Moisi & Son Trucking, Inc.

198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Moisi & Son Trucking, Inc. and General Truck Drivers, Warehousemen & Helpers, Local No. 235, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen & Helpers of America. Cases 21-CA-9724 and 21-CA-9802 APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government May 30, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On January 11, 1972, Trial Examiner Henry S. Salim issued the attached Decision in this proceed- ing. Thereafter, Respondent filed exceptions and a supporting brief. The General Counsel filed an answering brief in support of the Trial Examiner's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and has decided to affirm the Trial Examiner's rulings, findings,' and conclusions2 and to adopt his recom- mended Order, as herein modified. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Trial Examiner and hereby orders that Moisi & Son Trucking, Inc., Anaheim, Califor- nia, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recommended Order, as herein modified: Substitute the attached notice for the Trial Exam- iner's notice. I In finding an 8(a)(1) violation predicated upon Moist's action in dealing directly with his employees rather than the Union, we do not, contrary to the inference left by the Trial Examiner, base our finding in this regard on his admission to this effect made in the presence of a number of employees at the hearing but rather on the fact that such action admittedly occurred 2 Respondent, as a defense to the 8(a)(5) allegations of the complaint, asserts that the General Counsel failed to establish that the Union ever enjoyed majority status. Once an employer has extended voluntary recognition to a union, however, he will not be heard subsequently to challenge its majority status in an 8(a)(5) proceeding unless he introduces affirmative evidence proving a lack of majority at the time of the recognition agreement No such evidence was adduced by Respondent in this case Although counsel for Respondent was advised at the hearing that the original authorization cards were no longer in existence and was further advised by the Trial Examiner that he had a right to pursue the matter of whether the Union had misrepresented its majority status, he made no effort to offer any affirmative evidence to that effect After a trial at which both sides had the opportunity to present their evidence, a decision has been issued finding that we violated the law and ordering us to post this notice. The National Labor Relations Act gives you, as employees, certain rights, including the right to self-organization and to bargain collectively through a representative of your own choosing. Accordingly, we give you these assurances: WE WILL bargain, upon request, with General Truck Drivers, Warehousemen & Helpers, Local Union No. 235, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Help- ers of America, as the exclusive bargaining representative of all employees in the unit described below and embody in a signed agree- ment any understanding reached. The bargaining unit is: All our employees excluding mechanics, office clerical employees, professional em- ployees, and supervisors as defined in the Act. WE WILL reinstate Michael J. Shannon to his former position without loss of seniority or other rights and privileges and will pay him for any loss of wages he suffered as a result of the discrimina- tion which has been found that we practiced against him, with interest thereon at 6 percent. WE WILL NOT discharge or otherwise discrimi- nate against our employees because they join or assist General Truck Drivers, Warehousemen & Helpers, Local Union No. 235, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen & Helpers of America, or any other labor organization. WE WILL NOT ask you any questions about your union membership, sympathies, or activities. WE WILL NOT discuss contract terms, pay, or working conditions with our employees without first discussing them with the Union. WE WILL respect your rights to self-organiza tion, to form, join, assist any labor organization, to bargain collectively about terms and condi- tions of employment through General Truck Drivers, Warehousemen & Helpers, Local Union No. 235, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of Ameri- ca, or any other representative of your own choosing, and to engage in other concerted 197 NLRB No. 28 MOISI & SON TRUCKING, INC. 199 activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. WE WILL NOT interfere with, restrain, or coerce you in the exercise of these rights. All of our employees are free to become or remain, or to refrain from becoming or remaining, members of General Truck Drivers, Warehousemen & Help- ers, Local Union No. 235, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America. MOISI & SON TRUCKING, INC. (Employer) Dated By (Representative) (Title) We will notify immediately the above-named indi- vidual, 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, Eastern Columbia Building, 849 South Broadway, Los Angeles, California 90014, Telephone 213-688-5200. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE HENRY S. SAHM, Trial Examiner: This case was heard at Los Angeles, California, commencing on June 10, and concluding on June 16, 1971. The charges were filed by the Union on December 30, 1970, and February 4, 1971, and the consolidated complaint was issued on March 30, 1971. The primary issues are whether the Company, the Respondent, during an organizational campaign, violated Section 8(a)(1) by unlawfully interrogating its employees, engaging in surveillance, and discriminatorily discharging two union supporters in violation of Section 8(a)(3) of the Act. Also, it is alleged that Respondent refused to bargain I In resolving the disputed issues, where no mention is made of certain evidence introduced by the parties, it is not because consideration was not given to such evidence but rather because it is regarded as immaterial to deciding the salient issues in this proceeding 2 The testimony concerning some of the incidents involved in this proceeding, particularly the dates and chronological sequence which led up to the institution of a charge, are contradictory, ambiguous, and incomplete as to specific details so that findings of fact and resolutions of credibility made herein result from an attempt to reconcile the evidence in determining what occurred and when In attempting to supply coherence to those in good faith by circumventing the Union, which had been designated by the employees as their duly authorized bargaining representative, and negotiating directly with the employees, thereby violating Section 8(a)(5). Briefs were filed by the parties on August 25, 1971. FINDINGS OF FACT1 1. THE BUSINESS OF THE EMPLOYER AND THE LABOR ORGANIZATION INVOLVED Respondent, a California corporation located in Ana- heim, California, is engaged in hauling goods and products by truck within the State of California. It employs nine full-time and two part-time drivers. This company annual- ly performs services valued in excess of $50,000 for customers located in California, each of whom, in turn, annually purchases or sells to persons located outside California goods, products, and/or services valued in excess of $50,000. It is found Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that the Charging Party, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Background2 On October 28, 1970,3 Respondent Company's president, Joseph Moisi, and the Union's secretary-treasurer, Kelly Drake, had lunch together. In the course of this luncheon meeting, Drake