Panscape Corp.

PANSCAPE CORPORATION Panscape Corporation and Richard Burton and David Jackson. Cases 25-CA-7871-1 and 25-CA- 7871-2 August 29, 1977 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND WALTHER On April 16, 1977, Administrative Law Judge Karl H. Buschmann issued the attached Decision in this proceeding. Thereafter, Respondent and General Counsel filed exceptions and supporting briefs. The Charging Party filed a brief in answer to Respon- dent's exceptions to 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,1' and conclusions of the Administrative Law Judge and to adopt his recommended Order as modified below. The Administrative Law Judge found that Respon- dent violated Section 8(a)(1), (3), and (4) of the Act when it unilaterally implemented a discriminatory exclusive hiring hall procedure and applied this procedure in April 1976 to the Charging Parties, Richard Burton and David Jackson. He did not find that Respondent's assignment of Jackson to dig a ditch by hand, after his reemployment in May 1976, constituted a constructive discharge. We agree with these findings. We disagree, however, with the remedy of rein- statement and full backpay recommended by the Administrative Law Judge as it applies to Jackson and possibly as to Burton as well. The Administra- tive Law Judge found that subsequent to the filing of the charge on April 12, 1976, which is the subject of this case, Respondent, at the urging of the National Labor Relations Board, offered reemployment to Burton and Jackson. Jackson accepted the offer and began work on May 23, 1976. Burton, on the other hand, refused the job as he had already obtained other employment. ' In the absence of exceptions, the Board adopts, proforma, the finding of the Administrative Law Judge that Respondent did not institute the exclusive hiring hall procedure for the sole purpose of discriminating against Burton and Jackson. The General Counsel 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 WBall Products, 231 NLRB No. 89 With regard to Burton, the remedy of reinstate- ment with backpay may be appropriate. It is unclear from the record whether Respondent made a valid offer to have the Charging Parties return to work in May 1976. In the absence of such evidence, the question of what the remedy should be must be left to our compliance procedure. If at the compliance stage it should be determined that a valid offer was made in May 1976, then Burton would not be entitled to more than backpay for the period between his request for reemployment and the offer to return to work. If, however, Respondent's offer was not a valid one, the proper remedy would be the one granted by the Administrative Law Judge. This reasoning does not, however, apply to Jackson. Whether or not Respondent's offer was a valid one is moot, as Jackson accepted it and performed work within his previous job description as a landscape employee for approximately 5 months. As stated above, the Administrative Law Judge found, and we agree, that Jackson voluntarily left his job and was not constructively discharged. He is not, therefore, entitled to reinstatement with full backpay. Jackson is, however, entitled to backpay for the period between his request for work and Respondent's offer of reemployment. Accordingly, we have decided to reverse that portion of the Administrative Law Judge's remedy which provides for reinstatement with backpay for Jackson and have revised the corresponding Order and notice provi- sions to conform to this Decision.2 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, Panscape Corpo- ration, Muncie, Indiana, its officers, agents, succes- sors, and assigns, shall take that action set forth in the said recommended Order, as so modified: 1. In paragraph l(c) substitute the words "In any other manner" for the words "In any like manner." 2. Substitute the following for paragraph 2(a): "(a) Offer Richard D. Burton immediate and full reinstatement to his former position or, if such position no longer exists, to a substantially equiva- lent position, without prejudice to his seniority, or to Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3. 1951). We have carefully examined the record and find no basis for reversing his findings. 2 In par. I(c) of his recommended Order. the Administrative Law Judge uses the narrow cease-and-desist language. "In any like manner," rather than the broad injunctive language, "In any other manner," which the Board traditionally provides in cases involving serious 8(aX3) discrminato- ry conduct. See N.LR.B v. Entwistle Mfg Co.. 120 F2d 532, 536 (C.A. 4, 1941). Accordingly, we shall modify the Administrative Law Judge's recommended Order and notice. 693 DECISIONS OF NATIONAL LABOR RELATIONS BOARD other rights previously enjoyed, and make him whole for any loss of pay or other benefits suffered by reason of the discrimination against him in the manner described in the section entitled 'The Remedy,' as modified, 3 provided that it is found that a valid offer to return to work was not made. If such an offer was made he will be entitled only to be made whole for any loss of pay or other benefits suffered by reason of the discrimination against him for the period between April 12, 1976, when he asked to return to work, and when Respondent extended a valid offer of reemployment." 