Cashway Lumber, Inc.

380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Cashway Lumber, Inc. and Chauffeurs, Teamsters, Warehousemen and Helpers Local Union 135, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America. Cases 25-CA-4851 and 25-CA-4917 March 13, 1973 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On November 15, 1972, Administrative Law Judge Samuel Ross issued the attached Decision in this proceeding . Thereafter, the Respondent filed excep- tions and a supporting brief, and the General Counsel filed a brief in support of the Administrative Law Judge'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 attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge 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 recommended Order of the Administrative Law Judge and hereby orders that Respondent, Cashway Lumber, Inc., Muncie, Indiana, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. 1 The Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions were incorrect . Standard Dry Wall Products, Inc., 91 NLRB 544, enfd. 188 F.2d 362 (C.A. 3). We have carefully examined the recoid and find no basis for reversing findings. DECISION STATEMENT OF THE CASE SAMUEL Ross , Administrative Law Judge : This case was tried in Muncie, Indiana, on June 29, 1972.' The charge in Case 25-CA-4851 was filed on March 24, and a complaint thereon issued on April 26. The charge in Case 25-CA-4917 was filed on April 28, and a complaint 1 All dates refer to 1972 unless otherwise noted. 2 On the motion of the General Counsel the entire record in a prior thereon and an order consolidating the cases issued on June 2. Pursuant to prior notice, the complaints were further amended at the hearing. The Company (the Respondent) filed answers denying the substantive allega- tions of the complaint and the commission of unfair labor practices. The principal issues presented for determination are: (a) Whether the Respondent unlawfully interrogated and threatened employees prior to a Board-conducted election; (b) whether it violated Section 8(a)(l), (3), and (4) of the Act by laying off two employees just before the election because of their support of the Charging Union, and because one of them gave testimony in prior Board proceedings; and (c) whether it subsequently discharged two additional active union supporters in violation of Section 8(a)(1) and (3) of the Act, or for cause. Upon the entire record,2 including my observation of the demeanor of the witnesses, and after due consideration of the briefs filed by the General Counsel and the Respon- dent, I make the following: FINDINGS OF FACT I. COMMERCE The Respondent, an Indiana corporation whose princi- pal office is located at Kent, Ohio, is engaged at various facilities including one at Muncie, Indiana, in the whole- sale and retail sale and distribution of lumber and related products. During the past year, a representative period, the Respondent admittedly purchased and caused to be shipped to its Muncie, Indiana, facility from places outside the State of Indiana, goods and materials valued at in excess of $50,000, and during the same period the Respondent's sales volume was in excess of $500,000. Accordingly, I find that the Respondent is an employer engaged in commerce and in operations affecting com- merce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED It is undisputed, and I find, that Chauffeurs, Teamsters, Warehousemen and Helpers Local Union 135, Internation- al Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (the Union), is a labor organiza- tion within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. A Thumbnail Picture of the Case The Respondent's Muncie, Indiana, lumberyard, some- times called Cashway 28, is 1 of about 50 lumberyards which the Respondent owns and operates. On September 30, 1971, when the employee complement of the Muncie yard was approximately 12, some of its employees, including Gary Brummett, one of the alleged discrimina- tees in this case, began an organizational campaign and signed authorization cards designating the Union as their unfair labor practice case against the Respondent (Case 25-CA-4590) was made part of the record in these consolidated cases. 202 NLRB No. 54 CASHWAY LUMBER, INC. collective-bargaining representative. Additional Muncie yard employees, including Philip Hines, Stanley Hutchens, and Ralph Perry, also alleged discriminatees herein, signed union cards a few weeks later. On October 21, 1971, Carl Wagner, the Union's business representative, hand deliv- ered to John Geib, the Respondent's Muncie yard manager, a letter claiming majority status and demanding recognition and bargaining. As found by the Board in a prior unfair labor case, the Respondent thereupon prompt- ly fired three employees because of their union activities, coercively interrogated employees concerning the identity of the Union's proponents, and under threat of discharge induced employees to sign statements abjuring their interest in the Union as their representative.3 On October 26, 1971, the Union filed a petition with the Board for certification as the collective-bargaining repre- sentative of the Respondent's yardmen, tow motor drivers, and truckdrivers employed at the Muncie yard. After a hearing on the said petition on January 5, the Regional Director on January 25 issued a Decision directing that an election be conducted among the employees of the Respondent in the following appropriate unit: All employees employed by the Employer at its Muncie, Indiana, establishment; but excluding all regular part-time employees, countermen office clerical employees, professional employees, guards and super- visors as defined in the Act.4 On February 2, the Respondent filed a timely request with the Board for review of the Regional Director's decision. This was denied by the Board on February 22 as raising "no substantial issues warranting review." On February 23, the day before the scheduled election, the Respondent terminated the employment of Philip Hines and Ralph Perry allegedly because of "lack of work." The next day, when Hines attempted to vote, his ballot was challenged by the Respondent for the reason that he no longer was an employee of the Company.5 Only two employees, Stanley Hutchens and Gary Brummett, cast unchallenged ballots at the Board election, and the tally of ballots disclosed that both voted for the Union and that eight ballots were challenged. On April 27, 2 days after the Board's hearing on challenged ballots, both Hutchens and Brummett were fired by the Respondent, allegedly for cause. As previously noted, the complaint in this case alleges that the termination of all four of these employees6 was motivated by antiunion considerations, that Hines' termi- nation also was motivated by his testimony against the Respondent, and that the Respondent thereby engaged in violations of Section 8(a)(3), (4), and (1) of the Act. B. Alleged Interference, Restraint, and Coercion 1. The hearing in the prior unfair labor practice case against the Respondent was scheduled for and held on February 15. About a week before that hearing, Yard 3 Cashway Lumber, Inc., 196 NLRB No. 174. 4 The Regional Director also found that Yard Foreman Joe Kane was a supervisor within the meaning of the Act. 5 Perry made no effort to vote. 6 Hines and Perry on February 23 and Hutchens and Brummett on April 27. 7 These were the employees who were found in the prior case to have 381 Foreman Kane told Philip Hines, a yard employee of the Respondent, that he had been subpenaed to testify at the forthcoming hearing, and Hines replied that he, too, had been subpenaed. Kane asked Hines, "Why?" Hines answered that "the Union or whoever it was thought I had some information that might help Rucker and Robinson and Tuttle." 7 Kane asked Hines "what kind of informa- tion" he had. Hines replied only that he "was going to tell the truth." 