
    NATIONAL LABOR RELATIONS BOARD, Petitioner, v. TEXAS ALUMINUM COMPANY, Inc., Respondent.
    No. 19067.
    United States Court of Appeals Fifth Circuit.
    May 30, 1962.
    Marcel Mallet-Prevost, Asst. Gen. Counsel, N. L. R. B., Dominick L. Manoli, Assoc. Gen. Counsel, N. L. R. B., Elliot Moore, Atty., N. L. R. B., Washington, D. C., for petitioner.
    Carl B. Callaway, Joe P. Mathews, Dallas, Tex., for respondent.
    Before HUTCHESON, CAMERON and GEWIN, Circuit Judges.
   PER CURIAM.

In deference to respondent’s earnestness in attacking as erroneous the announced conclusion of our opinion:

“There is no evidence whatever that there was any more loafing or interfering with the working time of other employees than would have been the case if the company had not adopted the rule or had maintained a regular rest period. Indeed, there was no attempt to make such proof.”

we have carefully reconsidered the conclusion in the light of its motion for rehearing, and we are the more convinced of the correctness of our conclusion by the failure of the motion to point to any evidence contrary to our conclusion and by the apparent failure of respondent’s counsel to understand and reply to what we hold. We did not say that the no solicitation rule was not void. We said and say that there was no evidence that the existence of the practice of having no fixed rest period required or authorized the promulgation of the restrictive rule. This statement impliedly included in it not only the absence of evidence that the adoption of the no rest period practice produced more interference with workers than had existed theretofore, but that the situation, whatever it was, was not sufficient to justify the adoption of the broad rule 31. Evidence that Mr. Rabun, the union representative, advised the employees that they were not obliged to obey the rule is not in any sense in conflict with our findings and conclusions. Indeed it is in complete accord with them.

The petition for rehearing is

Denied.  