Kerrville Telephone Co.

National Labor Relations Board - Board DecisionsFeb 28, 1974

209 N.L.R.B. 328 (N.L.R.B. 1974)

328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Kerrville Telephone Company and Communications Workers of America , AFLr-CIO. Case 23- CA-4755 February 28, 1974 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO On September 24, 1973, Administrative Law Judge Paul E. Weil issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions 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 authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order, except as modified below. 1. The Administrative Law Judge found that Respondent suspended Chabisek on the day of the election in the hope that Chabisek would fail to vote in the election after he was told to leave the Company's property. Respondent contends with some record support that the investigation of Chabisek's application for employment and employment history was under- taken because he had come under a "cloud of suspicion." Respondent's investigation revealed that Chabisek's application was, at best, misleading when it was discovered that Chabisek had previously worked at Shamrock Office Supply Company. In his initial interview with Robbins, Chabisek had charac- terized the Shamrock job as having "fallen through," an ambiguous phrase which reasonably could have been interpreted to mean that Chabisek had never gotten the job. Moreover, Respondent's investigation revealed that Chabisek's work history revealed a high rate of absenteeism and disclosed that Jobs Unlimit- ed, which he listed on his application as his most recent job, had never heard of Chabisek. Chabisek was suspended for 1 day, which could hardly be termed so harsh or excessive as to give rise to an inference that it was calculated to deter or punish transgressions other than those under investigation. Considering the foregoing and the entire record, we conclude that the evidence is insufficient to support the finding of the Administrative Law Judge that the suspension resulted from Chabisek's union activities and was given to foreclose his voting in the election that day. 209 NLRB No. 56 2. The Administrative Law Judge found that Respondent violated Section 8(a)(1) and (3) of the Act by discriminatorily suspending Chabisek, by conditioning his reinstatement on his refraining from talking to employees about the Union, by threaten- ing him with discharge for absenteeism, and by conditioning the possibility of sending Chabisek to school on his refraining from union activity. Al- though we are not persuaded that the suspension was discriminatory, we find that Respondent violated Section 8(a)(1) of the Act by its reinstatement conditions. THE REMEDY Inasmuch as we have not found that Chabisek was suspended unlawfully, we shall limit the Order to requiring Respondent to take measures to remedy the 8(a)(1) violations occasioned by the discriminato- ry conditions of reinstatement imposed upon Chabi- sek. AMENDED CONCLUSION OF LAW Substitute the following Conclusion of Law for the Administrative Law Judge's Conclusion of Law 3: "3. By conditioning the reinstatement of Herman Wayne Chabisek on April 26 on his refraining from talking to employees about the Union, by threaten- ing him with discharge for absenteeism, and by conditioning the possibility of sending Chabisek to school on his refraining from union activity, Respon- dent interfered with, restrained, and coerced employ- ees in the exercise of their rights guaranteed in Section 7 of the Act in violation of Section 8(a)(1) of the Act." ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge, as modified below, and hereby orders that Respondent Kerrville Telephone Company, Kerrville, Texas, its officers, agents, successors, and assigns, shall take the action set forth in said recommended Order as herein modified: 1. Delete paragraph 1(a) of the Administrative Law Judge's recommended Order and reletter the subsequent paragraph accordingly. 2. Delete "In any like or related manner" from paragraph 1(b). 3. Substitute for paragraph 2(a) the following: "Expunge from the personnel records of Herman Wayne Chabisek any record of the conditions under which his suspension was removed." KERRVILLE TELEPHONE CO. 4. Substitute the attached notice for that of the Administrative Law Judge. MEMBER FANNING, concurring in part and dissenting in part: I would affirm the Decision of the Administrative Law Judge in its entirety. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial at which all sides had a chance to give evidence, the National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post this notice and we intend to carry out the Order of the Board and abide by the following: The Act gives all employees these rights: To engage in self-organization To form, join, or help unions To bargain collectively through represent- atives of their choosing To act together for collective bargaining or other mutual aid or protection To refrain from any or all of these things. WE WILL NOT do anything that interferes with, restrains , or coerces employees with respect to these rights. WE WILL NOT discriminate against our employ- ees for engaging in activities on behalf of the Union or on their own behalf. WE WILL expunge from the personnel records of Herman Wayne Chabisek any record of the conditions under which his suspension was removed. WE WILL NOT threaten to lay off or discharge employees for engaging in union activities and we will withdraw our threat to Herman Wayne Chabisek that he will be discharged if he is absent again or if he talks to fellow employees about the Union. KERRVILLE TELEPHONE COMPANY (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive 329 days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, Dallas-Brazos