Morrison Cafeterias Consolidated, Inc.

MORRISON CAFETERIAS CONSOLIDATED, INC., ETC: 139 I shall therefore recommend that Carpenters cease and desist from giving members misleading answers to the latters' inquiries concerning possible penalties that might be inflicted by Carpenters if its members or members of affiliates should decide to work behind the picket line of another union, and I shall recommend that Carpenters post the notice marked "Appendix A," [Board's Appendix substituted for Trial Examiner's Appendix], explaining members' rights. On the evidence, I do not feel that there is any danger that Carpenters, in the future, will commit unfair labor practices generally or with regard to, other employers; so I shall limit my recom- mended cease and desist order to the type of unfair labor practices herein found. Since I have found that Operating Engineers have engaged in unfair labor prac- tices within the meaning of Section 8(b) (4) (i) and (ii) (B), I shall recommend that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. In my opinion, an order proscribing unlawful conduct, not only with respect to the employers herein involved but with respect to any other person within the jurisdiction of Operating Engineers, is warranted on the evidence in the case. Upon the basis of the foregoing findings of fact and the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Joint Venture is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Jarman is engaged in an industry affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 3. Each Respondent is a labor organization within the meaning of Section 2(5) of the Act. 4. By inducing and encouraging employees of the Joint Venture and Jarman to engage in a strike or a refusal in the course of their employment to perform services, with an object of forcing or requiring the Joint Venture to cease using concrete of, or to cease doing business with, Utah Sand and Gravel Products Corp., Carpenters and Operating Engineers have engaged in unfair labor practices within the meaning Of Section 8(b) (4) (i) (B) of the Act. 5. By threatening, coercing, and restraining the Joint Venture and members thereof with an object of forcing or requiring the Joint Venture and members thereof to cease using concrete of, or to cease doing business with, Utah Sand and Gravel, Operating Engineers has engaged in unfair labor practices within the meaning of Section 8 (b) (4) (ii) (B) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. 7. Teamsters has not engaged in unfair labor practices within the meaning of Section 8(b) (4) (i) (B) of the Act. [Recommended Order omitted from pulblication.I Morrison Cafeterias Consolidated , Inc., and Morrison Cafeteria Company of Little Rock, Inc. and Hotel-Motel,. Restaurant Employees Union, Local No. 200, Hotel and Restaurant Em- ployees and Bartenders International Union , AFL-CIO. Cases Nos. 26-CA-1514 and 26-CA-15,00. August 4, 1964 DECISION AND ORDER On April 22, 1964, Trial Examiner A. Bruce Hunt issued his Deci- sion in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take cer- tain affirmative action, as set forth in the attached Trial Examiner's 148 NLRB No. 15. 140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Decision. The Trial Examiner also found that the Respondents had not engaged in certain other unfair labor practices, and recommended that the allegations of the complaint pertaining thereto be dismissed. Thereafter, the Respondents filed exceptions to the Trial Examiner's Decision and a memorandum in support thereof. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with these cases to a three-member panel [Chairman McCulloch and Mem- bers Leedom and Brown]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and memorandum, and the en- tire record in these cases, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Order recommended by the Trial Examiner, and orders that the Respondents, their officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. I Member Leedom adopts the Trial Examiner's Recommended Order because the Re- spondents in this case clearly constitute a single employer, unlike the situation in Darling- ton Manufacturing Company, et al., 139 NLRB 241, where he dissented In part, at 262, in view of his disagreement with the majority' s single-employer finding. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE This proceeding involves allegations that the Respondents , Morrison Cafeterias Consolidated, Inc., and Morrison Cafeteria Company of Little Rock, Inc. (herein called, respectively, Morrison Consolidated and Morrison Little Rock ), violated Sec- tion 8 (a)(1), (3), and ( 5) of the National Labor Relations Act, as amended, 29 U.S.C., Sec. 151 , et seq.1 On September 25 and 26, 1963, Trial Examiner A. Bruce Hunt conducted a hearing at Little Rock, Arkansas, at which all parties were represented by counsel. Upon the entire record, and from my observation of the witnesses, I make the following: FINDINGS OF FACT I. THE RESPONDENTS Morrison Consolidated, a Florida corporation , has its general offices in Tampa. Through subsidiary corporations, it operates cafeterias and restaurants in various Southern and Southwestern States. Morrison Little Rock, a subsidiary, is an Arkansas corporation which operated a cafeteria in Little Rock prior to April 20, 1963, as detailed hereinafter . At all times material, the Respondents constituted a single integrated enterprise with common officers and directors who administered a common labor policy. During a 12-month period preceding August 1963 , the Re- x The charges were filed on April 15, 22 , and 30 and August 7, 1963. The complaint was issued on August 16, 1963. MORRISON CAFETERIAS CONSOLIDATED, INC,., ETC. 141 spondents had a gross volume of business exceeding $500,000. During the same period, the Respondents purchased goods valued in excess of $50,000 which were shipped to the cafeteria in Little Rock directly from points outside Arkansas. There is no dispute, and I find, that at times material the Respondents were engaged in commerce within the meaning of the Act. II. THE UNION Hotel-Motel, Restaurant Employees Union , Local No. 200, Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO, herein called the Union, is a labor organization which admitted to membership persons employed by Morrison Little Rock when that Respondent operated a cafeteria. III. THE UNFAIR LABOR PRACTICES A. Background In Morrison Cafeteria Company of Little Rock , Inc., 135 NLRB 1327, the Board found that during 1961 , the year in which Morrison Little Rock opened its cafeteria, that Respondent violated Section 8(a) (1) and (3) of the Act by inter alia dis- charging Cololsees Bowers and Leonard Montgomery . On January 10, 1963, the Court of Appeals for the Eighth Circuit enforced the Board 's Order, 311 F. 2d 534. Within a month, Bowers and Montgomery were reinstated in their former jobs as waiters. B. The issues Morrison Little Rock remained in business less than 3 months after the reinstate- ments. On April 19, 1963, the Union won a Board-conducted election, and the Respondents promptly closed the cafeteria. Our principal issues are whether the Respondents (1) invalidly suspended Bowers on April 12; (2) interrogated and threatened employees, and solicited an employee to eavesdrop upon union activities, during March and April; (3) closed the cafeteria and discharged the employees be- cause the Union won the election; and (4) refused to bargain collectively with the Union on and after April 19. C. The suspension of Bowers On February 1, 1963, Bowers was reinstated pursuant to the court's decree. On April 