Keokuk Gas Service Co.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Keokuk Gas Service Co. and Oil, Chemical and Atomic Workers International Union, AFL-CIO- CLC. Case 38-CA-2361 November 15, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY On June 23, 1977, Administrative Law Judge Jerry B. Stone issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief,t and the General Counsel filed a brief in support of the Administrative Law Judge's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings, 2 and conclusions3 of the Administrative Law Judge and to adopt his recommended Order, except that the remedy is modified so that interest is to be computed in the manner prescribed in Florida Steel Corporation, 231 NLRB 651 (1977). 4 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, Keokuk Gas Service Co., Keokuk, Iowa, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. I In its brief to the Board, Respondent moves to reopen the record for the purpose of introducing evidence concerning the processing of the grievance filed on July 28, 1976. by employee Neff. Respondent contends that it did not introduce such evidence at the hearing because the complaint did not specifically allege that its motive for suspending and discharging Neff was his announced intention to tile a gnevance. The General Counsel has filed an opposition thereto and a motion to strike that portion of Respondent's brief relying on additional evidence. The evidence which Respondent now seeks to introduce clearly was available to it at the time of the hearing. Furthermore, the complaint alleged that Respondent dis- charged Neff, inter alia, because of his union and/'or protected concerted activity-an allegation which clearly encompasses the conduct found unlawful herein and it is clear that Respondent litigated this issue at the hearing. Accordingly, we hereby deny Respondent's motion. 2 The Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products. Inc., 91 NLRB 544 (1950), entd. 188 F.2d 362 (C.A. 3, 1951). we have carefully examined the record and find no basis for reversing his findings. 3 In the absence of exceptions thereto, we adopt. pro fjorma, the Administrative Law Judge's dismissal of the allegations that Respondent 233 NLRB No. 76 violated Sec. 8(aX3) and (I) by giving employee Neff written and/or oral warnings because he engaged in union and/or other concerted and protected activity, and violated Sec. 8(aX4) and (I) by discharging Neff because he announced an intent to file and did file a charge with the National Labor Relations Board. 4 See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962). DECISION STATEMENT OF THE CASE JERRY B. STONE, Administrative Law Judge: This proceeding, under Section 10(b) of the National Labor Relations Act, as amended, was heard pursuant to due notice on January 18 and 19, 1977, at Keokuk, Iowa. The original charge was filed on August 9, 1976. The amended charge was filed on December 29, 1976. The complaint in this matter was issued on September 29, 1976. The issues concern whether Respondent has violated Section 8(a)(1) of the Act by certain acts of threats and surveillance, and has violated Section 8(a)(3), (4), and (I) of the Act by the issuance of reprimands to and the discharge of Robert Neff on July 29, 1976. All parties were afforded full opportunity to participate in the proceeding. Briefs have been filed by Respondent and the General Counsel and have been considered. Upon the entire record in the case and from my observation of witnesses, I hereby make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER The facts herein are based on the pleadings and admissions therein. Keokuk Gas Service Co., Respondent, is, and has been at all times material herein, an Illinois corporation with its office and place of business located at Keokuk, Iowa. It is engaged in the business of the retail distribution of natural gas at its Keokuk, Iowa, facility. Respondent, during a representative 12-month period, in the course and conduct of its business operations, purchased and caused to be transferred and delivered to its Keokuk, Iowa, facility goods and materials valued in excess of $50,000, which were transported to said facility directly from States other than the State of Iowa. Respondent, during a representa- tive 12-month period, in the course and conduct of its business operations, received gross revenues in excess of $250,000. As conceded by Respondent and based on the foregoing, it is concluded and found that Respondent is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Oil, Chemical and Atomic Workers International Union, AFL-CIO-CLC, is and has been at all times material herein a labor organization within the meaning of Section 2(5) of the Act. 496 KEOKUK GAS SERVICE CO. III. THE UNFAIR LABOR PRACTICES A. Preliminary Issues; Supervisory Stattus At all times material herein, the following named persons occupied the positions set opposite their respective names, and have been, and are now, agents of Respondent at its Keokuk, Iowa, facility, acting on its behalf, and are supervisors within the meaning of Section 2(1 1) of the Act: C. Benson Dushane, III, vice president and general manager; William Patchell, director of utilization; Michael Conn, customer service supervisor; Jack Ketterer, opera- tions superintendent; and Dean Standley, communication center supervisor. B. The Facts The facts relevant to the unfair labor practice issues may be summarized as follows: 1. Keokuk Gas Service Co., Respondent, is engaged in the business of retail distribution of gas in the city of Keokuk, Iowa. 2. Robert Neff, at the time of his discharge on June 29, 1976, had been employed by Respondent for approximate- ly 10-1/2 years as a customer service person or district serviceman. 3. It appears that prior to May 24, 1969, Respondent and the Keokuk Gas Service Company Employees Associ- ation had an agreement covering Respondent's hourly employees' hours, pay, and working conditions. Around May 24, 1969, Robert Neff, as president of the Keokuk Gas Service Company Employees Association, presented to Respondent a proposed revised agreement for Respon- dent's hourly employees. It appears that on June 5, 1969, such proposed revised agreement was discussed between Respondent's management and the hourly employees, and certain agreements were made. It also appears that as a result of such meeting or other meetings a plan known as the Hay Plan for wages was developed. 4. Apparently in late 1973, or at least by early 1974, some of Respondent's employees became interested in having a union to represent them. Robert Neff became organizing chairman for the Oil, Chemical and Atomic Workers International Union, AFL-CIO-CLC, in organi- zational efforts at Respondent's in either late 1973, or early 1974. 5. After union interest had manifested itself in late 1973, or early 1974, Neff was at the home of Respondent's vice president and general manager, C. Benson Dushane Ill, in connection with work he was performing there (repairing a range). Dushane asked Neff if he would go off of company time, join him in having a beer or two, and have a conversation with him. Neff agreed to do so, and Neff and Dushane drank several beers and had a conversation. Dushane told Neff in effect, that he had observed that the hourly The facts are based on the pleadings and admissions therein. 