8 The complaint in Case 25-CA-4851, alleges, inter alia, that Kane's interrogation about the testimony Hines was going to give at the impending Board hearing constituted interference, restraint, and coercion of employees in the exercise of rights guaranteed by Section 7 of the Act, and thereby violated Section 8(axl). I find no reasonable support for such a characterization of Kane's question to Hines. The conversation between them clearly was casual. Kane did not question Hines about his forthcoming testimony until after Hines volunteered the information that he had been subpenaed to testify. The question which Kane asked Hines contained no coercive or restraining implication or connotation. To the contrary, it disclosed only a natural curiosity. Moreover, although obviously not dispositive, Hines clearly was not restrained by Kane's question, for he disclosed no compunction either about refusing to answer it, or in later testifying against the Respondent. I conclude from all the foregoing that Kane's interrogation of Hines did not constitute interference, restraint, or coercion of employees within the meaning of Section 8(a)(l) of the Act. 2. During the organizational campaign, several employ- ees of the Respondent were furnished by the Union with "campaign stickers." About a week before the Board election on February 24, employees Hines, Stanley Hutchens, and Gary Brummett were "building storage bins for doors" in the Respondent's warehouse when Manager John Geib came by and noticed some "rubber stencils" on a counter or shelf which had been arranged to spell "Local 135." Geib angrily told the three employees that this was "his lumber yard," that he had found a union sticker on his adding machine and several other places in the warehouse, and that if he "found any more of them" he would fire the employee "who was sticking them around." Geib also told the three employees that he "didn't care" if they put the stickers on their own property, but "not to be sticking them on his." 9 The complaint in Case 25-CA-4851 alleges, and the General Counsel contends, that Geib's threat to discharge any employee who posted union signs on the Respondent's property constitutes interference, restraint, and coercion of employees in the exercise of Section 7 rights, and violates Section 8(axl) of the Act. The General Counsel's brief characterizes Geib's statement both as a threat to discharge employees because of their union activities, and as the promulgation of an "unlawful no-distribution rule," but it been discharged by the Respondent in violation of Section 8(aX3) of the Act. 8 The findings above are based on Hines' uncontroverted testimony which is credited. 9 The findings above are based on a composite of the uncontroverted testimony of Hines and Hutchens which I credit. 382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cites no authority to support either of these contentions. I regard these contentions as unsupported by the record. There was no testimony that the Respondent permits other stickers or literature to be posted on its premises. I do not regard the rights of employees under the Act to engage in union activities at an employer's premises, and to distrib- ute union literature, to include the right to post union stickers on the employer's walls and property. I therefore perceive no infringement of employees' rights under the Act in Geib's threat to discharge any employee who posted union stickers on the Respondent's property. Accordingly, I recommend dismissal of the complaint insofar as it alleges that Geib's conduct in this regard violated Section 8(a)(1) of the Act. C. The Discriminatory Layoffs of Philip Hines and Ralph Perry 1. The prima facie case Ralph Perry was hired by the Respondent on October 16, 1969, to work as a regular part-time yardman at the Muncie yard. Philip Hines was hired on September 7, 1971, to work as a full-time yardman. Both Hines and Perry signed union authorization cards in mid-October 1971 at the union hall. On February 15, during the hearing in the prior unfair labor practice case against the Respondent, Hines' union card was received in evidence, and that of Perry was offered but rejected and placed in the rejected exhibit file.10 The Respondent thus had knowledge that both Hines and Perry had designated the Union as their collective-bargaining representative. Hines testified for the General Counsel on February 15 in the case against Respondent. Based in part on his testimony, the Board found, notwithstanding the Respondent's contrary conten- tion, that Yard Foreman Kane was a supervisor within the meaning of the Act, and that the Respondent, through Kane, had engaged in unlawful interrogation of employees to ascertain the identity of the Union's employee organiz- ers.11 On Wednesday, February 23, in the middle of the Respondent's workweek,12 and just 8 days after Hines testified in the prior case as described above, the Respondent, without prior notice or warning, advised both Hines and Perry that their employment was terminated for lack of work. Both were reinstated about 3 months later; Hines on May 8, and Perry on May 18. During the first 3 days of the week in which they were laid off, Hines' and Perry had worked 29 1/2 and 23 hours, respectively. In addition, in the 3-full weeks in February which preceded their layoff, Perry had worked 52 1/2 hours, 51 1 /2 hours, and 53 hours, and Hines had worked 50 hours, 53 hours, and 43 1/2 hours.13 Furthermore, according to the uncontroverted testimony of Hines and 10 Perry was not a witness in the prior case against Respondent, and his card was rejected because Carl Wagner, the Union's agent through whose testimony the card was offered, did not see Perry sign the card. 11 196 NLRB No. 174. As previously noted, the Board also found that three employees who assertedly had been terminated by the Respondent in October and November 1971 for lack of work, had in fact been discharged because of their support of the Union. 12 The Respondent's payroll week begins each Monday and ends on Saturday. The employees are paid for that week's work on the following Thursday or Friday. Perry, at the time of their layoff, there were freight cars waiting to be unloaded, and they were doing other work which kept them "busy all day." Finally, although the layoff, according to Respondent's manager Geib, was motivated by a seasonal reduction in business, and was never intended to be other than temporary, when Hines attempted to vote at the Board-conducted election on February 24, the day after his layoff, his ballot was challenged by the Respondent on the ground that he "was no longer an employee of the Company." 14 All of the foregoing, including the timing of the layoffs in midweek just 1 day before the Board election, and the subsequent challenge to Hines' ballot, presents a very persuasive prima facie case that the layoffs were motivated by antiunion considerations, and in the case of Hines, also by his testimony against the Respondent in the prior unfair labor practice proceeding. 2. The affirmative defense According to Yard Manager Geib, the reason for the layoff of two employees on February 23 was: February is a very slow month. My payroll was about the same. It was costing me too much to operate. I was actually operating at a loss. There was not enough business to keep every body at the yard busy. Geib further testified that Perry was selected for layoff because he was a part-time employee, and because "he was one of the lower men on the totem pole," not by virtue of lesser seniority, but in "productivity" and in the number of his "errors." Geib offered no explanation for his selection for layoff of Hines, a regular, full-time employee. As hereinafter noted, I regard Geib's explanations for these sudden, mid-week, layoffs without prior notice as unwor- thy of any credence or reliance. The work which the Respondent's yardmen are required to perform undisputedly is directly related to the Compa- ny's sales and purchases of lumber and other materials.15 Geib admittedly had available daily records of the purchases and sales of the Muncie yard, and he assertedly based his decision to lay off Hines and Perry on February 23 on those records. However, a compilation of the Respondent's sales and purchases to which the parties stipulated,16 discloses that the volume of purchases and sales in February 1972 (toward the end of which the layoffs occurred) were substantially (72 percent) higher than those in January 1972, when the Respondent laid off no employees.17 These figures, and the substantial number of hours including overtime worked by Perry and Hines in February 1972 prior to their layoff, lends credence to their testimony that there was ample work for them in the 13 Joint Exh. 1. 