Moulton Manufacturing Co.

196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a clear demonstration of error, I find no basis in reason or logic for the Board to upset the Decisions and Orders of the Regional Directors. To do so defeats the very reasons for delegating authority to the Regional Directors to make these determinations. As I find that the Petitioner has failed to demonstrate convincingly that the Acting Regional Director's Decision is in error, I would sus- tain the Decision and Order and dismiss the petition. Moulton Manufacturing Company and International Ladies' Gar- ment Workers' Union, AFL-CIO. Case No. 10-CA-5648. April 08, 1965 DECISION AND ORDER On January 19, 1965, Trial Examiner Rosanna A. Blake issued her Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, and recom- mending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. There- after the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Fanning, Brown, and Jenkins]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial errors was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and brief, and the entire record in this case, and 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 Recommended Order of the Trial Examiner and orders that Respondent, Moulton Manufacturing Company, Moulton, Alabama, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Upon charges filed on March 11 and April 27, 1964 , by the International Ladies' Garment Workers' Union, AFL-CIO, the General Counsel, acting through the Act- 152 NLRB No. 23. MOULTON MANUFACTURING COMPANY 197 ing Regional Director for Region 10, issued a complaint on April 28, 1964, in which it was alleged that Moulton Manufacturing Company had engaged in conduct which violated Section 8(a) (1), (3 ), and (4 ) of the Act. In its answer, Respondent admitted certain allegations of the complaint, such as the commerce allegations, but denied having committed any unfair labor practices. Thereafter, pursuant to due notice , a hearing was held before Trial Examiner Rosanna A. Blake in Decatur , Alabama, beginning on July 28 and ending on July 31, 1964. All parties were represented by counsel and were given full opportunity to present evidence, to examine and cross -examine witnesses, to argue orally , and to file briefs. All parties waived oral argument. Counsel for the General Counsel filed a brief as did counsel for Respondent. Upon the entire record in the case , the briefs , and my observation of the witnesses while testifying, I make the following: 1 FINDINGS OF FACT AND CONCLUSIONS OF LAW I. JURISDICTIONAL FACTS AND CONCLUSIONS ; THE LABOR ORGANIZATION INVOLVED Respondent, an Alabama corporation , has its principal office and place of business in Moulton , Alabama, where it is engaged in the manufacture , sale, and distribution of wearing apparel. During 1963 , a representative period, Respondent sold and shipped products valued in excess of $50 ,000 directly from its Moulton , Alabama, plant to customers located outside the State of Alabama. Upon the foregoing undisputed facts, Respondent admits and I find that it is, and has been at all times material herein, engaged in commerce within the meaning of Section 2 ( 6) and (7) of the Act. Respondent admits and I find that the International Ladies' Garment Workers' Union, AFL-CIO, herein called the Union , is a labor organization within the mean- ing of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Background On December 4, 1963, a Trial Examiner for the National Labor Relations Board issued a Decision in Moulton Manufacturing Company, Cases Nos. 10-CA-5375 and l0-CA-5405, in which he made the following findings: The ILGWU, the same Union which filed the charges in the instant proceeding, began an organizational campaign at Respondent's plant in May 1962 Thereafter, Respondent, by its conduct, disclosed that it was "completely hostile to organization of its employees by the Union." The conduct, which was set forth in detail by the Trial Examiner, consisted , inter alia, of interrogation of employees concerning their union activity, threats, both implicit and implied, to close the plant if the Union was successful, and threats of discharge for engaging in union activity , including a threat to discharge Waymon Lavon Wallace if he did not vote "No" in a Board-conducted, representation election. The Trial Examiner also found that Respondent discharged Wallace "because of his actual or suspected union membership , activities and sympathies , and in order to discourage further employee membership in, sympathy for, or activity on behalf of the Union ." He also found that Respondent "knew" or "suspected" that employ- ees Bernice Hutto and Helen Waldrop Suggs were sympathetic to the Union and discharged them for that reason. Having found that Respondent had violated Section 8 (a)(1) and (3) of the Act, the Trial Examiner's Recommended Order contained the usual cease-and-desist pro- visions and directed Respondent to offer Wallace, Hutto , and Suggs reinstatement, to make them whole for any loss they may have suffered by reason of the discrimination against them, and to post the usual notices. 1 All credibility determinations made herein are based In part upon my observation of the demeanor of the witnesses while testifying 198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent having failed to file exceptions to the Trial Examiner's Decision and Recommended Order, the Board, on April 28, 1964, issued an Order through its Associate Executive Secretary , in which it adopted, pursuant to Section 102.48 of its. Rules and Regulations, "the findings and conclusions of the Trial Examiner as con- tained in his Decision," and ordered Moulton Manufacturing to take the action set forth in the Trial Examiner's Recommended Order. Thereafter, Respondent filed a motion to reconsider and rescind order in which it asserted that it had complied fully with the Recommended Order, even though it was not supported by substantial evidence , in order to avoid further litigation and' to permit employees an early opportunity to vote in another election , the former one having, been-set aside on the "sole ground that activities of third parties " made a free choice impossible.2 Respondent further asserted that it had been advised by the Board's Regional Director that he had recommended to the Board issuance of the Order set forth above because investigation of the charges in the instant case dis- closed that the Company was failing to comply with the cease-and-desist provisions of the Trial Examiner's Recommended Order. Respondent requested either that the Order be held in abeyance pending the outcome of the instant proceeding , or that a determination of compliance with the previous Order be made , or that the previous record be reopened to permit Respondent to file exceptions. On May 19, 1964, the Board, again acting through its Associate Executive Secre- tary, issued an Order in which it denied Respondent's motion to reconsider and rescind on the ground that it was "lacking in merit." B. The supervisory status of Charles Adams At the time of the hearing, Respondent had approximately 275 employees of which, only 25 to 30 were men 3 Most of the men work either in the cutting department or the shipping department. Respondent's customers furnish the piece goods which are cut to their specifications by the cutting department employees The fronts , backs, sleeves , collars, etc . are then sent to the sewing department where they become shirts. Thereafter, the shirts. are inspected, pressed, and boxed. Finally, the boxed shirts go to the shipping department. Jimalou Pace is the supervisor of the cutting department which employs 8 to 15 men.4 The record establishes that Pace is often absent from the plant for 30 minutes to 1 hour, once or twice a day, and is occasionally away for an entire day or longer. A number of witnesses , including several called by Respondent , testified that Charles Adams is "in charge of" or is the "boss" of the cutting department when Pace is absent. On one occasion, Pace told the employees that at such times they were to "carry out" any orders or instructions given them by Adams. During such periods, Adams transfers employees from one job to another , directs their work, and gives orders which are obeyed by the men . He has also directed the employees to work overtime, has initialed the overtime on their timecards , and handed out paychecks. Employees Wallace and Robert Fuller testified that Adams attended meetings of supervisors and witnesses called by Respondent , as well as those called by counsel for the General Counsel , testified that they had never seen either Pace or Adams punch the timeclock which the rank-and-file employees punch three times a day. In January or February 1964, Adams told employee Fuller that he was "going to fire" Fuller if he "didn't speed up." Fuller also heard Adams tell another employee to speed up and when the employee got "a little mad," Adams went to the office and came back and "paid [the employee] off " The foregoing undisputed facts disclose that Adams has the authority to transfer employees , to assign, and responsibly direct their work, and to effectively recommend 2 Case No. 10-RC-5579. 8It is undisputed that the amount of work varies so that the number of employees fluctuates. ' Pace is admittedly a supervisor within the meaning of Section 2(11) of the Act 5 The findings set forth above are based on the undenied and credited testimony of a number of witnesses , including employees Wallace, Fuller , Minton, Adcock, Jenkins, and Sneed. Adams was not a witness. MOULTON MANUFACTURING COMPANY 199 their discharge. It follows, therefore, and I find that Adams is a supervisor within the meaning of Section 2(11) of the Act. Cf. Sinko Manufacturing and Tool Com- pany, 149 NLRB 201. B4 W/NG LOT H A 1= S, TNne CJ- OCK ^iT^t s I.` l `1 , 1 je, Cam, 4 .,, j - -(l - Ma 4-.A- C v +; v 4-a.(.(z, I C G. C. Exh #3 200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. The plant There are no partitions in the plant proper. However, the offices are enclosed and the shipping department is a separate room off the right side of the building and can be entered from the plant through a door The departments are divided by aisles. The main aisles are three-quarters of an inch higher than the floor generally. One of these aisles extends from the entrance back beyond the timeclocks which stand in the middle of the aisle about 15 feet from the front door. Another main aisle runs from left to right about 8 to 10 feet from the front wall. There are other aisles or passageways which are not built up but are indicated by rows of tables, bins, or other equipment.6 The diagram below shows the portions of the plant which are involved in the allegedly discriminatory discharge of Waymon Lavon Wallace on February 24, 1964. ,i.,i...Iv aI The employees have an hour for lunch (12 noon to 1 p m.) and are not paid for the time. A number of them, particularly the women, bring their lunch and eat it in the plant, often at the tables in the boxing department. It would seem likely, and some of the witnesses so indicated in their testimony, that more employees spend the lunch period in the plant when the weather is cold. Although they cannot punch the timeclock until 12:50 p.m., I find that it is not unusual in the winter for a number of women to begin to congregate in the aisle in which the timeclocks are located and to sit on the table near it (table A) by 12:30 p.m 7 As set forth more fully infra, Respondent's witness Hale testified that men and women employees often sit together, during the lunch period, on the table which sits against the office wall (table B). D. The rule prohibiting male employees from going into departments other than the cutting department During the period material herein, Respondent had a rule which prohibited male employees, who are in the plant during nonworking time, from going into any depart- ment other than the cutting department .8 This rule, unlike some rules, such as the one which requires the employees to leave all packages in the office, has never been posted. Many of the employee witnesses called by Respondent had been hired after 6 When General Office Manager George Powell, Jr., was asked, "So what you are say- ing is that there [are] actually no . . spelled out departments. It has just grown up that way, the way the aisles are?" he answered, "That's right To my knowledge, it has never been spelled out, other than by that method, right there." 