J. H. Rutter-Rex Manufacturing Co.

J. H. RUTTER-REX MFG. CO. J. H. Rutter-Rex Manufacturing Company, Inc. and Drivers and Warehousemen's Local Union No. 3027, AFL-CIO. Case 9-CA-3993. April 17, 1967 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND ZAGORIA On January 18, 1967, Trial Examiner James V. Constantine 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. The Trial Examiner also found that the Respondent had not engaged in an unfair labor practice by threatening to eject a union representative in the presence of employees, as alleged in the complaint, and recommended that such allegation be dismissed. 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 proceeding to a three- member panel. 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, the brief, and the entire record in this case, and hereby adopts the findings,' conclusions, and recommendations of the Trial Examiner except to the extent modified herein.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Respondent, J. H. Rutter-Rex Manufacturing Company, Inc., Columbus, Ohio, its officers, agents, successors, and assigns, shall take the action, set forth in the Trial Examiner's Recommended Order. i Respondent excepts to the finding of the Trial Examiner that Manager Drake had a conversation with employee Thomas in the latter part of July during which coercive statements were made Drake denied making such statements at any time Thomas testified on cross-examination that he did not remember the date, and placed it as the last of July, or the first of August, or even the latter part of August, as he had said on direct During his testimony Thomas verified his own authorization card signed on July 20 as well as the card of employee Terry signed on July 23. He was not asked to attempt to relate the Drake conversation with respect to these two dates, but in all the circumstances we think the Trial Examiner was correct in selecting late July as the date of the Drake-Thomas conversation It seems likely, based on Thomas' testimony as a whole and the similarity of contemporaneous sentiments by Drake credited by the Trial Examiner, that this conversation with Thomas-in which Drake remarked that the Union would not get in, that the employees were jeopardizing their ,cobs by supporting it, and that the Company would move if it had to-occurred at the inception of union activity in late July On the unit issue, as contended by the Respondent, it first raised the question in its answer, rather than in its brief as the Trial Examiner found Nevertheless we view the issue as belatedly urged in the circumstances of this case In section III, F, of his Decision, second sentence of the seventh paragraph, the Trial Examiner inadvertently used "Bruce" instead of "Drake " 2 Concerning the discharge of employees Jones, Fair, and Patrick, the Trial Examiner, at section III, E, paragraph g, of his Decision, found them unlawful even accepting the Respondent's version that the three men were discharged for refusing to go to work In affirming the Trial Examiner on these 8(a)(3) violations, we rely upon the fact that the three employees were clearly engaged in protected, concerted activity at the time of discharge, and find it unnecessary to decide whether or not they were engaged in an unfair labor practice strike In the paragraph of the Trial Examiner's Decision immediately before section IV, the Trial Examiner adverts to the General Counsel arguing "somewhat inconsistently" in contending first that the unilateral wage raises were "illegal" and then that the three discriminatees were denied them We see no inconsistency The raises were illegal only in the sense of being unfair labor practices to induce employees to refrain from union activity Employees deprived of such raises by reason of discriminatory discharge clearly have a right to be made whole TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE 5 JAMES V. CONSTANTINE, Trial Examiner: This is an unfair labor practice case commenced by a complaint issued by the General Counsel of the NLRB on September 16, 1966, pursuant to Section 10(b) of the National Labor Relations Act, herein called the Act, 29 U.S.C. 160(b). It is based on a charge filed on July 29, and amended on Auguat 24, 1966, by Drivers and Warehousemen's Local Union No. 3027, AFL-CIO, against J. H. Rutter-Rex Manufacturing Company, Inc. In essence, the complaint alleges that said Company, Respondent herein, has violated Section 8(a)(1), (3), and (5) and that such conduct affects commerce within the meaning of Section 2(6) and (7) of the Act. Respondent has answered, denying that it committed any unfair labor practices. Pursuant to due notice, this cause came on to be heard before me on November 9 and 10, 1966, at Columbus, Ohio. All parties were represented at and participated in the hearing, and were granted full opportunity to introduce evidence, examine and cross-examine witnesses, offer oral arguments, and submit briefs. A brief has been received from Respondent and General Counsel. In this case the issues are: (a) Whether the Company engaged in conduct offending the prohibition in Section 8(a)(1) of the Act against interfering with, restraining, or coercing employees. (b) Whether the Company unlawfully refused to recognize and bargain with Local No. 3027. (c) Whether employees Patrick, Fair, and Jones were discharged for activities on behalf of Local No. 3027, or to discourage membership in said Union, or both. Upon the entire record in this case, and from my observation of the witnesses, I make the following: 164 NLRB No. 10 6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT 1. ON JURISDICTION Respondent, a Louisiana corporation, engaged at New Orleans and elsewhere in manufacturing work clothing and casual wear, among other things, operates a warehouse at 57 Courtright Court, Columbus, Ohio, in connection with its business. During the year preceding the issuance of the complaint, Respondent, at its New Orleans plant, received goods and products valued in excess of $50,000 directly from points outside the State of Louisiana, and shipped goods and products valued in excess of $50,000 directly to points outside the State of Louisiana. Only the warehouse in Columbus, Ohio, is involved in this case, although Respondent operates other warehouses in other States. I find that Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the policies of the Act to assert jurisdiction over it in this proceeding. II. THE LABOR ORGANIZATION INVOLVED Drivers and Warehousemen's Local Union No. 3027, AFL-CIO, the Charging Party, is a labor organization within the contemplation of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Refusal to Recognize Local 3027 About July 19, 1966,1 Kenneth E. Castle, president of Local No. 3027, spoke to some warehouse employees and arranged to meet with them after work the next day. That meeting was held as scheduled at the union hall of Local No. 3027 in Columbus. Five of Respondent's employees came to it. Castle did not attend it. However, Charles C. Smith, a national representative of the AFL-CIO, substituted for Castle at the meeting at Castle's request, and solicited those attending to join Local No. 3027. All five signed authorization cards. (G.C. Exh. 3-7.) On July 21, Castle telephoned a local Western Union office and instructed it to deliver a telegram, which he orally dictated, to Respondent at 3757 Courtright Court, Columbus, Ohio. This telegram was so delivered and Respondent received it. A confirming