Joseph Horne Co.

754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Joseph Horne Co. and Retail Clerks International Association, Retail Store Employees Union Local 1407, AFL-CIO. Case 6-CA-4826 November 24, 1970 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND JENKINS On June 26, 1970, Trial Examiner Lowell Goerlich issued his Decision in this proceeding, finding that 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 Lxaminer's Decision. The Trial Examiner also found that Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended that the complaint be dismissed as to them. Thereafter, the General Counsel and Respon- dent filed exceptions to the Trial Examiner's Decision and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this proceeding 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 briefs, and the entire record in the proceeding, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner to the extent consistent with this Decision. The Trial Examiner found that Respondent violated the Act by maintaining an invalid no-solicitation rule,' threatening to discharge an employee if she should engage in union activity, and by discharging an employee for engaging in union organizing activities. We affirm these findings but rely on a more limited rationale than the Trial Examiner in conclud- ing that the discharge was illegal. We find it unnecessary to reach the Trial Examiner's alternate finding based on his interpretation of American Ship Building Co. v. N.L.R.B., 380 U.S. 300. Ruth M. Klaus, a regular part-time clerk, was employed by Respondent from November 1965, until r The Respondent excepts to the Trial Examiner's finding that the rule violated Section 8(a)(3) since the complaint alleged that it violated Section 8(a)(l) and a violation of Section 8(a)(3) was not proved in this respect. This was obviously a typographical error and is hereby corrected. Respondent also argues that the rule is ambiguous and that, though the rule may technically be unlawful , its supervisors were instructed to permit lawful union activity and that the rule was not applied in an unlawful manner. We do not agree that the rule is ambiguous ; it broadly prohibits her discharge on November 24, 1969, allegedly for a failure to comply with Respondent's credit authoriza- tion procedures which permitted an impostor using a stolen credit card to defraud the store of some $23. Since August 1969, Klaus had been engaged in union activities and at the time of her discharge was the leading union advocate in the Respondent's store, having solicited approximately 40 clerks and obtain- ing some 30 signed authorization cards. On October 10, 1969, Klaus sold a $23 piece of luggage on credit without obtaining the required authorization. On November 1, 1969, the store manager, James Clagg, was advised by the assistant credit manager that the owner of the card denied any knowledge of the transaction. Clagg contacted Hazel Pizzano, personnel manager, had her investigate and, upon determining the identity of the clerk involved, told Pizzano to review the matter and find out what Klaus' attitude was. Pizzano later reported that Klaus had shown great concern and offered restitution. Clagg testified that because Klaus was a rather long- time employee he decided to obtain more information and contacted John Blakeley, credit sales manager, for a fuller investigation and his opinion. On November 22, 1969, the day of the discharge, Clagg received a memo from Blakely which, inter alia, stressed the seriousness of the offense. Clagg then determined to fire Klaus but first contacted Robert Neil, labor relations manager, and Larry Stoneberg, vice president and operating superintendent to confirm his decision. Thereafter, Clagg called in Klaus, reviewed the situation, declined her offer of restitution, and terminated her, but upon her inquiry about references gave her his card. Based on the credited testimony, he told her at this time that he would give her the best of references. We agree with the Trial Examiner's finding that the Respondent was well aware of Klaus' union activities. In particular, we find that any doubt Respondent might have had concerning Klaus' union involvement was removed on November 20, when Thomas Best asked Thomas Palmer, Klaus' supervisor, where she was and then identified himself as a union organizer when Palmer, whom Best did not know, asked if he could help. Respondent's animus toward the Union is amply demonstrated by its threat (found to be a violation of 8(a)(1)) to discharge employees for engaging in lawful union activity. The pretext for her discharge, though plausible standing alone, becomes any unapproved solicitation on company property or time. The fact that supervisors were instructed to permit lawful union activity and the absence of evidence that the rule was enforced unlawfully are irrelevant in this context, since there is no evidence that this information was communicated to employees. A no-solicitation rule which is overly broad, whether enforced or not, has an inhibiting effect on lawful organizational activities and is therefore illegal. 186 NLRB No. 104 JOSEPH HORNE CO. 755 tenuous when viewed in the light of the evidence relating to Respondent's authorization practices and problems. Respondent continually urges that this is the only case of fraud Clagg had encountered and that Klaus' failure to follow procedure not only cost the store $23 but also deprived it of the opportunity to recover a stolen card and apprehend a felon. That the Respondent was genuinely concerned with the failure of employees to follow authorization procedures is established beyond doubt by the record. It is also well established, however, that this concern stemmed from the fact that failure to follow such procedures was almost a way of life for its employees; a yet up to Klaus' discharge no employee was fired for this offense. Failure to obtain authorization was the subject of numerous memoranda, from the credit sales manager to store managers, which almost invariably requested that violations detected by spot checks be reviewed with the sales clerks involved but did not mention possible discharge. In a memorandum of April 9, 1970, certain categories of violation are discussed, including "Lost or Stolen Plate" which is identified as a category separate from "Fraud," although the only difference which appears from the definitions given is that fraud may refer only to those instances where the company had concluded that the transaction did in fact involve someone other than the rightful owner. In both cases a card has been reported as lost or stolen and has subsequently been used to make a purchase. The memorandum recites that an analysis of transactions in Respondent's stores on March 21, 1970, showed there were 25 charges involving a lost or stolen card and that they could result in a direct loss to the Respondent. Thirty-five violations of authorization procedures in other categories, which are said to be almost certain losses or to entail litigation or collec- tion expenses, are also recited. This was in a single day, one which showed a "marked improvement." It is extremely difficult to accept Respondent's contention that Klaus' discharge stemmed from the result of her failure to obtain the required authoriza- tion. Presumably, credit authorization procedures exist to prevent the very situation Klaus found herself involved in, and anyone violating the procedure runs a risk that the violation will result in a loss to the Respondent. Respondent certainly is not running a roulette game where an employee bets his job on whether or not his failure to follow procedure will result in a loss. Logically, the seriousness of the offense turns not on the actual result but on the average result of such an offense. That Respondent in fact recognizes this is demonstrated by its continuing concern with violations of its procedures whether or not they actually result in losses. What Klaus did was no more, nor less, serious than what other employees did who improperly processed transactions which, fortuitously, did not result in any loss and, a fortiori, were certainly no more serious than other authorization violations which caused losses to the Respondent but did not result in the employees involved being fired. The reason Respondent gives for Klaus' discharge is not believable in the light of the record. Clagg' s initial stress on Klaus' reaction when confronted with her mistake, coupled with his later disregard of it along with her offer of restitution, might otherwise be passed off as the kind of human inconsistency which results from a change of mind upon consideration, but in context it is strong circumstantial evidence of unlawful motivation since her discharge followed soon after credited testimony establishes that Respon- dent gained positive knowledge of her union activity. Respondent's union animus is established by its threat, fulfilled here, to discharge any employee found engaged in union activity. We find, in agreement with the Trial Examiner, that Klaus' discharge violated Section 8(a)(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 Recommend- ed Order of the Trial Examiner, as modified herein, and hereby orders that the Respondent, Joseph Horne, Co., Bethel Park, Pennsylvania, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as modified below: 1. Delete paragraph 1(b) of the Trial Examiner's Recommended Order and substitute the following therefor: Maintaining a no-solicitation rule which prohibits employees from soliciting for a union during their nonworking hours in nonselling areas of the store. 2. Delete paragraphs four and five from the Appendix attached to the Trial Examiner's Decision and insert the following therefor: WE WILL NOT maintain a no-solicitation rule which prohibits our employees from soliciting for a union during their nonworking hours in nonsell- ing areas of our store. WE WILL NOT threaten to discharge employees for engaging in lawful union activity. 2 At the store where Klaus was employed the failure to obtain authorization ranged from 15 to 35 percent on the days for which data are available At one store the high reached 46 percent TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE LOWELL GOERLICH , Trial Examiner : A charge was filed by Retail Clerks International Association, Retail Store 756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Employees Union Local 1407, AFL-CIO, on November 26, III . THE UNFAIR LABOR PRACTICES 1969, and was served on the Joseph Horne Co., the Respondent herein, by registered mail on November 26, 1969. A complaint and notice of hearing was issued on March 26, 1970, in which it was alleged that the Respondent had violated Section 8(a)(1) of the National Labor Relations Act, as amended, herein referred to as the Act, by threatening discharge of employees for participat- ing in union activities and by unlawfully interrogating employees as to their union membership , activities, and sympathies . Without objection the complaint was amended by including another incident of unlawful interrogation and an allegation charging that the Respondent had maintained in effect an invalid no-solicitation rule. In the complaint it was also alleged that the Respondent had violated Section 8(a)(3) of the Act by discriminatorily discharging employee Ruth M . Klaus on November 22, 1969. The Respondent filed timely answer denying that it had engaged in or was engaging in any of the unfair labor practices alleged. The case came on for hearing on April 30 and May 1, 1970, at Pittsburgh, Pennsylvania . Each party was afforded a full opportunity to be heard , to call, examine, and cross- examine witnesses, to argue orally on the record, to submit proposed findings of fact and conclusions, and to file briefs. All briefs have been carefully considered by the Trial Examiner. Upon the whole record and upon his observation of the witnesses the Trial Examiner makes the following: FINDINGS OF FACT, CONCLUSIONS, AND REASONS THEREFOR 1. THE BUSINESS OF THE RESPONDENT The Respondent is a Pennsylvania corporation engaged in the retail sale of goods and appliances at its various retail stores located in the State of Pennsylvania. During the 12- month period immediately preceding the issuance of the complaint Respondent had a gross volume of business in excess of $500,000 and received goods and materials valued in excess of $50,000 for use at its Pennsylvania retail outlet directly from points outside the State of Pennsylvania. At all times material herein the Respondent is and has been an employer as defined in Section 2(2) of the Act engaged in commerce and operations affecting commerce as defined in Section 2(6) and (7) of the Act, respectively. H. THE LABOR ORGANIZATION INVOLVED Retail Clerks International Association, Retail Store Employees Union Local 1407, AFL-CIO, herein referred to as the Union, is now and has been at all times material herein a labor organization within the meaning of Section 2(5) of the Act. The No-Solicitation Rule The General Counsel claims that the following rule is an invalid no-solicitation rule, viz: SUBJECT: SOLICITATIONS OFEMPLOYEES POLICY: EXCEPT UPON APPROVAL OF THE OPERATING COMMITTEE, NO SOLICITA- TIONS OF EMPLOYEES FOR ANY PUR- POSE SHALL BE PERMITTED ON COMPA- NY PROPERTIES OR ON COMPANY TIME. The Company will cooperate in fund-raising campaigns for recognized charitable organizations which have been approved by the Operating Committee. Management will provide for payroll deductions for employees who wish to participate in such fund-raising efforts. No other solicitation of any kind will be permitted on Store properties. The rule appears in a Joseph Horne Co. booklet entitled "Personnel Policies and Procedures" which is distributed to the Respondent's employees. The booklet contains a letter addressed to "Dear Co-Worker" which among other things states, "On the following pages you will find those policies which most affect you. . . . Please read them carefully so that you will know what we can expect of you and what you may expect from us." The record is barren of any credible evidence to the effect that the rule above set forth has been changed or amended in any way or is not administered as written. Thus, the Trial Examiner finds that the rule as written was maintained in effect at all times material herein. In view of the Board's holding in Peyton Packing Company, Inc., 129 NLRB 1275, 1280, 1281, the rule is unlawful on its face. In the Peyton Packing Company case, supra, a rule which provided "The only soliciting allowed at [the] plant will be for the United Fund or other recognized and established charities, and these must be approved by the Company. No other soliciting of any kind will be allowed," was declared "an unlawful restriction upon the rights of employees to self-organization" and that by promulgating said rule, to the extent that it was applicable to nonworking time, Respondent interfered with, re- strained, and coerced its employees in the exercise of the rights guaranteed by Section 7 of the Act, within the meaning of Section 8(a)(1) thereof. The Trial Examiner finds no substantial variance between the Peyton Packing Company rule and the rule in the present case. While it is true that an employer may promulgate and enforce a rule prohibiting union solicitation during working hours, time outside working hours is an employee's time to use as he wishes without unreasonable restraint, although the employee is on company property. N.L.R.B. v. Illinois Tool Works, 153 F.2d 811, 814 (C.A. 7). The Respondent's rule clearly bars union solicitation on company property during the employees' nonworking time "except upon approval of the operating committee." Additionally the credible record reveals no need for such a rule in order to JOSEPH HORNE CO. 757 maintain production or preserve discipline on the Compa- ny's premises.' Under these circumstances the rule is not saved by the proviso "except upon approval of the operating committee" for the rule, as reasonably construed, might well deter an employee from engaging in union activities on company property during nonwork time or cause the employee to believe that he was acting at his peril by engaging in union activities (such as soliciting another employee) on company property during nonworking time. N. L. R. B. v. Illinois Tool Works, supra, 814; N. L. R. B. v. Walton Mfg. Co., 289 F.2d 177, 180-181 (C.A. 5) Accordingly the Respondent by maintaining in effect an invalid no-solicitation rule is in violation of Section 8(a)(3) of the Act. Other Alleged 8(a)(l) Violations First. During June 1969 Ruth M. Klaus, the alleged disciiminatee, employee Gladys Nedzesky, and Clarence Flowers, an admitted supervisor, were "talking about different subjects." According to Klaus, she commented, "Cal, I wish to God we could get a Union in this store, so we would be treated like human beings." Flowers replied, .. don't talk about it, because my orders are if anybody is caught talking about it, or discussing it, they were to be fired immediately."2 About 3 weeks before November 22, 1969, the date Klaus was discharged, Klaus told supervisor Flowers ". . . guess what, we're getting a Union in here." Flowers replied, "You are?" "Yes," Klaus responded. Whereupon Flowers asked Klaus if she had signed a card Klaus answered in the affirmative. Flowers said, "I don't think anybody in my department has signed up, at least that I know of." 3 In agreement with the General Counsel the Trial Examiner finds the words used by Flowers constituted a threat of discharge of employees who engaged in lawful union activity and was in violation of Section 8(a)(1) of the Act. On the other hand in disagreement with the General Counsel, the Trial Examiner views the interrogation by Flowers as a natural reaction to an employee's voluntary communication to him, viz. "we're getting a Union in here." In fact the question appears superfluous since the answer sought by the question is obvious from Klaus' opening remark. Under these circumstances the interrogation did not interfere with, restrain, or coerce employees in the exercise of rights guaranteed in Section 7 of the Act. Second- Wilma Parker testified that Mildred McCudden, an admitted supervisor, asked her on December 11, 1969, if she had heard anything about the union. Parker answered, "Yes." Whereupon McCudden asked her if she thought it would get in. Parker answered that she didn't know; that all she knew was that the Union passed out pamphlets. McCudden's version differed. She testified that Parker mentioned that she had been approached to sign a union card and she didn't know what to do. She asked McCudden what she should do. McCudden replied ". . . you don't stand to gain any benefits by signing one, you already have them, but this decision is entirely yours."4 The Trial Examiner is uncertain as to which version actually reflects the true facts. Thus the Trial Examiner finds against the General Counsel on the issue. The Discharge of Ruth M. Klaus First • The Union commenced an organizational drive of the Respondent's South Hills Village Store in early August 1969 at which time Thomas Best, an organizer for Local 1407, commenced distributing union literature at the Respondent's employees' entrance. On the second morning, as Best and Russel Klapach, another union organizer, were passing out union literature at the employees' entrance, Robert Neil, director of personnel, approached the organizers and asked them what they were doing. Best, who was acquainted with Neil, replied that it was none of Neil's business but continued, "We are out to organize this store." Neil left but soon returned with a barrel marked "Trash" which he placed at the employees' entrance. Thereafter Neil and South Hills Village Store Manager James Clagg "[stood ] on the top landing watching people go to work." Some time in October, Neil appeared at the store again and asked the organizers what they were trying to do. Best replied, ". . . we know the law and you know the law and if we are violating the law, call the police." 5 Second: Ruth M. Klaus was a regular part-time clerk who since November 1965 had been employed at the Respon- dent's South Hills Village Store. Except for the incident upon which her discharge was predicated she had been a satisfactory employees At the time of her discharge on November 22, 1969, she was employed in the patio department. Her supervisor was Thompson Palmer. Prior to August 1969 Clarence Flowers had been her supervisor. Klaus first met Union Organizer Best in August 1969 outside of the employees' entrance at which time she introduced herself to him and asked him if he could help the employees because they needed a union. Best suggested that Klaus contact him. Approximately a week later Klaus and Best met in the coffeehouse in the mall wherein the I Since the rule barred union solicitation on company property during the employees' nonworking time the burden was on the Respondent to demonstrate that the rule was necessary for production or discipline NLRB v Varo, Inc, 74 LRRM 2096 (C A 5) 2 Gladys Nedzesky testified, " the subject of the Union came up and Mr Flowers told us that he had orders to fire anyone who joined the Union or report them to be fired" 3 Flowers denied that he had mentioned union to Klaus or engaged in the conversation above detailed The Trial Examiner has examined the demeanor of Klaus, Flowers, and Nedzesky in the light of the testimony and the record as a whole and concludes that Klaus and Nedzesky were credible witnesses On the other hand Flowers left the Trial Examiner with a strong conviction that Flowers was dissembling 3 Parker remembered that McCudden had said, "We were getting as much as downtown anyway and it's up to you whether you believe in it or not, or not believe in it, but would be for or against it, the Union " ., The foregoing findings are based upon Best's uncontradicted testimony Neil did not appear as a witness His unexplained failure to be called warrants the inference that, if his testimony had been adduced, it would not have been favorable to the Respondent Interstate Circuit v United States, 306 U S 208, 225, 226, N L R B v Wallick and Schwalm Company, 198 F 2d 477, 483 (C.A 3), N L R B v Ohio Calcium Co, 133 F 2d 721 (C A 6) Clagg testified but did not touch on these subjects 6 Store Manager Clagg characterized Klaus as a "satisfactory employee " Merchandise Manager Shawman told Klaus that her "sales had been good," and that she should "keep up the good work " Section Manager Palmer informed Shawman that Klaus had been "very conscientious" in her work Shawman had promised Klaus a raise in pay in February 1970 758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD South Hills Village Store is also located. Best gave union applications to Klaus and "told her to contact people and to start signing them up and mail them back." In September 1969 Best asked Klaus to form a committee and informed her that two people inside the store were working for the Union, one in men's clothing and the other in the foundation department. Such a committee was formed which met in October 1969 at the Pioneer Inn Restaurant. At this meeting Klaus handed Best some signed applica- tions which she had obtained that week. Organizing procedures were discussed. Until her discharge Klaus maintained her contacts with Best. Klaus solicited approximately 40 clerks in about 10 departments? and obtained signed union applications from 30 clerks. During the week in which she was discharged she had obtained about 10 signed applications. In soliciting for cards, among other things, Klaus told employees that the "best thing" for employees to do so they "wouldn't have to do scrubbing in July would be to sign a Union up, because the Union would get in and help us." These solicitations took place "in the store in the departments on the floor .. . in the mall and outside of the mall and in the ladies room, and in Sun Drug." In November Klaus requested more application forms from Best. Best brought them to the store and handed them to her at her counter. She put them in her purse. Best visited Klaus on other occasions. His visits were observed by managerial personnel who knew his identity.8 As noted above in June 1969, Klaus had commented to Supervisor Flowers that "I wish to God we could get a Union in this store," and again in a conversation about 3 weeks before she was discharged she told Flowers she had signed a union card. On November 19, 1969, Klaus telephoned Best. She asked Best to bring her more applications and to pick up the executed ones she was holding. On the next day, after distributing leaflets between 9 and 10 o'clock at the employees' entrance, Best appeared in the store at the camera department and inquired of Supervisor Thompson Palmer whether Klaus was present. Palmer, Klaus' immediate supervisor, answered in the negative.9 Best also mentioned Thomas Braken, another employee. Thereafter, when Braken arrived at the store Palmer told him that a union man was looking for him and Ruth Klaus. Later employee Braken telephoned Klaus and told her "to keep the Union man away from [him]." Klaus then telephoned Best and "told him not to come in, because they were supposed to be waiting for him that night, the police were." Third: In August 1969, at a management meeting Clagg read a statement for "The Guidance of Supervisors and Executives" furnished by "the personnel department, in the downtown store," to which was attached a part addressed "To our Supervisors." The statement was also distributed to each "management person" in the store. Among other things it was recited, "It has come to our attention that certain Joseph Horne Co. employees have been solicited recently by a union to become members. We believe that it is our responsibility to tell them of their rights under the law and to express your company's point of view with reference to any union's objectives. . . . Should there be an election, we will ask your participation as supervisors to the end that our employees do not feel it necessary to be represented by any union in order to receive fair treatment as to their terms and conditions of employment." Under "Examples Of What You Can Say" supervisors were told: As supervisors, you should endeavor to provide equal supervision to all, but you should also feel free to express your point of view and to state the Company's viewpoint in your own manner of expression. 1. "Ever since the end of World War II, unions have won but a very few department store elections and have lost a great many. In several locations in this country, unions have been engaged in long and costly strikes." 2. "If unions are all that they claim to be, why is it true that their membership at our Main Store is lower than it has been for many years. Since 1950, many departments have withdrawn and considerably less than 50 [percent] of our employees are represented." 3. "You can be sure that the outsiders will tell you only that which they wish you to hear. They will not tell you the reasons why the unions have lost so many free, secret ballot elections, and about their record in many strike situations." 4. "Our employees have nothing to gain from participation in unions because it is long-standing company policy to maintain personnel conditions equal to or better than those of competitive stores in the area of each of the Horne stores. This policy includes any stores that may be unionized as well as those that are not." 5. "Ask the organizers and continue asking them what is the true situation about dues or assessments and possible compulsory union membership as a condition of employment as well as possible picketing duty, and even being called out on a strike. Do not be content with general answers." The Respondent further advised, "If an election should be held, we will also directly communicate with every one of our employees to give that side of the story which you can be sure they are not hearing from those persons outside of the store or within the store Fourth: On October 10, 1969, a person appeared with an Associates charge card issued to Minor Hawks and bought a piece of Grasshopper luggage for $23.32. Klaus, the clerk, allowed him credit without clearing the transaction through credit authorization. I Klaus testified that she solicited employees "on the patio, and toys, housewares, hardware, the drapery department, the service desk . . . in the gift department . . . in the yard goods department ... in men's clothing, and in men's accessories, and in the infant's department." 8 Clagg admitted that Best was in the store on at least one occasion. 9 The Trial Examiner believes that Best appeared at the store and asked for Klaus as he testified ; however, it is the opinion of the Trial Examiner that his memory was overactivated and that he in fact did not identify himself to Palmer. Palmer's lapse of memory was even more conjured than Best's activated recollection . Palmer testified that he had neither seen Best passing out union literature nor in the store. In view of the normal notoriety which attaches to a union representative distributing handbills together with Best's repeated presence at the employees' entrance distributing union handbills and in the store, Palmer's testimony is viewed as deliberate subreption . The Trial Examiner is convinced that Best approached Palmer who recognized Best and inquired for Klaus . The Trial Examiner has considered the demeanor of the witnesses and the uncontroverted testimony of employee Braken which is credited . Braken testified, "when I came in Tom [Palmer I told me that a Union man was in looking for me and Ruth Klaus." JOSEPH HORNE CO. 759 On November 1, 1969, Clagg received a telephone call from the assistant credit manager of the Respondent which was followed by the memorandum set out below. Attached is a photo copy of the transaction we discussed today. Please note: 1. Account number not written on salescheck, but is keyed in register??? 2. No authorization and over floor limit for no- carry. 3. No identification noted on salescheck. Our customer denies all knowledge of this sale. He claims he has not lived at that address shown for about two years. We can't dis-allow any fraud claims since we can't prove otherwise. Obviously, this will have to be written off as a loss. We will appreciate anything you can do on this to prevent a recurrence. Clagg received the memorandum on November 4, 1969. Clagg conferred with Personnel Manager Hazel Pizzano who upon investigation advised Clagg that Klaus was the clerk responsible for the sale. Clagg directed Pizzano to review the matter with Klaus and report the full details to him. Among other things he asked her to find out what Klaus' "attitude was towards it." On the same day Pizzano reviewed the matter with Klaus. Palmer was present. Klaus told Pizzano that the account number put into the register was from an Associates charge plate. According to Pizzano, she said, "Ruth, don't you know that that is wrong. . . . [Y]ou only put Horne's numbers into the machine . . . you know a Charge Associate's plate is used for identification only. Any sale over ten dollars, without a Horne's plate, you must call downtown for authorization." According to Pizzano, Klaus responded, "I do know that, I know I was wrong ... I have done it before, I don't know why I did it." 10 Pizzano told her "in the future to be more careful." Klaus asked Pizzano whether she could make restitution. Pizzano replied that she would take the matter up with Clagg. On November 10, 1969, Pizzano reported to Clagg. She related that Klaus had obtained the account number from an Associates charge plate and admitted that "she had done wrong, and she had done it before, and she didn't know why she did it, and she offered to make restitution." Pizzano also reported that Klaus "had shown great concern." Clagg said that "that would help." About 10 days later Pizzano told Klaus that she had talked to Clagg and "he was glad to know she had shown great concern." I I Upon the receipt of Pizzano's report, because Klaus was "a rather long time employee," according to Clagg, he "felt" that before he took action he should obtain additional information. He called John Blakeley, credit sales manager, and after advising him that Klaus was a longtime employee he wished him "to fully investigate this particular transaction." Clagg asked that the matter be investigated "more fully than what was in the information" 12 which had been submitted to him. He also asked for Blakeley's opinion. On Saturday, November 22, 1969, Clagg received the following reply, dated November 21, 1969: I have finished the review of the above mentioned charge as we discussed after you received A. L. Hassler memo regarding it. I had hoped to get this to you sooner, but I had several months film researched to get some signatures comparisons. The results are attached. What happened in this case is very serious and is a violation of Company policy and procedure. Under no circumstances should a salesperson do what was done. No authorization, no identification, and account number entered without the first two sources. As I mentioned to you on the phone we cannot have this happening or our entire sales procedure is in jeopardy. Clagg explained his reaction to the situation as follows: ... at that time I read his letter totally and the fact that he considered it a very serious charge transaction and so forth which has been read into the record. Taking this information and this exhibit four A [Blakeley's memorandum] into consideration, along with the facts presented to me by Mrs. Pezzino [sic], indicating that this was not a misunderstanding of the procedure but rather an intentional violation of our procedure, a violation which had taken place not once but many times, and the fact that she had been there many years and certainly had been exposed to all of the various bulletins and information regarding this particular type of transaction. I made the decision at that time that she should be released. [Emphasis supplied.] Clagg also conferred with Robert Neil, labor relations manager of the Respondent, and Larry Stoneberg, vice president and operating superintendent of the Respondent, sometime after Pizzano's report to him, but before Blakeley's November 21, 1969, reply. Clagg said he conferred with Neil and Stoneberg because it was "the first incident of this particular nature that had ever been brought to [his] attention," that is to say "the account number was not written on the sales check but was keyed into the register. No authorization on an over the floor limit and no identification noted on the sales check and also the charge associates plate had been used." 13 Clagg talked to 11 Klaus testified A Well Mrs Pezzino [sic] came down with the sales slip she showed it to me, a copy of it And she said is that my number on the sales slip and I said yes She said to me, you sold this luggage, and I said yes and then she asked me where I got this number that I rang on the register and I said from an Associates Charge a Plate and she said to me, why didn't you get authorization, and I said because it was under fifty dollars, and she at that time said, well it has been changed to ten dollars and I said I'm sorry, but I didn't know that She said that the man had said that he did not buy the luggage and he would not pay for it, and so I asked her if she was doubting the sale, the legitimate sale, by that I asked her if she meant that I took it or sold it to my friends or something. And she said absolutely not, and I said well what would it be now, if this man says he did not buy it. She said it is a loss to the store, so I told her if she wanted me to pay for it. would, and she said well, she was sent to talk to me and she would report back to Mr Clagg and she left 11 Klaus' version was as follows " she said that she had talked to Mr. Clagg about this sale of luggage, and she told Mr Clagg how upset I had been about it And so Mr. Clagg was going to forget about it since I had been so sincere she said If I had been a smart aleck, he would have pursued it further, and she said she thought that she would tell me this to set my mind at ease 12 No significant additional information was submitted to Clagg 11 Later in his testimony Clagg said, "I wanted to talk to an experienced man, in the company, which I considered Mr Neil, to verify myjudgment, primarily because this was the very first case of fraud, that I had encountered as store manager. " ( Emphasis supplied) In view of the many infractions of like character , Klaus' violation was not unique 760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Neil first. Of this Clagg testified, "I told him what the decision was that I had arrived at, and asked for his opinion on my decision." (Emphasis supplied.) Neil suggested that Clagg confer with Stoneberg. Again quoting Clagg, ". . . he [Stoneberg] agreed with the conclusion that I had arrived at [that the sales person involved should be released.]" (Emphasis supplied.) Clagg admitted that Klaus was the only employee he had ever spoken to "regarding a violation of company policy or procedure." Clagg said he did not "normally handle that type of a violation"; he said that he would not have "normally handle[d]" the investigation of Klaus' case, and that he did not "normally" handle credit authorization violations by clerks. These were normally handled by the operating assistant manager. The only such violation which had been brought to his attention was the Klaus case. The discharge of Klaus was not discussed with her immediate supervisor. On November 22, 1969, Clagg called Pizzano to his office and told her he was going to discharge Klaus that evening. He indicated that he "considered this credit procedure very serious" and asked Pizzano to make sure she had a replacement for her that evening. Klaus appeared at Clagg's office. Clagg told her that "he had no alternative but to dismiss [her], because [she] deliberately violated the store policy. [She] did not get authorization on that check...." Klaus asked for another chance; Clagg refused although he gave Klaus his card and told her he would give her "the best of references." 14 Later in the evening Clagg called Pizzano to his office where he told her he had discharged Klaus. He directed Pizzano to make out the necessary papers and told her to write as the reason: "Serious Violation of Company Credit Authorization Procedures" which she did. The Employer's publication "Employee Conduct and Regulations" dated March 1, 1969, did not list "violation of Company credit Authorization Procedures" as an offense "which will be dealt with severely and ... may result in immediate dismissal." In fact it is not mentioned at all. Likewise the Respondent's publication "Personnel Policies and Procedures" does not include "Violation of Company Credit Authorization Procedures" as an offense which "will be dealt with severely and will undoubtedly and may result in immediate dismissal." Following the list of such offenses appears, "Supervisors are required to submit to the Personnel Director warning notices of any violations of the above regulations." Fifth: Prior to September 18, 1967, the Respondent used the Associates credit card for imprinting customer charge sales. When this card was used sales persons were required to obtain credit authorizations for sales in excess of $50. Sometime before September 18, 1969, the Joseph Horne Co. credit card was issued. In a memorandum issued by J. B. Blakeley, credit manager, effective September 18, 1967, it was set forth that "If the customer does not have a Horne Charge Card the salesperson is to manually write on the 14 Clagg admitted that he gave Klaus his personal card and told her she could use him for reference. 15 Sargent Eaton, assistant store manager, admitted the conversation "about the fact that she had not gotten authorization on her sales" but denied that an Associates card had been used . He testified, ". . . there was no action taken, other than the, fact to tell her, that on repeated violations, sales check the customer's name and address information and complete the sales transaction in the normal manner. If the sale is $10 or more the salesperson must call for authorization." Klaus testified that it was her understanding that after the Joseph Horne Co. card was issued, if an Associates charge card was presented the salesperson was required to procure credit authorization only when the sale was over $50. Employee Gladys Nedzesky corroborated Klaus' testimony in this respect and stated she followed this rule. Employee Lucy Slocum testified that the salesperson was required to obtain credit authorization on an Associates card when the sale was over $25. In December 1969, Slocum learned from another clerk that credit authorization was required for a purchase over $10 on an Associates card. She sought verification from her supervisor who was unable to give it. Later she reported to Slocum that the information was correct. Slocum testified that, in late February or early March 1970, the assistant store manager, Sargent Eaton, brought to her attention the fact that she had not received an authorization for a sale in "the neighborhood of $25.00" on an Associates card and a sale of over $50 on a Joseph Horne Co. plate. Slocum responded that she was sorry. The assistant store manager replied that she should not "feel bad, because he had many others that had done the same thing." 15 Anna McHugh testified that shortly after Klaus was discharged her supervisor, Tom Palmer, asked her if she knew why Klaus had been fired. She answered, ". . . for violating the store policy." Whereupon Palmer informed McHugh that she also had violated store policy in that she had made a fraudulent sale over $50 without authorization, However, he said, ". . . don't worry about it ... I took care of it." Several weeks later, Assistant Store Manager Eaton called McHugh to the office and showed her a sales check for over $50 on a Joseph Horne Co. card for which she had not obtained authorization. McHugh admitted the mistake. Eaton said that she should "see that [she] didn't do it again." About a week later Eaton asked McHugh if she understood that if she incurred "another violation of this type that [she ] would be subject to dismissal." 16 Kenneth Fisher testified that on several occasions he made sales of over $50 on the Joseph Horne Co. charge card without obtaining credit authorization. He was not disciplined. The Respondent conducted two spot checks of credit authorizations in 1969, May 2 and December 31, 1969. Checks were also made on January 31 and March 21, 1970. These checks or unauthorized transaction analyses as they were called indicated whether the specific sales transaction for which authorization was required was in noncompli- ance with the Respondent's authorization procedures "with a Horne charge card or without a Horne charge card." The analysis was sent to the store involved, together with the sales checks, for a review. The analysis of May 2, 1969, indicates that at the South or on a second or repeated violation , that she could be subject to dismissal." The matter had been brought to Eaton's attention by the credit department. 16 Eaton denied that the discussion with McHugh had anything to do with the failure to get an authorization. JOSEPH HORNE CO. Hills Village Store 37 out of 151 sales transactions requiring authorization did not comply with the sales procedure requirements. On December 31, 1969, the figure was 12 out of 73 sales transactions; on January 31, 1970, the figure was 35 out of 153 sales transactions; and on March 21, 1970, the figure was 22 out of 145 sales transactions. The percentages of unauthorized transactions for the South Hills Village Store varied from 15.1 to 34.6 percent. The high in other stores reached in some cases 46.2 percent. On February 4, 1970, J. B. Blakeley informed the various store managers, "In comparison with the last review, it is not encouraging to note we have lost ground in our compliance percentage." A spot check of sales checks revealed that there were a substantial number of violations which did not involve Joseph Horne Co charge card.17 Sixth: On the basis of the foregoing facts the question is whether the Respondent's "true purpose" or "real motive" in discharging employee Klaus was to "discourage membership in any labor organization." See N. L. R. B. v. Brown Food Store, 380 U.S. 278, 287; Local 357, Internation- al Brotherhood of Teamsters [Los Angeles-Seattle Motor Express] v. N.L.R.B., 365 U.S. 667, 675 In the considera- tion of this question the Trial Examiner is aware of the rule that "Management can discharge for good cause or bad cause, or no cause at all" except "when the real motivating purpose is to do that which Section 8(a)(3) forbids." Portable Electric Tools, Inc. v. N.L.R.B., 309 F.2d 423,426 (C.A. 7). It is also taught that "[t]he Board is not compelled to accept the employer's statement when there is reasonable cause for believing that the ground put foreward by the employer was not the true one, and that the real reason was the employer's dissatisfaction with the employee's union activity." The Great Atlantic & Pacific Tea Co., Inc. v. N. L. R. B., 354 F.2d 707, 709 (C.A. 5). The Respondent claims that the true reason for which the Respondent discharged Klaus was because of a "Serious Violation of Company Credit Authorization Procedures." The Trial Examiner does not believe that the ground stated was the true motivating cause.18 The Trial Examiner is convinced that the "true reason" or "real motive" of the Respondent in discharging Klaus was to discourage membership in a labor organization and to interfere with employees' "right to self-organization and to form, join or assist labor organizations." Persuasive factors in this respect are: (1) The occurrence of the discharge during the early stages of a union organizational campaign which campaign was noticed by the Respondent; (2) the union animus of the Respondent as disclosed by both its placement of a trash barrel for receipt of union literature 11 Blakeley testified that the most frequent violation of credit procedures involved the failure to obtain authorization when a driver's license, Associates plate, or other item was presented for identification and the sale was over $10 18 In this respect even though such reason was a cause for discharge a "discharge which is partially motivated by the employee's protected activity violates the Act despite the concurrent existence of an otherwise valid reason " N L R B v Princeton Inn Co , 73 LRRM 3002 (C A 3) "Thus, where there are legitimate reasons for the discharge of an employee, the question is whether those were in fact the only grounds for the dismissal, or whether they were `put forth as a mere pretext tojustify an impermissible discharge ' " N L R B v Pembeck Oil Corp, 404 F 2d 105. 110 (C A 2) 19 Cf N L R B v. Lexington Chair Co, 361 F 2d 283 (C A 4), in which 761 under the watchful eye of management representatives, by its 8(a)(1) violations, and by its contemporaneous publica- tion of "The Guidance of Supervisors and Executives" in which is disclosed that the Employer was opposed to the Union's organizational objectives; (3) the Employer's knowledge of Klaus' union affection and union activities; (4) Store Manager Clagg's pretermitting attitude toward Klaus (when he learned "she had shown great concern") which was discernible before he had conferred with Neil and Stoneberg; (5) Manager Clagg's interest in the investigation and discharge of an employee for a credit authorization procedure infraction which was not his usual practice; (6) the lack of disciplinary action taken against numerous other employees who violated credit authoriza- tion procedures; 19 (7) the confusion among the employees as to what in fact the regulations were regarding the use of the Associates plate; (8) the high level participation in Klaus' discharge by Labor Relations Manager Neil and Vice President and Operating Superintendent Stoneberg without credible explanation; 20 (9) the omission of "Violation of Company Credit Authorization Procedures" from the published list of offenses for which disciplinary action taken might result in discharge; (10) Clagg's willingness to give Klaus "the best of references"; ( 11) the discharge of a qualified employee for an offense which was not published as a dischargeable offense; 21 and (12) the severity of the penalty in relation to the offense and the timing of the discharge. The sockdolager lies in the testimony of Clagg. Clagg testified that when he received the note from Credit Manager Blakeley on November 22, 1969, to the effect that "What happened in this case is very serious and is a violation of company policy and procedure. Under no circumstances should a sales person do what was done .. . we cannot have this happening or our entire sales procedure is in jeopardy," he then and there "made the decision at that time that she should be released," (Emphasis supplied.) but in another breath he testified that prior thereto he contacted Personnel Relations Director Neil, to whom he related "the decision" which he "had arrived at," and Vice President Stoneberg, who "agreed with the conclusion that [he] had arrived at." Thus it is trenchant that the decision to discharge Klaus was reached before Clagg received Blakeley's communication and that he could not have relied, as he claimed, on Blakeley's opinion in respect to Klaus' violation of company procedures as expressed in the note. Blakeley's note was but the icing on the cake to gloss over the pretextual nature of the discharge. Accordingly the Trial Examiner concludes and finds that by the discharge of the court of appeals in enforcing a Board Order finding an 8(a)(3) violation stated The sudden assertion of previously unenforced rules, coinciding with a union campaign, has previously been held by this court to be an unfair labor practice See also Levinson'r Owl Rexall Drugs, Inc, 161 NLRB 1531, 1533 20 Such high level treatment is incongruous with the character of the offense which was committed innumerable times by other employees with no disciplinary action taken. 21 "The discharge of qualified workers who are also union activists is a circumstance of suspicion which may give rise to a justified inference of violative discrimination Betts Baking Co v N L R B, 380 F 2d 199, 204 (C A 10) 762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ruth M. Klaus on November 22, 1969, Respondent discriminated against her in violation of Section 8(a)(3) of the Act. There is another reason for the same holding. Section 8(a)(3) prohibits discrimination in regard to tenure or other conditions of employment to discourage union membership. . . . It has long been established that a finding of violation under this section will normally turn on the employer's motivation.l[iAmerican Ship Building Co. v. N.L.R.B., 380 U.S. 300, 311.] However, a "wide range of employer actions taken to serve legitimate business interests in some significant fashion, even though the act committed may tend to discourage union membership," are permitted under Section 8(a)(3) as "essential if due protection is to be accorded the employer's right to manage his enterprise." Idem. at 311: But "there are some practices which are inherently so prejudicial to union interests and so devoid of significant economic justification that no specific evidence of intent to discourage union membership or other antiunion animus is required. In some cases, it may be that the employer's conduct carries with it an inference of unlawful intention so compelling that it is justifiable to disbelieve the employer's protestations of innocent pur- pose." Idem. at 311-312. The discharge of Klaus was inherently so prejudicial to union interest and so devoid of significant economic justification that no specific evidence of intent to discour- age or other antiunion animus is required. The economic justification advanced by the Employer is plainly apocry- phal. In its best light the discharge of Klaus must be viewed as a deterrent against a salesperson's extension of credit without the proper procedural authorization. But had the Employer been really interested in obtaining this result by the discharge method, such method would have been indiscriminately followed in respect to all employees who violated the credit authorization procedures. The Employ- er's lack of interest in this direction is apparent from its omission from the published list of offenses for which disciplinary action taken could result in discharge; there was nothing published to employees on the subject. Moreover, the discharge method for deterring violations of credit authorization procedures was not followed before or after Klaus' discharge. Such disparate treatment disavows a claim of economic justification. Indeed employees who had committed like infractions could not escape the realization that the discharge of Klaus, an ardent union partisan, during the early stages of a union organizational campaign, for an offense which they were committing daily (See "Unauthorized Transaction Analysis") was bottomed on her union affection and union solicitation activities (Klaus had obtained 30 signed union applications) rather than on the violation of company credit authorization procedures. Thus the discharge of Klaus for an infraction common to many employees could not have been reasonably read by the employees otherwise than that the discharge based upon such a specious excuse was a warning to employees 22 ... an employer's protestation that he did not intend to encourage or discourage must be unavailing where a natural consequence of his action was such encouragement or discouragement . Concluding that encouragement or discouragement will result , it is presumed that he that they would be treated likewise if they persisted in engaging in union activity. Additionally the Employer was well aware of the current union organizational campaign which was in progress at the time of Kalus ' discharge. Hence a natural consequence of the Employer's action was the discouragement of union activities22 which the Employer knew or had reason to have known. Under the facts which must have been known to the Employer and the employees a foreseeable result of the discharge of Klaus was to "discourage membership in any labor organization." Any other conclusion would be at odds with the realities of the industrial world and in opposition to sound reason . Thus the Employer's conduct must be deemed to have been "inherently destructive of important employee rights" and an unfair labor practice must be found "even if the employer introduces evidence that the conduct was motivated by business considera- tions." N.LR.B. v. Great Dane Trailers, Inc., 388 U .S. 26. In that the Employer committed acts inherently prejudicial to employee interests, the reasonable and foreseeable conse- quences of which were to discourage employees ' member- ship in a labor organization, the Respondent's "real motive" must be deemed unlawful and the discharge of Klaus a violation of Section 8(axl) and (3) of the Act. Since the Respondent's motive was clearly unlawful its asserted reasons for the discharge of Klaus become immaterial for the mere existence of an alternate ground for action taken is no defense where, as here, the Employer's actual motiva- tion is based on unlawful discrimination. Webster Wood Industries, Inc., 169 NLRB No. 14. ". . . [TJhe existence of a proper reason for discharge is no defense if the discharge was actually made for an improper purpose ." The John Klann Moving and Trucking Co. v. N.LR.B., 411 F.2d 261 (C.A. 6). CONCLUSIONS OF LAW 1. The Union is a labor organization within the meaning of the Act. 2. The Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and it will effectuate the purposes of the Act for jurisdiction to be exercised herein. 3. By interfering with, restraining, and coercing em- ployees in the exercise of the 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. By unlawfully discharging Ruth M. Klaus from employment on November 22, 1969, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(l) and (3) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. intended such consequence. In such circumstances intent to encourage is sufficiently established. The Radio Officers' Union of the Commercial Telegraphers Union, A.F.L. v. N. L. R. R, 347 U.S. 17, 45. JOSEPH HORNE CO. 763 THE RECOMMENDED REMEDY It having been found that the Respondent had engaged in certain unfair labor practices, it is recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It having been found that the Respondent unlawfully discharged Ruth M. Klaus and thereby violated Section 8(a)(3) and (1) of the Act, it is recommended that the Respondent remedy such unlawful conduct. It is recom- mended that the Respondent remedy such unlawful conduct. It is recommended in accordance with Board policy23 that the Respondent offer Ruth M. Klaus immediate and full reinstatement to her former position or, if such position no longer exists, to a substantially equivalent position without prejudice to her seniority or other rights and privileges and make her whole for any loss of earnings she may have suffered as a result of the discrimination against her by payment to her of a sum of money equal to the amount she would have earned from the date of here discriminatory discharge to the date of an offer of reinstatement, less net earnings during said period, to be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, NLRB 289, and including interest at the rate of 6 percent per annum in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. RECOMMENDED ORDER24 Upon the basis of the foregoing findings of fact and conclusions of law and the entire record in this case, it is recommended that the Respondent, Joseph Horne Co., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in the Retail Clerks International Association, Retail Store Employees Union Local 1407, AFL-CIO, or any other labor organization, by disc riminatorily 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) Maintaining in effect an invalid no-solicitation rule. (c) Unlawfully threatening discharge of employees for engaging in lawful union activity. (d) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist Retail Clerks International Association, Retail Store Employees Union Local 1407, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of mutual aid or protection as guaranteed in Section 7 of the Act, or refrain from any or all such activities. 2 Take the following affirmative action which will effectuate the policies of the Act: (a) Offer Ruth M. Klaus immediate and full reinstate- ment to her former position or, if such position no longer exists, to a substantially equivalent position without prejudice to her seniority or other rights and privileges and make her whole for any loss of pay that she may have suffered by reason of the Respondent's discrimination against her, in accordance with the recommendations set forth in the section of this Decision entitled "The Recommended Remedy." (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 records necessary to analyze the amount of backpay due under the terms of this Recommended Order. (c) Notify the aforementioned person if presently serving in the Armed Forces of the United States of her 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. (d) Post at its South Hills Village Store, Pittsburgh, Pennsylvania, copies of the attached notice marked "Appendix." 25 Copies of said notice, on forms provided by the Regional Director for Region 6, 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. (e) Notify the Regional Director for Region 6, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.26 IT IS FURTHER RECOMMENDED that the complaint be dismissed insofar as it alleges violations of the Act other than those found in this Decision. 21 See The Rushton Company, 158 NLRB 1730, 1740 24 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 2 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" 26 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 A TRIAL EXAMINER FOR THE NATIONAL LABOR RELATIONS BOARD , AFTER A HEARING IN WHICH ALL PARTIES WERE PERMITTED TO INTRODUCE EVIDENCE, FOUND THAT WE DIS- CHARGED RUTH M. KLAUS BECAUSE SHE WAS FOR THE UNION AND THAT THIS VIOLATED THE LAW. 764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Act gives all employees these rights: To organize themselves; To form, join, or help unions; To bargain as a group through a representative they choose; To act together for collective bargaining or other mutual aid or protection; and To refuse to do any or all of these things We were also ordered to assure our employees that: WE WILL give Ruth M. Klaus back her job or, if her job no longer exists, a substantially equivalent job, her seniority, and her backpay which she lost because we laid her off. WE WILL NOT discharge any employee for the same reason for which the Trial Examiner found that we discharged the above-named employee. WE WILL NOT maintain an invalid no-solicitation rule. WE WILL NOT unlawfully discharge employees who are lawfully engaging-in union activity. WE WILL notify the above-named employee if presently serving in the Armed Forces of the United States of her 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. All of you are free to become or remain, or refrain from becoming or remaining, members of any labor organiza- tion. Dated By JOSEPH HORNE CO. (Employer) (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, 1536 Federal Building, 1000 Liberty Avenue, Pittsburgh, Penn- sylvania 15222, Telephone 412-644 2977.