Memphis Moldings, Inc.

524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Memphis Moldings , Inc., Stairway Div. and Jesse Watson , Levy Thomas Pack, and Freddie Holcomb. Cases 26-CA-2498-1, 2498-2, and 2498-3. May 10, 1967 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND BROWN On January 30, 1967, Trial Examiner Louis Libbin 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 and recommended dismissal as to them. Thereafter, the Respondent filed exceptions to the Decision and a supporting brief, and the General Counsel filed cross-exceptions 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 these cases 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 and briefs, and the entire record in these cases, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner as modified herein. The Trial Examiner concluded that employees Watson, Pack, and Holcomb were engaged in protected concerted activity, but not in union activities, in refusing to drive at the rate of 5 cents per mile. Accordingly, he found that by discharging these men for engaging in the protected concerted activity of exercising the option given them to reject the opportunity to drive at that rate, the Respondent violated Section 8(a)(1) of the Act. Contrary to the Trial Examiner, however, we are persuaded that, as the General Counsel contends, the facts found by the Trial Examiner' establish that the employees were engaged in union activities, and that their discharge therefor violated Section 8(a)(3) of the Act. It is clear that the negotiating meeting of July 11, 1966, was held for the purpose of discussing the wage rate for driving to be paid the three employees. Two of the three, Watson and Pack, attended that meeting and at that time informed General Manager Hudspeth that they could not drive for 5 cents per mile and preferred to work in the plant, to which he agreed. Shortly thereafter Holcomb, who had not attended the July 11 meeting because he was out of town on a trip, was informed of the action taken and agreed to go along with the other drivers. It is thus patent that the action taken by the employees on July 11 was in connection with and under the aegis of the Union's bargaining activities.2 It is therefore unquestionable that in implementing the July 11 action by rejecting the opportunity to drive on July 21, employees Watson, Pack, and Holcomb were equally engaging in union activities. In view of the circumstances under which the July 11 decision was reached by the employees and communicated to the Respondent, there can be no doubt that the Respondent knew of their union sympathies and activities in connection with the incidents involved herein. Further, Plant Superintendent Tucker was aware that these men had been given the option of accepting or rejecting a truckdriving assignment but at no time had warned them that this option was withdrawn and disciplinary action would be taken if they rejected such an assignment. Nevertheless, on July 21, he asked each in turn if he would drive, and on July 22, each was discharged by Hudspeth for refusing to do so. Accordingly, we are persuaded that the Respondent discharged Watson, Pack, and Holcomb for engaging in union activities, thereby violating Section 8(a)(3) of the Act as well as Section 8(a)(1). ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner, as modified below, and hereby orders that the Respondent, Memphis Moldings, Inc., Stairway Div., Memphis, Tennessee, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as herein modified: 1. Substitute the following as paragraph 1(a) to the Trial Examiner's Recommended Order: ' The Respondent's exceptions to the Trial Examiner's Decision are in large part directed to the credibility resolutions of the Trial Examiner. We will not overrule the Trial Examiner's findings as to credibility unless a clear preponderance of all relevant evidence convinces us that they were incorrect. Upon the entire record , such conclusion is not warranted here . Standard Dry Wall Products, Inc., 91 NLRB 544, enfd. 188 F.2d 362 (C. A. 3). 2 The Respondent and the Union were engaged at this time in negotiating the terms of a new agreement . As pointed out by the Respondent, after July 16, 1966, the termination date of the prior contract between the parties under the provisions of that agreement , its terms continued in effect until a new contract was entered into by the parties. 164 NLRB No. 74 MEMPHIS MOLDINGS, INC. 525 "(a) Discharging or otherwise discriminating against Jesse Watson, Levy Thomas Pack, or Freddie Holcomb, or any other employee, because of membership in or activity on behalf of International Union of District 50, United Mine Workers of America, or any other labor organization." 2. Substitute the following as the first indented paragraph of the Appendix attached to the Trial Examiner's Decision: WE WILL NOT discharge or otherwise discriminate against Jesse Watson, Levy Thomas Pack, or Freddie Holcomb, or any other employee, because of membership in or activity on behalf of International Union of District 50, United Mine Workers of America, or any other labor organization. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Louis LIBBIN, Trial Examiner: Upon individual charges filed on July 25 and August 18, 19, and 22, 1966, the General Counsel for the National Labor Relations Board, by the Regional Director for Region 26 (Memphis, Tennessee), issued a complaint, dated September 2, 1966, against Memphis Moldings, Inc., Stairway Div., herein called the Respondent. With respect to the unfair labor practices, the complaint alleges, in substance, that on July 22, 1966, Respondent discharged employees Jesse Watson, Levy Pack, and Freddie Holcomb, and thereafter refused to reinstate them, because of their union or concerted activities, and thereby violated Section 8(a)(1) and (3) of the Act. In its duly filed answer, Respondent admits the discharges and refusal to reinstate the above- named employees but denies the unfair labor practice allegations. Pursuant to due notice, a hearing was held at Memphis, Tennessee, on November 8, 1966. All parties appeared and were given full opportunity to participate in the hearing, to introduce relevant evidence, to examine and cross-examine witnesses, to argue orally on the record, and to file briefs. On December 6, 1966, the General Counsel filed a brief, which I have fully considered. For the reasons hereinafter indicated, I find that Respondent violated only Section 8(a)(1) of the Act. Upon the entire record' in the case, and from my observation of the demeanor of the witnesses while testifying under oath, I make the following: FINDINGS OF FACT Tennessee ; during the same period it has sold and shipped products , valued in excess of $50,000, from its Memphis plant directly to points outside the State of Tennessee. Upon the above admitted facts, I find , as Respondent admits in its answer, that Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the record shows, and I find that International Union of District 50, United Mine Workers of America, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act.2 III. THE UNFAIR LABOR PRACTICES A. Introduction; the Issues Jesse Watson, Freddie Holcomb, and Levy Pack were employed by Respondent as combination truckdrivers and plant employees; they drove a truck when there was a load to be taken out, and worked in the plant along with the other production employees when there were no driving assignments. Watson began his employment in February 1964; Holcomb, in November 1963; and Pack, in September 1962. They were the only employees who drove a truck for Respondent. Sometimes they worked in the plant continuously for several weeks; on other occasions, they might be out on the road for a long period. When they drove the truck, they were paid 5 cents per mile; when they worked in the plant, they were paid $1.35 an hour, the same rate received by the other production employees. All three employees were members of the Union which had a collective-bargaining agreement with Respondent. This agreement terminated by its terms on July 16, 1966. Thereafter, pursuant to due notice, negotiations for a new agreement were undertaken. During the course of the negotiations, the Union took the position that while these three employees were driving a truck, they should be paid 7 cents per mile instead of the 5 cents per mile which they were getting under the old contract. Respondent's position was that it could not afford to pay 7 cents per mile. On July 22, 1966, before agreement had been reached on a new contract, General Manager and Vice President Hudspeth discharged Watson, Holcomb, and Pack on the asserted ground that the preceding day each one had refused to take out a load at the rate of 5 cents per mile. The issues litigated in this proceeding are whether, as alleged in the complaint, these three employees were discharged (1) because of their union activities or (2) because they engaged in protected concerted activities. 1. THE BUSINESS OF THE COMPANY Respondent is a corporation licensed to do business in Tennessee, with a plant in Memphis, Tennessee, where it is engaged in the manufacture of folding staircases and doorframes. During the 12 months preceding the issuance of the instant complaint, Respondent has received at its Memphis plant goods and materials, valued in excess of $50,000, directly from points located outside the State of I I hereby note and correct the following obvious errors in the typewritten transcript of the testimony P 24, 1 . 22, p 34, 1 15, p. 43, 1 12, change "hour" to "mile ", p. 91, 1 15, change "TRIAL EXAMINER" to "MR TAYLOR"; p. 104, 1 5, change "meaning" to "meeting" , p 171, 1. 