The Singer Co.

220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Singer Company, Wood Products Division and Local Union 2705, United Brotherhood of Carpenters and Joiners of Amer- ica, AFL-CIO. Case 26-CA-2125-2. June 137 1966 DECISION AND ORDER An April 1, 1966, Trial Examiner James F. Foley issued his Deci- sion 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, as amended, and recommending that it cease and desist therefrom and take cer- tain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief and the General Counsel filed cross-exceptions and a brief in support thereof. Pursuant to the provisions of Section 3 (b) of the Act, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Members Fanning, Brown, and Zagoria]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and brief, and the entire record in the case, and hereby adopts the findings,' conclusions, and recommendations of the Trial Examiner, as modified herein. [The Board adopted the Trial Examiner's Recommended Order and dismissed the complaint.] 'We find merit in the General Counsel's exception to the Trial Examiner's conclusion that T:lanks was loafing when he was found by Gardner This finding is unsupported by the record, is immaterial to our Decision, and, in any event, was neither relied upon by the Respondent as the reason for the discharge nor raised by it as a defense herein. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE This case, 26-CA-2125-2, was brought tinder Section 10(b) of the National Labor Relations Act, as amended (61 Stat. 136, 73 Stat 519), herein called the Act, against Respondent The Singer Company, Wood Products Division, of Tru- mann, Arkansas (herein called Respondent, and sometimes referred to as Com- pany), on a charge filed June 2, 1965, by Local Union 2705, United Brotherhood of Carpenters and Joiners of America, AFL-CIO (herein called the Union). On July 16, 1965, General Counsel of the National Labor Relations Board (herein called the Board), by John J. A. Reynolds, Jr., Regional Director, issued a com- plaint against Respondent, and Respondent filed an answer on July 22, 1965. In the complaint, it is alleged that Respondent, by its supervisor and agent Wendell Gardner, interrogated an employee about his union membership, activities, and desires, on or about May 1, 1965, at its plant in Trumann, Arkansas, in violation of Section 8(a)(1') of the Act, and on or about May 17, 1965, discriminatorily discharged employee Elzie Blanks, in violation of Section 8(a)(3) and (1) of the Act, because he joined or assisted the Union, or engaged in other union activity, 159 NLRB No. 16. THE SINGER COMPANY, WOOD PRODUCTS DIVISION 221 or concerted activities for the purpose of collective bargaining, or other mutual aid or protection. Respondent, in its answer, denied the allegations of illegal conduct in the complaint.' A hearing on the complaint and answer was held before Trial Examiner James F. Foley, on September 16, 1965, in Memphis, Tennessee. General Counsel, Respondent, and Charging Party were iepresented at the hearing. All parties were afforded an opportunity to offer evidence, make oral argument, and file briefs. General Counsel and Respondent filed briefs after the close of the hearing. FINDINGS AND CONCLUSIONS I. THE BUSINESS OF RESPONDENT Respondent is a New Jersey corporation, with an office and place of business in Trumann, Arkansas, where it is engaged in the manufacture of sewing machine cabinets and other type cabinets, and other wood products. During the 12 months preceding July 16, 1965, it manufactured, sold, and shipped finished products valued in excess of $50,000 directly to points outside the State of Arkansas, and during that time purchased and received at Trumann, Arkansas, materials valued in excess of $50,000 from points outside the State of Arkansas. I find that Respondent is engaged in commerce wthin the meaning of Section 2(6) and (7) of the Act, and assertion of jurisdiction will effectuate the purposes of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. III THE UNFAIR LABOR PRACTICES A. Background evidence Respondent's plant in Trumann, Arkansas, has, approximately 1,400 employees. The Union has been engaged in an organizational campaign at this plant for some time. The Board has found Respondent to have engaged in Section 8 (a) (1) viola- tions in connection with this campaign and has issued a broad cease and desist order enjoining this conduct.2 In the manufacture at Respondent's plant of cabinets and other wood products, the rough parts are made in the machinery department on wood working machines, and are then sent to the furniture dimension department where they are assembled, and the assembled products are finished. Between the areas of the machinery department and the furniture dimension department is the work location of a sec- tion of the quality control department which inspects the rough,wood parts that are machined in the machinery department. Its night shift is under the direction of Foreman Wendell Elmer Gardner. He began this assignment-on April 15, 1965. Gardner is a supervisor within the meaning of Section 2(11) of the Act. He responsibly directs the work of employees under him, and has the authority to fire them for cause. At the time of the matter before me in this case, Gardner had two employees under him. They were Elzie Blanks, the alleged discriminatee, and Jackie Kinnett.3 On occasion, Blanks and Kinnett went to the machinery depart- ment to measure parts that had come off the machines. There is no evidence, however, that all the inspection work they had to do could not have been done at their work tables in the quality control department. There is a restroom in the machinery department area. Two to three hundred employees on the night and day shifts use it daily. In May 1965, it was either new or had been renovated. Employees had written on the walls of some of the stalls in this new or renovated restroom. The writings dealt with union activity, and vulgar or immoral subjects. They could be removed only by painting, as they I Respondent denied on the ground of lack of knowledge that the Union was a labor organization . However, it did not rebut General Counsel 's evidence of the business of the Union which showed the Union to be a labor organization within the meaning of Section 2 ( 5) of the Act, or offer any evidence in support of its denial 9I hereby take official notice of the Board's decision in The Singer Company, Wood Products Division, 153 NLRB 922, and the findings therein. s Blanks began his employment with Respondent on September 14, 1964 Before he was made inspector he operated a Bell saw, a grinder saw, a boring machine, and was a clamp operator. Kinnett had been an inspector in quality control about a year and 8 months at the time of May 1965, the period in issue 222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD had been done with an indelible ink marking pencil. Respondent had made an effort to stop the writings on the wall in the restroom of the machinery depart- ment. In May 1964, the head of the furniture dimension department,' at a meet- ing, remarked that the machinery department restroom was being ruined by the writings, and that anybody caught doing it should be reported. Gardner had the responsibility of-inspecting the machinery department restroom at the beginning of his shift. 'On May 17, 1965, between 5:30 and 6 p.m., Gardner inspected this restroom. ',There was writing on the walls of some of the seven stalls which could be removed only by painting. It had been done with a marking pencil. An employee handbook had been issued to employees by the Respondent. Included in the handbook, among other things, was a section entitled "RULES AND REGULATIONS." In this section, Respondent listed 12 acts, and stated they were "certainly among those which would subject an employee engaging in any of them to discharge or other disciplinary action." Included in the 12 were acts identified by the numerals 4, 6, and 7. They are: 4. Deliberately restricting output, loafing, interfering with, or inducing others to interfere with efficiency or production. 