Dorwood Rental Co.

DORWOOD RENTAL COMPANY Dorwood Rental Company and Max U. Drudge. Case 8-CA-5369 September 25, 1969 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND JENKINS On June 30, 1969, Trial Examiner Gordon J. Myatt issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief.' Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and brief, and the entire record in the case, and hereby adopts the Trial Examiner's findings, conclusions, and recommendations. The Respondent is engaged in the leasing of trucks and drivers for commercial hauling The drivers are hired, compensated, and dispatched by Respondent. Employee Max Drudge was hired by Respondent in October 1968. Drudge was laid off on December 23, 1968, and recalled on January 29, 1969. The ev idence shows that employee Drudge filed a grievance against Respondent, under the existing collective-bargaining agreement between Respondent and Teamsters Local 142, in February 1969, after being recalled from the layoff. The grievance was based on Drudge's belief that he had been laid off out of seniority. The Trial Examiner credited Drudge's testimony that, on February 18, Respondent's president, Floyd Van Gunten, called Drudge into his Toledo office and sought to persuade the employee to withdraw the grievance. When Drudge demurred, Van Gunten said that Drudge would not "he around very long," regardless of the result of the grievance.' Drudge then left the office and hauled a load to Chicago, as assigned. The following day, Drudge called from Chicago for another assignment . He was offered, and refused to take, a load from Chicago to Detroit, for the 'The Respondent's request for oral argument is hereby denied, as the record and brief adequately present the issues and positions of the parties 'The Trial Examiner properly lound that this remark constituted a violation of Sec 8 ( a)(1) of the Act 635 reason that there was no guaranteed return load from Detroit to the Chicago area. In so doing, he explained to Respondent his fear that some delay might occur which would cause him to miss the hearing on the grievance which was scheduled for the next day, February 20, in Gary, Indiana. He therefore told both Floyd Van Gunten and his brother Carl, the company dispatcher and vice president, that he would have to "take the trip off." He also told them, according to his uncontroverted testimony, that he would he ready to work after the hearing. The grievance was denied at the hearing on the following day. Drudge waited in vain the next day, February 21, to hear from Respondent about returning to work. On February 22, knowing that the Van Guntens were angry at him for filing the grievance, Drudge decided to ask his Union business agent to inquire on his behalf why he had not been recalled to work. The business agent made one telephone call to Respondent while Drudge was present, but said that the line was busy. He promised to call until he contacted Respondent.' Drudge did not thereafter hear from or contact Respondent until he received a letter from Respondent, dated February 26, enclosing his final paycheck and stating that Drudge was considered a "voluntary quit" and that his name had been removed from the driver list. Section 6(d) of the collective-bargaining agreement between Respondent and Teamsters Local 142 provides that when an employee is absent for three successive working days "without notification," he may be considered a "voluntary quit" unless he subsequently furnishes a "justifiable excuse" for his absence. From an affidavit which was stipulated into evidence as the testimony of Carl Van Gunten, it is apparent that Respondent harbored resentment against Drudge for the grievance he had filed, and that any opportunity for discharging Drudge under the foregoing provision might well be seised upon by Respondent. Carl Van Gunten stated. in part: If a driver skips a trip I don't automatically wait for him to call. If a driver wouldn't call, I might call to find out where he is at. I didn't call Drudge because I didn't care where he was at. And when he took himself out of service he was obligated to call us. I didn't care where he was at was [sic] because of the grievance thing and because he was agitating the other drivers by talking to them and complaining because he didn't get called back when he claimed he should have. The Trial Examiner found that Respondent terminated Drudge's employment in reprisal for the grievance filed by Drudge, in violation of Section 'Certain testimony relating to the purported subsequent efforts of the Union agent in pursuing this promise was admitted into evidence and will be discussed infra 178 NL RB No. 104 636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 8(a)(1) of the Act. In the course of so finding, the Trial Examiner credited and relied upon the following testimony which, Respondent contends, was improperly admitted into evidence over its objection. In answering a question by Respondent's attorney as to whether, "of your own knowledge," employee Drudge was aware that the Union business agent had contacted the Respondent prior to the letter of termination, Drudge replied, "That's right, he told me to come back the next day and he said he had contacted [the Respondent]." The Trial Examiner overruled Respondent's motion to strike the latter part of this answer, holding that the whole answer was responsive to the question. As noted, the Trial Examiner relied on this answer in his Decision, for the purpose of finding that Respondent thus knew, prior to the time that Drudge was discharged, that he was available for return to duty. From this finding, the Trial Examiner drew some support for his conclusion that Drudge's discharge was not, in fact, based on the asserted failure to hear from Drudge for several days after the grievance hearing, but was rather motivated by Respondent's displeasure over the grievance earlier filed by Drudge. We agree with Respondent's contentions that the final part of Drudge's answer was not responsive to the question and that the hearsay reference to the union representative's alleged contact with Respondent about Drudge's availability for work does not probatively establish that there was such contact. Nonetheless, after considering the other evidence of record, we believe that the Trial Examiner properly concluded that Drudge was discharged because he had filed a grievance under the collective-bargaining agreement. When Drudge notified Respondent that he wanted "to take the trip off" on February 19 so that he could be sure to attend the grievance hearing on February 20, he also told the Van Gunten brothers that he would be available to work the day after the hearing. His uncontradicted testimony to this effect is apparently reflected in the Trial Examiner's finding that " ... Respondent fully understood that Drudge had only removed himself from service for the purpose of the single trip to Detroit on February 19." It is clear, then, that, according to both the terms of the collective-bargaining agreement and Respondent's practice thereunder, this was ample "notification" that Drudge was taking himself out of service for only a limited purpose and period and would be ready to work thereafter. It is also clear from other testimony of record that, under normal practice, Respondent's dispatcher should then have undertaken to contact Drudge on February 21 and thereafter." Instead, Respondent allowed several days to elapse and then invoked the contractual provision which permitted employers to terminate, as "voluntary quits," employees who missed 3 successive days of work without notice. Taking together the credited testimony that, 2 days before the grievance hearing, Drudge was told by Floyd Van Gunten that he would not be around for very long whether he won or lost the grievance; Drudge's testimony that he expressly stated to the Van Guntens that he would be available for work after the hearing, which constitutes adequate notification; and the admission by Carl Van Gunten in his affidavit that he did not initiate contact with Drudge "because of the grievance thing," although in other circumstances he might have sought out an absent driver, we conclude that Respondent did not invoke the sanctions of the contract because it believed that Drudge had voluntarily absented himself without justification. In our view, the evidence demonstrates that Respondent could have had no doubts about Drudge's availability for work subsequent to the grievance hearing, and further demonstrates that, under Respondent's normal business practice, Drudge, having given notice of his availability, would in any other circumstance have been contacted by Respondent about an assignment. We conclude, therefore, that Drudge was terminated because he filed a grievance, and not because he missed 3 days of work without notification. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner, and hereby orders that Respondent, Dorwood Rental Company, Toledo, Ohio, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as so modified: Add the following as paragraph 2(b), and reletter the following paragraphs accordingly: "(b) Notify the above-named employee if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act, and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces." 'The combined testimony of Floyd Van Gunten and of Respondent's senior driver establishes that when a driver plans to be off for an indeterminate period of time, he takes himself out of service and, when he is again available for duty, he notifies Respondent Once Respondent knows that a driver is available, however, the initiative for daily assignments comes from the dispatcher, who contacts the drivers. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE GORDON J. MYATT, Trial Examiner: Upon a charge filed February 28, 1969,' by Max U. Drudge, an individual, a complaint and notice of hearing was issued by the Regional Director of Region 8 of the National Labor Relations Board on April 9, 1969, against Dorwood 'Unless otherwise specified all dates herein refer to 1969 DORWOOD RENTAL COMPANY 637 Rental Company (hereinafter referred to as the Respondent). The complaint alleges that the Respondent violated Section 8(a)(I) of the Act by threatening Drudge (also referred to herein as the Charging Party) with discharge or other reprisals because he filed and caused a griev ante to be processed against the Respondent through his collective-bargaining representative. Further that the Respondent violated Section 8(a)(3) of the Act by discharging Drudge on or about February 20, 1969, for the same reason and refused and continues to refuse to reinstate him to his former or substantially equivalent position of employment. The Respondent's answer admitted certain allegations contained in the complaint, denied others, and specifically denied the commission of any unfair labor practices. This case was heard before me in Toledo, Ohio, on May 13, 1969. All parties were afforded full opportunity to be heard and to introduce relevant evidence. Briefs were submitted by all parties and they have been fully considered by me in arriving at my decision in this matter. Upon the entire record in these proceedings, including my evaluation of the testimony of the witnesses based upon my observation of their demeanor and upon all of the relevant evidence, 1 make the following: Findings of Fact 1. JURISDICTIONAL FINDINGS The Respondent is an Ohio corporation with its principle office and place of business located in Toledo, Ohio. The Respondent is engaged in the business of leasing trucks, trailers, and automobiles to commercial enterprises. In the course of its business operations, the Respondent annually receives revenue in excess of $50,000 from R-W Service Co., for leased equipment: the latter enterprise being located in Taylor, Michigan, and engaged in commerce within the meaning of the Act. On the basis of the foregoing, I find that the Respondent is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 11. THE LABOR ORG&NIZATION INVOLVED Teamsters Local Union No. 142, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (hereinafter referred to as the Union), is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. 111. THE ALLEGED UNFAIR LABOR PRACTICES On December 23, 1968, Drudge was laid off by the Respondent because of lack of work He was recalled on January 29. When he returned to work Drudge began to make inquiries and determined that a Toledo based driver with less seniority had been working while he was in layoff status. As a result of this information. Drudge filed a grievance with Local No. 142 making a claim for back pay for the 37 days that he was off. This grievance was set for a hearing before a joint board composed of union and trucking officials on February 20. A week prior to February 18, Drudge spoke with Claude Van Gunten' in an attempt to find out why a less senior employee worked while he was on layoff. According to Drudge, Claude Van Gunten told him that the other employee was Toledo based, and that Drudge could draw unemployment compensation while off. During the morning of February 18, Drudge had delivered a load to a customer in Mason, Michigan and called the Toledo office from there for a return load. He was advised by the office girl to return to Toledo empty. When he arrived he was informed that Flovd Van Gunten wanted to speak with him in his office. Drudge asked Van Gunten why he was required to return to the Toledo office without a load as it was costing the Respondent money ' Drudge stated that Van Gunten replied that he was paying the employee and that it was none of his damn business what it cost the Respondent. Van Gunten asked Drudge why he had filed the grievance for backpay, and told the employee that it was his company and no one would tell him how to run his business. Drudge testified that Van Gunten further informed him that he would not pay him for remaining at home and not working and sought to persuade the employee to withdraw the grievance Drudge took the position that he would not withdraw the grievance and that he was willing to let the Union settle the matter, Van Gunten accused the employee of being a "smart s.o.b." and stated that they were not going to get along. He asked Drudge why he didn't find employment elsewhere. According to Drudge, Van Gunten also stated that no matter how the grievance was settled, the employee wouldn't he around very long. Van Gunten testified that Drudge was recalled to Toledo because there was a load for him from that point and the Respondent was uncertain about getting a load out of Detroit In addition, he stated that the truck had to he brought in for a regular maintenance. Van Gunten admitted speaking to Drudge in his office about the grievance. He stated that he simply informed the employee that he was making a mistake and suggested that he give the matter another thought. When Drudge indicated that he intended to go through with the grievance hearing, Van Gunten testified that he told the employee that it was his privilege as a union member. He Drudge was hired as a road driver by the Respondent on October 10, 1968. He was interviewed and hired by Floyd Van Gunten, Respondent's president. At the time he was hired, Drudge was a member of a Chicago local of the Teamsters Union. At the request of Van Gunten he transferred to Local 142 in Gary, Indiana. The Respondent hauled freight between Illinois, Indiana, Ohio, and Michigan. The drivers were based in Chicago, Toledo, Detroit, and Kalamazoo areas, and they were members of different locals of the Teamsters Union.' 