Herman Buns & Son, Inc.

HERMAN BUNS & SON 401 Herman Buns & Son, Inc. and International Union of Operating Engineers, Local 234. Case 18-CA-3313 November 22, 1972 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO On June 14, 1972, Administrative Law Judge 1 George Turitz issued the attached Decision in this proceeding. Thereafter, the Respondent filed excep- tions 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 attached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. The Administrative Law Judge found that by concertedly refusing to work before 7:30 a.m. without pay the five employees engaged in concerted activities for the purpose of mutual aid and protec- tion and were discharged for these activities. We agree. When Steiff, Durgin, and Ziegler arrived at their machines a few minutes after 7 a.m., Tegtmeyer, the Respondent's foreman, informed them that they were late and would be docked one-half hour. Ziegler and Durgin protested, but walked away. Moore arrived to find Steiff and Tegtmeyer arguing. Steiff said that if his time would not start until 7:30, he would wait in his car and begin working when his time began. Tegtmeyer replied that the men would be fired if they went down to their cars. After Moore said he would not donate half an hour of his time, Tegtmeyer said he could either start work then, without an argument, his time to begin at 7:30, or consider himself fired. Moore answered that he considered himself fired and began walking down the road with Steiff. Durgin, seeing this, followed a few steps behind.2 When they saw Durgin, Steiff, and Moore walking away, Johnson and Clark stopped working to ask what was going on. Informed of Tegtmeyer's ultimatum, Clark and Johnson decided not to accept it, and left with the others. i The title of "Trial Examiner" was changed to "Administrative Law Judge" effective August 19, 1972. 2 Ziegler, however, chose to work the rest of the day, claiming time only from 7:30 3 Buns denied that there was any discussion of the discharge, but the After the group had walked a few steps, Tegtmeyer drove up and warned the men to go back to work. Durgin replied "Don, all you have to do is start our time at starting time and we'll go back to work," but Tegtmeyer refused. The five discharged employees left the project and went to the Company's office at Britt, 75 miles away, to ask Robert Buns, the Respondent's active manag- er, why they should accept the dock and whether the discharge stood. Buns was absent but all five returned the next day, Sunday, and spoke with Buns, who told them that Tegtmeyer had fired them and he considered him right.3 On Monday morning, when the five men picketed the jobsite, Tegtmeyer ordered the other employees to go to work, warning that if they did not do so they would be out of work "like the five fired Saturday." It is apparent that the five employees engaged in concerted activity by refusing to work before 7:30 without pay for work performed prior to that time. Tegtmeyer's demand that they do so was unequivo- cal; the five employees could only protest by walking out, although they realized that this would result in their discharges. That the men wished to work is evidenced by their actions in driving 75 miles on Saturday immediately after they were discharged to appeal their firings to Buns, then again seeking a meeting with him on Sunday. Buns stated on Sunday that the men were discharged, and on Monday Tegtmeyer referred to the men who were "fired on Saturday." When the five employees refused to work without pay, for work performed before 7:30, they were exercising their right to engage in concerted activity for the purpose of mutual aid or protection. The Respondent discharged them, not for their tardiness, but for their protected activity in refusing to acquiesce to Tegtmeyer's unequivocal and uncom- promising demands that they work without pay until 7:30. Accordingly, we find that the Respondent violated Section 8'(a)(1) of the Act. REMEDY For reasons expressed by the Administrative Law Judge we find that an appropriate remedy for Respondent's unfair labor practices includes, inter alia, a requirement that Respondent make the discriminatees whole for any loss of earnings suffered by them from 7:30 a.m. on August 28 to the date Respondent offers them reinstatement. It is clear that these employees did not intend to engage Administrative Law Judge did not credit his testimony . The; Respondent excepts to this and other credibility findings, but we are satisfied under the Standard Dry Wall Products test (91 NLRB 544) that there is no basis for overturning the findings of the Administrative Law Judge. 200 NLRB No. 67 402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in, nor did they engage in, a strike to obtain the one- half hour's pay they were to be docked for tardiness. Rather, they were concertedly refusing to work during the remainder of the half hour they were to be docked. As they were discharged for engaging in that refusal, the backpay period appropriately begins as of 7:30 a.m. on August 28, 1971. 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 Administrative Law Judge and hereby orders that the Respondent, Herman Buns & Son, Inc., Britt, Iowa, shall take the action set forth in said recommended Order. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE GEORGE TURITZ, Trial Examiner: Upon a charge filed by International Union of Operating Engineers, Local 234 (the Union), on September 1, 1971, and served on that date upon Herman Buns & Son, Inc.' (Respondent, and, at times the Company), the General Counsel of the National Labor Relations Board (the Board),, through the Regional Director for Region 18, on February 7, 1972, issued a complaint and notice of hearing which was duly served upon Respondent. Respondent filed its answer in which it denied all allegations of unfair labor practices. A hearing on the Complaint was held before me in Garner, Iowa, on March 2 and 3, 1972, at which the General Counsel, Respondent, and the Union were represented by their respective counsels. All parties have submitted briefs. Upon the entire record and from my observation of the witnesses, I make the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent, Herman Buns & Son, Inc., is an Iowa corporation having its principal place of business at Britt, Iowa, where it is engaged in highway construction. In the course of its operations Respondent annually has gross receipts in excess of $500,000, including receipts in excess of $250,000 from the State of Iowa or its political subdivisions for services performed on projects financed in whole or in part by the Federal government. In the course of its operations, also, Respondent annually purchases fuel, equipment, and materials valued at in excess of $50,000 from sellers located outside the State of Iowa, or from sellers who, although located within the State of Iowa, received directly from outside the State of Iowa the fuel, equipment, or materials purchased by Respondent. I find that Respondent is an employer engaged in commerce 1 This is the correct name of Respondent, and the Complaint, including the caption, was amended at the hearing accordingly. 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 International Union of Operating Engineers, Local 234, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Introduction The issues litigated were whether the five employees named in the Complaint quit or were discharged, and, if the latter, whether the reason constituted a concerted activity. In August 1971 Respondent was engaged in grading, ditch, and culvert work for a road near Ricefield, Iowa. The road went through farm country and the employees on the project arrived near each day's work area by private automobile. As the work progressed, they parked their vehicles at various places, sometimes at the nearest accessible point to where the particular day's work was to begin, at other times at a point they estimated would be near where the day's work would end. In some instances these parking spots were rather far from the beginning work point and the men were transported between their cars and the machines they operated by Respondent's grease bus or by the foreman's pickup truck. When the parking spots were nearby, they walked. There was no definite custom or policy as to the distance which warranted transportation. On Saturday morning, August 28, at about 6:40 or 6:45, a number of the employees arrived at the work area and parked their cars at the same place where some had parked the previous day. Two, Dietz and Hannah, were to work equipment standing nearby, and they immediately started preparations for work. The grease bus and the foreman's truck could be seen from the parking area, and the five employees named in the Complaint stood around awhile, expecting to be picked up. They were Steiff, Durgin, Moore, Clark, and Johnson.2 As 7 o'clock, the starting time, approached, they finally concluded that they were not to be picked up, and they started walking up the road towards their respective equipment. At that point another employee, Ziegler, arrived. He parked his car and fell in with the others. B. The Alleged Concerted Activities and Discharge 1. Steiff, Moore, and Durgin Respondent's foreman, Don Tegtmeyer, was standing at his pickup truck, about 50 feet from where Steiff, Durgin, and Ziegler had left their machines the previous evening. 2 All five had previously signed cards for the Union, but they had not been made members. HERMAN BUNS & SON This was about 3/4-mile from where the men had parked their cars.3 They arrived at their machines shortly after 7:00 and were about to prepare for work.4 Tegtmeyer called Steiff over and, pointing to his watch, said, "You're a little late, aren't you?" Tegtmeyer testified that when he spoke, he was addressing all three men, and I so find. Steiff said yes, they had been waiting to be picked up. Tegtmeyer replied that they were docked half an hour for being late. Durgin asked if that included him, and Tegtmeyer said it did, pointing out that it was 7:15 and his machine was not running. Durgin protested that the men had been waiting "down there" to be picked up. Tegtmeyer replied that "down there" did not count .5 Ziegler also protested that the dock was unfair. Durgin walked over to his machine, upset and undecided what to do. Moore, whose primary job was to help Quaintance, the head greaser, had stopped at the grease bus to ask Quaintance whether he was needed for greasing. Told no, he proceeded to Tegtmeyer's truck, a quarter of a mile farther up the road from the bus, to find out what he was to do that day. He arrived to find Durgin cogitating at his machine and Steiff arguing with Tegtmeyer. Learning of the dock, he asked Tegtmeyer who else was affected. Tegtmeyer told him, "All those fellows who walked up the road