WIPO, Inc.

WIPO, INC. 649 WIPO, Inc. and National Council of Distributive Workers of America. Case 10-CA-9278 October 11, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On April 12, 1972, Trial Examiner Nancy M. Sherman issued the attached Decision in this proceed- ing. Thereafter, Respondent and General Counsel filed exceptions and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and briefs and has decided to affirm the Trial Examiner's rulings, findings, and conclusions and to adopt her recommended Order with the following modifications. Contrary to the Trial Examiner, we find that Respondent's actions in posting, promulgating, and maintaining a no-solicitation rule, which failed to ad- vise employees with sufficient clarity when they may solicit for the Union and when they may not, were violative of Section 8(a)(1) of the Act. In reaching this conclusion we note that the posted rule prohibiting solicitations of any kind "on company time on com- pany property," might reasonably be interpreted by an employee as prohibiting union solicitation during nonworking time.' We shall therefore amend the Trial Examiner's recommended Order and notice to em- ployees accordingly. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Order of the Trial Examiner as modified below and hereby orders that Respondent, WIPO, Inc., Colum- bus, Georgia, its officers, agents, successors, and as- signs, shall take the action set forth in the Trial Examiner's recommended Order, as so modified: 1. Insert the following as subparagraph 1(a) and reletter paragraphs 1(a) and (b) as 1(b) and (c): "(a) Promulgating, maintaining, or enforcing no- solicitation rules prohibiting employees during non- working time from soliciting for the Union on Respondent's property." 2. Substitute the attached notice for the Trial Examiner's notice. CHAIRMAN MILLER, dissenting in part: I dissent only with respect to the reversal of the Trial Examiner's finding that the no-solicitation rule was a valid rule. She cited Board and court cases which are squarely in point and which fully support her conclusion. My colleagues say the cases she cites are "inap- posite." That is simply not true. In Universal Cigar, for example, 173 NLRB 865, relied on by the Trial Examiner, this Board agreed, at 865, with a Trial Examiner's finding that a rule pro- hibiting solicitation "on company time" was a valid rule. How that case can be deemed "inapposite" es- capes me. I would affirm the Trial Examiner's Decision in its entirety. i Southern Electronics Co, Inc., 175 NLRB 69, 72. In reaching our conclu- sion we find that the cases relied upon by the Trial Examiner in finding the rule valid on its face are inapposite. See TXD, In. 23 . Moreover, contrary to our dissenting colleague, in Universal Cigar Corporation, 173 NLRB 865, the Board was not called upon to pass upon the validity of the no-solicitation rule there involved, since the gravamen of the 8(a)(3) complaint was the disparate enforcement of the rule with respect to the discharge of a named employee. Accordingly, the Board, in finding the violation, did not need to pass upon the validity of the rule itself. Indeed, as the General Counsel had conceded the validity of the rule, and its validity was therefore not litigated, the Board was not free to pass upon the rule APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial in which all parties had the opportunity to present their evidence, it has been decided that we violated the law and we have been ordered to post this notice. We intend to carry out the order of the Board and abide by the following: WE WILL NOT promulgate, maintain, or en- force no-solicitation rules prohibiting solicitation on behalf of the Union during nonworking time on our property. WE WILL NOT discharge or otherwise discrim- inate against employees because of union activi- ties by them or by their kin. WE WILL offer James W. Brown immediate and full reinstatement with backpay. Our employees are free to join or assist Na- tional Council of Distributive Workers of Ameri- ca, or any other union, and to engage in union activities for their mutual aid or protection. WE WILL NOT interfere with, restrain, or coerce employees in the exercise of these rights. 199 NLRB No. 11 650 Dated By DECISIONS OF NATIONAL LABOR RELATIONS BOARD WIPO, INC. (Employer) (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 consecu- tive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, Room 701, Peachtree Building, 730 Peachtree Street, NE., Atlanta, Georgia 30308, Tele- phone 404-526-5760. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE NANCY M. SHERMAN, Trial Examiner: This proceeding, heard at Columbus, Georgia, on February 15, 1972, pur- suant to a charge filed on November 2, 1971, and a com- plaint issued on January 4, 1972, presents the questions: (1) whether Respondent violated Section 8(a)(1) of the Na- tional Labor Relations Act, as amended (herein called the Act) by posting, promulgating and maintaining a rule forbidding solicitation "for any purpose and of any nature ... on company time on company property"; and (2) wheth- er Respondent's discharge of employee James W. Brown on October 20, 1971, was motivated by his own and his wife's activity on behalf of the Charging Party, herein called the Union, and therefore, violated Section 8(a)(3) and (1) of the Act. Upon the entire record, including my observation of the demeanor of the witnesses, and after due consideration of the briefs filed by the General Counsel and the Respon- dent, I make the following: FINDINGS OF FACT 1. THE RESPONDENTS BUSINESS AND THE LABOR ORGANIZATION INVOLVED Respondent is a Georgia corporation, with its principal office and place of business located at Columbus, Georgia, where it manufactures and sells industrial towels. It annual- ly sells and ships directly to customers outside Georgia products valued in excess of $50,000. Upon these facts I find that, as Respondent admits, it is engaged in commerce with- in the meaning of Section 2(6) and (7) of the Act, and that assertion of jurisdiction over such operations will effectuate the policies of the Act. National Council of Distributive Workers of America, the Charging Party, is a labor organi- zation within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Background and Sequence of Events; the No-Solicitation Rule Union activity among the employees here involved was in progress by May 1971.' J. L. Gore, who was on Respondent's payroll, attended union meetings, obtained signatures on a few union cards, and was subsequently elected shop steward. During his break period in May or June, en route back to his work place after making a pur- chase at a drink machine elsewhere in the plant, Gore stop- ped in the sewing room to converse with a female employee. Employee Junior Ponder (who was working at that time) then joined the conversation. Franklin Hopkins, admittedly a supervisor, came up and told Ponder to get back to work or be fired, that Hopkins did not want him talking to anybody that-had anything to do with the Union. Hopkins also told Gore that he had a gun out in the car. At some later time, Gore went to Hopkins and told him that "we was not discussing anything