Greentree Electronics Corp.

GREENTREE ELECTRONICS CORP. 919 Greentree Electronics Corporation and Industrial Union of Marine & Shipbuilding Workers of America, AFL-CIO. Case 21-CA-8176 June 23, 1969 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS BRO^h N AND ZAGORIA On January 27, 1969, Trial Examiner Henry S. Salim issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. He further found that Respondent had not engaged in certain other unfair labor practices alleged in the complaint. Thereafter, the General Counsel filed exceptions to the Trial Examiner's Decision and a supporting brief, and the Respondent filed cross-exceptions and a brief in support of the Trial Examiner's Decision, in opposition to the exceptions of General Counsel, and in support of Respondent's cross-exceptions. 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 with the following modifications: The Trial Examiner found and we agree that Respondent violated Section 8(a)(1) of the Act by promulgating and maintaining a rule barring solicitation on company property at any time without company . permission. However, we find merit in the General Counsel's exceptions to the Trial Examiner's failure to find that employees Matlock and Murdock were discharged in violation of Section 8(a)(3) because of their union activities in contravention of Respondent's rule. In January 1968, the Company posted on its bulletin board a set of rules including the following: "Soliciting for an outside organization on company property will not be permitted without company 'The Respondent has excepted to certain credibility findings made by the Trial Examiner . It is the Board's established policy not to overrule a Trial Examiner' s resolutions with respect to credibility unless the clear preponderance of all the relevant evidence convinces us that the resolutions were incorrect. Standard Dry Wall Products, Inc.. 91 NLRB 544, enfd. 188 F.2d 362 (C.A. 3). We find no such basis for disturbing the Trial Examiner's credibility findings in this case. permission."2 There was no evidence that this rule was ever enforced as to nonworking time, but in July 1968 two employees were discharged for passing out union cards on company time. Murdock, the first employee to be discharged, was seen by a supervisor handing some cards to another employee while the latter was at his machine. The employees saw the supervisor and stopped what they were doing. The supervisor reported the incident to the personnel director, who sent for Murdock and discharged him for violation of a "company policy" against working time solicitations. During the discharge interview Murdock was asked who had given him the cards he had. Murdock stated that it was employee Matlock, and on further questioning, that they were given to him during working hours. Matlock, an employee of 4 years, was summoned and was also summarily discharged for violating the same "company policy." In recommending dismissal of the 8(a)(3) allegations, the Trial Examiner found that because the alleged discriminatees engaged in worktime solicitation, they were terminated for just cause. He further concluded that there was no causal connection between the unlawful rule and the employee conduct leading to the discharges. We disagree. The Trial Examiner's rationale presumes that, despite the absence of a valid rule, employers may terminate employee organizers who engage in work-time union solicitation even though the activities of the employees entail no interference with production or plant discipline. In our opinion, the question of whether worktime solicitation is protected or unprotected activity cannot be determined on an absolute basis. On the contrary, the result must turn on the delicate balance that must be maintained between the employee's right to engage in organizational activity and the employer's responsibility for the maintenance of rules necessary to efficient operation of the plant. This balance must be administered in a fashion ensuring that reprisals are not taken against the principal in-plant organizers where legitimate interests of employers are not involved. A discharge based on worktime distribution of cards in the absence of a valid rule is suggestive that the employer was reacting to the protected aspect of the employee's conduct, rather than considerations of plant efficiency. Accordingly, in Selwyn Shoe Manufacturing Corporation.' it was held that in the absence of such a rule it was not a sufficient defense that the dischargee's activities (in that case, antiunion activities) "impinged on working time." The Board said: There must also be a showing that the discharge flowed from [the employee's] abdication of her 'We adopt the Trial Examiner's finding that the promulgation of this rule violated Sec. 8(axl). '172 NLRB No 81. 176 NLRB No. 126 920 DECISIONS OF NATIONAL LABOR RELATIONS BOARD working duties rather than from the fact that she engaged in solicitation against the Union.' The evidence in the present case indicates that the concern of the Respondent was the union solicitation, not the interference with production or maintenance of plant discipline. In the first place, the rule in existence at the time of the discharges restricted solicitations without regard to whether they were conducted on working time or in working areas. Therefore, the rule itself barred organizational activity which in no sense could interfere with plant operations. Nor do the conditions under which Respondent discharged the employees reveal a concern for efficiency of operations. Thus, as to Murdock, although the Trial Examiner states " [i]t is not unreasonable to infer, and it is so found, that Murdock interfered with [another employee's] work,"' the evidence reveals no more than that Murdock gave union cards to another employee and was seen doing so by a supervisor. In the case of Matlock there was only the fact that she gave some cards to Murdock during working hours. In neither case did the Respondent inquire into whether or not there was any actual or threatened disruption of production, and, in fact, both employees were expressly discharged for soliciting during working time, with no mention or hint at their discharge interviews that they were interfering with production or creating disciplinary problems. In these circumstances, we find that Respondent discharged