Carter Lumber, Inc.

CARTER LUMBER, INC. 391 Carter Lumber, Inc. and Local No. 83, Laborers International Union of North America , AFL-CIO and Charles L. Parks. Cases 9-CA-7646-1' and 9-CA-7646-2 November 16, 1973 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On August 2, 1973, Administrative Law Judge Abraham H. Maller 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 and to adopt his recommended Order. ORDER foreman, because he gave testimony under the-Act adverse to the Respondent's interests in a Board hearing conducted on or about March 2, 1973, in Case 9-RC-9970, and by the conduct of Paul McKinley, assistant manager, in telling an employee that if the employees voted in favor of the Union their hours of work might be cut; that on or about March 12, 1973, the Respondent discriminated in regard to the hire and tenure of employment of Andrew O. Deere by reducing his hours of work, because of his sympathy for, membership in, and activities on behalf of the Union, and in order to discourage membership in the Union; and that on or about March 19, 1973, the Respondent discriminated in regard to the hire and tenure of employment of Charles Parks by refusing to recall him to work and by failing and refusing to reinstate him to his former position, because of his sympathy for, membership in, and activities on behalf of the Union and in order to discourage membership in the Union; that the aforesaid conduct constitutes violations of Section 8(a)(l) and (3) of the Act. In its duly filed answer, the Respondent denied any violations of the Act. Pursuant to notice, a hearing was held before me at Chillicothe, Ohio, on June 13, 1973. All parties were represented at the hearing and were afforded full opportu- nity to be heard, to introduce relevant evidence, to present oral argument, and to file briefs with me. Briefs were filed by all parties on or before July 16, 1973. Upon' considera- tion of the entire record and the briefs, and upon my observation of each of the witnesses, I make the following: 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 Carter Lumber, Inc., Piketon, Ohio, its officers, agents, successors, and assigns, shall take the action set forth in the said recommend- ed Order. i The Respondent has excepted tocertain credibility findings made by the Administrative Law Judge . It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect Standard Dry Wall Products, Inc., 91 NLRB 544, enfd. 188 F.2d 362 (CA. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. DECISION ABRAHAM H. MALLER, Administrative Law Judge: On March 12, 1973, Local No. 83, Laborers International Union of North America, AFL-CIO, herein called the Union, filed a charge against Carter Lumber, Inc., herein called the Respondent. On April 13, 1973, Charles L. Parks, an individual, filed a charge against the Respon- dent. Upon said charges, the Regional Director for Region 9 of the National Labor Relations Board, herein called the Board, on May 8, 1973, issued on behalf of the General Counsel a complaint against the Respondent. Briefly, the complaint alleged that the Respondent interfered with, restrained, and coerced employees in the exercise of the rights guaranteed in Section 7 of the National Labor Relations Act, as amended (29 U.S.C. Sec. 151, et seq.), herein called the Act, by discharging Cecil Love, yard 207 NLRB No. 64 FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent, an Ohio corporation, is engaged in the retail sales of lumber and related products at its place of business in Piketon, Ohio. During the 12 months proceed- ing the filing of the complaint, a representative period, the Respondent purchased goods valued in excess of $50,000, directly from suppliers located outside the State of Ohio. During the same period, Respondent's gross sales were valued in excess of $500,000. 1 find and conclude that the Respondent is engaged in commerce within the meaning of the Act and that it will effectuate the policies of the Board to assert jurisdiction here. II. THE LABOR ORGANIZATION INVOLVED Local No. 83, Laborers International Union of North America, AFL-CIO, is now, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. IIL THE ISSUES 1. Whether the Respondent discharged Cecil Love because he gave testimony under the Act in a prior Board proceeding, adverse to the interests of the Respondent. 2. Whether Respondent refused to recall Charles L. Parks because of his sympathy for, membership in, or activities on behalf of, the Union and in order to discourage membership in the Union. 