about the Union whatsoever, and I didn't think he had any right to even make a remark like that."2 On June 25, Respondent posted the following notice to its employees: No solicitation for any purpose and of any nature is allowed on company time on company property. Each of the employees individually also received a copy of this rule. There is no evidence that Respondent had ever previously promulgated a rule forbidding solicitation on company time or property.3 Before this rule was posted, company personnel had, to management's knowledge, en- gaged in various kinds of commercial solicitation on compa- ny property, and at least in some cases on company time. The no-solicitation rule remained on the bulletin board for a short time;4 the record fails to show who removed it or why it was removed. On August 6, the Regional Director issued a Decision and Direction of Election among Respondent's employees 1 All dates hereafter are 1971 unless otherwise stated 2 My findings as to this incident are based on Gore 's uncontradicted and credible testimony. In accepting Gore's testimony, I am mindful of the fact that at the time of the hearing Hopkins may not have been in Respondent's employ and that Gore's'preheanng affidavit did not assert that Hopkins specifically mentioned the Union. I nevertheless believe Gore's hearing testi- mony that Hopkins' reproaches were specifically directed against conversa- tion with union adherents. Indirect corroboration of this version is provided by Gore's reference (in both his affidavit and his testimony) to Hopkins' threat against Gore himself (who was not even Hopkins' subordinate), and by Gore's specific reference to the Union in his later conversation with Hopkins, a reference not claimed to be omitted from Gore's affidavit. Gore impressed me as an honest witness whose friendly feelings toward Brown (a neighbor and his nephew by marriage) were counterbalanced by some appre- hension, after his December 1971 discharge , about whether Respondent would pay him $2,600 in paid-up retirement benefits should he testify ad- versely to it. 7 Uncontradicted and credible testimony of J. L. Gore and former employ- ee French establishes that Respondent had not posted such a notice for at least the previous 16 years Respondent's counsel stated on the record that the rule remained on the bulletin board for about a day, but the testimony is less precise. WIPO, INC. in which, inter alia, he found J. L. Gore to be a supervisor.' As noted above, Gore had previously campaigned in favor of the Union. After the issuance of the Direction of Elec- tion, General Manager Arwood Begor and Company Attor- ney Mark Youmans called Gore into the office; told him that because of his union activity he "knew the people, the leaders and more or less who was for the Union"; asked him "would [he] be willing ... since [he] was a supervisor, to help them kind of talk against the Union and help them talk it out"; and requested him to make speeches against the Un- ion to employees. Gore made such antiunion speeches to groups of employees, in the presence of General Manager Begor and Personnel Manager Linedecker. The representation election was held on September 9. The tally of ballots showed that 47 valid votes were cast for the Union, 45 valid votes were cast against the Union, and (so far as relevant here) 2 ballots were challenged, one cast by Carrie Brown and the other by Nicholas Matichka.6 On the basis of the parties' September 24 stipulation that Carrie Brown was eligible, on October 6 the Acting Regional Di- rector ordered that her ballot be opened and counted. The Acting Regional Director further ordered: If the revised tally of ballots shows that the remain- ing undetermined challenged ballot of Nicholas Ma- tichka is not determinative, an appropriate certification shall be issued. However, in the event the remaining undetermined challenged ballot of Matichka is suffi- cient to affect the results of the election, the under- signed shall take the necessary steps to resolve his eligi- bility consistent with the Board's Rules and Regula- tions. Since Carrie Brown's ballot turned out to be for'the Union, the Union was certified without resolution of Matichka's status. Prior to the hearing on February 15, 1972, Respondent and the Union had engaged in negotia- tions, but the record fails to show whether a bargaining agreement was reached. B. The Discharge of James W. Brown 1. James Brown's work history James W. Brown was hired by Respondent about Octo- ber 1959 as a helper on a dye printing machine at $ 1.10 an hour. In mid-1971, Brown was a dye printing machine oper- ator with an hourly rate of $2.25 . This rate represented a differential over other machine operators of 25 cents an hour, which he received because he was also the "senior shift leader" on the day shift. In late July, Ricey Sartin , a machine operator who was the senior shift leader on the night shift, told Respondent that he was quitting in 2 weeks because he did not want to work nights any more. Plant Superintendent Samuel A. Pinkston thereupon transferred Sartin to the job of senior shift leader on the day shift . Pinkston admittedly offered Brown the job of senior shift leader on the night shift, at his existing $2.25 wage rate. Brown rejected the offer. Upon s He made this finding in connection with the Company's motion to dis- miss the petition on the ground that Gore assisted the Union in procuring its showing of interest. 6 A third challenged ballot was cast by an individual whom the parties stipulated to be ineligible. 651 Sartin's transfer to the day shift, Brown's rate was decreased to $2.15 an hour (15 cents more than an ordinary operator) because Pinkston did not want to pay the same rate to two employees, one of whom had greater responsibilities than the other.? In late September, the senior shift leader on the 3-man night shift (Hopkins) resigned. Thereafter, about September 27, Respondent temporarily eliminated the night shift in the printing department and transferred one of the employees on that shift to the day shift, thereby increasing it from three to four men. Pinkston called the employees in that depart- ment together and told them that their then 8-hour working day was being extended to 10 hours, with a quitting time of 5:30 p.m. rather than 3:30.8 As Pinkston admittedly knew, Brown's working the extra 2 hours caused his family consid- erable personal inconvenience.9 So far as is material here, Brown failed to work overtime (when scheduled to do so) on about 4 separate occasions between September 30 and October 18, inclusive." Senior Shift Leader Sartin credibly testified that when Brown did not work late although sched- uled to do so, he would "usually always" tell Sartin that he "was going to leave, that he couldn't work"; and that Sartin, who had no authority to excuse Brown, told him "on several occasions" to see Plant Superintendent Pinkston before leaving. Sartin further credibly testified that "sometimes" Brown would return to say that "it would be all right if he could get by without him"; and that Brown "always" told him when he was going to go home. This testimony by Sartin, a witness called by Respondent, to