'The Chicago based drivers belonged to the Gary local, the Toledo based drivers belonged to a Toledo local and the other drivers belonged to locals in Michigan 'Claude Van Gunten was a stockholder and vice president of the Respondent's company He was the dispatcher and assigned the drivers to the loads which they were to haul He was also the individual called by the drivers if they encountered any difficulty in carrying out their duties The Respondent contends that Claude Van Gunten was not an agent or a supervisor within the meaning of the Act, but I find this position to be without merit . Not only was Claude Van Gunten a shareholder and officer in the Respondent's company, but it is clear in his capacity as dispatcher. he also responsibly directed the drivers in the performance of their dutes For this reason I find that Claude Van Gunten was a supervisor as alleged in the complaint within the meaning of Sec 2(l 1) of'the Act 'According to the testimony of Floyd Van Gunten and the affidavit of Claude, which is in evidence, Drudge was required to return to Toledo in order to have his truck serviced in accordance with the regular maintenance schedule 638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD denied telling Drudge that no one would tell him how to spend his money or calling the employee a "smart s.o b He also denied making the statement that Drudge would not be around very long regardless of the outcome of the giievance hearing. Van Gunten did acknowledge, however, that he possibly could have asked Drudge it he didn't like it there vvhy he didn't work elsewhere? On the basis of my observation of these witnesses. I am persuaded that Drudge's testimony gives the more accurate account of what was stated during this conversation. Van Gunten impressed me as making a determined eflort to portray himself as a neutral concerning the grievance and magnanimous in his approach to Drudge My observation of this witness while testifying persuades that he did not till either role during the conversation with Drudge I. therefore, discredit his testimony where it conflicts with the testimony of Drudge. Later that same day Drudge was dispatched with a load to Chicago. While in route he suffered mechanical difficulty with his equipment on two occasions About 20 miles from Toledo he had trouble with his brakes. He stated he called Toledo and requested a mechanic but was told that one could not he dispatched for about an hour. Drudge testified that he succeeded in fixing his brakes and continued on when he had difficulty with his lights He also repaired this defect and proceeded to Chesterton, Indiana where he lived. He arrived there somewhere between midnight and I a.m.` Drudge delivered the load the following morning (February 19) and went to a truck stop in Chicago The truck stop was used by Respondent's drivers to receiv e calls or assignments from the Toledo office When Drudge called in he spoke with Claude Van Gunten and was informed that the Respondent had a load for him to take out of the Chicago area to Detroit. Ile was also told that they couldn't guarantee him a return load to Chicago so that he would be available for the grievance meeting at the union hall at II a.m the next day. Van Gunten told Drudge, however. that the Respondent would pay his bus fare back to Gary if they could not get him a return load. Drudge stated that he would have to consider the matter and that he would call back After talking with the union business agent, Drudge called Van Gunten and stated that he was not familiar with the bus schedules and he did not want to take a chance on missing the grievance hearing lie told Van Gunten that he wanted to "take the trip off", During the conversation, Floyd Van Gunten got on the line and assured Drudge that the Respondent would pay his transportation back it he didn't have a return load. 1-loyd also reminded Drudge that the Respondent would have to fly a driver to Chicago to take the tractor out if he did not accept the trip. Drudge nevertheless removed himself from duty in order to be available for the hearing the following morning. 'Floyd Van Gunten had testified that he had no knowledge of Drudge's mechanical difficulty with the equipment until he heard Drudge testify at the trial He also stated that drivers were instructed to report difficulty to the office and also required to note the time spent repairing equipment while on the road on their logsheets . The Respondent introduced into evidence Drudge's logsheet for that day which indicated that he left Toledo, Ohio at approximately 4 30 p m. and arrived at Chicago, Illinois at 8 30 p in. that evening This evidence is relevant only as it affects the credibility of Drudge Drudge testified that he had placed a call to Respondent's office when his brakes Failed, and that he did not mark his logsheet to indicate the breakdown because every time he did so in the past he was "chewed out" by the Respondent I do not consider the conflict between the testimony and the logsheet to diminish Drudge's credibility in any manner lie appeared to me to be lorthright and candid in his testimony, and I accept his explanation for the discrepancy in the logsheet. The grievance hearing was held in Gary. Indiana, the next day as scheduled Both Drudge and Floyd