copy thereof (G.C. Exh. 2A) was mailed to Castle on July 22 in an envelope in evidence as General Counsel's Exhibit 2. This telegram apprises Respondent that: This is to inform you that Drivers and Warehousemen's Union Local 3027, AFL-CIO represents an overwhelming majority of your employees. Demand is herewith made to negotiate working agreement between the parties. Await your prompt reply. No response was ever received by Local No. 3027 to the foregoing demand, according to Castle, its president. But, I find that a response was delivered to the office of Local No. 3027, as more fully set forth in the next paragraph. By telegram dated July 25, Respondent advised "K. E. Castle, AF OF L-CIO, 2743 E. 5th Avenue, Columbus, Ohio, Re your telegram. Suggest you proceed through Labor Relations Board for determination of whether you represent our employees. Several years ago, a union claimed representation and Board election proved otherwise." (Resp. Exh. 1.) It was delivered by messenger about 11:30 a.m. on July 25 at the address given therein and left at the office there. At the July 20 meeting, conducted by National Representative Smith, five employees signed union cards in the presence of Smith: Ronald Richardson, George E. Thomas, George A. Patrick, Paul Edward Jones, and Keith A. Fair. (See G.C. Exh. 3-7.) Thereupon Smith notified Castle that a majority had signed and that an employee at the meeting would attempt to "sign the additional employees." Three or four days later, employee George Patrick handed one more signed authorization card to Castle. (See G.C. Exh. 8 and 12.) B. The Discharges of July 28 On July 28, Smith, by prearrangement, met a committee of three employees (Patrick, Fair, and Jones) at the warehouse during a coffeebreak or recess at 9:25 a.m. As Smith, accompanied by these three, started to enter the warehouse, Kirk Drake, the warehouse manager, accosted them. Additional employees congregated in the immediate vicinity. Smith brought along AFL-CIO buttons. They were distributed among the employees, but only three actually wore them. After Smith mentioned that his purpose was to talk to Drake about "further negotiating" a workable agreement to eliminate pressure on employees, Drake, in a loud voice, replied, "We want no part of you or the Union. You can get out." Drake said he would throw out Smith and placed a hand on Smith, but Smith refused to leave and insisted that Drake "would have to call the law" to remove Smith from the premises. Thereupon Drake made a telephone call from a nearby glass-enclosed office. A few moments later, Drake waved to Smith to enter the office. As Smith and his three employee companions proceeded toward the office, Assistant Warehouse Manager Kenneth Bruce stopped the three employees, allowing only Smith to pass. When Smith refused to go without the employee committee, Bruce permitted all four to pass on. However, Drake refused to talk to Smith in the presence of the three employees (Fair, Patrick, and Jones). Thereupon, Smith left with them without further discussion with Drake. As Smith left with the three employees, they stopped to chat with other employees standing around. In a moment, a bell rang to announce the end of the coffeebreak. Thereupon, Drake shouted, "Everybody back to work. Anybody that doesn't go back to work immediately is discharged." Employees then started to proceed to their work stations. Turning to the three employees with Smith, Drake said, "You guys don't need to go to work. You are discharged as of now." Although Smith sought to reason with Drake that this was not the way to start collective bargaining and that the three employees should be allowed to return to work, Drake commanded all four to leave. Thereupon, Smith, Fair, Patrick, and Jones departed from the premises. Respondent's evidence concerning the foregoing events is somewhat divergent, although it coincides on the fact that the three employees were discharged. To the extent that Respondent's evidence is inconsistent with the facts found above, I do not credit it. Some of the General Counsel's evidence on this aspect of the case is also not ' All dates mentioned hereafter refer to 1966, except where otherwise expressly noted. J. H. RUTTER-REX MFG. CO. 7 credited, so that the above findings represent a composite. This partial rejection of both the General Counsel's and Respondent's testimony is permissible. Brighton Bakery, 158 NLRB 512, footnote 1; N.L.R.B. v. United Brotherhood of Carpenters and Joiners, Local 571 (Gil Wyner Construction Co.), 230 F.2d 256, 259 (C.A. 1). On the afternoon of July 28, Smith telephoned Respondent's warehouse again "to try to reason with them." However, the person answering the telephone replied that Warehouse Manager Drake would not speak to Smith and directed Smith to get in touch with Mr. Read, Respondent's counsel in New Orleans. By letter dated July 29, Respondent offered employees Jones, Fair, and Patrick immediate reinstatement "provided you are prepared to comply with all reasonable directions and instructions from the management." (G.C. Exhs. 9, 10, and 11.) All three returned on August 3. Two weeks later, Patrick received a wage increase of 10 cents an hour. Warehouse Manager Drake, in July, had told employees about a week before July 20 that he was trying to obtain wage increases for them. On July 20, Drake left for New Orleans and, upon his return to Columbus on July 25, he told employees he had raises for everyone but he "had to set on them." C. Interference, Restraint, and Coercion One of the employees signing a union card on July 20 is George E. Thomas. (G.C. Exh. 4.) James Walter Terry signed one on July 23. (G.C. Exh. 8.) In the latter part of July, Warehouse Manager Drake told employee George E. Thomas that the Union would not get in, that the Company "would not stand still for it," that employees who went along with the Union, jeopardized their jobs, and that the Company would move its plant out of Columbus "if it had to." Insofar as Respondent's evidence contradicts the foregoing, I do not credit it. I find this violates Section 8(a)(1) of the Act. Thomas was hired at $1.75 an hour on September 9, 1965. About August 5, 1966, he received an increment of 25 cents an hour. In late October 1966, his pay was raised another 15 cents an hour. Employee Patrick also signed a union card (G.C. Exh. 5) on July 20. On July 25, Warehouse Manager Drake asked Patrick if Patrick "knew what was going on about the Union." Continuing, Drake remarked that he had obtained raises for employees, but would "have to set on them now until this was over with," that upon his return on July 25, from out of town, "they hit him in the face," that he could not understand about the Union, and accused "you guys couldn't wait until I returned to start this union bit." In this conversation, Patrick related that he had heard that, in the past, the Company had threatened to close down whenever the Union tried to enter. Drake denied that the Company was threatening, but added that, in his opinion, the Company would close the warehouse "before they let a union in." Further, when Patrick asked how much the Company contemplated raising wages, Drake replied he could not release this information just as Patrick declined to tell him about the Union. I do not credit Respondent's evidence to the extent that it is not consonant with the foregoing findings. About July 26, Patrick brought some union literature into the warehouse. Shortly thereafter, Warehouse