represented to Moisi that he had obtained a sufficient number of signed union authorization cards from the employees designating the Union as their collective-bargaining agent, whereupon Drake requested Moisi to recognize the Union with a view to beginning negotiations.4 When Moisi asked Drake to show him the signed authorization cards, Drake, according to Moisi, declined, stating it was not the practice of the Union to do so and besides, added Drake, Moisi knew him long enough to trust him, to which Moisi agreed, asking Drake, "What do we do?" Drake, however, testified on his cross-examina- tion that Moisi never requested that he be shown the signed cards but that Moisi told him if the drivers wanted the Union, he would "recognize and negotiate a contract In answer to Moisi's question, "What do we do?" Drake told Moisi it would be necessary, in order to avoid holding the Board representation hearing scheduled for November 2, that Moisi write a letter to the Union recognizing it, to which Moisi agreed. See Respondent's Exhibit 12, which is notes taken by Moisi at this October 28 luncheon meeting that read: "We will recognize Local 235, Teamsters as our sole bargaining unit." On October statements and acts which are ambiguous , necessary recourse has been made to the context of other facts and circumstances in an effort to determine what was meant or occurred 3 All dates mentioned herein occurred in 1970, unless otherwise stated 4 It appears that from 1964 to 1967 Moist & Son Trucking Company was a party to a collective-bargaining agreement with Teamsters Local 235, which contract expired on July I, 1967 The instant proceeding arose as a consequence of union organizational activity commencing at Respondent's trucking operation sometime in September or October 1970. O 200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 29, Moisi sent a letter to Drake which reads as follows (G.C. Exh. 2): Confirming our meeting of October 28, 1970, I wish to take this opportunity in again thanking you for your most prompt and courteous attention relating to our matter which apparently is resolved. Feel assured that our warm relationship as well as cooperation will continue with Local 235 Teamsters, and also that I will adhere to any and all requests made of us as we have done in the past. Ken Gaddis, business representative for the Union, was told by both his superiors and the union attorney that the letter which Moisi sent was not correctly worded to confer recognition and that he should so advise Moisi. However, Moist was not available so Gaddis notified Stenton Baxter, who is an official of the Respondent and a supervisor within the meaning of Section 2(11) of the Act, that the letter was not acceptable, whereupon another letter was prepared.5 This letter, dated October 30, and signed: ,"Joseph Moisi, President, by Stenton Baxter," reads as follows: Confirming our meeting of October 28, 1970, I wish to take this opportunity in again thanking you for your most prompt and courteous attention relating to our matter which apparently is resolved. We also hereby agree to recognize Local 235 as exclusive Bargaining Agent for our drivers. A petition which had been filed by the Union for a representation election among Respondent's truckdrivers, pursuant to which a hearing was scheduled for November 2, 1970, was withdrawn by the Union on October 28 (Case 21-RC-11965) and approved by the Regional Director on October 30, 1970. Baxter, however, testified that it was he who prepared the October 30 letter (G.C. Exh. 3), and that he read it over the telephone to Moist, who was in San Francisco. Moisi, according to Baxter, then gave Baxter his approval of the contents of the letter and authorized Baxter to sign it on his behalf. Moisi emphasized, in his testimony, that he authorized the letter on the representation of the Union officials that the purpose of this letter was "to keep another union out." Drake denied Moisi was ever told this. Drake on his cross-examination testified that Moisi was told that this letter "had to be either signed that day or Joe Moisi had to appear at the Board the following Monday [November 2] for a hearing." Drake testified that about November 3 he saw Moist at his office, gave him a copy of the Union's contract proposals, and asked him to consider them. On cross- examination, Drake testified that some of Moisi's drivers 5 On cross-examination, Drake testified he dictated the letter (G C. Exh. 3) and sent it to Moist who then had it typed 6 Drake identified the Respondent Company's drivers who told him this as Shannon, Fulkerson, Hartman, and Lamar He also testified that from the time the Union filed the representation petition until the charge issued, he talked to Shannon perhaps 5 to 10 times about the "Moist situation." 7 On cross-examination, Drake admitted Shannon had previously given him a copy of this agreement and that he had learned "several" of the drivers who had signed Moist's proposed "schedule of rates of pay" had also signed union cards 8 On cross-examination, Drake testified he told Moist, when he was shown the "schedule of rates of pay," "This is not a legal document and that he had no right to negotiate a contract and that we were the bargaining unit had assisted him in drafting these proposals. Later the same week, Moisi, according to Drake, told him "that he couldn't live with that type of contract." Drake continued that, in the middle of November, he and Moisi met, again considered the Union's proposals, and agreed on several smaller items, such as health and welfare insurance. Drake testified that "around the middle of November" he heard from some of Moisi's drivers that an agreement had been executed between Moisi and his drivers,6 whereupon Drake went to Moisi's place of business and Moisi showed him "the agreement signed by the drivers" 7 which, Drake testified, he then told Moisi "was not a legal document, because we were the bargaining agent, and we would do the negotiating.8 He [Moisi] said, `This is what they wanted . . . and this is what he would have to live with.' " At this last meeting, which was held about December 20, Drake testified Moisi suggested an election be held to which Drake replied that was not feasible as the Union had already been recognized by Moisi. No further meetings, were held between Moisi and Drake. A charge was filed by the Union with the Board on December 30, 1970. Regarding the "agreement signed by the drivers" which Moisi referred to above, Michael Shannon, a truckdriver for Moisi, testified he told Baxter, about the first week in November 1970, that he wanted to contact the drivers in order for them to work out initial contract proposals to be submitted by them to the Union for the purpose of having the Union, in turn, submit these proposals to Moisi. Baxter refused to furnish Shannon with the telephone numbers of the drivers, but he agreed to notify them of the meeting, which he did. (See below.) On November 14,9 the employees met in Moisi's office. Shannon testified that as he was going into the meeting, Baxter stopped him and handed him a paper listing proposed "rates of pay," stating that if the employees were to present these suggested wage scales to Moisi, "I know he will agree to them." 10 When the meeting began, no agreement was reached among the employees present with respect to the wage proposals submitted by Baxter to Shannon. The drivers then invited Moisi and Baxter into their meeting. Shannon, who was designated the drivers' spokesman, told Moisi that the wage proposals, which Baxter had handed him as he was going into the meeting, were not satisfactory. Moist disparaged the Union , stating there was no need for a union as he operated a family-type business, and he asked the employees whether they would accept the wage proposals presented to them by Baxter or whether they preferred the Union.11 Moisi also informed the drivers that if they wanted the Union, he would agree [sic], and that we would negotiate the contracts " 9 G.C. Exh 5, which are the wage proposals Baxter gave Shannon as he was entering the employees meeting, is dated November 14, 1970. It is, therefore, found the meeting was held on November 14, as it is uncontradicted that this proposal was given to Shannon as he entered the employees meeting which Moist later attended. 