Royal Crown Bottling Co., Inc.

352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Royal Crown Bottling Company, Inc., and Press Brew- er. Case 9-CA-5502 February 3, 1971 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS BROWN AND JENKINS On September 15, 1970, Trial Examiner George L. Powell issued his Decision in the above-entitled pro- ceeding finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the at- tached Trial Examiner's Decision. He further found that the Respondent had not engaged in a certain other unfair labor practice and recommended that such allegation be dismissed. Thereafter the General Counsel filed limited exceptions and a supporting 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 brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, as herein modified. The complaint alleges, in substance, that Respon- dent violated Section 8(a)(1) of the Act by discharging employees Press Brewer, Dick Thompson, and Bobby Blankenship because they engaged in concerted ac- tion for their mutual aid and protection. This controversy arose out of the efforts of three employees to discuss wage increases with Respon- dent. Employees Brewer, Thompson, and Blanken- ship were all of the soft drink salesmen employed by the Respondent at its warehouse in Robinson Creek, Kentucky. They worked on a commission basis, and when the Respondent raised the price of soft drinks, these employees experienced a loss in earnings be- cause of the drop in sales. The three employees met to discuss the possibility of asking Respondent for an increase in commissions. On Saturday, November 1, 1969, they asked Cecil Lucas, Respondent's warehouse manager and their supervisor, for a raise and requested a meeting with President Bradley Bentley to discuss the matter. The next day they again met with Lucas who told them that Bentley had said it was too soon to discuss a raise. The employees were not satisfied, said they were not striking or quitting, and insisted on seeing Bentley. Lucas said he would try to get in touch with Bentley and let them know what happened before the next day, Monday. An hour after the meeting, Lucas phoned Blanken- ship in an attempt to get him to come to work on Monday. Blankenship asked if Brewer and Thompson would be at work to discuss a raise and was told that they would not be there. Bentley then got on the phone and tried to get Blankenship to come to work. Upon being asked, Bentley said there would be no raise. Blankenship said he would not go to work with- out a raise. Bentley told Blankenship that he should not hurt himself and that he had been wanting to get rid of Brewer and Thompson for a long time. About 4 hours later Lucas called Blankenship and asked him to report to work under the same condi- tions previously discussed. Blankenship asked about the status of Brewer and Thompson and was told that their cutoff slips had already been prepared. He asked about his own and was told that it would be there the following week. That Monday, Brewer and Thompson reported to the warehouse and were given their cutoff slips, which stated that they were no longer employed by the Re- spondent. Blankenship did not report to work; nor did he ever receive a cutoff slip. On these facts the Trial Examiner found, and we agree, that the Respondent discharged employees Brewer and Thompson in violation of Section 8(a)(1) of the Act. However, we find, contrary to the Trial Examiner, that employee Blankenship had also been unlawfully discharged.' Although both Respondent's president and its warehouse manager tried that Sunday to get Blanken- ship to report to work on Monday, it is apparent that they abandoned the attempt. In the first conversation, Bentley, after asking Blankenship to come to work, told him not to "hurt" himself, warning he had want- ed to get rid of the other two for some time. In the context of this conversation, we find that the Respon- dent, by telling Blankenship, not to hurt himself, im- plied that Blankenship, unless he came to work, would be treated the same as the two employees that Bentley wanted to get rid of. In the second conversation, Lucas, although first asking Blankenship to come to work, told him upon being asked about the others, that their cutoff slips had already been prepared and that he would get his shortly. Thus, the Respondent, in effect, told Blank- enship to come to work or be discharged. 