a large extent corroborates Brown's testimony, which I credit, that on each occasion before leaving, he told Pinkston that he "would like to be off" or that he "couldn't work the overtime"; that on each occasion Pinkston replied "go ahead," usually on condition that he "check with" Sartin to make sure that "they could make it without me"; and that Brown "always" told Sartin, either before or after talking to 7 I do not credit Pinkston's testimony that he replaced Brown with Sarum partly because Brown had failed to perform the shift leader's duty of seeing to it that the work area was cleaned up by the shift before quitting time. This testimony is inconsistent with Pinkston's admission that he offered Brown the shift leader's position on the night shift, when the conduct which Pinkston attributed to Brown would be more likely to occur than on the day shift because Pmkston regularly worked days but was usually absent from the plant during most of the night shift. Indeed, although not contending that "senior shift leader" on the day shift is a supervisory position , Respondent stipulated that Franklin Hopkins, who replaced Sartin on the night crew, was a supervisor. For the reasons set forth infra, In 39, I regard Pinkston as a generally unreliable witness 8 For reasons unexplained in the record , Brown did not attend this meet- mg. However, the substance of Pmkston's remarks was relayed to Brown by Senior Shift Leader Sartin. 9 Brown's wife also worked at the plant, and during the relevant period her workday ended at 3:30. The Browns' two younger children (the youngest then about 3 months old) had to be picked up from the babysitter shortly after 3.30, and the Browns wanted at least one parent to be home when the remaining three (the oldest then 10 or I I years old ) returned from school at 4 or 4.30. Accordingly, if Brown worked overtime , either the Browns had to drive to work separately or Mrs. Brown would have to pick up the children and then return to pick up Brown. 10 Specifically, about I day during the pay period ending October 2, on 2 days during the pay period ending October 9, and on October 18. Brown worked only one 10-hour day (and only 4 days) during the pay period beginning September 26 and ending October 2 . However, between September 26 and 29, inclusive, Brown's daughter was in the hospital, and Pinkston admittedly excused him from working full time during this period. No employee worked overtime during the pay period ending October 16, when work was apparently light. 652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pinkston, that he was leaving. There is no evidence that Sartin ever told Brown that Respondent could not "get by without" him. Brown credibly testified without contra- diction that until October 19, he had never been reprimand- ed for not working overtime." 2. The Browns' union activity Brown signed a union card in May 1971, and attended a union meeting almost every week thereafter up to the time of the hearing in February 1972. In August 1971, when Plant Superintendent Pinkston mentioned Brown to Ar- wood Begor (Respondent's general manager and vice presi- dent), Begor commented, "That one, James Brown, I am sure he will be for the Union because he loves money so much."12 Brown was the husband of employee Carrie Brown, who, as previously noted, cast a challenged ballot in the September 9 election. Immediately after the election, Plant Superintendent Pinkston approached her and asked "what right did [she] think [she] had to vote.... he didn't think [she] had any right to vote." Mrs. Brown replied, "I think I have as much right as anyone else." On the following day, Pink- ston escorted her to the company president's office, where she was interviewed by Company Attorney Youmans.13 Youmans asked a "few" questions about what union repre- sentatives had told her, inquired what literature they had passed out, and asked (in Mrs. Brown's words) whether "we" had received any "papers" from Respondent. You- mans said "something about a meeting," to which Mrs. Brown replied, "Just because you go to a meeting, that does not necessarily mean that you will vote for a Union." You- mans also said "something about voting," to which Mrs. Brown replied that "it was personal and private, and [she] didn't think it should be discussed." 14 Youmans stated that "the Union hadn't won and there wasn't going to be one in there." Mrs. Brown inquired, "You mean we've lost?" and Youmans replied, "Yes." Youmans asked whether Mrs. Brown's husband worked at the plant and she replied that he did. Youmans asked whether any union representatives had visited her home, and she told him no. It appears from the record and from Respondent's brief (p. 17) that You- mans' interview with Mrs. Brown was one of several em- 111 do not credit Pmkston's testimony that he gave Brown permission to leave early on only two occasions, when Brown's daughter was in the hospi- tal, and that on "numerous" other occasions Brown "took off on his own." If there had really been occasions on which Brown had "clocked out and gone without ever consulting with me " (as Pmkston testified), Pinkston surely would have had some idea (as he admittedly did not) whether Brown had done this on 1, 2, 5 , or 20 occasions. (Only 18 working days elapsed between the inauguration of the 10-hour day and Brown's discharge.) Moreover, company witness Sartin failed to corroborate Pinkston's testimony that Pink- ston repeatedly asked Sartm about Brown's whereabouts after 3:30, and that Sartm replied Brown was "supposed to come by and let you know." Fur- thermore, it is likely (to say the least) that any such conduct by Brown would have led to his reproof by Pinkston; yet neither Pinkston nor any other witness testified that such reproofs were forthcoming . For the reasons set forth infra, In. 39, I regard Pinkston as a generally unreliable witness. 12 This finding is based on the credible and undenied testimony of J L. Gore. Although Respondent called Pmkston as a witness , he was not asked about this conversation Begor was not called as a witness, nor was his absence explained. "Pmkston was not present during this interview. 14 She could not remember whether Youmans asked how she voted. ployee interviews scheduled by Respondent in an apparently unsuccessful effort to find out a basis for object- ing to the election. 