Gurley Refining Co.

38 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD W. M. Gurley, L. M. Gurley, and Betty Gurley, d/b/a Gurley Refining Company and General Drivers, Salesmen, & Warehousemen's Local Union No. 984, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Ware- housemen & Helpers of America. Case 26-CA- 11608 - John Goree, Esq., for the General Counsel. Stephen Biller, Esq. (Heiskell, Donelson, Bearman, Adams, Williams & Kirsch), of Memphis, Tennessee, for the Company. Arthur B. Crutcher, Vice President, of Memphis, Tennes- see, for the Union. DECISION 30 July 1987 DECISION AND ORDER. By CHAIRMAN DOTSON AND MEMBERS STEPHENS AND CRACRAFT On 28 January 1987 Administrative Law Judge William N. Cates issued the attached Decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed a brief in support of the judge's Decision. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the Decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, I and conclusions, to modify his remedy, 2 and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondents, W. M. Gurley, L. M. Gurley, and Betty Gurley, d/b/a Gurley Refining Company, West Memphis, Arkan- sas, its officers, agents, successors, and assigns, shall take the action set forth in the Order. 1 The Respondents have excepted to some of the judge's credibility findings The Board's established policy is not to overrule an administra- tive law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F.2d 362 (3d Cit. 1951) We have carefully examined the record and find no basis for re- versing the findings In agreeing with the judge that the Respondents' personnel manager unlawfully solicited grievances, we rely on the fact that the solicitation was made in an effort to dissuade employee Rains from joining the Union. We do not rely on the judge's reference to the filing of a decerti- fication petition Member Cracraft, who did not participate in Sunnyvale Medical Clinic, 277 NLRB 1217 (1985), finds it unnecessary to rely on that case in adopt- ing the judge's finding that the Respondents violated Sec. 8(a)(1) when Helton interrogated Rains about the Union. 2 In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 (1987), interest will be computed at the "short-term Fed- eral rate", for the underpayment of taxes as set out in the 1986 amend- ment to 26 U.S.C § 6621 Interest on amounts accrued prior to 1 January 1987 shall be computed in accordance with Florida Steel Corp., 231 NLRB 651 (1977) STATEMENT OF THE CASE WILLIAM N. CATES, Administrative Law Judge. This matter was tried in Memphis, Tennessee, on 13 and 14 August 1986.1 The charge was filed on 29 April by Gen- eral Drivers, Salesmen, & Warehousemen's Local Union No. 984, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America (Union). The resulting complaint issued on 23 May was amended during the trial and alleges that W. M. Gurley, L. M. Gurley and Betty Gurley, d/b/a Gurley Refining Company (Company) violated Section 8(a)(1) and (3) of the National Labor Relations Act (Act). More specifically, it is alleged that the Company violated Section 8(a)(1) of the Act about January by in- terrogating its employees concerning their union mem- bership, activities, and sympathies and by soliciting em- ployee complaints and grievances and promising in- creased benefits and improved terms and conditions of employment. Further, it is alleged the Company violated Section 8(a)(1) of the Act about 25 April by removing from employees' lockers union literature distributed by its employees and by informing an employee about 29 April that the employee was being discharged because of his union membership, activities, and sympathies and be- cause of the union membership, activities, and sympa- thies of his fellow employees. Finally, it is alleged the Company violated Section 8(a)(3) and (1) of the Act about 29 April when it suspended its employee John Rains and discharged its employee J. C. Adams because they joined, supported, or assisted the Union and en- gaged in concerted activities for the purpose of collec- tive-bargaining or other mutual aid or protection and in order to discourage employees from engaging in such ac- tivities. I conclude below, after examining the relevant evi- dence and applicable legal principles, that the Company violated the Act substantially as alleged in the complaint. 1. JURISDICTION The Company is a partnership with an office and place of business located in West Memphis, Arkansas, where it is engaged in the wholesale distribution of automotive petroleum products. Annually, the Company in the course and conduct of its business operations sold and shipped from its West Memphis, Arkansas facility prod- ucts, goods, and materials valued in excess of $50,000 di- rectly to points outside the State of Arkansas .2 Addition- 1 All dates hereinafter are in 1986 unless otherwise indicated. 2 I note that the complaint at paragraph 3(a) alleges that the products, goods, and materials were shipped directly to points outside the State of Tennessee I do not find this inadvertent error to impact on the jurisdic- tional findings made herein. 285 NLRB No. 4 GURLEY REFINING CO. 39 ally, the Company purchased and received at' its West Memphis, Arkansas location goods and materials valued in excess of $50,000 directly from points outside the State of Arkansas. The complaint alleges, the Company admits, and I find that it is an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act. It. LABOR ORGANIZATION The complaint alleges, the parries admit, and I find the Union is a labor organization within the meaning of Sec- tion 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background The Company is a partnership that employs approxi- mately 150 employees at its West Memphis, Arkansas fa- cility. The Company has been in the wholesale distribu- tion of automotive lubricants for approximately 25 years. The Company distributes two classes of products. It pur- chases major brands of lubricants in prepackaged con- tainers, such as quart containers of motor oil, and resells the items on a wholesale basis. Secondly, the Company makes bulk purchases of lubricants and then packages and resells the products under its own labels. The Com- pany is divided into certain departments or operations, namely, the warehousing operation, the trucking oper- ation, the administrative staff operation, and the diesel shop operation. The diesel shop operation will be most prominent in the instant case because the alleged viola- tions of the Act pertain to or are involved with the su- pervisor and employees of the diesel shop. At all times material Carl Duncan has been the supervisor of the diesel shop employees. Duncan in turn reports to the president and owner of the Company, Harry Gurley. Other supervisory personnel are Assistant to the Presi- dent and Personnel Manager Raymond E. Helton Jr., Warehousing Supervisor Mario Baratti, and Director of Transportation Don Mulvaney. Alleged discriminatees J. C. Adams and John Rains are or were mechanics in the diesel shop under the supervision of Duncan. The Union has represented the production and mainte- nance employees, warehouse employees, and all over- the-road as well as local truckdrivers of the Company at least since 1978. Business Agent Arthur Crutcher is the official who handles the Union's relations with the Com- pany. On 21 February Kenneth Ferrell, an individual, filed with the Board's Regional Office in Memphis, Ten- nessee, a decertification petition (Case 26-RD-705) and, as a result, an election was held on 11 and 12 April that resulted in 59 employees voting for and 25 employees voting against continued representation by the Union. There were no void or challenged ballots cast. Adams served as an observer for the Union at that election. On 21 April the Board issued a certification of representa- tive. On 25 April the Company removed notices of a union meeting from its employees' lockers. These notices had been placed in the lockers by Rains. On 29 April Rains was given a 3-day suspension for his role in plac- ing the notices in the lockers and on that same date Adams was discharged for borrowing a dolly from the Company. B. The Alleged Interrogation and Solicitation of Grievances by Helton It is alleged at paragraph 7 of the complaint that, in January, Assistant