Big Three Industrial Gas and Equipment Co.

30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Big Three Industrial Gas and Equipment Company and James E. Marsh and Justine J. Rodgers . Cases 23-CA-2375 and 23-CA- 2452. May 31,1967 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND JENKINS On March 3, 1967, Trial Examiner Horace A. Ruckel 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. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case 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 the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER hearing) allege in substance that Respondent at various times beginning in January 1966 has interrogated employees concerning their union affiliations and has informed them that it was engaging in surveillance of their union activities, and on or about April 25 discharged James E. Marsh and Justine R. Rodgers because of these activities, in violation of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended (29 U.S.C., Sec. 151, and following), herein called the Act. At the hearing the complaint was amended to include all allegations that Charles R. Vickery, Jr., counsel for Respondent, on or about September 24 and 26. 1966, interrogated employees concerning the contents of statements which they and other employees had given Board agents. Respondent has filed an answer denying the commission of any unfair labor practices. Pursuant to notice I conducted a hearing at Houston, Texas, on September 27, 28, and 29, 1966, at which all parties were represented. At the conclusion of the hearing the parties waived oral argument. Subsequently they filed timely briefs. Upon the entire record of the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent is a Texas corporation maintaining its principal office and place of business at P.O. Box 3047, Houston, Texas, where it is engaged in the manufacture of oxygen, actyline, nitrogen, and areau. Respondent, during the 12 months prior to the issuance of the complaint, manufactured, sold, and shipped products valued in excess of $50,000 from its Houston plant directly to States other than the State of Texas. The complaint alleges and Respondent's answer admits that Respondent is engaged in commerce within the meaning of the Act. 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, and hereby orders that the Respondent, Big Three Industrial Gas and Equipment Company, Houston, Texas, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Before HORACE A. RUCKEL, Trial Examiner: This case comes before me upon two complaints of unfair labor practices dated respectively July 22 and September 14, 1966, issued by the General Counsel of the National Labor Relations Board, here called the General Counsel and the Board, through the Board's Regional Director for Region 23 (Houston, Texas), against Big Three Industrial Gas and Equipment Company, here called Respondent, based upon charges and amended charges filed on July 19 and 22, 1966, by James E. Marsh and Justine J. Rodgers, individuals. The complaints (consolidated for the purposes of II. THE LABOR ORGANIZATION INVOLVED General Drivers, Warehousemen and Helpers, Local Union No. 968, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, here called the Union, is a labor organization admitting employees of Respondent to membership. III. THE UNFAIR LABOR PRACTICES A. Interference, Restraint, and Coercion The Union began organizing Respondent's employees during the early part of January 1966, when James Marsh, an over-the-road driver, made contact with representatives of the Union at Houston. After two meetings with them, Marsh, on January 18, joined the Union, and he and two others were given union authorization cards to distribute. Marsh obtained the signatures of various other employees to these cards. The Union also mailed cards directly to Respondent's employees. Louis Kominczak, head of Respondent's transport department, whom I find to be a supervisor within the meaning of the Act, asked Don Mize, a driver, according to the latter's testimony, if he had received "any mail" from the Union. Mize had not at the time, but shortly thereafter he did receive one of the cards and turned it in to Kominczak. Oliver Sabala similarly testified that on the 165 NLRB No. 3 BIG THREE INDUSTRIAL GAS & EQUIPMENT CO. day he received a card through the mail Kominczak called him on the telephone, asked him if he was going to sign it (the card), and how he was going to vote. When Sabala replied that he was uncertain , Kominczak asked him to give him the card and the accompanying letter, which Sabala did. Kominczak denied telephoning Sabala on this subject, but did not deny that Sabala turned over the union card to him, and admitted receiving a number of other cards from employees, all of which he delivered to H. G. Wheat, Respondent's vice president, and that he kept a list of the employees who received cards. I credit the testimony of Sabala and Mize that Kominczak asked them to bring him the cards received from the Union. In soliciting union cards and union correspondence from employees, and in maintaining a list of those who surrendered them, Respondent created an impression of surveillance of its employees in contravention of the Act.' Later in January, when Kominczak dispatched Mize on a trip, he asked Mize, according to the latter's testimony, to "talk to" an employee who