Georgia Highway Express, Inc.

514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Georgia Highway Express, Inc. and Truck Drivers and Helpers Local Union No. 728. Case 10-CA-6581. June 19, 1967 DECISION AND ORDER BY MEMBERS BROWN, JENKINS, AND ZAGORIA On March 16, 1967, Trial Examiner A. Bruce Hunt issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of Sections 8(a)(1) and 2(6) and (7) of the National Labor Relations Act, as amended, 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 and a supporting brief, and Truck Drivers and Helpers Local Union No. 728, the Charging Party, filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the Act, 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 of the Respondent and of the Charging Party, respectively, and the entire record in the case, and hereby adopts the Trial Examiner's findings, conclusions, and recommendations. 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 and hereby orders that the Respondent, Georgia Highway Express, Inc., Atlanta, Georgia, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. IT IS FURTHER ORDERED that the complaint herein, insofar as it alleges that the Respondent violated Section 8(a)(3) of the Act, be, and it hereby is, dismissed. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE A. BRUCE HUNT, Trial Examiner: This proceeding, in which the charges were filed on June 13, July 19, and September 22, 1966, and the complaint was issued on October 5, 1966, involves allegations that the Respondent, Georgia Highway Express, Inc., violated Section 8(a)(1) and (3) of the National Labor Relations Act, as amended, 29 U.S.C. Sec. 151, et seq. On November 28, 29, and 30, 1966, I conducted a hearing at Atlanta , Georgia, at which all parties were represented by counsel .' Thereafter, all parties filed briefs. The Respondent's motion to dismiss is disposed of in accordance with the determinations below . Upon the entire record and my observation of the witnesses , I make the following- FINDINGS OF FACT I. JURISDICTION The Respondent, a Georgia corporation, is a common carrier of interstate and intrastate freight by motor vehicle. It operates a terminal at Atlanta, Georgia, and it annually receives in excess of $50,000 from the transportation of interstate freight. There is no dispute, and I find, that the Respondent is engaged in commerce within the meaning of the Act. IT. THE UNION Truck Drivers and Helpers Local Union No. 728 is a labor organization which admits to membership employees of the Respondent. III. THE UNFAIR LABOR PRACTICES A. The Issue On April 12, 1966, employees who worked on the dock of the Respondent's Atlanta terminal commenced a strike. It was not caused by unfair labor practices. Less than 18 hours later, the strike ended and the employees applied unconditionally for reinstatement. The applications were not granted until the following week or later, however, and the principal question is whether the Respondent had filled the jobs of the strikers with permanent replacements, as the Respondent contends, or whether the Respondent refused to reinstate strikers promptly because of their concerted and union activities, as the General Counsel and the Union contend. At this point it may be noted that, when the strike began, no employee was a member of the Union insofar as appears. B. The Events During late March 1966, approximately 75 employees on- the Atlanta dock ceased work and sought a conference with management. They talked with Charles Stewart, who was then operations manager at the terminal, and he suggested that they return to work and select several of their number to present their grievances. A committee of six, including Willie Hamm and Willie Dorsey, was designated and it met twice with Stewart, Brown Wilder, Stewart's assistant, and Richard J. Young, then Atlanta division manager. At the initial meeting, members of the committee asserted that some employees were being underpaid, that the men were working long hours without overtime, that job opportunities were limited, and that there had been harassment by supervisors. At the second meeting, which took place a few days before April 12, ' The transcript , at page 238 , line 18, does not correctly identify the speaker The transcript is hereby corrected so that line 18 will begin . "MR WILCOX." 165 NLRB No. 80 GEORGIA HIGHWAY EXPRESS, INC. 515 members of the committee expressed the view that management had not remedied the grievances and said that the employees remained dissatisfied.2 On April 12, the Respondent had 215 dock employees in Atlanta who worked on three shifts, one starting at 1 a.m., another between 8:30 and 9:30 a.m., and the third at 6 p.m. Sometime after 6 p.m. on April 12, employees on the dock started walking off the job without prearrange- ment or notice to the Respondent, insofar as appears. Hamm testified that he walked out and punched his timecard at 7 p.m. Dorsey testified that he punched his card between 6:30 and 7 p.m. Young testified for the Respondent that some employees left their jobs about 8:45 p.m. A total of 49 ceased work. Somewhat later, Hanim