Knox Homes Corp.

442 DECISIONS OF NATIO DIAL LABOR RELATIONS BOARD IT IS FURTHER RECOMMENDED that the complaint be dismissed insofar as it charges Respondent with an unlawful refusal to bargain or with any coercive conduct other than that found in this Decision. 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 threaten our employees with job loss if they select Retail, Wholesale and Department Store Union, AFL-CIO, or any other labor organi- zation, as their collective-bargaining agent. WE WILL NOT threaten our employees with moving the plant should they join or engage in activities on behalf of Retail, Wholesale and Department Store Union, AFL-CIO, or any other labor organization. WE WILL NOT coercively interrogate our employees concerning their mem- bership in or activities on behalf of Retail, Wholesale and Department Store • Union, AFL-CIO, or any other labor organization. WE WILL NOT announce or grant a paid vacation or any other benefits to our employees to dissuade them from becoming or remaining members of Retail, Wholesale and Department Store 'Union, AFL-CIO, or any other labor organization. WE WILL NOT, in any like or similar manner, interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form, join, or assist Retail, Wholesale and Department Store Union, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection as guaranteed in Sec- tion 7 of the Act. All our employees are free to become or remain, or to refrain from becoming or remaining, members of the above Union or any other labor organization. JAMES A. PEARSON, RUFUS S. PEARSON AND MRS. E. W. PEARSON, D/B/A CRYSTAL LAKE BROOM WORKS, Employer. Dated------------------- By------------------------------------------- (Representative) (Title) 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, 528 Peachtree-Seventh Building, 50 Seventh Street NE., Atlanta, Georgia 30323, Tele- phone 876-3311, Extension 5357. Knox Homes , Corporation and Truckdrivers and Helpers Local Union No. 728 and Knox Homes Corporation and Truckdrivers and Helpers Local Union No. 728, affiliated with the Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Petitioner. Cases 10-CA-5974, 6058, and 10-RC-6102. June 15,1966 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION On March 18, 1966, Trial Examiner Eugene E. Dixon issued his Decision in the above-entitled proceeding, finding that the Respond- 159 NLRB No. 40. KNOX HOMES CORPORATION 443. ent had engaged in and was engaging in certain unfair labor prac- tices within the meaning of the National Labor Relations Act. as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. He also found that Respondent had not en- gaged in other unfair labor practices alleged in the complaint and recommended dismissal of those allegations. In addition, he recom- mended sustaining certain objections to the election held Novem- ber 20, 1964, in Case 10-RC-6102, setting aside the election, and conducting a new election at a time and date to be determined by the Regional Director. Thereafter, the Respondent filed exceptions and a supporting brief. The-Charging Party filed a brief in support of the Trial Examiner's Decision. Pursuant to the provisions of Section 3(b) of the Act, as amended, the National Labor Relations Board has delegated its powers in connection with these cases to a three-member panel [Members Fan- ning, Brown, and Jenkins]. 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, the briefs, and the entire rec- ord in these cases, and hereby adopts the findings,' conclusions, and recommendations 2 of the Trial Examiner. [The Board adopted the Trial Examiner's Recommended Order and set aside the election held in Case 10-RC-6102 and remanded the case to the Regional Director for the purpose of conducting a new election at such time as he deems that circumstances permit the free choice of a bargaining representative.] [Text of Direction of Second Election omitted from publication.] 1 No exceptions were filed to the Trial Examiner's findings that Respondent did not dis- charge employees Lynwood F . Burke, Edgar W. Thigpen, and Jackie Thomas Mauck in violation of Section 8(a) (3) and (1) of the Act. Nor were exceptions filed to the Trial Examiner 's denial of the General Counsel's request for a bargaining order. 2 Respondent attacks the credibility findings of the Trial Examiner in connection with his findings of 8(a) ( 1) violations . We have reviewed the entire record and, under the standards set forth in Standard Dry Wall Products Co., Inc, 91 NLRB 544, enfd . 18S F.2d 362 (C.A 3 ), we find no reason to reject these findings. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE This proceeding, brought under Section 10(b) of the National Labor Relations Act, as amended (61 Stat. 136), herein called the Act, was heard before Trial Examiner Eugene E. Dixon, at Thomson, Georgia, on various dates between June 8 and 23, 1965, pursuant to due notice, with all parties represented by counsel. The complaint in Case 10-CA-4974 was issued in April 8, 1965, by the Regional Direc- tor for Region 10 (Atlanta, Georgia) of the National Labor Relations Board on behalf of its General Counsel, herein called the General Counsel and the Board. 444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It was based upon charges filed January 28 and March 16, 1965. Another com- plaint in Case 10-CA-6058 was similarly issued on May 17, 1965, based on charges filed April 1 and May 17, 1965. These complaints were consolidated for hear- ing along with Case 10-RC-6102 involving objections filed by the Union to the conduct of an election which it lost on November 20, 1964. The various charges alleged that Respondent had engaged in unfair labor prac- tices proscribed by Section 8(a)(1), (3), and (5) of the Act. Although the Regional Director refused to issue a complaint on the refusal to bargain charge, he did issue the two complaints, supra, the substance of their allegations being that Respondent had interfered with, restrained, and coerced its employees in the exer- cise of rights guaranteed by Section 7 of the Act by various specified conduct in violation of Section 8(a)(1), and had discriminated against its employees in regard to their hire or tenure of their employment in violation of Section 8(a)(3) by the discharge of various employees 1 because of their union membership, activities, or sympathies, thereby discouraging membership in the Union. In its duly filed answers Respondent denied any violations of the Act. Upon the entire record and from my observation of the witnesses , I make the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT At all times material herein Respondent has been a Delaware corporation with its principal office and place of business located at Thomson, Georgia, where it is engaged in the manufacture and sale of mobile and prefabricated homes. During the calendar year preceding issuance of the complaint, which is a representative period, Respondent sold and shipped finished products valued in excess of $50,000 directly to customers located outside the State of Georgia. At all times material herein Respondent has been engaged in commerce within the meaning of Section 2(6) and (7) of the Act. U. THE LABOR ORGANIZATION INVOLVED Truckdrivers and Helpers Local Union No. 728, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America at all times material herein has been a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Background and issues In late summer of 1964 the Union began an effort to organize Respondent's employees. The first meeting conducted by the Union for the employees was held on September 3. On September 14, the Union filed a representation petition. On November 20 the election took place which the Union lost by a vote of 87 to 64. Respondent became aware of the Union's organizing campaign prior to the filing of the representation petition and immediately launched a counter-campaign that opened on September 10 with a series of meetings between a group of employees who were interested in the Union and an official of Respondent. These meetings and numerous subsequent incidents are relied upon by the General Counsel and the Charging Party as grounds for setting aside the election and for finding vio- lations of Section 8(a)(1) of the Act on the part of Respondent In addition to the foregoing, the discharges of three employees are also relied upon by the Gen- eral Counsel as having been discriminatorily effectuated within the meaning of Section 8(a)(3) of the Act. One other issue is involved: Although no 8(a)(5) violation of the Act has been alleged in the complaint,2 the General Counsel has alleged and offered evidence to establish that the Union did represent a majority of Respondent's employees in an appropriate unit as of October 15, 1964, and now seeks as part of the remedy herein an order that requires Respondent to bargain with the Union. 1 Those alleged to have been discriminatorily discharged were Jackie Thomas Mauck on December 3, 1964, Edgar W. Thigpen on December 4, 1964, and Lynwood F. Burke on February 24, 1965. 9 As noted in the statement of the case , refusal to bargain charges were filed by the Union but the Regional Director refused to issue a complaint thereon. KNOX HOMES CORPORATION 445 B. The meetings between Respondent and the employees Shortly after Respondent became aware of the Union's organizing effort among Respond'ent's employees, a group of 12 employees attended a 3-hour meeting at a local motel with Respondent's Assistant Manager Allen Pannell. This meeting took place on the afternoon of September 10, 1964, during working hours for which time the employees were paid. A similar meeting of about the same dura- tion took place the following day at the motel with those who attended the day before being joined by three or four additional employees. Another meeting con- vened at the motel the following Monday but was abruptly adjourned when Pan- nell was called away. About these meetings Carl Muns, an employee witness called by the General Counsel, testified as follows: He was apprised of the first meeting by a fellow employee who came to him at work telling him that Pannell wanted to talk to the employees. Pannell opened the meeting with a statement that he "wanted to know what the uproar was in the plant about the Union . . . what all the trouble was," and wanted to know if the employees "couldn't get together" among themselves and have their own union with "no outsiders" involved. With this introduction a lengthy discussion then took place about "the way the job was running" and what the employees "needed in the plant." Muns testified about several grievances that were brought up at this time. Among other things Pannell told the employees there was to have been a "5 percent blanket raise effective Labor Day" but because of "the union mess" Respondent's attorneys had advised against it. Pannell took notes throughout the meeting. The second meeting was more or less a repeti- tion of the first meeting. According to Muns, in the second meeting Pannell had informed them that he had found out that it would be illegal for them to have their own union .3 Russell Chapman, another employee called as a witness by the General Counsel, testified as follows: Fellow employee Harrison came up to him where he was working and asked if he "would go down to the motel to talk to Mr. Pannell about the Union, and about better working conditions in the plant; that he was going to talk to a group of men in the plant." At the meeting Pannell told the employees that the reason the meeting was being held was "to find out what the trouble was in the plant and how come (the employees) wanted a union." Pannell further told the employees that if they "were going to get a union that (the Teamsters) would be the wrong union to get; with all the truckdrivers in it; and all the communists in it and everything." Pannell further said that he "didn't want the Teamsters union .. . that he just couldn't work for a union . because the plant couldn't operate under a union ." He also stated "that if