Commerce Concrete Co., Inc.

658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Commerce Concrete Company, Inc. and General Drivers and Helpers, Local No. 823, affiliated with International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America. Case 16-CA-45061 June 16, 1972 DECISION 'AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO On May 8, 1972, Trial Examiner George Turitz issued the attached Decision in this proceeding. Thereafter, the Respondent filed exceptions 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 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 brief and has decided to affirm the Trial Examiner's rulings, findings, and conclusions and to adopt his recommended Order. 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 Respondent, Commerce Concrete Company, Inc., Miami, Oklahoma, its officers, agents, succes- sors, and assigns, shall take the action set forth in the Trial Examiner's recommended Order. I The instant case was consolidated by the Regional Director with Case 16-RC-5800 in which an election was conducted pursuant to an agreement for consent election, for the purpose of heanng, ruling, and decision by the Trial Examiner Case 16-RC-5800 has been severed by the Trial Examiner's Order from Case 16-CA-4506 and transferred to the Regional Director for Region 16 for further processing TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE GEORGE TuRITZ, Trial Examiner: Pursuant to an agreement for consent election executed by Commerce Concrete Company, Inc. (herein called Respondent or the Company), and General Drivers and Helpers, Local No. 823, affiliated with International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America (herein called the Union), and approved by the Regional Director for Region 16 of the National Labor Relations Board (the Board) the Regional Director conducted an 1 The revised tally of ballots reflected the count after two of the five originally challenged ballots had been opened and counted pursuant to a report on challenged ballots issued by the Regional Director on December election on October 22, 1971. A revised tally of ballots disclosed' that, of 18 valid votes counted, 9 were cast for and 9 against the Union and there were 3 undetermined challenged ballots. On September 24 and November 3, 1971, in Case 16-CA-4506, the Union filed charges against Respondent, which were duly served on Respondent on those respective dates; on November 26, 1971, the General Counsel of the Board, through the Regional Director, issued a complaint and notice of hearing in said case. Respondent filed its answer to the complaint, denying all allegations of unfair labor practices. On January 4, 1972, the Regional Director issued a supplemental report on challenged ballots, order consoli- dating cases and notice of hearing, in which he made no ruling on the merits of the three remaining challenges but directed that Case 16-RC-5800 be consolidated with Case 16-CA-4506 for the purpose of hearing, ruling, and decision by a Trial Examiner. The consolidated hearing was held before me at Miami, Oklahoma, on January 26 and 27, 1972. The General Counsel, the Union, and Respondent were represented at the hearing by counsel and they have filed briefs. Upon the entire record and from my observation of the witnesses I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT-EMPLOYER Respondent is an Oklahoma corporation having a place of business at Commerce, Oklahoma, where it is engaged in the processing, sale, and hauling of sand, gravel, mine tailings, and asphalt. In the course of its operations Respondent annually sells and transports goods valued at in excess of $50,000 from its place of business directly to customers located in States of the United States other than Oklahoma. I find that Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the National Labor Relations Act, as amended (the Act). II. THE LABOR ORGANIZATION INVOLVED General Drivers and Helpers, Local No. 823, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES The principal issues litigated at the hearing were whether Flaherty and Heatherly were supervisors eligible to vote in the election and whether Respondent prevented its employee, Smith, who was a lease-operator, from driving his tractor2 and, if so, whether such action constituted a constructive discriminatory discharge. The representation case involving Respondent's employ- ees came on for formal hearing on September 21, 1971, to resolve an issue raised by Respondent, i.e., whether the 15, 1971. 2 The vehicle was also referred to as a truck 197 NLRB No. 125 COMMERCE CONCRETE COMPANY, INC. 659 lease-operators hauling for Respondent were employees or independent contractors. Smith, Noe, and Warren, three lease-operators, were subpoenaed on behalf of the Union to attend and testify, and they sat at counsel table with Leary, the Union's attorney. Respondent finally conceded at that heanng that the lease-operators were employees and entered into the agreement for consent election. Accord- ingly, the three men did not testify. However Sharpenstem, president of Respondent, was present in the heanng room and saw them with the Union's counsel, and I infer that he concluded that they favored the Union. I also infer that he suspected that they had given information to the Union and to Board agents which would have been helpful to the Union's position in the representation case and adverse to that of Respondent. Sharpenstein proceeded from the hearing to Respon- dent's plant