Building, 1125 Brazo Street, Houston, Texas 77002, Telephone 713-226-4296. DECISION STATEMENT OF THE CASE PALM. E. WEIL, Administrative Law Judge: On May 1, 1973, Communications Workers of America , AFL-CIO, hereinafter called the Union, filed a charge with the Regional Director for Region 23 of the National Labor Relations Board , hereinafter called the Board , alleging that Kerrville Telephone Company , hereinafter called Respon- dent , violated Section 8(axl) and (3) of the Act by suspending an employee , Herman W. Chabisek, because of his membership and activities on behalf of the Union. On June 28 ,1 the Regional Director on behalf of the General Counsel issued a complaint and notice of hearing , alleging that Respondent violated Section 8(a)(3) by the I-day suspension of Chabisek , by extending his probation and by cancelling a promise to send him to a trade school. The complaint also alleges that Respondent violated Section 8(a)(1) by the above conduct and by various incidents of interrogation of employees about their union activity. By its duly filed answer, Respondent denied the commission of any unfair labor practices and stated that Chabisek was suspended for falsification of his employment application and reinstated with full pay on the following day with a warning for absenteeism. On the issues thus joined, the matter came on for hearing before me at Kerrville, Texas. All parties were present and represented and had an opportunity to call witnesses and adduce relevant and material evidence . At the close of the hearing , all parties waived oral argument ; briefs have been received from the General Counsel and Respondent. Upon the entire record in this matter and in contem- plation of the briefs , I make the following: FINDINGS OF FACT 1. JURISDICTION Respondent is a Texas corporation engaged in the operation of a telephone system with its principal office and place of business in Kerrville , Texas . Respondent annually has gross revenue in excess of $100,000 and annually purchases goods and materials valued in excess of $50,000 directly from forms located outside of Texas. Respondent is an employer engaged in commerce within the meaning of Section 2(5) of the Act. II. THE LABOR ORGANIZATION The Union is a labor organization within the meaning of Section 2(5) of the Act. I All dates hereinafter are in the year 1973 unless otherwise noted. 330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE ALLEGED UNFAIR LABOR PRACTICES attendance was disappointingly small and that more women than men had attended the meeting. Later that morning, according to Chabisek's testimony, D. H. Comparette was present and asked him whether he went to the union meeting the preceding night, how many people were there and whether they were men or women. Chabisek testified that he thought he had a union button on at the time. Comparette, who is one of the founders of the Company and is in a semiretired status , took the witness stand to deny asking any questions of Chabisek about the meeting. It appears clear from the record as a whole that Chabisek was a talkative young man around the plant, going out of his way to have conversations with his fellow employees and supervisors. He testified that when union literature was distributed he would make a joke of the literature and make announcements , purporting to read from the literature in a joking fashion. Under all the circumstances, although I credit Chabisek generally, I find no coercive interrogation of him on this occasion by Comparette. It is clear that Chabisek was making no secret of the fact that he had attended the union meeting and that the meeting had not been well attended. I conclude that the "interroga- tion," alleged by the General Counsel to have been committed by Comparette, consisted merely of the usual social questioning and exclamations attendant on Chabi- sek's recitation with regard to the meeting. On March 12, according to Chabisek's testimony, he had a conversation with Martin Fiedler, the outside plant supervisor, on the loading dock behind Fiedler's office. According to Fiedler's testimony, Chabisek started a conversation in the same fashion as his conversation in the coffeeroom the day after the meeting, that to say, he complained that the Union had served cookies rather than beer, stated that the union representative had been angry with him because he smoked a cigarette and stated that there had been more women than men, but not many people had come. According to Chabisek, he started talking about the Union with Fiedler and Fiedler asked if he had been to the meeting and how many people had been there. Chabisek answered that there had been a few people but not many and that he did not think the Union was going over, to which Fiedler responded that he thought it would go over because the men were getting tired of waiting for a raise . Chabisek quoted Fiedler as saying that he tried to get more money for the men, but the Company would not "turn loose" the money. Fiedler denied any recollection of asking any questions in the conversation but admitted that he had in the past tried to get raises for the men but was not always successful. I believe that both men testified in accordance with their recollections. However, I credit Chabisek that Fiedler made some reference to his attempt to get more money for the men and his lack of success and I credit Chabisek that Fiedler in a conversational way may have commented on the attendance at the union meeting . However, as with the conversation with Comparette and the earlier conversation that took place the morning after the union meeting, I don't believe any coercive interrogation took place. Accordingly, I shall recommend that the complaint