6. Engaging in personal work on Company time without permission. 7. Abuse, deliberate waste or destruction of Company property. B. The alleged 8(a)(1) violation As stated, supra, it is alleged in the complaint that "on or about May 1, 1965, Gardner interrogated an employee concerning his membership, activities and desires." Blanks testified that on or about May 1, 1965, Gardner approached him while he was at his worktable in the quality control department, and asked him how he felt about the Union being in the plant, and that he answered he was for it 100 percent, and Gardner, turning red in the face, walked away. He then testi- fied that a week later Gardner told him that he was restricted to the area of the quality control department except for going to the restroom and the drinking fountain, and said at the time of the restriction, that "there was too much talk about the Union going on." Gardner placed the same restriction on Kinnett. Blanks also testified on direct examination that he talked to 25 to 30 employees about better wages and working conditions they would receive if they voted for the Union. On cross-examination, Blanks testified that he talked to employees about the Union before they came in the plant, afterward, and during breaks,4 and talked to them on working time about the Union only when they asked him questions about it. He admitted he knew an employee by the name of Wilma Dale Murphy. He said Murphy came to his worktable about May 3 or 4, and asked him about the Union. He then said he did not recall what he told Murphy. Blanks then denied that he went to Murphy's work station, and'said anything to him about the Union, or accused him of telling management he was soliciting for the Union on working time. He recalled that Murphy came to his worktable about May 3 ,or 4, before he was restricted, and said something about the foreman hearing that he said something about employees joining the Union, and asked him if he was still for the Union. According to Blanks, he told him he was for the Union, and would like to see it get in. Blanks then testified that he had previously solicited Murphy on nonworking time, and that when they were going to lunch that night (May 3 or 4), he told Murphy that if he had been talking about the Union, it was his business, and "none of his." In the course of this cross- examination, Blanks denied that Gardner said to him when he restricted him to the quality control work area that there had been a complaint about the doing of outside work on Company premises during work time. He testified that Gardner said there had been too much talking going on. He also testified that Gardner spoke to him separately about the restriction, that he did not talk to him and Kinnett about it at the same time. Employee Kinnett testified for the General Counsel to corroborate Blanks' testi- mony regarding Gardner's inquiry to him about the Union on or about May 1, 1965. He testified that on or about May 5 or 6, he overheard Blanks say to Gardner he was for the Union 100 percent, when Gardner and Blanks were talking at Blanks' worktable about 5 feet from where he was working. He gave no testi- 'The night shift began at 4 p.m. and apparently ran until midnight. There was a break at 6:30 p.m. of 10 minutes, and a lunch period at 9 p.m, presumably a half hour. During the 10-minute break, employees were expected to use the restroom in addition to enjoying a brief relaxation. THE SINGER COMPANY, WOOD PRODUCTS DIVISION 223 mony of anything he may have heard which would disclose the context in which Blanks' statement was made, or whether, it was made in response to a question. Kinnett also testified that he overheard it about a week before Gardner told him and Blanks to do their inspection work entirely within the area of quality control department. Gardner gave this instruction to Blanks and Kinnett on May 7, 1965. Kinnett testified that in late April 1965, he informed Gardner on two occasions that there was considerable talk about the Union, and he did not want to get involved. The first time Gardner said for him not to worry, that he would watch Blanks.5 The next time Gardner did not make any reply. According to Kinnett, he was restricted to the work area of the quality control department about a week later, and when Gardner restricted him he said that there was some talk about the Union out in the machinery department. On cross-examination, Kinnett gave the following testimony. In April 1965, it was he who approached Gardner to tell him about the talk concerning the Union. Gardner did not approach him. Blanks solicited him to join the Union on work- ing time. He knew that Blanks talked to the 30 employees in the machinery department, but did not know whether he did so on working time. He remarked that the duties of inspector included 'going to that department and measuring parts. Gardner restricted him and Blanks to the quality control working area the day after Murphy and Blanks had a conversation in the hall at which others were present. He did not understand the conversation, and did not know whether Murphy and Blanks were having a dispute. The day after Gardner restricted him and Blanks to their work area, Kinnett asked Gardner whether the complaint was directed at him. Gardner testified that May 1, 1965, the day he allegedly asked Blanks about the Union, was a Saturday, and that Blanks did not work on that day. He denied he spoke to Blanks about union activity on May 1 or any date close to May 1. He also denied he spoke to Kinnett prior to May 7 about union activity or men- tioned Blanks in connection with union activity prior to that date. He said that Kinnett kept coming to him in April, and saying that he was not for the Union, and did not want to get messed up in it. He said he did not mention Blanks in these April conversations, that the first time he mentioned Blanks to Kinnett was when the latter came to him on May 7 after he had restricted Kinnett and Blanks, and asked him if the complaint was lodged against him. He answered it was not, that it was lodged against Blanks. Kinnett then asked him if the complaint was about the Union, and he answered y6s, and Kinnett replied that he thought it was. Gardner testified that Deloy Fletcher, foreman in the machinery department, told him that Murphy, one of his employees, complained to him that Blanks was bothering him at his work during working hours, and expressed the wish it would stop as it kept his time down since he could not run the machine when he was talking. According to Gardner, with F,letcher's permission he went to Murphy, at his machine, and asked him who was bothering him, and he said "Hoppy," Blanks' nickname. Murphy said he was coming to his machine, and talking about union activities, and wanting to know if he was going to vote, and if so, which way he was going to vote. Gardner testified he told Murphy he would 'do something to 6 Counsel for the General Counsel showed Kinnett his statement . He was then asked if he had anything else to add to his testimony of the conversation. After he read the state- ment, he said "no" Counsel again showed him his statement, and then asked him again if there was anything else. The witness replied that Gardner said he knew Blanks was talking about the Union. I do not credit this addition to the testimony. Obviously, Kinnett did not wish to include it. General Counsel was closer to impeaching his witness than he was to refreshing his recollection The statement, which consisted of eight pages, was signed by Kinnett on June 15, 1965, after hewas interviewed at his home by a representative of the Board's Regional Office for a period of 2 hours. A representative of the Union was present. The statement was written by the Board representative. It was a paraphrasing by the Regional Office representative of answers given by the witness to questions asked by him. Kinnett said it took him 25 minutes to read it. Counsel for General Counsel argued that Kinnett was obviously a reluctant witness. He had sub- penaed him. It is true that he was reluctant to add the additional matter to his testi- mony. However, it does not follow that he was a witness friendly to Respondent, but testifying for General Counsel under subpena: The presence of the representative of the Union when Kinnett was interviewed could well have influenced his making state- ments to the Regional Office representative that he was reluctant to include in hie, oral testimony. The witness appeared to me to be anxious to be in the good graces of both sides. 