Clark Bros. Transfer, Inc.

460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Clark Bros. Transfer, Inc., and General Drivers and Helpers Union Local No. 554, affiliated with the International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America. Case 17-CA-4227 December 24, 1970 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND BROWN On August 13, 1970, Trial Examiner Melvin Pollack 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 also found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended that such allegations be dismissed. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision, and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this 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 brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommend- ed Order of the Trial Examiner and hereby orders that the Respondent, Clark Bros. Transfer, Inc., Omaha, Nebraska, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order.2 IT IS FURTHER ORDERED that those portions of the complaint as to which no violations have been found are hereby dismissed. i The Respondent's exceptions, in large part, are directed to the credibility findings made by the Trial Examiner it is the Board's established policy not to overrule a Trial Examiner's resolutions as to credibility unless, as is not the case here, a clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, Inc, 91 NLRB 544, enfd 188 F 2d 362 (C A 3) Nor do we find merit in the Respondent's contention that because the Trial Examiner credited the General Counsel's witnesses and discredited the Respondent's witnesses, his credibility resolutions are erroneous or attended by bias or prejudice N L R B v Pittsburgh Steamship Co, 337 U S 656 Accordingly, we find no basis for disturbing the Trial Examiner 's credibility findings in this case 2 In footnote 25 of the Trial Examiner 's Decision substitute °20° for "10" days TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE MELVIN POLLACK, Trial Examiner: This case was heard on June 9 and 10, 1970, at Omaha, Nebraska, on a charge filed on March 3, 1970, and a complaint issued on April 29, 1970. The complaint, as amended at the hearing, alleges that Respondent Clark Bros. Transfer, Inc., violated Section 8(a)(1), (3), and (4) of the National Labor Relations Act, as amended, by surveillance or creating the impression of surveillance of union activities, by threats to close its Omaha terminal, and by discharging Fred Van Valkenberg because of his union activity and because he gave testimony under the Act. Upon consideration of the entire record in the case,' briefs filed by the parties, and my observation of the demeanor of the witnesses as they testified, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent, a Nebraska corporation, is engaged in the transportation of freight at terminals in Norfolk , Lincoln, and Omaha, Nebraska, and in Sioux City, Iowa. Respon- dent annually derives over $50,000 in gross revenues from the interstate aspect of its operations and over $50,000 in gross revenues for services to enterprises over which the Board would assert jurisdiction . I find that Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED General Drivers and Helpers Union Local 554, affiliated with the International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Sequence of Events David Farris, the manager of Respondent's Omaha terminal, hired Fred Van Valkenberg as a driver on June 16, 1969. During the summer, Van Valkenberg had an "argument" with Ray Bargenquast, the dock foreman for Ideal Truck Lines. Bargenquast told Farris not to send Van Valkenberg to his dock again. Farris informed Van Valkenberg that Bargenquast did not want him on his dock again and assigned him to another route. The Omaha drivers and dockmen discussed union i The General Counsel's motion to correct the record is granted 187 NLRB No. 77 CLARK BROS. TRANSFER, INC representation in November 1969 but decided to wait until after Christmas before they "started anything." In early January 1970,2 the employees met with Farris and told him they wanted "time and a half." Farris said they might have to give up another benefit to get time and a half. The employees also expressed their "personal feelings" about union representation. About January 6, Van Valkenberg obtained authoriza- tion cards from a union organizer. Van Valkenberg signed a card and handed cards out to other employees to sign. Van Valkenberg turned the signed cards over to the Union, which filed a petition for a Board election on January 12. A few days later, Respondent called the employees to a meeting. Attorney Rasmussen asked why the employees thought they needed "a third party for a speaker" and said Respondent might be able to work out something among the employees without bringing in a third party. He spoke about Respondent's profit-sharing plan and compared a "union standard retirement plan" with Respondent's retirement plan.3 About January 16, Manager Farris remarked to Van Valkenberg, "Better men have tried to put the union in than you are." About this time, Farris told driver Clayton Marshall, that he "didn't know whether [Respondent] would close the front doors or not "if the Union got m."4 Farris subsequently made a similar statement to several drivers, including