3. Add the following as paragraph 2(b) and reletter the subsequent paragraphs accordingly: "(b) Make David R. Jackson whole for any loss of pay or other benefits suffered by reason of the discrimination against him for the period beginning April 16, 1976, when he asked to return to work, until the time a valid offer of reemployment was made by Respondent, in the manner described in 'The Remedy,' as if no such offer was extended, the period shall end on May 23, 1976, when Jackson was rehired by Respondent." 4. Substitute the attached notice for that of the Administrative Law Judge. :' In accordance with our decision in Florida Steel Corporation, 231 NLRB 651 (1977), we shall apply the current 7-percent rate for penods prior to August 25. 1977, in which the "adjusted prime interest rate" as used by the Internal Revenue Service in calculating interest on tax payments was at least 7 percent. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had a chance to give evidence, the National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post this notice. We intend to carry out the Order of the Board and abide by the following: WE WILL offer Richard D. Burton immediate and full reinstatement to his former position 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 discrimination against him provided it is found that a valid offer to return to work was not made to him. If such an offer was made he will be entitled only to be made whole for any loss of pay or other benefits suffered by reason of the discrimination against him for the period between April 12, 1976, when he asked to return to work, and when we extended a valid offer of reemployment to him. WE WILL make David R. Jackson whole for any loss of pay or other benefits suffered by reason of our discrimination against him for the period beginning April 16, 1976, when he asked to return to work, until the time we extended a valid offer of reemployment to him. If no such offer was made the period ends May 23, 1976, the date we rehired him. WE WILL NOT discriminate against employees in regard to hire or tenure of employment, or any term or condition of employment, because of their union or protected, concerted activities or because they gave testimony or filed charges under the Act. WE WILL NOT promulgate, adopt, or effectuate a discriminatory rule which limits employment to those who are union members in good standing and are dispatched by the Union. 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 except to the extent that such rights may be affected by lawful agreements in accordance with Section 8(a)(3) of the Act. All our employees are free to become or remain, or refrain from becoming or remaining, members of any labor organization. PANSCAPE CORPORATION DECISION KARL H. BUSCHMANN, Administrative Law Judge: The original charges were filed on April 12, 1976. The cases were consolidated, and the complaint in the matter issued on May 27, 1976. The hearing was held in Indianapolis, Indiana, on October 21, 1976. The case involves allegations (I) that Panscape Corporation violated Section 8(a)(1), (3), and (4) of the National Labor Relations Act, as amended, when it required that the Charging Parties, Jackson and Burton, be dispatched by the Union before it would reemploy them; (2) that the Respondent violated Section 8(a)(1) and (3) of the Act when it unilaterally implemented a rule that all new hires be dispatched by the Union; and (3) that the Respondent assigned Jackson to such onerous tasks that it constructively discharged him in violation of Section 8(aX 1), (3), and (4) of the Act.' All parties were afforded full opportunity to participate in the proceeding. Briefs filed by the General Counsel and I With respect to the last allegation, General Counsel has moved to amend the complaint. 694 PANSCAPE CORPORATION on behalf of the Charging Parties were considered. The Respondent elected not to file a brief. Upon the entire record and from my observation of the witnesses, I hereby make the following findings of fact and conclusions of law. FINDINGS OF FACT I. THE BUSINESS OF THE EMPLOYER 2 Panscape Corporation, the Respondent, is, and has been at all times material herein, a corporation organized under the laws of the State of Indiana. At all times material herein, the Respondent has maintained its principal office and place of business at Muncie, Indiana, where it has been engaged in the construction industry as a landscaping and earthmoving contractor. In the course and conduct of its business operations, Respondent has purchased, trans- ferred, and delivered to the Muncie facility and other construction jobsites located in the State of Indiana goods and materials valued in excess of $50,000, which were transported to said facility directly from States other than the State of Indiana. Respondent, in the course and conduct of its business operations, performed services valued in excess of $50,000, in States other than the State of Indiana. As admitted by the Respondent and based on the foregoing, I find that the 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 3 Local