Hankamer Ready Mix Concrete Co.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Hankamer Ready Mix Concrete Company and Truck- drivers and Helpers Local 696, affiliated with International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America. Case 17-CA-6920 January 31, 1978 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND TRUESDALE On September 26, 1977, Administrative Law Judge Russell M. King, Jr., issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge, to modify his remedy, 2 and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the Respondent, Hankamer Ready Mix Concrete Company, Junction City, Kan- sas, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, except that the attached notice is substituted for that of the Administrative Law Judge. 1 The Respondent excepts 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 credibili- ty unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3. 1951). We have carefully examined the record and find no basis for reversing his findings. The Respondent argued that many of the authorization cards should be disqualified because the signatures were obtained by telling the employees that the card was to be used solely for the purpose of seeking an election. Cumberland Shoe Corp., 144 NLRB 1268 (1963). The Administrative Law Judge found this argument "to be frivolous in this case and not worthy of further comment." This record demonstrates that no employees were told that the cards were to be used only for an election. Thus, the Administrative Law Judge's use of the word "frivolous" goes to the fact that Cumberland Shoe is inapposite under the facts of this case rather than an indication that Cumberland Shoe is no longer Board law. 2 See Isis Plumbing & Heating Co., 138 NLRB 716 (1962), for rationale on interest payments. 234 NLRB No. 104 APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT interrogate employees concern- ing their union activities, sympathies, or feelings. WE WILL NOT threaten employees with closure of our business or plants because of their engage- ment in union or other protected concerted activities. WE WILL NOT threaten employees with dis- charge or other economic reprisals, or discharge employees because of their engagement in union or other protected concerted activities. WE WILL NOT create among employees the impression of surveillance of their union and other protected concerted activities. WE WILL NOT promise employees increased economic benefits in the form of pay raises if they refrain from engaging in union or other protected concerted activities. WE WILL NOT subject employees to less desir- able working conditions because of their union or other protected concerted activities. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of their right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the Act, or to refrain from any or all such activities. WE WILL bargain collectively, upon request, with the Truckdrivers and Helpers Local 696, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America, as the exclusive representative of all our employees in the bargaining unit with respect to rates of pay, wages, hours of employ- ment, and other terms and conditions of employ- ment, and, if an understanding is reached, we will embody such understanding in a signed contract. The bargaining unit is: All production and maintenance employees of Hankamer Ready Mix Concrete Compa- ny at Junction City, Kansas, including truck drivers but EXCLUDING office clerical em- ployees, guards, and supervisors as defined in the Act. WE WILL revoke the change of work condition (the reassignment of an older truck) imposed 608 HANKAMER READY MIX CONCRETE CO. upon Albert Cadoret in late October 1975, and reassign to him a truck of comparable age (in months), or as closely thereto as possible, as that which he originally had at the time of said charge. WE WILL offer immediate reinstatement to Richard McDaniel, Albert Cadoret, and Michael McConnell and make them whole, including loss of earnings or other rights or privileges suffered or lost as a result of our unlawful discharge and discrimination of and against them, with interest. HANKAMER READY MIX CONCRETE COMPANY DECISION STATEMENT OF THE CASE RUSSELL M. KING, JR., Administrative Law Judge: This case was heard by me in Junction City, Kansas, on September 8, 9, and 10, and on October 19, 20, and 21, 1976. The initial charge was filed by the Truckdrivers and Helpers Local 696, affiliated with International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America (hereinafter referred to as the Union), on January 12, 1976. An amended charge was filed on February 5 and March 1, 1976, and the complaint was issued on March 12, 1976. The complaint alleges a number of violations of Section 8(a)(l) and (3) of the National Labor Relations Act, as amended (the Act), ranging over a period from late October through December 1975.1 The allegations include improper interrogation, surveillance, threats, a change in a work assignment, and the actual or constructive discharge of three employees. The complaint further alleges that Hankamer Ready Mix Concrete Company (the Respon- dent) violated Section 8(a)(5) of the Act in failing and I All dates hereafter are in 1975 unless otherwise noted. 2 During the period of time involved and based on an alleged card majority and a refusal on the part of the Respondent to recognize the Union, the Union filed a representation petition. Based on that petition the Regional Director for Region 17 issued his Decision and Direction of Election on December 18. 1975 (Case 17--RC-7846). The Respondent thereafter requested review by the Board, which said review was denied. Subsequently, no election has been held and the General Counsel urges the entry of bargaining order in this case, among other requested remedies. 3 The facts found herein are based on the record as a whole and upon my observation of the witnesses. The credibility resolutions herein have been derived from a review of the entire testimonial record and exhibits with due regard for the logic of the probability, the demeanor of the witnesses, and the teaching of N.L.R.B. v. Walton Manufacturing Company & Loganville Pants Co., 369 U.S. 404, 408 (1962). As to those witnesses testifying in contradiction to the findings herein, their testimony has been discredited, either as having been in conflict with the testimony of credible witnesses or because it was in and of itself incredible and unworthy of belief. All testimony has been reviewed and weighed in the light of the entire record. 4 The Respondent's answer herein denies the jurisdictional allegations in the complaint. Prior to the hearing of this case, the General Counsel filed a motion to strike those portions of the Respondent's answer denying jurisdiction. In its motion to strike, the General Counsel relied primarily on the earlier findings in the representation case, citing Pittsburgh Plate Glass Company v. N.LR.B., 313 U.S. 416 (1941), and other ensuing authorities. I denied the General Counsel's motion to strike, but concluded and found jurisdiction at the hearing based on the representation case and applicable Board and judicial authorities. Some additional evidence regarding jurisdic- tion was allowed at the hearing in the support of the Respondent's denials of refusing to bargain collectively and in good faith with the Union. 