spoke with Young, saying that he did not know why the men had done so and offering to attempt to persuade them to return to work. According to Hamm, he knew some of the reasons for the walkout, but he did not know "what had triggered it." At 8:40 p.m., Young spoke to the strikers, saying that work would begin at 8:45 p.m., that those men who wished to resume work could do so, and, as to the remainder, that it had "been nice seeing you."3 None of the men resumed work. Instead, they made signs reading "On strike" and "Georgia Highway Unfair to Labor," and began to picket. The Respondent, in turn, began to seek replacements. According to Young, he communicated with the Respondent's counsel, Attorney Wilcox, who advised him that night to replace the strikers. Young testified further that he asked several persons to seek replacements, that he asked supervisory employees to telephone other terminals of the Respondent in efforts to obtain replacements and to route freight around Atlanta, and that some of the local pickup and delivery drivers were assigned to dockwork for an undisclosed period of time. The number of pickets at any time was limited, at the request of local police, to five or six men at each of two entrances to the Respondent's terminal. Within a few hours, men on the 1 a.m. shift reported for work, and still others reported for the shift beginning work about 8:30 a.m. A total of 66 men on these two shifts did not cross the picket line on April 13. Other men on those two shifts crossed the line and went to work.4 About 2 a.m. on April 13, two drivers for another carrier passed the terminal and noticed the picketing and the large number of men outside. They stopped and talked with the committee of six who had been designated by the employees during late March. Later during the night, arrangements were made for the strikers to visit the union hall after daybreak. About 9 a.m., a few more than 100 strikers went to the hall, leaving Hamm, another committeeman, and a few strikers to maintain the picket line. All or nearly all of the men signed authorization cards or applications for membership, and Hamm signed an authorization card later that morning. While at the hall, the men were advised to apply for reinstatement, and Albert J. Johnson, an official of the Union, dispatched by telefax to Western Union a telegram for delivery to the Respondent. In the telegram, Johnson asserted that the Union represented a majority of employees in an appropriate unit and requested a meeting at which to bargain concerning the work stoppage and conditions of employment. At 11:40 a.m., Western Union began to process the telegram by sending it from an outlying office to a downtown office as a step toward delivery to the Respondent. At approximately the same time, the men, accompanied by Johnson and another representative of the Union, went to the site of the picketing where the men discussed the matter of applying for reinstatement. As will appear momentarily, the strikers sought reinstatement at approximately noon, but there is no evidence that the Respondent received the telegram prior to the request for reinstatements or that anyone told the Respondent of the Union's interest. In particular, the two representatives of the Union did not make their presence at the site known to the Respondent Shortly before noon, across the street from the terminal, the strikers decided to terminate the strike and to seek reinstatement. By a show of hands, Hamm was selected to make the request. Hamm then went to the terminal, followed by the men. He talked with Young and Dillon Winship, Jr., who was then the Respondent's vice president. Hamm said, according to Young, "We are ready to return to work unconditionally" and someone else said "that 55 hours was too long for overtime." Young and Winship conferred privately, following which Young told the men that the Respondent's attorney was out of town, that counsel would not return until that evening, and that Young could not tell the men anything at that time. Neither Young nor Winship said anything to the strikers about their having been replaced, and Young testified that he did not know whether a vacancy existed as of the time of the applications for reinstatement. In respect to Young's testimony that he told the men that the Respondent's attorney was out of town, the Respondent's brief recites twice that the member of Wilson, Branch, Barwick & Wilcox who handles legal matters for the Respondent is Wilcox, and Young testified that Wilcox was indeed out of town on April 13 and did not return until about 8:30 p.m. On the other hand, Young testified also that at noon on that day he was advised by counsel not to hire any more replacements. Young did not explain how he had conversed with an attorney who was out of town or whether, in the same conversation, anything had been said concerning the reinstatement of strikers. As will appear, the Respondent contends that as of noon on April 13, when the strike ended and applications for reinstatement were made, it had 174 dock employees, that number being the sum of 75 replacements and 99 nonstrikers, that 174 represented a drop of 41 from the number of dock employees at the time the strike began, and that there was no need to fill any of the 41 jobs as of noon on April 13. On April 14, Wilcox responded to Johnson's telegram, saying, inter alia, in a letter that he questioned the appropriateness of the unit and the Union's majority status, that there were "numerous questions concerning the present status of employees or former employees who [were] no longer working at the terminal," and that the Respondent would not recognize the Union. There is no allegation here that the Respondent refused to bargain collectively. 