Union 1112, Laborers' International Union of North America, AFL-CIO, herein sometimes referred to as the Union, is, and has been at all times material, a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Facts Panscape Corporation, referred to as simply Panscape or the Respondent, is engaged in the construction industry as a landscaping and earthmoving contractor. It is bound by a collective-bargaining agreement with the Laborers' Inter- national Union of North America, State of Indiana District Council, which was executed in October 1974, and which expired in March 1977. The contract provides, inter alia, that "[i In the hiring of Employees, the Employer recognizes that the Union is a source of manpower and will therefore use it as a source when in need of Employees." (Art. V, sec. 1.) It also gives the employer "complete freedom of selection in hiring . . . provided, however, that there shall be no discrimination." (Art. V, sec 2.) Although the contract does not provide for an exclusive hiring hall arrangement between the Respondent and the Union, the Respondent admits that in June 1975 it decided to hire only those persons referred to it by the Union. It is the General Counsel's contention that the Respondent did not implement this policy until March 1976 and only made 2 The facts are based on the pleadings and admissions therein. lhid. union dispatch a condition of employment at that time in order to avoid having to rehire the Charging Parties, Burton and Jackson. The record shows that in the spring of 1975, Burton, Jackson, and a third employee, Shreve, engaged in protected concerted activity in order to obtain a wage increase. On June 6, 1975, the Respondent fired the three employees. Jackson and Burton were rehired in August 1975. In October 1975, they testified at an unfair labor practice proceeding4 in which the Respondent was found to have discharged Jackson, Burton, and Shreve in violation of Section 8(aXl) and (3) of the Act. After that hearing, Jackson and Burton continued to work until mid- December when they were laid off because of the winter weather. In late February, Burton asked Panscape's landscape superintendent, Douglas Spence, whether he could come back to work. He was informed that there was no work for him now, but that he should check back in I month. Burton called again about a job around April I and was then told that he would have to go through the Union and be dispatched by the Union. On April 12, 1976, he wrote to the Respondent indicating his willingness to begin work. At the beginning of April, Jackson, too, made several unsuccessful attempts to contact Spence. In mid-April, Jackson wrote to Respondent indicating his readiness to work. On April 20, Kuhrman Hull, the president of Panscape, wrote to Jackson and to Burton stating: In reply to your letter of April 16, 1976, we would be happy to have you back to work and all you need to do is go to the Local 1112 Union Hall and be dispatched to us as your turn comes up. At some uncertain date, probably in mid-April, the Respondent wrote to the Union and requested information on the status of Burton and Jackson. In a phone call and in a letter dated April 28, George McMahan, the secretary for Local Union 1112, responded, noting that Burton had been suspended, and that Jackson's dues were paid only through February 1976. Apparently, neither Jackson nor Burton went to the union hiring hall to be dispatched. Instead, they filed unfair labor practice charges with the National Labor Relations Board on April 12, 1976, the date on which Burton first wrote to the Respondent requesting a job, before either Burton or Jackson had received a written reply from Panscape, and even before Jackson had received any response to his request to be reinstated. On May 2, 1976, Panscape hired two employees whom the Union had dispatched at its request. The two were laid off in late May when the Respondent, at the urging of the National Labor Relations Board, offered reemployment to Burton and Jackson. Jackson accepted the Respondent's offer and began work on May 23, 1976; Burton did not accept a job, because he already had obtained other employment. Respondent argues that it instituted the system of hiring only those referred by the Union on or about June 6, 1975, ' Panscape Corporation, 224 NLRB 616 (1976). 695 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the date of the discharge of Jackson, Burton, and Shreve. Prior to that time, it had been the practice of the Respondent to hire employees who sought work without requiring them to go through the hiring hall. Hull had several explanations for the change of policy. He said that he believed that the collective-bargaining agreement with the Union required him to hire only persons dispatched by the Union. He later elaborated on that statement, explain- ing that he decided he would hire from the Union as much as possible and would only deviate from that policy when he couldn't obtain sufficient manpower from the Union. While he admitted that the Union's secretary, McMahan, told him that he could hire men directly, and that no union official had ever indicated otherwise, he held to his interpretation of the contract nonetheless, because