Knox Homes Corp.

530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Knox Homes Corporation and General Teamsters Local 528. Case 10-CA-6450. May 11, 1967 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND JENKINS On September 26, 1966, Trial Examiner Eugene F. Frey issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions' to the Trial Examiner's Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three- member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing, and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner with the following additions and modifications. This case represents a classic example of a discriminatory discharge of a union member, Wiley, on pretextual grounds. Wiley had been an employee of Respondent for 10 years and, aside from one verbal warning about a year before his discharge for loitering in the restroom, he had never been criticized either for his work or conduct. He was a known union adherent and the record in the previous ' The findings and conclusions of the Trial Examiner are founded, in part, upon credibility determinations, based upon his observation of and the demeanor of the witnesses while testifying Respondent has excepted to such credibility findings In particular it alleges the Trial Examiner rejected the testimony of Mrs Harris , secretary to Respondent's president , and of Adams, its superintendent , because he stated their testimony was obviously "colored" by reason of their positions "on the management side " However, we do not infer as alleged in the exceptions, that the sole reason their testimony was rejected was because they were "on the management side " Rather we infer that the Trial Examiner, from his personal observation of the witnesses and their demeanor while testifying and the content of their testimony , concluded their testimony was colored by their (to him) obvious bias and sympathy with management. To be noted is that Harris was specificially charged and found responsible for two acts of interrogation and one threat to discharge for union membership Harris was contradicted in her testimony by a written document typed by her with conflicting dates, contrary to her oral testimony After a careful review of the record , we conclude the Trial Examiner's credibility determinations based upon his observation of the witnesses while testifying are not contrary to the clear preponderance of all the relevant evidence Accordingly, we find case against the Respondent' shows that three employees testified that Wiley had solicited them to loin the Union and obtained signed cards from them. On the day before Wiley's discharge, while he was eating his lunch, he was approached by Superintendent Adams who questioned him as to whether he had heard anything from the Union and "when are they going to try us again?" This questioning appears to us to be clear recognition by Respondent that Wiley was an employee to be reckoned with in union matters and in a possible second election." In the evening of the same day of Adams' interrogation, there occurred the espisode of the alleged insubordinate remark concerning Personnel Manager Pannell which culminated in Wiley's discharge the next day. We deem it unnecessary to discuss the Trial Examiner's findings on whether Wiley made the remark or Pannell had reason to believe Wiley made it as we agree with the Examiner that Respondent seized on the remark as a pretext for discharging Wiley.' As set forth in the Decision, Wiley had two interviews with Pannell. At the first interview, Pannell brought up the subject of the Union and castigated those employees who had joined it. As the Trial Examiner sets forth, when Pannell could not get a confession from Wiley he switched tactics and criticized Wiley for his general "poor attitude" toward his fellow employees and management. Some of the alleged instances of poor attitude were admitted by Pannell at the hearing to be based on hearsay and no proof was offered as to them. Nor did Pannell offer any explanation why, if Wiley's attitude for a year or more had been as bad or incorrect as he claimed, Wiley had never been either reprimanded for it or even spoken to about it. Even in specific instances allegedly involving Wiley vis-a- vis Pannell, Pannell had made no mention to Wiley about his "improper attitude." no basis for disturbing his credibility findings and reject the charge of bias and prejudice. Standard Dry Wall Products, Inc , 91 NLRB 544, enfd 188 F.2d 362 (C A 2) In adopting the Trial Examiner's credibibty findings, we reject his gratuitous remark in connection with the testimony of Bennett that Bennett might be expected to corroborate Wiley "as both were Negroes." Though we strongly disavow the remark , we find it of no consequence herein as the Examiner then proceeded to give substantial reasons for crediting Bennett 2 Knox Homes Corporation, 159 NLRB 442 (Cases 10-CA-5974, 6058, and 10-RC-6102) 3 Consolidated with the unfair labor practice cases in 159 NLRB 442 was Case 10-RC-6102 involving union objections to the election held therein At the time of the events in the instant case, a hearing on the consolidated cases had been held and the Trial Examiner's Decision was pending Subsequently, in 159 NLRB 442, the Board ordered the election set aside and a new election held ' Though we agree with the Examiner that Bennett corroborated Wiley in Wiley's denial of the remark, we note that Bennett also testified that, at the crucial instant , Wiley made some remark to him which he, Bennett , "did not understand" and that he asked