3. Whether the Respondent reduced the hours of work available to Andrew Deere because of his sympathy for, 392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD membership in, or activities on behalf of, the Union and in order to discourage membership in the Union.' IV. THE ALLEGED UNFAIR LABOR PRACTICES A. Background At all tunes material herein, the Piketon yard employed approximately 12 unit employees, consisting of 3 counter- men and 9 yardmen. The supervisory, force consisted of Manager John Couch who resigned or went on leave of absence April 23, 1,973, Assistant Manager Paul McKinley, and Yard Foreman Cecil Love. The Union's organizational drive commenced in January 1973, when employee Andrew Deere went to the Union and obtained authoriza- tion cards. He proceeded to obtain signatures on these cards at the yard from 10 of the 12 unit employees. On February 7, 1973, the Union filed a petition with the Board's Ninth Regional Office, and a hearing thereon was held on March 2, 1973, in Case 9-RC-9970. At issue in the representation proceeding was whether the countermen should be included in the unit. On March 20, 1973, the Regional Director issued his Decision and Direction of Election in which he included the countermen in the appropriate unit. Pursuant thereto, a Board election was held on April 19, 1973. Eight votes were cast for the Union, three against, and one ballot was challenged. Thereupon, the Union was certified as the collective-bargaining representative on April 27, 1973. B. The Discharge of Cecil Love Cecil Love had been employed by the Respondent since April 1968. He started as a yardman at $1.60 per hour. Approximately 2-1/2 years before the hearing herein, he was promoted to yard foreman. Approximately a month and a half before his discharge, he had received a raise of 10 cents per hour, and was earning $2.60 per hour at the time he was terminated. As previously noted, a representation hearing was held on March 2, 1973, at Chillicothe, Ohio. Love attended this hearing, without subpena, at the request of the Union. He sat on the Union's side of the table, opposite Manager Couch and Respondent's attorney. He was called to the stand by the Union's attorney and testified on its behalf. At that hearing, Respondent contended that the counter- men should be excluded from the unit. An examination of the official transcript of that hearing shows that Love's testimony was favorable to the Union and adverse to the Respondent's position on this issue. In addition, Love contradicted the testimony of Manager Couch during this hearing. Thus, Couch had testified that, for quite some time, no countermen had gone into the yard to assist in loading or unloading. He also stated that countermen "very seldom" substituted for yardmen when the latter were on vacation, the last such substitution occurring too i As noted above, the complaint alleged that the Respondent violated Sec 8(a)(1) of the Act by the conduct of Paul McKinley, assistant manager, telling an employee that if the employees voted in favor of the Union their hours of work may be cut. In his brief, counsel for the General Counsel does not state this as one of the issues m the case, giving rise to the inference that the General Counsel has abandoned this allegation of the complaint. However,, in discussing the discharge of Foreman Love, the General long ago for him to recall. Love, on the other hand, testified that such occurrences were much more frequent and that counterman Gullett had substituted for him in the yard as recently as the previous weekend. The Regional Director disagreed with the Respondent's position and included the countermen in the unit, noting, inter alia, the daily contact between the yardmen and countermen and the fact that the countermen often work in the yard when needed to help unload merchandise or operate equipment. Immediately following the close of the representation hearing, Manager Couch departed for Columbus, Ohio, and Oklahoma and did not return to the yard until the following Tuesday, March 6. Upon his return, Couch complimented Love on the condition of the yard, stating that "it looked nice." According to Love, Couch did not voice any complaints, either at that time or during the remainder of the day. To the contrary, Manager Couch admitted that the yard was in particularly good condition upon his return and did not claim to have reprimanded Love at that time. Late the next afternoon, however, Manager Couch suddenly called Love aside and informed him that he had "orders to fire you." When Love asked him why, Manager Couch replied, "Well, I just got orders from the main office to fire you today." The following colloquy, according to Love, then ensued: I says, "Well, what are you going to fire me for?" He says, "I'm not firing you." He says, "I just got them orders, I've got to carry them out." And I says, "Well, if that's your orders, you've got to carry them out." He says, "Well," he says, "I feel like it's just giving you a vacation with pay." I says, "How's that?" He says, "If you file charges," he says, "I feel that the Company will have to take you back and pay you for your time off." Manager Couch then handed Love a termination slip for signature and then checked a place where the form read "Job Performance Unsatisfactory." At