224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ',stop Blanks from bothering him. - The next day, at 5 p.m., he talked to Blanks and Kinnett at the same time, and told them. they were restricted' to the work area for the simple reason that business was being carried out in the machinery department area on company time that did not pertain to' the Company. Gardner testified that he had no reason to restrict Kinnett, but thought it would have 'been odd to restrict Blanks and not Kinnett. C. The May 17, 1965, discharge 1. Undisputed facts It is undisputed that Gardner discharged Blanks shortly after 8 p.m. on May-17, 1965. It is also undisputed that the events stated in the remaining sentences of the ..paragraph, occurred in connection with the discharge. Blanks left the work area -.of the quality control department without disclosing to anyone where he was \_going.6 Gardner went looking for him 10 to 12 minutes after he left. Gardner went into the restroom in the machinery department, and saw that Blanks was in one of the stalls, and another employee was in the stall next to him. Gardner made use of the toilet in a stall next to Blanks, or at least flushed it, during the period he -was in the restroom. • When Blanks emerged from the stall, the other employee had left, and Gardner was leaning against the washbasin on -the opposite wall directly in front of the door of the stall. After talking to Blanks in connection with writings on the door and walls of the stall, and after asking Blanks if he had a grease pencil, and Blanks said he had, Gardner told Blanks he would have to let him.go. With Gardner's permission, Blanks obtained his lunch pail from the "break" room, and Blanks and Gardner walked to the front gate, and Blanks left. On a prescribed form signed by F. J. Gryson,. identified as department head, the quality control department informed the personnel director of Respondent on May 18, 1965, that Blanks was discharged on May 17, 1965, for defacing com- -pany property, and that the department would not rehire him. Respondent has not rehired Blanks. There was a place on the form for the signature of the foreman initiating the discharge, but Gardner did not sign it. It was blank. 2. Blanks' testimony on direct- examination On, direct examination, Blanks testified that about 8 p.m. he went into the rest- room and entered a stall. Employee Will House was in a stall next to the one which-he entered. In a second or two, Gardner came in and took the stall next to his. House left his stall before he left his. So did Gardner. When he finished and emerged from the stall, Gardner was standing at the entrance to the restroom. He looked into the stall, and asked if he had been doing the writing on the walls of the stall. - Blanks asked him what made him thirik he had. Gardner then asked him if he had a grease pencil, and, after Gardner described what a grease pencil was,7 he said he had one, and that a lot of other employees had them. Gardner then said that he thought he had been doing part of the writing on the wall, and he was going to have to let him go. Blanks tried to tell him that he did not write on the walls, that he had rubbed writing-off the walls in there, but Gardner said he would have to let him go anyway. Blanks said he would have to, get his lunch pail from the break room. He obtained the pail and 'returned: Gardner had his timecard ready. They walked to the gate, and Gardner punched the time of his departure on his timecard.. Blanks also testified on direct examination that he denied to Gardner he wrote on the walls.8 He testified that there 'was writing, mostly about the Union, all over the walls of, the stalls, that he had never been told 9 Blanks had been restricted to this work area during working time, except where he had to use a restroom or wished to obtain a drink at a drinking fountain The restroom for him and Kinnett was the one in the machinery,, department. 7 Blanks had in, and clipped to,, his shirt pocket on May 17, 1965, 'a medium sized pencil consisting of a black case with clip, and a lead made of a soap material , white in color. The lead could be extended from the case to write with , or withdrawn into the case, by turning the top. Writing done with this pencil could be erased with cloth, soap, and water. It is identified as a grease pencil. , -9,8,In response to counsel for General Counsel's question on direct examination whether _hej wrote on the restroom walls? Blanks answered , "No, sir„ not that I know of." Counsel did not ask him if he wrote on the door, and Blanks made no reference in his direct examination to any writing on the door . He did not deny he wrote on the door. THE SINGER COMPANY, WOOD PRODUCTS DIVISION 225 his work was unsatisfactory, or received a written or oral warning about his work, and that he had received raises, the last one being for 10 cents which he received about 2 or 3 months before he was discharged. 3. Blanks' testimony on cross-examination On cross-examination, Blanks testified that in his inspection work in the quality control department he marked with chalk defects on the rough stock that had been machined on the woodworking machines in the machinery department, that a grease pencil was used only on finished stock, and he had no use for it in his work under Gardner. In regard to the grease pencil, he further testified that it was given to him about a month before May 17, that he always carried it on the job, and would have it when he had to inspect finished material, that he had it in his shirt pocket in the restroom on May 17, and when he came out of the stall Gard- ner and he talked about it. He testified that he had not been using it, and had not removed it from his shirt pocket. Counsel for Respondent handed Blanks a sheet of legal size lined yellow paper, and asked him to print thereon the words, The bosses here are mighty mean trying to win your vote with a coke machine. Blanks printed the words with a ball point pen on the paper in response to the request. He misspelled the word machine by spelling it mechine. He interspersed small letters among capital letters in most of the words. He began the word "here" with a small letter, and began all the others with a capital letter. Respondent's counsel asked Blanks if he saw such a writing on the door of the stall he occupied on May 17. He answered he did not read any of it. He was asked if he denied writing the words on the wall. He denied he did. He was asked if he saw the writing on the wall when he was sitting on the commode. He answered that he may have seen it, but did not read it. He then testified that the words were written in white, and that he offered to rub them off the door when Gardner said he saw him write them on the door. He was asked if the word machine was not spelled mechine on the writing on the door, and he answered he did not know. Counsel for Respondent then showed Blanks a photograph of a part of the door of the stall he was in on May 17 with the above writing on it, and asked him if the writing was not what he saw on the door of the stall when he occupied it, and Blanks answered he believed it was.9 Counsel asked Blanks if he could account for the spelling of machine as mechine in the writing on the door as well as in the writing he had printed on the yellow paper. He replied he could not, and asked counsel whether a number of others could not have made the same mistake. Counsel for Respondent then asked him if he saw the writing on the wall, and he answered, "yes, I seen it on the wall." 10 Blanks also gave the following testimony on cross-examination . He went to the restroom at 7:50 p.m., and Will House was there when he entered. He was in the restroom 5 minutes, that it took a few minutes to walk there from his station. While he was in the stall, he saw Gardner enter. Blanks and House talked about the Union. They were saying that they would have better pay and working conditions if the Union was in the plant. Coke machines were being placed around the plant at the time, but he did not talk with House about Plant Manager Crozier's order directing their installation, although he did discuss the order with Kinnett.ii Gardner used the stall next to Blanks'. He was there a second only 0 The letters in the printed words in the photograph were all capital letters The word bosses was spelled "ROSES," and the word machine was spelled "MIaCHINE." 