Van Gunten were present, and the grievance was denied After the hearing Drudge did not contact the Respondent's office in Toledo because he claimed he was aware that Van Gunten was angry and he didn't want to aggravate the feelings any further He waited to receive a call from the Respondent, and when he did not get one the following day he went to the union office and asked the business representative to contact the Respondent to find out why he had not been called hack to work The business representative was unable to get through at that time and Drudge left with the understanding that he would try to do so later. Drudge testified on cross-examination that the business representative told him the following day that he had contacted the Respondent concerning Drudge's availability. On February 28, Drudge received a letter from the Respondent dated February 26, containing his final paycheck and stating that Drudge was considered a `'voluntary quit" because he took himself out of service on February 19 and had not reported back for duty since that date. Floyd Van Gunten testifed that the Respondent waited 6 days for Drudge to report himsell available for duty, and when he failed to do so he was considered a voluntary quit under the provisions of the collective-bargaining agreement.' In addition, the Respondent called MacAllister as a witness He was the oldest employee in point of service, and testified that it was standard practice for an employee to call the company to advise them of his availability after taking himself out of service. According to MacAllister this procedure was always followed by the employees. Concluding Findings The initial question to be determined in this case is whether Drudge was engaging in protected, concerted activity when he filed a grievance with his bargaining representative claiming pay for the time he was laid off. On the basis of the evidence contained in this record. the answer to this question must he an affirmative one. Drudge's grievance brought into question the Respondent's compliance with the provisions of the collective-bargaining agreement Under the terms of the Master Freight Agreement the last man hired was required to be the first laid off when the work was reduced.' Drudge's claim that the Respondent violated this agreement as it pertained to him was a protected activity because it was "action taken in implementation of the collective-bargaining agreement and was an extension of the concerted activity which gave rise to that agreement." `There was much testimony concerning what this expression meant According to Drudge it simply meant that the driver would not he available for the particular trip John MacAllister, a driver for the Respondent , testified that it meant that the driver was taking himself out of service, and Hoyd Van Gunten testified that it meant that the driver was removing himself from duty There doesn 't seem to he any great distinction between the meanings attached to this phrase beyond the fact that the driver is not available for work at that particular time 'This agreement consisted of the National Master 1•reight Agreement supplemented by a document entitled Uniform Rules and Regulations negotiated between Local 142 and the Indiana Trucking Association. The supplemental document provided as follows concerning attendence Section 6(d) Absent for 3 successive working days without notification. Voluntary quit, unless justifiable excuse is given 'Art 41. sec. 2(b) of the National Master Freight Agreement (Resp Exh 3) DORWOOD RENTAL COMPANY 639 B & M Excavating, Inc, 155 NLRB 1152, 1154. In addition, Drudge's claim that the contract had been violated as to him put into question the Respondent's obedience to the terms of the collective-bargaining agreement and the concerted rights of all employees were at stake Farmers Union Cooperative Marketing Association. 145 NLRB 1, 3. See also Rotax Metals, Inc.. 163 NLRB No. 21. For the reasons cited, I find that Drudge was engaging in protected. concerted activity under Section 7 of the Act when he filed the grievance against the Respondent with his bargaining representative This determination leads to the next issue of whether Drudge was in fact discharged, and if so, was he discharged because he filed and processed the grievance through his union? The Respondent takes the position in his brief that Drudge voluntarily removed himself from service and never complied with the terms of the supplemental agreement by taking the action necessary to return to duty. Thus the Respondent claims it was justified in considering Drudge to have voluntarily quit its employment. At first blush it would appear that this contention should prevail, but deeper consideration of all of the credible evidence in the record dictates a contrary conclusion. When he attempted to persuade Drudge to withdraw the grievance on February 18. Floyd Van Gunten told Drudge that regardless of the outcome of the hearing he would not be around very long. The evidence clearly supports the conclusion that Van Gunten carried out this threat by discharging Drudge on February 26. Although the Respondent interpreted the collective-bargaining agreement to require drivers to call in when they were