office, where he arrived about 2:30 or 3:30 p.m. Smith's truck was then in the garage for certain repairs, which had been completed that day. Sharpenstein testified that he had on his desk an invoice charging Smith with all labor and parts furnished through the preceding day, and that in the normal course the charge tickets for that day's labor would have come to his desk automatically at 5 p.m. that day. However, he telephoned the garage to ascertain the additional amount for that day; he said that he also called the office to find out how much Respondent owed Smith for his services, and he went over to the garage and picked up the day's charge tickets. He explained that the reason was that the bill was running too high and Smith, with his truck in the shop so much, was not earning enough to pay. Smith, who by that time had also arrived from the heanng, was summoned to the office. When he came in, Sharpenstein angrily told him that the bill for repairs was $1,400 and that he wanted the money immediately. Smith replied that Sharpenstein knew he did not have that much money, and he pointed out that he had always paid Respondent out of earnings and had never been required to be up to date. Sharpenstein conceded what Respon- dent's past practice had been, but he said he was tired of cuddling the drivers by financing them only to have them turn around and knife him in the back. He told Smith: "I have known facts that you were the ringleader in this union thing . . . . I am putting a stop to all this right now... . [F]rom now on it is cash on delivery and if you can't pay, why, you can't move that truck." Smith protested that Sharpenstein had the wrong information because he had had nothing to do with instigating or starting the Union. He also said that he had a right under their contract to operate the truck without interference, that he had always paid his bills in the past, and Sharpenstein knew that if he could not drive he could not get the money to pay this bill. Sharpenstein replied that Smith could not move the truck 3 My findings as to this conversation are based on Smith's testimony, which I have credited over Sharpenstem's The latter denied telling Smith that he could not take the truck out without first paying but added. "But I did tell him, it could be construed that I didn't want the truck to go back out on the road until the bill or some part of it was paid." Respondent's answer includes the following with reference to the September 21 incident ".. . Respondent requested that satisfactory arrangements be made for payment of said debt before said vehicle was removed from Respondent's premises, which action was consistent with past practices of Respondent and the rights of said Respondent under Oklahoma's Possessory Lien Statute" until he paid the bill, and he pointed out that if the repairs had been made in a public garage Smith would have had to pay cash or not get the truck, and that was the way Sharpenstein was now operating. He advised Smith, if he did not have the money, to consult a lawyer, and he commented that if any lawyer or court would say that Smith did not have to pay, he would give him the truck free and clear.3 Smith left the premises. A day or two later he filed suit for damages against Sharpenstein and on September 24 the Union filed the original charge in this case alleging Smith's constructive discharge. On November 19, 1971, pursuant to the advice of its counsel, Respondent offered Smith reinstatement. Smith spoke to Sharpenstein, who offered him the alternative of driving his own truck under the original arrangement or driving a company truck. Smith chose the latter. After 1 week he quit for personal reasons.4 Sharpenstein testified that no other employee had run up as large an unpaid bill as Smith's. He stated that the reason he demanded payment on September 21 was that Smith's earnings were limited, since his tractor was out of service so much, and he feared that if Smith took it out he might cause more damage and run his bill up to $2,500 or more. He said that the usual amount owed by the lease-operators was $200 or $300, or less, and that in the past operators who ran too deeply into debt became discouraged and left his employ. He stated that he had no rule as to when he considered a bill excessive and testified: "In the past we have had a few forced collections. Not many, but, a few." IV. CONCLUDING FINDINGS AS TO THE UNFAIR LABOR PRACTICES A. Creating the Impression of Surveillance By telling Smith that he had information that Smith was one of the "instigators of this union thing" Sharpenstein created the impression that he was secretly probing into the employees' union activities. This would tend to make Smith apprehensive that any "instigating" he might choose to engage in would be found out by Sharpenstein. The fact that such past probing had apparently resulted in his receiving inaccurate information did not lessen the tendency of Sharpenstein's remark to chill any desire Smith might have to become a leader, or even engage, in union activities. I find that by the above remark Respon- dent violated Section 8(a)(1) of the Act. See Plasticoid Company, 168 NLRB 135, fn. 3. B. Smith's Discharge Respondent contends that it did not prohibit Smith from removing his tractor from the garage, but I have found that Sharpenstein did order Smith not to move it without first Sharpenstem also denied indicating in the conversation that Smith's association with the Union had anything to do with his calling him in, but he testified that he remembered nothing specific about the conversation so far as the discussion of the Union was concerned. He also said- "Yes, we talked about it, naturally we had just been over here [the Hearing Room] and there was some conversation about it I am sure we talked some about the Union and I might have asked him what his part was in it " 4 The General Counsel conceded that Smith had been offered full reinstatement and that any order issued should not include a provision for his reinstatement. 