to the President and Personnel Man- ager Helton interrogated employee Rains concerning his union membership, activities, and sympathies and that Helton solicited from Rains any complaints and griev- ances he might have and promised increased benefits and improved terms and conditions of employment in viola- tion of Section 8(a)(1) of the Act. Rains, a 5-year employee of the diesel shop, testified that in January or possibly early February3 Helton ap- proached him in the trailer bay area of the shop where they spoke for 3 or 4 minutes. Other diesel shop mechan- ics were in the area but were not within "earshot" of the conversation. According to Rains, Helton told him that he had heard Rains was going to join the Union and Helton wanted to know why after such a long period of employment he, Rains, would want to do such a thing. Rains told Helton he was tired of the way he and his fellow workers were being treated in the diesel shop and that seemed to be the only thing he could do about it. Helton told Rains he did not really see how it would be in Rains' best interest to do so and added that "changes needed to be made" and the Company was "working on some changes." During the conversation Helton told Rains to do what he thought was right and Rains told Helton he would. Helton had no recollection of any meeting with Rains in January concerning Rains' intentions with respect to the Union. Helton did recall a conversation with Rains in the bay area at the plant that took place sometime earlier than January, even possibly before Thanksgiving or around the first of November 1985. Helton stated, on direct examination, that he spoke with Rains because he had heard a "scuttlebutt rumor" that Rains was tremen- dously upset with the Company and that he, as personnel manager and assistant to the president, wanted to know why. Helton testified Rains said he was upset about the way the mechanics were called out after hours for spe- cial jobs. Helton stated Rains thought the "callouts" should be on a rotating basis rather than by seniority. Helton stated it was Rains who said he was so upset that he was thinking about joining the Union, Helton asserts he told Rains it was Rains' decision and that he should do whatever he thought was best for himself and then added that Rains had been with the Company for a long time and Helton did not see any cause for Rains to join the Union because the issues he raised were, in part, being addressed by the Company. Helton stated he told Rains he could not promise him anything but that the Company tried to address issues as they were raised. Ac- cording to Helton the meeting was "very short," but he did not know if it lasted 3 or 5 minutes. 8 Rains stated he was sure the conversation took place before March when he joined the Union 40 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Rains impressed me' as a witness who was attempting to tell the truth. Accordingly, I credit his testimony, par- ticularly his account of the conversation he had with Helton that he asserts took place in either January or early Feburary. There are several factors that persuade me that my observations regarding Rains' truthfulness are correct. Helton did not deny that a conversation took place in January; he simply stated he could not recall any such conversation. Helton had selective recall at times. He could, for example, recall an earlier conver- sation with Rains, but he could not recall who informed him of the "scuttlebutt" that caused him to have his con- versation with Rains. He could not even recall if the "scuttlebutt" came to his attention from a supervisor or an employee. Helton could not even recall that the "scuttlebutt" he heard involved the possibility that Rains might be considering joining the Union until he was con- fronted with his pretrial Board affidavit. He then ac- knowledged he had stated in his pretrial Board affidavit, dated 13 May, that he had told Rains he had heard Rains was upset about some things to the point of considering joining the Union. Helton, during the trial, recalled the conversation as having been very short, lasting 3 to 5 minutes, "or something like that." However, he acknowl- edged that in his pretrial Board affidavit he had recalled the conversation as having lasted 15 minutes. Simply stated, Helton's recollections are too inaccurate to be re- liable, particularly when they conflict with Rains' ac- count of their conversation. The first question to be considered is did Helton's comments, as testified to by Rains, constitute unlawful interrogation? The Board, in Rossmore House, 269 NLRB 1176 (1984), enfd. sub nom. Hotel & Restaurant Employ- ees Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985), re- iterated its longstanding test of looking at the totality of the circumstances in evaluating whether interrogations violate the Act. The Board, in Rossmore House, above made it clear it was rejecting a per se approach to al- leged interrogations in general and was returning to a case-by-case analysis that took into account the circum- stances surrounding any alleged interrogations and that did not ignore the reality of the workplace. The Board outlined some areas of inquiry that it said may be consid- ered in applying its totality of the circumstances test; but it warned there could be other relevant factors that would need to be considered, and admonished that the factors it did list were not to be mechanically applied in each case. The Board mentioned the background, the nature of the information sought, the identity of the questioner, and the place and method of interrogation as factors to be considered. The Board, in Sunnyvale Medi- cal Clinic, 277 NLRB 1217 (1985), indicated the totality of test circumstances regarding interrogations would be applied even in those situations where the one being questioned was not an open and active supporter of the Union. I am persuaded Helton's questioning of Rains had a reasonable tendency to interfere with, restrain, and coerce him in the exercise of his rights guaranteed by Section 7 of the Act and as such the questioning violated Section 8(a)(1) of the Act. First, Rains was not an open and' active supporter of the Union at the time the conver- sation took place. Second, Helton sought Rains out and initiated the conversation including his stating to Rains that he had heard Rains was considering joining the Union, a comment that Helton knew would likely bring a response from Rains about his union sympathies. Third, there is no showing that Helton and Rains were, or for that matter ever had been, friends such that it might be expected that they would discuss such matters. Fourth, Helton not only wanted to know whether Rains was considering joining the Union or not, but he also wanted to specifically know why a long-term employee like Rains would want to do such a thing. Fifth, Helton was a top-level management official (assistant to the president and personnel manager) who did not supervise Rains on a daily basis. On balance, I am persuaded Helton's ques- tioning of Rains amounted to unlawful interrogation and I so find. Next, I turn to the closer question of whether, as al- leged in the complaint, Helton solicited complaints and grievances from Rains and promised increased benefits and improved terms and conditions of employment to Rains. The solicitation of grievances during an organizational campaign, accompanied by a promise, expressed or im- plied, to remedy such grievances, violates the Act. It is the promise, expressed or implied, to remedy the griev- ances that consititutes the essence of the violation. In Methodist Nursing Home of Enid, 272 NLRB, 34, 36 (1984), it was held that grievance solicitation in the midst of a union campaign inherently constitutes an implied promise to remedy the grievances. See also Houston County Electric Cooperative, 247 NLRB 579, 584 (1980), and the cases cited therein. Turning to the instant facts it is clear Helton wanted to know why Rains would consider joining the Union, and after he learned Rains' reasons involved working conditions in the diesel shop, he told him the Company knew changes needed to be made, and stated the Compa- ny was working on some changes. The implication is clear. Helton was telling Rains he did not need to join the Union, and