14 Perry made no attempt to vote because, as he testified, "I figured that since I was laid off that I wasn't eligible to vote." 15 The purchases must be unloaded from trucks or freight cars, and sorted and stacked in the Respondent 's yard and warehouse . The sales must be taken from the stacks and loaded for delivery , either on the customer's vehicle or the Company's truck. 16 Resp. Exh. 3. 17 The total February volume was $132,855; that in January was $77,231. CASHWAY LUMBER, INC. 383 Respondent's yard at the time of their peremptory termination.18 Furthermore, although the layoff of Hines and Perry assertedly was motivated (according to Geib) because the Muncie yard "was actually operating at a loss," the Respondent produced no records to support this conclusion, nor any explanation for the failure to do so. I infer therefrom that the records if produced would not have supported Geib's testimony in this regard.19 More- over, contrary to Geib's testimony that a layoff was required because of lack of work, the record clearly discloses that after February 23, John Whitsett, an employee who had been hired less than 2 months earlier, and who previously had worked only on Saturdays, was given full-time work in the 2 weeks immediately following the layoff, and that thereafter additional part-time help whom Geib described as "a couple of kids" admittedly were hired to unload "boxcars at night, in the evening." All of the foregoing persuade me that no credence whatsoever can be accorded to Geib's testimony regarding his reasons for the layoff of Hines and Perry in midweek on the day before the Board election, and that the Respondent has failed to support its affirmative defense by credible, competent, evidence.20 3. Conclusion In the light of the patently incredible and pretextual reasons asserted for the layoffs of Perry and Hines, the real reason therefor is quite obvious. Perry and Hines were known by the Respondent to be union supporters. In addition, Hines had only recently testified against the Respondent in the prior unfair labor practice case. The Respondent was opposed to the representation of its employees by the Union. The Board election was sched- uled for the following day. By terminating their employ- ment, the Respondent would be able to challenge their right to vote on the ground that they no longer were employed by the Company. In fact, that is precisely what the Respondent did when Hines attempted to vote the next day. All the foregoing persuade me that the terminations, or layoffs, of Hines and Perry were motivated by antiunion considerations, and that Hines also was discharged because he gave testimony under the Act in the pnor case against the Respondent. I therefore find that the Respon- dent thereby engaged in unfair labor practices within the meaning of Section 8(a)(3), (4), and (1) of the Act. 18 Moreover, although the Respondent's purchases and sales a year earlier (in January and February 1971) were comparable to those in January and February 1972, Perry was not then laid off for lack of work or for any other reason, and he worked practically full-time hours throughout January, February, and March, 1971 19 International Union, UA W v N L R B, 459 F 2d 1329 (C A D.C , Jan. 25, 1972), Wigmore, Evidence, Sec 285 (3d ed 1940) 20 I note further in this regard that in the prior case in which Geib similarly had asserted that three union supporters were terminated in October and November 1971 for lack of work, he testified that he retained Hines, then a newly hired employee with lesser seniority than the alleged discnminatees , because Hines was a "better employee" and "more valuable to our company." I note further that contrary to Geib's testimony in the D. The Discriminatory Discharges of Stanley Hutchens and Gary Brummett 1. The General Counsel's prima facie case Stanley Hutchens was first employed by the Respondent in April 1969. At the times material herein, he worked for the Company as a truckdnver and a yardman. Gary Brummett was hired by the Respondent on April 12, 1971, and worked thereafter as a yardman. Both Hutchens and Brummett were fired by the Respondent on April 27, 1972, assertedly because of misconduct they allegedly engaged in on April 26, the day before their terminations. The complaint in this case alleges that Hutchens and Brummett were fired because of their support of the Union, and that the Respondent thereby further violated Section 8(a)(3) and (1) of the Act. The incident which assertedly motivated the Respon- dent's termination of Hutchens and Brummett on April 27 occurred on April 26 in the forenoon. About 10 a.m. on April 26, Hutchens was given a ticket by Yard Foreman Joe Kane to deliver 24 squares of roofing shingles to the home of Mrs. Earl Oliver. A square of shingles consists of three bundles, each of which weighs 80 pounds. Upon receipt of the ticket, Hutchens proceeded to load the Respondent's truck with the shingles with the use of a towmotor. Hutchens' loading process was interrupted a few times while he "waited on some customers." After the truck was loaded, he filled its tank with gas at the Company's pump, checked the oil, and left the yard to make the delivery about 11 a.m. Just before he left, Hutchens asked Foreman Kane if there would be anyone at the delivery site to help him unload, and Kane replied that help was supposed to be available. Hutchens then said that if there was no help at the delivery site he would return to the yard "and get some help." Kane responded, "That's all right. I don't blame you for wanting some help on that load."21 Hutchens was unable to find the place of delivery, and about 11:20 a.m., he called the Respondent's yard and was advised that the delivery site was next to the "Robinson job" about one-half mile from the Respon- dent's yard. Hutchens then proceeded to the correct place of delivery where he was told by Mrs. Earl Oliver, the customer, that there was no one there to assist him with the unloading, and that she wanted half of the load to be put "around behind the house" and the other half in front. Hutchens told Mrs. Oliver that he would have to go back to the Respondent's yard and "get some help." Hutchens got back to the Respondent's premises about 11:45 a.m., just as Gary Brummett was getting into his car to eat his "dinner." Hutchens asked Brummett to help him instant case, that Perry was selected for layoff despite his greater seniority because of his "errors," Geib previously had recommended Perry for two wage increases, the first (May 1970) because he was "very dependable -watches out for Cashway," and the second (February 1971), because he "is the most accurate of the yardmen-even catches errors in multiplication on sales tickets!" 