3. James Brown's discharge As previously noted, when Mrs. Brown's challenged ballot was opened and proved to be for the Union, the, Union's majority became indefeasible, and it became un- necessary to determine the eligibility of Matichka, who had cast the remaining challenged ballot. Matichka (whose bal- lot the Union had challenged) had worn "vote no" insignia during the campaign, and Pinkston admittedly knew that his ballot had been challenged. The revised tally of ballots, which showed that Mrs. Brown's "yes" vote had caused the Union to win, was re- ceived by Respondent on Friday, October 15. About 3:25 p.m. on October 19, Brown advised Senior Shift Leader Sartin that he could not work late. Sartin raised no objec- tion. Brown then went to Pinkston and told him that he could not work late. Pinkston replied that Brown "would have to work late, the machines had to run." Brown replied that he could not stay. Pinkston then brought up Brown's absence the preceding Friday (when Brown had been out sick) 15 and said that the next time Brown was out a day like that he would be docked for it.16 Brown replied that if he was docked and not the others, he would quit; and asserted (accurately, infra, C 2(c)) that the others had been out as much as he. Pinkston asked whether he had checked with Sartin. Brown replied yes, and Pinkston said to "go ahead, that he would talk to [Brown] tomorrow."17 Brown clocked out at 3:30, and left for the day. The following morning, Brown reported to work at the usual hour, 7 a.m. About 9:15 or 9:20 that morning, Pink- ston called him into the office and discharged him, giving as a reason that "he did not want to work the evening before." Several days after Brown's discharge, Mrs. Brown came to Pinkston's office, toward the end of the work day, to collect her husband's last paycheck. Pinkston reproached her for telling "everyone" that he had fired Brown because he refused to work overtime. Pinkston said, "I did not fire him because he refused to work overtime. I fired him be- cause he had been asking for it a long time and he was not doing his job like he should have done." Pinkston told her, "Now there is nothing concerning what James did ... As far as you and me are concerned, you don't know nothing about what happened back there. As far as you and me are concerned, it is water over the dam as long as you do your job and do it right." Mrs. Brown replied, "I have tried to 15 During Pinkston's temporary absence from the office on October 15, Mrs Brown had reported her husband's asthmatic attack to Head Fixer Owens, to whose supervisory status Respondent had stipulated in the repre- sentation proceeding. Owens apparently failed to relay this message to Pink- ston, but later that day Pinkston learned from Mrs. Brown about both her husband's illness and her report to Owens. This week had been a light production week (supra In 10). 16 Brown was paid for at least 40 hours' work a week whether or not he worked 40 hours. 17 My findings as to the substance of this conversation are based on Brown's credited testimony. I do not credit Pinkston's version of the incident except to the extent that it is corroborated by Brown. For the reasons set forth infra, In 39, 1 regard Pmkston as an unreliable witness. WIPO, INC. obey the rules that they tell me, and try to do what they tell me to do." Pinkston then said, "Well, as long as you do that, it is water under the dam as far as you and me are con- cerned. If you come and tell me you are not going to do something, you can go and punch the time clock." Mrs. Brown commented, "I hope you can sleep good at night, knowing that I have to come down here and support five kids." Thereupon, when Mrs. Brown said something about unemployment insurance, Pinkston told her that because the union representatives had come to the unemployment compensation insurance office , Respondent was "going to fight it."ts Pinkston conceded that the night shift had been "elim- inated temporarily"; his testimony indicates that Respon- dent had contemplated resumption of the night shift as soon as it could obtain an adequately trained night crew and senior night shift leader. Having "retrained men," Respon- dent reinstituted the night shift and returned to the regular 8-hour day in mid- or late December, 6 to 8 weeks after the filing of the charge herein alleging that Brown's discharge was unlawful. Pinkston testified that he had not reemployed Brown because Brown had never come down to ask about a job and "I don't go out calling people to come back to work."19 At all times after the election, Mrs. Brown re- mained in Respondent's employ in the same job and at the same rate of pay. C. Conclusions 1. The no-solicitation rule In the absence of special circumstances (not claimed to be present here), an employer may not lawfully forbid his employees to engage in union solicitation on the employer's premises where both the soliciting and the solicited employ- ees are on their own time, including break time.20 Without disputing the foregoing, Respondent contends that the post- ed rule cannot reasonably be read as forbidding such solic- itation during these periods. The risk of ambiguity must, of course, be assumed by Respondent, which drafted the rule 2' While some Board decisions lend support to the Gen- eral Counsel's contention that Respondent's rule is unlawful because it fails to advise employees with sufficient clarity when they may solicit and when they may not,22 the most recent apposite Board decision which I have been able to find points to a contrary conclusion.23 Accordingly, I find that the no-solicitation rule is not invalid on its face. 18 My findings as to this conversation are based on the credited testimony of Mrs. Brown. While I am well aware that she was a highly interested witness, her demeanor while testifying persuaded me that she was telling the truth. I do not credit Pinkston's version of the conversation except to the extent that it is corroborated by Mrs. Brown . For the reasons set forth infra, fn. 39, I regard Pinkston as an unreliable witness. 19 The complaint herein (issued January 4, 1972) alleged, and Respondent's January 14 answer admitted, that Respondent had "failed and refused to reinstate" Brown 20 Campbell Soup Co. v. N L.R.B., 380 F.2d 372 (C.A. 5); Saco-Lowell Shops, 169 NLRB 1090, fn. 1, 1093, enfd. 405 F.2d 175 (C.A. 4); N L.R B. v. Varo, Inc., 425 F.2d 293, 297 (C A. 5). 21 G. C. Murphy Co, 171 NLRB 370, affd. 422 F.2d 685 (C.A. D C.); Marlene Industries Corp., 166 NLRB 703, 704, enfd. in relevant part 406 F.2d 886 (C.A 6). 22 Marlene Industries, supra, 166 NLRB at 704, 729, Forest Industries Co., 164 NLRB 1092. 653 Nor do I agree with the General Counsel that the rule was discriminatorily enforced against union activity. While an employee did circulate an antiunion petition on compa- ny time and premises after the rule was posted, the record fails to disclose either that Respondent knew that this activi- ty took place on company time or that the employee was not punished for it. There is no other record evidence showing any sort of solicitation activity after the rule was posted.24 Although I have found this rule to be valid on its face, a Section 8(a)(1) violation would nonetheless be made out by a showing that the rule was promulgated for the purpose of combating union organization rather than maintaining production or discipline.25 Moreover, Respondent had pre- viously permitted solicitation activity in the plant during working hours, the rule was posted during a union drive which Respondent opposed, and Respondent later (as I find, infra) discriminatorily discharged an employee. How- ever, there is no evidence that the posting of the rule co- incided with any significant stage in the union drive, which had been in progress for about 2 months, or with Respondent's initial awareness of it; the discriminatory dis- charge did not take place until almost 4 months later; and, as previously found, there is no evidence that Respondent subsequently disciplined any employee for union solicita- tion in violation of the rule? I do not believe that the record preponderantly shows that the rule was promulgated for the purpose of combating union organization?' Accordingly, I shall recommend that the complaint be dismissed insofar as it alleges that Respondent violated the Act by posting, pro- mulgating, and maintaining the no-solicitation rule. 2. The discharge of James W. Brown a. Controlling legal principles The General Counsel contends that Respondent dis- charged James W. Brown because of his own and his wife's union activity, both reasons which (Respondent concedes) are proscribed by the Act 28 Respondent asserts that Brown's discharge was in no way motivated by either of these considerations, and tenders, as the real reason for his discharge, considerations which the General Counsel can- not and does not contend to be unlawful. 