3, change "rule" to "route." B. Sequences of Events3 1. The negotiating meeting of July 11 General Manager Hudspeth requested and received permission from the union business agent to hold a negotiating meeting in Hudspeth's office concerning the pay to be received by the three employees when 2 Memphis Moldings, Inc, 146 NLRB 265, enfd 341 F 2d 534 (C. A. 6) 3 Unless otherwise indicated , the factual findings in this section are based on evidence which is either undisputed or admitted 526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD performing their duties Ias truckdrivers This meeting was held on the morning of July 11, 1966." Only two of the drivers, Pack and Watson, were present at this meeting, as Holcomb was out of town on a trip at that time. Also present for the Union were Shop Steward Conrad and William Frazier, an employee member of the negotiating committee Pack asked Hudspeth about paying 7 cents per mile for driving because he could not support his family on 5 cents per mile Hudspeth said he could not afford it and could ship cheaper commercially. Pack then asked if he would pay 5 cents per mile, $3 a day for expenses, and time spent for the unloading. Hudspeth did some figuring, and stated they were trying to make secretaries out of him. He also told them that whether they came to an agreement or not they could not stop him from shipping because in some cases he could ship cheaper anyway, and asked them to think it over. Pack then stated that he was not going to drive for 5 cents per mile and that he would rather work in the plant. Hudspeth replied that they did not have any classified jobs and that he could consider himself as an employee in the plant "as of now." Watson agreed with Pack and also told Hudspeth that he was not going to drive for 5 cents per mile anymore and would rather work in the plant.5 2. Holcomb is informed of July 11 meeting Holcomb had not attended the July 11 meeting because he was out of town on a trip. After his return about July 13 or 14, Holcomb was informed about the July 11 meeting both by Pack and by Shop Steward Conrad, was told that Hudspeth would not pay 7 cents per mile, and that Watson and Pack were not going to drive anymore for 5 cents per mile Holcomb agreed to go along with the other drivers and stated that he was not going to drive any more for 5 cents per mile.6 3. The July 21 refusal to take out a load After the July 11 meeting, Watson took no more loads out, and continued to work in the plant until the discharge of the three men on July 22. After Holcomb was informed of the July 11 meeting and had indicated that he would go along with the other drivers and not drive any more for 5 cents per mile, he too made no more trips and continued to work in the plant until his discharge Pack made one more trip after the July 11 meeting, commencing on the evening " I deem it unnecessary to resolve the dispute relating to how the meeting was arranged for that day ' The findings in this paragraph are based a composite of the mutually consistent and undisputed testimony of Conrad, Pack, and Watson, all of whom impressed me as credible witnesses Hudspeth admitted that they were asking for 7 cents a mile and that Pack and Watson stated during the course of the negotiations that they would not continue to drive for 5 cents a mile Although he at first denied that he told them they could continue to work in the plant, he later admitted that he might have said it He further admitted that he pointed out to Pack that he had averaged better than $100 a week as a combination truckdnver and plant employee and warned that if Pack continued on only as a plant employee he might have trouble meeting his obligation on only $54 per week which was what $1 35 per hour amounted to Moreover, Conrad credibly testified without dispute that about a week after the discharges he told Hudspeth, in response to the of July 11 and returning on July 13 or 14.7 Thereafter, he also worked in the plant until his discharge. On Thursday, July 21, all three men were working in the plant. During the day, Plant Superintendent Tucker approached Holcomb, stated that he had a load going out, and asked Holcomb if he "want [ed] it " Holcomb then asked Tucker if the price was still the same. When Tucker replied that it was, Holcomb stated that he did not want the load. Tucker did not say anything else, and walked away. Tucker then went over to Pack, who was working on doorframes at the time, stated that he had a load going to Birmingham, and asked Pack if he "want[ed] it." Pack asked if the price was still the same When Tucker replied that it was, Pack stated that he did not want to take it. Tucker stated that someone had to take it, and walked away. Tucker then came up to Watson, stated that he had a load going out, and said that Watson "could take it or leave it." Watson also asked "if it was for the same price that we had been driving." Tucker replied that as far as he knew it was. Watson then said that he "didn't want it for the same price." Tucker walked away without anything else being said. 4. The discharges on July 22 About 3:30 or 4 p.m on July 21, Tucker reported to Hudspeth that the truckdrivers had refused to take out the load to Birmingham. Although Tucker admittedly had the authority to discharge employees, Hudspeth said nothing about the matter to Tucker at that time. Instead, he had the load shipped commercially that day. Hudspeth admitted that he did a good deal of shipping commercially both before and after the discharges. The next morning, July 22, Hudspeth had the three men summoned to his office, one at a time. In the presence of Superintendent Tucker, Hudspeth in each case asked the employee if he had refused to take out a load when asked by Tucker the preceding day. In the case of Holcomb and Pack, the reply was that he had refused to take out a load at the same rate of pay he had previously been getting. In each case, Hudspeth thereupon summarily discharged Holcomb and Pack. Watson's reply was that he had