the Union came in that he wouldn't be there; that he would have him another job; ..... He also told the employees that they "could form (their) own little company union...." Pannell's direct testimony about this matter was as follows: He had been "requested by another employee, Clifford Harrison, to meet with a group of men that wanted to talk to (him) about some problems that they had." Harrison had requested Pannell to provide a place to meet away from the plant premises. This he did. At the first meeting Pannell "opened the meeting by letting it be known that (he) was there for the purpose of listening to anything that anybody had to say"; but he made it clear that he was not there "to make any kind of a deal or binding agreement." He denied interrogating the employees or soliciting any information from them. He also denied making any threats or any 8(a)(1) remarks. Although Pannell claimed it was the employees who wanted to talk to him, he testified that at first "there was a little bit of hesitation . on the part of some of the boys to open up and talk" until someone suggested that Pannell not record any names in connection with any suggestions or comments made. Notwithstand- ing his denial of interrogating or seeking any information from the employees Pannell nevertheless also testified that he "held the meeting, attended the meet- ing, and set the meeting up for the purpose of finding out what (the employees') complaints were." He further testified that numerous grievances were discussed at these meetings and that as a result of the meetings Respondent made changes in the employees' hours and working conditions.4 According to Pannell's testimony it was in the third meeting that he passed on this information to the employees. * A few days later (on September 15) Respondent posted a memorandum announcing the adoption "at the suggestion of company employees" of about 15 liberalized policies affect- ing the hours and working conditions of the employees. 446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On cross-examination Pannell described Clifford Harrison as a "good personal friend." 5 Although Pannell admitted making arrangements for the use of the motel, he testified that he did not know who paid for it. He further did not recall if he gave instructions to the foremen for the release of the employees to go to the meetings at the motel but believed that Harrison had made the arrangements under Pannell's authority. He had told Harrison to "go ahead and set it (the first meeting) up." As to the meetings, Harrison testified on direct as follows: He had talked to some employees who wanted to talk to Pannell. On the day before the first meet- ing, Harrison "bumped into" Pannell and told him he had something he wanted to talk to Pannell about. Accordingly he and Pannell met that night at a restau- rant. There he told Pannell about "some of the grievances and gripes that the men had" 6 and asked if he would meet with some of them. Pannell consented. As a result Harrison "contacted one person . . . talked to him about it and asked if he would go down there, and he said he would . . . He may have talked to one other employee about the meeting and it was these two who talked to other employees about it. According to Harrison, "They did it of their own free will " In his cross-examination Harrison would not say that he "organized" the meetings but maintained that he helped set them up. But as to the details of set- ting up the meetings he testified he "actually" did not know how the first meeting got set up. Later he testified that he set up the meeting because he thought they "might be able to straighten it out without having a union." Harrison was asked several times what Pannell had said to him when they met at the restaurant. Each time he pleaded a lack of memory. When he was asked who decided on the number of employees that would attend the meeting, he replied "Nobody decided" then immediately changed his testimony to "I guess you might say I decided." When he was asked who made the arrangements for the men to get off, he answered, "I told one foreman, I am pretty sure. I told the foreman I was working under, I was going to a meeting that afternoon, to get per- mission to go." He further testified (contrary to Pannell's testimony) that at that time he had no authority to tell a foreman that he was getting off work to attend a meeting. In addition to the foregoing, Harrison did not deny any of the remarks attributed to Pannell in the meetings by the General Counsel's witnesses. As to what was said at these meetings he was very vague and he admitted that his memory was "not too good." Among other things, he could not recall who had suggested that a company union be formed. In the face of the foregoing evidence Respondent would have it believed that Respondent had nothing to do with the instigation or the holding of these meet- ings and that they were simply the result of a request by the employees volun- tarily arrived at that Respondent meet with them. In my opinion simply to read the testimony, let alone to have heard it given, is to conclude the contrary. I credit the General Counsel's witnesses. Accordingly I find that Respondent was responsible for holding the meetings; that the whole tenor of the meetings was to discourage employee support of the Union and was coercive within the meaning of Section 8(a)(1) of the Act and that specifically as alleged in the complaint Respondent violated Section 8(a)(1) by Pannell's statement that but for "the union mess" the employees would have had a wage increase 7 I also find that the 5 At the time in question Harrison was a rank-and-file employee whose rate was $1 80 per hour. A few months after the incidents in question on the basis of an "offer" made to Harrison by Pannell, Harrison took a job with a construction company as a supervisor "in a certain field" at a weekly salary of $125 9 Harrison testified that he had attended two union meetings but was not for the Union and did not join it. At first he denied telling Pannell that he had attended any union meetings. Then he admitted that he had told Pannell about attending union meetings but denied having had any discussion with him about the meetings whatsoever-how many attended or who they were. He also denied that Pannell had asked him any questions about the meetings . Elsewhere he testified that he could not remember what Pannell had said in .connection with the things he told Pannell and further that he "couldn't remember" what he told Pannell. 4 Respondent's president, Peter Knox, Jr., testified that Respondent had decided upon a wage increase for the employees before the Union came into the picture . Notwithstanding that the increase may have been held up on the advice of counsel ( as testified by Knox), in the context of the events here I believe that Pannell's purpose in making the statement that he did about the raise was to show the employees their folly in supporting the Union. Cf. Hermann Equipment Manufacturing Company, Inc., 156 NLRB 716, footnote 3. KNOX HOMES CORPORATION 447 announcement by Respondent on September 15 of the various changes in its poli- cies regarding terms and conditions of its employees ' employment also violated that section of the Act .8 C. Additional interference, restraint, and coercion As noted, the above meetings marked the beginning of the series of incidents claimed by the General Counsel to have been coercive within the meaning of Sec- tion 8(a)(1) of the Act. About these matters the testimony was as follows: John Pentacost testified that Foreman Fred Mynatt spoke to him in the cabinet shop some time during October or November about the Union. Mynatt asked him how he "felt about the Union," whether he was "for the Union," and if he "had been to any meetings." He also asked Pentacost if two other employees whom he named "were still on the Union; and whether they had been to meetings." On direct examination, Mynatt was asked if he had asked Pentacost how he felt about the Union, if he had been to any union meetings. He answered, ".. . We talked right smart about unions. But I don't recall asking whether he was for the Union, or not, because I know pretty well he was." I credit Pentacost's testimony. Pentacost further testified that a few days before the election Foreman Leon Mynatt came up to the table where he and Lamar Wilson were working and said "if you don't vote for the Union, you are going to get Thursday (Thanksgiving) and Friday off," and also that the Company would try to have their checks ready on Wednesday. Thanksgiving was a customary holiday but the day after Thanks- giving had never been a holiday. According to Pentacost's further testimony Mynatt came up to him after the election (after the employees had failed to get the day following Thanksgiving off) and told Pentacost that he was sorry that he had given him that information but that he had relied on information he had received from somebody else. In his testimony, Lamar Williams corroborated Pentacost as to what Mynatt had told him about the Thanksgiving holiday prior to the election. The foregoing testimony stands essentially undenied in the record.9 Indeed, the comments attributed to Leon Mynatt were impliedly admitted. Thus, when he was asked if he had apologized to Pentacost after the election concerning the holi- day promise, he testified, "I did not apologize. As an act of courtesy I probably did say I was sorry that they felt they were going to get a holiday. It was strictly an act of courtesy; to reply. Nothing else." I credit Pentacost. John James testified that in September right after the first union meeting his foreman, Charles Aaron, had told James that he wanted to talk to him and had taken him to a trailer for that purpose where they could be alone. There Aaron had asked him why he wanted "to get messed up with the Union" and what "he thought was the reason that the employees wanted the Union." When James answered that employees "wanted better working conditions, things like that and more paid holidays," Aaron said "that he would guarantee . . . one thing, that if the Union came in that the plant would have to shut down because they couldn't work under a union." In his direct examination Aaron did not deny the interrogation of James, but did deny threatening the closure of the plant if the Union came in. Although admit- ting that he did not "remember all the conversation . . . what all was discussed" he did testify that he told James that he thought that the employees would get a raise and that he had tried to help James compute the amount he would get. When questioned about the conversation on cross-examination he testified, "I tell you, I don't remember what conversation; what took place in the trailer. I remem- ber talking with him. I remember him talking about -the raise, and just talking generally." I credit James. David Hunt testified that about the first of November Foreman Charles Aaron took him to the back of the plant and asked him why he wanted the Union. When Hunt said that it was "for better working conditions and more money" Aaron made no reply. 8 The granting of wage increases or other employee benefits for the purpose of discourag- ing employee support of a union is a violation of Section 8(a) (1) of the Act. N.L R.B. v. Exchange Parts Company, 375 U.S. 405; Indiana Metal Products Corporation v. N.L.R.B., 202 F.2d 613, 620. - "When asked if he had told Pentacost that if the Union was voted out the employees would get a raise and an extra holiday on Thanksgiving he answered , "I recall no such statement." 