2 These findings are based upon Hamm's uncontradicted they did not join the strike and that they refrained from crossing testimony the picket line because of fear It is clear from their testimony, 3 Young acknowledged having so spoken to the strikers however, that they did not talk with any striking employee and " Two employees who did not cross the picket line, Wilber that their fear was not based upon any invalid conduct by striking Harris and Ralph Shropshire, testified for the Respondent that employees 516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Within the next 3 days, the Respondent decided that it needed additional dock employees. Letters were mailed, and telephone calls were made, to employees who had not worked during the strike, and such employees were selected by the Respondent on the basis of length of service in certain classifications. The record does not contain any letter, or copy thereof, that was mailed to any employee, but it is clear that on April 17, a Sunday, Hamm received a telephone call from an office employee, a Miss McKee or McGee. She said in substance that he was being offered reinstatement on his regular shift for the next day and that if he did not report for work the Respondent would assume that he no longer wanted to work for it.5 Hamm reported for work and was reinstated. During the period of April 18 through 21, 48 employees who had not worked during the strike were reinstated. Adding 48 and 174 (the latter being the number of dockworkers at noon on April 13, according to the Respondent's contentions), gives a total of 222, 7 more than the 215 who were on the payroll when the strike began.6 Upon the reinstatement of the last of the 48 employees on April 21, the Respondent "had a full complement to handle the freight," according to Young. Thereafter, as vacancies occurred, reinstatements were offered to other employees who had not worked during the strike. In particular, such reinstatements were offered during the period of July 7 through November 1, and Young testified further that to "the best of [his] knowledge" all persons who had not worked during the strike had "been offered an opportunity to return if they could qualify for the job that was open." As recited, the record does not contain an original or copy of any letter offering reinstatement to anyone, nor is there evidence to establish the number of letters and the number of oral offers.7 On the other hand, at an undisclosed time the Respondent decided that reinstated employees would not suffer a loss of seniority or other rights or privileges. Young testified concerning the 48 men who were reinstated on April 18 through 21 that the Respondent "did not feel as though they had been out long enough" to warrant any such loss. The General Counsel, contending that there had been invalid refusals to reinstate strikers on April 13 and questioning whether offers of reinstatement fulfilled the Respondent's alleged obligations, nevertheless does not contend that any reinstated employee suffered any loss of accrued rights or privileges. C. The Respondent's Evidence That Most Strikers Had Been Replaced Before Noon on April 13 and That There Was No Work Then For The Remainder As we have seen, the strike was an economic one, not the result of unfair labor practices. Therefore, the Respondent was free to replace the strikers at any time prior to their unconditional applications for reinstatement, N.L.R.B. v. Mackay Radio & Telegraph Co., 304 U.S. 333, 58 S.Ct. 904 (1938).On the other hand, if there was need for their services at the time of such applications, the 5 Hamm so testified without contradiction. McKee or McGee was not a witness 6 There is a suggestion in a question by Attorney Wilcox to Young that between April 13 and 21 some dock employees quit or were discharged, thereby giving a total less than 222. Young answered, "That is true " The record, however, does not disclose the names of employees who quit or were discharged during that period Moreover, the Respondent's exhibits contain lists of Respondent was not free to refuse or delay reinstatements because the employees had engaged in the strike. The Respondent contends that it replaced 75 strikers prior to the time of the applications for reinstatement, that the replacements coupled with 99 nonstriking dock employees totaled 174, that the total was 41 less than the number of dock employees when the strike began, and that, partly because some