Marshall. Van Valkenberg made arrangements for two meetings at the Union's hall during January. The second meeting was set after work at 7:30 p.m. Van Valkenberg, Clayton Marshall, Charles McKeag, and Howard Hansford were working late on the dock the day of the meeting. Manager Farris came to the dock about 7 p.m. and helped the employees load trailers. The work was finished about 7.20 p.m. and Farris remarked, looking directly at Van Valkenberg, "You made it in time for your union meeting and I hope you have fun." Van Valkenberg said he "hoped, too." The next morning, Farris asked Van Valkenberg if he "got anything accomplished" and Van Valkenberg replied, "I hope so." On January 28, the Board scheduled a hearing for February I t on the Union's representation petition. Pursuant to a subpena issued at the Union's request, Van Valkenberg testified at the hearing.5 He gave testimony to the effect that the drivers and dockmen at the Omaha terminal work substantially in the Omaha area and have little to do with employees at Respondent's other terminals. On February 26, Van Valkenberg came to the terminal 2 All dates hereinafter are in 1970 unless otherwise stated 3 Rasmussen did not mention the Union during this meeting 4 Farris had received a form from a "loan company" in connection with Marshall's contemplated purchase of a house 5 Van Valkenberg had volunteered at a union meeting to testify at the representation hearing 6 The drivers and dockmen report for work at 8, 9, or 9 30 a in 7 Van Valkenberg testified that the list had six stops, the last one being Ideal Truck Lines, and that Nielson told him to call her from Sterum Freight, the next to the last stop on the list Nielson testified that Sterum Freight was the last stop on Van Valkenberg's list and she told him to call her from that stop for additional instructions 8 Nielson denied making this remark to Van Valkenberg She testified that Van Valkenberg voiced no objection about going to Ideal Truck Lines 461 about 9 a.m. and had coffee with Hansford before clocking in for the 9:30 a.m. shifts Manager Farris told Van Valkenberg, who regularly drove a pickup truck, that he had to drive a trailer that day and should get a list of stops from dispatcher Clara Nielson. Nielson gave Van Valken- berg a list of stops on the "bottoms run" and told him to call her when he was finished at Sterum Freight.? As Van Valkenberg was getting ready to leave, driver Harry Ellis, who regularly had the "bottoms run," came in from an early load he had handled that morning. Farris at this time told Hansford to make a pickup with his trailer. Van Valkenberg called Nielson from Sterum Freight and, when Nielson instructed him to go to Ideal Truck Lines for a pickup, mentioned his argument the previous summer with Dock Foreman Bargenquast. Nielson said "it should have blown over by now."8 Van Valkenberg drove to Ideal's dock. As he walked over to Bargenquast's desk on the dock to pick up bills of lading, Bargenquast said, "Put the bills back and get off my dock I told you a long time ago I didn't want you on this dock and I meant it." Bargenquast called Farris and said, while Van Valkenberg listened, if Van Valkenberg "was the only man to send down there, don't bother to send anybody."9 He told Farris to come down or get someone else to pick up the freight or he would give the freight away. Fares said he would be right down. Bargenquast walked away and Van Valkenberg called Farris, who told him to wait in the truck until he got there. Farris came down, got into the truck, and asked Van Valkenberg what had happened. Van Valkenberg said he "just walked on the dock and [Bargenquast] told [him] to get off. I didn't say a word." Farris said he would talk to Bargenquast and left the truck. Farris returned in 2 or 3 minutes and, according to Van Valkenberg, said, "Are you trying to make me fire you?" Van Valkenberg said, "No," and Farris said, "What are you trying to do, then?" Van Valkenberg answered "Nothing." Farris said, "You are leaving no alternative for me" and suggested that it would be better for Van Valkenberg's record if he quit. Van Valkenberg said he would not quit. Farris said, "You leave me no alternative then, I am going to have to dismiss you. You can finish the rest of the day out or bring the truck in." Van Valkenberg said he would bring the truck in. He asked Farris the reason for his discharge but Farris did not answer him. Van Valkenberg further testified that Farris told him at the terminal that he was sorry he had to discharge him and would try to get him a week's severance pay, and that he could give Van Valkenberg "a good recommendation" if he quit but not "for being fired." and that she had no knowledge of any "disagreement" between Bargenquast and Van Valkenberg Nielson is Respondent's sole dispatcher and has many conversations with drivers during the course of the day I consider that Van Valkenberg had the better recollection and credit his version of the conversation 9 Farris testified that Bargenquast said Van Valkenberg had "mouthed off" to him Bargenquast did not recall that Van Valkenberg said anything at all to him that day and said he did not want to give Van Valkenberg any freight because of Van Valkenberg's "attitude" during the summer of 1969 As Bargenquast's