be Background Herman W. Chabisek and his wife, Debbie, each filed applications for employment at Respondent's plant in Kerrville, Texas. They were interviewed by Respondent's president, Harvey Robbins, who questioned them about their experience and hired them, but who informed Chabisek that he was looking for a technician with more experience. Robbins told Chabisek that he would be on probation for a period of 6 months and that if he worked out he could expect to be sent on to a trade school conducted by the International Telephone and Telegraph Company. Robbins also said that if Chabisek did not find that he liked working for the Company or if the Company was not satisfied with him within the first 6 months that the two hopefully could part company and remain friends. During the interview. Anthony Thorne, the technical supervisor, came into Robbins' Office and took some part in the interview. Robbins sent Chabisek with Thorne to look over the plant while he interviewed Mrs. Chabisek, calling into his office an office supervisor, Mamie Keith. As Mamie Keith came into the room, she met Chabisek and said that she thought she knew him from somewhere. He said that he had been a salesman for the Shamrock Office Supply Company and had sold her supplies. She came into the office as Herman Chabisek left with Thorne to inspect the plant. Chabisek worked for the first week or two on the "frame," where the basic wiring in the telephone exchange connecting consumers' telephones takes place. After 2 weeks on the frame, Chabisek was transferred to a job connected with the switching apparatus located on another floor of the building. He worked there until sometime around the first week in March when he was placed on night duty, first in switching for about a week and half, and then on the frame and general watchman duty for another period of time, apparently a week or two. Thereafter, shortly before the hearing, Chabisek was put to work in the mobile radio shop, where he was employed at the time of the hearing. Respondent is a small telephone company and apparent- ly does not have many employees. President Robbins testified without contradiction that the need arose for certain work to be done, requiring that Chabisek work at night, that the illness of a watchman required that he be put on the watchman duty 2 and that the other moves were part of the normal training procedure of Respondent. The Union commenced organizing sometime in February or March. A union meeting was held on March 8 after a distribution of handbills. Chabisek attended the meeting. The following morning, arriving at the office before his duty time, Chabisek drank a cup of coffee in the employees' coffeeroom with other employees and President Robbins. At this time, Chabisek remarked that he had been to the union meeting and that he was astonished because it was the first union meeting he had ever heard of where, instead of beer, the Union served cookies. Chabisek continued his comment about the meeting, stating that the 2 Chabisek was the least semor employee of Respondent. KERRVILLE TELEPHONE CO. 331 dismissed insofar as it alleges coercive interrogation in this meeting. According to the testimony of President Robbins, sometime in April , an employee told him that Chabisek had told her that he was running a check on employees of the Company to see if there were any "skeletons in the closets." Shortly thereafter , Robbins testified , Mr. and Mrs. Chabisek came to him and complained that a contract engineer had kissed Debbie Chabisek on the mouth in her husband 's presence . Robbins investigated to the extent of checking with a third person , Kermit Kleahn, who Chabisek said was present on the occasion. Kleahn reported that he did not see anything like that . Robbins testified that he told Supervisor Thorne to have the contract engineer leave the premises immediately, that after talking with Keahn- I had a feeling that he may have been hedging a little bit and I felt that I was faced with-where an immediate decision was necessary and decided that what I had done , the instructions I had given Tony Thorne . was the right thing to do. Nevertheless , Robbins testified that these two incidents left him wondering about the motive that Chabisek had in coming to work for him , and mentioned discussions in the executive group of violence , telephone buildings, bank buildings and colleges being set afire and blown up and accordingly he instructed the office manager to check out Chabisek's application and let him know what he found out. On April 23, the personnel manager reported back to Robbins that Chabisek had worked for the Shamrock Office Supply Company, that the last preceding employer that he showed on his job application reported no record of Chabisek working for him and that in the job preceding that Chabisek had run "quite high on absenteeism." He also had a report from Shamrock Office Supply that Chabisek had missed "a great many days of work." Robbins consulted with his counsel the following day, when Attorney Schoolfield came to Kerrville to attend a preelection conference . After his discussion with School- field , Robbins determined to suspend Chabisek the first thing in the morning and did so, informing him that he was suspended because of falsification of his employment record . He told Chabisek that the Company was unable to verify the employment Chabisek had listed on his applica- tion, but might be able to clear the matter up if he would give him a report on his last three employments . (The day that Chabisek was suspended happened also to be the day of the union election.) Chabisek left the plant , saw the union agent and was informed that he should vote a challenged ballot , reentered the plant , where he voted