12, a week before the election, Bowers was suspended for 4 days, 2 of which were his regular days "off." He was back at work on April 17. As will appear, the Respondents are alleged to have engaged in conduct violative of Section 8(a)(1) before Bowers' layoff. The issues involving the layoff will be resolved first, how- ever, because they present the best vehicle for resolutions of credibility. According to the General Counsel, Bowers was the leading union adherent among the employees, and the Respondents suspended him in an effort to coerce other em- ployees to vote against the Union. The Respondents' hostility to Bowers is reflected in the case cited above and-in comments about Bowers which a representative of management made in preelection speeches to employees on April 17 and 18, dis- cussed hereinafter. Too, the Respondents' hostility toward the Union is clearly established by the record herein. It does not follow, however, that Bowers was suspended because of his adherence to the Union. According to the Respondents, Bowers became an unsatisfactory employee after his reinstatement on February 1 and he was suspended for valid disciplinary reasons. There is testimony for the Respondents that Bowers was absent from work or reported late upon occasion, that he slept during working hours, that he was insubordinate, and that he had to be directed to perform tasks which he knew to be within his duties. One such task was that a waiter, after carrying the tray of a customer to a table, should remove dirty dishes from another table before resuming his place in the line of waiters who were awaiting opportunities to serve customers. According to the Respondents, Bowers, after carrying the tray of a customer to a table, would hurry back to the line without first gathering dirty dishes in order to have a larger number of oppor- tunities to carry trays and thereby to obtain "tips." It is unnecessary to detail the testimony concerning Bowers' alleged derelictions. This is so because the heart of the General Counsel's case, concerning Bowers' suspension is Bowers' credibility, and I cannot believe him in certain crucial respects. During June 1963, Bowers was convicted of the crime of grand larceny, but the record does not disclose the date that the crime was committed. - Bowers testified that he was not absent from work because of the criminal case, but that he had been absent upon occasions when 142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD he was in jail for reasons which the record does not disclose? In addition, Bowers acknowledged having been absent from work on other occasions, and having been late to .work on still other occasions. Bowers impressed me as an unreliable wit- ness. He also impressed me as a person who, having been reinstated by force of a court decree, was likely to have become insubordinate .3 Turning to the events on the day of the layoff, April 12, Bowers engaged in a dispute with another waiter, Henry Williams. The latter had the duty.that day of acting as waiter in the em- ployees' dining room when the employees ate their afternoon meal. Williams was not prompt in serving them. After the meal, Melvin Proctor, a headwaiter and supervisor, observed Bowers talking with Williams, and Proctor heard Bowers use foul language in addressing Williams and in speaking of Proctor. Thereupon, Proctor called Bowers aside because customers were present, and reproved Bowers, who said that Proctor could not tell him what to do.4 Proctor reported the in- cident to another headwaiter, Melvin Paxton, and together they reported it to the manager of the cafeteria, Morris Chesser. Bowers was called to Chesser's office. Chesser told him that he was being laid off until April 17 because of his conduct in the dining room and his refusal to accept orders from Proctor .5 Bowers asked to be permitted to call Montgomery as a witness to the layoff (Montgomery had been- reinstated along with Bowers on February 1), and permission was granted. After Montgomery came to the office, Chesser repeated the reason for the layoff. I can- not credit Bowers' version of Chesser's remarks, set out in the footnote,6 nor am I enlightened by Montgomery's version? Having found that Bowers was an unreli- able, untruthful employee and that he engaged in conduct on April 12 which war- ranted the layoff of only 2 working days' duration, I conclude that the Respondents. did not violate Section 8(a)(3) by the layoff. 2 Bowers' conviction of the crime of grand larceny is properly considered in determin- ing his credibility.. His having been jailed for undisclosed reasons is properly considered" in evaluating the defense that Bowers could not be counted upon to report to work 3 On February 6, 1964, I received by mail a paper which appears to be a Thermo-Fax reproduction of a newspaper clipping that tells of an attempted holdup. According to the clipping, two men were charged with robbery One of the men is identified as " ^Colosses Bowens " Typewritten material appearing alongside the newspaper item recites. that the clipping is from the January 27 edition of the Arkansas Gazette, published in. Little Rock, and that "Colosses Bowens" is Cololsees Bowers Whoever sent the repro- duction to me did so anonymously. The envelope 'bears a New Orleans postmark, but no. return name or address Obviously, the clipping was sent to me in a cowardly and con- temptible effort to induce me to discredit Bowers. On February 10, I wrote to all attor- neys in the case, explaining what had occurred, enclosing copies of the communication to me and the envelope in which it arrived, and expressing confidence that no attorney im the case had had anything to do with the matter. On February 12, counsel for the Re- spondents, whose office is in New Orleans, replied, assuring me that he had had no con- nection with the matter. In evaluating Bowers' credibility, I have given no weight to, the communication. 4 These findings are based upon the testimony of Proctor, a witness for the Respond- ents. Williams was not a witness. Bowers acknowledged having talked with Williams concerning the latter's serving employees, but Bowers unconvincingly denied having been- critical of Williams and having been reproved by Proctor. Bowers also unconvincingly denied having been insubordinate to Proctor GThis finding is based upon the testimony of Proctor" Similar testimony was given by other witnesses for the Respondents, namely, Paxton, 'Chesser, and Ray Barrett, assistant to Chesser As will appear, I discredit Paxton and Chesser in several instances. More- over, Chesser's testimony concerning the report to him by Proctor appears to exaggerate- the foul language which Bowers used in speaking to Williams. 'Bowers testified that, before Montgomery was called to the scene, Chesser said that "the company was upset, a lot of people was nervous and jittery, and said that he had to call me back under control." Subsequently, in Montgomery's presence, according to. Bowers, Chesser "said the company was nervous and everybody was confused, said people were under the impression that he couldn't correct them any more on account of the [union] meeting that they had had the night before and he said, 'I'm going to have to lay you off for five days to get you back under control'" There is no testimony by Montgomery for the General Counsel or by any witness for the Respondents to support Bowers' testimony that Chesser referred to a union meeting. 