7 Contrary testimony is discredited. Although some of Respondent's witnesses denied that there were any employees in this area before 12 45 p in., most of them were not employed until spring when employees would be less likely to eat lunch inside or to return early. 8In its brief, Respondent states that the rule "prohibited male employees from loiter- ing in departments other than the Cutting Department during lunch hour and breaks." MOULTON MANUFACTURING COMPANY 201 February 1964, i e. after the events in issue. They testified that Plant Manager Murray Sidner told them about the rule when they were hired and that it was the only rule he mentioned. In most cases, it seemed to be the only rule they knew about.9 Shirts had been disappearing and one of the duties of General Office Manager George Powell, Jr., who was employed in August 1963, was to set up an inventory control system. He first recommended that all employees be kept out of the shipping department during nonworking time and that the door to the shipping department be locked.10 When shirts continued to disappear, Powell recommended the rule set forth above and, according to Powell, it was announced in October or November.li No real explanation was given why the rule applied only to the male employees although women employees could just as easily steal shirts to sell or to give to members of their families or friends. At the close of the hearing, counsel for the General Counsel stated that he was not contending that the rule was invalid per se but was contending only that it was dis- criminatorily enforced in the case of employee Wallace who, as set forth infra, was discharged on February 24, 1964, allegedly for violating the rule. Counsel for the Union argued that the rule itself was invalid. E. The discharge of Waymon Lavon Wallace Waymon Lavon Wallace was first employed by Moulton on May 15, 1961. He quit in July 1961, to "go on" the sheriff's force. He returned to the Company for 1 week in February 1962, and again quit, this time to "go on" the police force. He returned on February 18, 1963, and was discharged on May 30, 1963.12 Sometime in January 1964 Respondent notified Wallace to return to work on Janu- ary 20 and he reported to work on that day. That afternoon, Wallace was called to the office of Plant Manager Sidner. Cutting Department Supervisor Pace and Sewing Department Supervisor Ben Fratkms were also present. Sidner began the conversa- tion by saying that the Labor Board had gotten the idea that Wallace had been fired but that he had not been fired and that there was no court in the United States that would make Respondent rehire Wallace. According to Wallace, Sidner "appeared angry" and said that Wallace would be "let go" if he did not do his job "right" or if he was caught "talking out of line " When Wallace asked what Sidner meant by the latter statement, Sidner replied that Wallace knew what he meant. Wallace asked Sidner why he was not treated like the other employees but did not testify to what answer, if any, Sidner gave 13 9 Sidner explained that the package rule and that "type of hard and fast rules are posted " When asked if he did not consider the rule about staying in the cutting de- partment a "hard and fast rule," he replied, "Not of that type, because this rule is not only for the Boxing Department, it includes the entire area where shirts are " 10 During this period, some of the men, including Supervisors Pace and Adams, had been gambling in the shipping department, and, according to Powell, Plant Manager Sidner felt that if they lost their paychecks, the temptation to pick up shirts to sell would be "much greater " Sidner, on the other hand, testified that the antigambhng rule had nothing to do with security Powell admitted that after the door to the shipping department was locked, the men gambled for a time in the men's room It does not appear, however, that any of them ever received a warning slip as a result. 11 Respondent's witnesses could not agree on the date on which the rule was an- nounced Supervisor Pace testified that the rule had been in effect for "quite awhile" but it was not "really . . . established so strong" until shirts were missing "along about the last of September or the first of October " Respondent's witness Libby Hutto testified that the rule "started around the first of the year," i e , in early 1964 According to its witness Garland Jones, it had been in effect a year and a half, i e , since early 1963. Clayton Pace, who is the brother of Supervisor Pace, estimated that it had been in effect for "about a year" General Counsel's witnesses Fuller and Flinton testified that they first heard about the rule in January 1964 The Company's letter with respect to the door into the shipping department is dated January 21, 1964. 12 Respondent's contention that Wallace was not discharged on May 30, 1963, was rejected by the Trial Examiner in the Decision referred to above. 13The above findings are based on the testimony of Wallace, which I credit. The versions of the interview given by Plant Manager Sidner and Supervisor Pace differ sub- stantially from the one given by Wallace and there is one important difference between the version given by Pace and the one given by Sidner. Pace testified that Sidner told Wallace about the plant rule which, as set forth infra, Wallace allegedly violated on a number of occasions. Sidner, however, did not refer to the rule in his testimony con- cerning the interview. According to Sidner, he told Wallace that he would be expected to do his work like anyone else and that he had no intention of "harassing" Wallace 202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On the morning of January 20, employee Robert Fuller commented to Supervisor Pace, "I see that Lavon Wallace is back." Pace replied , "Yes, he is back but not for long." 14 As stated supra, the employees have an hour for lunch and Respondent has a rule which prohibits the male employees who remain in the plant during lunch period from going into any department except the cutting department . They begin "punching in" at 12:50 p.m. On Friday, January 24, Wallace returned to the plant before 12.50 p.m., and walked into the boxing department and talked to employee Bernice Hutto.'5 He had been there only a few minutes when Plant Manager Sidner came up and told Wallace that he was not supposed to be in the boxing department during the lunch hour and that he did not want Wallace there "talking to other employees ." Wallace testified that this was the first time he had heard about the rule.is That afternoon, Supervisor Pace announced a new rule, i.e. that anyone caught laughing or talking on the job "would receive a `mark' and an employee with three marks would be discharged." 17 During the lunch hour on Monday, January 27, Wallace and employees Fuller and Charles Flinton sat in a car on the parking lot. After some discussion , Flinton signed a union card . While the three men were sitting in the car, Supervisor Pace came out of the factory, looked at them, got in his car, which was about three cars away, and drove off.18 On Wednesday, Flinton told Pace he was for the Union and Pace replied that "he didn't give a damn what [Flinton ] was for, but if he didn 't speed by making it tough for him When Sidner was asked if he said anything to Wallace about "talking out of line ," replied, "No , not during that conveisation " Sidner gave no satisfactory explanation of why he called Wallace to the office and it is significant that Bernice Hutto, who returned to work the same day , was not interviewed I do not believe that Sidner , who admittedly did not recall Wallace voluntarily , talked to Wallace in order to reassure him. In addition , I am of the opinion that if Wallace had been fabricating testimony , he would have attributed much more damaging statements to Sidner. Finally, I have considered Sidner ' s demeanor while testifying . He impressed me as an excitable man with a temper and his manner when testifying about Wallace convinced me that he was angry at having to reinstate Wallace and that his attitude toward Wallace never changed Although I think Wallace , too, has a temper, I find nothing incredible in his testimony and note that he did not deny having made the statements attributed to him by employee Little ( see mire), although he must have realized that it would be to his advantage to do so My reasons for discrediting portions of Pace's testimony are set forth infra. 14 The above findings are based on the credited testimony of Fuller Pace admitted that he made a remark of the type attributed to him by Fuller but testified that lie added, "I never knew him to keep a job too long." According to Pace , he was referring to the fact that Wallace had been hired "three or four times " and had always quit Although Wallace had quit twice, I do not credit Pace 's testimony concerning the conversation with Fuller or his explanation of what he meant Pace's demeanor was not that of a serious witness who was seeking to testify carefully and truthfully On the contrary, he was obviously "playing to the audience " and was clearly pleased with himself when, in his opinion , he had "scored a point" for "his" side. I have considered, also , the fact that his testimony that Sidner told Wallace on January 20 about the rule was not corroborated by Sidner . Pace also testified that he had "never" talked to employees about the Union and stated that he had "never " testified that he had questioned any employee about the Union. Pace's testimony in the earlier hearing shows that he did question an employee concerning the Union and threatened him with discharge if he handed out union cards Since one of the questions asked Pace in the instant case concerned prior testimony , I do not credit his explanation that he "thought" counsel was referring to the instant case. 15 Hutto, like Wallace, was reinstated on January 20 1e According to the testimony of most of Respondent's witnesses , the rule was announced well before Wallace returned to work on January 20 , 1964 I credit the testimony of employee Flinton that Pace told the cutting department employees about the rule "two or three days" before Flinton was laid off , i.e., about January 27 or 28, 1964 17 The above findings are based on the undenied and credited testimony of Wallace and employee Robert Fuller . Various employees testified that Pace "rushed" the cutting de- partment employees generally and Wallace in particular during the period between January 20 and February 24. However, the testimony is much too general to warrant a finding of harassment. 