that his work-related complaints and grievances could and would be corrected by the Compa- ny without his joining the Union. That Helton was solic- iting grievances during a union campaign is without question. Helton's opening comments to Rains were why would he consider joining a union and shortly after the conversation a decertification petition was filed. In sum- mary, I am persuaded Assistant to the President and Per- sonnel Manager Helton, in violation of Section 8(a)(1) of the Act, solicited grievances from employee Rains during an active union campaign and promised to remedy at least some of Rains' grievances. C. The Removal of Union Literature from Employees' Lockers and the Suspension of Employee Rains It is alleged at paragraph 8 of the complaint that the Company about 25 April, acting through its local driv- ers' supervisor, W. J. Flynn, removed from employee lockers union literature distributed by its employees. GURLEY REFINING CO. The Company admits Flynn removed union literature from its employees' lockers pursuant to instructions from a top-level manager at the Company. It is alleged at paragraph 10(a) of the complaint that about 29 April, the Company suspended (for 3 days) its employee Rains. The Company admits Rains was suspended for his role in placing union literature in the employees' lockers; however, it denies its actions violated Section 8(a)(3) and (1) of the Act. Rains testified he took his afternoon break on Friday, 25 April, a little later than the other shop employees, be- cause he was busy on a particular job.4 Rains stated that by the time he arrived in the break area the other shop workers were already seated around the break table. Rains testified that someone (not further identified) brought him some handbills5 and he gave a copy to ev- eryone at the break table. Rains then left the break table and went to his toolbox where he folded copies of the handbills and then placed one copy in each of the dnv- ers' lockers by slipping them through the ventilating holes in the top of the lockers. Rains said he did this im- mediately after his fellow shopworkers returned the break table to the place where it was supposed to be and left the area. Rains stated that after he 'finished placing the handbills in the lockers he got a drink of water and returned to work. Rains stated lie "absolutely" felt he placed the handbills in the lockers during his breaktime because he started his break later than his fellow shop- workers on the day in question and he added he was only on break for 10 to possibly 12 minutes at most.7 Rains stated he had never heard of any rule prohibiting the distribution of literature. Rains said he had in the past placed materials such as notes about vehicle repairs in the drivers' lockers.8 4 Supervisor Duncan testified shop employees could take their break tunes whenever it was convenient so long as they did not make a habit of doing so Duncan stated that if an employee had a particular job to work on and could finish it within 10 to 15 minutes, that employee could finish the job the employee was doing before taking a break if the employee chase to do so. Shop employees do not clock out for breaktimes s The handbills, a copy of which was received in evidence, reads as follows: UNION MEETING ALL EMPLOYEES OF GURLEY OIL COMPANY WHO ARE MEMBERS OR POTENTIAL MEMBERS OF TEAMSTERS LOCAL 984. This chair is reserved for You Saturday Date May 3, 1986 Time. 10 A.M. Place. Union Hall, 3020 Sandbrook St. Agenda: To discuss reconvening of negotiations Arthur B. Crutcher Vice-President [G C Exh 7] Rams did not know how many lockers there were, but he estimated he placed approximately 25 to 30 handbills in employee lockers. 7 Supervisor Duncan stated that although the contract called for a 10- numute break, the practice for the shop employees was to take 10 to 15 minutes without any repercussions, but he added the Company treed to keep breaktimes to 10 minutes. S Adams testified he had placed notes in various drivers' lockers on different occasions He stated, for example, he had left notes to drivers when he had been working on their privately owned automobiles and when he wanted them to bring him fresh fruit from the State of Florida. Adams stated that when the drivers' wives or fellow drivers called in with or left messages he placed them in the drivers' lockers Adams testi- fied Supervisor Duncan had even instructed him to leave notes on certain occasions for certain drivers 41 Assistant to the President and Personnel Manager Helton testified he was informed by Supervisor Flynn in a telephone conversation on Friday, 25 April, that Rains had placed union notices in the truckdrivers' lockers. Helton stated Flynn called him at home to report the in- cident. Helton said Flynn told him he had heard from someone (not further identified) that Rains had placed the handbills in the drivers' lockers. Flynn had not per- sonally observed Rains do so. Helton stated he did not believe Flynn knew what time Rains had placed the handbills in the lockers. Helton instructed Flynn to remove all union literature from the drivers' lockers. Flynn carried out Helton's instructions.9 Helton testified he discussed the handbilhng incident with Supervisor Duncan during the morning hours on Monday, 28 April. i 0 Helton stated a tentative decision was made during their meeting to give Rains a 3-day sus- pension for placing the union literature in the drivers' lockers. Helton told Duncan to suspend Rains for 3 days beginning on Tuesday, i 1 29 April, unless Rains denied placing the notices in the lockers. If Rains denied placing the notices in the lockers, Helton would ask Duncan to hold up suspending him until Helton and Duncan could discuss the matter further. Helton stated he made the ul- timate decision to give Rains the 3-day suspension and that he did so solely because Rains placed union notices in the drivers' lockers. 12 Helton stated Rains' actions violated sections 3.5 and 13.5 of the recently expired col- lective-bargaining agreement with the Union. Duncan and Rains met at the beginning of the work shift on 29 April. Their testimony regarding the meeting differed in some respects. Rains testified he could not find his timecard and that Duncan asked him to come to his office for a meeting, According to Rains13 Duncan began the meeting by saying he could not let Rains go to work because he was going to have to suspend him for 3 days. Duncan then handed Rains a letter to that effect.14 Rains stated 9 Helton testified Flynn later gave him about 37 handbills that he had collected from the drivers' lockers The handbills collected were identical to the one described in fn 5 is Helton had not spoken to Duncan about Rains prior to that tune. L' Rains did not work on Sundays and Mondays 13 Helton acknowledged he stated in his pretrial Board affidavit given on 13 May that he and Duncan felt Rains had to walk off his job to place the handbills in the lockers and as a result they decided his discipline had to be more severe than a written warning but less than discharge, so they decided on a suspension Helton acknowledged he did not know what time Rains had placed the notices in the drivers' lockers and added he did not attempt to ascertain that information. 