Keystone Building Products

KEYSTONE BUILDING PRODUCTS 963 Keystone Building Products and Aluminum Workers International Union , AFL-CIO, Region #4. Case 4-CA-5891 April 6, 1973 DECISION AND ORDER By CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On November 22, 1972, Administrative Law Judge John P. von Rohr issued the attached Decision in this proceeding. Thereafter, Respondent's president filed exceptions and also through counsel Respon- dent filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has. decided to affirm the rulings, findings,' and conclusions2 of the Administrative Law Judge and to adopt his recommended Order. ORDER instant case, he finds that the .rule was discriminatorily applied for the reasons found by the Administrative Law Judge. 2 Respondent has requested oral argument. The request is hereby denied as, in our opinion, the record, exceptions, and brief adequately present the positions of the parties. DECISION STATEMENT OF THE CASE . JOHN P. VON ROHR, Administrative Law Judge: Upon a charge filed on March 14, 1972, the General Counsel of the National Labor Relations Board, for the Regional Director of Region 4 (Philadelphia, Pennsylvania) issued a com- plaint and an amended complaint on May 31 and August 15, 1972, respectively, against Keystone Building Products, herein called the Respondent or the Company, alleging that it had engaged in certain unfair labor practices within the meaning of Section 8(a)(1), (3), and (5) of the National Labor Relations Act, as amended, herein called the Act. The Respondent filed an answer denying the allegations of unlawful conduct alleged in the complaint. Pursuant to notice, a hearing was held before Adminis- trative Law Judge John P. von Rohr in Harrisburg, Pennsylvania, on August 30, 1972. Briefs were received from the General Counsel and Respondent on October 27, 1972, and they have been carefully considered. Upon the entire record in this case and from my observation of the witnesses, I hereby make the following: FINDINGS OF FACT 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, as modified below, and hereby orders that Respondent, Keystone Building Products, Harrisburg, Pennsylva- nia, its officers, agents, successors, and assigns, shall take the action set forth in the Administrative Law .Judge's recommended Order. Chairman Miller agrees that employee Reed was discharged in violation of Sec. 8(a)(I) and (3) of the Act. However, he would limit the basis for making such a finding to the ground that Respondent terminated her employment in reprisal for her union activities under the pretext that she had not complied with Respondent's rule that a doctor's certificate be produced in the event of absenteeism. While he agrees with the finding that this rule was unlawfully promulgated, he does not find that it follows as a matter of course, as appears to have been found by the Administrative Law Judge, that the mere application of such unlawful rule renders the disciplinary action taken pursuant to it per se violative of the Act. He believes that the nature of the conduct for which the discipline was imposed under the rule must be examined to determine whether it was motivated by discriminatory reasons or disparate treatment, or by employees flagrant disregard of their assigned duties. See his dissent in Daylin, Inc., Discount Division d/b/a Miller's Discount Dept. Stores, 198 NLRB No. 40. In the 1. THE BUSINESS OF RESPONDENT The Respondent is a Pennsylvania corporation with its principal office and place of business located in Harris- burg, Pennsylvania, where it is engaged in the manufacture of doors, windows, building sidings, household furniture, and the like..During the year preceding the issuance of the complaint, Respondent sold goods and products valued in excess of $50,000 to customers located outside the State of Pennsylvania. I find that Respondent is engaged in commerce within the meaning of Section 2(5) of the Act. It. THE LABOR ORGANIZATION INVOLVED Aluminum Workers International Union, AFL-CIO, Region #4, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Issues On October 20, 1971, Respondent discharged Maximo Vasquez and on the same date suspended Vincent Vasquez 964 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for approximately 3 days. Employee Theresa Reed was subsequently discharged on November 8, 1971. At issue herein is whether Respondent's action against these three employees was taken in violation of Section 8(a)(1) and (3) of the Act. In addition, the complaint alleges, and Respondent denies, that (1) Respondent engaged in various conduct independently violative of Section 8(a)(1) of the Act, and that (2) in December 1971 it refused to give its employees an annual Christmas bonus in violation of Section 8(a)(1), (3), and (5) of the Act. B. The Discharge of Maximo Vasquez and the Suspension of Vincent Vasquez Preliminarily, the following chronological background events are to be noted: An organizing campaign by the Charging Union was conducted among Respondent's employees commencing about