2 The facts are based on a composite of the credited aspects of the testimony of Neff and Dushane. I credit Neff's testimony over Dushane's as to whether the threat of discharge for union activity was made. Considenng the background facts, the testimony of Dushane as to concern over fickleness, and the timing of events. I am persuaded that Dushane has not recalled such remarks or has rationalized that the remarks as to the right to employees appeared "fickle" of late and expressed concern as to why this "fickleness" was present. Neff indicated to Dushane that the men were restless and that he was more or less acting as their spokesman. It is clear that Dushane and Neff then discussed the question of unionism and the options open to the hourly employees if they formally organized and became a certified union. Dushane told Neff that the men had a right to organize a bargaining unit. Dushane also told Neff that anyone who tried to enter a union or tried to organize a union within the Company would automatically be fired.2 6. As indicated, the Oil, Chemical and Atomic Workers International Union, AFL-CIO-CLC, commenced organi- zational activities among Respondent's employees in late 1973 or early 1974. In addition to Neff, who was organizing chairman, other key union supporters were Tom Ketterer and Dwayne Bonser.3 On or about May 20, 1974, the Union filed a representa- tion petition concerning determination of representation for Respondent's employees. Thereafter, an NLRB repre- sentation election was held, and, on August 1, 1974, the NLRB, by the Regional Director for Region 13, certified the Union as exclusive collective-bargaining representative of a unit of employees specifically described as to positions, inclusions and exclusions. Said Certification of Represen- tative was in Case 38-RC-1578, a copy thereof is included in the record of this proceeding as General Counsel Exhibit 5, and is incorporated by reference as to specific detail herein. 7. Respondent and the Union, at some date after August 1, 1974, engaged in collective-bargaining sessions which did not result in agreement. On July 21, 1975, Respondent's employees, or some of them, went out on strike and remained on strike until July 29, 1975. At such point in time the Union apparently made an unconditional offer for such employees to return to work. Such offer was repeated by the Union by letter on August 8, 1975. On December 2, 1975, Respondent unconditionally invited 17 employees who were represented by the Union, and who were not working, to return to work. Such employees returned to work on December 15, 1975. 8. On December 15, 1975, Respondent, apparently on the basis of impasse in bargaining, unilaterally instituted as its personnel policy what purports from looks to be a copy of a collective-bargaining agreement. Such policy includes in effect various terms and conditions of employment. Such "policy" included terms which obviously could not be unilaterally imposed such as "no strike - no lockout" and "binding arbitration" provisions. 4 9. As has been previously set forth, Neff served as organizing chairman for the Union in late 1973 or early 1974 and until the election held some time between May 20 and August 1974. As previously set forth, Neff also served on the Union's negotiating committee after August 1, 1974. Around that time and until his discharge on July 29, 1976. organize were applicable to the company-type organization involved in the 1969 agreement. 3 After contract negotiations started, sometime after or around August 1, 1974, the company was notified as to the persons on the Union's negotiating committee. Among such persons were Neffand Ketterer. 4 Respondent does not contend that such provisions are binding or reall, a part of the terms and conditions of employment. 497 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Neff served as vice president of the Union and as a union steward.5 10. After the certification of the Union on August I, 1974, Neff received several reprimands in 1974 and in early 1975. On October 7, 1974, Neff was given a reprimand for having given instructions to a serviceman over the radio as to the writing down of time lost by the serviceman in looking for a compressor. It appears that Neff, as union steward or as a fellow employee, may have been concerned for a fellow employee and thus have made such radio call. In any event, Respondent informed Neff in effect that he was not a supervisor and that this aspect of supervision was not his responsibility, that if it were union work, such should not be done on company time. On November 26, 1974, Respondent reprimanded and disciplined Neff for the length of his coffeebreaks, for poor workmanship, and for failure to turn in a basso meter which he had checked out. The discipline imposed consisted of a layoff without pay from Tuesday of the week involved to Monday of the following week. On March 25, 1975, Respondent reprimanded Neff for taking too much time for coffeebreaks. Respondent reminded Neff of the November 26, 1974, discipline, indicated that it could impose similar discipline at the time, but would not, but was going to watch his coffeebreaks for the next few months.6 II. After the employees returned to work on December 15, 1975, Neff received reprimands and discipline in 1976. Such reprimands and discipline as occurred up to June 14, 1976, are herewith set out in effect. On March 29, 1976, Respondent reprimanded Neff and docked his standby pay because Respondent was unable to contact him for a standby call on March 28, 1976. What had occurred may be described as follows. Neff was on standby call on March 28, 1976. On March 28, 1976, Neff called the Company and told the plant operator that he and his family were going to the Cassano Pizza King for a pizza, that when he left he would call the Company. Neff and his family went to the Cassano Pizza King. While there, waiting to receive a pizza order, Neff's stepmother arrived at the Cassano Pizza King, got a pizza, and left. After Neff's stepmother had left the Cassano Pizza King, the Company called the Cassano Pizza King in an attempt to contact Neff. Apparently the person who answered the telephone, knowing that Neff's stepmother had left and apparently not seeing Neff, assumed that Neff was not there. The Company then had to call in someone else to handle the work needing to be done. Respondent, apparently thinking that Neff had not properly notified it of where he would be, called Neff in to reprimand him for not being available for call. Customer Service Supervisor Conn and Neff discussed the problem and the apparent mixup. Conn in effect told Neff that it was his responsibility in such a situation, that he should on I Neff testified to the effect that he was either the third or first union steward. The General Counsel in a leading question used the term "Chief Steward" as descriptive of Neff's position. The General Counsel's brief alludes to Neffs position as being that of chief steward. The evidence is not sufficiently clear to make a finding that Neff was chief steward. 6 With respect to the discipline and reprimands imposed on November 26, 1974, and on March 25, 1975, such discipline or reprimands were given such occasions clearly advise the place of business (1) as to who he was when he entered such place of business, (2) that he worked for the Company, and (3) advise the place of business when he left. Respondent reprimanded Neff and docked Neffs standby pay, warned him that if it happened again within 6 months he would be off without pay for a week, that if it happened within a year, he would be off without pay for 3 days, and if it happened within 2 years, he would be off without pay for I day. On June 4, 1976, Respondent reprimanded Neff for an incident on June 3, 1976, concerning the removal of meters and collection of deposits without following company procedures. Such reprimand was given in a meeting between management personnel, Conn and Patchell, and Neff. During such meeting, management indicated that they felt Neff had the ability to get along with customers and an eagerness to satisfy customers, that they felt that he was working in the wrong job, that he should be working in the area of sales. On June 14, 1976, Respondent reprimanded Neff for not lighting and checking an appliance at the home of C. Benson Dushane III, Respondent's owner, in connection with some work Neff was doing at Dushane's home on June 11, 1976. 