, September 29, after Heightchew had been working about an hour on the makeup table, President Murphy asked Heightchew where that bundle of magazines that was missing on the Fort Knox route was, adding that $50 worth of magazines were missing. She said it in such a way as to indicate to Heightchew that she was accusing him of stealing a bundle. He replied that he knew nothing about a bundle being missing, but that he knew that on one stop the customer had told him some magazines were missing. He added that he did not steal anything from her. She said that she wanted the bundle back. Heightchew said that he would like to go look for the alleged missing bundle, but Murphy would not let 718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD him use a truck to do that. He told her he had no other means of conveyance. The record revealed no reason why Murphy refused Heightchew the use of a truck on this occasion. During his approximately 5 months of driving the Fort Knox route, Heightchew had several times made a mistake in "billing" and had been spoken to by Murphy about that. There were occasions when he left a bundle at the wrong stop and had to go back and correct his error. Heightchew credibly testified that other drivers also had had merchandise missing. There was no convincing proof that Heightchew committed any more errors than other drivers or was a less satisfactory employee than the other drivers. Murphy testified that at undesignated times there had thrice before been shortages on the Fort Knox route (presumably while Heightchew was driving it) and that she had overlooked it without mentioning it to the driver. Before overlooking it she had checked to see if there was anything wrong with "the tickets" and found nothing wrong. Respondent's defense did not contend Heightchew had ever stolen anything from Respondent and there was no proof that he had. The record showed that Respond- ent's operation was somewhat lacking in efficiency. Murphy admitted that errors were sometimes made on the makeup table, and that nobody could say exactly how the errors were made on Heightchew's route; except that his delivering bundles to the wrong addresses were his errors. It thus appears, that having overlooked alleged missing bundles before, Murphy took Heightchew off his route and put him onto the makeup table almost immedi- ately after, to her knowledge, he served as union observer at the election; and the next morning first confronted him in an accusatory manner with an allegedly ruissing bundle. He replied that he did not know about any missing bundle; but if there was one he would be glad to go and find it. She said she wanted the bundle back and that Heightchew was not working for her anymore until he got it. When he told her he had no means of going out and looking for the missing bundle unless she would let him use one of the trucks, she replied that he no longer worked for her. He then asked several times to be allowed to return to work on the makeup table and she refused this. Although Murphy testified that Heightchew was "very smart and very arrogant," I find on the entire record that Heightchew was justifiably provoked by her unproved accusation and her unwillingness to permit him to try and find the bundle and clear his name. It is clear to me on the preponderance of the evidence, and I find, that Height- chew was transferred from his route to the makeup table and later discharged pur- suant to Murphy's "get tough" policy; that Murphy demoted and discharged Height- chew in retaliation against the employees having selected the Union at the election, and to discourage further support for the Union by making an example of the union observer at the election. The preponderance of the evidence supports the further conclusion, which I reach, that the alleged missing bundle was but a pretext for the treatment of Heightchew. It was not proven that in fact the bundle was missing, or if so, Heightchew had stolen it. Nor was it proved how the alleged missing bundle was among the missing; whether the error was Heightchew's or the fault of the makeup crew. Further, prior to the election and Heightchew's participation in it, Murphy had several times overlooked and not blamed Heightchew for some mer- chandise thought to be missing from his truck. At least one reason for her not holding Heightchew responsible on the prior occasions, was the fact that she was not certain he was the proper one to blame. The circumstances were similar on election day when it was not proven that it was he who was at fault if anyone. Further, although other drivers had had shortages from time to time, there was no proof that any driver was ever discharged for such shortages. Upon the above facts and considerations, the preponderance of The evidence and the entire record considered as a whole, I hold that Respondent transferred Height- chew to the make-up table and discharged him in order to discourage further mem- bership and activity in the Union, Respondent thereby further violating Section 8(a)(3) and (1) of the Act. G. The October 5 discharge of Alfred Moore Alfred Moore, a young man, was one of the makeup crew who was discharged on August 18 and reinstated on August 20. He was a relatively new employee, having been hired in June 1965. He had signed a union card when other employ- ees did. As has been set forth above, in mid-September Supervisor. Lewis Murphy KENTUCKY NEWS, INCORPORATED 719 threatened Moore that if the Union came in he would be cut to 40 hours or could lose his job, and Murphy advised Moore to vote against the Union. Moore was one of the employees Murphy locked out on September 28 because she suspected they had voted for the Union and in retaliation against their support for and selection of the Union at the polls. Moore was one of the employees