448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD When he was asked on direct examination if he had discussed the Union with Hunt, Aaron replied, "Well, no. They were discussing one day, and Hunt said he didn't want to talk about it; he didn't want to discuss it; so it wasn't discussed with Hunt." Again I must credit the General Counsel's testimony. James Hesson testified that prior to the election he had reluctantly accepted Pannell's invitation to go to Plant Manager Hutchinson's office to talk to Hutch- inson. There in a lengthy conversation about the operation of the plant and working conditions, Hutchinson told Hesson "that the plant couldn't operate under a union" and "that he wouldn't be able to stay in business with a union there." According to Hesson's further testimony, Hutchinson "said that there would be a wage increase and backpay from Labor Day. He said that the papers had already been started . . and . that if the Company won the election that the papers would go on through, and the raise and the backpay would come into effect the following week; and if the Union won the election, that the papers would be torn up, the raise papers." This conversation took place about a week before the election. Walter Henning also testified about being summoned to Hutchinson's office during working hours about a week before the election. Hutchinson asked him if he knew what was going on at the plant and he stated that he did. Hutchinson said that he thought the employees "were being represented by the wrong union" that the Teamsters represented truckdrivers "and that they stood for violence and strikes." He then asked Henning how he felt about the matter. Hutchinson further commented that if the Union came into the plant he would leave, "that he couldn't work under the Union, and also the plant would close down and that would dry up Thomson." Henning also testified that Hutchinson told him at this time that a building in back of the plant which had been torn down while Hen- ning was in the hospital had been torn down because of the talk of the Union at the plant. Henning's testimony stands undenied on the record and is credited. As for the testimony of Hesson, Hutchinson admitted having had a conversation with Hesson in his office in November, but implied that Hesson was there at his own request and volition. Hutchinson testified that Pannell had told him that Hesson has asked permission to talk to President Knox regarding some information he had about pil- ferage in the plant. Hutchinson had asked Pannell to see if Hesson would talk to Hutchinson. Hesson said he would. However, from Hutchinson's further testimony it appeared that in the office Hesson still insisted on seeing Knox about the matter. Thereupon Hutchinson arranged it or said he would arrange it . This, however, did not dispose of Hesson's visit to Hutchinson's office since it further appears that Hesson spent the next 45 minutes with Hutchinson during which time they "had a general discussion of the plant conditions ; and his own personal problems." In his further testimony Hutchinson denied telling Hesson anything about the plant closing. When he was asked if he had said anything about the Company not being able to operate with the Union, he replied, "Well, I told him that the mobile home business was highly competitive , with some 400 or 500 plants making mobile homes; that pricing was highly competitive, that all factories would more or less have to be on an equal basis for our plant to operate competitively ; and that if any inefficiencies or increase costs were experienced , we would have a very difficult time competing in the market." When asked if there was any discussion regarding the plant closing he replied, "I don't believe so. I don't recall any discussion of wages whatsoever" in this conversation . Then when he was asked if there was any dis- cussion as to what happened if the Union was voted in or out, he replied , "No more than the discussion of the competitive situation in the mobile home industry." On cross-examination he admitted talking to several employees in his office during the campaign about the Union. In the discussions he was "sure the Union election was mentioned." And he also testified that "certain areas" of the union campaign "which pertained to the Company's business" were discussed. He did not recall saying "in so many words" that the plant could not stand increased costs that might come about if the Union came in. On the foregoing evidence I find that Hutchinson made the threats to Hesson that Respondent would not be able to stay in business if required to recognize the Union and that a scheduled wage increase would not be forthcoming if the Union won the election. According to Henning's further testimony it was around the same time that he had the conversation with Hutchinson that Foreman Jimmy May had told him that if the Union was voted out the employees would get 2 days off at Thanksgiving and KNOX HOMES CORPORATION 449 would get a pay increase retroactive to Labor Day. Henning commented at this time that the employees had "been promised a hell of a lot and (the Company) never has come through with it.", May replied that his information had come from the "horse's mouth." While this testimony was not specifically denied by May in his testimony, he did deny at one point on direct examination that he had told anyone that if the Union came in there would be no wage increase. However, on cross-examination he testi- fied that "off-hand" he could not remember what he had told Henning about a wage increase. I credit Henning. Robert McTier testified that about a week before the election Foreman Fred Mynatt came up to him and asked him how he felt about the Union and how he was going to vote. McTier said that he had not made up his mind at that time. The following week about 2 days before the election Mynatt approached him again and asked him if he had made up his mind about how he was going to vote. McTier answered that he "would rather not say." At this time Mynatt told McTier that he had talked personally to Respondent's president, Peter Knox, about the 5 percent raise being dated back to Labor Day and that Knox had said that the employees would get their raise "if the Union didn't come in." On the stand when asked if he had questioned McTier as to how he was going to vote, Mynatt answered that he did not "think (he) ever asked anybody how he was going to vote," but admitted that he might have asked McTier if he was for or against the Union "or something like that." He denied telling McTier or any- one else that Peter Knox had said the employees would get a pay raise if the Union was voted out. But he further testified that he told several people (who had asked him) that they would "get a raise, but it was very dependent on when the Union was settled, or which ever way it went, whatever they done about that," but it could not be given at that time. I credit McTier's testimony. George Orrington testified credibly and without denial that 2 or 3 days before the election Foreman Leon Mynatt told him while he was on the job that the Com- pany had decided that it was going to give the employees Thanksgiving and the following day as paid holidays but that they "had to vote the Union out to be there to get it." Lynwood F. Burke testified credibly and without denial that in the latter part of September Foreman Leon Mynatt approached him and Ben Goldman with whom he was working and told them that he knew that they "had attended union meetings and had signed union cards." When Burke asked Mynatt how he knew this Mynatt replied that he "just knew." Mynatt further said that "when things are ironed out, I don't think you will vote for it." Burke then commented, "you don't know how I am going to vote." Burke also testified credibly and without denial that within a few days after he had been transferred to the maintenance department he asked Foreman May how he was doing. May replied that he "was doing okay" except that "he did not like for [Burke] to be talking about the Union." May told him "that he just didn't want (Burke) talking about the Union at all." Edgar Thigpen testified that during the month of October before the election Foreman Fred Mynatt on at least six occasions had said to him, "Well, Thigpen, I know that you are for the Union. Why are you for the Union?" On these occasions Thigpen would answer, "Yes, sir, I am for it 100 percent; I think that it will do the employees a lot of good to have a union represent them." When asked if he had talked to Thigpen about the Union, Mynatt did not deny that he had and, by indirection, admitted it answering, ". . most everybody that passed there had to say something to him about it." He further testified that he and Thigpen did not get along and that he did not remember asking him about the Union. Nor did he recall if Thigpen had told him that he was a 100 percent for the Union, but he added that he knew such was the case. He explained that Thig- pen "was the fellow doing the most talking about the Union." He also testified that Thigpen had stopped him at the drinking fountain on one occasion and had asked him to attend a union meeting, telling him that he "was specially invited." Thigpen's testimony is credited. Thigpen also testified as to a conversation he had in the latter part of the same month with Foreman Leroy Brabham, with whom he used to ride to and from work. One afternoon they pulled up in front of Thigpen's house and parked. During the discussion Brabham told Thigpen that he knew he was for the Union and then went on to say that if the employees voted the Union in *'definitely they 243-084-07-vol. 159-30 450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD would close the gates the next morning, and . in 30 days Thomson will be a ghost town"; and that "every employee in McDuffie county who worked there would lose his job because they would"close up the plant." In his testimony Brabham denied discussing the Union with Thigpen or asking him (or anyone else) about the Union. Nevertheless, he testified that he "sensed" that Thigpen was for the Union and that he also "sensed" the same thing regarding other employees. He explained that employees would slip off into a group and start talking. When he approached "they would flush like a covey of birds." On cross-examination he denied hearing what the employees talked about on these occasions or hearing the employees talking about the Union. A sworn statement he gave about the matter prior to the hearing contradicted this latter testimony. Jackie Thomas Mauck testified that Foreman Leon Mynatt had talked to him on several occasions about the Union during the months of November and October. During these conversations, according to Mauck, Mynatt had asked him how he felt about the Union. On one occasion he told Mynatt that he "didn't figure that it was particularly any of his business" and on several other occasions that he "definitely" supported the Union. He also told Mynatt that he thought the Union "was a good deal" and added that he had "worked for unions and had never had no trouble." Mauck further testified that about a week before the election Leon Mynatt called him from his work station to the back end of the floor and told him that he knew that Mauck was for the Union. Mynatt then said that "if the Union was voted in that the plant would shut down; and if it wasn't vote in, that (the employees) would get a raise in pay from Labor Day ... and . . . would also get a paid vacation Thanksgiving and the day after." According to Mauck's further testimony about a week later a few days before the election Mynatt talked to him again about the Union. At this time he repeated what he had said on the previous occasion about the raise- in pay and the Thanksgiving holiday and about the plant shutting down if the Union was voted in, adding that the plant "couldn't operate under union conditions." According to Mauck Mynatt at this time also told him that he knew that Mauck was for the Union and stated further that he "was going to fire" Mauck. Mauck told him "to go ahead and fire (him)." 