testimony corroborates Van Valkenberg's testimony that he said nothing to Bargenquast, I find that Bargenquast did not complain to Farris over the telephone that Van Valkenberg had "mouthed off" to him 462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Van Valkenberg came to the terminal the next day and picked up his paycheck and a week's severance pay. According to Van Valkenberg, before he left Farris said, "I think I know where they are looking for some help" and gave him the name of a company. Farns testified that he reminded Van Valkenberg at the Ideal premises "of all the times [he] had jumped on him and chewed him out about mouthing off to customers, about tardiness and absenteeism, and all the trouble he had caused," that the Company could not put up with losing business because of customer complaints against Van Valkenberg,10 and that he had no choice but to let him go. He gave Van Valkenberg the option to quit or be fired and said Van Valkenberg would get a week's severance pay under company policy. Farris denied telling Van Valken- berg that he would give him a recommendation to another employer if he quit. He said he could not recall telling Van Valkenberg he would help him find a new job but that he did ask Van Valkenberg "if he could find a job" and gave him the name of "a little delivery service" that he heard had been looking for drivers. I do not consider Farris a reliable witness (sec. B, 3, below) and credit Van Valkenberg's version of the discharge. B. Analysis and Conclusions 1. Surveillance Manager Farris told Van Valkenberg a few days after the Union filed a petition for a Board election on January 12 that "better men" than Van Valkenberg had tried to get the Union in. Later that month, looking directly at Van Valkenberg, he remarked, in the presence of several employees who had finished work about 7:20 p.m., "You made it in time for your union meeting and I hope you have fun." A union meeting was actually scheduled for 7:30 that evening. The next morning, Farris asked Van Valkenberg if he "got anything accomplished." Farris testified that some drivers volunteered information to him about the union activities of Van Valkenberg and other drivers. With respect to his remark about the employees making it in time for their union meeting, he said that drivers told him about the union meeting to be held that night and that he arranged for the men on the earlier shifts to work late so that the men on the last shift could make it in time for the meeting. He said he was told the next morning by a driver that the union officials were an hour or two late for the meeting, and he asked Van Valkenberg how they made out at the meeting to give him "a little dig." Farris' remarks on the foregoing occasions indicated that he had information regarding the union activity of Van Valkenberg and the other employees. Farris' testimony shows that his knowledge of union activity came from some drivers and not from union activity carried on openly at the terminal. Respondent points out that the drivers expressed their "personal feelings" about union representation at a 10 Farris said that when he teed to talk to Bargenquast on the dock, he saw "all the freight we would normally get" being loaded on a competitor's truck ii According to Van Valkenberg, Farris told him to control his temper and not to "blow up just over an argument " 12 Hansford testified that he heard uncomplimentary remarks about meeting attended by Farns early in January. It does not follow, however, that the drivers would be indifferent to Farris' subsequent checking on their union activities. I find that Farris' remarks created an impression of surveillance of union activity, in violation of Section 8(a)(1) of the Act. Cf. International Typographical Union, 183 NLRB No. 60. It seems that whatever information Farris received concern- ing union activity was volunteered to him. I therefore find no merit in the allegation of the complaint that Respondent engaged in surveillance of union activity. 2. Threats I have found that Farris told driver Clayton Marshall in mid-January that he did not know whether or not Respondent would close the Omaha terminal if the Union got in, and that he subsequently made a similar statement to several drivers, including Marshall. As Farris' statements implied that the terminal might be closed if the Union successfully organized the employees, it was violative of Section 8(a)(1) of the Act. 3. The discharge of Van Valkenberg Van Valkenberg obtained authorization cards from the Union and solicited other employees to sign them; he arranged meetings at the union hall and notified the employees of those meetings; and he gave testimony at a Board hearing favorable to the Union's position that the drivers at the Omaha terminal constituted an appropriate bargaining unit. Terminal Manager Farris said he knew Van Valkenberg was a union supporter but insisted that he discharged Van Valkenberg on February 26 solely because of Van Valkenberg's shortcomings as an employee. His explana- tion for the discharge may be summarized as follows: After Bargenquast in the summer or fall of 1970 told Farris not to send Van Valkenberg to the Ideal Truck Lines dock again, Farris assigned Van Valkenberg to another run "to eliminate the problem." He told Van