660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD paying his bill. Smith was not required to put Respondent to the test and risk prosecution for larceny by taking the tractor from Respondent's possession against its express assertion of a lien for labor.5 It is plain that Respondent prevented Smith from moving the tractor and thus prevented him from continuing to perform the services called for under his employment. Since Sharpenstein knew that the only realistic way for Smith to pay the bill was to perform those services, it is plain that by preventing him from moving the tractor Respondent was terminating the employment relationship and discharging him. Respondent rarely resorted to "forced collections" of repair bills. Nevertheless, it suddenly decided that its former policy constituted "cuddling" and, with no prior warning, put a stop to it and confronted Smith with a new condition of employment-payment by him of a $1,400 repair bill-which it knew he could not meet. It may well be that at some point Respondent, purely on the basis of economics, would have concluded that the limit had been reached and that it was necessary to prevent Smith from using the tractor without first satisfying the repair bills. Respondent, however, had not explained the coincidence, truly remarkable, that the bills for the repairs in progress at Respondent's garage reached that particular point on September 21, indeed, virtually at the same moment that Sharpenstein saw Smith sitting at the counsel table with the union attorney. I am convinced by the foregoing alone that Sharpenstein took the action he did in retaliation against Smith for aiding and favoring the Union. This conclusion is strengthened by Sharpenstein's anger, his accusation that Smith was the "instigator of this union thing" and that Sharpenstein was being knifed in the back, and for this reason he was changing Respondent's policy with respect to repair bills. I find that Respondent's termination of Smith's employment on September 21 was discriminatory and that Respondent thereby violated Section 8(a)(1) and (3) of the Act. Respondent contends that in any event no violation of Section 8(a)(4) of the Act can be found in this case because Smith did not actually testify or otherwise adversely affect Respondent. However, just as Section 8(a)(4) protects employees "in the important developmental stages that fall between" the filing of charges and the giving of formal testimony, cf. N. L. R. B. v. Scrivener, d/b/a AA Electric Co., 404 U.S. 821, it protects them against discrimination for giving information informally in connection with a representation proceeding. While the record does not show what Smith actually did in connection with the representa- tion proceeding beyond appearing in response to a subpoena and sitting with counsel, I have found that Sharpenstein suspected that he gave the Union or the Board information helpful to the Union's position and adverse to Respondent's, and that that was the reason Respondent discriminated against Smith on September 21. 5 1 make no attempt in this Decision to determine the parties' rights of ownership or possession of Smith's tractor under Oklahoma law . Prelimi- nary to Smith's employment he and Sharpenstein executed three documents relating to the tractor . ( I) a 24-month lease by S & S Materials Company to Smith for a rental of $10,200, the tractor to be used solely in hauling for Respondent, and title to remain in S & S, (2) an option agreement whereby S & S gave Smith the privilege of purchasing the tractor prior to expiration of the lease for the same sum of $10 ,200, all rentals paid being applied to Accordingly, I find that by its actions on September 21 Respondent also violated Section 8(a)(4) of the Act. Cf. N.L.R.B. v. Ritchie Manufacturing Company, 354 F.2d 90, 98, enfg. as mod. 147 NLRB 1257. V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE I find that the activities of Respondent set forth in section III, occurring in connection with its operations described in section I, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdemng and obstructing commerce and the free flow of commerce. VI. THE REMEDY As I have found that Respondent has engaged in certain unfair labor practices, I recommend that the Board issue the recommended Order set forth below requiring Respon- dent to cease and desist from said unfair labor practices and to take certain affirmative action which will effectuate the policies of the Act. As Respondent offered Smith full reinstatement to his former job, which he declined, at the same time accepting reinstatement to another job, which he has resigned through no fault of Respondent, it is unnecessary that Respondent make any further offer of reinstatement. However, I recommend that Smith be made whole for any loss of earnings suffered by reason of the discrimination against him during the period from September 21, 1971, to the date of his reinstatement by Respondent. The amount of backpay shall be a sum of money equal to what he