with you." Steiff asked if the docking meant that his time would start at 7:30, and when Tegtmeyer said it did, he said he would go to his car and be back at 7:30. Tegtmeyer replied that if the men went down to their cars, they should keep going because they would be through.6 Moore said that he would not donate half an hour of his time, and Tegtmeyer told him he could either start work then without an argument, his time to start at 7:30, or consider himself fired. Moore replied, "I guess I consider myself fired." Steiff and Moore started down the road together, carrying their lunch buckets. Seeing this, Durgin made up his mind and followed, a few steps behind. Moore testified as follows: Q. Did you men make a decision on whether or not you were going to work this half hour free? A. Not at that time, we had already made that decision, yes, in our own mind, not to each other. Ziegler got on his machine and started it. While it warmed up, he drank some coffee. He worked the rest of the day, and claimed time only from 7:30. 2. Johnson and Clark These employees' work places were near the grease bus. They had been at work for some time when they saw Steiff, Moore, and Durgin approaching carrying their lunch buckets. They stopped working and asked what was going on. Informed of Tegtmeyer's order that all be docked one- half hour but nevertheless start work immediately or be 3 The various distances referred to in this Decision were the estimates of the employees. I do not regard them as accurate. 4 Tegtmeyer testified that the time was 7 15, Durgin and Steiff testified that it was 5 to 10 minutes earlier. The difference would not affect the merits of the case. 5 While some lateness was excused, the employees were supposed to be at their machines at 7 o'clock Before actual operation commenced it was necessary to do some greasing and to allow the machine to warm up for several minutes 403 fired, Johnson and Clark decided not to accept these conditions. Clark covered the exhaust pipe of his machine and the two started to walk down the road with the others. Johnson and Clark had walked a few steps when Tegtmeyer drove up and warned that the men had better go back to work or they would be sorry, since Respondent had much work lined up for the fall. Durgin, who at that point was standing with Johnson next to the pickup, replied, "Don, all you have to do is start our time at starting time, and we'll go back to work." Tegtmeyer said, "No, I can't do that. Take a half hour dock or down the road," adding, "As far as that for you, John Durgin, Buns told me to fire you two weeks ago." Durgin replied, "Well, I guess it's done now." 7 Clark, who heard part of the conversation, said "Mr. Tegtmeyer, I went to work. I was working at 7 o'clock. I have loaded two loads of dirt. Why should I be docked a half hour?" Tegtmeyer replied, "Everybody who walked up this road is docked a half hour ... You'll take the dock along with the rest of them and go back to work or down the road." Clark testified specifically that his conversation with Tegtmeyer took place after he had decided to walk off. He explained his decision as follows: Well, it was because he had told these others, and I heard him telling John [Durgin] that either go back to work or else, and I had made up my mind if they were going to get docked and they told me I was getting docked, I was not going to take the dock. When I heard this, I turned around and asked him myself. C. Alleged Reaffirmations of the Discharge The five discharged employees left the project area and decided to go to the Company office at Britt, some 75 miles away, to find out from Robert Buns, Respondent's vice president and its active manager, why they should accept the dock and whether their discharge stood. In Robert Buns' absence, they spoke to Herman Buns, his father, who was president of Respondent but only semiactive in its affairs. Told that the men had been discharged for being "five or some minutes late," he said that he did not see where that was "such a problem," but that the men would have to speak to Robert Buns. The next morning, Sunday, all five met with Robert Buns at the Company shop, with Moore as their designated spokesman. Moore asked Buns whether he had heard about the incident on Saturday. Buns replied, "You fellows don't work here any more, I don't know what you are doing here." Moore asked if they still had jobs and Buns replied that Tegtmeyer had fired them and he considered him right. Moore then asked whether the men would be paid for the half hour they had put in arguing with Tegtmeyer. Buns replied that they had not worked the half hour, had had not worked for Respondent since Friday, 6 Tegtmeyer answered "No" to the question, "Did you tell them they were fired9" As to whether any of the men said something about going down to sit in their cars, he testified that he could not remember one way or the other. Ziegler testified that he did not hear Tegtmeyer's conversation with the other employees Moore and Durgin testified convincingly about the incident, and I have credited their testimony. 7 Durgin testified that although he said, "we ," he was speaking only for himself. Johnson testified, in effect, that in view of Durgin's use of "we," he understood Tegtmeyer's reply to apply to him, Johnson. 