10 Counsel for Respondent , apparently in error , kept identifying the writing as writing on the wall instead of on the door, and Blanks continued to deny he wrote it on the wall, although he admitted he saw it on the door The issue is whether he wrote it on the door when he was sitting on the toilet. It will be noted that at the hearing Blanks did not deny lie wrote the matter on the door. He testified that he denied to Gardner on May 17 that he wrote on the door. ll The record is silent of direct testimony disclosing whether Gardner overheard the conversation between Blanks and House. Blanks testified on direct examination that Gardner came in the restroom a second or two after he did As will be seen infra, Gardner testified there were Blanks and another employee in two of the seven stalls when he entered , and that when he saw Blanks in one he went outside the restroom to ."it for him. 243-084-67-vol. 159-16 226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD He did not know where Gardner went after he left the stall. He stayed in the stall 4 minutes after Gardner left. Gardner was 6 to 8 feet from the stall when he emerged. He did not close the door, but left it open. Gardner did not go in the stall, but looked it all over, "inside, and on the doors and all." Gardner asked him if he wrote the writing on the door, and he denied he did. He did not say immediately thereafter, "Well, I did write it, and I will erase it." He knew, and had been told, there was a rule against "defacing of Company's property." When he was seated on the toilet, he could reach the door and any part of the stall. 4. Gardner's testimony on direct examination Gardner testified that neither Blanks nor Kinnett had any occasion to use a grease pencil, that this kind of pencil is used on finished products only, and no product inspected in his department was a finished product. Its mark on a rough part would be light and dim. He missed Blanks about 7:30 p.m., on May 17 1965. He was absent 10 to 12 minutes. Gardner went to the restroom in the machinery department, which was new, and saw that two of the seven stalls were occupied. He recognized Blanks' shoes. He walked outside the restroom, waited a minute and went back in. He then went to the stall next to Blanks, used it, and looked over the partition into the stall Blanks was using by stepping up on the toilet with one foot. Blanks was sitting down, and writing on the left hand, side of the door, three-quarters of the way down. He observed him writing the words "The bosses." He stepped down, went to the washbasin, directly in front of the stall, Blanks was using, and a minute later Blanks came out. Gardner pulled the door back, saw the rest of the writing, and asked Blanks if he wrote it. The writing was in white, -and it was written with a grease pencil. Blanks denied writing it. Gardner told him he saw him writing the first two words, and knew he did the rest of it. He asked him if he had been writing on the walls previous to that time, and Blanks said no. Finally, he admitted he wrote the words on the door. He said, "Yes, I wrote that, but not any more here" and that he would erase the words. Gardner told him to leave them there. There were writings on the walls. They were: "Vote Union," "Vote No," and "Vote Yes for better wages." Blanks then said, "What are you going to do," and Gardner said "I am going to let you go." Blanks said, "Well, I have been expecting it." Gardner discharged him for defacing company property. He did not tell him why he discharged him. Blanks said he had to get his lunch pail, and while he was getting it, he wrote out a pass for him, and brought him to the front gate. He gave as a reason for firing Blanks, "Defacing Company property." 12 5. Gardner's testimony on cross-examination and redirect examination. On cross-examination by counsel for General Counsel, Gardner gave the following testimony. Gardner never reprimanded Blanks for the quality of his work. His work was satisfactory after he restricted him to the quality control department work area. Two to three hundred employees used the machinery department restroom during the day and night shifts. He attended a meeting of supervisors in May 1964 concerning writings and drawings on the walls in restrooms. The cabinet depart- ment superintendent said that the bathroom in the machinery department was being ruined. He instructed the supervisors to watch the bathrooms, and if they saw anyone writing on the walls, "to have them reported to the department heads." He did not say to have them fired, just to have them reported. Gardner had never fired an employee for writing on the restroom walls prior to firing Blanks. He never gave Blanks or Kinnett a warning they would be fired for writing on the restroom walls. Gardner went into the machinery department restroom to see if Blanks was in there. "He seemed to be away from his area a little longer than it should have taken him." Gardner thought he could be loafing, and was checking on him to see if he was. His only knowledge that Blanks had been loafing in the past was in connection with his talking to Murphy. He had never caught him loafing before. It was permissible for Blanks to go to the restroom, or to obtain a drink of water, during working hours. 12 William Cooper, personnel director of Respondent, testified that the notice to him by the quality control department dated May 18, 1965, that it had discharged Blanks on May 17, 1965, supra, was part of the files of the personnel director. The reason on the notice for Blanks' discharge was, "Defacing Company property." THE SINGER COMPANY, WOOD -PRODUCTS DIVISION 227 During Gardner's employment as foreman by Respondent , he discharged about half a dozen employees in addition to Blanks. He discharged them for poor work, refusing to work, and absenteeism . Gardner knew that prior to the time Blanks was in the stall there was writing on its walls. He knew that the writing was about the Union or union activities. He inspected the bathroom every day at 5:30 to 6 p .m., and had, on occasion, wiped writing off the inside of the stalls. The writing with a grease pencil could be fairly easily rubbed off, that is by "soap, water and rag." There was writing on the walls that referred to other things, but Gardner did not think that "a lady would like to hear it ." He watched the stalls to see if he could find the persons writing in them, but never found anyone doing it, except Blanks. He first found writings about the Union on the walls of the cell Blanks used in the latter part of April . The writings about the Union that had been on the walls when he saw the writing on the door, could not be erased as they had been made by an indelible ink marking pencil. The walls would have to be painted to eliminate them. On redirect examination , Gardner said that he inspected the machinery depart- ment restroom at 6 p.m., on May 17, and at that time the writing on the door of the stall Blanks used was not there. He also said that the walls had been repainted many times. 