Lewis Murphy threatened with possible job loss if they voted for the Union. Moore was discharged a second time on October 5 by Supervisor George Presley upon orders from President Murphy. The latter allegedly smelled liquor on Moore's breath after he had been at work about 45 minutes and instructed Presley to check, himself, and if he agreed; "You know the procedure when you find a man drinking." Presley went close to Moore, allegedly smelled liquor, and discharged him. Moore was replaced on the makeup table by James Fitzgerald who had been working at the other end of the establishment. The evening before Moore and Fitzgerald had consumed a "half pint between us" at Moore's home starting shortly after 5 p.m. Moore drank no liquor the fol- lowing morning, the morning of his discharge, according to the credited testimony of Fitzgerald, who spent the night at Moore's house. Moore drove his car to work, picking up his usual riders, who testified he drove as usual and they smelled no liquor on him. It was not claimed that he was drunk or under the influence of liquor on the morning of his discharge or that his work performance that morning was anything less than usual. Moore was rehired by Murphy about 3 weeks later. Prior to this President Murphy had tolerated a good deal of drinking, some of it on the job, by Supervisor Lewis Murphy. Employee Heightchew, who impressed me as a very credible witness, testified that Lewis Murphy "is drinking just about every morning and he is a pusher and he comes in with alcohol all over him and he is just reaming you the whole time you are putting books together and it is almost impossible for you to do your work and do it right because I know, I worked under the man." President Murphy testified that she had discharged Lewis Murphy "on the average . . . 15 or 20 times for drinking. Drunk or sober he is one of the best table men we ever had. We still have to operate a business. We can stand one man with liquor on his breath but we can't stand all of them." Of course Murphy was rehired all of these times after he was discharged. There was no evidence that anybody but Moore had ever been discharged for liquor on his breath as distinguished from being drunk or drinking on the job. Upon the preponderance of the evidence in this case and upon the entire record considered as a whole I believe and find that liquor on his breath was but a pre- text and that the real reason for Moore's discharge on October 5 was because of his suspected support of the Union at the election and to discourage further employee support for the Union. If liquor on his breath was the real reason it is inconceiv- able that he would have been replaced on the makeup table by Fitzgerald, who had been drinking with Moore on an even basis the evening before. After his return to work following his August 18 discharge with Baker, Blair, and Mattingly, Moore was threatened and advised by Lewis Murphy not to vote for the Union. On elec- tion morning Moore was one of those locked out by President Murphy because she suspected them of having voted for the Union and in retaliation against that sup- port of their selection of the Union at the polls. When they returned, as has been stated above, Murphy told the employees that now that they had gotten the Union, it was going to be harder for them. Since then she had exacted faster repayment from her employee debtors, and unlawfully discharged Carney and Heightchew. As there was no proof of any change in this "get tough" policy resulting from the employees' support of the Union at the election, and as Murphy suspected Moore of being one of those who supported the Union, I conclude that this "get tough" policy also governed her action in seizing upon Moore's "breath" on October 5 as a pretext to make things harder for him and other employees by discharging him. By discharging him Murphy was reminding the employees once more not to con- tinue the support they had recently given the Union at the polls. By this discharge Respondent further violated Section 8(a)(3) and (1) of the Act. N. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section II, above, occurring in connection with the operations of Respondent described in section I, above, have a close, inti- mate, 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. 720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD V. THE REMEDY Having found that Respondent has engaged in the unfair labor practices set forth above, I recommend that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. Respondent having unlawfully discharged George Baker, James Mattingly, Rich- ard Blair, Leroy Carney, and Robert Heightcrew because of their actual or sus- pected union activities and because of the reasons stated above, and not having offered them reinstatement, I recommend that Respondent offer to these five employ- ees immediate and full reinstatement to their former or substantially equivalent posi- tions 10 without prejudice to their seniority and other rights and privileges and make them and Alfred Moore whole for any loss of pay they may have suffered by reason of the discrimination against them by payment to each of them of a sum of money equal to that which he normally would have earned as wages from the date of his discharge," the date of the discrimination against him to the date when, pursuant to these recommendations , Respondent shall offer him reinstatement , less his net earnings during said period (Crossett Lumber Company, 8 NLRB 440, 497-498), said backpay to be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289. The backpay obligation of Respondent shall include the payment of interest at the rate of 6 percent to be com- puted in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. As pro-vided in the Woolworth case, I recommend further that