18 When asked if he recalled such an occasion , Pace answered , "No, sir, not sitting in the car with someone." I credit the testimony of employees Wallace, Flinton , and Fuller and find that Pace saw the three men sitting together in the car and talking. MOULTON MANUFACTURING COMPANY 203 up in his work, he wouldn't be for anything very long." 19 Flinton was laid off on January 30. Wallace was laid off on January 29 because of lack of work. Pace told him to report for work on Monday, February 3, but when he did so, there was still no work and he was told to report on the morning of February 4. There was still no work on the morning of the 4th but Pace told Wallace to come in at noon. When he reported at noon, he saw Plant Manager Sidner who, after checking with Pace, told Wallace to come to work at 1 p.m. After talking to Sidner, Wallace went into the plant and talked to Bernice Hutto "by the timeclock." Sidner came over and asked Wallace what time he was supposed to return to work. When Wallace said 1 o'clock, Sidner told Wallace to leave the plant which he did 20 Wallace returned at about 12.52 p.m. and went to punch his time- card but it was not in the rack. He asked Sidner about his card and Sidner merely told Wallace to punch in at 1 p.m. A few minutes later, Sidner pointed out to Wallace that the latter would not have known that his card was not in the rack if he had not been in "a little early." Sidner added that Wallace "hadn't done anything he could pull [Wallace's] card for." 21 That day (February 4), Wallace worked only from 1 to 4:30 p.m., and was again laid off. He next worked on February 7 when he again worked only a half day. He returned to work on February 18 and continued to work until February 24 when he was discharged. On February 20, Pace talked to the cutting department employees about doing more work and commented that there had been some "bragging going on." He added, "I am talking to you, now, Wallace." Pace asserted that Wallace has threatened him with "bodily harm" and invited Wallace to fight. Wallace asked why Pace was "on" him "all the time" and argued that when he had worked there before, Pace had treated him like he did the others. In the course of the meeting, Pace told Wallace that his work was satisfactory but that he could speed up. Also on February 20, Wallace was called to Sidner's office and given an employee warning slip, signed by Sidner and Pace, which read: "Voicing threats against J. Pace and M. Sidner to other employees. Also excessive talking while working." Under the heading "Nature of the Violation," two items were checked: conduct and attitude. While Wallace was in the office, Sidner told him that he had received his first warning when he had been "caught" out of his department and that he would be fired if he got another one. Wallace denied that he had threatened either Sidner or Pace. This notice was based on a report made to Supervisor Pace by employee Calvin White during the lunch period. Wallace was not told who made the report and Respondent conducted no investigation.22 19 The above findings are based on the credited testimony of Wallace, Fuller, and Flinton. Pace admitted that Flinton told him he was for the Union. 211 do not credit Sidner's contrary testimony 21 Sidner, who testified that he could not recall having told Wallace that he had done nothing for which his card could be pulled, recalled that Wallace asked about his card and that he [Sidner] went into the office and inquired because "it does happen very frequently, in layoffs, where we do not expect the man to cone back" that a card is not made up Supervisor Pace, on the other hand, testified that even though an employee is laid off, the office employees continue to prepare a card for the employee and put it in the rack until notified otherwise. He also testified that Flinton's card was in the rack on or about February 20 even though he had not woiked since January 30 2-' White testified that after Pace repeimanded Wallace, the latter said "he wanted to whip [the] so-and-so for getting on him. He wished he could whip him, or he was going to whip him, or something like that." Accoiding to White, Wallace voiced his thieats "pretty often," ic, "eight or ten times " Pace testified that White came to him on at least "two or thiee" different days, that they were "two or three clays apart, maybe some would go a week." White began working on February 3 and Wallace worked only 2 half days between January 29 and February 18 so that the latter day was the first one on which White and Wallace worked together the whole day The notice is dated February 20 and Pace testified that it was precipitated by a complaint by White "at lunch" which means that Wallace and White had worked together a total of 31/2 days. I am convinced, therefore, that both Pace and White were exaggerating, at the very least, in their testimony concerning the number of times Wallace had "threatened" Pace and/or Sidner Although I credit Wallace's testimony that he did not in fact threaten either Pace or Sidner, I believe that he said on some occasion that he "wished he could" or would like to "whip" one or the other or both. I also find that no one believed that lie had any intention of doing so I also credit Wallace's testimony (and discredit contrary testimony) that he denied that he had threatened either or both men. Wallace did not impress me as the type of man who would be either meek or mute when accused of misconduct, even if he was guilty 204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD That same day, Wallace ate lunch in his car and went back into the plant at about 12.30. He noticed Bernice Hutto and Hazel Hutto in the boxing department and went over to talk to them. Pace came over and told Wallace that he would have to go to the cutting department. Wallace protested that the lunch period was his own time and he felt that he should be allowed to do anything the other employees did and to go anywhere he wanted to. He pointed out that he had seen Burnett, another cutting department employee, in the boxing department. Pace replied only that those were Sidner's orders and that he (Pace) had to carry them out. On the following day, February 21, a similar incident occurred with Wallace again mentioning having seen Burnett in the boxing department the day before and asserting that Pace had not said anything to Burnett. Pace's answer was that he had not seen Burnett 23 That afternoon, Wallace received another warning notice. Like the former one, it was signed by Sidner and Pace. This one read. Approx. 3 weeks ago was specifically instructed to spend break periods & lunch periods in Cutting Dept. area only & not in boxing dept. Found in boxing dept. 2/20/64 & told again by Supv. J. Pace. Found again 2/21/64 by Supv. J. Pace in boxing dept. during lunch period. When given the notice, Wallace again asserted that the lunch hour was his own time and he felt that he could do anything he wanted to during that period. Sidner reminded Wallace that the building belonged to the Company and that as long as Wallace was employed he would do what Sidner told him to or be discharged. Wallace asked why he was not treated like the other employees and said he only wanted to be treated "like" the others. Sidner accused him of making excuses. On February 24 Wallace and employee Donald Little ate lunch together away from the plant. After making a telephone call, Wallace told Little that he had a right to go anywhere he wanted to in the plant. As the two men prepared to return to the plant, Wallace remarked, "Let's go in, you'll probably see me get fired." 24 Shortly after Wallace entered the plant, be walked over to the aisle in which the timeclocks are located and spoke to Bernice Hutto. Hutto was sitting on the front side of the table (table A) facing the timeclock. Although the table is in the boxing department, its left side is at the edge of the aisle which runs from the front door to, or nearly to, the back of the plant. At all times, Wallace was in the aisle which is not in any department but which, rather, divides the inspection department from the boxing department 25 In a few minutes, Plant Manager Sidner came over to Wallace and asked, "... aren't you going to do what I told you to do, stay in the cutting department during the lunch hour? ... [This] is the third time I've caught you out of your department talking to employees ." Wallace, as before, answered that he was on his lunch hour and should be allowed to do what he wanted to do. Wallace also told Sidner that he had just seen Garland Jones in the sewing department and that nothing had been said to Jones. Sidner replied that Jones had "business over there." 26 Sidner reminded Wallace that he had told Wallace before that the building belonged to the Company and that as long as Wallace was in it, he could do as Sidner said or he could "take a walk." Wallace repeated his statement that it was his lunch hour and that he felt he should be allowed to do whatever the other employees did. Sidner then discharged Wallace.27 23 Burnett was not a witness According to Pace, Burnett said that Wallace lied when he said he had seen Burnett in the boxing department 24 The above findings are based on the undenied and credited testimony of Little 211 do not credit Wallace's testimony that he went to the area to get in line to punch the clock Although the record shows that there were several women either standing around or sitting on the table ( or both) waiting until time to clock in , I cannot find that there was a line in the usual sense, or that Wallace went over to get in line I am convinced, instead, that Wallace went over for the specific purpose of speaking to Hutto and to assert again his right to go anywhere he pleased in the plant while on his lunch hour. For the reasons set forth infra, I do not credit any testimony which places Wallace in the boxing department on February 24 26Sidner testified, "I told [Wallace ] that I wasn't interested in [anyone else]. We were only discussing him at the time." 77According to Respondent's witnesses, Sidner gave Wallace a direct order to return to the cutting department. I am not convinced that Sidner told Wallace to go to the cutting department in those words but I am convinced and find that this was the effect of Sidner's statements and that Wallace so understood them. MOULTON MANUFACTURING COMPANY 205 Before leaving, Wallace asked Sidner if what he was really afraid of was that "we were going to organize a Union here." Sidner's reply was, "You people are not going to organize any Union here. . . . You people are too damned stupid." 