6. Testimony - of Personnel Director William Cooper The form on which the quality control department informed the personnel director that Blanks had been discharged was received in evidence through William Cooper, Respondent's personnel director. He testified that it was part of the records of the personnel director. As previously stated, supra, this form was signed by F. J. Gryson, the head of the department of quality control, was dated May 18, 1965, and stated thereon that Blanks was discharged on May 17, 1965, for defacing company property, and would not be rehired. There was a space for the signature of the foreman initiating the discharge, but Gardner did not sign it. Also received in evidence through Personnel Director Cooper was a notice dated October 26, 1964, to the personnel director signed by William Ragsdale, depart- ment head of department 24, that employee J. M. McKeel, a sander, was dis- charged October 26, 1964, for "Writing on Wall in Men's Rest Room," and would not be rehired. The notice was also signed by , Foreman J. Collier. The notice was on the same form as' the notice of Blank's discharge. The space on the form for the inclusion of the reason for discharge had beside it in addition to the word "Reason," the words "Include No. of Warnings" in parenthesis. Neither the notice of Blanks discharge nor of McKeel's discharge contained any information that a warning was or was not given. Cooper testified that to his knowledge employee McKeel 'received no warning except by the publication of the company rule. Cooper also testified that on receipt of the notices of McKeel's and Blank's discharges, his department removed their names as employees from the payroll and other records. He testified further that he was aware that employees were writing on the restroom walls, that the writings also dealt with subjects other than the Union , and that Respondent had attempted to discover the employees doing the writing in order to discourage it. He did not know whether his files contained other notices of discharges for defacing company property , or writing on restroom walls, as he obtained the notice of McKeel's discharge only in response to a request that he find one such notice. D. Analysis and concluding findings Alleged discriminatee Blanks, General Counsel's chief witness, was less than candid while testifying on direct examination. He did not disclose that the important part of his conversation with Gardner on May 17, 1965, in the machinery department restroom dealt with a writing done with a grease pencil on the inside of the door of the stall he had been using. His testimony was slanted to give the impression that Gardner questioned him only about writing on the walls of the stall. As the full context of the testimony discloses, Gardner mainly questioned him about the writing on the inside of the door, that had been done with a grease pencil, and accused him of writing it. Gardner only inciden- tally asked him if he had done any of the writing on the walls. The writing on the walls had been done with an indelible ink marking pencil, and could not be erased except by paint. Gardner readily testified that he had seen this writing 228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD on the walls when he inspected the stalls sometime between 5 and 6 p.m. on May 17, an hour to an hour and a half prior to the time Blanks used the stall. Counsel for- the General Counsel on direct examination of Blanks undoubtedly gave special emphasis to the writing on the walls , and made no reference to any writing on- the door, because it had not been';disclosed to him that the writing on the 'door was in issue. In good faith , he setup the moment of truth when he asked Blanks if he had written on the walls. Blanks piously said no. Counsel for General Counsel did not ask him if he had written on the door. Blanks did not deny under oath either on direct or cross that he was the writer of the words on the inside of the door. ' - As previously stated, I do not consider Kinnett as -a reliable witness. His testimony on direct and -cross-examination discloses that he'was anxious to 'avoid displeasing either side, and his testimony, consciously or unconsciously, -was tailored to that end . In evaluating Gardner's testimony, both substantive - and demeanor, against the substantive and demeanor testimony of Blanks and Kinnett, I find him the more credible witness . But this does ' not mean that I have accepted everything in' his testimony, or have rejected everything in the testimony of Blanks and Kinnett.13 - Contrary to Blanks' testimony , Gardner did not ask him on May 1, 1965, if he was for the Union . May 1 was on a Saturday, and Blanks did not work on that day. The next day in May the question could have been asked by Gardner, if it was, was Monday, May 3, or Tuesday , May 4. Blanks testified this was the day that Murphy came to his work station, and said that Fletcher, machinery department foreman , had-heard that Blanks had said something about employees joining the Union, and asked him if he was still for the Union , and he answered that he was, and would like to see ' it get in. Kinnett's corroborating testimony is that he saw Gardner and Blanks talking on May 6 or 7, about a week prior to the',time he and Blanks`were restricted to the quality control work area, and overheard Blanks say he was for the Union 100 percent. The restriction occurred on May 7, 1965 . If Kinnett saw Blanks engaged in a conversation a week earlier , during which he made the above statement, it had to have been held on May: 3, or at the latest May 4. Kinnett gave no testi- mony that would disclose the context in which the statement was made, or whether there was a question to which the statement was a response. Gardner denied having any knowledge of Blanks' union activity prior to being apprised on May 5 by Fletcher- of Blanks' incident with Murphy . He also denied referring to- the Union in the April 1965 conversations initiated by Kinnett in which the latter volunteered. that union activity was going on;' and said he did not wish to get involved in it, or in any conversations he had with Blanks in May or any other time, or in the conversation he had with Kinnett on May 7 when he restricted him to the quality control work -area. He testified that later ,on May 7, in response to Kinnett's questions, in •a conversation initiated by Kinnett, he said that the restriction was aimed at - Kinnett, and it had to do with the. Union . It is to be noted that while Kinnett testified that Gardner said to him' in the first conversa- tion' in April that he would watch l Blanks, his testimony shows he made •ko. men- tion to Gardner in the conversation of Blanks as the one engaged in the union activity. It is highly doubtful he would "finger"' the only other rank-and-file employee in quality control. - - - - Blanks' testimony that during the lunch period or break at 9 p.m., on May 3 or 4, he told employee Murphy that if. he spoke to employees about the Union, it was his business, and not Murphy's, and Kinnett's testimony 'that , on May 3 or 4, Blanks and Murphy had a conversation in the hall near the machinery department and the quality control department , with other employees present, and he did not know if they were having a dispute, when considered with Blanks' testimony of what Murphy said to him at his worktable earlier on this date, leave the inference that Blanks and Murphy could Well have had heated words during this earlier meeting, and Murphy could have left the conversation red faced after Blanks accused him of informing Fletcher about his union activity, and said to him that he was still 100 percent for the Union coming in . It is not difficult to visualize Kinnett as having the mistaken belief at the time of the hearing that it was Gardner he saw, and not Murphy. After consideration of the substantive and demeanor testimony of Blanks, Kinnett, and Gardner, I credit Gardner's testimony, and do not credit Blanks' '- See N.LR.B. v. Universal Camera Corporation, 179 F.2d 749, 754 (C.A. 2), reversed on other grounds 340 U.S. 474. THE SINGER COMPANY, WOOD PRODUCTS DIVISION 229 and Kinnett's testimony. I; conclude and find that General Counsel has not proved by the preponderance of the evidence on the record considered as a whole, that Respondent by Gardner interrogated Blanks on or about May 1, 1965, about his union membership , activities, and desires, in violation of Section 8(a)(1). It does not follow - as a foregone conclusion that, if one 'has engaged in, illegal conduct in the past , he shall repeat the illegal conduct or engage in similar or related illegal conduct.14 , The Discharge Blanks left his work station sometime 'between 7:30 and 8 `p.m., on May 17, 1965, without disclosing where he was going, and went to the. •restroom in the machinery department and entered one' of the stalls. Approximately 17 minutes elapsed from the time Blanks left his work station to the beginning of his con- versation with Gardner in the restroom. Ten to twelve-minutes had elapsed when Gardner went looking for. Blanks. Adding the 2 . or 3 minutes Blanks testified it took to go'to the restroom froin the quality control work area, 3 or 4 minutes elapsed between Gardner's entry to the' restroom and- the beginning of the" conversation. 