not refused, explaining that Tucker had given him the choice to "take it or leave it" and that he chose not to take it only after Tucker stated that as far as he knew it was still at the same price. Hudspeth thereupon asked Tucker if that was, the way he had put it to Watson. Tucker replied that it latter's query, that Hudspeth had stated at the July 11 meeting that the men could continue to work at the plant , and that Hudspeth replied that he "might have" said it but did not "mean it " Moreover, Hudspeth admitted that he had "a lot" of "loads shipped commercially " And finally, there was sufficient work available at the plant to employ the drivers full time, as is indicated by the fact that two new full-time employees were hired within a week after the discharges, and still more were hired shortly thereafter Under all the circumstances , I find that Hudspeth did make the statements attributed to him in the text 6 While the witnesses were uncertain as to the exact dates on which Holcomb was informed of these events, they were certain that it was after Holcomb returned from his out-of-town trip The exact dates are not material 7 Hudspeth admitted that this order had been received before July 11 but testified that he did not know whether Pack had been scheduled before the meeting to take this load out MEMPHIS MOLDINGS, INC. 527 was." Hudspeth neverthless also summarily discharged Watson. C. Contention of the Parties The General Counsel contends first that the reason advanced by Respondent for discharging these three employees was pretextuous and that the true reason for their discharge was because of their union activity in supporting the Union's demands in the contract negotiations for an increase in pay while driving. Secondly, as an additional alternative and independent ground, the General Counsel contends that in refusing to drive for 5 cents per mile, the men were engaging in a protected concerted activity for their mutual aid and protection, and that therefore a discharge for engaging in such conduct is violative of the Act even in the absence of any discriminatory motivation. Both contentions are encompassed within the relevant allegation of the complaint. The Respondent contends that General Manager Hudspeth discharged the three employees solely because they refused to carry out an assignment on July 21 to take out a load at the rate of 5 cents per mile: in so doing, he was not discriminatorily motivated by their union activities, at the time of the discharges, he did not know that the men had concertedly decided to refuse to drive any more at the rate of 5 cents per mile, if in fact they had, if they had engaged in such concerted activity, it was not the type of concerted activity protected by the Act : and, in any event, the discharges should have been processed as a grievance under the contract. D. Concluding Findings I agree with the Respondent that the record as a whole does not support the General Counsel's first contention that the discharges were in fact motivated by the employees' union activities in supporting the Union's negotiating demands for an increase in pay while driving. I will accordingly recommend dismissal of the 8(a)(3) allegation . However, I do find merit in the second, or alternative, contention of the General Counsel. At the July 11 negotiating meeting, Pack and Watson were clearly engaging in a concerted activity for their mutual aid and protection when they each took the position and told Hudspeth that they would no longer drive at the rate of 5 cents per mile. When, upon his return from his out-of-town trip, Holcomb was informed of what had transpired at this meeting and of the announced position of Pack and Watson, he agreed to go along with the other drivers and not drive any more for 5 cents per mile. Thus, Holcomb made common cause and allied himself with Pack and Watson in their determination not to drive at that rate I therefore find that when on July 21 Pack, Watson, and Holcomb each declined to take a load out at the rate of 5 cents per mile, they were engaging in a concerted activity for their mutual aid and protection.' On the record in this case , there is no validity to Respondent's contention that such concerted activity is not protected by the Act. Thus, the conduct of both Hudspeth and Tucker demonstrates that acceptance of assignments to drive at the rate of 5 cents per mile was made optional or voluntary. As previously found, when Pack announced at the July 11 negotiating meeting that he would no longer drive at 5 cents per mile and preferred to work full time in the plant, Hudspeth stated that henceforth Pack could consider himelf as a plant employee. Watson then announced that he agreed with Pack in this respect and that he too preferred to work in the plant. Hudspeth gave no indication that Watson or any other driver would be treated differently from Pack. Moreover, neither at this meeting nor at any other time did Hudspeth indicate or even intimate that any disciplinary action might follow a refusal to take a load out at the rate of 5 cents per mile. Holcomb took the same position only after the results of the negotiating meeting were communicated to him. Respondent's counsel stipulated that Superintendent