Respondent make avail- able to the Board on request, payroll and other records in order to facilitate the checking of the amount of backpay due. The violations of the Act committed by Respondent are persuasively related to other unfair labor practices proscribed by the Act and the danger of their com- mission in the future is to be anticipated from the Respondent's conduct in the past. The preventive purposes of the Act will be thwarted unless the Order is coextensive with the threat. In order therefore to make more effective the interdependent guar- antees of Section 7, to prevent a recurrence of unfair labor practices, and thereby minimize industrial strife which burdens and obstructs commerce and thus effectu- ate the policies of the Act, I shall recommend that Respondent be ordered to cease and desist from infringing in any manner upon the rights guaranteed in Section 7 of the Act. Upon the basis for the foregoing findings of fact and the entire record in the case, I make the following: CONOLUSIONS OF LAW 1. Kentucky News, Incorporated, of Louisville, Kentucky, is engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. General Drivers, Warehousemen and Helpers, Local Union No. 89, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. By interrogating employees as to their attendance at a union meeting and by interrogating an applicant as to whether or not he was in favor of the Union; by threatening to reduce the working hours to 40 and to close the plant; by threatening that employees would lose their jobs if the Union came in; by threatening that em- ployees who voted for the Union might lose their jobs; by threatening that if the Union came in things would get harder on the employees; by promising to leave money to faithful employees who helped reject the Union at the election; by threatening that em- ployees who join the Union probably would not get a raise; and by other acts; Re- spondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a)( I) of the Act. 4. By discriminating in regard to the hire and tenure of employment of George Baker, James Mattingly, Richard Blair, Leroy Carney, Robert Heightchew, and Alfred Moore, thereby discouraging membership in, sympathy for, and action on behalf of General Drivers, Warehousemen, and Helpers, Local Union No. 89, affili- 10 The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65 NLRB 827. n The discharge dates were as follows • Baker, Blair, and Mattingly, August 18; Carney, September 28 , Heightehew, September 29 ; Moore, October 5, Moore's backpay runs until his reinstatement some 3 months away. KENTUCKY NEWS, INCORPORATED 721 ated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, 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. By locking out employees in retaliation against the employees for having sup- ported the Union at the polls and having selected the Union as their collective- bargaining representative, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (3) and (1) of the Act. 6. The aforesaid labor practices are unfair labor practices affecting commerce 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 considered as a whole, I recommend that Ken- tucky News, Incorporated, of Louisville, Kentucky, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in General Drivers, Warehousemen and Helpers, Local Union No. 89, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organiza- tion of its employees , by discriminating in regard to the hire and tenure of their employment or any term or condition of employment; (b) Discouraging membership in the above-named or any other labor organiza- tion of its employees by locking out employees because they have selected the Union as their collective-bargaining representative; (c) Interrogating employees as to their attendance at a union meeting; interrogat- ing an applicant for employment as to whether he is in favor of the Union ; threat- ening to reduce the working hours to 40 and to close the plant, threatening that employees will lose their jobs if the above-named Union comes in; threatening that employees who voted for the Union might lose their jobs, threatening that if the Union came in things would get harder on the employees; promising to leave money to faithful employees who help reject the Union at an election; threatening that em- ployees who joined the Union probably would not get a raise. (d) In any other manner interfering with, restraining or coercing its employees in the exercise of their rights to self-organization , to form labor organizations, to join or assist General Drivers, Warehousemen and Helpers , Local Union No. 89, affiliated with the International Brotherhood of Teamsters , Chauffeurs, Warehouse- men and Helpers of America, or any other labor organization, to bargain collec- tively through representatives of their own choosing and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protec- tion, or to refrain from any and all such activities, except to the extent that such right might be affected by an agreement requiring membership in a labor organi- zation as a condition of employment , as authorized in Section 8(a)(3) of the Act, as modified by the Labor Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action, which I find will effectuate the policies of the Act: (a) Offer reinstatement to George Baker, James Mattingly, Richard Blair, Leroy Carney, and Robert Heightchew , in accordance with the recommendations set forth in "The Remedy." (b) Make whole George Baker, James Mattingly , Richard Blair, Leroy Carney, Robert Heightchew, and Alfred Moore for any loss of pay they may have suffered by reason of Respondent's discrimination against them in accordance with the rec- ommendations set forth in "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 records necessary to analyze the amount of backpay due and the rights of George Baker, James Mattingly, Richard Blair, Leroy Carney, Robert Heightchew, and Alfred Moore, under the terms of this Recommended Order. (d) Notify the employees - here found discriminated against if 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, as amended, after discharge from the Armed Forces. 