would have earned during that period, with interest thereon at 6 percent per annum, less his net earnings during said period, computed in accordance with the Board's usual practice. See F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. VII. THE CHALLENGES A. Introduction Respondent's operations are carried on from three points: a scale and dispatch office, an automotive repair shop located 100 yards from the office, and a screening, or separating, plant, located on a hill 1 /4 of a mile away. Near the screening plant is an asphalt plant owned and operated by Arrowhead Asphalt Company, a corporation owned 61 percent by the two Sharpensteins and the rest by one Starks. Sharpenstein, Sr., is in general charge of Respondent's operations; his principal assistant is Van Sandt, the dispatcher. Arrowhead is run by the younger Sharpenstein and Starks. such purchase price, and (3) a lease of the tractor by Smith to Respondent, which was to use the tractor exclusively for Respondent's business, the consideration to Smith to be 75 percent of Respondent's gross receipts from use of the tractor . The two Sharpenstetns owned 75 percent or more of the stock in Respondent, Van Sandi, the dispatcher, owned the rest, and those three were the officers and directors S & S was a partnership of the two Sharpensteins, who were father and son. COMMERCE CONCRETE COMPANY, INC. 661 B. Heatherly Heatherly, who works principally at the screening plant, was challenged by the Union as a supervisor. Respondent takes tailings left from ore-mine operations, sorts them by screening into approximately five grades or sizes, washes them, and transports them to customers. The material is called chat. The mine tailings are first dumped into a large hopper which feeds them onto a series of electrically powered conveyor belts carrying the tailings though various sized shake screens to piles of graded chat ready for shipment.6 On the way the screened material is washed to remove sand, grit, dust, and small pieces. The principal human labor involved is the operation of two front-end loaders, which are, basically, mobile power shovels. These take tailings from the pile left by the mine operator and dump them into the hopper which feeds the conveyor belts. The front-end loaders also load delivery trucks with graded chat taken from the several piles at the end of the screening process and, from time to time, move graded chat from one pile to another-for example, for stockpiling. Heatherly is the person on whom Respondent depends to keep the screening plant in proper condition and operating as near 100 percent of the time as possible. He is classified by Respondent as a front-end-loader operator. In addition to him one other individual, also classified as a front-end- loader operator, works there, and in busy periods a third man is employed, usually, but not always, on a night shift. At times Sharpenstein comes up to the screening plant, but most of the time Heatherly is in complete charge. Pursuant to general instructions from Sharpenstein Heatherly tells the front-end-loader operator how many tons of a particular grade of chat to sort, or to increase or decrease the amount of a particular grade, whether for immediate delivery or for stockpiling. On occasion he instructs him to shift the sorting from one grade to another. Sometimes, if a dispatch order calls for delivery of a grade not then on hand, Heatherly directs the front-end-loader operator to furnish another grade which is close enough in size to serve the customer's purpose. Heatherly sees to it that the belts are properly placed and adjusted on the rollers and in good condition, making the adjustments himself or telling the operator what to do. From time to time he leaves the plant, sometimes to obtain replacement parts, sometimes to work at the asphalt plant. When he is away, the front-end-loader operator is required to see to it that the plant is kept in constant operation. If on his return Heatherly finds the plant not in operation, he reprimands the operator. Sometimes , pursuant to instruc- tions from Sharpenstein, Heatherly sends one of Respon- dent's front-end loaders to the asphalt plant, with the operator, to work there; it is Heatherly who orders the operator back to the screening plant. Heatherly hired Bingham, a front-end-loader operator. He sent Bingham to see Sharpenstein about filling out the necessary papers for his tax forms, but Heatherly told Bingham beforehand that he had the job. On one occasion he told Knight, a truckdnver, that he, Heatherly, was in 6 The record is not clear as to whether the normal operation consists of sorting out all standard sizes simultaneously In many, if not all, instances complete charge of the screening plant and did not need Sharpenstein's permission to hire a man. Heatherly did not testify. Concluding findings as to Heatherly Even though Sharpenstein gives Heatherly general instructions as to the amounts of chat of each grade to have on hand, he is not there to see to it that his instructions are carried out. Nor is he available to see to it that the conveyor belts are properly adjusted and that the plant is kept in continuous operation. He depends on Heatherly to see to it that the front-end-loader operator performs these functions properly or that he performs them himself. Heatherly is also the one who is responsible for the repair of the plant, whether by himself or by the front-end- loader operator. It is apparent that Heatherly has to use judgment and discretion in directing