Ocoma Foods Co.

National Labor Relations Board - Board DecisionsNov 23, 1970

186 N.L.R.B. 697 (N.L.R.B. 1970)

OCOMA FOODS COMPANY Ocoma Foods Company and Jerry Pamplin. Case 26-CA-3492 November 23, 1970 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND JENKINS On March 23, 1970, Trial Examiner Alba B. Martin 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, Respondent filed timely exceptions, and a brief in support thereof, to the Trial Examiner's Decision. 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 this case, and hereby adopts the Trial Examiner's findings, conclusions, and recom- mendations. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommend- ed Order of the Trial Examiner, and hereby orders that Respondent, Ocoma Foods Company, Shelby- ville, Tennessee, 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 PROCEEDING ALBA B MARTIN, Trial Examiner. This proceeding, with all parties represented, was heard before me in Shelbyville, Tennessee, on December 18 and 19, 1969.1 The principal issue involved is whether Dixie discharged Jerry Pamplin on April 11, 1969 in violation of Section 8(a)(3) and (1) of the Act,2 or for cause. After the hearing Respondent filed a helpful brief, which has been duly considered. Upon the entire record and my observation of the witnesses, I hereby make the following. The charge was filed by Jerry Pamplin, an individual, on September 29, 1969 FINDINGS OF FACT 1. THE BOARD'S JURISDICTION 697 The Board's jurisdiction was admitted by Respondent and is not in issue. The plant involved herein (called the plant) in Shelbyville, Tennessee, is engaged in processing, preparing, distributing, and selling dressed chickens. Prior to June 3, 1969, the plant was owned and operated by Dixie Home Corporation (Dixie). On or about that date Dixie transferred and conveyed its entire assets, including the plant, to Consolidated Food Corporation, in exchange for common stock of that corporation; and the latter's wholly owned subsidiary, Ocoma Foods Company, Respondent herein, has since then operated the plant. The chairman of the board of directors of Dixie, W. B. Woosley, became an advisor and consultant to Respondent. The president of Dixie, W. B. Woosley, Jr., became vice president of Respondent and plant manager of the plant. The plant superintendent, A. L. Rhodes, continued on in that capacity. The complaint alleged, the answer admitted, and I find, that during the 12-month period prior to issuance of the complaint on November 14, 1969, Respondent sold and shipped products valued in excess of $50,000 directly from the plant to points outside of Tennessee. The answer admitted also that prior to takeover Dixie was engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED Retail, Wholesale, Department Store Union , AFL-CIO, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A Whether This Case is Barred by a Settlement Agreement in a Previous Case The case involved herein was filed September 29, 1969, by Jerry Pamplin as an individual, and was docketed as Case 26-CA-3492. On July 7, 1969, the Board's Acting Regional Director approved an informal settlement agreement between Ocoma Foods Company and the Union in another case docketed as Case 26-CA-3351. Ocoma Foods Company signed the settlement agreement on June 27 and the Union signed it on July 3. The settlement agreement related solely to Section 8(a)(1) of the Act, as shown by the fact that the notice covered interrogation, solicitation, surveillance, and creating the impression of surveillance. The settlement agreement did not cover the issue of the Pamplin discharge, which had occurred on April 11, 1969. The original charge in Case 26-CA-3351, filed by the Union on April 30, 1969, had included an 8(a)(3) allegation as to Pamplin's discharge, but in its first amended charge in that case filed June 20, the Union had omitted the 8(a)(3) allegation, and had specifically alleged interrogations and surveillance. This was the state of the charge when the settlement agreement was executed. 2 29USC Sec 151. elseq 186 NLRB No. 108 698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The settlement agreement reserved to the Regional Director the discretion to decline to issue a complaint if the Charging Party failed or refused to become a party to the agreement . From this I conclude that the settlement agreement was executed before any complaint was issued by the Regional Director in Case 26-CA-335 1. Respondent contended this informal settlement agree- ment prior to issuance of complaint barred the present proceeding because the original charge in that case included the Pamplin discharge . But it seems to me, and I find, that when the Charging Party there , the Union, amended its charge and dropped the Pamplin and 8(aX3) allegation , the Union thereby indicated its desire that the Pamplin discharge not be pursued by the Regional Office. The settlement agreement executed thereafter was silent as to the Pamplin discharge and as to any remedy related to an 8(a)(3) violation . This is convincing to me, and I find, that the Company and the Union, the parties to the agreement, did not consider the Pamplin discharge to be included in the settlement or to - be, since the filing of the amended charge , any longer in Case 26-CA-3351. Had they considered the discharge any longer a part of the case, it seems to me, the parties would have taken some note of it in the settlement agreement rather than just leave it dangling in limbo. Certainly , insofar as the record showed, the Regional Director never issued a complaint in that case and never complained in that case that Pamplin was discrimina- torily discharged. Respondent contended that the complaint in Case 26-CA-3492 is barred under Section 10(m) of the Act because the Regional Office did not give the Pamplin discharge priority. I believe and find that after this discharge was amended out of the original charge in Case 26-CA-3351 by the filing of the amended charge, the Regional Director took no further action on the Pamplin discharge in that case because he considered that subject matter no longer before him. When the question was again before him after the filing of Case 26-CA-3492 on September 29 by a different Charging Party, an individual rather than the Union , he investigated it promptly and issued his complaint on November 14. In any case nothing in this record demands that justice in the situation requires that the individual who filed the charge in Case 26-CA-3492 be deprived of his day in court. B. The Discharge of Pamplin Jerry Pamplin worked for Dixie for about 7 years, from 1962 until his discharge on April 11, 1969. During his last 8 or 9 months he worked as a knife sharpener under Superintendent A. L. Rhodes. At the time of the hearing Pamplin was 27 years old, Rhodes 33. Both were married and had families . As a knife sharpener Pamplin moved around the plant and sharpened about 170 knives for the employees who used them, mostly women , and as he sharpened he customarily talked to the employees and joked with them and sometimes teased them . Pamplin was a jolly person in the plant and he and Rhodes became friendly. They talked about many things, Pamplin bor- rowed money from Rhodes, and once he helped Rhodes move his driveway . Pamplin had a motorcycle, and Rhodes sometimes rode it around the block at the plant at breaktime . Rhodes admitted that he considered Pamplin a good friend and that they talked together at the plant a good deal. The record does not disclose when the union campaign began in the plant , but both Pamplin and Rhodes indicated in their testimony that the first they knew of it was a few weeks before Pamplin 's discharge . Pamplin credibly testified that the first he heard of it was one day in the "break room" when Rhodes asked him if he had heard anything about "this union campaign ." Pamplin replied by asking what is a union . On the witness stand Pamplin explained that although he had "heard about unions" he really didn't know what a union was . Pamplin finished seventh grade in school . Superintendent Rhodes explained that a union was "a group of people in the plant trying to take it over." He named an employee who was trying to get cards signed . Rhodes then asked Pamplin if he would go to the union meetings and learn what he could from them, how many were present, and what they were talking about. For a week or so Pamplin hesitated . Rhodes kept asking Pamplin to do it and finally Pamplin capitulated and started doing it. He reported back to Rhodes what he learned at the meetings , and also what he heard from employees as he questioned them , at Rhodes' request, concerning the Union and concerning whether they had signed a card . Sometime during this period , according to Pamplin 's credited testimony , Rhodes told him that if he would get the information for him he would give him a 15- cent raise, up to $2 an hour. Superintendent Rhodes denied promising Pamplin a raise in return for information about the Union , and claimed that when Pamplin was put on the knife sharpening job months before Rhodes told him that he would recommend him for a raise at such time as Pamplin sharpened all the knives in the plant . Pamplin denied this . Rhodes testified that Pamplin was always pressing him for the raise, that they must have had 200 or 300 conversations about it, each time Pamplin claiming Rhodes had promised him the raise and Rhodes replying that he wasn't yet sharpening all the knives in the plant . Pamplin 's understanding , possibly erroneous , was that a former knife sharpener had received over $2 per hour on the job. On the witness stand Rhodes admitted that Pamplin brought him much information about the Union but denied that Rhodes asked him to get it or bring it . Rhodes testified Pamplin was always volunteer- ing information about the Union , and that Pamplin came to him numerous times a day with information. Pamplin was a natural to be an informer on the Union for Rhodes. At the start Pamplin had no prejudices or inclinations for or against the Union . They were friendly, Rhodes had loaned him money (the record is silent as to whether it was repaid), and Pamplin was continuously pressing Rhodes for a raise. Pamplin was an easy mixer with the employees, a great talker and kidder , and his job took him all over the plant . Under these circumstances it is reasonable to believe, as I do , that Rhodes offered him the raise if he would bring him information about the Union, and that Pamplin 's testimony is credible. Further, I find it completely incredible that Pamplin would have returned to Rhodes time after time, day after day, with information OCOMA FOODS COMPANY 699 about the Union if he had not had the strong incentive of a promised wage increase. Pamplin credibly testified that as time went on and he was giving Rhodes the requested information about the Union, he began to realize that Rhodes was not going to give him the raise . Further , Rhodes finally told Pamplin he couldn 't give him a raise until after the election . Pamplin had his wife , who worked in the plant , sign a union card. Rhodes asked Pamplin about his wife 's signing, and Pamplin said he had had her do it because Rhodes wasn't living up to his promise to give Pamplin the raise . Pamplin said also that if he didn ' t get the raise he himself was going to sign a union card; and he did so at a union meeting the following Thursday with 60 or 70 present. Then he told Rhodes he had done so. After he signed the union card Pamplin "started taking a big part in it." He went to employees' homes at night with union representatives and tried to persuade them to sign up for the Union. Rhodes testified that he had complaints from a couple of women employees that their husbands were mad at them because Pamplin had come to their homes at night soliciting union cards. In addition Pamplin gave out cards to employees at breaktimes. Once Superintendent Rhodes handed Pamplin a list of questions to "incriminate" the Union; and Rhodes told Pamplin to go down to the Union and ask for his card back since the Union said it would give cards back to those who wanted them, and that this would test whether the Union was so straight and honest. Once Rhodes told Pamplin, according to Pamplin's testimony, that his "so-called friends," the "people you have been giving cards to, they weren't your friends because they have turned them in. I have eight cards turned in that you gave out to get signed." On the witness stand Rhodes admitted that some employees brought him union cards. Pamplin had given eight cards to a member of the cleanup crew, Parris Clark, who worked after shift hours, but several times when Pamplin went into the breakroom to meet Clark on his break and get the signed cards back, Clark put him off and said he would have them the following day. Clark never returned the cards. The foreman of the cleanup crew, Earnest Martin, told Rhodes that Pamplin had been passing out cards to the cleanup crew. W. B. Woosley, chairman of the board, heard about it from Rhodes and then talked to Martin about it. On the witness stand Martin admitted that he had not seen Pamplin doing it, and that his only source of information was that one man in his crew had asked him if he knew that Martin was out there passing out cards. No one complained to Martin that Pamplin was bothering them or interrupting their work. Martin saw Pamplin talking to one man who was supposed to be working. On Sunday, April 6, 5 days before his discharge, Pamplin was at the plant twice to check on the knives to see if they needed sharpening and to try to borrow some plumbing to clean out a sewer line. He sometimes worked several hours on Saturdays or Sundays sharpening knives. On this occasion, according to the credited testimony of W. R. Ray, the weekend night watchman and a credible witness, the first time Pamplin went in the plant he said he was going to sharpen knives for a while. On the second visit Pamplm went in to call Rhodes to ask to borrow some plumbing equipment . Ray credibly testified that both times Pamplin was in the plant the cleanup crew was there . Shortly after Pamplin came out the second time and he was talking with the night watchman and another person dust outside the employees ' entrance, Woosley drove up and asked Pamplin what he was doing there . Pamplin told him. According to Ray, Woosley asked Pamplin if he had handed out union cards and Pamplin replied he had, although the question and answer did not necessarily relate to that day. Woosley testified that he spoke to Pamphn as follows: Now, Jerry, you didn't come down here to sharpen knives, you didn 't come down here to get a thing to clean your toilet out with; you came down here to sign up the rest of the clean-up crew . You were down here last Wednesday night, I believe it was, when you weren 't supposed to be here , you weren 't authorized to be down here , and Earnest Martin , the foreman over the cleanup crew , told you to get out , you had no business down there and to quit talking to the employees. Finally he ran you out after you had signed a number of them up , and now you 've come down here this afternoon when you aren 't authorized to be here other than to sharpen knives when it's necessary. You don't have on knife sharpening clothes and I want you to get out. You came down here to sign the rest of them up and that 's against the rules and you know it. I want you to get out and stay out." I said, "Jerry, you've given enough trouble and caused enough trouble and I'm not going to put up with you much longer . I'm going to give you your last warning. If you cause any more trouble I'm going to fire you." That was roughly the conversa- tion. Ray's version of this conversation between Pamplin and Woosley was that Woosley said Pamplin had no business down at the plant when it wasn ' t working hours, when no one was working , that it was against the rules to hand the cards out to the "hands" and that "I ought to fire you right now, and if anything else comes up I'm going to fire you." Pamplin 's version was that Woosley pointed his finger at Pamplin and told him he was "breaking the law down there giving out union cards" and that Pamplin knew he was breaking the law. Then Woosley said , "I am warning you in front of witnesses . . . one more mistake, one more slip-up, and you are gone . . . We are going to fire you." Pamplin added, "I stood there and I said `yes, sir' and `no , sir,' and he turned around and left." On Thursday, April 10, the day before his discharge, Woosley was passing out back wage checks to employees pursuant to a wage and hour investigation. When Pamplin was called in for this purpose and after Woosley had given him his check and asked him to sign a receipt for it, Woosley added that if Pamplin didn't trust him he could take the receipt to Jack Davis, the union representative, or the attorneys for the Union, and have them look it over, and then come back and get his check. Woosley also accused Pamplin of starting the rumor in the plant that there were no people working there but "niggers and poor white trash ," and that Pamplin also started the rumor "about them putting a fence around the plant and charging $5 a month for parking space." 700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On Friday, April 10, Pamplin was called into a conference room in the office and discharged by Woosley and Rhodes . The testimony is in conflict as to which one did the actual firing , but the resolution of the case does not require resolution of this conflict . They were both in on the decision to discharge Pamplin and the decision was made by the chairman of the board. Pamplin was told that he was being discharged for fooling around with a woman, who had complained. When Pamplin asked who it was, Woosley and Rhodes both refused to reveal her identity. She was a new employee named Carol Williams, with whom Woosley and Rhodes had talked that morning and from whom they had obtained an affidavit. Some 3 days before Foreman Garland Bates saw Pamplin passing out some union cards in the plant, and he told J. W. Patterson, an employee, according to the latter's uncon- tradicted testimony, that he might get rid of Pamplin for passing out union cards. On the morning of the discharge prior to the discharge, Foreman Bates saw Pamplin talking to Patterson in the presence of Carol Williams. After Pamplin had left the spot Bates asked Patterson what Pamplin had said. Patterson replied that Pamplin had asked Patterson how he would like to have some of that. Bates replied, according to Patterson's undenied testimony, "That's a good excuse, we want to get rid of him anyway." In Patterson 's presence Bates then asked Williams, "Would you go to the office and sign a complaint on Jerry?" She replied, "No, I don't want to get nobody fired." Foreman Bates then told Superintendent Rhodes that Carol Williams wanted to talk to him, and Bates took her to Rhodes. Rhodes and Woosley then talked to her for about 30 minutes and the chairman of the board wrote the statement which she signed . Williams was 18 years old and married. She was hesitant and embarrased before them. Woosley told her he was old enough to be her grandfather. She told them that Pamplin bothered her, said bad things to her, put his hands on her, told her he wanted to bite her and kiss her, and asked her how she would like to go out in the bushes where they could have a lot of fun and do things. This was the substance of her affidavit. Carol Williams left Dixie's or Respondent's employ some weeks or months after Pamplin's discharge. One day thereafter she and Pamplin met accidentally downtown. She told him she was sorry about his losing his job and that if there was anything she could do to help, to let her know. He told her she could go up there and tell the truth. (Pamplin had learned from the Regional Office that Williams was the one who had complained against him.) She said that "Mr. Woosley and them . .. told her that if she changed her statement they would get her for perjury, and said she had a family and couldn't go to jail." Then Pamplin visited an attorney, told her that he had said they couldn't "get her" for perjury, and she went to the attorney with him and executed another affidavit retracting the statement she had given Woosley and Rhodes. In its brief Respondent contended that "the officers of Respondent acted in good faith in discharging Jerry Pamplin because of complaint of another employee concerning his improper advances toward her , and for no other reason." Three General Counsel witnesses , two men and one woman ,3 testified that it is commonplace for employees, men and women , to talk profanely and vulgarly among themselves and to joke and kid and tease each other concerning, among other things , sexual matters. They testified in detail concerning the language and actions indulged in by some employees and one foreman . Some of this took place while work was proceeding , but the employees were freer for talk and horseplay during breaktimes and when the production line was halted for some reason , as occasionally happened . Once in the breakroom in the presence of several employees including a woman , Superintendent Rhodes uttered a vulgar expression involving the woman. The plant employed approximately 250 employees , about half of whom were Negroes and half of whom were women. Respondent 's testimony was that although there was some vulgar talk, it was not a usual thing , and that many employees didn ' t do it at all . However , Superintendent Rhodes testified that " I constantly talked with the foremen about . . . dirty talk.. .." He admitted that when women are working together their talk is just as rough as men's and they use vulgarity just as regularly as men do. Rhodes testified that once about 3 years ago a female employee threatened to stick a knife in Pamplin because he pinched her on the breast. Respondent did not discharge Pamplin for this act or the girl for the threat. Rhodes told of reprimanding Pamplin once over a verbal advance he made toward a Negro female employee, which Pamplin volunteered he had made . On this occasion Rhodes' concern related to the possible racial problem that could arise . Rhodes did not discharge Pamplin for this. Rhodes testified that about 2 weeks before the discharge one Pat Bowen , a female employee , complained to Rhodes that Pamplin was bothering her, that Pamplin asked her "Do you love me?" and said dirty things to her. Rhodes asserted that he reprimanded Pamplin over this incident. Pamplin had previously testified on direct examination that Respondent never reprimanded him concerning his con- duct with the employees, for using profanity, or for joking or teasing or "propositioning" any employee. Noteworthy is the fact that in his affidavit dated May 26, 1969, Rhodes gave a completely different version of this alleged complaint of Pat Bowen . In cross-examining Pamplin, Respondent asked him about his advances toward Carol Williams but asked nothing about his alleged approaches to Pat Bowen. Concerning reprimanding Pamplin, Rhodes testified further that, I talked with Jerry about two or three things approximately two weeks, I guess, before his discharge. At this particular time I talked with him about talking dirty and arguing with people on the line which he was sharpening knives for and the fact of not being careful and calling Negroes niggers , and at the same time I talked to him again about his drinking. Of note is that Rhodes did not warn Pamplin that his job was at stake or that any recurrence would cost him his job. Nor did Rhodes put any adverse report in Pamplin's 3 Jerry Pamplin , J. W. Patterson , and Pearlee M. Mays. OCOMA FOODS COMPANY personnel file concerning the Bowen matter or anything else mentioned in the quotation above. In fact the only warning notice in Pamplin's personnel file, according to Rhodes' testimony, was one for excessive absenteeism. There was testimony as to Pamplin's shortcomings during his 7-year term of employment, but Dixie put up with him despite them, and as Pamplin and Rhodes were friendly, Rhodes' comments to Pamplin about his behavior appeared to have been more in the nature of friendly advice than of official warning. Pamplin was a good worker and performed an important function as a knife sharpener. CONCLUSIONS The entire record showed Dixie's deep hostility toward the Union. Upon the preponderance of the evidence in the entire record considered as a whole I believe and hold that Dixie discharged Pamplin because of his union activities and to discourage other employees from supporting the Union. When he learned about the union campaign Superintendent Rhodes seized upon Pamplin's easy way among the employees and his strong desire for a raise by promising him a raise if he would inform on the Union. When Pamplin later turned on Respondent and started organizing for the Union because he didn't get the raise, Dixie sensed in him a strong antagonist. Dixie was so interested in Pamplin's efforts to sign up employees that the chairman of the board asked the foreman of the cleanup crew what he knew about it; and 5 days before the discharge Woosley evicted Pamplin from the plant area and threatened to fire him for signing up employees into the Union contrary to the "law" or the "rules." 4 Three days before the discharge Foreman Bates told an employee he might get rid of Pamplin for passing out union cards. Admitting to an employee that Dixie wanted "to get rid of" Pamplin, Foreman Bates seized upon a vulgar expression uttered by Pamplin in the presence of an 18-year-old married female employee as a vehicle to carry out Dixie's desire. Although vulgarity is not to be condoned and the Board does not condone it, there was plenty of it in the plant to the knowledge of management and no one had ever before been discharged for it. Against her will the foreman took the 18-year-old employee to the office where she was subjected for 30 minutes to the interrogation of the head of the business with all the authority of the chairman of the board, and of the plant superintendent, under which circumstances she signed a statement written for her by Woosley. Insofar as the record showed this was the only such episode participated in by the chairman of the board, who testified that less than one-tenth of 1 percent of employee complaints get to him for action. The decision to discharge Pamplin was then made without first giving him an opportunity to deny or explain the allegations against him. Upon all the evidence I hold that Dixie seized upon the Williams' incident as a pretext to rid itself of a turncoat prounion antagonist, in order to discourage further 4 The record contained no proof of any no-solicitation rule by Dixie and no proof that any such rule was lawful if it existed The settlement notice provided that Respondent "will not prohibit our employees, during nonworking time, from soliciting their fellow employees to join or support the above-named Union, or any other union " 701 employee support for the Union, Dixie thereby violating Section 8(a)(3) and (1) of the Act.5 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with Respondent's opera- tions 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 As Respondent, Ocoma Foods Company, did not commit the violations found above, the question arises as to its responsibility to mitigate the effects of Dixie's unfair labor practices and to restore to employees the free exercise of their rights guaranteed by the Act. As has been seen above, Consolidated Food Corporation took over from Dixie all of Dixie' s assets in exchange for common stock of Consolidated; and thereafter Consolidated's wholly owned subsidiary, Respondent, has operated the plant. Beyond question Respondent took over operation of the plant with notice of Dixie's unfair labor practices, for these were committed by the plant superintendent, Rhodes, who served in that capacity for Dixie and continued in that capacity with Respondent; and by W. B. Woosley, chairman of the board of directors of Dixie and an advisor and consultant to Respondent. The record does not reflect whether Dixie is still in existence as a corporation, but in any case Dixie has no assets. Superintendent Rhodes testified that at the time of the hearing Respondent employed at the plant approximately 350 to 360 employees; and that during Pamplin's 7 years of employment Dixie employed at the plant approximately 250 employees, including service people such as knife sharpeners and packing department employees and mainte- nance employees. As it is the same business now as then Respondent now employs knife sharpeners who perform the function Pamplin was performing for some 8 months prior to his discharge. The parties stipulated that since June 3, 1969, the takeover date, Respondent has "been in charge of the . . plant . . . and has carried on the . . . plant as a going concern." In the light of the entire record, and in the absence of any suggestion to the contrary, I conclude that Respondent retained the approximately 250 employees of Dixie when it took over the plant, and has added to the existing complement of employees. As Dixie has no assets, as Respondent took over the plant and business with no interruption, retaining the same employees, and as those who committed the unfair labor practices, particularly Rhodes, are still in high position with Respondent and therefore Respondent took over the plant with knowledge of the unfair labor practices, it seems 5 This conclusion is not altered by the fact that at the termination interview Pamplin signed. at the invitation of Rhodes. a paper giving the reason for the termination as "misconduct connected with other employees " 702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD impelling to me that mitigation of the effects of the unfair labor practices and restoration of the free exercise of Section 7 rights requires that Respondent should not only reinstate Pamplin with backpay but should also post an appropriate notice.6 Accordingly, Respondent will be required to offer Jerry Pamplin reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges, and to make him whole for any loss of pay suffered by reason of the discrimination by paying to him a sum of money equivalent to the amount he normally would have earned as wages from the date of his discharge, April 11, 1969, to the date of the offer of reinstatement, less his net earnings during such period. The backpay shall be computed on a quarterly basis in the manner prescribed by the Board in F. W. Woolworth Company, 90 NLRB 289, with interest thereon at 6 percent as ascertained by the formula adopted in Isis Plumbing & Heating Co., 138 NLRB 716. As provided in the Woolworth case, I recommend further that Respondent make available to the Board, upon request, payroll and other records in order to facilitate the checking of the amounts of backpay due. Upon the basis of the foregoing findings of fact and the entire record in the case, I make the following: CONCLUSIONS OF LAW earnings suffered by reason of the discrimination against him. (b) Notify Jerry Pamplin 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. (c) Preserve and, upon request, make available to the Board or its agents , for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Recommended Order. (d) Post at its poultry processing plant in Shelbyville, Tennessee, the attached notice marked "Appendix." 7 Copies of said notice, on forms provided by the Regional Director for Region 26, after being duly signed by Respondent's authorized 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. (e) Notify said Regional Director, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith .8 1. Ocoma Foods Company, of Shelbyville, Tennessee, is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Retail , Wholesale , Department Store Union, AFL-CIO , is a labor organization within the meaning of Section 2(5) of the Act. 3. By discriminatorily discharging Jerry Pamplin on April 11, 1969, because of his union activities, and to discourage further employee support for the Union, Dixie Home Corporation violated Section 8(a)(3) and ( 1) of the Act. 4. On June 3 , 1969, Respondent took over the plant, assets, and business of Dixie Home Corporation , and has since that time run the business and operated the plant. 5. The aforesaid 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 in order to mitigate the effects of Dixie Home Corporation's unfair labor practices and to restore to employees the free exercise of their rights guaranteed by the Act, I recommend that.Ocoma Foods Company, of Shelbyville, Tennessee, its officers, agents, successors, and assigns, shall take the following affirmative action, which I find will effectuate the policies of the Act: (a) Offer to Jerry Pamplin reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole in the manner prescribed in the portion of the Trial Examiner's Decision entitled "The Remedy" for any loss of 6 Cf. Perma Vinyl Corporation, 164 NLRB 968 , enfd. 397 F.2d 544 (C.A. 5); Thomas Engine Corporation, 179 NLRB No. 165. r In the event no exceptions are filed as provided by Section 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations , and Recommended Order herein shall, as provided in Section 102.48 of the Rules and Regulations, be adopted by the Board and become its findings , conclusions, and order, and all objections thereto shall be deemed waived for all purposes . In the event that the Board 's Order is enforced by a judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 8 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 EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL offer to Jerry Pamplin immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority and other rights and privileges previously enjoyed, in accordance with the recommendations of the Trial Examiner's Decision. WE WILL notify Jerry Pamplin 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. OCOMA FOODS COMPANY 703 WE WILL make whole Jerry Pamplin for any loss of pay suffered by him by reason of the discrimination practiced against him , in accordance with the recom- mendations of the Trial Examiner 's Decision. OCOMA FOODS COMPANY (Employer) Dated By (Representative) (Title) THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE. 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. Any questions concerning this notice or compliance with its provisions , may be directed to the Board's Office, 746 Federal Office Building, 167 North Main Street , Memphis, Tennessee 38103, Telephone 901-534-3161.