he stated that this was the way in which the other unions with whom he dealt operated. Hull admitted that he did not begin hiring only those dispatched by the Union immedi- ately after the signing of the contract in 1974, and that he had hired and rehired several people in the winter of 1975 because they were the first employees to work under the new contract. But Hull explained that, in the spring of 1975, he had incurred problems with two unions, each advising his workers in the landscaping division. He credibly testified: Your Honor, after the June 6, 1975 episode when the conflict of two different unions telling us what to do and where to hire our people and the procedure that we follow, I at that time made the decision that from that point forward as much as possible we would hire from Local Unions as we were contracted to do with our local union contract. The only deviance of this is at times in which we cannot get manpower from the union and they have us bring in additional help and sign them up to get our work done. After June 6, Hull stated that he determined to operate strictly according to what he believed to be the terms of the contract. Between June 6 and December 31, 1975, the Respondent hired only three employees besides Burton and Jackson. He indicated that they were hired without union referral because it was mid-June when he needed them and all the other laborers had jobs. Since the wage scale in the landscaping division of Panscape was less than for laborers elsewhere, he had trouble getting workers. Excluding Jackson, only three full-time workers were hired between January I and mid-June 1976, and all three were dis- patched from the Union. The record further reflects that Hull sought to hire only those dispatched by the Union because he feared that if he took employees who had not paid union dues the Union might take adverse action against the firm like a strike or shutdown. Hull admitted, however, that the Union had never threatened such action. In addition to the allegations that the Respondent utilized an illegal hiring procedure, the General Counsel contends that, only 3 working days before the hearing in this case, the Respondent assigned Jackson to such arduous work that it forced Jackson to quit; thus, it is argued, the Respondent constructively discharged Jackson. In this regard, the record shows that on Friday, October 16, 1976, Hull took Jackson from the jobsite at which he was working in Indianapolis, Indiana, and brought him to Panscape's headquarters in Muncie, Indiana. Hull request- ed Jackson to dig a ditch 150 feet long, 30 inches deep, and 2 feet wide. He gave him a spade, a shovel, and a pick, which had only a 1-1/2-foot handle. He set no deadline on when the work was to be finished, but merely asked Jackson how long he thought it would take. Jackson answered: "A long time." He began work, and worked until the end of the day without complaint. Jackson was annoyed with the job he had been given. He stated that he had never received an assignment like that before, and that he felt that he was being treated unfairly. He was particularly upset that he had been given a short- handled pick to do the job. He believed that a backhoe could have been used on the job and that he should not have been asked to do it by hand. He also believed that he would be paid at a lower wage scale at the plant than he would have in Indianapolis. Angry at having been given the task, Jackson left work on Friday afternoon, deter- mined that he would not return. At no time did he express his dissatisfaction to his employer or inform him that he was quitting. Jackson had been given Monday morning off so that he could make arrangements to adopt a child. When he did not appear for work on Monday afternoon or on Tuesday, the Respondent wrote to him stating that he would be fired if he did not come to work on Wednesday. Jackson did not appear for work on Wednesday. Spence, Respondent's landscape superintendent, testified that digging ditches for landscaping and drainage purposes was in the job description of the landscape employees. Hull gave uncontested testimony that this work was not the most arduous assignment given to those employed in the landscape division. Jackson adamantly held to the position that he had never been asked to dig a ditch by hand before, but admitted that he had dug "footers" by hand. A footer is a narrow trench for which a backhoe cannot be used. Jackson admitted that Hull did not mistreat him when he gave him this assignment, that Hull had always treated him in a friendly manner, and that the superintendent, Spence, had also treated him well. He noted that they had permitted him to work an hour of overtime on the day he was given the job ditchdigging, and that they allowed him to take Monday morning off. B. Analysis The discriminatory exclusive hiring hall: The General Counsel submits that the Respondent's unilateral imple- mentation of the policy that it would hire only those dispatched by the Union is a violation of Section 8(a)(1) and (3) of the Act. The provisions of the collective- bargaining agreement, cited 'previously, indicate that Panscape had no written agreement with the Union establishing an exclusive