this point, according to Love, I says, "I thought you wasn't going to put anything on that." And he says, "Well, I've got to protect myself." The foregoing is based upon the credited testimony of Love who impressed me as an honest witness. Manager Couch, called as a witness for the Respondent, did not deny having the foregoing conversation with Love. Indeed, Manager Couch did not testify concerning this conversa- tion. Two or three weeks after his discharge, Love returned to the yard to purchase some material and spoke with Manager Couch. Several of the employees gathered around them, and one of them, John Hopper, asked Manager Couch why he had fired Love. According to Love, Counsel refers to McKinley's statement that if the Union came in and "if the wages are raised more than likely your overtime will be cut," and contends that this constituted a threat in violation of Sec. 8(a)(l) of the Act. In view of my findings, infra, I find it unnecessary to determine whether McKinley's statement was violative of the Act, as such a finding would in no way affect the remedy which I recommended. CARTER LUMBER, INC. - 393 Manager Couch replied that he did not fire Love, that Love was a good foreman, and that he (Couch) was acting on orders from the Company to let him go. Love's testimony in this regard was corroborated by Deere and is credited. Again, Manager Couch did not testify regarding this conversation. As noted above, Love's termination slip indicated that he was discharged because of "Job Performance Unsatisfacto- ry." To support this, Respondent presented the testimony of Manager Couch to the effect that the yard was not kept clean and as a result the Company failed to pass inspections by insurance investigators,2 the occurrence of excessive pilferage,3 excessive demurrage' charges because of failure to unload railroad cars within the time limit,4 Love's failure to assign days off for the yardmen, and his inability to get the yardmen promptly assigned to their tasks in the morning. I find all of these reasons to be pretextual. According to Manager Couch, the alleged deficiencies of Love's performance had existed during 1971 and 1972. Yet, the Respondent did not warn Love that he was subject to disciplinary action or discharge for these alleged deficiencies, nor did it take any action against him until after he had testified against the Respondent's position in the representation hearing. To the contrary, it is not disputed that Love received a raise of 10 cents an hour approximately a month and a half before his discharge. This circumstance speaks so eloquently that Respondent's complaints about his alleged poor performance cannot be credited. It is well settled that the discharge of a supervisor because he testified in a Board proceeding adversely to the employer interferes with, restrains, and coerces rank-and- file employees in the 'exercise of their self-organizational rights within the meaning of Section 8(a)(1) of the Act. Better Monkey Grip Company, 115 NLRB 1170, enfd. 243 F.2d 836 (C.A. 5, 1957), cert. denied 355 U.S. 864 (1957); Oil City Brass Works, 147 NLRB 627, 630; Leas & McVitty, Incorporated 155 NLRB 389, 390. The rationale of the Board is set forth in Better Monkey -Grip, supra, as follows: In our opinion, the net effect of . . . [the supervisor's discharge was to cause nonsupervisory employees reasonably to fear that the Respondent would take the same action against them if they testified against the Respondent in a Board proceeding to enforce their guaranteed rights under the Act. Clearly inherent in the employees' statutory rights is the right to seek their vindication in Board proceedings. - Moreover, by the same token, rank-and-file employees are entitled to vindicate these rights through the testimony of supervi- sors whop have knowledge of the facts without the supervisors risking discharge or other penalty for giving testimony under the Act adverse to theiremployer. (115 NLRB at 1171.) The Respondent argues that Love's testimony in no way changed the outcome of the representation hearing. This is 2 Nevertheless, it appears that Manager Couch complimented Love on the appearance of the yard the day before he was terminated. Furthermore, it appears from the record that the appearance of the yard improved after the Respondent changed trash collectors subsequent to Love's discharge. 