19 Shannon testified Baxter had told him , "he would type up a list of things that he thought Mr. Moist would agree to . ." See G. C Exh 5, dated November 14, 1970, which is the proposed wage rates Baxter testified he drafted Baxter's testimony that G. C Exh 5 was prepared by him at the request of the employees is not credited. 11 Robert Hartmann, an employee, credibly testified that at the employees' November 14 meeting, Moist told them "they didn't need the 0 MOISI ,& SON TRUCKING, INC. to sign a contract with the Union, but he would not sign a "national master freight agreement" which provides for an hourly wage rate, as distinguished from a flat rate, for specified hauls, upon which Moisi's proposed wage scale was based. When the November 14 meeting concluded, Moisi treated the employees to lunch at a restaurant. At this time, Moisi requested the employees to contact the Union and tell them they were no longer needed as an agreement had been reached between Moisi and the drivers. A month later, Moisi drafted a proposed agreement dated December 19, 1970, listing a "schedule of rates of pay" that Moisi would agree to pay the dnvers and which Moisi and Baxter requested them to sign. Eight signatures appear on this paper. See General Counsel's Exhibit 4.12 Baxter testified that as each of the employees came into the office in the course of their duties, he asked them to read this proposal, and if the proposed wage scale was acceptable to them, to sign it, but that -he in no way "influenced" them as to whether or not they should sign it. In Respondent's presentation of its case, its first witness was Stenton Baxter, who is a supervisor within the meaning of Section 2(11) of the Act. He testified that when the letter of October 30, 1970, (G.C. Exh. 3) was signed by him on behalf and with the approval of Moisi, that he expressly forewarned Union Officials Gaddis and Rafferty that: We were not agreeing to negotiate or anything else. We were only recognizing them to prevent any Union from coming in here . . . [Moisi] authorized me to sign the letter, with the understanding that it was only to prevent any other union from coming in and it was not a negotiating letter, or a bargaining letter of any sort. It was only that we recognized the Union. On his cross-examination, with respect to the circum- stances under which Moist authorized him to sign the letter of October 30 (G.C. Exh. 3), Baxter testified: And he [Moisi] gave me authorization to sign it, with the understanding that it was only recognition-the Union as a union, and not holding to a binding bargaining unit. Baxter went on to explain that Gaddis, the union official, assured him at the time the letter was signed "that this wasn't an agreement that was binding, and it was only to prevent some other union from coming in and trying to organize our yard, and then be able to talk with Joe [Moisi ] later on and discuss a bargaining deal . . . negotiations later . . . As long as they had this letter, they said it fulfilled their requirements. It would stop some sort of a hearing . . . They [the union officials] made the statement that they would get in touch with Mr. Moisi to make arrangements for any further negotiations, if any would be made." Baxter's testimony, on his cross-examination, is con- fused, contradictory, incoherent, and unworthy of belief with respect to what occurred on October 30 when he Union" and that they could "get together" among themselves and "settle all the differences" and that "we didn't need the Union to do this for us." 12 Baxter testified he "generally" did the company typing, and that he had typed G C Exh 4 At another part of the record, however, he denied ever typing G C Exh 4 At still another point in his testimony, on cross- examination, he inconsistently testified that he typed G C Exh. 5 (which is similar to G C Exh 4) at the request of the employees, but he then testified 201 signed on behalf of Moisi, the letter dated October 30, 1970, "agreeing to recognize Local 235 as exclusive Bargaining Agent for our drivers." He testified that the letter sent to the Union on October 29, 1970, (G.C. Exh. 2) was typed on stationery he did not recognize, as Respon- dent Company had no "printed" stationery, although he testified he "generally" did the typing for the Company. Baxter also testified incoherently that when he read the letter of October 30, 1970, (G.C. Exh. 3) to Moisi over the telephone for his approval, Moisi said, "he could not get along with the letter the way it was written, and he would go along with it to keep any other Union out." At other points in his testimony, Baxter was confused as to whether it was General Counsel's Exhibit 2 or 3 that he had read to Moisi on October 30 when he telephoned Moisi in San Francisco to ascertain whether Moisi would approve of Baxter's signing the letter. Baxter testified cryptically as follows: I told Joe [Moisi] on the telephone, and he said, "Absolutely not," and he authorized the writing of that letter to be disputed .... In this form the Union didn't want it, no. When Baxter was asked on his cross-examination if he asked Moisi to sign the letter, Baxter answered: No, I did not. It was with the understanding that the letter-that we were recognizing them only as a Union, and not as a bargaining agent. Joseph Montoya, a witness called by the Respondent, described himself as a court interpreter who also did collection work and assisted Moisi in clerical duties associated with the running of Moisi's office. Montoya testified that it was he who arranged to have typed the "agreement of recognition" (G.C. Exh. 3). Montoya testified that when this letter was handed to Gaddis, the union official, on October 30, Gaddis telephoned his office and his superiors advised him the letter was acceptable, which information he relayed to Baxter and Montoya. Montoya's testimony continues that Gaddis and Rafferty, the union officials, "made mention of the fact that this was merely a recognition for them to keep another Union from coming in to the Moisi Trucking Company and that they could not allow anybody else to come in." On cross-examination, Montoya testified that at his suggestion, Joseph Moisi employed Attorney Joseph Genovese to draft General Counsel's Exhibit 2, above.13 When this letter was not acceptable to Moisi, testified Montoya, he was asked by Baxter, on a date he could not fix, to redraft it. Later in his testimony, he confusingly stated it was Moisi who told him the letter was unaccepta- ble because "he didn't agree to-I believe it was the last paragraph, where it obviously must have been something that he didn't agree to, because of either a binding factor or things that he didn't want to sign to." Then Montoya again changed his testimony, stating the letter was not acceptable to the Union and that Moisi asked him to have Attorney elsewhere in the record that he did not type G.C Exh. 5 His testimony that he typed G C Exh 5 at the request of the dnvers who