Manager Drake brought it to Patrick and, in the presence of other employees, said that "this must belong to you ... throw this trash away." Patrick refused to discard it but, instead, retained it. Then Drake told Patrick to gather up the rest of the literature and Patrick complied. Employee Keith A. Fair, on July 21, obtained a signed union authorization card from employee Bryon Lee Carter. (G.C. Exh. 12.) On that same day, Assistant Warehouse Manager Kenneth Bruce mentioned to Fair that a 10-cent raise for all warehouse employees had been authorized. Then Bruce added, "I hope you guys is not trying to get a union in here, because it won't do any good." Respondent's contrary evidence is not credited. About July 26, Bruce again spoke to Fair. This time Bruce asked why Fair wanted a union because "you don't need a union here." Replying, Fair said he was for the Union and "organized it," and did not care who knew it. On July 26, Fair also distributed union literature at the warehouse. When Drake saw this, he referred to it as "trash," stated that he had enough of it, and complained "that is the last I expected from you." Later that day, Warehouse Manager Drake asked Faii, "What is this about a union and what does it have to offer?" When Fair replied "a grievance system," Drake insisted, "You have a grievance system." Thereupon, Fair inquired if he could ask for paid holidays, paid vacations, and pay increases. Drake replied, "you can ask for it." Continuing, Drake said, "You know as well as I do that the Company will close down, sell out, or move rather than have a union in here, and Mr. Rutter would rather have a heart attack or die than have a union come in." When Drake asked whether Fair talked "any of these men into this," Fair denied that he did. At this point Drake asserted that he had a 25-cent raise for the men but "someone told (him) to set on it." Respondent's evidence not congruous with these findings is not credited. Fair returned to work on August 3, following an offer of reinstatement dated July 29. (G.C. Exh. 10.) About 2 weeks after returning to work, Fair was given a wage increase of 10 cents an hour. About July 25, Warehouse Manager Drake told employee Paul Edward Jones that "the plant will close down before they let the Union come in.... [Also] we had a raise for you and something else, but being as the Union started, we stopped it." Drake then added that on slack days he could have laid off Jones but Drake did not believe in that and inquired what the Union could do for Jones. Replying, Jones said the Union could give him sick benefits, paid vacations , and paid holidays. That afternoon Assistant Warehouse Manager Bruce discussed the fact that Jones was older than the other employees and that his age might be against him in seeking employment elsewhere. The Union was not mentioned, according to Assistant Manager Bruce. But I accept Jones' version of this incident, as narrated above. However, I do find, as testified by Bruce, that they discussed Jones' age and its impediment to obtaining employment at another establishment. That afternoon Assistant Warehouse Manager Bruce informed Jones that the latter's next pay would reflect a 25-cent raise, and that, because Jones was getting old, it would be "kind of hard" to find a job. Jones was fired on July 28, so that he did not immediately receive this increase . However, it was granted to him on the second payday after he was reinstated on August 3. Jones returned to work pursuant to a letter dated July 29 (G.C. Exh. 11) offering him reinstatement. 8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD D. Concluding Findings as to the Refusal to Bargain 1. The appropriate unit Eugene Rutter, president of Respondent , described the operation at Columbus , Ohio, as a "normal warehousing operation." According to Rutter , 17 persons were employed there on July 21 . Of these, seven are over-the- road truckdrivers , two are supervisors , and one is a "truckdriver and warehouseman." See General Counsel's Exhibit 14. Over-the-road truckdrivers deliver merchandise from the factory at New Orleans or elsewhere to the warehouse in Columbus. The "truckdriver and warehouseman" is an over-the-road truckdriver who also performs warehouse duties at any one of four warehouses where he may be needed , but not at Columbus. In the morning of July 26, Ron Richardson told employee George A. Patrick that he, Richardson, had been told the day before that he had been promoted to assistant supervisor of the warehouse to take Assistant Manager Bruce's place as soon as Manager Drake left the warehouse . Bruce had been made superintendent of the warehouse to replace Drake, who had been transferred to Mississippi. Drake did not leave for his Mississippi job until about September 1966. On July 21, Richardson was employed as an order checker and packer. Later he was promoted to assistant warehouse manager. He will be included in the unit as of July 21, for the purpose of computing the number therein at the time of the telegraphic demand for recognition . See General Counsel's Exhibit 14. Byron Carter is a billing clerk at the warehouse. See General Counsel's Exhibit 14. He works in the office although on occasion , on his own volition , he helps out in the warehouse . His duties require little or no contact with the warehouse employees . I find that Carter is an office clerical and should be excluded from the unit. Victory Grocery Company, 129 NLRB 1415, 1417; Arts & Crafts Distributors , Inc., 132 NLRB 166,169. Further, I find that the two supervisors, Manager Drake and Assistant Manager Bruce, should be excluded from the unit . Also the truckdriver and warehouseman will be excluded because his trucking duties cause him to travel over the road from Respondent's factories to its several warehouses , so that he has no community of interest with the Columbus warehousemen . Nor should this conclusion be altered because this employee performs some warehouse work, for none of these latter duties is performed at the Columbus warehouse. Finally, the seven truckdrivers will be excluded, for I find that they are over-the-road truckdrivers who are not stationed in Columbus , and who deliver goods from Respondent's factories to its warehouses but do no warehousing work . Thus, they have little or no contact with the Columbus warehouse employees. Hence, Arts & Crafts Distributors , Inc., 132 NLRB 166, 168, is not controlling. Generally, over -the-road truckdrivers are not included in a larger unit. N.L.R.B. v. Albuquerque Phoenix Express, 368 F.2d 451 (C.A. 10); N.L.R.B. v. Cumberland Farms, 370 F.2d 54 (C.A. 1); E.H. Koester Bakery Co., Inc., 136 NLRB 1006, 1011-12. Consequently , I find that on July 21 , an appropriate unit comprised 6 warehouse employees , computed as follows: 17 total employees less 7 truckdrivers , 1 truckdriver and warehouseman, 1 billing clerk, and 2 supervisors. See General Counsel's Exhibit 14. A contrary result is not required because the petitions of Local 3027 (Resp. Exh. 2) and of Retail Store Union (Resp. Exh. 3) included truckdrivers. This is because such petitions are not conclusive upon the NLRB as they merely denote a party's opinion of what employees should compose a unit. But the actual determination of an appropriate unit rests with the Board. 