28 Wallace asked for his check and Sidner told him he would get it at the same time the other employees did. Sometime that day, Office Manager Powell prepared a separation notice which states: Wallace fired for insubordination, found in boxing dept. during lunch. Refused to return to cutting dept. upon request of M. Sidner. Was reminded of previous warning and still refused to obey instruction.29 Wallace's termination of employment report states that Wallace was discharged for insubordination, that he did not protest his discharge, and that he was not recom- mended for reemployment. Wallace testified that between January 20 and February 24, he had talked to employees while in the plant about signing union cards. He further testified that he solicited on behalf of the Union only during nonworking time, such as lunch time, and there is no claim that he ever engaged in any union activity during working hours. F. The layoff of Charles Flinton Charles Flinton was first employed by Respondent in June 1963. He worked in the cutting department under the supervision of Pace. On several occasions, Pace praised Flinton's work and once told a group of cutting room employees that if he had a dozen "hands like Charles Flinton, he would get the work out a lot faster." On one occasion, Respondent's president, Parker, told Flinton, "not to work so hard but to let some of the other men help." 30 Pace admitted at the hearing that he "could have said" that Flinton was one of his "best hands." Pace claimed, however, that Flinton was a "little slow on the bundling" and that he had made mistakes in "numbering." As set forth supra, on or about January 27, Flinton signed a union card while in a car on the parking lot with employees Wallace and Fuller and it is undisputed that he told Supervisor Pace a day or so later that he was in favor of the Union. Pace replied that he "didn't give a damn what [Flinton] was for, but if he didn't speed up in his work, he wouldn't be for anything very long." Flinton and three other employees were laid off on January 30, the reason given being lack of work. Pace told Flinton that there was a chance he would be called back on February 3 but when Flinton went to the plant on that date, Pace told him there was still no work. Flinton asked if he should "check back" but Pace said, "No," that the Company would "contact" Flinton when they wanted him.31 As set forth in detail infra, a new employee began working in the cutting department on February 3. One morning during the week of February 10, Flinton went to the plant and talked to Supervisor Adams. He told Adams that he had heard that Pace was trying to "contact" him and that he was ready to go to work whenever they wanted him. Adams replied that Flinton was not needed "right then" but that he would call Flinton when he was needed 32 On or about February 18, Flinton saw Pace at a local grocery. According to Pace's credited testimony, he said, "Chuck, are you ready to go back to work" and Flinton asked how long it would be for. Pace replied that he "didn't know how long it would be for, it might be for one day, or two days, or three days," and reminded Flinton, 26 According to Respondent's witnesses, the "stupid" remark was directed at Wallace only ° At one point, Powell testified that the statements on the slip were what Sidner "quoted" to him "at 12.00 [sic] o'clock on the 24th day of February." Later, Powell stated, "11r. Sidner dictated [the statement] to me that night." 3O The above findings are based on Flinton's undenied and credited testimony. 31 Although Pace impliedly denied that he told Flinton that he would be notified when to return to work, he admitted that he notified some employees because he knew "where to get in touch " with them . I also note that a major cornerstone of Respondent's case in respect to Flinton in that Pace did notify Flinton and that the latter did not report for work. 32 The above findings are based on Flinton's undenied and credited testimony . As noted .supra, Adams was not a witness. 206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "You know how the work is." Flinton commented , "I don't know." 33 Pace claimed at the hearing, "to my knowledge I expected him back to work the next morning " 34 I credit Flinton's undenied testimony that Pace did not tell him to report to work on any date. When Flinton did not report for work, Pace "pulled" Flinton 's timecard and wrote on it in red ink "Called back to work and did not show up" and signed his name.35 At the time of the conversation , Flinton was working at a local hatchery and before making out a termination report, Office Manager Powell called the hatchery to con- firm rumors that Flinton was working there. As discussed more fully infia, Respondent hired a new cutting department employee on or about February 3 and continued to hire new employees throughout the spring, including a number after March 13, the date on which the charge with respect to Flinton was served. On July 20 Respondent wrote Flinton a letter, which was sent by certified mail, asking him to report to Plant Manager Sidner on or before July 22 to talk about "his past employment" by the Company . The letter also stated that the Company wanted Flinton to know that it had no "grudge" against him and that a job was available "providing we have some assurance from you that in the future that you will be available to work when there is work for you to do." 36 Flinton went to the plant on July 23 and talked to Sidner . Pace, who said that he was present during the interview , testified, I didn't hear hardly all of it, because I was busy . I ... heard [Sidner] ask Mr Flinton why he hadn 't been around to see him, and [Flinton] said he just hadn't. Mr. Sidner said, "Well , didn't you know you had a job back here " And [Flinton] said, "No. I didn't." Mr. Sidner said, "Well, did you think that we were mad at you " And [Flinton] said, "Yes, I thought you were." . Mr. Sidner asked me if I had asked [Flinton] to come back to work and I told [Sidner] that I had told [Flinton ] to come back to work at Wilson Hood's store. I told [Sidner] that I had told Mr. Flinton that it might not be steady work that [Flinton] had said that he had to have steady work." 3 33 When Pace repeated the conversation on cross-examination , he did not quote Flinton as having made any comment to Pace 's statement that he did not know how much woik there would be 34 I have credited Pace's testimony in this respect and discredited Flinton 's testimony concerning his conversation with Pace because of conflicts between Flinton 's testimony and his prehearing affidavit 3G Respondent contends that the notation was on the card when General Office Manager Powell showed it to Flinton sometime later in connection with an inquiry by Flinton about whether any money was due him Although Flinton first stated that the Pace notation was on it when Powell showed him the card , he later claimed that the only notation he saw was "laid off ." From my observation of Flinton when offered documents to read , he is a very slow and perhaps not a very good reader and I doubt that he read the notations on the card but think lie only looked to see whether it showed that lie had worked any "time" for the pay periods covered Flmton was also cleaily mistaken about the date on which he went to work for the chicken hatchery and I assume that he was laid off the previous Novembei as stated in Respondent ' s offer of proof. Al- though I am convinced from my observation of Flinton that he was an honest witness who was trying to testify truthfully, it is clear that his memory is poor , at least for for dates , and that lie is not a particularly fast thinker. In this connection, I note that Plant Manager Sidner ' s memory was also not always accurate For example, he could not recall the date on which the charges in this case were filed and stated, erroneously , that Flinton ' s was the only name mentioned 33 According to Sidner , he wrote the letter after Pace told him, in mid-July, that Flinton was looking for work . Sidner testified that after talking to Pace, "I thought, well , perhaps something is wrong here , because I didn ' t understand the allegation, and I therefore thought that it would be a good idea to straighten this thing out " lie added that he consulted his counsel because "it seemed to [him] it was on a little touchy ground. All of a sudden , I have got an unfair labor practice on a man that , as far as I know, was going to come in to work in the morning" The charge was served on March 13. 370n the basis of Pace 's testimony , I do not credit Sidner's testimony that he asked Flinton "Didn 't [Pace ] meet you in that store . . . and ask you to come back to work the following Monday . . " and that Flinton said he could get steadier work at the chicken factory." For the same reason , I discredit Office Manager Powell's similar testimony Nor do I credit Sidner's testimony that when he asked Flinton if he was "afraid" of him or if he thought Sidner had "mistreated him," Flinton answered, "No." MOULTON MANUFACTURING COMPANY 207 Flinton returned to work on July 27, the day before the hearing opened. G. The statements to employee Robert Fuller Sometime in early 1964, probably in January or February, Supervisor Pace remarked to Fuller, "I hear you have been giving an affidavit to the Union, to orga- nize them." Fuller admitted that he had given "some" and Pace asked if Fuller was "getting involved." Fuller's answer was that he had been in the Union all along. Pace, in turn, commented that Fuller was getting a raise to be a cutter and asked what else Fuller wanted. Pace also said that Plant Manager Sidner knew about the affidavits, that Pace did not know what orders would be given but he would have to carry them out.38 Later, Plant Manager Sidner talked to Fuller and told him that he would be "okay" as long as he did a good job. Fuller, like Sidner and Flinton, had trouble with dates and it is impossible to deter- mine from his testimony the date on which Pace talked to him about affidavits.39 However, it is clear from Pace's testimony that he and Fuller had a conversation about an affidavit although Pace's version differed materially from Fuller's. Although I have not credited Pace's version of the conversation, I think that his claim that Fuller asserted that he was "getting out" of the Union because Wallace was going to be the union representative indicates the period during which he talked to Fuller, i.e., the period during which Wallace was employed which was January 20 to February 24.40 Accordingly, I conclude that Pace made the statements attributed to him by Fuller and that the latter was correct when he testified that the date was in January or February. H. Analysis and conclusions 1. The effect to be given the Trial Examiner's decision in the earlier case The Board holds, with court approval , that it will take official notice of its own prior decisions which involve the same parties and similar issues. Wellington Mill Division, West Point Manufacturing Company, 146 NLRB 1376; Paramount Cap Manufacturing Co., 119 NLRB 785, 786-787, enfd., 260 F. 2d 109, 112-114 (C.A. 8). In its opinion in the latter case, the court discussed the question at length and concluded that an administrative agency, like a court, can take notice of "its own records of prior interrelated litigation between the same parties." It also pointed out that: The request that the Board take judicial notice of the proceedings and the record as made in the election contest case was limited to the purpose of showing back- ground evidence in the case and the Trial Examiner and the Board specifically -^ The above findings are based on the testimony of Fuller which I credit According to Pace, he did not ask Fuller if he had given a statement to the Union ; instead, Fuller volunteered the information about the statement and added that he was through with the Union, that he was "getting out of it" because "they are going to put Wallace in here for union representative, and you know how he is " I do not credit this testimony Although Wallace was probably mentioned, I do not believe that Fuller expressed any hostility to Wallace For one thing, Wallace had been identified with the Union from the beginning, for another Fuller joined with Wallace on January 27 in persuading Flinton to sign a union card Moreover, there is no evidence, other than Pace's testi- mony, that Fuller objected to Wallace either personally or as a possible union representa- tive Furthermore, there is no evidence that Fuller got out of the Union. Finally, I cannot believe that Fuller would tell Pace, on his own initiative, that he had given a statement to the Union. 