Gifford-Hill & Co., Inc.

GIFFORD-HILL & CO. INC. Gifford-Hill & Co., Inc., and General Teamsters Local No. 528 and Laborers' International Union of North America, Local No. 438. Case 10-CA-8010 February 3, 1971 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On June 25, 1970, Trial Examiner Stanley N. Ohl- baum issued his Decision in the above-entitled mat- ter, finding that Respondent had engaged in and was engaging in certain unfair labor practices and recom- mending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. He further found that Re- spondent had not engaged in certain other unfair la- bor practices alleged in the complaint and recom- mended that such allegations be dismissed. Thereaft- er, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief, the Gen- eral Counsel filed cross-exceptions and a supporting brief, and the General Counsel filed an answer to a motion contained in Respondent's brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional 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 preju- dicial 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, as hereinafter modified. 1. The record establishes that after Respondent's truckdrivers walked off the job on September 9, 1969, to support their demand for increased wages, employ- ee Middlebrook was approached by Sales Manager Jeffreys, who asked, "Why did you buck against the company?" When Middlebrook replied that he had just gone along with the crowd, Jeffreys stated, "You know how the union is. Trying to get a union in here is just like out at Whitley. They had a union and look what happened to them. They bought the union out, and Whitley's got money, but Gifford-Hill has got more money than they've got, and they could buy them out." The Trial Examiner, taking note of the "easy relationship" between Middlebrook and Jef- freys established by the record, concluded that this conversation "partakes of the character of an offhand observation or commentary not rising to the level of a threat of the futility of collective bargaining." In our 337 view, Jeffreys' remarks were clearly coercive. A state- ment by a management official that the employer might well attempt to thwart the employees' desire for collective representation by bribing union officials into impassivity seems to us to be a most flagrant form of coercion. The cordial relationship between Jeffreys and Middlebrook would, if anything, have only in- vested Jeffreys' remarks with a greater degree of plau- sibility. We find Jeffreys' threat to be violative of Section 8(a)(1). 2. As noted, on September 9, after requesting and being refused a pay raise, Respondent's truckdrivers went on strike. On the same day, Respondent sent telegrams to the strikers, serving notice that if they did not report to work on September 10, the Company would begin hiring replacements. The drivers re- turned to work on September 10. After work, General Manager Hooper held a meeting with the employees, which he opened by stating, "The company wouldn't tolerate with this nonsense, and if it was necessary, the company would replace every man with someone else." The Trial Examiner commented about this remark: No illegality is complained of regarding Respondent's actions or words of September 10. ... It may be remarked in passing, however, that Hooper's statements indicating that the Compa- ny did not desire a repetition of the walkout of the previous day, but would if necessary hire re- placements, were in effect what it had previously stated to be its lawful intention. In his exceptions, the General Counsel notes that a remark similar to one described above is alleged in the complaint to have occurred "on or about September 4, 1969" and is set out in some detail in the General Counsel's response to Respondent's pretrial request for a bill of particulars. In view of these facts, we believe it fair to say that the question of the unlawful- ness of this statement was comprehended by the com- plaint. We further believe that Hooper's statement constitutes a threat, in violation of Section 8(a)(1). We agree with the General Counsel's argument that "it is one thing for a company to inform employees that economic strikers are subject to replacement and quite another thing to tell them that [the Company] will not tolerate protected concerted activity and then threaten to replace every man in the plant with some- one else." Collective activity is not "nonsense"; em- ployers, by law, are obliged to "tolerate" it; and the right to replace strikers may not be used as a general and unqualified threat to frustrate it. Because we find that Respondent's stated refusal to "tolerate" the "nonsense" of collective action inevitably colored the unspecific reference to the possibility of replacement of all the employees, we conclude that Respondent thereby violated Section 8(a)(1). 188 NLRB No. 45 338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. Among the issues tried at the hearing was the question of whether Respondent had, in violation of Section 8(aX3), discriminatorily discharged or refused to reinstate employee Richard Clark. Subsequent to the hearing, Respondent moved the Trial Examiner to reopen the record, based upon a newspaper clipping referring to the arrest of Richard Clark on various charges. In his Decision, the Trial Examiner pointed out that only convictions, and not simply arrests, could affect his determination as to Clark's credibili- ty. He also stated, "Furthermore, the issues of credi- bility involved in my conclusion that Clark was denied reinstatement on October 20 for discriminato- ry reasons are in relevant aspect of such relatively minor nature that they would not affect that conclu- sion even if I were to conclude Clark to be defective in moral character." With its brief to the Board, Respondent has at- tached copies of documents purporting to show that Clark has, since the hearing in this case, been convict- ed of five armed robberies for which he is now serving 15 years in prison. In its brief, Respondent argues both that any backpay and reinstatement rights of Clark should be terminated because of the conviction and that the case should be remanded to the Trial Examiner for a further credibility determination, tak- ing cognizance of the convictions. The General Coun- sel agrees with the first contention. We also agree that Clark need not be offered reinstatement and that his backpay should end as of the time he became una- vailable for employment as a result of his arrest, and our Order so provides.Keco Industries, Inc., 121 NLRB 1213. However, we further believe that it is unneces- sary to remand the case to the Trial Examiner for further credibility resolution in the particular circum- stances of this case. We note that Clark's testimony about being called a "trouble maker" on the day of his termination was fully confirmed by employee Middlebrook's credited testimony, which the Trial Examiner found to be "highly impressive"; and that Clark's credibility is irrelevant to the Trial Examiner's analysis that Respondent would logically have reem- ployed Clark on October 20 when it needed a driver badly, had it not wished to keep him unemployed for other unlawful reasons. Since it appears that, given all the evidence and findings by the Trial Examiner, Clark's testimony is not crucial to the case, we find it unnecessary to remand this matter to the Trial Exam- iner. THE REMEDY As discussed, we modify the remedy recommended by the Trial Examiner to provide that Respondent need not offer reinstatement to Richard Clark and that Respondent only be liable for backpay to Rich- ard Clark from October 20, 1969, until the date upon which he became unavailable for further employment with Respondent by virtue of his arrest upon the crim- inal charges alluded to above. In all other respects, with the exceptions noted in our Order, we adopt the Trial Examiner's recommended remedy and order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the Recommended Order of the Trial Examiner and hereby orders that the Respondent, Gifford-Hill & Co., Inc., Atlanta, Georgia, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as herein modified: 1. Add the following as paragraph 1, e, and reletter the subsequent paragraphs accordingly: "e. Threatening any employee that it might attempt to render useless the selection of a bargaining repre- sentative by bribing the officials of such a representa- tive." 2. Delete paragraph 2, a, and substitute the follow- ing: "a. Make Richard Clark whole for any loss of pay and emoluments, in the manner set forth in The Rem- edy section of the Board's Decision." 3. In footnote 27 of the Trial Examiner's Decision,- substitute "20" for "10" days. 4. Substitute the attached Appendix for the Trial Examiner's Appendix. CHAIRMAN MILLER, concurring in part and dissenting in part: I do not find sufficient basis in the record for re- versing the Trial Examiner as to the two 8(axl) allega- tions which he dismissed and which my colleagues find violative of the Act. It seems to me that the acts complained of must be viewed in the totality of the record, which the Trial Examiner is in a better posi- tion to evaluate than we are. In all other respects, I agree with my colleagues' disposition of the case. 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 opportunity to present evidence and arguments, the National La- bor Relations Board has decided that we, Gifford-Hill GIFFORD-HILL & CO. INC. & Co., Inc., have violated the National Labor Rela- tions Act, and we have been ordered to post this no- tice: The National Labor Relations Act gives you, as an employee, these rights: To engage in self-organization To form, join, or help unions To bargain collectively through a repre- sentative of your own choosing To act together with other employees to bargain collectively or for other mutual aid or protection; and, If you wish, not to do any of these things. Accordingly, we assure you that: WE WILL NOT do anything that violates any of your rights listed above. WE WILL pay Richard Clark for his loss of wag- es and benefits caused by our discrimination against him. WE WILL NOT refuse or fail to hire, rehire rein- state, or reemploy any employee because of his union membership, views, or activities; or be- cause he has engaged in any lawful activity under the Act. WE WILL NOT interrogate any employee in vio- lation of the Act, as to his or any other employee's union membership or sympathies, nor as to his or any other employee's union or other activities which he has the right to entertain or engage in under the Act. WE WILL NOT directly or indirectly require or ask any employee to report back to us on the Union (or any other protected activity) of any other employee. WE WILL NOT threaten that we will discharge or in any other way retaliate or take any reprisal against any employee because he is a member of or joins, or is thinking of joining, a union, or because he engages or is thinking of engaging in any activity allowed under the Act. WE WILL NOT threaten that we will close any of our plants if they become unionized, or if em- ployees become or remain union members, or if employees continue to engage in union activity or any other activity they have a right to engage in under the Act. WE WILL NOT discourage membership in or law- ful activities on behalf of General Teamsters Lo- cal No. 528 or Laborers' International Union of North America, Local No. 438, or other labor organizations of our employees, by refusing to 339 hire, rehire, reinstate, or reemploy any employee, or by threatening discharge or other retaliation, or by threatening to close any of our plants, or by otherwise discriminating against any employee in regard to hire or tenure of employment or any term or condition of employment, because of his union membership or activity, or because of any other lawful activity under the Act. WE WILL NOT threaten to "buy out" a union if our employees choose to be represented by one. GIFFORD-HILL & CO., INC. (Employer) Dated By (Representative) (Title) We will notify immediately the above-named individ- ual, if presently serving in the Armed Forces of the United States, of the 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. 