early October 1971. Pur- suant to a representation petition filed on October 8, 1971,1 in Case 4-RC-9398, a preelection conference was held among its parties on October 27, -following which an election was conducted on November 17. The results of the election were 35 votes for the Union, 2 votes against, and 1 challenged ballot. On November 26, the Union was certified as the collective-bargaining agent for Respon- dent's production and maintenance employees, excluding laboratory employees, office clerical employees, plant clerical employees, confidential employees, technical em- ployees, professional employees, truckdrivers, guards, and supervisors as defined in the Act. Maximo Vasquez, employed by Respondent since November 9, 1970, unquestionably was the leading union organizer among the employees. Thus, he was the only employee who solicited for the Union at the plant in which he worked and he obtained signed authorization cards from 20-21 of the approximately 24 employees who worked there.2 Vasquez testified without contradiction that about 4 days before his termination he was approached by John Devonshire, the foreman of the storm door depart- ment, who asked him who was the leader of the Union. Maximo responded that he was, whereupon Devonshire stated that he would like a card, indicating that he would like to join the Union. However, Devonshire returned the card to Vasquez about 30 minutes later without having signed it. Vincent Vasquez, who signed a union card, is a brother- in-law of Maximo Vasquez, and has been in Respondent's employ since July 197.1. On October 15, a Friday, Maximo and Vincent worked together on an operation involving the use of a machine which cut end pieces for shutter frames. It is undisputed that at some point during the day these employees were unable to continue this operation due to the fact that the machine broke down. Vincent promptly reported this to the foreman, Robert Yon. Yon, however, I All dates hereinafter refer to the year 1971 unless otherwise noted. 2 Vasquez worked in the larger of two plants which are located across the street from each other. It may be noted that the majority of Respondent's employees are classified as laborers. (G.C. Exh. 4.) 3 Credited and unrefuted testimony of Maximo. 4 Unrefuted testimony of Vincent. 5 Unrefuted and credited testimony on Maximo. merely replied that he was too busy to repair the machine and offered no further suggestions.3 Harold LeFevre, the plant mechanic, was off work that day but happened to walk in the plant. He was observed by Maximo and Maximo also reported the breakdown to him. LeFevre, however, stated that he was off work and that he would not repair the machine. Having obtained no assistance from either the foreman or the maintenance man, Maximo Vasquez sent Vincent Vasquez to the office which is located in the plant across the street. Vincent did so and spoke to Clarence Farr, the office manager and a company supervisor. Vincent advised Farr about the machine breaking down and asked for his and Maximo's paychecks so they could go home.4 Farr gave him the paychecks, whereupon Vincent went back across the street to pick up Maximo and they both went home. On the following Monday, October 18, Vincent returned to work as usual . However, due to. the illness of his wife who had returned from the hospital, Maximo remained at home to take care of the children. Accordingly, at 8 o'clock that morning, he called the plant and spoke to Albert Kovner, Respondent's president. Upon listening to Maxi- mo's explanation as to why he would be absent, Kovner merely replied that he had his own problems and hung up.5 With the situation at home remaining the same, Maximo again did not go to work on Tuesday. However, he testified that he did not call in again because of the response he received from Kovner the preceding day. In the meantime, Vincent worked all day Monday and a half day on Tuesday until he became ill on Tuesday noon. He reported this fact to Foreman Yon and was excused by Yon for the remainder. of the day. On Wednesday morning, October 20, Vincent and Maximo reported to work together but found their timecards had been pulled from the rack. They both thereupon left the plant and went to Maximo's home where Maximo called Kovner .6 Kovner at this time told Maximo that he had been out for a week, that he had been replaced and that Respondent did not need him anymore.? With this Maximo was terminated. On the following day, October 21, Vincent went to the plant to speak to Kovner about his situation. According to Vincent's undenied and credited testimony concerning the entire conversation which ensued, Kovner began by asking "which one" put the Union in. Vincent stated that he knew nothing about it. Kovner thereupon stated that because he was not sure who brought the Union in, he had pulled two timecards-his (Vincent's) and that of his brother-in-law, Maximo. Continuing, Kovner proceeded to say that "he was going to take care of whoever started the Union." After some further discussion , Vincent said he