15 I have studied the,style; and shape of. the letters Blanks made on the sheet of lined legal sized 'paper on September 16,1965, when he testified, and have com- pared the style and shape with the style and shape of the letters in the photo- graph of the writing that was on the inside of.the door of the stall in the restroom that Blanks emerged from on May 17, ,1965, when ,Gardner was waiting for him. I'find the style and shape of both set's of letters to be the same. I give no signif- icance to the fact that the words in the writing on the yellow sheet had small letters' interspersed between capital letters, while the words in the photograph were all in. capital letters. Blanks' lack of candor on the witness stand discloses him to be capable of endeavoring to conceal"his May 17 authorship by the use of" both `small and 'capital, letters, in the writing on the yellow paper. The misspelled word "mechine" in both writings, except for it bein'g'ih• capital letters in the May 17' writing, and in two , capital letters and four small letters in'the" yellow paper writing, are; identical. Bosses was mispelled BO,SES in the May 17 writing, and correctly 'spelled'in the September, 16, 1965, writing.. But the words are otherwise the same, and Blanks could have -easily learned to "spell this ' word correctly between May 17 and, September 16. ' 'Added to the evidence of the, similarity of style and shape of the letters, is the evidence that the'.words were written with a grease pencil, and 'Blanks had a grease pencil; in the pocket of his 'shirt, which he claimed was given to him by, some unknown person about April 17, but admitted was not needed in-his work; the `subject of the 'writing was the installation of Coke machines. by Respondent to combat organizational activity, which Blanks had discussed with Kinnett; Gardner's testimony that he saw Blanks writing the first two words "THE BOSES," that the writing was not on the door when he inspected the stall between 5-and 6' p.m., and"that Blanks admitted to him that he wrote the writing; and Blanks' failure to deny under oath on September, 16 -he' wrote the words on the door, although he denied he wrote them or any other words on the walls. This evidence persuades me, and I ' so find, that Blanks wrote on the inside of the door of the stall in the restroom on May 17•with a grease pencil the words: THE, BOSES HERE ARE MIGTY 'MEAN TRYING TO WIN YOUR VOTE WITH A COKE MECHINE 16 14 N L R.B v. Southern Transport, Inc, 355 F.2d 978 (C.A. 8). 15I find that on the record considered as a whole Blanks solicited Murphy with respect to membership in the Union during working time on May 3 or 4, 1965 . I do not find that the solicitation was necessarily at Murphy 's machine as Respondent contends, in view of Blanks ' categorical denial that he did not solicit Murphy at his machine, and Respondent's failure to call Murphy as a witness, and its reliance on the hearsay testi- mony by Gardner of what - Murphy and Fletcher - told Gardner about the solicitation.' I also find that while there is some evidence that Gardner overheard Blanks soliciting House in the restroom, it is less than substantial and would not support a finding he did over- hear the solicitation. 19 See Citizens Hotel Company, d/b/a Texas Hotel, 131 NLRB 834 , 840, enfd . 313 F 2d 708 (CA. 5) 230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Rules 4 and 7 in Respondent's Employee Handbook forbid, "Deliberately restricting output, loafing, interfering with or inducing others to interfere with efficiency or production," and the "Abuse, deliberate waste or destruction of Company property." The narrative accompanying these rules contains the warn- ing that a violation of the rules may result in discharge or other disciplinary action. Blanks had knowledge of these rules. Gardner, Blanks, and Kennett performed the important job of checking the rough parts made in the machinery department before they were passed on to the furniture dimension department to be assembled, and the assembled products finished. The absence of Blanks from his job could cause a bottleneck in the passing of the parts from one depart- ment to the other. Blanks had been restricted to his work area, but free to utilize a reasonable time to go to the restroom or the drinking fountain. Gardner testified he was of the opinion that Blanks was gone a little longer than neces- sary, and might have been off loafing in view of the incident about May 3 or 4 when Blanks talked to employee Murphy. He went looking for Blanks, and found him in the restroom. He waited outside the restroom for him, and when he did not come out, he went back in, used the stall next to the one Blanks was in, and looked over the partition. I find that Gardner saw Blanks occupied with writing the above expression with a grease pencil on the inside of the stall door which-was directly in front of him, and which he could reach without effort from where he was sitting . Blanks was both loafing and writing on the door of the restroom stall. It is not conclusive that a respondent who has violated the Act is guilty there- after of every violation with which he is charged. A finding of a violation must still be supported by substantial evidence.17 Here Blanks actually engaged in the conduct for which Respondent claims he was discharged. While the notice of discharge to the personnel director, which was signed by the department head, but not by Gardner, listed-'defacing company property as the reason for the discharge, the record would support the finding that if the discharge was not discriminatorily motivated, it was 'for loafing as well as writing on the restroom door. Gardner gave no reason to Blanks when he told him he would have to let him go after his conversation with him about the writing on the door. But he had started out to look for Blanks to see if he was loafing. He was loafing for a few minutes in addition to writing on the door. The question that bothers me at this point is: Why did Gardner go looking for Blanks on May 17 after the latter had been absent only 10 to 12 minutes from his worktable? I can visualize a situation where the rough parts were moving from the machinery department to the furniture dimension department in substantial quantities , and since they had to pass inspection by the quality control department before they reached that destination, a bottleneck would occur if the complete crew of Gardner , Blanks, and Kinnett was not continuously on the job except for the minimum of reasonable time it took to use the rest- room or go to the drinking fountain. Respondent offered no testimony that such a situation existed, that Blanks presence was needed, or that Gardner had gone looking for him so that the parts could be kept moving to the furniture dimen- sion department, and a bottleneck avoided. Gardner, on the other hand, testified that since May 7, when Blanks was restricted to his work area, he had complied with the restriction, the quality and other factors of his work were satisfactory, and he had not reprimanded him for any reason. Blanks' employment history showed him to be an able and willing worker. Gardner's only explanation was that Blanks' absence for 10 to 12 minutes caused him to have the opinion that he might be loafing, in view of his loafing in the earlier part of May when he solicited Murphy in