2 Upon the entire record, including my observation of the demeanor of the witnesses, 3 and after due consideration of the briefs filed by the General Counsel, the Union, and the Respondent, I make the following: FINDINGS OF FACT I. JURISDICTION Jurisdiction is challenged in this case, as it was in the earlier representation case.4 The Respondent Company 5 is engaged in producing and supplying concrete from two plants located in Junction City, Kansas. Other facilities are also located outside Junction City, but it is the two facilities located within the city that are solely involved in these proceedings. One such facility is located at 211 Grant Avenue and produces concrete on a year-round basis. The second facility is located at 122 North Perry Street, several blocks from the Grant Avenue facility; it is used during peak summer months for overflow production. During the 12-month period immediately preceding the issuance of the complaint herein (January 12, 1975, to January 12, 1976), the Respondent sold concrete valued in excess of $623,000 directly to contractors who were engaged in the construc- tion of facilities at and on the United States Army installation located at Ft. Riley, Kansas. These facilities included housing projects for military members and their families, an addition to Irwin Army Hospital, and a landing pad at Marshall Field, the Ft. Riley airfield. During the same period, the Respondent also purchased goods and services from firms located outside the State of Kansas totaling in excess of $82,000. I find that the evidence and testimony as adduced and admitted in this case regarding jurisdiction is consistent with, supplemental to, and in support of the evidence and findings and conclusions reached in the earlier representation case, and, jurisdiction, for the record and for whatever purpose the Respondent may choose to use the same subsequently. This result required little additional time in actual hearing and my immediate finding of jurisdiction, although favorable to the General Counsel's position, did not inhibit the General Counsel from further examination and evidence regarding the subject (which in fact did occur) without conceding the point. Although I have already in effect found jurisdiction, because the matter was addressed in the record, and in the briefs of the Union and the General Counsel, I have chosen to recite the relevant factors concerning jurisdiction in this Decision. I It is impossible to conclude from the record whether or not the Respondent Company is actually incorporated or is a division of another related and incorporated business. The uncertainty of this status was amazingly not clarified by the testimony of the Respondent's president, John Hankamer, who indicated his direct involvement with one (and possible two) related and incorporated businesses, and an additional two divisions of one of those concerns. Mr. Hankamer indicated that he was president of the Hankamer Asphalt Company, Inc., which said company had two divisions, the Shelly Equipment Company and the Hankamer Ready Mix Concrete Company (the name of the Respondent appearing throughout this case). Mr. Hankamer also mentioned the name Hankamer Ready Mix Concrete Company, Inc., and one can only assume that this reference was made to include the Respondent Company and one or more of the other businesses referred to in testimony. In subpenas issued by the General Counsel in the name of Hankamer Ready Mix, Inc., responses came back from Hankamer Ready Mix Concrete Company (the Respon- dent, in name at least, in this case). As to whether one is all or all is one I conclude makes no difference in this case. They all came under the same umbrella of the same president, Hankamer, and were all interrelated in the same business and commercial functions. 609 DECISIONS OF NATIONAL LABOR RELATIONS BOARD applying all applicable and current jurisdictional authori- ties, I find that the Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. I further find, as admitted herein, that the Union is a labor organization within the meaning of Section 2(5) of the Act. 1I. THE ALLEGED UNFAIR LABOR PRACTICES A. Background The unit of employees involved herein totals approxi- mately 21, the majority of which are cement truckdrivers. Also included are several truck maintenance employees and dispatchers. 6 On October 22, several of Respondent's employees gathered at the home of driver Albert Cadoret and thereafter engaged in discussion about organizing the Respondent's plants in Junction City. Several inquiries later that evening with other employees convinced Cadoret that at least a majority of the employees were in favor of a union. Yet later that evening, Cadoret telephoned another friend and a union member and inquired as to what the employees may do to initiate the organizational process. As a result, the following day Cadoret met with J. J. Glenn, a business agent for the Union, in Topeka, Kansas. After receiving guidance and instructions from Glenn, together with union authorization cards, Cadoret returned to Junc- tion City. Cadoret signed his card on Thursday, October 23, and on Friday, October 24, he obtained personally the signatures on cards of an additional 14 fellow employees. On the same day (October 24) the Respondent's plant manager, P. H. Mathis, learned of the organizational activities and, as alleged in the complaint, the Respon- dent's activities to counter the organizational drive culmi- nated in this litigation. Most of the allegations in the complaint centered around Plant Manager Mathis and his actions and conduct with and towards the employees over the following 2-month period. On Saturday, October 25, many of the employees met with Business Agent Glenn, whereupon Cadoret turned over the signed authorization cards and future organizational plans were discussed. On Monday, October 27, Glenn forwarded a letter to the e The Regional Director's Decision and Direction of Election excluded a dispatcher, together with guards and supervisors. The Board, in denying the Respondent's request for review of the Decision and Direction of Election, did amend the Regional Director's decision and permitted the dispatcher to vote subject to challenge. The dispatcher involved was one Richard McDaniel, who is alleged in the complaint in this case to have been discriminatorily discharged by the Respondent. There having been no election to date, and thus no opportunity for challenge, my conclusion herein will be that McDaniel is not a supervisor within the meaning of the Act and this subject will be discussed fully and completely later herein when the merits of McDaniel's discharge are discussed. I Here, and elsewhere herein, the last name "Cadoret," when used alone, will refer to employee driver Albert (Cat) Cadoret. This usage needs explanation as Cadoret's brother Norman was also an employee driver of the Respondent, and his name will also appear several times in this Decision. Thus, when referring to Albert's brother Norman, his full (first and last) name will be used. Albert Cadoret played the initial and dominant role in the organizational efforts of the employees. s The testimony of virtually all of the Respondent's employees in this case will be credited over that of the Respondent's plant manager, P. H. Mathis. Mathis, I conclude, was basically an employees' man; that is, he attempted to understand and help the employees in their problems. However, in this case, he was torn between loyalty to the employees and to Respondent indicating that the Union represented a majority of Respondent's employees and expressed an interest in meeting with the Respondent. B. The Alleged Improper Interrogation. Surveillance, Threats, Promises, and Other Similar Activities (the 8(a)(1) Violations) On Friday, October 24, employee driver Cadoret 7 obtained the card signatures. According to Cadoret, late in the afternoon of Friday, October 24, the Respondent's plant manager, P. H. Mathis, approached him and asked him why he was passing out union cards and why he wanted a union.8 Mathis continued by indicating to Cadoret that, if he had signed a union card, "It was too late," and that fellow employee Joey Whitt would lose money because of the Union.9 Mathis then told Cadoret