7 Montgomery's' testimony is brief. According to Montgomery, Chesser told Bowers that. Chesser "was going to have to lay him off because he had caused too much confusion. among the people, people had gotten so that they didn't want to obey him and thought that he didn't have authority to fire anyone." MORRISON CAFETERIAS CONSOLIDATED, INC., ETC. 143` D. 'Interference, restraint, and coercion There is testimony by Bowers, contradicted by Paxton, that on March' 8 Paxton told Bowers that Paxton had heard that Bowers was soliciting union members among the employees and that Bowers would "get many people in a lot'of trouble and get people out of a job . . "; that on April 3 Paxton made similar remarks to Bowers; that on April 6 Paxton inquired whether Bowers was still soliciting members, saying that Bowers "was going to have everybody in trouble" and that ". . . Morrison's is not going to have a union"; and that on April 10 Paxton asked Bowers "to please quit" soliciting members, repeating that "Morrison was not going to have a union" and that Bowers was "just getting everybody in trouble." I have expressed my inability to credit Bowers. I note at this point that in certain instances Paxton, also did not impress me as a truthful witness, and I do not credit his denials that he made the remarks attributed to him by Bowers. On the other hand, in view of Bowers' unreliability, and the fact that Bowers' testimony is uncorroborated, I conclude that the General Counsel has not sustained his burden that Paxton spoke to Bowers as set forth above. During early March, when Paxton and Montgomery were riding in an automobile, Montgomery inquired what Paxton thought of the Union and of Montgomery's and Bowers' organizing efforts.8 Paxton replied that if the efforts should be success- ful, the employees would be "out of" their jobs.9 On or about the day that Montgomery and Paxton talked, Manager Chesser spoke to Montgomery. Chesser inquired if Montgomery thought that Montgomery and Bowers, were "doing the right thing in trying" to organize the employees, saying too that many of the employees were in debt, that organization of the employees "would get a lot of people out of jobs," and that "Morrison. Cafeteria definitely would not be run by a union." 10 About a week before the election, which was conducted on April 19, Chesser asked his secretary and bookkeeper, Carolyn Abernathy, who was ineligible to vote because she had been excluded from the appropriate unit, whether she had heard any em- ployees talk about the Union. Chesser requested that -Abernathy "kind of stay around in the dressing room" in an effort to overhear conversations among the em- ployees concerning the Union, and to report to him anything which she might hear. She complied with the •request.11 Turning to a conversation between Chesser and another employee, about April 15 Rosemary Collins asked him whether,the cafeteria would be closed in the event that the Union should be selected by the employees to, represent them. Chesser answered, "Probably so" because the cafeteria was not "making any money." 12 In summary, I find that the Respondents violated Section 8(a)(1) by Paxton's statement to Montgomery that the employees would be "out of" jobs if the organizational efforts should be successful, by Chesser's conversation with Montgomery in which Chesser said inter,alia that the cafeteria would be closed I In the initial case against Morrison Little Rock, previously cited, the Trial Examiner found at 135 NLRB 1330 that in 1961 Paxton was sympathetic to the efforts to organize the employees ' O The findings concerning this conversation are based upon Montgomery's testimony. On the other hand, Paxton testified unconvincingly that, although he and Montgomery rode in the automobile for about 3 miles, he maintained an absolute silence while Mont- gomery repeatedly asked questions about the Union, such as "whether the company would close the cafeteria," what Paxton thought about the Union, who would win the election, and "several more questions" 10 The findings concerning this conversation are based upon the testimony of Mont- gomery On the other hand, Chesser denied that he ever spoke to Montgomery or to any other employee about the Union I am unable to credit that denial in view of the Re- spondents' clear opposition to the Union, Chesser's demeanor, and the reliable evidence that he spoke with other employees concerning the Union, as described below "The findings concerning conversations between Chesser and Abernathy are based upon, the latter's testimony. She was a witness for the General Counsel. On the other hand, Chesser denied that he spoke with Abernathy about the Union. I cannot credit the denial, Abernathy impressed me as truthful although she was unable to remember the details of any report which she had given to Chesser According to Abernathy, it had "been too long" from the date of a report to the date that she testified, and there is nothing in the record to indicate that the subject was of such interest to her as to be impressed upon her memory. Moreover, she was Chesser's secretary for 6 months or more„ and the record does not reflect that she bears any hostility toward him or either of the Respondents. 12 This finding is based upon Collins' testimony. Chesser's version is that he answered Collins' question by saying that he did not know and that the "cafeteria is losing lots of money and what the officials of the company would do [he did not] know." 144 DECISIONS' OF NATIONAL LABOR RELATIONS BOARD if those efforts should succeed, by Chesser's solicitation of Abernathy to report to him concerning union activities , and by Chesser's statement to Collins that the cafeteria probably would be closed if the employees should select the Union to represent them. On April 17, 18, and 19 the employees were addressed by James E. Holland, an officer and director of Morrison Consolidated, the parent corporation. The last of the addresses followed soon after the election and notified the employees that the cafeteria was being closed. That address is mentioned in the next section of this Decision. With respect to the addresses of April 17 and 18, the complaint alleges that Holland threatened closure of the cafeteria. Bowers testified that Holland em- phasized that the employees should vote against the Union if they wanted to retain their jobs, and Mrs. Willie Johnson, another witness for the General Counsel, testified that in the first address Holland said that the cafeteria probably would be closed if the employees should select the Union to represent them. In contradiction of this testimony, the Respondent produced typed copies of Holland's addresses, and the witnesses are agreed that Holland read, or appeared to read, everything that he said. The copies reflect that Holland marshaled arguments against the Union and urged the employees to vote against it, but the copies do not corroborate the testimony of Bowers and Johnson. In the first address, Holland attributed to the Union a "rumor" that operation of the cafeteria had been profitable, and he said that the cafeteria had lost money month after month, and that "unless something can be done to get us into a profit-making situation pretty soon we will be faced with a very serious question as to how long we can afford to continue operating a cafeteria that is consistently losing money for the company." In contrast to the quoted statement, Holland implied repeatedly that the cafeteria would remain open, as, for instance, in the following remarks: I think you should know that your wages, your jobs and the other benefits here are governed by only one thing-that is, your good work, good manage- ment, conditions in the food serving industry and whether we can make a profit. Any future benefits will be