21 The findings and quotes above are based on Hutchens' testimony which I regard as generally reliable and credit Kane, a witness for the Respondent, denied that Hutchens inquired whether assistance was available at the site of the delivery, and he also denied that he authorized him to come back and "take someone with him" if help was not available As noted infra, I place no credence in Kane's denials of Hutchens' testimony 384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD unload the shingles. Brummett asked Hutchens whether he had received "permission" for Brummett to help him. Hutchens replied that he had obtained such permission "from Joe [Kane]." Brummett then got into the truck with Hutchens, and they drove back together to Mrs. Oliver's house where they unloaded the shingles, and then returned to the Respondent's yard. It was then 12:35 p.m. Brummett then proceeded to finish his dinner, and Hutchens returned to work in the Respondent's warehouse. For the rest of that day, both Hutchens and Brummett performed their usual duties for the Respondent, which included waiting on customers, filling their orders, and, in the case of Hutchens, also making another delivery that afternoon. Although they both were seen at work all that afternoon by both Manager Geib and Yard Foreman Kane, no adverse comment or reprimand was directed to either Hutchens or Brummett for the admittedly known fact that Brummett had left the yard to assist Hutchens with the unloading of the roofing shingles at Mrs. Oliver's house, or for any alleged impropriety in their conduct of the delivery.22 On the following morning (April 27) both Hutchens and Brummett reported for work at the Respondent's yard at 7:30 a.m., their usual starting time. About 8 a.m., Foreman Kane directed Hutchens to deliver a load of windows to Eaton, and instructed Hutchens to get Brummett to help him to load the truck. While Hutchens and Brummett were engaged in loading, Manager Geib came over and helped them with some of the larger picture windows. Neither Geib nor Kane said anything to Hutchens or Brummett about the shingles' delivery of the previous day. Upon Hutchens' departure with the windows, Brummett returned to waiting on a few customers. Then, about 9 a.m., for the first time since the shingles' delivery made at noon on the previous day, Geib said to Brummett that he would like to hear the latter's version of the shingles' delivery. Brummett asked, "What shingles?" Geib said the shingles which Brummett "helped Stanley unload the day before." Brummett answered, All I did was he [Hutchens] came out there while I was at dinner and said I was supposed to help him unload them. And I asked him if he'd got permission and he said yes and I went and helped him unload them. Brummett also told Geib that he saw nothing wrong with what he did. Geib responded that "he couldn't have me [Brummett ] doing that and that he couldn't use me anymore." 23 After delivering the load of windows in Eaton, Indiana, Hutchens returned to the Respondent's yard about 10:30 to 11 a.m., and was told by a fellow employee that Brummett had been fired for going with him on the shingles' delivery the previous day. He immediately sought out Foreman Kane and asked him what had happened. Kane replied that he knew nothing about it. Hutchens then 22 The findings above are based on the uncontroverted testimony of Hutchens and Brummett which I regard as reliable and credit. 23 The findings above are based on Brummett's and Hutchens' testimony which I credit According to Geib, on April 27, when he asked Brummett why he left the yard with Hutchens the previous day, Brummett replied, "I just felt like going" Brummett categorically denied making any such statement to Geib, and I credit his denial as more reliable than Geib's testimony which I regard as worthy of little credence 24 The findings in the preceding paragraph are based on Hutchens' resumed the work he had been doing before he left to deliver the windows. A short while later, Geib came up and called to Hutchens to come down from the truck on which he was standing. Geib then told Hutchens, "We can't have you guys doing them [sic] kind of things. Leaving without permission and all that." Geib also accused Hutchens of - "stopping by my [Hutchens'] house when I had a load going out [that way]." He told Hutchens that he would be unable "to use" him "anymore," and Hutchens responded, "That suits me fine." Hutchens testified that his response to Geib was prompted by a remark previously made to him by Foreman Kane that "they [the Respondent] were looking for a reason to fire us anyway."24 Brummett signed a union authorization card on Septem- ber 30, 1971, and Hutchens did likewise on October 18, 1971. Thereafter, at the election conducted by the Board at the Respondent's yard on February 24, Brummett and Hutchens cast the only ballots which were not challenged by either party. Inasmuch as the tally of ballots disclosed that the two votes were for the Union,25 the Respondent obviously then knew (even if it did not previously know) that Hutchens and Stanley were union adherents. - More - over, as Brummett was the Union's observer at the election, the Respondent obviously also knew that he was a union protagonist. As previously found by the Board in the prior case against the Respondent, immediately after the Union demanded recognition as the collective-bargaining repre- sentative of the Muncie yard employees, the Company terminated the employment of three employees because of their support of the Union.26 In addition, as found above, on the day before the scheduled Board election, the Company laid off two additional employees, Hines and Perry, for antiunion reasons, and although according to the Respondent these terminations assertedly were seasonal and temporary, it nevertheless then challenged the ballot of Hines on the ground that he no longer was an employee of the Company. It is thus obvious that the Respondent was and is violently opposed to the representation of its employees by the Union. According to their foreman, Kane, neither Hutchens nor Brummett were ever previously reprimanded for loafing or for not working fast enough. Before the advent of the Union, Manager Geib, in recommending Brummett and Hutchens to the Respondent's main office for raises, had described Brummett as a "Reliable Good Worker,"27 and had said of Hutchens, that he "Has been doing a real good job on deliveries."28 According to the credited testimony of several of the Respondent's employees, the assignment of yard employees to assist the truckdrivers with unloading at the delivery site is not unusual. There is no evidence that Hutchens had ever previously, without authority, solicited any employee to go with him to help him unload the truck, uncontroverted testimony which is credited Kane, a witness for Respon- dent, did not deny making the quoted statement which was attributed to him by Hutchens 25GCExh9. 26 As of the date of the hearing in this case, none of these three discnminatees had been reinstated by the Respondent 27 G C Exh 15 26 G C Exh 12. CASHWAY LUMBER, INC. nor any evidence that Brummett had ever previously left the yard without permission . Furthermore, although Kane admitted that Brummett told him during the afternoon of April 26 that Hutchens had said to Brummett that he had permission to take Brummett with him, neither he nor Geib made any effort to verify the truth of that statement before Geib fired Brummett the following day. Moreover, on April 26 at 2 p .m., Geib knew all the grounds for which he assertedly fired Hutchens and Brummett, but nevertheless did not discharge them, permitted them to continue working without question or reprimand the rest of that day, and to report and work several hours the next day before firing them. In the context of the Respondent's predilection for discharging employees because of their support of the Union, the foregoing establishes at least prima facie that the discharge of Hutchens and Brummett on April 27 was based, not on their alleged misconduct in connection with the shingles delivery on April 26, but rather on their support of the Union to which the Respondent was opposed. 