available after having removed themselves from duty, and although MacAllister testified that all drivers followed this requirement, the evidence shows that the Respondent did not apply this rule to all drivers on all occasions. The affidavit submitted in lieu of testimony by Claude Van Gunten clearly bears out this fact In that document Van Ciunten stated: if a driver skips a trip I don' t automatically wait for him to call If a driver wouldn't (sic) call, I might call to find out where he is at. I didn't call Drudge because I didn't care where he was at And when he look himself out of service he was obligated to call us I didn't care where he was at was [sic] because of the grievance thing and because he was agitating the other drivers by talking to them and complaining because he didn't get called hack when he claimed he should have. [Emphasis supplied ] The statement of Claude Van Gunten gives clear insight into the primary reason underlying the Respondent's failure to contact Drudge as it had contacted other drivers who had removed themselves from service. As stated by Claude Van Gunten, the Respondent's officials did not care where Drudge was "because of the grievance thing". even though the Respondent fully understood that Drudge had only removed himself from service for the purpose of the single trip to Detroit on February 19 Moreover, Drudge testified on cross examination Chat he had been informed by the union representative that the Respondent had been contacted concerning Drudge's availability alter the griev ance hearing.' For the reasons set forth above, I find therefore that Drudge did not voluntarily leave the Respondent's employ, but rather, that he was discharged by the Respondent for processing the grievance through his bargaining agent. Even if the Respondent's claim that its treatment of Drudge comported with the terms of the collective-bargaining agreement is accepted, the evidence clearly shows that the sanctions of the agreement were invoked against Drudge because he elected to question the Respondent's conduct through the grievance procedure. Thus the issue is not whether there was in fact a legitimate reason for discharging Drudge, but rather was his discharge in significant part motivated by an unlawful reason . N.L.R.B. v. D' Armigene, Inc , 353 F.2d 406, 409 (C.A. 2). 1 find that he was terminated for reasons proscribed by the Act. Accordingly, I land that Drudge was discharged for engaging in protected concerted activity which was guaranteed by Section 7 of the Act. and that the Respondent's conduct not only interfered with the exercise of this statutory right but also had the inherent effect of coercing and restraining its exercise by other employees. B & M Excavating. Inc , supra, Rotax Metals, Inc , supra. The General Counsel contends that the Respondent violated both Section 8(a)(1) and (3) of the Act by discharging Drudge. Because the remedy appropriate for discharge in violation of' Section 8(a)(1) of the Act provides, for all practical purposes, the same relief as the remedy based on a violation of Section 8(a)(3), I find it unnecessary to reach nor do I pass upon the question of whether the Respondent, by the same conduct, also violated Section 8(a)(3) of the Act ,4 S Ilubbs, An Individual, d/b/a A. S Hubbs Contracting, 163 NLRB No. 42; Anaconda Aluminum , 160 NLRB No 35. CONCLUSIONS OF LAW 1. I)orwood Rental Company, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Teamster Local Union No. 142, International Brotherhood of Teamsters, Chaffeurs. Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act 3. By threatening to discharge employee Max Drudge on February 18, 1969, and by discharging this employee on February 26, 1969 because he engaged in protected concerted activities under the Act, the Respondent has interfered with, restrained, and coerced employees in the exercise of rights guaranteed in Section 7 of the Act, and has thereby engaged in unfair labor practices within the meaning of Section 8(a)(l) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. Tick. REMEDY Having found that the Respondent has engaged in and is engaging in as certain unfair labor practices. I shall recommend the issuance of an order that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. Having found that the Respondent illegally discharged Max 'Although Floyd Van Gunten denied having been contacted by anyone concerning Drudge's availability, I do not credit this denial While it would have, been infinitely easier to resolve this particular point had the General Counsel produced the union representative , I nonetheless find that Drudge's statement that he had authorved the business agent to contact the Respondent and subsequently on cross examination that the contact in fact had been made is credible and worthy of belief. 