10 In his testimony Mynatt admitted hearing a rumor prior to the election regarding a wage increase. He denied interrogating Mauck about the Union and denied telling him that the plant would close if the Union came in. He also denied telling Mauck that if the Union was voted out the boys would get a raise and an additional Thanksgiving holiday and further denied dis- cussing the Union with Mauck at all. On cross-examination Mynatt admitted "trying to find out some of (the employees') beefs, why they wanted a Union." He also testified that there had been a "lot of talk going around" regarding the Thanksgiving holiday; that employees had asked him about it that he had replied that he "had heard it, but couldn't say it was so." In view of the record as a whole and Mynatt's admission that he had tried to find out from some of the employees why they wanted a union I am inclined to credit Mauck's testimony regarding the interrogation, threats, and promises he attributed to Mynatt in connection' with the Union. However, I do not credit that part of Mauck's testimony that attributes to Mynatt a last minute comment that he knew Mauck was for the Union and that presumably for that reason he "was going to fire" Mauck. By the time that Mynatt was alleged to have made this statement Mauck's support of the Union certainly was no news to Mynatt. Furthermore a threat by Mynatt to discharge Mauck would have been inconsistent with other remarks Mynatt had made at this same time to Mauck in connection with the union campaign. It will be recalled tht Mynatt had reiterated to Mauck that if the Union was voted out the employees would in effect be rewarded by an extra paid holiday and a wage increase. Having raised the possibility by such a promise that Mauck would be swayed to vote against the Union, it seems unlikely that Mynatt would have simultaneously threatened Mauck with discharge-a threat that con- ceivably could have had the effect of insuring Mauck's vote for the Union as a matter of self-protection." 10 On cross-examination Mauck testified that Mynatt had told him on several occasions that he would discharge Mauck if he knew Mauck was "for the Union." 11 It will be recalled that in his direct testimony Mauck,did not allege that Mynatt's threat of discharge had been conditioned on Mynatt's learning where Manck's support lay. At the time the threat was alleged to have been made Mauck 's support of the Union obviously was known to Mynatt. KNOX HOMES CORPORATION 451 It is clear from the foregoing findings that Respondent, as alleged in the com- plaint, violated Section 8 (a) (1) of the Act in the following additional respects and I so find: 1. Interrogation of its employees about their union activities and sympathies.12 2. Threats that Respondent could not operate with a union and that it would cease operations if the Union came in.13 3. Promises of a wage increase and an additional paid holiday if the employees rejected the Union.14 D. Discrimination 1. Burke Lynwood F. Burke testified on direct examination as follows: He started working for Respondent in March 1962 as a carpenter. Leon Mynatt was his foreman. The last day he worked for Respondent was on February 18, 1965. The following day which was Friday he sent word to Mynatt by a fellow employee,15 Claude Keller, Sr., that he was having trouble with his father who had been arrested and put in the county jail at Augusta, Georgia. He asked Keller to request on his behalf "permission to be off a day or two, or up to a week." When he had been off for 4 days he learned from another employee that he had been terminated. He then asked Keller to ascertain if such was the fact and Keller verified it. Mynatt's comment to Burke and Goldman that Mynatt knew that they had signed union cards, and Foreman May's indication to Burke of displeasure in connection with his talking about the Union have been noted together with Burke's replies thereto. Burke's only other union activity, according to his direct testimony, involved his attending union meetings, signing a union card and handing it in at a union meeting. On cross-examination of Burke the following details were brought to light: His father lived in Augusta and apparently his illness involved drunkenness. Burke had gone to Augusta Friday morning to help his stepmother "try to straighten it out." When he got to Augusta his father had already been released on bail. Burke stayed in Augusta most of the day where he conferred with the sheriff and the doc- tor about his father but went back to Thomson that evening. He returned to Augusta the following morning. There he again talked to the sheriff and doctors trying to find out how he could get his father to Milledgeville. 16 Burke went back to Thomson Saturday night and returned to Augusta Monday morning.17 He did not stay in Augusta all day however. He just told his stepmother that if she needed him she could call him "at the same place she had called . . . the Thursday night previously" (this was at a Phillips 66 service station in Thomson)-that he would be there. Burke thereupon returned to Thompson and went to the service station where he spent the balance of the week. During this time he made no attempt to call Respondent. According to his testimony, he was under the impression that he had permission to be off for a week and felt that "where (he) was at was none of (Respondent's) business." He denied that he was working at the service station, claiming that he remained there waiting for his stepmother to call him if she needed him. This he did because he had no telephone of his own. When asked a second time if he had been working at the service station he again denied that he had. When pressed further on the matter he answered, "not that I know of, not that I recall." Then he again denied working there but qualified the denial this time with the comment that he "might have pumped some gas" but 19 The coercive and illegal effect of such interrogation occurring as it did along with other illegal conduct is clear . Blue Flash Empress, Inc., 109 NLRB 591. 1a Johnnie's Poultry Co., 146 NLRB 770 : D'Armigene, Inc., 148 NLRB 2 ; N.L.R.B. v. Plant City Steel Corp., 331 F.2d 511 (C A. 5). 14 Standard Coil Products, Inc., 99 NLRB 899; N.L.R .B. v. Bibb Manufacturing Com- pany, 188 F.2d 825. 15 The company policy regarding absences was to call in or send word. About a year previous to this time Burke had been off for a week having had his wife call in and he had returned to work without any criticism. 16 Presumably into some kind of an institution. 17 According to Burke, he told Keller again on Monday to tell Mynatt that he "still had to go to Augusta to see about the situation." 452 DECISIONS OF ,NATIONAL LABOR RELATIONS BOARD added that he "wasn't on the payroll." 18 A little later he also admitted that he "might have given somebody a hand" at the service station with some mechanical work on automobiles. It also appeared from Burke 's cross-examination that the occasion of his having been off a week the year before involved his being in a hospital for surgery on which occasion his wife had notified Respondent of his illness. Burke further denied on cross-examination at one point that he had been going around the plant talking about the Union to other employees and denied soliciting votes for or against the Union. According to Burke, all he did was express his opinion which was that he thought the Union "would help the working men." But he was unable to say to whom he had voiced such opinions. About this matter Keller testified that he had been asked by Burke to tell Mynatt "that his daddy was ill; that he was going to be off a day or maybe 2 days or maybe a week." This he did and Mynatt nodded his head and said "how can he stand to lose so much time?" Keller told Burke what Mynatt had said. The next thing Keller had to do with Burke about the matter was when he called to pick Burke up to take him to work the following Tuesday. Burke was not there. The following Thursday Burke asked Keller to pick up his check and ascertain from Mynatt "if he still had a job or not." When Keller asked Mynatt about the matter Mynatt told him he had heard that Burke was working at a gas station and as a result was ter- minated and "didn't have a job." 10 On the foregoing testimony alone I would find that while the General Counsel has raised a suspicion that Burke was discharged because of his union activity and support he has failed to establish by a necessary preponderance of the evidence that allegation of the complaint. There is no similarity between Burke's previous excused absence when he was hospitalized and the one at issue which would permit the inference that an antiunion motive was present in the latter incident. Nor is there any more grounds for finding such a motive in comparing Thigpen's unex- plained absence of a week with Burke's. It is one thing just to be absent without any pretenses whatsoever and another to be absent under false pretenses , it seems to me. Burke's support of the Union certainly did not stamp him as a crusader in that respect. This and the amount of time which had elapsed between Burke's discharge and the denouncement of the organizing campaign Both tend to detract from the possible inference that the Union played a pact in his discharge. But more impor- tant in this respect was Burke's own testimony that he had spent a week doing noth- ing but wait at a gas station on the possibility that he might get a telephone call. Even if this was the fact which I do not believe, and even if Respondent had given Burke permission to be off the entire week or "until he got his daddy squared away" 20 it is obvious that whatever permission Burke had from Respondent was solely for the purpose of taking care of his father's problem. Thus, I disagree with Burke's contention that it was no business of Respondent how he spent his time off and find that it was Respondent's business in this instance . I also find that Respond- ent was justified in the context of the facts here in believing that rather than doing what he had asked time off to do Burke was working at the service station. I further find that Respondent discharged Burke for this reason and that the discharge was not discriminatory within the meaning of Section 8(a)(3) of the Act. Accord- ingly, I shall recommend dismissal of this allegation of the complaint. 2. Thigpen Edgar Thigpen had worked for Respondent from July 1963, to December 4, 1964. On November 24, 1964, he had had a "run in" with his Foreman Leroy Brabham. According to Thigpen's direct testimony, on the morning of that day he took some doors into a trailer and as he came out he "was saying a couple of words" to fellow employees Jack Wilkinson 21 when Brabham motioned to him to le On March 1, he did go on the service station payroll. Keller specifically denied that he had delivered a second message from Burke to Mynatt about Burke 's further absence. This belies Burke's testimony that he asked Keller to tell Mynatt on Monday that he would have to take additional time off. 20 Mynatt testified that that was the request Keller had made on Burke's behalf. He also testified that he made no investigation to see if Burke had gotten his father "squared away." n Wilkinson had been the union observer in the election that had taken place a few days earlier. KNOX HOMES CORPORATION 453 come back to Thigpen 's "regular working place." There Brabham told him "I thought you were supposed to be (doing ) nothing but making up doors." When Thigpen replied , "well, I am doing my job, I am taking the doors to the trailer." Brabham said , "well, I told you to stay here at this table and that is what I mean for you to do." He also told Thigpen, "I don't want you to go back in that trailer with Mr. Jack Wilkinson at all." At this point Thigpen asked Brabham why he was "riding" him. Brabham denied that anyone was riding Thigpen and the latter claimed that Brabham had been doing so regarding everything Thigpen had done for the past 3 or 4 weeks. Apparently Brabham made some retort to this and Thigpen said "Let's go to the office and see Mr. Jim Hutchinson and get this thing straightened out." Thigpen was very angry as he started walking away from the table. Brabham, angry too, made a step toward him and Thigpen called Brabham a son-of-a-bitch . At this point Brabham apparently accelerated his movement toward Thigpen. - Not wanting