2. The pretextual reasons asserted for the discharge of Hutchens and Brummett The General Counsel's prima facie case gains added support from the pretextual reasons asserted by the Respondent for the discharge of these two employees, and from the contradictory , implausible, and incredible testi- mony in support of these assertions. In an affidavit sworn to by Respondent Manager John Geib on May 26,29 the only reason for which he assertedly fired Hutchens and Brummett on April 27 was their allegedly improper conduct in connection with the delivery of the load of shingles on April 26. In sum, the affidavit stated that : Hutchens first was unable to find the jobsite where the shingles were supposed to be delivered, and had to call up for instructions regarding its location; that subsequently Hutchens returned to the yard and "picked up Gary Brumet [sic ] without any authority and for no apparent reason"; that thereafter they were seen by James Chumley at the delivery site "not unloading the truck and sitting on the shingles talking"; and that Geib "found out about the incident in the evening [of April 26] and began questioning employees to find out all the facts." The affidavit then concluded as follows: 9. I discharged Gary Brumet [sic] and Stanley Hutchins [sic] on the morning of April 27 , 1972, for the following reasons: a. Hutchins was observed driving the truck to places he should not be driving the truck and for loafing. b. Brumet was discharged for leaving the yard without permission and for loafing. 10. When I confronted both employees they gave no excuse for their action and acted as if I could not fire them. At the hearing in this case , Geib testified that he also fired Hutchens for reasons unrelated to the April 26 incident. In this regard Geib testified that Hutchens was 385 fired because : (a) in February , before going on vacation, Hutchens failed to report that some parts he had transported to a customer had been damaged in transit and had to be replaced; (b) on one occasion the Respondent's truck became inoperative in front of Hutchens' house at a time when it was not supposed to be there ; (c) occasionally when making deliveries Hutchens forgot to take a box of nails with him or felt paper for a roofing job; (d) on one occasion he "mashed" a customer's shrubs by carelessly throwing material on the ground ; and (e) without permis- sion Hutchens occasionally stopped at his house for dinner in the course of making deliveries for the Respondent. I place no credence in Geib's testimony that Hutchens' dismissal was motivated by any of these additional reasons. I base this finding both on Geib's significant failure to mention these reasons for Hutchens' dismissal in his affidavit, and on the following additional considera- tions: Hutchens admittedly was laid off by Geib on March 16, 1972, and recalled on April 5, 1972, 3 weeks before his discharge. The delivery in connection with which Hutchens allegedly failed to report that damaged parts required replacement occurred in February 1972 before Hutchens' layoff and recall. The incident when the Respondent's truck stalled in front of Hutchens' house at a time when he allegedly was not supposed to be there occurred in January, and thus likewise preceded Hutchens ' layoff and recall. The incident in which Hutchens allegedly "mashed some shrubs" occurred "about two years ago ." Geib's vague testimony regarding Hutchens' alleged failure to take nails and roofing paper with him on deliveries indicated that these asserted omissions occurred before Hutchens' vacation in February 1972, and thus also occurred before Hutchens' layoff and recall. Inasmuch as Hutchens was recalled from his layoff by Geib after all these alleged incidents, and notwithstanding these alleged shortcomings, and in view of Geib's failure to refer to any of them in his affidavit as a contributing reason for Hutchens' termination, I regard Geib's testimony that Hutchens' dismissal was motivated by these allegedly additional reasons as worthy of no credence whatsoever. The only specific "additional " incident which assertedly motivated Hutchens' dismissal that occurred after his reinstatement on April 5 happened about 10 days before Hutchens was fired. It involved a customer named Smoot who was building a house about 100 yards from Manager Geib's home. According to Geib, Hutchens left the yard with the delivery to Smoot's house about 5:25 p.m. Gelb testified that although the distance to thisjobsite was only 7 or 8 miles, Hutchens did not arrive at the jobsite until I hour and 10 minutes later. Geib further testified that he was at the jobsite when Hutchens arrived with the delivery, and he admitted that he did not reprimand Hutchens for his alleged tardiness in making the delivery , at least not until the following day. However, according to Hutchens, whose testimony I regard as more reliable than Geib's, the delivery to Smoot "was a pretty good sized load"; he was still loading it at 6 p.m.; it was about 6:30 p.m. before he left the Respondent's yard to make the delivery; he had received permission from Kane to stop at his house for 29 G C Exii 6 386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dinner after making the delivery; he drove directly to Smoot's jobsite from the yard; Geib was there when he arrived and assisted him in the proper dumping of the load; and after making the delivery, he stopped, "ate supper," and then returned to the yard about 7:30 p.m. Hutchens also denied that Geib ever reprimanded him for his alleged tardiness in connection with this delivery. Foreman Kane, a witness for the Respondent, admitted that, he occasionally permitted Hutchens to stop at his home for dinner before making a delivery, and he was unable to recall whether or not he had done so in connection with the Smoot delivery. I conclude from all the foregoing, including the 10-day interval between this delivery and Hutchens' discharge, and the absence of any reference thereto in Geib's affidavit which purportedly enumerated all the reasons for Hutch- ens' dismissal, that the assertion that Hutchens was discharged because of this incident is a pretext which is unworthy of any credence. As previously noted, according to Geib's affidavit, Brummett was fired on April 27 because he left the yard on April 26 without prior permission, and because he loafed at Mrs. Oliver's house instead of unloading the shingles promptly. However, as in Hutchens' case, at the hearing Geib expanded on and gave additional reasons for Brummett's dismissal. Thus, when Geib, then a Section 43(b) witness, was asked why he terminated Brummett, he testified that it was not only because he left the yard with Hutchens on April 26 without permission, but also because Geib had been told by several employees80 that Brummett was telling them "they didn't have to take out a delivery with just one person anymore," "that I [Geib] couldn't make him work, he wasn't going to quit and that I couldn't fire him. Things like that." I regard these asserted additional grounds for Brummett's discharge as incredible, pretextual, afterthoughts for the following reasons: Although Geib assertedly received these reports about what Brummett allegedly was telling employees a week before Brummett's termination, Geib admittedly never asked Brummett whether he said these things, or whether the reports were true. Moreover, Geib admittedly never reprimanded or admonished Brummett for making these alleged statements to employees. I note, moreover, that according to Geib's own version of their terminal conver- sation on April 27, the only reason given by Geib to Brummett for his discharge was that he had left the yard without permission. In view of the foregoing, I place no credence in Geib's testimony that Brummett's termination was motivated by these alleged reports. This leaves for consideration the Respondent's assertion that Hutchens and Brummett were fired on April 27 for their alleged misconduct on April 26 in connection with the delivery of the roofing shingles to Mrs. Oliver's house. As hereinafter found, the testimony of the Respondent in support of this assertion was patently self-contradictory, evasive, equivocal, dissembling, and implausible. Basically, the misconduct for which Hutchens and Brummett assertedly were fired was: (a) Hutchens, allegedly without authority, solicited Brummett to go with 30 The employees who allegedly reported this to Geib were James Chumley, Gail McCord, and Foreman Joe Kane. him to Mrs. Oliver's house to help him unload the roofing shingles, and Brummett accompanied