2. The Union's majority On July 21, six2 employees were employed in the unit heretofore found to be appropriate. I find that on that date, Local 3027 had in its possession five valid employee authorization cards designating it as their collective- bargaining agent. (See G.C. Exhs. 3-7.) Patently this is a majority. Moreover, I find that the Union's demand for recognition was of a continuing nature. Scobell Chemical Company v. N.L.R.B., 267 F.2d 922 (C.A. 2); Local 152, Teamsters (American Compressed Steel Corp.) v. N.L.R.B., 343 F.2d 307, 310 (C.A.D.C.); Henry Spen & Company, Inc., 150 NLRB 138, 139. It follows that the card of employee Terry (G.C. Exh. 8), signed on July 23, may be counted in establishing the Union's majority on and after that date. Also, for this same reason, employee Bello, who started work at Columbus on July 28 or 29, will be included in the unit as of that date. Thus, the Union preserved its majority at all times material . Hence, Respondent was under a statutory obligation to recognize and bargain with that Union unless either or both of its defenses are well taken. N.L.R.B. v. Winn-Dixie Stores, Inc., 341 F.2d 750, 755 (C.A. 6), cert. denied 382 U.S. 830. These defenses are: (a) that no valid demand was made on it, and (b) that Respondent entertained a good-faith doubt of the unit and the majority. 3. The Union's demand Although the Union's telegram specified that its demand was made for the purpose of negotiating a "working agreement," it also asserts that the Union represents a majority of the employees . Thus, I find that the telegram constitutes a valid demand for recognition as majority representative of the employees , although the word "recognition" is not used therein. "No particular form of words is necessary to apprise the employer of the Union's demand." N.L.R.B . v. Albuquerque Phoenix Express, 368 F.2d 451 (C.A. 10). It is sufficient that the words used convey a clear implication that a demand for recognition is being made . Joy Silk Mills v. N.L.R.B., 185 F.2d 7`32, 741 (C.A.D C.). 4. Respondent's doubt as to unit In its foregoing telegram, the Union demanded of Respondent recognition as representative of "an overwhelming majority of your employees." Literally this may denote all of Respondent's employees at all its warehouses. Cf. The C.L. Bailey Grocery Company, 100 NLRB 576, 577-578, where the words "all employees" were construed to include all employees in a plant employing more than warehousemen and helpers. But since (a) the telegram was directed and delivered to Respondent at its Columbus warehouse, (b) Respondent's ' Bello makes it seven on and after July 28 or 29 He was not working at Columbus on July 21 J. H. RUTTER-REX MFG. CO. reply (Resp. Exh. 1) indicates that it understood, upon the basis of Respondent's Exhibit 3, that its Columbus warehouse was involved, and (c) Manager Drake on July 28, in effect, was informed by Union Representative Smith that the demand covered only the Columbus warehouse employees, I find that Respondent was aware that only its Columbus warehouse was involved. Phelps- Dodge Copper Products Corporation. 152 NLRB 1188, 1192, reversed in 354 F.2d 591 (C.A. 7). Hence, I find that Respondent was not misled as to the precise warehouse whose employees Local 3027 claimed to represent. Cf. Johnnie's Poultry Co., 146 NLRB 770, 772, footnote 5. A more difficult question arises as to whether the Union adequately defined the unit for which recognition was sought, as required by The C.L. Bailey Grocery Company, 100 NLRB 576, 579. I am of the opinion, and find, that the Union's demand on July 21 satisfied the test laid down in The C.L. Bailey Grocery Company, supra. In the first place, the word "employees" does not embrace supervisors as a matter of law (see Sec. 14(a) of the Act), so that the two supervisors were not included in the demand. Secondly, the seven truckdrivers were not employees of the Columbus warehouse, and thus, Respondent reasonably could not construe the demand to embrace them, especially since they were not mentioned. Similar considerations apply to the truckdriver and warehouseman. Consequently, the telegram reasonably connoted that recognition was sought for all others actually working at the warehouse, i.e., the warehousemen and the billing clerk. Although the billing clerk has been found not to be part of the unit, 1 further find that a demand which includes him is not fatally defective thereby. This is because I find that the billing clerk's inclusion is a minor deviation between the unit found appropriate and that described in the demand. Such insubstantial variations do not destroy the validity of an otherwise valid demand. The Hamilton Plastic Molding Company, 135 NLRB 371, 373; Ash Market and Gasoline, 130 NLRB 641, 642; Brewery and Beverage Drivers Local 67 (Washington Coca-Cola Bottling Works) v. N.L.R.B., 257 F.2d 194,196-197 (C.A.D.C.) Nor does the petition (Resp. Exh. 2) filed by Local 3027 on August 1, modify the demand of July 21. It is true that this petition expressly comprehends the billing clerk and truckdrivers. But I have already found that including the billing clerk constitutes an insubstantial variation which does not nullify the effectiveness of the demand. Nor does the fact that the petition embraces truckdrivers render the demand nugatory, because truckdrivers are not employees of the Columbus warehouse. Moreover, the petition alleges that the unit is composed of seven employees, so that Respondent was reasonably put on notice that its eight truckdrivers were not to be included. Hence, I find that the demand inherent in the petition of August 1 does not modify or alter the demand of the telegram of July 21. In any event, I find that Respondent did not question the nature of the demand in general or the unit in particular when it denied recognition on July 25 (Resp. Exh. 1), and that this issue was first raised in its brief. Cf. N.L.R.B. v. Austin Powder Company, 350 F.2d 973, 977 (C.A.6). Hence, I find that Respondent may not now belatedly raise these particular issues, for the reason that if it had timely conveyed its doubt as to the character of the demand or the appropriateness of the unit, the Union would have had an opportunity seasonably to amend its demand and its claimed unit to conform them to Respondent's objections. Arts & Crafts Distributors, Inc., 132 NLRB 166,169. 9 5. Doubt as to majority Respondent now contends that it entertained a good- faith doubt as to the Union's majority. On this issue I rule that the burden is on the General Counsel to establish a want of good faith in doubting that majority. Aaron Brothers, 158 NLRB 1078; Strydel Incorporated, 156 NLRB 1185; John P. Serpa, Inc., 155 NLRB 99; Ben Duthler, Inc., 157 NLRB 69. Moreover, a doubt of majority expressed in good faith will defeat a charge and complaint based on Section 8(a)(5) of the Act, even though, in fact, the demanding union at the time possesses a majority of union authorization cards. Cameo Lingerie, Inc., 148 NLRB 535, 538; H. & W. Construction Company, Inc., 161 NLRB 852. It is my opinion, and I find, that Respondent did not reasonably entertain a good-faith doubt of the Union's majority on and after July 21. In the first place, the only ground assigned for doubting the Union's majority is contained in a telegram in relevant part asserting "several years ago a union claimed representation and Board election proved otherwise." See Respondent's Exhibit 1. The union alluded to in said, telegram is probably Retail, Wholesale, & Department Store Union, AFL-CIO, which filed a petition for an election on October 25, 1961, in Case 9-RC-4718. See Respondent's Exhibit 3. However, the loss of an election by another