would like his job back and asked if he could start the next day, Friday. Responding first that he would not be permitted to do so, Kovner went on to say that he was "figuring" to 6 When queried as to why they went home to call Kovner, Maximo, referring to his earlier telephone call to Kovner , explained , " I figure to go home -because he didn't want to listen to me on Monday before. I said, I prefer to call him by telephone wire." 7 Maximo, whose testimony concerning this conversation was not refuted , did not give any further details and did not indicate if anything was said about Vincent during the conversation. KEYSTONE BUILDING PRODUCTS close the plant but that he [Vincent] could come in on Monday, at which time he could go to work if he found the plant open or he could go home if he found the plant closed. Suffice it to note here that Vincent thereupon left the plant. He reported the following Monday . and at that time was permitted to return to work. C. Conclusions as to the Vasquezes President Albert Kovner was present. throughout the hearing. Having dismissed an attorney whom he engaged at the prehearing stage, Kovner chose to proceed with the hearing without counsel and declined the opportunity, offered to him at the outset of the hearing, to engage an attorney. While the evidence proffered by the General Counsel in itself discloses that Respondent was opposed to the Union, the hostility borne by Respondent's president against the Union was further manifested during the hearing by his frequent and uncalled for abusive outbursts against the union representative who was present. Kovner also testified as a witness. Insofar as the cases of Maximo and Vincent Vasquez are concerned, Kovner did not deny the damaging testimony of Vincent Vasquez concerning the conversation which he had with Vincent on October 21 when Vincent returned to the plant. During this conversa- tion, Kovner admitted the discrimination by stating that, since he did not know which of the Vasquez brought in the Union, he pulled the cards of both of them. Clearly a prima facie case of discrimination against Maximo and Vincent was thereby established. I have not overlooked the testimony of foreman Robert Yon, who claimed to have pulled the card of Maximo Vasquez and who in effect testified that it was he who was responsible for the termination of this employee. However, Yon not only frequently contradicted himself but gave testimony which was contradictory to other unrefuted and established facts in the record. In view of this patently unreliable testimony (which is clearly shown in the record), as well- as my observation of him as a witness, I do not credit his testimony insofar as it controverts the testimony of either Vincent or Maximo Vasquez, or differs from other established facts in the record. Respondent appears to argue in its brief that the action against Vincent and Maximo was taken, at least in part, because these employees left the plant on October 15 without notifying their • foreman. The answer to this contention is twofold. Thus, not only did these employees receive permission from the office manager to leave the plant upon apprising him that their machine had broken down and would not be repaired that day, but the fact is that Vincent returned to work the following Monday without anything being said to him for having left the plant the preceding Friday: Any belated assertion concerning the Friday incident, therefore, can only be regarded as a pretext. Moreover, Respondent offered no explanation at all as to why, after permitting Vincent Vasquez to work on Monday and excusing him after a half day's work on Tuesday, it pulled his card and suspended him on Wednesday. In view of all the foregoing, and upon. the entire record, I find that on October 20, 1971, Respondent discharged Maximo Vasquez and suspended Vincent Vasquez in 965 violation of Section 8(a)(3) and (1) of the Act because of their actual or suspected union activities. These violations will become even more apparent when considered in the context of Respondent's commission of the further unfair labor practices hereinafter discussed and found. D. The Retaliatory Absenteeism Rule On or about October 20, 1971, Respondent posted a notice on its bulletin board which stated as follows: Starting time is 8 am Quitting time is 5 pm All overtime work must be ok'd by Robert Yon The work week is 40 hrs. Anyone reporting off must bring a doctor's certificate when reporting back to work Although Kovner asserted that the rule requiring absent employees to produce a doctor's certificate was promulgat- ed because of excessive absenteeism, I am persuaded that the imposition of the rule at this time was not motivated for this reason. Thus, the record is replete with uncontro- verted testimony that Respondent had long tolerated unexcused absences of its employees and throughout this period had never announced any rule to put an end to this practice. While obviously an employer need not tolerate a condition such as this to continue indefinitely, the timing of Respondent's new rule, coming as it did during the height of the Union's campaign, leads to the inescapable conclusion that it was instituted to discourage the union activities and/or to act as a reprisal against the employees for engaging in such activities. Indeed, that Kovner related the rule to the advent of the Union is manifested in his response to a question as to why the rule was posted at this particular time. Thus, in answer to the question posed, Kovner testified, "Yes. For the simple reason that when you read the rules and regulations-when you sign a contract with the Union-you can't say good morning to a man without writing a letter first." Further indicative that the new rule was unlawfully motivated was Kovner's simultaneous-illegal conduct, on or about the day after the rule was posted, in advising Vincent Vasquez that he had pulled the cards of Vincent and Maximo Vasquez because he suspected that one of them was the leader in bringing the Union in the plant. I conclude and find that under the foregoing circum- stances Respondent's imposition of the rule requiring absent employees to bring in a doctor's certificate was violative of Section 8(a)(l) of the Act. See Carlisle Paper Box Company, 168 NLRB 706, 716. E. , The Discharge of Theresa Reed, Theresa Reed was employed in Respondent's storm door department since September 9, 1970. She was discharged on November 6, 1971. Several weeks before her discharge, Reed was observed signing a union card in the department where she worked by Foreman John Devonshire. Devonshire at this time 966 DECISIONS OF NATIONAL LABOR RELATIONS BOARD asked what she had and Reed replied that it was a union card.8 Later that day he told Reed that there was no sense in signing a card because "that is as far as it went before." Several days thereafter Devonshire approached Reed again. This time he told her that Kovner had a list of names of everyone who had signed blue (union) cards and that he was going to get rid of those who had signed. It is undisputed that on the noon of Friday, November 5, Reed advised: Devonshire that she was taking the afternoon off. She then went to another department to meet her sister, Ruth May, and they advised Richard Jackson, who was in charge of May's department at the time,9 that they were leaving for the day because Reed had to take May to the doctor. Jackson gave his assent. S That same Friday evening Reed was advised by a relative who worked at the plant that Devonshire had advised her (the relative) to tell her (Reed) that Kovner had, pulled her timecard. On the following morning, November 6, Reed met Devonshire on the street as he was coming from her home where he had stopped to see her. Devonshire's first remark was that "they finally did it." He then confirmed that Kovner had pulled her card and that of her sister. When Reed thereupon asked what she could do, Devonshire replied that she should come in on Monday "like you don't know you're fired." On Monday, November 8, Reed and her sister, Ruth May, stopped first to see Office Manager Fan where May gave Farr a doctor's certificate for the preceding Friday. Farr then obtained May's timecard, whereupon they all went to Kovner's office. Fan asked Kovner if he was to put Reed'and May back to work. Kovner asked if they had a doctor's excuse. Farr replied that May did. Kovner stated that May could return to work. However, when Farr then advised that Reed did not have a doctor's excuse, Kovner stated that she could not return to work.10 With this Reed was terminated. F. Conclusions as to Reed ,The evidence leaves little room for doubt, and I find, that Respondent discharged Reed in violation of Section 8(a)(3) and (1) of the Act. Thus, I would first note that the only reason given by Respondent for terminating this employee was testified to by Kovner as follows: The big-why she was left out-was because we did .not have enough work in that department to keep two people. There are two people running that department and according to the work that is being done in any one department-in that department-to this very day. I don't need her. in there, but we took her back regardless because this is the way the general wanted it.h1 The reason thus cited by Kovner obviously differs from that which he gave to Reed when she was discharged, i.e., that she failed to produce a doctor's certificate. Applicable 11 Beyond the fact that Reed impressed me as a credible witness, Reed's testimony concerning her conversations with Devonshire is undenied. Devonshire did not testify. 9 Although Jackson was a leadman , he at this time was substituting for the regular foreman, Robert Barker , who was absent. 10 Reed testified that at one point during the conversation, when reference was made to her not having a doctor's excuse, she stated , "Well, Mr. Kovner, you know l wasn't sick and I wasn't going to make me out a here, then, is the well established and self-explanatory rule that Respondent's inconsistent and shifting reasons for the discharge is in itself a strong indicia of discriminatory intent.12. Returning to the reason- given to Reed at the time of her discharge, this of course was in direct reference to the new rule concerning the doctor's certificate which was posted by Respondent on October 20. Accordingly, having found that the rule in question was unlawfully promulgated, it follows that Respondent also committed an unfair labor practice within the meaning of Section 8(a)(1) and (3)'of the Act when it implemented the rule by its discharge of employee Reed. Finally, and assuming arguendo that the rule was not unlawful , the plain fact is that Reed notified her foreman that she would be absent on the afternoon of Friday, November 5. Since her absence therefore was taken with Respondent's knowledge and consent , it is clear that Respondent's rule did not apply and that Respon- dent's attempt to make it applicable was manifestly but a coverup for discrimination against this employee whom it knew,to have signed a union card. G. The Failure to Grant a Christmas Bonus in 1971 The complaint alleges .that Respondent violated Section 8(a)(1), (3), and (5) of the Act in that in December 1971 it refused to give an annual Christmas bonus to its pro- duction and maintenance employees because they chose the Union as their representative in a Board election conduct- ed on November 17, 1971, and, further, that Respondent's refusal came without prior notice to or bargaining with the Union. The fact that it was a practice of the Respondent to grant its employees a Christmas bonus (or a Christmas "pres- ent," as it was characterized by President Kovner) is without dispute. This was conceded by Office Manager Farr, who testified that practically all of the employees received' a "gift" around Christmas time ever since he had been with the Company. Employee Richard Jackson, employed since November 1967, testified without contra- . diction that he had always received a Christmas bonus, this having consisted of $10 for the first year of his employ- ment, but having been increased to a full weeks pay for every year thereafter. In view of the foregoing, I find that the Christmas bonus did not consist of isolated gifts or gratuities, but rather constituted a part of the compensato- ry wage structure of the employees and hence constituted a term or condition of employment.13 Departing from its usual practice , it is undisputed that with only two exceptions Respondent did not grant a Christmas bonus to the approximate 37 unit employees in 1971. On the other hand, Respondent did give a Christmas bonus , to its truckdrivers and office employees, both categories of which were excluded from the appropriate liar and make out my doctor a liar." 11 Although the record does not reflect the date , Reed was reinstated at some point subsequent to her discharge. 12 Concerning the reason cited by Kovner at the hearing, it may be further noted that Respondent offered no evidence whatsoever to show there was any reduction of work in Reed's department. 13 Mississippi Steel Corp., 169 NLRB 647, and cases cited therein. KEYSTONE BUILDING PRODUCTS bargaining unit. The employees in the said unit, it will be recalled, voted on November 26, 1971 (by vote of 35 to 2), to designate the Union as their collective-bargaining agent. Respondent offered no defense, economic or otherwise, to explain its departure from past practice in failing to grant a Christmas bonus to the unit employees in 1971. Indeed, with respect to the granting of the bonus Kovner merely testified, "When I felt they were deserving, I gave it to them." In view of Respondent's demonstrated hostility to the Union, as well as its failure to give any explanation for not granting the bonus, I think it clear that the withholding of this benefit was motivated by Respondent's design to retaliate against the "undeserving" employees for having selected the Union as their bargaining agent.14 I find that by this action Respondent violated Section 8(a)(3) and (1) of the Act. Furthermore, since the Union, then the bargaining agent, was not notified or consulted with the respect to the nonpayment, Respondent thereby also violated Section 8(a)(5) of the Act. N.L.R.B. v. Benne Katz, 369 U.S. 736. Finally, and in accordance with the facts heretofore related, I find that Respondent engaged in further violations of Section 8(a)(1) of the Act by the following conduct: (1) Devonshire's and Kovner's interrogation of employees as to who was the leader of the Union and "who brought the Union in"; (2) Kovner's statement to Vincent Vasquez what he was going to "take care of" whoever started the Union; and (3) Devonshire's statement to Reed that Kovner had a list of names of all those who had signed union cards and that he was going to get rid of them.15 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 Respondent described in section I, above, 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. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It having been found that Respondent discriminatorily discharged Maximo Vasquez, I shall recommend that Respondent be ordered to offer him full and immediate reinstatement to his former job or, if this job no longer 11 The evidence also reveals that shortly after the representation election Kovner directed Farr to take Respondent's list of eligible voters and on it check the names of those who had voted Farr followed Kovner's directions and testified that this was done because "Kovner suggested that we try to figure out who the two "no" votes were " Without relying on this in making the findings above, I do think Kovner's thus expressed interest in ascertaining the identity of the two "no" votes strongly suggests that this is the reason for the granting of a Christmas bonus to only two of the unit employees 11 Contrary to an amendment to the complaint, 1 do not find Respondent's letter of August 16, 1972, which I have fully considered, to be violative of Sec 8(a)(I) of the Act In the first place, the letter was not 967 exists, to a substantial equivalent position, without preju- dice to his seniority or other rights and privileges, and make him whole for any loss of earnings he may have suffered from the time of his discharge to the date of Respondent's offer of reinstatement. Backpay shall be computed in accordance with the formula set forth in F W. Woolworth Company, 90 NLRB 289, with interest thereon computed to a manner and an amount prescribed in Isis Plumbing & Heating Co., 138 NLRB 716. Although subsequently reinstated, it has also been found that Respondent discriminatorily discharged Vincent Vasquez and Theresa Reed. Accordingly, it is recommended that Respondent make these employees, and each of them, whole for any loss of earnings they may have suffered from the time of their discharge until the date of their reinstatement. Backpay shall be computed in the manner as aforesaid. It is further recommended that Respondent make the unit employees whole for the monetary loss suffered by them as a result of the unlawful withholding of the 1971 Christmas bonus The determination of the amounts due shall be determined in the compliance stage of this proceeding, taking into consideration the amount already granted two unit employees as well as all pertinent financial records of the Respondent which would tend to bear on the amount of money that would have been made available for the bonus but for the employees' union activities.16 I also recommend that Respondent be required to bargain collectively with the Union, upon request, concerning any changes in terms and conditions of employment prior to effectuating such changes. Since a discriminatory discharge of an employee goes to the very heart of the Act (N.L R B v. Entwistle Mfg. Co., 120 F.2d 532, 536 (C.A.4)), it will be recommended that the Respondent be ordered to cease and desist from infringing in any manner upon the rights guaranteed in Section 7 of the Act. CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce and the Union is a labor organization, all within the meaning of the Act. 2. By discriminating in regard to the hire and tenure of Maximo Vasquez, Vincent Vasquez, and Theresa Reed, thereby discouraging membership in the Union, Respon- dent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 3. By failing to pay the 1971 Christmas bonus for the purpose of discouraging membership in the Union, and by addressed to any of the employees, but was sent to the Board and nonemployee representatives of the Charging Party There is, moreover, no evidence that it was shown to the employees or that its contents were publicized in any event, the language contained in the letter is, in my opinion , too ambiguous to constitute a threat within the meaning of Sec 8(a)(1) I recommend that this allegation be dismissed 16 The facts in this case are analagous to those in Mississippi Steel Corporation, supra, wherein the Board also left the determination of the amount of the Christmas bonus to be made at the compliance stage Whatever amount is ultimately determined , I recommend that it include interest at the rate of 6 percent per annum 968 . DECISIONS OF NATIONAL LABOR RELATIONS BOARD acting unilaterally,. without prior notice to or bargaining with the Union, Respondent has engaged' in and is engaging in unfair labor practices within the meaning of Section 8(a)(l), (3), and (5) of the Act. 4. By the foregoing and other independent acts and conduct interfering with, restraining, and coercing employ- ees in the exercise of their rights guaranteed in Section 7 of the Act, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(l) of the Act. 5. 