13 Rains was somewhat confused at times in his trial testimony, how- ever, he stated he would stand by what was set forth in his pretrial Board affidavit I have carefully considered all aspects of Rants' testimony in evaluating his credibility 14 The suspension letter Duncan gave Rains reads in pertinent part as follows (Rains' name is spelled "Raines" in this letter) Dear Mr. Raines: On April 25, 1986, without authorization from the Company, you placed union notices in the lockers of the drivers. This is a violation of our now expired contract (Section 3 4(a) and Section 13 5) As a result you are hereby suspended without pay for three (3) days You should report for work at your regular starting time on Friday, May 2, 1986 Any further violation of this contract (expired) will result in your immediate discharge. Continued 42 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Duncan told him the suspension letter came from "up front," and that he did not have anything to do,with it. Duncan told Rains he was suspended because he distrib- uted union literature without permission. Rains told Duncan that if he thought it would have created any problems he would not have done it. Rains asserts Duncan told him Rains was getting into something that would only create problems.15 Rains then told Duncan that if the employees ever had problems in the past and if they tried to talk with Duncan about the problems he would turn a deaf ear on them. Duncan testified he met with Rains, and: I told him that it had been brought to my attention by Mr. Helton, that he had distributed union litera- ture during work, into the lockers of the drivers, and that we felt we'd suspend him for three days. Duncan stated Rains responded: "Well, if I had known it was going to cause all of this trouble, I never would have done it. No one ever told me that I couldn't." Duncan said he did not ask Rains what time he had dis- tributed the union literature. Duncan asked Rains if he wanted a witness to be present when he signed for his 3- day suspension. According to Duncan, Rains said, "no" that he would take the matter up with a representative of the Union. Duncan testified he did not know of any written rule or policy in effect at the time he gave Rains the 3-day suspension that would have prohibited him from distrib- uting literature. Duncan denied saying anything to Rains about his get- ting involved in matters that,could only create problems and he also denied telling Rains the front office had made the decision to discipline him. Duncan, however, acknowledged the letter given Rains was prepared by Helton in the front office.16 The two sections (3.4(a) and 13.5) of the recently ex- pired collective-bargaining agreement referred to in Rains' suspension letter reads as follows: Section 3.4 Discharge. (a) The Company shall not discharge nor suspend any employee having seniority without proper cause, but in respect to discharge shall give at least one (1) warning notice of the complaint against such employee to the employee, in-writing, except- ing that no warning notice need be given to an em- ployee before discharge if the cause of such dis- i r> Rants stated Duncan did not explain what he meant by that remark 14 I credit Runs account of his suspension meeting with Duncan Al- though Rains seemed somewhat confused regarding what was said at the meeting, I am persuaded his confusion was honest and not caused by any deliberate attempt to fabucate facts I am persuaded on the basis of his demeanor and the full record that Duncan was not completely candid in his version of his meeting with Rains as well as his testimony on other matters Duncan at times was argumentative, while at other times he con- tended certain facts were left out of his pretrial Board affidavit by the Board agent taking the statement rather than by his failure to tell the agent about those certain facts Simply stated, I did not find Duncan to be a candid or completely honest witness Therefore I have not credited his testimony when it conflicted with that of other witnesses charge is: dishonesty; drinking of, being in posses- sion of (or having on his equipment), or being under the influence of alcohol or narcotics or a "con- trolled substance" while on Company property; recklessness resulting in accident while on duty; carrying of unauthorized passengers ; failure to report an accident or injury; gross negligence re- sulting in significant accident, destruction of Com- pany property, or product loss; threatening another employee or fighting; deliberate failure or refusal to follow instructions or supervision; or other viola- tions of reasonable conduct of similar severity. (See also Section 5.1) Section 13.5. Union Notices. Appropriate Union notices concerning Union meetings or elections may be posted on a Company bulletin board designed for that purpose. Prior to the posting of any such notice, a copy of it shall be furnished to the Compa- ny for its approval. Assistant to the President and Personnel Manager Helton testified, as an adverse witness for the General Counsel, that there were no rules prohibiting the distri- bution of literature, but he contended two sections of the recently expired collective-bargaining agreement covered that subject matter. He testified that, in his opinion, sec- tion 13.5 (set forth above) as well as section 3.5 (set forth below) prohibited the distribution of literature. Section 3.5 reads as follows: Section 3.5. Stewards. The Company recognizes the right 'of the Union to designate Stewards and Alternates from the Company's seniority list. All grievance discussions and investigation shall be han- dled in a manner which does not interfere with pro- duction. When handled during working hours, a Steward shall not leave his work station without the prior permission of his supervisor. Helton stated that his opinion that the above provisions of the recently expired collective-bargaining agreement covered the type of situation herein was supported by precedent. Helton testified that approximately 2-1/2 years ago (prior to his employment with the Company) an employee attempted to solicit signatures for a referen- dum that pertained to the city of West Memphis, Arkan- sas, but was denied permission to do so "during working hours." However, in this regard Helton stated, while still testifying as an adverse witness for the General Counsel, that there were no rules that prohibited employees from distributing literature of any type, including union litera- ture, on their break or lunchtimes. 117 After having testified as outlined above, Helton stated, in response to questions by company counsel, that the Company had never allowed literature to be distributed at the plant because of the restrictions of section 13.5 of the recently expired collective-bargaining agreement and that the restrictions of the collective-bargaining agree- 17 Helton acknowledged he knew of no incident other than the one involving Rains where an employee was disciplined for distributing union literature at the plant GURLEY REFINING CO. 43 meat applied to all employees regardless of the nature of the literature being distributed and regardless of whether it was during work, lunch, and/or breaktimes, or in working areas. Helton then contended on cross-examina- tion that what he had said during his testimony as an ad- verse witness for the General Counsel was that the distri- bution of literature during break and lunchtimes was re- stricted by section 13.5 of the recently expired collec- tive-bargaining agreement. Further, on cross-examina- tion, Helton acknowledged the employees were never told they could not distribute union literature at the Company, that the employees were expected to glean that from the parties' recently expired collective-bargain- ing agreement. With respect to Helton's testimony, I am convinced it cannot be regarded as wholly trustworthy, accurate, or reliable. Helton gave contradictory testimony, especially regarding whether the Company had any rule against the distribution of literature. Helton seemed-particularly anx- ious, in response to questions by company counsel, to answer in a manner most favorable to the Company and in support of his own actions and perceived interests without regard for accuracy. In light of all the record testimony, I am persuaded Helton's statement to the General Counsel that the Company did not have any prohibition against the distribution of union literature on lunch and breaktimes is accurate. Such a finding is sup- ported by Duncan's and Rains' testimony that they did not know of any prohibition against the distribution of literature. Furthermore, such a finding is supported by the uncontradicted testimony of Union Vice President and Business Agent Crutcher that he and employee Duckworth had, in early 1986, handed out union litera- ture in the warehouse area in the presence of Warehouse Supervisor Baratti. The Company's assertion that the most recently ex- pired collective-bargaining agreement prohibited the dis- tribution of literature is patently without merit. The rule referred to in the collective-bargaining agreement by its clear language pertains to the posting of union related notices on a company-provided bulletin board. The lan- guage simply states that notices may be posted on the company-provided bulletin board if they are cleared