freight was being routed around Atlanta, there was no need to reinstate any of the strikers at the time of their applications. These contentions constitute an affirmative defense and the Respondent has the burden of establishing it. New Orleans Roosevelt Corporation, 132 NLRB 248, 250. Additionally, the Respondent must show that the men who replaced the strikers were regarded by themselves and the Respondent as having received their jobs on a permanent basis. Hot Shoppes, Inc., 146 NLRB 802, 804. Of the 75 individuals whom the Respondent characterizes as "permanent replacements hired for Atlanta terminal dock on April 12, and prior to noon on April 13, 1966," 21 were transferees from other operations of the Respondent, and 2, Joe Gaston and D. L. Jones, were hired before the strike began and, therefore , were not hired as replacements. Subtracting 21 and 2 from 75 leaves 52, and the initial question is whether the Respondent proved that none of the 52 men was hired after noon on April 13. The exhibits contain the names of the 52 men and a chart showing their inclusion with the other 23 persons whom the Respondent calls "permanent replacements." Wilder testified for the Respondent that he prepared the exhibits with the aid of a typist and that his preparation was based upon the personnel files of the 75 men. Those files were produced at the hearing for examination by counsel for the General Counsel and the Union. Wilder testified further that in preparing the exhibits he did not examine any record which would show the hour of hire of any man because no such record exists and that, "[as] far as" he knew, a majority of the 75 replacements began work at the Atlanta terminal prior to noon on April 13. Young testified for the Respondent that no one was hired as a replacement after noon on April 13, but he did not examine records and his testimony appears to be based upon his other testimony that, upon advice of counsel at noon on the 13th, he gave an order that no one else be hired. There is no testimony by any supervisory employee that he received such an order from Young, and none of the replacements was a witness to testify to having been hired before noon on April 13. The Respondent possesses timecards for each of the replacements, but the cards were not produced at the hearing. According to the Respondent, the initial card for each replacement was relevant to the hour he commenced work, not to the hour of hire. This contention is not persuasive. Wilder described the scene at the terminal during the strike as "pretty furious," so much so that he did not know what was "going on a lot of the time," and the record is clear that the Respondent took various steps to obtain replacements. A practice that each prospective individuals who, according to the Respondent 's contentions, were employed as of particular dates, but there is no list of all dock employees as of April 21 Dorsey, a witness for the General Counsel, testified that during July he received a registered letter from the Respondent which said that, if he desired to return to work, he should notify the Respondent within 7 days Dorsey accepted reinstatement. GEORGIA HIGHWAY EXPRESS, INC. employee must have a physical examination before commencing work was suspended when the strike began, and the suspension was intended to enable a newly hired person to go to work without delay. Therefore, the initial timecard of each replacement, if it had been produced, would have had substantial probative value on the hour of hire. For instance, the initial cards of all replacements who worked on April 12 and before noon on the 13th would have established their hire prior to that noon. The initial timecards of replacements who began work after that noon, if few in number, would have meant that the Respondent needed few witnesses to establish its defense that all were hired before that noon. Turning to the 21 transferees, one of them, Gary Chandler, was transferred from a job at the Atlanta terminal to another job there, and the remaining 20 appear to have been transferred from other terminals in the Respondent's operations. On May 20, one transferee, Don Arnold, quit. On July 18, approximately 3 months after the strike, 16 of the transferees were transferred back to their original terminals and on August 2 another transferee was returned to his original terminal. Chandler and two other transferees remained in Atlanta. The questions involving the transferees are whether their transfers were arranged prior to noon on April 13 and whether the transfers were intended to be permanent. Wilder was asked to relate the circumstances under which individuals were transferred and he answered that he believed that the transfers had been on a permanent basis. His belief has no probative value, however, because he testified further that he had nothing to do with any of the transfers. Young testified that he asked the Respondent's personnel manager, one Halsworth, to contact out-of-town terminals in an effort to arrange transfers and that "[t]o the best of [Young's] knowledge" nine terminals in Georgia, two in