Tucker stated in his pretrial affidavit that he heard that the drivers were not going to take out a load any more at the 5-cent-per-mile rate. That Tucker was aware that acceptance of such an assignment had been made optional or voluntary is demonstrated by the fact that, contrary to his past practice and procedure,10 he at no time ordered or told the men to carry out the July 21 assignment but gave each driver an option as to whether or not to accept it. Thus, as previously found, he asked Holcomb and Pack, separately, whether they "want[ed]" to take the load out, and he specifically told Watson that he "could take it or leave it." Only after the men were informed, in response to their query, that the rate was still 5 cents per mile, did they each exercise their option to decline the assignment. Tucker's further conduct in not giving any indication of any sense of emergency in the delivery of this load or that any disciplinary action might follow a refusal to accept the assignment, was consistent with the fact that such an assignment was made optional or voluntary. Nor did Hudspeth, upon being informed that same afternoon of the refusal of the men to accept the assignment , at any time order them to do so. As Respondent made the acceptance of such an assignment optional or voluntary, the drivers were not seeking to impose on their employer their own conditions of employment by refusing to perform such work The Board has held that in such circumstances," the concerted activity of the employees did not lose the protection of the Act. I find that the exercise of the option given to them to refuse to perform the July 21 assignment at the 5-cent-per- mile rate was a concerted activity protected by Section 7 of the Act. "The findings as to the conversations preceding Watson's discharge are based on the credited testimony of Watson Hudspeth at first testified that he did not "recall" Watson stating that Tucker had given him a choice as to whether he should take the load out and that Tucker had confirmed it Later in his testimony , he denied that Watson had made such a statement It is undisputed that Superintendent Tucker was the only other person present in the office on this occasion Although Tucker was present in the hearing room , Respondent failed to call him as a witness to corroborate Hudspeth's testimony Moreover, counsel for Respondent stipulated that Tucker had stated in his pretrial affidavit that he had in fact told Watson to "take it or leave it " Under all these circumstances , I do not credit Hudspeth ' s denial s Cf, e g , Walls Manufacturing Company, Inc, 137 NLRB 1317 , enfd 321 F 2d 753 (C A D C ), cert denied 375 U S 923, where the Board held that the activity of an employee in writing a complaining letter to the health department was concerted activity merely because two other employees had approved the letter before it was mailed 10 The undisputed testimony shows that in the past Tucker did not ask the men if they wanted a load , but rather told them that they were going to take a load to a certain place u The Dow Chemical Company, 152 NLRB 1150,1152 528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Contrary to Respondent's contention, it is immaterial that Respondent may not have known of the concerted nature of the employees' activities at the time of their discharge. 12 Thus, the Supreme Court stated in N.L.R.B. v. Washington Aluminum Company, Inc., 370 U.S. 9, 14. We cannot agree that employees necessarily lose their right to engage in concerted activities under § 7 merely because they do not present a specific demand upon their employer to remedy a condition they find objectionable. The language of § 7 is broad enough to protect concerted activities whether they take place before, after, or at the same time such a demand is made. To compel the Board to interpret and apply that language in the [niggardly] fashion suggested by the respondent here would only tend to frustrate the policy of the Act to protect the right of workers to act together to better their working conditions. Moreover, I am convinced and find, particularly in view of the following, that Respondent was aware, or at the very least suspected, that the three drivers had agreed not to drive any more at the rate of 5 cents per mile. Thus, Hudspeth knew that Pack and Watson had taken that position at the July 11 negotiating meeting. Tucker had heard that the three men were not going to drive any more at that rate. Contrary to his past practice, Tucker gave each driver the option of accepting or refusing the July 21 assignment And finally, Tucker reported to Hudspeth on the afternoon of July 21 that the truckdrtvers had refused to take the load out. By discharging employees Holcomb, Pack, and Watson for engaging in the protected concerted activity of exercising the option given to them to decline to take out a load at the rate of 5 cents per mile, conduct protected by Section 7 of the Act, Respondent has violated Section 8(a)(1) of the Act.13 2. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 3. Respondent has not engaged in unfair labor practices within the meaning of Section 8(a)(3) of the Act. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action which will effectuate the policies of the Act. Having found that Respondent violated Section 8(a)(1) of the Act by discharging Levy Pack, Jesse Watson, and Freddie Holcomb on July 22, 1966, because they engaged in concerted activities for their mutual aid and protection, I shall recommend that Respondent offer them immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earnings they may have suffered as a result of their unlawful termination, by payment to each of them a sum of money equal to that which each normally would have earned as wages from the date of their discharge to the date of Respondent's offer of reinstatement, less the net earnings of each during such period, with backpay and interest thereon to be computed in the manner prescribed by the Board in F.W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. Upon the foregoing findings and conclusions and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following: RECOMMENDED ORDER IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations of the Respondent described in section I, 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. CONCLUSIONS OF LAW 1. By discharging Levy Pack, Freddie Holcomb, and Jesse Watson on July 22, 1966, because they engaged in a protected concerted activity for their mutual aid and protection , as set forth in section D, supra, Respondent has interfered with , restrained , and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act and thereby has engaged and is engaging in unfair labor pracices within the meaning of Section 8 (a)(1) of the Act. t Plastics Industrial Products, Inc , 139 NLRB 1066, 1073 There is no merit to Respondent 's additional contention that the discharges should have been processed as a grievance pursuant to articles 7 and 8 of the agreement Article 16 of the agreement , entitled "DURATION ," provides that the agreement shall remain in effect from July 16, 1965, until and including July 15, 1966, and from year to year thereafter unless either party shall give notice of a desire to change or modify the terms of the Respondent, Memphis Moldings, Inc., Stairway Div., Memphis, Tennessee, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging or otherwise discriminating against its employees for exercising the right guaranteed in Section 7 of the Act to engage in concerted activities for their mutual aid or protection. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act (a) Offer to Levy Pack, Jesse Watson, and Freddie Holcomb immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to seniority or other rights and privileges previously enjoyed, and make them whole for any loss of pay suffered by reason of their discharge, in the manner set forth in the section of this Decision entitled "The Remedy." (b) Notify the above-named employees if presently serving in the Armed Forces of the United States of their agreement at least 60 days prior to its expiration date Hudspeth admitted that the Union had given the requisite notice of a desire to change or modify the contract, that the agreement had expired on June 16 , 1966, and that negotiations for a new contract began after the expiration of the old agreement He further admitted that no new agreement was executed until after the discharges It therefore is clear that no contract was in effect at the time of the employees ' concerted activity and discharge therefore. MEMPHIS MOLDINGS, INC. 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. (c) Preserve and, upon request , make available to the Board or its agents , for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Recommended Order. (d) Post at its plant in Memphis, Tennessee, copies of the attached notice marked "Appendix."14 Copies of said notice, to be furnished by the Regional Director for Region 26, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 26, in writing, within 20 days from the receipt of this Recommended Order, what steps Respondent has taken to comply herewith. 15 IT IS FURTHER RECOMMENDED that the complaint be dismissed insofar as it alleges violations of Section 8(a)(3) of the Act. i^ 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 " i S 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 26, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " 529 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 discharge or otherwise discriminate against employees for exercising their statutory right to engage in concerted activities for their mutual aid and protection. WE WILL NOT in any like or related manner interfere with , restrain , or coerce employees in the exercise of rights guaranteed in Section 7 of the Act. WE WILL offer to Levy Pack, Jesse Watson, and Freddie Holcomb immediate and full reinstatement to their former or substantially equivalent positions. without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earnings they may have suffered as a result of their discharge. MEMPHIS MOLDINGS, INC., STAIRWAY Div. (Employer) Dated By (Representative) (Title) Note: We will notify the above -named employees if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions , they may communicate directly with the Board's Regional Office. 746 Federal Office Building. 167 North Main Street. Memphis. Tennessee 38103. Telephone 534-3161.