Valkenberg he was reassigning him "because of an accumulation of com- plaints" and "to just try and keep his mouth shut." ll Howard Hansford reported to Farris that several customers told him "they were very thankful he was on the run instead of Fred because they disliked him very much" 12 Dock Foreman Ed Timm told Farris "many times" that most of the other drivers disliked Van Valkenberg and that Van Valkenberg "caused many troubles on the dock" when Farris was in his office. Timm came into the office one night "very upset" and said that if Farris did not get rid of Van Valkenberg "someone on the dock was going to kill him." He asked Farris why he did not fire Van Valkenberg. Farris replied that "the NLRB would undoubtedly raise an unfair labor practice suit" because Van Valkenberg was trying to organize the terminal.13 In December 1969, Van Valkenberg took over for a week the route of Hubert Moore, who was on vacation. After Moore returned from Van Valkenberg from customers but that he did not pass these remarks on to management 13 Timm testified that he told Farns in August 1969 that Van Valkenberg was "giving everybody a bad time and using foul and abusive language," and that, before leaving Respondent 's employ on December 1, 1969, he told Farris to do something about Van Valkenberg "because CLARK BROS . TRANSFER, INC. his vacation, he told Farris he had received complaints from his customers, including Interstate Freight Lmes,14 about Van Valkenberg "mouthing off to them. " 15 Farris, who had spoken to Van Valkenberg several times about his "conduct and language," told him he had more customer complaints and "this was his last chance. I had enough of it." 16 Farris allegedly had also repnmanded Van Valken- berg "several times" for being tardy and absent." 17 Accordingly, when Bargenquast complained on February 26 that Van Valkenberg had "mouthed off" to him and gave a competitor freight assigned to Respondent, he reminded Van Valkenberg "of all the times I had jumped on him and chewed him out about mouthing off to customers, about tardiness, and absenteeism, and all the trouble he had caused," and told him he had no choice but to let him go "because I wouldn't have any discipline with the men at all." 18 Farris conceded that Van Valkenberg "at times" was more productive than some of the other employees and Dock Foreman Timm described Van Valkenberg as a good worker except for giving "smart answers" when told to do something. It thus appears that Van Valkenberg was a competent man but that he was inclined to argue over instructions and, in the words of Timm, used "foul and abusive language," and gave "everybody a bad time." Timm so advised Farns early in Van Valkenberg's employment, and, in the summer or fall of 1969, Bargenquast of Ideal Truck Lines became so incensed at Van Valkenberg that he told Farris not to send Van Valkenberg to his dock again. Before Timm quit Respon- dent's employ on December 1, 1969, he advised Farris to do something about Van Valkenberg because one of the other employees might "kill" him. Dock Supervisor Morford of Interstate Motor Freight complained to Farris about Van Valkenberg causing "a disturbance on his dock."19 I find from these facts that Farris was aware that Van Valkenberg antagonized both his fellow employees and the employees of Respondent's customers. While Farris would have been justified in discharging Van Valkenberg for this reason, it is established law that "a justifiable ground for dismissal of an employee is no defense to an unfair labor practice charge if such ground was a pretext and not the moving cause." N. L. R. B. v. South Rambler Company, 324 F.2d 447, 449 somebody was liable to kill him" (Timm explained. "Some of the guys were very unhappy with the way he was conducting himself and him always having something to say to everybody regardless of what was said to him and generally just riding the guys ") Timm did not corroborate Farris' testimony that he asked Farns in November 1969 why Farns did not discharge Van Valkenberg Rather, he testified that he did not report to Farris a scuffle between Van Valkenberg and driver Charles McKeag caused by Van Valkenberg giving McKeag "a little more static or lip that (McKeag) cared for" because he was "not trying to get anybody out of a fob " Timm left Respondent's employ before organizing activity began at the terminal In these circumstances, I discredit Farris' testimony that he told Timm he was afraid of an NLRB proceeding against him if he discharged Van Valkenberg 14 Interstate's dock supervisor, Morford, testified that he twice complained to Farris about Van Valkenberg causing a disturbance on his dock "because he wouldn't follow the instructions of the interline checker " 15 Moore did not testify at the hearing 38 Van Valkenberg testified that, apart from the Bargenquast episode in July, Farris never said anything to him about his "attitude or anything " 17 Farris testified that, according to Respondent's records, Van Valkenberg was late for work 34 times and was absent 15 days in a 6- month period Dock Foreman Timm testified that he knew Van 463 (C.A. 8). I find for the reasons set forth below that Farris discharged Van Valkenberg on February 26, 1970, not for his shortcomings as an employee, but for his union