that the Respondent's president, John Hankamer, "would not go union" and would "close the doors" if the Union came in.'0 Mathis also expressed fear of a picket line the following Monday and indicated to Cadoret that he had a list of alternate drivers and implored Cadoret to forget about the Union and come to work Monday without further union activity. Mathis also had several conversations with the dispatch- er Rick McDaniel on Friday, October 24. The first conversation with McDaniel took place in the presence of employees Norman Cadoret, Richard Mowry, and Rick Lackner. Mathis entered the room where McDaniel and the three other employees were engaged in conversation and asked McDaniel if he had signed "one of those [expletive deleted] union cards." Mathis further indicated that he knew the "two people" that were responsible, and that he would like to get rid of them and everyone else who had anything to do with the Union. Before leaving, Mathis warned McDaniel not to sign a card and indicated to all four of the employees present that he would be able to find out who had signed cards, that there would be a "petition filed," and that it would "land on John Hankamer's desk." Mathis also related that he would make a list of those names that had signed cards and that they would not have their jobs anymore. A further conversation took place with Mathis and McDaniel in the evening of October 24, the Respondent's president, John Hankamer. He attempted to resolve this conflict during his testimony by continued uncertainties and qualified answers. Throughout his protracted testimony, there are very few occasions where his answers and replies were definite and clear-cut. The expressions or verbalizations such as "I don't recall," "I don't remember," "I can't remember exactly," "I may have." were used countless times throughout his testimony, even in response or reply to strong and straightforward questions where uncertainty in the answer tends to serve almost impliedly as an admission that the words or actions constituting an accusation were in fact true. I further gained the impression that Mathis became almost embar- rassed by the form and manner of his answers in the presence of several of the employees, with whom he had earlier been congenial and friendly. 9 The intent and meaning of this statement is somewhat uncertain in the record. However, I conclude that Mathis made the statement by virtue of the fact that Whitt was less senior than any other employee and, if the Union came in, he would either receive less pay or be terminated by virtue of his lack of seniority. 0o Mathis made this statement to several employees on several occasions, on one occasion indicating that Hankamer would be unable to successfully compete with another nearby concrete company if the Respondent's Junction City plants were organized. In one of his few testimonial exceptions, Mathis unqualifiedly admitted the statements regarding compe- tition. 610 HANKAMER READY MIX CONCRETE CO. wherein Mathis asked McDaniel who was passing out union cards, indicating again that he knew, or thought he knew, two of the individuals who were passing out the cards. Mathis again warned McDaniel that the only good the Union would do was to "get him kicked out his job" and Mathis further asked McDaniel if he would go around and collect the cards from those who had signed them, indicating that there would probably be a 25- or 50-cent raise if all the cards could be collected. Employee Norman Cadoret testifled that Mathis also approached him on October 24, asking him if he liked his job and indicating that he would not have any job if the Union came in, because John Hankamer would "just lock the doors." Employee Joey Whitt testified that on October 24 Mathis approached him, indicating to him that he "liked [him at] first ... but I don't know what to think about you now . . . [after you] went and signed that dumb card." Mathis further told Whitt that now when he needed a driver he would have to call some other driver, explaining that the only thing the Union wanted was money and that the Respondent was going to put a "stop" to the Union. Similar conversations also took place on October 24 among Mathis, George Mowry, and George's brother, Richard "Spider" Mowry. Among other things, Mathis told George Mowry to "keep an eye on his brother because [union] cards are going around and Hankamer would lock the door if they tried to go union." II On Saturday, October 25 (a nonworkday at Respon- dent's plant), a union organizational meeting was held and many of those employees who had signed authorization cards were in attendance. On Sunday, October 26, dis- patcher McDaniel called Plant Manager Mathis to ascer- tain what time to report to work the following day (Monday) and to further ascertain what the workload of that day would be.' 2 Mathis asked McDaniel if the employees had their "little union meeting," further indicat- ing that John Hankamer was upset that McDaniel had not informed him of the union activities.' 3 Mathis ended the conversation by telling McDaniel "not to bother to come in on Monday" and to pick up his check on Tuesday (October 28).'4 On Monday, October 27, Mathis indicated to Cadoret, in the presence of employee Danny Biggs, that he knew about the Saturday union meeting and that he knew that he was II The cards themselves were admitted into evidence in this case and they will be discussed later herein. All employees testifying in this case had signed cards unless otherwise specifically indicated. 12 This type of Sunday inquiry was apparently standard procedure and. additionally, apparently it was not unusual for employees themselves to make weekend inquiries of workloads and the amount of drivers needed for the following Monday, especially during the slack seasonal periods when a full complement of drivers was not required. 13 I conclude from the evidence in the case that Mathis definitely knew about the union meeting on Saturday, although it is uncertain that he found out about the meeting before or after it occurred. There is some testimony that the Respondent or Mathis sent an agent or "plant" to the meeting. Whether this in fact was the case is of no consequence here, as I have indicated I conclude that, one way or another. Mathis. at least by Sunday (October 26), knew of the meeting. 14 This directive by Mathis in effect constituted McDaniel's discharge which will be discussed separately herein. is Mathis admitted his statements regarding a raise but further added that he made it clear initially that the Respondent could not raise the salary of employees once they were represented by a union. He also testified that he later found this position to be incorrect, since the raise had been planned there and what was discussed. He again indicated that he was ready to give the employees a raise but he could not do so now because the Union had been "brought . . . in."' 5 Employee driver Mike McConnel testified that Mathis, either on October 27 or 28, asked him if he had signed a union card, indicating that John Hankamer could and would close the plant down and obtain a whole new crew. Further, according to Norman Cadoret, Mathis made a similar statement to him on October 28. Employee driver George Mowry also testified that on two occasions in the fall or winter (between October 24 and December 16) Mathis indicated to him that the employees would have been making more money if they had not signed union cards, and that during one of the conversations Mathis related that John Hankamer would lock or close the doors if the employees tried to go union. In late October, Cadoret's newer 1975 truck was reas- signed to driver Joey Whitt. Cadoret was assigned an older (1974) truck.'6 Cadoret asked Mathis why his newer truck was reassigned and Mathis replied that John Hankamer