made just as quickly without a union representing you as with one. * * * * * * * We're going to pay as much as we can and still stay reasonably in line with other cafeterias. * * * * * * * ... just as fast as our progress permits, we expect to pass benefits on to our employees ... . * * * * * * * Whether you recognize it or not, we are in this business together, and if the company can be successful by exercising sound business judgment, the employees will benefit accordingly. On April 18, Holland said that, in the event of a union victory at the polls, grievances and arbitration procedures would be established. He added that such procedures would be costly to "both the company and the union," and might cause the Union to raise the dues of its members. Holland also said: This union has nothing to do with our operating profitably; on the contrary it could very easily be the means of our continuing to operate without a profit by causing constant friction between you and us. * * * * * * * If you don't [vote against the Union], I'm afraid we'll all be in for considerably more tension and trouble and a continuation of the upset conditions I just mentioned. In addition to the above remarks, Holland said, "Remember this: Union or no union, we-not the union-will still sign the paychecks, and we-not the union-will still manage the cafeteria and furnish the money to make those checks good." I conclude that the record will not support a finding that Holland threatened closure of the cafeteria, although it is clear that lesser supervisors did so. E. The closing of the cafeteria; the terminations of employment The election was conducted during the afternoon of April 19. The .Union won. At the end of the business day, Holland read to the employees an announcement that the cafeteria would not be open for business again. The announcement said that the unprofitable operation of the cafeteria since its opening in February 1961 was the basis of the closing, that all employees would be offered employment .'at one-or another" of the cafeterias operated by Morrison Consolidated, the parent corporation; MORRISON CAFETERIAS CONSOLIDATED, INC., ETC. 145 and that "Mr. Chesser will telephone or otherwise get in touch with you as soon as he can determine where we can place you and you can come down and work the matter out with him." The Union, which had not been informed by the Respondents of the cessation of operations in Little Rock, promptly dispatched a telegram to the subsidiary corpora- tion requesting immediate negotiations concerning the cessation. On April 22, the Union, which had filed charges in Case No. 26-CA-1514 concerning Bowers' sus- pension, filed its initial charge in Case No. 26-CA-1520 alleging violations of Sec- tion 8(a)(1), (3), and (5) in the closure of the cafeteria and the terminations of employment. On the same day, Cy G. Lowe, an industrial relations consultant in New Orleans who had been retained by the parent corporation, telegraphed the Union that the cessation had been "solely for economic reasons" and that, upon request of the Union, documents to establish such reasons would be made available to the Union. On April 23 and 24 the employees, numbering nearly 50, a few of whom were not in the appropriate unit, went to the cafeteria to obtain their paychecks. They were interviewed individually by Chesser and his assistant, Barrett. Each employee was offered a job in 1 of 16 cafeterias in the chain, but in each instance the location had been determined by the Respondents and the employee had no choice between loca- tions.13 The vast majority of the employees declined, about a dozen expressed in- decision and later declined, while about a half dozen accepted. Chesser spoke to some of the employees, but not to all of them, about transportation expenses to the new locations. The record does not disclose exactly what he said.14 On April 27, the Union's attorney, Youngdahl, wrote to Lowe, saying that he wished to see the documents referred to by Lowe in the telegram of April 22, that he was distressed that the Respondents had taken unilateral action following the Union's telegram of April 19, and that the Union wished to bargain "on all the details" of the closure, including transfers of employees to jobs in other cafeterias. On April 30, Lowe telephoned Youngdahl and arranged a meeting for May 3 in Little Rock. On the latter day, representatives of the Respondents and the Union met. The Union's position appears to have been basically a protestation of the Respond- ents' unilateral actions, coupled with a determination to press its unfair labor practice charges, while the Respondents sought to justify their conduct. Certain economic data concerning the cafeteria were given to the Union, and later during the month additional data were given. (The data are discussed below.) According to Lowe, his explanation for the Respondents' having dealt with the employees individually, instead of with the Union, concerning transfers of employees to other cafeterias, was that the Respondents "were interested in saving time" and sought to arrange the transfers as quickly as possible. That explanation is manifestly less than candid. It also assumes that an employer's desire to "save time" is paramount to employees' statutory rights. There were no further meetings between the Union and the Respondents. Turning to the economic data which the Respondents submitted in defense, it should be noted first that the cafeteria was not located in downtown Little Rock, but in a shopping center within a residential area. Space in the center was leased by the Respondents. At the time of the hearing, the center had not been fully de- veloped and, in particular, efforts by the center's owners to have a department store located there had been unsuccessful. During March 1961, the first full month in which the cafeteria was operated, it had its highest number of customers, 43,200. During the period of April through August, the number fluctuated between about 38,400 to 40,100, following which the number declined during the next 3 months to "The 16 cafeterias (not the entire number in the chain) are located in Mobile and Montgomery, Alabama ; Daytona Beach, Jacksonville, Ocala, Sarasota, Tampa, and West Palm Beach, Florida ; Columbus and Savannah, Georgia ; Shreveport, Louisiana ; Jackson, Mississippi ; Columbia and Greenville, South Carolina ; and Chattanooga and Nashville, Tennessee. 14 Chesser testified that he offered payment of transportation expenses, including move- ment of household goods, to all employees except those who promptly rejected the offers of transfer to employment elsewhere and left his office before he could explain that the transfers would be without expense to the employees. On the other hand, Barrett, also a witness for the Respondents, testified that Chesser "told those who wanted" transfers, and those who did not leave before Chesser could complete his remarks, that "their trans- portation would be paid," but Barrett could not recall that Chesser told any employee what be meant by the word "transportation," nor could Barrett recall that there had been any discussion with any employee concerning whether the Respondents would bear the cost of moving the employee's family. 