union almost 5 years before Local 3027 presented its demand for recognition is too remote an event to gauge present employee sentiment towards Local 3027, and I so find. Further, assuming no remoteness, the record shows that three of the present employees in the unit were hired since 1964. Patently, a sufficient turnover in warehouse employees has taken place to warrant the conclusion-and I so find-that no reasonable basis exists to justify a good-faith doubt that the present warehouse employees would reject Local 3027 as their collective-bargaining representative. Accordingly, I find that the loss of an election by another union under the circumstances will not alone support a good-faith doubt of a majority by Local 3027. In the second place, it is not a reasonable basis for a good-faith doubt that the Union never offered to prove its majority, as Respondent contends in its brief. Cf. N.L.R.B. v. Armco Drainage, etc., 220 F.2d 573, 576 (C.A. 6). This is because Respondent categorically refused to recognize the Union, thereby creating a situation whereby it would be a futile gesture to submit proof of majority. "Where, as here, the Union had proof of its majority status readily available and [Respondent] chose not to learn the facts, it took _the chance of what they might be." Jas. H. Matthews & Co. v. N.L.R.B., 354 F.2d 432 (C.A. 8). See Irving Air Chute Company v. N.L.R.B., 350 F.2d 176, 182 (C.A. 2); N.L.R.B. v. C. J. Glasgow Company, 356 F.2d 476, 479 (C.A. 7). Although Pizza Products Corporation v. N.L.R.B., 369 F.2d 431 (C.A. 6), in some respects resembles the instant case, in its essential aspects Pizza Products is widely divergent and invokes a different principle of law. Hence, I consider Pizza Products not controlling. To some extent N.L.R.B. v. Cumberland Shoe Corporation, 351 F.2d 917 (C.A. 6), and N.L.R.B. v. Boot-Ster Manufacturing Company, 361 F.2d 325 (C.A. 6), support the finding above that failure to offer proof of majority when such offer is useless will not justify a claim of a good-faith doubt of majority. In any event, a contention of good-faith doubt vanishes when an employer contemporaneously engages in unfair labor practices not consonant with good faith. Drug King, 10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Inc., 157 NLRB 343. Elsewhere in this Decision, I have found that Respondent engaged in conduct violating the Act. I now find that such conduct "evinces a rejection of the principle of collective bargaining" (American Cable Systems, Inc., 161 NLRB 332) and discloses "a desire [by Respondent] to gain time and to take action to dissipate the Union's majority." Joy Silk Mills v. N.L.R.B.,185 F.2d 732, 741 (C.A.D.C.). Accord, N.L.R.B. v. Cumberland Shoe Corp., supra. Accordingly, I conclude and find that the General Counsel has established by a fair preponderance of the credible evidence, including reasonable inferences, that Respondent's refusal to recognize Local 3027 was not made in good faith. It follows, and I find, that the Union's majority status entitles it to be recognized as the exclusive bargaining agent of all the employees in the appropriate unit. The Act imposes upon an employer a legal duty to recognize the majority representative of his employees unless he entertains a good-faith doubt concerning the union representative status. Snow & Sons, 134 NLRB 709, 710-711. However, the existence of good faith is not established merely by an employer's naked affirmative assertion thereof, N.L.R.B. v. Superior Sales, Inc., 366 F.2d 229, 237 (C.A. 8). Johnnie's Poultry Co., 146 NLRB 770, 773. Rather, good faith is ascertained by regarding the entire factual situation unfolded by the record. Idem, at 773. As found above, an appraisal of the record discloses that Respondent's contention of a good-faith doubt is unfounded. In my opinion Ben Duthler, Inc., 157 NLRB 69, is not controlling. E. Concluding Findings and Discussion as to the Discharges of July 28 Admittedly Respondent discharged employees Patrick, Fair, and Jones on July 28. The question is whether the discharges were for cause or were prompted by discriminatory motives proscribed by Section 8(a)(3) of the Act. To find that such discharges were unlawful, the General Counsel has the burden of proving that Respondent knew or was aware that the three employees had engaged in union activity and that they were terminated for such activity. N.L.R.B. v. Chicago Perforating Company, 346 F.2d 233,238 (C A. 7); N.L.R.B. v. Murray Ohio Manufacturing Co., 326 F.2d 509, 513 (C.A. 6); Interboro Contractors, Inc., 157 NLRB 1295. Further, it is axiomatic that union activity neither confers immunity from discipline by the employer (Metals Engineering Corporation, 148 NLRB 88, 90) nor insulates employees from being discharged for nondiscriminatory reasons. IVellington Mill, etc. v. N.L.R.B., 330 F.2d 579, 586-587 (C.A. 4); N.L.R.B. v. Barberton Plastics Products, Inc., 354 F.2d 66, 70 (C.A. 6); Mitchell Transport, Inc., 152 NLRB 122, 123. Nor may I inquire into the extent or reasonableness of discipline lawfully imposed, for the soundness , wisdom, or harshness of such action are employer prerogatives. N.L.R.B. v. Prince Macaroni Manufacturing Co., 329 F.2d 803, 809 (C.A. 1); N.L.R.B. v. United Parcel Service, Inc., 317 F.2d 912, 914 (C.A. 1); Thurston Motor Lines, 149 NLRB 1368; N.L.R.B. v. Ace Comb Co., et al., 342 F 2d 841, 847 (C.A. 8); N.L.R.B. v. T.A. McGahey, et al., d/b/a Columbus Marble Works, 233 F.2d 406, 412-413 (C.A. 5). However, the fact that a lawful cause to discharge exists will not justify a release based in whole or in part on an employee's union activities. N.L.R.B. v. Barberton Plastics, supra; N.L.R.B. v. Symons Manufacturing Co., 328 F.2d 835, 837 (C.A. 7); N.L.R.B. v. Ace Comb Co ., et al., supra ; N.L.R.B. v. McGahey, etc., supra at 413 (C.A. 5). It is my opinion , and I find, that Patrick , Fair, and Jones were fired because of their union activity , and that the reason assigned therefor by Respondent , i.e., refusal to obey an order to return to work , is a pretext or cloak to mask or disguise the real reason . In ultimately finding that Patrick, Fair, and Jones were discharged for union activity, rather than for insubordination , I have relied on the entire record and the following subsidiary findings, which I find as facts: a. Respondent had knowledge of the above employees' union activity because they wore union buttons and also accompanied Union Representative Smith when he spoke to Warehouse Manager Smith on behalf of the Union. And one of them , Fair, told Bruce he "organized" the Union. In addition, the small plant rule warrants the inference-and I draw it-that Respondent was aware that these three employees were engaging in union activity . New French Cleaners, 139 NLRB 1176, 1179; Angwell Curtain Company, Inc. v. N.L.R.B., 192 F.2d 899, 903 (C.A. 7). In my opinion N.L.R.B. v. Falls City Creamery Company, 207 F.2d 820 (C.A. 8), is distinguishable. b. Timing is important. I find that the three employees were terminated almost immediately after they openly espoused the union movement by accompanying Union Representative Smith when he talked to Drake and Bruce. N.L.R.B. v. Mira-Pak , 354 F.2d 525 (C.A. 5); Arkansas- Louisiana Gas Company, 142 NLRB 1083, 1085; Texas Industries , 156 NLRB 423 . "Obviously the discharge of a leading union advocate is a most effective method of undermining a union ...... N.L.R.B. v. Longhorn Transfer Service, Inc., 346 F.2d 1003, 1006 (C.A. 5). c. Also, I