through the Company first. Absolutely no mention is made about the distribution of literature. Furthermore, no reasonable reading of that provision of the recently expired collective-bargaining agreement could lead to an interpretation that employees had to get approval of the Company to distribute literature on company premises. After carefully evaluating all the facts, I am persuaded the General Counsel has made a prima facie showing suf- ficient to, support the inference that protected conduct was a motivating factor in the Company's decision to discipline Rains by suspending him without pay for 3 days because he placed union literature in employees' lockers, Wright Line, 251 NLRB 1083 (1980), enfd, 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in NLRB v. Transportation Management Corp., 462 U.S. 393, 400-403 (1983). First the Company learned in January or February that Rains was so dissatisfied with working conditions at the Company that he felt going to the Union was the only way to obtain relief. Rains was told by Helton he did not see how it would-be in Rains' best interest to join, the Union. A few weeks later Rains distributed union literature on his breaktime and was promptly suspended for doing so. The literature was retrieved from the employees' lockers, at the direc- tion of Helton, at a time when Rains' immediate supervi- sor did not even know of any rule-that prohibited distri- bution of the type Rains had done. The Company's knowledge of Rains' union sentiments, which knowledge it obtained in violation of the Act, coupled with the fact it had no rule against distribution, taken in conjunction with the timing of Rains' discipline, clearly'establishes a prima facie showing of unlawfully motivated action on the part of the Company in disciplining Rains. The Com- pany failed to establish it would have taken the same action it did in the absence of Rains' protected conduct. First, the Company's contention that Rains actions vio- lated certain provisions of the recently expired collec- tive-bargaining agreement is patently without merit. The specific provisions the Company contends Rains violated pertains to the posting of union literature on a company- provided bulletin board and does not address or pertain to the distribution of literature. That the distribution of literature incident was seized on by the Company as an excuse to punish Rains for his union sentiments is clear from the testimony of Rains' immediate supervisor stat- ing that he did not know of any written rule that prohib- ited what Rains did. Even Assistant to the, President and Personnel Manager Helton, the official ultimately, respon- sible for the decision to discipline Rains, first (and on that point truthfully) testified he knew of no rule that prohibited the distribution of union literature on employ- ees' break or lunchtimes. The evidence is persuasive that Rains distributed the literature in question on his break- time, a fact the Company made no effort to ascertain at the time it decided to discipline him. Furthermore, no other employee has ever been disciplined for any such offense even though employee Duckworth had, prior to the incident involving Rains, distributed union literature in the plant in the presence of warehouse Supervisor Baratti. Accordingly,\I find as alleged in the complaint, that the Company violated Section 8(a)(3) and (1) of the Act when about 29 April it suspended its employee Rains for 3 days without pay in order to discourage his and other employees' membership in the Union. Additionally, the Board has held that the confiscation of union literature left in or around an employer's facili- ty, for example, on a tool cabinent or table, constituted interference with employees' Section 7 rights in violation of Section 8(a)(1) of the Act if the employer did not have a written policy or established practice of removing such nonwork-related literature from its premises. See Photo-Sonics, Inc.; 254 NLRB 567 (1981), and Mississippi Chemical Corp., 280 NLRB 413, 419 (1986). The Board's holdings in those cases compel a finding that Helton's in- structions to Flynn in the instant case to remove the union notices from the employees' lockers was unlawful. The Company had no written policy prohibiting the ex- istence or distribution of union literature or nonwork re- lated materials in the plant. In fact it is clear the Compa- 44 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ny knew of and condoned the leaving of nonwork-relat- ed notes in the employees' lockers. In light of the Com- pany's other conduct herein found to be violative of the Act, I am persuaded and find Helton caused the litera- ture in question to be removed from the employees' lock- ers simply because it involved union matters. According- ly, I find such action to constitute a violation of Section 8(a)(1) of the Act. D The Events Leading up to and the Discharge of Adams It is alleged at paragraph 9 of the complaint that the Company through its supervisor/agent Duncan about 29 April, in violation of Section 8(a)(1) of the Act, informed employee Adams that he was being discharged because of his union membership, activities, and sympathies. Ad- ditionally, it is alleged at paragraph 10 of the complaint that the Company, about that same date, in violation of Section 8(a)(3) and (1) of the Act, discharged Adams in order to discourage his and others' membership in the Union The Company contends it discharged Adams solely for borrowing company property without permission after having been twice warned about doing so. It is acknowledged that Adams borrowed a two- wheeled dolly at the Company immediately prior to his discharge. There, however, exists a dispute regarding the ownership of the dolly and whether ithe Company had a policy related to borrowing its equipment and whether that policy was followed on the occasion in question. Adams worked for the Company from May 1980 until his 29 April discharge as a mechanic in the diesel shop under the supervision of Duncan i 8 Adams has been a member of the Union since 1984 and at applicable times has had his union dues deducted from his pay by the Company. In February t 9 Adams became a union stew- ard for a short period of time.20 At the time Adams became union steward there was only one other employ- ee in the diesel shop who was a member of the Union. Adams talked to the other shop employees telling them they needed to join the Union so they could have a better place to work. Adams asserts all the Diesel Shop employees joined the Union in late March prior to the decertification election that was held in early April. Adams served as an observer for the Union at the decer- tification election. Adams testified that about 4 years agog i he needed to borrow some company tools Adams asked Duncan if it would be all right to take company tools home and use them on his days off. Duncan told Adams he was not going to be hard to get along with, that he could borrow tools so long as he took care of and assumed responsibil- ity for them 22 Adams testified Duncan told him "Any- time you need [to borrow] anything, just let me know" and "if [he was] not around [to] tell somebody else in the shop so that we will know where [the tools are] at." Adams stated he always told Duncan when he was bor- rowing tools, if Duncan was around, and if he was not he always told a fellow worker Adams also stated that when he returned tools he always told Duncan he was doing so Rains corroborated Adams testimony regarding the policy for borrowing company tools for personal use. Rains asserted he had borrowed tools pursuant to that poliCy.23 Duncan testified employees could borrow company tools only with his permission He denied he ever told Adams, Rains, or any other employee that if he was not around to give his permission to borrow tools that they should just tell each other they had done so Duncan stated that, as a matter of fact, he had never either orally or in writing mentioned anything to the shop employees about borrowing company tools. I credit the mutually corroborative testimony of Rains and Adams regarding the Company's policy on employ- ees borrowing company tools for personal use.24 It is not disputed that prior to Adams' discharge Duncan met twice with at least some, if not all, of the