E.D.S. Service Corp.

698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD E.D.S. Service Corporation and Myrtle T. Coker. Case 20-CA-5882 January 6, 1971 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On July 30, 1970, Trial Examiner Allen Sinsheimer, Jr., issued his Decision in the above-entitled proceed- ing, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent and the General Counsel filed exceptions to the Trial Examiner's Decision and 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 case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, as modified herein. We agree with the Trial Examiner's finding that application of the no-solicitation rule to Coker's union solicitation, while not applying it to the numerous and extensive instances of solicitation for other purposes, was clearly disparate and discrimina- tory. The General Counsel contends, however, that the Trial Examiner erroneously failed to conclude that the Respondent thereby violated Section 8(a)(1) of the Act, and erroneously failed to recommend an appropriate order. We find merit in this contention. We, therefore, find the application of the no-solicata- tion rule to be a violation of Section 8(a)(1), and will modify the order accordingly. 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 below and hereby orders that the Respondent, E.D.S. Service Corporation, San Francisco, California, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as so modified: 1. Substitute the following for paragraph I of the Recommended Order: "1. Cease and desist from: "(a) Discouraging membership in Freight Checkers, Clerical Employees and Helpers Union, Local 856, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization of its employees, by discriminating in regard to their hire or tenure of employment or any term or condition of employment. "(b) Enforcing a rule against solicitation on working time, disparately or discriminatorily, for the purpose of interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act" 2. In footnote 17 of the Trial Examiner's Decision, substitute "20" for "10" days. 3. Substitute the attached Appendix A for the Appendix A attached to the Trial Examiner's Deci- sion. APPENDIX A NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government We hereby notify our employees that: WE WILL NOT enforce a rule against solicitation on working time, disparately or discriminatorily, for the purpose of interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL NOT discourage membership in Freight Checkers, Clerical Employees and Helpers Union, Local 856, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization by discharging, laying off, or otherwise discriminat- ing in regard to the hire and tenure of employment, or any term or condition of employment of our employees. WE WILL offer Myrtle Coker immediate and full reinstatement to her former job, or if that job no longer exists, to a substantially equivalent position without prejudice to her seniority or other rights and privileges. WE WILL make Myrtle Coker whole for any loss of wages or any other earnings she may have suffered as a result of the discrimination against her. All our employees are free to become or remain, or refrain from becoming or remaining, members of the above-named labor organization, or any other labor organization. 187 NLRB No. 92 E.D.S. SERVICE CORP. 699 E.D.S. SERVICE CORPORATION (Employer) Dated By (Representative) (Title) We will notify immediately the above-named individ- ual, if presently serving in the Armed Forces of the United States, of the right to full reinstatement, upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act. 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, 450 Golden Gate Avenue, Box 36047, San Francisco, California 94102, Telephone 415-556-0335. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE ALLEN SINSHEIMER , JR., Trial Examiner : This proceeding was heard at San Francisco , California, on April 7 and 8, 1970. The complaint issued on February 12, 1970, 1 alleges a violation of Section 8(a)(3) of the Act by the discharge of Myrtle T. Coker. The issues will be more fully set forth hereafter. Upon the entire record, including observation of the witnesses and after due consideration of the briefs filed by the General Counsel and the Respondent, I make the following: 2 FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT herein involved is E.D.S. Service Corporation and the change of name appears to have no material effect herein. Based upon the foregoing facts which were stipulated, I find that the Respondent is engaged in commerce and that its operations affect commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED Respondent's answer does not deny the allegation of the complaint that Freight Checkers, Clerical Employers and Helpers Union, Local 856, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union, is and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. Under the Board' s rules, the allegation is accordingly admitted and I accordingly find that said Union is a labor organization