connection with the organiza- tional activity of the Union, and for which he was restricted to the quality control department area on May 7. May 3 or 4 when the solicitation occurred, was about 2 weeks prior to May 17, the day when Gardner went looking for Blanks, and found him writing on a door in the restroom and discharged him. The procedure that a supervisor would ordinarily follow in these circumstances would be to keep his weather eye out for the return of Blanks, but not to leave the highly important job he had in quality control. Taking into account the 2 or 3 minutes it took to go from the quality control area to the machinery department restroom, Blanks had not been absent an unreasonable length of time. Gardner would not have gone searching for him unless some special motive impelled him to do so. 17 Y L R R v Southern Transport Inc 355 F 2d 978 (C A 8) THE SINGER COMPANY, WOOD PRODUCTS DIVISION 231 The Board in The Singer Company, Wood Products Division, 153 NLRB 922,18 found that the Union began an organizational campaign at Respondent's plant in January 1964, and that Respondent in connection with this campaign interrogated employees about it and criticized and threatened them with -supporting it, and applied a long standing rule against doing personal business or outside business during working hours, or posting or distributing posters, bills, notices, or other printed matter except as authorized, in such a way as to ban solicitation or other union activity on nonworking time as well as on working time. The Board found that the interrogation, threats, and broad rule in view of the way it was applied violated Section 8(a)( I) of the Act. The Board also found that in connection with the organizational campaign of the Union, Respondent discriminatorily discharged four employees in violation of Section 8(a)(3) and (1) of the Act. The Board considered as pretextual the reasons advanced by Respondent for firing employees Palmer and Lyle. Respondent, which knew of Palmer's union affiliation, claimed that his discharge was for passing a union button to another employee at work. Palmer, who had been wearing a union button for a week, took a few minutes of working time to pass a union button to a lady employee who worked 4 feet away. Respondent claimed that Lyle was discharged for soliciting union membership when at work. Lyle asked employee Donahue for the union card he had given him, while he was at the drinking fountain, and Donahue was behind him, and handed Donahue a pencil for him to sign it before he returned it to him. Palmer's supervisor took no action against him until he found it was a union button he- saw Palmer passing to the lady employee. He then instructed his fore- man to discharge him. The foreman did discharge Palmer, and for the stated rea- son he was soliciting during working hours. The night foreman saw the incident involving Lyle at the drinking fountain, but said nothing. Lyle's direct foreman, a short time later, warned him that he should not do outside business on company time. This was the extent of the reprimand. The next day, however, his direct foreman, without any explanation for his change of position, told him he was being discharged for doing business on company time the day before. In finding the reasons given by Respondent for Palmer's and Lyle's discharges to be pretextual, the Board also considered the evidence that no one had previously been discharged for violating the rule against doing noncompany business on company time, no one had ever been discharged for a first violation of any rule, and Respondent's Fore- man Watson said in response to employee Platt's question of how long he would last wearing a union button, "They'll find some way to fire you." It is undisputed that Foremen Gardner and Fletcher had knowledge of Blanks' union activity on and after May 5, 1965. Blanks had solicited employee Murphy about May 3 or 4 on company time, and had been restricted to his work area because of it. Gardner testified that he told Blanks and Kinnett that their restric- tion to the work area was the doing of outside or personal work during working time. He also testified however, that he told Kinnett on May 7 that the restriction was against Blanks because of his union activity. If Respondent had acted con- sistently with what it had done when Palmer and Lyle were found soliciting for the Union, Blanks would have been fired on May 6 or 7. However, Trial Examiner Mullin's Decision had been issued, and it was before the Board on exceptions. Respondent had been found by Mullin to have discriminatorily discharged Lyle and Palmer for conduct similar to the conduct of Blanks. Respondent determined to discharge Blanks for his union activity, but to act warily and with caution to con- ceal the true reason for the discharge. It waited for a time spread between Blanks' solicitation, and the time it 'would discharge him, and for Blanks'to engage in conduct which it could claim pretextually was the reason for the discharge. Two weeks after Blanks' solicitation of Murphy on May 3 or 4, Gardner went looking for Blanks in the hope he would find him doing something for which Respondent could claim was the reason for firing him. He found him loafing and writing on the door of a stall in the restroom with a grease pencil. Blanks had been loafing for only a few minutes, and the writing could have been removed easily with a cloth, soap, and water. Blanks had not written on the walls the writing that had been done with an indelible marking pencil, which could be removed only by painting. Absent its union animus, Respondent would not have discharged Blanks for loafing, for the 2 or 3 minutes, he loafed was within a The decision was issued on June 30, 1965 The Board adopted with modifications the decision of Trial Examiner Robert E Mullin, TXD-29-65, irhlch he issued on January 28, 1965 232 DECISIONS OF NATIONAL LABOR, RELATIONS BOARD reasonable time -for the use of the bathroom. Nor would , it have discharged Blanks for the writing as it was not a serious offense when compared with the other writing, and , in any event, Respondent had not given, Blanks a warning against writing , on the doors or walls in the restroom . There is,no evidence of record that Respondent notified employees that , contrary to its prior practice of warning employees first, it would discharge employees without notice for violation, of one of -its rules. The context of the form on which notice was given- to the personnel director of Blanks' and McKeel 's discharges indicates that the giving of a- warning before discharge was still part of Respondent 's policy. - So does Gard- ner's testimony of the cabinet department head's, statement of what -a supervisor should do when he found an employee writing on the walls or other areas of a restroom. He said the supervisor should report him to, -the department head. Gardner summarily fired, Blanks, without first reporting him to Gryson,, the' depart- ment head. I do not give any weight to Personnel Director Cooper's, opinion that McKeel was discharged without a warning. It has no basis in-fact or-knowledge, and clearly has no probative . value. i r On the-,record considered as a whole, and pursuant to the findings, made above, I, conclude and find that Respondent by Gardner• with the motive to discharge Blanks , for his union activity on May 3 or 4, 1965, followed him on May 17, 1965, looking for : conduct he might commit, which pretextually1 it could claim as the reason for firing him, and having found him loafing and,writing on the door of a',stall in the restroom, discharged him for his-union activity, and claimed as the reason .for the discharge his writing on the door in the restroom. - I find-, this act of Respondent violative of Section 8(a) (3) and ( 1) of the Act.19 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above , occurring in con- nection with the operations of Respondent described in, section I, above, have a close,, intimate,' and substantial 'relation to trade; traffic, and ,commerce among the several States,, and tend to lead to labor disputes burdening ;and 'obstructing corn- - coerce and the free flow of , commerce. V. ITHE REMEDY ' Having found that Respondent discriminated against employees in regard to their hire and tenure of employment ! and-their terms and conditions of employment, in a manner - that discouraged membership in the Union , by discharging employee Blanks, I shall recommend that Respondent cease and desist from'such an unfair labor practice, and take such affirmative action as appears necessary to effectuate the purpose .of the Act . I 'shall recommend that Respondent offer Blanks, with- out prejudice to his seniority- and other rights and privileges , immediate and full reinstatement to his former or substantially equivalent position . :I shall also recom= mend that Respondent make Blanks whole for any loss of earnings he suffered by reason of the discrimination against him, as provided in F.' W.Woolworth Com- pany, 90 NLRB 289, with interest at 6 percent per annum , as - provided in Isis Plumbing & Heating Co ., 138 NLRB 716. CONCLUSIONS OF LAW 1. Respondent The Singer Company, Wood Products Division, is engaged in commerce within the meaning of Section 2(6) and .