him without asking for permission; and (b) both Hutchens and Brummett allegedly loafed at the jobsite and thereby unduly extended the length of their absence from the Respondent's yard. (a) The issue as to whether or not Hutchens was authorized by Foreman Kane to get someone to help him unload the shingles if no assistance was available at the delivery site presents a pure credibility question. As previously noted, Hutchens testified that he requested and obtained such authorization from Kane before he left the Respondent's yard to make this delivery, and Kane denied Hutchens' testimony in this regard. Although I have credited Kane's testimony in several other respects, I credit Hutchens' testimony in this regard as more reliable than Kane's for the following reasons: The load which Hutchens was delivering consisted of 72 bundles of shingles each of which weighed 80 pounds. They had been loaded on the flat bed truck with the help of a tow motor and were stacked on the truck "ten squares high." For one person without help to unload would have required him to climb up on the truck, place a bundle on the bed of the truck near its edge, climb down from the truck, carry the bundle to its place of deposit, and then repeat the entire process of climbing up and down from the truck again and again until all 72 bundles were unloaded. In view of the obvious difficulty with this procedure, Hutchens' testimony that he requested help is more plausible than Kane's testimony that he didn't, and I therefore credit the former. Moreover, the subsequent conduct of all the parties involved lends credence to Hutchens' testimony that Kane granted his request and authorized him to come back for help if none was available at the delivery site. Thus, as previously noted, when Hutchens discovered that there was no one at the delivery site who could help him unload, he came back to the yard, asked Brummett to come with him and help unload the shingles, and told Brummett that he had authority from Kane for Brummett to assist him. I find it difficult to believe that Hutchens would have done what he did and said this to Brummett unless, as he testified, such authority had been given to him by Kane. I note in this regard that Hutchens and Brummett returned from this delivery about 12:35 p.m. on April 26, and both Geib and Kane then knew that Brummett had accompanied Hutchens. I note further that Foreman Kane admittedly asked Brummett why he accompanied Hutchens on this delivery, and was told that Hutchens had told Brummett "that he had permission to take him [along]." Notwithstanding the foregoing, neither Brummett nor Hutchens were admon- ished or reprimanded for allegedly acting without authority or permission until their discharge almost 24 hours later.31 I conclude from the foregoing, contrary to Kane's denials, that Hutchens requested and was authorized by Kane to come back to the yard for unloading assistance if none was available at the delivery site. It follows, a fortiori, that I place no credence in the Respondent's (Geib's) testimony that Hutchens' and Brummett's discharge the next day was 31 Geib's implausible explanations for not immediately firing Hutchens and Brummett will be analyzed, infra CASHWAY LUMBER, INC. motivated by their making this delivery jointly without authority and/or permission. (b) We come then to the Respondent's assertion and Gelb's testimony that Hutchens and Brummett were fired for "goofing off" (loafing) during the delivery of the shingles. The only direct testimony that these two employ- ees loafed during the shingles' delivery was given for the Respondent by James Chumley, a counterman employed by the Respondent. Chumley testified that on April 26, sometime between 11:15 and 11:30 a.m., as he was leaving the Respondent's yard to go home for dinner, the Company's truck "was leaving just ahead of me" with Hutchens and Brummett; he passed the truck as it turned into the delivery site ; he continued on to his home, ate dinner, and then drove back to the yard; he "passed the job again" on the return trip about 12:20 p.m. and saw Hutchens and Brummett sitting "on the roofing" with "their elbows behind them"; at that time, "it [the truck] was not unloaded," and he "could see the whole load was on there"; he got back to the yard about 12:25 p.m.; thereafter at 2 p.m., and again later that afternoon while at work, and once again that evening while bowling, Gelb asked Chumley whether he had seen Hutchens and Brummett at the jobsite, and whether they had asked him (Chumley) for permission "to go [together] on the load"; and on each occasion, he repeated to Geib that he had not given them permission to go, and that he had seen "both of them on the truck and on the roofing laying [sic] down" Geib's testimony in this regard was as follows: About "eleven, eleven-fifteen, eleven-thirty-a quarter till twelve," Geib started to look for Brummett but "couldn't find" him; Geib "asked a couple of people" where Brummett was, "because I thought maybe he had fallen down, lumber fell on him or something like that"; he next saw Hutchens and Brummett return from the delivery of the shingles "in the truck together back at the yard about twelve-thirty," but he admittedly did not ask either of them where they had been because he was "very busy," but he nevertheless commenced "an investigation of what had happened"; "I probably started right then asking a few questions"; at 2 or 3 p.m., he asked Chumley whether he had sent Brummett with Hutchens, and Chumley not only told him "no," but also that he had "passed Gary [Brummett] and Stanley [Hutchens] going to the jobsite at about eleven-twenty- five," and "when he [Chumley] came past [again] at twelve-ten," "they were sitting out on the shingles" and "they got back to the yard about twenty-five after, twelve- thirty"; that he then asked Kane whether he had sent Brummett with Hutchens and Kane said, "No"; that he nevertheless did not question Hutchens or Brummett about their alleged misconduct "the rest of the afternoon" because "I was very busy. And I wanted to make sure about the facts before I did something," "I wanted to hear their side of it"; moreover, he "didn't have enough time to 32 The quoted matter in the preceding paragraph are from Geib's testimony Although Geib testified that he "asked them in the morning" for "their side of it," he gave no testimony regarding the nature of the inquiry , if any, which he directed to Hutchens before he fired him 33 In this regard, it is significant that although Geib admittedly saw Hutchens and Brummett return in the truck together about 12 30 p in, he addressed no inquiry to either of them as to where they had been. 387 fire them"; the next morning, although Gelb and Brum- mett worked together until 9 a.m. helping Hutchens load windows on the truck, Gelb did not ask either of them for their "side of it" until Hutchens left with the delivery; then for the first time he asked Brummett why he went with Hutchens the previous day on the "shingle deal," and whether he had permission to do so; Brummett replied that he "just felt like going" and Geib then fired him ; and after Hutchens returned from his delivery, Geib fired him about 11 a.m.32 As hereinafter explicated, I regard the testimony of Chumley, that he observed Hutchens and Brummett "laying" on the full load of shingles, and of Geib, that he fired them for loafing, as pure prevarication. According to the undisputed testimony of Foreman Kane and Brum- mett, the latter's usual "dinner" hour is from 11:30 a.m. to 12 noon, and that of Gail McCord, another yard employee, is immediately after Brummett's. On April 26, however (the day that the shingles were delivered), McCord at 11:15 a.m. requested and, with Brummett's acquiescence, was given permission by Kane to take his dinner hour between 11:15 and 11:45 a.m. Brummett accordingly continued to work in the yard until 11:45 a.m. Brummett had just started his dinner and was sitting in his car in the yard when Hutchens came back with the load of shingles