3s Fuller first testified that the conversation occurred in January or February. At another point, he testified that he believed, but was not sure, that Pace talked to him "along about the . . . time Wallace was fired " Finally, Fuller clearly related the con- versation to his own charge (Case No 10-CA-5750) which the Board's records show was filed on April 7, 1964, and was found to be without merit. Fuller also insisted that the subject of the conversation was a statement he gave Union Representative Edwin Sharp and not the affidavit he gave a representative of the Board However, it does not appear that Fuller gave a statement to Sharp. On the other hand, Fuller testified that, during the period Wallace was working, Sharp asked Fuller "to watch and see if anybody else went in different parts of the plant " 4o Needless to say, the fact that Pace's version of the conversation is not credited does not mean that his testimony cannot be used to determine the date on which he had the conversation. C'f N.L R.B. v. Universal Camera Corp., 179 F. 2d 749, 754 (C.A. 2). 208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD recite that it was considered for that purpose only. The statute is in the nature of a statute of limitations and not a statute purporting to affect the rules of evi- dence.41 The statements made by the Company's representatives, even though made at a time more than six months before the hearing in the present case, were admissable for the purpose of establishing a state of mind. Hostility toward the Union was not in itself an unfair labor practice and a presumption that such state of mind once proven was presumed to continue did not shift the burden of proving the alleged unfair labor practice but was proper background evidence in this case. The lapse of more than six months did not affect the admissibility of this evidence though it may have affected its weight 42 Respondent would distinguish the instant case on the ground that, because no excep- tions were filed, the Board adopted the Trial Examiner's findings, conclusions, and recommended order pro forma.43 The Act, however, provides for this very proce- dure. Thus, Section 10(c) of the Act provides, in part: if no exceptions are filed [to an Examiner's report and recommended order] within twenty days after service thereof on such parties, or within such further period as the Board may authorize, such recommended order shall become the order of the Board and become effective as therein prescribed. Further, Section 102.48(a) of the Board's Rules and Regulations, Series 8, as amended, states that: In the event no statement of exceptions is filed as herein provided, the findings, conclusions, and recommendations of the trial examiner as contained in his intermediate report and recommended order shall be adopted by the Board and become its findings, conclusions, and order, and all objections and exceptions thereto shall be deemed waived for all purposes. However, the Board may, in its discretion, order such case closed upon compliance. [Emphasis supplied.] At the hearing, Respondent argued that the Trial Examiner's Decision and Recom- mended Order and Respondent's compliance should be given no more effect than a settlement agreement. I cannot agree. A hearing was held and after all parties had been given an opportunity to present their evidence, it was determined that Respondent had violated the Act in various respects. Respondent chose not to challenge the findings, conclusions, and recom- mended order even before the Board, let alone before a court of appeals 44 Had the Board chosen to seek enforcement, as it sometimes does even in cases in which there has been compliance, Respondent could have raised no objections not raised prior to the issuance of the Trial Examiner's Decision and Recommended Order.45 In such cases, enforcement is virtually automatic. Cf. N.L.R.B. v. George Noroian and "The court is referring to that portion of Section 10(b) which bars the issuance of a complaint based upon events which occurred more than 6 months prior to the filing of the charge 42 Cf Hendrix Manufacturing Company, Inc. v N.L R.B., 321 F. 2d 100, 103-104 (CA. 5). 43 In support of its position, Respondent cites Anniston Yarn Mills, Incorporated, 103 NLRB 1495 In that case, the Trial Examiner had found that the Company had not violated the Act by discharging an employee and the Board adopted the finding "solely because no exceptions were filed by any of the parties " Member Murdock dissented in this respect on the ground that it "perpetuated" what he believed to be a serious mis- interpretation of the Act. 103 NLRB at 1497-1498 The Board's answer to Member Murdock's contention was that "a finding adopted under such circumstances is not con- sidered a precedent for any other case " It seems to me therefore, that the Board was only warning litigants not to assume that the Board would reach the same result in future cases with similar facts and issues. 44 Needless to say, neither a Recommended Order of a Trial Examiner nor an Order of the Board itself is self-enforcing which means that a respondent is not required to take the action directed therein until the Order has been enforced by a United States Court of Appeals. Respondent could have tolled the running of backpay by reinstating the em- ployees while at the same time refusing to comply with the other provisions until ordered to do so by a court 95 Section 10(e) of the Act states, in part: "No objection that has not been raised before the Board, its member, agent, or agency shall be considered by the court, unless the failure or neglect to urge such objection shall be excused by extraordinary circum- stances." It is also well established that compliance by a respondent does not bar enforcement proceedings. N.L.R.B. v. Mexxa Textile Mills, Inc., 339 U.S. 563, 566-567. MOULTON MANUFACTURING COMPANY 209 Archie Noroian d/b/a George Noroian Company, 193 F. 2d 172, 178 (C.A. 9); N.L.R.B. V. Auburn Curtain Company, Inc., 193 F. 2d 826, 837 (C.A. 1). The violations found by the Trial Examiner consisted of interrogation, threats of reprisal, including threats of discharge, and the actual discharge of three employees. Such violations go to the very heart of the Act (N.L.R B. v. Entwistle Mfg. Co., 120 F. 2d 532, 536 (C.A. 4)) and reveal a deep seated hostility toward union representa- tion. Although the events in issue occurred in 1962 and 1963, there is no evidence that Respondent's attitude toward the Union had changed by January-February 1964. Moreover, the threat of a successful union campaign continued throughout this entire period, the previous election having been set aside, and Plant Manager Sidner con- ceded that the recall of Wallace on January 20, 1964, was "not voluntary." Final proof that Respondent's attitude had not changed is provided by Plant Manager Sidner's warning to Wallace, on the day he was reinstated, about "talking out of line" and Supervisor Pace's statement to employee Fuller the same day that Wallace was "back, but not for long." 2. The discharge of Wallace As set forth supra, Sidner admitted that he did not recall Wallace voluntarily and Pace commented to employee Fuller that Wallace was back, "but not for long." In the previous case, the Trial Examiner found that Wallace had been active on behalf of the Union and, as set forth supra, Sidner warned Wallace on the day he was rein- stated about "talking out of line" and, in reply to a question, said Wallace knew he meant In short, I conclude that Sidner expected Wallace to renew his union activity as Wallace in fact did. Thus, on January 27, he and employee Fuller per- suaded employee Flinton to sign a union card and Wallace talked about the Union to employees in the plant on nonwork time. On each occasion that Wallace was reprimanded for being out of the cutting depart- ment, he was talking to employee Bernice Hutto who, like Wallace, was reinstated on January 20. On at least two occasions, Plant Manager Sidner complained in part because Wallace was "talking" to other employees and when Wallace asked Sidner on February 24 whether Sidner was afraid that the employees would "organize a union," Sidner replied merely that Wallace, at least, was "too stupid" to organize a union in the plant. On the basis of the foregoing facts, I also conclude that Sidner believed, or at least feared, that Wallace's conversations with Hutto concerned the Union and believed that, given the opportunity, Wallace would talk to other women employees about the Union on nonworking time in the plant 46 The facts also con- vince me and I find that although Respondent reinstated Wallace on January 20, Plant Manager Sidner was determined that Wallace would not be back "for long" and that he was looking for an ostensibly valid reason to get rid of Wallace 47 On February 24, Wallace presented Sidner with the opportunity he had been waiting for. By that date, Wallace knew about the rule which prohibited the men from going into departments other than the cutting department while in the plant during non- working time. He also knew, or suspected, that he would be discharged if he was away from the cutting department again. Nonetheless, when he returned to the plant at about 12.30 p.m., he went to the aisle in which the timeclocks are located and talked to Bernice Hutto. He also refused to obey Plant Manager Sidner's order, direct or implied, to return to the cutting department. The General Counsel argues that other employees had violated the rule and had not been discharged and that Respondent seized upon Wallace's conduct as a pretext or excuse for discharging Wallace, its real reason being Wallace's past, current, and probable future union activity. The question to be decided is, of course, whether Sidner discharged Wallace because and only because of his conduct or whether he was motivated, in whole or in part, by his desire to get rid of Wallace because of the latter's union activities. 