Murdock and Matlock not in the interests of maintaining production but rather, in reprisal for their union activities.' Accordingly, we find that Respondent thereby violated Section 8(a)(3) and (1) of the Act.' THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The acts of the Respondent set forth above occurring in connection with its operations as described in the section of the Trial Examiner's Decision entitled "Jurisdictional Findings," 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. CONCLUSIONS OF LAW 1. Greentree Electronics Corporation at all material times has been and is an employer engaged in commerce within the meaning of Section 2(2) of the Act. 2. By discharging Antoinette Matlock and Jerry Murdock because of their union activities, the Respondent discriminated against Matlock and Murdock in their hire and tenure of employment and has discouraged membership in a labor organization, and has thereby engaged in unfair labor practices in violation of Section 8(a)(3) of the Act. 3. By the foregoing conduct, and by promulgating and maintaining a rule restricting solicitations for a union during nonworking time, the Respondent has interfered with, restrained, and coerced employees in the exercise of their Section 7 rights and has thereby engaged in unfair labor practices in violation of Section 8(a)(l) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of the Act. THE REMEDY Having found that Respondent engaged in unfair labor practices in addition to those found by the Trial Examiner, we shall order Respondent to cease and desist therefrom and to take the additional affirmative action necessary to effectuate the purposes of the Act. We have found, contrary to the Trial Examiner, that Respondent discriminatorily discharged Antoinette Matlock and Jerry Murdock. We shall therefore order Respondent to offer immediate and full reinstatement to Antoinette Matlock and Jerry Murdock and make them whole for any loss of earnings they may have suffered by reason of the discrimination by payment to each of them of a sum of money equal to the amount each normally would have earned as wages from the date of discharge to the date of offer of full reinstatement, computed in accordance with the formulas set forth in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. ORDER 'td. at p.7. 'Trial Examiner's Decision. 'Although unnecessary to this conclusion , it is noted that uncontradicted testimony shows that the Respondent 's president, shortly after the termination of Murdock and Matlock , and in the context of an antiunion speech, announced to employees that the discriminatees were terminated because of their union activities on company time. 'Cf. LTV Electrosystems, Inc, 169 NLRB No. 64, enfd. in pertinent part 408 F.2d 1122 (C.A. 4); Central Power d Light Company, 173 NLRB No 50; New Orleans Furniture Manufacturing Co, 129 NLRB 244, 251. Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Greentree Electronics Corporation, Costa Mesa, California, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Promulgating and maintaining any rule prohibiting employees from soliciting for a union during nonworking time. GREENTREE ELECTRONICS CORP. (b) Discouraging membership in or activities on behalf of Industrial Union of Marine & Shipbuilding Workers of America, AFL-CIO, or any other labor organization, by discharging employees or by discriminating in any other manner in regard to their hire, tenure of employment, or any term or condition of employment. (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights guaranteed under Section 7 of the National Labor Relations Act, as amended. 2. Take the following affirmative action which it is found will effectuate the policies of the Act: (a) Offer to reinstate Antoinette Matlock and Jerry Murdock to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earnings suffered by "reason of the discrimination against them, in the manner described in the section of this Decision entitled "The Remedy," and notify them, if they are presently serving in the Armed Forces of the United States of their rights 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. (b) Preserve and, upon request, make available to the National Labor Relations Board and its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to determine the amount of backpay due hereunder. (c) Post at its plant in Costa Mesa, California, copies of the attached notice marked "Appendix."8 Copies of said notice, on forms provided by the Regional Director for Region 21, after being duly signed by a representative of the Respondent, shall be posted by it immediately upon receipt thereof, and be maintained for 60 consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the said Regional Director, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith. MEMBER ZAGORIA, dissenting in part: Like my colleagues I would affirm the Trial Examiner's finding that the Respondent violated Section 8(a)(1) by promulgating a rule that "Soliciting for an outside organization on company property will not be permitted without company permission," because the rule interfered with its 'In the event that this Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals Enforcing an Order " shall be substituted for the words "a Decision and Order." 921 employees' right to engage in union solicitation on company property on nonworking time. Unlike them, however, I would also affirm the Trial Examiner's dismissal of the allegation that the discharges of Matlock and Murdock were violative of Section 8(a)(3). As my colleagues concisely put it, these employees "were expressly discharged for soliciting [for the Union] during working time." Furthermore, the evidence, in my view, fails to establish that the reason given was a pretext. Thus, there is no showing that the Respondent is hostile to unionism; nor does it appear that the Respondent was motivated by antiunionism, or even had unionism in mind, when it posted the rule. The only unfair labor practice which it committed was its posting of that portion of the rule which, by prohibiting union solicitation on nonworking time, inherently interfered with Section 7 rights; however, as my colleagues agree, the unlawful portion of the rule was never enforced. Insofar as the rule prohibited union solicitation on working time, it was lawful on its face, and there is no evidence that it was disparately applied. These employees clearly were guilty of transgressing the lawful portion of the rule. I would therefore find that they were discharged for cause, and that the Respondent was under no obligation to establish that the transgressors interfered with production or created disciplinary problems. APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Decision and Order of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT discourage membership in or activities on behalf of Industrial Union of Marine & Shipbuilding Workers of America, AFL-CIO, or any other union, by discharging employees or otherwise discriminating against them in regard to any working conditions. WE WILL NOT promulgate or maintain a no-solicitation rule prohibiting solicitation on behalf of a union during nonworking time. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights guaranteed under Section 7 of the National Labor Relations Act, as amended. WE WILL offer Antoinette Matlock and Jerry Murdock their former jobs and pay each of them for wages he lost as a result of his discharge, with 6 percent interest. If they should currently be serving in the Armed Forces of the United States we will notify them of their rights to full reinstatement after discharge from the Armed Forces upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended. Our employees are free to become or remain, or refrain from becoming or remaining members of any union. 922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD GREENTREE ELECTRONICS CORPORATION (Employer) Dated By (Representative) (Title) 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. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, Eastern Columbia Building, 849 South Broadway, Los Angeles, California 90014, Telephone 213-688-5254. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE HENRY S. SAHM, Trial Examiner: This proceeding, under Section 10(b) of the National Labor Relations Act, was heard in Los Angeles, California, on November 14 and 15, 1968, pursuant to due notice. The complaint, which was issued on September 16, 1968, on a charge dated July 15, and amended on September 12, alleged that Respondent engaged in unfair labor practices proscribed by Section 8(aXI) of the Act by interrogating employees, creating an impression of surveillance and enforcing a no-solicitation rule for a discriminatory purpose. In addition, the complaint alleges two employees were discharged because of their union activities in violation of Section 8(a)(3) of the Act. Respondent answered denying the said allegations . Briefs were filed by the parties on December 5, 1968. Upon the entire record in the case and from observation of the demeanor of the witnesses while testifying, there are hereby made the following: FINDINGS OF FACT 1. JURISDICTIONAL FINDINGS Respondent, a corporation,' employing approximately 65, has its principal place of business in Costa Mesa, California, where it is engaged in the manufacture and sale of magnetic tape. It sells and ships annually to extrastate points products valued in excess of $50,000, and is, therefore, engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Charging Party is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Organizational activity involving a union, other than the Charging Union, was initiated in June 1967. It culminated on September 1, 1967, with that union not receiving a sufficient number of votes in a Board-conducted election in order to qualify as collective-bargaining representative of Respondent's 'The complaint fails to reveal in which State the Respondent Company was incorporated employees. The Company posted on its bulletin board, located next to the employees' timeclock, a notice dated January 18, 1968, which reads in pertinent part: "An infraction of any of the following rules will be considered grounds for disciplinary action or dismissal: . . . Soliciting for an outside organization on company property will not be permitted without company permission."2 In June 1968 , Antionette Matlock, one of the two alleged discriminatees in this proceeding, telephoned Charles West, an organizer of the Charging Union, and requested that he mail her union authorization cards with the eventual purpose of having the Union represent Respondent's employees. He complied with her request and upon receipt of these authorization cards, she proceeded to distribute them. On July 18, 1968, Murdock, the other discriminatee, handed a fellow employee, who was working at his machine, union authorization cards and asked him to distribute them to other employees. This was observed by a supervisor who accused Murdock of soliciting employees to sign union cards on company time, and premises . Murdock admitted his guilt and implicated his coworker Matlock, stating he had received the cards from her. Murdock, signed a termination paper, was given his check and discharged A few minutes later, Matlock was called into the personnel director's office and confronted with Murdock's accusation that she had given him union cards. She denied the charge at first but finally admitted it. She was handed a termination notice, signed it, given her check and discharged for violating the Company's no-solicitation rule. B. The Facts 1. Section 8(a)(1) There is no dispute over the facts with respect to this alleged violation. It is acknowledged by the Respondent that the language of the posted no-solicitation rule was too all-encompassing in that it forbid employee solicitation on their own time. However, argues Respondent, the notice was drafted by its former director of personnel, a layman, who was neither versed nor conversant with labor law or the semantic intricacies of drafting a valid no-solicitation rule. Moreover, Respondent states, in actual practice, it had never prohibited solicitation on an employee's own time but only on company or working time. These extenuating circumstances, however, merely explain but cannot legally justify the posting of the notice, detailed above, as the employees of Respondent are not grammarians. The law is explicit, however, that the rights of employees to engage in solicitation or distribution of literature on company premises during nonworking time is one of the rights guaranteed by Section 7 of the Act. This right may be circumscribed only if the employer can demonstrate that unusual circumstances make some limitation on the right necessary to maintain production or discipline.' No such circumstance has been shown here. Accordingly, it is found that Respondent violated Section 8(ax I) of the Act.' 