404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and would not any more. He started pouring abuse on the men they had walked out.8 On Monday morning the men picketed the jobsite with signs bearing the Union's name and indicating that they were picketing Respondent for a contract with the Union. The signs said nothing about the terminations, but the men told employees that they had been discharged the previous Saturday and the circumstances, and some refrained from working. Tegtmeyer arrived between 7 and 7:30 and ordered the employees to go to work, warning that if they did not, they would be out of work "like the five fired Saturday." He gave the five men a half hour to clear out, and when they did not, he called the sheriff. A deputy appeared, but he permitted the picketing to continue. Later Moore spoke to Buns and told him that if the men could not work, they were going to picket. Buns replied that "nobody was going to make him join any damn un- ion...." 9 D. Concluding Findings 1. The allegedly concerted activities At or shortly before 7:15 Ziegler, Durgin, and Steiff arrived together at the area of Tegtmeyer's truck. Tegtmey- er's order that pay would start at 7:30 but work must start at once was obviously directed to all three. The fact that he called Steiff over to comment on the hour detracted somewhat from the clarity of the scope of the directive. However, Ziegler and Durgin recognized that it probably applied to them, and Tegtmeyer immediately cleared up the ambiguity by so stating. He himself testified at the hearing that what he said to Steiff was directed to all three. Moore arrived and learned of the order and that it applied to him, also, as well as to Clark and Johnson. Moore and Steiff indicated that they were ready to start work at 7:30 but would not work the prior quarter-hour without pay. It is unnecessary for purposes of this case to decide whether the four employees' talk with Tegtmeyer -all of the same, protesting nature-was a concerted activity. What is plain is that when Moore and Steiff went beyond words and, by walking down the road with their lunch buckets, unequivocally refused to work under the conditions laid down by Tegtmeyer, they did so together. Respondent emphasizes that Moore and Steiff reached their decision without prior discussion. In ambiguous situations such discussion often makes plain that acts are group, rather than individual, acts. However, prior discus- sion is not a condition precedent to a finding that acts are concerted. Distinguish Mushroom Transportation Co. v. N.L.R.B., 330 F.2d 683 (C.A. 3), cited by Respondent, which did not involve acts but only talk which, moreover, the Court specifically found did not look forward to group action. In the present case two employees, standing near each other, simultaneously refused to work under new 9 Buns denied that there was any discussion of the discharge He testified that the men, some of whom lived at substantial distances from Britt, only asked for pay for the half hour Buns impressed me unfavorably as to the credibility, and I have not credited his testimony. When the men submitted their time reports, they included their claim for one-half hour on Saturday and Respondent paid them. 9 These findings are based on the testimony of General Counsel's witnesses Respondent adduced no testimony describing the incidents on conditions laid down in a directive intended for both, as well as the others who had walked up the road together. I find that by walking off the job Moore and Steiff concertedly refused to work the time before 7:30 without pay. Moore, Ziegler, Durgin, and Steiff all had the same reaction of outrage to Tegtmeyer's order. They had incurred expenses in coming to the job that day-some had driven 75 miles-and the half- or quarter-hour pay does not appear to have been the important factor. Apparently the men felt that a principle was involved. Ziegler overcame his feelings of outrage and went to work. Durgin was torn. However, the sight of Moore and Steiff walking off the job tipped the balance, and he fell in close behind them. I find that Durgin refused in concert with other employees, to work before 7:30 without pay. Clark and Johnson saw Moore, Durgin, and Steiff concertedly walking off the job. Apprised of the reason, they joined in, thereby refusing, in concert with the others, to work before 7:30 without pay. I have emphasized that, following Tegtmeyer's edict, the first act of any employee, as opposed to mere words, was the simultaneous walking off by Moore and Steiff. This simultaneity simplifies the demonstration that the five employees acted concertedly. However, a more correct approach to this issue is to examine the entire incident as a single event, rather than a series of separate events to be nicely analyzed. Tegtmeyer issued an edict to a group, and he got a group response in the form of the employees walking off the job together. Indeed, the men's refusal to work under Tegtmeyer's conditions did not become unequivocally final until they had left the jobsite; before that Tegtmeyer pursued them and tried to persuade them to change their minds. They refused, since he still insisted on the half-hour dock and their services, and all five left the jobsite together.10 I find that by concertedly refusing to work before 7:30 without pay the five employees named in the Complaint engaged in concerted activities for the purpose of mutual aid and protection. 