1 We also agree with the Trial Examiner that Lucas' statement to Blanken- ship that his cutoff slip would be there the following week constituted an unlawful threat in violation of Section 8(a)(1) of the Act 188 NLRB No. 54 ROYAL CROWN BOTTLING COMPANY In the circumstances of these two conversations and their following closely upon one another, we find that the Respondent plainly conditioned Blankenship's continued employment upon his re- porting to work on Monday. As Blankenship, by re- porting for work, would have to forfeit his Section 7 right to engage in concerted activity, we find that the Respondent required Blankenship to give up either his employment or his statutory rights. It is well estab- lished that an employer cannot require forfeiture of statutory rights as a condition of employment. Ac- cordingly, we find that Blankenship was constructive- ly discharged because he chose to assert his Section 7 rights.2 The events subsequent to November 2 neither lead to a different conclusion nor show that Respondent offered Blankenship reinstatement . On Monday, No- vember 3, Respondent's sales supervisor, Frank Cor- nette, called Blankenship about returning to work. However, the particular job offered was not as a driv- er-salesman and was an assignment to a different route, which was less desirable because of the dis- tances involved.' Furthermore, the other two dis- chargees were not going to be on the job, and the offer did not include a raise.4 In this connection, we note that the parties stipulated that the Respondent had, on that very same day, raised the amount of commis- sions paid per case. Thus, we find that Cornette's offer to Blankenship was not an offer to the same or a substantially equivalent position of employment. Subsequently, Blankenship received a letter dated November 12, 1970, from the state department of eco- nomic security informing him that Respondent had employment available for him. Blankenship testified that he called President Bentley, who was not in, left a message with his secretary concerning the purpose of the call, was then told that Bentley would call back but Blankenship never received a return call. This testimony stands uncontradicted on the records In 2 Our dissenting colleague agrees that Blankenship was threatened by Re- spondent with discharge in violation of Section 8(a)(1) of the Act . Yet, he states that Blankenship never gave Respondent the chance to discharge him, thereby imposing upon Blankenship the duty to report for work in order to receive the protections of the Act. Requiring Blankenship to report for work would, of necessity, require him to disassociate himself from Brewer and Thompson and refrain from engaging in concerted activity . Thus, Blanken- ship could report to work only upon forfeiting his statutory rights. The doctrine of constructive discharge is designed to apply in situation where, as here, an employer imposes unreasonable or unlawful conditions upon an employee's employment in order to restrain the employee in the exercise of his rights. 3 The offer was apparently to the job of helper. 4 Although the Trial Examiner made no findings with respect to these matters, we find that these facts are supported by the record and are not contrary to the Trial Examiner 's credibility determinations . Cf. Bishop and Malco, Inc, d/b/a Walker's, 159 NLRB 1159, 1161. 5 Blankenship also testified that not having heard from Bentley he went to see Lucas, asked him about the job, and was told that it would be under the same conditions and that Lucas knew nothing more about it . The Trial Examiner , however, credited Lucas' testimony that none of the three ever 353 any event, we find that the letter does not constitute an offer of reinstatement to an equivalent position, especially where it was not from the Respondent and did not indicate what job was available. Having found that the Respondent constructively discharged employee Blankenship in violation of Sec- tion 8(a)(1) of the Act, we shall order it to offer him full and immediate reinstatement to his former or substantially equivalent position and to make him whole for any loss of pay he may have suffered by reason of the discrimination. 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 as modified below and hereby orders that the Respondent, Royal Crown Bottling Company, Inc., Whitesburg, Kentucky, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommend- ed Order as herein modified: 1. Substitute the following for paragraphs 2(a) and (b) of the Recommended Order: (a) Offer to Press Brewer, Dick Thompson, and Bobby Blankenship immediate and full reinstatement to their former positions or, if those jobs no longer exist, to positions substantially equivalent to those which they held immediately prior to November 3, 1969, without prejudice to their seniority and other privileges (discharging those hired as their replace- ments if necessary) and make each of them whole for any loss of wages or other benefits in the manner set forth in the section of the Trial Examiner's Decision entitled "The Remedy." (b) Notify immediately Press Brewer, Dick Thomp- son, and Bobby Blankenship, 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 Selec- tive Service Act and the Universal Military Training and Service Act. 2. In footnote 7 of the Trial Examiner's Decision, substitute "20" for "10" days. 3. Delete the Trial Examiner's Appendix and sub- stitute the Appendix attached hereto. CHAIRMAN MILLER, dissenting in part: Like the Trial Examiner, I believe that Blankenship was never discharged by Respondent. My colleagues speak of a "constructive discharge" on the theory that came back and offered to go back to work. As this credibility finding is not contrary to the clear preponderance of all relevant evidence, we shall not disturb it . Standard Dry Wall Products, Inc, 91 NLRB 544, enfd. 188 F.2d 362 (C.A. 3). 