wanted an "older man" driving the truck. Cadoret replied that since Whitt was a newer driver, lacking his experience. the truck would receive more abuse. According to Cadoret, Mathis agreed with this evaluation, whereupon Cadoret replied that in his opinion the real reason why the transfer was made was because of his union activities.' ? Mathis did not respond to Cadoret's last remark. I find that the statements and actions of Plant Manager Mathis, as above related and summarized, were in fact made and accomplished by him, and that at the times and during the period above noted Mathis was fully aware of the organizational activities of the employees. As indicated earlier I also find that Mathis had sided with the Respon- dent's president, John Hankamer, in the Respondent's efforts to not only discourage but also to stop the efforts of the employees in their attempts to obtain union representa- tion. Thus I find the above statements and actions by Mathis to have been an infringement upon the rights of the Respondent's employees to engage in lawful protected concerted activities and, wherein said statements and actions so found coincide with the various applicable allegations in paragraph 5 of the complaint, I find them to be violative of Section 8(a)( I) of the Act. or expected prior to the union organization. Regardless of the actual and true beliefs of Mathis at the time the raise statements were made to certain of the employees, I find that they were made and conveyed in such a manner so as to definitely indicate or infer that the employees would receive no salary increase solely because of their union activities, and not for any technical or legal reason. I' The assignment of trucks appears outwardly and initially unimportant, but, among other things, was apparently a matter of pride and experience among the employees. The mechanical deterioration of cement trucks is apparently rapid and a newer and well-functioning truck apparently makes a driver's job easier and more enjoyable. It further allows the driver to complete deliveries earlier and thus occasionally to be available for additional and late deliveries resulting in desirable overtime pay. 17 The lack of experience of employee Whitt was uncontradicted and Mathis gave no reasonable explanation for the transfer. Cadoret's conclu- sion as to the reason for the transfer was his union activity. His conclusion was buttressed by the lack of any reply by Mathis and thus the lack of any plausible reason for the transfer. I shall make the same conclusion and come to the same result here. Again, Mathis left this matter hanging with uncertainty, with not merely an inadequate reason or answer, but with none at all. 611 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. The Supervisory Status of Dispatcher Rick McDaniel The status of dispatcher McDaniel is an issue in this case, as it was in the representation case.18 Since the complaint in this case alleges that McDaniel was discrimi- natorily discharged in violation of Section 8(a)(3) of the Act, I must out of necessity determine his status as an employee. McDaniel was hired in late August by one "Dave" Hankamer. When hired, McDaniel was given the authority by Dave Hankamer to hire and fire employees, and to handle complaints. Plant Manager Mathis had directed the Respondent's Junction City facilities for approximately 2 years, with the exception of the month of August, when he was apparently directing facilities for the Respondent in a neighboring city.19 Approximately I month after McDaniel was hired Mathis made it clear that McDaniel did not have the authority to interview or to hire and fire employees. Indeed, McDaniel attempted to do both and was re- proached by Mathis, making it clear that he (Mathis) had the sole and original authority on all such matters. In additional and separate instances McDaniel further at- tempted to authorize time off for an employee and to handle a customer complaint. In both cases Mathis intervened, indicating to McDaniel that he did not have the authority to authorize time off or to handle customer complaints. Mathis himself and in testimony in effect did not consider McDaniel a supervisor, indicating, "I never did tell him he was a supervisor, no." McDaniel was a "salaried" employee and, with two other exceptions (the "batchman" and another dispatcher), all of the other employees worked on an hourly basis. However, the three salaried employees, including McDaniel, were paid less than the hourly based employees. Considering all of the relevant facts and circumstances in evidence in this case, I conclude and find that McDaniel did not exercise significant independent judgment in his work or have and exercise other characteristics of a managerial or supervisory employee sufficient to exclude him from the protection of the Act. Accordingly, I find that Is In Case 17-RC-7846, the Regional Director had decided that McDaniel was a supervisor within the meaning of the Act. Although the Decision and Direction of Election is dated December 18. the record appears not to reveal the date or dates of the actual hearing in that case. In denying the Respondent's request for review of the Decision and Direction of Election, the Board amended the Regional Director's decision to permit McDaniel to vote, subject to challenge. The Regional Director, in conclud- ing that McDaniel was a supervisor within the definition of the term in Sec. 2(11) of the Act, recited the following in his decision: ... the plant manager does not involve himself to an appreciable degree in the area of processing the work orders and the responsibility for assigning the work to the drivers on a day-to-day basis, but rather leaves this substantially to the dispatcher. The dispatcher also appears to be able to affect the earnings of the drivers by his authority to decide who receives the "late loads", in some instances working them overtime. 19 The record reflects that Dave Hankamer is a relative of the Respondent's president, John Hankamer. With the exception to this reference to him in the record, Dave Hankamer apparently and thereafter became estranged from the Respondent's business and his name did not appear significantly thereafter in testimony. His official status with the McDaniel is an employee within the meaning of the Act and is thus entitled to the protection of the Act. D. The Discharge of McDaniel McDaniel had supported the Union, had signed a union authorization card, and had attended the union meeting on Saturday, October 25. He testified that on Sunday, October 26, he called Plant Manager Mathis by phone to ascertain the following day's workload. According to McDaniel, Mathis questioned him regarding the Union and regarding the meeting on the previous day. Mathis related that the Respondent's president, John Hankamer, was upset or unhappy about the fact that he (McDaniel) had not informed him of the union activity.20 Mathis then, in effect, told McDaniel to stay home on Monday, October 28, and to come in the following day to pick up his check. McDaniel further testified that he in fact did not report for work on Monday and went to the Perry Street plant on Tuesday to pick up his final check. McDaniel reasonably and correctly concluded that he had been discharged on Sunday, October 26. Mathis weakly attempted to justify the discharge (which he claims was on Tuesday, October 28), on two grounds. First, Mathis denied having talked on the phone with McDaniel on Sunday. 