accompanied him because Kominczak suspected that he was "one of the union boys," and to see what Mize could find out about the Union from him. Kominczak denied making this request of Mize, though admitting that he "might have" discussed the Union on occasion. As will more fully appear, I found Kominczak to be a shifty and self-contradictory witness. I do not credit his denial and find Mize's account to be in accord with the facts B. The Discharges: Other Interference, Restraint, and Coercion 1. James Marsh Marsh came to work for Respondent on November 22, 1965, as an over-the-road driver, following interviews with Lynn Martin ,2 assistant transport supervisor, and Gaylord Johnson, personnel manager. He had been a truckdriver approximately 20 years, driving about 5,000 miles a month on the average. On April 14, 1966, employee Matthews was driving one of Respondent's trucks when it turned over. Marsh, the second driver, was asleep in the sleeper cab at the time. As a result of the accident the two men were hospitalized until April 21. On April 22, Marsh came down to the terminal and at the nearby AAA Cafe, patronized by the drivers, had a cup of coffee with Justine Rodgers, whose discharge along with that of Marsh is hereinafter discussed, and Kenneth Ward. On the way back to the terminal the three men arranged to meet again that evening at Priscilla's Restaurant, also frequented by the drivers. At this meeting Marsh procured the union applications of both Rodgers and Ward. Ward's testimony is that on returning to the terminal after talking with Marsh and Rodgers at the AAA Cafe, Kominczak, who admitted while testifying that he saw them leave the terminal together, asked Ward, "Well, what did my boy have to say?" When Ward asked Kominczak whom he was referring to, Kominczak told him Marsh, calling him an obscene name and characterizing him as "the one that's pushing this Union " On the ' Mrs Owen E Brennan 's d/bla Brennan 's French Restaurant, 147 NLRB 1545 2 Respondent 's answer denies that Martin is a supervisor Martin's testimony is that he is assistant to Kominczak, whom I have found to be a supervisor , and that his duties are to maintain 31 following day Kominczak, according to Ward's further testimony, told him he knew that the three men had also stopped at Priscilla's Restaurant, asked Ward what they were doing there, if they were talking about the Union, and if Marsh had given him a union card, to which Ward replied in the affirmative. Kominczak concluded his interrogation by saying that if Marsh "has got time to campaign for the Union he has got time to be back to work." According to Kominczak's own later testimony, however, Marsh had not at this time been certified by his doctor as able to work. Kominczak did not deny the statements attributed to him by Ward, or the accuracy of his account, except to say that he did not specifically ask Ward any question concerning Rodgers. He denied knowing that Rodgers was interested in the Union, though he admitted knowledge of Marsh's activity. I credit Ward's account and find that Ward told Kominczak, whether or not the latter inquired, that Marsh had solicited Rodgers' membership as well as Ward's. On the evening of April 26 Kominczak telephoned Marsh and told him to come to the terminal the following day. When he arrived the next morning, Kominczak told him that he was discharged because he had too many speeding tickets. Respondent had already in April experienced a serious accident in addition to that of Matthews, which occurred in Florida. After this accident, Young, the driver, was discharged, although Vallet, the second driver, was not. Nor was Matthews, as the result of the accident on April 14. Marsh's discharge, however, is said to have been not because of the April 14 accident, since he was not driving, but because of a previous bad traffic record. According to Kominczak and Wheat, Respondent's vice president, as the result of these two accidents Respondent decided to investigate the driving record of Marsh (but not of Matthews) and of several other drivers, of whom Respondent employed 26 or 27, and to suspend the Florida hauling. Just previous to checking the records, however, according to Kominczak, driver Cannon informed him that Marsh had received a traffic ticket for speeding in Louisiana, which evidence shows was on February 19, 2 months previously. Admittedly, he made no investigation of this, even to the extent of asking Marsh about it, before discharging him. In fact, inquiry was not made concerning it until in September 1966, a year and 6 months after Marsh's discharge, and the report of the Louisiana Division of Public Safety was received not more than 10 days before the hearing on September 29, according to Respondent's counsel. The record, however, shows that two other drivers received tickets in Louisiana at the same time Marsh did and that upon returning to the terminal the tickets were a matter of discussion and common knowledge at the terminal. I find that Kominczak had knowledge of these tickets at the time they were issued. The request made as to Marsh's prehiring violations in Texas following the April 14 accident was stamped as received by the Texas Division of Public Safety on April 25 Kominczak's testimony on cross-examination was that the report of the Division was not in his hands on April 26 or 27 when he discharged Marsh, but