2. The terminations Tegtmeyer's statements that if the employees went back to their cars they should "keep going" because they were through, and that they should consider themselves fired were not mere invitations to quit. Tegtmeyer felt strongly that the men had to be punished because of what appeared to him to be a too easy attitude about getting to work with punctuality. At the same time he did not want the punishment to result in delaying completion of the project, with possible loss to Respondent. To ensure the accom- plishment of this dual purpose, he drew the strongest weapon in his arsenal, not a threat of discharge, which the men would assume might or might not be carried out, but a Monday except insofar as Buns, when asked whether any of the employees had "ever" asked whether they could return to work, answered, "No." 10 In its brief Respondent quotes the General Counsel to the effect that the five men were fired "in succession." However, the General Counsel clarified his position on the next page of the transcript, where he pointed out that no one started to walk out until the first four had all been told that their refusal to work without pay would mean they were fired. He then stated, "They all started walking out together " HERMAN BUNS & SON clear order that any employee's refusal to work without pay before 7:30 was to result simultaneously in his automatic discharge. Their acceptance of this severe penalty in preference to the mild financial loss involved in the docking apparently surprised Tegtmeyer, and he attempted to persuade them to reconsider. Respondent contends that this attempt demonstrates that the employ- ees had not been discharged but had quit. However Tegtmeyer still insisted that the men work up to 7:30 without pay, and when they refused, he allowed the discharges to stand . These conclusions are buttressed by Tegtmeyer's own references on the following Monday to the five men "fired" on Saturday, and by Buns' statement on Sunday that he considered Tegtmeyer right in discharg- ing them. The fact that Tegtmeyer's procedure accomplished the men's termination not by means of a further statement or other acts by him, but by the employees' own acts did not make the termination a quit rather than a discharge. The employees had no intention to quit, or even to strike; they proceeded from the jobsite directly to company headquar- ters to get the matter resolved. All they intended was to refuse to work prior to 7:30 without pay. The Board has held that an employer's order that all employees who wanted a union should get out of the plant constituted a discharge of all those who left after hearing the order. See Quest-Shon Mark Brassiere Co., Inc., 80 NLRB 1149, 1151, enfd. 185 F.2d 285 (C.A. 2), cert. denied 342 U.S. 812. It is not material that Clark and Johnson decided to walk off on the basis of 'what the employees told them and before hearing the order directly from Tegtmeyer. The Board has indicated that in the case of an order of this kind it would find a discharge with respect to employees who did not hear the order directly from Respondent but heard it related by employees who did hear it directly. See Quest- Shon Mark Brassiere Co., Inc., supra, at page 1152. Tegtmeyer's statement that if the men did not work immediately they were discharged implied an order to get off the project. The men were not required to put Tegtmeyer to the test and risk prosecution for trespass or possible loss of their status as employees by remaining on the property after being discharged. I find that Tegtmeyer discharged Clark, Durgin, John- son, Moore, and Steiff. Since the reason he discharged them was that they engaged in concerted activities for mutual aid and protection, I further find that Respondent thereby violated Section 8(a)(1) of the Act. See Ablon Poultry & Egg, Company, 134 NLRB 827, 829. IV. 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 burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY 405 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. I recommend that Respondent reinstate Arthur L. Clark, John L. Durgin, Bobby J. Johnson, Daryl Moore, and Ronnie R. Steiff to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority and other rights and privileges, and that they be made whole for any loss of earnings suffered by reason of the discrimination against them. The employees suffered no loss of pay up to 7 :30 on August 28; notwithstanding Tegtmeyer's edict, Respondent, possibly to avoid litigating a matter of no substantial consequence financially, has paid the men for that time in full. As to the period after 7:30 it is necessary to consider the question of whether the men's loss of earnings resulted from the discrimination against them or from their concerted refusal to work. The men did not go out on a full-fledged strike. So far as they were concerned, they wished to withhold their services only up to 7:30, when their pay would begin; the record is plain that they wished to work after that. Nor does the fact that on Monday the employees picketed for a contract affect the amount of backpay. Consideration of all the circumstances makes it appear highly unlikely that the employees would have struck or picketed if they had not been discriminatorily discharged; in fact Moore told Buns that they would picket if they could not work. If there is any doubt in the matter, it must be resolved against Respondent, since its unlawful discrimination has made it impossible to ascertain even more definitely whether they would have struck in the