21 Thus, Mathis attempts to infer that he did not authorize McDaniel's absence from work on Monday and he thereafter indicates that, when McDaniel did report on Tuesday, he initially decided to allow McDaniel to con- tinue to work. Then, according to Mathis, John Hankamer instructed him to "let [McDaniel] go." Mathis here attempts to imply that Hankamer, upon learning that McDaniel did not report on Monday, made the decision to discharge McDaniel. Secondly, Mathis testified that he was not happy with the way McDaniel "handled" customers and that he was "too smart" with them. However, there is no evidence whatsoever in the record that, at any time prior to McDaniel's discharge, Mathis, or anyone else connected with Respondent's management, had com- plained about McDaniel's work. Mathis himself testified that he gave McDaniel no direct reason for his discharge. For some uncertain and perplexing reason, the Respon- dent attempted to show that McDaniel did in fact work on Respondent was never made completely clear, although I am led by the record to conclude here that Dave Hankamer was the Respondent's plant manager in Junction City in August and on a more or less temporary basis, until the return of Mathis. I also conclude that Mathis took no part in McDaniel's initial hiring or his assignment of job responsibility. 20 I shall conclude herein that the conversation in fact took place and I consider that Mathis felt that dispatcher McDaniel should have informed the Respondent of the union activity by virtue of the fact that he worked at the plant and directly with Mathis throughout each workday, as opposed to the employee drivers, whose contact with Mathis was generally brief and for short periods of time in the morning and usually in the evenings when their runs were completed. I considered this relationship in my previous determination that McDaniel held nonsupervisory status and I do not think that McDaniel's daily work routine and my previous determination are inconsistent. McDaniel simply had more direct contact of a continuous nature with not only the employee drivers but also with Mathis himself (and thus with management). 21 I credit here completely the testimony of McDaniel over that of Mathis. I have previously indicated that I discredit virtually all of Mathis' testimony in this case. The uncertainty and the indirect deception of his testimony and explanations are clearly illustrated and emphasized in the McDaniel discharge incident. 612 HANKAMER READY MIX CONCRETE CO. Tuesday, October 28. This was done not only through the testimony of Mathis but also through the introduction of several work order invoices which were allegedly taken by McDaniel on October 28. When compared with an earlier invoice that McDaniel admittedly took and wrote, there are obvious handwriting discrepancies. I do not, however, intend to play the role of a handwriting expert in this case, as the evidence in my opinion does not require a determin- ing comparison. As indicated, I credit McDaniel's testimo- ny over that of Mathis, noting that other employees failed to hear McDaniel dispatch on October 28, and further noting that not a single pay record was introduced by the Respondent to substantiate that McDaniel was in fact paid for October 28. Both Mathis and Hankamer, I find, knew of McDaniel's union sympathies and support. McDaniel himself, in the Sunday (October 26) telephone conversation with Mathis, had confirmed this support. I further conclude that both Mathis and Hankamer were unhappy with not only McDaniel's union support and his failure to fully inform them of the union organizational activities, but also that they were further unhappy about the fact that McDaniel made no attempt or showed no desire to intervene in an attempt to stop the organizational drive. McDaniel was the Respondent's major and daily link with most of the other employees but his lack of desire or his failure to sabotage the organizational drive, and his additionally sympathetic attitude towards the Union, brought his downfall. I find that McDaniel in fact was discharged on Sunday, October 26, because of his protected concerted activities, in viola- tion of Section 8(a)( ) and (3) of the Act. E. The Discharge of Employee Drivers Albert Cadoret and Mike McConnell At approximately 6 a.m. on November 13, employee drivers Albert Cadoret, Michael McConnell, and James Bush went duck hunting. The three employees had previ- ously discussed such a hunting trip, in the presence of Mathis, and plans were made to go when the first cold front hit the area. 22 The three employees planned to hunt until 9 a.m. or shortly thereafter and then report for work. When they finished hunting and returned to their truck, they discovered that the battery had run down and that a "jump" was needed in order to start the truck. By the time the truck was started and the three had obtained a hot meal, it was approximately 1:30 or 2 p.m. before they returned to Junction City. The three then decided not to report to work that day and to wait until the following morning.23 When Cadoret arrived the following morning, he found Bush leaving the office at the Grant Avenue plant, carrying his personal belongings and handing his truck key over to Mathis. Cadoret then asked Mathis if Bush had quit and Mathis replied that all three of them had quit by failing to report to work the previous day. Cadoret 22 The record does not reveal when this discussion took place but all indications are that it did not take place at least on the day before the trip. 23 This decision I conclude was prompted by two reasons. First, the three determined that the passage of time might soften their admonishment. Secondly, most (if not all) work assignments had already been handed out for the day and there would be few if any orders to fill upon amrriving so late at the plant. 24 All three employees had signed union authorization cards but there is insisted that the three had not quit. Mathis remained firm and Cadoret thereafter left. McConnell apparently learned of the plight of Bush and Cadoret shortly thereafter and apparently did not ultimately report at all on November 14. Two days later, Bush was rehired because he had apparently "come to" Mathis and apologized. Mathis in testimony conceded this and indicated that, if McConnell and Cadoret had done the same, they would have been rehired.2 4 Mathis testified that, on the morning of November 13, he himself went to the homes of Bush and Cadoret to look for them. Mathis further and amazingly testified that he in fact decided and concluded late the morning of November 13 that the three employees had in fact gone hunting and he justified telling them that he felt that they had "quit" because he had decided that it was time to "take a firm hand ... and teach them a lesson." The colder winter months were admittedly the slack portion of the Respondent's business year. During peak season, an employee's weekly hours could range above 50 hours whereas, during slack periods, the weekly hours could drop to about 30. Cadoret had not been told the day before when to report to work on the morning of Novem- ber 13 and I conclude from the entire testimony in this case that it was not unusual for employees to report later than usual during the winter months. The evidence further reflects that, in fact, periodically and during both busy and slack periods, employees failed to report to work or reported to work late for various reasons, including the over indulgence of intoxicating beverages. 