hiring hall. Similarly, it does not appear that Panscape had an oral or implicit agreement with the Union concerning one. Indeed, the record shows that the Union informed the Respondent that it could hire laborers without prior union clearance. The decision to use the Union-so far as practical-as an exclusive source of 696 PANSCAPE CORPORATION labor was, therefore, the Respondent's own choice. Even without the existence of a formal exclusive hiring hall agreement, the Board can find such an exclusive hiring agreement exists in practice, and I so find. Chicago Local No. 245, Lithographers and Photoengravers International Union (Alden Press, Inc.), 196 NLRB 720, 720-721 (1972). Exclusive hiring hall arrangements are not illegal per se. Such an agreement is unlawful only if it, in fact, results in discrimination. Local 357, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America [Los Angeles-Seattle Motor Express] v. N.L.R.B., 365 U.S. 667, 674, 676 (1961). Chicago Local No. 245, supra, 196 NLRB at 721. It is the motive or purpose behind the procedure that is important. Local 357, supra, 365 U.S. at 675. And the arrangement is illegal if it is designed to permit only union members in good standing to obtain jobs. Respondent has admitted that in its opinion the Union would dispatch only members "in good standing," and that this was the basic reason for Respondent's decision to hire new employees only when they were dispatched by the Union. With this procedure, Respondent hoped to avoid union problems. Its decision and practice from June 15, 1976, to May 1977, to hire employees who were dispatched by the Union and who were in good standing with the Union is clearly discriminatory. The fact that Respondent deviated in some instances from the self-imposed exclusive hiring hall procedure does not render this practice any less discriminatory, particularly with respect to employees Jackson and Burton. Accordingly, I find that Panscape violated Section 8(a)(l) and (3) of the Act by its use of an illegal hiring procedure. Discrimination against Jackson and Burton: I do not believe that Respondent had adopted the exclusive hiring hall procedure for the sole purpose of discriminating against Jackson and Burton, two of the three employees who were found in the prior Board decision 5 to have been discharged in violation of Section 8(a)(1) and (3) of the Act. As already stated, Kuhrman Hull credibly testified that he had adopted the procedure in June 1976 because of certain problems which he had encountered with two competing unions. Yet, the record shows that Respondent had not always followed the practice and that on several occasions laborers were hired without union referral. Whatever Hull's motive may have been in adopting this procedure, initially, is is certainly clear that he used the exclusive hiring hall procedure as a device to refuse employment to Jackson and Burton. Having already concluded that Hull's unilateral decision and practice to insist on a prior dispatch from the Union in order to insure that potential employees were in good standing with the Union, I have no difficulty in finding that Respondent used the exclusive hiring hall procedure discriminatorily with respect to both Jackson and Burton in violation of Section 8(a)(1) and (3). The reason for Respondent's action against the two employees here is based on the events already adjudicated in the Board's prior Decision. There, the Board found that Panscape had union animus and that Burton and Jackson were discharged for protected concerted activities. Burton and Jackson were among the most important witnesses in the prior case. Accordingly, by clear inference, Respon- dent's adverse action against these two employees was predicated on their participation as witnesses in the prior proceeding and constitutes a clear violation of Section 8(a)4) of the Act. The alleged constructive discharge: The General Counsel contends that the Respondent violated Section 8(a)(1), (3), and (4) of the Act when it assigned Jackson to dig a ditch by hand. General Counsel argues that the Respondent gave Jackson this assignment in order to punish him for his previous participation in protected concerted activity and because he filed unfair labor practice charges. It is also alleged that the Respondent sought to discourage Jackson from testifying against it at the present unfair labor practice proceeding. I find that General Counsel's conten- tions in this regard are not supported by the record. To show constructive discharge, the theory must be that the Respondent's purpose was to make the employee so uncomfortable in his work or his job so intolerable and undesirable that he would have no choice but to quit, and that the Respondent had an illegal motive in assigning the work. New Castle Lumber and Supply Co., Division of Peter Kuntz Co., 203 NLRB 937, 940 (1973). In this case, the General Counsel failed to show that the work was so onerous that Jackson had no choice except to quit, or that the Respondent assigned him this job assuming that it would force him to quit. Although the work may have been more arduous than other types, it was not the most strenuous type of work assigned to employees in the landscape