absence of the discrimination. See Merchandiser Press, Inc., 115 NLRB 1441, 1442. Accord- ingly, the amount of backpay to each employee shall be a sum of money equal to what he would have earned from August 28, 1971, to the date of Respondent's offer to him of reinstatement,' with interest at 6 percent per annum, less his net earnings during said period. See First National Bank of Omaha, 171 NLRB ' 1145, 1153. Backpay and interest shall be 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. I further recommend that Respondent preserve and, upon request, make available to the Board and' its agents, for examina- tion and copying, all payroll, time, work, accounts-receiva- ble, and other records to facilitate the computation of backpay due and to ensure the proper carrying out of the reinstatement provisions of the recommended Order. 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, Herman Buns & Son, 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 meaning of Section 2(2) of the Act. 406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. International Union of Operating Engineers, Local 234, is a labor organization within the meaning of Section 2(5) of the Act. 4. By concertedly refusing to work without being paid for the full-time work, Arthur L. Clark, John L. Durgin, Bobby J. Johnson, Daryl Moore, and Ronnie R. Steiff engaged in concerted activities for the purpose of mutual aid or protection within the meaning of Section 7 of the Act. 5. By discriminatorily discharging Arthur L. Clark, John L. Durgin Bobby J. Johnson, Daryl Moore, and Ronnie R. Steiff because they engaged in concerted activities, Respondent has engaged in unfair labor prac- tices within the meaning of Section 8(a)(1) of the Act. 6. 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. 7. 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 10(c) of the Act, I hereby issue the following recommended: 11 ORDER Respondent, Herman Buns & Son, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging employees or otherwise discriminating against them because they engage in concerted activities for the purpose of mutual aid or protection. (b) 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) Offer Arthur L. Clark, John L. Durgin, Bobby J. Johnson, Daryl Moore, and Ronnie R. Steiff immediate and full reinstatement to their former jobs, or if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges. (b) Notify any of the above-mentioned employees, if presently serving in the Armed Forces of the United States, of their right to full reinstatement as provided in this Order in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (c) Make whole the employees referred to in subpara- graph (a) in the manner set forth in section V of this Decision entitled "The Remedy." (d) Preserve and, upon request, make available to the Board and its agents, for examination, copying, and reproduction, all social security payment records, payroll records, time records, accounts-receivable records, and all other data necessary or helpful to analyze and compute the backpay required by this Order and to ensure the proper reinstatement of employees as required by this Order. (e) Post at its office in Britt, Iowa, copies of the attached notice marked "Appendix." 12 Copies of the notice, on forms provided by the Regional Director for Region 18, 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, including 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. (f) Notify said Regional Director for Region 18, in writing, within 20 days from the receipt of this Decision, what steps Respondent has taken to comply herewith.13 11 In the event no exceptions are filed as provided by Sec. 102.46 of the 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 , automatically become the findings, conclusions, and order of the Board, and all objections thereto shall be deemed waived for all purposes. 12 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 the Judgment of a United States Court of Appeals enforcing an Order of the National Labor Relations Board." 13 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 for Region 18, in writing, 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 WE WILL offer Arthur L. Clark, John L. Durgin, Bobby J. Johnson, Daryl Moore, and Ronnie R. Steiff immediate and full reinstatement to their former jobs, without prejudice to their seniority or other rights and privileges, and WE WILL notify any of them presently serving in the Armed Forces of the United States of their right to full reinstatement in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. WE WILL pay the employees named above for any loss of earnings suffered as a result of the discrimina- tion which the Board has found we practices against them. WE WILL NOT discharge employees because they engage in concerted activities for mutual aid or protection. 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. HERMAN BUNS & SON, INC. (Employer) Dated By (Representative) (Title) HERMAN BUNS & SON 407 This is an official notice and must not be defaced by ing this notice or compliance with its provisions may be anyone. directed to the Board's Office, 316 Federal Building, 110 This notice must remain posted for 60 consecutive days South Fourth Street, Minneapolis, Minnesota 55401, from the date of posting and must not be altered, defaced, Telephone 612-725-2611. or covered by any other material. Any questions concern-