25 Mathis had further, on occasions, not only traveled to the homes of employees in an effort to rouse a late sleeping employee but had also actually driven the employee's truck to his home in an effort to get him on the road at the earliest possible moment after opening hours. By the introduction of various records the Respondent attempted to show that the absence of the three employees on November 13 caused the Respondent to be short handed and resulted in the Respondent's failure to fill all the day's orders. However, more concrete was poured on November 13 than on the previous day, and while the records admitted into evidence may confusingly substanti- ate the fact that all orders were not filled on November 13, in my opinion they failed to conclusively trace the reason to the absence of the three drivers. Even if such were the case here, such would not affect my ultimate and inescap- able conclusion that the discharges were unjustified. Employees Cadoret and McConnell became imperiled in a situation through no fault of their own and through an understandable and rational series of events. Their only possible mistake that I can determine here was their failure to contact Mathis upon returning to Junction City in the afternoon of November 13. Even that action may well have no evidence in the record to indicate that Bush or McConnell were outwardly active in the union organizational drive. Cadoret, on the other hand, initiated the drive and was the Union's prime supporter. 2s Cadoret, in fact, was known for his affinity for drinking beer and for his taste and habits in this regard. Other employees were also so known, and Mathis himself had "fatherly" admonished employees on occasions for their "wasteful" expenditure of funds on and for such purposes. 613 DECISIONS OF NATIONAL LABOR RELATIONS BOARD led to the ultimate result which occurred the following day, but such would be conjuncture. The resultant conclusion to wait until the following morning to report was, I find, understandable and reasonable under the circumstances. I further find that the result upon their return was overly harsh and unusual, especially when considering the previ- ous nature of Mathis' relationship with the employees, the work habits of many employees relative to lateness or failing to report, and considering the Respondent's usual normal toleration of such incidents. Mathis' explanation or defense "to teach them a lesson" dignifies the term "pretext" here, but I so find that such was the case. Mathis' actions and the resulting discharges of Cadoret and McConnell I find and conclude were motivated by their union involvement and support and thus the discharges were discriminatory and in violation of Section 8(a)(I) and (3) of the Act. The only possible shadow here is the reemployment of employee Bush several days later. Bush had also signed a union authorization card but, upon apologizing, he had been returned to work. I cannot, however, allow this fact to overcome and circumvent the total and substantial evidence found in the record which leads me to the conclusion that the discharges were in fact improperly motivated. Cadoret was, in effect, an employee leader and his extraction from the scene was important to the Respondent, even at the risk of losing one or more other employee drivers, notwithstanding the fact that good drivers were admittedly difficult to find. F. The Constructive Discharge of Norman Cadoret Norman Cadoret, brother of Albert, 26 "lost his temper . . [and] quit" on December 16. The complaint in this case alleges the constructive discharge of Norman Cadoret on that date. Norman initially testified that he lost his temper over a "misunderstanding" about the condition of his truck and further because he had been "cheated out of overtime hours." He additionally and later added that the way his brother had been treated contributed to the loss of his temper and that "it all broke loose at once." He related that, upon reporting to work on the morning of December 16, he was to be allowed the use of a new truck that day by reason of the vacation of the truck's regular driver, but that upon his arrival the truck had already been reassigned to another driver. The "misunderstanding" regarding the condition of his regular truck apparently involved the mechanical failure of the truck's starter which he had requested several times to be fixed in the past. However, he conceded that, as of December 16, his truck was in "pretty good shape." 26 Norman had also signed a union authorization card but there is no evidence that he took as active a role in the union organizational drive as that of his brother Albert. In comparing the two after observing them both testify, Norman does appear to be more reserved and less forceful than his brother Albert. Because of the relationship, however, he was aware of many of the incidents which had taken place by virtue of the union movement and had in fact been the recipient of various threats and interrogation from Mathis in October as related earlier herein. 27 It is unclear as to whether or not Norman Cadoret attended the union meeting on Saturday, October 25. Even assuming that he did, I would further consider this action to be minimal and I cannot and do not presume and conclude further activity simply by virtue of the fact that he was the brother of the main employee-organizer. The General Counsel appears to urge in this case that the evidence of constructive discharge is stronger by The discharge of Norman's brother Albert had occurred more than a month previous to December 16. The Regional Director's Decision and Direction of Election (Case 17-RC-7846) was dated December 18, and there is no evidence in the record from which it could be concluded that union activities at the Respondent's facilities were more than minimal, at best, during the weeks previous to December 16. From the testimony of both Norman Cadoret and Plant Manager Mathis I could find or detect absolutely no personal animosity between the two. The record further indicates that the only union activity which Norman engaged in was signing a union authorization card on October 24.27 My initial impressions in this case were that the General Counsel failed to meet its required burden of proof regarding Norman's alleged constructive dis- charge. In reviewing the record in this case and considering the argument of all counsel, I must again conclude that in fact the General Counsel failed to prove the allegation and, accordingly, I do not find that the actions and activities of the Respondent pertaining to Norman Cadoret were directed or carried on for the purposes of obtaining Norman's resignation. Nor do I find that any actions taken by the Respondent in this case were taken against or directed to Norman by virtue of any protected or concert- ed activity in which he may have engaged. Thus I find and conclude that the resignation of Norman and the facts and circumstances surrounding the same did not constitute any violation of the Act. G. The Refusal To Bargain (the 8(aXS) Violation) 1. The card majority Many of the employees initially discussed the desirability of a union on October 22. On October 23, Cadoret traveled to Topeka, Kansas, and obtained union authorization cards. Cadoret signed and dated his card immediately upon obtaining the cards. Cadoret himself had personally obtained signatures on the balance of the cards, 14 in number, the following day and on October 24. All 15 cards were admitted into evidence in this case and counsel stipulated to a list of 21 nonsupervisory employees of Respondent on October 24, also as of October 27 (the date of the recognitional demand letter from the Union) and also as of October 31 (the date of receipt of said letter by the Respondent.) 28 The names of all the employees who virtue of the brother relationship between Norman and Albert. As indicated earlier, the two individuals were distinctly different from each other in personality, makeup, and mannerisms. Norman came off as passive and somewhat reserved for the most part and there is absolutely no evidence whatsoever in this case which would indicate that the two brothers worked together in initiating the union movement at the Respondent's facilities. 