Wiley to repeat it. The remark as repeated by Wiley to Bennett was not the remark concerning Pannell 164 NLRB No. 80 KNOX HOMES CORP. 531 As the Trial Examiner found, Wiley ostensibly repudiated the Union at the beginning of his second interview with Pannell. Upon examination of the whole sequence of events and the facts and circumstances herein, it appears Wiley knew or suspected when he was called back for the second time to Pannell's office that the Company intended to discharge him. He had been questioned by Adams the day before, he had been accused of insubordination, and when he had refused to plead guilty, Pannell had brought up his "general attitude," accusing him of improper conduct while refusing to tell him the names of his alleged accusers. Also, Pannell that morning had launched into a tirade against the Union. It is apparent that Wiley at the outset of the afternoon session stated he was sorry he had joined the Union in the vain hope he could forestall what, by that time, was evident to him. The termination slip itself is telling evidence of Respondent's intent to get rid of Wiley. According to the notations on it, Wiley was "insubordinate," his disposition was "troublesome," his character "not reliable," his production "slow," his skill "poor," and he was not to be reemployed. This recital of defects and faults cannot be reconciled with Wiley's 10 years of employment with no complaints except the one verbal reprimand set forth above herein, and plainly reveals the pretextual character of Respondent's asserted reasons for discharging Wiley. For these and the reasons advanced by the Trial Examiner, we find that Wiley was discharged by Respondent in violation of Section 8(a)(1) and (3) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner, and hereby orders that the Respondent, Knox Homes Corporation, Thomson, Georgia, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE EUGENE F. FREY, Trial Examiner : The issues in this case are whether Respondent , Knox Homes Corporation, (1) discharged one King C . Wiley for cause, or for activity on behalf of the above-named Union in violation of Section 8(a)(3) of the National Labor Relations Act, as amended, 29 U.S.C 151, et seq. (herein called the Act), and (2) prior to such discharge interrogated and threatened employees in violation of Section 8(a)(1) of the Act. The issues arise on a complaint issued March 25, 1966 , by the General Counsel of the Board,' and answer of Respondent denying the commission of any unfair labor practices . The issues were tried before me at a hearing, with all parties represented by counsel, at Thomson, Georgia, on May 17, 1966. At the close of the hearing all parties waived oral argument, but General Counsel and Respondent filed written briefs which I have carefully considered in making this Decision Upon the entire record in the case, including my observation of the demeanor of witnesses on the stand, I make the following: FINDINGS OF FACT I THE EMPLOYER AND THE UNION Respondent is a Delaware corporation with its principal office and place of business located in Thomson, Georgia, where it makes and sells mobile and prefabricated homes. In the calendar year before issuance of the complaint Respondent had a direct outflow of finished products from said plant valued in excess of $50.000 I find that Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. The above-named Union is a labor organization within the meaning of Section 2(5) of the Act. H. THE UNFAIR LABOR PRACTICES A. Background Events In the summer of 1964 the Union began to organize Respondent's employees. In September 1964 it filed a representation petition with the Board in Case 10-RC-6102, in course of which it lost an election conducted by the Board in November. On charges filed by the Union early in 1965 the Board issued complaints in Cases 10-CA-5974 and 10-CA-6058 against Respondent, alleging violations of Section 8(a)(1). (3). and (5) of the Act. After a hearing in June 1965 before a Trial Examiner on these issues as well as objections of the Union to conduct affecting the election, that Examiner issued his Decision in March 1966 finding that Respondent had engaged in certain coercive threats of reprisals, promises of benefits, and interrogations in violation of Section 8(a)(1), and recommending on the basis thereof that the election be set aside and a new election ordered. The Board on June 15, 1966, issued its Decision and Order adopting the findings, conclusions, and recommendations of the Trial Examiner and directing a second election, 159 NLRB 442. I take judicial notice of this Decision as pertinent background for the events involved in this case.2 B. Alleged Coercive Conduct On Sunday evening September 12, 1965, one Alton Eugene Adkins visited the home of Respondent's plant superintendent , Elbert Adams, in company with employee James Beasley to seek work at the plant. Adkins gave his name , and asked Adams if he needed a man, Adams replied, "No, I don't want you," asking him if he was not the Adkins who had worked 2 weeks at the plant and quit. Beasley explained this was the brother of Billie Adkins who had worked at the plant and quit Adams asked Adkins what he thought about the Union. Adkins replied he knew nothing about it, that he never worked under a union. Adams said that "if you get out there and I find you ' The complaint issued after Board investigation of a charge filed by the Union on February 1, 1966 2 West Point Manufacturing Company, 142 NLRB 1161, 1163 298-668 0-69-35 532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD are for the Union, you are fired." He said to Beasley, "James, I know you are for the Union," and Beasley replied "yes, I was, but if it was to go over again, I wouldn't be for the Union." Adams then hired Adkins, arranging for him to report on September 20. As the two employees were leaving, Adams said to Adkins "don't forget, if I find out you're for the Union, you're fired." Adkins worked for Respondent until May 1966, when he and Beasley were fired for alleged stealing of scrap copper wire and piping from the plant, for which they were charged with a crime in a local court under Georgia law, and at the hearing herein were out on bond pending trial The Union has since filed charges with the Board alleging their discharges were illegal, which charges are still pending.3 C. The Discharge of King C. Wiley Wiley was hired by Respondent in 1956, and worked at the plant until his discharge in January 1966. He had joined in the Union in 1964, was active in the organizing campaign, and testified as a witness for General Counsel in the prior case in June 1965 that he signed a union authorization card. I find that from June 1965 onward Respondent knew he was a union adherent. Wiley testified that: On Monday, January 24, while eating lunch at the plant, Superintendent Adams approached him, said "Things are mighty quiet" and asked Wiley if he had heard anything from the Union. Wiley said he had not. Adams asked "When are they going to try us again?" to which Wiley said he did not know 4 Knowing that Wiley was a union adherent, and in light of Respondent's union animus indicated by its unlawful interrogation, threats, and other types of coercion found by the Board in the prior case, I find that Adams' interrogation was coercive and violated Section 8(a)(1) of the Act. Early Tuesday morning Foreman Julian Newsome told Wiley that Assistant Manager R A. Pannell wanted to see him sometime that day about a remark of Wiley. Wiley did not seek out Pannell, but at the morning breaktime Adams took Wiley to Pannell's office where the latter asked Wiley if he would care to repeat what he said about Pannell. Wiley asked what he meant, and Pannell said, "you know what you said last night," and asked him to "look me in the eye" and repeat it. Wiley asked Pannell what he thought Wiley had said, saying he did not remember what he had said. Pannell then said Wiley had called him a "damn white s-o-b" in talking to Bennett. Wiley denied this. Pannell said he knew he said it because "I read your lips." Wiley still denied he said it, and asked if Pannell had any way of proving it. Pannell said he would not ask Bennett, because he had "lost confidence in him a while back." Wiley asked what other proof he had, saying "I'll go just as far on it as you will." Pannell then said, "You all got the union stuck in your craw, what you ought to do is get educated on the union, find out what a union will do; what you are going to do [is] mess up this plant and the whole damn county." He then said workers had daily come to him asking what was wrong with Wiley, that he never 1 These findings are based on credited and mutually corroborative testimony of Adkins and Beasley Adams admitted the discussion, but was vague about whether he queried Adkins about the Union, finally making formal denials of any talk about it, hence his testimony is not impressive, and I do not credit him on this point I find these facts on credited testimony of Wiley, which was spoke to anyone. Wiley asked who said this, "if he was doing somebody wrong out there in the plant," that he punched in daily and did his work and left everyone else alone. Pannell did not tell him, but accused Wiley of "dodging" or "avoiding" Pannell. He also said Wiley had bragged in the plant about spending an afternoon in Pannell's office in 1964 before the election. Wiley denied this. After some other remarks, Pannell then had to take a telephone call, so he sent Wiley back to work, saying "we are going to try to be fair about this, we are not going to fight about it," that he would "think about it." Wiley worked until 4 p.m., when Adams sent him to Pannell's office, where the latter asked if Wiley had reconsidered and would repeat what he said the night before. Wiley denied it, and then started to talk about the Union. Pannell said he was not interested in that, only in what he said last night. Wiley then said he wished he had not become "tangled" with the Union, it cost him a lot of friends. Pannell again said he was not interested in that, he was in the office only because he had called Pannell a "white s-o-b," and Pannell wanted the truth, and that Wiley should look him in the eye when he said it. Wiley again denied saying it. Pannell said that a condition of his employment was a "correct attitude," and that he had deliberately avoided speaking to Pannell, or even meeting him in the plant, and had avoided Adams and even President Hutchinson in the same way. Wiley denied that there was anything wrong with his attitude, that he came in and did his job, and if he did not want to "speak to those bastards" that was his business, that he did not want "anybody messing around" with him, that he did his job which was a lot more than some of "these other s-o-bs around." Pannell then said this was a broad statement, cursing everybody in the plant as well as Pannell, that it was clear his attitude would not change, that "it would be better for you and the Company to separate," and gave him the choice of quitting or being terminated. Wiley made no reply, so Pannell said he was terminated as of that moment. Wiley asked if this meant "fired," Pannell said, yes, and Wiley thanked him and said he "appreciated" it. Pannell then sent him to Adams to turn in his tools. When he reported to Adams, the latter asked if he wanted to continue to work until 5 p.m., but Wiley declined, saying Pannell had fired him. He left the plant at 4 p.m. Pannell at once made up a handwritten memorandum of both interviews, had it typed Wednesday and put in Wiley's personnel file, and at the same time had Adams make out the usual discharge slip, on which Adams noted the reason for discharge and other data told to him by Pannell, then signed it and had it initialed by Panne 11.5 The incident on which Respondent relies for discharge occurred on a Monday evening, when Pannell, inspecting the plant about 7 p.m., saw Wiley and Davis Bennett together while they were working overtime. Pannell testified that it occurred the evening of January 17, 1965, when he saw Wiley and Bennett come out of the restroom and, while standing and looking at Wiley about 15-20 feet away, heard Wiley say "I wonder what that white s-o-b is doing out here tonight." Pannell at once told Foreman Julian Newsome that he wanted to see Wiley at his office not denied by Adams 5 These findings are based on a composite of credible testimony of Wiley and Pannell, which is mutually corroborative to some extent, and documentary proof. Based in large part on the demeanor of both witnesses while testifying about the two crucial interviews on Tuesday, I do not credit denials or other testimony of each which conflicts with these findings KNOX HOMES CORP. the next morning. Pannell says he did not discharge Wiley on the spot, although he was infuriated by what Wiley had said, because he did not want to make an issue of it in front of other employees. The clear coercive threat in September 1965 to a new employee of discharge for possible union activity, with the simultaneous remark to an employee that Respondent knew he favored the Union, in light of Respondent's similar threats and other coercive conduct toward employees in the same period found by the Board in the earlier case, shows Respondent's union animus and propensity toward definite reprisal, including discharge, toward employees for prounion activity. Respondent knew since 1965 of Wiley's, active union adherence, and Adams' coercive query of Wiley the day before discharge about the Union shows that Respondent was still aware of it and watching for any further union activity by the workers. Pannell's discharge of Wiley after reference to his union activity (as testified by Wiley), in conjunction with the above circumstances, presents a strong prima facie case of discriminatory discharge which required Respondent to adduce cogent evidence of discharge for cause in rebuttal. Wiley and Bennett, both Negroes, admitted that on that Monday night they noticed Pannell about 15-20 feet away when they emerged from the restroom, that Wiley was making joking remarks about women to Bennett at the time, but both denied that Wiley used the words attributed to him by Pannell or that he made any remark at all about that official. They also testified without contradiction that Pannell shortly after passed within a few feet of their workplace while both were working on the roof of a mobile unit about 10 feet off the floor, but said nothing to either. It is well settled that Respondent had the right to discharge Wiley for a disparaging and insubordinate remark of the type in question, because union activity of a worker does not give him any immunity from discharge for cause. However, the crucial issue is whether the disparaging remark was in fact made and, if made, was actually heard by Pannell and was a motivating reason for the discharge. Pannell placed the date of the remark as Monday, January 17, the discharge as the 18th, and the paperwork connected with it as being performed on the 19th. If his story on the dates is believed, it would throw doubt on Wiley's version of the events of both dates. However, Pannell's testimony on the dates is corroborated only by that of the plant secretary, Mrs. Harris, whose testimony is obviously colored by her position on the management side. Pannell is not corroborated on the dates or any other facts relating to Wiley's presence and movements on Monday night by Newsome, who was not called to testify. While Pannell is corroborated on the fact and date of preparation of the discharge slip by Adams, the testimony of that official is also colored by his management position. The slip itself could easily have been backdated, as could the typed memorandum of Pannell's version of the events on Monday and Tuesday; and there is an indication that the memorandum may have been made after January 25, from the fact that its last page is dated February 3, which the secretary ascribed to a typing error. On the other side, Wiley's placement of the crucial events on January 24 and 25 is corroborated by Bennett; while the latter might be 6 Immediate discharge would also have served in proper fashion to put Bennett and any other employees within sight or hearing on notice that Respondent would not tolerate such insubordinate remarks about management The Act does not prohibit prompt disciplinary action or notice thereof to other 533 expected to support his fellow-worker, as both were Negroes, Bennett's memory of the evening encounter is more persuasive because he ties it to an illness of his wife which required him to take off on the next day, January 25; and Respondent produces no timecard or other proof to dispute this absence or Bennett's testimony otherwise. On balance, I find that the night encounter occurred on January 24 and the two interviews and discharge on the 25th. Further, Pannell's testimony of his delayed reaction to the alleged vulgar remark does not inspire credibility. If he was close enough to hear the remark, and it infuriated him, as he testified, it would seem that his normal and instinctive response to the spoken affront, in righteous and furious indignation, would have been to charge Wiley with it and discharge him on the spot.6 The fact that he held off and did not act until after two interviews with Wiley the next day, in both of which he did not directly charge Wiley with the remark until after he could not persuade Wiley to admit making it, is potent indication that he was not sure in his own mind about what he heard on the 24th. Another indication of this is his remark to Wiley in the first interview that he got the remark by reading Wiley's lips; and Pannell's own testimony at one point indicated that he gathered the remark from watching Wiley, not hearing him. As both agree that they were 15-20 feet apart at the time, and there is no proof that Pannell was experienced, much less expert, at lipreading, I must conclude on all the circumstances that Pannell did not hear the alleged remark, but only suspected that Wiley said it from watching his lips, yet he was so uncertain of what he saw that he forbore disciplinary action until after he tried unsuccessfully to get an admission from Wiley the next day. Another circumstance rendering Pannell's story and alleged motive suspect is that, when Wiley steadfastly refused to admit making the remark, Pannell then brought up his general "attitude" in the plant, which consisted mainly of not talking to others, or even passing the time of day with company officials by normal greetings. This "attitude" is not confirmed by testimony from any coworkers of Wiley, his immediate supervisors or any other company officials whom he allegedly avoided; and since there is no proof that this unusual hermit-like attitude had ever been brought to his attention before, or that it had ever affected his work, I must conclude that Pannell brought it up as an afterthought or make-weight to build up a picture of Wiley as an uncooperative worker of "improper attitude" who thus merited discharge; and this conclusion is supported by the fact that Pannell made sure to have the discharge slip list Wiley as "troublesome" in disposition, "not reliable" in character, "slow" in production, and "poor" in skill, although there is not an iota of proof to support these traits, or to show that any of them had been cited to Wiley at time of discharge (aside from the vague "attitude") or at any time before,7 although the record shows that Wiley was an employee of 10 years' service and Pannell said his alleged avoidance of others had been going on for the last 2 years. Hence, I must infer that, although Pannell seized on the Monday encounter to take action against Wiley on the basis of some lip movement which he had suspected were disparaging employees, even when they are known union adherents r Wiley testified without contradiction that, aside from one verbal warning by his foreman in June 1965, about loitering in the restroom, he had never been criticized about his work or his conduct previously during his long employment 534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD remarks, he was so unsure of this that he tried in the discharge interviews hastily to build up a picture of general improper "attitude" as the basis of discharge to fortify that action by adding specific charges of poor character and performance in the discharge slip." These circumstances greatly detract from the potency and persuasiveness of Pannell's testimony that the disparaging remark was in fact made, and militate against an inference that he even had good reason to believe that Wiley made it. Hence, on all the pertinent circumstances, including the fact that Pannell adverted before discharge to Wiley's union adherence, although trying to deny its significance at the actual discharge, I am constrained to conclude that Respondent has not adduced cogent proof either that the disparaging remark was in fact made, or that Pannell had good reason to believe that it was made, which is adequate to rebut the prima facie case of discriminatory discharge made by General Counsel. While the issue is a close one," on all the pertinent testimony and circumstances, pro and con, I conclude that General Counsel has sustained the ultimate burden of proving by the requisite preponderance of credible testimony in the record as a whole that Respondent discharged Wiley on January 25, 1965, because of his known union adherence, while concealing that motive by the pretext of an alleged but doubtful act of insubordination and a general vague "improper attitude," all in violation of Section 8(a)(3) and (1) of the Act. III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section II, above, occurring in connection with the Respondent's operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. IV. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I recommend that it be ordered to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent unlawfully discharged King C. Wiley on January 25, 1966, I recommend that Respondent offer him immediate and full reinstatement to his former or a substantially equivalent position without prejudice to seniority or other rights and privileges, and make him whole for any loss of earnings he may have suffered as a result of the discrimination against him, by payment to him of a sum of money equal to the amount he would have earned from the date of his discriminatory discharge to the date of a proper offer of reinstatement, less net earnings during said period, to be computed in the manner established in F.W. Woolworth Company, 90 NLRB 289, and including interest at the rate of 6 percent "Another indication that Pannell was exaggerating Wiley's "attitude," both in the discussion at discharge and in testimony. into a matter far beyond its real importance, lies in Pannell's testimony that it is an acceptable greeting if workers nod their heads to him without speaking, but they must still "keep their eye contact, never drop their eyes " This in my view is a reliance upon minutiae of action and appearance which further shows the lack of real substance in the claim of "improper attitude " 9 I have also considered carefully (1) the lack of any proof of union or concerted activity by Wiley between his June 1965 per annum, as required by Isis Plumbing & Heating Co., 138 NLRB 716. The illegal discharge also warrants a broad order and notice. CONCLUSIONS OF LAW 1. The Union is a labor organization, and Respondent is engaged in commerce, within the meaning of the Act. 2. By unlawfully discharging King C. Wiley as found above, the Respondent engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act. 3. By interfering with, restraining, and coercing its employees by said discharge and other conduct found above, in the exercise of their rights guaranteed them by Section 7 of the Act, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law and upon the entire record in this case, it is recommended that Respondent, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in General Teamsters Local 528, or in any other labor organization of its employees, by discharging any of its employees or discriminating in any other manner in respect to their hire or tenure of employment, or any term or condition of employment. (b) Interrogating employees about their protected, concerted activities on behalf of the above Union, threatening them with discharge because of such activities, or in any other manner interfering with, restraining, or coercing its employees in the exercise of rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which will effectuate the policies of the Act: (a) Offer King C. Wiley immediate and full reinstatement to his former or substantially equivalent position, without prejudice to seniority and other rights and privileges, and make him whole for any loss of pay suffered by reason of Respondent's discrimination against him, in the manner set forth in the section of this Decision entitled "The Remedy", and notify him, if he is presently serving in the Armed Forces of the United States, of his right to full reinstatement upon application, in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other testimony in the prior case and his discharge, almost 7 months later, and (2) the fact that Wiley had more than a year before testified before a Federal Civil Rights Commission about alleged discrimination against Negroes in Respondent's plant and elsewhere in the county, but these circumstances in my view do not detract enough from the case of General Counsel, or add enough to the other proof adduced by Respondent, to counterbalance the persuasiveness of the case of General Counsel, particularly in light of past and contemporaneous union animus and unfair labor practices of Respondent KNOX HOMES CORP. records necessary to analyze the amount of backpay due under the terms of this Recommended Order. (c) Post at its Thomson, Georgia, plant, copies of the attached notice marked "Appendix.""' Copies of said notice, to be furnished by the Regional Director for Region 10, after being duly signed by Respondent's representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 10, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith." 10 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 is 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 " 11 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 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 interrogate our employees about their protected concerted activities on behalf of 535 General Teamsters Local 528, threaten them with discharge because of such activities , or in any other manner interfere with , restrain , or coerce our employees in the exercise of rights guaranteed to them by Section 7 of the Act. WE WILL NOT discourage membership in the above- named Union , or any other labor organization of our employees, by discharging any of our employees or discriminating in any other manner in respect to their hire or tenure of employment or any term or condition of employment. WE WILL offer to King C. Wiley immediate and full reinstatement to his former or substantially equivalent position , without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings suffered as a result of our discrimination against him. All our employees are free to become or remain or to refrain from becoming or remaining members of General Teamsters Local 528 or any other labor organization. Dated By KNOX HOMES CORPORATION (Employer) (Representative) (Title) Note: We will notify the above-named employee if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 528 Peachtree- Seventh Building, 50 Seventh St. N.E., Atlanta, Georgia, Telephone 526-5741.