the front-end-loader operator in these matters, and I find that he responsibly directs employees in their work. I also find that Heatherly has authority, on behalf of Respondent, to hire employees. I find that Heatherly is a supervisor ineligible to vote in the election. C. Flaherty Flaherty, who worked in the garage or repair shop, was challenged by the Union as a supervisor. Flaherty is a diesel mechanic with 30 years' experience. At one time he bought a repair shop from Sharpenstein and operated it for a period of 1 to 2 years as a public shop on his own account. More recently he worked for Respondent for an hourly wage. He was seriously injured on June 1, 1971, and has not worked for Respondent or received wages since that date. In August or September he appeared occasional- ly at the shop and gave advice on jobs, and he was seen by Smith on the day the hearing opened. Sharpenstein testified that he did not expect Flaherty ever to return to work for Respondent but that on October 22, 1971, the date of the election, and on September 21, when the consent election agreement was entered into, he fully expected him to return. In addition to Flaherty four, sometimes five, employees worked in the garage. Respondent's procedure required that the truckdrivers make out reports indicating necessary repairs. Sharpenstein had an office at the garage and he testified that he was there "practically all of the time" and was garage foreman. According to him the various drivers placed their repair reports on a clipboard outside his office, and the garage employees, Flaherty included, as they completed a job, would go to the clipboard and take the repair report next in order and work on it. The employees testified differently. Smith stated that when he was hired, Sharpenstein told him that Flaherty was in charge of the repair shop and that if Smith needed work on his truck, he should see Flaherty, who would take care of it and tell him whether and when a job could be done. He testified that he always had to see Flaherty to ask him if the garage could get round to doing work on his truck, and that Flaherty, without consulting anyone else, the plant is operated so that only a single graders made up at a particular time While grades generally refer to sizes, some are a mixture of sizes 662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD told him when work could or could not be done, and he said that Flaherty also told him when he would have to get certain parts fixed elsewhere before Respondent could install them on the truck. He also testified that he heard Sharpenstein tell Flaherty to "get busy and get these trucks out of here and get them operating"; Knight testified that whereas Sharpenstein used to summon Flaherty to the office to speak to him, he spoke to the other men out on the floor. Smith and North testified that they gave their repair reports directly to Flaherty. North, Knight, and Bingham testified that Van Sandt, the dispatcher, instructed them to deliver their reports to Flaherty. As for the clipboard, a number of the employees testified that they sometimes placed repair reports on it, but that often it could not be found and they handed the reports to Flaherty. One employee, Noe, testified that he never filled out such a report, and that he merely told Flaherty orally what his trouble was. North, Smith, and Knight testified that Flaherty told garage employees specifically what to check, what to do, and how to do it. Smith testified that more recently Sharpenstein has spent more time in the garage office, and Knight stated that Sharpenstefn spent no time in the office until recently and that he has been running the garage only since Flaherty was injured. The employees agreed that Sharpenstein and Van Sandt both frequently looked over trucks to be repaired, discussed work with Flaherty, instructed men how to do work, and told the men whether to get new parts or repair old ones. Sharpenstein did the necessary computing of charges for parts and other work performed in the garage; Flaherty was not sufficient- ly literate to perform that function. Flaherty was paid $3.00 per hour. Two of the other garage employees received $2.50 per hour and two received $2.00 per hour. Neither Flaherty nor any other garage employee testified. Two of the garage employees were sons of Flaherty. Concluding findings as to Flaherty I do not credit Sharpenstein's testimony that jobs were assigned to the garage employees on a mechanical basis, i.e., that an employee who finished one job took the repair report next in order on the clipboard. While this may have been true for the lower paid men doing simple jobs, such as tire work and lubrication, I find, on the basis of the testimony of the employees who testified, that Flaherty assigned repair jobs to the employees. I also find that in assigning jobs he had to take into consideration the needs of the trucks and Respondent's business, and the experi- ence and abilities of the garage employees, and that he had to exercise judgment and discretion. While Sharpenstein and Van Sandt may also have exercised some supervisory functions in the garage, it was Flaherty who was responsi- ble for the distribution of work among the employees and Sharpenstein looked to him to "get these trucks out .. . and . . . operating." I find that Flaherty responsibly directed the employees and was a supervisor within the meaning of the Act, ineligible to vote in the election. 