shop employees at which meetings he discussed remov- ing company property from the Company's premises. According to Rains the first such meeting took place sometime in late 1985 when Duncan met briefly with the diesel shop employees and told them not to take Compa- ny property for any reason. According to Adams, Duncan told the employees not to take any boxes, bar- rels, antifreeze jugs, or things like that away from the Company All agree the subject of borrowing tools was not discussed at this or any other meetings. Duncan testified he observed Adams placing antifreeze boxes in his privately owned truck Duncan asserts he and Director of Transportation Mulvaney walked to Adams' truck and: I told him that he couldn't take those boxes out, off the premises, that belonged to the company. For 18 It is not disputed that Adams was a good worker and that his job performance played no part in his discharge 19 Adams testified Union Business Agent Crutcher told him he would inform the Company that Adams was the union steward for the diesel shop Adams testified Duncan informed him in March that Adams was the union steward and would be on the negotiating committee for the Union Duncan denied telling Adams any such thing, however, for rea- sons more fully discussed eleswhere in this decision, I did not find Duncan to be a credible witness and as such I do not credit his dental 20 Adams stated he prevailed on fellow worker Rains to become the union steward instead of himself because Rains was "a young man who talked good and everything " Adams stated he did not express himself well and asserted his vocabulary was limited 21 Duncan testified he began his employment with the Company in 1982 22 Adams testified he, from time to time, borrowed drills, metal grind- ers, and other tools from the Company 23 It appears shop employees, from time to time, loaned their personal tools to the Company For example, Rains testified he had loaned torque wrenches, shop manuals, gear pullers, and cylinder hones to the Compa- ny 24 I am persuaded that on this, as well as other matters, Duncan did not testify truthfully I note no employees were called to refute Rains' and Adams' testimony regarding the Company's policy on borrowing tools, nor were any employees called to corroborate Duncan's version of the policy Furthermore, it is undisputed that former employee Pace bor- rowed a company power saw for almost a week in the fall of 1985 and Duncan did not know anything about it until he was asked where the saw was There is no indication any action was ever taken against Pace for borrowing the Company's power saw without Duncan's explicit per- mission GURLEY REFINING CO. 45 him to either return them, or I'd either have to ter- minate him. So, he carried the boxes back inside the house, or into the shop rather. Director of Transportation Mulvaney testified Duncan simply asked Adams what he was doing - and when Adams told him he was taking some boxes home Duncan told him the boxes were company property and that he should return them to the shop, which Adams did. Mul- vaney stated there was no mention made of Adams being discharged. Adams could not recall Duncan ever telling him to get the boxes out of his truck or be fired, nor could he recall anything similar to that ever having been said. Duncan was confronted with his pretrial Board affi- davit dated 13 May in which he had described the above incident, and he acknowledged he had not made any mention in his affidavit of telling Adams to return the boxes or be terminated. Duncan explained that he "just failed to put it in [his] affidavit." I am persuaded there is nothing in Duncan's affidavit about his telling Adams he would be terminated if he did not return the boxes be- cause Duncan did not make any such comment to Adams. I am likewise persuaded that is the reason Mul- vaney and Adams did not hear or could not recall Duncan saying anything about having to terminate Adams if Adams did not return the boxes in question. I am convinced Duncan's asserted statement about having to terminate Adams if he did not return the boxes was a post hoc misstatement of fact on Duncan 's part. In sum- mary, all Duncan told Adams was to return the boxes, to the diesel shop, which Adams did. Nothing else was said and no disciplinary action was taken against Adams for the incident. Duncan thereafter did conduct a second meeting with the diesel shop employees. He told them, "Do not take anything, a box, a carton, shop towel, or anything else off the premises, that belongs to the Company." Duncan stated he did not say anything in the meeting about any procedure for borrowing Company tools. Adams testified he was scheduled to attend an air-con- ditioning class on Tuesday, 29 April, rather than report to work at the diesel shop.25 Duncan called `Adams at home that morning and told him to come to the shop rather than to attend the air-conditioning class because the Company was "swamped" with work. When Adams arrived at work Duncan asked him if he had "the shop's two wheeler" and did he bring it back to the shop. Adams told Duncan he did not have the,shop's two wheeler, that he had borrowed one that belonged to a truckdriver and would bring it back to the shop the next day. Duncan told Adams they were going to need the dolly that day and asked if he would mind taking a com- pany truck to his home to get the dolly. Adams did as requested.26 After placing the dolly against a wall in the diesel shop, Adams started to go to work when Duncan told him he wanted to see him in his office. Duncan told Adams he was going to have to let him go. Adams asked why and Duncan handed him a letter saying, "This will 25 Adams was not regularly scheduled to work on Sundays and Mon- days 26 Adams lives closeby the shop. It took him approximately 10 minutes to go to his home, obtain the dolly, and bring it back to the shop explain it." The letter Duncan gave Adams reads as fol- lows: Dear Mr. Adams: You have been recently instructed to not remove any company property from the premises of Gurley Refining Company. You recently took a 2-wheel dolly for personal use without authorization from the Company. Such removal of Company property is strictly prohibited and, as a result, you are dis- charged (effective 4-29-86) under Section 3.4(a)27 Discharge of our now expired contract. Sincerely, -Carl Duncan Adams told Duncan he had not used company property without permission. Duncan replied, "Well, you've used the company two-wheeler for the past two weekends without my permission." Adams told Duncan he had not, that he had used a two-wheeler that belonged to one of the drivers at the Company, that the "company['s] 2- wheeler was a little red metal [one] with . . . thin wheels," whereas the one he borrowed had an aluminum body with "balloon tires." Adams told Duncan he had informed Charlie Orman and Rains, as he had always done, that3,he had borrowed the dolly. Adams told Duncan he had- notified Orman so that if the owner of the dolly came looking for it Orman could--tell the driver who had it and Adams could bring it in to the driver.2a Adams then took Duncan to the dolly and showed him how it differed from the dollies owned by the Company. Adams said when he showed Duncan the difference in the two dollies that Duncan hesitated and then stated, "Well, all this union business, you know, all this trouble we're having, I've got to let you go. This came from the front office."29 Adams told Duncan, "Okay" and did not say anything more to him at that time. It is not disputed that Adams borrowed the dolly, in question for, the weekend of 19 April.30 Adams credibly testified he returned the dolly to the shop on ,Tuesday, 22 April, and that he did so in Duncan's presence. Adams stated he even had to ask Duncan to step out of the doorway so he could get the dolly into the shop area that morning. Duncan testified he looked for the dolly on Wednes- day, 23 April, but could not locate it. Duncan was not at the plant on Friday or Saturday, 25 and 26 April. 27 Sec . 3.4(a) of the recently expired collective-bargaining agreement between the parties is set forth in full elsewhere in this decision. 211 It is undisputed that the truckdrivers at the Company have to pro- vide their own dollies at their own expense. 