Emerson Electric Co.

294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Emerson Electric Co., U.S. Electrical Motors Division and International Association of Machinists and Aerospace Workers, AFL-CIO. Case 26-CA-3558 December 16, 1970 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND BROWN On June 25, 1970, Trial Examiner Thomas F. Maher issued his Decision and Order on Motion to Dismiss in the above-entitled proceeding, finding that the Respondent had not engaged in certain unfair labor practices and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel filed exceptions to the aforedescribed Trial Examiner's Decision and a supporting brief.' Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed.2 The Board has considered the Trial Examiner's Decision, the exceptions, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. 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 the complaint be, and it hereby is, dismissed in its entirety. MEMBER BROWN, dissenting: In my view the record before the Board establishes prima facie evidence of the violations alleged in the complaint and I would remand the entire proceeding for a reopened hearing to give the Respondent an opportunity to present its defense to these allegations. I Contrary to the Trial Examiner's Order, the procedure followed by him in issuing a Decision dismissing the complaint does not invoke that portion of Sec 102 27 of the NLRB Rules and Regulations which requires the aggrieved party to seek review of such action within 10 days of the dismissal 2 At the hearing, in connection with the allegation that Respondent unlawfully maintained and gave effect to a discriminatory no-solicitation rule, the Trial Examiner refused to admit evidence of solicitations during work hours for causes other than those pertaining to union matters In doing so, he reasoned that the rule in question was one prohibiting only union solicitation and hence evidence of permissive solicitation for other cause was immaterial However, he permitted an offer of proof and a counter offer of proof from General Counsel and Respondent, respectively, which have become a matter of record and are before us in these proceedings Having examined the General Counsel's offer of proof, we are satisfied that the various examples of permitted worktime solicitation set forth therein were solely for beneficent causes and, further, even too isolated to establish disparate application of Respondent's otherwise lawful rule Although such evidence was clearly admissible, our finding on the basis of the offer of proof removes any prejudice from the Trial Examiner's ruling DECISION AND ORDER ON MOTION TO DISMISS PRELIMINARY STATEMENT THOMAS F. MAHER, Trial Examiner: Upon a charge and amended charge filed respectively on January 7 and February 16, 1970, by International Association of Machinists and Aerospace Workers, AFL-CIO, herein called the Union, the Regional Director for Region 26 of the National Labor Relations Board, herein called the Board, issued a complaint on behalf of the General Counsel of the Board on February 20, 1970, against Emerson Electric Co., U.S. Electrical Motors Division, Respondent herein, alleging violations of Section 8(a)(1) and (3) of the National Labor Relations Act (29 U.S.C., Sec. 151, et seq.), herein called the Act. In its duly filed answer the Respondent, while admitting certain allegations of the complaint, denied the commission of any unfair labor practice. Pursuant to notice a trial was held before me on April 7, 1970, at Mena, Arkansas, where all parties were present, represented, and afforded a full opportunity to be heard. Counsel for the General Counsel presented his case-in-chief with full opportunity granted to Respondent to cross- examine witnesses. Upon the conclusion of General Counsel's case-in-chief counsel for Respondent moved the dismissal of the complaint herein on the ground that upon the record made by the General Counsel a violation of the Act had not been established. Thus with respect to the discharge of two employees, allegedly for unlawful discrimination, it was claimed that the evidence in the record established only that these individuals were discharged for misconduct and for no other reason; and with respect to the posting and enforcing of a rule allegedly unlawfully prohibiting soliciting in behalf of a union it is claimed that in the posture of the pleadings and record a legal issue has been presented for determination and can be resolved at this juncture of the proceeding. Because, with respect to the alleged discriminatory discharges, I enter- tained serious doubt that the General Counsel had established prima facie violations of the Act, and in deference to Respondent's right in due process not to be required to enter its defense in the absence of such a showing, I adjourned the hearing for an indefinite period to provide an opportunity to study the record. Because, moreover, I recognize that only a legal issue is present with respect to the allegedly unlawful notice and its undisputed enforcement against one employee, William J. Head, I agree to resolve this issue as a part of my decision herein. Accordingly, I requested briefs of the parties to assist me in the determination of the issues presented by Respon- dent's motion. Counsel for the Respondent filed a brief with me on May 4, 1970. Counsel for the General Counsel 187 NLRB No. 33 EMERSON ELECTRIC CO. has failed to comply with my request in this matter, stating that while he opposes the Respondent's motion to dismiss he "perceives no beneficial purpose to be served in filing any brief or more exhaustive explanation of position at this stage of the proceeding." While I know of no authority which would permit me to compel the filing of such document, I am constrained to note that the interests of the individuals concerned herein are not best served by a failure to cooperate as requested. During the course of the presentation of counsel for the General Counsel's case-in-chief an effort was made to establish the illegality of a rule forbidding soliciting on behalf of a union by adducing evidence of other forms of solicitation. For reasons discussed fully hereafter I ruled such evidence to be unrelated to the subject matter at issue. However, to provide as full a record as the circumstances would permit I agreed to accept General Counsel's offer of proof and to likewise accept Respondent's counteroffer of proof. A written offer of proof was submitted to me after the close of the hearing and a copy thereof served on Respondent's counsel. Thereafter Respondent submitted a counteroffer of proof with a copy filed with counsel for the General Counsel. These documents have been incorporated into the record as Trial Examiner's Exhibits 1 and 2. Upon consideration of the legal documents and the analysis of evidence advanced by both parties at the trial of the matter before me, and in Respondent's brief, and upon a review of the record made by the General Counsel in support of the allegations of the complaint, including the offer of proof and counteroffer of proof, in which I assume, of necessity, the veracity of all witnesses appearing before me, I make the following: FINDINGS OF FACT AND CONCLUSIONS OF LAW 1. THE BUSINESS OF THE RESPONDENT Respondent is a corporation with an office and plant located in Mena, Arkansas, where it is engaged in the manufacture of electrical motors. During the past 12 months, in the course and conduct of its business operations, Respondent purchased and received at its Mena, Arkansas, plant goods and materials valued in excess of $50,000 directly from points outside the State of Arkansas, and during the same period it sold and shipped from the said Mena plant goods and materials valued in excess of $50,000 directly to points outside the State of Arkansas. Upon the foregoing admitted facts I conclude and find Respondent to be an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED International Association of Machinists and Aerospace Workers, AFL-CIO, is conceded by all parties to be a labor organization within the meaning of Section 2(5) of the Act. 295 III. THE CONTESTED ALLEGATIONS OF THE COMPLAINT It is alleged that on or about November 4, 1969, Respondent violated Section 8(a)(1) and (3) of the Act by discriminatorily discharging the following employees: Donnie G. Abbott and Elmer N. Simpson. It is also alleged that Respondent violated Section 8(a)(1) of the Act by maintaining a rule at its plant since on or about July 7, 1969, and by enforcing it against Employee William J. Head, on or about October 29, 1969, said rule admittedly posted since April 30, 1969, and reading as follows: NOTICE TO EMPLOYEES As you all know, it has been our practice not to permit solicitations of any type or distributions of literature that interrupt production. The National Labor Rela- tions Board has frequently ruled that working time is for work and that an employer may properly prohibit employees from urging, during working time, other employees to join a Union. We will not tolerate any such activity during working time. We all have a job to do, and to accomplish this job, we must work together in an atmosphere of harmony and cooperation, which does not include badgering, intimidation, soliciting or coercion in any respect. IV. PERTINENT FACTS ADDUCED A. Elmer N. Simpson On Thursday, October 30, 1969, Employee Elmer N. Simpson was selected for overtime work on the following Saturday, November 1, by his foreman, Woody Singleton. Simpson describes the selection thus: Well, he came by with this here list of overtime names. Then he walked by my machine where I was working and he told me, he says, "Elmer, work Saturday." And he left, or he started to leave, and I called him back. I told him that I needed that Saturday off and he said, "Work" and that's all and he walked off. [Tr. 16] On the requirement that employees work overtime Simpson agreed that "if advised by Thursday afternoon that you will be required to work on Saturday, you must work overtime on Saturday"; but "if the company is late in advising you and does not advise you until Friday that you must work overtime, it does not require that you work overtime." Simpson wanted the Saturday off to see a doctor in Fort Smith, Arkansas, 80 miles distance, concerning a sinus condition, having been directed by his family doctor in Mena 6 months earlier to have the condition attended to "whenever he could get off." He had explained this to Singleton previously but did not mention it on Thursday, October 30, when he protested the Saturday assignment. On the following day, Friday, October 31, Simpson asked Singleton if he and his riding partner, Donnie Abbott, could come in early on Saturday, at 5 a.m. instead of 7 a.m., 296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD without indicating to Singleton, it would appear, that he wanted to visit the Fort Smith doctor.' Singleton agreed to this request and then went to Abbott's work station to talk with him. Simpson's account of his work activity on Saturday follows: A. Well, we went in and started work at 5:00 o'clock that morning and I was scheduled to run the machine. I run my machine up to, oh, about 10:00, 10:30, something like that, and Garland Owens come around and told me to go back and set up another machine. I told him that my machine was running all right, that that wasn't my job, that was his job to set up the other machine. He left and then Donnie come over and told me he was about ready to go home because he didn't have much work to do and then in a little bit here come Garland back and he told me to go back and set that machine up. He left again and the third time he come around he told me-Donnie came over again and was talking with me and Garland walked up and told me to go set this machine up again and I told him that that was hisjob, wasn't mine and he was drawing pay for that and it wasn't me. I told him that rather than me go set that machine up that I was already tired and give out from working so many long hours and that I was going to go to the house, going to go and punch out and go to the house. Q. What did he say? A. He just walked off. He didn't say no more. He just walked off Q. So what did you do? A. I worked a few minutes longer, then I hollered at Donnie and told him I was ready to go and I went to the clock and punched out and left. Q. About what time was this? A. About 10 minutes to 11:00. Q. What did you do after you punched out? A. I went and waited in the car until Donnie came. He worked a few minutes longer and then he came out and we left. [Tr. 20-21 ] Singleton was not at work on Saturday and Charles Bates, whom Singleton identified as "my foreman," was in "charge of the line." Nor does there appear to be any dispute as to Garland Owens' authority as subforeman. Thus while Simpson disputed Owens' right to assign him from one machine to another he did state elsewhere in his testimony that on past occasions Owens had assigned him to different jobs. I accordingly so conclude and find on the basis of Simpson's description that Owens possessed the authority in behalf of the Company to assign work to employees and was thereby a supervisor within the meaning of the Act. In any event Simpson left not only in the face of Owens' direction to him but without reporting his departure to Bates whom he identified as being in charge. When Simpson next arrived for work at 7 a.m., Monday, November 3 with Donnie Abbott their timecards were out of the rack. A supervisor escorted him to the office of Plant Superintendent Curtis Powell . Poweii asked him why he had left on the previous Saturday, to which Simpson states he replied: I told him that Garland Owens come over and told me to set up this machine back behind mine , that mine was running all right and rather than go set that machine up that I punched out and went home. He told me that I was supposed to be setup man and operator and I told him that I was not drawing the pay for that. [Tr. 24] Powell told Simpson that the matter would have to be decided by "somebody else" and sent him home with directions to report back on thefollowing day. On Tuesday, November 4, Simpson was called to Plant Manager D. H. Blair's office where Powell and Personnel Manager Harlan Phelps were waiting . Blair asked him why he had left on Saturday, and Simpson gave him the same reply he had given Powell. In the course of telling the story to Blair, Simpson stated he looked for neither Bates, the subforeman in charge, nor Personnel Manager Phelps before leaving. Blair then told Simpson that "as bad as we need help I hate to let you go but I am going to have to let you go." He was then directed to Personnel Manager Phelps' office where he was given papers to sign relating to his termination . While he did sign one paper relating to his retirement plan, he refused to sign the other paper presented him although he did not read it or know what it was. Simpson has not since worked for Respondent. B. Donnie G. Abbott Donnie Abbott, like Simpson, was directed on Thursday, October 30 by Foreman Singleton to work overtime on Saturday and he protested the assignment. Abbott's account of the incident follows: He came to me where I was working and he said, "Saturday," and I went and called him back to the line where I was working and told him that I wanted to be off so I could get me a pickup truck and he said, "Come in and start at 5:00," and I told him that I wouldn't have enough time if I came in at 5:00. Nothing was said so he went on and told the others to come in Saturday. [Tr. 58] Abbott appeared for work on Saturday at 5 a.m. as directed. His activities from that point are best described by his own testimony, thus: Well, see, I come in at 5:00 and the machine I was supposed to work on was tore down. I went to work with it for about two hours and then I went on over to see Garland Owens. I went to see him for work and he went and took and put me on a drill line and then he came by about 8:30 and I told him I was going to take off by 11:00 and also went and told him I talked to Singleton Thursday about it and I was going to take off and get me a truck. He just went on where he was going. • s * s Then about 9:30 I went over to Simpson's machine and I I draw this conclusion from Simpson's failure to indicate in his testimony that he so advised Singleton EMERSON ELECTRIC CO. told him I was going to take off about 11:00, that there wasn't any work for me to do and that I was going to buy me a truck and he said he wanted to go, too, so I worked for a couple more hours and about 11:00 I went to the tool crib and I came back out and I noticed he was gone from his machine. So I went over and asked Carol Guinn where he was at and she said he had gone home and then I went back and filled out my tickets and everything and clocked out and then I went to the tool room where Owens was. He was over there sharpening a dull and I told him I was going home and he said he would see me Monday. I went home and me and Simpson sat at the house a few minutes and then his wife come by. She picked him up and went home . I got my family ready and went over to Mount Ida and bought a truck. [Tr. 59-611 Abbott made no effort before he left to communicate with Bates who was in charge of the line (supra,) because he "thought that Owens was my boss that day." Nor did he make any effort to check with Plant Superintendent Powell whom he knew to be at work at the time. When he appeared for work on Monday , November 3, Abbott, like Simpson, noted that his timecard had been taken from the rack . After Simpson had been taken to Plant Superintendent Powell's office and his case disposed of as described earlier (supra), Abbott was called in and Powell asked him why he had taken off early on Saturday. Abbott told him that he had an understanding with Singleton that he was going to take off early. Powell then showed him Singleton's overtime list and pointed to the fact that he was scheduled for eight hours of work . He told Abbott to go home and report back on the following day, by which time a decision in his case would be reached. On the following morning, November 4, Abbott was called to Plant Manager Blair's office after Simpson. Abbott described the meeting: Well, he called Mr. Simpson in there first ; Mr. Blair, Mr. Powell and Mr. Phelps went and called Simpson in first and they went and got through with him and Mr. Phelps went and called me in. Mr. Blair he went and asked me how come I took off early Saturday and I told him that I thought that I had understood with the foreman that I could take off early and he also had this overtime list there and he said, "But look at this here. He must have been aiming for you to work a full eight hours," and he said, "It looks like we're going to have to terminate you," and then he asked Mr . Powell I believe it was if they could think of any reason why they should keep me and Mr. Powell or Mr. Phelps one said if he had waited a few more minutes they could have said I was on break or sich or something and let me come back . They thought about that and they said no it couldn't be that, be too much explaining to do or something, and then they said , "We're going to have to terminate you," and they said, "You go check in your tools," so I went in and checked in my tools. Q. Then what? 297 A. Then I came back by Mr. Phelps' office and he asked me if I had any vacation pay coming, retirement plan coming back and I told him no and he said it would be Friday before I get my check and he said that he would give me a good recommendation if I try to get a job somewhere else. [Tr. 63-641 C. Further Findings, Analysis, and Conclusion Essential to support for the allegations of discriminatory discharges set forth in the complaint is evidence that both Abbott and Simpson were terminated because of their union membership and activity and not for cause. In this respect all the evidence clearly discloses that the two men were members of and active in behalf of the Union and that Respondent's officials knew it. There is, however, no evidence whatever that this membership or activity had anything to do with Simpson's or Abbott's discharge. Nor do I perceive any connection between their membership or activity and the circumstances which surround their respective discharges from which logical inferences of discrimination could be drawn . Indeed, if Simpson or Abbott, or both of them, were actually discharged for cause neither their union membership or activity or Respondent's knowledge of it would be of consequence ; for Section 10(c) of the Act provides in part that "no order of the Board shall require the reinstatement of any individual as an employee who has been suspended or discharged , or the payment to him of any backpay, if such individual was suspended or discharged for cause." The validity of Respondent's reasons for discharge , therefore, are of prime concern. 1. Elmer Simpson Reduced to its simplest terms Elmer Simpson's own testimony makes it obvious that he was discharged for failing or refusing to do what was required of him. He asked for the time off, was told he could not have it , and was aware of the fact that being informed of overtime on a Thursday he was obligated to work. In the face of this he chose to take off midway through the workday after having deliberately refused a work assignment from an individual who had admittedly assigned him work in the past. Quite apart from Simpson's caviller treatment of his attendance obligations the reasons for which he says he sought the time off bear scrutiny . Thus in October he asks time off to go to a specialist whom his family doctor recommended in May that he visit "whenever he could get off." Although given the time off on Saturday after 1 p.m., Simpson did not go to the doctor, albeit Fort Smith was less than a 2-hour drive from Mena, nor has he yet visited this doctor. Similarly it was suggested by Simpson and by the testimony of other witnesses called by the General Counsel that discharge for walking off the job was contrary to treatment previously shown Simpson, or, in fact, shown employees who were absent on the very day that Simpson walked off. Thus Simpson testified he previously had refused an overtime assignment in April 1969 prior to the union campaign and his absence was excused. On that occasion, as in the instant one, Singleton assigned him overtime and Simpson objected, but to no avail. Immedi- ately thereafter Simpson appealed to Personnel Manager 298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Phelps who, after taking the matter up with Singleton, approved the absence. I am disposed to conclude that this incident ended in the fortuitous way that it did not because it was prior to the union campaign but because Simpson appealed the foreman's order rather than walk off the job as he did here. Similarly Simpson testified that on another occasion he left early because he was sick and went home and went to bed. Not only is leaving for reason of sickness a far cry from Simpson's walkoff here, but one additional circum- stance was present: when he left for home he asked a fellow employee, Espen, to report his departure. It is quite understandable that he received no reprimand when he returned. Nor is it significant to the issue here that other employees failed to report for overtime work at all on the day that Simpson took off early. Employee John W. Martin testified that he was scheduled to work overtime on Saturday, November 1, and, when he told his foreman, Milam he could not come to work, Milam replied, "Well, be here." He reported for work but left at 11 a.m., after informing Milam. As a consequence of his behavior Martin received the same treatment as had Simpson and Abbott. But at his Tuesday meeting with Plant Manager Blair, when it was noted that Martin had not been notified to report for Saturday overtime work until Friday, October 31, he was returned to his job without reprimand and was reimbursed for the time lost. Thus Martin had been exempt from punishment by the rule quoted by Simpson in his testimony whereby those notified after Thursday had the option to refuse to work. Employee Jess Emry was scheduled to work on Saturday, November 1, but failed to report because he was ill. Although he was ill on Friday he worked nonetheless and intended to return on the following morning. He did not notify his foreman, Singleton, of his illness, and, when he returned on Monday, Singleton called him to the office, reprimanded him for not calling in, and placed in Emry's folder a copy of the reprimand which dealt with his poor attendance record which Emry testified was due to recurring illness. Emry also testified to an earlier occasion when he took off early from work without incident. On this occasion he accidentally ripped the seat out of his pants and made the obvious decision to leave work. On the way out he asked a fellow employee to inform Singleton of what had happened. Singleton was so informed and nothing further was said. Finally, Wendel R. Davis, a former employee presently serving in the United States Navy, testified that on Thursday, October 30, he was directed by Singleton to work overtime. Davis told Singleton at the time that a tooth was aching and that he wanted to go to a dentist on Saturday, to which Singleton replied, "I will see about it." Davis went to work on Saturday at 7 a.m. and clocked out at 11 a.m. When he reported to work on Monday his timecard was out of the rack. He spoke first to Bates, the subforeman, about it and was referred to Singleton who kept him waiting for a short time. Meanwhile Davis spoke to McAllister, another subforeman. In the course of this conversation, without mentioning why he had left on Saturday, he told McAllister that he had told Singleton on Thursday that he might have to go to the dentist. On the apparent strength of this conversation Davis was excused. The significant element of the Davis incident was not his toothache but the fact that he admitted to "curing" it on Friday by home remedy, not having any trace of it at all on Saturday, and going home on Saturday to watch football on television. Thus by sheer deception Davis avoided the fate that befell Simpson and Abbott. Upon the foregoing I am convinced that each of the instances of excused absence differ from Simpson's. Thus neither Simpson's appeal to higher authority, his and Emry's illnesses, Emry's torn pants, Martin's belated notification to work overtime, nor Davis' deception have any relation whatever to a deliberate walking off of a job following instructions to work. Accordingly, I conclude and find that upon Simpson's own testimony he was discharged for cause and not for reasons of his union membership or activity, and I further conclude and find that by the testimony of the employees called by the General Counsel that the alleged disparate treatment for absence has not been established, each instance having fit into rules and categories which were established from Simpson's own testimony. 2. Donnie G . Abbott Donnie Abbott's testimony supplies no stronger evidence than did Simpson's that his discharge was for union activity. Abbott, like Simpson, asked on Thursday to be excused from overtime work on Saturday and when permission was refused him he left early, nonetheless. I am not persuaded that Abbott might have been laboring under the misguided impression that his foreman, Owens, had acquiesced in his departure by saying that he would see him Monday. One of Abbott's answers at the hearing is most significant. When asked if he had "asked Owens' permis- sion to leave" or did he "tell him he was leaving," he replied that he told him he was leaving. This, added to the fact that he neither reported his intention nor appealed Owens' order either to subforeman Bates, who was in charge, or to Personnel Manager Phelps, who was at the plant, persuades me that Abbott deliberately left his work and went home, knowing full well that on Foreman Singleton's overtime list his name appeared with all the others scheduled to work a full 8-hour day. Nothing contained in Abbott's testimony or in that of the other witnesses called by the General Counsel and considered above (supra) persuades me that Abbott was singled out for disparate treatment or that his discharge was for any reason other than his deliberate refusal to work as assigned. Upon the foregoing I have concluded and found that Elmer M. Simpson and Donnie G. Abbott were each discharged for cause and neither were discharged for their union membership or activity. I shall accordingly grant Respondent's motion to dismiss so much of the complaint as alleges the discharge of these two individuals to constitute violations of the Act. EMERSON ELECTRIC CO. 299 D. The Notice It is stipulated that on April 30, 1969, the notice set forth in detail above (sec III) was posted on Respondent's employee bulletin board. The evidence adduced by counsel for the General Counsel2 supports a written warning admittedly given to Employee William J. Head by Respondent's supervisors, that "after three complaints from other employees it was necessary to give Joe Head a warning for union solicitation on company time during working hours. Joe was warned that any further repetition can lead to discharge." Respondent agreed at the hearing that the issue thus framed presents a clear question of law which requires no further evidence in refutation. Thus if it is found that the rule is lawful Head was lawfully reprimanded for violating it. But if it found to be unlawful then Head's reprimand would be discriminatory, as alleged in the complaint. Because this rule prohibiting union solicitation seeks to regulate employee activity only during working hours it is presumptively valid "in the absence of evidence that the rule was adopted for a discriminatory purpose." 3 But there is no evidence in this record of the circumstances surrounding the adoption of the rule other than the fact that the posting of it coincided generally with the beginning of the Union's campaign in April. Were I not precluded by Section 10(b) of the Act4 from considering such a coincidence as evidence of an unfair labor practice, I would nonetheless be reluctant to accept a mere speculation as a substitute for a complete lack of evidence Indeed, pursuing the Section 10(b) theory to its logical conclusion brings us squarely to the Supreme Court's guide to the disposition of such matters in the Bryan Manufacturing Company5 case. In the first place, the General Counsel has recognized the significance which Section 10(b) bears to the notice in this case, for paragraph 7 of the complaint establishes July 7, 1969, a date 6 months prior to the January 7, 1970, issuance of the charge, as the critical date in the period of the notice's maintenance; and counsel so identified the date at the hearing. In this posture, therefore, to consider the allegedly offending notice beyond the limits which the statute and the complaint set would place the gravity of the conduct in comparative relation with the conduct considered by the Supreme Court in Bryan. There it was determined that Section 10(b) so operated as to preclude the finding of a violation of the Act "which is inescapably grounded on events predating the limitations period."6 In that case the offending conduct was grounded on the execution of a collective agreement with a union which, at the time of the execution, did not represent a majority of the employees in the unit If such was the reluctance of the Supreme Court to find a violation in an area so basicly concerned with the representative rights of employees, it would be ludicrous indeed for me to dignify such speculations as may attach to the April posting of the notice here as adequate support for a finding that the notice was unlawfully adopted then or unlawfully maintained on and after July 7. And this is particularly so because the record made by the General Counsel in support of the allegation of illegal maintenance fails to supply any evidence that between July 7, 1969, and October 28, the notice was "maintained," to use the Supreme Court's criteria, "for a discriminatory purpose." 7 I find, therefore, that no evidence of discriminatory applica- tion or maintenance of the notice has become manifest, in point of time, until October 28, 6 months after it was first posted. For if some untoward incident relating to the substance of the notice had occurred during this interven- ing period, it would be fair to say that General Counsel would have supplied the evidence of it. Returning to the presumptive validity of a no-solicitation notice, the precise character of this notice must be considered. This is not a "no-solicitation" notice in the strict sense. In full effect, if not in fact, this notice is a "no- union solicitation" notice, unlike the classic type of rule or notice heretofore considered by the Board.8 There is a distinct difference between the two. In the usual notice considered by the Board, solicitations of any and all kinds are specifically prohibited and solicitation in behalf of a union is the critical element of the overall prohibition. Here, however, the rule is equally explicit in the opposite direction. No-union solicitation is to be permitted for the reasons stated (supra, sec. III). My attention was invited, of course, to the all-inclusive sweep of the first sentence of the notice wherein reference is made to a policy of prohibiting all solicitation. I am not disposed to accentuate form over substance in such matters, however, when a commonsense reading of the notice in its complete context clearly and simply conveys the solitary message that it prohibits solicitation for or against a union and nothing else. At this juncture it becomes necessary to consider a ruling made by me at the hearing as it relates to my earlier finding that no evidence of unlawful maintenance was adduced and that the notice is a distinctly different variety of no- solicitation rule. 2 The testimony of Employee William J Head, Paul Guinn, and Gerold Potter 3 Republic Aviation Corporation v N L R B, 324 U S 793, 803, quoting the Board's decision in Peyton Packing Company, 49 NLRB 828, 843 4 Sec 10(b) of the Act provides in pertinent part as follows Whenever it is charged that any person has engaged in or is engaging in any such unfair labor practice, the Board, or any agent or agency designated by the Board for such purposes, shall have power to issue and cause to be served upon such person a complaint stating the charges in that respect, and containing a notice of hearing before the Board or a member thereof, or before a designated agent or agency, at a place therein fixed, not less than five days after the serving of said complaint Provided, that no complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge with the Board and the service of a copy thereof upon the person against whom such charge is made, unless the person aggrieved thereby was prevented from filing such charge by reason of service in the armed forces, in which event the six-month period shall be computed from the day of his discharge Local Lodge No 1424, International Association of Machinists, AFL-CIO [Bryan Manufacturing Company] v N L R B 362 U.S 411 6 362 U S at 422 7 Republic Aviation Corporation v N L R.B. supra 6 Cf Peyton Packing Company, supra, Republic Aviation Corp v N L R B, supra, Stoddard-Quirk Manufacturing Co, 138 NLRB 615, Ward Manufacturing, Inc,, 152 NLRB 1270, 1277, The May Department Stores Company d/b/a Famous-Barr Company, 174 NLRB No 109, Universal Cigar Corporation, 173 NLRB No 129, enfd denied as to no-solicitation notice 425 F 2d 867 (C A 5) 300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Counsel for the General Counsel sought to adduce evidence that solicitations had been permitted thoughout Respondent's plant for a variety of purposes, thus seeking to establish that enforcement of the rule against employee Head for soliciting in behalf of the Union constituted a disparate enforcement of the rule. On my own motion I excluded this evidence and permitted counsel for the General Counsel to submit a written offer of proof as to this subject matter. I likewise permitted counsel for Respondent to submit, after reviewing General Counsel's offer, a counteroffer of proof.9 The notice, as I view it, prohibits solicitation in behalf of or against a union and nothing else. It is therefore completely irrelevant to the issues presented here that solicitations were made for blood or collections were taken up for flowers, deceased employees or their relatives, Christmas and birthday presents, or for employees or families who were financially disadvantaged, all being the "beneficant acts" referred to by the United States Court of Appeals for the Tenth Circuit in Serv-Air, Inc. v. N.L.R.B. (395 F.2d 557), and the "isolated instances of other permitted solicitations" recently approved by the Board in Atkins Pickle Company, Inc. (181 NLRB No. 144). I accordingly reaffirm my ruling and reject the General Counsel's offer of proof as not relevant to the notice alleged in the complaint. Returning now to a consideration of the rule which I find to exclusively apply to union solicitation, it must now be determined whether the presumptive validity still attaches. This, it would seem, has been determined by the Board in Serv-Air, Inc., 161 NLRB 382. There, so much of the notice as prohibited solicitation by employees stated as follows (161 NLRB at 389): No person will be allowed to carry on union organizing activities on the job. Anybody who does so and who thereby neglects his own work or interferes with the work of others will be subject to discharge. This the Board held in its initial decision to be invalid, but not on its face, as must be established here. Rather, the Board held that "under the circumstances here present" the rule was discriminatory; the circumstances being the multiplici- ty of unfair labor practices found and the permitting of other types of solicitation. Upon review the court 10 held that the rule had not been promulgated for a discriminatory purpose but remanded it for further evidence of discrimina- tory enforcement and application. Upon remand the Board concurred" in the court's conclusion and upon the further evidence taken also concluded that the rule had not been discriminatorily maintained. Thus it would appear that a rule exclusively prohibiting union solicitation is no less presumptively valid than the usual no-solicitation rule. From all of the foregoing and from the circuit court's specific holding12 I would conclude and find, therefore, 9 As previously noted, these documents appear in the record as TX Exhs I and 2, respectively 10 395 F.2d 557, cert den 393 U S 840 11 175 NLRB No 128. 12 Fn 10, supra that a notice restricted to union solicitation partakes of the usual presumption of validity. Furthermore, the realities of industrial life make such a presumption an operational necessity. The justification for the rule appears in the Supreme Court's decision in Republic Aviation, supra, wherein the Court, quoting the Board's Peyton Packing Co. rule that "working time is for work," set forth the accommodation that must be reached between employee and employer rights; namely that it depends on an adjustment of those employee organization rights and "the equally undisputed right of employers to maintain discipline in their establishments." It is to this maintenance of discipline that we must look, therefore, in assessing the validity of the rule. No one can seriously contend that collections for a "sunshine fund" or the alleviation of the misfortunes or bereavement of an employee are the sort of activities that generate heated contention and dispute. On the other hand, the history of modern labor relations clearly demonstrates that the subject of unions and the solicitations in behalf of unions can and most certainly do generate divergent points of view among the working fraternity, even to the point of loud debate and fisticuffs. Thus it would appear that one type of solicitation is conducive to an impairment of order and discipline and the other is not. To the extent, then, that an employer, in the exercise of his established right to maintain discipline,13 sees fit to proscribe only the variety of solicitation that actually tends to impair discipline without interfering with the variety that does not, I fail to see that such an employer thereby rebuts the presumption that his actions are legal. Upon all of the foregoing, therefore, I would conclude and find that the maintenance of the notice herein was a valid and proper exercise of Respondent's "right to maintain discipline in [his] establishment" and that the enforcement of the rule with respect to employee Head was proper in all respects. I accordingly dismiss the complaint insofar as it alleges the maintenance and enforcement of the quoted no- solicitation notice to constitute a violation of the Act, and insofar as it alleges the terminations of employees Donnie G. Abbott and Elmer N. Simpson to constitute violations of the Act, and It is hereby ordered, pursuant to Section 102.25 and 102.35(h) 14 of the Board's Rules and Regulations, Series 8, as amended, that Respondent's Motion to Dismiss the Complaint be granted, and that the complaint be accord- ingly dismissed in its entirety. IT IS FURTHER ORDERED that unless, pursuant to Section 102.27 of the aforesaid Rules and Regulations, Counsel for the General Counsel files with the National Labor Relations Board a request for review of the action taken herein within 10 days from the date of this Order the case shall be closed. 13 Republic Aviation Corp v. N.LR B, supra 14 United Steelworkers of America, AFL-CIO, and Local Union No 2140 (United States Pipe and Foundry Co), 129 NLRB 357, enfd. 298 F.2d 873 (C A 5); Cherry Rivet Co, 97 NLRB 1303, fn I