12. Some time in June 1976, employee Nye participated in or overheard a conversation wherein Respondent's director of utilization, Patchell, made some remarks about Neff and Neffs job. The question propounded to Nye on direct examination was somewhat ambiguous as to whether Nye had over- heard or participated in a conversation by Patchell and Conn concerning Neff. Nye's testimony was to the effect that in June 1976, he heard Patchell say in a conversation, where he, Conn, and Patchell were present, that he was looking for an excuse to get rid of Bob Neff. On cross- examination, Nye testified that the incident occurred in early June 1976, that he was involved in the conversation and that it was not a conversation he overheard, that what else was said was general conversation, that the conversa- tion took about 10 minutes, that all he could remember of the conversation was that Patchell said that they "were looking for a way to eliminate Bob Neff from his job." Nye testified that he recalled stating in a pretrial affidavit that the incident occurred in late June, that as to a statement in his pretrial affidavit that "I overheard a conversation between ... ," that he had to overhear it if he were standing there, and that he didn't remember and didn't recall either Patchell or Conn saying anything else regarding Neff. Patchell and Conn denied having a conversation with Nye wherein reference was made by Patchell of a desire to eliminate Neff from his job. Considering all of the foregoing and all of the evidence in this case, I am persuaded that Nye did overhear a conversation between Conn and Patchell,concerning Neff in the context of meetings between management and Neff, and apparently one other employee having status with the Union. Such meetings involved discussion between management and Neff as to the reasons for Neffs conduct. As an example, Neff explained his coffeebreak problem as ensuing from customer interruption to make complaints. Neff was reminded that Respondent had other employees to handle customer complaints, that this was not his job. 498 KEOKUK GAS SERVICE CO. some time in June 1976. Considering all of the facts, I am not persuaded that Nye's testimony is of such a nature as to have persuasive probative value. I am persuaded that Nye overheard a conversation between Conn and Patchell but was not a participant in the conversation. I am not persuaded that he heard enough of the conversation to be able to testify to what really was said or the context thereof. I note that an incident involving Neff in providing gas for an incorrect apartment was not utilized by Respondent as an excuse to get rid of Neff. If Patchell, as Nye's testimony suggests, had desired a pretext to get rid of Neff, such incident certainly would have been seized upon. Rather, I believe that Nye has rationalized a conclusion gathered from a fragment of a conversation. The facts set forth with respect to Respondent's June 4, 1976, reprimand of Neff concerning Neffs ability to get along with customers and that they felt he was in the wrong job very well may have been repeated with respect to an expressed desire to change Neff from one job to another. In any event, I do not find Nye's testimony to be persuasive of reliability as to the facts testified to. 13. On July 16, 1976, Respondent orally reprimanded Neff for an incident on July 13, 1976, and thereafter on July 22, 1976, gave Neff a written warning for said July 13 incident. What occurred is revealed in effect by a company memorandum of a meeting with Neff on July 16, 1976, and by the written warning given on July 22, 1976, which are herein set out: CUSTOMER SERVICE MEETING DATE: July 16, 1976 PARTICIPANTS: Mike Conn, Bob Neff On July 13, 1976, Bob Neff had a meter set for 903 Orleans, Apartment 2. Bob was given instructions by Comm. Center to make sure he got the right meter set for Apartment 2. On July 13, 1976, in the evening, the customer at Apartment 2 at 903 Orleans called and said she didn't have any gas. Charlie Grossman went on the call and found the customer had no meter. The customer called again on July 14, 1976. I1 went to 903 Orleans to see what the problem was. I found that Bob had turned on the wrong meter. He had turned on the meter to Apartment 5. I had another service man, John Rupp, meet me there and we shut the meter off for Apartment 5 and set a meter on the proper bar for Apartment 2. The stove in Apartment 5 had gas to the stove but the customer was unaware of it. On July 16, 1976, 1 had Bob meet me at 903 Orleans. I asked Bob to show me how he could set or turn on a meter on the bar that he did and go to apartment 2 and light up. Bob said he didn't light up, he couldn't get in, so he left a C.G.I. card. I asked Bob if he meant that he turned on a meter not knowing for sure that it went to Apartment 2 and left without lighting anything. Bob said he traced the line on the bar that he turned on, and it went in the direction of apartment 2. He said that the meters and bars are all messed up and you don't know what is what. I told Bob I agreed that it is a mess and that is why we have to rely on him as the service man to help us straighten it out, but I couldn't rely on him because he was making things worse by not doing things right. I reminded Bob that he was given specific instructions to make sure he had the right bar for the right apartment. I asked Bob if he wasn't worried when he left, knowing he didn't light anything and not knowing if he had turned on the right meter. Bob said "Yes," but that he had left a C.G.I., card. I told Bob that I felt I couldn't rely on him and that I didn't know where his mind was, but it was not on his job and that I would be getting back to him on this matter. Michael Conn Customer Services Supervisor MLC/mns TO: Bob Neff FROM: Mike Conn DATE: July 22, 1976 SUBJECT: Written warning Dear Bob: This memo will address ourselves to your continued failure to follow procedures, the last of which is the incident at 903 Orleans on July 13, 1976. At that time you had a meter set for Apartment 2. You had specific instructions to make sure you set the meter on the proper meter bar for the proper apartment. You set the meter on the wrong bar and failed to completely trace out the line and left the meter turned on, knowing you could not gain entry to light up. This course of action left two situations to be corrected: 1. Put right meter on right bar. 2. Eliminate a potentially hazardous situa- tion, i.e., not lighting up pilots and making safety check. You failed to notify anyone of this situation, which is against our company procedures. I must warn you if you continue to fail to follow procedures I will be forced to take further action. Mike Conn MLC/mns Customer Services Supervisor In receipt of copy to Bob 7-23-76 /s/ Robert J. Neff Neff. Date Bob Neff 14. On July 23, 1976, Director of Utilization Patchell informed Customer Service Supervisor Conn that account- ing had voiced concern about the number of "I & 3" (could not get in) reports when Neff was performing functions concerning "non-pay" situations, wherein meters are removed for nonpayment of bills. Conn was informed 499 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that Fogle, of accounting, had contacted one of the "I & 3" customers and ascertained that such customer had been at home. Conn went to the address of such customer, ascertained from the persons there the version that they had been at home, had not heard a knock, and that they had later discovered a C.G.I. card (can't get in). Conn reported this to Patchell and related that there was not a problem, that maybe Neff had not been forceful enough in gaining the customer's attention. Patchell told Conn that there was another incident wherein Neff had reported he had not made contact when the customer had called and related contact with Neff about nonpayment of a bill. The incident concerning the customer who related having made contact with Neff to the Company involved a man whom Neff met on his way to the house as the man was leaving and who told Neff that he was on his way to the office to pay his bill. 7 Conn then met with Neff and discussed the above incidents and/or perhaps another incident. 