Alabama, and one in Tennessee were contacted. Halsworth was not a witness, however, nor was any of the 21 transferees, and there is no evidence of probative value which will enable me to determine the details surrounding any of the transfers. Young testified further that some of the transferees came from terminals in Albany and Macon but that he did not know whether anyone had been hired in either of those cities to replace a transferee. Indeed, there is no evidence that any transferee was replaced at any terminal . Finally, according to Young, he "would assume" that the Respondent paid the room and board in Atlanta for "around 20 or 22" transferees for a period of time, the length of which he did not know, and that the facts were known to Clint Packard, the Respondent's treasurer. Packard did not testify. The above factual recital dictates 0 One of the Respondent 's exhibits is captioned "Tonnage in Millions" and Wilder testified that certain figures "represent tons in millions." On the other hand, the Respondent's brief says that the figures represent "pounds of freight." 0 Young testified that after April 13 and before April 18 the Respondent sought to determine (1) the effect which the stoke would have upon its business and (2) the number of dock employees it would need This testimony does not persuade me that at noon on April 13 the Respondent's officials believed that there already were enough dock employees at work Moreover, Young impressed me unfavorably at times during his testimony. 10 There is reliable testimony by Hamm for the General Counsel that he was present at the site of the picketing from about 9 15 p.m on April 12 to about 11 a in on the next day, that he observed the entrance used by office employees and dockworkers, and that he did not remember having seen anyone whose face was unfamiliar to him enter the Respondent's 517 the conclusions that the Respondent has not established that (1) a particular number of transfers were arranged prior to noon on April 13 and (2) any definite number of the transfers was made on a permanent basis. We turn now to the Respondent's evidence concerning a decrease in the amount of freight handled at the Atlanta terminal. There is a graph showing tonnage handled in Atlanta during most of 1966 as compared with a corresponding period in 1965, and another graph showing tonnage handled during a portion of 1966 at other terminals as a means of routing freight around Atlanta. There also is evidence that during certain weeks between April 8 and October 28, 1966, the freight handled at the Atlanta terminal varied from a high of approximately 28- 1/4 million pounds or tons for the workweek ending April 8 to a low of approximately 26 million pounds or tons at a later date." I do not believe that this evidence need be discussed further. This is so because, as we have seen, regardless of the tonnage the Respondent's need for additional employees was such that 48 men who had not worked during the strike were reinstated within 8 days after the strike ended. D. Conclusions I conclude that, when applications for reinstatement were made at noon on April 13, there were vacancies for dock employees and that the Respondent failed to fill such vacancies promptly because of its hostility toward employees who had gone on strike and its desire to discipline them for having engaged in concerted activity. The facts that, within 4 days after the end of the strike, the Respondent began offering reinstatement to employees who had not worked during the strike and that the number of such reinstatements reached 48 by April 21 are very persuasive that at noon on April 13 the Respondent's officials knew that it did not have enough dock workers to handle the volume of freight.9 Moreover, the Respondent's evidence does not establish (1) that any particular number of replacements had been hired before that noon, (2) that arrangements had been made by that hour for any particular number of transfers , and (3) that any particular number of transfers were offered and accepted on a permanent basis. 10 It is a reasonable inference that the Respondent's failure to produce the timecards and to call Halsworth and any transferee as witnesses was because the timecards and the testimony would have been inconsistent with the defense. Borg-Warner Controls, 128 NLRB 1035,1044-45.11 The Respondent's hostility toward the strikers is shown by Young's ultimatum to them at premises. Hamm's testimony has weaknesses in that he could not see one entrance to the terminal and all parts of the dock, and it may be unlikely that many persons hired as replacements would have used an entrance which would have necessitated crossing the picket line On the other hand , if the Respondent had brought 75 individuals to the terminal as dock employees , surely some of that large number would have been observed by Hamm 11 In its brief, the Respondent contends that certain assertions by counsel for the General Counsel "should not affect the weight given to the Respondent 's Exhibits because he did not act on the Trial Examiner's repeated offers to have the documents