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 compli- ance with its provisions may be directed to the Board's Office, Peachtree Building, Room 701, 730 Peachtree Street, N.E., Atlanta, Georgia 30308, Telephone 404-526-5760. TRIAL EXAMINER'S DECISION 1. PRELIMINARY STATEMENT. ISSUES STANLEY N. OHLBAUM. Trial Examiner: This case, brought on for trial by a complaint and notice of hearing issued by the General Counsel of the National Labor Relations Board through the Board's Regional Director for Region 10 on December 23, 1969,' based upon a charge filed on the previ- ous October 23, as amended on December 17, alleging vio- lations of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended, (29 U.S.C. Sec. 151 et seq.; "Act"), was heard before me in Atlanta, Georgia, on Feb- ruary 25-26, 1970, with all parties participating throughout by counsel, who were afforded full opportunity to present evidence and contentions, propose findings and conclu- sions, and file briefs. Subsequent to the hearing , time having 1 Hereafter, unless otherwise specified, all dates are 1969. 340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD been extended upon application of Respondent, on April 20, 1970, briefs were received, which, together with the evi- dence, have been carefully considered. The central issues in the case are whether Respondent, in violation of the Act, interrogated and threatened employees with relation to union membership or adherence, solicited employees to become informants on the subject of fellow employees' union activities, and took certain subject reprisals (including transfer, suspension, discharge, and re- fusal to hire) against union adherents. Upon the entire record 2 and my observation of the testi- monial demeanor of the witnesses, I make the following: Respondent's plant in downtown Atlanta since the incep- tion of Respondent's Atlanta operations, who had been promoted to lead driver 4 there with a pay increase in May, approached Respondent's production manager, Charles McCall, and informed him `that the drivers elected me to be their spokesman, and ask them [i.e., Respondent Compa- ny] about more money." McCall told Clark "that the com- pany couldn't pay the drivers any more money. That he [McCall] wanted more money, too." Clark reported the foregoing to the other drivers at a meeting that afternoon FINDINGS AND CONCLUSIONS II PARTIES; JURISDICTION At all material times, Respondent Employer has been and is a Delaware corporation , with a main office and three plants in or near Atlanta, Georgia, engaged in the manufac- ture and sale of ready-mixed concrete . Inuring the 12-month representative period immediately preceding issuance of the complaint, Respondent sold finished products valued in excess of $50,000, to customers within Georgia who in turn each sold and shipped goods valued in excess of $50,000 directly in interstate commerce to customers outside of Georgia. I find that at all material times Respondent has been and is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7), and the Unions (Charging Parties, individually and jointly) are labor organizations within the meaning of Section 2(5) of the Act; and that assertion of jurisdiction herein is proper. III. ALLEGED UNFAIR LABOR PRACTICES Respondent commenced operations in its Atlanta Con- crete Branch in March, 1969, and now operates three ready- mixed concrete plants in or near Atlanta (including Plant 61 ["1"] in downtown Atlanta and Plant 62 in Chamblee). At the times here material its officials, all concededly supervi- sors within the meaning of the Act, were Darrow Hooper, general manager; Jerry Jeffreys, sales manager; and Charles McCall, production manager. A. Events of September As amended at the hearing (in respect to date), the com- plaint, as amplified by a bill of particulars, alleges that on eptember 9 Respondent's production manager, McCall, threatened employees with discharge or other reprisal for union adherence or engaging in protected concerted activi- ty; that, on the same date, Respondent's general manager Hooper, voiced a similar threat; and that, also on that day, Respondent's sales manager, Jeffreys, warned that union adherence would be futile. For a clearer comprehension of the events of September 9, as well as of those which followed, it is helpful to know what occurred on September 8. 1. September 8 J On September 8, Richard Clark, a truckdriver at 2 Hearing transcript as corrected in respect to obvious and typographical errors shown on attached "Appendix B " 2. September 9 On the following morning, September 9, all drivers re- ported to Plant 61 at 6:30 a.m. (their regular reporting time) but did not work. At around 6:45, according to Clark's uncontradicted credited testimony: Mr. McCall called down to the Plant 61 and asked me [Clark] what was the trouble, and I told him that the drivers refused to go to work unlessen they made some agreement about making more money.5 At this point Mr. McCall told me to tell the drivers they either get the trucks in the white,6 or get the hell off company property.... At this time, after he told me to tell the drivers to get the trucks in the white, I then replied and told him that the drivers refused to go to work. That they wanted more money.... At this time Mr. McCall made the same statement, and told me to tell the driv- ers to get the trucks in the white or else get the hell off the company property. After Clark relayed this message to the drivers, they left Respondent's premises and went across the street. Soon thereafter McCall, accompanied by General Manager Dar- row Hooper, arrived and queried each driver individually about whether he was going to work, in each case receiving a turndown. The drivers then proceeded in a group to the union hall, where they signed a document , which they call a " etition," addressed to Hooper and captioned NO- TICE," stating: WE, THE UNDERSIGNED EMPLOYEES OF GIF- FORD HILL CEMENT COMPANY HAVE AT- TENDED A UNION MEETING WITH THE LABORERS' & TEAMSTERS AT 1004 EDGE- WOOD AVE, N.E. AND JOINED THE TWO UN- IONS AND WISH TO INFORM THE COMPANIES OF OUR ACTIONS. WE ARE ASKING YOU TO RECOGNIZE THESE TWO UNIONS AS OUR COLLECTIVE BARGAINING AGENTS CON- CERNING ALL MATTERS PERTAINING TO WAGES, HOURS, AND WORKING CONDI- TIONS. THESE ARE OUR SIGNATURES BE- LOW: There follow 18 written names , including Richard Clark, as well as James Middlebrook and Joe Louis Wright (the first two signatures on the "petition"), all of whom figure promi- nently in the events further to be described . At the bottom of the "petition" are written the names of the two Unions 3 Based upon uncontroverted credited testimony of General Counsel wit- ness Richard Clark. Charles McCall did not testify 4 Respondent's general manager, Hooper, testified that a lead driver is responsible for training new drivers but is without supervisory authority At this time, Clark's hourly rate as lead driver was $2.60, his rate as ordinary driver having been $2.42. 6 Company "radio code 'white' means the trucks are checked out and ready for loading" GIFFORD-HILL & CO. INC. appearing in the caption of the instant proceeding ; and the " etition indicates that a copy was for the National Labor Relations Board . It is conceded that this document and also a letter dated September 10 to Respondent from the Unions requesting recognition and collective bargaining were re- ceived by Respondent Friday September 12. After signing this "petition" to the Company to bargain collectively, the drivers returned to or near Plant 61 around 12:30, at which time Clark , lead driver of Plant 61 and Batchelor, lead driver of Plant 62, (Batchelor was also among the signatories to the "petition") as designees of the drivers, entered the lant and upon informing McCall that "the drivers wantedpto come to some kind of conclusion about wanting to try to make a settlement ," a meeting was arranged for 1:00 p.m. at the Company's office, elsewhere in Atlanta. At this meeting, in addition to Clark and Batche- lor as the employees' spokesmen, were, representing man- agement, General Manager Hooper , Production Manager McCall, and Personnel Manager Miller. As credibly narrat- ed by Clark: Mr. Hooper asked us what seemed to be the problem. So I [Clark] told him that the onliest problem was that the drivers was asking for more money . They didn't feel they was getting paid a fare wages for handling those trucks. So Mr. Hooper say, "Well, the company cannot af- ford to pay you any more money at the present time." So at this time we sit and we talk. And then I asked Mr. Hooper why was the drivers out in Dallas, Texas receiving more wages than what we was making, so Mr. Hooper then replied and asked Mr. Miller, say, "How much is the drivers in Dallas making?" At this time Mr. Miller returned to him and say, "I do not recall at the present , but I will call out there and find out," and which he didn't call for the time we was in the office. So the conversation still led on about more money, but Mr. Hooper stated that the company just couldn't afford to pay the drivers any more money at the present time. And at this time Mr. Hooper said, "Well, this is no way to do this.... If you peoples have a problem you should come to us as a individual." And I told him that we came as a groin, and at this time Mr. Hooper made the remark, say, Every group has a leader. Every mob has a leader." And I told him that it wasn't no one leader. That we all was coming as a group, and trying to seek more money. So we talked for a little longer, still on the same conversation on wages. And at this time Mr. Hooper say, `Well, you all will receive telegrams in the morning through the mail, and if you do not report back to work , you will be re- placed." Respondent's general manager, Hooper, the only witness presented on Respondent's behalf relative to the foregoing, testified that when he learned early in the morning of Sep- tember 9 that the Plant 61 drivers were not worlcing, he consulted with lead drivers Clark (Plant 61) and Batchelor (Plant 62), who told him that The drivers ... needed more money or they were not going to work that day.... I [Hooper] told them that there would be a time and place for discussion about wages, and that