find that the manner of discharge is significant. The three discriminatees were discharged abruptly without warning. Cf. Levinson's Owl Rexall Drugs, Inc., 161 NLRB 1531 . Thus, I find that , when the bell rang announcing the end of the coffeebreak , Manager Drake shouted , "Everybody back to work . Anybody that doesn't go back to work immediately is discharged." But I further find that Drake gave the three no chance to return to work as he told them in almost the same breath, "You guys don't need to go to work . You are discharged as of now." Respondent's evidence not consonant with the foregoing is not credited. "The abruptness of a discharge and its timing are persuasive evidence as to motivation ." N.L.R.B. v. Montgomery Ward & Co., 242 F.2d 497, 502 (C.A. 2), cert. denied 355 U.S. 829 ; N.L.R.B. v. L. E. Farrell Company, Inc., 360 F.2d 205, 208 (C.A. 2). And a failure to give any explanation for the discharge supports an inference of discriminatory intent. N.L.R.B. v. Griggs Equipment, Inc., 307 F.2d 275, 278 (C.A. 5). I draw this inference. d. Respondent displayed antiunion hostility . This in itself is not an unfair labor practice . N.L.R.B. v. Audio Industries, Inc., 313 F.2d 858 (C.A. 7); N.L.R.B. v. Threads, Inc., 308 F.2d 1, 8 (C.A. 4). But it is a factor which may be considered in evaluating the reason for an employee's discharge . N.L.R.B. v. Georgia Rug Mill, 308 F.2d 89, 91 (C.A. 5). Yet such animus does not per se render a discharge illegal. N.L.R.B. v. Covington Motor Company, Inc., 344 F.2d 136, 138 (C.A. 4); Lasko Metal Products, Inc., 148 NLRB 976, 978. There must be a proximate connection between the two. However , I find a causal link between this animus and the discharges as more fully set forth herein . Cf. N.L.R.B. v. Ace Comb Co., et al., 342 F.2d J. H. RUTTER-REX MFG. CO. 11 841, 847 (C.A. 8); McCormick Longmeadow Stone Co., Inc., 155 NLRB 577. e. The three dischargees were the only employees openly espousing the Union and thus may be considered as the prime employee movers or leaders of the union movement at the warehouse. Of course, this does not shield them from discharge for cause. N.L.R.B. v. Dixie Terminal Co., 210 F.2d 538, 540 (C.A. 6). But it is not essential to show that their union activity was the only reason for the discharge. It is sufficient to condemn the discharges as unlawful "if [discrimination] is a substantial or motivating reason, despite the fact that other reasons may exist." N.L.R.B. v. Whitin Machine Works, 204 F.2d 883, 885 (C.A, 1). See N.L.R.B. v. Barberton Plastics Products, Inc., 354 F.2d 66, 70 (C.A. 6). For the reasons set forth above I find that a substantial or motivating reason for the discharges is the union activity of the three discharged employees. In this connection, I have kept in mind the rule of law that because the discharges were synchronous with union activity does not establish, without more, a discriminatory purpose. But I find that the record herein reveals a discriminatory intent. f. A Respondent will rarely admit to violating the law when discharging an employee. Rather, he will point to real or imagined shortcomings of the employee as the reason for a layoff. Hence, it becomes necessary to ascertain, as a matter of reasonable inference, whether such deficiencies or union hostility led to the discharge. Upon the basis of the entire record I draw the inference that the three were discharged for their union activity. In this connection, I recognize that a refusal to obey a command to return to work justifies a discharge for cause. But I find that the three were not ordered to return to work before their discharge, and, in any event, that failure to work was not the principal or substantial reason for their termination. g. Even accepting Respondent°s version that the three were discharged for refusing to go to work, nevertheless I find that such discharges are unlawful. This is because I find that the three at the time were engaged in a protected activity in accompanying Union Representative Smith, and that their failure to return to work amounted to a strike. Further, I find it was an unfair labor practice strike protesting a denial of recognition which Respondent was obligated to grant. Hence, I find that Respondent unlawfully discharged unfair labor practice strikers under its own interpretation of the record. Such discharges manifestly violate Section 8(a)(3) of the Act. Golay & Company, Inc., 156 NLRB 1252, enfd. 371 F.2d 259 (C.A. 7); N.L.R.B. v. American Manufacturing Company, et al., 106 F.2d 61, 67-68 (C.A. 2), modified on another issue 309 U.S. 629. F. Concluding Findings and Discussion as to Interference, Restraint, and Coercion In the latter part of July, Warehouse Manager Drake spoke to employee Thomas, as more fully set forth above. Having credited the General Counsel's account thereof, I find that Drake's utterances constitute interference, restraint , and coercion, as they amount to a threat of reprisals if the employees joined the Union or if the Union became their bargaining agent. About July 25 Warehouse Manager Drake asked employee Patrick if Patrick knew what was going on about the Union. Patently this interrogation is coercive, and I so find, as it was not made for a legitimate purpose. Johnnie's Poultry Co., 146 NLRB 770, 774-775. In my opinion Bourne v. N.L.R.B., 332 F.2d 47 (C.A. 2), is distinguishable. Drake also mentioned that he had obtained raises but would have to withhold them "until this is over with." I construe this to mean that the raises were denied until Respondent was convinced the employees rejected the Union. This is coercive and I so find. Of course, an employer may not lawfully increase wages unilaterally during the period a union represents a majority of his employees, and he may so inform employees. But I find that Drake did not intend to convey this impression, especially since I have found that Respondent was at that very moment denying recognition to the Union. In the foregoing conversation Drake also gave it as his opinion that the Company would close the warehouse before recognizing a union. Patently this is coercive. A contrary result is not required because this represented Drake's personal opinion or that Drake was not expressly authorized to make this statement. Since Drake was the warehouse manager I find that his said conduct is within the apparent scope of his authority as such and that Respondent may be held accountable therefor. Drake also made other remarks to Patrick in the same conversation described above, and also spoke to Patrick again about July 26. I find these statements are innocuous as they contain no threat of reprisal or promise of benefit. Hence, they may not be used to fasten an unfair labor practice upon Respondent as I am of the opinion, and find, that they are protected by Section 8(c) of the Act. Perhaps the incient of July 26 deserves brier comment. At most Drake's words express an opinion. Merely describing union literature as trash and requesting an employee to destroy it does not amount to a threat of reprisal. And asking an employee to pick up union literature which he has left lying around in the warehouse does not interfere with the right to distribute such literature in nonworking areas of the plant. Stoddard-Quirk Manufacturing Co., 138 NLRB 615, 621. Hence, this request by Drake was proper. About July 21, Assistant Warehouse Manager Bruce told employee Fair that a union would not do employees any good. I find this is coercive as it connotes