under challenge , and again departed. The following day, Chabisek was called back by Robbins and reinstated . Robbins asked why Chabisek had not told him that he had worked for Shamrock Office Supply. Chabisek replied that he had worked there for such a short time that he did not think it was pertinent information. Robbins then asked about his last preceding employment stating that Respondent could not verify his employment there and, according to Robbins' testimony, Chabisek replied he had nothing to say about that. According to Chabisek's testimony, he talked to Robbins and the personnel manager , Weinheimer, together. Rob- bins told him that he would be reinstated, but, on checking his application, found that his absenteeism had been high at both ICES and Shamrock Office Supply. Chabisek asked how his absenteeism had been while with Respon- dent and Robbins answered that it had been fair, but said that if Chabisek• were absent any more he would be suspended. Robbins then told him to go back upstairs, do his own work, carry his own load, that he did not want Chabisek to wear a union button or converse about the Union or he would be suspended. Chabisek then quoted Robbins as saying "remember that you are on probation. You are on 6 months' probation." Finally, Chabisek quoted Robbins as charging that he had been insubordi- nate to a supervisor. Chabisek answered that he was sorry, but he could not remember being insubordinate to his supervisor and Robbins said, "Well, I'll put that down here in a note" and started writing. When he started writing, Chabisek said that he had nothing more to say. Chabisek also testified that Robbins told him that "as far as school goes" he would have to wait until Robbins could trust him again. Robbins' version of this portion of the interview was that he told Chabisek that he had lost a great deal of confidence in him due to the lies that he had put on his employment application and he asked for some explanation. Robbins testified that he advised Chabisek that he had employees report that he was bothering them on the job, talking about the Union in the working area at their work station, and that any further activity on the job such as that would be cause for discharge, but they did not mention a union button. Robbins did not, directly contradict Chabisek's testimony that the schooling would have to be deferred until Robbins regained his faith in Chabisek. Robbins testified that he made no promise to Chabisek that he would be sent to school and that in any event he would have to work at least a couple of years before he was familiar enough with the equipment and the job to make his - schooling valuable. After that time, if Respondent needed a man to be further trained, Chabisek would be considered along with other employees. In the absence of a direct denial and considering the testimony given by Robbins, I conclude that Chabisek's report of Robbins' statement regarding schooling is substantially accurate. Conclusions The General Counsel contends that the suspension of Chabisek and the conditions attendant on his reinstate- ment constitute unlawful discrimination because of his union activities. The General Counsel contends that, as part of the reinstatement , Respondent place Chabisek on probation for 6 months , thereby extending his initial 6- month probationary period by some 4 months. At the close of the General Counsel 's case, I dismissed that particular allegation inasmuch as the testimony of Chabisek , the only evidence offered in the General Counsel 's case-in-chief, revealed no more than a reminder by Robbins to Chabisek on the occasion of his reinstatement interview that he was 332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD on 6-month probation with no hint that it had been extended. After I dismissed the allegation, the General Counsel on cross-examination elicited from Robbins, during Respondent's case-in-chief, that he had in fact extended the probationary period to 6 months from April 26, the day of the reinstatement interview. The General Counsel contends that in view of this admission by Robbins I should rescind my ruling made at the hearing and consider the allegation. I decline to do this as I did when the issue was raised at the hearing. Under the normal rules of procedure before the Board, the General Counsel is required to establish a prima facie case in his case-in-chief. Chabisek's testimony completely failed to support the allegation and no other evidence with regard to it was forthcoming during the General Counsel's case-in-chief. The General Counsel had the option of calling Robbins, as part of his case-in-chief, under Rule 43(b) and would presumably thereby have accomplished his purpose, but he failed to do so. While I do not deem a hearing of this nature to be an exercise in gamesmanship, I believe that the rules of procedure must be followed if we are to avoid making a shambles of hearings conducted before the Board. It may be noted that Respondent's answer which denies the allegation is shown by the testimony of Robbins to be a sham. As the Court of Appeals for the Ninth Circuit stated in the Harvey Aluminum case-' The answer required by [Section] 102.20 is filed on behalf of the respondent, and, whoever signs it, must reflect the knowledge of those in charge of the respondent's affairs . . . . Sec. 102.21 does not alter this principle. Its purpose is to impose a direct personal obligation upon the attorney who signs the answer to satisfy himself that the pleading is not sham or frivolous. If the General Counsel had moved even in his brief to strike Respondent's answer with regard to this allegation, any time after the admission by President Robbins the motion would have been granted and the matter alleged