first we should get the trucks in the white, and get our business transacted.... They said they had to have it now or they would not work... . I asked each one of them individually if they were 341 going to work that day.... Each driver and each of the utility men at Plant 1 [i.e., Plant 61 ] declined. They said they were not going to work that day. They said, "We are part of the group and whatever they do ." ... I told them that they had five minutes to punch the clock and get their trucks in the white, or I would have to consider that they had quit their job.... I retired to the plant to give them time to discuss what they were going to do, and waited the five minutes and at the end of the five minutes I asked them again if they were going to work that day, as a group, and they said-rather, I said, "We need to get our business done . Are you going to work?" Hooper received no satisfactory response . Since the driv- ers did not return to work at this time, Respondent was unable to make any deliveries to customers that day.7 Still according to Hooper, at the conference in his office in the early afternoon ofthe same day (September 9) with Clark and Batchelor, attended by McCall and Miller as well as Hooper on behalf of management 8, Clark stated . that the men were unanimous in their feeling, and that they had to have a higher wage rate . . . or they would not be able to continue work for Gifford- Hill.... I told them that we reviewed wages annually, and that in January [ 1970] we would take a look at the wage rates and they would be adjusted if we felt like if they should be.... We [indicated our problem with the [Company's] Dallas Personnel office, [which had] ad- vised that we should send each one of [the employees] a telegram that day to report the following day, or that we would proceed to replace them in their job. We would hire new emplo ees for their job. And I stated this to Richard [Clark] and Eddie [Batchelor] during that conversation.... My understanding of the compa- ny position at that point was that they would be termi- nated if they did not show up the next morning.... Replaced. That is, as soon as their job was filled, they would be terminated .9 In line with this warning , on the same day, September 9, Respondent dispatched to the drivers individual telegrams stating: YOU ARE INSTRUCTED TO REPORT TO WORK AT 6.30 A M SEPTEM- BER 10, 1969 AT YOUR ASSIGNED PLANT IF YOU FAIL TO RETURN TO WORK AT THAT TIME , THE COMPANY WILL COMMENCE HIRING REPLACEMENTS YOU ARE ADVISED THAT YOUR JOB WILL REMAIN OPEN UNTIL SUCH TIME AS THE COMPANY HAS EMPLOYED AN- OTHER PERSON TO REPLACE YOU Hooper in general terms denies "threatening" to fire or take any reprisal against any employee for not reporting to work or for pursuing organizational activities of the nature de- scribed• With regard to the foregoing events of September 9, deal- in first with the alleged threats of discharge or other repris- al or union adherence or support , attributed to McCall on or about that date, viewing the testimony of General Counsel's witnesses in its most favorable light, I find those allegations not established . The most that the evidence- uncontroverted as it is by McCall-shows, is that after Mc- Call, on September 8, rejected the request of Clark for a wage raise for the drivers, McCall again on September 9 7 However, there was no loss from hardening of any cement, since, as testified by Hooper, no cement is released into a truck from the hatching room until the truck pulls into place under the cement batch delivering apparatus Only Hooper testified 9 Hooper also testified that Clark queued him concerning the Company's alleged higher wage rate in Dallas, which Hooper was unable to confirm or otherwise because "the line was busy" when he called 342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rejected such a demand by the drivers concertedly. McCall's peremptory order to the drivers on September 9 to "either get the trucks in the white, or get the hell off company property," was merely a crudely expressed refusal to grant or entertain a request for a wage increase , as distinguished from a threat of discharge or other retaliation for engaging in union or o,',er protected concerted activity. Respondent, through McCall, of course had the right to refuse a pay increase without being in violation of the Act for so doing; the fact that it did so in ungentlemanly fashion does not violate the Act. I can discern nothing in McCall 's words or acts on or around September 9 comprising a threat of dis- charge or other reprisal for engaging in concerted activity protected under the Act. Under the evidence here supplied, McCall simply did not say so nor so act, nor may such an inference justifiably be drawn from what he said or did at that time. It is accordingly found that the allegation is not established. Proceeding to the allegation that General Manager Hooper made a similar threat or threats at or around this time, General Counsel's proof shows that Hooper first en- tered into the picture on the morning of September 9 when, after the drivers walked off following McCall's turndown of their wage raise request , Hooper arrived on the scene and, with Mcall, queried each driver individually as to whether he intended to work . It is not contended that this was illegal. Hooper's next activity was to meet with the drivers ' repre- sentatives , Clark andBatchelor, at the Company's offices on the afternoon of September 9, resulting in another turn- down of their request for more money, and the notification that drivers who failed to report for work the next day would be replaced . Since Respondent was under no obliga- tion to grant a wage increase and since it had the right to continue its business by replacing economic strikers, I am unable to discern anything unlawful about this. 10 It is ac- cordingly found that the evidence fails to establish that, as alleged in the complaint and bill of particulars, as amended at the trial, Respondent through General Manager Hooper on or about September 9 threatened employees with dis- charge or other reprisal for union adherence or protected concerted activity. Also on September 9, as Respondent's truckdriver James Middlebrook was on his way to hang up his truck keys, he was stopped by Sales Manager Jerry Jeffreys, who "asked me [Middlebrook], `Why did you buck against the compa- ny?' ....I said, `I didn't buck. I had to follow the crowd. I ust went along with the crowd.' And he [Jeffreys] said, `You know how the Union is. Trying to get a Union here is just like out at Whitley. They had a Union and look what happened to them . They bought the Union out. And Whitley's got money, but Gifford Hill has got more money than they've got, and they could buy them out."' According to Middlebrook, this was the extent of the conversation on this occasion . Jeffreys altogether denies the conversation. At the hearing, counsel for General Counsel stated, con- cerning the foreggoing, that "General Counsel is not seeking a finding that 1VIr. Jeffreys interrogated this witness [Mid- dlebrook]." The complaint (par. 9) alleges of this episode, however, that Jeffrey's statement that Respondent could "buy ... out" the Union constituted a threat, ascribable to Respondent, that collective bargaining would be futile, such as to violate Section 8(a)(1). 10 Although credited testimony of Clark shows that Hooper on this occa- sion also invited drivers to deal with Respondent individually rather than as a group, no violation of Section 8(a)(5)-nor derivatively of 8(a)(I)-is charged or complained of here, and I therefore refrain from comment on whether the indicated language and action constituted such a violation As between Middlebrook, who impressed me as a sincere witness worthy of being credited , and Jeffreys, who before relinquishing the witness stand exhibited what impressed me as a degree of evasiveness and recollective de- ficiencies 11 I have no hesitation in preferring and creditm as I do, Middlebrook's version of the described episode. It, does not follow, however, that the episode even as described by Middlebrook comprised a violation of the Act as com- plained. By his own account (agreeing in this respect with Jeffreys), Middlebrook had enjoyed an easy relationship with Jeffreys ; as Middlebrook put it, "I have been knowing him for a long time. We always laugh and talk and tease with each other." While this is not a license to violate the Act, nevertheless it is a circumstance which may color an episodic incident. All circumstances considered, the quoted remark as- cribed by Middlebrook to Jeffreys, which I believe and find was in fact uttered, partakes of the character of an offhand observation or commentary not rising to the level of a threat of the futility of collective bargaining , or as coercion-laden or otherwise in violation of the Act, and I so find. Cf. N.L.R.B. v. M & W Marine Ways, Inc., 411 F.2d 1070, 1073 (C.A. 5). 3. September 10 On September 10, Respondents' drivers returned to work. After work, between 6 and 7 p.m., a meeting took place between the drivers and management, including Hooper, McCall, and Miller. According to Clark (essentially corro- borated by General Counsel witnesses Middlebrook and Wright) the meeting was opened with Hooper stating for the Company that "the company was no longer going to tol- erate with the nonsense that the drivers was doing of walk- ing off the job." There ensued a discussion as to why that the drivers walked off from the job, and the same discussion was about more money. So at this time Mr. Hooper still restated and said that the company couldn't afford to pay the drivers any more money, and the conversation went on about more money, so at this time [driver] Mr. Wright spoke to Mr. Hooper and say, `I would like to have wall-to-wall carpeting in my house and steaks in my refrigerator, and not wall-to-wall roaches and rats,' so at this time Mr. Hooper then pointed to Mr. Wright and said didn't he feel he was paying a fair pay scale for driving a mixer. At this time Mr. Wright told him No; and then Mr. Wright asked Mr. Hoop- er, he said, `Well, why are the drivers out in Dallas making more money than we are making?' and Mr. Hooper then say, 'If you want to go to Dallas I will be more than glad to give you a letter transferring you to Dallas."' General Counsel witness Middlebrook, still in the employ of Re- spondent and testifying under subpeona, additionally re- called, in connection with management's statements that "they didn't want that [action of the preceding day] to hap- pen any more," that "They said we should come to them as an individual and explain the problems to them."12 General Counsel witness Wright (also present at the meetin) added that Clark also indicated that in response to his Clark's) request on behalf of the drivers to McCall for more money (September 8, supra), "Mr. McCall seemed to took him [Clark] as a child. He [McCall] didn't want to recognize him Clark] as a grown man, the way he talked to him. He said that he [McCall) want more money hisself." Acknowledging that it was indeed he, Wright, who spoke up and raised the 11 When a witness such as Jeffreys testifies that he does not recall that something did