asked him to leave it in the office "for those employees who wished to sign it" is not credited as it is found he typed it with Moisi's knowledge and approval 13 At another point in his cross-examination, Montoya testified as follows "General Counsel' s 2 is one that was looked at and approved by Mr Genovese," but he later stated that this letter was written by Genovese 202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Genovese revise the letter, but Montoya was unable to recall what Moisi's instructions were as to how he wished this letter to be revised. When Counsel pressed him for an answer, he stated, "Well, the purpose of the letter would be . . . to recognize Local 235 only for the reason to not allow another Union to come into the yard . . . Only for recognition to that point-where another Union would not be allowed to come in . . . . That was very specifically what [Moisi] wanted." However, Montoya again contra- dicted himself later when he testified that Baxter was the author of General Counsel's Exhibit 3 and that he [Montoya] had it typed and later stated he does not know who drafted General Counsel's Exhibit 3. Montoya's testimony is not credited. See below. Joseph A. Moisi, president of Respondent Company, testified that when the contract, which he executed with the Union herein in 1964, expired in 1967, Kelly Drake, the Union's secretary-treasurer, requested him to renew it, but he refused to accede to Drake's request. When Moisi received a copy of the Union's petition for a representation election notifying him that a hearing was scheduled before the Board on November 2, 1970, he telephoned Drake and arranged to meet with him on October 28. Moisi testified that Drake said to him at this meeting: You know, Joe, we sure got to get together on this, and we have been talking about it a long time-about some kind of agreement-and we got to get one made up and get going on it I then said to him that that was fine, and then he said okay And I asked him what all this was with the NLRB. He said-and how did he say it? He said, "I have got your drivers signed up on these cards, and we have got to negotiate. I asked him if I could see the cards, and he said no, that that was not the practice. He told me that I knew him long enough to know that he had them, and I said, "All right, Kelly, I have known you long enough. What do we do?" He said that he had to have a letter to stop this hearing, and so I told him all right, and that I would get him a letter I asked him what it should say in it, and he said, "Well, tell about the representation, and all that." I told him that I would make one up, and that we would get it over to him. So after that we left. He said, "We have got to have a letter to give to the NLRB to show that we were negotiating on this." I told him that I would get the letter over to him, so that is the way it was left. Moisi testified that it was he who drafted the letter referred to above as General Counsel's Exhibit 2, in response to Drake's request at their October 28 meeting, and that Montoya had it typed. However, Moisi continued that Montoya was "incorrect" when he testified that Attorney Genovese prepared the two letters delivered to the Union on October 29 and 30. Moisi testified that at this October 28 meeting with Drake, he made notes on a napkin as to what Drake wanted him to state in his letter to the Union. The notes made on this napkin read: "We will recognize Local 235 Teamsters as our sole bargaining unit." 14 However, continues Moisi's testimony, he never agreed to recognize the Union as the bargaining agent for his truckdrivers. His reasons for refusing to recognize the Union read as follows: In the first place, I didn't feel that he had all our drivers signed up and I wanted him to show me the proof that he had. And he didn't show it to me. So at the time I felt that by me signing this and giving authority over all our drivers, that I wouldn't be fair with them and I didn't want to do that. So I didn't put it in there. After the Union received his letter (G.C. Exh. 2), Baxter telephoned him in San Francisco, where he was on business, and told him the letter was not acceptable to the Union. Moisi's testimony reads as follows: Well, Mr. Baxter called me on the phone in San Francisco and said that there was a letter that I had drawn up, and it was not satisfactory to the Union. I said-or I asked him what their objection was, and he said, "It doesn't say in there that they can represent over everybody and be the sole representatives, and they want that inserted. I said to him that, well, I didn't want to put that in there, and that is why I purposely left it out. I didn't think at the time that it was timely to put that in. He said that they had to have another letter. I said, "What's really the reason?" ... and he said that they wanted to be the sole bargaining agent in there so as to keep any other union out from coming in there. I said, "That never was no question, Baxter." I said that, "We have always worked with Union 235, and they know what we are doing " And I didn't think that that was necessary. He said that they said that that is what it is for, and I said, "If that is what it is for, then I don't want that in there-that they are the sole bargaining agent." And I mentioned to Baxter about this particularly when he called me in San Francisco because I didn't see where they had the majority of our men. That is why I couldn't sign it. Then I told him that I would be back, and I think that was a Friday. And I told him that I would be back on Monday and I told him that if that was the only reason-that they want to have that letter-was to keep some other union that I would work with them and get something drawn up. And that is the way it was left. Q. Did Mr . Baxter have occasion to call you back again to read the actual language that went in on that piece of paper? And when I talk about "that piece of paper," I mean General Counsel 's Exhibit 3. Let me show it to you. A. Yes, I believe he did call me back on this. I 14 Resp Exit 12 MOISI & SON TRUCKING, INC again told him that everything is good on this letter except that "We hereby agree to recognize Local 235 as the exclusive bargaining agent for our drivers " I told him that we were not in a position to be representing our drivers until we knew that they all wanted the Union in there. He said they got to have it because they didn't want another Union in Moist testified that Baxter did sign General Counsel's Exhibit 3 with his "consent ... under the circumstances that no other union would come in except 235, and this was in order to protect our drivers " Moist's version of the November 14 meeting with, his employees is that they handed him a proposed wage rate scale (G.C Exh. 5) and that he told them, "It wasn't out of reason.15 . . . I believe I dust stated that, here is something that we all understand, and we have been waiting for something from the Union, and now we have something that fits in our program. The boys knew it and I would say it requires negotiation Then I came out and said, `How do you guys feel about the Union9 . . .' And somebody suggested [whose name Moist did not recall] I. `Let's get some agreements on paper straight here.' I said, `Fine.' " When Moist was asked by his attorney on direct examination if he was conscious of the fact that he should have been dealing with the Union and not the employees, his reply was, "No. I felt that I should have been dealing right there with the men." On cross-examination, Moist testified as follows with respect to the October 28 luncheon meeting with Kelly Drake, the union official: I asked him