L. C. Cassidy & Son, Inc.

L C CASSIDY & SON 123 L. C. Cassidy & Son, Inc. and Chauffeurs, Team- sters, Warehousemen and Helpers Local No. 135, a/w International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America. Case 25-CA-15282 18 September 1984 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS ZIMMERMAN AND DENNIS On 14 October 1983 Administrative Law Judge Marvin Roth issued the attached decision The Re- spondent filed exceptions and a supporting brief 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 brief and has decided to affirm the judge's rulings, findings, 1 and conclusions 2 and to adopt the recommended Order 1 We find it unnecessary to rely on the adverse inference drawn by the Judge based on the Respondent's failure to call salesman Ernie Jones as a witness (see JD, sec III, I, par 3) The Respondent has excepted to some of the judge's credibility find ings The Board's established policy is not to overrule an administrative 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 Cir 1951) We have carefully examined the record and find no basis for reversing the findings 2 Contrary to Chairman Dotson, the judge properly found that the Re- spondent denied Turk job assignments on 30 December 1982, and 4 Janu ary 1983, in violation of Sec 8(a)(3) and (1) of the Act The judge cred ited evidence that Turk called in 20 minutes late on 30 December and arrived 20 minutes late on 4 January (the Company personnel manual de fines excessive tardiness as "over 15 minutes"), and that Company Presi dent Cassidy had warned employees on 3 January that, if they did not report to work by 7 15, "the truck would be gone' The judge further found, however, that Turk was a member of a "blower" rather than a batt" installation crew and that service and timing is critical only for batt installation He also found that Respondent s timecards disclosed that batt crew employees were frequently more than 15 minutes late, some times by over an hour, but were nevertheless permitted to work" He noted that Cassidy admitted he assigned Turk s job without warning to another employee at exactly 7 15 on 30 December, and admitted that the Respondent did not enforce its own policy calling for discharge or repn mand of employees guilty of excessive tardiness in being more than 15 minutes late The judge concluded that Cassidy "penalized Turk on both occasions with a swiftness and seventy which he did not normally exhibit toward other employees, either before or after the January 3 meeting (Emphasis added ) We have no difficulty ascribing this obvious disparate treatment to Turk's union activity, where the judge found, and the Chairman agrees, that Cassidy Sr, company chairman, violated Sec 8(a)(1) on 17 Septem her 1982, by descnbing Turk as a troublemaker" who started the union, and stating he would fire the son of a bitch," and that the Respondent subsequently violated Sec 8(a)(3) and (1) by discriminatorily denying driving time to Turk 20 January, by discriminatorily assigning him work 1, 3, and 10 February and by discnminatonly discharging him 14 Febru- ary Chairman Dotson would dismiss the allegations that the Respondent discriminatorily denied Turk job assignments on 30 December and 4 Jan- uary Turk, who had a poor record in regard to absenteeism and tarch ness, called in 20 minutes late on 30 December to say his car needed a jump start, and Cassidy sent the truck out without him On 3 January Cassidy met with the employees to accent the problem, stressed the per ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, L C Cas- sidy & Son, Inc , Indianapolis, Indiana, its officers, agents, successors, and assigns, shall take the action set forth in the Order sonnel handbook definition of excessive tardiness as over 15 minutes," and warned that, if employees were later than that, "the truck would be gone" The next day when Turk was late again, Cassidy at 7 20 a m as signed someone else to work with Staton and sent the truck out In the Chairman's view, Respondent was entitled to follow through on its an nounced disciplinary measures, and Turk's earlier union activity does not serve to Insulate him from their application DECISION STATEMENT OF THE CASE MARVIN ROTH, Administrative Law Judge This case was heard at Indianapolis, Indiana, on July 7 and 8, 1983 1 The charge was filed on February 14 by Chauf- feurs, Teamsters, Warehousemen and Helpers Local Union No 135, a/w International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of Amer- ica (the Union) The complaint, which issued on March 22 and was amended at the hearing, alleges that L C Cassidy & Son, Inc (the Company or Respondent) vio- lated Section 8(a)(1) and (3) of the National Labor Rela- tions Act The gravamen of the complaint is that the Company allegedly discriminated against employees Brian Turk and Grover Staton with regard to work as- signments and compensation, and subsequently dis- charged Turk and Staton, all because of their union ac- tivities, and further violated Section 8(a)(1) by threaten- ing employees with discharge, loss of work, and denial of pay increases The Company's answer denies the com- mission of the alleged unfair labor practices All parties were afforded full opportunity to participate, to present relevant evidence, to argue orally, and to file briefs The General Counsel and the Company each filed a brief On the entire record in this case 2 and from my obser- vation of the demeanor of the witnesses, and having con- sidered the briefs and arguments of the parties, I make the following FINDINGS OF FACT I THE BUSINESS OF THE COMPANY The Company, an Indiana corporation with its princi- pal office and place of business in Indianapolis, Indiana, is engaged at its Indianapolis facility and other locations in the business of sale and installation of residential and apartment building insulation In the operation of its busi- ness, the Company annually derives gross revenues in excess of $500,000, and annually receives at its Indianap- ' All dates herein are for the period from July 15, 1982, to July 15, 1983, unless otherwise indicated 2 Errors in the transcript have been noted and corrected 272 NLRB No 27 124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ohs facility goods and materials valued in excess of $50,000 directly from points outside Indiana I find, as the Company admits, that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act II THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act III THE ALLEGED UNFAIR LABOR PRACTICES A Background The Union's Organizational Campaign Brian Turk began working at the Indianapolis facility in August 1979, employed as an insulation installer In July 1982 Turk talked to his fellow employees about or- ganizing a union Turk contacted Union Business Repre- sentative Douglas Schmidt, who supplied him with au- thorization cards On July 19 Turk signed a card and ob- tained signed cards from 11 of his fellow employees Turk gave the cards to Schmidt, and on July 29 the Union filed a petition for a Board-conducted election at the Indianapolis facility During the organizational and election campaign the Union conducted meetings at Turk's home An election was conducted on September 3 Turk was the Union's observer The Union won by a vote of 11 to 6, with 2 challenged ballots The Company filed objections to the conduct of the election On Octo- ber 13 the Regional Director issued his report on objec- tions, recommending that they be overruled The Com- pany filed exceptions to the report In the meantime Turk remained an active union adherent He regularly wore a union cap to work until his discharge on Febru- ary 14 On February 3 the Board adopted the Regional Director's recommendations, and certified the Union as representative of the Company's installers and helpers, mechanics and semi-drivers at the Indianapolis facility The Company refused to bargain with the Union The Regional Director issued an unfair labor practice com- plaint and, on August 26, 1983, subsequent to the present hearing, the Board held that the Company violated Sec- tion 8(a)(1) and (5) of the Act by refusing to bargain with the Union, and issued a bargaining order (L C Cassidy & Son, Inc , 267 NLRB 578 (1983)) B The Alleged Threats in September 1982 On September 2, the day before the election, the Com- pany assembled a meeting of eligible voters in the plant conference room Board Chairman Donald Cassidy (Cas- sidy Sr ), his son, Company President Donald Cassidy (Cassidy), and Company Secretary-Treasurer Ray Bark- hau were present Brian Turk and (then) employee Mi- chael Baker testified, in sum, that Cassidy Sr told the as- sembled employees that if the Union got in he would not sign a contract for any greater wages or benefits than the employees already had Cassidy Sr and Cassidy in their respective testimony each denied that Cassidy Sr made the alleged statement On September 17, Baker was per- sonally summoned to the conference room Cassidy Sr, Cassidy and Barkhau were present Cassidy told Baker that, for economic reasons, the Company was closing its garage and, therefore, that Baker was laid off from his job as garage mechanic Baker asked whether this was because of the Union Cassidy answered that it was not, but the garage was costing too much to operate Cassidy offered Baker a job as an installer They talked about the job According to Baker, Cassidy said that Baker would be close to the top in seniority, and that Turk might object because Baker would be senior to him (as will be discussed, seniority among installers is at least a signifi- cant factor in the assignment of work) Baker declined the offer, explaining that the insulation material irritated his skin According to Baker, Cassidy Sr again raised the matter of Turk Cassidy Sr reiterated the point that Turk would "probably bitch" about seniority Baker tes- tified that Cassidy Sr described Turk as a troublemaker who started the Union and agitated people, asserting that Turk was "laying back" waiting to get fired, so he could draw a whole bunch of money off the Company Ac- cording to Baker, Cassidy Sr said that they would not give him the satisfaction, that they would "fire the son- of-bitch," but that he would get nothing because they would handle it in such a way that they would beat him if he tried Baker testified that Barkhau told him that the last comment was strictly off the record Cassidy Sr, Cassidy, and Barkhau, in their respective testimony, denied that Cassidy Sr threatened to fire or get rid of Turk Cassidy testified that it was Baker, and not himself or his father, who said that Turk would "bitch" about seniority I credit the testimony of Baker and Turk concerning the meeting on September 2, and I credit the testimony of Baker concerning the meeting on September 17 First, Baker may properly be characterized as a disinterested witness who had no apparent motivation to testify falsely in this proceeding I do not agree with the Company's description of Baker as "a disgruntled and hostile ex-em- ployee" (Br, p 27) Baker was laid off as a mechanic, but the Company offered him a job as an installer, and the company officials indicated that they thought well of him On October 27 the Union filed an unfair labor prac- tice charge (Case 25-CA-14990) alleging inter aim that the Company was violating Section 8(a)(1) and (3) by discriminatorily depriving employees of work opportuni- ties and proper compensation (the Regional Director subsequently declined to proceed on this charge) Al- though Baker initially suspected that his layoff was tied to the result of the election, no unfair labor practice charge was filed by him or on his behalf In sum, the evi- dence indicates that Baker and the Company parted on good terms In his exit interview, Baker indicated that he voted for the Union However, prior to the election Baker asked Cassidy if he could be excluded from the voting unit In these circumstances, the Cassidys could reasonably infer that Baker was less than enthusiastic about the Union, and may have felt pressured by Turk, and consequently, that he was an appropriate individual with whom to discuss Turk 3 Second, with respect to the 3 The Company argues (Br , p 28) that if Cassidy Sr actually threat ened to fire Turk, such fact would have been uncovered in connection Continued L C CASSIDY & SON 125 September 2 meeting, the testimony of the Company's witnesses and, more significantly, their lack of testimony in certain crucial respects tends to undermine the credi- bility of their denials Cassidy denied that his father made the alleged statement, but he did not testify as to what his father did say Cassidy Sr testified that he told the assembled employees that negotiations take a long time and that the employees might get more money, but might get less "because of the economy and the condi- tions of our company, at that time" According to Cas- sidy, he did not speak directly against the Union, but it was "obvious" from his speech that he wanted a"non- union shop" The question is then presented Why was it obvious? Cassidy Sr 's testimony fails to indicate that he said anything which made it "obvious" that he opposed unionization However the testimony of Turk and Baker does indicate that Cassidy Sr said something which made clear that he was opposed to unionization I find that the Company, by Cassidy Sr, threatened the employees with reprisal by telling them, in essence, that it would be futile for them to vote for the Union be- cause the Company would not agree to any contract which provided for better wages or benefits than the em- ployees already had Cassidy Sr 's statement was not "carefully phrased on the basis of objective fact "4 Rather, he unequivocally tied loss of wage and benefit increases to the employees' selection of the Union as their bargaining representative The Company thereby violated Section 8(a)(1) of the Act Conagra, Inc , 248 NLRB 609, 614 (1981) 5 The Company, by Cassidy Sr, further violated Section 8(a)(1) by describing Turk as a troublemaker and agitator because of his union activities and threatening to discharge Turk because of such activi- ty I further find that Cassidy Sr 's statements and threats demonstrate company animus toward the Union in gen- eral and toward Turk in particular because of his leading role in the Union, and may properly be considered as evidence of the Company's motivation in subsequent per- sonnel actions involving Turk, including Turk's dis- charge on February 14 C Denial of Work When Turk Had a Medical Condition In September 1982, Turk developed an ear infection The Company's records indicate that thereafter Turk usually worked only 1 day each week On October 25, Turk presented Cassidy with a slip from his physician, indicating that Turk was under care for severe external otitis and was suffering considerable pain, that heights might be dangerous for Turk, and that the physician with the Region's investigation of the charge in Case 25-CA-14990 The present record indicates that Baker gave one short affidavit to the Region The affidavit was not offered in evidence, and there is no indica- tion of its date, contents, or subject matter In the absence of such evi- dence, it is not possible to meaningfully evaluate the Company's argu ment 4 NLRB v Gtssel Packing Ca, 395 U S 575, 618 (1969) 5 Apart from the question of whether they are in point, the cases cited by the Company (Br, p 27) do not constitute Board precedent In each case, no exceptions were taken to the Trial Examiner's dismissal of the pertinent allegation Therefore in each case the Board adopted the dismis sal pro forma, 1 e, without consideration of the merits should be contacted if there were any questions 6 Turk's regular job as an installer involved working at heights Cassidy testified that he contacted Turk's physician, who informed him that Turk should not drive or work at heights, because he might have dizzy spells, that he should not work around machinery, and that he should do nothing to disturb his equilibrium Later that day Cas- sidy summoned Turk to his office and informed Turk that Cassidy had contacted his insurer, and was advised to lay off Turk because Turk might injure himself, and the insurance might not cover such injury 7 Turk asked if he could do warehouse, delivery, or garage work Cas- sidy said he could not but would need a complete release before he could return to work Two days later, the Union filed its charge in Case 25-CA-14990, alleging inter aim that the Company was using nonuntt employees to perform unit work, and that "This violation was ob- served by employee Brian Turk" Turk remained on layoff until December 22, when he gave Cassidy a re- lease which was signed by Turk's physician Cassidy im- mediately returned Turk to his regular job as insulation installer The General Counsel contends that from late Novem- ber until December 22 the Company discriminated against Turk by refusing to give him alternative employ- ment The General Counsel's premise is that there was warehouse work available during this period which Turk could have performed Turk testified that in the past, when he injured his fingers, he was permitted to do al- ternative work, specifically, instructing employees in in- stallation work, and that he observed an employee with a broken arm who continued to perform installation work However, Cassidy testified in sum that, on the basis of the information which he received concerning Turk's condition, there was no work available which Turk could safely perform Specifically, even warehouse work involved the use of machinery, working at heights, and actions which could affect Turk's equilibrium Specifical- ly, warehouse work involved forklift operation, and climbing up and down ladders to handle material which was stored on open balconies approximately 13 feet above floor level 8 The evidence fails to indicate that any alternative work other than warehouse work was available during this period I find in the circumstances that Cassidy acted as a reasonable and prudent employer Regardless of how Cassidy felt toward Turk because of his union activity, I am not persuaded that Cassidy acted in a discriminatory manner with respect to this situation Rather, Cassidy could reasonably conclude, and the evi- dence indicates that he did conclude, that in view of 6 Cassidy, although president of the Company, normally functioned as the person in charge of day to day operations at the Indianapolis facility, and was Turk s immediate supervisor 7 Cassidy testified that Secretary Treasurer Barkhau contacted the in surer Barkhau did not testify concerning this matter 8 Cassidy testified that he did not employ a regular warehouse employ ee until early December, when he hired Charles Roberts In fact, as Ind' cated by company records, Roberts was hired in late November and a second employee (Kim Henderson) was hired in December to also per form warehouse work However, Cassidy did not premise his decision on lack of warehouse work Rather, as indicated, Cassidy testified to the effect that he did not believe that Turk could safely perform such work C 126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Turk's condition there was no available work which Turk could safely perform. I find that the General Coun- sel has failed to prove that the Company discriminated against Turk by refusing to give him alternative work. Therefore, I am recommending that the pertinent allega- tion of the complaint be dismissed. D. Refusals to Assign Turk to Jobs When He Reported Late The complaint alleges several discriminatory actions against Turk during the period from his return to work on December 22 to his discharge on February 14. Some of these alleged actions also involved Grover Staton In order to evaluate these allegations, it is necessary to con- sider the Company's system of operation as it functioned during this period. The Company utilized two basic methods of installing insulation material, and two distinct categories of employees to perform each method Blan- ket or "batt" insulation was rolled onto new construction or installed on new apartment walls. The "blower" method of installation was normally used on existing homes or similar structures, and involved the use of a pneumatic machine. Installers worked in crews of two, and were normally assigned either to a batt crew or blower crew. In January and February the Company had three or four batt crews and three blower crews. In order of seniority, the first blower crew consisted of James LaRoche and Zilbert Shaw, the second was Turk and Staton, and the third was Dennis Meyers and Lee Walker. The blower crews were normally paid on a piece rate basis, although they might be paid on a hourly basis, usually at the employee's request, for unusually time-consuming work. At the end of the workday, each crew turned in a daily worksheet which included the lo- cation and description of each job, including estimated footage and amount of material used, and any requests for special compensation. Cassidy then determined the amount of compensation, including piece rate, ostensibly on the basis of the worksheets for each week, and osten- sibly pursuant to a written piece rate schedule which, as will be discussed, was vague, ambiguous, and in fact dis- regarded by Cassidy as he saw fit. Turk and Staton comprised a blower crew since 1979 and nearly always worked together. Staton had been em- ployed by the Company since 1969. He was on leave of absence from May 22 to mid-November 1982. However, he signed a union authorization card on the same date as the other employees, and attended union meetings. Staton testified that he sometimes wore a union cap to work, and placed a union decal on his clipboard. Cassidy testified that he never saw Staton wear a union hat, and never saw a union decal on his clipboard. The evidence fails to indicate that Staton was any more active on behalf of the Union than any of the other employees who signed union cards. The evidence also fails to indi- cate that Cassidy had knowledge of Staton's union atti- tude or activity, or reason to believe that Staton was prounion, beyond the fact of Staton's close association with Turk, and the fact, as evidenced by the result of the election, that most of the employees were prounion. The workday started at 7 a.m. Turk testified that, at 7:05 or 7:10 a.m. on December 30, he telephoned Cassidy and told him that his car needed a jump start, but he would be "right in" Cassidy told Turk not to bother coming in, because he had already assigned someone else to the truck. Turk testified that it would have taken him 5 to 10 minutes to get to work Cassidy testified that he assigned another employee to the truck at 7:15, that Turk called at 7 .20, and that, in his opinion, Turk needed 15 to 20 minutes to get to work from his home. On January 3, Cassidy assembled a meeting of installers. He told them that if they did not report to work by 7:15 "the truck would be gone." Cassidy made no distinction between batt crews and blower crews Cassidy also told the em- ployees that there had been mistakes in measuring foot- age, that he knew they were not intentional, but that the employees should be more careful. Turk testified that, the next day (January 4), he arrived at work at 7.05 and went directly to the truck, but learned that someone else had been assigned to work with Staton. Turk complained to Cassidy, who told Turk that he meant what he said the previous day, and that Turk was laid off for the day. Turk testified that he pointed out to Cassidy that the timeclock indicated 7:10, but Cassidy said his watch read 7:20 Turk said he would see Cassidy at the Labor Board. According to Cassidy, nearly everyone was on time that day except Turk. Cassidy testified that he spoke to Turk at 7:20, and that Turk told him that he reported to the dispatch office, then went out to the warehouse and returned to the dispatch office. Cassidy answered that employees reported to the office, not the warehouse. According to Cassidy, Turk claimed that the timeclock read 7:10, but Cassidy could not make out the time from his desk Cassidy testified that the next day Turk told him that his timecard for that week had disap- peared. Cassidy testified that the Company had a tardiness and absenteeism problem, and that Turk had a poor record in this regard. I credit the testimony of Cassidy with re- spect to the time that Turk called in on December 30 and the time of their conversation on January 4 The Company's personnel manual defines excessive tardiness as "over 15 minutes," and in his meeting on January 3, Cassidy used 15 minutes as the cutoff point. In these cir- cumstances, it is unlikely that Cassidy would have taken action against Turk before 7:15 a.m. Moreover Staton, who testified as a General Counsel witness, failed to cor- roborate Turk's testimony with respect to the events of January 4 although, according to Turk, he went over to Staton as soon as he reported to work. However, the evidence indicates that Cassidy penalized Turk on both occasions with a swiftness and severity which he did not normally exhibit toward other employees, either before or after the January 3 meeting. Cassidy admitted that precisely at 7:15 on December 30, without any previous warning, he assigned Turk's job to another employee. Cassidy also admitted that by 7:20 on January 4 he had already replaced Turk with another employee. However, the Company's timecards indicate that batt crew employ- ees were frequently more than 15 minutes late, some- times by over an hour, but were nevertheless permitted to work. Indeed, Cassidy also admitted that the Compa- ny did not enforce its own policy, which ostensibly pro- L C CASSIDY & SON 127 vided for "dismissal or reprimand" of employees who were guilty of "excessive tardiness (over 15 minutes) " Cassidy further admitted that in contrast with the work of blower crews, "service and timing is critical" for batt insulation Cassidy explained that the batt crews had to work in close coordination with other construction crews, i e, the batt crews would install insulation imme- diately after wiring and plumbing were completed, and the drywallers would immediately follow the batt crew However, time was not a critical factor for the blower crews, who worked in existing structures, particularly in midwinter when there was seldom enough of such work to fill a full day On occasion the Company might make a commitment to the customer on the day's first job, that the crew would arrive at a particular time However, this was the exception rather than the rule, and there is no evidence that such commitment was involved on either December 30 or January 4 Rather, the blower crews normally operated on a flexible schedule, e g, switching the order of jobs, and because of the variable factors involved in insulating existing buildings, it was frequently difficult to accurately estimate the time needed for such jobs Indeed, on January 4 Turk's truck had not yet left the shop when he went home Cassidy testified that four of the batt crew employees rode to- gether to work, inferring he could not afford to lay off all of them However, the timecards for these individuals which were presented in evidence indicate that they did not always report to work or leave work at the same time I find that Cassidy arbitrarily disciplined Turk with a swiftness and severity which he did not exercise toward other employees However, before discussing Cassidy's motivation for such action, I shall take up the other alleged discriminatory actions toward Turk and Staton prior to their discharge E Threat of Loss of Work The complaint alleges that on January 5 Cassidy threatened Turk with loss of work because of his union activity In order to evaluate this allegation, it is neces- sary to consider prior conversations between Cassidy and Turk concerning Turk's appearance Turk, a young man, wears long hair and a beard, and this was his ap- pearance when he was hired by the Company In 1981, Cassidy told Turk that he might have an opportunity for a promotion, but he would first have to improve his ap- pearance (referring to his long hair and beard) Turk cut his hair and shaved his beard, but he was never offered a promotion, and he permitted both to grow back On Oc- tober 22, 1982, 3 days before Turk was laid off, Cassidy again discussed his appearance Cassidy said that he could not tell Turk not to wear his Teamsters hat, but would appreciate if he did not, and that he also preferred if Turk cut his hair and shaved off or trimmed his beard Cassidy testified that he also expressed concern with Turk's one-way sunglasses, which might tend to intimi- date homeowners Cassidy further testified that, with re- spect to the hat, he explained that in the new construc- tion market in the area, "it's open shop" and "most builders feel uncomfortable with workmen being on their jobs, wearing union hats" The General Counsel does not contend that Cassidy's statements in this conversation were unlawful On January 5, Cassidy again spoke to Turk about his appearance According to Turk, Cassidy told him that Turk knew how Cassidy felt about "that hat" and his hair, that he received three or four customer complaints about his appearance, and that "as much as possible" he was taking Turk off of "old work," i e, oc- cupied homes, until Turk did something about his ap- pearance Turk testified that at this time his beard was trimmed and his hair was about 3 inches shorter than when he was hired Cassidy testified that Turk did not improve his appearance since October, and that he told Turk that since there was no improvement in his appear- ance, that Cassidy would have to keep him out of the "retro fit," i e, existing home market, as much as possi- ble, because of "the Company image" Cassidy testified that in fact he received a complaint from a customer about Turk's appearance There is no contention by either the General Counsel or the Company that Turk was thereafter deprived of any work because of his ap- pearance I do not credit Turk's testimony that his union hat was mentioned in this conversation As indicated, Cassidy previously mentioned the hat in connection with new construction Therefore, it would make no sense for Cassidy to tell Turk that he would be deprived of old work unless he removed his hat If there were any doubt in Turk's mind, he could have asked Cassidy If this was the first time that Cassidy criticized Turk's appearance, there might be some basis for finding that Cassidy was harassing Turk However, it is evident that Cassidy had been concerned for some time with Turk's appearance I am not persuaded that Cassidy expressly or impliedly threatened Turk with loss of work because of his union activity Therefore, I am recommending that this allega- tion of the complaint be dismissed F Denial of Driving Time The Company sometimes pays its installers driving time of $5 25 per hour Turk testified that this was done when the employees had to travel an "extreme" distance Cassidy testified that there were certain localities for which the Company will pay driving time, but that it might also pay driving time because of adverse weather conditions On December 31, Turk and Staton requested (on their worksheet) driving time pay to a job in Mar- tinsville, Indiana Cassidy rejected the request It is un- disputed that on January 7, 1981, Cassidy approved driv- ing time pay to Martinsville for Turk and Staton Cas- sidy testified that the Company normally does not pay driving time to Martinsville, and that payment was made for the 1981 job because of severe weather and road con- ditions In support of Cassidy's testimony, the Company presented weather records for January 1981, and work- sheets for various installers showing rejection of driving time pay I credit Cassidy's explanation, and I find that the Company rejected driving time pay in accordance with its usual policy On January 20 Turk, who was accompanied that day by helper Paul Ferguson, requested driving time pay for a job in Shelbyville, Indiana The employees did not re- ceive driving time pay Turk testified that Cassidy told him "we never pay driving time to Shelbyville" Cassidy 128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD testified that the Company pays driving time to Shelby- ville, that the failure to pay on this occasion was "I would think," an "oversight," and that he did not "recall" that Turk brought the matter to his attention. I do not credit Cassidy's equivocal explanation Turk's re- quest was written in large bold letters, on his worksheet, and Cassidy knew that the job in question (Knightstown Village) was located in Shelbyville. Evidence which has been and will be discussed indicates that Cassidy was giving particularly close attention to Turk during the period from his return from layoff until his discharge. I find that Cassidy, acting intentionally and in disregard of his usual practice, declined driving pay on this occasion I shall defer discussion of motive to a later point in this decision. G. Alleged Discriminatory Assignment of Work on February 1, 3, and 10 The complaint alleges that on February 1, 3, and 10, the Company denied work to Turk and Staton by giving them no job assignments or assigning them to minor jobs while working less senior employees more hours. On February 1, the senior crew of LaRoche and Shaw worked on six jobs and earned total wages of $124.49 (divided between them). The junior crew of Meyers and helper Walker worked on four jobs and earned $81.04 and $58.42 respectively. Turk and Staton worked on two jobs and earned $20.80 each. Turk and Staton normally averaged $60 and $65 per day, respectively, although business was usually slow in winter, and consequently earnings were then below average. Turk and Staton testi- fied in sum that on February 1 they were given two small jobs and were finished by 11 a.m. They called in for more work, but Cassidy told them there was none and to come in and clock out. The employees so indicat- ed on their worksheet. Cassidy testified that he gave Staton and Turk jobs which were located in large home areas, because he felt they were comparable to the first three jobs given to Meyers and Walker, which were lo- cated in small home areas. Cassidy further testified that Meyers called in when he and Walker were finished, and he gave them a fourth job (the Cook job). According to Cassidy, he gave the Cook job to Meyers and Walker be- cause it was located in southwest Indianapolis, in the general area where they were working, whereas Turk and Staton were working on the north side. Cassidy tes- tified that seniority is a factor, but not the only factor in making job assignments, that he also considers the prox- imity of jobs, and that employees who begin a job are assigned to return work if such is necessary. Cassidy's testimony in this regard displayed a significant pattern. Cassidy proceeded on the premise that as senior install- ers, LaRoche and Shaw were always entitled to the best assignments. However, with respect to Turk and Staton, Cassidy invariably found that some factor other than se- niority deprived them of preference over Meyers and Walker. Moreover, other factors tend to undermine the credibility of Cassidy's explanations. The first job given to Turk and Staton (the Swigget Lumber job) was so small, both as to quantity of material used and square footage, that such fact must have been apparent to Cas- sidy from the original work order. Second, Meyers and Walker indicated on their worksheet that they spent 2- 1/2 hours getting the truck ready for a spray job. There- fore, it is evident that they must have called in long after Turk and Staton called in and were told to return and clock out. In sum, when Turk and Staton called in, Cas- sidy had no way of knowing whether anyone else would be available for the Cook job. Nevertheless, he refused to assign them this job, although it was located in the general area of the Company's facility and, therefore, as the last job of the day, would not have entailed much extra traveling. 9 Cassidy's action on February 1 contrasts with his testimony concerning Turk's tardiness, when he emphasized the importance of getting work started as soon as possible. I find that Cassidy intentionally gave Turk and Staton as little work as possible and that, but for such action, they probably would have earned as much as Meyers and Walker did that day. On the evening of February 2, salesman Ernie Jones, acting on Cassidy's instructions, telephoned Turk and told him that he and Staton should not report the next day because there was not enough work for them. The next day (February 3) LaRoche and Shaw worked on five jobs and earned a total of $132.35. Meyers and Walker worked on three jobs and earned $36.75 and $15.75, respectively. Cassidy testified that the first and third jobs assigned to Meyers and Walker (Northview and Coffey jobs) were "call back" jobs which they pre- viously worked, that the Coffey job came up during the day, and that apparently nothing was done on the second job (Leamonson). The Company presented worksheets indicating that Meyers previously worked on the North- view job, but no such worksheet was presented for the Coffey job. The February 3 worksheet does not support Cassidy's explanation. The worksheet indicates that Meyers and Walker were paid on an hourly basis, that each put in 3 hours on the Northview job but that, for some unexplained reason, Meyers worked alone for the rest of the day. The timesheet further indicates that Meyers worked 4-1/2 hours on either the Leamonson job or the Coffey job, or both, for which he was paid. With reference to the Leamonson job, Meyers wrote: "Could not do by myself. Took pump off. Clean out tanks." With reference to the Coffey jobs, Meyers wrote: "Place I missed." If Meyers spent all or most of 4-1/2 hours on the Coffey job, then it is evident that the job involved more than "touch-up work," as described by Cassidy, and that "Place I missed" meant that Meyers was previously assigned to the Coffey job but never got to it. It is also evident that Meyers was unable to pro- ceed with the Leamonson job because he needed help. Indeed, It is evident from the worksheets of both crews on duty that the Company had its hands full that day, that there was work for three crews, and that the Com- pany needed at least one more installer in view of the fact that Walker was available to work only 3 hours that day. I find that Cassidy instructed Turk and Staton not to report to work, notwithstanding that there was work available for them, and that, absent a discriminatory 9 The Company's facility is located near Indianapolis International Air- port, southwest of Indianapolis L C CASSIDY & SON 129 motive, the available jobs would have been distributed among the three blower crews On February 10 there were two blower crews on duty LaRoche and Meyers, who formed one crew, worked three jobs, and earned a total of $114 74, which was divided between them Staton and Turk worked two small jobs, and earned $2062 and $18 03, respectively They were initially assigned the first (Ballard) job, de- scribed as "touch up," and another job which was can- celed before the truck pulled out After completing the first job, they telephoned the office, and Ernie Jones gave them a second small job, which they finished in slightly over an hour They called again, and Cassidy in- formed them that there was nothing else They returned before noon Cassidy testified that Zilbert Shaw was off work that day, and that he assigned Meyers to work with LaRoche (thereby giving Meyers the benefit of LaRoche's seniority), because he did not wish to disrupt the "good working relationship" between Turk and Staton Cassidy's professed solicitude for the team of Turk and Staton contrasts sharply with his actions on December 30 and January 4, when he unhesitatingly re- placed Turk when Turk was either 15 minutes late or ap- peared to be 15 minutes late Cassidy's professed solici- tude also contrasts with his suggestions, in connection with their discharge, that Turk and Staton were dishon- est, incompetent, or both Cassidy did not ask either Turk or Staton whether they wanted to work with LaR- oche on February 10 Cassidy failed to explain the tre- mendous imbalance between the size of the jobs given to LaRoche and Meyers and those given to Turk and Staton, or why, in view of such imbalance, at least one of the larger jobs could not have been given to Turk and Staton I find, particularly in light of Cassidy's previous discriminatory actions, that Cassidy, without any valid reason, intentionally sought to limit the earnings of Turk and Staton on February 10 H Concluding Findings with Respect to Discriminatory Actions Against Turk and Staton Prior to Their Discharge The evidence indicates that during the brief period from December 22, when Turk returned from layoff, until his discharge on February 14, the Company en- gaged in a series of arbitrary and discriminatory person- nel actions against Turk As a result of these actions, Turk suffered the loss of 3 days' wages, and a substantial loss of income on 2 other days All this occurred in winter, when business was usually slow and, consequent- ly, earnings came hard I find that the explanation for these actions lies in what Cassidy Sr told Michael Baker in September, after the Union won the election Cassidy Sr declared that Brian Turk wanted to get fired so that he could get "a whole bunch of money" from the Com- pany, but the Company would handle it in such a way that he would get nothing At that time the Company was in no hurry The Company had filed objections to the election, and could anticipate that it would take some time before the validity of the election was determined Shortly thereafter, Turk went on leave because of his medical condition, and the Company did not know when, if ever, he would return When Turk presented a release from his physician, Cassidy was not so foolhardy as to refuse to return him to work, notwithstanding the release Instead, Cassidy returned him to his job, and then proceeded to take a series of actions which were designed to substantially impair Turk's income and, hopefully, to cause Turk to quit his job The Company would thereby rid itself of the leading union proponent, and undermine the Union's strength even if the Union were eventually recognized as bargaining representative However, Turk did not quit and on February 3 the Board certified the Union as bargaining representative As will be discussed, this presented a situation which in the Company's view called for more drastic action I find that the Company discriminatorily deprived Turk of work on December 30, January 4, and February 1, 3, and 10, and discriminatorily denied him travel pay for January 20, all in reprisal for his union activity, and as part of an effort to force him to quit his job, and thereby remove the leading union adherent from the plant The Company thereby violated Section 8(a)(1) and (3) of the Act By virtue of the fact that Turk and Staton formed a working team, Staton also suffered loss of work and con- sequent loss of income on February 1, 3, and 10 As indi- cated, Staton was not unusually active in the Union, and the evidence fails to indicate that the Company had direct knowledge of his union activity However, Cas- sidy could reasonably infer, from his close association and good working relationship with Turk, that Staton was probably prounion Cassidy was limited in the ways that he could deprive Turk of work without similarly punishing Staton Cassidy's actions were as discriminato- ry against Staton as they were against Turk Cassidy was determined to get rid of Turk in a foolproof fashion, and was willing to let Staton suffer if such was necessary in order to get at Turk I find that Cassidy deprived both Turk and Staton of work as a means of punishing and eventually removing Turk because of his union activity, and as a camouflage for his discriminatory actions against Turk Therefore the Company's actions were also violative of Section 8(a)(1) and (3) as to Staton See and compare Armcor Industries, 217 NLRB 358 (1975), enfd in pertinent part 535 F 2d 239, 243 (3d Cir 1976), O'Do- vero Construction, 264 NLRB 751 (1982) I The Discharge of Turk and Staton Cassidy testified that he discharged Turk and Staton on Monday, February 14, because they falsified a daily worksheet for work done on February 11 According to Cassidy, the two installers intentionally and falsely indi- cated to him on their worksheet that they had performed the entire job by blowing insulation through drilled holes, whereas only about 25 percent of the job was per- formed in this manner (the balance having been blown through the attic) Cassidy testified that the employees knew that, if they actually performed the work as they allegedly indicated, they would be paid at a higher piece rate On February 11 Turk and Staton were assigned to the Way job, which was their only job that day The work order, which was prepared by salesman Ernie Jones de- 130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD scribed the work as: "Drill and Blow all of house through asbestos siding. Some walls can be blown from attic." The second sentence seemingly contradicts the first. However, Cassidy, Jones, Turk, and Staton dis- cussed the job before Turk and Staton left the shop. Turk and Staton testified, in sum, that Jones explained that at least 50 percent of the insulation could be blown through the attic (instead of by drilling) and that Staton and Turk should commence the job in this manner. Jones, although still employed by the Company at the time of the present hearing, was not called as a witness. Cassidy, in his testimony, was equivocal about what Jones said, but he inferentially corroborated Turk and Staton by admitting that they talked "in percentages." Turk and Staton did not claim otherwise, i.e., Jones re- ferred to at least 50 percent of the job. If, as suggested by Cassidy, discussion in terms of percentages rather than square feet is "pretty vague," then it would follow that Cassidy's subsequent estimate that 75 percent of the job was blown through the attic, on which he allegedly based his decision to fire Turk and Cassidy, was also "pretty vague." I credit Turk and Staton, and I find that, from the beginning, Cassidy, Jones, Turk, and Staton all understood that at least 50 percent of the job would be blown through the attic. Turk and Staton commenced the job in accordance with Jones' instructions. Staton operated the pneumatic machine while Turk worked in the attic. Staton testified that in late morning, Jones came by and asked how they were doing and whether they were blowing through the attic. Staton answered that they were doing fine, and were blowing more than 50 percent of the insulation through the attic. As indicated, Jones was not presented as a witness, although he was not in the bargaining unit, was still in the Company's employ at the time of the present hearing, and had no apparent motive to testify falsely against the Company. The inference is warranted that, if Jones had been produced as a witness, he would have corroborated the testimony of Staton and Turk. Martin Luther King Nursing Center, 231 NLRB 15 fn. 1 (1977). I credit Staton. It is unlikely that Jones went out to the job merely out of personal curiosity. I find that Staton and Turk made no effort to conceal the fact that most of the job was blown through the attic, and that Cassidy knew that such was the case. Indeed, Cassidy admitted that he spoke to Jones about the job after Turk and Staton returned to the shop. The inference is war- ranted, and I so find, that Jones reported to Cassidy what he learned at the jobsite. Staton testified that they finished the job about 2:30 p.m. They filled out the worksheet. In the space provid- ed for job description, Staton wrote "drill & blow thru asbestos." Turk entered the footage measurements. As usual, the matter of compensation was left for Cassidy. Turk and Staton did not make any entries indicating that they were requesting special or unusual compensation, or that the job was unusually difficult. There is no conten- tion that Turk made any entries which were expressly or impliedly inaccurate. Cassidy testified that, after Turk and Staton returned to the shop, he looked at their worksheet and immediate- ly concluded that the employees claimed that they per- formed the entire job by drilling and blowing through asbestos. Cassidy testified that he was surprised that the employees could perform the job in this manner and finish so soon, and that salesman Jones expressed similar surprise. According to Cassidy, Jones telephoned a Mr. Way, who informed Jones that the walls had been insu- lated from the attic. Cassidy testified that, the next morn- ing, he and Jones went out to the jobsite. Cassidy took photographs and, according to Cassidy, he determined that about 75 percent of the insulation had been blown through the attic. On Monday, February 14, Cassidy summoned Turk and Staton to the dispatcher's office. Cassidy asked if they had finished the job, commenting that they returned early. They answered that they did. Cassidy asked if they had any problems or if there was anything unusual about the job, and whether they did it all by drilling. At this point the employees did not know that Cassidy had examined the job. Nevertheless Staton unhesitatingly answered that there were no problems, and that more than one-half of the insulation was blown through the attic. Cassidy asked why they did not show this on their worksheet. Staton answered that he did not know any other way of writing it up. Cassidy professed surprise at this answer. Cassidy told the employees that it was evident that they purposely filled out the worksheet in this manner in order to get the higher pay scale, and that they were terminated for falsifying payroll records. Staton said that he thought it was because of the union activity, but Cassidy denied the accusation. Cassidy testi- fied that he decided during that conversation to dis- charge the employees. Cassidy's professed explanation for the discharges is demonstrably false for several reasons. First, for the rea- sons discussed, Cassidy knew all along that most of the job was being done by blowing insulation through the attic, and that Turk and Staton could not and indeed never tried to conceal that fact. Therefore there was no relevant reason for Cassidy to check out the job. Second, as Staton testified, there was no apparent reason to write up the work in any greater detail, because the employees had no reason to expect that they would get anything other than the lower rate. The Company's piece rate schedule for blown insulation on existing housing indi- cates that the Company pays $79.80 per 1000 square feet for "Drill and Blow Houses—remove and replace siding," and $53.40 per 1000 square feet for "Drill through celotex, drywall, etc." Turk and Staton did not have to or claim to remove and replace siding and, therefore, on the basis of the schedule, they would not in any event have been entitled to the higher rate. Cassidy testified that the Company does not pay the higher rate only for work involving the removal and replacement of siding, and that the Company has not used that process for some time. However, the Company's piece rate schedule is a recent document, with an effective date of August 17, 1981. If Cassidy's assertion was correct, then it is evident that, in practice, he disregarded the schedule and made his own determination of how much the in- stallers should get. Cassidy suggested that the applicable rate had something to do with the relative difficulty of working with the building material involved. However, L C CASSIDY & SON 131 Cassidy never defined just what materials would warrant the higher rate, except to give random examples of situa- tions in which he paid the higher rate The written schedule does not purport to set any standards in this regard Turk and Staton never previously worked with asbestos and, indeed, Cassidy had no prior personal expe- rience with asbestos However, Turk, who did most of the drilling, testified that he did not find it difficult, ap- parently because he was working with a good drill bit, and the asbestos was reinforced by wood backing Cas- sidy testified that installer LaRoche told Staton that it was hard to drill through asbestos However, the Com- pany did not produce LaRoche as a witness Instead the Company presented the testimony of a former employee who worked as an installer many years ago, and who testified that it was difficult to work with asbestos siding However, it is the experience of Turk and Staton, and not that of someone else,.which is significant in this case Turk did not find it difficult to work with asbestos, and Staton indicated to Jones and Cassidy that there were no problems on the job Therefore, it is unlikely that Turk and Staton would have expected to receive the higher rate on the basis that they were drilling through difficult material Additionally, for the reasons discussed, I have found that Cassidy was engaged in a pattern of conduct which was designed to minimize Turk's earnings There- fore, it is unlikely that, given a choice, Cassidy would have paid the higher rate to Turk and Staton under any circumstances Therefore, for this additional reason, I do not credit Cassidy's explanation I find that Cassidy would never have paid the higher rate to Turk and Staton, and that he viewed their worksheet simply as an instrument which provided a pretext for their discharge Additional evidence tends to indicate the discriminato- ry nature of the discharges Staton wrote up the job de- scription, but Cassidy made no distinction between Turk and Staton To do so would have defeated Cassidy's pur- pose, because he was primarily interested in getting at Turk Conversely, he could not discharge Turk on this pretextual ground without also discharging Staton Therefore, he fired both of them Cassidy's discharge of Turk and Staton on this pretextual ground was inconsist- ent with the Company's normal policy and procedure in dealing with inaccurate or incomplete worksheets Al- though a number of worksheets were introduced into the record, the evidence fails to indicate that installers ever followed a practice of distinguishing, by percentage or otherwise, the amount of work done by drilling and blowing from that done simply by blowing Therefore, it is evident that Staton was correct when he told Cassidy that he did not know any other way of writing up the job As indicated, Cassidy's system of calculating com- pensation was so arbitrary and undefined as to preclude any installer from determining his compensation by the manner in which he described the work There was an- other area in which by mistake (intentional or other- wise), the employees could influence their compensation, namely, in measuring the footage of the job But, the Company took a very lax approach toward such derelic- tions When Cassidy discovered a miscalculation (even a substantial one) he simply recalculated the compensation accordingly As indicated, at the meeting on January 3, Cassidy admonished the installers about such mistakes, but he did not indicate that such mistakes were grounds for discipline, let alone discharge The Company's state- ment of personnel policies, reissued in July 1981, lists 14 grounds for dismissal or reprimand, none of which, except for "continuous mismeasuring," involved false in- formation on worksheets Cassidy admitted that, to his knowledge, no employee other than Turk and Staton had ever been discharged on the alleged ground of falsifica- tion of a worksheet 10 I find that the Company discharged Turk in order, to get rid of the Union's principal activist Cassidy attempt- ed to force Turk to quit by arbitrarily depriving him of work and earnings, but Turk held on Cassidy was aware that the Board might sustain the Company's objections to the election However, on February 3 the Board certified the Union as bargaining representative, and this action injected a sense of urgency in the situation Cassidy seized upon the first available pretext to discharge Turk As that pretext necessarily involved Staton, Cassidy also discharged Staton Cassidy assumed that Staton was probably prounion, in view of his close association with Turk, and therefore decided that he was also expendable Therefore, the discharges violated Section 8(a)(1) and (3) of the Act both as to Turk and Staton "In cases where an employer terminates an employee as part of an effort to camouflage the discriminatory discharge of a known union activist, the Board has held that all that is required is a finding that the discharge of the one was undertaken in an attempt to validate or support the discharge of the other" O'Dovero Construction, 264 NLRB 751 fn 2 (1982), Armcor Industries, 217 NLRB 358 (1978) CONCLUSIONS OF LAW 1 The Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act 2 The Union is a labor organization within the mean- ing of Section 2(5) of the Act 3 By interfering with, restraining, and coercing its em- ployees in the exercise of the rights guaranteed in Sec- tion 7 of the Act, the Company has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(1) of the Act 4 By discriminating in regard to the terms, conditions, and tenure of employment of Brian Turk and Grover ''" The Company presented other evidence of alleged dereliction on the part of Turk and/or Staton The Company contends that on January 19, Turk falsely indicated on the worksheet that he and helper Paul Fer guson each worked 4 hours on the Carter job The evidence proves noth ing pertinent to this case First, Cassidy was not aware of this alleged misrepresentation until long after he discharged Turk Second, Ferguson, who was the Company's principal witness with regard to this matter, tes tilled that they worked about 3 1/2 hours The difference between 3 1/2 and 4 hours is hardly the stuff of which misrepresentation is made Third, the figures on the worksheet indicate that Turk and Ferguson were paid on a piecework basis Therefore the amount of time which they spent on the job was immaterial The Company also presented evidence that Turk and Staton failed to blow insulation below a fireblock on the Way job, that some other insulation was loose, and that therefore it was necessary to redo some of the work However, Cassidy never claimed that the al leged Inadequate work had anything to do with his decision to discharge Turk and Staton The evidence in this record indicates that It is not un usual for the Company to assign its installers to complete or correct work previously done 132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Staton, thereby discouraging membership in the Union, the Company has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(3) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act THE REMEDY Having found that the Company has committed viola- tions of Section 8(a)(1) and (3) of the Act, I shall recom- mend that it be required to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act Having found that the Company discriminatorily ter- minated Brian Turk and Grover Staton, it will be recom- mended that the Company be ordered to offer each of them immediate and full reinstatement to his former job or, if it no longer exists, to a substantially equivalent po- sition, without prejudice to his seniority or other rights and privileges previously enjoyed, and make him whole for any loss of earnings and benefits that he may have suffered from the time of his discharge to the date of the Company's offer of reinstatement. I shall further recom- mend that the Company be ordered to make whole Turk and Staton for their respective loss of earnings as a result of the Company's discriminatory denial of work to Turk on December 30, 1982, and January 4, 1983, discrimina- tory denial of driving time pay to Turk on January 20, 1983, and discriminatory denial of work to Turk and Staton on February 1, 3 and 10, 1983. I shall also recom- mend that the Company be ordered to expunge from its records any reference to the unlawful discharges of Turk and Staton, to give written notice of such expunction to each of them, and to inform each of them that its unlaw- ful conduct will not be used as a basis for further person- nel actions against him. See Sterling Sugars, 261 NLRB 472 (1982). Backpay shall be computed in the manner and amount prescribed in Florida Steel Corp., 231 NLRB 651 (1977)." It will also be recommended that the Com- pany be required to preserve and make available to the Board, or its agents, on request, payroll and other records to facilitate the computation of backpay due. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed" ORDER The Respondent, L. C. Cassidy & Son, Inc., Indianap- olis, Indiana, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Discouraging membership in Chauffeurs, Team- sters, Warehousemen and Helpers Local Union No. 135, a/w International Brotherhood of Teamsters, Chauffeurs, 11 See generally Isis Plumbing Co., 138 NLRB 716, 717-721 (1962) 12 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. Warehousemen and Helpers of America, or any other labor organization, by discriminatonly terminating em- ployees, or in any other manner discriminating against them with regard to their hire or tenure of employment or any term or condition of employment. (b) Threatening to discharge employees because of their union activity. (c) Threatening that it will not execute a contract with the Union for more pay and benefits than the employees are already receiving. (d) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action which is found necessary to effectuate the policies of the Act. (a) Offer Brian Turk and Grover Staton immediate and full reinstatement to their former jobs or, if such jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges previously enjoyed, and make them whole for losses they suffered by reason of the discrimination against them as set forth in the section of this Decision entitled "The Remedy." (b) Expunge from its files any references to the dis- charges of Brian Turk and Grover Staton, and notify each of them in writing that this has been done and that evidence of the unlawful discharges will not be used as a basis for future personnel actions against them. (c) 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. (d) Post at its Indianapolis, Indiana office copies of the attached notice marked "Appendix."" Copies of the notice, on forms provided by the Regional Director for Region 25, after being signed by the Respondent's au- thorized representative, shall be posted by the Respond- ent immediately upon receipt and maintained for 60 con- secutive days in conspicuous places including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 13 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 Na- tional Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the Nation- al Labor Relations Board." L C. CASSIDY & SON 133 APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD ,4ti Agency of the United States Government The Natid41 . Labor Relations Board has fohnd that we violated the I;Tational: Labor Relations Act and has or- dered us to post and abide by this notice. WE WILL NOT discourage membership in Chauffeurs, Teamsteii, Wareholisernen and Helpers Local Union No. 135, a%w International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, or any other -labor organization, by discriminatorily terminating employees, or in any other manner discriminating against them ,with regard to their hire , or tenure of employment or any term or condition of employment. WE WILL NOT threaten to discharge employees be- cause of their union activity. WE WILL NOT threaten to refuse to execute a contract with Local No. 135 for more pay and benefits than you are presently receiving. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of your right to engage in union or concerted activities, or to refrain therefrom. WE WILL offer Brian Turk and Grover "Roger" Staton immediate and full reinstatement to their former jobs or, if such jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges previously enjoyed, and make them whole for losses they suffered by reason of the discrimination against them. WE WILL expunge froni our files any reference to the discharges Of Brian Turk and Grover Staton, and notify thenri in writing that this has been done and that evi- dence of the unlawful discharges, will not be used as a basis for future personnel actions against them L C: CASSIDY & SON, INC.