3 It appears from the record that this condition also improved after the Respondent's home office instituted a new ticket system, an event which patently incorrect, as the Regional Director's inclusion of the countermen in the appropriate unit appears to be the result of Love's testimony as to their duties. However, whether the testimony of a supervisor affected the outcome of the Board proceeding is not the test. The test appears to be whether the testimony of the supervisor was adverse to the employer. And as noted above, Love's testimony was directly contrary to the position taken by the Respondent in the representation proceeding and to the testimony of Manager Couch. Respondent argues further that Love was discharged 4 days after the representation hearing "and that there were no further hearings scheduled in the representation matter, nor were any other hearings of any kind scheduled at the time of the discharge. The contention is without merit. It matters'not whether there were any further hearings in the representation proceeding. The important consideration is that the effect of his discharge "was to cause nonsuperviso- ry employees reasonably to fear that' the Respondent would take the- same action against them if they testified against the Respondent in a Board proceeding to enforce their guaranteed' rights under the Act" (Better Monkey Grip supra in any subsequent unfair labor practice proceeding. Accordingly, I find and conclude that Love was discharged for testifying adversely to the Respondent in the representation proceeding and that such discharge violated 'Section 8(a)(1) of the Act because it "interfered with, restrained, and coerced rank-and-file employees in the exercise of their self-organizational rights within the meaning of Section 8(a)(1) of the Act" (Better Monkey Grip supra ). C. Respondent's Failure To Recall Parks Charles Leroy Parks was employed by the Respondent as a yardman for approximately 3-1/2 years. In December 1972, he received an on-the-job injury to his back. He attempted to continue to work, but was unable to do so. Following an examination by his physician, Parks was released for work, with the stipulation that he be restricted to light duty for a week. He attempted to work the next day, but found that he was unable to do so. He again left work and visited a chiropractor and began to undergo treatment. Parks was placed on unemployment compensa- tion for the next 2 or 3 months. During this period, about a month after his injury, he had occasion to speak with Manager Couch, who told him to "hurry up and get well" so that he could return to work. In January, 1973, Parks signed a union authorization card. - Approximately a 'week before his discharge, Love was looking at a work schedule hanging on a wall, when Manager Couch walked up and also looked at the schedule. Parks' name was at the top of the schedule. Manager Couch said, "Here's a man we don't want no more," and drew a line through Parks' name. Love asked occurred after Love's discharge Furthermore, Manager Couch admitted that part of the loss in 1971 was due to the fact that he authorized the yardmen to give customers a larger size when the yard was short of the type of lumber ordered by a customer, 4 According to Love's credited testimony, which was not contradicted by Manager Couch, there were no demurrage charges in 1973. 394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Couch why he was doing that, and pointed-out that Parks was a good man. Manager Couch replied, "Yeah, but he's mixed up in the Union." Respondent's records indicate that Parks was terminated on February 24, 1913, at approximately the time the foregoing conversation oc- curred. Love's testimony, detailed above, is uncontradicted and is credited.5 - Parks recovered from his injury and was given an unconditional release to return to work on March 19. On that date, he approached Manager Couch with the release, but was told that he was laid off for lack of work. A few days later, Parks returned to the yard to buy some material. Manager Couch called him aside and stated that he "didn't know`whether I was for him or against him."6 Parks continued his efforts to return to work for the Respondent. He was in touch with the new yard manager, Bach, on two or three occasions. Although Bacli'promised to do all he could, Parks was never recalled. - Respondent defends its failure to recall Parks on the ground that business was slow and it, did not need his services. The record does not support 'Respondent's contention. First, when Manager Couch told Parks that the Respondent had no work available for him, he did not tell him, as Respondent's payroll records reveal, that Parks had already been terminated on February 24. Second, there is no evidence that Respondent's business was slow when Parks applied for reinstatement. The only evidence bearing on this is the testimony of, Manager Bach that Respon- dent's business is seasonal, slow in winter and busy in spring. Yet, Parks application was made just before the start of spring. Third, Respondent's records reveal that employee Larry Thomas had quit work of his own accord 2 days prior to Parks' application. Yet, Parks was not rehired.' Instead, Respondent rehired employee Gregory Kazee on March 29. Respondent's records- indicate that Kazee had less experience than Parks.7 Also, according to Respondent's records, the Respondent hired two inexperi- enced employees, Steven DeLong and Elmer' Fitzpatrick, on May 25 and 29, respectively .