(7) of .the Act. 2. Local Union 2705; United Brotherhood of Carpenters and Joiners of America, AFL-CIO, is 'a labor organization within the meaning of Section 2(5) of the Act. 3. By discharging employee-Elzie Blanks on May 17, 1965, and refusing to rein- state him, Respondent discriminated against him and other, employees in regard to D Lexington Chair Company, 150 NLRB 1328; Whitfield Pickle Compan y, 151 NLRB 430; N.L.R.B v. Whiten Machine Works, 204 F 2d 883 (CA. 1), enfg 100 NLRB 279; N L R.B. v. D'Armigene, Inc., 353 F.2d 406 (C.A. 2), enfg. 148 NLRB 2; N.L.R B. v. Schill Steel' Products, Inc., 340 F 2d 568 (C.A. 5), enfg. 140 NLRB 1164 and 144 NLRB 69; Saginaw Furniture Co , Inc v. N.L.R.B , 343 E 2d 515 (CA. 7), enfg 146 NLRB 587; and N.LR.B v Golden State Bottling Co, 353 F 2d 667 (C.A. 9), enfg. 147 NLRB 410; and Radio Of71cer8' Union of the Commercial Telegraphers Union -(A H.,Btitl Steam- ship Company ) v. N.L.R.B., 347 U S. 17, 45-46, 51. ; THE SINGER COMPANY, WOOD PRODUCTS DIVISION 233 their hire and tenure of employment and other terms and working conditions of employment, to discourage membership in the Union, and interfered with, coerced, and restrained employees with respect to the rights guaranteed them in Section 7 of-; the Act, in violation of Section 8(a)(3) and (1) of the Act. ,4. This -unfair . labor practice affects commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact and conclusions of law, and pursuant to 'Section 10(c) of the Act, I hereby issue the following: RECOMMENDED ORDER The Singer Company, Wood Products Division, its officers, agents, successors, and assigns, shall: • - 1. Cease and desist from: (a) Discouraging membership in Local Union 2705, United Brotherhood of Carpenters and Joiners of America , AFL-CIO, by the discharge of employee Elzie Blanks, and refusing to reinstate him, for his union activity , or in any other manner discriminating against employees in regard to their hire or tenure of employment or any other term or condition of employment. (b) Engaging in like or related conduct that interferes with , coerces, or restrains employees with respect to their rights to join- or assist unions, or to engage in other concerted activities for mutual aid or - protection, as guaranteed them in Section 7 of the Act. 2. Take the following action which will effectuate the policies of the Act: (a) Offer Elzie Blanks, without prejudice to his seniority and other rights and privileges,Fimmediate and full reinstatement to his former 'or substantially equivalent position, and make him whole for any loss of earnings , including interest , suffered by_ reason of, the. discrimination against him, in the manner set forth in the section entitled "The Remedy." (b) Notify the above-named employee, if presently serving in the Armed Forces of the United States, of his right to full reinstatement upon application in accord- ance with the 'Selective Service Act and the'Universal Military and Service Act, as amended, after discharge from the Armed Forces. (c) Preserve and, upon request , make available to the Board or its agents, for 'examination and copying, all payroll records , social security payment records, timecards, personnel' records and reports, and all other records relevant and ,material to Respondent's compliance with the provisions of this Order. (d) Post in conspicuous places at its plant in Trumann, Arkansas , including all places where notices to employees are customarily posted, copies of the attached notice marked "Appendix." 20 Copies of said notice to be furnished by the Regional Director for Region 26 of the National -Labor Relations Board shall , after being duly signed by an authorized representative of the Respondent , be posted by it immediately upon receipt thereof, and maintained by it for 60 consecutive days thereafter in such conspicuous places. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered , defaced, or covered by any other material. (e) Notify the Regional Director for Region 26, in writing , within 20 days from the date of the receipt by the Respondent of this Trial Examiner 's Decision and 'Recommended Order what steps the Respondent has taken to comply therewith.21 IT IS FURTHER RECOMMENDED that unless on or before 20 days from the date of the receipt of this Trial Examiner's Decision and Recommended Order the Respondent notifies the Regional Director, in writing, that it will comply with the foregoing recommendations , the National Labor Relations Board issue an order requiring the Respondent to take the action aforesaid. 20In the event that this Recommended Order is 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." 21 In the event that, this Recommended Order is 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." 234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 Relations Act, as amended , we hereby notify our employees that: WE WILL NOT discourage membership in Local Union 2705, United Brother- hood of Carpenters and Joiners of America, AFL-CIO, by discharging Elzie Blanks, or refusing to reinstate him, or in any other manner discriminate against employees in regard to their hire or tenure of employment or any other term or condition of employment. WE WILL NOT engage in like or related conduct that interferes with, coerces, or restrains employees with respect to their rights to join or assist Local Union 2705, or any other labor organization, or to engage in other concerted activities for mutual aid or protection, as guaranteed them in Section 7 of the Act. WE WILL offer Elzie Blanks, without prejudice to his seniority and other rights and privileges, immediate and full reinstatement to his former or sub- stantially equivalent position, and make him whole for any loss of earnings, including interest, he has suffered from the discrimination against him. All our employees are free to become, or refrain from becoming , members of Local Union 2705, United Brotherhood of Carpenters and Joiners of America, AFL-CIO or any other labor organization. THE SINGER COMPANY, WOOD PRODUCTS DIVISION, Employer. Dated------------------- By------------------------------------------- (Representative) (Title) NOTE.-We will notify Elzie Blanks if presently serving in the Armed Forces of the United States of his rights to full reinstatement upon application in accordance with the Selective Service Act and Universal Military Training and Service Act, 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. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board' s Regional Office, 746 Federal Office Building, 167 North Main Street, Memphis, Tennessee 38103, Telephone 534-3161. Bausch & Lomb Incorporated and Beatrice A. Misenar. Case 31-CA-106 (formerly 21-CA-6844). June 13, 1966 DECISION AND ORDER On April 15, 1966, Trial Examiner James R. Hemingway issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaged in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a. three-member panel [Members Fanning, Brown, and Zagoria]. 159 NLRB No. 20.