9e Cf Sealtest Southern Dairies Division, National Dar, p Pi oducts Corp., 126 NLRB 1223, 1228-1229, enfd, 287 F. 2d 559, 563, 564 (C A. 6) The women employees, who constitute 90 percent of the work force and none of whom work in the cutting depart- ment, will determine whether or not the employees will be represented by a union. As noted supra, the 1963 election was set aside and it is probable that another election will be held. 47 As set forth supra, Wallace's card was not in the rack when he returned to work on February 4 after a layoff although the record shows that an employee's card is put in the rack during layoffs. However, it is not put in the rack if the employee is not ex- pected to return to work. In a conversation, also on February 4, Sidner told Wallace that he had not done anything for which Sidner could pull his card. 789-730-66-vol. 152-15 210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Wallace told Pace that he had seen employee Burnett away from the cutting depart- ment and although Pace testified that Burnett said Wallace was a liar, Burnett was not a witness. Employee Fuller testified that he had seen Nayland Posey, a shipping department employee, in the boxing department during a morning break and that Pace and Adams were in the cutting department at the time. Posey was not a witness.48 On February 24, employee Garland Jones left the cutting department and went to the other side of the building, beyond the boxing department, to get a soft drink. It is true that he returned immediately but Sidner admitted that "if a boy goes over to the Coke machine and happens to meet a girl getting a Coke, there is no objection to him stopping and saying `Hello."' (Emphasis supplied.) Under these circum- stances, I conclude that if Jones had stopped, on his way to or from the Coke machine, and spoken to one of the women sitting on the table opposite the timeclock , he would not have been reprimanded49 More significant is the absence of evidence that any action was taken against any of the employees who continued to gamble, despite a strict rule against gambling- Although Respondent managed, in time, to put a stop to the gambling , there is no evidence that any employee was discharged or even given a warning notice although they knew about the rule and continued to violate it. Finally, after a dozen or so witnesses for Respondent had testified about the rule and its strict enforcement, it called employee Nell Hale who disclosed that she had seen employees of both sexes sitting on the table (table B) which stands along the office wall and on which "they put shirts." She explained that she had seen employ- ees sitting there talking both before work and during the lunch hour. She said that, in addition to herself, she had seen Libby Hutto, Renita Cartee, Curtis Terry, Buck Little, Supervisor Jimmy Pace, Dewey Bradford, and the "Little Jenkins boy." 50 There is no evidence that the men were reprimanded for sitting on that table. In fact, Office Manager Powell admitted that any employee may eat on table B and that no one says anything about it.51 It is clear that the table against the office wall (table B ) is not in the cutting depart- ment but is in the aisle which crosses the plant from left to right, 8 to 10 feet from the front wall. The table is directly across from the inspection department where the finished shirts are inspected and at times there are boxes of shirts sitting on the table.52 If Supervisor Pace were in the cutting department, he could see the employ- ees sitting on the table but it is clear that he is not always present throughout the entire lunch hour. The office has a window looking out into the plant so that anyone in the office could see the employee if he was looking and if there were not too many boxes of shirts on the table.53 As set forth supra, the rule was a security measure adopted because shirts were missing. But there is no evidence that shirts are normally stacked in the main aisles although there are times when shirts are on table B and there were probably times when there were shirts on table A.54 In short, employees standing in groups in the main aisles, and particularly in the area of the timeclocks , would have little oppor- tunity to steal shirts. 48Fuller testified that he had seen Burnett in the sewing department "more than once," including "break time." I credit the testimony of Wallace and Fuller in this respect 's It would seem that male employees going to various parts of the building to get soft drinks and the women employees who are apparently free to go wherever they wish would have more opportunity to steal shirts than would employees standing or sitting in a group in the vicinity of the timeclocks. 5' At the time of the hearing, Gary Jenkins had been working for the Company for only 7 or 8 weeks . Libby Hutto is assistant to the supervisor in the pressing depart- ment. None of the persons named by Hale denied her testimony and I credit it. 51 Powell also admitted that by 12:45 p.m ., employees "normally congregate around the [timeclock] aisle," around the Coke machine and in the hall or "entrance area." He also admitted that the number would be larger in cold or bad weather and I think it equally likely they would begin to "congregate" earlier when it was too cold to stand around outside. 67 The shirts are "finished" in the sense that the sewing has been completed. e1The record indicates that someone is usually in the office during the lunch hour. 54 Since the women employees often sit on table A by at least 12:40 p.m , it seems un- likely that there are boxes of shirts on it as a regular matter. There is no evidence that there were any shirts on table A on February 24. MOULTON MANUFACTURING COMPANY 211 On basis of the testimony of Hale, Powell, and others, I am not convinced that the rule applied to the main aisles and I find that, at the very least, it was not enforced generally or strictly with respect either to the center aisle, beginning at the entrance and extending to the timeclocks, or to the aisle between the office and the inspection department.55 I believe that the testimony of Hale, Powell, and others explains why Respondent claimed that Wallace was in the boxing department on February 24 although the record clearly establishes that he was in fact in the timeclock aisle.56 The table on which Hutto was seated is in the boxing department but it is conceded that a person seated on the left side of the table would have his feet in the aisle. This table is about 10 to 15 feet from the table on which Hale, Little, and the others were permitted to sit and talk.57 It is difficult to understand, and Respondent does not explain why, if men are permitted to sit on table B and talk, it was a serious violation of the rule for Wallace to walk a few feet past table B and stand in the center aisle talking to Hutto who was sitting on table A. On the basis of the foregoing facts, I find that when Sidner directed Wallace to return to the cutting department, he was requiring Wallace to obey a rule which probably was not regarded as applicable to the timeclock aisle and which, I find, was not enforced in the case of other male employees who were out of the cutting department but were not in any other department, i.e., were in the aisles 58 It is true that Wallace had been directed on previous occasions to stay in the cutting department and was convinced that he would be discharged if he talked to Bernice Hutto in the timeclock aisle. It does not follow, however, that he believed that Garland Jones, for example, would be discharged if he did the same thing. It seems probable that the Union had advised Wallace that the rule or its enforcement against prounion employees only was invalid and that he was asked or volunteered ss In view of the testimony of Hale, Powell, and others, the record does not support the statement in Respondent's brief that "If any other employees violated [the rule], it was established either that the company supervisors had no knowledge of the viola- tion, or else the employee was specifically warned and directed to return to his depart- ment which he did " Respondent does not discuss Hale's testimony in its brief. 66 Wallace's termination slip states that he was in the boxing department and Sidner, in his testimony, indicated that Wallace was standing in the aisle in the boxing depart- ment at the lower end of table A, i.e , a foot or two inside the boxing department. However, when first asked to describe the events of that day, Sidner stated that Pace reported that "Wallace was out of his area again" [emphasis supplied] and went on to say that he found Wallace "in the area which was so thoroughly described during this trial." Later on, Sidner again testified that Pace told him Wallace was "out of his area." Respondent's witness, Libby Hutto, who is the assistant to the supervisor in the pressing department, testified that Bernice Hutto was seated on the end of the table opposite the timeclock and that Wallace was standing near enough that he could have reached out and touched her. She also said that Wallace was standing "next" to the table on which Bernice Hutto was sitting Clayton Pace, supervisor Pace's brother, testified that Wallace was "over by the timeclock." After being asked by Respondent's counsel, "Is that over by the boxing department?" he answered "yes." Respondent's witness Donald Little was asked when he first saw Wallace and he answered, "I saw him standing near the clock." Although he added "in the boxing department," he admitted that the clock is in the aisle and that Wallace was 3 or 4 feet away from the clock and the same distance from the boxing department. Garland Jones admitted that Wallace was "standing by the time clock" during the conversation with Plant Manager Sidner and admitted that the clock is not in any department. (Although the date about which Jones was questioned was February 20, it is clear from the line of questions that he was testifying about the day on which Wallace was discharged.) Supervisor Pace testi- fied on direct-examination that Wallace went "over into the boxing department" ; how- ever, on cross-examination, he testified that Wallace "started walking toward the boxing department and he went on over there and started talking to some girls." [Emphasis supplied.] 67 The timeclocks are about 15 feet from the main door and the relative position of the two tables is shown on General Counsel's Exhibit No. 3. 61Cf. the statement in Respondent's brief that the rule "prohibited male employees from loitering in departments other than the cutting department during lunch hour and breaks." [ Emphasis supplied.] 212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to test it.59 Accordingly, be went to the timeclock aisle, talked to Hutto , and did not return to the cutting department when Sidner told him, directly or impliedly, to do so As a result of Wallace's failure to return to the cutting department, Respondent argues that Wallace was discharged in part, if not, primarily, for insubordination. Let us assume that Wallace was asking Hutto to invite employees to a union meet- ing; at the same time and place, Garland Jones was asking Libby Hutto to invite employees to a picnic, Sidner directed Wallace to return to the cutting department but permitted Jones to continue to talk to Libby Hutto. On the facts lust postulated, could Sidner validly discharge Wallace for refusing to obey his order? I think not. It is well settled that an employee cannot be discharged validly for refusing to -obey an invalid no-solicitation rule. In my opinion, the same is equally true in the case of an employee who refuses to obey a valid rule which is being discrimina- torily enforced. In Idaho Potato Processors, Inc., 137 NLRB 910, enfd. 322 F. 2d 573, 575 (CA. 9), an employee was discharged for soliciting on behalf of the Union during working hours. Although a rule prohibiting union activity on com- pany time is clearly valid on its face, the Board found that the Company had not objected to solicitation, during working hours, for donations for social affairs. It concluded, therefore, that the real reason for the discharge was the employee's union activity. Although the employee in the cited case did not refuse to obey an order, I do not think an employer can validly discharge an employee for "insubordi- nation" when the order he refuses to obey is based either on an invalid rule or on a is or may be talking about