Selox, Inc.

SELOX, INC. 497 Selox, Inc. and Teamsters, Chaufferus, Helpers & Taxicab Drivers, Local Union 327, affiliated with International Brotherhood of Teamsters, Chauf- feurs, Warehousemen & Helpers of America. Case 26-CA-5576 January 20, 1976 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND WALTHER charged employees were discharged for engaging in union activities; and that such conduct on the part of the Re- spondent constituted a violation of Section 8(a)(1) and (3) of the Act. The Respondent filed an answer admitting that it discharged the two employees but denied that it did so because they were engaged in union activity. The hearing in the above matter was held before me in Nashville, Tennessee, on September 9 and 10, 1975. Briefs have been received from counsel for the General Counsel and counsel for the Respondent, respectively, and have been carefully considered. Upon the entire record in this case and from my obser- vation of the witnesses, I hereby make the following: On November 5, 1975, Administrative Law Judge Elbert D. iGadsden 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 Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached 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 Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Selox, Inc., Nashville, Tennessee, its officers, agents, successors, and as- signs, shall take the action set forth in the said rec- ommended Order. 1 In sec III, E, of his Decision, the Administrative Law Judge states that Emily HudsonI Respondent's secretary, received a complaint from a dentist on April 1, 1975, concerning a promised delivery, whereas the record clearly shows that such complaint was received by Hudson on April 21, 1975. This apparently inadvertent error, however, does not affect the results of our decision herein. FINDINGS OF FACT 1. JURISDICTION Respondent is now, and has been at all times material herein, a corporation doing business in the State of Ten- nessee, with an office and place of business located in Nashville, Tennessee, where it is engaged in manufacturing and selling industrial gases and industrial equipment. During the past 12 months Respondent, in the course and conduct of its business operations, purchased and re- ceived at its Nashville, Tennessee, location, products val- ued in excess of $50,000 directly from points located out- side the State of Tennessee, and, during the same period of time, sold and shipped from its Nashville, Tennessee, loca- tion, products valued in excess of $50,000 directly to points located outside the State of Tennessee. The complaint alleges, the Respondent does not deny, and I find that Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the answer does not deny, and I find that Teamsters, Chauffeurs, Helpers & Taxicab Driv- ers, Local Union No. 327, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, herein called the Union, is now and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES DECISION STATEMENT OF THE CASE ELBERT D. GADSDEN, Administrative Law Judge: Upon a charge filed on April 25, 1975, by Teamsters, Chauffeurs, Helpers & Taxicab Drivers, Local Union 327, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, herein called the Union, a complaint was issued on July 11, 1975, against Selox, Inc., herein called the Respondent. The complaint alleged that the Respondent discharged two of its employ- ees and thereafter informed other employees that the dis- A. Background Selox, Inc., Respondent herein, is engaged in the manu- facture and sale of industrial gases such as: oxygen, nitro- gen, acetylene, argon, and Coe, etcetera. Such gases are bottled in metal cylinders of various sizes and weights and are stored at the Respondent's warehouse for ready deliv- ery. At its Nashville location Respondent employes sales- men who contact and establish accounts with, various in- dustrial operations, hospitals, and private dentists for the periodic supply of one or more of its gas products. The salesman responsible for establishing an account receives a commission on each order of gas supplied to the user (cus- tomer). 222 NLRB No. 79 498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The frequency of gas requirements vary from one cus- tomer to another on a weekly to monthly basis for deliver- ies. Some accounts require installing the gas cylinders on manifolds (a mechanism which holds several cylinders at one time until the gas contents therein are exhausted on one side, at which time it is closed down and the other side, holding the same quantity of cylinders, is then opened for use). When one side of the manifold is nearly or completely exhausted, the user (customer) usually places an order by telephone to the Respondent for a new supply of the prod- uct. At this point, the Respondent's policy is to write the order on an order clipboard for the attention of the truck- loaders, and then for the truckdrivers, who deliver and in- stall the new supply and pick up the empty cylinders. Although the Respondent has accounts to be supplied which are out of the city and out of the State, it also has many accounts to be supplied with gas within the city or just outside the city of Nashville, serviced by a city route truckdriver. The Respondent also has some customers who walk into its facility and carry their supply with them. The Respondent's operation and work force also include a ship- ping and receiving department along with a shipping and receiving clerk, men who simply pump gas and do other odd jobs, and a secretary or clerical staff which processes the orders, shipping orders, invoices, and receive customer complaints. Employee Harry Newkirk was hired by Respondent on December 4, 1973, as a truckdriver with an out-of-town route at a salary of $450 per month. Upon Newkirk's re- quest, Respondent thereafter assigned him to an inside job as coordinator in the receiving and shipping department, at a salary of $650 per month. Thereafter, Newkirk was made clerk and supervisor of all personnel except managerial and clerical staff at a salary of $750 per month. Specifically, Newkirk's duties included receiving call-in orders from customers, serving walk-in customers in the absence of salesmen or other managerial personnel, receiv- ing customer complaints, taking requisitions, coordinating the receipt and shipment of all stock and equipment, and supervising all dockworkers, truckdrivers, and warehouse- men. On or about October 1, 1974, Butch Greenway, the city route truckdriver, was relieved of that position, according to Respondent, for having had too many truck wrecks and was thereupon transferred to warehouse work and assisting on nondriving deliveries. Respondent then assigned New- kirk as city route truckdriver which Newkirk accepted be- cause he could earn more money with a salary of $450 per month plus commissions. Newkirk served in this capacity until he was discharged by Respondent on April 21, 1975. Rubin Carny Walker was hired by Respondent in about mid-March 1975, and first worked with Newkirk on the city route for about 2 weeks and was then assigned by Supervisor Adams as truckdriver of an out-of-town route. He worked in that capacity until April 21, 1975, when he was discharged by the Respondent. Respondent admits discharging both Newkirk and "Walker on April 21, 1975. However, Respondent maintains that it discharged both employees for cause and not for union activity, as alleged by the Union.' B. Work History of the Dischargees Dischargee Harry Newkirk testified that, while serving as city route truckdriver, he noted that the route deliveries were increasing by approximately five a month, and he thereupon apprised Supervisor Joe Adams about the need for someone to help him change manifolds and make spe- cial runs in and out of the city; that Supervisor Adams, on Newkirk's recommendation, authorized him (Newkirk) to hire someone and Newkirk hired his cousin, Rubin Carny Walker, in mid-March 1975. With respect to the capacity in which Walker was hired, Newkirk testified