243-084-67-vol. 159 47 722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (e) Post at its place of business in Louisville , Kentucky, copies of the attached notice marked "Appendix." 12 Copies of such notice to be furnished by the Regional Director for Region 9 (Cincinnati , Ohio), shall, after being signed by the representative of Respondent, be posted by Respondent and be maintained by it tor 60 consecutive days thereafter in conspicuous places, including all places where notices to all employees are customarily posted . Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 9, in writing , within 20 days from the date of receipt of this Decision, what steps the Respondent has taken to comply herewith.i3 10 In the event that this Recommended Order is adopted by the Board , the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice. If the Board's Order is enforced by a decree of a United States Court of Appeals , the notice will be further amended by the substitution of the words "a Decree of the United States Court of Appeals , Enforcing an Order" for the words "a Decision and Order." is In the event that this Recommended Order Is adopted by the Board , this provision shall be modified to read: "Notify the Regional Director for Region 9, 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 effectuate the policies of the National Labor Rela- tions Act, as amended, we hereby notify our employees that: WE WILL NOT interrogate employees as to their attendance at a union, meeting. WE WILL NOT interrogate any applicants for employment concerning their union membership or sympathy. WE WILL NOT threaten to reduce the working hours of employees to 40 hours per week if General Drivers, Warehousemen and Helpers , Local Union No. 89, affiliated with the International Brotherhood of Teamsters , Chauffeurs, Ware- housemen and Helpers of America comes in. WE WILL NOT threaten that employees will lose their jobs if the Union comes in. WE WILL NOT threaten that employees who voted for the Union might lose their jobs. WE WILL NOT threaten that if the Union comes in, things will get harder for the employees. WE WILL NOT promise to leave money to faithful employees who helped reject the Union at an election. WE WILL NOT threaten that employees who joined the Union probably will not get a raise. WE WILL NOT in any other manner, interfere with , restrain, or corece our employees in the exercise of self-organization , to form labor organizations, to join General Drivers, Warehousemen and Helpers, Local Union No. 89, affili- ated with the International Brotherhood of Teamsters , Chauffeurs and Ware- housemen of America, or any other labor organization , to bargain collectively through representatives of their own choosing and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or pro- tection, or to refrain from any and all such activities , except to the extent that such right might be affected by an agreement requiring membership in a labor organization as a condition of employment , as authorized in Section 8(a)(3) of the Act, as modified by the Labor Management Reporting and Disclosure Act of 1959. WE WILL NOT lock out our employees if they vote for a union in an election or if a union wins an election. WE WILL NOT discourage membership or activity in General Drivers, Ware- housemen and Helpers , Local Union No. 89, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- HEIGHTS FUNERAL HOME, INC. 723 ica, or any other labor organization of our employees, by discriminating in any manner with regard to their hire and tenure of employment, or any term or condition of employment. WE WILL offer to George Baker, James Mattingly, Richard Blair, Leroy Car- ney, and Robert Heightcthew, immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges previously enjoyed, in accordance with the Recom- mended Order of the Trial Examiner's Decision. WE WILL make whole George Baker, James Mattingly, Richard Blair, Leroy Carney, Robert Heightchew, and Alfred Moore, for any loss of pay suffered by them by reason of the discrimination practice against them, in accordance with the Recommended Order of the Trial Examiner's Decision. All our employees are free to become or refrain from becoming members of Gen- eral Drivers, Warehousemen and Helpers, Local Union No. 89, affiliated with the International Brotherhood of Teamsters, Chauffeurs and Warehousemen of America. KENTUCKY NEWS INCORPORATED, 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. If employees have any question concerning this notice or compliance with its pro- visions, they may communicate directly with the Board's Regional Office, Room 2023, Federal Office Building, 550 Main Street, Cincinnati, Ohio 45202, Telephone 648-3627. Heights Funeral Home, Inc. and Jackson J. Matthews Heights Funeral Home, Inc. and Tom M. Randolph . Cases 23- CA-2127 and 91927-92. June 00, 1966 DECISION AND ORDER On April 14, 1966, Trial Examiner Paul Weil issued his Decision 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 Trial Examiner's Decision. He further found that Respondent had not engaged in certain other unfair labor practices alleged in the complaint. Thereafter, the General Counsel and Respondent filed exceptions to the Trial Examiner's Decision and supporting briefs, and Respond- ent filed a reply 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 these cases to a three- member panel [Members Fanning, 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. 159 NLRB No. 69.