8 Conn indicat- ed to Neff that he should have reported the incidents as "I & 2," the code meaning that the attempt to remove meter was incomplete. Neff indicated his belief that there was confusion as to how the report should be coded. Later on July 23, 1976, Director of Utilization Patchell, Customer Service Supervisor Conn, and Neff had another meeting, and the same incidents discussed above by Conn and Neff were again discussed. Also discussed was Neffs failure to light an appliance earlier at Dushane's home. Neff was asked to state the company policy concerning "non-pay" situations, and he related the policy accurately. There was discussion as to whether Neff was following company policy and procedures. Conn indicated that Neff was falsifying the reports, and Neff indicated his explana- tion of what had happened. Conn indicated that he had come to the end of his rope and that he couldn't get through to Neff. Neff indicated in effect that all that he could say was that he would continue to do what he thought was right and what the customer wanted. Conn asked if this were true if it meant breaking company policy. Neff indicated that he could only repeat what he had said. Patchell asked if this were to be true at the expense of the Company. Neff replied that such would be true.9 Patchell told Neff that he felt that Neff continued to fail to follow policies and procedures in the Company, that there were only two options open to the Company, that one option was a severe reprimand and time off, and that the other option was complete termination from the Company. Patchell stated that he would be reflecting over the situation over the weekend, that he and Conn were available if Neff had any additional data or any reasons that he wished to add. Patchell directed Neff to meet in Patchell's office at 8 a.m. on Monday morning for the final decision. 15. On July 23, 1976, at night after the above-referred- to meetings, Neff, after giving thought to the situation 7 It was company policy fbr the serviceman to remove the meter unless. while the serviceman was at the location, the customer contacted accounting, made arrangements. and accounting gave different instructions to the serviceman. I Neff testified to an incident concerning a lady who came to the door but who did not acknowledge that the meter involved was hers. It is not clear whether this incident is the same as referred to in Conn's testimony facing him, telephoned Union Representative Lovelady. Neff told Lovelady in effect that he was faced with either a termination or disciplinary suspension for 3 days, that he was to meet with the Company at 8 a.m. on Monday and discuss the final disposition to be taken by the Company. Neff told Lovelady that he wanted union representation at such meeting. 16. Lovelady was unable to contact anyone from the Company until Sunday morning. On Sunday morning Lovelady contacted Keith Fink, staff coordinator for the Company, told Fink that he had had a call from Neff, that Neff had been suspended for 3 days and was scheduled for a meeting on Monday morning for final disposition, that he (Lovelady) wanted to be present, requested Fink to contact Dushane or whomever it was necessary to contact and tell them of Lovelady's request, and told Fink that he (Lovelady) would be in town Monday afternoon by 2:30 and available for a meeting. 17. After the foregoing Lovelady-Fink telephone call, Vice President Dushane telephoned Patchell and related that Lovelady, for the Union, had requested a meeting concerning the Neff discipline, and requested in effect that Patchell have such a meeting. 18. Over the weekend Neff, who had contacted Union Representative Lovelady about representation, did not contact Respondent's officials, Patchell or Conn. On Monday morning, July 26, 1976, Neff's car wouldn't start and Neff walked to the plant. Neff apparently had someone to call Patchell's office or, in any event, someone telephoned Patchell's office to inform Patchell that Neff was in the plant but without transportation to come to the office. Conn went to the plant and furnished transportation for Neff to go to the office. Around 8:15 a.m. Neff met with Director of Utilization Patchell and Customer Service Supervisor Conn. Patchell read to Neff paragraphs out of the company personnel policy relating to discipline and discharge. Such para- graphs as were read were as follows: Section 4. Discipline & Discharge. In the event the Company concludes that a regular employee's conduct justifies discharge, the employee shall first be suspend- ed for three (3) workdays. If the employee believes he has been unjustly dealt with, he may file a grievance, provided that such grievance is filed within three (3) workdays from the date of suspension. Upon request from the Union, a hearing shall be afforded the affected employee prior to the end of his suspension period in an effort to dispose of such case. At such hearing, the Company shall disclose all facts known to it regarding the proposed discharge and the reasons for its action. This period may be extended by mutual agreement between the parties. With respect to offenses of less serious nature, copies of all disciplinary notices and any further action will be concerning the customer who had stated that she was at home, heard no knock, and found a C.G.I card. 9 Although such testimony is suggestive that Neff was saying that he would knowingly violate company policy, the overall conversation is more indicative that Neff was merely pursuing an argument that he had to interpret the policy and situation that his interpretation was correct, and that he would have to do so in the future. 500 KEOKUK GAS SERVICE CO. furnished by the Company to the employee involved. Records of previous disciplinary action against an employee shall not be retained in the employee's personnel file beyond two (2) years from the date of the occurrence involved in the disciplinary action. Patchell told Neff that his decision was that Neff should be terminated and that he was officially being advised of his suspension for 3 days. Patchell told Neff that the reasons for such actions were Neff's continued failure to follow and to recognize company procedures and his unsafe workmanship. Neff responded by referring to the fact that Union Representative Lovelady had contacted or was supposed to contact the Company about a meeting relating to discipline imposed on Neff.'O Patchell told Neff that Dushane had received a call from Lovelady desiring a meeting on such matter to help represent Neff, that Lovelady would be arriving that afternoon around 3:30 p.m., and that the Company would be more than happy to have a meeting that afternoon with union representation, whereupon final disposition of decision, centering around discontinuance or hire, would be discussed." 