happen, it is not the same as if he testifies that he does recall that something did not happen 12 See fn 10, supra GIFFORD-HILL & CO. INC. question of why the Company was paying its employees more in Dallas than in Atlanta, Wright recalled response that "you can get a transfer if you want it ... will glaly recommend you to any one of the places you want to go to," and that Hooper "said the company wouldn't tolerate with this nonsense, and if it was necessary, the company would replace every man with someone else." Concerning the foregoing, General Manager Hooper, again presented as Respondent's sole witness on the subject notwithstanding the participation of other management representatives in the episode described, testified that at the meetin g between management and the Company's entire hourly paid workforce in Atlanta, in the Company's prem- ises after work on September 10, there occurred a general discussion. In the course of this, according to Hooper, he informed the group that "One thing that was particularly embarrassing to me [Hooper] was that I ... had found out that the [Company] wage rate in Dallas was $2.60, and I admitted my error to the group, and said that I was sorry that I had stated it so clearly [tto the contrary], and stated my position that if any of them wanted to transfer to Dallas, I would be glad to give them a recommendation if their record warranted it. Hooper testified that he also told the assembled employees that "there is a way to handle prob- lems that is good for the employee and good for the compa- ny, and to handle them on an organizedbasis, so that it does not disrupt our ability to serve our customers in Atlanta." According to Hooper, he also "encouraged ... [that] indi- vidual problems ... be handled directly with their supervi- sor" after "business slows down" in the afternoon, while "group problems of wages we encouraged to be handled in a meeting, like we were conducting at that time ... where all the hourly paid employees could participate in the dis- cussion."13 In response to a leading-type question on direct examination , Hooper denied telling the employees "that the company would not tolerate any' more nonsense and the way the drivers were doing wasn t any way to do."14 No illegality is complained of regarding Respondent's actions or words of September 10. They are here described because of relationship to the impact on succeeding events. It may be remarked in passing, however, that Hooper's statements indicating that the Company did not desire a repetition of the walkout of the previous day but would if necessary hire replacements, were in effect what it had pre- viously stated to be its lawful intention. B. Events of October It is further alleged that a series of unfair labor practices were committed by Respondent in the latter half of Octo- ber; namely, issuance of warning slips to employees for union adherence or protected concerted activity (October 13 There is no evidence of any such meeting at any time prior to the employees' described collective activity of September 8-9; and there will be recalled the earlier actions of the Company on those dates , including Mc- Call's terse, seemingly definitive pronouncement on September 8 "that the company couldn't pay the drivers any more money . That he [McCall) wanted more money, too," and also the Company's September 9 pointed order to the drivers to "either get the trucks in the white, or get 'the hell off company property," precipitating their speedy visit to and joining the Union Contrary to Hooper's testimony at the hearing, these as well as other company actions hardly betoken the professed disposition (as testified by Hooper) that "Group problems of wages we encouraged to be handled in a meeting where all the hourly paid employees could participate in the discussion " 14 In this connection, it will be recalled that, notwithstanding this answer, Hooper earlier testified, also on direct examination , that he had indicated to the employees "that there is a way to handle problems that is good for the employee and good for the company . so that it does not disrupt our ability to serve our customers 11 343 16 and 30, to employees Middlebrook and Wright); interro- gation and threats of discharge , or other reprisal for union adherence or protected concerted activity (October 17 and 20 by McCall); threats to close the plant in the event of unionization or continuation of protected concerted activi- ty, as well as threats of discharge or other reprisal for such adherence or activity (October 17, by Hooper ; October 20, by McCall); discharge of an employee for union adherence and for engaging in protected concerted activity , and refus- al for that reason to reinstate or rehire him (October 17 and thereafter, employee Clark); solicitation of an employee to an act as informer to Respondent on fellow-employees' un- ion and protected concerted activities (October 20, by Mc- Call); and suspension and job transfer of an employee for union adherence and engagingg in protected concerted activ- ity (October 30, employee Wright). 1. October 16 When Respondent's Plant 61 truckdnver, James Middle- brook, was absent from work on or shortly before October 16 because of illness, his wife notified the plant. At work the next day, however, Production Manager McCall asked Middlebrook why he had failed to notify, the plant. Al- though Middlebrook explained that his wife had done so, nevertheless McCall, indicating he had not heard about it, issued a "Write-Up Form" or ormal disciplinary warning notice to Middlebrook. This document states that Middle- brook had absented himself "without notification of the company as required" and that "This rule has been ex- plained to you before and must be complied with." McCall did not testify at all in this proceeding, and Hoop- er disclaimed knowledge of the circumstances of the episode involving Middlebrook. Although the facts as testified to by Middlebrook are accepted by me as true, I nevertheless do not view them as establishing a violation of the Act on Respondent's part. While McCall may have demonstrated a lack of fairness, good judgment, or even common sense, in issuing a formal warning slip to Middlebrook under the circumstances, it does not follow that his action was dis- criminatorily motivated in violation of the Act. It is at least theoretically possible that McCall may not have believed that Middlebrook's wife really called him in sick. But even if McCall acted irrationally, it would still not follow that he thereby violated the Act. It has simply not been demon- strated by the evidence presented that the warning slip was issued to Middlebrook because of any union or protected concerted activity on his part. Unlike Clark, it has not been shown that Middlebrook was singularly, particularly, or in- deed at all, active in the plant unionization movement. He was only one of 18 employees who had signed the "petition" over a month previously. Although it is true that his is the first name signed, it has not been shown that any signifi- cance is attached thereto. It is true that Middlebrook testi- fied that he had not received a warning slip (and that he had not even been spoken to, which seems hard to believe) on the occasion of either of two prior work absences when he had failed to call in, but the uncontroverted testimony of Hooper shows that the warning-slip system was only insti- tuted in September, subsequent to the commencement of the union activity.15 Accordingly, all circumstances considered, in my estima- tion General Counsel has failed through a fair preponder- ance of substantial credible evidence to sustain the burden which is his, of establishing without undue inference-strain- 15 I do not agree with General Counsel's contention that the mere change- over to written infraction slips in September, following the inception of the employees' organizational efforts, is violative of the Act. 344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing, that Respondent's issuance of the September 16 warn- ing slip to Middlebrook was because of Middlebrook's un- ion adherence or protected concerted activity as alleged. Inasmuch as there is a total absence of proof as to the issuance of a warning slip to employee Wright on or around October 14, as alleged (perhaps ambiguously or uninten- tionally) in the complaint, the complaint allegation based upon the supposed issuance of such a document to Wright is likewise held not established. 2. October 17 It is evident from what has already been said that from the very start lead driver Richard Clark was the designated leader and the kingpin of the drivers' organizationar effort at Plant 61. It is within the frame of reference of that fact as well as a pending collective-bargaining request, that events of October 17 and 20, about to be described, should be appraised. On October 16, Clark was drawn into an industrial rela- tions problem or problems involving another driver or driv- ers at Plant 61. It came about in the following way. On his way back to Plant 61 from a delivery that afternoon, Clark encountered Batchelor (lead driver at Respondent's Cham- blee plant and a "petition" signer), who indicated that he (Batchelor) did not intend to report back there because McCall had refused to allow him to wash down his truck blades. Upon arriving at the plant, Clark raised this matter with McCall, reminding McCall that if concrete is permitted to solidify in the truck it must be removed by operating a jack hammer inside of the drum, a hazardous undertaking. McCall disputed Batchelor' s statement. That evening, Clark attended a drivers' meeting called by the Company at a local cafeteria. All of the Company's Atlanta officials, in- cluding Hooper and McCall, were there. Batchelor was present, but his problem did not come up for discussion. Soon after Clark arrived home after this meeting, he was visited by drivers Alexander and Atchison, who informed him that Atchison (also a "petition" signer) had been dis- charged "for stealing some funds." Clark told Atchison to meet him at the plant the following morning. On the following morning (October 17), at the plant, with Atchison there, Clark asked General Manager Hooper what had been decided about Atchison. Hooper replied, "We already decided that." Clark requested Hooper to "recon- sider, because the drivers were oingg to refuse to go to work." At this, Hooper ordered Clark to "get your truck keys; get your truck in the white," which Clark was unable to do inasmuch as his truck was being worked on by me- chanics and was therefore not ready to be loaded. Hooper then entered the drivers' room and asked what was the matter. He was told by the drivers that they "wanted Curtis Atchison's problem straightened out" since Atchison had not actually stolen any money from the Company. Atchison (who, it will be recalled, hadbeen fired the preceding day) himself explained to Hooper that he had merely forgotten to remove C.O.D. collections from his shirt pocket since he had not changed clothes as he apparently normally did. The upshot of all this was that Atchison was restored to his job and Clark directed the drivers to get into the "white" ( i.e., load up). Following this