28 The Respondent disputed the status of three of the employees on the list, dispatcher Rick McDaniel, dispatcher George Hauser, and batchman Richard Lackner. All three were salaried employees. The balance of the employees were paid hourly. McDaniel was the only employee whose status was in dispute in the representation case and, out of necessity, I have already found herein that he was in fact a nonsupervisory employee. No evidence was presented in this case which would directly aid in a determination of the supervisory status of employee Lackner. Batchman 614 HANKAMER READY MIX CONCRETE CO. signed cards (15) also appear on the employee list.29 The Respondent's objections to the cards included four cards with defective dates. Two of these cards were undated completely but both were satisfactorily authenticated by Cadoret and, in one case, the signatory himself testified that he in fact signed the card on October 24. One card was dated October 22 and another card did not contain the year. These two cards were also satisfactorily and properly authenticated by Cadoret. I find that the four cards were not defective by virtue of their dates. The Respondent herein further argues that many of the cards should be disqualified because their signatories were only told that the cards would be used only to obtain an election. I find this argument to be frivolous in this case and not worthy of further comment. 2. The demand and refusal The 15 signed authorization cards were turned over to the Union at the meeting of Saturday, October 25. On October 27, the Union's business agent, J. J. Glenn, authored and mailed a letter to the Respondent's plant manager, Mathis, indicating that the Union represented a majority of the Respondent's employees for the purpose of collective bargaining and further indicating that Glenn was "ready to meet with [Mathis at his] earliest convenience." This letter was received by Mathis on October 31. Consid- ering the Union's letter and all other relevant evidence in this case, I conclude and find that the Union has made a more than sufficient and clear demand to and for the Respondent to bargain in this case and that said demand has been continuing without results. 3. The atmosphere The antiunion atmosphere and the Respondent's union animus is portrayed by the various violations found herein. I consider said violations to be flagrant and serious and the atmosphere, created by the Respondent's actions and unquestionable desire to prevent union organization, I find to be continuing. Thus, the remedy recommended herein will include a bargaining order based upon my conclusion and finding that the Respondent refused and continues to refuse to bargain with the Union in violation of Section 8(a)(5) of the Act. Lackner merely mixed the concrete at the plant and thereafter aided in the loading of the concrete on the trucks. Hauser apparently performed the same duties as McDaniel, but additionally had the authority to fire employees. However, a determination as to the status of Lackner and Hauser is not necessary in this case, as with or without them a card majority would remain on all three relevant dates. 29 On October 27, employee McDaniel admittedly was no longer with the Respondent, as is true on October 31. With the exception of employee Bradford Jackson, the list thereafter remained the same on October 31. Jackson had apparently left the Respondent prior to that date and after October 27. Even giving the Respondent the benefit of the doubt regarding employees Lackner and Hauser, the Union's card majority was present and remained on all three dates (October 24, 19 employees and 14 signatories; October 27, 18 employees and 13 signatories; October 31, 17 employees and 12 signatories). 30 The record reflects that both Albert and Norman Cadoret were offered and accepted reinstatement on or about June 1, 1976. 31 N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575, 614-615 (1969). The Court further stated as follows: Ill. THE REMEDY Having found that the Respondent has engaged in unfair labor practices, it will be recommended that Respondent cease and desist therefrom and take certain affirmative action to effectuate the policies of the Act. It further having been found that the Respondent discriminated against employees Albert Cadoret, 30 Mi- chael McConnell, and Richard McDaniel in violation of Section 8(a)(1) and (3) of the Act, the recommended Order will provide that Respondent make them whole for loss of earnings (if any) and other benefits within the meaning of and in accord with the Board's decisions in F. W. Woolworth Company, 90 NLRB 289 (1950), and Florida Steel Corporation, 231 NLRB 651 (1977). Because of the character and repetition of the unfair labor practices herein found, the recommended Order will provide that the Respondent cease and desist from in any other manner interfering with, restraining, and coercing employees in the exercise of their rights guaranteed by Section 7 of the Act. Although there has been no election and thus the Union has not been certified, it has obtained valid authorization cards from a majority of the employees in the appropriate unit which thereby designated it as the exclusive represen- tative for the purposes of collective bargaining. The Respondent has also committed unfair labor practices which I find and conclude warrant the imposition of a bargaining order, which shall be recommended herein. While the Supreme Court has approved the imposition of a bargaining order in "exceptional" cases where the unfair labor practices were so "outrageous" and "pervasive" that "their coercive effects cannot be eliminated by the applica- tion of traditional remedies," the Court has also held that a bargaining order is appropriate "in less extraordinary cases marked by less pervasive practices which nonetheless still have the tendency to undermine majority strength and impede the election processes." 31 The Union in this case has requested that the remedy herein deviate from the traditional remedies discussed above and include provisions for the reimbursement of the Union's (and the Board's) attorney fees and litigation costs, together with the union organizational costs and expanded employee losses.32 I have carefully considered the Union's request in the light of all the evidence in the case, and in light of my findings and conclusions herein, and I conclude The Board's authority to issue such an order on a leser showing of employer misconduct is appropriate, we should reemphasize, where there is also a showing that at one point the union had a majority; in such a case, of course, effectuating ascertainable employee free choice becomes as important a goal as deterring employer misbehavior. In fashioning a remedy in the exercise of its discretion, then, the Board can properly take into consideration the extensiveness of an employer's unfair practices in terms of their past effect on election conditions and the likelihood of their recurrence in the future. If the Board finds that the possibility of erasing the effects of past practices and of ensuring a fair election (or a fair rerun) by the use of traditional remedies, though present, is slight and that employee sentiment once expressed through cards would, on balance, be better protected by a bargaining order, then such an order should issue .... 32 The General Counsel did not join in the request. 