760-577-65-vol. 148-11 146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD less 33 ,000. The number rose during December to about 36 ,700, and then dropped to less than 29 ,000 during January 1962. From February through August, the number fluctuated between about 29,200 and 33 ,600, following which there was a decline each month through January 1963 when the number was about 21,800. During February and March the number increased, reaching nearly 28 ,000 during the latter month. During the 19 days of operation in April, the number of customers was at a monthly rate of about 26,100. With respect to dollar volume , the record shows that the Respondents ' fiscal year ends on October 31, that during the 9 months in which the cafeteria was open during the fiscal year ending October 31, 1961, during the entire next fiscal year, and during that portion of the 1963 fiscal year in which the cafeteria was open, it was operated at a financial loss, the amounts chronologically being $3,100, $12,525, and $13,238. These figures are not attributable entirely to a lack of customers, however, for rea- sons set out in the footnote.15 When these figures are broken down by months, it appears that the cafeteria operated at a profit for 4 of the 5 months during the fiscal year 1961, 3 of the 12 months during the fiscal year 1962, and none of the 5 and a fraction months during the fiscal year 1963. It does not follow, however, that the cafeteria was closed on April 19, 1963, for economic reasons alone, and the Respondents, while asserting that closure of the cafeteria had been considered for as long as a year, concede frankly that the cafeteria would not have been closed on April 19 if the Union had lost the election and that no decision had been made before April 19 to close the cafeteria by a particular date if it should have continued to op- erate at a loss. Nevertheless, the Respondents argue that the closure was due entirely to economic reasons. According to Holland and Lowe, shortly after the election the latter advised the former that negotiations with the Union would result in additional costs to the subsidiary corporation over and above any costs that might result from improved working conditions. In particular, Lowe spoke to Holland of fees to be paid to anyone whom the Respondents might select to represent them in negotiations, the fact that grievance and arbitration proceedings cost money, that there would be attorneys' fees in the event that the Respondents should have to defend themselves against unfair labor practice charges, and that there would be bookkeeping costs in the maintenance of seniority lists. To some extent, this advice was not new to Holland, who had spoken to the employees on April 18 concerning the cost of handling grievances, perhaps through arbitration, and of "having a lawyer" participate in such proceedings. Following the conversation between Holland and Lowe, the former telephoned the president of the parent corporation, as well as the Respondents' attorney, and the president authorized closing the cafeteria. Hol- land then notified the employees, as described above. I cannot agree with the Respondents' assertion that the cafeteria was closed solely for economic reasons. As recited, the closure was triggered by the Union's victory in the election. If the employees had not selected the Union to represent them, they would have retained their jobs for an indeterminable length of time. It is true that the cafeteria was not a profitable operation, due partly to a shortage of customers and partly to the cost of having engaged in unfair labor practices. See footnote 15, supra. The Respondents say, however, that when the employees exercised their statutory right to union representation, this exercise meant increased costs in the operation of the cafeteria and, therefore, that the Respondents were motivated solely by economic considerations, rather than hostility to the Union, in closing it. The Respondents' use of words amounts, at most, to a distinction without a difference which does not serve to hide the Respondents' basic purpose in closing the cafeteria. Of course, the Respondents could anticipate that increased costs might flow from collective bargaining. That is a fact of industrial life which is inherent in the policy of the Act. It does not afford a defense here, however. To paraphrase a determina- tion of the Board in another case, the Respondents' argument that they shut down because they could not afford to deal with the Union ignores the possibility that if they had bargained in good faith they may have found the Union's interest in con- tinued employment for the employees such that the Union's position during bargain- 15 The last figure, $13,238 , includes a loss of $4 ,435 for April 1963 . That loss far ex- ceeds the loss in any other month and may be contrasted with the loss for the month next preceding, March 1963, which was $547 It is a reasonable inference that the loss for April includes expenses incident to , and following , the closing of the cafeteria More- over, the figures which reflect the losses for the 3 fiscal years include, on a pro rata basis, backpay to the dischargees (Bowers, et al.) In the case mentioned above. Accord- ing to the Respondents, the backpay totaled $7,19'8. According to the Union, it totaled $10,039 The record does not disclose the extent to which the cafeteria's losses may re- flect other expenses in connection with that case, such as attorneys' fees, and costs of transcript and printed briefs, etc MORRISON CAFETERIAS CONSOLIDATED, INC., ETC. 147 ing would have been sympathetic to the Respondents' problems. Esti Neiderman, et al, d/b/a Star Baby Co., 140 NLRB 678, 680.16 When the Respondents closed the cafeteria without notice to the Union concerning that action and without an offer to bargain about it, and when the Respondents, a few days later, ignored the Union's telegram of April 19 and dealt unilaterally with employees concerning work in other cafeterias in the chain, the Respondents demonstrated that their hostility to collective bargaining, exemplified by violations of Section 8(a)(1) and (3) in 1961 and violations of Section 8(a) (1) in 1963 before the closure, had not ceased. In their brief, the Respondents rely upon Mount Hope Finishing Company v. N.L.R.B., 211 F. 2d 365 (C.A. 4); and N.L.R.B. v. New Madrid Manufacturing Company and Harold Jones, d/b/a Jones Manufacturing Company, 215 F. 2d 908 (C.A. 8). Those cases were decided in 1954. They are distinguishable on the facts from the instant case, but the distinctions need not be detailed because I, as a Trial Examiner, am bound by the Board's interpretations of the law unless and until the Supreme Court should decide to the contrary, Insurance Agents' International Union (The Prudential Insurance Company of America), 119 NLRB 768, reversed on other grounds 260 F. 2d 736, and 361 U.S. 477. A recent case will be dia- positive of the issues here if the Board's views should be sustained. See Darlington Manufacturing Company, et al. v. N.L.R.B., 325 F. 2d 682 (C.A. 4), denying en- forcement of 139 NLRB 241; petition for certiorari filed by the Board on Febru- ary 28, 1964 [cert. granted 377 U.S. 903, Apr. 20, 1964]. In that case, the court of appeals, sitting en banc, divided 3 to 2 in denying enforcement. The court's opinions were issued after briefs had been filed in the instant case, which doubtless accounts for the fact that the Respondents here did not cite the majority opinion of the court in Darlington as controlling 17 Judge Bell, dissenting, stated the question which was posed there and is posed here: In my opinion the question presented to this court is whether an employer commits an unfair labor practice when he closes down a part of his business in order to discourage the practice and procedure of collective bargaining and to retaliate against his employees for exercising their freedom of self organiza- tion under the National Labor Relations Act. Judge Bell