first, and he said he represented the majority-either the majority or all of our employees. And then I asked him, and when I asked him, and he said he did. And then I said, "Fine " And I asked him to see the cards, and he told me that he couldn't do that. I said, "If you have got them fine, if that's all we have got to have." I still don't know today if he had them. Q. You didn't pursue the matter? A. I asked him, and then as I have told you-or testified-another time it was brought up, and I never got proof that he did have them. That was always stuck in my mind.16 Moisi's version of what transpired when Baxter tele- phoned him on October 30, while Moist was in San Francisco, to advise him that the Union was asking for a letter recognizing the Union as the employees' "sole" bargaining agent is as follows. Baxter told me over the telephone . . . that Kelly Drake was there and needed a letter right away. I said I couldn't get down. Baxter said that Kelly [Drake] wanted to be the sole bargaining agent, and not to have some other union come in. I told Baxter fine, if you need something like that to keep the other unions out, we would recognize them.. . 15 It is found this wage proposal was drafted by Baxter with Moisi's knowledge and consent See In 12, above is In an affidavit which Moist gave to a National Labor Relations Board investigator, (G C Exh 10), there is no mention by him of having asked 203 I authorized [Baxter] only after he assured me the two men in the office [Gaddis and Rafferty, union representatives] had assured him that the letter was only going to keep another union out. That is when I authorized him to do it. Moist stated that he had not been approached by any other union to recognize it. Moist was then cross-examined with respect to the November 14 meeting with his employees in his office. He testified that he promised his truckdrivers that he would look into the matter of insurance for them "and we could get them the best insurance we could get," and, he continued, he told them this is the way he liked to settle any problems that his employees might have by having meetings with them "every couple of months." Moist concluded this phase of his testimony by stating that, after his proposed schedule of pay for the truckdrivers was drafted (G. C. Exh. 4), it was placed on the counter in the office and either he or Baxter asked each employee, as he came into the office, to read the proposal and, if they agreed with the rates of pay itemized in the "agreement," to sign it. Moist also testified that when Drake came to his office with respect to negotiating a contract, Baxter gave him a copy of G C Exh. 4 to read, and that Drake commented "it was not right." Moist then testified that he spoke with Drake, subsequent to December 19, 1970, which is the date of G.C. Exh. 4, and he told Drake that he would agree to a union proposal which embodied the same wage scale contained in the "agreement" which eight of his employees had signed 17 B. Discussion and Conclusions with Respect to the 8(a)(5) Allegation The Act imposes a duty to bargain in good faith, upon request, whenever a labor organization has been designat- ed by a majority of employees in an appropriate bargaining unit The employer must recognize and bargain with such an organization whether or not it has been certified by the Board.18 To be sure, an employer labonng under a good- faith doubt as to a union's majority status need not extend recognition. Such a doubt is not present in the case at bar. Nevertheless, in the absence of such a doubt, the employer has no vested right to an election. Furthermore, if an employer knows, independently of authorization cards, that there is no representation dispute, then he must recognize the union. It appears that Respondent's presi- dent, Moist, learned within the times pertinent herein that such was the situation in the proceeding. There are no decisions supporting, or providing for, a conditional recognition of a union by an employer, as Moist asserts when he argues that he was only recognizing the Union for the limited purpose of preventing any other union from representing his employees. Recognition, by definition, must be specific and unequivocal. Here, there was such recognition as evidenced by Moist's explicit and Drake to show him the employees' authorization cards 1' GCExh4 18 United Mine Workers v Arkansas Oak Flooring Co, 351 US 62, N L R B v Philamon Laboratories, Inc, 298 F 2d 176, 179 (C A 2) 204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD specific statement in his letter of October 30, 1970, to the Union in which he wrote: "We also hereby agree to recognize Local 235 as exclusive Bargaining Agent for our drivers." This is recognition. Moreover, Moisi discussed bargaining agreements with union officials. Furthermore, the parol evidence rule does not permit Moist to refute or impugn by oral evidence his signed statement of recogni- tion embodied in his letter of October 30, 1970, to the Union. Firmly supporting this conclusion is the parol evidence rule which cautions that one must fix a person with such expressed consequences as are the reasonable result of his volition.19 Applying this principle to the facts in this case, it is found that Moisi's October 30 letter, which stated he recognized the Union, was recognition for all bargaining purposes and thus conclusive. Finally, Moist's direct negotiations with his employees subsequent to October 30, 1970, after he had already recognized the Union, constituted an unfair labor practice in derogation of Section 8(a)(5) of the Act.20 This is true even though it is assumed that some of the employees indicated that the union be disregarded, which is contrary to the facts found herein, as such actions on the part of his employees did not relieve Moisi from his express commit- ment of recognition because the statute was enacted in the public interest for the protection of the employees' right to collective bargaining and it may not be ignored by the employer even though the employees consent.21 The above conclusions are based on the finding that the Union at no time waived or disclaimed its bargaining rights which the employees had conferred upon it. A waiver of representation rights is not to be lightly inferred in the absence of a clear and unmistakable showing that the waiver occurred.22 Under the circumstances herein revealed, Moist's duty to recognize the Union is clearly apparent, independent of whether Drake, the union official, showed him the employees' authorization cards. Moreover, it is found that Moisi never requested Drake to show him the cards. Accordingly, it is found that by refusing, on and after October 30, 1970, to bargain collectively with the Union, Respondent, Moisi & Son Trucking, Inc., has engaged and is engaging in an unfair labor practice within the meaning of Section 8(a)(5) and (1) of the Act. C. Section 8(a)(3) 1. The alleged unlawful discharge of Shannon23 Michael J. Shannon was initially employed as a truckdriver by the Respondent in June 1970. Shortly after organizational activity began, Shannon was designated by his fellow employees as their spokesman and liaison in dealing with Moist. It is found, contrary to Moisi's denial, 19 See Wigmore on Evidence, sec 2413 at p 39, 3rd Ed 20 Medo Photo Supply Corp v N L R B, 321 U S 678, 683-684 21 Id at 687 22 International News Service, 113 NLRB 1067 See Francis Plating Co, 109 NLRB 35 23 Shannon and Hartman (the latter worked for Respondent until December 10, 1970) impressed the Trial Examiner as credible witnesses Moreover, considerable weight has been placed upon the testimony of Feliciano and Lamar