division, nor was it uncommon for employees to have to dig ditches. The record shows that Jackson himself had dug holes or ditches on prior occasions. Jackson was not told to finish the job in an unreasonably short period of time. When asked how long he thought it would take, he replied, "a long time." He was not urged to move faster. Jackson did not complain about the task nor did he attempt to procure better tools, even though he felt that the pick which he was given was inadequate. He worked at the particular assignment for almost the entire working day, and even though he had "walked off'" the job, Respondent gave him another chance at reporting for work at which time he could have stated his objections to his employer. But Jackson never complained and simply refused to report for work. He admitted that his superiors treated him politely at all times. The fact that Jackson would be working at a lower wage rate at Panscape's headquarters in Muncie than he would have in Indianapolis was in accord with prevailing union wages in the respective locations, and it was not at all unusual for employees in the landscape division to be employed in Muncie rather than Indianapolis. It appears that working at either site would have been expected of all employees at one time or another. The fact that Jackson was temporarily assigned to a job less agreeable than other assignments is perhaps a ground for his dissatisfaction. But the assignment was not so disagreeable, onerous, or intolerable so as to induce him to quit. Montgomery Ward ; 224 NLRB616. 697 DECISIONS OF NATIONAL LABOR RELATIONS BOARD & Co., 160 NLRB 1729, 1742 (1966). For these reasons, I find that the Respondent did not constructively discharge Jackson in violation of Section 8(aX)(1), (3), or (4) of the Act. 6 CONCLUSIONS OF LAW 1. Panscape Corporation, the Respondent, is an em- ployer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local Union 1112, Laborers' International Union of North America, AFL-CIO, is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. 3. By unilaterally adopting a discriminatory rule in the nature of an exclusive hiring hall which limits employment to those who are union members in good standing and who are dispatched by the Union, the Respondent violated Section 8(a)(l) and (3) of the Act. 4. By using the "exclusive hiring hall" procedure as a device in order to refuse employment to David R. Jackson and Richard D. Burton, who were not in good standing with their Union and who had testified in a prior unfair labor practice case, Respondent violated Section 8(a)(1), (3), and (4) of the Act. 5. Any other substantive allegations contained in the complaint or in the brief have not been sustained. THE REMEDY Having found that the Respondent has engaged in unfair labor practices, it will be recommended that Respondent cease and desist therefrom and take certain affirmative action to effectuate the policies of the Act. It having been found that the Respondent failed to rehire David R. Jackson and Richard D. Burton in violation of Section 8(a)(1), (3), and (4) of the Act, the recommended Order will provide that the Respondent offer each reinstatement to his former job, and make each whole for loss of earnings within the meaning 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). Upon the basis of the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I recommend the issuance of the following: " General Counsel's motion to amend the complaint in fn. I of his brief is, therefore, denied. T In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor RelationsBoard, 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. ORDER7 The Respondent, Panscape Corporation, Muncie, India- na, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Failing to rehire or otherwise discriminating against employees in regard to hire or tenure of employment, or any term or condition of employment because of their union or protected concerted activities, or because they gave testimony or filed charges under the Act. (b) Promulgating, adopting, or effectuating a discrimina- tory rule which limits employment to those who are union members in good standing and are dispatched by the Union. (c) In any like 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 David R. Jackson and Richard D. Burton immediate and full reinstatement to their former positions or, if such positions no longer exist, to substantially equivalent positions, without prejudice to their seniority, or other rights previously enjoyed, and make each whole for any loss of pay or other benefits suffered by reason of the discrimination against each 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 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) Post at Respondent's plant at Muncie, Indiana, copies of the attached notice marked "Appendix." 8 Copies of said notice, on forms provided by the Regional Director for Region 25, 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. (d) Notify the Regional Director for Region 25, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 8 In the event that the Board's 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 Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 698