answered the question in the affirmative, as the Board had done, and, as stated, the Board's view is controlling here. Accordingly, I find that the Respond- ents, by closing the cafeteria in Little Rock under the circumstances and -for the reasons found, thereby terminating the employees' employment in that city, violated Section 8(a) (3) and (1). I find also that the Respondents, by unilaterally closing the cafeteria and by unilaterally dealing with employees concerning employment at cafeterias elsewhere, violated Section 8(a)(5) and (1). I add that my conclusions are not inconsistent with the court's opinion in Adams Dairy, cited supra at foot- note 17. In that case the employer and union had bargained collectively for years, and it was undisputed that the employer's decision to terminate certain operations' was not founded in whole or in part on antiunion motivation. The basic question was whether such decision was a mandatory subject of bargaining. The court held that the employer's decision "to terminate a phase of its business and distribute all of its products through independent contractors was not a required subject of col- lective bargaining." The court added, significantly here, that "[a]fter that decision had been made, however, Section 8(a)(5) did require negotiation with refeience to ""This Is not to say that an employer may not discharge all his employees and with- draw from the market If the results of collective bargaining have in his judgment made continued operation economically unsound An employer who has afforded his employees their full statutory rights and has bargained in good faith, and then changes or dis- continues operations in the belief that he is financially unable to withstand or to meet their Union's economic demands, violates no proscription contained in the Act " This quotation is from the Board's brief in N.L R.B. v. Esti Neiderman and Gizela Eisner, in- dividually and as co-partners d/b/a Star Baby Co., now pending in the Court of Appeals for the Second Circuit, No. 28626 [334 F 2d 601] "The New Madrid case cited by the Respondents arose in the same circuit as the in- stant case (See the discussion of the New Madrid case in the Board's Darlington de- cision, 139 NLRB 241, 249-250 ) Later cases in that circuit support the remedy to be recommended herein See, e g, that portion of Judge Bell's dissenting opinion in Darling- ton In which he discussed N L R B v Missouri Transit Company, et al, 250 F 2d 261 (C.A 8). .See too NLRB. v. Adams Dairy, Inc, 322 F. 2d 553 (C.A. 8), which Is re- ferred to below and in which the Board's petition for certiorari was filed on January 9, 1964. 148 DECISIONS OF NATIONAL LABOR,RELATIONS BOARD the treatment of the employees who were terminated by the decision," and in this connection, the court was of the view that "jobs available to the displaced employees in other plants which might be owned by the respondent" constitute a subject for negotiation. IV. THE REMEDY Having found that the Respondents have engaged in unfair labor practices, I shall recommend that they cease and desist therefrom and that they -take affirmative action designed to effectuate the policies of the Act. The General Counsel requests in his brief that I recommend that the Respondents be required to "reinstate" the Little Rock operation and offer employment therein to all discriminatees. According to the General Counsel, "effectuation of the policies of the Act requires no less than restoration of the status quo ante." I reject the General Counsel's request. The Respondents did not own the space which was occupied by the cafeteria. That space was leased from the owners of the shopping center. During August 1963, 4 months after the cafeteria was closed, the space was reopened as a cafeteria by a person or organization unconnected with the Respondents. Insofar as appears, that cafeteria is still in operation, and the contractual rights and obligations of the shopping center's owners and the new lessee cannot be disrupted by any order against the Respondents herein. Next, it would be ineffectual to recommend that the Respondents seek other space in the shopping center or elsewhere in Little Rock. Consequently, I shall make other recommendations respecting employment for the employees in an effort to require the Respondents to rectify the effects of the unfair labor practices. At the time of the hearing, Morrison Little Rock retained its corporate existence although it was not engaged in business anywhere. I shall recommend that, if Morrison Consolidated should resume business in Little Rock under its own name or the name of any of its subsidiaries, it shall, upon request, bargain collectively with the Union as the exclusive representative of employees in the unit set forth under Conclusion of Law No. 2 below, and embody in a signed agreement any understanding which may be reached. With respect to the rights of employees to employment at other cafeterias in Morrison Consolidated's chain, the Respondents say in their brief: Respondent here made bona fide offers of transfer to the employees, ten of. which were accepted ... six of whom followed through and reported to the new locations . Transportation expenses were offered to the employees in each instance . and all the employees were treated evenly and without any favor among them. Accordingly, it is the Respondent's position here that all was done that could be done to give fair and legal treatment to the employees under the unfortunate circumstances of terminating the cafeteria operations in Little Rock ... . This contention is unpersuasive. Lowe testified for the Respondents that on April 23 there were enough vacancies in the numerous cafeterias to afford a job to each employee. Nevertheless , each employee was offered a job in one city only, a city of the Respondent's choice in each instance Moreover, the very act of the Respondents in offering transfers to employees was in breach of the Respondents' duty to bargain collectively with the Union concerning the matter. Too, we have seen in footnote 14 that the Respondents did not explain to each employee that a transfer would be at the Respondents' expense. These circumstances dictate the finding that the Respondents, which objected to having union adherents in their employ, did not make bona fide offers of transfers, but sought to handle the matter in such a way as to limit the number of acceptances . I shall recommend that, in the event the Respondents should not resume business in Little Rock, Morrison Con- solidated offer to each person who was on Morrison Little Rock's payroll during April 1963 (exclusive of the six persons who were transferred to work in other cafeterias ) substantially equivalent employment (The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65 NLRB 827) in Morrison Consolidated's chain of cafeterias, without prejudice to his or her seniority or other rights or privileges , to the extent that positions are available in those cafeterias. Available positions shall be distributed among the discharged persons in accord- ance with Morrison Consolidated's usual method of operation under curtailed production, without discrimination against any employee because of union affilia- tion or activities, following the system of seniority, if any, customarily applied by Morrison Consolidated. Any remaining discharged persons for whom no work is MORRISON CAFETERIAS CONSOLIDATED, INC., ETC. 149 - available under the foregoing arrangement shall be named 'on a preferential hiring list and thereafter, in accordance with such list, shall be offered employment in their former or substantially