episode, however, as the Plant 61 drivers returned from their deliveries that morning, they were called off and individually spoken to by Hooper and McCall. When it came Clark's turn, Clark was told by McCall, "We are not going to tolerate with this nonsense any longer. If I have to, I will shut all the plants down.... I see you guys want a Union. If you all want a Union, you want a Union, but you should understand that the Union can' t make the company pay no more than what they can afford to pay." Thereupon McCall displayed and asked Clark to sign a document which McCall described as relating to Clark's "being out from work, and it would go into [your] file at the office up there." Clark "Just flat refused" to sign it.16 McCall then ordered Clark to load up his truck, which Clark did. Hooper was not present during this encounter between Clark and McCalr, which as credibly recounted by Clark stands wholly uncontradicted since McCall did not testify.'" Early that afternoon, as Clark was moving his truck in place under the loading apparatus to receive a load of ce- ment for a delivery, McCall ordered the dispatcher to put Clark's load on some other truck. When the dispatcher said no other truck was available, Hooper approached and or- dered Clark to pull his truck away from the loading bin and told him that he and McCall wished to speak to him. There ensued a conversation between the three in a car. As credi- bly recounted by Clark, McCall said to him, "It boils down to one thing. You is nothing but a trouble-maker for the company . . . and I don't 1'ikg your attitude, and you is nothing but a trouble-maker." When Clark denied this, Mc- Call repeated it, adding, "I noticed you the other night at the drivers' meeting [i.e., October 16 evening meeting, allud- ed to supra]. You sit there. You had your head down. You didn't even have a smile on your face." Clark remarked, "I didn't have anything to smile about. I didn't have anything to say." McCall, however, again repeated that Clark was "nothing but a trouble-maker, and that he [McCall] didn't like my Clark's] attitude. So at this point I [Clark] got out of the car; told Mr. McCall and Mr. Hooper both, that if that's the way they feel, I quit.... I repeated and said to Mr. McCall that I wasn't no trouble-maker. I didn't know what make him felt that way. But he repeated, and kept saying it, which Mr. Hooper was present, but he did not say an thing at that point." Clark swore with utter conviction at the hearing, and I fully credit him, that he had had "no intention ... whatsoev- er" of quittin that When When he returned to the plant to gather up his clothes, he observed "McCall was sitting there on the side of the desk with a smile on his face, about as long as one of those tables out there." Touching the foregoing, Respondent's truckdriver Mid- dlebrook-a most impressive witness who, as pointed out above, is still in Respondent's employ 18-testified that it was indeed Clark who had instructed the drivers not to move their trucks on the morning of October 17 until the Atchison matter was straightened out; and that they did not go to work until they received the word from Clark that The matter have been straightened up. Let's ggo to work." Middlebrook additionally testified that uponh is return to the plant from a trip that afternoon (October 17), he was hailed b McCall and asked to come to the batchroom, where McCall asked him if he knew that Clark had "quit," adding that Clark was "hard-headed and ... stubborn ... nothing but a trouble-maker." McCall utilized the occasion for timely questioning of Middlebrook about his own union sentiments, asking him pointedly at this particular time, 16 The document in question, a "Write-Up Form" or formal disciplinary warning slip, on the subject of Clark's absence on October 13 in order "to attend court," is discussed under "October 20," infra. 17 See fn 18, infra, regarding McCall's failure to testify. 's That the circumstance of testifying while still in the employ of a Respon- dent employer, and thus vulnerable to reprisal, may be regarded as lending added weight to an employee's testimony, see Georgia Rug Mill, 131 NLRB 1304, 1305 n 2, enforced as mod ., 308 F.2d 89 (C A 5), Wirtz v. B A C. Steel Products, Inc, 312 F.2d 14, 16 (C.A 4) GIFFORD-HILL & CO. INC. "What do you think about the Union." Middlebrook's re- sponse was, "I'm with the crowd. Whatever the crowd do, I am going along with them." The foregoing was unaccom- panied by any indication from McCa ll cCal that Middlebrook need not answer or that there would be no reprisal for his answer. Inasmuch as McCall did not testify, Middlebrook's ac- count stands unchallenged. Since, as already indicated, I was extremely favorably impressed by Middlebrook as a witness, I credit his account as described.19 3. October 20 On Monday morning, October 20, Clark reported back to Plant 61 at the usual 6:30 a .m. reporting time, and asked McCall to be allowed to return to his job. McCall refused, reiterating, as he had on the preceding Friday to Middle- brook as well as to Clark, "Well, it boils down to one thing. You [Clark] are nothing but a trouble-maker," adding, "Just leave things just like it is." Clark thereupon left the premises. There is neither indication nor claim that any replacement had been hired for Clark at this time nor that any steps had been taken or initiated along that line. Clark mentioned instances, by name, of other drivers who had been rehired after leaving the Company's employ. It is undisputed that Clark has never been reinstated or rehired. The testimony of Respondent's driver Middlebrook, who is, as I have indicated before, still in its employ, and whom I have had occasion to characterize as a highly impressive witness, sheds light on the events of October 20 as well as October 17, an is revealing in other respects. When Middlebrook arrived at work on Monday morning, October 20, he observed Clark talking with McCall. Soon thereafter, as Middlebrook was going to his truck, McCall accosted him and said, "`Richard [Clark] asked for his job back," and he [McCall] said he told Richard he was going to leave things like they were because he [Clark] was a trouble-maker and he was hard-headed, and so he wouldn't give him his job back.... He said he wanted to leave things like they were. He didn't want to give Richard his job back. ... After he told me that Richard had asked for his job back, he said he told Richard he wasn't going to hire him back. He was going to leave things just like they were . That he was a trouble-maker and he was hard-headed. And he said, according to this walking out stuff, he wasn't going to tol- erate with that and it wasn't going to happen again. If it would-if it did, he would shut the whole plant down.... He said he got rid of one of the trouble-makers, and he was going to get rid of the rest of them." At the end of that afternoon (October 20), as Middle- brook was washing his truck, McCall approached him and asked, "What do you think the fellows are up to?" Middle- brook answered, 'I don't know." McCall nevertheless con- 19 Respondent did not produce McCall to testify . Respondent's counsel explained that although McCall was readily available in Atlanta (the site of the hearing) he had declined when invited to appear voluntarily, and hence Respondent's counsel was loath to adduce his testimony under subpoena The Trial Examiner's offer to issue a subpoena to Respondent for service upon McCall was declined . This leaves the state of the record to be that certain testimony of credited witnesses (Middlebrook and Clark) stands wholly undisputed and unrefuted . I cannot assume from Respondent's fail- ure to produce McCall under the circumstances that-whether or not cur- rently in the employ of Respondent-his testimony would have contradicted that of these witnesses or that it would have been favorable to Respondent; nor that, if unfavorable to Respondent , it would necessarily be untrue. Nor will I assume that just because a witness is subpoenaed he will perjure himself out of spite toward the party who has subpoenaed him. Middlebrook himself testified here under subpoena. 345 tinued, "Where did they meet at?" Middlebrook replied, "We all go over to Richard's [i.e., Clark's] house over the weekend.' McCall pressed on, "Are you going over that way tonight?" Middlebrook's response was, "I'm not going to be able to make it." McCall then said, "I would like you to go over there and find out what they are up to." Middle- brook repeated, "I am not sure I can make it over there." As already indicated a number of times, McCall was not produced to testify. Accordingly the foregoing, as recounted by Middlebrook, a highly credible witness, stands wholl uncontradicted. Upon the basis thereof, I find that, as ayl- leged in the complaint, on October 20 Respondent through its agent and supervisor, McCall, interrogated its employee Middlebrook regarding employees' protected concerted ac- tivities, threatened discharge or other reprisals against em- ployees for union adherence or protected concerted activity, threatened plant closure in the event of continuance thereof, and, further, solicited Middlebrook to act an an informer for Respondent on fellow employees ' protected concerted activities. Relative to those portions of the described events of Octo- ber 17 and 20 in which General Manager Hooper participat- ed, he testified, in response to leading-type questions on direct examination by Respondent's counsel, that he him- self did not "threaten" plant closure on October 17 or any other time; and that he himself did not "hear" McCall voice such a threat around then, "more particularly October 20, 1969." It is not surprising that Hooper did not hear McCall make such a threat on October 2(J, since Hooper was not there. As to October 17, Hooper claims to have been present at the interview on the morning of that day with McCall and Clark and offers a version thereof at variance with that of Clark. Comparing testimonial demeanor and considering Respondent s failure to call McCall as a witness, within the framework of the record as a whole, I credit the testimony of Clark and find that McCall did in fact on that date threaten to "shut all the plants down," in relation to the drivers' concerted activity of that day involving Atchison and not for any economic reason. This leaves for considera- tion the threats ascribed to Hooper himself on October 17; these I find not established , since the only participation on his part in the events of that day was in the discussion in the car with McCall and Clark, which involved no threat such as alleged. Hooper also testified at length concerning matters alleg- edly bearing on the termination of employment of Clark on October 17 and on Respondent's conceded refusal to rein- state Clark on or since October 20. Thus, Hooper testified in detail about the alleged C.O.D. shortage of Atchison described above, resulting in Atchison's discharge on Octo- ber 16 and his reinstatement on October 17. According to Hooper's version, the discussion in the car among him,McCall, and Clark on the afternoon of October 17 involved a review by Hooper and McCall of various employment delinquencies or shortcomings on Clark's part, inc uding his making derogatory remarks over his truck intercom about the quality of the maintenance of his truck, "appparent disinterest' displayed by him at a safety meeting on the preceding day (October 16), and what Hooper testi- fied were "general indications ... that he was not very interested in working with Gifford-Hill" and "inviting some change in performance" on Clark's part to "do a better job."20 According to Hooper, Clark "declined to make that assurance" but instead said, "People can't change. I can't 30 Hooper conceded that no "Write-Up Form" had been prepared in re- gard to these (exclusive of the two absence forms alluded to above, one dealing with Clark's "absence" by reason of his required court appearance on October 13). 