354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "Respondent conditioned Blankenship's continued employment upon his reporting to work on Mon- day"-or, as the majority elsewhere phrases its reasoning, that Respondent improperly gave Blankenship the choice of reporting for work or ceas- ing to engage in protected activity, i.e., a work stop- page. This analysis is faulty as applied to this case: if, indeed, Blankenship had wished to engage in a work stoppage on Monday, November 3, he would have had no desire to report for work then. If he did not, Respondent's threat cannot validly be construed as having forced him to leave work. As the facts show, Respondent at no time told Blankenship he would be immediately discharged if he failed to report to work on Monday, but, at most, at one point, in response to Blankenship's inquiry, told him that, unlike Brewer's and Thompson's, his "cut-off slip" would come over the "following week." As indicated, I believe the doc- trine of constructive discharge has no application to the facts of this case. I agree with the Trial Examiner's finding, adopted by my colleagues, that Respondent's threat to dis- charge Blankenship sometime in the future was viola- tive of Section 8(a)(1). Yet, at the same time Respondent was threatening Blankenship, it repeat- edly asked him to come to work, to disassociate him- self from Brewer and Thompson. Blankenship replied flatly that he "wouldn't come back without a raise," and, although Brewer and Thompson reported to the plant on Monday, Blankenship did not. Nor did he report for work at any time thereafter. The three men had previously advised Warehouse Foreman Lucas they "were not striking or quitting," and, in view of Blankenship's ultimatum, and his failure to come to the plant on Monday with Brewer and Thompson, I conclude that he quit his job in dissatisfaction over his pay. It is possible that, had Blankenship reported for work, or even indicated affirmatively that he was striking, Respondent would thereafter have given him a "cut-off slip." But Blankenship never gave Respon- dent the chance to do this; as I view the facts, he voluntarily quit. I would dismiss the 8(a)(3) allegation as to Blankenship. APPENDIX on May 21, 1970, at which all parties participated and had a chance to give evidence has resulted in a Deci- sion that we violated Section 8(a)(1) of the National Labor Relations Act, as amended, 1. By notifying employee Bobby Blankenship that he would receive a cutoff slip because of his concerted action with employees Press Brewer and Dick Thompson in refusing to work without a pay raise or an opportunity to discuss a pay raise with Bradley Bentley, and 2. By discharging Press Brewer, Dick Thompson, and Bobby Blankenship because of their concert- ed action in refusing to work without a pay raise or an opportunity to discuss a pay raise with Bradley Bentley. The Board ordered us to promise our employees that we will not do these things again, and that we will not, in any other way, interfere with, restrain, or coerce them in the exercise of their rights, under Section 7 of the National Labor Relations Act, to: 1. Organize themselves into a union; 2. Form, join, or help unions; 3. Bargain as a group through a union repre- sentative of their choice; 4. Act together for collective bargaining or for mutual aid and protection; 5. Refuse to do any or all of the above, unless required by a valid contract providing for union membership in accordance with law. We therefore promise that: WE WILL NOT threaten to give an employee a cut- off slip because he engages in any of the above actions, and WE WILL NOT discharge employees because they engage in concerted action for their mutual aid and protection. WE WILL offer to give back their jobs to Press Brewer, Dick Thompson, and Bobby Blanken- ship and WE WILL make up any losses in pay or other benefits they may have suffered since we discharged them, with interest at 6 percent. WE WILL NOT interfere with, coerce, or restrain any of our employees in their exercise of their Section 7 rights as set out above. NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government ROYAL CROWN BOTTLING COMPANY, INC Dated By (Employer) The trial which was held in Whitesburg, Kentucky, (Representative) (Title) ROYAL CROWN BOTTLING COMPANY We will immediately notify the above-named employ- ees, 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, Room 2407 , Federal Office Building, 550 Main Street, Cincinnati, Ohio 45202 , Telephone 513-684-3686. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE GEORGE L. POWELL, Trial Examiner: The trial of this case took place on May 21, 1970, in the Circuit Court Room of Letcher County, Whitesburg, Kentucky, based upon a com- plaint of the General Counsel issued by the Regional Direc- tor of Region 9 on April 6, 1970. The case arose from a Charge filed by Press Brewer on January 20, 1970, alleging that Respondent, Royal Crown Bottling Company, Inc., had discnminatonly discharged employees Bobby Blanken- ship, Dick Thompson, and Press Brewer on or about No- vember 3 , 1969, in violation of Section 8(a)(1) of the National Labor Relations Act, as amended , herein called the Act, because they engaged in concerted activities for collective bargaining . Respondent's duly filed answer ad- mitted certain allegations of the complaint but denied the commission of any unfair labor practice. At the trial before the Trial Examiner, all parties were present, were represented by counsel, and were afforded full opportunity to be heard, examine and cross-examine wit- nesses, present oral argument, and file briefs . Briefs were filed by Respondent and the General Counsel on June 12, 1970, and June 23, 1970, respectively. On the entire record of evidence , my observation of the witnesses as they testified,' and on due consideration of the briefs, I find, for the reasons hereinafter set forth, that the General Counsel has established by a reponderance of the evidence that Respondent interferelwith the Section 7 rights of and discriminatorily discharged Press Brewer and Dick Thompson in violation of Section 8(a)(1) of the Act, and an appropriate remedy therefor of reinstatement and backpay will be provided herein. I also find that the General Counsel has established by a preponderance of the evidence that Respondent interfered with the Section 7 rights of but did not discriminate against Bobby Blankenship as to his employment, and I will recommend only a cease and desist order as to him. ' Cf Bishop and Malco, Inc, 159 NLRB 1159, 1161 FINDINGS OF FACT AND CONCLUSIONS OF LAW I THE RESPONDENT 355 I find, as admitted by the parties , that Respondent Royal Crown Bottling Company , Inc., a Kentucky Corporation engaged in bottling, selling, and distributing soft dunks at its plant in Whitesburg, Kentucky and its warehouse in Robinson 2 Creek, Kentucky, had within the past calendar year a direct inflow of goods and products into the state valued in excess of $50,000 and is an employeer, within the meaning of Section 2(2) of the Act, engaged in commerce and in operations affecting commerce within the meaning of Section 2(6) and (7) of the Act. A. Respondent's Officials and Agents I find, as admitted by Respondent, that Bradley Bentley is the owner and president of Respondent, that Cecil Lucas is its warehouse manager and that both are agents of Re- spondent and supervisors within the meaning of Section 2(11) of the Act. II THE ALLEGED UNFAIR LABOR PRACTICES A. Background Employees Press Brewer, Dick Thompson, and Bobby Blankenship were all of the soft dunk salesmen employed by Respondent at its warehouse in Robinson Creek, Ken- tucky. They worked on a commission basis of 10 cents per case of 17-ounce cans, 16 cents per case of 10- and 17- ounce bottles, and 19 cents per case of 16- ounce bottles . They had been in Respondents employ for years: Thompson since August 1954 ; Brewer since May 1960; and Blankenship since June 1967. B. The Concerted Activities On or about Monday, October 27 , 1969, these three indi- viduals were told by Warehouse Manager Lucas that case prices for the soft drinks were going up, possibly on Wednesday, October 29, 1969. Case prices were increased on Thursday, October 30, 1969. This raise in prices resulted in a substantial decrease in sales made by each salesman. After a 2-day period of time, the three met and discussed the possibility of asking for an increase in the commission paid in order to keep on the same level of earnings, and later the same day, Saturday, November 1, they asked Lucas for a raise of at least 5 cents more per case . In addition, they asked to meet with President Bradley Bentley and discuss the raise in pay. They again met with Lucas the following day, Sunday, November 2. Lucas told them Bentley said it was too soon to discuss a raise in pay and for them to go back to work and he would work out something . This did not satisfy the three who told Lucas they were not striking or quitting but they wanted to see Bentley. Lucas told them he would "try to contact Mr. Bentley" later the same day and let them know before the next day, Monday , so they would know whether to come to work. C. Blankenship Alone Was Asked to Return to Work About an hour later, Lucas phoned Blankenship at his 2 This is the spelling used in the record and in the General Counsel's brief 356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD home in an attempt to get him to come to work Monday. Blankenship asked if the other two would be at work to discuss a raise and was told they would not be there. Bentley was then put on the phone and he also tried to get Blanken- ship to come to work the next day. Blankenship asked him about a raise in pay and about the other two men. Bentley told him there would be no raise and when Blankenship told him he wouldn't come back without a raise, Bentley termi- nated the conversation. However, before ending the conver- sation, Bentley told Blankenship that he shouldn't hurt himself [by not working], that he [Bentley] had been want- ing to et rid of