that it would be fruitless to have a union because Respondent would not deal with the union. Cf. Better Val-U Store of Mansfield, Inc., 161 NLRB 762. About July 26, Bruce again spoke to Fair. Although Bruce expressed hostility to unions on this occasion, I find this to be protected under Section 8(c) of the Act. N.L.R.B. v. Threads, Inc., 308 F.2d 1, 8 (C.A. 4). Bruce also told Jones he was receiving a 25-cent raise in his next pay. I find this is coercive as a promise of benefit. Warehouse Manager Drake also on this day told Fair that the Company will close down, sell, or move the warehouse rather than have a union in it. Manifestly, this is a threat of reprisal and therefore coercive. I so find. Finally, Drake, in this conversation, also told Fair that he had been ordered not to put in force a raise which Drake had for the men. Since this occurred in the course of antiunion expressions by Drake, some of which have been found to be coercive, it is reasonable to infer that the raises had been suppressed in an effort to wean the men away from the Union. I so find. Accordingly, I find this statement coercive as it constitutes a promise of benefit if the men eschewed the Union. About July 25, Warehouse Manager Drake spoke to employee Jones, as set forth above. I find that this conversation is coercive in that Bruce (a) told Jones the warehouse would close before Respondent would 12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD recognize a union there , and (b) told Jones that a raise which had been authorized , had been "stopped" because the Union was "started." However, I find the remainder of said talk by Bruce not to be coercive , and specifically find that neither Drake nor Bruce threatened to lay off Jones. About July 28, Warehouse Manager Drake ordered Union Representative Smith off the premises at the warehouse in the presence of employees . But since Smith was a trespasser , I find this action of Drake was not unlawful. No different result is required because Smith came as a union representative , for an employer may refuse access to his plant by nonemployee union representatives so long as other available channels of communications are open . Cf. N.L.R.B. v. The Babcock & Wilcox Company, 351 U.S. 105, 112. 1 find that other channels were available ; namely, telephone , telegraph and mail. Hence, I find this aspect of the complaint is not well taken and, therefore , should be dismissed. Admittedly wage increases of 10 cents to 25 cents were granted to the Columbus warehouse employees between July 28 and August 3. Respondent had determined in April or May, on the basis of studies previously made, that a general wage increase should be granted to all its factory and warehouse employees. About July 12, this increase was introduced at all Respondent 's factories . The increase at the Columbus warehouse was held in abeyance upon receipt of the demand of Local No. 3027 for recognition on July 21. However, it was granted shortly after July 28, because Respondent felt that it would be unfair to withhold it any longer. Respondent' s evidence on this issue is credited. Nevertheless , I find this increase in wages constitutes an unlawful refusal to bargain as it is a unilateral change in wages made while the Union represented a majority. This is so regardless of the Employer's good faith in taking such action . N.L.R.B. v. Benne Katz, etc., 369 U.S. 736, and cases cited in footnote, 11; Mid-West Towel & Linen Service, Inc., 143 NLRB 744, 754-755, affd. 339 F.2d 958 (C.A. 7). Finally, the complaint alleges that Respondent unlawfully failed and refused to grant Patrick, Fair, and Jones the increases mentioned in the preceding paragraph . President Rutter testified , and I credit him, that these three employees should have received this raise retroactive to July 28, when they were reinstated on August 3. But no documentary proof was introduced by Respondent to contradict the General Counsel' s evidence that this retroactive increase has not been received. Hence, I find that the three employees did not receive the said increase until about 2 weeks after August 3, but I further find that it was not withheld for discriminatory reasons. Hence, no violation is disclosed , and I so find, on this issue. However, whether Respondent shall be directed to pay said wage retroactively is a matter to be determined at the compliance stage in ascertaining whether the employees have been made whole. It may be observed that the General Counsel is arguing somewhat inconsistently, for he first contends that the unilateral raises are illegal and then complains that three employees were denied an illegal wage increase. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE Those activities of Respondent found to constitute unfair labor practices as set forth in section III, above, occurring in connection with its operations described in section I, above, have a close , intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY It having been found that Respondent has engaged in certain conduct prohibited by Section 8(a)(1), (3), and (5) of the Act, I shall recommend that it be enjoined to cease and desist therefrom and that it take specific affirmative action , as described below, designed to effectuate the policies of the Act. Since the discriminatory discharges of Patrick, Fair, and Jones go "to the very heart of the Act" (N.L.R.B. v. Entwhistle Mfg. Co., 120 F.2d 532, 536 (C.A. 4)), I shall recommend that the Order to be issued safeguard employees against infringement in any manner of the rights vouchsafed to them by Section 7 of the Act. R & R Screen Engraving, Inc., 151 NLRB 1579, 1587. Since Patrick, Fair, and Jones have been offered reinstatement , and they have accepted said offer, no provision will be recommended to restore them to the positions from which they were discharged . However, I shall recommend that each be made whole for any loss of earnings suffered by reason of the discrimination against him. In making them whole Respondent shall pay to each a sum of money equal to that which he would have earned as wages from the date of such discrimination to the date of reinstatement or a proper offer of reinstatement, as the case may be, less his net earnings during such period. Since each returned to work during the same quarter as his discharge , F.W. Woolworth Co., 90 NLRB 289, is not applicable . Interest at 6 percent per annum shall be added to any backpay found due . Such interest shall be assessed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. I shall also recommend that Respondent preserve and make available to the Board or its agents, upon reasonable request, all pertinent records and data necessary to analyze and compute whatever backpay may be due. A bargaining order is proper. N.L.R.B. v. Delight Bakery, Inc., 353 F.2d 344,347 (C.A. 6). Upon the basis of the foregoing findings of fact, and upon the entire record in this case , I make the following: CONCLUSIONS OF LAW 1. Local 3027 is a labor organization within the meaning of Section 2(5) of the Act. 2. Respondent is an employer within the meaning of Section 2(2), and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 3. By discriminating in regard to the tenure of employment of George A. Patrick, Keith A. Fair, and Paul E. Jones, thereby discouraging membership in Local 3027, Respondent has engaged in unfair labor practices as defined in Section 8(a)(3) and (1) of the Act. 4. By (a) threatening to close, sell , or move its Columbus warehouse