19. Around 9:45 a.m., Customer Service Supervisor Conn spoke to Tom Ketterer. What occurred is revealed by the following credited excerpts from Conn's testimony: 12 Q. Okay, now what if any further conversations did you have on that morning regarding this incident of giving Mr. Neff 3 days off pending discharge? A. I left Mr. Patchell's office and I returned to my office which is located at the Com-Center at 1700 Main. While I was in my office, I seen that Tom Ketterer had come to the plant. Tom at this time was off work. I seen that he had come to the plant. Tom is a Union Steward or officer of the Union, so I asked Tom if he would not come into my office. Q. What time was this, approximately? A. I would say approximately mid-morning. Q. Did he in fact come into your office? A. Yes, Tom come into my office. Q. Was anyone else present at this meeting? A. No. Q. Okay, what did you say and what did he say? A. I told Tom that I had called him into the office to update Tom on to what had happened regarding Mr. Neff and that we had terminated Mr. Neff that morning, and I wanted to bring Tom up to date as a Union officer or representative, bring him up to date as to what happened because I'm sure he would be in attendance at a meeting with Mr. Raymond Lovelady that afternoon. I briefly explained to Tom the happen- ing Friday and in the meeting with Mr. Neff and that he had falsified company records, he had not again followed procedures and that we had told Bob at the end of the meeting that we would be available over the 10 As in many cases, evidence was presented in somewhat of a piecemeal and fragmented basis. Patchell testified to a "response" by Neff confirming a call to Dushane from Lovelady. Considering this and the logical consistency of facts, the facts are found as indicated. i" The facts are based on a composite of the credited aspects of the testimony of Neff, Conn, and Patchell and an exhibit relating to a memorandum of such event. weekend for any further data that Bob wished to give us. I told Tom that Bob did not call me over the weekend, that I had heard that he contacted Mr. Patchell and requested a meeting with the Union representative, Mr. Lovelady and that the meeting was scheduled for that afternoon. I told Tom that Mr. Neff had not contacted me over the weekend therefore I had no more data than I had Friday, and because of that - I had no more data - I could not see any further way to communicate with Bob or reason with him, so therefore I recommended termination because I had no more data. 20. On January 26, 1976, at 3:30 p.m. Conn and Patchell, for the Company, met at Patchell's office with Neff, Union Representative Lovelady, and Ketterer to discuss the question of discipline for Neff.'3 Lovelady opened the meeting by asking in effect why Neff, employed for 10 years, was being terminated. Patchell responded by stating that the reasons were that Neff had an inability to follow company policy and procedures and had engaged in unsafe workmanship. Patchell stated that the Company had had two choices. One choice was severe reprimand and time off. The other choice was termination. Lovelady asked with respect to the question of company policy and procedures if there were written orders or instructions. Patchell then furnished Lovelady with a copy of Neffs personnel file. There then ensued a discussion of the various incidents in Neff's personnel file for which he had been reprimanded, including among them the han- dling of nonpay situations, the problem relating to contacting Neff when on standby, and a question of unsafe workmanship. Lovelady agreed that the incident concern- ing unsafe workmanship was one which could not be tolerated. In the discussion concerning the problem with locating Neff when on standby, "The Cassano Pizza King" incident, Lovelady questioned Conn and Patchell as to why they hadn't checked out witnesses as to Neffs presence at the restaurant. Patchell or Conn indicated that the main concern was the one respecting nonpay situations. Lovela- dy pointed out letters of commendation and Neffs receipt of merit increases. At some point Lovelady asked Conn if he told an employee in effect that it was too bad that Neff had got the Union involved. Conn denied having made such remark. Patchell inquired as to whom the remark allegedly had been made to. It was revealed that the remarks allegedly had been made to Ketterer. There then ensued some discussion as to what Conn had actually said. Lovelady then stated that it might have been better if he had kept his i1 To the extent that Ketterer's testimony differs from Conn's testimony, I discredit Ketterer's testimony. Ketterer appeared to be attempting to testify truthfully. However. Ketterer's testimony was obviously conclusion- ary and constituted in effect a brief summary of his conclusion of what was said. '3 The facts are based on a composite of the credited aspects of the testimony of Conn, Patchell. Neff, Lovelady, and Ketterer. 501 DECISIONS OF NATIONAL LABOR RELATIONS BOARD nose out of the matter. Patchell told Lovelady that this was not true, that the company had an open mind.' 4 Lovelady asked the Company to reconsider the action that had been taken and to recess until the next morning. The meeting recessed around 6 p.m. 21. On the morning of July 27, 1976, around 10:30 a.m. Patchell, Conn, Lovelady, Neff, and Ketterer again met to discuss the question of discipline for Neff. What occurred may be described as essentially a rehash of the meeting held at 3:30 p.m. on July 26, 1976. In the discussion, however, Neff indicated that his confusion with company policy and procedures arose from changes in such policy. Patchell or Conn indicated that the changes were always well explained. Patchell stated that he thought that he and Conn could get together and work something out, that he needed to confer with others higher up. Exactly how long this meeting lasted is not clear. In any event the parties recessed, apparently around noon. 22. After the morning meeting Conn and Patchell conferred, and it was decided that instead of terminating Neff, that Neff could be placed on a I-year probationary period of umbrella type depending on Neffs performance, that he be reprimanded by having 5 days off without pay, and that Neff be reduced one step grade in pay level. 23. Around 5 p.m. on July 27, 1976, Conn telephoned Lovelady in an attempt to set up a meeting for July 28, 1976, at 10:30 a.m. Lovelady had other proposed commit- ments and secured an agreement to meet at 6:15 p.m. on July 27, 1976. 24. Conn, Patchell, Neff, Lovelady, and Ketterer again met at Patchell's office around 6:15 p.m. on July 27, 1976. Lovelady asked Patchell if they had considered what they would do. Patchell stated that he was turning the meeting over to Conn. Conn then stated in effect that he would recommend reinstatement with three provisions. Conn stated that such provisions were: (I) I-year probation with reviews every 30 or 60 days at Conn's discretion and depending on Neff's work performance, (2) 5 days off without pay, and (3) reduction in pay from step 10 to step 9 in Neffs pay grade. Lovelady quickly responded that the proposal was too harsh, too severe. Lovelady told Conn and Patchell that if it were a proposal to him, he would have told them to shove it up their "ass," that it was Neffs decision, and he would have to talk to him. Lovelady told Conn that all he wanted was for Neff to lick his shoes and follow him around. Lovelady told Conn that he was a puppet, that he knew the decision came from higher ups. Lovelady asked about the question of probation and was told that it was up to Conn's discretion. Patchell told Lovelady that if this were the way that Neff felt, the offer to reinstate would be rescinded, and that Lovelady should talk to Neff. 5s Lovelady then 4 I discredit Lovelady's and Ketterer's testimony to the effect that Conn did not reply to Lovelady. It is clear in my opinion that Ketterer had interpreted the effect of Conn's earlier remarks and that the discussion would have centered around an attempted understanding of what had actually been said. 1S Much of the testimony of all witnesses was presented in fragmentary, piecemeal, and conclusionary fashion. Conn and Patchell testified to statements by Patchell relating to the fact that if it were Neffs opinion, similar to Lovelady's. to shove the proposal up their "ass," that Patchell was "unofficially" withdrawing the proposal of reinstatement. Neither Neff, indicated he needed a recess to talk to Neff, and the parties had a recess. 