that he "knew of it" prior to the discharge, and that Marsh was the equipment , help supervise the drivers and check them out, interview new drivers and recommend them for employment, and "more or less assist ling] in all parts of the transport operations I find Martin to be a supervisor within the meaning of the Act 32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD discharged because of it. There is no explanation of how he could have heard of the contents of the report prior to receiving it. I do not credit his testimony on this point. Even if it be assumed that Marsh was discharged on April 27, as he testified, instead of April 26, as Kommczak himself first stated, I find it highly improbable that the filing as late as April 25 permitted the preparation, processing, and delivery by mail of the report, first to the insurance company and then to Respondent, within 2 days. No report on Marsh at the time of his hiring was offered in evidence But on the basis of the circumstantial evidence I conclude that Respondent did reapply for and did receive a report of Marsh's prehiring driving violations shortly after his hiring. It was its stated policy to obtain this information in the case of a new employee, and the memorandum previously referred to stated specifically that it would do so in Marsh's case within 30 days. The report which Kominczak "knew about," I find, was this report which had long been in its possession, and not the one requested at the time of the April 14 accident, which Kominczak admitted was not in his hands when he discharged Marsh. In short, I find that Respondent had full knowledge of Marsh's previous driving record within a month or so after his hiring, and was not caught by surprise by the second report which Respondent did not receive until after it discharged him. Respondent said nothing to Marsh in light of this knowledge, that is, that he had five traffic violations instead of the three on This employment application, and continued his employment as a driver. Respondent emphasizes the importance of the five traffic violations prior to Marsh's hiring because, it says, it has a rule that any driver will be discharged if he has more than three moving violations in 3 years. There is no evidence that any such "rule" was posted or announced to employees as a group, or individually when hired. Three drivers called by the General Counsel testified that they had never heard of it. No driver testified that he had. Wheat, Respondent's vice president in charge of trucking operations , testified respecting it: Q. (By Mr. Juarez) Mr. Wheat, you say that this rule about three traffic tickets in three years has been with the Company ever since you started working there? A. I didn't say that, sir. I said as far back as I can remember. I haven't been in a supervisory capacity or in a capacity to know for that period of time. Q. I see. How far back can you remember, approximately? A. I would say in the range of six to seven years. Q. Were these the years that you were a supervisor? A. . . . possibly, at the very first of that, sir. The witness seems to be saying here that only supervisors or those "in a capacity to know" would be informed of the "rule." This finds some support in the following colloquy: TRIAL EXAMINER:... There would be no purpose in having such a rule and not telling the employees about it because the purpose of the rule is to educate the employees so that they will cut down on the violations. MR. VICKERY: Any company that has truck drivers has to set up some kind of a standard. Whether they know about it or not is neither here nor there. I conclude that there was no "rule" that drivers in Respondent's employ having more than three violations in 3 years would be discharged. The only evidence that any rule on this subject was enumerated to anyone is a letter dated October 20, 1965, concerning "Applications for new employees," directed to "All Department Heads," which stated that "as a general rule" any "applicant" for a driver's job having more than three traffic offenses in the previous 3 years is not "acceptable" for employment, and that "any exceptions" are to be cleared through the Houston office. Clearly this direction is applicable by its terms only to persons applying for employment and has in mind traffic violations or accidents occurring prior to hiring. Conclusions Respondent had made it clear to its employees that it was opposed to the Union, and it viewed Marsh, as Kominczak stated to Ward, as its "pusher." Kominczak's further statement to Ward, when appraised of Marsh's solicitation of Rodgers' membership, that if Marsh had time to campaign for the Union he had time to come back to work, overlooked the fact, which he knew, that Marsh had not yet been cleared by his doctor for work. It does underscore, however, Respondent's reason for removing him from its roster of drivers. I view Respondent's defense that it discharged Marsh because he had too many traffic violations (though no accident) as only an afterthought. I have found that at the time it discharged him it had had for some time knowledge of the traffic tickets he had been given prior to hiring him. There is no evidence of any traffic violations at all during his employment by Respondent except the one in Louisiana 2 months before his discharge, which I have found it knew about at the time it occurred. In spite