before recognizing a union threat, (b) coercively interrogating employees as to their union membership , desires, or sympathies , (c) telling employees their jobs were jeopardized if they went along with a union, (d) telling employees it would not do any good to have a union , (e) withholding wage raises to discourage membership in a union , and (f) promising raises to discourage membership in a union , Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. J. H. RUTTER-REX MFG. CO 13 5. All warehousemen employed by Respondent at its Columbus warehouse , excluding all office clerical employees, all guards, professional employees, and supervisors , as defined in the Act , constitute a unit appropriate for the purposes of collective bargaining within the meaning of -Sections 8(a)(5) and 9 of the Act. 6. On or about July 21, 1966, and all material times thereafter, Local 3027 has represented a majority, and has been the exclusive bargaining representative of all the employees in the aforesaid appropriate unit for the purposes of collective bargaining within the meaning of Sections 8(a)(5) and 9 of the Act; and Respondent was on that date, and has been since, legally obligated to recognize and bargain with Local 3027 as such. 7. By (a) refusing to recognize or bargain with Local 3027 for the employees in said appropriate unit on and since about July 21, 1966, and (b) unilaterally granting increases to employees in said appropriate unit after July 21, without consulting or negotiating with Local 3027 concerning the same, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 8. The above-described unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 9. Respondent has not committed any other unfair labor practices as alleged in the complaint. RECOMMENDED ORDER Upon the basis of the above findings of fact and conclusions of law, and upon the entire record in this case, it is recommended that the Board order Respondent, its officers, agents, successors, and assigns, to: 1. Cease and desist from: (a) Discouraging membership in Local 3027, or any other labor organization, by discharging employees or otherwise discriminating in any manner in respect to their hire or tenure of employment or any term or condition of employment. (b) Threatening to close, sell, or move its Columbus warehouse before recognizing a union for its warehousemen there. (c) Coercively interrogating employees as to their union membership, desires, or sympathies. (d) Informing employees their jobs will be Jeopardized if they go along with a union. (e) Informing employees it will not do any good to have a union. (f) Withholding wage increases to discourage membership in a union, Local 3027, or any other labor organization. (g) Promising wage raises to discourage membership in Local 3027 or any other labor organization. (h) Refusing to recognize or bargain with Local 3027 as the exclusive bargaining representative of all the employees in the above-mentioned appropriate unit. (i) Unilaterally raising wages of employees in said appropriate unit without first consulting and bargaining with Local 3027 thereon. (j) In any other manner interfering with, restraining, or coercing its employees in the exercise of rights guaranteed to them by Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a)(3) of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Upon request, bargain collectively with Local 3027 as the exclusive representative of all employees in the aforesaid appropriate unit with respect to rates of pay, wages, hours of employment, and other conditions of employment, and, if an understanding is reached, embody such understanding in a written, signed agreement. (b) Make whole George A. Patrick, Keith A. Fair, and Paul E. Jones for any loss of pay each may have suffered by reason of the discrimination against him, with interest thereon at the rate of 6 percent per annum. (c) Preserve and, upon request, make available to the Board and its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to ascertain the amount of backpay due under the terms of this Recommended Order. (d) Post at its warehouse at Columbus, Ohio, copies of the attached notice marked "Appendix."3 Copies of said notice, to be furnished by the Regional Director for Region 9, after being duly signed by a properly authorized representative of Respondent, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where such notices are usually displayed. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 9, in writing, within 20 days from the receipt of this Decision, what steps Respondent has taken to comply herewith.4 IT IS FURTHER RECOMMENDED that the complaint be dismissed in all other respects. 3 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 In the further event that the Board's Order is 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-" " In 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 Respondent has taken to comply herewith " APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT discourage membership in Drivers and Warehousemen's Local Union No. 3027, AFL-CIO, or any other labor organization, by discharging any of our employees or in any other manner discriminating against them in regard to hire or tenure of employment or any term or condition of employment. WE WILL NOT threaten to close, sell, or move our Columbus warehouse rather than recognize a labor organization representing our employees at said warehouse. 14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT coercively inquire of employees as to their union membership , desires, or sympathies. WE WILL NOT tell employees that their jobs will be jeopardized if they go along with a union or that it will not do them any good to have a union. WE WILL NOT withhold wage increases or promise wage raises to discourage membership in the above- mentioned Local No. 3027 or any other labor organization. WE WILL NOT change wages of employees in the bargaining unit described below without first consulting and bargaining with said Local No. 3027 concerning such changes. WE WILL make whole George A. Patrick, Keith A. Fair, and Paul E . Jones for any loss of pay incurred by each of them as a result of their discharge by us on July 28, 1966, with interest thereon at 6 percent per annum. WE WILL NOT in any other manner interfere with, restrain , or coerce our employees in the exercise of rights guaranteed to them by Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a)(3) of the Act. WE WILL, upon request , bargain collectively with said Local No. 3027 as the exclusive bargaining representative of all employees in the unit described below with respect to rates of pay, wages, hours of employment , and other conditions of employment and, if an understanding is reached, embody such understanding in a written , signed agreement. The bargaining unit is: All warehousemen employed at our Columbus, Ohio, warehouse , excluding office clerical employees , guards, professional employees, and supervisors , as defined in the Act. All our employees are free to become or remain, or to refrain from becoming or remaining, members of said Local No. 3027 , or any other labor organization. J. H. RUTTER-REX MANUFACTURING COMPANY, INC. (Employer) Dated By (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting , and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions , they may communicate directly with the Board's Regional Office, Room 2407, Federal Office Building, 550 Main Street, Cincinnati, Ohio 45202, Telephone 684-3663.