$ Although both of these employees are listed as part-time employees, an examina- tion of Respondent's records reveals that DeLong worked a full 40-hour week plus 2-1/2 hours overtime, while Fitzpatrick during the second week- of his employment worked a full 40 hours and 1/2 hour overtime. Manager Bach, who succeeded Couch, explained that his failure.to recall Parks, when he hired DeLong and Fitzpatrick, was due to the fact that he knew that Parks was employed elsewhere: In view of all the foregoing, I find and conclude that Respondent discriminatorily refused to allow Parks to return to work on March 19, because it knew or believed that Parks was a union adherent who would be "against" it at the forthcoming election, in violation of Section 8(a)(3) and (1) of the Act. 5 The record contains other evidence of Respondent's union animus. Thus, according to Love's uncontradicted testimony, shortly after the representation petition was filed, Manager Couch told him that "if the Union gets in here, in the yard here, why, they'll be telling me and you our jobs and I won't put up with that." Approximately a week later, Manager Couch told Love that if he found out who was at the head of the Union, "he would make it bard on them.- 6 The credited and uncontradicted testimony of Parks. D. The Reduction of Andrew Deere's Hours Andrew Deere had been employed by the Respondent since January 1972, as a yardman. On May 1, 1972, he sustained an on-the-job injury to his wrist, as a result of which he missed much work. In January 1973, Manager Couch informed Deere that henceforth he would be considered a part-time employee, rather than full time. The change in designation did not affect the number of days or hours that Deere could work. It merely deprived him of fringe benefits such as holidays. The General Counsel conceded at the hearing that Respondent's action in this regard was not violative of the Act, as it occurred before the Respondent was aware of any union activity by Deere. Also, in January 1973, as a result of conversations with fellow employees, Deere got in touch with the Union, obtained authorization cards, and solicited signatures of Respondent's employees. He obtained signatures to 10 cards, including his own. In addition, he attended union meetings. He also attended the representation hearing, sitting on the Union's side. -On'the day that Foreman Love was terminated, Manager Couch told Deere that henceforth he would be restricted to working 4 days per week. Deere replied that he would like to work full time. Manager Couch responded: You can't work full time. I like you boys, but I'm working for the Company, I'm right in the middle. They've ordered me to cut you back to 4 days a week. Manager Couch added that since he had to cut Deere back to 4 days a week, he would let Deere pick the days he wanted to work. For a week or two thereafter, Deere did work more than 4 days, but then was restricted to taking Monday and Tuesday off. The 4-day-a-week restriction remained in effect until May 8, 1973. In his testimony, Manager, Couch did not explain why Deere was restricted to 4 days', work per week. On brief, however, Respondent contends that Deere's reduction of hours was a result of a lack of work. The contention is without merit. Manager Couch did not assign this as the reason for his action when he announced the restriction, saying only that he had been "ordered" to do so by the Company. Moreover, there is no evidence that Respon- -dent's business was slow when Deere's workdays were restricted. Although, as previously noted, Manager Bach testified that Respondent's business is seasonal, slow in winter and busy in spring, Deere was restricted to a 4-day workweek just before the start of the-spring season. Also, despite Manager Bach's testimony that business was slow in winter, Respondent's payroll records indicate that Deere worked a full 40 hours for each of the 4 weeks ending February 10, 1973, plus 7-1/2 hours overtime during each of the first 3 weeks, and 2-1/2 hours overtime in the 4th week. Although Deere worked only 28-1/2 hours for the 7 Respondent's payroll records indicate that Thomas, as well as Kazee, was designated as a "salesman," giving rise to a possible inference that both Thomas and Kazee were employed as countermen, as distinguished from yardmen. However. Respondent's records indicate that Parks was also designated as a "salesman." as was employee Deere, both of whom were admittedly yardmen. a According to Love's uncontradicted testimony, it takes at least 6 months for a man to become a competent yardman. CARTER LUMBER, INC. 395 week ending February 17, he worked 17 hours overtime during the week ending February 24, 1973. I find and conclude that Respondent's restriction of Deere's workweek to 4 days was discriminatory, in violation of Section 8(a)(3) and (1) of the Act. As indicated above, Deere was the leading union