of its knowledge of these violations, which Respondent now professes to view with great concern, and on which it bases its decision to discharge him, it continued to employ him without so much as mentioning them to him until after he became active in signing up Respondent's employees in the Union. It then discharged him. I conclude and find that Respondent's real reason for his discharge was his activity on behalf of the Union in violation of the Act. 2. Justine Rodgers Rodgers was hired by Respondent on February 25, 1966. His uncontradicted , credited testimony is that when Martin interviewed him for employment he referred to the Union's current organizing drive and asked Rodgers what his feelings were toward a union , and Rodgers replied that he had none . His subsequent signing of a union card on April 22 at the Priscilla Restaurant, at the urging of Marsh and in the presence of employee Ward , has been related in connection with Marsh's discharge shortly thereafter. It has also been found that upon Ward's returning to the terminal from the AAA Cafe that evening Kominczak told him that Marsh , whom he called by an obscene name, was "pushing the Union ," and asked him what Marsh had to say to him and Rodgers , and on the following day, Saturday, April 23, told Ward that he knew that he, Marsh, and Rodgers had stopped at Priscilla's Restaurant and had talked together for sometime , and asked him if they had been talking about the Union , to which Ward replied that they had. On the following Monday, April 25, when Rodgers called the terminal in accord with the prevailing practice of the BIG THREE INDUSTRIAL GAS & EQUIPMENT CO. drivers, he was told to come in and see Kominczak, because he was discharged. When Rodgers arrived at the terminal Kominczak told him that his final paycheck was being made out and that Respondent was laying off five drivers because it was "overstaffed," and Rodgers was included because he was one of the last to be hired. Rodgers asked him who else was being laid off and Kominczak named Bob Turner and Jim Nelius.3 Wheat, asked if Kominczak had recommended discharge, said that he had, and when asked if he approved it for the reasons that Kominczak "gave on the stand a while ago," he said that he did. He did not, however, deny telling Kominczak at the time of the termination that it was due to a reduction of forces because of "overstaffing." As has been seen, the reason Kominczak first gave on the stand was "overstaffing," which he attributed to Wheat, his superior and Respondent's vice president, at whose direction he was acting. If Kominczak is to be credited as to the reason he first gave for Rodgers' discharge, then the question put to Wheat was nothing more than whether he approved his own order. Further questioned by counsel, however, Kominczak advanced as the reason for terminating Rodgers one which originated with himself, discharge for cause, and had nothing to do with "overstaffing" or any other economic factor. This was that he did not have his home in Houston and "you can't work a man who doesn't live in Houston and hasn't got a phone." He continued: TRIAL EXAMINER: By telephone you mean a telephone in his own name? THE WITNESS: Yes, Sir. TRIAL EXAMINER: Or living at a place where there is a telephone. His home is somewhere else. You had got him on the telephone, though, in Houston, had you not? THE WITNESS: We had before some, yes, sir. TRIAL EXAMINER: So you knew his telephone number? THE WITNESS: Yes, sir. Q. (By Mr. Vickery) Are your drivers required to do standby where they stand by the telephone? * * * * * A. We don't really require them to. We don't pay them no standby time, but that is the only way they can make a living is by the phone.4 On cross-examination it appeared that Turner, another driver, lived in the same rooming house with Rodgers and used the same telephone. Kominczak, according to his own testimony, regularly reached both of them on this phone. Turner, who like Rodgers had his family in another town (Dallas), continued in Respondent's employ. Asked why he did not discharge Turner since he, like Rodgers, had not moved his family to Houston, Kominczak replied that he was going to do so after school was out, but did not because he quit 4 or 5 weeks after Rodgers was discharged. Kominczak admitted that when Rodgers was hired he told him that he was not moving his family to Houston from Corpus Christi until the end of the school year. Kominczak testified that on the day he discharged Rodgers he had telephoned him without success at his rooming house, prior to Rodgers calling him "much later" at the terminal . He did not so inform Rodgers, but instead, 3 As will be seen , Kominczak later testified that Turner voluntarily quit 4 or 5 weeks after Respondent discharged Rodgers There is no evidence that Nelius or any other employee was terminated along with Rodgers 33 as has been found, advanced economic reasons only for his separation. Nor did he testify to any specific occasions in the past when he was unable to reach him at his place of resident in Houston; or explain how having a telephone in his own name instead of in his landlord's name would facilitate contact with him. Conclusions At the same time it decided to discharge Marsh Respondent decided to discharge Rodgers, whose membership in the Union Marsh had just solicited, a fact reported to Kominczak by