within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Issues and Certain Stipulated or Uncontested Matters The issue in essence is whether or not Myrtle T. Coker was properly discharged for violating an alleged rule respecting solicitation and allegedly interfering with production. The Respondent asserts that she was. The General Counsel asserts: (1) that there was no such rule, (2) that if there were it was discriminatorily applied, and (3) that evidence as to penalty for other violations reflects disparate treatment. The parties stipulated that Ronald R. Simpson, John McKay, and Rosemarie Tuel were supervisors within the meaning of the Act . Simpson was San Francisco manager and chief managerial officer at that location at the time involved herein. McKay was assistant manager and Tuel was a swing shift supervisor. On September 11, 1969, Respondent took over the operations of California Blue Shield hiring both the employees and supervisors of that company. There was no lapse of employment for either category. E.D.S. Service Corporation, a Texas corporation, with its principal place of business in Dallas, Texas, is engaged at its San Francisco, California, location, in data prepara- tion, services, and supplies. Prior to December 16, 1969, the legal name of the corporation now known as E.D.S. Service Corporation was D P. Services Federal Corporation. During the calendar year 1970, E.D.S. Service Corporation will receive at its San Francisco, California, location, goods valued in excess of $50,000 shipped directly to it from points outside the State of California. I note in the above connection that the use of the name of the former corporation apparently is solely in connection with accuracy of the statement but that the only corporation i A first amended charge was filed February 9, 1970, and the original charge on December 16, 1969 An amendment to the complaint was filed on February 18, 1970, which corrects the date of termination from December 11, 1970, to December 11, 1969 2 Respondent filed a motion to correct the record in certain respects B. The Discharge Myrtle T. Coker was discharged on the evening of December 11, 1969, following her solicitations of two employees to join the Union. Her personnel action sheet states, "Employee is being terminated for active solicitation for Union on company premises on company time." There is some difference in testimony as to the exact time the solicitations occurred and some differences in testimony as to events involved and the decision to terminate Coker. However, there is no question that the solicitations by Myrtle Coker were for the union on worktlme, that such was known to all supervisors involved, No opposition thereto has been filed by the General Counsel I have examined the record with respect to the changes requested and concluded that the corrections are proper and should be granted Accordingly, the motion to correct the record is granted and the transcript of proceedings is hereby corrected 700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Tuel, McKay, and Simpson, and that Mrs. Coker was terminated that evening thereafter. McKay testified that Simpson had mentioned 3 or 4 days before Coker was terminated that the Union had been soliciting outside the building and cards were being handed out, both outside the building, on the 25th floor,3 and within the work area. No names were mentioned and according to McKay all Simpson said was that if they saw any cards being handed out "we were to pick them up if we could." On the swing shift of December 11, according to Supervisor Rosemarie Tuel, Leonfe Salamon, a keypunch operator, reported to Tuel that she was being bothered by Myrtle Coker who was trying to have her sign a union card and she was worried about this affecting her production. Salamon said this had occurred several times. Tuel immediately informed McKay in his office of the occurrence. McKay asked her to bring Salamon in which Tuel did. About 15 minutes later, Teodora Silan told Tuel she was tired of being bothered by Mrs. Coker about union cards. Tuel again went to McKay who asked her to bring Silan in . Tuel was not present when McKay spoke to either Salamon or Silan. Tuel, when asked how much time was involved in Mrs. Coker's conversation with them, said they told her this had occurred before but Tuel did not respond as to the time involved in the particular incidents on December 11. Tuel then saw McKay after Mrs. Silan left. McKay called Simpson .4 After the call McKay asked her to get a resignation form and cab voucher from Mrs. Coker. Up to this point to Tuel's knowledge, Mrs. Coker had not been invited to speak to McKay. Tuel brought in some papers and McKay dictated some words to her which she retyped on the same type of form. Tuel said, McKay did not directly ask for her recommendation but they talked about it and "both more or less agreed that it was-termination was the answer." Tuel said she thought she asked him if termination was the next step and McKay replied "yes." At this point he dictated the words that would be on the resignation form. McKay asked if Mrs Coker was a good operator and Tuel told McKay she was. McKay then asked Tuel to bring Mrs. Coker to the office. McKay who became assistant manager in San Francisco on December 1, 1969,5 testified that, about 7 p.m. on December 11, Tuel informed him that Mrs. Salamon had a complaint about being bothered by Coker as to signing a union card. He asked Tuel to bring Mrs. Salamon to his office. Tuel left and McKay spoke to Mrs. Salamon who told him Mrs. Coker had come to her desk and was bothering her about signing a union card and that Salamon 3 Apparently in a break or nonwork area 4 Tuel testified as follows concerning what she heard McKay say in his call to Simpson Q You don' t have to remember the exact words, the substance, or whatever you can remember of what he said A He told them that he had two sworn statements from two different girls And approximately what the contents were of them Q Did he tell them the contents or did he- A Yeah, he told them that the girls were complaining about being interrupted during working hours, working time And that it was about passing union cards during working time And that he was going to terminate Myrtle Coker or something to that effect 5 McKay alternated between swing and graveyard shifts and on said she could not get her production out. McKay asked if she had been bothered before and Salamon responded she had been outside by union personnel and on the 25th floor (a break or nonwork area) by other personnel. I note this varies from Tuel's more general testimony as to Mrs. Salamon having been bothered before, which did not specify either the locale or precisely who was involved. McKay asked her if she would write a statement relating the same facts which she did.6 McKay testified that shortly after Mrs. Salamon left, Mrs. Silan had come to Tuel complaining about being bothered by Mrs. Coker about signing a union card and he asked Tuel to bung her. Tuel left and McKay spoke to Silan who said that "she had been bothered also about signing union cards and that she did not want to be bothered while she was working." McKay asked her to make a statement which she did.7 McKay testified he then asked Tuel to come in and he "asked her what she thought about these two incidents" and they talked about them. McKay further testified". . .she told me that these two girls had been bothering her and that she felt that Myrtle Coker should be let go." McKay then testified "I said I would contact Ron Simpson and talk to him. McKay called Simpson. Tuel, as previously set forth (fn. 4), was present for the last part of the conversation. McKay testified he told Simpson he had two sworn statements that Coker had been bothering the girls on the night shift and summarized the statements, that this had occurred at the machines and they had been asked to sign union cards; and Simpson asked did he have signed statements and did he have the cards. McKay said he responded "Yes" and Simpson said "terminate her." They discussed the wording in the resignation form, what the reason would be, and Simpson said, "terminate her for union solicitation on Company premises." Tuel returned at this point. McKay gave her the information to waste on the form and said he'd call back after the action was taken. Tuel was instructed to make sure work at Coker's desk was gathered upon it. A few minutes thereafter, Coker was brought to his office by Tuel. McKay asked for her building pass and she couldn't find it. He handed her the resignation form and said, "You are being terminated for union solicitation on Company premises and I'd like you to sign this form . . .. " Coker read it over and commented, "I've done no more than a dozen other people." McKay said, "I am talking to you and I am not talking to anyone else and I'd like you to sign the form." (Emphasis supplied.) Coker refused to sign and was told her check would be ready in 24-48 hours. Coker got up and December I I was on swing shift He had been on that shift only 4 days at that time Accordingly it would appear that he could not have had extensive personal knowledge of the over 110 people employed on the same floor as Coker 6 This statement says I was working on my machine when Myrtle Coker came & asked if I sent a union card- I flatly said no-so she gave me one to be filled out & will mail it for me-I took the card & I'll mail it myself- I told her-That was around 6 30 P M -Dec 11, 1969 r This statement says When I'm in my machine punching Myrtle Coker go near Leonie's machine and as [sic] if she join the Union and Myrtle give the card to Leome and latter [sic I she ask me if I have one card like Leonie Then I answer I don' t have anything like that so Myrtle handed me and [sic] application card for the Union The time is about 5 30 P M ED S SERVICE CORP walked out McKay then called Simpson to tell him there was no incident when Coker left McKay also testified Coker was a good worker as he had not had any bad reports He said that prior to December 11 he had not had occasion to discuss her work with anyone and had not received her personnel file prior to his conversation with Simpson in which Simpson told him to terminate Coker McKay also testified that Tuel told him that Coker was a good tape operator when he asked Tuel what kind of an operator Coker was and added that " any previous incidents would have been brought up and they were not " McKay said there was no discussion with Tuel about any action less than termination McKay also stated that he did not recommend to Simpson that Coker be terminated but that Simpson made the decision without his recommenda- tion Although McKay and Simpson agreed that Simpson made the decision to terminate Coker there is some difference in version as to their conversation that resulted in Coker's termination Simpson testified that about 9 o'clock in the evening McKay telephoned him at home and said he had a complaint from two different operators that Coker had bothered them by trying to get them to sign union cards when they were working and Coker should have been working Simpson further testified He told me that he had talked to both the girls, what they had said, and told me what he thought should be done He wanted to clarify it with me at that time I listened to everything he presented to me and told me [sic] at this time "yes," to terminate her Simpson then dictated to McKay the exact wording and told him to put down the reason for dismissal was "for the act of solicitation of the Union on a Company premise " McKay again called later in the evening and said she had been terminated and he had written statements from the two women who complained Simpson said he made the actual decision to terminate Coker and the reason was The reason being it's interrupting to other employees while they are trying to work, trying to get them to sign a union card, and also the period in time when the person herself, Myrtle Coker-she should have been working, which she was not Simpson also said he believed in the initial conversation, he covered Coker's work record with McKay who had her personnel record in front of him Simpson added, "I am generally acquainted with her performance in the past It had been good She is a good operator " Simpson at one point said that before making his decision he didn't ask about Tuel's recommendation At another point, Simpson said he acted on recommendations of both Tuel and McKay He said he asked McKay for his recommendation and McKay said he would terminate her Simpson said he did not ask how much production time was lost in McKay's estimation Simpson estimated the length of his conversa- tion with McKay at about 10 minutes Simpson also testified concerning customary termination procedure that he would ordinarily give about 60-percent 8 Some question arose concerning a statement in an affidavit Coker gave a Board agent which if read literally could make it appear that there was more to the conversation with Salamon but further examination of Coker revealed that this referred to another conversation at another time That such was the case is further supported by Salamon s statement which 701 weight to the swing shift supervisor's recommendation in cases of termination which recommendation should be documented by facts, history of employment record including warnings, if any, etc The remaining 40 percent involved in effecting a decision would come from the managers making the decision based on available facts Simpson said he liked to have a complete file to review before making ajudgment Coker testified Salamon sat directly in front of her She got up from her machine, walked to Salamon's desk, and said "Here's another card Do not tear this one up," 8 and that was all she said Coker said Salamon had torn up one before Coker testified that Salamon had not told her she did not want to be bothered but took the card and put it in her purse According to Coker as she walked away Teodora Silan, who sat next to Salamon looked at her and asked for a card Coker told her she didn't have any more and walked back to her desk Subsequently, about 10 minutes later, she found another card and went to Silan and said "I found another card," gave her the card, and went back to her desk Coker placed the time about 7 45, following her break period which ended at 7 30 I note discrepancies as to time among various witnesses but so far as the record reflects these do not appear to have significance in so far as affecting any material findings or conclusions Coker's testimony reflects brief conversations with Salamon and Silan on the evening of December 11 For reasons set forth in footnote 8, supra, I am crediting her testimony in this respect McKay had been informed by Tuel as set forth above In addition he had the statements executed by Salamon and Silan These do not reflect any prolonged or extensive interference with production Simpson testified as set forth that he did not ask how much production time was lost Accordingly based on all the foregoing, I find and conclude that Coker's solicitation of Salamon and Silan did not severely interfere with production I further find and conclude that any direct interference with production that may have been involved was minimal C The Alleged No-Solicitation Rule As set forth, E D S and its named predecessor had taken over operations from Blue Shield on September 11, 1969 At the time Blue Shield's employees were subject to its rules A booklet containing the latest rules issued by Blue Shield, according to Tuel, was distributed to its employees some time in 1969 One of the rules in the Blue Shield Handbook dealt with Solicitation and was as follows Solicitations There shall be no solicitation of employees on company premises by any nonemployee for any purpose There shall be no unauthorized solicitations by employees on company premises on behalf of any club, society, religious organization, or political party An employee shall not solicit on company premises on behalf of a makes no reference thereto Neither Salamon nor Silan were called as witnesses Their statements as indicated are brief Based on all the foregoing and my appraisal of Coker I am crediting her testimony as to her conversations with Salamon and Sdan on December 11 702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD labor organization while the solicitor or person solicited is supposed to be working. Following Coker's termination, in January 1970, the Respondent issued a no-solicitation rule as follows: NOTICE TO ALL EMPLOYEES Based upon long established rules, your attention is called to the following: Solicitation of any type by employees during working time is prohibited. Distribution of literature of any type or description by employees during working time is prohibited. Distribution of literature of any type or description in working areas is prohibited. Violation of any of the above rules will result in immediate disciplinary action including discharge. The General Counsel claims there was no rule against solicitation in effect at the time of Coker's discharge. Simpson testified that in September 1969 he announced to all employees that the rules of Blue Shield would continue in effect under Respondent. Tuel corroborated this testimony. Coker denied hearing such a statement. Without belaboring the matter of recollection of making assertions versus recollection of hearing such, both Simpson and Tuel were definite in their testimony. Also continuance of the rules was a reasonable action to take until new rules were adopted. Simpson's testimony in the main appeared credible and in this instance, where also otherwise supportable, I am crediting his testimony concerning his announcement to employees as to continuing effect of the Blue Shield Rules. As set forth, Tuel also testified the handbook of rules had been distributed by Blue Shield to all employees. The General Counsel argues that this was not sufficient foundation without production of employees. Tuel had been a supervisor under Blue Shield. While her testimony might not establish that every employee actually received a handbook, it does show general distribution. I am so crediting her testimony in this respect .9 Coker was vague about receipt of a handbook such as the one received in evidence but admitted receiving a "white copy." She could not recall reading anything about solicitation and testified she could not recall any occasion in which she was told employees should not solicit for any cause on company time. Although the Blue Shield handbooks had been distributed at some time, this does not reflect that a rule against solicitation was ever specifically called to anyone's attention. Simpson testified that except for a general reference to the Blue Shield handbook,i° when he announced in September the Blue Shield rules would be in effect, that he did not specifically call the no-solicitation rule therein to the attention of the employees. Further, the record in fact reflects, as shown hereafter, that so far as would appear, in practice there were no indicated limitations B The General Counsel contends Tuel's testimony and an affidavit she gave as to the existence of a no-solicitation rule are contradictory and that I should conclude therefrom that there was no rule in effect. I have noted and considered the General Counsel's contentions but am not analyzing them further herein because (1) I do not believe what Tuel may or may not have thought would materially affect the promulgation of a rule on solicitations after E.D.S. took over to the time of Coker's termination. This evidence is considered next. D. Application of the Alleged No-Solicitation Rule Simpson testified that except for the United Fund he had no knowledge of any solicitations and that was supposed to be conducted on nonwork time. McKay testified it was his understanding that all solicitation was prohibited and said he was unaware that any solicitations were taking place. However, Tuel and Coker testified otherwise as to the occurrence of solicitations. Tuel admitted apparently reluctantly to having knowledge of numerous solicitations on company premises and time during the period from September 1969, when E.D.S. took over to December 11, 1969, including one in which she was a principal participant and which involved a substantial period of worktime. Coker enlarged on the number of these including those Tuel participated in with no subsequent denial by Tuel. More specifically, Tuel testified to a collection for a girl on day shift whose husband passed away, where the girls took up a collection for her, a girl on swing shift who was going to have a baby and for whom they took up a collection, and also baseball pools. With particular reference to the World Series in October, Tuel took an envelope around to each employee and asked if they wanted to get into a baseball pool. She collected money from those who did. This took her one-half hour or 40 minutes on worktime. Other betting pools included a check pool which involved the six-digit number on each check with the participants playing poker by using five of the numbers. An envelope was passed around and everyone who wanted to put in a quarter. Tuel said no one person was in charge of this which occurred on payday every other Thursday. These were also on company time. Tuel testified she guessed there were some football pools but said she couldn't remember the girls involved. Tuel said the girls who administered the check pools went around and asked the other girls at their machines .t they wanted to play and put their name down. According to Tuel, most of the time lead operators administered the check pool. Tuel did not stop any of the pools, nor report them to Simpson. Tuel also said the United Crusade came around. Tuel also recalled other collections including buying a ticket at work from a girl for a church bazaar, purchasing a raffle ticket from a girl at work which involved a couple of minutes, and buying a ticket to the Irish Sweepstakes. The latter was initiated in the office at the assignment control desk where the girls received their work. Tuel told the girl she would buy a ticket later in the evening which Tuel did in her office. Coker testified that she heard Tuel talking to employees about football games and "She'd have a number of pools on the sheet that wasn't taken up; and she'd come around, said, `I've only so many more to go.' " Coker heard her talk to a number of girls including the girl who answers the telephone whom Tuel told she bought one for her in the although her conduct and that of others may have affected its continued existence or enforcement, and (2) resolution of this contention is unnecessary to a determination of this case. 10 Simpson asserted he referred to this handbook at an initial meeting in September. There is contrary testimony. However, I find it unnecessary to resolve any such conflict herein E.D.S. SERVICE CORP. 703 name of her grandson. Coker said she saw Tuel "Just going up and down the aisle to everybody's desk." Tuel asked Coker specifically if she wanted to buy a ticket to a football game in November . Apparently with reference to this pool, Coker said that the soliciting went on during worktime for 3 or 4 hours while it went all over the office . Coker also testified Tuel had collected for birthday pools and later turned this regular pool collection over to the telephone operator to collect. This was 25 cents once a month for a birthday gift-collected on worktime on payday. Coker said she contributed to and saw Tuel collecting for check pools on payday every other Thursday. Coker testified as to seeing Tuel going about and collecting for these pools. The foregoing reflects amplification by Coker of Tuel's part in pool collections . Where there is variance, I am crediting Coker since Tuel , as a supervisor, was naturally somewhat reluctant to indicate the full extent of her participation . This is reflected in her record testimony and was manifested in expression and attitude in testifying.ll Accordingly, I find Tuel had been involved in soliciting for baseball pools, football pools, check pools, and also birthday pools and that others also participated in such solicitations and also in solicitations for such matters as babies, church bazaars, raffles, Irish Sweepstakes, etc. Obviously, these all took up worktime, some both regularly and extensively. E. Penalties for Offenses Generally The handbook relied on by Respondent for its alleged no-solicitation rule, supra, also contains a rule as to termination: Termination The company may terminate employees with notice for unsatisfactory work performance. In some cases, depending on the seriousness, employees may be released without notice. Pay may be given in lieu of notice under certain circumstances. Pay in lieu of notice generally will not be made in serious cases, or when repeated warnings have been given. Testimony was also elicited of Simpson that a large number of written warnings had been issued to employees. The majority had been for excessive absenteeism , tardiness, and low production. McKay said that during his brief tenure prior to Coker's discharge he had had reason to issue warnings for attendance problems to five or six employees. He spoke to each one involved and discussed the problem with them as one involving loss of production. Tuel also admittedly told Simpson after Coker 's termina- tion she had violated the no-solicitation rule. Tuel was retained but told "There would be no more." F. Additional Findings and Conclusions From the foregoing, although it may be arguable whether or not the rules of Blue Shield applicable to solicitation had been adopted and continued under E.D.S. and employees generally notified thereof, I have concluded that the rules of Blue Shield were continued in effect and the employees notified to such effect. However, it is clear the no- solicitation rule was not specifically called to their attention.12 On the contrary through the numerous solicitations for various purposes previously set forth, including particularly those by Supervisor Tuel, which extensively occurred and would necessarily interfere with production, it is evident that employees had every reason to believe there was no no-solicitation rule in force and effect. Also any claim by Respondent of improper production interference on the part of Coker through her solicitation is negated by the extent of unrestricted interference involved in the soliciting by Tuel (and others with Tuel's knowledge) during the period from September 11, when E.D.S. took over, to December 11.13 Accordingly, not only could this conduct be said to estop Respondent from asserting such a rule but, under the circumstances, application of a rule to Coker and not the numerous and extensive other instances of solicitation clearly was disparate and discriminatory,14 and I so find. Respondent contends to the contrary that the evidence does not establish discriminatory enforcement citing Serv- Air, Inc., 175 NLRB No. 128, in which the Board held that the circulation of an election petition on working time did not establish permission where the evidence did not indicate that this was brought to the attention of management and in which the Board held that evidence pertaining to instances of worktime collections for beneficent purposes (family of deceased employee, hospi- talized wife, community chest), was insufficient to establish disparate enforcement of the rule. The claim of lack of knowledge by higher management asserted by Respondent is clearly unsupportable where as set forth one of Respondent's own supervisors, Tuel, was involved in numerous and various acts of solicitation on worktime and, in addition, was aware of a substantial additional number of such solicitations. As for the number and nature of instances of solicitation involved, Serv-Air is clearly distinguishable. The number and extent thereof was small in Serv-Air in contrast to the numerous and extensive solicitations in the instant case while the nature of most solicitations occurring herein were not beneficent but involved lotteries and betting pools-raffles, sweepstakes, baseball pools, football pools, check pools, etc. The Serv-Air decision is accordingly inapropos. Respondent also contends that the General Counsel has not demonstrated that "the other isolated instances of solicitation resulted in a corresponding interference with production" citing Atkins Pickle Compa- ny, 181 NLRB No. 144. The record herein is replete with other instances of solicitation as set forth occurring during a 3-month period September 11 to December 11, and obviously taking up very substantial amounts of production time and necessarily materially interfering with production in contrast with the minimal nature of Coker's solicitation. 11 Tuel while testifying was manifestly not happy about having to describe these solicitations. This reaction is not surprising and under the circumstances, while I believe she tried to respond credibly, there appeared to be some omissions of recollection. 12 As for its validity, there may be some ambiguity and a possible question as to a provision for authorized permission of solicitation for certain matters but not union solicitation. For reasons set forth above, it is unnecessary to pass on the validity thereof. 13 Actually as found the time involved in the interference with production through the solicitation by Coker was minimal. 14 See H. R. Block, 150 NLRB 341 at 343. 704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The other solicitations, herein, were not isolated but very numerous and extensive and clearly resulted in a corre- sponding interference with production. The Atkins Pickle case is therefore inapplicable. Finally, Respondent's motivation is further reflected by the manner and circumstances surrounding and involving the termination , including the immediacy thereof, conflict in testimony of supervisors as to who recommended what action, the fact of Coker admittedly having a good record with no indication of any derelictions , the failure to question her as to the solicitation prior to the determination to terminate her, the fact that the rule had never been specifically called to the employees' attention, the limited amount of actual interference with production involved, and the failure to consider or take lesser action such as reprimand or suspension in view of Coker's good record, which was contrary to action taken in the cases of attendance, absenteeism, etc., where reprimands had been given. It is accordingly clear that Respondent's asserted basis for Coker's termination , namely the solicitations and interference with production , was pretextual and I so find.15 Based on all the foregoing, I find that Coker was not terminated therefor but because her solicitation was for the Union. I accordingly further find that her termination was violative of Section 8(a)(1) and (3) as alleged. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent , set forth in section III, above, occurring in connection with the operations of Respondent set forth in section I, above, have a close, intimate, and substantial relation to trade , traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent discriminated against Myrtle Coker by discharging her, it will be recommended that Respondent offer her immediate and full reinstatement to her former job or, if that job no longer exists, to a substantially equivalent position , without prejudice to her seniority or other rights or privileges . It will also be recommended that Respondent make her whole for any loss of earnings she may have suffered by reason of the discrimination against her by payment to her of a sum of money equal to the amount she normally would have earned as wages from December 11, 1969, to the date of Respondent's offer of reinstatement to her, less her net earnings during said period . Loss of earnings shall be computed in accordance with the formula prescribed in F. W. Woolworth Company, 90 NLRB 289, and interest at the rate of 6 percent per annum shall be added to the backpay computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. It will also be recommended that Respondent preserve and make available to the Board upon request payroll and other records to facilitate computation of backpay. Upon the basis of the foregoing findings of fact and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By discriminating in regard to the hire and tenure of employment of Myrtle Coker to discourage membership in a labor organization , Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and ( 1) of the Act. 4. The aforesaid unfair labor practice is an unfair labor practice affecting commerce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in the case, it is hereby recommended that Respondent , E.D.S. Service Corporation: 1. Cease and desist from discouraging membership in Freight Checkers, Clerical Employers and Helpers Union, Local 856, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization of its employees by discnmi- nating in regard to their hire and tenure of employment, or any term or condition of employment. 2 Take the following affirmative action which it is found will effectuate the policies of the Act: (a) Offer Myrtle Coker immediate and full reinstatement to her former job or, if that job no longer exists, to a substantially equivalent position without prejudice to her seniority or other rights and privileges. (b) Make Myrtle Coker whole for any loss of earnings she may have sustained as a result of the discrimination against her in the manner proscribed in section V of this Decision entitled "The Remedy." (c) Preserve and, upon request, make available to the Board, for examination and copying, all payroll records, social security records, timecards, personnel records and reports, and all other records necessary or useful to an analysis of the amount of backpay due under the terms of this Recommended Order. (d) Notify Coker, if presently serving in the Armed Forces of the United States, of her right to full reinstate- ment, 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. (f) Post at its place of business located in San Francisco, 15 See Singer Company, 153 NLRB 922 at 924, see also Idaho Potato Processors, 322 F 2d 573 (C A 9), enfg 137 NLRB 910 And see Wm H Block Co, In 14, supra E.D.S. SERVICE CORP. 705 California, copies of the attached notice marked "Appendix A." 16 [Board's Appendix substituted for Trial Examiner's Appendix] Copies of said notice to be furnished by the Regional Director for Region 20, shall, after being duly signed by an authorized representative of Respondent, be posted by Respondent, immediately upon receipt thereof and maintained by it for 60 consecutive days thereafter in i6 In the event no exceptions are filed as provided by Sec 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 Sec 102 48 of the Rules and Regulations , be adopted by the Board and become its findings , conclusions, and order, and all objections thereto shall be deemed waived for all purposes In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the 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. (g) Notify the Regional Director for Region 20, in writing, within 20 days from the date of this Decision, what steps Respondent has taken to comply therewith.17 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 " 17 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify the Regional Director for Region 20, in writing, within 10 days from the date of this Order, what steps it has taken to comply herewith "