produced. ." During the hearing I told counsel for the General Counsel that, upon his request, I would direct counsel for the Respondent to produce any and all documents upon which the Respondent's graphs and chart had been based . Wilder testified , however, that he had not used timecards in preparing any of the Respondent's exhibits At another point during the hearing, it developed that the 299-352 0-70-34 518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 8:40 p.m. on April 12 that he would give them 5 minutes within which to return to work and that, as to those who did not return then, it had "been nice seeing" them. Young's statement was clearly a threat that employees who continued on strike could not return to work for the Respondent.12 In summary, I conclude that the Respondent, by refusing to reinstate strikers promptly after their applications, interfered with, restrained, and coerced them in the exercise of their section 7 rights, thereby violating Section 8(a)(1). I need not reach the question whether there also were violations of Section 8(a)(3) because any finding of such a violation, or the absence thereof, would not alter substantially the remedy set forth below. I note, however, that the factual recital above shows that the Union's notification to the Respondent of its interest came after the Respondent's refusals to reinstate strikers at noon on April 13 and that I doubt that any reinstatement of a striker was delayed because of such notification. IV. THE REMEDY Having found that the Respondent has engaged in unfair labor practices affecting commerce, I shall recommend that it cease and desist therefrom and that it take affirmative action to effectuate the policies of the Act. Most of the striking employees have been reinstated, but I have found that some reinstatements were delayed invalidly because the men had engaged in concerted activities. I shall recommend that the Respondent make whole each of the reinstated employees for any loss of pay he may have suffered as a result of the discrimination against him, by payment to him of a sum of money equal to that which he normally would have earned from the date of the discrimination to the date of his reinstatement '13 less his net earnings (Crossett Lumber Company, 8 NLRB 440, 497-498) during said period, the payment to be computed on a quarterly basis in the manner established in N.L.R.B. v. Seven-Up Bottling Company of Miami, Inc., 344 U.S. 344 (1953), with interest at 6 percent per annum, Philip Carey Manufacturing Company v. N.L.R.B., 331 F.2d 720 (C.A. 6, 1964). 14 Some employees have not been reinstated, and the record does not disclose whether the offers to them were proper or were similar to the 1 day's notice given to Hamm that he could return to work. See footnote 5 and accompanying text. I shall recommend that Continued. General Counsel had issued a subpoena duces tecum in an unsuccessful effort to examine the timecards. I suggested that we not discuss the subpena because, the hearing having been underway, I would entertain a motion by counsel for any party that I request counsel for another party to produce records. Counsel for the General Counsel and the Union did not move that I request the production of the timecards because it was their position that such production was an essential element of the defense. 12 Young's statement was established during cross -examination of him by counsel for the Union. The statement was not alleged as a violation of Section 8(a)(1) and I infer that it was not uncovered during the General Counsel 's investigation of the case . I shall not consider it in formulating the Recommended Order below. I note , however, that "[ t]o threaten the striking employees with discharge if they engaged in or refused to abandon lawful" concerted activity is a violation of Section 8(a)(1), Cusano dlbla American Shuffleboard Co., v.,N. L.R.B., 190 F .2d 898, 902, 28 LRRM 2489 , 2491 (C.A. 3,1951). 11 Harris and Shropshire, named in In . 4, are not to be included the Respondent offer employees who have not been reinstated immediate and full reinstatement to their former or substantially equivalent positions (Chase National Bank of the City of New York, 65 NLRB 827), without prejudice to their seniority or other rights or privileges , and that the Respondent make each of them whole in the manner provided above, the backpay period to be from the date of discrimination to the date of a proper offer of reinstatement. 