as they were in the employ of the Respondent at the time they testified , as such, they depended on their jobs for their livelihood that Moisi knew Shannon was in the forefront of organizing activities at his trucking yard before he was discharged on November 17, as evidenced by his asking Shannon, in the first week of November, why Shannon wanted the Union. About this same period of time, Shannon and Moisi discussed proposals with respect to what the employees desired as to pay and working conditions. Then too, Baxter, a supervisor, was asked by Shannon in the early part of November for the telephone numbers of the other drivers in order to arrange a meeting for the purpose of discussing wages, benefits, and other demands. Baxter, rather than furnishing Shannon with the drivers' telephone numbers, told Shannon he would call the drivers himself and notify them of the meeting in Moisi's office. Moisi knew of this meeting and the circumstances under which it was arranged as he was called into the meeting by his employees some time after it began.24 Moisi was opposed to the Union. He admitted he asked Shannon in the first week of November what he thought of the Umon and whether he favored the Union. Moisi also acknowledged that he branded Shannon as a "troublemak- er" and told him that his business was a small family operation and that the employees did not need the Umon to represent them. Moist's explanatioil is not credited that, when he called Shannon a "troublemaker," the remark was made in the context of Shannon alienating a customer. Both Feliciano, who is presently employed by Moisi, and Hartman, another driver, corroborated Shannon's testimo- ny when they testified that Moisi had told them Shannon was a "troublemaker," referring to his union actiVity.25 Hartman also testified that Moist asked him in October, " `Why do you guys let a young guy like Mike [Shannon] lead you around by the nose?'. .. and [Moisi ] said, `Well, if you don't think much of the Union, why don't you talk to the other drivers and talk them out of it?' " Moisi admitted he told Feliciano in October that, "We don't need a Umon. We are all happy." Moisi, however, denied he fired Shannon for his union activities, but that he [Shannon] quit, "which was good riddance, because after all, we did have problems with him at different places, and as far as I was concerned he had quit, and that was it." Moisi's denial that he told the employees at their November 14 meeting in his office that he once employed a driver who had tried to organize a union at his place of business and that he was no longer employed by him is not credited. If any doubt exists as to the motivation for Shannon's discharge, it is dispelled by Baxter's cryptic threat to some of the drivers that if any of the employees favored the Union he "will go down the road talking to himself" and his explicit threat to Hartman that the Company would find a'reason to fire any driver who talked but yet testified adversely to their Employer's interests regardless of what consequences might eventuate 24 It is reasonable to assume and so found that Baxter informed Moist of the circumstances under which the employees' meeting was arranged by Shannon and its purpose. 25 Feliciano testified that Moist stated Shannon was a "troublemaker" because "he was trying to get the union in ... " Hartman testified that sometime before November 7, Moist said, "Mike was a troublemaker with the Union." See In. 23 MOISI & SON TRUCKING, INC. for the Union and that they would "lay off" all the drivers and "hire all new drivers." Based upon the facts detailed above and the inherent probabilities of this situation, to ask the question whether Moisi discriminatorily discharged Shannon, is to answer the question because the facts belie Moist's explanation that Shannon quit on November 16, 1970. In fact, when Respondent telephoned the following day asking Shannon to return the keys to the truck he drove, an argument ensued when Shannon arrived at the yard. Shannon's version is that Moisi told him he had quit the day before. When Shannon denied he had quit, emotions ran high and threats were made which eventuated in the police being called and Moisi ordering Shannon off his property. Respondent's efforts to exonerate itself from a finding of unfair labor practices are singularly unimpressive and cast doubt upon the meritoriousness of its defense. It is uncontradicted that both Moisi and Baxter knew of Shannon's union activities. There is direct evidence of Moisi's union animus. This is a situation where Moisi claims Shannon quit as a pretext to conceal his unlawful motivation in an effort tojustify the discrimination against Shannon. In view of the foregoing, it is concluded, contrary to the defense asserted by Respondent, that the discharge of Shannon was, in whole or in substantial part, a reflection of its desire to rid itself of the prime union activist and that the alleged reasons asserted for his termination were spurious and a pretext to cloak its illegal motivation. On the basis of the foregoing and the entire record, including Respondent's coercive conduct and interrogation of its employees, which is found below, and the suggestive circumstances inhering in Shannon's precipitate discharge on November 17, closely following his known union activities, which were the motivating cause for his termination, it is found to be a violation of Section 8(a)(3) of the Act. 2. Fulkerson's discharge Fay Fulkerson worked as a truckdriver for Respondent from September 1970 to January 29, 1971. On or about January 25, 1971, Fulkerson was dispatched to Gonzalez Potato Company in Northern California to pick up a load of potatoes and deliver them to Frito-Lay Company in Los Angeles, Respondent's most important customer, whose account comprises approximately 80 percent of Respon- dent's total business. Respondent's witnesses, Baxter, the dispatcher, and Moisi, owner of Respondent Company, testified that a telephone call was received from an official of the potato company, following Fulkerson's dispatch to Gonzalez, complaining that Fulkerson had finished load- ing the potatoes at 7 p.m. and then stayed at a motel26 and had allowed the truck to remain outdoors overnight in 30 degree temperature with the risk of the potatoes being damaged, and that Fulkerson did not leave for Los Angeles until about 9 a.m.27 On cross-examination, Fulkerson admitted that when he picked up potatoes on other occasions in the past, for delivery to Frito-Lay, that he 26 On cross-examination, Fulkerson acknowledged he slept over I I hours at the motel 27 It appears that if the temperature is below 50 degrees, there is a risk of 205 never stayed overnight in Gonzalez after loading the potatoes into his truck. Also, testified Baxter and Moisi, Fulkerson was 12 to 14 hours late in delivering the load of potatoes to the Frito-Lay Company and, when they arrived there, the potatoes were damaged. Fulkerson was dis- charged by Moisi 3 or 4 days later. Some time after Fulkerson was fired, four charges made by him on company credit cards were received by the Company which were not authorized by Respondent. One charge contracted by Fulkerson was dated March 3, 1971, in the amount of $75.49 for two tires placed on Fulkerson's wife's automobile. Another charge of $33.96, dated February 4, 1971, was for a battery and "STP," both of which were used on Fulkerson's wife's car. A third unauthorized charge of $24.95, dated February 2, 1971, was charged to Respondent's credit card for mechanical services and repairs on Fulkerson's wife's car. The last unauthorized charge of $5, dated March 3, 1971, was contracted