23 Universal Cigar Corp, 173 NLRB 865, 869, modified because of rule's validity, 425 F.2d 867 (C.A 5). See also, Logan Mfg. Co, 162 NLRB 1586, 1587, 1589; Buckeye Mart, 170 NLRB 1, 4. Cf. SNC Mfg Co., Inc, 174 NLRB 159, enforcement denied in relevant part, 434 F .2d 473, 478-479 (C.A D.C.). I do not rely on Rogers Mfg Co., 175 NLRB 961 , cited by Respondent as "diapositive," in view of In. 1 of the Board's decision, which states, "In the absence of exception, we adopt, pro forma, the Trial Examiner's finding that the Respondent's no-solicitation rule is not on its face presumptively invalid " 24 The Gore-Ponder-Hopkins incident was not shown to have occurred prior to June 25, when the rule was posted. 25 Milford Fabricating Co., 193 NLRB No. 146; Memcor, Inc., 162 NLRB 930, 933, 935-936; Ward Manufacturing, Inc, 152 NLRB 1270, 1271, 1277; Tiidee Products, Inc, 176 NLRB No. 133, enfd. 440 F.2d 298 (C.A.D.C.) 26 Indeed, there is no evidence that Respondent ever knowingly had occa- sion to, or did, discipline any employee for any violation of this rule. 21 See Permian Corp, 189 NLRB No. 131, enfd. 457 F.2d 512 . Cf. Medley Distilling Co, Inc, 187 NLRB No. 12, where the rule was promulgated shortly after the union drive began. 28 N.L.R.B. v. Link-Belt Co , 311 U.S. 584, 601, J Ziak & Sons, Inc., 152 NLRB 380,383-385, enfd. 63 LRRM 2145 (C.A.D.C.); Lummus Co. v. N.L.R. B, 339 F 2d 728, 731-734 (C.A.D C ); Washington Forge, Inc, 188 NLRB No. 17 654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The applicable principles in such a case are well settled. " ... management is for management. Neither Board nor Court can second-guess it or give it gentle guidance by over-the-shoulder supervision. Management can discharge for good cause, or bad cause, or no cause at all. It has, as the manager of its own business affairs, complete freedom with but one specific, definite qualification: it may not dis- charge when the real motivating purpose is to do that which the Act forbids." N.L.R.B. v. McGahey, 233 F.2d 406, 413 (C.A. 5).29 On the other hand, because the issue in cases such as these is the "real motivating purpose" of the discharge, "the existence of [a lawful] cause is not a defense to a discharge actually motivated by anti-union purposes." N.L. R.B. v. Central Power & Light Co., 425 F.2d 1318, 1322 (C.A. 5). Further, to establish an unlawful discharge, the General Counsel need not show that the employer's sole reasons for the discharge were unlawful reasons; rather, he need only establish by preponderating evidence that "the employee would not have been fired but for the anti-union animus of the employer." Permian Corp., 189 NLRB No. 131, enfd. 457 F.2d 512, (C.A. 5), quoting N.L.R.B. v. Whitfield Pickle Company, 374 F.2d 576, 582 (C.A. 5). Finally, because the issue presented is the real reason for the discharge, the employer's right to discharge for any lawful reason or for no reason does not preclude the Board from considering whether the reasons tendered by the employer are such as would ordinarily be expected to explain the personnel ac- tion at issue. See N.L.R.B. v. Condenser Corp., 128 F.2d 67, 75 (C.A. 3); N.L.R.B. v. Griggs Equipment, Inc., 307 F.2d 275, 278 (CA. 5). With these principles in mind, I turn to the issues pre- sented by Brown's discharge. b. The General Counsel's evidence Initially, I note the clear record evidence that Respon- dent opposed the Union's efforts to organize its plant. Thus, Respondent's officials procured J. L. Gore's assistance in attempting to "talk [the Union] out" of the plant, for the avowed reason that he would be particularly effective be- cause he had previously been active on the Union's behalf. When the tally of ballots suggested (as later proved to be the case) that the Union had won the election, Plant Superin- tendent Pinkston berated Mr . Brown for voting at all. After Brown's discharge, Pinkston attributed to a union representative's participation in Brown's unemployment compensation preceeding Respondent's efforts (eventually successful) to defer Brown's eligibility for compensation. Moreover, during the union campaign, when Supervisor Hopkins saw employee Ponder talking to union activist Gore, Hopkins told Ponder to get back to work or be fired, that Hopkins did not want him talking to anybody that had anything to do with the Union ; and then threatened Gore by telling him that Hopkins had a gun in his car. Such antiunion bias and hostility are "highly significant factors for Board evaluation in determining motive ." N.L.R.B. v. Georgia Rug Mill, 308 F.2d 89, 91 (C.A. 5). It is likewise clear that when discharging James Brown, Plant Superintendent Pinkston knew of (or at least suspect- 29 See also, Clark's Stores, 168 NLRB 273, 284. ed) Brown's own union sympathies, and was also aware that Mrs. Brown had provided the Union with its margin of victory. Thus, it is undenied that in August 1971 Respondent's general manager and vice president told Pink- ston that he was "sure [Brown] will be for the Union."30 I also conclude, contrary to Pinkston's testimony, that before discharging Brown he knew that Mrs. Brown's vote had provided the Union's election margin. The results shown by the revised tally of ballots would in all probability have reached even an uninterested plant superintendent during the 5-day period (including 3 working days) between the date that Respondent received the tally and the date of Brown's discharge. This likelihood is increased by Pinkston's specific demonstration of interest in the elec- tion-namely, his action just after the election in telling Mrs. Brown that she had no right to cast a ballot. Moreover, I infer from these remarks that he already knew that the ballot she cast had been challenged; and I further infer, from Matichka's open wearing of "vote no" insignia and Pinkston's concession that prior to Brown's discharge Ma- tichka told him his ballot had been challenged, that prior to the discharge Pinkston knew that Mrs. Brown's ballot had assured the Union's victory notwithstanding Matichka's presumable "no" ballot. Further, I note that Pinkston dis- charged Brown, an employee of 12 years' standing, early in the morning of the second working day after Respondent received the revised tally. "The abruptness of a discharge and its timing are persuasive evidence as to motivation." N.L.R.B. v. Sutherland Lumber Company, 452 F.2d 67 (C.A. 7). c. Respondent's Explanation for the Discharge At the outset of the hearing, Respondent's counsel stat- ed that Brown was discharged because, during a continuous period throughout the summer and fall of 1971, he "started to build up a record of bad absenteeism, was careless about his job, was untidy in keeping up his work area, and was taking too many breaks away from his job station"; and that "what touched off the decision to terminate him was his inability and refusal to adjust to the hours expected of him by the Employer." However, the evidence renders highly improbable Respondent's contention that work area untidiness or ex- cessive breaks played a part in Pinkston's decision to dis- charge Brown. Pinkston testified that the alleged untidiness problem disappeared when Sartin replaced Brown as day shift leader, about 3 months before Brown's discharge. Pinkston also testified, variously, that he had observed Brown taking too many breaks after Sartin became day shift leader; that after Sartin took over, Pinkston did not discuss the excessive breaks matter with Brown at all; and that 30 In view of this undemed and credited testimony , I cannot and do not believe Pinkston's testimony that before discharging Brown he had no knowl- edge of Brown's union sympathies . For the reasons set forth infra, fn. 39, I regard Ptnkston as a generally unreliable witness. In finding that Ptnkston knew of James Brown 's union sympathies, I do not, however, rely on Gore's knowledge thereof . Because he and Brown were on friendly terms and Gore favored the Union (at least initially), I think it unlikely that he passed this information on to antiunion management repre- sentatives. Nor do I infer that Company Attorney Youmans relayed to man- agement Mrs Brown's admission during her interview that she, and probably her husband, favored the Union ("you mean we've lost?") WIPO, INC. 655 Pinkston had reproved Brown therefor on two or three oc- casions in July or August (at least 7 weeks prior to Brown's discharge), Pinkston "would say" before Sartin took over. Moreover, Pinkston admitted that at the time Sartin took over, Brown's alleged deficiencies in these respects had not deterred Pinkston from offering to transfer him to senior shift operator on the night shift; and when Brown refused this offer, Respondent nonetheless continued to pay him more than an ordinary operator on the day shift. Fur- thermore, if Pinkston had really been as concerned about the untidiness problem as his testimony alleges, I am per- suaded that he would have complained (as he admittedly did not) to other members of the crew, who were likewise responsible for cleaning up the area, notwithstanding his alleged desire to adhere to the "chain of command" headed by Brown, a nonsupervisor. Indeed, Pinkston testified that he "didn't particularly fire Brown for the place being messed up." Nor do I believe that Brown's attendance record played any appreciable role in Respondent's decision to discharge him. Thus, during the 3-1/2 weeks immediately preceding his discharge, Brown's two absences (one because of asthma and one related to his daughter's hospitaliza- tion) 31 were much less frequent than Seay's 5 days of sick leave (and 2 days of less than 8 hours) and comparable to Tilley's one absence for unexplained reasons.32 Moreover, while the record does not contain timecards covering any earlier period, the testimony shows that less than 2 months before Brown's discharge employee Sartin was out 2 weeks with pneumonia. Sartin, who had presented a doctor's certi- ficate, was still in Respondent's employ at the time of the hearing. Pinkston testified that on "various occasions" from May until Brown's October 20 discharge, Brown "would take days off during the week," that his wife would "just give a message in that he was sick," and that "there were no conversations with him over the phone, as to whether he was sick or not." However there is no evidence that Respondent mentioned Brown's attendance record to him until the day before his discharge, 4 days after Respondent received the revised Tally and more than 5 months after his absenteeism allegedly began. As noted, such record evidence as exists fails to show that Brown's attendance record was bad in comparison with that of other employees; Respondent made no contention that he was not in fact sick on these occasions,33 or that it expressed doubt at the time that he was really sick; and if Pinkston had really been concerned about "no conversations with him over the phone," in all probability he would have telephoned Brown. For the fore- going reasons, I conclude that Brown's attendance record play little or no part in Pinkston's decision to discharge him. Respondent's contention that Brown's October 19 re- fusal to work overtime "touched off" Pinkston's decision to discharge him is, of course, virtually refuted by Pinkston's disclaimer of this reason to Mrs. Brown shortly after the discharge. Moreover, when considered cumulatively, other considerations diminish the likelihood that this incident was 31 Pinkston's testimony indicates that the latter absence was excused. 32 While discharging Brown, with 12 years' tenure, Respondent retained Seat', who at that time had been in its employ for about 2 months. 3 Brown suffers from asthma, an ailment which tends to recur periodical- ly- the sole triggering factor in Brown's discharge. Thus, al- though there is credible evidence that Brown's action in leaving after 8 hours slowed down production and made the other employees work harder for the rest of the day,34 the unavailability of a trained replacement (the very reason for the 10-hour day) meant that Brown's termination extended these difficulties to encompass the entire workday. Fur- thermore, Respondent's failure to produce the production records which it admittedly kept, the fact that a three-man shift was capable of operating at full capacity,35 and the absence of evidence that the remaining employees com- plained about Brown's leaving about 8 hours, 6 suggest that the adverse impact of Brown's absence was rather modest. Cf. International Union of Automobile, Aerospace and Agri- cultural Implement Workers of America v. N.L.RB., 459 F.2d 1329 (C.A.D.C.). Moreover, the 10-hour day was ex- pected (and in fact turned out) to be temporary; and Pink- ston knew that Brown was particularly inconvenienced 6y it for reasons which would tend to create sympathy rather than resentment. Additionally, the fact that this was the first occasion on which Pinkston had denied Brown's request for permission to leave early casts some doubt on whether Pink- ston was motivated entirely by production considerations, in the absence of any evidence suggesting that the need for Brown's services was greater than on previous occasions when permission had been granted. Further, Pinkston made no claim that on October 19 he expressly gave Brown a choice between overtime work and discharge, although in analogous circumstances Pinkston had previously used such tactics and thereby induced Brown to perform the work in question?? At certain points in his testimony, Pinkston indicated that