activity. a. Respondent preferred to deal with its employees directly rather than through a union. After the Union filed a petition for a Board election, Respondent called a meeting of the employees and, through its attorney, deprecated the need for "a third party" to represent the employees. Farns told Clayton Marshall and other drivers that Respondent might close the front doors "if the Union got in." b. Respondent knew Van Valkenberg was the leader of the union movement. Farris told Van Valkenberg that "better men . . . than you are" had tried to organize the terminal, and Van Valkenberg was the only employee called by the Union to testify at the hearing on its representation petition. c. Two weeks after he testified at the representation hearing, although Hansford was also awaiting assignment, Van Valkenberg was sent to Ideal Freight Lines for the first time since Dock Foreman Bargenquast told Fams not to send Van Valkenberg to his dock.20 Van Valkenberg called his problem with Bargenquast to dispatcher Nielson's attention, but she sent him on to Ideal, saying, "It should have blown over by now." d. I do not credit Farris' testimony that he told Van Valkenberg that he was discharging him for disregarding reprimands about "mouthing off" to customers, tardiness and absenteeism, and causing trouble. Van Valkenberg did nothing to antagonize Bargenquast on February 26, and Farris had no reason to believe otherwise. I have found above, in accordance with the testimony of Bargenquast and Van Valkenberg and contrary to Farris' testimony, that Bargenquast did not tell Fams over the telephone that Van Valkenberg had "mouthed off" to him. Farris himself testified that he did not get to speak to Bargenquast after Van Valkenberg told him that he had simply walked on the Ideal dock and had not said a word when Bargenquast told him to get off the dock. Farris also testified that he received no customer complaints against Van Valkenberg for almost 2 months before the discharge,21 and the record shows no reports to Farns of difficulties between Van Valkenberg and his fellow employees since Dock Foreman Timm told Valkenberg was "tardy quite a few times and absent" but affirmed on cross-examination that other employees were in the "same position" as Van Valkenberg Van Valkenberg denied that Fams ever spoke to him about being absent or tardy. is Van Valkenberg testified that he asked Farris why he was being discharged and Farns refused to answer him. 19 Morford placed his complaints at the beginning and end of January 1970 Farns testified, however, that he received no customer complaints against Van Valkenberg after late December 1%9 or early January 1970 1 find that Morford last complained to Fams about Van Valkenberg in early January 1970 20 Van Valkenberg testified in effect that this was his first trip to ideal since his argument with Bargenquast. Fams testified that he did not know whether Van Valkenberg made any trips to Ideal between the argument and February 26 21 1 regard Farns' testimony on customer complaints against Van Valkenberg as quite exaggerated Van Valkenberg had his "argument" with Bargenquast in the summer or early fall of 1%9 . The record shows no other direct customer complaint to Fams except months later from Morford at Interstate According to Fams, drivers Hansford and Moore advised him of customer complaints against Van Valkenberg's conduct Hansford denied passing on such complaints to Fams and Respondent did (Continued) DECISIONS OF NATIONAL LABOR RELATIONS BOARD Faros in November 1969 that he should do something about Van Valkenberg's conduct. Van Valkenberg had a poor punctuality and attendance record but, according to Dock Foreman Timm, this was not unusual among Respondent's drivers, and Respondent did not put into evidence the punctuality and attendance records of the other drivers. Van Valkenberg, unlike Farris, impressed me as a witness who tried to be accurate in his recollection of events. I therefore credit his testimony that Farris after the first Bargenquast episode said nothing further to him about his "attitude or anything," 22 that Farris refused to tell him why he was being discharged, and that Farris offered to give him "a good recommendation" if he quit. For the foregoing reasons, I find that the reasons advanced by Respondent for Van Valkenberg's discharge are pretexts and that it discharged him in order to discourage support of the Union, in violation of Section 8(a)(3) and (1) of the Act.23 CONCLUSIONS OF LAW 1. Respondent violated Section 8(a)(1) of the Act by creating the impression of surveillance of union activities and by threats to close the Omaha terminal if the Union succeeded in organizing it. 2. Respondent violated Section 8(a)(3) and (1) of the Act by discharging Van Valkenberg to discourage support of the Union. 3. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent engaged in certain unfair labor practices, I will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It has been found that Respondent discharged Fred Van Valkenberg on February 26, 1970, in violation of Section 8(a)(3) and (1) of the Act. It will therefore be recommended that the Respondent offer him immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings suffered by reason of the discrimination against him by payment of a sum of money equal to that which he normally would have earned, absent the discrimination, from the date of the discrimination to the date of the offer of reinstatement, less net earnings during such period, with backpay computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289. Backpay shall carry interest at the rate of 6 percent per annum as set forth in Isis Plumbing & Heating Co., 138 NLRB 716. Further it will be recommended that Respondent preserve and make available to the Board, upon request, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary and useful to determine the amounts of backpay due and the rights of reinstatement under the terms of this recommendation. RECOMMENDED ORDER Upon the foregoing findings of fact and conclusions of law, and upon the entire record in the case, I recommend that: Clarks Brothers Transfer, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in the Union, or in any other labor organization, by discharging employees or in any other manner discriminating against them in regard to hire or tenure of employment or any term or condition of employment. (b) Threatening employees with discharge or other economic reprisals because of their union activities; creating the impression of surveillance of union activities; or in any other manner interfering with, restraining, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Offer Fred Van Valkenberg immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings, iri the manner set forth in "the Remedy" section of the Trial Examiner's Decision. (b) Notify the above-named employee if presently serving in the Armed Forces of the United States of his 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 all payroll and other records, as set forth in the "Remedy" section of the Trial Examiner's Decision. (d) Post at its terminal in Omaha, Nebraska, copies of the attached notice marked "Appendix." 24 Copies of said notice, on forms provided by the Regional Director for not call upon Moore to testify There is no evidence that Van Valkenberg caused Respondent any loss of business except when Bargenquast refused to let him pick up freight on February 26, an action fairly attributable to Respondent's dispatching Van Valkenberg to the Ideal dock contrary to Bargenquast's instructions. 22 Contrary to Respondent, I find nothing "incredible" in Van Valkenberg's denial that Farris ever warned him about his behavior after the first Bargenquast episode. I have noted above that Farris exaggerated customer complaints against Van Valkenberg and, so far as the record shows, Farris did nothing about Timm's reports that the other drivers resented Van Valkenberg's "riding" them 23 As it would not materially change the recommended order, I find it unnecessary to determine whether the discharge was also violative of Sec 8(a)(4) of the Act 24 In the event no exceptions are filed as provided by Sec 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations, and Recommended Order herein shall, as provided by Sec 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " CLARK BROS . TRANSFER, INC. Region 17, shall, after being duly signed by the Respon- dent, be posted immediately upon receipt thereof, in conspicuous places, and be maintained for 60 consecutive days. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 17, in writing, within 20 days from the date of this Decision, what steps Respondent has taken to comply herewith.25 15 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 17, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith "DAIRY EMPLOYEES AND APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial at which all sides had the chance to give evidence, it has been decided that we, Clark Bros, Transfer Inc., have violated the National Labor Relations Act, and we have been ordered to post this Notice. The National Labor Relations Act gives you, as employees, certain rights, including the right to self- organization; to form, join, or help unions; and to bargain collectively through a representative of your own choosing. Accordingly, we give you these assurances: WE WILL NOT threaten to close the terminal, lead you to believe that your union activities are being watched, or do anything else that interferes with any of your rights listed above. 465 WE WILL NOT fine or take any reprisal against any of you because you have joined or supported, or will support General Drivers and Helpers Union Local No. 554, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other union. WE WILL offer to give Fred Van Valkenberg his job back, with full seniority and all other rights and privileges, since he was found to have been discharged because he supported the organizational campaign of the above-named Union. WE WILL also make up all pay Fred Van Valkenberg lost, with 6 percent interest. All of you are free to become, remain, or refrain from becoming or remaining members of the above-named Union or any other labor organization. Dated By CLARK BROS . TRANSFER INC. (Employer) (Representative) (Title) This is an official notice and must not be defaced by anyone. 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. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, 610 Federal Building, 601 East 12th Street, Kansas City, Missouri 64106, Telephone 816-374-5181.