'The bulletin board is neither enclosed in glass nor locked The no-solicitation notice consisted of two pages, one on top of the other, with the part quoted above on the second page which could be read by lifting the first page. 'Cf N L R.B v. Mock Road Super Duper, Inc., 393 F 2d 432 (C A 6), and the Board's decision in the same case, 156 NLRB at p. 984 'See Republic Aviation Corp. v N L.R B , 324 U S. 793, 797-798, 803 GREENTREE ELECTRONICS CORP. 923 2. Murdock' s discharge Murdock, who was employed as a•slitter, was hired on August 31, 1967, and fired on July 12, 1968. He admits that he importuned Roger Canup, a fellow employee, to sign a union card while Canup was operating the machine to which he was assigned. He also gave Canup additional cards to solicit other employees. Murdock stated that on July 12, 1968, about 9 a.m., he was called into the office of Schiavone, the director of personnel, at which time his supervisor, Clarke, also was present. Murdock's testimony continues: They asked me about the union and if I was passing out the cards, and I said yes . . . he [Clarke] might have asked me if I had given a card to [Canup] and I said, yes. He said you are terminated. Then he told me I could have gone a long way with the company and that I was a good slitter .... Murdock admitted Matlock spoke to him about the Union at the plant but denied it was on company time. Ralph L. Schiavone, director of personnel, testified as follows: Mr. Clarke told Jerry [Murdock] that Roger Canup had told him that Jerry [Murdock] gave Roger [Canup] a union card. Jerry [Murdock] at that point said, why you saw me, you were standing there . . Clarke asked Jerry [Murdock] if he wasn't happy at Greentree and Jerry [Murdock] said, yes, I am. He said then why are you giving out union cards on company time, and he said he was doing it as a favor for Toni Matlock, she asked me to give them out to the second shift because she didn't know anyone on the second shift. Fred [Clarke] asked Jerry [Murdock] when did she [Matlock] give you the cards, and he said during the day sometime . Fred said on company time, and he said I suppose. At this point Fred asked him again did you know this was a violation of company policy, the no solicitation rule on company time, and he said I think so. Then I asked him to read a statement and informed him that we were terminating him as a result of his violation of company policy . He read it and I asked him, do you understand its meaning and effect and do you have any questions, and he said, no, where do I sign . . . . He was given his check and asked to leave. The version of Murdock's discharge by the supervisor of the slitting room, Fred Clarke, reads as follows: I walked up to the slitting area approximately 20 after 3:00 . . The 15 minute overlap was arranged [in order that] the swing shift could take over the machines and the day shift had 15 minutes to clean up the garbage [waste and trash from the machines], therefore [there was] a continuity of production . . . . I observed Mr. Murdock handing Roger Canup something and an attitude of a suspicious nature . They had a startled look on their faces when I looked up. . . . I didn't say anything to the employees. I reported to Mr. Schiavone . He asked me to observe fully and investigate from Canup if in fact this was a union card . . . . I did and he did say that Mr. Murdock gave him a card. [Clarke requested Murdock to go to Schiavone's office.] I fn. 10; King Radio Corporation, Inc v. N.L R B., 398 F 2d 14 (C A. 10); As to contract prohibitions, cf. Gale Products, 142 NLRB 1246; General Motors Corporation v. N L. R B., 345 F 2d 516 (C.A. 6), and N L. R B v Mid-States Metal Products, Inc., 403 F 2d 702 (C.A. 5), 69 LRRM 2656 believe I started out with saying, Jerry, in the past I have had many opportunities or many reasons to fire you and Mr. Murdock agreed. I said it has come to our attention that you have passed a union card and that you just passed one to Mr. Canup and we are going to terminate you for this. Mr. Murdock's reaction was wait a minute, he said, like that, he said I handed these cards out doing someone a favor, and I said who was it and he was reluctant to answer the question. I said to him, was it Toni Matlock and he said, yes. Toni asked me, gave me some cards and asked me to give them out to the second shift because she didn't know anyone on the second shift .... We asked Jerry if he knew he was doing the wrong thing and he said, yes, I know that was wrong doing, and he said I went in to it with my eyes open. He said you are only doing your job; there is no hard feelings. Then he said, do you want me to go, and I said no, hold on, you've got to be paid and also you've got to sign this. So Mr. Schiavone handed him the statement that he sat and read and he was asked if he fully understood it, and he said he did, and he signed it and we gave him a copy of the statement, I believe, and also his paycheck. 3. Matlock's discharge Matlock was employed as a rewinder from June 22, 1964, to July 12, 1968. She telephoned an organizer of the Charging Union in June 1968, and asked him to mail her union cards which she proceeded to distribute to ,Respondent's employees. On the morning of July 12, she was called into Schiavone's office and Clarke, according to Matlock's testimony, said to her: . that I was passing union cards around and that I had given Jerry [Murdock] a union card, and I said I did not, and he said that I did, and I said I did not, and he said you did. Then he said why did Jerry [Murdock] sign a deposition say you had given him a card if you hadn't, that you had given him a card, if you hadn't. So I said I don't know, but I did not do it and we were argumentative back and forth and then finally I asked if there was something he was trying to tell me . . . I will swear on a stack of Bibles that I didn't give him a card, but if you want me to say it that I did, I did, and then Mr. Schiavone read the verification of termination and I signed it and Fred [Clark] . . . said if you didn't give him any cards, why do you