Brabham to get hold of him, Thigpen pulled out his hammer and held it in his hand and Brabham 'stopped . As to what happened then Thigpen testified as follows: And then I turned around and went on around to Mr. Jim Hutchenson's office and I went in there and asked for the secretary where his office was because I didn't know ; and she showed me and I went in there and told him who I was; and told Mr. Hutchenson that I knew that I was fired because I had 'a run-in with a foreman but that I just wanted to let him know what had happened before I got fired . And Mr. Hutchenson, he said, "Let's sit down and discuss this thing." And so I sat down in the chair in his office and we discussed what happened between my foreman and myself; and then after he talked to me for a few minutes ; he sat there and smoked a, cigarette ; he went outside the office; and I guess he was gone between 5 and 10 minutes , and then him and my foreman, Leroy Brabham ; the superintendent Elbert , Adams, they all three came back into the room together ; and then he turned around and he asked Leroy what happened. * k 1' & And Mr Brabham told him that J took-it the wrong way, that I took it the wrong way, that I took it that he was riding me and he wasn't riding me; and I stated again , I said, "I took it that you was riding me; and if I took it the wrong way, I am sorry, I apologise:" And then, Mr. Jim, he turned around , and he was talking to me, and he asked me why I was for the Union and why did I think that it would be good for the plant out there. I told Mr Hutchenson that I had worked under the Union before and had always got along and I thought that it would help the employees out there. And then there was a discussion , a general discussion, and he'told Mr. Adams, and Leroy, Mr. Brabham, to go on back out in the plant and try to get, try to straighten it out and work together ; and we left his office , and just as I got outside the office, Mr. Adams and Mr. Brabham; with Mr. Adams and Mr. Brabham, Mr. Adams told me, "there is one thing certain "; he said, "I had better not catch you back in the trailer with Mr. Jack Wilkinson ," another employee ; and I told him, I said, "I will not go back in the trailer with Mr. Wilkinson." At that time, Mr. Adams turned around and walked away and previous to that, Mr. Jim Hutchenson told me to take a break because I was in there dur- ing the break, 9:30; and Mr. Leroy Brabham and myself walked on down to the break room and got a coca-cola and smoked ; and we discussed the inci- dent, what had happened ; and I told him, I said, "I guess after now I will lose every privilege, everything that I had ever had that the other employees has got." And he said, "Edgar, as far as I'm concerned , the thing is over with , you lost your temper ; I lost mine"; And he said, "Let's let bygones be bygones"; and we shook hands on it. And from that day on until I got fired, me and Mr. Brabham never did have any more trouble at all. About his discharge on December 4, 1964, Thigpen testified as follows: About 9 a.m. he ran out of his regular work and so informed Foreman Brabham. Brab- ham told him to go back and help Foreman Leon Mynatt until he was needed on his own work. This he did . Around 10 o'clock another employee, Cleon Hinton, 454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD came up and asked him for a cigarette. He gave Hinton the cigarette and the lat- ter walked out the side entrance where Thigpen saw him light the cigarette and smoke it. Ten or fifteen minutes later when Thigpen "had sort of caught up" with what he was doing he also went ouside and lit a cigarette. A few seconds later another employee, Julian Newsome, came up and also lit a cigarette. The two employees stood there side by side leaning against a work bench. It was raining very hard and they were talking about the weather. In no more than a couple of minutes Mynatt came around to about 30 feet from where the two employees were standing, called Thigpen's name and motioned for him. When he called again, Thigpen went over to Mynatt who told him "come on and go with me." As they started walking through the plant, Mynatt said, "don't you know that it is against the rules to smoke?" Thigpen said, "Well, Julian Newsome was out there smoking, what about that?" Mynatt mumbled something that Thigpen "just couldn't understand." When they got to the main entrance of the plant they came to Plant Superintendent Adams and Foreman Brabham. There Mynatt told Adams, "I caught Thigpen smoking and as far as I am concerned he is finished." At this point Adams turned around, looked at Thigpen and said "I am sorry." He then reached over and punched out Thigpen's card. Thigpen said, "Julian was back there smoking also." Adams said, "I don't know nothing about that." According to Thigpen's further testimony the plant rule was that there was to be "no smoking inside the plant whatsoever." However the employees were per- mitted to smoke during their break periods which occurred at 9:30 in the morning and 2:30 in the afternoon. This they could do but only outside the plant. Thig- pen testified that it was not unusual for people to smoke at other times than dur- ing the break. He testified that he had done so several times and named several other people including Superintendent Adams and Foremen Brabham and Aaron. He further testified that he had never heard of anyone being reprimanded or dis- charged for doing so. That afternoon Thigpen picked up his check at the plant's guard shack. With his check was the following communication dated November 30, 1964, directed to him and signed by Personnel Director A. B. Morris, Jr., entitled "Written Repri- mand For Insubordination": 1-It was reported by your Foreman, Mr. Leroy Brabham that you were insubordinate toward him on Tuesday, November 24, 1965. 2-Insubordination is punishable by discharge according to company policy. 3-You have been verbally warned and this is a written warning that you are on a probationary period as of the 24th of November, 1965. Any viola- tion of any company rule or policy will make you subject to immediate discharge. According to Thigpen's further testimony on the occasion of his meeting with Hutchinson, Adams, and Brabham about the run-in he had had with Brabham there was "not one word" mentioned to him by any of the three that he was "of- ficially reprimanded" because of it. He further testified that at the time he got his check on December 4 was the first time he had ever seen the reprimand. A week after his discharge Thigpen returned to the plant to pick up his last check.22 This time Thigpen received the following communication dated Decem- ber 8, 1964, from the personnel director entitled "Discharge For Violation of Com- pany Policy": 1. This is to advise you that as of December 4, 1964, you are discharged from the Knox Homes Corporation for violation of company policy. 2. You were advised by a written reprimand from the personnel director dated 30 November 1964 that any violation of any company policy or rule would subject you to immediate discharge. 3. It was reported by Mr. Leon Mynatt, your temporary foreman, that you left your work station without authorization on December 4, 1964 and was caught smoking in a "No Smoking" area. In his 17 months of employment by Respondent Thigpen had never before received a written reprimand or notice similar to the two he received in connection with his discharge. 'a It was the policy to hold back a week's pay and the check he got at the time of his discharge was his regular weekly check it having barn payday on that day. KNOX HOMES CORPORATION 455 According to Thigpen's further undenied and credited testimony from the 9th of September until the 18th of September 1964, he had been off from work and had made no attempt to get in touch with Respondent. At about the end of this period Foreman Brabham came to his home and asked what had happened to him. When Thigpen replied that nothing had happened to him Brabham said, "Well, when are you coming back to work?" Thigpen asked, "Well, I don't have a job, do I?" Brabham replied, "Yes, you still have got a job." Thigpen replied, "Well, I didn't think I did. I figured I was fired." Brabham told him that he was not fired and that he should come back to work in the morning. Thigpen said he would return to work on the following Monday and added that he was under the impression that he had been fired because of his failure to notify Respondent about his absence. General Manager Hutchinson confirmed Thigpen's testimony in general about the mechanics of what took place in connection with the difficulty between Brabham and Thigpen i.e., Thigpen's coming into the office alone and the subsequent discus- sion with both Brabham and Adams being present. According to Hutchinson's tes- timony it was he who made the decision not to fire Thigpen. He told Thigpen that he could go back to work if he would agree to "do his work properly" but that he would be on probation, "would have to observe all the rules, and that the next infraction would result in his termination." According to Hutchinson Thigpen understood and agreed to the conditions. In addition to the verbal warning thus administered to Thigpen Hutchinson also instructed the personnel office to issue a written reprimand (which was done) and placed in Thigpen's record with a copy being "passed to him." According to Hutchinson written reprimands are included with employees' paychecks. In his fur- ther testimony Hutchinson denied asking Thigpen about the Union. When asked if he had discussed the subject of the Union or any matters pertaining thereto at this time, he answered, "Not that I recall at all." Brabham testified credibly and without contradiction.that Thigpen apparently had hurt himself by moving doors on an unspecified date before November 24 and had been sent for X-rays. The following day he came back to work and Brabham told him, "Ed, you are in no shape to work." Thigpen protested that he needed the work at which point Superintendent Adams interceded saying, "Well, the man needs work," and asked if he could use his right hand to put on hinges. Thigpen said that he could, so Adams said, "Alright, let him put on hinges; sit at the table and put on hinges." Brabham testified further as follows: So we agreed to it. He was to work at the table that I assigned to him. At a round table. And the other boy that was helping him was to toat the doors and hang the doors, and then when I would look around over to the table, Ed would be gone, and I would look him up; warn him; tell him he was suppose to stay at the table and work, and the day we had the little run in, I was mak- ing my rounds at the plant, and I walked up to the trailer and looked in the window, and there he stood in the trailer. He was talking-I don't know who to, or to how many men. And I stood there approximately 3 to 4 minutes, just watching him. Then I walked up to the window and I said, "Edgar, come here a minute." I said, "Come on down here to the table." We turned, went on down to the table, and I said, "Edgar," I says, "You have been warned about leaving your station where you are suppose to be working." I says, "How much does a man have to warn a man before he realizes he is suppose to stay at a place?" And he began to talk loud; started waving his hammer. Said everybody in the plant was trying to run over him.. And I told him I wasn't trying to run over him. I was trying to work him. He said, "Well, the thing for us to do is to go down to the office and see Mr. Hutchinson," and I said, "That's exactly the thing to do. Let's go down to the office and see Mr. Hutchinson. If that's where you want to go, let's go." He turned and walked away from the table. I turned and walked behind him. And he was approximately 30 or 40 feet from me when he swore at me. In the office according to Brabham's further testimony, Hutchinson had asked him if he would agree to let Thigpen go back to work. Brabham said that he would "if that's what they wanted." He also testified. that Hutchinson had told Thigpen, "now there can be no more instances. This is the last one." According to Brabham's further testimony, as he, Thigpen, and Adams left the office, Adams told Thigpen, "This is the last warning." Adams did not testify and there was no showing that he was unavailable. 