the Union. In other words, in order for insubordination valid rule which is being enforced against him because the employer believes that he to constitute valid grounds for discharge, the employee must have refused to obey an order based on a valid rule which is being enforced in a non -discriminatory manner. In summary, Respondent was "completely hostile to organization of its employees by the Union" and in mid-1963 it discharged three employees, including Wallace, for their actual or suspected union activities. It did not recall Wallace voluntarily, Supervisor Pace predicted that Wallace would not be back "for long," and Sidner warned Wallace against "talking out of line.' On January 27 Wallace and employee Fuller persuaded employee Flinton to sign a union card, Wallace's conversations were with employee Hutto, who was also reinstated on January 20, Sidner repeatedly commented on the fact that Wallace was talking to employees and it has been found that Sidner believed or feared that Wallace was talking to Hutto about the Union On each occasion, Wallace argued that he should be treated as the other employees were treated, no warning notices were given to the employees who continued to violate the rule against gambling, and male employees were permitted to sit on the table along the office wall during the lunch hour. This table is not located in the cutting department but in the aisle which separates the office and the inspection department and leads to the cutting department . Finally, Wallace was not in the boxing department on,February 24 but was standing in the aisle near the timeclocks and when he asked if Sidner was afraid the employees would organize a union, Sidner merely replied that Wallace and/or the employees were "too stupid" to achieve that result. Upon the basis of the entire record, including the findings summarized above, I find that Sidner seized upon Wallace's presence in the timeclock aisle and his refusal to return to the cutting department as a pretext for discharging Wallace, his real reason being Wallace's past, current, and probable future union activity . See Idaho Potato Processors, Inc., supra; cf. N.L.R.B. v. Armstrong Tire and Rubber Company, Test Fleet Branch, 262 F. 2d 812, 813-814 (C.A. 5), enfg. 119 NLRB 382. It fol- lows, therefore, and I find that Respondent thereby violated Section 8(a) (3) and (1) of the Act.60 se The Union took the position at the hearing that the rule was invalid because its purpose and effect was to limit union activity by employees on company property on non- working time and there is" evidence in the record which supports its position See also NLRB v. Walton Manufacturing Company , 2S9 F. 2d 177 ( CA. 5), enfg. 126 NLRB 697, 698 However, in view of the statement of counsel for the General Counsel that he was not contending that the rule was invalid, I assume, for the purpose of this case, that the rule is valid so In view of the above finding, It Is unnecessary to determine whether Wallace's dis- charge also violated Section 8 (a) (4) of the Act. MOULTON MANUFACTURING COMPANY 213 3. The Layoff of Flinton On January 30, 1964, the date of his layoff, Flinton had been working for Respond- ent for 7 or 8 months, his work had been praised repeatedly , and Supervisor Pace admitted that he "could have said " that Flinton was one of his "best hands." How- ever. Flinton signed a union card on January 27 and a day or two later told Super- visor Pace that he was in favor of the Union. It is not unusual for employees to be laid off because of lack of work and three others were laid off on January 30. Although the record does not disclose how many cutting department employees were retained , it seems probable that 8 or 10 continued to work.61 Except for cutting and perhaps marking, none of the jobs requires any great amount of skill and the employees are transferred from job to job as needed. Respondent offered no explanation of why it selected Flinton, who was one of the best employees in the department, instead of one of the others. Calvin White began working in the cutting department on February 3. White, a witness for Respondent , testified that he was told he would be doing edging "and when we got time," he would be trained as a cutter. White's past experience con- sisted of 16 weeks installing and operating drills, electric motors, and presses at Fort Gordon, Georgia. White testified that he worked as a cutter for Respondent but did not say how long he worked at that assignment . He was laid off about 2 weeks before the hearing. According to Sidner, another cutter was needed and it takes a "very long time to train" one . Sidner said that when he interviewed White, he learned that White had experienced with "certain types of machinery and equipment " and "from his appear- ance" and Sidner's estimate of White's intelligence , Sidner concluded that White might be a possibility to be trained as a cutter.62 There is no claim that Respondent tried to train Flinton as a cutter and when Supervisor Pace was asked if Flinton was offered the job given to White, he did not refer to White 's special talents but instead answered , "Well, Charles Flinton was laid off, and he didn 't come back to work or show up." White, however, was hired just at the time Flinton was laid off , not after the Pace-Flinton conversation on or about February 18. On or about February 18, Supervisor Pace saw Flinton at a local store and asked if Flinton was ready to go to work. Flinton, who was working at a hatchery, asked how long he would work and Pace said he did not know. Flinton may have commented , "I don't know." It is undisputed that Pace did not tell Flinton to report to work the next morning or on any day.63 According to Respondent, Pace's conversation with Flinton constituted a firm offer of employment and when Flinton did not report to work, it assumed that he was no longer interested in working for Moulton.64 It is possible that Pace was in fact ordering Flinton to work and believed that Flinton so understood their conversation. However, I do not think that Flinton understood that he was being told to report for work the next day. It is also possible that Pace was intentionally less than explicit so that Flinton would not understand but Respondent would be able to claim, later, that Flinton had refused an offer of employment. My reason for believing that the latter is the true explanation is Respondent 's failure to take steps to clarify the "misunderstanding" after it was served with the charge with respect to Flinton on March 13 and was served with the complaint on April 29 . The charge clearly put Respondent on notice that there was a question of some kind about Flinton's status. Assuming, arguendo, that Respondent did not know Flinton's current address, it knew where to communicate with the Board and I am convinced that it would have done so if, as it implies, it was willing at all times to employ Flinton if he wanted to 61 The record indicates that the department fluctuates between 8 and 14 or 15. There are only three skilled employees , i.e , two cutters and a marker 62 As stated at the hearing , the Trial Examiner has little knowledge of machinery. However, it does not seem that 16 weeks of experience at operating drills, electric motors, and presses at Fort Gordon would necessarily indicate that a man could be trained to operate machinery which cuts cloth into pockets, collars , etc , of shirts White admitted that there is a "difference" but added , "it all works around the same way." ° Cf. the statement in Respondent's brief that Pace "told Flinton to report on the following dav." ea Certain evidence in the record suggests that Flinton 's case was not a routine layoff which was handled in the usual manner For one thing, notations of the type Pace made on Flinton 's timecard are not the usual practice For another, Office Manager Powell testified that before he prepared Flinton 's termination report , he called the hatchery to confirm rumors that Flinton was working there 214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD work for the Company and if there was work he could do.65 Moreover, on April 29, Respondent was served with a copy of the complaint which alleged, inter alia, that Respondent discharged Flinton on January 30 and "thereafter failed and refused to reinstate" him. Nonetheless, Respondent waited nearly 3 months to offer Flinton a job which he accepted.66 Instead, throughout this entire period, Respondent repeatedly hired new and inexperienced employees for the cutting department.67 There is no evidence in the record which would justify a finding that Respondent's decision to lay off four men on January 30 was discriminatorily motivated. But it does not follow necessarily that the selection of Flinton as one of the four was wholly unrelated to his recent union activity. Cf. N.L.R.B. v. W. C. Nabors, d/b/a W. C. Nabors Company, 196 F. 2d 272, 275-276 (C.A. 5), cert. denied, 344 U.S. 865. And, as the court recognized in N.L.R.B. v. West Side Carpet Cleaning Co., 329 F. 2d 758, 761 (C.A. 6), an employer cannot legally use its economic situation to effectuate a companion motive," i.e. "to rid itself of a union protagonist." The facts previously set forth, including Respondent's hostility to the Union, its knowledge of Flinton's union sympathies, the timing of his layoff, i.e., a few days after he told Respondent that he was for the Union, Respondent's failure to explain why it selected Flinton, who was one of the best employees in the cutting department, its equivocal offer of employment on or about February 18, its failure, until July 20, to take steps to determine whether or not Flinton misunderstood Pace's remarks, although it was served with a charge on March 13 and the complaint on April 29, and its repeated hiring of new and inexperienced employees for the cutting depart- ment, cause me to conclude that Respondent seized upon its need to lay off employees on January 30 "to effectuate a companion motive," i.e., to rid itself of Flinton, a union protagonist. West Side Carpet, supra.68 I also find that Respondent there- after failed, for the same reason, to recall Flinton. Accordingly, I find that a pre- ponderance of the evidence on the record as a whole establishes that Respondent laid Flinton off on January 30 because of his union activity and that its failure to recall him was also discriminatorily motivated. It follows, therefore, and I find, that Respondent thereby violated Section 8(a)(3) and (1) of the Act. 4. The statements to employee Fuller On the day Wallace returned to work, employee Fuller commented to Supervisor Pace that Wallace was "back" and Pace replied that he was "back, but not for long." During the same period, Pace commented to Fuller, "I hear that you have been giving an affidavit to the Union" and asked if Fuller was "getting involved." Pace also pointed out that Fuller was getting a raise to be a cutter and wanted to know what else Fuller wanted. In addition, Pace told Fuller that Sidner knew about "giving out affidavits" and added that he "didn't know what orders would be given" to him but that he would have to carry them out. As one court noted recently, statements by management representatives are to be weighed "from the listeners' point of view" and in the light of "the interpretation which the employees reasonably could put on them." Hendrix Manufacturing Com- pany, Inc. v. N.L.R.B., 321 F. 2d 100, 103-104 (C.A. 5). The same court has also pointed out that when statements concerning the prospects of future employment are made by one who is a part of management, and who has the power to change prophecies into realities, such statements, whether couched in the language of prob- ability or certainty, tend to impede and coerce employees in their right to self- organization...." 