say you did? I just raised my hands and they escorted me out to the car. Schiavone testifed as follows: I then instructed Mr. Clarke to bring Mrs. Matlock to my office about 9:00 or some 30 minutes later. In the interim period I went out to my secretary and had her type a statement similar to this and had a check drawn up for Mrs. Matlock .... Mrs. Matlock came into the office .... Then Fred said, we have been informed that you have been passing out union cards on company time and she denied it. He said, well, Toni, Jerry Murdock told us that you gave him union cards, and she said, well, if he said I did I guess I did. Fred then said, you don't have to admit to anything, unless it is true. Then she said if Jerry said I did I guess I did and then I intervened and said in that case this constitutes a violation of company policy and no solicitation rule on company time. I read her the statement and asked her if she understood its meaning and effect, and she said she did and where do I sign it and that was the end of that. 924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Clarke's version of Matlock's discharge reads as follows: About 15 or 20 minutes later Matlock was called into the office. I said, Toni, it has been brought to our notice that you have been handing out union cards on company time, and she said, not me. I said, Toni, it is common knowledge that you have union cards and that you have been handing them out. She said I did not ... . And she said that she did not, but I said, Toni, Jerry Murdock has admitted that he got the cards from you, and she said if he said I did, just say I did and let's leave it at that. What is going to happen now, are you going to let me go? ... Mr. Schiavone said ... we are going to let you go for soliciting for an outside organization on company time . . . Mr. Schiavone I believe read the article to her, and gave it to Toni to read, and asked her if she understood exactly what she was signing and she said she did. She signed it, and she was given her paycheck. 4. Credibility In determining credibility in this proceeding, the following has been considered inter a/ia: the demeanor and conduct of the witnesses; their candor or lack thereof; their apparent fairness, bias or prejudice ; their interest or lack thereof; their ability to know, comprehend, and understand the matters about which they have testified; whether they have been contradicted or otherwise impeached ; the interrelationship of the testimony of witnesses and the written evidence presented ; and the consistency and inherent probability and plausibility of the testimony and the probative diminution of answers elicited by leadin# questions asked of witnesses by counsel.' Judge Medina discussed the indicia involved in judging credibility when he commented as follows:' "By what yardstick and in accordance with what rules of law are you to judge the credibility of the witness . ? This judging of testimony is very like what goes on in real life . You ask yourself if they know what they are talking about . You watch them on the stand as they testify and note their demeanor . You decide how their testimony strikes you." The Supreme Court held' before the enactment of the Labor Management Relations Act of 1947 (67 Stat. 136), that the evidence necessary to make a finding of an unfair labor practice must be "substantial ." Substantial evidence is such evidence as affords a substantial basis of fact from which the fact in issue can be reasonably inferred.' Substantial evidence must be such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Substantial evidence must have rational probative force ; it must carry conviction ; it must be more than a scintilla, and must do more than create a suspicion of the existence of the fact to be established.' And the test is not satisfied by evidence which gives equal support to inconsistent inferences." Furthermore, the burden is upon the General Counsel to prove affirmatively and by substantial evidence that the acts alleged in the complaint were illegally motivated." 'See Liberty Coach Company, Inc., 128 NLRB 160.• 'U.S. v Foster, 9 F.R.D 367, 388-390 (S D.N.Y.). 'Consolidated Edison Company of New York, Inc. v N.LR.B, 305 U.S 197, 229 'N.L R B v. Columbian Enameling & Stamping Company, Inc.. 306 U.S. 292, 299. 'Universal Camera Corp v. N L R B, 340 U.S. 474, 477 Moreover, the Board and the Courts, in other cases where it has been found that the Respondent had committed unfair labor practices, have considered a respondent's animus or hostility toward union activities. '_ Evenhanded justice would require that where there is no substantial evidence produced by the General Counsel to show such antiunion bias, that this factor should be considered in evaluating whether the Respondent in this proceeding has committed any unfair labor practices. There is no substantial evidence, if any evidence at all, in the record of this case to support such a conclusion. This probative and significant factor also casts doubt upon the representative of the General Counsel's statement in his brief (p. 1), that Murdock and Matlock were discharged "because they engaged in union activity." His contention that these two employees were discriminatorily terminated in retaliation for engaging in union activities lacks a crucial element - independent evidence of antiunion motivation which is essential to finding a prima facie case of discrimination within the meaning of Section 8(a)(3) of the Act.' The General Counsel's representative alleged at the hearing that: "Mrs. Matlock was brought in, she was questioned in a form which was very harassing she will describe it herself - she was frightened to death - first she vigorously and repeatedly denied that she had given Mr. Murdock any cards and finally in order to get away from the frightening and frightful situation, she admitted she had and she signed the termination papers and fled in fear of her life."' The General Counsel's representative in his brief argues, however, that "the evidence with reference to the discharge of Matlock shows clearly the lengths to which Respondent was prepared to go to find a pretext for the discharge ." He states Matlock "vigorously" denied the accusation of giving Murdock union cards "but in the face of persistent and loud questioning, she threw up her hands and said, if you want me to say I did, I did. Using this equivocal statement as a confession" continues the brief, "Schiavone promptly discharged Matlock, as he had planned to all along." 5. Resolution of credibility and concluding findings Murdock's testimony was inconsistent, equivocal, evasive, contradictory, and in some respects incredible. It is uncontradicted that Canup was operating his machine when Murdock interrupted him by asking him to sign a union card and to solicit his coworkers on the second shift. It is not too unreasonable to infer, and it is so found, that Murdock interfered with Canup's work. However, Murdock denied he made this request of Canup on company time, testifying that the first shift on which he worked from 7 a.m. to 3:30 p.m. had ended." The testimony of Murdock himself on cross-examination as well as the timecards of both he and Canup" reveal there "Eastern Coal Corporation v N L R B, 176 F 2d 131, 135, 136, (C A 4). "See Martel Mills Corporation v. N L.R B. 114 F 2d 624 (C A 4), NLRB v Entwistle Mfg Co, 120 F 2d 532 (C A. 4). "'It is self-evident, of course, that employers do not welcome the advent of a union. "Economy Stores, Inc, 120 NLRB 1, 8; Schwob Manufacturing Company v. N L R B, 297 F.2d 864 (C A. 5) "See N L.R B v. Bdlen Shoe Co , 397 F 2d 801 (C A 1). "The hours of the second shift were 3:30 p.m to midnight. "Resp Exh 6 and 7. GREENTREE ELECTRONICS CORP. is an overlap of 15 minutes between the first and second shifts during which time the first shift employees clean up around their machines while the second shift employees prepare to operate the same machines that were in use during the first shift. Murdock admitted this when he acknowledged there was a "cleanup time" overlap of "about 10 minutes." Murdock's testimony as to these material facts was willfully untrue so that this furnishes a ground for disbelieving his other testimony and tends to show consciousness of wrongdoing on his part and has probative force as to his credibility. The bulletin board is at eye-level next to the timeclock which records the time of an employee's arrival and departure from work. Posted on this bulletin board are various written communications and announcements for the employees' information as well as notices required by law to be brought to their attention. Although the notice regarding solicitation had been posted for 6 to 7 months on this bulletin board prior to the time Murdock gave Canup the union cards, he incredibly testified he was unaware of any no-solicitation rule and that he had neither seen the notice nor the bulletin board itself although it was next to the timeclock which he punched ten times a week. See p. 2, supra. Murdock's testimony that he did not know of any company rule prohibiting solicitation on company time is also self-contradictory in that he testified he knew he was supposed to devote his entire time and full attention to his duties when on company time and that he was not to interrupt or distract a fellow employee by soliciting him to engage in union activities. Additional corroboration of the untrustworthiness of Murdock's testimony is his incredible assertion that he believed it was permissible to distribute union cards to an employee during the latter's working time - and this, in the face of his testimony that he had been employed at other industrial plants. Furthermore, Murdock admitted at the hearing that he told Clarke and Schiavone he had received the union cards from Matlock although in his affidavit which he gave to a Board investigator, he contradicted himself by denying that he told the company officials Matlock gave him the union cards . When he was asked at the hearing how he explains these inconsistent statements, he lamely answered: "I don't know," and admitted "some part" of his affidavit was incorrect. For these reasons his testimony is not credited except to the extent that it is in agreement with the credited testimony. Matlock did not favorably impress the trier of these facts. Her testimony was ambiguous, equivocal and in some respects incredible. On cross-examination, when the questions asked were not to her liking, she took refuge in obscure replies. She incredibly testified that she did not know it was against company policy to engage in activity of a personal nature on company time and this in spite of being employed by Respondent for four years and her own admission that the no-solicitation notice dated January 18, 1968, was on the bulletin board located, in her own words, "besides the time-clock." She contradicted herself as to whether she was active in the Union. At one point she denied she was active in the 1967 election (other than to attend meetings), but in her affidavit, she stated otherwise. Pavese, a union proponent in the 1967 election campaign, testified she engaged in union activities at that time in nonworking areas on her own time. On the other hand, the testimony of Respondent's witnesses, Schiavone and Clarke was consistent, reasonable, in accord with the probabilities and persuasive. 925 The contention of the General Counsel's representative that Matlock was coerced when she signed the termination paper is belied by the uncontroverted evidence. It is uncontradicted that she first read and then signed the termination paper dated July 12, which reads in pertinent part as follows:" YOU ARE HEREBY TERMINATED, EFFECTIVE THIS DATE, FOR VIOLATION OF COMPANY POLICY. SPECIFICALLY: SOLICITING FOR AN OUTSIDE ORGANIZATION ON COMPANY PROPERTY AND ON COMPANY TIME, WITHOUT PERMISSION. /s/ R. L. Schiavone R. L. SCHIAVONE DIRECTOR OF PERSONNEL I HEREBY RECEIPT FOR THE ABOVE, UNDERSTANDING ITS MEANING AND EFFECT. /s/ Antoinette Matlock ANTOINETTE MATLOCK It is found that when both Murdock and Matlock signed the termination papers that this was a voluntary quit on their part with no misrepresentations, coercion or threats. There is a lack of credible testimony that Respondent's terminations of Murdock and Matlock were motivated by union animus or discriminatory intent . Militating against such a finding is the absence of a scintilla of evidence that the Respondent harbored such animus or that it discriminatorily applied its no-solicitation rule. See above. To establish that a no-solicitation rule was disparately applied to union solicitation, the General Counsel's representative had the burden of proving that prior approval for nonunion outside activities of this type regularly was waived by the company.18 The General Counsel's representative cites the following as evidence that the Respondent Company's no-solicitation rule was applied in a discriminatory manner as to Murdock and Matlock, pointing to the following employees who sold commercial products with no disciplinary action being taken against them by the Respondent Company: (1) Guy Coleman, a "foreman" of the slitting department, selling a pin to Murdock to raise funds for the United States Olympic team; (2) Eleanor Shafer selling Fuller Brush products to the employees; (3) Loretta Ordway selling Avon products to employees; (4) a "check pool" in which employees allegedly participated; (5) Frank Dobratz, a mechanic, who sold girl scout cookies in 1966 for his daughter; (6) Kenneth Pavese who engaged in activities on behalf of another union prior to the September 1, 1967, election when, inter alia, he pasted union stickers about the plant which read "Vote Yes," meaning for the union; (7) Murdock's testimony on rebuttal that he participated in a world series baseball pool along with Larkin, a "foreman." In this case, he did not produce sufficient credible evidence that the no-solicitation rule was discriminatorily applied in the discharges of Murdock and Matlock." There is no basis in the record for concluding they were terminated for proscribed reasons. Both Murdock and Matlock admitted the Company's charges against them and thus proved the accusations leveled against them. "The same paper was signed by Murdock. "Mason & Hanger Co v N L R B, 405 F 2d I (C A 5) "These were the only two employees discharged for violating the no-solicitation rule. 926 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Accordingly, Clarke and Schiavone are credited that Murdock and Matlock were discharged for soliciting and engaging in union activity on company time and not for antiunion considerations. The discharges, based on legitimate and substantial business justifications, constituted a lawful exercise of managerial right and prerogative." With respect to the Olympic pins, the credited testimony reveals that the General Counsel failed to prove that this solicitation occurred on company time. Murdock himself, on cross-examination , stated when asked if Coleman sold these pins on company time: "not exactly. No." Murdock stated that this incident (which occurred in March 1968) was in a nonworking area in the morning before work had begun on the first shift. In fact, Murdock, when questioned by the General Counsel's representative, tacitly admitted the solicitation was not on company time as he testified that he begins work at 7 a.m. and Coleman's shift ends a 7 a.m. Coleman, in refuting the charge that this incident occurred on company time, testified that he either sold these pins during lunch or coffee breaks by placing them on the "foreman's desk in the passageway and if anybody wanted one they could take it and leave their donation." Based upon Coleman's credited testimony, it is found that there was no discriminatory application of the no-solicitation prohibition in the sale of Olympic pins. The uncontradicted evidence reveals that the sale of Fuller Brushes and Avon products by Shafer and Ordway, respectively, was not on company time. Nor has it been established by the General Counsel's representative by a preponderance of the credible testimony that when Dobratz sold girl scout cookies in 1966, for his daughter or when a check pool was allegedly conducted by some employees or when Kenneth Pavese in the summer of 1967 posted union stickers about the plant,32 that such activity was on company time or that Respondent was aware of such activities. 23 Murdock's testimony on rebuttal that a world series pool was conducted by employees and a foreman named Larkin is not credited. Although Murdock testified on his direct examination regarding the Olympic pin incident, he made no mention of the world series pool. When he was recalled for rebuttal, he was asked by Respondent's counsel why he failed to mention this world series pool incident on his direct examination; he incredibly testified: "No one asked me about it."2' At one point in his testimony, he states he saw "foreman" Larkin purchase tickets for this pool on seven occasions but later he equivocated by recalling it was only on two or three days and finally he took refuge in a negative and evasive answer of "I can't remember." Where his testimony on direct examination merely strained credulity, Murdock's. testimony on rebuttal shatters it beyond repair in the context of him implicating Larkin whose ill-timed visit to Ireland at the time of the hearing rendered him providentially unavailable as a witness to give his version of this incident. Moreover, Pavese testified that he never observed any employees engaged in a world series pool. These instances of solicitation cited by the General Counsel were not only unrelated to union activity (except Pavese's union stickers in 1967) but were also de minimis.2s It is not necessary to consider whether a rule barring solicitation must by hypothesis and definition relate and be limited to concerted or protected activities or whether the word "soliciting" in the Company's rule (supra) refers to selling commercial products and not union solicitation. a preponderance of the evidence that Respondent discriminatorily applied its no-solicitation rule by enforcing it only where Murdock and Matlock were involved, while allowing other forms of solicitation on working time. The record in this proceeding reveals that there is not preponderance of the evidence to establish that Murdock and Matlock were discharged for any reason other than their engaging in union activities on, company time and premises. Moreover, the record reveals a lack of support for the General Counsel's contention that the circumstances surrounding the adoption of the no-solicitation rule disclose the rule was promulgated to interfere with the employees' organizational efforts or that it was applied in a discriminatory manner with respect to Murdock and Matlock. Belying the contention is the 1967 organizational campaign culminating in the September 1, election, as well as the Company's exemplary conduct in the instances cited by the General Counsel, supra, of the various employees' in-plant activities. In some of these instances, the General Counsel failed to show knowledge on the part of the Respondent and with respect to Pavese's union activities, no wrongdoing or knowledge was shown vis-a-vis Respondent. There is no probative, substantial evidence that the no-solicitation rule was intended to limit union activities more severely than commercial activities, as revealed by Respondent's policy, consistently enforced, which was to limit all types of activities on company time where Respondent was aware of such conduct. The record reveals that Murdock's discharge was due to distracting Canup from his work and Matlock because of her unprotected union activity on company time. When good cause for discharge is clearly established, it should be borne in mind that the burden of proof is on the General Counsel.36 In discharging Murdock and Matlock, Respondent did not discriminate against them within the meaning of Section 8(a)(3) or interfere with the free exercise of employee rights under the Act.27 This is because the statutory language [of Section 8(ax3)] "discrimination ... to . . . discourage" means that the finding of a violation normally turns on "Eleanor Shafer, a witness called by the General Counsel, admitted that she knew it was not permissible to solicit while on company time She testified that if she "was running a business" she would not permit employees to solicit on company time. "Dobratz' uncontradicted testimony is that he requested and received permission from his supervisor provided it was on his own time and not company time. "Pavese, a union proponent in the 1967 election, testified that he has known of the Company' s no-solicitation rule since 1965 , and that the Company never learned it was he who was pasting the union stickers about the plant during the 1967 organizational campaign. "Dobratz' testimony stands uncontradicted that in the summer of 1967, Brant, president of the Company, told all the assembled employees that they could not solicit for any outside organization during working hours "This was not proper rebuttal I Wigmore, Evidence Section 174 (3d ed ) states "The proponent may in his case in rebuttal introduce facts and witnesses appropriate to deny, explain , or discredit the facts and witnesses adduced by the opponent , but not any facts or witnesses which might appropriately have been introduced in the case in chief " "Schiavone testified disciplinary action has been taken with respect to employees drinking intoxicating beverages on company premises and disregarding safety rules. 'IN L R B v Billen Shoe Co, 397 F.2d 801 (C A 1), European Cars Ypsilanti, Inc. 136 NLRB 1595, Phillips & Buttorff Manufacturing Company, 96 NLRB 1091 , Mississippi Products, Inc, 103 NLRB 1388, Ford Motor Co . 23 NLRB 342 "Cf Lincoln Bearing Co v. N L R B, 311 F.2d 48, 50 (C A 6) GREENTREE ELECTRONICS CORP. whether the discriminatory conduct was motivated by an antiunion purpose." No such purpose was shown by the General Counsel in this proceeding . Accordingly, it is recommended that paragraph 11 of the complaint be d ism issed. It is unnecessary to pass on the fact that the no-solicitation rule was too broadly worded and thus invalid and, therefore , the employees' discharges were not bottomed on valid grounds. This is a non sequitur as there is no causal relationship between this invalid rule and their discharges." Their discharges were for valid cause and not union animus. The invalidity of the company's no-solicitation rule which violated Section 8(a)(1) is irrelevant in determining a violation of Section 8(a)(3), as that section in the circumstances here presented requires proof of anti-union motivation to sustain a violation. In the absence of such proof, a discharge based on a company rule invalid under the Act, would not ipso facto render the discharges unlawful under Section 8 (ax3).'° Moreover , the question of whether the invalid no-solicitation rule so tainted the discharges of Murdock and Matlock should be considered in the aggregate. Under the circumstances and on the record as a whole, it is found that the rule's promulgation has no casual connection to the Section 8(a)(3) allegation , nor is it sufficiently pervasive to infuse the two employees' discharges with the stain of illegality." The complaint alleges that Schiavone and Clarke interrogated employees on July 12, in Schiavone's office and created the impression of surveillance . Since no employees are named , it is reasonable to infer that reference is made to Murdock and Matlock as they were the only two employees in Schiavone's office on July 12. 927 There is not a scintilla of probative and credible evidence to substantiate the surveillance allegation. With respect to interrogation and based upon the evidence detailed above, the Respondent's officials were entitled to ask Murdock if he had engaged in union solicitation on company time and when he implicated Matlock, to question her also about the accusation that she gave Murdock the union cards. The Company had the justifiable right to make such inquiries as a basis for considering disciplinary action. The questioning was for a legitimate purpose and not intended to coerce or threaten Murdock and Matlock or interfere with their statutory rights. The interviews were for a bona fide purpose; it was not to develop information and, therefore, not coercive interrogation within the meaning of Section 8(a)(l).1= Accordingly, it is recommended that paragraph 7 of the complaint be dismissed." Recommended Order omitted from publication. "N L R B v Great Dane Trailers, Inc, 397 U.S. 29 "Cf Hoskins Ready-Mix Concrete, Inc, 161 NLRB 1492, 1494-95; Powers Regulator Company, 149 NLRB 1185 "Hoerner-Waldorf Paper Products Co , 173 NLRB No. 168 "Cf. Hammond & Irving, Inc, 154 NLRB 1071, 1072, Wa/mac Company, 106 NLRB 1355, 1356 "N.L R B v. Sellers, 346 F.2d 625, 632 (C.A. 9) "In American Freightways Co, Inc, 124 NLRB 146, 147, the Board stated It is well settled that the test of interference, restraint, and coercion under Section 8(axl) of the Act does not turn on the employer's motive or on whether the coercion succeeded or faded The test is whether the employer engaged in conduct which, it may reasonably be said, tends to interfere with the free exercise of employee rights under the Act