and asked Brummett to accompany him. Brummett agreed to go after he asked, and was told by Hutchens that permission for Brummett to assist him had been obtained from Foreman Kane. They left the yard together in the truck at 11:50 a.m. In the light of the foregoing, I place no credence in Geib's testimony that he looked for Brummett at 11, 11:15, 11:30, and 11:45 a.m., since this included the period when Brummett usually took his dinner hour, and because, if Geib had in fact looked at any of these times, he obviously would have found Brummett for the latter did not leave the yard until 11:50 a.m. I therefore regard Geib's testimony that he looked for Brummett as mendacious, and his profession of concern for Brummett's well being as utter hypocrisy 33 Moreover, inasmuch as Brummett and Hutch- ens did not leave the yard together until 11:50 a.m., it is obvious that Chumley's testimony that he followed them out of the yard between 11:15 and 11:30 a.m. is likewise unworthy of any credence.34 As previously noted, according to Chumley, about 12:20 p.m. he again passed the jobsite enroute back to the Respondent's yard, he assertedly saw Hutchens and Brummett sitting on the whole load of shingles, and none of it had been unloaded. This testimony is another fabrication. The distance between the jobsite and the yard concededly was not great. It took Chumley just 5 minutes to get back to the yard after he allegedly saw Hutchens and Brummett sitting on the full load of shingles. However, 34 I note in this regard that Chumley testified on cross-examination that he saw Hutchens and Brummett through the window "in the back of the cab of the truck," but when questions were directed to him to show that the cab window probably was obstructed by the shingles on the truck, he first equivocated and then , when alerted by Respondent's counsel that he could have seen Hutchens and Brummett when he passed their truck, he changed his testimony and said that he saw them when he "was parked beside it [the truck ]. 388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Brummett and Hutchens returned to the yard with the unloaded truck only 5 or 10 minutes after Chumley.35 Thus, according to Chumley's testimony, Hutchens and Brummett would have had to unload the fully loaded truck in 10 minutes or less. This in my view was a physical impossibility. The load, as previously noted, consisted of 72 bundles each weighing 80 pounds. Half the load (36 bundles) had to be placed on the rear porch, a distance of 25 to 30 feet from the truck. This required 36 trips from the truck to the porch with an 80-pound load, and a like number of return trips to the truck to pick up the next bundle. The other half of the load had to be unloaded and placed in front of the house, and thus obviously consumed less time. Hutchens testified that the entire unloading process took about one-half hour. This appears plausible and reliable and I credit it. Moreover, Hutchens' testimony in this regard accords substantially with the length of time he and Brummett were away together from the Respon- dent's yard.36 All of the foregoing, including Chumley's evasions and equivocations at the hearing, persuade me to place no credence whatsoever either in his testimony that he saw Brummett and Hutchens loafing on the shingles at the jobsite, that they did not begin to unload the truck until he passed them at 12:20 p.m., or that they unloaded 72 bundles in less than 10 minutes.37 I not only disbelieve Chumley's testimony that he saw Hutchens and Brummett loafing at the delivery site of the shingles, but also I am persuaded that no credence can be placed in Genb's testimony that they were fired, inter aha, for loafing. In this regard, I note that by 2 p.m. on April 26, Geib's so-called "investigation" assertedly had disclosed that: Brummett had not received permission either from Kane or Chumley to help Hutchens with the delivery of the shingles; 38 Kane had been told by Brummett that Hutchens had advised him that he had been authorized by Kane to take Brummett with him; and Hutchens and Brummett had been seen loafing by Chumley at thelobsite. Geib thus then had in his possession all the information for which he assertedly subsequently fired Hutchens and Brummett after they had worked several hours on the following day. The only additional information needed by Geib to complete his so-called investigation was to ask Brummett and Hutchens for their "side of it." Both were available in the yard for questioning about the delivery. Yet Geib did not question them, allegedly because he was "too busy." I note, however, that according to his own testimony, Geib was not too busy to repeatedly question Chumley, Kane, and employee McCord. I therefore regard as implausible, and place no credence in, Geib's explana- 35 Geib testified that he saw them return to the yard at 12.30 p in , and both his and Chumley's pretrial affidavits (G C Exhs 6 and 10, respectively) accord with Geib's testimony in this regard Hutchens testified that he and Brummett returned about 12:35 p in 36 They were away together from 11:50 a in to 12 35 p.m, a total of 45 minutes Allowing 10 minutes for driving to and from the jobsite, they spent just 35 minutes to unload the 72 bundles 37 When Chumley was asked on cross-examination how much time it should have taken Brummett and Hutchens to unload the shingles, his testimony was a masterpiece of evasion and attempted obfuscation First, he testified that he had "no idea" how long it should take. He then was shown his pretrial affidavit in which he stated that one employee generally unloads shingles in 20 minutes, and was asked if he still maintained that he didn't know how long it takes to unload 24 squares of shingles He responded, "I tion for his failure to promptly question Brummett and Hutchens about this incident, and for his failure to admonish, reprimand, and/or fire them until late in the following morning. I note, moreover, that according to his own testimony, when Geib finally got around to firing Hutchens and Brummett the following day, he did not ask Hutchens for any explanation for his allegedly unauthor- ized conduct the previous day, and he said nothing to either Hutchens or Brummett that might indicate that their discharge was based on loafing while delivering the shingles.39 I regard as aptly descriptive of the testimony of Geib and Chuniley, the words of Judge Learned Hand in Dyer v. MacDougall, 201 F.2d 265, 269 (C.A. 2), quoted with approval by the Supreme Court in N.L.R.B. v. Walton Manufacturing Co., 369 U.S. 404, 408: For the demeanor of a witness 11. . . may satisfy the tribunal, not only that the witness' testimony is not true, but that the truth is the opposite of his story; for the denial of one, who has a motive to deny, may be uttered with such hesitation, discomfort, arrogance or defiance, as to give assurance that he is fabricating, and that, if he is, there is no alternative but to assume the truth of what he denies." I therefore regard the assertion that these two employees were fired for loafing as still another afterthought and pretext dredged up by Geib to conceal the Respon- dent's true motivation for its conduct, the systematic elimination of all its employees who supported the Union. Accordingly, I find that the Respondent fired Hutchens and Brummett because they supported the Union, and that it thereby engaged in further unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relation 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 Having found that the Respondent has engaged in certain unfair labor practices, I will recommend that it have never unloaded twenty-four squares I don't know how long it takes " Later, when he again was questioned about what he meant by the statement in his affidavit, he finally testified after further evasion and equivocation that one employee can unload 72 bundles of shingles without help in 30 minutes I regard this, and all of Chumley' s testimony, as generally unworthy of any reliance 38 Chumley concededly had no authority to grant such permission; I therefore do not believe either his, or Geib's, testimony that he was asked if he gave Brummett leave to go. 39 Moreover, inasmuch as Brummett admittedly told Foreman Kane that Hutchens had told him he had authority from Kane to take Brummett with him to unload, I place no credence in Geib 's testimony that when he asked Brummett why he went with Hutchens , Brummett answered, he "just felt like going " CASHWAY LUMBER, INC. cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that the Respondent terminated the employment of Philip Hines because he gave testimony against it under the Act, and that it also terminated the employment of Hines, Ralph Perry, Stanley Hutchens, and Gary Brummett and thereafter failed and refused to reinstate Stanley Hutchens and Gary Brummett because they engaged in union and concerted activities guaranteed by the Act, I will recommend that the- Respondent be ordered to offer Hutchens and Brummett immediate reinstatement to their former positions, or, if they no longer exist, to substantially equivalent positions, without prejudice to their seniority and other rights and privileges, and to make Hines, Perry, Hutchens, and Brummett whole for any loss of earnings they may have suffered by reason of the discrimination against them by the payment to each of them of a sum of money equal to the amount he normally would have earned from the date of his termination to the date of reinstatement, less his net earnings during said period, with backpay computed on a quarterly basis in the manner established by the Board.40 I will also recommend that the Respondent preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze and determine the amounts of backpay due under the terms of this recommended remedy. In view of the nature and extent of the unfair labor practices committed by Respondent, the commission of other unfair labor practices may reasonably be anticipated. I will therefore recommend that the Respondent be ordered to cease and desist from "in any other manner" infringing upon rights guaranteed to employees by Section 7 of the Act, in addition to the manner in which those rights were found to have been violated herein.41 Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Respondent, Cashway Lumber, Inc., is an employer engaged in commerce and in operations affecting com- merce within the meaning of Section 2(6) and (7) of the Act. 2. Chauffeurs, Teamsters, Warehousemen and Helpers Local Union 135, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. By discriminating against Philip Hines, Ralph Perry, Stanley Hutchens, and Gary Brummett by terminating their employment and by failing and refusing to reinstate Hutchens and Brummett to their former positions because of their support of the Union, because they engaged in concerted activities protected by the Act, and because 'O' F W Woolworth Company, 90 NLRB 289, backpay shall include the payment of interest at the rate of 6 percent per annum to be computed in the manner set forth in Isis Plumbing & Heating Co , 138 NLRB 716 41 N L R B v Entwistle Mfg Co, 120 F 2d 532, 536 (C A 4) 42 In the event no exceptions are filed as provided by Sec . 102 46 of the 389 Hines gave testimony against it under the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3), (4), and (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in this case, I hereby issue the following recommended: 42 ORDER Respondent, Cashway Lumber, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging or otherwise discriminating against employees for giving testimony under the Act. (b) Discouraging membership in and activities on behalf of Chauffeurs, Teamsters, Warehousemen and Helpers Local Union 135, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or of any other labor organization, by discriminating in regard to hire or tenure of employment or any term or condition of employment. (c) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights to self- organization, to form labor organizations, to join or assist Chauffeurs, Teamsters, Warehousemen and Helpers Local Union 135, International _ Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor 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 engaging in such activities, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized by Section 8(a)(3) of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Offer Stanley Hutchens and Gary Brummett immedi- ate and full reinstatement to their former jobs or, if they no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges previously enjoyed, and make them and Philip Hines and Ralph Perry whole for any loss of pay they may have suffered as a result of the discrimination against them in the manner provided in the section of this Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze and determine the amounts of 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 390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD backpay and other reimbursement due under the terms of this recommended Order. (c) Post at its yard in Muncie, Indiana, copies of the notice marked "Appendix."43 Copies of said notice, on forms provided by the Regional Director for Region 25, after being duly signed by Respondent, shall be posted by it for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 25, in writing, within 20 days from the date of the receipt of this Order, what steps have been taken to comply herewith. I FURTHER ORDER that the complaints herein be dis- missed insofar as they allege violations of the Act other than those found above. 43 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 " APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial at which all sides had the opportunity to present their evidence, the National Labor Relations Board has found that we violated the National Labor Relations Act, and has ordered us to post this notice and we intend to carry out the Order of the Board. The Act gives all employees these rights: To engage in self-organization To form, join, or help unions To bargain collectively through a representa- tive of their own choosing To act together for collective bargaining or other mutual aid or protection To refrain from any and all these things. WE WILL NOT do anything that interferes with these rights. More specifically, WE WILL NOT discharge or otherwise discriminate against any employee for giving testimony under the Act. WE WILL NOT discourage union activity or member- ship in Chauffeurs, Teamsters, Warehousemen and Helpers Local Union 135, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization, by discriminating against you if you choose to engage in union activity or join that Union or any other union. Inasmuch as it was decided that we violated the Act by terminating the employment of Philip Hines because he gave testimony against us, and that we also violated the Act by terminating the employment of Hines, Ralph Perry, Stanley Hutchens, and Gary Brummett because they engaged in union and protected activities, and inasmuch as only Hines and Perry have been reinstated by us, WE WILL offer Stanley Hutchens and Gary Brummett full reinstatement to their former jobs, and WE WILL reimburse all four of them for any loss they suffered because we fired them. WE WILL respect your rights to self-organization, to form, loin, or assist any labor organization, or to bargain collectively in respect to terms or conditions of employment through Chauffeurs, Teamsters, Ware- housemen and Helpers Local Union 135, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any representative of your choice, or to refrain from such activity, and WE WILL NOT interfere with, restrain, or coerce our employees in the exercise of these rights. You and all our employees are free to become members of any labor organization, or to refrain from doing so. Dated By CASHWAY LUMBER, INC. (Employer) (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, 614 ISTA Center, 150 West Market Street, Indianapolis, Indiana 46204, Telephone 317-633-8921.