for balancing the tires on Fulkerson's wife's car. 3. Conclusions There is no evidence that Fulkerson engaged in union activity other than to sign a union card. When asked by Moisi if he favored the Union, Fulkerson testified on cross- examination that he told Moisi he did not. Nor did he ever tell Moisi that he was either a member of the Union or sympathetic to the Union. Feliciano, a fellow employee, testified that in a conversation he had with Moisi, which he believed to have been in November 1970, Moisi said to him . . that [Fulkerson] was another one of the Union boys that wanted to get the Union in." The General Counsel must show, by a preponderance of the evidence, improper motivation for this 8(a)(3) allega- tion that Fulkerson was discharged by Respondent "because he engaged in union . . . activities . . . and not for cause." This he has not done. On the contrary, the Respondent came forward with affirmative evidence that Fulkerson was discharged "for cause. " 28 Thereupon, the burden of going forward with evidence to show that Fulkerson was discharged for union activities shifted to the General Counsel.29 This burden of proof of antiumon purpose he failed to carry. Fulkerson's conduct in the Frito-Lay potato delivery incident leaves much to be desired. Apart from this incident, it is uncontradicted that on four occasions after his discharge, Fulkerson used Respondent Company's credit card to purchase goods and services for his wife's car amounting to a total of $139.85, which purchases had never been authorized by Respondent. On these facts, it is concluded that Respondent did not discriminatorily discharge Fulkerson within the meaning of Section 8(a)(3) of the Act. It is found, therefore, that the General Counsel has failed to sustain his burden of proving by a preponderance of the evidence that Respon- dent discriminatorily discharged Fulkerson in violation of Section 8(a)(3) of the Act. Accordingly, it shall be recommended that the 8(a)(3) allegation in the complaint with respect to Fulkerson be dismissed. potatoes being spoiled. 28 See Sec. 10(c) of the Act. 29 N LR B v Great Dane Trailers, Inc, 388 U.S. 26, 33-34. 206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD D. Discussion and Conclusions The Alleged Violations of Section 8(a)(1) In determining whether an employer's conduct amounts to interference, restraint , or coercion within the meaning of Section 8(a)(1), the test is not the employer's intent or motive, but whether the conduct reasonably tends to interfere with the free exercise of employee rights guaran- teed by the Act.30 Then, too, on the issue of whether the Respondent violated Section 8(a)(1), consideration has been given not only to its negotiating directly with the employees and thus bypassing the Union after it had recognized the Union on October 30, but also to Moisi's patent union animus, as it is not required that each item of Respondent's conduct be considered separately and apart from all others, but consideration must be given to all such conduct as a whole with a view to drawing inferences reasonably justified by their cumulative probative effect.31 In applying these principles to the facts in this case, it is concluded and found that by the following conduct, the Respondent violated Section 8(a)(1) of the Act as it interfered with, restrained , and coerced the employees in their freedom to choose to be represented by the Union or no union. As the Board declared in Dal-Tex Optical Company, Inc., 137 NLRB 1782 at 1786: "Conduct violative of Section 8(a)(1) is a fortiori, conduct which interferes with the exercise of a free and untrammeled choice in an election . This is so because the test of conduct which may interfere with the `laboratory conditions' for an election is considerably more restrictive than the test of conduct which amounts to interference , restraint, or coercion which violates Section 8(a)(1)." Thus, the employ- ees' election choice, which would have been exercised by the employees in due course, as the Union had filed a petition with the Board to be certified as bargaining representative for Respondent's employees, was interfered with within the meaning of Section 8(a)(l) in the following specified incidents- (I) Moisi suggesting to Hartman in October that he contact his fellow employees and "talk them out" of wanting the Union; (2) During the first week in November, Moisi asked Shannon why he wanted the Union; (3) At the November 14 meeting of Moisi with the employees in his office, he asked each one individually what they thought of the union offer and if they wanted a union; (4) Moisi asked Hartman at the November 14 meeting "about union activities" and "what [he] thought about the Union"; (5) When Moisi admitted that he was right in dealing directly with his employees and not with the Union; (6) Moisi negotiating directly with the employees by offering them a wage proposal which he asked them to sign if it were acceptable to them . See General Counsel's Exhibit 4, (7) Moisi bypassed the Union when he testified that he told the employees at this meeting that he would look into 30 Time-O-Matic, Inc v N L R B , 264 F 2d 96, 99 (C A 7), Neco Electrical Products Corp, 124 NLRB 481-482 31 N L R B v Homedale Tractor Co , 211 F 2d 309, 313 (C A 9), cert the matter of an insurance plan for them , and that he preferred to settle any problems that they might have by having meetings with them "every couple of months." Separate findings as to other instances of alleged specific violations of Section 8(a)(1) are not made as some are embraced within those found above and others merely would be cumulative adverse findings which do not add to the obligations of the order which independently must issue. The same kind of restraining order will issue whether predicated on one or more violations of the same type so that no good purpose would be served by considering each incident separately with a view of determining whether it constitutes a violation . Inasmuch as ample evidence of conduct violative of Section 8(a)(1) has already been found and because further findings of such additional conduct would be cumulative in nature, it is not deemed necessary to consider the legality of these additional incidents.32 There is not a scintilla of probative evidence that Respondent , through Moisi, created the impression of surveillance during October and December 1970 by telling his employees that he was aware of the identity of the individuals who supported the Union as alleged in the complaint. Nor has the allegation in the complaint been proven by a preponderance of the probative evidence that Fay Fulkerson was discnminatonly discharged by Respon- dent. Accordii gly, it is recommended that these two allegations m the complaint be dismissed. CONCLUSIONS OF LAW 1. By interfering with, restraining, and coercing em- ployees in the exercise of rights guaranteed them in Section 7 of the Act, Respondent has engaged in unfair labor practices within the meaning of Section 8 (a)(1) of the Act.33 2. At all times since October 30, 1970, the Union has been the exclusive representative of all the employees for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. 3. By refusing, on and after October 30, 1970, to bargain collectively with the Union , Respondent has engaged and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 4. By unlawfully discharging Michael J . Shannon on November 17, 1970, Respondent engaged in unfair labor practices within the meaning of Section 8 (a)(3) and (1) of the Act. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 6. The allegations in the complaint with respect to unlawful surveillance and the discriminatory discharge of Fay Fulkerson are hereby dismissed. THE REMEDY Having found that Respondent engaged in unfair labor practices as set forth above, it will be recommended that it cease and desist therefrom and take affirmative action denied 348 U S 833, N LR B v Popeil Bros, Inc, 216 F 2d 66,68 (C A 7) 32 Cf Pupillo d/b/a Marie Antoinette Mfg, 193 NLRB No 66 33 See Mary Pupillo d/b/a Marie Antoinette Mfg, supra MOISI & SON TRUCKING, INC found necessary and designed to effectuate the policies of the Act. Having found that Respondent interfered with, coerced, and restrained its employees in the exercise of rights guaranteed by Section 7 of the Act, which the basic purpose of the Act was designed to achieve, it shall be recommended that Respondent be required to cease and desist from in any manner interfering with, restraining, or coercing its employees in the exercise of rights guaranteed them by Section 7 of the Act.34 The remedial purposes of the Act are quite clear. It is aimed, as the Act says, at encouraging the practice and procedure of collective bargaining as a means of resolving labor disputes and of protecting the exercise by workers of full freedom of association, of self-organization, and of negotiating the terms and conditions of their employment or other mutual aid or protection through their freely chosen representa- tives.35 It was the duty of the Respondent to refrain from disturbing the status quo by coercive conduct and to permit the Union to have a free opportunity to increase and retain its membership by legitimate organizational activity and to participate in a free and uncoerced election which would determine whether or not it was the statutory representative.36 In view of the broad range of Respondent's illegal conduct, it will be recommended that Respondent be required to cease and desist from in any manner interfering with, restraining, or coercing its employees in the exercise of rights guaranteed in Section 7 of the Act. Having found that Respondent discriminatorily termi- nated Michael J. Shannon, it will be recommended that it offer to him immediate, full, and unconditional reinstate- ment to his former or substantially equivalent position without prejudice to his seniority or other rights, privileges, and working conditions, dismissing if necessary anyone hired in such job on or after November 17, 1970, and making him whole for any loss of earnings suffered by reason of the discrimination against him by paying to him a sum of money equal to the amount he would have earned from the date of the discrimination against him until such discrimination has been fully eradicated, less his net earnings during the period of such discrimination. Backpay with interest at the rate of 6 percent per annum shall be computed in the manner set forth in F W Woolworth Company, 90 NLRB 289 and Isis Plumbing and Heating Company, 138 NLRB 716. RECOMMENDED ORDER37 Upon the basis of the foregoing findings of fact and conclusions of law and the entire record in the case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, it is recommended that Moist & Son Trucking, Inc., its officers , agents, successors, and assigns, shall: 1. Cease and desist from. 34 N L R B v Entwistle Mfg Co, 120 F 2d 532 (C A 4), California Lingerie, Inc, 129 NLRB 912 35 Republic Steel Corp v NLRB, 311 U S 7, 10, NLRB v Lundy Manufacturing Corp, 316 F 2d 921, 925 (C A 2) 36 International Broadcasting Corp, 99 NLRB 130, 133 11 In the event no exceptions are filed as provided by Sec 102 46 of the 207 (a) Interrogating employees as to their membership in, views about, or activities on behalf of General Truck Drivers, Warehousemen and Helpers, Local Union No. 235, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, or any other labor organization (b) Presenting to, and discussing directly with, employees contract proposals concerning terms and conditions of employment without first presenting such proposals to, or discussing these proposals with, the aforesaid Union. (c) Refusing to bargain collectively and in good faith with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment with the above-named Union as the exclusive collective-bargaining representative of its employees in the following appropriate unit: All of its employees excluding mechanics, office clerical employees, professional employees, and supervisors as defined in the Act. (d) In any other manner interfering with the efforts of the aforesaid labor organization to bargain collectively on behalf of the employees (e) Discouraging membership in General Truck Drivers, Warehousemen & Helpers, Local Union No. 235, Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehouse- men & Helpers of America, or any other labor organiza- tion by discriminatorily discharging any of its employees or discriminating in any other manner with respect to their hire or tenure of employment or any terms or conditions of employment. (f) In any other manner whatsoever interfering with, restraining, or coercing employees in the exercise of their rights under Section 7 of the Act 2. Take the following affirmative actions necessary to effectuate the policies of the Act- (a) Upon request, bargain collectively in good faith with the above-named labor organization as the exclusive representative of the employees in the above-described unit with respect to rates of pay, hours of employment, and other terms and conditions of employment, embodying in a signed agreement any understanding reached. (b) Offer Michael J. Shannon immediate, full, and unconditional reinstatement in his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights, privileges, or working conditions, and make him whole for any loss of earnings that he may have suffered by reason of Respon- dent's discrimination against him, in accordance with the recommendations set forth in this Decision in the section entitled "The Remedy." (c) Notify Michael J. Shannon, if he is 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, following his discharge from the Armed Forces Rules and Regulations of the National Labor Relations Board, the findings, conclusions, 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 208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (d) Preserve and, upon request, make available to the Board or its agents for examination and copying all payroll records, social security payment records, timecards, per- sonnel records and reports, and all other records necessary to analyze the amount of backpay due and rights of employment under the terms of this Decision. (e) Post at its premises in Anaheim, California, copies of the attached notice marked "Appendix."38 [Notice omitted from publication.] Copies of said notice, to be furnished by the Regional Director for Region 21, shall, after being duly 38 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted pursuant to a Judgment of the United States Court of Appeals enforcing an Order of the National Labor Relations Board " signed by Respondent, be posted by it immediately upon receipt thereof, and be maintained by it for a period of 60 consecutive days thereafter in conspicuous places, includ- ing all places where notice 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. (f) Notify the aforesaid Regional Director, in writing, within 20 days from the date of receipt of this Decision, what steps it has taken to comply herewith.39 39 In the event that this recommended Order is adopted by the Board after exceptions have been filed, this provision shall be modified to read "Notify the Regional Director for Region 21, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith "