Southern Foods, Inc.

152 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Southern Foods, Inc. and General Drivers, Ware- housemen & Helpers Local Union No. 89, affili- ated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Help- ers of America, AFL-CIO.' Case 9-CA-23902 June 15, 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS BABSON AND CRACRAFT On June 18, 1987, Administrative Law Judge Walter J. Alprin issued the attached decision. The Respondent filed exceptions and a supporting brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge' s rulings, 2 findings' s and conclusions and to adopt the recommended Order as modified.4 i On November 1, 1987, the Teamsters International Union was read- mitted to the AFL-CIO. Accordingly, the caption has been amended to reflect that change. 2 The Respondent has excepted to the judge's ruling at the hearing ex- cluding evidence purporting to show that the real reason employees Donnie Thompson and Charles Fulcher were disciplined was not because they responded to a Board subpoena, but because of their intentional and malicious participation in a union scheme to abuse Board processes and disrupt and injure the Respondent's business After carefully considering the matter, we find no merit in the Respondent's exception In so finding, we rely particularly on the fact that the January 15, 1987 letter the Re- spondent sent the employees informing them of their terminations sets forth the Respondent's reasons for discharging them , but makes no men- tion of the alleged scheme or plot Therefore, we conclude that this al- leged misconduct, even if established , was not a factor in the Respond- ent's decision to discharge the two employees, and the Respondent's claim now that the employees participated in such a scheme has all the markings of an afterthought For this reason , we affirm the judge's ruling excluding the evidence in question Of course, our decision should not be construed as in any way condoning the kind of tactics alleged to have been engaged in here We also note that, as the judge observed, the Respondent could have sought to alleviate business inconvenience by at least calling the Regional Office to inquire into the possibility of a postponement that would permit the testimony of employees Fulcher and Thompson to be taken at a time less inconvenient for the Respondent's operations Instead of making such an effort at accommodation, the Respondent simply discharged the sub- poenaed employees Member Babson, in affirming the judge's ruling, relies on the reasons set forth by the judge in his decision a The judge stated in sec II, par 2, of his decision that Kenneth Howell, the Union's business agent, did not receive the Board subpoenas until about 8 p in at the union meeting on January 8, 1987 Howell testi- fied that he received the subpoenas "around 7 p in " In sec II, par 6, of the decision, the judge stated that when employees Fulcher and Thompson reported to work the morning after the hearing, their supervisor told them to write an explanation of why they should get their jobs back The record indicates that Joe Natcher, the Respondent's vice president, not their supervisor, told the employees to write the ex- planation. These inaccuracies in the judge's decision do not affect the de- cision in this case 4 The judge included a visitatorial clause in his recommended Order authorizing the Board , for compliance purposes, to obtain discovery from the Respondent under the Federal Rules of Civil Procedure subject to the supervision of the United States court of appeals enforcing this Order Under the circumstances of this case, we find it unnecessary to ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Southern Foods, Inc., Bowling Green, Kentucky, its officers, agents, successors, and as- signs, shall take the action set forth in the Order as modified. Substitute the following for paragraph 2(e). "(e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply." include such a clause . See Cherokee Marine Terminal, 287 NLRB 1080 (1988). Although the judge found that the Respondent's conduct warranted broad cease-and-desist language, he failed to include this language in his recommended Order We have considered this case in light of the stand- ards set forth in Hickmott Foods, 242 NLRB 1357 (1979), however, and have concluded that a broad remedial order is inappropriate inasmuch as it has not been shown that the Respondent has a proclivity to violate the Act or has engaged in such egregious or widespread misconduct as to demonstrate a general disregard for the employees ' fundamental statutory rights. David L. Ness, Esq., for the General Counsel. Wells T Lovett, Esq. (Lovett & Lamar), of Owensboro, Kentucky, and Gerry Moore, Esq., of Bowling Green, Kentucky, for the Respondent. DECISION STATEMENT OF THE CASE WALTER J. ALPRIN, Administrative Law Judge. On 14 January 19871 General Drivers, Warehousemen and Helpers Local Union No. 89, affiliated with the Interna- tional Brotherhood of Teamsters, Chauffeurs, Ware-hou- semen & Helpers of America (the Union) filed a charge, amended on 5 February, alleging that Southern Foods, Inc. (Respondent) engaged in unfair labor practices by discharging Donnie D. Thompson and Charles R. Fulcher because they joined, supported or assisted the Union, and engaged in concerted activities and in order to discourage employees from engaging in such activi- ties, in violation of Section 8(a)(3) and (1) of the Nation- al Labor Relations Act (the Act), and with interfering with the processes of the Board in violation of Section 8(a)(4) and (1) of the Act. On 9 February a complaint thereon was issued, and the matter was heard before me at Bowling Green, Kentucky, on 27 March and 2 April. Briefs were submitted.2 On the entire record of the case and from my observa- tion of the demeanor of the witnesses, I make the follow- ing ' All dates are in 1987 unless otherwise indicated 2 Respondent's supplement to its brief is not accepted It added two points-an appeal and decision of which I was already aware , and em- phasis on matters in the record only as offers of proof and not admitted as evidence Further, the Board Rules, Sec 102 42, makes no provision for such "supplement " 289 NLRB No. 21 SOUTHERN FOODS 153 FINDINGS OF FACT 1. JURISDICTION Respondent is a Kentucky corporation with an office and place of business at Bowling Green, Kentucky, where it engages in the nonretail sale and distribution of frozen foods and related products. It admits it is and I find it to be an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. It also admits that the Union is, and I find it to be, a labor organization within the meaning of Section 2(5) of the Act. II. BACKGROUND During December 1986 the Union was engaged in a campaign to organize a unit of Respondent's employees consisting generally of drivers and warehouse employees. On 17 December 1986 it filed a petition with the Board for certification as exclusive bargaining representative. The union business agent in charge of the campaign, Kenneth Howell, advised supporting employees that there would probably be a representation hearing before the Board as to inclusion within the unit of certain lead- men and order takers. He told them he would need about three witnesses and asked for volunteers. Three employees, not the alleged discriminatees, volunteered. On 29 December 1986, notice was issued by the Board of a representation hearing to be held on 9 January. Howell was out of town on vacation and did not learn the date of the representation hearing until his return on 7 January, and the following evening, 8 January, he met with union supporters. At the meeting Howell was told that Thompson and Fulcher would be the witnesses to be subpoenaed by the union to testify on its behalf. Howell did not receive the actual subpoenas until about 8 p.m., at the meeting. The subpoenas were not complet- ed with the names of Thompson and Fulcher, and given to them, until that night. The employer warehouse was then closed , and messages could not be taken from the telephone answering machine until the warehouse opened in the morning. In response to their questions, Howell told Thompson and Fulcher to show the subpoe- nas to their superior upon reporting for work in the morning, advising him that they would have to leave work at 9 or 9:30 a.m. in order to honor the subpoenas. Starting time on the next day, 9 January, also the day of the Board hearing, was 5 a.m. Thompson and Fulcher had arrived before the warehouse opened and when ad- mitted made the suggested statement to their supervisor. He took the subpoenas into the then empty office of Wil- lard Atkinson, the Respondent's president. Thompson and Fulcher went to work pulling orders and/or ready- ing their trucks. About 5.30 a.m. Atkinson arrived at the warehouse, and the supervisor showed him the two subpoenas. At- kinson called Thompson and Fulcher from their work. Because both were scheduled for their regular "long runs," which required that they be out of the warehouse without returning until the end of the day, they would not be able to start their runs if they had to leave mid- morning. Atkinson told them that they were needed in order to do their work and could not leave work to testi- fy in response to the subpoenas. Thompson and Fulcher insisted that they were bound by the Board's order to appear and testify, and Atkinson finally told them that they would either take their scheduled runs or, if they were going to obey the subpoena, to "hit the clock" and leave. They both left the warehouse and later attended and testified at the representation hearing pursuant to the subpoenas. At the representation hearing, Atkinson was asked to name the drivers employed by Respondent. He did so, leaving out Thompson's and Fulcher's names. When asked why he did not name them, on the advice of coun- sel Atkinson did not reply. The next morning Thompson and Fulcher appeared at the warehouse at the proper time for work, but were met by their supervisor, who gave each of them pen and paper and told them to write an explanation of why they "should have their jobs back." They pointed out that since they had not been advised that they had lost their jobs they did not understand why they should explain why they should get them back. They were told to go home. The next workday, Monday, 12 January, the same scene was reenacted. The following morning, 13 January, when Thompson and Fulcher reported for work they were each given an envelope containing a letter from Joe Natchez, an officer of Respondent, stating in full as follows: This will confirm what you were told last Friday morning when you refused to perform your as- signed duties. You were sent home pending an in- vestigation of the total circumstances. On Saturday morning I asked you why you should have your job back, and on Monday morn- ing I asked you why you should be entitled to work. Both times you did not give me any reasons whatsoever. I also asked you to write down for me your rea- sons. On Saturday morning, you replied, why should we write the reasons down if we have not been fired? On Monday morning, you said you were not going to write any reasons down. Both times I asked if you were refusing to write your reasons down, and both times you said yes. We are seeking legal counsel, and you should not report to work until further notice. We expect to make a decision within a few days and will notify you. If you have any reasons, please provide them. That Saturday they each received a letter from Atkinson by certified mail, stating in full as follows: After waiting until the end of today to receive from you any statement of reasons why you should be reinstated, considering all factors known to us, and consulting legal counsel, I regret to tell you that your employment at Southern Foods, Inc, is being terminated. We recognize fully the rights of employees to decide for themselves whether they wish to be rep- resented by the Teamsters' Union or any other 154 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD union. This includes your individual rights to testify at an NLRB hearing. However, your rights must be balanced with the need to serve our customers and operate our business. The hearing date was scheduled well in advance. We think you must have known several days ahead that you would likely want to be absent from work on that Friday . You testified at the hearing that you learned on Thursday evening, while attending a Union meeting, that there was a subpoena issued for you. We believe it was your responsibility to notify us as soon as possible of your intended absence. You knew your scheduled route for the day was a long out-of-town one. With advance notice, even as late as Thursday evening we could have made arrange- ments, which would have minimized the disruption of our business, which was caused by your present- ing the subpoena, and refusing to work at the time you were scheduled to leave. On Friday morning, after I learned of the subpoe- na, I told you that you would have to make a choice whether to carry out my direction to perform your usual duties on that day, or to attend the NLRB hear- ing. I told you that we were fully scheduled and that you were needed to work. You chose not to do so. [Em- phasis added.] Discussion The pertinent facts of this matter are simple. Two em- ployees were subpoenaed by the Union to give testimony at a representation hearing the following morning. When they presented the subpoenas to the Respondent and re- quested to be excused from work to honor the subpoe- nas, the employer directed them to continue working and not honor the subpoenas. When they questioned his order, the employer gave them a simple option: ignore the subpoena and work for me, or honor the subpoena and "hit the clock." When the employees insisted on honoring the subpoena the employer denied at the hear- ing that they worked for him, refused to allow them to return to work without a written explanation of why they should "get their jobs back" [emphasis added], and eventually officially "terminated" their employment. The decision is equally simple. These were not em- ployees voluntarily seeking to leave work without au- thority to attend a Board hearing, as to whom there must be a balancing of their personal desires on the one hand, and, on the other, the damage to the employer's business. These employees had been served with subpoenas requir- ing their attendance. Respondent's attempt to interfere with such subpoenas is a violation of Section 8(a)(4) and (1) of the Act. Respondent's argument is based on a consistent, though both incorrect and unstated refusal to recognize that the Board, and the courts, distinguish between em- ployees leaving work without permission into those doing so in response to a subpoena, on the one hand, and, on the other, "voluntarily" and without having been served with a subpoena. Thus, its entire position is incor- rectly predicated on the decisions relating to unexcused "voluntary" absence, as to which a balancing test meas- ures employee rights versus business needs, though the facts clearly show that the employees involved did not absent themselves voluntarily, but in response to a sub- poena. It was Respondent's primary argument at the hearing that the majority opinion of the Board in Rich Plan of Western Reserve, 271 NLRB 1010 (1985), should be re- versed in favor of the dissenting opinion of Chairman Dotson. Respondent alleged that the dissent held it is in- cumbent to balance the requirements of a subpoena served on an employee against the need of the employer for the employees' services at the time. In point of fact the dissenting opinion of Chairman Dotson was adopted by the Sixth Circuit in Rich Plan of Western Reserve v. NLRB, 796 F.2d 864 (6th Cir. 1986). Unfortunately for Respondent, the dissent of Chairman Dotson was not as presented by counsel here, and neither it nor the opinion of the court pertains to this case. The Rich Plan case, before the Board and the court, involved the rights of employees to leave work without authority when not yet served with subpoenas when they had been told that subpoenas awaited service at the hearing and they believed themselves subject to penalty if they failed to appear. The Board's majority held that the employees in such circumstances had the status as having already been served. Chairman Dotson could "find no reason for the sudden departure from the uni- versally established and accepted legal requirement of service." Rich Plan, supra at 1013. The court agreed, adding that "Although the employees may have reason- ably believed they were under a legal obligation to attend the hearing, we do not believe that this is an ade- quate substitute for actual service in the circumstances of this case." Rich Plan v. NLRB, supra at 879. The case at bar is completely different. Here the em- ployees had already been subpoenaed and the Employer knew it. The Employer even held the subpoenas in his hand when he ordered the employees to remain at work and issued his ultimatum. This is completely different from Chairman Dotson's dissent, which made it abun- dantly clear he was referring to employees on whom no subpoena had been served, e.g., at 1012 "unless they were subpoenaed," "The rights of these unsubpoenaed employees" and "in the absence of a showing that they had been subpoenaed" and at 1013 his approving quota- tion from and citing of Standard Packaging Corp., 140 NLRB 628, 630 (1963) that the employees "were under no subpoena to appear," and that "Accordingly, I find that the employees who were not served with subpoenas therefor left work voluntarily . . .."s During oral argument in the course of the hearing, counsel for Re- spondent continually and incorrectly represented that the dissent in- volved balancing the rights of subpoenaed employees Tr. 37 shows him stating that "It was the position of Chairman Dotson in his vigorous dis- sent [and impliedly accepted] by the majority, too, that the subpoena must balance [the] need to call this witness to put on the case [,] and the extent to which it will disrupt the employers' business " (Bracketed mate- rial makes obvious corrections to the transcript.) Lest one think this a slip of the tongue, at Tr 43 counsel continues "I wanted to quote where he said 'It must be balanced, must be balanced, the right of the union to sub- poena witnesses and have them appear with the disruption with the amount of the disruption to the Employer's business."' (Reporter's mark- Continued SOUTHERN FOODS 155 The "balancing test" and "business justification" are concepts limited to "voluntary," i.e., nonsubpoenaed, at- tendance at Board hearings or at Board offices to obtain or give information or file charges. "In the absence of a subpoena, it is well established, both under appellate au- thority and Board precedent, that an employee does not have a statutorily protected right to absent himself from work without permission even though he seeks to volun- tarily testify at a Board proceeding; rather, a balance must be struck between the interests of the employee in attending the proceeding and the interests of the employ- er in maintaining production and discipline over his work force." Rich Plan v. NLRB, supra at 876, emphasis added. "We note that there are cases which hold that once a subpoena is served upon an employee the employ- er's motivation is irrelevant and the employer's obliga- tion is one of noninterference with the employee's duty to respond to the subpoena." (Rich Plan v. NLRB, supra at 873, emphasis added.) In its brief Respondent finally recognized that the issue in Rich Plan related to whether the employees had been subpoenaed. It continued, however, to perniciously con- fuse the requirements of balancing business justification where employees are not subpoenaed with the situation here, where the employees had been subpoenaed, by citing and quoting from Earringhouse Imports, 227 NLRB 1107 (1977), and the circuit court's refusal to enforce the Board's Order, Service Employees Local 250 v. NLRB, 600 F.2d 930 (D.C. Cir. 1979). That case is also one in which the employees discharged had left work voluntari- ly and not subject to subpoena. No one who read the Board's Rich Plan decision, dissent, and appeal, or the Earringhouse decision and appeal, could possibly, under any circumstances, ever consider that they applied to the fact situation present here and known to the Respondent, to wit, that subpoenas had already been served on the employees. Respondent must eventually realize that al- though a business has a recognized right to restrain em- ployees from leaving work for voluntary purposes, it has no right to interfere with the writ of subpoena, one of the great writs of English common law and on which much of our present trial procedure is based. Respondent's second argument is that the discipline imposed on Thompson and Fulcher was not the result of their testifying at a Board hearing or responding to a subpoena, but because of their failure to follow employer policy to give prior notice of inability to be at work, be- cause of alleged participation in a secret union plot to damage the Employer by subpoenaing the employees most necessary to business operations, and because of their refusal to give written statements asking to be re- hired.4 The issue here is, however, exactly that of Walt Disney World Co., 216 NLRB 836, 837-839 (1975). The following extensive quotation expresses the law on point in full, and is on all fours with the matter herein: ing of subquotes not as orally stated, but as per counsel's emphasis. Obvi- ous subquote is as to words "must be balanced.") (Emphasis added to both quotations.) 4 On these points Respondent relies entirely upon matters not admitted into evidence, placed in the record only as an offer of proof, as to which counsel for the General Counsel properly did not raise other valid objec- tions, cross-examine, or present rebuttal. The Act and the Rules and Regulations of the Board clearly provide that a person served with a subpena is required to appear and to give testimony pursuant to the subpena.. . . A respondent employ- er's "obligation with respect to subpoenaed employ- ee witnesses is one of noninterference, nonrestraint and noncoercion as to such employees' right and obligation to attend scheduled hearings as subpoe- naed witnesses, and one of nonreprisal to such em- ployees because they are subpoenaed witnesses." (Emphasis added.) "Once an employee has been subpoenaed," the Supreme Court has said, "he should be protected from retaliatory action regard- less of whether he has filed a charge or has actually testified." Respondent contends that it disciplined Davis and Winkler not because of their attendance at the NLRB hearing or for responding to an NLRB sub- pena, but because they violated established and rec- ognized company rules concerning the proper pro- cedures for seeking an authorized leave of absence. But Respondent's rules of procedure cannot limit or restrict an individual's obligation to respond to a Board subpena. .. . As this conduct had the tendency to deprive the employees of vindication by the Board of their stat- utory rights, it violated Section 8(a)(1) of the Act. Moreover, as Respondent's disciplinary action against Winkler and Davis tended to restrain them and other employees from participating in Board proceedings, we find that by such conduct Re- spondent also violated Section 8(a)(4) of the Act. Arguing against its own position, Respondent's brief even quotes from Walt Disney World Co., supra, that If [the employer] anticipated that the attendance [of the employees] at the hearing would be seriously disruptive of its operations, the remedy was not to warn the employees not to respond to the subpoenas, but to work out an accommodation . . . . [216 NLRB at 838, fn. 9, emphasis added.] Although time was short and accommodation might not have been possible, Respondent made no attempt to do anything but threaten the subpoenaed employees. The fact of the threat, an interference with and restraint, and coercion of not only Thompson and Fulcher but of all employees in the exercise of their rights, was of itself a full and complete violation of Section 8(a)(4) and (1) of the Act. The attempt to force Thompson and Fulcher to give written excuses, like schoolboys, before they would be permitted to return to work after obeying the subpoe- nas, was demeaning in the extreme and whether planned as such was to be an excellent demonstration to all the employees attempting to unionize that their rights are not protected by law but entirely subject to the Employ- er's dictates. As in Walt Disney World Co., supra, and other cases, in view of finding violations of Section 8(a)(4) and (1) of the Act, it is not necessary to decide whether, as alleged 156 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD in the complaint, the foregoing conduct was also a viola- tion of Section 8(a)(3) of the Act, inasmuch as the remedy would be the same even if the additional viola- tions were found. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES ON COMMERCE The conduct of Respondent set forth above has a close, intimate, and substantial relationship to trade, traf- fic, and commerce among the several States and tends to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. CONCLUSIONS OF LAW 1. Respondent Southern Foods, Inc. is an employer en- gaged in commerce and in operations affecting com- merce within the meaning of Sections 2(2), (6), and (7) of the Act. 2. Respondent violated Section 8(a)(4) and (1) of the Act by interfering with the process of this Board through threatening and discriminatorily interfering with the employment of Donnie Thompson and of Charles Fulcher for absenting themselves from work without au- thority in order to attend an NLRB hearing pursuant to subpoena. 3. The unfair labor practices engaged in by Respond- ent affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices, I find it necessary to order it to cease and desist therefrom. In order to effectuate the policies of the Act, the Respondent must offer Donnie Thompson and Charles Fulcher reinstatement and make each of them whole for any loss of earnings and other benefits from 9 January 1987, computed on a quarterly basis from that date to date of proper offer of reinstate- ment, less any net interim earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as computed in New Horizons for the Retarded, 283 NLRB 1173 (1987).5 Because Respondent's conduct demonstrated a general disregard of the employees' fun- damental rights to respond to the Board's subpoena, I find it necessary to issue a broad order, requiring Re- spondent to cease and desist from infringing in any other manner on rights guaranteed employees by Section 7 of the Act.6 For the same reasons, and particularly because the violation pertains directly to the integrity of Board process, I find it necessary to include the provision of vi- sitatorial rights for the General Counsel in matters of en- forcement. On these findings of fact and conclusions of law, and on the entire record, I issue the following recommend- ed' 5 See generally Isis Plumbing Co, 138 NLRB 716 (1982) 6 Hickmott Foods, 242 NLRB 1357 (1979) 7 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall , as provided in Sec 102 48 of the Rules, be adopted by the ORDER The Respondent, Southern Foods, Inc., Bowling Green, Kentucky, its officers, agents, successors, and as- signs, shall 1. Cease and desist from (a) Interfering with the right of employees to absent themselves from work without authority in order to attend hearings of the National Labor Relations Board pursuant to subpoena. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Offer Donnie Thompson and Charles Fulcher im- mediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent po- sitions, without prejudice to their seniority or any other rights or privileges previously enjoyed, and make them whole for any loss of earnings and other benefits suffered as a result of the discrimination against them, in the manner set forth in the remedy section of the decision. (b) Remove from its files any reference to the unlawful discharges and notify the employees in writing that this has been done and that the discharges will not be used against them in any way. (c) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (d) Post at its facility in Bowling Green, Kentucky, copies of the attached notice marked "Appendix."8 Copies of the notice, on forms provided by the Regional Director for Region 9, after being signed by the Re- spondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respond- ent to ensure that the notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply For the purpose of deter- mining or securing compliance with this Order, the Board, or any of its duly authorized representatives, may obtain discovery from the Respondent, its officers, agents, successors or assigns, or any other person having knowledge concerning any compliance matter, in the manner provided by the Federal Rules of Civil Proce- dure. Such discovery shall be conducted under the su- pervision of the United States court of appeals enforcing Board and all objections to them shall be deemed waived for all pur- poses 8 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " SOUTHERN FOODS 157 this Order and may be had upon any matter reasonably related to compliance with this Order, as enforced by the court. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protec- tion To choose not to engage in any of these protect- ed concerted activities. WE WILL NOT interfere with employees leaving work during working hours to attend a Board hearing pursuant to Board subpoena. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL offer Donnie Thompson and Charles Fulcher immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed and WE WILL make them whole for any loss of earnings and other benefits resulting from their discharge, less any net interim earnings, plus interest. WE WILL notify them that we have removed from our files any reference to their discharges and that their dis- charges will not be used against them in any way. SOUTHERN FOODS, INC.