equivalent positions as such employment becomes available and before other persons are hired for such work. I shall recommend also that the Respondents offer to pay each person the travel and moving expenses involved in, moving his or her family and household effects. Darlington Manu- facturing Company, et al., 139 NLRB 241 at 258-259. With respect to all persons within the appropriate unit, I shall recommend that Morrison Consolidated "bargain with the Union for the 'purpose of reaching an agreement as to the mode of operation of the preferential hiring lists, and as to the terms and conditions under which the former employees" of the Respondents "may, if they desire, obtain employment at other" cafeterias and restaurants oper- ated by Morrison Consolidated directly or through subsidiaries. Darlington Manufacturing Company et al., supra, at 259. With respect to backpay for each person who ceased working for Morrison Little Rock as a consequence of the cafeteria's closure, I shall recommend that the Re- spondents make whole each of such persons (many of whom are named in the complaint and in Respondents' Exhibit No. 1) for any loss of pay he or she may have suffered as a result of the Respondents' unfair labor practices, by payment to him or her of a sum of money equal to that which he or she normally would have earned from the date that he or she ceased work following the cafeteria's closure 18 to the date that backpay shall be tolled as described below, less his or her net earnings (Crossett Lumber Company, 8 NLRB 440, 497-498) during said period, the payment to be computed on a quarterly basis in the manner established in N.L.R.B. v. Seven-Up Bottling Company of Miami, Inc., 344 U.S. 344, with interest at 6 percent per annum, Philip Carey Manufacturing Company, Miami Cabinet Division v. N.L.R.B., 331 F. 2d 720 (C.A. 6), and cases cited therein. Backpay for each such person shall terminate under any of the following circumstances, whichever occurred or may occur first: (1) the day that he or she may be offered substantially equivalent employment in Little Rock in a cafeteria operated by the Respondents, (2) the day that he or she secured or may secure substantially equivalent employment (a) with another employer or (b) by transfer to a cafeteria in Morrison Consolidated's chain, and (3) the date his or her name may be placed on a preferential hiring list as provided above. A further qualification upon the Respondents' liability for backpay is that they shall have the opportunity in the compliance stage of this proceeding to show that the cafeteria in Little Rock would have been closed as of a particular date if the employees had not selected the Union to represent them on April 19, 1963. Darlington Manufacturing Company, et al., supra, at 254. I shall recommend that the Respondents preserve and, upon request, make avail- able to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and. reports, and all other records necessary to analyze the amount of backpay due and the rights to reinstate- ment under the terms of this Recommended Order. In accord with the Board's Decision in Darlington, and in view of the fact that notices to employees cannot now be posted by the Respondents in the cafeteria in Little Rock, I shall recommend that the Respondents send, by first class mail, appropriate notices to the persons who were in their employ in Little Rock during April 1963, at such persons' last known addresses, and that the Respondents pub- licize the notices in one of the principal daily newspapers in Little Rock In addi- tion; and because a widespread posting of notices is essential to rectify the effects of the Respondents' unfair labor practices, I shall recommend that Morrison Con- solidated post notices in all of its places of business, whether operated directly or through subsidiaries.19 In order to make effective the interdependent guarantees of Section 7 of the Act, I shall recommend that the Respondents cease and desist from infringing in any manner upon the rights guaranteed in said section. N.L.R.B. v. Express Pub- lishing Company, 312 U.S. 426; N.L.R.B. v. Entwistle Mfg. Co., 120 F. 2d 532 (C.A. 4). 18 For the vast majority of persons this date is April 20, 1963. ""'Its closure was intended to be and was a grim deterrent to the thousands of em- ployees in the affiliated plants who might entertain similar notions of unionization," Judge Bell dissenting in Darlington Manufacturting Company, et al v. N L R B , 325 F. 2d 682 (C.A. 4) 150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ,Upon the basis of the above findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS 'OF LAW 1. The Union is a labor organization within the meaning of Section 2(5) of the Act. - 2. All dishwashers, cooks, busboys, waiters, counter employees, cleanup employees, and stockroom employees at the Respondents' Little Rock, Arkansas, cafeteria, ex- cluding confidential secretary, headwaiters, cashiers, guards, watchmen, and super- visors as defined in the Act, constitute a unit appropriate for the purposes of collec- tive bargaining within the meaning of Section 9(b) of the Act. 3. On April 19, 1963, the Union was, and at all times thereafter has been, the exclusive representative of all employees in such unit for the purposes of collective bargaining. 4. By interfering with, restraining, and coercing employees in the exercise of their rights under the Act, by discouraging membership in the Union through discrimina- tion in employment, and by refusing to bargain collectively with the Union, the Respondents have engaged in and are engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(1), (3), and (5) and Section 2(6) and (7). 5. The allegations of the complaint that the Respondents invalidly suspended Bowers on April 12, 1963, have not been sustained. RECOMMENDED ORDER Upon the entire record in the case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, I hereby recommend that: 20 A. The Respondents, Morrison Cafeterias Consolidated, Inc., and Morrison Cafe- teria Company of Little Rock, Inc., their officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with Hotel-Motel, Restaurant Employees Union, Local No. 200, Hotel and Restaurant Employees and Bartenders Inter- national Union, AFL-CIO, as the exclusive representative of all employees in the appropriate unit. (b) Discouraging membership in said labor organization, or in any other labor organization of their employees, by closing a cafeteria or other business establish- ment and discharging their employees, or by discriminating in any other manner in regard to their employees' hire or tenure of employment or any term or condition of employment. (c) Interrogating employees concerning union activities, threatening to terminate business operations if employees should select a labor organization to represent them, and soliciting employees to eavesdrop on union activities and to report to management concerning such activities. (d) In any other manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act. (a) In the event that the Respondents should resume operations in Little Rock, Arkansas, upon request bargain collectively with the above-named labor organiza- tion as the exclusive representative of all employees in the aforesaid unit and, if an understanding should be reached, embody such understanding in a signed agreement. (b) Offer employment to all persons who lost their jobs because of the closure of the cafeteria in Little Rock, and make whole all persons for any losses of pay, in the manner set forth in the section of this Decision entitled "The Remedy." (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other records as set forth in the section of this Decision entitled "The Remedy." (d) Place as advertisements, once a week for 8 consecutive weeks in one of the principal daily newspapers of Little Rock, signed copies of the attached notice 20 If this Recommended Order should be adopted by the Board, the words "the National Labor Relations Board hereby orders" shall be substituted for the words "I hereby recommend." MORRISON CAFETERIAS CONSOLIDATED, INC., ETC. 151 marked "Appendix," which shall be ,prepared for the Respondents by the Regional Director for Region 26.21 (e) Mail to each person who was formerly employed by the Respondents in Little Rock, at his or her last known address, signed copies of said notices (to be prepared by said Regional Director), as provided in the section of this Decision ,entitled "The Remedy." (f) Notify said Regional Director, in writing, within 20 days from the receipt of this Decision, what steps,the Respondents have taken to. comply herewith.22 B. The Respondent, Morrison Cafeterias Consolidated, Inc., its officers, agents, successors, and assigns, shall take the following additional affirmative action which is necessary to effectuate the policies of the Act: 1. Bargain collectively with the above-named labor organization with respect to the reinstatement of employees, in the manner set forth in the section of this Decision entitled "The Remedy." 2. Post at each of its business establishments in various States, whether such establishments be operated by this Respondent directly or through subsidiaries, copies of the attached notice marked "Appendix." 23 Copies of said notice, to be prepared by the Regional Director for Region 26, shall, after being duly signed by this Re- spondent's representative, be posted by it immediately upon receipt thereof, and be maintained by it for at least 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted.24 Reasonable steps shall be taken by this Respondent to insure that said notices are not altered, defaced, or covered by any other material. 3. Notify said Regional Director, in writing, within 20 days from the receipt of this Decision, what steps this Respondent has taken to comply with provisions B, 1 ,and 2, above 25 It is further recommended that the complaint be dismissed insofar as it alleges that the Respondents invalidly suspended Cololsees Bowers on April 12, 1963. 21 If this Recommended Order should be adopted by the Board, the words "as Ordered by" shall be substituted for "as Recommended by a Trial Examiner of" In the notice. In the further event that the Board's Order be enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals, Enforcing an Order of" shall be inserted immediately following "as Ordered by." 22 If this Recommended Order should be adopted by the Board , this provision shall be modified to read: "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondents have taken to comply herewith." 23 See footnote 21, supra. u For the purposes of this provision ( B, 2) only, the Regional Director, in preparing copies of the Appendix, shall delete the name "Morrison Cafeteria Company of Little Rock, Inc." and the word "and" which precedes it. a If this Recommended Order should be adopted by the Board, this provision shall be modified to read. "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps this Respondent has taken to comply with provisions B, 1 and 2, above." APPENDIX NOTICE TO ALL EMPLOYEES As recommended by a Trial Examiner of the National Labor Relations Board, we are posting this notice to inform our employees of rights guaranteed to them in the National Labor Relations Act. WE WILL NOT discourage membership in Hotel-Motel, Restaurant Employees Union, Local No. 200, Hotel and Restaurant Employees and Bartenders Inter- national Union, AFL-CIO, or in any other labor organization of our employees, by closing a cafeteria or other business establishment and discharging our em- ployees, or by discriminating in any other manner in regard to their hire or tenure of employment or any term or condition of employment. WE WILL NOT interrogate employees concerning union activities, threaten to terminate business operations if they should select a union to represent them, or solicit employees to eavesdrop on union activities and to report to manage- ment concerning such activities. WE WILL NOT violate any of the rights which our employees have under the National Labor Relations Act to join a union and to engage in union activities, or not to join a union and not to engage in such activities. 152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL, in the manner required by the National Labor Relations Board, offer all our former employees in Little Rock, Arkansas, full reinstatement to their former jobs if we should open another cafeteria in Little Rock, or sub- stantially equivalent jobs in other cafeterias in the Morrison chain. There will be no loss of seniority or other rights by any employee. WE WILL give backpay to all our former employees to cover the earnings they lost because we closed the cafeteria in Little Rock and discharged them. WE WILL, in the event that we resume operations in Little Rock, bargain upon request with Local No. 200 as the exclusive representative of employees in the bargaining unit described below, and we will embody, in a signed agree- ment any understanding reached. In the event that we should not resume operations in Little Rock, Morrison Cafeterias Consolidated, Inc., will bargain collectively with Local No. 200 con- cerning the transfer of employees to jobs in other cafeterias in our chain. The bargaining unit is: All dishwashers, cooks, busboys, waiters, counter employees, cleanup employees, and stockroom employees at our Little Rock cafeteria, exclud- ing confidential secretary, headwaiters, cashiers, guards, watchmen, and supervisors as defined in the Act. All our employees are free to become or remain members of Local No. 200, or any other union, and they also are free to refrain from joining any union. MORRISON CAFETERIAS CONSOLIDATED, INC., AND MORRISON CAFETERIA COMPANY OF LITTLE ROCK, INC., Employer. Dated------------------- By------------------------------------------- (Representative) (Title) NOTE.-If any of our former Little Rock employees are currently serving in the Armed Forces of the United States, we will notify them of their right to full re- instatement or transfer upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948, as amended. 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. If the employees have any questions concerning this notice or whether the Em- ployer is complying with its provisions, they may communicate with the Board's office at 3507 Federal Building, 700 West Capital Avenue, Little Rock, Arkansas, Telephone No. Fr. 2-4361, Extension 512. P.B. & S. Chemical Company, Hat-Ra Chemical Company, and Preston Chemical Company and Chauffeurs, Teamsters and Warehousemen's Local Union No. 215, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case No. 25-CA-1785. August 4,1964 DECISION AND ORDER On April 30, 1964, Trial Examiner William Seagle issued his Deci- sion in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices violative of Section 8(a) (1), (3), and (5) of the Act, and recom- mending that they cease and desist therefrom and take certain affirma- tive action, as recommended in the attached Trial Examiner's Deci- sion. Thereafter, Respondents filed exceptions to the Trial Examiner's Decision and a supporting brief and the General Counsel filed a brief in support of the Trial Examiner's Decision. 148 NLRB No. 22.