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, and pursuant to Section 10(c) of the Act, I hereby make the following recommended: ORDER 17 Respondent, Keystone Building Products, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging, suspending, or otherwise discriminating against any employee because of activity on behalf of, or membership, in, Aluminum Workers International Union, AFL-CIO, Region #4, or any other labor organization. (b) Threatening its employees with discharge or other reprisals because of their union activities. (c) Interrogating its employees concerning the identity of the supporters of the above-named Union, or any other labor organization. (d) Withholding Christmas benefits, or other benefits, to dissuade employees from selecting a bargaining representa- tive. (e) Instituting new rules or changes in working condi- tions for the purpose of discouraging union membership or activity. (f) Discontinuing a Christmas bonus, or other benefits, or changing any term or condition of employment of employees in the appropriate bargaining unit, without notifying, consulting, and bargaining with the above- named Union, as the exclusive representative of its employees in the appropriate unit. (g) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights guaran- teed in Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Notify and consult the above-named Union, and afford it an opportunity to bargain collectively, with respect to any changes in wages, bonuses, or other terms and conditions of employment before effectuating such changes. (b) Offer to Maximo Vasquez immediate and full reinstatement to his former job or, if this job no longer exists, to a substantially equivalent position without prejudice to his seniority or other rights and privileges, and make him whole for any loss of pay he may have suffered by reason of the discrimination against him in the manner set forth in the section of this Decision entitled "The Remedy." (c) Make whole Vincent Vasquez and Theresa Reed for any loss of pay they may have suffered by reason of the discrimination against them, in the manner set forth in this section of this Decision entitled "The Remedy." (d) Make whole the employees in the appropriate unit the amount of the Christmas bonus which was unlawfully omitted in 1971, in the manner set forth in the section of this Decision entitled "The Remedy." (e) 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 or appropriate to analyze the amount of backpay due and the amount of the Christmas bonus due. (f) Post at its plant in Harrisburg, Pennsylvania, copies of the attached notice marked "Appendix." 18 Copies of the notice, on forms provided by the Regional Director for Region 4, after being duly signed by Respondent's authorized representative, 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. (g) Notify the Regional Director for Region 4, in writing, within 20 days from the date of the receipt of this Decision what steps Respondent has taken to comply herewith. IT IS FURTHER RECOMMENDED that the complaint be dismissed insofar as it alleges violations of the Act not specifically found herein.. 17 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, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. ' In the event the Board's Order is enforced by a Judgment of the United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discourage membership in Aluminum Workers International Union, AFL-CIO, Region 4, or any other labor organization , by discharging or otherwise discriminating against our employees be- cause of their union or concerted activities. WE WILL NOT threaten our employees with discharge or other reprisals for engaging in union activities or supporting any labor organization. WE WILL NOT interrogate our employees concerning the identity of union supporters. WE WILL NOT institute new rules or changes in working conditions in order to discourage union activity or membership among our employees. WE WILL NOT withhold a Christmas bonus, or other KEYSTONE BUILDING PRODUCTS 969 benefits, in order to dissuade employees from selecting a bargaining representative. WE WILL NOT discontinue a Christmas bonus, or other benefits, or change any term or condition of employment of our employees in the bargaining unit, without notifying, consulting, and bargaining with the above-named Union as the exclusive representative of our employees in the appropriate bargaining unit. WE WILL offer Maximo Vasquez immediate and full reinstatement to'his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of pay suffered-as a result of the discrimination against him. WE WILL make Vincent Vasquez and Theresa Reed whole for any loss of pay they may have suffered as a result of the discrimination practiced against them. WE WILL notify and consult the above-named Union, and afford it an opportunity to bargain collectively, with respect to any changes in wages, bonuses, or other terms and conditions of employment before effectuating such changes. WE WILL make whole the employees in the appropri- ate unit the amount of the Christmas bonus which was unlawfully omitted in 1971. WE WILL NOT in any other manner interfere with, restrain , or coerce our employees in the exercise of their rights guaranteed them in Section 7 of the Act. KEYSTONE BUILDING PRODUCTS (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concern- ing this notice or compliance with its provisions may be directed to the Board's Office, 1700 Bankers Securities Building, Walnut & Juniper Streets, Philadelphia, Pennsyl- vania 19107, Telephone 215-597-7601.