would have been deemed admitted. This the General Counsel has not done. Under the circumstances, I believe due process requires that my ruling stand. Respondent contends that the suspension of Chabisek and his conditional reinstatement had nothing to do with his union activities but stemmed solely from his "falsifica- tion" of his application. The record reveals that in filling out the application Chabisek left blank the section of the employment history for "present employment" and gave as his last employment a firm named Jobs Unlimited, from 1971 to 1972. It is true that Chabisek had worked apparently very briefly for the Shamrock Office Supply Company in Kerrville. He made no secret of this but mentioned to Robbins in his interview that the job had "fallen through." Robbins was surely apprised by this that something remained to be explained but apparently did not take it up in the interview with Chabisek. Mamie Keith, a supervisor, recognized Chabisek as a salesman for the Shamrock Office Supply Company who had sold her supplies and talked to Chabisek about it in the entrance to Robbins' office. Conceivably Robbins did not hear this conversation. Upon its investigation of Chabisek 's application, Res- pondent 's personnel manager , Weinheimer , went right to Shamrock and in his conversation with Shamrock's proprietor clearly indicated his knowledge that Chabisek had worked for Shamrock. Chabisek's avowed reason for not putting down the Shamrock job was that he had worked there for such a short time that the employment was irrelevant to the job he was seeking . Assuming, as Chabisek obviously did, that the purpose of the listing of prior employment on the application was to enable Respondent to ascertain something of an applicant's experience, qualifications and background, it cannot be said that Chabisek was culpable in omitting his employ- ment at Shamrock, especially in view of his bringing the matter up in his employment interview with President Robbins. With regard to the second problem that Respon- dent apparently had in backtracking Chabisek's employ- ment history, the failure of Jobs Unlimited to support Chabisek's statement that he had been employed there as a counselor, and Chabisek's explanation that Jobs Unlimited had three separate offices and that he worked there under a pseudonym, with the employer's knowledge and for its benefit, raise no more than a suspicion which could easily have been eliminated by questioning Chabisek. I believe that to determine the issue it is necessary to go behind the report on Chabisek's application which took place on April 23 to the rationale for which the investiga- tion commenced . Robbins testified that he determined to investigate Chabisek because of the alleged statement to a fellow employee that Chabisek was running a check on employees, which is unsupported on the record, although the employee to whom Chabisek was alleged to make that statement is still employed, and because of the report that a contract engineer had kissed Debbie Chabisek on the mouth, which obviously Robbins did not discredit. Nevertheless Robbins testified that this caused him to think of Chabisek with relations to bombings, fires and destruction of the property of telephone companies, public buildings, banks, etc., a complete non sequitur. Robbins admitted that he knew that Chabisek was active for the Union long before April 23, when he received a notice from the Union that Chabisek was the chairman of the inplant organizing committee . The complete failure of support for the reasons given for the investigation of Chabisek leaves an inference that another reason exists, one which Respondent does not desire to disclose. In the terms of this proceeding, I infer that the mental picture of Chabisek as a dangerous revolutionary stemmed from his union activity rather from the fact that an engineer kissed Chabisek's wife. I infer further that Robbins considered that Chabisek was vulnerable because he knew full well that Chabisek had worked briefly for Shamrock and had not put this employment on the application. Accordingly, when he received the expected report that Chabisek in fact had worked at Shamrock, together with the report that 3 Harvey Aluminum, General Engineering, Inc, and Wallace A Ummcl 34 (C A. 9, 1964) d./b/a Wallace Detective and Security Agency v N LR B., 335 F 2d 749, In KERRVILLE TELEPHONE CO. 333 Jobs Unlimited had not supported Chabisek's statement that he had been employed there, Robbins felt that he had enough to warrant the discharge of Chabisek. After consulting counsel, he did not go through with the discharge, but on the morning of the election, immediately before it was to commence, he suspended Chabisek. Nevertheless Chabisek voted a challenged ballot. The following day, without any action having been taken in the interim to satisfy Robbins about Chabisek, he reinstated him with warnings concerning absenteeism, although he had an excellent record with Respondent, and a warning concerning talking about the Union with other employees, although there is no evidence that Respondent has ever before inhibited employees or nonemployees in soliciting on company premises and during working hours. Robbins further extended Chabisek's probation by some 4 months and warned him that any chance he might have to be sent by Respondent to a training school was condi- tioned on the possibility of Robbins regaining his "confi- dence" in Chabisek. Respondent argues that "whenever an employee comes under a cloud of suspicion the method of suspension during investigation and consideration of wrongdoing is fair and dust." This is not really arguable, but to apply that proposition to the fact situation we have here requires a farther reach than I have. A "cloud of suspicion" is scarcely raised by anything admitted by Respondent. If it existed, it resulted from Chabisek's union activity. Further, Chabisek was not suspended during any investigation of wrongdoing. There is no evidence of any wrongdoing in the first place and whatever investigation and considera- tion took place preceded his suspension, which fortuitously lasted only during the day of the union election. I conclude that the only purpose of the suspension was a hope that Chabisek would fail to vote in the election after being told to get off the company property. I conclude that the suspension resulted from Chabisek's union activity and had a natural tendency to discourage employees from engaging in union activity. I conclude further that the condition of reinstatement that Chabisek refrain from talking about the Union to his fellow employees was discriminatory and in violation of both Section 8(a)(3) and 8(a)(1) of the Act. The General Counsel contends that Respondent can- celed its promise to send Chabisek to the ITT school during the reinstatement interview. Basic to such a finding would have to be a finding that such a promise was made and I find that no such promise was made. It is not reasonable to believe that the president of this small telephone company promised that Chabisek would be sent to a school. I believe, as Robbins testified, that what he said merely amounted to a statement that schooling might well be available to Chabisek and an inquiry whether Chabisek would decline such schooling because of his marital status. I do not believe that Robbins would have made such a promise to an untested, untried, prospective employee who was admittedly deficient in experience in Respondent's particular business. If no promise had been made, obviously no promise could have been canceled. On the other hand, I believe that in the interview Robbins made the point that no schooling would be forthcoming until he had regained his confidence in Chabisek and it is quite clear that the only basis on which his confidence in Chabisek could have been destroyed was Chabisek' s union activity. I find, therefore, that by his statements Robbins discriminated against Chabisek in violation of Section 8(a)(3) and interfered with, coerced and restrained employ- ees within the meaning of Section 8(a)(1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with Respondent's opera- tions described in section I, above, have a close, intimate and substantial relationship to trade, traffic and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By discriminatorily suspending Herman Wayne Chabisek on April 25, 1973, and by conditioning his reinstatement on April 26 on his refraining from talking to employees about the Union; by threatening him with discharge for absenteeism and by conditioning the possibil- ity of sending Chabisek to school on his refraining from union activity, Respondent discriminated against an employee with regard his union activities in violation of Section 8(a)(3) of the Act and interfered with, restrained and coerced employees in the exercise of their rights guaranteed in Section 7 of the Act in violation of Section 8(a)(l) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in unfair labor practices, it is recommended that it cease and desist therefrom and take certain affirmative action to effectuate the policies of the Act. The suspension of Chabisek having been concluded by his reinstatement and Chabisek having been paid for the day during which he was suspended, no reinstatement or make-whole provisions are necessary. However, in order to place him in his former position, I shall recommend that Respondent expunge from his personnel records any record of his suspension and inform Herman Wayne Chabisek that the restrictions placed on him with regard to absenteeism or to talking to other employees about the 334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union are removed and further informing him that any opportunity he may have to go to school will not be affected by his activities on behalf of the Union. Upon the basis of the foregoing findings of fact, conclusions of law and the entire record in this proceeding, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER4 Respondent, Kerrville Telephone Company, its officers, agents, successors, and assigns, Kerrville, Texas, shall: 1. Cease and desist from: (a) Suspending or otherwise affecting the hire or tenure of any employees or conditioning said hire or tenure of any employee on their refraining from union activity to discourage membership in a labor organization. (b) In any like or related manner interfering with, restraining or coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action: (a) Expunge from the personnel records of Herman 4 In the event no exceptions are filed as provided by Sec 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec 102.48 of the Rules and Regulations, be adopted by the Board and become its findings , conclusions, and order, and all objections thereto shall be deemed waived for all purposes Wayne Chabisek any record of his suspension or of the conditions under which his suspension was removed. (b) Notify Herman Wayne Chabisek that he will not be discriminatorily discharged if he is absent again and that he will not be discharged for talking with other employees concerning the Union. (c) Post at its Kerrville, Texas, plant copies of the attached notice marked "Appendix." 5 Copies of said notice, on forms provided by the Regional Director for Region 23, after being duly signed by Respondent's representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 23, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 5 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board "