advocate among the employees, and Respondent was fully aware of his union sympathy when he appeared on the Union's side at the representation proceeding. And as previously noted, Respondent had in other respects indicated its union animus. Coming as it did on the very same day that Foreman Love was discharged, and in the absence of any evidence to support a contrary inference, Respondent's conduct irresistibly leads to the conclusion that it was motivated by Deere's union sympathy as an attempt to retaliate against him for such sympathy and to restrain him from further union activity including voting for the Union at the forthcoming election. Respondent argues that Deere was not prejudiced by being restricted to 4 days' work per week, because he did not work 4 full days per week thereafter. The argument is without merit. First, it assumes that Deere was offered 4 full days per week. Second, even if he had been offered 4 full days of work per week, it is patent that he would have worked additional hours had he been permitted to work more than 4 days per week. These considerations, however, are irrelevant to the issue whether Respondent's action was violative of the Act. They go,'instead, to the question as to the amount of backpay that Deere may recover, a matter which should be resolved in a subsequent compliance proceeding. V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE reason of such discharge, with interest to be computed in the customary manner.9 Having found that the Respondent discriminatorily refused to reinstate Charles L. Parks, I shall recommend that the Respondent be ordered to offer him immediate reinstatement to his former job, discharging, if necessary, any employee hired to fill such-job, or if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights, and make him whole for any loss of earnings he may have suffered by reason of such discharge, with interest to be computed in the customary manner. Having found that the Respondent discriminatorily restricted Andrew Deere to working 4 days per week between March 8 andMay 8, 1973, I shall recommend that the Respondent make him whole for any loss of earnings he may have suffered by reason of such restriction, with interest to be computed in the customary manner. Since it cannot be determined from the record in the instant proceeding, whether during that period Deere could and would have worked on days other than the 4 to which he was restricted, the exact amount should be determined in a compliance proceeding. I shall further recommend that the Respondent be ordered to preserve and make available to the Board or its agents, upon request, payroll and other records to facilitate the computation of backpay due and the right to employment. As the unfair labor practices committed by the Respon- dent are of a character striking at the root of employees' rights safeguarded by the Act, ' I shall recommend that it cease and desist from infringing in any manner upon the rights guaranteed in Section 7 of the Act. The activities of the Respondent set forth in section IV, above, occurring in connection with the operations of the Respondent set forth in section 1, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. VI. THE REMEDY Having found that the Respondent has engaged in unfair labor practices within the -meaning of Section 8(a)(1) and (3) of the Act, I shall recommend that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. Having found that Love's discharge interfered with, restrained, and coerced nonsupervisory employees in the exercise of their statutory rights, I shall recommend that the Respondent be ordered to offer him immediate reinstatement to his former job, discharging, if necessary, any employee hired to fill such job, or if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights, and make him whole for any loss of earnings he may have suffered by CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3_ By discharging Cecil Love because he gave testimo- ny adverse to the interest of the Respondent in a Board proceeding, the Respondent interfered with, restrained, and coerced nonsupervisory employees in the exercise of their statutory rights, in violation of Section 8(a)(1) of the Act. 4. By discriminatorily refusing to reinstate Charles L. Parks, the Respondent has engaged in an unfair labor practice within the meaning of Section 8(a)(3) and (1) of the Act. 5. By discriminatorily restricting the number of days which Andrew Deere 'could work, the Respondent has engaged in an unfair labor practice within the meaning of Section 8(a)(3) and-(1) of the Act. 6. 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 foregoing findings of fact, conclusions of law, 9 F. W Woolworth Company, 90 NLRB 299; Isis Plumbing & Heating Co., 138 NLRB 716. 396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: 10 ORDER Respondent, Carter Lumber, -Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging or in any other manner discriminating against any witness with respect to his hire or tenure. of employment or any term or. condition of, employment because he has given testimony under the Act. (b) Discouraging membership in Local No. 83, Laborers International Union of North America, AFL-CIO, or in any other labor organization of its employees, by refusing to reinstate, restricting working days, or in any other manner discriminating against employees with regard to hire and tenure of employment or any term or condition or employment. (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights to self- organization, to form, join, or assist any labor organiza- tion, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities, except to the extent that such right is affected by the proviso to Section 8(a)(3) of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Offer Cecil Love full and immediate reinstatement to his former job, discharging, if necessary, any employee hired 'to fill such job, or if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights, and make him whole for any loss of earnings he may have suffered by reason of his discharge, in the manner set forth in the section of this Decision entitled "The Remedy." (b) Offer to Charles L. Parkes immediate and full reinstatement to his former job, discharging, if necessary, any employee hired to fill such job, or if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights, and make him whole for any loss of earnings he may have suffered by reason of Respondent's refusal to reinstate him, in the manner set forth in the section of this Decision entitled "The Remedy." (c) Make Andrew Deere whole for any loss of earnings he may have suffered by reason of the Respondent's action in restricting the number of days he could work, in the manner set forth in the section of this Decision entitled "The Remedy." (d) Preserve and make available to the Board or, its agents, upon request, for examination and copying all records necessary for the determination of the amount of backpay due and the right to employment. (e) Post at its yard in Piketon, Ohio, copies of the attached notice marked "Appendix."" Copies of the notice on forms provided by the Regional Director for Region 9, after being duly signed by an authorized representative of the Respondent, shall be posted by the Respondent immediately upon receipt thereof and be maintained by it for 60 consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 9, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 10 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 recommendations, 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. ii In the event that 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 be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discharge or in any other manner discriminate against any witness with respect to his hire or tenure of employment or any term or condition of employment because he has given testimony under the Act. WE WILL NOT discourage membership in Local No. 83, Laborers International Union of North America, AFL-CIO, or in any other labor organization of our employees, by refusing to reinstate, restricting working days, or in any other manner discriminating against employees with regard to hire and tenure of employ- ment or any term or condition of employment. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights to self-organization, to form, join, or assist any labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities, for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities, except to the extent that such right is affected by the proviso to Section 8(a)(3) of the Act. WE WILL offer Cecil Love full and immediate reinstatement to his former job, discharging, if neces- sary, any employee hired to fill such job , or if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights, and make him whole for any loss of earnings he may have suffered by reason of his discharge. WE WILL offer to Charles L. Parks immediate and full reinstatement to his former job, discharging, if necessary, any employee hired to fill such job, or if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights, and make him whole for any loss of earnings he CARTER LUMBER, INC. may have suffered by reason of our refusal to reinstate him. WE WILL make Andrew Deere whole for any loss of earnings he may have suffered by reason of our action in restricting the number of days he could work. All of our employees are free to become and remain members of the above-named Union or any other labor organization, or to refrain from doing so. CARTER LUMBER, INC. (Employer) Dated By 397 (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concern- ing this notice or compliance with its provisions may be directed to the Board's Office, Federal Office Building, Room 2407, 550 Main Street, Cincinnati, Ohio 45202, Telephone 813-228-7227.