Ward when Kominczak interrogated him about his meeting with Marsh and Rodgers. The contradictory reasons for its discharge of Rodgers, advanced at the hearing, as well as by Wheat to Kominczak, and by Kominczak to Rodgers himself at the time of the discharge, warrant the conclusion, which I draw, that the true reason is to be found elsewhere. At first, Respondent asserted Rodgers was being laid off for economic reasons together with four other employees. When it became apparent that this would not stand up, since in fact no other employee was laid off, and there is no evidence whatever that such a layoff was contemplated, Respondent, or Respondent's counsel, advanced the defense that he was living in a rooming house where the telephone was in the name of his landlady, and that he should have moved his family to Houston. He did not, however, contradict Rodgers' assertion that he told Kominczak when Respondent hired him that he was not going to move his family to Houston until school was out in June. And he admitted that he knew Marsh's telephone number and regularly reached both him and Turner (whom Respondent retained in its employ) on that phone. He did not explain why Turner, whose family was also waiting until school was out before moving to Houston, should be retained when Rodgers was discharged. As in the case of Marsh, I find Respondent discharged Rodgers not because of a legitimate business reason but because of his interest in the Union and his association with Marsh. C. Further Interference, Restraint, and Coercion The testimony of George Warren, Charles Talley, and Dan Mize, drivers, is that in September 1966, shortly before the hearing, Charles Vickery, Respondent's counsel, questioned them at the terminal during working hours as to whether they had been interviewed by an agent of the Board, whether they had given him written statements, what they had told him, what they were going to testify to at the hearing, and why they thought Respondent had discharged Marsh and Rodgers. This testimony was not denied by counsel. The Board has held that such interrogation under such circumstances is violative of the Acts and I so find. George Warren and Kenneth Ward testified that during the summer of 1966, prior to an election conducted by the Board in September, employee Bill Harvey brought them separately a petition to sign which stated, in effect, that Respondent's employees were satisfied with their nonunion status. This transpired in the driver's room where Kominczak and Martin had their desks: Warren stated that the petition "came out of a drawer in Mr. 4 Respondent has no regular runs and it rotates its drivers who are paid for the time they actually drive. According to Kominczak there are periods of several days between trips s SeeSt Louis Harbor Service Company, 150 NLRB 636. 34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Martin's desk," without, however, stating how he knew. He did not testify to the presence of any supervisory employee at the time. Ward testified that when Harvey approached him various persons were present in the driver's room, including Kominczak and Martin. There is no evidence that either one of these supervisors overheard the conversation or observed the petition. The testimony of Warren and Ward was not controverted. In view, however, of the sketchy nature of the evidence as to Respondent's knowledge of the petition, or its adoption of it, I find that the General Counsel has not met his burden of proving a violation of the Act in this instance. I shall recommend that the allegation of the complaint pertaining to it be dismissed. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with its operations described in section 1, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. CONCLUSIONS OF LAW 1. Big Three Industrial Gas and Equipment Company is an employer within the meaning of Section 2(2) of the Act and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By discharging employees James Marsh and Justine Rodgers Respondent engaged in an unfair labor practice within the meaning of Section 8(a)(3) and (1) of the Act. 4. Respondent violated Section 8(a)(1) of the Act by engaging in the following conduct. (a) interrogating an employee as to whether he intended to vote for the Union; (b) requesting that employees turn over union authorization cards to Respondent; (c) interrogating an employee as to whether he was going to vote for the Union and if he had received union correspondence; (d) keeping a list of employees who surrendered their union cards and making this known to employees; (e) asking an employee to engage in surveillance of the union activities of another employee; (f) interrogating employees as to what information they had given agents of the Board; and (g) interrogating an applicant for employment as to his union sentiments. 5. The unfair labor practices enumerated above are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in unfair labor practices violative of the Act, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent discriminatorily discharged James Marsh and Justine Rodgers, I shall recommend that it offer them immediate and full reinstatement to their former or substantially equivalent employment , without prejudice to their seniority or other rights and privileges , and make them whole for any loss of pay they may have suffered by reason of Respondent's discrimination against them by payment to each of them of a sum of money equal to that which he normally would have earned as wages from the date of his discharge to the date of Respondent's offer of reinstatement, less his net earnings during said period. Such backpay shall be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289. 