7 In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in D. Recommendations as to the Challenges As I have found that Smith was discriminatorily discharged on September 21, 1971, in violation of Section 8(a)(3) of the Act, I find that he was eligible to vote in the election and recommend that the challenge to his ballot be overruled and his vote counted. As I have found that Heatherly and Flaherty were supervisors, ineligible to vote in the election, I recommend that the challenges to their ballots be sustained and their votes not counted. Upon the basis of the foregoing findings of fact and on the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Respondent, Commerce Concrete Company, Inc., is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent is, and at all times material has been, an employer within the meamng of Section 2(2) of the Act. 3. General Drivers and Helpers, Local No. 823, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meamng of Section 2(5) of the Act. 4. By discriminatorily terminating the employment of Melvin E. Smith, Respondent has engaged in unfair labor practices within the meamng of Section 8(a)(1), (3), and (4) of the Act. 5. By interfering with, restraining, and coercing em- ployees in the exercise of rights guaranteed in Section 7 of the Act, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 6. The unfair labor practices described above are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 102.25 and 102.33(d) of the Rules and Regulations of the National Labor Relations Board, I hereby issue the following recommended: ORDER SEVERING AND TRANSFERRING CASE It is hereby recommended that Case 16-RC-5800 be severed from Case 16-CA-4506 and transferred to the Regional Director for Region 16 for further processing. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: 7 ORDER Respondent, Commerce Concrete Company, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging employees, requiring employees to pay repair bills as a condition of using equipment, or otherwise Section 102 48 of the Rules and Regulations, automatically become the findings, conclusions, decision and Order of the Board, and all objections thereto shall be deemed waived for all purposes. COMMERCE CONCRETE COMPANY, INC. discriminating against employees because they give infor- mation or evidence under the Act, or appear to give formal testimony under the Act, or because they join or assist Local 823, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, or any other labor organization, or because they engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection. (b) Creating the impression among employees that the Company has, or is, engaged in surveillance of their union or other concerted activities. (c) In any like or related manner interfering with, restraining, or coercing employees in the exercise of rights under Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Make Melvin E. Smith whole for any loss of earnings suffered as a result of the discrimination against him in the manner described in section V of this Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board and its agents for examination and copying all payroll records, hauling records, work records, production records, time records, repair records, and all other data necessary to analyze and compute the backpay required by this Order. (c) Post at its office and place of business in Miami, Oklahoma, copies of the attached notice marked "Appen- dix."8 Copies of the notice, on forms provided by the Regional Director for Region 16, shall, after being signed by a representative of Respondent, be posted immediately upon receipt thereof and be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that said notices are not altered, defaced, or covered by any other material. (d) Notify said Regional Director, in writing, within 20 days from the date of the receipt of this Decision, what steps Respondent has taken to comply herewith.9 8 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted pursuant to a Judgment of the United States Court of Appeals enforcing an Order of the National Labor Relations Board " 9 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 said Regional Director, in wasting, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith" APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government 663 WE WILL pay Melvin E. Smith for any loss of earnings suffered as a result of the discrimination which the Board has found we practiced against him. WE WILL NOT discharge employees, or require them to pay repair bills before being allowed to use their equipment, or discriminate against them in any other manner because they testify before or give information to, the National Labor Relations Board, or because theyjoin or assist Local 823, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization. WE WILL NOT create the impression among our employees that we have engaged in surveillance of their union or other concerted activities. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of their rights to self-organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except insofar as these rights might be affected by a contract with the labor organization, if validly made in conformity with Section 8(a)(3) of the National Labor Relations Act, as amended. COMMERCE CONCRETE COMPANY INC. (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concern- ing this notice or compliance with its provisions may be directed to the Board's Office, Federal Office Building, Room 8-A-24, 819 Taylor Street, Fort Worth, Texas 76102, Telephone 817-334-2921.