640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Drudge for engaging in protected activities, I shall recommend that the Respondent offer him full and immediate reinstatement to his former or to a substantially equivalent position without prejudice to his seniority and other rights and privileges and make him whole for any loss of' earnings suffered by reason of the unlawful discharge In making Drudge whole, the Respondent shall pay him a sum of money equal to that which he would have earned as wages from the date of said unlawful discharge to the date of the offer of reinstatement, less any net earnings during said period. Backpay shall be computed on a quarterly basis in a manner consistent with the Board policy described in F. W. Woolworth Company, 90 NLRB 289, with interest thereon at 6 percent per annum computed in the manner set forth in ISIS Plumbing & Heating Co., 138 NLRB 716. I shall also recommend that the Respondent preserve and make available to the Board or its agents, upon reasonable request all pertinent records and data necessary to analyze and calculate the amount of backpay due, if any Accordingly, upon the foregoing findings of fact and conclusions of law, and upon the entire record in this case, and pursuant to Section 10(c) of the Act, I hereby make the following RECOMMENDED ORDER The Respondent Dorwood Rental Company, its officers, agents, successors, and assigns, shall 1. Cease and desist from: (a) Threatening employees with discharge if they refuse to withdraw grievances filed with their collective-bargaining representative. (b) Discharging or otherwise discriminating against any employee in regard to hire or tenure of employment or any term or condition of employment for engaging in any activity protected by Section 7 of the National Labor Relations Act. (c) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, except to the extent that those rights may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a)(3) of the Act 2. Take the following affirmative action which is designed to effectuate the policies of the Act: (a) Offer Max Drudge immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority or other rights and privileges previously enjoyed by him, and make him whole for any loss of pay suffered by reason of his discriminatory discharge in the manner set forth in this section of this decision entitled "The Remedy." (b) Post at its Toledo, Ohio place of' business copies of the attached notice marked "Appendix.""' Copies of said notice, on forms provided by the Regional Director for Region 8, after having been duly signed by the official representative of the Respondent. shall be posted immediately upon receipt thereof, and shall be maintained for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. "In the event that this Recommended Order is adopted by the Board, (c) Notify the Regional Director for Region 8, in writing, within 20 days from the receipt of this Decision, what steps the Respondent has taken to comply herewith." the words "a Decision and Order " shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice. If the Board s Order is enforced by a decree by a United States Court of Appeals, the notice shall be further amended by the substitution of the words "a Decree of the United States Court of Appeals Enforcing an Order" for the words "A Decision and Order ' "In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify the Regional Director for Region 7, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith " APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: This notice is posted pursuant to the Recommended Order of the Trial Examiner issued after a trial in which both sides had the opportunity to present evidence. The Trial Examiner found that we violated the National Labor Relations Act and has ordered us to inform our employees of their rights. The Act gives all employees these rights. To organize themselves to form, join, or help unions, to bargain as a group through representatives of their own choosing, to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, to refuse to do any or all of these things. We assure all of our employees that: WE WILL NOT discharge or otherwise discriminate against any employee in regard to hire or tenure of employment or any term or condition of employment because he has engaged in any concerted activity protected by Section 7 of the National Labor Relations Act. WF WILL NOT in any like or related manner interfere with, restrain, or coerce our employees because they filed grievances with their union representative or because they exercise the rights guaranteed in Section 7 of the National Labor Relations Act, as amended, except to the extent that those rights may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a)(3) of the Act Wu wilt. offer Max Drudge immediate and full reinstatement and will make him whole, for any loss of pay he may have suffered by reason of the discrimination against him. DORWOOD RENTAL COMPANY (Employer) Dated By (Representative) (Title) Note- Notify the above-named employee if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military DORWOOD RENTAL COMPANY 641 Training Service Act, as amended, after discharge from If employees have any question concerning this notice the Armed Forces or compliance with its provisions, they may communicate This notice must remain posted for 60 consecutive days directly with the Board's Regional Office, Federal Office from the date of posting and must not be altered, defaced. Building, Room 1695, 1240 East Ninth Street, Cleveland, or covered by any other material. Ohio 44199, Telephone 216-522-3715.