615 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that the facts and circumstances of this case do not fall within those cases wherein the Board has sparingly granted such additional and expanded remedies.33 Accordingly, the request is denied. Upon the foregoing findings of fact and initial conclu- sions of law, and upon the entire record, I hereby make the following: CONCLUSIONS OF LAW I. The Respondent is an employer engaged in com- merce within the meaning of Section 2(6) and 2(7) of the Act. 2. The Union (and Charging Party) herein is a labor organization within the meaning of Section 2(5) of the Act. 3. The Respondent, by and through its plant manager, P. H. Mathis, engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act, at its facilities in Junction City, Kansas, on the following dates and by the following actions: (a) On October 24, 26, and on or about October 28, by improperly interrogating employees regarding their union sympathies and activities. (b) On October 24, and on or about October 28, by improperly threatening employees with closure of the Respondent's business if the employees were successful in their organizational attempts. (c) On October 24, and on or about October 28, by improperly threatening employees with discharge or other economic reprisals if they engaged in support for the Union or engaged in other similar protected concerted activities. (d) On October 24, 26, and 27, by improperly creating the impression that the Respondent was engaged in surveillance of its employees while engaged in union or other protected concerted activities. (e) On October 24, and on or about October 28, by improperly promising employees increased economic benefits, in the form of a raise in pay, if they would abandon their support for the Union and their engage- ment in protected concerted activities. (f) In late October, by improperly subjecting an employee to less desirable working conditions because of his activities on behalf of and in support of the Union. 4. The Respondent engaged in unfair labor practices within the meaning of Section 8(a)(l) and (3) of the Act at 33 Tiidee Products, Inc., 194 NLRB 1234 (1972); Heck's Inc., 215 NLRB 765 (1974). I have attempted to be completely objective in reaching the above conclusion, which in no way reflects my personal feelings regarding the nonjudicial merit of the request, or my personal feelings regarding the Respondent's motivations in and about this litigation. 34 This unit is identical to that found by the Regional Director in his Decision and Direction of Election (Case 17-RC-7846) with the exception of the absence of the words "the dispatcher," which the Regional Director originally and specifically excluded from the unit by virtue of his decision, contrary to mine herein, regarding the supervisory status of dispatcher McDaniel. There also appears to have been two dispatchers at Respondent's facilities, McDaniel and Hauser (who did have the authority to fire employees). My Decision herein in effect includes dispatcher McDaniel in the unit but excludes dispatcher Hauser. I choose here not to expand the its facilities in Junction City, Kansas, on the following dates and by the following discriminatory actions: (a) On October 26, by improperly discharging Rich- ard McDaniel because of his union sympathy and support and because he engaged in protected concerted activities. (b) On November 14, by improperly discharging employees Albert Cadoret and Michael McConnell because of their union sympathies and support and because they engaged in protected concerted activities. 5. An appropriate unit for the purposes of collective bargaining within the meaning of Section 9(b) of the Act is: All production and maintenance employees of Han- kamer Ready Mix Concrete Company at Junction City, Kansas, including truck drivers, but EXCLUDING office clerical employees, guards, and supervisors as defined in the Act.34 6. On October 24, the Union represented a majority of the employees in the unit described above for the purpose of collective bargaining within the meaning of Section 9(a) of the Act.35 7. By refusing to recognize and bargain with the Union on and after October 31,36 as the exclusive representative of its employees in the appropriate unit, the Respondent violated Section 8(a)(1) and (5) of the Act. 8. The above-mentioned unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 9. The Respondent has not otherwise violated the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER37 The Respondent, Hankamer Ready Mix Concrete Com- pany, Junction City, Kansas, its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Questioning or interrogating employees about their union activities, sympathies, or desires. (b) Threatening employees with closure of the Respon- dent's business or plants because the employees engaged in union or other protected concerted activities. (c) Threatening employees with discharge or other economic reprisals, or discharging employees, because they engaged in union or other protected concerted activities. verbiage of the unit description but to simplify it by making no reference at all to any "dispatcher." 35 The date of October 24 is chosen here not only because it was the date on which the card signatures were completely obtained, but also because it was the date on which the first unfair labor practices were found herein to have occurred. Se The Kroger Company, 228 NLRB 149 (1977). 36 October 31 was the date Plant Manager Mathis received the recogni- tion letter (which was dated October 27). 37 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. 616 HANKAMER READY MIX CONCRETE CO. (d) Creating among employees the impression of surveil- lance of employees' union and other protected concerted activities. (e) Promising employees increased economic benefits in the form of increased pay or pay raises if they would abandon their union support or engagement in union or other protected concerted activities. (f) Subjecting employees to less desirable working condi- tions because of their union or other protected concerted activities. (g) In any other manner interfering with, restraining or coercing employees in the exercise of their right to self- organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the National Labor Relations Act, as amended, or to refrain from any or all such activities. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Offer Richard McDaniel, Albert Cadoret, and Mi- chael McConnell immediate and full reinstatement3 8 to their former jobs or, if such jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights or privileges, and make them whole for any earnings they lost with interest and in the manner set forth in "The Remedy" portion of this Decision. (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, 3s As indicated earlier herein, Albert Cadoret was apparently reinstated June I, 1976. His name is included here (and in the notice herein marked "Appendix") as a matter of form and to insure that all past as well as future contingencies are herein provided for. 39 In the event that this Order is enforced by a Judgment of a United personnel records and all other records necessary to ascertain the amount of backpay due under the terms of this recommended Order. (c) Revoke the change of work condition (the reassign- ment of an older truck) imposed upon Albert Cadoret in late October and reassign to him a truck of comparable age (in months), or as closely thereto as possible, as that which he originally had at the time of said change. (d) Upon request, bargain collectively with Truck Driv- ers and Helpers Local 696, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive representative of all employees in the unit described above, and, if an understanding is reached, embody such understanding in a signed agreement. (e) Post at its plants or facilities in Junction City, Kansas, copies of the attached notice marked "Appendix." 3 9 Copies of said notice, on forms provided by the Regional Director for Region 17, after being signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to ensure that said notices are not altered, defaced, or covered by other material. (f) Notify the Regional Director for Region 17, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS FURTHER RECOMMENDED that allegations in the complaint not found to have been sustained by a prepon- derance of the evidence herein be dismissed. 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." 617