15 I shall recommend additionally that the Respondent preserve and make available to the Board or its agents , upon request , for examination and copying, all payroll records , social security payment records, timecards , personnel records and reports, and all other records necessary to analyze the amounts of backpay and the rights to reinstatement under the terms of these recommendations. In view of the nature of the Respondent's invalid conduct and its underlying purpose and tendency, I find that the unfair labor practices found are persuasively related to the other unfair labor practices proscribed and that danger of their commission in the future is to be anticipated from the course of the Respondent 's conduct in the past. Therefore, in order to make effective the interdependent guarantees of Section 7 of the Act, I shall recommend further that the Respondent cease and desist from infringing in any manner upon the rights guaranteed in said section . N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532 (C.A. 4, 1941). Upon the basis of the above findings of fact and upon the entire record in the case , I make the following: CONCLUSIONS OF LAW 1. The Union is a labor organization within the meaning of Section 2(5) of the Act. 2. By interfering with , restraining, and coercing employees in the exercise of their rights under the Act, the Respondent has engaged in and is engaging in unfair labor practices affecting commerce within the meaning of Sections 8(a)(1) and 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the entire record in the case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended. I hereby recommend that the Respondent, in this recommendation. " Backpay for some employees will commence as of noon on April 13, 1966 . Backpay for others may commence as of later dates. Questions concerning who is entitled to backpay, and when it shall commence and be tolled in any instance , are matters for determination in the compliance stages of this case. 18 This provision is not intended to require the Respondent to offer reinstatement to anyone to whom it already has made a proper offer. During the compliance stages, the Respondent may show the details of offers made by it . Questions concerning backpay for anyone who has not been reinstated are to be determined during those stages . Additionally, if any employee to whom an offer of reinstatement is to be made should be serving in the Armed Forces of the United States at the time of the Respondent 's compliance with the Recommended Order below, the Respondent shall notify him promptly of his right to full reinstatement upon application after discharge from the Armed Forces, in accordance with the Selective Service ' Act and the Universal Military Training and Service Act, as amended. Backpay to any such employee shall be tolled for the period of his military service. GEORGIA HIGHWAY EXPRESS, INC. Georgia Highway Express, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Delaying reinstatement of, or refusing reinstatement to, employees because they engage in a lawful strike, or otherwise discriminating against them because of their concerted activities for mutual aid or protection. (b) In any other manner interfering with, restraining, or coercing employees in the exercise of the 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 unreinstated employees immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights or privileges, and make unreinstated and reinstated employees whole, in the manner set forth in "The Remedy" section of this Decision. (b)' Preserve and make available to the Board or its agents all payroll and other records, as set forth in "The Remedy" section. (c) Post at its terminal in Atlanta, Georgia, copies of the attached notice marked "Appendix."is Copies of said notice, to be furnished by the Regional Director for Region 10, after being duly signed by the Respondent's representative, 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 notices to employees are customarily posted.17 Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify said Regional Director, in writing, within 20 days from the receipt of this Decision what steps the Respondent has taken to comply herewith.[" IT IS FURTHER RECOMMENDED that the complaint be dismissed insofar as it alleges that the Respondent violated Section 8(a)(3) of the Act. 16 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." it When the Regional Director prepares the notices, if offers of reinstatement are to be made to employees then serving in the Armed Forces, the Regional Director shall insert in the notices a 519 provision whereby the Respondent notifies all employees that it will comply with its obligation set forth in the next to last sentence in fn 15 18 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read- "Notify the Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith " APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT delay reinstatement or refuse to reinstate emloyees because they engage in a lawful strike. WE WILL NOT otherwise discriminate against employees because of their concerted activities for mutual aid or protection. WE WILL NOT violate any of the rights which you have under the National Labor Relations Act to engage in union or concerted activities or not to engage in such activities. WE WILL, to the extent required by the National Labor Relations Board, reinstate employees who went on strike on April 12, 1966, and pay employees backpay to cover their losses because we did not reinstate them promptly. GEORGIA HIGHWAY EXPRESS, 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, 528 Peachtree- Seventh Building, 50 Seventh Street, N.E., Atlanta, Georgia 30323, Telephone 526-5760.