291-294, and with interest thereon at the rate of 6 percent per annum as prescribed by the Board in Isis Plumbing & Heating Co., 138 NLRB 716. Discrimination against employees because of their union activities goes to the very heart of the Act and demonstrates such an opposition to its policies that it is reasonable to assume that the employer, under similar circumstances in the future, will interfere with its employees' statutory rights. Accordingly, I shall include in my Recommended Order a provision directing Respondent not to interfere with, restrain, or coerce its employees in any manner in the exercise of their statutory rights. Because it is clear that Respondent's conduct was motivated by opposition to all union activity among its employees and to the principle of collective bargaining generally, my Recommended Order will prohibit discrimination because of or interference with the exercise by the employees of their statutory rights on behalf of the Union or any other labor organization. RECOMMENDED ORDER Upon the foregoing findings of fact and conclusions of law and the entire record and pursuant to Section 10(c) of the Act, I hereby recommend that the Respondent, Big Three Industrial Gas and Equipment Company, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in the Union or any other labor organization, by discharging or otherwise discriminating against any employees or in any other manner discriminating in regard to hire or tenure of employment or any term or condition of employment. (b) Interrogating coercively employees as to whether they intended to vote for the Union; requesting that employees turn over union authorization cards to Respondent; keeping a list of employees who surrendered their union cards and making this known to employees; interrogating employees as to whether they were going to vote for the Union and if they had received union correspondence; asking any employee to engage in surveillance of the union activities of other employees; interrogating employees as to what information they had given agents of the Board; and interrogating an applicant for employment as to his union sentiments. (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self- organization, to form, join, or assist the Union, or any other labor organization, to bargain collectively through representatives of their own choosing, or to engage in other concerted activity for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any such activity. 2. Take the following affirmative action: (a) Offer James Marsh and Justine Rodgers 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 BIG THREE INDUSTRIAL GAS & EQUIPMENT CO. losses they may have suffered by reason of the discrimination against them in the manner set forth in the section entitled "The Remedy." (b) Notify James Marsh and Justine Rodgers 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. (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 this Recommended Order. (d) Post at its terminal in Houston, Texas, copies of the attached notice marked "Appendix."s Copies of said notice, on forms provided by the Regional Director for Region 23, 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 23, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.7 It is recommended that the allegation of the complaint that Respondent circulated an antiunion petition be dismissed. 6 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 General 35 Drivers, Warehousemen and Helpers, Local Union No. 968, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization, by discharging or otherwise discriminating against employees in regard to their hire or tenure of employment or any term or condition of employment. WE WILL NOT (1) coercively interrogate employees as to whether they intend to vote for the Union; (2) request that employees turn over union authorization cards to us; (3) keep a list of employees who surrender their union cards to us and make this known to other employees; (4) coercively interrogate employees as to whether they intend to vote for the Union or if they have received union correspondence; (5) ask any employee to engage in surveillance of the union activities of any other employee; (6) interrogate employees as to what information they may have given agents of the Board; or (7) interrogate any applicant for employment as to his union sentiments. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form, join, or assist the Union, or any other labor organization, to bargain collectively through representatives of their own choosing, or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. WE WILL offer to James Marsh and Justine Rodgers 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 losses they may have suffered as a result of their discharge. Dated By BIG THREE INDUSTRIAL GAS AND EQUIPMENT COMPANY (Employer) (Representative) (Title) Note: We will notify any of 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, 6617 Federal Office Building, 515 Rusk Avenue, Houston , Texas 77002, Telephone 228-0611.