the gravamen of Brown's offense was not that he caused production difficulties, but was that he refused to obey his superior's orders. It is true that Pinkston may have felt less than secure as plant superintendent (a position he had held for only 6 months);38 and his manner in testifying suggested that he might be a person highly sensitive to any supposed disregard of his authority. However, when asked why he did not rehire Brown after reinstitution of the night shift, which ended the overtime problem assertedly leading to Brown's discharge, Pinkston did not refer to disciplinary problems or (indeed) to any of the considerations which assertedly led to Brown's discharge. Instead, Pinkston mere- ly tendered the reason that Brown had not come down to ask about a job-a hypertechnical explanation in itself ren- dered dubious by the pendency of the charge herein, which strongly suggested Brown's interest in returning to work. Pinkston's limited explanation fails to suggest concern over 34 I would have assumed this much even in the absence of direct evidence, since otherwise Respondent would not have wanted Brown to work overtime, for which he was paid time-and-a-half after 40 hours. 35 While one of the other employees on Brown's shift was a trainee (Seay), Pinkston testified that he had transferred Seay from the night shift upon its discontinuance, and that the night shift had had better production than the day shift. Indeed, they might conceivably have welcomed any extra overtime- rate hours Brown's absence might have afforded them 37 When directed to work at straight time the Saturday following Labor Day in 1971 , Brown had replied that he would like to be off if he could. Pinkston thereupon said, "If you care anything about your job, you had better come on in." Brown replied that he did not know whether he could make it or not, but he did come in. 38 He had previously been a truckdnver for Respondent. 656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD supposed disrespect by Brown, whose manner and tone of speech tend to counteract any impoliteness which might be suggested by his words alone. Moreover, what comes close to a tacit concession by Pinkston that Brown's alleged prior shortcomings did not render him unsuitable for an 8-hour shift further detracts from Respondent's contention that such alleged deficiencies contributed to Pinkston's decision to discharge Brown. d. Conclusions as to the discharge In sum, Respondent wanted to keep the Union out of the plant; Pinkston knew or suspected (well before the elec- tion) that James Brown favored the Union; and 5 days or less after learning that Mrs. Brown's ballot had afforded the Union an indefeasible election margin, Pinkston discharged James Brown-an employee of 12 years' standing-on the basis of explanations which "failed to stand under scruti- ny," thus "buttress[ing]" the "inference of discriminatory motivation." Griggs Equipment, Inc., supra, 307 F.2d at 278. On the basis of a preponderance of the evidence, I conclude that Respondent discharged James Brown at least in sub- stantial part because of his and his wife's union sympathies, in violation of Section 8(a)(3) and (1) of the Act 3 Under the circumstances of this case, I attach little weight to Respondent's failure to take direct personnel ac- tion against Mrs. Brown herself. Respondent must have known that James Brown's discharge inflicted upon Mrs. Brown hardships comparable to-perhaps greater than- those which she would have suffered had she been dis- charged instead. As Mrs. Brown observed to Pinkston when she collected Brown's last paycheck, "I hope you can sleep good at night, knowing that I have to come down here and support five kids." Indeed, after Mrs. Brown made this remark, Pinkston underscored the adverse economic effects of union sympathies on the entire Brown family by telling her that Respondent was going to "fight" her husband's claim for unemployment compensation because the union representatives had come to the unemployment compensa- tion office. Moreover, other considerations may have led Respondent to retain Mrs. Brown in its employ. Thus, Re- spondent might have apprehended that Mrs. Brown's dis- charge shortly after her determinative "yes" ballot was opened would be too suspicious to risk. Furthermore, it is conceivable that Mrs. Brown's immediate supervisors were 39 In finding Brown's discharge to be unlawful, I have discredited Plant Superintendent Pinkston in a number of material respects . As I have pointed out supra, in certain instances Pmkston's testimony as to highly material issues was inconsistent with his admitted conduct or with the undisputed testimony, was self-contradictory, was unlikely on its face, or lacked corrobo- ration from an obvious source. The cold record's demonstration that these portions of his testimony are incredible casts doubt upon the believability of other material parts of his testimony. N.LR B v. Pittsburgh Steamship Co, 337 U.S. 656, 659. Moreover, the manner in which Pinkston testified gave me the distinct impression that he was interested in justifying his own conduct rather than in telling the truth. It is for these reasons that I have discredited his testimony to the extent indicated above. In discrediting Pinkston, I do not, however, rely on Union Representa- tive Scott's testimony that (contrary to Pinkston's testimony) Pinkston was present at the count of the ballots. Company Attorney Youmans credibly denied that Pinkston was then present . Scott admitted that he had not seen Pinkston between the September 9 election and the February 15 hearing, more than 5 months later. While Scott impressed me as an honest witness, I believe he was mistaken in his identification. unable or unwilling to find any deficiency which might reasonably be advanced to justify her discharge. In short, Respondent's lawful treatment of Mrs. Brown does not dis- prove the General Counsel's contention that her husband was unlawfully discharged. Cf. N.L.R.B. v. Challenge-Cook Bros. of Ohio, 374 F.2d 147, 152 (C.A. 6). Nor do I believe that the October 21 statement signed by James Brown in connection with his application for un- employment compensation impairs the General Counsel's case. This statement asserted that "I was discharged ... for refusing to work overtime." The characterization " refusing" to work overtime fairly comports with James Brown's testi- mony about what he told Pinkston on October 19. Brown's statement regarding Respondent's discharge motives (of which he obviously could have no personal, direct knowl- edge) is, of course, not conclusive as a matter of law; such a determination is, rather, initially a function of this Trial Examiner and thereafter, perhaps, of the Board and the Federal courts 40 Moreover, Brown's October 21 conclusion that he was discharged for refusing to work overtime reflect- ed Pmkston's statement when discharging him, and was reached without knowledge of subsequent events which have played a material part in my conclusion that he was discharged at least partly for Union-related reasons-name- ly, Pinkston's statement that he had not fired Brown for refusing to work overtime, and that Respondent was going to "fight" his unemployment compensation claim because the union representatives had come to the unemployment compensation office. In finding that Brown was discharged at least in sub- stantial part because of his and his wife's union activities, I am aware of the different conclusion reached by an Ap- peals Referee of the State Department of Labor Unemploy- ment Security Agency. While relevant to the issues herein, this determination is not controlling.41 My principal reason for giving this determination little weight in the instant pro- ceeding is that the issue there presented was significantly different from the issue before me. The Referee's decision stated: The question to be resolved is whether or not the employer was justified in making the discharge. If a discharge takes place under conditions where three or four reasons can be assigned as justification for it, the employer merely has to show that one good reason did exist, and that the discharge resulted immediately upon the occurrence of the incident which he used for the basis of the separation. Here the employer has shown just that. The claimant's refusal to work the two hours per day overtime under the usual conditions of time and one-half was followed immediately by the dis- charge. The incident concerning the union election oc- curred several days before and may or may not have caused the employer to form a dislike for the claimant. This, however, would be immaterial in view of the fact that the claimant did specifically refuse to accept an assignment given to him. 4° N L. &B. v. Wiltse, 188 F 2d 917, 925-926 (C.A. 6) 41 Mitchell Plastics, Inc., 117 NLRB 597, 598, In. 1, modified 260 F.2d 472 (C.A. 6); Supreme Dyeing & Finishing Corp, 147 NLRB 1094, 1095, In. 1, enfd. 340 F.2d 493 (C.A. 1); N.LR.B v Western Meat Packers, Inc, 368 F.2d 65, 70 (C A. 10); N LR.B. v Stafford Tmckin& Inc., 371 F.2d 244, 249 (C.A. 7). WIPO, INC. 657 In contrast, as shown supra, the issue presented in the in- stant proceeding is whether the real reason for Brown's discharge was at least partly a "dislike" for his and his wife's union activity ; and Respondent cannot defend a discharge which in fact was partly so motivated by a showing that "one good reason did exist" therefor . It is true that the Referee further found that "The problem generated by the union balloting seems to have been a coincidence ... there was no relationship between the separation and the claimant's wife's voting in the union election." However, this statement not only was unnecessary to the Referee's decision, but also was made without the benefit of Mrs. Brown's testimony, on which I have relied to a significant extent in concluding that her union activity partly motivat- ed her husband's discharge . Cf. N.L.R.B. v. Tennessee Pack- ers, 339 F.2d 203, 204 (C.A. 6). Nor can Brown's right to relief in the instant proceeding be affected by his failure to call her as a witness in the unemployment compensation proceeding, in view of the fact that her testimony before me was immaterial to the legal issues presented there. CONCLUSIONS OF LAW 1. WIPO, Inc., is an employer engaged in commerce within the meaning of the Act. 2. National Council of Distributive Workers of Ameri- ca is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent has not violated Section 8(a)(1) of the Act by posting, promulgating, and maintaining a no-solic- itation rule. 4. Respondent has violated Section 8(a)(3) and (1) of the Act by discharging employee James W. Brown because of his and his wife's union activity. THE REMEDY I shall recommend that Respondent cease and desist from the unfair labor practice found, and like and related conduct, and offer reinstatement with backpay to the em- ployee discriminated against. In accordance with usual re- quirements, reinstatement shall be to the discriminatee's former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges. The discriminatee shall be made whole for any loss of earnings he may have suffered by reason of the discrimination against him by payment to him of a sum of money equal to that which he normally would have earned from the date of discharge (October 20, 1971) to the date of a valid offer of reinstatement, less net earnings during such period, to be computed in the manner pre- scribed in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. I shall also recommend that Respondent post an appropriate notice. Upon the foregoing findings of fact and conclusions of law and upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER42 The Respondent, WIPO, Inc., its officers, agents, suc- cessors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in National Council of Distributive Workers of America, or any other labor organi- zation, by discharging or in any other manner discriminat- ing against employees in regard to their hire or tenure of employment or any terms or conditions of employment. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which is neces- sary to effectuate the policies of the Act. (a) Offer James W. Brown reinstatement to his former job or, if this job no longer exists, to a substantially equiva- lent job, without prejudice to his seniority or other rights and privileges and make him whole for any loss of pay suffered by reason of his discharge in the manner set forth in the section of this decision entitled "The Remedy." (b) Notify James W. Brown, if presently serving in the Armed Forces of the United States, of his right to full rein- statement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces. (c) Preserve and, upon request, make available to the Board, or its agents, for examination and copying, all pay- roll records, social security payment records, timecards, per- sonnel records and reports, as well as all other records necessary to analyze and compute the amount of backpay due under the terms of this recommended Order. (d) Post at its Columbus, Georgia, plant copies of the attached notice marked "Appendix ."43 Copies of said no- tice, on forms provided by the Regional Director for Region 10, after being duly signed by the Respondent's representa- tive, shall be posted by the Respondent immediately upon receipt thereof and be maintained by it for 60 consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reason- able steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 10, in writ- ing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.44 It is further recommended that the complaint herein be dismissed, insofar as it alleges that the Respondent violated Section 8(a)(1) of the Act by posting, promulgating, and maintaining a no-solicitation rule. 42 In the event no exceptions are filed to this recommended Order as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions , and recommended Order herein shall, as provided in Section 10(c) of the Act and in Section 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 43 In the event the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 44 In the event that this recommended Order is adopted by the Board after exceptions have been filed , this provision shall be modified to read : "Notify the Regional Director for Region 10, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith."