Fontaine Truck Equipment Co.

National Labor Relations Board - Board DecisionsSep 17, 1971

193 N.L.R.B. 190 (N.L.R.B. 1971)

190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Fontaine Truck Equipment Company and Aluminum Workers International Union , AFL-CIO. Cases 10-CA-8313, 10-CA-8338, and 10-RC-8135 September 17, 1971 DECISION AND ORDER REMANDING PROCEEDING TO TRIAL EXAMINER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On February 19, 1971, Trial Examiner William J. Brown issued his Decision in the above-entitled consolidated proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommend- ing that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Examiner also found that Respondent had not engaged in other unfair labor practices alleged in the complaint and recom- mended that the complaint be dismissed as to such alleged violations. The Trial Examiner further found that certain conduct of Respondent, after the petition in Case 10-RC-8135 was filed, interfered with the election which had been conducted pursuant to a Stipulation for Certification Upon Consent Election and recommended that the election be set aside and that a second election be directed.' Thereafter, Respondent filed timely exceptions to the Trial Examiner's Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this proceeding to a three- member panel. The Board has considered the rulings of the Trial Examiner made at the hearing and, with the exception noted below, finds that no prejudicial error was committed. Except as modified below, those rulings are hereby affirmed. The Board has duly considered the entire record in this proceeding, including the Trial Examiner's Decision, the exceptions, and the brief, and finds as follows: Gardner's testimony: The Trial Examiner found, inter alia, that Respondent interfered with the election and violated Section 8(a)(1) and (3) through Foreman Gunter's threat to employee Gardner and by dis- charging Gardner. These findings were based essen- i We note that the Trial Examiner 's Decision inadvertently states that the Petitioner had won the election by a 73-55 vote The Trial Examiner's Decision is hereby corrected to show the Petitioner failed to receive a majority by a 73-55 vote 2 See , eg, Walton Manufacturing Company, 124 NLRB 1331, cf California Lingerie Inc, 129 NLRB 912 3 US v White, 401 U S 745, 753. See also Osborn v US 385 U S. 323, tially on Gardner's testimony, which was contradicted by Respondent's witnesses but credited by the Trial Examiner. At the hearing, Respondent, in defense of these allegations, sought to introduce a tape recording made at Gardner's discharge interview. Although the authenticity of the recording was not questioned, the Trial Examiner excluded it because Gardner was not informed that the discussion was being recorded. Respondent excepts to this finding on grounds that the excluded evidence bears materially on Gardner's credibility and was improperly rejected. We find merit in Respondent's exception. The Board has admitted tape recordings, expressing its reluctance based on the possibility of alteration.2 There is no contention that this tape has been altered. The Board has never excluded such evidence on a per se basis. Here the Trial Examiner's ruling was based solely on the ground that Gardner was not advised that the discharge interview was being transcribed. However, the Supreme Court, in a criminal case, recently upheld the admissibility of tapes even though offered against a party lacking knowledge that his conversation was being recorded. As stated by the Court ". . . [we should not] be too ready to erect constitutional barriers to relevant and probative evidence which is also accurate and reliable."3 From the foregoing, it appears that the evidence offered by Respondent was not subject to exclusion on the ground relied on by the Trial Examiner. Accordingly, and as the tape might be regarded as a cogent consideration in assessing the credibility issues underlying the findings based on Gardner's testimo- ny, we shall remand these issues to the Trial Examiner for consideration of the excluded tape with respect to his findings in this regard.4 Objection 3: The Trial Examiner, in recommending that the election be set aside, relied in part on the Petitioner's Objection 3, as well as the aforedescribed unfair labor practices. We find, however, that Objec- tion 3 should be overruled. We have examined the pamphlet, which the Trial Examiner found was distributed by Respondent's supervisors, entitled "I Am the Union I Am Your Friend," and we find that it is not coercive in nature and that it does not provide grounds for setting the election aside.5 ORDER It is hereby ordered that this proceeding be, and it Lopez v. U.S, 373 U.S. 427. 4 We shall defer consideration of Respondent 's exceptions pertaining to violations found by the Trial Examiner but not covered by our remand. 5 Only one pamphlet, "I Am the Union I Am Your Friend," is now before us for consideration , since findings as to the distribution of the other pamphlets were not made, and no exceptions thereto were taken by Petitioner 193 NLRB No. 30 FONTAINE TRUCK EQUIPMENT CO. 191 hereby is, remanded to Trial Examiner William J. Brown for the consideration of the recorded conversa- tion in connection with the credibility determinations involving employee Talmadge Gardner and for the preparation and issuance of a Supplemental Trial Examiner's Decision, setting forth findings of fact and conclusions of law and recommendations with respect to unfair labor practices alleged in the complaint and conduct affecting the election based on said testimo- ny. Copies of such Supplemental Trial Examiner's Decision shall be served on all parties, after which the provisions of Sections 102.46 and 102.114 of the Board's Rules and Regulations Series 8, as amended, shall be applicable. TRIAL EXAMINER'S DECISION WILLIAM J. BROWN, Trial Examiner: This consolidated proceeding under Sections 9 and 10 of the National Labor Relations Act, as amended, hereinafter referred to as the "Act," came on to be heard at Haleyville, Alabama, on November 4, 5, and 6, 1970.1 The petition in Case 10-RC-8135 had been filed February 25, by the above- captioned Charging Party-Petitioner, hereinafter some- times referred to as the "Union," and an election conducted on April 24 pursuant to stipulation of the parties entered into and approved by the Regional Director on March 27.2 The charge of unfair labor practices herein was filed by the Union on May 4 and the complaint herein issued July 29; it alleged, and the duly-filed answer of the Company3 denied the commission of unfair labor practices defined in Section 8(a)(1) and (3) of the Act. At the hearing the parties appeared and participated as noted above with full opportunity to present evidence and argument on the issues. Subsequent to the close of the hearing briefs were received from the Company and the Union and have been fully considered. On the entire record herein and on the basis of my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY The pleadings and evidence establish and I find that the Company is a corporation organized and existing under and by virtue of the laws of the State of Alabama with an office and place of business at Haleyville, Alabama, where it is engaged in the manufacture and sale of truck equipment. During the calendar year preceding issuance of the complaint herein, admittedly a representative period, the Company sold and shipped finished products valued in excess of $50,000 and shipped directly to customers located outside the State of Alabama. I find, as the Company concedes, that it is an employer engaged in commerce within the purview of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The pleadings and evidence establish and I find that the Union is a labor organization within the purview of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES AND OBJECTIONS TO THE ELECTION A. Introduction to the Issues This case concerns events occurring during the course of a Union campaign to organize production and mainte- nance workers of the Company. The Union campaign commenced sometime late in 1969 and led to the April 24 election above referred to. The Complaint alleges and the answer denied unfair labor practices in the nature of coercive interrogation of employees concerning their own and other employees' Union activity, threats of reprisal for participation in Union activity, solicitation of espionage, restraints on conversation, and the discriminatory dis- charge of three employees in reprisal for their activity on behalf of the Union. B. The Unfair Labor Practices 1. Interference , restraint , and coercion a. Interrogation (1) Jimmy Gunter Gunter has been at all material times a foreman of the Company's bulk division department and a supervisor within the purview of Section 2(11) of the Act. The Complaint alleges and the answer denies that on four specified dates between November 13, 1969, and April 21 Gunter interrogated employees respecting their own and other employees' activity and sympathy for the Union. Talmadge Gardner, who acted as the Union's chief employee assistant in the organizational campaign, testified that some time in November or early December 1969 Gunter approached him at work and asked how he felt about a union. While Gunter denied ever questioning Gardner along these lines and Gardner was considerably confused about the precise time of the conversation, I credit Gardner's testimony and find that on or about November 13, 1969, Gunter questioned him as to Union activity in the plant and thereby engaged in an unfair labor practice within the scope of Section 8(a)(1) of the Act. With respect to the allegations of the complaint to the effect that Gunter questioned employees concerning Union activity on or about March 10, April 7, and April 21, said i Dates hereinafter, unless otherwise noted, relate to the calendar year 1970 2 The results of the election were 73 votes for and 55 against Union representation Objections to conduct affecting the results of the election were filed by the Union on April 27 and hearing thereon consolidated with hearing on the issues in the Complaint cases 3 Sometimes referred to by the General Counsel as "Fontaine Equipment Company," and sometimes hereinafter referred to as the "Company " 192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dates running from 3 days to 6 weeks prior to the election, General Counsel apparently4 relies on the testimony of former employee Albright5 and that of employee DuBoise. Albright testified that 6 weeks before the election Gunter asked him what he thought of the Union campaign literature and, when he expressed a favorable opinion, told him he had better watch the Union as it could cause trouble. DuBoise, a thoroughly credible witness who was not cross-examined by the Company counsel, testified that 2 weeks before the election Gunter asked him what he thought of the Union and, when he denied having an opinion, was told by Gunter that Gunter was opposed to it. Although Gunter denied questioning employees I credit the accounts of Albright and DuBoise and find that Gunter questioned them in a manner constituting interference, restraint, and coercion within the purview of Section 8(a)(1) of the Act. (2) Joe Aderholt Aderholt, foreman in the finishing shop for 5 1/2 out of his 7 years service with the Company, is alleged to have interrogated employees concerning Union activity on March 30, some 3 weeks prior to the election. I agree with the contention in the Company brief that there is no evidence to substantiate this allegation of the complaint and I credit Aderholt's testimony that he did not talk to any employees concerning the Union. I recommend dismissal of the allegations of the complaint respecting interrogation on the part of Aderholt. (3) James Arley Harper Harper , a welding foreman and an admitted supervisor, is alleged to have interrogated employees concerning their own and other employees ' activities on behalf of the Union on or about March 10 and 19 and April 14 and 23. Larry Baker, alleged in the complaint to have been discriminatori- ly discharged , testified that in March and April Harper frequently asked him what he thought about the Union, such talks occurring two and three times a day throughout the period preceding the election . James Hicks, also an alleged discriminatee , testified that sometime in the period preceding the election Harper questioned him concerning his feelings respecting the Union . I credit Baker 's testimony in this matter and find that Harper interrogated him in a manner constituting interference , restraint , and coercion under the Act. I credit Harper 's denial of unlawful interrogation of Hicks. (4) Billy Brooks Brooks, millwright foreman and concededly a supervisor, is alleged to have unlawfully interrogated employees concerning Union activities on April 22. James Hicks testified that 2 or 3 days before the election Brooks asked him and two other employees what they thought about the Union and added some disparaging remarks concerning unions. Brooks conceded that he discussed working 4 Neither oral argument nor a written brief was submitted by General Counsel The testimony of the witness Hicks is too indefinite to form a basis of any finding of interrogation by Gunter conditions at the Company's Birmingham operation but denied questioning employees as to their Union sympathy or activity. I credit his denial and recommend dismissal of the allegations of the complaint in this respect. (5) Richard Norman Norman, plant manager, is alleged to have interrogated employees concerning Union activities on April 22, 2 days before the election. As is more fully discussed hereinafter, the Union, on April 20, sent a telegram to Plant Manager Norman stating that on April 18 a Company foreman threatened Gardner at his home. At the meeting of April 22 in Norman's office which terminated in the discharge of Gardner, Norman questioned Gardner as to the identity of the foreman involved. This question by Norman appears to have been no more than an attempt to get to the facts relating to the charge contained in the Union's telegram and it cannot reasonably be concluded that this inquiry amounted to unlawful interrogation into employee Union activities. I recommend dismissal of this count of the complaint. b. Threats The complaint alleges and the answer denies that on or about March 10 and 12 in the plant and on or about April 19 near an employee's home Gunter threatened employees with economic and other reprisals in efforts to deter the Union organizational campaign. With respect to threats in the plant, Gardner testified that about March 10 while waiting to use the plant crane Gunter accused him of loafing and being outside of his work area . He asserts that when Gunter soon thereafter gave him a disciplinary slip for the incident, he accused Gunter of believing that he was the one who started the Union, to which Gunter replied, according to Gardner, that he did not care who started it, he was going to stop it. Gunter denied the threat attributed to him concerning stopping the Union drive. I credit Gunter's account and recommend dismissal of the allegations of the complaint in this respect. With respect to allegations of threats on or about April 19 in and about the vicinity of an employee's home, Gardner testified that on the Saturday before the election, viz April 18, the day after he started wearing a Union pencil holder, Gunter drove up to his house where Gardner was mowing the lawn and after asking him how he liked hisjob, said that unless he changed his mind about the Union it might not be wise for him to go back. Although Gunter denied this accusation, I credit Gardner's testimony and find that on the occasion in question Gunter threatened Gardner with reprisals for Union activity and thereby the Company engaged in unfair labor practices defined in Section 8(a)(1) of the Act. c. Solicitation of espionage The complaint alleges that on or about April 21 Gunter solicited employees to ascertain the Union sympathy and 5 Albright, the Union election observer , left the Company's employ June 26 FONTAINE TRUCK activity of other employees. Larry Baker, a firm Union supporter, testified that in the week of the election, Gunter, one of his supervisors, came to him at work and asked him to find out how employee James Nichols stood respecting the Union. Gunter, according to Baker, later asked for a report and when he told Gunter that he thought Nichols was against the Union Gunter said that he hoped Nichols had learned a lesson at Richmond Industries. Although Gunter denied this account, I credit the testimony of Baker and find that the Company, through Gunter, engaged in unfair labor practices in this episode. d. Restraints on conversation It is alleged in the complaint and denied in the answer that on or about May 7 Gunter restrained certain employees in the plant from conversations in order to discourage Union membership or activity. General Counsel apparently relies on the testimony of former employees Baker, Hicks, and Lanier. Baker testified that on May 6, while he was working with Hicks, Lanier came by and started a conversation. Gunter came by and told Hicks and Baker he would fire them if they did not stop talking. Hicks essentially corroborated this account of Baker. Lanier, however, testified that on the occasion in question Gunter observed them talking but said nothing. Whatever view is taken of the evidence it is clear that it does not preponderate in favor of the conclusion that on this occasion the Company, through Gunter, restrained em- ployees from conversations in order to discourage support of the Union. I recommend dismissal of this count of the complaint. 2. Discrimination a. Talmadge Gardner Gardner was hired by the Company as a welder in August 1969 and worked first under the supervision of Harper then under that of Gunter until his discharge on April 22. He signed a Union card late in 1969 and served as the principal employee assistant to Union Representative C. B. Hatton in the Union's organizational efforts among employees of the Company. Gardner was hired by the Company while on layoff status from the Pullman Standard operation at Birmingham where he was a member of the United Steelworkers and the Company knew of his membership in that organization. Some 3 weeks after his hiring in at the Company, Gunter's wife needed costly surgery not covered by his hospitalization insurance with the Company, apparently because of a waiting-period clause, and arrangements were made for his recall by Pullman Standard so that the costs involved in his wife's surgery could be defrayed under his hospitalization insurance at Pullman. Although Norman approved only a 1-week leave of absence on this occasion, Gardner was absent for about 3 weeks from September 15 until October 6, 1969. There were, apparently, no 6 The record gives no reason why the Union expected Gardner to be absent Monday, April 20, he felt well enough to mow his lawn on Saturday and apparently became unexpectedly ill on Monday, April 20 EQUIPMENT CO. 193 objections from Company management to the additional time off on this occasion. Gardner lost substantial time from work in the period December 3 to December 12, 1969. The Company was not notified of the reason for his absence until December 8, 1969, when he explained that he had to take his wife to Birmingham for medical attention. On December 11, 1969, the Company learned through Gardner's brother-in-law, a Company employee, that drink was at least partly responsible for Gardner's absence. Gunter and Norman decided at that time to terminate Gardner. This decision was revoked by Norman on December 13, 1969, when Gardner frankly confessed his weaknesses and pleaded for another chance. Gardner apparently lost no time from work in the period December 15, 1969 until April except for 1 day in February when it was necessary to take his wife to Birmingham, apparently for medical treatment; on this occasion Gardner notified the Company of his absence and the reason therefor. On Saturday, April 18, according to Gardner's testimony, Supervisor Gunter drove to Gardner's home where the latter was mowing the lawn and told Gardner that unless he changed his mind about the Union it might be unwise for him to report back to work. Gardner reported this incident to a Union representative and on Monday, April 20 the Union sent the Company a telegram, Respondent's Exhibit 14, informing it of the above-mentioned threat and advising it that Gardner would report for work on Tuesday, April 21.6 Sick on Monday and Tuesday, Gardner sent word in by employee Hill but apparently the latter gave no reason for Gardner's absence. When Gardner reported for work on Wednesday, April 22, he was summoned to Norman's office, where in a tape-recorded7 session attended by Norman, Superintendent Bradford, and Gunter, he was discharged for excessive absenteeism. Gardner's testimony, which I credit, is that when he attempted to explain his most recent absence, Norman threw the Union telegram, Respondent's Exhibit 14, on the desk, asked what supervisor had threatened him, and discharged him. The record herein leaves me convinced that the Company knew for some period prior to his discharge that Gardner was an activist in support of the Union campaign. I also believe the evidence to preponderate in favor of the conclusion that he was discharged in reprisal for his support of the Union. I reach this conclusion primarily on the basis of the linking by Norman of the discharge with the Union telegram. It seems to me that the weight of the evidence is that the Company rushed into an intemperate and unconsidered action apparently in extreme anger at the Union telegram asserting a militant stand on behalf of Gardner who, as the Company could rightly feel, had been treated with great consideration in the past. I believe the evidence preponderately to indicate that Gardner's dis- charge constituted an unfair labor practice within Section 8(a)(3) and (1) of the Act. b. Larry Baker Baker was hired in 1964 and worked in the welding r The Examiner rejected the Company 's offer in evidence of the transcription on the basis that only one party knew the discussion was being recorded 194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD department under the supervision of Gunter and Harper until his discharge on May 7. He signed a Union authorization card and solicited others to do the same; I credit his testimony that in the months preceding the election Harper questioned him as to his views on Union representation and that he replied in a noncommittal fashion . I am unconvinced that the record indicates any solid basis on which it might be inferred that the Company knew of Baker's sympathy for and activity on behalf of the Union. My conclusion in this regard is, in my opinion, supported by evidence indicating that on several occasions prior to the election he was solicited by supervisors to report to the Company on Union activities of certain other employees. The Company's disciplinary system is bottomed on disciplinary action reports which indicate the nature of the particular offense , the disciplinary action taken, and a statement of the penalty for repetition. The form of the report provides a line for the employee's signature.8 On May 6 Baker was observed by Gunter in conversation with fellow employee Lanier; according to Baker, Gunter threatened to fire him if he did not stop talking. On the following day, May 7, Lanier again engaged him in conversation , and again he was observed, this time by Harper, who gave him a warning ticket to sign with the statement that direct termination was entailed for refusal to sign . Baker thereupon asked for his accrued pay. This evidence quite clearly does not preponderate in favor of the conclusion that Baker was discharged in reprisal for activity on behalf of the Union. c. James E Hicks Hicks was hired in November 1967 and worked as a welder under the supervision of Gunter and Harper until his termination on May 8. His activity on behalf of the Union campaign was minimal , consisting of signing a Union authorization card and soliciting one other employ- ee, apparently in the plant , to sign a card . As noted above I do not credit his testimony, as against that of Foreman Billy Brooks, to the effect that Brooks questioned him as to his sentiments respecting the Union and that he told Brooks that he favored the Union campaign . I am convinced that the evidence fails to establish that the Company had knowledge of his prounion sentiment at the time of his discharge on May 8. The evidence also indicates that Hicks was discharged for his refusal to sign a written reprimand calling for a short period of suspension after being advised that refusal to sign meant discharge. The evidence does not preponderate in favor of the conclusion that Hicks was discharged in reprisal for Union activities. C. The Objections to Conduct Affecting The Results of the Election Objection I is to the effect that supervisory employees threatened loss of employment and physical injury if employees continued activity on behalf of the Union. As noted above , I find that on the Saturday preceding the election Gunter drove to Gardner 's home, asked Gardner how he liked his job, and then told him that unless he changed his mind about the Union it might not be wise for him to go back to the plant. Gunter then, as I credit Gardner's account, took off with wheels spinning. I find this to be interpretable only as a threat against the employment or physical security of Gardner and an instance of conduct affecting the results of the election herein. Similarly, in view of the findings of discrimination in Gardner's discharge, I find Objection 4 to have merit. Objection 3 is to the effect that the Company, 6 days before the election, distributed to employees as they left their jobs at 3:30 p.m. a 15-page booklet labeled "I am the Union-I am Your Friend." The Regional Director has found that the booklet constitutes a threat of plant closure and other reprisals and has referred to the undersigned Trial Examiner the issue of Company responsibility for its preparation and distribution. Much of the evidence relating to the preparation and distribution of the pamphlet in question is vague , confused, inconclusive, and hearsay. It is clear that the pamphlet in question was distributed to employees about 3:30 p.m. as they left the plant on or about April 17. Gardner testified that shortly before the election employee Austin gave him a copy of the booklet at a time when Supervisor Aderholt was nearby. Aderholt denied ever seeing a supervisor pass out the material in question and there is no testimony as to conversation among Aderholt, Gardner, and Gunter at the time. This is insufficient to link the Company with the distribution of the booklet to Gardner. Baker testified that Harper told him that Company Engineer Roberts had duplicated the booklet on a company machine and that Norman had given permission for its distribution. Although Roberts denied the duplication and Harper denied telling Baker that Norman had permitted the distribution, I credit Baker's testimony. Also, I find of great significance the testimony of ex-employee Albright to the effect that he observed Foremen Aderholt, Austin, and Hutcheson with copies of the booklet which Austin was handing out to employees during the week before the election. I find the evidence to fall short of establishing that the Company was responsible for the writing or duplication of the pamphlet but clearly to preponderate in favor of the conclusion that the Company permitted distribution of the pamphlet and in fact performed, through supervisors, some of the distribution itself . I therefore find that Objection 3 has merit and warrants setting aside the election herein. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Company set forth in section III, above, and there found to constitute unfair labor practices, occurring in connection with the operations of the Company set forth in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to 8 The form indicates that the employee 's signature merely acknowledges that the employee has seen the report FONTAINE TRUCK EQUIPMENT CO. labor disputes burdening and obstructing such commerce and the free flow thereof. V. THE REMEDY In view of the findings above set forth to the effect that the Company has engaged in unfair labor practices affecting commerce it will be recommended that it be required to cease and desist therefrom and take such affirmative action as appears necessary and appropriate to effectuate the policies of the Act. In view of the findings of discriminatory discharge of employee Talmadge Gardner it will be recommended that the Company be required to offer him immediate and full reinstatement to his former or a substantially equivalent position and make him whole for loss of earnings in accordance with the remedial relief policies of F W. Woolworth Company, 90 NLRB 289 and Isis Plumbing & Heating Company, 138 NLRB 716. In view of the findings of discriminatory discharge the cease-and- desist provisions hereof should be appropriately broad. N.L.R.B. v. Entwistle Mfg. Co, 120 F.2d 532 (C.A. 4). I also conclude that the election herein should be set aside and proceedings therein severed and remanded to the Regional Director for further proceedings. On the basis of the foregoing findings of fact and upon the entire record in this case , I make the following: CONCLUSIONS OF LAW 1. The Company is an employer engaged in commerce within the purview of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the purview of Section 2(5) of the Act 3. By coercively interrogating employees respecting their sympathy for or activity on behalf of the Union, the Company has engaged in unfair labor practices within the scope of Section 8(a)(1) of the Act. 4. By threatening an employee with reprisals as a consequence of his support of the Union, the Company has engaged in unfair labor practices within the scope of Section 8(a)(1) of the Act. 5. By soliciting an employee to ascertain and report on the Union sympathy of another employee the Company has engaged in unfair labor practices defined within Section 8(a)(1) of the Act. 6. By discriminatorily discharging employee Gardner in reprisal for his activity on behalf of the Union the Company has engaged in unfair labor practices within the scope of Section 8(a)(3) and (1) of the Act. 7. Union Objections 1, 3, and 4 to conduct affecting the results of the election herein have merit and the election should be set aside and proceedings severed and remanded to the Regional Director for conduct of a second election at such time as in his discretion appears appropriate. 8. Except as specifically otherwise found herein the 9 In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Section 102 48 of the Rules and Regulations , be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes io In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by 195 Company has not engaged in unfair labor practices alleged in the complaint. Upon the foregoing findings of fact , conclusions of law, and the entire record , and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: 9 ORDER Fontaine Truck Equipment Company, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Coercively interrogating employees concerning their sympathy respecting the Union. (b) Threatening employees with reprisals as a conse- quence of their support of the Union. (c) Soliciting employees to ascertain and report to the Company concerning Union activities of fellow employees. (d) Discouraging membership in or support of the Union or any other labor organization of its employees by discharging or otherwise discriminating against them with respect to hire, tenure or any term or condition of employment. (e) In any manner interfering with, restraining, or coercing employees in their exercise of rights guaranteed under Section 7 of the Act. 2. Take the following affirmative action which appears necessary and appropriate to effectuate the policies of the Act: (a) Offer Talmadge Gardner immediate and full reins- tatement to his former or a substantially equivalent position without prejudice to his seniority or other rights and privileges and make him whole for loss of earnings in the manner set forth above in the section entitled "The Remedy." (b) Preserve and upon request make available to the Board or its agents for examination and copying all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze and give effect to the backpay requirements hereof. (c) Post at its Haleyville plant copies of the notice attached hereto and marked "Appendix." 10 Copies of said notice, on forms provided by the Regional Director for Region 10, shall after being duly signed by an authorized representative of the Company be posted by it immediately on receipt and maintained by the Company for a period of 60 consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Company to ensure that said notices are not altered, defaced, or covered by other material. (d) Notify the Regional Director for Region 10 in writing, within 20 days from receipt of this Decision what steps have been taken to comply with the terms hereof.tl IT IS FURTHER RECOMMENDED that the complaint herein Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 11 In the event that this recommended Order is adopted by the Board after exceptions have been filed , this provision shall be modified to read- "Notify the Regional Director for Region 10, in writing, within 20 days from the date of this Order , what steps the Respondent has taken to comply herewith " 196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD be dismissed with respect to allegations therein of unfair labor practices not herein specifically found to have been engaged in . It is finally recommended that proceedings in the representation case be severed and remanded to the Regional Director for further proceedings not inconsistent with the findings herein. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government We hereby notify our employees that: WE WILL NOT coercively question our employees concerning their feelings with respect to Aluminum Workers International Union , AFL-CIO. WE WILL NOT threaten employees for supporting the above-named Union. WE WILL NOT ask employees to find out and report to the Company concerning the attitude of other employ- ees toward the above -named Union. WE WILL NOT discourage membership in the above- named or any other union by discharging or discrimi- nating against employees. WE WILL offer Talmadge Gardner immediate and full reinstatement to his former or an equivalent job and make him whole for loss of pay resulting from our discrimination against him. WE WILL NOT in any manner interfere with , restrain or coerce employees in the exercise of their right to join or assist the above -named or any other union. Dated By FONTAINE TRUCK EQUIPMENT COMPANY (Employer) (Representative ) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered , defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions , may be directed to the Board's Office, 1417 City Federal Building , 2026 Second Avenue North, Birmingham, Alabama 35203, Telephone 205-325-3877.