346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD change, and you [McCall] can't change ... and if you think I am a trouble-maker, I had just best quit," and precipitately left the car. Hooper expressly denied that he or McCall at any time referred to Clark as a "trouble-maker." Upon demeanor observations, and also considering Middlebrook's impressive testimony, independently bear- ing on that particular expression ("trouble-maker") as used in reference to Clark by McCall, who was not produced to controvert it, I credit Clark's version of what took place in the cab of the car on the afternoon of October 17 as the more nearly accurate account 2' Although there may be justification for finding that under the described circumstances Clark was constructively dis- charged by Respondent on October 17, as urged by General Counselparticularly in view of Clark's status as unioniza- tion kingpin, what had transpired before, the specific events of October 17, the strongly suggestive nature of the October 17 afternoon conclave in the car as being intended to dis- charge Clark, and the testimony of Hooper indicating that Clark was indeed edged to that very brittle-nevertheless, it is not in ml view necessary to go that far. I am, owever, fully persuaded and find that Respondent's failure to reinstate Clark on the next workday (Monday, October 17) was, at the very least in substantial and controlling part, on account of his leadership of the drivers' union and protected concerted activities which were so unwelcome to Respondent and by reason of which Clark had come to be an irritating thorn in its side and very much of a "trouble-maker," as McCall openly avowed . I further find that Respondent's current catalogue of reasons for not reinstating Clark on Monday morning-none of them inci- dentally, advanced to Clark then-are wholly pretextuous. Richard Clark was one of Respondent's earliest employ- ees. He had always been well thought of. As recently as May he had received a raise in pay and a promotion to the responsible position of lead driver-the only such position in the plant. In General Manager Hooper's own words, Clark was a "bright, intelligent, hard-working guy." As in other cases of this type, it was not until the employee started to attempt to exercise his rights-and in this case to lead the other employees in this endeavor-that his employer began to have second thoughts about him . It was then that he became, and since then that he has remained, a marked man. And now, after the fact, there is an attempt to dredge up pretextuous justifications for the suddenly developed disaffection. Thus, the employer speaks of garnishments, a c9nviction,22 absenteeism, derogatory comments on his truck "intercom" about the condition of the trucks, and even failure to smile but, instead , having a "dour" visage or expression at a meeting. Aside from the conceded facts that these matters were known to Respondent and were not limited to Clark alone, the fact is that Clark was not fired, nor even suspended or disciplined for any of these reasons. Even the nature of the "Write-Up Form" which Respon- dent sought to foist on Clark on the last day of his employ- ment seems transparently devoid of genuineness 23 or 2i Among other things, Clark's candid admission that he did "quit" under the described circumstances, is a testimonial to his veracity here. 22 Respondent has presented a certified copy of the record of a conviction of Clark, on August 29, upon his plea of guilty, on the charge of storage or tolerating the storage of untaxed liquor . I have carefully considered and given to this the weight it deserves before amvmg at my findings and conclu- sions herein. General Counsel's posthearing motion to strike it from the record is hereby denied. zt The same may to a degree also be said about the other "Wnte-Up Form" received by Clark. This, dated September 30, related to an absence on the day before, of which he had allegedly failed to notify the Company in advance-an occurrence hardly limited to Clark and concededly not justify- semblance of justification. Thus, as credibly and indeed uncontrovertedly established by Clark's testimony on cross- examination, on October 13 he was required attendance in court as a previously subpoenaed witness in an important criminal case. McCall had been notified in advance by counsel of the necessity of Clark's attendance. On the day in question, Clark actually reported to work, informed Mc- Call that he "had to be in court" and left for court around 8 a.m. He was in court all that day and testified in the case. Since McCall did not testify, the foregoing is in no way controverted and is credited. Nevertheless-as will be re- called in connection with the events of October 17, supra- on October 17 (Friday), following the reinstatement of "pe- tition" signer Atchison after the active interposition of Clark, McCall presented Clark with a typed "Write-Up Form" or formal disciplinary warning slip which he asked but Clark refused to sign, dealing with Clark's sit sedl^' unexcused absence on October N. That "Write-Upp Form' states that Clark was "late reporting for work on 10/13/69 without prior notification of the company as required. After reporting to the plant you refused to go to work and took the day off. [NOTE.-The typed words "and took the day off" are crossed out and in their place are the handwritten words "to attend court."] The rules concerning reporting to the company have been explained to you beore and you were warned on 9/30/69 that this rule must be complied with. You are also warned that any other violations of this rule or other breaches of company policy may subject you to disciplinary action, including discharge, as the company may see fit." The issuance of the October 17 warning slip to Clark over his explained, notified, and required atten- dance in Court on October 13-Clark's uncontroverted ac- count concerning which I credit-appears to have been a crudely contrived attempt to create or build up a "record" against him, casting light on the true nature of Respondent's motive in connection with the events of October 17 and Respondent's refusal to reinstate Clark on October 20. Furthermore, Clark's job was neither filled, nor is there any contention that Respondent took any step in that direc- tion, between the time he "quit" under the described pro- vocation on the afternoon of Friday, October 17, and the early morning of Monday, October 20, when he reported to the plant as usual. Hooper himself testified that Clark's precipitate resignation on Friday afternoon without ad- vance notification "put[s] us in a terrible position." With this awkward predicament spontaneously resolved by Clark's reappearance on the next workday as usual, it strains credulity that Respondent would have deliberately desired to prolong its "terrible position," unless it wished to remain rid of Clark for a reason unrelated to his efficiency as a driver. Employers are not in the habit of discharging ex p erienced employees merely to replace them. N.L.R.P. v. Davidson Rubber Company, 305 F.2d 166, 169 (C.A. 1); N.L. R.B. v. Local 776, IA TSE (Film Editors), 303 F.2d 513, 519 (C.A. 9), cert, denied, 371 U.S. 826. Respondent's conten- tion that although it would not have discharged Clark for any of the reasons advanced, it nevertheless would not hire a new employee for those reasons, does not hold water. The fact remains that Clark was not a new hire-any more than Atchison, who had been reinstated on October 17 after he had been discharged the previous day for "stealing." Clark's work capabilities were tried, tested, fully known, and had not been found wanting. The clear fly in the ointment, mg rupture of the employment relationship . As to this, Clark testified that he is "positive" that the handwritten words "Clark has been absent 5 days since 7/1/69" were not on the "Write-Up Form" of September 30 which he received from McCall and which Clark signed. Since McCall did not testify, Clark's testimony on this point is uncontradicted. GIFFORD-HILL & CO. INC. 347 however, was his leadership of the union activity to attain that collective bargaining which Respondent did not wish to pursue. The advantage to Respondent, and the havoc to its employees' aspirations for collective bargaining, of the coup o ridding itself of Clark is not to be underestimated as a key to Respondent's true motive. It was this-if not this alone, then at least this in substantial and controlling part- which impelled Respondent to refuse to allow Clark to re- sume work on Monday morning, October 20. Clark's case is somewhat reminiscent of the situation in which Ruth Engi, also a unionizational kingpin, found herself in N.L.R.B. v. Wigwam Mills, Inc., 51 F.2d 591 (C.A. 7), enforcing 149 NLRB 1601, 1620-24, wherein Mrs. Engl, after formally notifying her employer that she was quitting, later changed her mind and sought to remain . Although her employer there, as here, had not replaced her, the employer refused to go along with her change of mind and to permit her to "unresign" and remain . The Board's determination there that the employer's refusal to allow Mrs. Engl to with- draw her resignation was discriminatorily motivated, was upheld and enforced by the Court of Appeals . Likewise here in effect Clark on Monday morning sought to withdraw or cancel the technical resignation into w 'ch he had been pushed or provoked by Respondent's officials on the pre- ceding Friday afternoon , concededly before Respondent had hired or taken any step to hire anybody to replace him. Here, too, as in Wigwam, Respondent's alleged reasons for refusing to permit Clark-a senior, experienced, tried and proven employee-to remain, are unconvincing and do not stand scrutiny. I am persuaded that Clark was singled out for retribution here, when Respondent refused to allow him to resume work on October 20, for no real reason other than that he was the designated leader and spokesman of a group of Respondent's employees seeking to exercise rights guaran- teed to them by the law of the land, which Respondent misguidedly regarded as "trouble-making." If one were to regard as equivocal the circumstances attending Respondent's refusal to permit Clark to resume work on Monday morning, October 20, but instead in effect to in- sist-as in Wigwam with Mrs. Engl-that he stay "quit," then, as has been stated, "where the discharge in question involves the `key' employee in an organizational drive, it may supply shape and substance to otherwise equivocal circumstances." N.L.R.B. v. Davidson Rubber Company, 305 F.2d 166, 169 (C.A. 1). See also N.L.R.B. v. Nabors, 296 F.2d 272, 275-276 (C.A. 5), cert. denied 344 U.S. 865. Upon the record as a whole, I am fully persuaded that but for Clark's protected activity Respondent would have re- stored him to the job he occupied on October 17 with all accrued rights and privileges. I accordingly find that Respondent's refusal to reinstate Clark to its employ on October 20 was in controlling part by reason of his Union adherence and protected concerted activities as hereina- bove described. 4. October 30 It is additionally alleged that on October 30, Respondent issued a disciplinary warning slip to employee Wright be- cause of his union adherence or protected concerted activi- ty. Conceding the issuance of the warning slip, Respondent contends it was justified for disciplinary reasons unrelated to union views or protected activity. Credited proof establishes that Joe Louis Wright, a truck- driver in Respondent's Plant 61 and a signer (second name) of the drivers aforedescribed "petition,' sustained personal injuries in two different accidents on September 25 (the first at the plant, allegedly to a finger; the second in an automo- bile accident, allegedly to his cervical spine), following which he remained away from work until November 3 (or, possibly, October 30, this not being entirely clear). Upon his return to his job on that date (November 3 or October 30), he was given a one week 's suspension by McCall and trans- ferred from Plant 61 (downtown Atlanta) to Plant 62 (Chamblee, estimated by General Manager Hooper to be about 11 air miles from Plant 61). The indicated reason for Respondent's disciplinary action was that Wright had de- layed unduly in returning to work, drawing out his illness or convalescence (or absence for other reason) beyond the necessary or reasonable time. When Wright was asked to sign Res ondent's "Write-Up Form" to that affect on No- vember or, possibly, October 30), he declined to do so and that formso shows. However, he accepted the transfer to the somewhat more distant Chamblee plant, which he concedes he was told was because the truck he had been driving at Plant 61 had been otherwise assigned during his absence. Wright then worked at Chamblee from November 10 to January 5, 1970. He denies receiving any previous repri- mand or warning in connection with any absence earlier than the one which has been described , and there is no credible proof that he did. Although Respondent wrote Wright a letter on Septem- ber 29, directing him to return to work without delay if he wished to remain in his job, at that time it was cognizant only of his finger injury-which was apparently minor- and unaware of his automobile accident rater that day, since Respondent's copy of its letter of September 29 bears the handwritten notation, "Disregard-auto accident on nite of 9/25." However, the "Disability Certificate" of Wright's physician, Dr. W. N. Harper, dated October 29, upon which Respondent apparently relied and justifiably so, states that Wright was incapacitated only "through" or "to 10-21-69." It would thus seem that Wright's physical condition permit- ted his return to work about 2 weeks before he showed up, unless he was prevented from so doing for some other valid reason, which has not been demonstrated. Under these cir- cumstances it cannot be said that Respondent's one week's suspension of Wright for unnecessarily delaying his return was pretextuous or otherwise colorable. So far as his trans- fer to Chamblee is concerned, Wright concedes he was told another driver had been assigned to his truck at Plant 61 and that appears to be the fact, as well as that it was Respondent's general policy not to shift drivers from trucks they were actually driving. Respondent was of course under no obligation to keep Wright's truck deadlined indefinitely, under the circumstances s own, awaiting his possible even- tual return. (It did, after all, keep his job open for him over a month.) Nor is there indication that Wright was in any way active in union or concerted protected activity-other than merely being one of 18 signatories to the "petition" of September 9. There is thus no solidjustification for inferring that Respondent's action in suspending Writ for a week and assigning him to the Chamblee plant, where there was then a truck available for him to drive, was discriminatorily motivated in violation of the Act. Upon the record as a whole, it is accordingly found that it has not been established by substantial credible evidence, as required, that Respondent's October 30 (or November 3) suspension of Wright for one week and his assignment thereafter to its Chamblee plant, was because of Wright's union adherence or protected concerted activity. Finally, paragraph "12" of the complaint, as somewhat ambiguously drafted, is susceptible to the interpretation that Respondent on October 30 also issued a warning slip to Middlebrook. Inasmuch as there is no clue to its actual 348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD meaning, but no proof has been adduced concerning any C. Recapitulation of Findings warning slip to Middlebrook on or around October 30, it is found that it has not been established that any warning slip The following is a recapitulation of findings made herein: was issued to Middlebrook on October 30. 1969 Date(s) Complaint ("C") and or Bill of Particulars Approx. No.24 ("B/P") Par. No (s) . Date.(s) Subject Finding 1 C9 9-9 Threats of futility , by Jeffreys Not found 2 C8; B /P1 9-9 Threats, by Hooper Not found 3 C8; B/P1 9-9 Threats , by McCall Not found 4 C12 10-16 Discriminatory warning slip, to Middlebrook Not found 5 C12 10-16 Discriminatory warning slip, to Wright? Not found 6 C7 10- 17 Interrogation, by McCall Found 7 C8; B/P1 10-17 Threats , by Hooper Not found 8 C8; B/P1 10-17 Threats , by McCall Found 9 C10 10-17 Threats to close plant, by Hooper Not found 10 C14 10-17 Discharge of Clark Not found, but see 10-20, infra, re Clark 11 C7 10-20 Interrogation, by McCall Found 12 C8; B/P1 10-20 Threats, by McCall Found 13 C11 10-20 Solicitation to act as informer, by McCall Found 14 C10 10-20 Threats to close plant, by McCall Found 15 C15 & 16 10-20 Discriminatory refusal to reinstate Clark Found 16 C13 10-30 (&/or Discriminatory 1-week suspension Not found 11--3) and transfer of Wright 17 C12 10-30 (&/or Discriminatory warning slip, to Not found 11--3) Wright 18 C12 10-30 Discriminatory warning slip, to Middlebrook? Not found GIFFORD-HILL & CO. INC. Upon the foregoing findings and the entire record , I state the following: IV CONCLUSIONS OF LAW 1. At all times material herein, Respondent Gifford-Hill & Co., Inc. has been and is an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act. 2. At all times material herein, General Teamsters Local No. 528 and Laborers' International Union of North America, Local No. 438, have each been a labor organiza- tion within the meaning of Section 2(5) of the Act. 3. Assertion of jurisdiction in this proceeding is pro pper. 4. By the conduct set forth in section III, supra, whichhas been found to constitute unfair labor practices , Respondent has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed to them by Section 7 of the Act, and has thereby engaged in and is engagin g in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 5. By its October 20, 1969, refusal, and its refusal and failure at all times since then , to reinstate or reemploy its employee Richard Clark or to permit said employee to re- sume his job and work with Respondent, under the circum- stances set forth in section III, supra, because of his union adherence and for engaging in concerted activities for col- lective-bargaining purposes and other mutual aid and pro- tection of its employees as guaranteed by the Act, Respondent has discriminated and is continuing to discrim- inate in regard to the hire, tenure , and terms and conditions of employment of its employees, in violation of Section 8(aX3) of the Act; and has been and is interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, in violation of Section 8(a)(l) :)f the Act. 6. The aforesaid unfair labor practices and each of them affect commerce within the meaning of Section 2(6) and (7) of the Act. 7. It has not been established by a fair preponderance of the substantial credible evidence that Respondent has en- gaged in any of the other acts alleged in the complaint, but not herein found in section III hereof , to be unfair labor practices; and the complaint should in those respects be dismissed."' Rulings on Respondent's Posthearing Motions Two motions have been received from Respondent since the conclusion of the hearing. 1. At the hearing, Respondent attempted , through its wit- ness, Crouse, to adduce testimony concerning questions asked by employees and answers provided by a union repre- sentative at union meetings shortly prior to a representation 24 Respondent's proposed findings of fact and conclusions of law are al- lowed only to the extent consistent with the findings and conclusions herein made, and are otherwise disallowed . Specifically , Respondent's proposed findings of fact 1 , 2, 3, and 13, and conclusions of law 1 , 2, 3, 4, and 5 are allowed ; its proposed findings of fact 5 , 6, 7, 8, 9, 11, and 14, and conclusions of law 6, 7, and 8 are disallowed ; its proposed finding of fact 12 is allowed to the extent October 16 refers to Middlebrook only and October 30 refers to Wright only ; its proposed finding of fact 4 is rejected as not established by substantial credible evidence; and its proposed finding of fact 10 is reject- ed by reason of its form and wording 349 election held on November 13, subsequent to the events here at issue. General Counsel made timely objection upon the ground of nonrelevance and upon the further ground that the Board had already overruled Respondent 's objec- tion to the election involving this subject. Since Respondent's objective in seeking to pursue this line was initially unclear to me, in order to avoid possible prejudice to Respondent and because of its assurances indicating that the questions were preliminary to a line of inquiry germane to the issues here, ?(overruled General Counsel's objections provisionally, subject to striking the matter from the record. When the thrust of Respondent's questions soon thereafter became clear, in response to my inq Respondent stated that its purpose was to establish as a defense to this proceed- ing that the Union had ample opportunity at these meetings through explanations and reassurances to employees at- tending those meetings , to overcome or minimize the effects of any unfair labor practices committed by Respondent. After Respondent was given full opportune clearly and explicitly to describe this to be the nature of the proof it proposed to adduce, and to state clearly upon the record its contention that this constituted a defense to this proceeding, I ruled that the matter did not constitute a defense and for that reason declined to permit further inquiry along this line. I ruled the matter to be irrelevant as a matter of law and hence "clearly ... not admissible on any ground" under the final proviso to the last sentence of Rule 43(c) of the Federal Rules of Civil Procedure, which govern the stand- ards of proof in these proceedings in view of the concluding sentence of Section 10(b) of the Act . Notwithstanding my ruling, Respondent nevertheless persisted in attempted fur- ther questioning of the witness along the excluded line, as an "offer of proof." Since Respondent had already made its offer of proof and the record amply indicated the nature and purpose of the proof it proposed to adduce , as well as my ruling and reason therefor, thus adequately preserving the issue for review, I declined to permit further questioning along this line. (Hearing Transcript, pp. 177-184.) In its posthearing brief, Respondent seeks the withdrawal of my ruling and a reopening of the hearing for the purpose of permitting it to continue its questioning of the witness along the excluded line; or, in the alternative, to present a further statement. No proposed further statement accompa- nies its present application, nor is there claim or indication that it would differ from those already in the record. In view of the fact that Respondent has already adequately and clearly stated in the record the nature and purpose of its proposed proof, a further statement would serve no useful purpose. With regard to the proposed continued question- ing of the witness along the excluded line, I remain of the view that my ruling was correct and that the proposed proof is as a matter of law irrelevant or immaterial to the issues here. Respondent's renewed motion is accordingly denied. 2. Subsequent to the hearing, Respondent moved to re- open the record based upon a newspaper clipping from The Atlanta Constitution dated March 30, 1970 referring to the arrest of one Richard Clark upon certain charges. It is clear that a newspaper clipping of March 30, 1970 could not have played any role in Respondent's denial of reinstatement to Clark on the previous October 20-the only issue in this aspect of the case-which antedated the news item by about five months. Insofar as any bearing on credibility is con- 350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cerned, it is evidence of conviction, and not of mere arrest, which may under certain circumstances bear upon credibili- ty. Ruffalo's Trucking Service, Inc. v. National Ben-Franklin Ins. Co., 243 F.2d 949, 953 (C.A. 2); N.L.R.B. v. Lasiter- Kauffmann Aircraft Corp., 144 F.2d 9, 15 (C.A. 8); Posley v. State, 199 Tenn. 608, 288 S.W. 2d 455 ; 3 Wigmore, Evidence Secs. 979-980a (3d ed. 1940). Section 10(b) of the Act, as stated above, governs the standards of admissibility of evi- dence in this proceeding. Respondent also seeks leave, in its said posthearing mot- ion, to subpena certain witnesses who it says are in a posi- tion to testify concerning "the character of Richard Clark." Respondent estimates that pursuit of such an inquiry, at the reopened hearing it seeks, `would not take more than two and one-half (2-1/2) days" (Resp motion, p. 3). Although the nature of the testimony sought or hoped thereby to be adduced is not otherwise specified, such character evidence or testimony of police authorities or of supposed witnesses to the alleged offense or offenses of which Clark is presuma- bly now being accused, but for which he has not as yet been tried, is ancillary and remote to the issues here , and would in any event either be inadmissible or would not affect the result herein in view of the fact that since newly discovered on or after March 30 , 1970, it could not possibly have a bearing on the reason for Respondent 's actions on October 20, 1969. Furthermore, the issues of credibility involved in my conclusion that Clark was denied reinstatement on Oc- tober 20 for discriminatory reasons are in relevant aspect of such relatively minor nature that they would not affect that conclusion even if I were to conclude Clark to be defective in moral character. The foregoing, of course, has no bearing on any right which may accrue to Respondent to decline reinstatement to Clark hereafter (as distinguished from jus- tifying its actions against him on last October 20) by reason of such newly discovered gross misconduct as may render him unfit for further employment ; this being, in the current state of the record, more appropriately a matter for possi- ble eventual determination at the compliance stage. Cf. N.L.RB. v. Wichita Television Corporation , 277 F.2d 579, 584-85 (C.A. 10), cert. denied, 364 U.S. 871; Buzza-Cardo- zo, 97 NLRB 1342, 1345 , mod. 205 F .2d 889 (C.A. 9), cert. denied 346 U.S. 923. For the foregoing reasons, Respondent's motion to re- open the record for the indicated prupose is in all respects denied. V REMEDY Having found that Respondent has committed and is continuing to commit unfair labor practices in violation of the Act, I shall recommend that it be required to cease and desist therefrom and that it take certain affirmative action designed to effectuate the purposes of the Act. I shall re- commend that Respondent be required to offer reinstate- ment to the employee discriminated against (if necessary, discharging any person hired in his place or stead), without prejudice to his seniority or other rights or privileges, and that he be made whole for any loss of earnings and other emoluments which he may have suffered by reason thereof, from October 20, 1969, the date of said unlawful discrimina- tion, to the date of Respondent's offer of reinstatement (or such other appropriate date as may be determined in any backpay or compliance proceeding, as indicated above in connection with Respondent's motion 2), less his net earn- ings if any during such period; all to be computed in the manner prescribed by the Board in F. W. Woolworth Compa- ny, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. Respondent shall also be required to make available necessary records for purposes of such computa- tions. Appropriate provision will be made in the Order and posted Notice to Employees which I am recommending, for notification to the employee discriminated against if he is now in the Armed Forces of the United States , 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 of 1948, as amended. Because the nature of the unfair labor practices engaged in by Respondent is indicative of an attitude of hostility to central purposes of the Act and the free exercise of employ- ee rights secured thereunder , I deem it appropriate to re- commend that Respondent be required to cease and desist from infringing in any manner upon the rights of employees guaranteed in Section 7 of the Act. Upon the basis of the foregoing findings of fact and con- clusions of law and upon the entire record , and pursuant to Section 10(c) of the Act, I hereby recommend issuance by the National Labor Relations Board of the following: ORDER A. Gifford-Hill & Co., Inc., its officers, agents , succes- sors, and assigns, shall: 1. Cease and desist from: a. Interrogating any employee in violation of Section 8(a)(1) of the Act concerning his or other employee's union membership, adherence, sympathies, or activities, or con- cerning the exercise or attempted or projected exercise of any right or any lawful activity of any employee under the Act. b. Directly or indirectly soliciting any employee to act as an informer or to conduct surveillance and report to Re- spondent upon union or other lawful concerted activity, membership, or sympathy, of any employee protected un- der the Act. c. Directly or indirectly threatening any employee with discharge, layoff, or any other economic detriment, loss, reprisal, or retaliation, because of the exercise or attempted exercise of any right under the Act, including the right to join and support a union and bargain collectively. d. Directly or indirectly threatening any employee that it will close its plant, thereby ending the jobs of employees, in the event its employees join or remain members of a union or in the event they assert or exercise or seek to assert or exercise any right , or engage or attempt to engage in any activity, protected by the Act. e. Refusing or failing to hire, rehire, reinstate, or reemploy any employee because of his union membership, affiliation, adherence, activity, or sympathy ; or because he has asserted or exercised, or attempted to assert or exercise, any right guaranteed by the Act. f. Interfering in any other manner with , or restraining, or coercing, any employee in the exercise of his right to self- organization, to form, join, or assist any labor organization; to bargain collectively through representatives of his own choosing ; to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection; or to refrain from any and all such activities. 2. Take the following affirmative action necessary to ef- fectuate the policies of the Act: a. Offer Richard Clark immediate and full reinstatement to his former job , or if that job no longer exists to a substan- tially equivalent job, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of pay and emoluments, in the manner set forth in the "Remedy" portion of this Decision . In the event Clark is presently serving in the Armed Forces of the United States, GIFFORD-HILL & CO. INC. notify him of his right to full reinstatement upon application in accordance with the Selective Service Act and the Uni- versal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces. b. Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment recordss, timecards, person- nel records and reports, and all other records necessary to analyze the amount of backpay and other emoluments due under the terms of this Decision. ' c. Post in each of its three plants in and near Atlanta, Georgia, as well as in its office in Atlanta, Georgia, copies of the notice attached hereto marked "Appendix A."25 Cop- 25 In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor ielations Board , the findings, conclusions, recommendations , and Recommended Order herein shall, as provided in Section 102.48 of the Rules and Regulations, be adopted by the Board ahd-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 Rela- tions Board" shall be changed to read "Posted pursuant to a Judgment of 351 ies of said notice, on forms provided by the Regional Direc- tor for Region 10, shall be duly signed and posted imme- diately upon receipt thereof and maintained fot 60 consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily post- ed. Reasonable steps shall be taken to insure that such notices are not altered, defaced, or covered by any other material. d. Notify the Regional Director for Region 10 in writing, within 20 days from receipt of this Decision and recom- mended Order, what steps have been taken to comply therewith.26 B. The complaint herein, dated December 23, 1969, be, and it hereby is, dismissed in all respects therein alleged but not herein found, and Respondents motion for such relief at the conclusion of the entire case be and it is to such extent only hereby granted. the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 26 In the event that this Recommended Order be 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 said Respon- dent has taken to comply herewith "