456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD About the December 4 matter Leon Mynatt testified as follows: Thigpen had been assigned to him on December 4 and had worked about 2 hours. He had been short-handed and on getting Thigpen took him to his leadman and told him to show Thigpen what to do and to "keep him busy." Thereafter, while looking for another one of his leadmen Mynatt found Thigpen outside on the platform smoking. He motioned for Thigpen to- come to him and when Thigpen did not respond, he called him by name. When Thigpen got to him, he asked Thigpen, "Don't you know it's against company rules to be away from your job and out here smoking?" At this point Mynatt took Thigpen to the latter's foreman, Brabham, and told him that Thigpen had been away from his job outsidetsmoking and that Mynatt, "was through with him. He had it . . According to Brabham's testimony he and Superintendent Adams were together when Mynatt came -up to them with Thigpen and said, "Leroy I cannot use this man. I cannot keep,him on the job." Mynatt started to walk away and Brabham asked what had happened. Mynatt informed him that Thigpen had been "on the outside, smoking." At this point Adams spoke up saying, "Edgar, you know you have been warned about leaving your work. This is it," Brabham said, "Well, I reckon as far as I am concerned, it's it too." Brabham also testified that he heard Thigpen say something about Julian Newsome and that he told Thigpen "it didn't matter . about Julian Newsome" because Newsome did not work for him and he knew that Newsome's duties took him outside the plant two or three times a day. As in the case of Burke, on the basis of this record I believe that the General Counsel has succeeded only in raising a suspicion that Thigpen's discharge was motivated by his union activity.23 The major premise of this conclusion involves Thigpen's retention on November 24, when he had the difficulty with Foreman Brabham. In this connection I am convinced and find first, that Brabham's criti- cism of Thigpen's conduct on this occasion was a valid exercise of his supervisory authority; and second, that Thigpen's reaction to Brabham's criticism was unjusti- fied. In any event, Hutchinson's action in keeping Thigpen in the face of his unwarranted conduct toward his supervisor can hardly be said to show a purpose on the part of Respondent to discriminate against Thigpen because of his union support.24 If Respondent had had such a purpose a more ideal or unassailable pre- text than was presented by Thigpen on November 24, could hardly be imagined. - There is, of course, the possibility that even though Hutchinson had no anti- union motivation in his handling of Thigpen, the supervisors under Hutchinson did have such motivation. If they did, the inference would be justified that Thigpen was eliminated because of his union activity at the earliest opportunity for independ- ent action on their part 25 In this connection, the 8 (a) (1) conduct found herein to have been engaged in by the foremen and Superintendent Adams cannot be over- looked nor can the alleged prohibition by both Brabham and Adams against Thig- pen's talking "in that trailer" to Wilkinson, an overt union supporter, be over- looked Nevertheless, even if these comments were made as testified by Thigpen there is some question in my mind whether this would supply any significant sup- port to the General Counsel's contentions. Certainly, the order against going into and talking in the trailer in the context that it was given was -a legitimate order 26 and it is quite possible that Wilkinson's name (if it was used) 27 may have been used in connection therewith only because he happened to be the one in the trailer that was involved in Thigpen's transgression. Furthermore, Adams' intercession shortly before on behalf of Thigpen to give him work when he was partially dis- 23 Thigpen's union support and Respondent 's awareness of it has been noted in the sec- tion entitled "Additional interference, restraint, and coercion " It further appears that Thigpen signed a union card on September 8, and attended all of the union meetings. 24 Here, even if I were to credit Thigpen's testimony that Hutchinson had questioned him about the Union on this occasion (which I do not ), I certainly could draw no inference adverse to Respondent on that basis because Thigpen was not discharged or otherwise dis- ciplined, but was allowed to go back to work 25 Respondent's foremen had authority to discharge employees without prior approval from their superiors. 26 Regardless what kind of warning Adams gave Thigpen on this occasion , I am convinced and find that Hutchinson gave Thigpen the kind of blanket last -chance warning that both Brabham and Hutchinson described in their testimony. zr As pointed out, Thigpen's testimony regarding Adams' admonition in this respect stands undenled in the record .KNOX HOMES CORPORATION 457 abled, hardly shows 'a. disposition on Adams', part to. discriminate against Thigpen or to engage ,in any retaliation against him because of his union support. As I view the matter, it has not been shown by the necessary preponderance of the evidence that Thigpen's discharge was connected with his union activity. I have found that Thigpen was placed on strict probation on the 24th of November. In view of the kind of transgression that gave raise to this probation, it would hardly be surprising if Thigpen's foremen had at this point and for this reason alone taken it upon themselves to watch.for and act with finality on any future transgressions by Thigpen. In this connection I reject the General Counsel's contention that the fact that Thigpen did not get a written reprimand for the November 24 incident with Brab- ham until December 4 "smacks of contrivance" and "was an afterthought of Respondent." I note that there was only one working day between the 24th and the following payday because of the intervening Thanksgiving holiday. It is con- ceivable that the administrative machinery simply did not work any faster. More- over, if contrivance had been the purpose of Respondent it would seem that Respondent would have dated the reprimand on the 24th or near the event rather than the 30th which date the document bore. I also reject the contention that the failure to reprimand or penalize Newsome who was outside smoking with Thigpen shows discriminatory motive. In the first place it appears from Newsome's own testimony that he was outside the plant on this occasion in the line of duty.28 Whether or not the place where he and Thig- pen were smoking was off limits is not clear.29 In any event, even if Newsome had transgressed the rules, there is no real showing of disparity of treatment between the two employees since there is no showing that Newsome was in the same vulner- able position as Thigpen who had been warned of his final and strict accountability. 3. Mauck Jackie Thomas Mauck, testified at the call of the General Counsel as follows: He had worked off and on for Respondent since 1946, the last full period being from 1962 to December 3, 1964. During his employment relationship with Respondent he had "quit quite a few times, and been laid off" but so far as the record shows had never before been discharged by Respondent. On December 3, 1964, he was discharged by Foreman Leon Mynatt. On that day Mauck's car had broken down and he had sent word by a fellow employee Judson McGahee that he would be late. He arrived at the plant about 10 a.m. and found that his card was gone when he went to punch in. Seeking out Mynatt about it he was told that he was late and that as far as Mynatt was concerned "that was it." Mauck said, "Well, Leon, you know we all have troubles. I sent you word." Mynatt said, "I admit that. Judson McGahee came and told me that you were coming in but that you would be late" but added, "as far as that, is concerned, `that's it ' " 30 Thereupon, Mauck turned and started out of the plant. On his way one of the employees asked him what the trouble was and he replied, "Leon fired me." When he picked up his paycheck the next week he found in the envelope the following communication dated' December 7, 1964, addressed to him from Personnel Director Morris entitled "Discharge for Violation of Company Policy": 1. It has been reported by your Superintendent and your Foreman that you have been absent from work without authorization on the following dates: Thursday---------------------------------- April 23, 1964 Friday------------------------------------ April 24, 1964 Friday afternoon---------------------------- May 2, 1964 Friday -------------------------------------- October 23, 1964 Thursday afternoon-------------------.------ November 1, 1964 Friday afternoon---------------------------- November 20, 1964 You were verbally warned on each occasion by your Foreman. 28 He testified credibly that as was his practice he had gone "out there to get a tow motor to bring in a roll of metal." 20 Both he and Thigpen testified that smoking was permitted outside the plant. It also appears, however, that the general rule (apparently liberally administered ) was that such outside smoking was confined to two 15-minute breaks a day. 30 When asked again what Mynatt had said on this occasion Mauck testified that he had said, "As far as I am concerned, that's it. You are just one of the boys." 458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. It has been reported by your Foreman that you came to work 3'/z hours late without authorization on December 3, 1964, and at approximately 10:30 a.m. you were laid off for the remainder of December 3, 1964, and told to report back to work at 7 a.m. Friday, December 4, 1964. 3. It has also been reported by your Superintendent and three of your fel- low employees that after you were laid off at about 10:30 -a.m., you were observed and heard disturbing other employees who were at their assigned job telling them that you had been fired because of your feelings towards the Union. You were observed in the plant until about noon on December 3, 1964. 4. It has been reported by fellow employees that they have observed and heard you degrading your Foreman and Superintendent by calling them pro- fane names behind their backs. 5. Chronic unauthorized absenteeism is subject to immediate discharge in accordance with company policy. Hindering other employees from their jobs and degrading your Supervisor to other employees is also against company pol- icy and subjects a man to discharge. 6. You are hereby notified that as of December 4, 1964, your employment with Knox Homes Corporation, Mobile Homes Division, is terminated for violation of company policy. Although denying that he had been off work on November 20 (the day of the election)31 he admitted that he had been absent from time to time occasioned by illness and the need for treatment of stomach ulcers. "As -a general rule" he would notify Mynatt the day before of his impending absence and if he did not do so at that time he would "send word back in the next morning" that he was going to be out a day or two. He denied on the stand ever having been told by any fore- man that he had been absent without authorization. He also denied disturbing any employee at work on his way out of the plant on December 3 admitting however that he had "stopped to talk to one employee that morning." He also denied that he "ever cussed" any of his foremen and added, "and that is not all. I am not going to." When asked if he had ever been spoken to by Personnel Manager Mor- ris about absenteeism he answered, "No, sir," and then added, "not to my way of thinking." While he had seen Morris passing through the plant a time or two he definitely "would say" that Morris had never talked to him. Mauck's experience regarding the Company's policy in connection with absenteeism was that if one knew he was going to be absent while still at work he would so inform his foreman but that if the requirement for an absence occurred after leaving the plant the employees notified the foreman either by telephoning or by sending word by a fel- low employee. This was the practice that M'auck always had followed. On cross-examination Mauck testified that on the morning of December 3 he went to a garage and told them "to go get (his) car." Then he got a ride to the plant with a neighbor. When he was asked by counsel if Mynatt had not told him "to take off and come back" on the following day he replied, "he eventually did, but the first thing he told me, he said `as far as I am concerned, that's it'; and then, oh, I guess 2 or 3 minutes before I had time to leave, he told me to come back Friday morning to talk it over." He further testified on cross-examination that he stayed in the plant after this approximately 10 minutes. When asked if he had told the people in the plant at this time that he had been discharged, he replied that he had told one employee who had asked what happened that, "as far as I know I am fired." He also testi- fied that one or two more asked him on the way down to the next clock and he had replied, "yeah, I guess that was it" and kept walking. At first he denied telling the employees that he had been discharged because he wanted the Union then testified, "not to my recollection, I sure didn't." Then when asked if he could have made such a statement, he replied, "I could possibly but I had better say no," adding, "of course, they had enough sense to know that I was for the Union; they all knew that I was for it." He also testified on cross-examination that he did not recollect being sent home for acting intoxicated or being taken out to the guard house and going to sleep but 31 He testified that he voted in the election which I am sure he did . But there is no showing when he voted and he was chargeil with being absent only in the afternoon of the election day. KNOX HOMES CORPORATION 459 would not deny it. He admitted having been warned about being in the "bathroom on so many occasions for such a long period of time" and further testified that he would not deny that Respondent had caught him "at certain times for drinking ...." Leon Mynatt testified that Mauck had worked for him "off and on" for about 5 years. Mynatt's direct testimony about Mauck occurs in the record in part as follows: Mauck was gold-bricking. If you didn't watch him real close he would be in the bathroom or other places. I would have to constantly look for him and get him; warn him. On other occasions our supervisor called him away from the job and had warned him and told him to get back to his job, and he went back to the floor crew and spread the word that his superintendent had cussed him out. - Both I and the superintendent confronted him with this, and he denied it. He was given a warning then. On another occasion he was actually intoxicated. He claimed it was some medicine. I sent him home. Instead of going home, he went out to the guard shack and fell asleep. When I left at the close of the day the guard called me over; he said, "I can't get Mauck awake," and I went over there and shook him; slapped his face and got him awake. I gave him some days off, then. He came in late one morning with an excuse that he wife's car had broken down. Well, I had had so many excuses from Mauck that I didn't believe any of them, and I told him it was a flimsy excuse. For him to take the day off. That I would look at his record and give him our reaction the following day. And on the next day-before the next day had gotten here, that same day, he spread the word-through the plant that I had fired him because he was participating in union activity. That he was going to take it before the Labor Board. When he came in the next day, this added bit that he did was a little bit too much, and I -terminated him. Mynatt denied that Mauck's union activity had anything to do with his discharge. On cross-examination Mynatt testified that he did not give Mauck a discharge or termination slip of any kind and that he did not make a report of the matter to the personnel department. He did however, make a report to Superintendent Adams and told Adams that one of the reasons he was discharging Mauck was that he "was spreading the word" that Mynatt was going to discharge him for his union activity. According to his further testimony Mynatt had warned Mauck more than three times about his being late or absent. Furthermore, according to Mynatt, Mauck's record of absenteeism, tardiness and of "being the type of individual that (Respondent) couldn't depend on" covered the entire period of Mynatt's supervi- sion of Mauck. James H. Davis, a leadman under whose jurisdiction Mauck worked testified that he had had "several" conversations with Mauck about the latter's absences and tardiness. Asked whether any of these conversations had occurred "right before his discharge" Davis testified that they were "a good bit before his discharge." He further testified that these conversations were-so numerous that he could not "off hand" recall any that he could "specifically" testify about. Nevertheless, he further testified that "prior to the election" he had had "occasion to talk to Mauck about being off his job, and telling him he would be fired if didn't stay on his job." Mauck answered that "he didn't give a damn if they did fire him." Davis also tes- tified that on another occasion (unspecified as to date) Mauck had asked to get off work "because his glasses were broke." 32 On cross-examination Davis testified -"Cleon Hinton, a fellow employee, testified that on an occasion, also unspecified as to date, in the restroom Mauck had deliberately broken the lens of his glasses with a hammer saying that he had "to get out to go to Augusta" and that Mynatt would not let him off In his cross-examination Mauck denied breaking his glasses or telling an employee that he did so to get off work because there was a woman who needed his "attention" saying, "No sir, I did not. Now he told me that himself . . . . He told me and he told these other employees . . . but I did not. I don't make that kind of money to take a hammer and break a pair of $50 glasses." Whatever the fact was regarding this weird tale, I am of the opinion Respondent had heard it and believed it to be true. 460 DECISIONS Or NATIONAL. LABOR RELATIONS BOARD that Mauck was not the only one'herhad told. would be discharged' if he did not stay on his job but that he had made similar remarks. to others-to "anybody caught loafing, they would be fired. Not him (Mauck) .especially:" Except for the foregoing general and indefinite testimony of Mynatt and of Lead- man Davis, no evidence was offered by Respondent to- detail, support, or otherwise corroborate the broad accusations leveled at Mauck,in his discharge notice. How- ever, this evidence considered in the light of Mauck's own testimony convinces me that Mauck was hardly a model employee and that at a minimum, as testified by Mynatt, he was not adverse to engaging in a little "gold-bricking" by way of fre- quent and long absences in the restroom or otherwise . In addition, I have no rea- son to doubt that he had incurred the absences he was accused of and was probably reprimanded for them. As for Respondent's charges regarding Mauck's "degrading" his supervisors by calling them "profane names," while this may have occurred, the lack of any specificity in this evidence including the time it was supposed to have occurred leaves it with little probative value. In the light of this background I turn now to the immediate events of Mauck's discharge. The evidence is clear that Mauck was not terminated by Mynatt on December 3 but (as admitted by Mauck) had been sent home for the remainder of the day during which time (as testified by Mynatt) his record was to be reviewed by Respondent for the purpose of determining the Company's reaction thereto. I also believe and find (as testified by Mynatt) that prior to Mauck's return the fol- lowing day, Mynatt received reports that Mauck had made a statement or state- ments in the plant that he had been discharged because of his union activity and that he was going to take the matter to the Board.33 Whatever conjecture Mauck may have had on the basis of Mynatt's having told him that "that was it," (which I believe Mynatt did) did not afford him the right (after being told also that he was to return the following day) to tell his fellow employees that he had been discharged 34 and to link this statement with his union activity. Obviously, this was grounds for disciplinary action and the question here is whether Mauck's past record with "this added bit" (as testified by Mynatt) was the cause for his discharge or whether Mauck's union activity played a part in his termination. While the answer to this question is not free from doubt, I feel that I must find, as in the cases of Burke and Thigpen, that the General Counsel has succeeded only in raising a strong suspicion that this discharge was based on union activity and that he has failed to establish by the necessary preponderance of the evidence that Mauck's termination was discriminatory within the meaning of the Act. In reach- ing this conclusion I am fully aware that Respondent's failure to offer specific and detailed evidence to support its charges against Mauck tends to detract from its defense in this respect. I am also aware that a further weakening of Respondent's position results from its claim that it suffered Mauck's shortcomings from the begin- ning of his employment. The factors permit an inference that there was an element other than the things complained about in Mauck's conduct which gave rise to his discharge and, in the context of events here, that such other element could well have been Mauck's union activity. On the other hand, I am certain that in the day-to-day employee-employer rela- tionship the cases are legion in which records such as Mauck's have ultimately wound up in discharge without any ulterior or extraneous motivation such as union activity. Human nature being what it is, it is understandable that a lenient or lax employer can and often does reach a point where he simply runs out of leniency per se and feels compelled to completely sever the employment relationship: My impression of Mauck's record as an employee has been noted. In view of this record, it seems to me that when he arrived at work 3'h hours late 35 his con- 83 Mauck admitted that he had told more than one employee that he had been discharged. His denial that he had also said that the discharge was because of his union activity was not convincing. Moreover, Mauck impressed me as being the kind of individual who would have no hesitancy in making such statements. 84 This was particularly true since it appears from Mynatt's undenied and credited testimony that Mauck had on at least one other occasion been given "some days off" as a disciplinary measure 351 note that Mauck's claim that Mynatt had acknowledged receiving advance word about his being late was not denied in Mynatt's testimony. On the other hand the General Counsel did not offer McGahee to corroborate Mauck's testimony In any event, I do not deem it of much importance one way or the other in view of Mauck's having made an appearance and explanation when he did. KNOX HOMES, CORPORATION 461 duct was such that a reprimand or discipline by Mynatt would hardly seem unrea- sonable or gratuitous. Then, before this transgression had even cooled and in the very teeth of his discipline for it, to have him engage in further censurable con- duct could very well have been the "added bit" that brought Mynatt to a parting of the ways with Mauck. I believe such was the case. Accordingly, I shall recom- mend dismissal of this allegation of discrimination against Respondent also. The Obligation to Bargain As stated previously, the General Counsel has alleged that since on or about October 15, 1964, the Union represented a majority of Respondent's employees in an appropriate unit 36 and relying on Western Aluminum of Oregon, Incorporated, 144 NLRB 1191, seeks a bargaining order notwithstanding that no refusal to bar- gain has been alleged in the complaint. To establish the number of employees in the bargaining unit as of October 15 the General Counsel relies on the eligibility list used in the November 20 election which contains 153 names. This list according to the Direction of Election would cover the payroll immediately pre- ceding October 28, 1964, which was a Wednesday. Since payday was on Friday, I assume that the pay period ended on that day also which would make the pay period in question run from October 19 to 23 inclusive. The evidence shows that six cards were signed after October 15 37 and that four employees who signed had left Respondent's employment on or before the middle of October, one left before the end of October and one other had left before the election.38 It is clear that none of the foregoing 11 cards can be counted in cal- culating the number of employees that had designated the Union as their bargain- ing agent as of October 15. Accordingly, I find that as of that date the Union did not represent a majority. The General Counsel also adduced testimony through four employees 39 to the effect that they had signed authorization cards prior to the election and had mailed them to the Union. No such cards were offered in evidence and the only details in the record regarding them were as follows: James Wilder, when asked if he had signed a union card testified "I think so, yes." He then claimed to have signed one on September 8, which was before the election and also to have signed one after the election. He claimed to remember the September 8 date because that was "when they were all giving them out." Nev- ertheless, he denied attending a union meeting on that date . On cross-examination, he testified that King Wiley had come to his home and given him the card. There was no corroboration of this in Wiley's testimony. Davis Bennett (who could not read) also claimed in his testimony that he got his card from Wiley and signed it at home while Wiley was there. Again there was no corroboration by Wiley in his testimony. William Ivey testified that he got his card from Wiley at the latter's home. There was no corroboration here either by Wiley. Fred Williams testified that he signed a card a month or 6 weeks before the election at a union meeting but (oddly) that he mailed the card to the Union. Elaborating on the matter, he claimed that Billy Hunt had filled out the card for him and that after signing it he gave it back to Hunt. Later in his testimony he claimed to have also signed a card for Nelson Kendrick. There was nothing in David (Buck) Hunt's testimony 40 or Kendrick's to corroborate Williams. 39 The unit as found in the Decision and Direction of Election in Case 10-RC-6102 dated October 28, 1964 is : "all production and maintenance employees of Respondent at its Thomson, Georgia , mobile homes plant, excluding the outside construction employees, truckdrivers , office clerical employees , professional employees , guards, plant manager, assistant plant manager , superintendent , foremen, sales manager, dispatcher, purchasing agent, engineer (Leslie O'Neal ), Richard Cason, and all other supervisors as defined in the Act." 37 The signers and dates of these cards were Ralph W. Purvis, October 22, J. D. Waller, October 22, Julian Newsome, October 30, Johnny Duggan, October 31, Janette Pentacost, November 6, and Julius C. Taylor, November 4. 38 Henry Neal and Sam Phillips left in September. Glen Threadwell testified that he left in mid-October : Claude C. Keller„Jr ., testified that he left "about a month and a half" after he signed the card which was on August 31, 1964; William Cecil Gunn testified that he was laid off in October and Leadus Johnson testified that he left before the election. None of these employees' names appear on the eligibility list. 39 These employees were Davis Bennett, James Wilder, William Ivey, and Fred Williams. 40 This was the only Hunt who testified. 462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD While I recognize that the designation of a union as bargaining agent by an employee can be proved as the General Counsel has attempted here, I am of the opinion that the foregoing testimony is not convincing enough to establish the four authorizations in question. Accordingly when added to the six who had left Respondent's employment prior to the election, it appears that at no time did the Union represent a majority. Accordingly, I shall not recommend the bargaining remedy requested by the General Counsel. The Objections Since the validity of the objections to the election filed by the Union has been clearly demonstrated by the Section 8(a)(1) violations found herein, I shall rec- ommend that the results of the election be set aside and that a new election be ordered. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations of the 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 commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. In view of the nature and extent of Respondent's unfair labor practices, I deem it necessary, in order to effectuate the policies of the Act, to recommend a cease and desist order couched in broad terms to prohibit any violations of employee rights under the Act. So far as the conduct of the election of November 20, 1964, is concerned, I recommend that the result of the election be set aside, and a new election ordered by the Regional Director as soon as he deems circumstances to permit the free choice of a bargaining representative. In the event that the Respondent fails or refuses to comply with the terms of the order in the complaint case, I also recom- mend that the Regional Director be authorized to conduct a new election upon the written request of the Union. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Within the meaning of the Act the Respondent is engaged in commerce and the Union is a labor organization. 2. By interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, Respondent engaged in unfair labor practices proscribed by Section 8(a)(1) of the Act. 3. The aforesaid unfair practices affect commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 4. Respondent has not engaged, as alleged in the complaint, in unfair labor practices within the meaning of Section 8(a)(3) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, it is recommended that the Respondent, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Threatening employees to close down, cease operations, withhold wage increases or other benefits, or threaten other reprisals if they join, vote for, or engage in any other activities on behalf of Truckdrivers and Helpers Local Union No. 728 or any other labor organization. (b) Promising employees wage increases, additional paid holidays or any other benefits or granting such to induce them to refrain from joining, voting for, or KNOX HOMES CORPORATION 463 acting on behalf of Truckdrivers and Helpers Local Union No. 728 or any other labor organization. I (c) Interrogating employees as to their union activities, membership or feel- ings, in a manner constituting interference , restraint, or coercion in violation of Section 8(a)(1) of the Act. (d) In any other manner interfering with, restraining, or coercing its employees in their right to self-organization , to form labor organizations , to join or assist the Union, or any other labor organization, to bargain collectively through repre- sentatives of their own choosing, and to engage in concerted activities for the pur- pose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities , except to the extent that such right may be affected by an agreement requiring membership in a labor organization as authorized in Section 8(a)(3) of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Post at its plant at Thomson, Georgia, copies of the attached notice marked "Appendix." 41 Copies of said notice, to be furnished by the Regional Director for Region 10, Atlanta, Georgia, shall, after being duly signed by a representative of the Respondent, be posted by the Respondent immediately upon receipt thereof, and be maintained by it for a period of 60 consecutive days thereafter, in conspicu- ous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that such notices are not altered , defaced, or covered by any other material. (b) Notify the Regional Director for Region 10, in writing, within 20 days from the date of this Recommended Order, what steps Respondent has taken to comply herewith 42 , IT IS FURTHER RECOMMENDED that the complaint be dismissed insofar as it alleged violations of the Act other than those found in this Decision. "In 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." "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." 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 threaten our employees to close down , cease operations, with- hold wage increases or other benefits or threaten other reprisals if they join, vote for, or engage in any other activities on behalf of Truckdrivers and Help- ers Local Union No. 728 or any other labor organization. WE WILL NOT promise our employees wage increases , additional paid holi- days, or any other benefits or grant such things to induce them to refrain from joining, voting for or acting on behalf of Truckdrivers and Helpers Local Union No. 728 or any other labor organization. WE WILL NOT interrogate our employees regarding their union activities, membership or feelings in a manner constituting interference , restrain, or coercion in violation of Section 8(a)( I) of the Act. 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 organizations , to join or assist Truckdrivers and Helpers Local Union No. 728 or any other labor organization , to bargain collectively through representa- tives of their own choosing , and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and to refrain from any or all such activities. 464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD All our employees are free to become or remain , or refrain from becoming or remaining, members of any labor organization. KNox HOMES CORPORATION, Employer. Dated------------------- By------------------------------------------- (Representative) (Title) 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, 528 Peachtree-Seventh Building, 50 Seventh Street NE., Atlanta, Georgia 30323, Tele- phone 526-5741. Norfolk Conveyor, Division of Jervis B. Webb Company and Peter DeBuigny. Case 1-CA-5201. June 16, 1966 DECISION AND ORDER On April 1, 1966, Trial Examiner Josephine H. Klein issued her Decision in the above-entitled proceeding, finding that the Respond- ent had not engaged in any unfair labor practices and recommend- ing that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel and the Respondent filed exceptions to the Decision, with supporting briefs. 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 Jenkins]. 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 and the entire record in this case, includ- ing the exceptions and briefs, and hereby adopts the findings, con- clusions, and recommendations of the Trial Examiner. [The Board adopted the Trial Examiner's Recommended Order dismissing the complaint.] TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE This case was heard before Trial Examiner Josephine H. Klein on February 7, 1966, in Boston, Massachusetts, on complaint of the General Counsel, issued on a charge by Peter DeBuigny, an individual employee, against Norfolk Conveyor, Division of Jervis B. Webb Company. The single issue litigated was whether Respondent violated Section 8(a)(1) of the Act by discharging DeBuigny for engaging in concerted activities protected by Section 7 of the Act. Oral argument was presented on behalf of Respondent and briefs have been filed by the General Counsel and Respondent. 159 NLRB No. 60.