25. Lovelady, Neff, and Ketterer discussed the question of Conn's proposed discipline of probation, 5 days off without pay, the pay cut, and the alternatives. Neff indicated that he considered the penalty to be heavy but would accept under protest. Lovelady indicated to Neff that the Company might withdraw its offer under such circumstances. It, however, was decided to tell Conn and Patchell that Neff accepted the penalty but would protest and would file a grievance. 27. Neff, Lovelady, and Ketterer returned to Patchell's office and met with Conn and Patchell after the recess. Lovelady told Conn and Patchel that he had discussed the discipline with Neff, that Neff's opinion had been that the Company could ram the proposal up their "ass," that he had persuaded Neff to accept the penalty and return to work, that Neff would accept the penalty and file a grievance and arbitrate. Lovelady stated that he realized the Company could withdraw its proposal. Patchell asked Neff if this was his decision. Neff replied that it was, that he would accept the penalty and return to work, file a grievance, and arbitrate the matter. Patchell told Neff, Lovelady, and Ketterer that the proposal was officially withdrawn, that it was now official that the suspension would be for 3 days with termination to follow. Lovelady told Conn that he was going to file charges with the NLRB concerning his statement and take the matter to the Supreme Court if necessary. Lovelady asked Patchell if he would consider bypassing the steps of the grievance procedure and going directly to the arbitration procedure. Patchell told Lovelady that he would have to get with him later in order to give him an answer. Later that evening, around 10 p.m., Patchell telephoned Lovelady and told him that he wasn't sure that he could accept a grievance unless Lovelady was willing to sign a stipulation that the Union would not strike for 2 or 3 years. Lovelady told Patchell that he would never sign that type of stipulation, that he would sign a stipulation not to strike over an arbitration decision on the case of Neffs discharge. Patchell indicated that he would have to give him an answer concerning bypassing the steps of the grievance procedure later. This was the last time that Patchell and Lovelady discussed the question of bypassing grievance steps. On July 27, 1976, Neff, Lovelady, and Ketterer signed a grievance concerning Neffs discharge. On July 28, 1976, Ketterer submitted such grievance to Conn. On July 29, 1976, Conn rejected said grievance.t 6 28. On July 29, 1976, Supervisor Conn had a conversa- tion with employee Hemmingway about the discharge of Lovelady, nor Ketterer testified precisely on this point. Considering. however, the fact that Neff had not at the time expressed an opinion, the obvious intent to have Neff to consider the matter, I am persuaded that Conn's and Patchell's testimony constitutes a rationalized attempt to portray the proposal as having been withdrawn and that in fact Patchell merely spoke in a conditional sense as set forth in the facts found. '6 It should be noted that there is no collective-bargaining agreement in effect. The Company's personnel policy is styled similar to a contract and contains various clauses relating to no strike. etc., which obviously cannot he imposed unilaterally. 502 KEOKUK GAS SERVICE CO. Neff. What occurred is revealed by the following credited excerpt from Hemmingway's testimony."7 A. Well, Mike told me that he knew that Bob and I were close friends and he wanted me to know that they had let him go, that they gave him an alternative of calling Mr. Patchell or Mr. Conn over the weekend and he decided he wouldn't do that, he decided to take the other route and call in a Union representative to represent him, and that left them no other choice but to discharge him. C. Contentions and Conclusions 1. The General Counsel contends and Respondent denies that Respondent, by Supervisor Conn, on or about July 26, 1976, threatened employees with discharge for seeking assistance from a union representative. The evidence pertaining to this issue was presented by witnesses Ketterer, Hemmingway, and Conn. The evidence concerned (1) a conversation on July 26, 1976, between Conn and employee Ketterer and (2) a conversation on July 29, 1976, between Conn and employee Hemmingway. The facts found concerning such conversations have been set forth in sections 19 and 28 above. Considering such facts in the context with all of the facts, I am persuaded that the facts do not establish that Conn made threats as alleged. I am persuaded from all the facts that Conn described factually that Neff had had an opportunity to call or give additional data (relating to the question of discipline or mitigation thereof) over the weekend to Conn and Patchell, that Neff had not done so and instead had called the union representative, and with Neff's electing to call the union representative (instead of furnishing additional data), Respondent had no alternative but to proceed with its prior tentative decision. I am persuaded from all the facts that Conn did not intend his statements as a threat of retaliation because Neff had selected to seek union representation. Thus, the statement to Ketterer was made to a person having official status with the Union and at a time just preceding a scheduled meeting with Union Representative Lovelady and Neff. The statement to Hemmingway was made at a time following the meeting with Lovelady, Neff, and Ketterer and was made after the Respondent had been advised that the Union was going to file charges with the NLRB relating to an alleged threat regarding Neffs selection of the Union. It is clear that the statements do not constitute explicit threats. For the statements to constitute threats, one must elect to believe that the reason for Respondent's decision to terminate Neff was because of Neffs selection of a union representative instead of his failure to submit further data. Ketterer, a steward with the Union, and Hemmingway, a close friend of Neff, apparently because of such factors, interpreted the statements in the latter vein. The state- ments, at most, are ambiguous. Accordingly, I conclude :1 The facts are based on Hemmingway's credited testimony. Hemming- way was unsure as to the date. I credit Conn's testimony to the effect that his conversation with Hemmingway occurred on July 29, 1976. 1 am persuaded from the overall facts that reference was made to Neffs having contacted the Union. Considering the total facts. I find Hemmingway's version of facts more credible than Conn's and credit his testimony over Conn's where in conflict. and find that the facts are insufficient to establish that Conn, as alleged, made threats to Ketterer and Hemming- way. 2. The General Counsel alleges and contends and Respondent denies that Respondent gave Robert Neff written and/or oral warnings concerning the performance of his duties on March 29, June 4 and 14, and July 16 and 22, 1976, because he engaged in union and/or other concerted and protected activity, in violation of Section 8(a)(3) and (1) of the Act. The facts relating to these issues have been set forth above in section B. Essentially, the facts reveal Neff to be a known and active union adherent and leader throughout the period of unionism. The evidence of union animus consists of a statement by Vice President Dushane in 1974, and the evidence relating to the union, Neff, and company meeting on July 27, 1976. Additionally, the General Counsel apparently seeks to have an inference of union animus drawn because of a strike in 1975 and delayed return to work of employees. As to the 1975 strike and delays in return to work of employees, the General Counsel's evidence simply reveals a strike and a delayed return to work. The evidence is insufficient to reveal that Respondent demonstrated union animus as regards the strike or return to work.' 8 I have considered the 1974 statement by Dushane, a threat of discharge of employees because of union activity, the lack of evidence subsequent thereto, excluding the July 27, 1976, meeting, to reveal unlawful conduct, the evidence relating to the written and oral warnings and the reasons therefor, the unlawful conduct of Respondent on July 27, 1976, and the facts relating thereto. I am persuaded from all of the foregoing that the evidence is insufficient to reveal that Respondent on March 29, June 4 and 14, and July 16 and 22, 1976, issued written and/or oral warnings to Neff because of his union and/or other concerted and protected activity. Essentially, the incidents for which such warnings were given were of the type which arguments of judgment might be made. However, the facts are not of such a nature as to warrant an inference that the warnings were given for discriminatory reasons or to interfere with protected concerted rights. Accordingly, such allegations of unlawful conduct shall be recommended to be dismissed. 3. The General Counsel alleges and contends and Respondent denies that Respondent discharged Neff, on or about July 27, 1976 (in violation of Sec. 8(a)(4), (3), and (1) of the Act), because Neff engaged in union activity and/or other concerted and protected activity, and because Neff announced an intent to file and did file a charge with the NLRB. The testimony and evidence reveal that the parties and individuals involved in the events were somewhat confused as to the characterization and effect of some of the events. As indicated in the facts, Respondent has a personnel policy styled somewhat in the nature of a collective- bargaining agreement. This policy contains written provi- i' A conclusionary statement by Union Representative Lovelady that there was a "lock-out" was objected to, the objection was sustained, and no evidence was introduced to reveal that the failure of employees to return to work was because Respondent refused to accept an unconditional offer to return to work. 503 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sions relating to no strike-no lockout, arbitration and grievance provisions. It is obvious that a party cannot unilaterally determine such provisions relating to statutory rights of representation. No contention is made that such provisions are applicable. Despite this, Respondent's procedure as utilized involved the implementation of discipline, suspension, and termination in accordance with one of such provisions in its policy. The facts clearly reveal that Respondent on July 23, 1976, notified Neff in effect that discipline was forthcom- ing, either a suspension or a suspension followed by termination. The facts do not reveal, however, that the discipline of suspension was imposed at that time. Neff considered that what he had been told was in effect that he was at least going to be suspended. Neff's report to Lovelady was in similar vein, and Lovelady construed in effect that Neff had been told that he was suspended. Neff in fact was officially notified of his suspension on July 26, 1976, and was further notified on July 27, 1976, that he was to be discharged and was discharged on July 29, 1976. In connection with the above-noted confusion, Respondent's officials Conn and Patchell appeared during the events on July 26 and 27 to confuse the question of discharge and suspension. Thus, Conn, Neff, Lovelady, Ketterer, and Patchell all were speaking in terms of reinstatement of Neff, who in fact had not as of the time been discharged. Testimony of some of the witnesses apparently recognized this point, although the one such witness also testified to the effect that he had made reference to "reinstatement." The facts clearly reveal that Respondent had advised Neff on July 23, 1976, that discipline was forthcoming on July 26, 1976. The facts are clear that Neff was given the opportunity to present over the weekend additional data or discussion having bearing on the question of discipline, that Neff was apprehensive and desired the presence of a union representative before final disposition of discipline, that Neff had sought such presence of a union representa- tive, and that Respondent was aware of Neff's desire that a union representative be present before final disposition. Despite this, Respondent proceeded on July 26, 1976, with the confrontation with Neff, and with the announcement thereof of official notification to Neff of his suspension and intended termination. By such conduct, Respondent interfered with Neff's protected concerted right to have union representation within the principles of Certified Grocers of California, LTD., 227 NLRB 1211 (1977). Such conduct therefore normally would be violative of Section 8(a)(l) of the Act. The facts reveal, however, that Respondent, at the time, revealed agreement to meet with the union representative before final disposition of the question of discipline with respect to termination. It can be said that such conduct gave Respondent a one-step advantage in the discussion of discipline to be ultimately imposed on Neff. In my opinion, for the facts of this case, such advantage was extremely minimal since the facts as to what was said on July 23, 1976, revealed the alternatives to be either suspension or suspension and termination. The facts reveal that on July 26 and 27, 1976, the Respondent, Neff, Lovelady, and Ketterer met and discussed the question of Neff's record, conduct, and the discipline to be imposed. The question of representation by a union representative with respect to the question of discipline to be imposed comes close to being a question of collective negotiation. However, it is really not a question of collective negotiation. Rather, it is a question of presenting facts and argument touching the question of appropriate discipline or whether discipline should be imposed. As part of the discussion on July 26 and 27, 1976, after consideration of Neff's attitude, Respondent proposed a discipline of probation, 5 days off without pay, and reduction in pay. Neff indicated that he would accept the discipline but would protest and file a grievance. At this point, Respondent reverted back to the original tentative discipline of suspension and termination. Considering the foregoing, I am persuaded that Respon- dent's final determination of discipline of Neff constituted conduct violative of Section 8(a)(1) of the Act. One of Respondent's asserted defenses touches the question of Neff's attitude. As I have noted, the question of determin- ing discipline herein is not a question of negotiations, even if it sometimes appears to be such. Neff's "acceptance" but under protest, if negotiations, would not constitute accep- tance. However, Respondent's determination of discipline herein was significantly affected by Neff's assertion of a protected concerted right, the right to protest and to file a grievance. This being so, the discipline determined by Respondent on July 27, 1976, that Neff be suspended and discharged was because of his assertion of a protected concerted right. Such conduct by Respondent therefore violated Section 8(a)(1) of the Act. It is so concluded and found. As to the contention that the discharge of Neff was because of his union activities in violation of Section 8(a)(3) of the Act, I am persuaded that the facts do not support such contention. I have considered the facts of Dushane's 1974 threat of discharge because of union activity and all of the facts. I am persuaded that the facts relating to all the events reveal simply Respondent's conduct violative of Section 8(a)(l) as set forth above. As to the contention that Respondent violated Section 8(a)(4) of the Act by the discharge of Neff because he announced an intent to file a charge with the NLRB and did so, I am persuaded that the facts do not reveal a violation in such regard. Thus, Respondent's determination of discipline on July 27, 1976, occurred prior to the remarks about filing an NLRB charge. It would be completely speculative to infer that Respondent's continued actions were based on the announced intent to file a charge with the NLRB. Accordingly, it will be recommended that the allegations of conduct violative of Section 8(a)(3) and (4) be dismissed. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with Respondent's opera- tions described in section 1, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes 504 KEOKUK GAS SERVICE CO. burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that 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. The General Counsel seeks appropriate remedy, includ- ing at least reinstatement and backpay subject to the imposition of discipline of probation, 5 days off without pay, and reduction in pay for Neff. In many cases of this type, an appropriate remedy would be simple in nature, requiring reinstatement and backpay and leaving some of the issues to be resolved in compliance. Considering the facts as litigated in this case, I believe that the General Counsel's suggestion concerning the reinstatement and backpay to Neff to be subject to the imposition of probation, 5 days off without pay, and reduction in pay in accordance with Conn's proposal on July 27, 1976, to be meritorious. A specific remedy in such regard would appropriately narrow issues and contentions that might be raised in the compliance stage. Accordingly, it will be recommended that Neff be reinstated to the position he would have held on July 29, 1976, absent the conduct violative of Section 8(a)( I) engaged in by Respondent, and that he be made whole for loss of backpay or loss of other benefits flowing from Respondent's unlawful action. Thus, since Respondent had determined that Neff be on probation for I year, as more fully set forth in the record, Neff is to be reinstated to the position he held on July 29, 1976, with Respondent's right to impose the probationary status indicated. Further, since the Respondent had decided to impose a 5 day suspension without pay, has in fact already enforced such suspension for July 26, 27, and 28, without pay, Respondent may deduct 2 days of pay for the days of July 29 and 30 from the total amount of backpay due. Further, Respondent's backpay obligation from July 29, 1976. to the date of reinstatement as required herein, shall be based on Neffs salary earned prior to July 29, 1976, with the right to reinstate Neff at a lesser rate of pay as determined by the discipline decided by Conn on July 27, 1976. In accordance with the foregoing, Respondent shall make Neff whole otherwise for loss of earnings within the meaning and in accord with the Board's decisions in F. W. Woolworth Company, 90 NLRB 289 (1950): Isis Plumbing & Heating Co., 138 NLRB 716 (1962), except as specifically modified by the wording of such recommended Order. Because of the character of the unfair labor practices herein found, the recommended Order will provide that 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. 19 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 Upon the basis of the above findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Keokuk Gas Company, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Oil, Chemical and Atomic Workers International Union, AFL-CIO-CLC is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, Respondent engaged in unfair labor practices proscribed by Section 8(aX I) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. Upon the forgoing 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: ORDER 19 The Respondent, Keokuk Gas Company, Inc., its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Discharging or otherwise discriminating against employees in regard to hire or tenure of employment, or any term or condition of employment, because of their protected concerted activities. (b) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights guaran- teed in Section 7 of the Act. 2. Take the following affirmative action which it is found will effectuate the policies of the Act: (a) Offer to Robert Neff immediate and full reinstate- ment to the position he would have occupied had it not interfered with his protected concerted rights, or, if such position no longer exists, to a substantially equivalent position, without prejudice to his seniority, or other rights previously enjoyed, and make him whole for any loss of pay or other benefits suffered by reason of the discrimina- tion against him in the manner described above in the section entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this recommended Order. (c) Strike and expunge from its records all reference to discharge or termination of Robert Neff on or about July 29, 1976. (d) Post at Respondent's plant at Keokuk, Iowa, copies of the attached notice marked "Appendix." 2 0 Copies of said notice, on forms provided by the Officer-In-Charge for 20 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a (Continued) 505 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Subregion 38, after being duly signed by Respondent's representatives, shall be posted by it immediately upon receipt thereof, and be maintained by Respondent 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 insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Officer-In-Charge for Subregion 38, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the allegations of unlawful conduct not specifically found to be violative herein be dismissed. Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX had we not interfered with his protected concerted rights, or, if such position no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights or other benefits previously enjoyed, and make him whole for any loss of pay suffered by reason of the discrimination against him, plus interest. WE WILL strike and expunge from our records all reference to the discharge or termination of Robert Neff on or about July 29, 1976. WE WILL NOT discharge or otherwise discriminate against employees in regard to hire or tenure of employment, or any terms or conditions of employ- ment, because of their protected concerted activities. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of their rights guaranteed in Section 7 of the Act. NOTICE To EMPLOYEES KEOKUK GAS SERVICE CO. POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL offer to Robert Neff immediate and full reinstatement to the position he would have occupied 506