69 N.L.R.B. v. W. C. Nabor Company, supra at 276. It is also well established that the questioning of employees concerning their union activity and statements which can reasonably be interpreted as threats of reprisal do not 65 Although Flinton's address changed during this period, the Company had an address for Flinton and mail is usually forwarded. And when Respondent wrote to Flinton shortly before the hearing, he got the letter within a few days 66 Cf. Sidner's testimony that he consulted Respondent's attorney and wrote to Flinton because he "didn't understand the allegation," that "all of a sudden" he got an unfair labor practice charge and he thought it "would be a good idea to straighten this thing out." 67 The record shows that at least five new employees were hired between April and July and assigned to the cutting department At least five others were hired in late February and several of them proved incapable of doing the work. ° Flinton's inclusion in the layoff would also serve as a warning to other employees who might be thinking about signing a union card at the urging of Wallace, Fuller, or one of the other prounion employees. 65Pace is admittedly a supervisor within the meaning of Section 2(11) of the Act and he testified that his recommendations are usually accepted by Sidner. MOULTON MANUFACTURING COMPANY 215 constitute expressions of view, opinions, and arguments which are protected by Sec- tion 8(c) of the Act. Cf. Texas Industries, Inc. et al., v. N.L.R.B., 336 F. 2d 128, 131, 133 (C.A. 5). When judged in the light of the interpretation that employees would give Pace's statement that Wallace, an open union adherent who had been discharged previ- ously for his known or suspect union activity, was "back, but not for long," I find that it can reasonably be concluded and I conclude that the employees would at least fear that activity on behalf of the Union would or might cause them to be discharged. Cf. N.L.R.B. v. Wilbur H. Ford d/b/a Ford Bros., 170 F. 2d 735, 738 (C.A. 6). The giving of statements to a union in connection with an organizational campaign or in support of a charge alleging violations of the Act is clearly activity which is protected by the Act. It is equally clear that when Pace questioned Fuller, Respond- ent was not seeking information which it needed to prepare for a hearing. Cf. Texas Industries, supra. On the contrary, Pace was merely seeking to determine whether Fuller was getting "involved" with the Union. He also pointed out that Sidner knew about the affidavits and warned Fuller that, as a result, Sidner might give "orders" which Pace would have to carry out. I conclude that, in view of Respondent's hostility to the Union, the interpretation which employees could reasonably give such remarks would be that management was keeping itself advised about the employees' activity on behalf of the Union and that the information obtained might be used "against" them. I find, therefore, that Respondent threatened, at least impliedly, reprisals for union activity, coercively interrogated an employee about his union activity and created the impression of sur- veillance. By engaging in such conduct, Respondent violated Section 8 (a) (1) of the Act. Wonder State Manufacturing Company, 141 NLRB 1217, 1226; 70 Martin Sprocket & Gear Co., Inc. v. N.L.R.B., 328 F. 2d 417, 419-20 (C.A. 5); Texas Indus- tries, supra. III. THE REMEDY Having found that Respondent engaged in certain unfair labor practices, I shall recommend the customary cease and desist order and the affirmative relief conven- tionally ordered in cases of this nature. I shall not recommend the reinstatement of Charles Flinton since he returned to work, at the Company's request, on July 27, 1964. Any backpay found to be due Wallace and Flinton will be computed in accord- ance with the formula set forth in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. Because discrimination against employees because of their union activity goes to the very heart of the Act (N.L.R.B. v. Entwistle Mfg. Co., 120 F. 2d 532, 536 (C.A. 4) ), I shall include in my Recommended Order a provision directing Respondent not to interfere with, restrain, or coerce its employees in any manner in the exercise of their statutory rights. CONCLUSION OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. Charles Adams is a supervisor within the meaning of Section 8(11) of the Act. 4. By threatening employees with reprisals for engaging in union activity, by coercively questioning them about such activity, and by creating the impression that it was keeping the employees' union activity under surveillance, Respondent engaged in unfair labor practices within the meaning of Section 8(a) (1) of the Act. 5. By discharging Waymon Lavon Wallace, by laying off Charles Flinton, and by failing to recall Flinton, in each case because of the employee's union activity, Respondent engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 6. The unfair labor practices set forth in paragraphs 4 and 5 above are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 7O The only portion of the Board's findings In the above ease which was challenged by the Company before the Court of Appeals was its finding with respect to the discharge of one employee Wonder State Manufacturing Company v. N L R.B., 331 F. 2d 737, 738 (C A. 6). 216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the foregoing findings of fact and conclusions of law, and on the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following: RECOMMENDED ORDER Moulton Manufacturing Company, its officers, agents, successors, and assigns, shall 1. Cease and desist from: (a) Discouraging membership in International Ladies' Garment Workers' Union, AFL-CIO, or in any other labor organization, by discharging employees, by laying them off, by failing to recall them, or by discriminating against them in any other manner because of activity on behalf of the above-named Union or on behalf of any other labor organization. (b) Threatening employees for engaging in union activity, coercively questioning them about such activity, and creating the impression that employee union activity is being kept under surveillance. (c) In any other manner interfering with, restraining, or coercing employees in the exercise of their right to self-organization, to form labor organizations, to join or assist the above-named Union or any other labor organization, to bargain collec- tively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. 2 Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Offer Waymon Lavon Wallace immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make Wallace and Charles Flinton whole for any losses they may have suffered by reason of the discrimination against them as provided in "The Remedy" section of the Trial Examiner's Decision. Notify Waymon Lavon Wallace, if be is serving in the Armed Forces of the United States, of his right to full rein- statement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces. (b) 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 necessary to analyze the amount of backpay due, and the right to reinstatement, under the term of this Recommended Order. (c) Post at its plant at Moulton, Alabama, copies of the attached notice marked "Appendix." 71 Copies of said notice, to be furnished by the Regional Director for Region 10, shall, after being duly signed by the Respondent's representative, be posted by the Respondent immediately upon receipt thereof and be maintained by it for a period of 60 consecutive days from the date of posting, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the said Regional Director, in writing, within 20 days from the receipt of this Trial Examiner's Decision and Recommended Order, what steps Respondent has taken to comply herewith.72 It is recommended that the complaint be dismissed in all other respects. u In the event that this Recommended Order be adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" 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" shall be substituted for the words "a Decision and Order." 72 In the event that this Recommended Order 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 Respondent has taken to comply herewith " APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, as amended, we hereby notify our employees that: WE WILL NOT discharge, lay off, fail to recall, or in any other manner dis- criminate against employees because they join, work for, or engage in any activ- 0. A. FULLER SUPER MARKETS, INC . 217 ity on behalf of the International Ladies' Garment Workers' Union, AFL-CIO, or any other labor organization. WE WILL NOT threaten employees with discharge or with any other action because they become members of, work for, or engage in activity on behalf of the International Ladies' Garment Workers' Union, AFL-CIO, or any other labor organization. WE WILL NOT question our employees about their membership in, assistance to, or activity on behalf of, the International Ladies' Garment Workers' Union, AFL-CIO, or any other labor organization, in a manner constituting interfer- ence, restraint, or coercion in violation of Section 8(a)(1) of the Act. WE WILL NOT create the impression that we are obtaining information about our employees' union activities by stating that we know about statements given to the Union. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor orga- nizations, to join or work for the above-named Union or any other labor orga- nization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or mutual aid or protection, or to refrain from any or all such\ activities. WE WILL offer Waymon Lavon Wallace immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges. WE WILL make Waymon Lavon Wallace and Charles Flinton whole for any losses they may have suffered by reason of our discrimination against them. All our employees are free to become, remain, or refrain from becoming or remain- ing, members of the above-named Union. MOULTON MANUFACTURING COMPANY, Employer. Dated------------------- By------------------------------------------- (Representative) (Title) NOTE-We will notify Waymon Lavol} Wallace if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces. 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. Employees may communicate directly with the Board's Regional Office, 528 Peachtree-Seventh Building, 50 Seventh Street NE., Atlanta, Georgia, Telephone No. 876-3311, Extension 5357, if they have any questions concerning this notice or compliance with its provisions. 0. A. Fuller Super Markets , Inc.' and Retail Clerks Union, Local 1557, and Amalgamated Meat Cutters & Butcher Workmen's Union, Local 405, AFL-CIO 0. A. Fuller Super Markets, Inc. and Retail Clerks, Local 1557. Cases Nos. 10-CA-5620 and 1O-CA-5709. April 09, 1965 DECISION AND ORDER On January 15, 1965, Trial Examiner Lloyd Buchanan issued his Decision in the above-entitled proceeding, finding that Respondent had not engaged in the unfair labor practices alleged in the complaint, and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the 1 The name of Respondent appears as amended at the hearing. 152 NLRB No. 26.