the other two men for a long time. Then about 4 hours later Lucas called Blankenship again in an effort to get him "to come back to work" on the same old conditions. Blankenship asked about Brewer and Thomp- son and was told "their cutoff slips were already [made out]." When he asked about his own, he was told it would be over during the following week. D. Respondent's Action When Brewer and Thompson reported to the warehouse on Monday, November 3, 1969, they were each given their cutoff slips which told them they were no longer employed by Respondent. Blankenship never got such a notice al- though, as noted above, he had been told he would get one the following week. Lucas credibly testified that he drove the one truck that went out on Monday, taking his night loader with him because he knew some of the route but "couldn't write his name." The above facts are based upon the credited testimony of Blankenship, Thompson, and Brewer. E. Respondent's Explanation Respondent conceded at the trial that the three salesmen were engaged in protected concerted activities with respect to their wage demands but takes the position that none were discharged or dismissed by Respondent. Bentley testified that he prepared cutoff slips for Brewer and Thompson because both men had requested that he do so. Thompson denied requesting a cutoff slip and Brewer could not recall asking for one. F. Conclusions The three soft drink salesmen did engage in protected concerted activity within the meaning of Section 7 of the Act by acting in concert for better wages. They wanted to talk about the raise before resuming work. It is clear from the record that Blankenship was repeatedly urged to return to work on Monday, November 3, but refused to do so without Brewer and Thompson and without an opportunity to discuss an increase in their pay or commissions. Respon- dent knew they would not return to work Monday under the same pay. Indeed, Respondent gave cutoff slips to the latter two employees on Monday and Blankenship was told on Sunday night that cutoff slips already had been prepared for Brewer and Thompson and that he would get his the follow- in week. I find that the cutoff slips severed the employment rela- tionship of Respondent to employees Brewer and Thomp- son and were given because of the concerted efforts of the three salesmen not to work until Bentley would discuss a pay raise with them. Whether given involuntarily or volun- tarily it amounted to a discriminatory severance of the em- ployee relationship. If the slips were given upon request of Brewer and Thompson, according to Bentley's version of the facts, the action amounted to a constructive discharge because Bentley knew the employees would not work under the old conditions? If the slips were given involuntarily to Brewer and Thompson the result would be the same al- though the action would amount to an outright discharge. Citation of authority is unnecessary , as it is well known that a constructive discharge or an outright discharge given to employees because they engaged in protected concerted ac- tivities interferes with their rights guaranteed by Section 7 of the Act in violation of Section 8(a)(1) of the Act. The remedy of reinstatement and backpay for this violation will be set out below under the section entitled "Remedy". The case of Blankenship is not the same in all particulars. He was not discharged because of his concerted activities as was the case of Brewer and Thompson . He was urged to return to work and although the conditions of pay remained the same he was never discharged. However, inasmuch as he was told he would receive his cutoff slip during the following week (which he never did receive), this did inter- fere with, restrain, and coerce him in the exercise of the rights guaranteed in Section 7 of the Act and by so doing, Section 8(a)(1) of the Act was violated . Blankenship, in effect, was on strike . He never sought to end his strike against Respondent. The usual remedy of the Board for an interference with, restraint, or coercion of an employee be- cause of the exercise of his right to enggage in protected concerted activity guaranteed in Section 7 of the Act is to order the employer to cease and desist from such actions and post a notice to this effect for the employees. Such a remedy will be devised in the case of Blankenship, Brewer, and Thompson but no reinstatement and backpay award will be made for Blankenship because he continued his employment relationship without severance.' III THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth above in section II, above occurring in connection with Respondent's opera- tions described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. IV. THE REMEDY Having found that Respondent has engaged in unfair labor practices I shall recommend that it cease and desist therefrom and take certain affirmative action to effectuate the policies of the Act. Raving found that Respondent discharged Press Brewer and Dick Thompson in violation of Section 8(axl) of the Act, I will recommend that Respondent offer each of them immediate and full reinstatement to their former or substan- tially equivalent positions, without prejudice to their senior- ity or other rights and privileges , and make each of them whole for any loss of earnings or other benefits he may have 3 Respondent at no time has taken the position that Brewer and Thompson were discharged for cause. 4 I find no merit to argument by General Counsel in its brief that Blanken- ship was discriminatorily refused reinstatement on November 12, 1969, when he telephoned Bentley and presented himself to Lucas at the warehouse following receipt of a letter from the Department of Economic Security of Kentucky, because there is insufficient evidence in the record to sustain the burden of proof of General Counsel as to these facts and their meaning. I credit Lucas' testimony that none of the three ever came back and offered to go back to work . I find none asked for his job back. ROYAL CROWN BOTTLING COMPANY suffered as a result of the discrimination against him, said loss to be computed in accordance with the formula set forth in F. W. Woolworth Company, 90 NLRB 289, and with interest thereon as prescribed in Isis Plumbing & Heating Co., 138 NLRB 716. In view of the nature of the unfair labor practices found herein to have been committed by Respondent, which indi- cate its determination to interfere aggressively with its em- ployees' rights of self-organization, f shall recommend that the Respondent cease and desist, in any manner, from infringing upon rights guaranteed its employees by Section 7 of the Acts Upon the foregoing finding of fact and the entire record in this case, I reach the following: Conclusions of Law 1. Royal Crown Bottling Company, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. By discharging Press Brewer and Dick Thom son on November 3, 1969, and by notifying Bobby Blankenship that he would have a cutoff slip in the following week, because they engaged in concerted action for their mutual aid and protection, and by refusing to put them back to work upon their application Res ondent has interfered with, restrained, and coerced employees in the exercise of rights guaranteed in the Act and has thereby violated Sec- tion 8(a)(1) thereof. 3. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and con- clusions of law, and upon the entire record in this case, it is recommended that Royal Crown Bottling Company, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Threatening employees with the statement that they would receive a cutoff slip when they engage in concerted action for their mutual aid and protection; (b) Discharging employees because they engaged in con- certed action for their mutual aid and protection, and (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self- organization; to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities, except to the extent that such right may be affected by an s N.LR.B v. Entwistle Mfg. Co., 120 F.2d 532 (C.A. 4). 357 agreement requiring membership in a labor organization as a condition ofemployment, as authorized by Section 8(aX3) of the Act as amended. 2. Take the following affirmative action to effectuate the policies of the Act: (a) Offer to Press Brewer and Dick Thompson immediate and full reinstatement to their former position, or to posi- tions substantially equivalent to those which they held im- mediately prior to November 3, 1969, without prejudice to their seniority and other privileges (discharging those hired as their replacements if necessary) and make each of them whole for any loss of wages or other benefits in the manner set forth in the section of the Decision entitled "The Reme- dy.„ (b) Notify Press Brewer and Dick Thompson if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (c) Preserve and, upon request, make available to the Board or its agents, for examination and coping, all payroll records, security payment records, timecards, personnel re- cords and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Recom- mended Order. (d) Post at its place of business in Whitesburg, Kentucky and Robinson Creek, Kentucky, copies of the attached no- tice marked "Appendix."6 Copies of said notice, on forms provided by the Regional Director for Region 9 after being duly signed by its representative, shall be posted by it imme- diately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 9 in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith? IT IS FURTHER RECOMMENDED that the allegations of the com- plaint, insofar as not found violative of the Act in the Deci- sion, be dismissed. 6 In the event no exceptions be filed as provided by Sec 102.46 of the Rules and Regulations of the Board , the findings, conclusions, recommendations, and Recommended Order herein, shall, as provided in Sec 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes In the event that the Board's Order be enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board " shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 7 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 the Respon- dent has taken to comply herewith."