as follows: A. Adams told me, and also told Walker, that Walker would be working directly under me in the city route, helping me change manifolds, helping me with my customers. If I was caught up, then Carny would do odd jobs, would pump carbon dioxide at the plant; or if a customer called in and needed an order out of town that wasn't on my route, Joe Adams would ask me if he could use Carny Walker to make a special delivery to another customer. Q. Did you discuss with Mr. Adams the possibility of Mr. Walker working in any other position? A. No. At that time, that was all there was. He was working with me. In this same regard, Rubin Carny Walker testified that he had asked Newkirk if there were any job openings at the Respondent's plant and when Newkirk told him there was a job opening and asked him to come to the plant, he, Walker, declined the job because he lacked confidence in his ability to do the job. However, after, being encouraged by Newkirk that he could do the job, he changed his mind and accepted the job upon advice from Newkirk and Su- pervisor Adams that he would be helping Newkirk make deliveries and pumping CO2 in the storage room. He said he understood this to mean that Newkirk was his boss (su- pervisor). Walker reported to work on Monday and pro- ceeded to work with Newkirk loading and unloading the trucks and making deliveries for $2.85 an hour. The testi- mony of Newkirk and Walker is corroborated in part by Emily Hudson, secretary for the Respondent, who testified that she heard Supervisor Adams tell Newkirk to hire someone to help him and that he (Newkirk) would be re- sponsible for such person. However, Supervisor Joe Adams testified that he gave Newkirk authority to hire Walker but he denied that Walker was hired as a helper to Newkirk but rather, simply assigned to work with Newkirk on a training basis.2 Based on the foregoing credible evidence of record, I hereupon conclude and find that Rubin Carny Walker was i The facts set forth above are undisputed and are not in conflict in the record. 2 1 credit the testimonial versions of Harry Newkirk. Emily Hudson, and Rubin Carny Walker over that of Supervisor Joe Adams, regarding the capacity in which Walker was hired, not only because their versions are consistent and because I was persuaded that they were testifying truthfully. but also because of the uncertain and evasive manner in which Supervisor Adams testified on this issue The uncertain and untruthful manner in which he testified is partially reflected on the record It is also particularly noted that Newkirk's and Walker's versions are supported by Respondent's own secretary, Emily Hudson, who is still in the employ of the Respondent SELOX, INC. 499 initially hired to assist Harry Newkirk on his city truck route and to make special runs on special orders from Newkirk or Supervisor Adams. C. The Work Performance of the Dischargees Harry Newkirk further testified that on Walker's second day at work, Supervisor Adams told Walker he would be working with Newkirk as his helper on the city route. New- kirk used Walker to do manual labor but not the paper- work (completing shipping orders, etc.). After about 2 weeks on the job, Supervisor Adams asked Newkirk did he think Walker was ready to take over an out-of-town route on his own, and Newkirk replied, "No, he is not ready for it." Adams then said he had an opening coming up and would have to put Walker in it. At this time Walker had only made one out-of-town delivery to a Dr. Cherry. Ran- dy Stern, who was then an out-of-town driver, then became Newkirk's helper. However, Stern rode with Walker for about a week while he (Newkirk) had no help- Thereafter, Newkirk said he had only the intermittent help of Stern although there were times when he asked Adams for Stern's help and Adams told him he could not spare Stern. Consequently, Newkirk said he got behind in his route be- cause he could not service all of his customers. Emily Hudson, secretary for Respondent for the past 3-1/2 years, testified that she received call-in orders from customers and customer complaints. She further testified that occasionally Respondent cannot service its customers on the day requested by the customer even though Respon- dent might have promised the customer to do so; that sometimes deliveries are not made due to lack of supply of the product in stock, failure of the truckdrivers to call in, or the fact that the driver's load is too heavy to service all scheduled deliveries or to make delivery on time. With-re- spect to Newkirk's work performance, Emily Hudson said Respondent has had about six city route drivers during her work tenure with Respondent, and that, in her opinion, Newkirk was a very good driver who rarely missed a cus- tomer; that he would even respond to a call at home, re- turn to the plant and make the delivery; that most of the other city route drivers were, in her opinion, inadequate; and that when Newkirk was discharged (April 21, 1975) there were many comments from salesmen and other em- ployees that Newkirk will be hard to replace. Contrary to the testimony of Supervisor Joe Adams, she also stated that she did not notice any increase in customer complaints during the last 2 months of Newkirk's employment with Respondent, but' she did hear Supervisor Adams tell New- kirk to pick up the empty cylinders at Carbonic Industries which Newkirk said he did not have a chance to pick up. Among some of the accounts which Newkirk serviced was Nashville Bridge Company, which required deliveries at least once a week. Technically, Nashville Bridge is not within the city but was nevertheless serviced by Newkirk as a city route truckdriver at Adams' request. According to the testimony of both Newkirk and Emily Hudson, Nash- ville Bridge Company was the source of frequent com- plaints with respect to timely delivery and pickups. Other customer complaints about which Newkirk and Supervisor Adams testified were: Nashville Auto-Diesel College, which called on April 7, 1975, complained about not having received an order of acetylene. Newkirk testi- fied and Respondent's records verify that the Nashville Auto-Diesel College order was placed on April 7, 1975 G.C. Exh. 3) and that Newkirk made delivery on said order on April 9, 1975, which Newkirk said was not late or un- usual. Moreover, Newkirk said the customer had not used all of its supply of acetylene. According to Newkirk, on Saturday, April 19, 1975, Riverside Hospital, the sales ac- count of Bill Frazier, sales representative for the Respon- dent, complained about a changeover of oxygen cylinders. Investigation by Newkirk and Frazier at Riverside dis- closed that the problem was one of communications, in that they learned that the problem was lack of a designated person to notify the Respondent when an additional order of supply of oxygen is needed or when the manifolds are to be changed. A person was then designated for that respon- sibility by Riverside. With respect to a complaint from Carbonic Industries and Nashville Bridge Company about picking up empty cylinders, Newkirk said invariably he was unable to service these customers because of his heavy city route load, be- cause Carbonic Industries was closed when he stopped there on two occasions, and because of a defective tailgate on the delivery trucks. About a month before his discharge, Newkirk testified that Respondent received a complaint from McDougal Company about late deliveries. He (Newkirk) had left, the plant with a load about 8 o'clock on that morning. When he arrived to make his delivery at McDougal, about 2 o'clock, he was asked where had he been. Newkirk said he then asked what do you mean, and he was informed by the McDougal representative that the order was called into Respondent between 8:30 and 9 a.m., and he was advised by Respondent that delivery would be made within 30 min- utes. Newkirk said he did not know about the complaint and when he returned to the plant that afternoon Supervi- sor Adams asked him, "Did you catch McDougal," and he told Adams "Yes," and that Adams said, "I'm glad" or "That's great." McDougal was the account of sales repre- sentative Bill Slate, and Newkirk recalls one occasion when McDougal ordered a special gas which Respondent did not have in stock and could not deliver immediately; that an- other welding supply company in the city provided the gas ordered by McDougal; and that sales representative Slate thereafter reduced his price of the gas to the level of that competitor. Newkirk thought Respondent had retained the McDougal account but Respondent testified that the ac- count was terminated. Newkirk recalled another complaint from Parkview Hospital about which he testified as follows: First I asked Emily Hudson, what was the problem with this. She said that the customer had called, com- plaming that he had not received his order, and he wanted to quit the account, and he wanted us to pick up the empties. And I told her that I hadn't remem- bered seeing an order for Parkview Hospital. I then checked the call-in pad. We made a copy of the call-in cards and held them for a period of about a month. I checked these copies, and I couldn't find one for 500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Parkview Hospital for liquid nitrogen. I told Adams about this, that I couldn't find one. I don't remember if he and I both checked. But I do remember that I checked. He may have checked with me. Anyway, I couldn't find one for Parkview Hospital. I later went out there and picked up the empty cylinders, and tried to talk to them. But they said to forget about it. So I picked up the empty cylinders. The cylinder still had about a quarter of a tank of liquid nitrogen in it. Newkirk further testified that, while he was city truck- driver, he used three trucks, a pickup truck which was nev- er in good condition, and two large trucks, both of which had tailgate problems and one had a bad bed problem. The tailgate problems prevented him from delivering the larger liquid cylinders which can weigh as much as 700 pounds and have to be lowered to the ground by elevated tailgate. He did not have to use the tailgate to deliver acetylene (manifolds) to the Nashville Bridge account, although he did deliver some CO2 cylinders when emptied. He reported the tailgate problems to Supervisor Adams on several occa- sions and Adams would tell him to take it to B & J Repair Service, or he would tell Newkirk the Respondent was in the process of purchasing two new trucks for $24,000 each, and that it did not want to spend too much money on repairs. Newkirk admitted that he was instructed by Joe Adams to pick up empty cylinders from Carbonic Industries and he gave the following account of that incident: A. I don't remember the date that it happened, but it was the end of March, I believe. We had a big flood here in Nashville. And Selox was hurt pretty badly. By that I mean their CO2 pump, I'll just say CO2 pump, was broken down and got flooded- out, and the water was about this high. The CO2 pump was under water. Q. How high is that-the record won't show it. A. Three feet, three feet high. The water came' up three feet high. Sor our CO2 pump was down, and we couldn't pump CO2. There was a company in town by the name of Carbonic Industries, that we purchased bulk CO2 from. They also had a CO2 pump to pump little cylinders that we used for individual accounts. We delivered, I don't know how many cylinders over there,, I would take a guess at about 20 cylinders deliv- ered over there to Carbonic Industries, to take care of some of our customers, because we didn't have any full ones, and for the few days that the pump was being repaired. I helped a guy deliver them over there. This was not a city route job. This was not my job. I did not receive commission for it or anything. But I helped a guy deliver the tanks over there. And a few days later, Joe Adams told me, like within a week lat- er, Joe Adams told me to go back and pick up the rest of the cylinders that had not been picked up. He only pumped, I don't know how many pumped, how many cylinders he pumped out of those 20, I'm just saying 20. Q. You don't know how many was left over there? A. I don't know how many were left over there. I told him I would. I never got around to it. I was al- ways in some other part of town. There's no other customer around there. It was not a priority thing, I felt like, customers should come first on making deliv- eries. So I made all my customers first. And at the end of the day, there was not enough time. The day I was fired, I did go by over there. I had made all my deliv- eries first. It was my next thing to do. I went over there, but they had already closed. Regarding the Nashville Bridge Company account, Newkirk testified as follows: I think Joe Adams told me that he liked for me to have that job. Q. What job? A. The job of city route. And he would give me the Nashville Bridge account, but I would not be responsi- ble for changing the manifolds. Nashville Bridge, Nashville Auto-Diesel College, McKan Stell, National City-these are all manifolds, these four, but I would not be responsible for what happens to them. I would help out from time to time, but he would get another driver. He was going to try to hire Ronson Roberts to take over that job. Q. You didn't answer my question. You don't know what he was going to do? A. He told me he was going to do that. Newkirk further testified that the Respondent's commis- sion report admitted into evidence as General Counsel's Exhibit 2, as corrected, shows some of his accounts which he serviced but not all of them. The Respondent was not able to refute Newkirk's statement in this regard because it could not establish that the commission reports reflected each and every single customer serviced by Newkirk and it included some accounts which were not serviced by New- kirk. Rubin Carny Walker testified that he worked with New- kirk for about 8-1/2 days, loading, unloading, and deliver- ing, but that he did no paperwork although he watched Newkirk complete paperwork. Thereafter on that Friday, Supervisor Adams asked him what he thought about hav- ing his own truck route and he replied he did not know much about it and would probably mess up on it; and that Adams then said, "Yes, you sure are going to mess up on it"; that he (Walker) said he was going to make a lot of mistakes and Supervisor Adams agreed with him, saying everybody makes mistakes including himself when he first came there. He was told by Adams that if he took the job he would probably double his salary in a couple of months. Walker then said he would give it a run but he was afraid of it because he was afraid he might mess up. Walker had made only four deliveries by himself at that time and had completed the paperwork on two, with the assistance of Newkirk on one and with the assistance of salesman Toby on the other. He received no complaints about his work performance before he got his own truck route. He started at a salary of $2.85 an hour and was given a raise to $3 per hour when he started his own truck route, 6-1/2 or 8-1/2 days later. Walker said he reported truck malfunctions to Supervisor Adams after his first run on the truck route and that Adams told him not to worry about it that the Re- spondent was getting a new truck in a few days. He admit- SELOX, INC. ted that, since taking over the truck route, Supervisor Ad- ams told him he would have to improve on his handwriting in completing the shipping orders. About a week and a half after he started on the truck route, Adams asked him to explain a zero he had inserted on one of the orders. In fact, Walker said the conversation was as follows: A. He said, "Where did you fill this shipping order out, driving down the road?" And I said, "Yes, as a matter of fact I did." Q. Did he say anything else? A. He just laughed and shook his head and walked off. Secretary Emily Hudson testified that she had problems with Walker's shipping orders. She stated that he was not good at paperwork and she reported the problem to Adams on several occasions and they, Adams and herself, dis- cussed it with Walker; and that Adams talked with Walker about his illegible handwriting and inaccurate paperwork on four or five occasions. However, she does not recall Adams ever mentioning discharging Walker. Miss Hudson further testified that on April 21, 1975, the following tran- spired: Q. Was there any discussion that day, any discus- sion with Mr. Adams about Camy Walker, on that particular day, the 21st? A. Yes. Q. Would you tell us about this, please? A. I was quite upset. I had got a group of shipping orders, like maybe four or five, that Mr. Walker had messed up, and I was a little bit upset about them. I went in and talked to Mr. Adams about it. I told him that we needed to sit down and train the guy to do it right, and write the numbers and things down for him; or do something else. Because the shipping orders were getting to the point where it would take me quite a while to straighten them out every time I ran into them. Thereafter, Supervisor Adams told her (Hudson) she would not have any problems with Walker's orders after that day (4-21-75) and later he told her to get Walker's papers ready. She admitted that previously Supervisor Ad- ams would get upset with Walker's paperwork perfor- mance. Supervisor Joe Adams testified that he sat down and tried to instruct Walker on how to complete the shipping orders on several occasions and had talked to him about his poor paperwork. D. Union Activity and Respondent's Knowledge Thereof Harry Newkirk credibly testified that on or about Fri- day, April 11, 1975, he and his cousin, Rubin Carny Walk- er, were engaged in a conversation with a neighbor who is a member of the United Parcel Service Teamsters Local 480, during which he explained to them the advantages of the Union. On the following Monday, Newkirk said he asked several employees what they thought about a union and they said they thought it was a good idea. On Tuesday, he called Corky Ellis, president of Local Union 327, who 501 told him to come by the union office and pick up some authorization cards which he did. At that time, Ellis ad- vised him to distribute the cards,_ have the employees sign them and return them to him. Newkirk complied with these instructions although some employees did not return the cards. Harry Dotterer, Gary Davidson, and Ernie Gossett did not want cards. Walker corroborated Newkirk's testi- mony with respect to the initial conversation held with Newkirk's neighbor about unions and he further testified that on the following morning Newkirk privately men- tioned to employees the discussions he held about the Union the night before. Walker said he warned Newkirk to keep quiet about it but Newkirk talked to other employees about the Union. Harold Dotterer, employed with the Respondent 5 years, pumps argon and other gas mixtures. He credibly testified that, about a week or 10 days before Newkirk was dis- charged, Newkirk approached him at work and asked him what he thought about the Union and he replied, "It's good for some places but not for there, it's too small. They do good things and bad things, like for instance, they cause two of the railroads in our country to go bankrupt. And I didn't like unions particularly for small places like that." He further stated that Newkirk said the Union helped to get rid of bad people and he said no, it keeps them there. About 4 or 5 days later, Newkirk had a card and asked him would he come down to the union hall and he said, "No, sir." Emily Hudson, secretary for the Respondent, testified that on the morning of April 21, 1975, she reported to work at 8 o'clock and noted that George Clark was not present. She asked Supervisor Adams where was Mr. Clark and he said Mr. Clark was in Chattanooga attending a meeting with company officials and lawyers. Hudson's testimony in this regard is as follows: Q. Do you recall what Mr. Adams said? A. He said he was in Chattanooga in a meeting with Mr. Powell. Q. Who is Mr. Powell? A. The Treasurer of the Company. And Mr. White, who is the President. And the Lawyers. Q. Did he say-did he call any lawyers' names? A. No sir. Q. Did he say why he was in this meeting? A. I didn't ask him at that time. He did tell me later that Harry and Carny were involved in trying to bring the Union in. And the Company didn't want it. And that's what they were there to discuss. Q. That's what Mr. Clark was in Chattanooga to discuss that particular morning? A. Yes sir. On the same morning, April 21, Emily Hudson testified that there were numerous telephone calls from the Respondent's main office at Chattanooga and that, during one of such calls, Joe Adams said he did not know any- thing about the Union and he thereafter kept reassuring the party to whom he was speaking that he did not know anything about the Union. When he got off the telephone, Adams told her (Hudson)' that Manager Clark said the at- torneys knew about the Union. Subsequently, Clark told 502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD her during the lunch period that the attorneys knew about the union thing that was going on and they understood where Joe Adams stood. After Adams' telephone conversa- tion, he came into her (Emily Hudson) office and accord- ing to her testimony, the following conversation ensued: He came into my office. I was working on some ship- ping orders. And he came in. And leaned on this little gadget thing I've got. And he said, "Emily, when did you find out about the Union?" And I said, "This morning when you told me." I said, "Since I was out three days last week, I didn't hear any of the rumors." So we talked for a second. And he said, "I'm going to ask you again when you found out about the Union." And I repeated my answer. And he said, "Okay, one more time." And he said, "This time, I want to hear the right answer." And I asked him what he wanted me to say. And he said, "You're going to hear about the Union tomorrow, after Harry's gone." E. Respondent's Discharge of Walker and Newkirk Supervisor Joe Adams credibly testified that on April 21, 1975, he received a telephone call from the Chattanooga office complaining about problems with Walker's shipping orders. His testimony in this regard is corroborated by the testimony of secretary, Emily Hudson. Rubin Carny Walk- er also credibly testified that after completing his deliveries on April 21, 1975, he returned to the plant between 4 and 4:30 p.m. and Supervisor Adams told him he needed to talk with him. Whereupon, Adams, salesman Toby, and himself went into Manager Clark's office and the following conversation ensued: Toby came in and sat down. Joe Adams spoke up and said, "It's sure been a rough day here today." And I said, "I can't say that myself, it's been a-one of the better days I've had since I've worked here for Selox." And he said, "We've been having a lot of complaints from Chattanooga about your handwriting. We're also having complaints from customers who don't know- they can't figure out what you're leaving them and what you're picking up." And I said, "What's the al- ternative?" And he said, "I'm going to have to let you go." At that time he commented about the McKennan Bridge incident. And I told him that I didn't know how-nobody had ever told me about filling out for cylinders-nobody had ever showed me how to do that. And besides that, some of them-he had prom- ised me that somebody would go with me on the first two weeks and show me how to go from place to place and fill out the paperwork, but he did not. Q. No one went with you? A. No sir, did not. Q. Was anything else said in that conversation? A. No sir. I buttoned up and went back there and clocked out. Q. Anybody? A. He said that when I went to apply at my next job, that he would give me a good recommendation, because nobody could ask for any better worker than I was. But he didn't think I would be suitable for that route. And that was all that was said. Walker identified and admitted making errors in com- pleting' shipping orders marked Respondent's Exhibit 4, 5, 6, 7, 8, 9, and 10, dated 4-16-75, 3-25-75, 4-7-75, 4-9-75, 3-27-75, and 4-1-75, respectively, except that Exhibit 6 and 7 were thereafter corrected and voided by him and a new order completed in substitution therefor. Walker fur- ther testified that Adams spoke to him on one occasion and Secretary Emily Hudson reluctantly spoke to him on one occasion about errors and the, proper procedure for completing shipping orders; and that on April 21, 1975, Adams told him that some of his orders (paperwork) were sent back from Chattanooga for errors. He said the only erroneously completed shipping order he had seen prior to April 21, 1975, was Respondent's Exhibit 4. Although Walker testified that he did not know he was employed on a 90-day probation period, he nevertheless admitted that he completed the application for employ- ment by Respondent and that he received and signed for a copy of the Selox employee booklet, wherein paragraph 3 on page 18 provides as follows: Hire, rehire, and reinstatement. New and rehired employees are on probation for a period of 90 calendar days from hiring or rehiring date. During this period you will have an,opportunity to learn first-hand about your job, and your supervisor will be able to judge your ability and efficiency in performing the type of work to which you have been assigned. Upon successfully completing this proba- tionary period, you are eligible to all rights and privi- leges of a regular employee, with seniority dating from the day you started work. At any time within the pro- bationary period, employment may be terminated. If an employee terminates of his own accord and is re-employed, he will be considered a rehire, and for all purposes is a new employee. If an employee is termi- nated as a result of a lay-off and is re-employed within six months immediately following the date of lay-off, he shall be considered a reinstated employee, and re- tains the seniority accumulated prior to the lay-off. With respect to the discharge of Harry Newkirk, Secre- tary Emily Hudson credibly testified that she received a telephone call from a dentist on the morning of April 1, 1975, complaining that he had called Respondent earlier that morning, or on the previous Friday, and had been promised delivery of his order on Monday,. but Mr. New- kirk had not been there. She reported the complaint to Supervisor Adams who said there had been a lot of such complaints within the last few days; that he had that den- tist call in and he had to talk to Newkirk about it; and that he was just going to have to let Newkirk go. Hudson said she told Adams that Newkirk had been there a long time, had been a good driver, and she asked him didn't he think that he could just talk to Newkirk instead of firing him. Adams then said, "No, it's not my decision" (meaning to discharge Harry Newkirk). He said he had been told by Chattanooga to fire Newkirk. Harry Newkirk credibly testified that he reported to work on April 21, 1975, and worked until about 4:30 in the SELOX, INC. 503 afternoon. That when he returned to the plant at 4:30 p.m., Supervisor Adams told him that he wanted to see him. Newkirk went into the office of Manager George Clark where Supervisor Adams was sitting at Mr. Clark's desk and Bill Slate came in and sat next to him in front of Supervisor Adams, when the following conversation en- sued: A. Joe said something like, "It's been a rough day." And I said, "Yes, I can imagine." I don't remember what was said after that, but he-the next thing I re- member his saying was, "We're going to have to do something about the city route." I said, "What do you mean?" Joe Adams said, "We've got customers com- plaining a lot. They're complaining to George, and George is complaining to me, and I can't have George jumping my ass any more." I said, "Well; what do you want me to do?" No, I didn't say that then. He then said something like, "Some customers call up Hillis in Chattanooga, and I have-I can't have Hillis jumping me any more either." Q. Who's Hillis? A. Hillis is the Sales Manager or-he's George Clark's boss. He's directly under the President of the Company. He said, "I can't have Hillis jumping me any more." I said, "What do you want me to do?" He said, "I'm going to have to take you off the city route." Newkirk further testified that Supervisor Adams did not specify any particular customers who complained to him except he asked about the empty cylinders he was to pick up at Carbonic Industries and he (Newkirk) told him he did not pick up the cylinders because the Carbonic Indus- tries plant was closed. He said Adams then made the fol- lowing remarks: He said, "I'm going to have to take you off the city route." And I said, "What do you want to do, I mean what do you want me to do," meaning that before, he had taken Butch Greenway off the city route and put him into another position. I said, "What do you want me to do?" And he said, "I'm just going to have to let you go." I said, "Okay." And at that time, I was just kind of shocked. I didn't know what to say. I just said, "Okay." And I started to leave; because there was nothing left I could do. But I sat there. And I then asked him about unemployment, 'can I get unemploy- ment. And he said, "I don't know. I'll check into it tomorrow for you." I then made some kind of state- ment like, "I want you to know, I'm doing the best possible job I can do, and I'm working as hard as I can, I can't do any better job than what I'm doing." I said, "I think you're going to have a hard time finding someone else to do as good a job as I've been doing." Supervisor Joe Adams testified that he terminated Rubin Carny Walker on April 21 for poor paperwork as previous- ly stated, and that he discharged Newkirk on the same date for poor service to Respondent's customers. He stated that he was not aware of any union activity on the part of Respondent's employees on April 21, 1975. However, on the contrary, he testified that he received complaints of poor service to Respondent customers from Parkview Hos- pital, which terminated its account with Respondent; Nashville Bridge Company, which placed its account on probationary status with Respondent; and Riverside Hos- pital, which also placed its account on probationary status with Respondent. He further stated that he had received customer complaints through salesman Bill Slate-on the McDougal account, Hudson Frazier on the Parkview Hos- pital account, and John Woods on the Nashville Bridge account. Nevertheless, he testified that it was Newkirk's attitude which ultimately led him to discharge Newkirk on April 21, 1975. In this regard, he testified more specifically as follows: Q. Did you determine that you, did you decide to terminate Mr. Newkirk prior to the time that you talked to him? A. No sir. Q. When was the decision made to terminate Mr. Newkirk? A. Well, I was trying to talk to Harry about the problems we were having, and trying to get some kind of resolution to the problem trying to get it solved. He told me that not only was he doing the best that he could do, but he was doing probably a better job than anyone else could do and I just had no choice at that point. Supervisor Adams also testified that a Mr. Marlin first called Manager George Clark in March, complaining about the poor service and, when he asked Newkirk about Mr. Marlin's account, Newkirk said he did not have time to get to him. The date of the call-in order was April 7, 1975, and Adams said he spoke to Newkirk and the order was delivered April 9, 1975. On cross-examination Adams admitted that Respondent had run out of acetylene on three or four occasions. Although he previously stated that he had received complaints about Newkirk's service from Salesman Frazier, he could not remember the contents of the complaint nor what he said to Newkirk. Adams also said he told Newkirk several times to pick up the empty cylinders from McDougal and that Newkirk's failure to do so resulted in the loss of that account. After he discharged Newkirk, Adams said he assigned Gary Davidson to re- place him; that 3 weeks later he reassigned Davidson to other duties and hired Gary Gotter who later quit to go to sell health food, and he then hired Bill Webb and transfer- red Gotter to a job in the back. In response to questions by counsel for the General Counsel, Supervisor Adams said he did not offer Newkirk a job in another part of the plant because he did not have one; and that he did not transfer him into the back where he reassigned Davidson and Got- ter because Newkirk made between $800 and $1000 a month and the jobs in the back pay only $2.85 an hour. Adams stated that he has not had problems or complaints of poor service since Newkirk's departure. However, secre- tary Emily Hudson testified that since Newkirk's departure there were about three persons to work the city route and that Gary Gotter could not keep up with the workload. Although Manager George Clark, and salesmen John R. Wood, William (Bill) Slate, John Houston, Frazier, and Su- pervisor Joe Adams all testified about various customer complaints regarding poor service in delivery gases ordered 504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by the customers or the failure of the Respondent to pick up empty cylinders, none of these persons, including Man- ager Clark, were actually able to state, as a fact, that the complaints were the fault of Harry Newkirk. Several of the salesmen said they attributed the cause of the poor service to Harry Newkirk but they could not state as a fact that there was not a breakdown in communications between the person placing the order and the person receiving the order on the telephone; that there was no error or omission in reducing the order to writing on the clipboard; that there was no problem getting in touch with the city truckdriver (Newkirk) during the day to inform him of the order or complaint or that persons in the office neglected to tran- scribe complaints received, over the telephone and to bring them to the attention of Newkirk. The corroborated testi- mony of Newkirk and Walker about the frequent defective tailgates and other malfunctioning trucks of Respondent is not disputed or refuted in the record. Analysis and Conclusions The evidence of record is abundantly clear that Rubin Carny Walker was hired by Respondent to assist city route truckdriver Harry Newkirk and work under his general su- pervision. Although between 8 and 14 days later Walker was transferred from Newkirk's supervision and assigned to an out-of-town truck route by Supervisor Joe Adams, the evidence does not show that the reassignment was dis- criminatory (motivated by union activity of Walker) be- cause there was no evidence of union activity by Respondent's employees at that time. However, the evi- dence amply shows that Supervisor Adams knew, should have known, and/or was not significantly concerned about Walker's deficient ability to perform the paperwork associ- ated with the duties of an out-of-town truck route, because both Walker and Newkirk had advised Adams of such fact before he reassigned Walker. Since the evidence is undisputed that Walker was con- sidered a very good worker except for his paperwork per- formance which Adams knew was inadequate, a crucial question presented for determination herein is whether Walker was discharged by Respondent on April 21, 1975, for his unsatisfactory paperwork performance, or for his recent participation in union activity. In addressing this question, it is first observed that Supervisor Adams was aware of Walker's ineptness to perform paperwork not only by his unsatisfactory performance of the same, but also by Walker's initial and candid admission that he lacked confidence in his ability to do such work; that while Walker's inadequate paperwork was known to Respondent since approximatelyMarch 28, 1975, the evidence does not show that he was ever given any serious training on how to complete the shipping orders as was suggested by Respondent's own secretary, Emily Hudson; that the is- suance of any serious reprimand or warning (oral or writ- ten) to Walker by Respondent prior to April 21, 1975, is conspicuously absent on the record; and the fact that Re- spondent made no effort to transfer what it called an other- wise very good worker (Walker) to another position not involving paperwork as it had transferred other employees whose work performance was unsatisfactory in some re- spect. In other words, prior to April 21, 1975, the record of Respondent's attitude towards Walker's general work per- formance was very pleasing, while its attitude towards his less than satisfactory paperwork performance was one of tolerance. With these factors in mind, the question as to what motivated Respondent to discharge Walker on April 21 becomes rather dubious and the more precise question as to whether his discharge was motivated by factors other than his poor paperwork can best be answered by deferring to an examination of the total evidence of record discussed infra. The evidence of record is undisputed that on or about April 11, 1975, Harry Newkirk and Carny Walker became engaged in union activity, and that on the next day, New- kirk talked to fellow employees about the Union and dis- tributed union authorization cards to such employees on and after April 16, 1975. The media by which Respondent learned about the organizing efforts of Newkirk and Walk- er is not established by the evidence, but it is well estab- lished that Respondent (Supervisor Joe Adams) had knowledge of the union efforts of Newkirk and Walker on the morning of April 21, 1975. This fact is amply estab- lished through the testimony of Respondent's secretary, Emily Hudson, who voluntarily testified that, on the morn- ing of April 21, Supervisor Adams told her Respondent's attorneys knew about the organizing efforts of its-employ- ees and thereupon proceeded to interrogate her (Hudson) in a manner as to when she learned about the employees' union activity; that Manager George Clark was in Chatta- nooga that morning in a managerial meeting regarding the employees' efforts to unionize the plant; and that later that day (April 21) Supervisor Adams told her that Newkirk and Walker were, involved in trying to bring the Union into the plant and the Respondent did not want it. Although Supervisor Adams denied such conversation with Hudson and other company witnesses denied that there was such a meeting or that they (Respondent) had knowledge of any union activity, I do not credit their testimony in this re- gard.' The credited evidence of record also established that, on the morning of April 21, Supervisor Adams walked up to the desk of secretary Hudson and insistently interrogated her about knowing about the Union. He finally warned her that he was asking her one more time for the right answer, and advised her that if she did not know about the Union, 3I credit the testimony of secretary Hudson over that of Respondent's witnesses because, although she is still an employee of Respondent, under the supervision of Manager George Clark and/or Supervisor Adams. she nevertheless testified in this proceeding without subpena, she is and was working closely with management during the period in question and was in a position to learn the concerns of management, and because she testified in an unhesitatingly, responsive, nonexaggerating, and objective manner, which persuaded and convinced me that she was telling the truth On the contrary, I do not credit the testimony of Supervisor Adams, Manager George Clark, and other company Witnesses, not only because their testimo- ny is self-serving, but also because Supervisor Adams appeared to be overly careful in answering questions relating to the crucial conversations held with Emily Hudson on April 21, because he (Adams) and some other com- pany witnesses appeared to be looking towards counsel for the Respondent for expressions of approval or disapproval before answering such questions, and because I was thereupon persuaded by their demeanor and the tenor of all of the evidence of record that they were not testifying truthfully SELOX, INC. 505 she would learn about it the next day when Newkirk was gone. Since Adams is a high-ranking supervisor, next m the hierarchy to Manager George Clark, such stringent interro- gation of Hudson by him was of a coercive, threatening, and restraining nature, against the exercise of employees' Section 7 rights, and therefore constituted a violation of Section 8(a)(1) of the Act. Based upon the foregoing credible evidence, I thereupon conclude and find that on April 21, 1975, Supervisor Joe Adams and Manager George Clark (Respondent) had ac- tual knowledge of the union activity of dischargees Harry Newkirk and Rubin Carny Walker. The Discharge of Rubin Carny Walker and Harry Newkirk Respondent readily admits that it discharged Rubin Car- ny Walker and Harry Newkirk on April 21, 1975, but it contends that it did so for cause, and not for their union activity, of which it had no knowledge. More specifically, Respondent maintains that it discharged Walker for poor paperwork and that Newkirk was discharged for poor (un- timely) service to its customers and a "bad" attitude when Adams spoke to him about it. An examination of the evi- dence with respect to Walker's poor paperwork readily re- veals that while Walker's paperwork was less than satisfac- tory, Respondent was nevertheless tolerant towards such work prior to the morning of April 21; and that, when it decided to discharge Walker on that afternoon, it also had knowledge of his union activity. Although unsatisfactory work performance (paperwork or otherwise) may very well constitute cause for discharge of an employee as Respondent contends, the question pre- sented by the evidence in Walker's case, is whether his discharge by Respondent was primarily motivated for cause (poor paperwork), or for union activity in violation of Section 8(a)(3) and (1) of the, Act. Since it is clearly established in the record that, prior to the morning of April 21, Respondent was rather tolerant with Walker's poor pa- perwork; that prior to that time, Respondent did not seri- ously warn or reprimand Walker about his paperwork; that aside from Walker's poor paperwork, Respondent consid- ered Walker a very good worker and had granted him a raise from $2.85 to $3 per hour, just 2 weeks after he was hired; that Respondent abruptly discharged Walker on the afternoon of the same day it manifested such grave con- cern upon learning about his union activity; and that Walker was discharged just an hour or more before Re- spondent discharged the only other discharged employee, Harry Newkirk, who too, it had just learned was involved in union activity. When all of the above-described factors are considered in conjunction with Respondent's (Supervisor Joe Adams) earlier threatening and coercive interrogation of Secretary Emily Hudson about the union activities of its employees, the conclusion is compelling, and I find, that Respondent's primary motive for discharging Walker was not his poor paperwork, but ',his union ,activity; and that Respondent's contention that I it discharged Walker for cause (poor pa- perwork), is a mere pretext to conceal the real and unlaw- ful aforedescribed reason for (union activity) his discharge. The testimonial evidence with respect to the quality of Harry Newkirk's performance as city route truckdriver ap- pears, on the surface, to be highly conflicting. However, a careful examination of the credible testimony of the several witnesses in this regard reveals that Newkirk, in spite of Respondent's present contention of poor performance, has held several progressively responsible positions accompa- nied by increasing pay rates during his short (1 year and 4 months) working tenure with the Respondent. It is not dis- puted that Newkirk, having served in several capacities in an exemplary fashion prior to taking the city route, is very knowledgeable of the Respondent's overall business opera- tion. The evidence does not show that Respondent had any significant complaints about Newkirk's individual perfor- mance as city route truckdriver, prior to March 1975. In fact, the credible evidence seems to reinforce this fact, since, in March 1975, Respondent (Supervisor Adams) au- thorized Newkirk to hire someone to help him with the city route workload, which Newkirk had informed Adams was getting to be too much for one man to handle. Newkirk thereupon hired his cousin, dischargee Rubin Carny Walk- er, to assist him on the city route. However, between 8 and 14 days later, Supervisor Adams reassigned Walker to an out-of-town truck route because he needed to fill the posi- tion, and Newkirk was left with only intermittent help from Stern, the prior city route truckdriver. Consequently, New- kirk could not service all of Respondent's customers in a timely manner. Respondent's secretary, Emily Hudson, testified that, during her 3-1/2 years in the business office of the Respon- dent, customers would call in complaining about the un- timely delivery of their orders and delayed pickup of empty cylinders. Contrary to the testimony of Supervisor Adams and other managerial or sales personnel, she did not notice any increase in such complaints during the last 2 months of Newkirk's employment. In her opinion, Newkirk was a very good city route truckdriver compared with the six city route truckdrivers she had known to work that route; When Newkirk was discharged on April 21, secretary Hudson said there were many comments from salesmen and other employees that Newkirk would, be hard to replace. Secre- tary Hudson also testified that, during the investigation of this case by counsel for the Respondent, she told counsel that she thought Respondent was wrong in discharging Walker and Newkirk for engaging in union activity .4 It is further well established by the credible testimony of Respondent's secretary, Emily Hudson, and other undis- puted testimony, that Supervisor Adams authorized New- kirk in mid-March to hire someone, after Newkirk advised him that the city route was increasing and was too much 41 credit the testimony of secretary Emily Hudson because, although she is still employed by Respondent, she nevertheless testified voluntarily and was not at all selective in her answers to the questions propounded to her. In other words, I noted, and the record reflects, how she did not fail to answer candidly whether or not her statements were favorable or adverse to Carny Walker, Harry Newkirk, or the Respondent, and I was persuaded by her demeanor throughout her testimony that she was testifying truthfully. Moreover, her testimony coincides with the logical consistency of all of the evidence of record Suffice it to say that reasons herembefore mentioned, I discredit the testimonial versions of Supervisor Adams, Manager George Clark, and other sales personnel with respect to the adequacy of Newkirk's performance in servicing Respondent's customers 506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for one person to handle. If Newkirk's route were not actu- ally increasing as Newkirk had advised, or if Adams did not have confidence in Newkirk's performance and judg- ment, it is difficult to conceive that Adams would have authorized Newkirk to hire someone on Newkirk's recom- mendation. The credited testimony of record unequivocal- ly established that customer complaints about timely deliv- ery and pickup of empty cylinders were not uncommon, and the credited testimony of Newkirk and secretary Hud- son established that such complaints did not increase during the last 2 months of Newkirk's employment with Respon- dent. Assuming customer complaints did increase during the last 2 months of Newkirk's employment, as Respondent contends, the credible evidence of record fails to establish that such increase in complaints were the result of Newkirk's inadequate performance. In this regard the evi- dence is clear that, on cross-examination, neither Manager George Clark, Supervisor Adams, nor salesmen Wood, Slate, or Frazier could in fact establish that customer call- in orders or complaints were always transcribed or proper- ly recorded on the clipboard for Newkirk's attention; that the office was always able to contact Newkirk after he left on his-truck route; that orders and complaints were always, in any way, communicated to Newkirk; that the person receiving call-in orders did not promise to make deliveries or to pick up empty cylinders that could not be fulfilled at the time promised the customer; that the Respondent al- ways had the product in stock which was ordered by the customer; or that Newkirk, as one driver, could possibly service the entire route load without assistance of another person, as he had been given only 3 weeks before. More- over, the evidence is undisputed that Respondent had fre- quent elevated tailgate and other truck malfunction prob- lems which delayed or prevented Newkirk from- making timely deliveries or picking up empty cylinders. When all of the above-described factors are considered in conjunction with the total evidence of record, I am per- suaded, andhereupon conclude and find, that the evidence fails to show that Harry Newkirk was responsible for poor service to Respondent's customers which caused it to lose some customer accounts. Respondent contends that it also discharged Newkirk for a "bad attitude," which it defined as Newkirk's re- sponse to Supervisor Adams' advising him that he would have to let him go, as follows: "I am doing the best possible job I can do, and I'm working as hard as I can, I can't do any better than I'm doing" .... I think you're going to have a hard time finding someone else to do as good a job as I've been doing." Supervisor Adams then said he felt he had no choice at this point and admitted that without any prior warning, reprimand, or offer of alternative work, he dis- charged Newkirk. In view of the fact that Newkirk's above-described re- sponse to Adams' words of discharge was neither insubor- dinate nor insulting, I find it difficult to conceive that such utterance'by Newkirk was even a part of the real reason for his discharge. Hence, in view of the total evidence of rec- ord, it is obvious that Respondent did not discharge New- kirk for cause (poor service to its customers and bad atti- tude), but rather, for his union activity in violation of Section 8(a)(3) and (1) of the Act. It is equally obvious that Respondent's contention that it discharged Newkirk for poor service to its customers and a bad attitude is a pretext to mask its otherwise real and unlawful reason (union ac- tivity) for his discharge. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the operations of Re- spondent described in section I, above, have a close, inti- mate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in unfair labor practices warranting a remedial Order, I shall recom- mend that it cease and desist therefrom and that it take certain affirmative action to effectuate the policies of the Act. It having been found that Respondent interfered with, restrained, and coerced employee Emily Hudson in the ex- ercise of her Section 7 protected rights, in violation of Sec- tion 8(a)(1) of the Act, and that it discharged Rubin Carny Walker and Harry Newkirk in violation of Section 8(a)(3) and (1) of the Act, the recommended Order will provide that Respondent offer Rubin Carny Walker and Harry Newkirk reinstatement to their jobs , and make them whole for loss of earnings within the meanings and in accord with the Board's decisions in F. W. Woolworth Company, 90 NLRB 289 (1950), and 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 or in any other manner interfering with; restraining, and coercing employees in the exercise of their rights guaranteed by Section 7 of the Act. N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532, 536 (C.A. 4, 1941). Upon the basis of the above findings of fact and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Selox, Inc., the Respondent, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Teamsters, Chauffeurs, Helpers & Taxicab Drivers, Local Union 327, affiliated with International Brother- hood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, is and has been at all times material herein, a labor organization within the meaning of the Act. 3. By interrogating Emily Hudson about her and other employees' past and current union interest or affiliation, Respondent violated Section 8(a)(1) of the Act. 4. By discriminating in regard to tenure of employment SELOX, INC. of Rubin Carny Walker and Harry Newkirk, thereby dis- couraging membership in the Union or other labor organi- zations, Respondent has engaged in unfair labor practices condemned by Section 8(a)(3) and (1) of the Act. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDERS Respondent, Selox, Inc., Nashville, Tennessee, its offi- cers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating its employees about their past and cur- rent union interests or affiliation. (b)_ Discriminating in regard to tenure of employment of employees, thereby discouraging membership in the Union or other labor organizations. (c) 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 necessary to ef- fectuate the policies of the Act: (a) Offer Rubin Carny Walker and Harry Newkirk rein- statement to their former positions or, if such positions no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights previously en- joyed, and make them whole for any loss of pay suffered by reason of the discrimination against them with interest at the rate of 6 percent per annum, in the manner described in the section entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records neces- sary to analyze the amount of backpay due under the terms of the recommended Order. (c) Post at 'Respondent's plant at Nashville, Tennessee, copies of the attached notice marked "Appendix" b Copies of said notice, on forms provided by the Regional Director for Region 26, after being duly signed by Respondent's representatives, shall be posted by it immediately upon re- ceipt 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. (d) Notify the Regional Director for Region 26, in writ- ing, within 20 days from the' date of this Order, what steps 507 the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be dismissed insofar as it alleges violations of the Act not found herein. 5 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 e In the event the Board's Order is enforced by a Judgment of the United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board" APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT coercively interrogate employees about their and other employees' union membership, activi- ties, and desires. WE WILL NOT discourage, membership in Teamsters, Chauffeurs, Helpers & Taxicab Drivers, Local Union 327, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, or any other labor organization, by discharg- ing employees or otherwise discriminating in any manner in respect to their tenure of employment or any term or condition of employment. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise and en- joyment of rights guaranteed to them by Section 7 of the National Labor Relations Act, except to the extent that such rights may be affected by lawful agreements in accord with Section 8(a)(3) of the Act. WE WILL offer Rubin Carny Walker and Harry Newkirk immediate and full reinstatement to their for- mer positions or, if such positions no longer exist, to substantially equivalent ones, without prejudice to the seniority and other rights and privileges enjoyed by them, and make them whole for any loss of pay they may have suffered by reason of their discharge, with interest at the rate of 6 percent per annum. All our employees are free to become or remain, or re- fuse to become or remain, members of said Union or any other labor organization, except to the extent that such rights may be affected by lawful agreements in accord with Section 8(a)(3) of the Act. SELOX, INC.