2s Duncan denied making the above comment but acknowledged the dismissal letter he gave Adams was drafted by Assistant to the President and Personnel Manager Helton. Helton stated he drafted all dismissal let- ters As has been discussed elsewhere in this decision , I did not find Duncan to be a credible witness and as such I discredit his denial re- ferred to above so Adams borrowed that same dolly in the winter of 1985 and on that occasion he told his fellow shop workers he had the dolly Adams stated he normally borrowed the dolly on Saturdays for use at his home during the weekend and added Duncan was generally not at the shop on Satur- days therefore he could not tell him he was borrowing the dolly. 46 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Adams again borrowed the dolly on 26 April. On Sunday, 27 April, shop employee Orman told Duncan Adams had borrowed the dolly. Duncan met with Assistant to the President and Per- sonnel Manager Helton on Monday, 28 April, and told him he had a situation that needed looking into. Duncan told Helton Adams had borrowed a company dolly with- out permission, that he had needed the dolly during the week, had looked for it, but had been unable to find it. Duncan and Helton decided to terminate Adams. Ac- cording to both Duncan and Helton, Adams' termination was based solely on his having borrowed company prop- erty without permission. Duncan even stated that if the dolly Adams borrowed had not been company property Adams would not have been discharged.31 I find the General -Counsel has made a prima facie showing sufficient to support the inference that protected conduct was a motivating factor in the Company's deci- sion to terminate Adams. Adams was a long-term em- ployee with a good work record. He became very active for the Union shortly before he was discharged. The es- tablished facts demonstrate the Company, Supervisor Duncan in particular, knew Adams had recently been designated steward for the diesel shop employees. Prior to Adams becoming shop steward there was only one other shop employee who belonged to the Union. Adams successfully encouraged all the other diesel shop employ- ees to join the Union and he served as an observer for the Union at the Board-conducted decertification elec- tion held on 11 and 12 April. The Company received the Board's Certification of Representative dated 21 April and on 29 April discharged Adams. Adams' increased union activities, the Company's knowledge of at least some of those activities, namely, his being appointed 31 The Company, at some length, attempted to establish its ownership of the dolly in question Company Director of Transportation Mulvaney testified that one of the Company's truckdrivers informed him in August 1985_ that he had mistakenly taken the dolly in question from a customer of the Company while he was making a delivery to the customer Mul- vaney stated that after some telephone discussions with the customer the Company agreed to purchase the dolly from the customer Mulvaney stated the customer billed the Company for the dolly in November 1985. Mulvaney stated that after receiving the billing he submitted it to the Company's accounting department for payment Assistant to the Presi- dent and Personnel Manager Helton identified a company check (R Exh. 5) dated 19 May, which check was payable to the customer from whom the dolly was allegedly taken. The description of the check indicates it was payment for "tr repairs." Helton refused to speculate as to whether the "tr. repairs" stood for "truck repairs," "tire repairs," or something else. I am convinced the evidence, even in a light most favorable to the Company, does not establish it owned or owns the dolly in question First, the dolly was brought to the Company by a truckdriver, and it is acknowledged that truckdnvers are required to furnish their own dollies Second, the dolly is not the same wheel type as that used by the Compa- ny. Third, the evidence that the dolly was purchased by the Company is highly suspect because the alleged payment for the dolly was not made until after the charge in the instant case was filed and after the Compa- ny's witnesses had given sworn statements to the Board It appears the Board took sworn statements from the Company's witnesses on 13 May. Finally, the claimed payment reflects it was for "tr. repairs," which would seem to be a very odd way to label a payment in full for a two- wheeled dolly if that is what the payment was for. In light of all the above, I find the ownership of the dolly in question has not been estab- lished on this record. I do not find the failure to establish the ownership of the dolly to significantly impact on the outcome of the instant case inasmuch as there is ample other evidence on which to base the findings I have made. shop steward, and his serving as an observer for the Union coupled with the timing of his discharge, clearly gives rise to an inference that protected conduct was a motivating factor in the Company's decision to discharge him. Further evidence that the Company was unlawfully motivated in its decision to discharge Adams is evi- denced by Duncan's statement to Adams at the time of his discharge that it was related to all the union business and trouble the Company had been having.32 even fur- ther evidence of the Company's unlawful motivation is demonstrated by its failure to follow a requirement of the provision of the expired collective-bargaining agree- ment that it contends it discharged Adams pursuant to. The provision of the expired collective-bargaining agree- ment in question calls for an employee to be given a written warning (with certain exceptions not applicable herein) prior to the employee being discharged. The Company did not follow nor did it explain its failure to follow that requirement of the expired collective-bargain- ing agreement when it discharged Adams. Having found the General Counsel has established a prima facie case, I turn to the second inquiry that must be made in cases that turn on an employer's motivation for its conduct, namely, whether the company has rebutted the General Counsel's prima facie showing of a violation of the Act. I find it has not. It failed to demonstrate it would have taken the same action it did even in the absence of any protected conduct on the part of Adams. The established facts conclusively demonstrate the Company had an in- formal policy of permitting its employees to borrow company-owned tools for their personal use so long as the employees informed Supervisor Duncan, or in his ab- sence someone in the shop, that they were borrowing tools. This informal practice had been followed at least by employees Pace, Rains, and even Adams in 1985 without any disciplinary action being taken against them. It appears the only intervening factor in the current situ- ation involving Adams was his increased union activities. Neither Adams nor any other employee had been noti- fied of any changes in the Company's informal policy re- garding borrowing tools prior to Adams' discharge. The two meetings Duncan held with employees prior to Adams' discharge pertained to employees removing com- pany property (primarily scrap materials) from the Com- pany's premises without permission. The two meetings did not pertain to employees borrowing company tools. Inasmuch as I have found the General Counsel has es- tablished a prima facie showing that the Company was unlawfully motivated in its decision to discharge Adams, and inasmuch as I have concluded it failed to establish it would have discharged him even in the absence of his protected conduct, I find it has violated Section 8(a)(3) and-(1) of the Act by discharging him on 29 April. CONCLUSIONS OF LAW 1. W. M. Gurley, L. M. Gurley, and Betty Gurley, d/b/a Gurley Refining Company is an employer engaged 32 I find as alleged in the complaint that Duncan's statement consti- tutes a violation of Sec 8(a)(1) of the Act in that Duncan informed Adams he was being discharged because of his union membership, activi- ties, and sympathies. GURLEY REFINING CO. in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. General Drivers, Salesmen, & Warehousemen's Local Union No. 984, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America is a labor' organization within the meaning of Section 2(5) of the Act. 3. By engaging in the following conduct the Company committed unfair labor practices in violation of Section 8(a)(1) of the Act. (a) By in January interrogating its employees concern- ing their union membership, activities, and desires. (b) By in January soliciting employee complaints and grievances and by promising its employees increased benefits and improved terms and conditions of employe- ment. (c) By about 25 April removing union literature from its employees' lockers. (d) By about 29 April informing an employee that the employee was being discharged because of his union membership, activities, and sympathies. 4. By discharging its employee J. C. Adams on 29 April in order to discourage his membership in the Union, the Company violated Section 8(a)(3) and (1) of the Act. 5. By suspending for 3 days effective 29 April its em- ployee John Rains in order to discourage his membership in, and activities on behalf of, and sympathies for the Union, the Company violated Section 8(a)(3) and (1) of the Act. 6. The unfair labor practices set forth above are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that the Company has engaged in cer- tain unfair labor practices, I find it necessary to order it to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. It having been found that the Company discriminatori- ly discharged its employee J. C. Adams, I shall recom- mend that it be ordered to offer Adams full reinstatement to his former position or substantially equivalent position of employment without prejudice to his seniority or other rights and make him whole for any loss of pay he may have suffered by reason of the discrimination against him, with interest. Backpay shall be computed in accordance with F. W. Woolworth Co., 90 NLRB 289 (1950). Interest shall be computed as prescribed in Flori- da Steel Corp., 231 NLRB 651 (1977). See, generally, Isis Plumbing Co., 138 NLRB 716 (1962). Further, it is rec- ommended the Company be ordered to remove from its files any reference to its 29 April discharge of Adams and notify him in writing that this has been done and that evidence of his unlawful discharge will not be used as a basis for future personnel actions against him. See Sterling Sugars, 261 NLRB 472 (1982). It also having been found that the Company unlawfully suspended for 3 days its employee John Rains, I will recommend that it be ordered to make him whole for any loss of wages or other rights and benefits he may have suffered as a result of the discrimination against him. Any backpay owed 47 Rains will be computed in the manner set forth above. Likewise, it is recommended that the Company be or- dered to expunge from its files any reference to its 3-day suspension of Rains and that it notify him in writing that this has been done and that evidence of his unlawful sus- pension will not be used as a basis for any future person- nel actions against him. Finally, it is recommended that the Company be ordered to post a notice to employees attached hereto as "Appendix" for a period of 60 days in order that employees may be apprised of their rights under the Act and the Company's obligation to remedy its unfair labor practices.33 On these fmdings of fact and conclusions of law and on the entire record, I issue the following recommend- ed34 ORDER The Company, W. M. Gurley, L. M. Gurley, Betty Gurley, d/b/a Gurley Refining Company, West Mem- phis, Arkansas, its officers, agents, successors, and as- signs, shall 1. Cease and desist from (a) Discharging, suspending, or otherwise discriminat- ing against any employee for supporting General Driv- ers, Salesmen, & Warehousemen's, Local Union No. 984, affiliated with the International Brotherhood of Team- sters, Chauffeurs, Warehousemen & Helpers of America or any other labor organization. (b) Coercively interrogating any employee regarding the employee's union membership, activities, and sympa- thies. (c) Soliciting employee complaints and grievances and promising to remedy them. (d) Interfering with employee activities on behalf of the Union or any other labor organization by removing notices of union meetings from employees' lockers. (e) Informing employees they are being discharged be- cause of their union membership, activities, and sympa- thies. (f) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Offer J. C. Adams immediate and full reinstate- ment to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights or privileges previously enjoyed, and make him whole for any loss of earnings and other benefits suffered as a result of the discrimina- 3' The General Counsel has requested that my recommended remedy include a visitatonal clause authorizing the Board to engage in discovery under the Federal Rules of Civil Procedure so that it may be able to monitor compliance with the Board's Order I am persuaded that such a remedy is not necessary in the instant case Accordingly, I deny the Gen- eral Counsel's request for such a remedy s'' If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses. 48 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD tion against him in the manner set forth in the remedy section of the decision. (b) Remove from its files any reference to the unlawful discharges and notify the employees in wasting that this has been done and that the discharge will not be used against him in any way. (c) Make John Rains whole for any loss of earnings he may have suffered by reason of the discrimination against him in the manner set forth in the remedy section of this decision. (d) Remove from its files any reference to the 3-day suspension of its employee John Rains, and notify him in writing that this has been done and that evidence of his unlawful suspension will not be used as a basis for any future personnel actions against him. (e) Preserve and, on 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 nec- essary to analyze the amount of backpay due under the terms of this Order. (f) Post at at its West Memphis, Arkansas facility copies of the attached notice marked "Appendix."35 Copies of the notice, on forms provided by the Regional Director for Region 26, after being signed by the Re- spondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respond- ent to ensure that the notices are not altered, defaced, or covered by any other material. (g) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 3s If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National LaborRelations Board " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protec- tion To choose not to engage in any of these protect- ed concerted activities. WE WILL NOT suspend, discharge, or otherwise dis- criminate against any employees because of that employ- ee's union activity. WE WILL NOT interrogate employees regarding their union membership, activities, and sympathies. WE WILL NOT solicit complaints and grievances from our employees and promise to remedy them. WE WILL NOT interfere with our employees' activities on behalf of General Drivers, Salesmen, & Warehouse- men's Local Union No. 984, affiliated with the Interna- tional Brotherhood of Teamsters, Chauffeurs, Ware- housemen & Helpers of America or any other labor or- ganization by removing notices of union meetings from our employees' lockers. WE WILL NOT inform any employee that the employee is being discharged because of the employee's union membership, activities, and sympathies. WE WILL NOT in any like or related manner' interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section, 7 of the Act. WE WILL offer J. C. Adams immediate and full rein- statement to his former job or, if that job no longer exists, to a substantially equivalent position, without prej- udice to his seniority or any other rights or privileges previously enjoyed and WE WILL make him whole for any loss of earnings and other benefits resulting from his discharge, less any net interim earnings, plus interest. WE WILL make John Rains whole for any loss of pay he may have suffered by reason of our discrimination against him with interest. WE WILL notify him that we have removed from our files any reference to his discharge and that the dis- charge will not be used against him in any way. W. M. GURLEY, L. M. GURLEY, AND BETTY GURLEY, D/B/A GURLEY REFINING COMPANY The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice.