Firestone Tire & Rubber Co.

624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Dayton Tire & Rubber Company, a Division of the Firestone Tire & Rubber Company and United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO-CLC. Case 16-CA-5103 November 28, 1973 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO On September 5, 1973, Administrative Law Judge Frank H. Itkin issued the attached Decision in this proceeding. Thereafter, the Respondent filed excep- tions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified herein. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge as herein modified, and hereby orders that Respondent, The Dayton Tire & Rubber Company, a Division of the Firestone Tire & Rubber Company, Oklahoma City, Oklahoma, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as modified below: 1. Insert "discriminatorily" before "discharging" in paragraph 1(c) of the Administrative Law Judge's recommended Order. 2. Substitute the attached notice for that of the Administrative Law Judge. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a full trial in which both sides had the opportunity to present their evidence, the National Labor Relations Board has found that the Dayton Tire & Rubber Company, a division of the Firestone Tire & Rubber Company, violated the National Labor Relations Act and ordered us to post this notice. We therefore notify you that: WE WILL NOT create the impression that employee union activities are under surveillance. WE WILL NOT scrutinize employee union authorization cards. WE WILL NOT discourage membership in United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO-CLC, or in any other labor organization, by discriminatorily discharging any of our employees or in any other manner discriminating against them with respect to their hire or tenure of employment or any term or condition of employment. WE WILL NOT discriminatorily , apply a rule against solicitation during working hours in order to discourage union activities among our employ- ees. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them in Section 7 of the Act. WE WILL offer employee Thomas J. Rose immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position without preju- dice to his seniority or other rights and privileges and make him whole for his loss of earnings, as provided in the Board's Decision and Order. THE DAYTON TIRE & RUBBER COMPANY, A DIVISION OF THE FIRESTONE TIRE & RUBBER COMPANY (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, 819 Taylor Street, Federal Office Building, Room 8-A-24, Fort Worth, Texas 76102, Telephone 817-334-2921. DECISION FRANK H. ITION, Administrative Law Judge: This case 207 NLRB No. 108 DAYTON TIRE & RUBBER CO. 625 was tried before me at Oklahoma City, Oklahoma, on June 5, 1973.1 The unfair labor practice charge was filed by the Union on March 26 and the complaint issued on May 10. The issue presented is whether Respondent Company violated Section 8(a)(1) and (3) of the National Labor Relations Act by discharging employee Thomas J. Rose, by seizing certain union authorization cards from an employee and by creating the impression of surveillance of employee union activities. Upon the entire record, includ- ing my observation of the witnesses , and after due consideration of the briefs filed by counsel for General Counsel and Respondent, I make the following: FINDINGS OF FACT 1. JURISDICTION The complaint alleges, the answer admits, and I find and conclude that Respondent Company is engaged in the manufacture of tires at its plant in Oklahoma City; that during the preceding 12-month period Respondent sold goods valued in excess of $50,000 which it caused to be shipped from Oklahoma City directly to points outside of the State of Oklahoma; and that Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. It is also undisputed and I find and conclude that the Charging Party Union is a labor organization within the meaning of Section 2(5) of the Act. II. THE UNFAIR LABOR PRACTICES A. The Incident Involving Employee Paul Grammont During the past 3 or more years, Paul Grammont has been employed as a tire builder at the Company's Oklahoma City plant. Earlier organizational efforts on behalf of the Union at the plant are the subject of prior unfair labor practice proceedings now pending before the Board. See Dayton Tire & Rubber Company, 206 NLRB No. 72.2 During March 1973, Grammont operated a tire building machine on the Company's "C" production line. Grammont generally wore a T-shirt and slacks at work. Before starting work, Grammont removed all personal items from his trouser pockets (such as, for example, his billfold, cigarettes, lighter, wrist watch, and keys) and placed them in an area on his machine . As Grammont explained, "things in my pockets are either confining or they might fall out of my pockets ...:. Grammont was involved in the distribution of union cards to his coworkers and solicitation of their union membership. On the particular day in question during early March, Orammont emptied the contents of his pockets on top of his machine. Included with his personal belongings were a package of some 40 union membership cards which were fastened together by a large rubber band. Some of the cards had been signed by his coworkers; other cards were unsigned. Grammont explained : the cards "always have been up there ever since I have had Union cards." However, on this particular occasion Shift Fore- man Gary Kinder picked up the union cards. According to the credible testimony of Grammont, Kinder "was holding them in his hand and kind of fanning them . . . . He was running his finger through them . . . like you would a deck of cards." Kinder then instructed Grammont that the cards "would be confiscated" if Grammont "didn't keep them" in his pocket. Grammont took the cards back and put them in his pocket. Grammont protested to Kinder that the cards were his "personal property" like the other parapher- nalia on top of his machine. Grammont continued to place the deck of union cards on top of his machine with his personal belongings. And, a few days later, Kinder again observed the cards on top of the machine. Kinder asked Grammont if he was "refusing to do a direct order by not putting them Union cards up?" and Grammont said: "yes." Grammont was instructed by Kinder to go to the office of Personal Manager Greely Sanders. In the office, Sanders apprised Grammont: ... one of us was going to get into some trouble; that he [Sanders ] didn't know which one it was, but that he wanted to review some Company policies with me [Grammont]... . Sanders then read to Grammont the Company's rule prohibiting solicitation, which provides: No Solicitation Rule All fund raising, other than an annual United Fund drive, and handing out of literature and other materials unrelated to your work in working areas is prohibited at all times. Anyone who breaks this rule and thereby neglects his own work or interferes with the work of others will be subject to discharge. Grammont insisted, however, that he was not "soliciting"; that the cards were his "personal property" ; and that he was not "handing out" the cards. Sanders replied that, in his view, the cards were not the employee's "personal property" but instead the property of the Union . Sanders then read to the employee the Company's rule pertaining to thievery. Grammont asked : "What does that have to do with me?" and Sanders explained to the employee: if anyone were to come by there and take one of those Union cards . . . they would have to be fired for stealing because the Company policy says that it makes no difference whether it is Company property or personal property. . . . [Sanders ] also said that if I [Grammont ] would not file a charge of thievery [against] the person that took the Union card, why, then I would be discharged for soliciting. Grammont responded that "he had not even been soliciting in the break area this time around." Sanders stated: he knew what was going on in the break area. He [Sanders ] said that he had somebody watching the break area and he knew all of it, knew all about it. ' All dates are in 1973 unless otherwise noted. 2 As requested by counsel for General Counsel , I have taken official notice of these proceedings for background purposes only. 626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sanders then called Ken Ream into the office and, in the presence of employee Grammont, told Ream: "the cards were not to be confiscated," however, "if anybody took one . . . the thievery policy would apply . . . and if [Grammont] didn't file a charge . . . the soliciting policy would apply." Grammont was sent back to work.3 Section 7 of the National Labor Relations Act guaran- tees employees "the right to self-organization, to form, join or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid and protection," as well as "the right to refrain from any or all such activities." Section 8(a)(1) makes it an unfair labor practice for an employer "to interfere with, restrain or coerce employees in the exercise of "these rights." The test of interference, restraint, or coercion under Section 8(a)(1) is whether the employer engaged in conduct which, particu- larly in the absence of any ligitimate justification for the employer's action, may reasonably be said to tend to interfere with the free exercise of employee rights under Section 7. N.L.R.B. v. Burnup & Sims, Inc., 379 U.S. 21, 23-24 (1964); Textile Workers Union v. Darlington Manu- facturing Co., 380 U.S. 263, 268-269 (1965); Time-O-Matic, Inc. v. N.L. R. B., 264 F.2d 96, 99 (C.A. 7, 1959). Thus, for example, employers have been held to violate Section 8(a)(1) by telling employees that agents of management were engaging in surveillance of their union activities (N.LR.B. v. Medley Distilling Co., 453 F.2d 374 (CA. 6, 1971) by the "seizure of a union authorization card" (United Aircraft Corp., 179 NLRB 935 (1969), enforced 440 F.2d 85 (C.A. 2, 1971), and by "warning" an employee that the plant manager "did not want to see any more authorization cards in the plant" (American Beef Packers, Inc., 196 NLRB 875 (1971). Applying these general principles to the instant case, I find and conclude that the conduct of Foreman Kinder and Personal Director Sanders 4 improperly tended to deter employee Grammont from exercising his Section 7 rights. Sanders unlawfully created the impression that employee protected activities in the break area were under surveil- lance by telling Grammont in the office that Sanders "had somebody watching the break area." And, in this context, Kinder's thumbing through the deck of authorization cards lying on employee Grammont's machine; Kinder's warn- ing to the employee that the cards "would be confiscated" if they were not placed in the employee's pocket; Sanders' warning to the employee that "one of us was going to get into trouble"; and Sanders' threat to discharge the employee if he "he would not file a charge of thievery" against any coworker who might take such a card were plainly coercive. For, although the circumstances may have 3 The foregoing summary is based upon the credible testimony of employee Grammont Grammont's testimony is in large part substantiated by the testimony of Kinder and Sanders. And, relying upon demeanor, I am persuaded that Grammont's testimony, as stated above, is a truthful and honest account of the incident. Insofar as the testimony of Kinder and Sanders conflicts with the testimony of Grammont. I find and conclude that the testimony of Grammont is more trustworthy. In particular, I do not credit Kinder's assertion that he did not "thumb" through the deck of cards lying on Grammont's machine. Further, I do not credit Sander's assertion that he did not tell Grammont that he "had someone watching the break area." afforded some justification for management warning the employee about its no-solicitation rule, I find and conclude that there was no legitimate justification for management's interjection of the subject of thievery, confiscation, and discharge into its exchange with employee Grammont. In sum, I find and conclude that under the circumstances Respondent's conduct tended to interfere with employee Section 7 rights in violation of Section 8(a)(1) of the Act. B. The Discharge of Employee Thomas J. Rose Rose was employed by the Company at'its Oklahoma City plant from September 18, 1970, until March 22, 1973. Rose delivered materials on a forklift truck to the 12 tire builders on the "D" production line. Rose first became involved in the Union's organizational campaign during late 1970 or early 1971. He wore a union T-shirt at work; he distributed union cards to his coworkers during lunch and break periods; and he was a member of the Union's organizing committee. During March 1973, union organizational activity was renewed at the plant. On March 20, Rose distributed union authorization cards to his coemployees during their break period in the plant break area. One or more of the employees asked Rose for a pen in order to sign the union cards and, as a result, Rose went back to his forklift in the work area, took a pen out of his box, and returned to the break area. Rose credibly testified that Company Supervi- sors Coy Savage and Richard Hammer were, at the time, standing on the platform in the work area some 50 feet south of the break area "watching" him .5 Rose gave the pen to his coworkers in the break area; they signed union cards; and Rose placed the cards in his lunchbox. A few days later, following the morning break on March 22, employee Jerry Hoover-operator of a tire machine on the "D" production line-asked Rose at work for about 20 or more blank union cards. Rose told Hoover that he would give Hoover the cards during their lunch break. However, Rose and Hoover did not meet-at lunch. After lunch, while Rose was making a delivery to Hoover on the "D" line, Hoover asked Rose for the cards and Rose handed over the package or deck to Hoover.6 Rose continued with his work. Rose recalled that as he handed the union cards over to Hoover, Supervisor Ron Hoffman was "coming around" the D-9 machine on the production line. Shortly thereafter, Supervisor Coy Savage instructed Rose to park his forklift truck and go to the personnel office. Supervisors Savage and Hammer, together with a guard, accompanied Rose to the office. Present in the office were Supervisors Bill Sloan, Savage, Hoffman, and Hammer and employee Rose.7 Sloan apprised Rose that Rose was "handing out some 4 The complaint alleges, the answer admits, and I find and conclude that Kinder and Sanders are agents and supervisors of Respondent within the meaning of Section 2(11) of the Act. 5 The complaint alleges, the answer admits, and I find and conclude that Savage and Hammer are agents and supervisors of Respondent within the meaning of Section 2(11) of the Act. 6 Rose credibly testified that Hoover asked' "Did you get the cards?" and Rose in effect rephed• "Yeah, here they are." 7 The complaint alleges, the answer admits, and I find and conclude that Sloan and Hoffman are agents and supervisors of Respondent within the meaning of Section 2(11) of the Act DAYTON TIRE & RUBBER CO. 627 union cards in, there." Sloan read the Company's no- solicitation rule (quoted in Section A, supra ) to the employee. Sloan asked Rose if he "had anything to say" and Rose replied, "no." Sloan informed Rose that the rule "says it is an automatic termination . . . for soliciting." Sloan discussed with Rose at what time the employee should be checked out that day. It was then about 12:30 p.m. Sloan, however, agreed to check out Rose as of 3 p.m. that day. The entire incident , from the time Rose handed over the cards to Hoover until Rose's discharge, took about 45 minutes.8 Supervisor Bill Sloan recalled that about noon on March 22 Foreman Kinder told him that Kinder "was bringing a couple of employees [Rose and Hoover ] to" the office "for appropriate action" because they were "distributing Union sign-up cards on Company time in the work area." Sloan promptly met with Sanders, Kinder, Savage, Hammer, and Hoffman. They discussed the Company's no-solicitation rule and, as Sloan testified: The conclusion was that it was probably cause for discharge on the part of Mr. Rose. . . . We felt that since the rule did not cover the receiver [Hoover] but only the distributor, the rule did not apply to [Hoover] and it would not be necessary for me to talk to him. Sloan was then instructed by Sanders "to conduct an exit interview" for employee Rose. Shortly thereafter, Rose was brought to Sloan's office. Sloan, in the presence of Hammer, Savage, Hoffman, and Rose, apprised Rose that "a witness had seen him distribute Union sign-up cards in the work area." The Company's no-solicitation rule was read to Rose. Sloan then said: "Under the circumstances, then, since you did do it, you violated this rule, I have no other recourse than to terminate you, discharge you." 9 Sloan assertedly discharged employee Rose "for handing out literature not related to his work . . . and interfering with his work or other people's work." 10 Evidence was adduced 'pertaining to other alleged 8 Employee Hoover credibly testified that he was a tire builder on the "D" line during March; that Rose made some 10 deliveries of stock to hum each day; that Hoover asked Rose for some union cards on March 22; that Rose promised to give them to Hoover during lunch; that they did not get together lunchtime; and that, instead, Rose handed over the cards shortly after lunch while he was making a; delivery to Hoover. Hoover recalled that Supervisor Hoffman asked to see the cards and then said "Well; I guess you know this can get you discharged." Hoover asked Hoffman, if "this is really worth our losing our jobs over?" and Hoffman said: "Well, I have just got to do it because you did it right in front of me. I have to give them to Gary Kinder." Hoffman apprised Hoover: "You will probably both be discharged." About 30 minutes later, as Hoover credibly testified, Hoffman came by Hoover's machine and said that Rose "had been discharged"; "You [Hoover] will not be discharged because you were not passing out the cards." Hoover protested Rose's firing because "we didn't take up any Company time " 9 Sloan testified that Rose initially had claimed at the meeting that the distribution was in the break area and that Rose later acknowledged that the distribution was in the work area. 10 Personnel Manager Sanders testified that the Company's no-solicita- tion rule was adopted when the plant started operations about November 1969; that the purpose of the rule is "primarily to maintain a consistency in work during work time in work areas, plus the housekeeping problem that is faced whenever distribution or something similar to this is permitted in working areas;" that he is unaware of "any previous instance of a violation of the rule;?' and that the rule is "rigidly enforced." Supervisor Savage testified that he apprised Rose and other employees about the rule. Savage solicitations or distributions at the Company's plant. The credible testimony of record establishes and I find that a so-called "chain liquor letter" was circulated in the plant shortly prior to Christmas 1972. Rose credibly testified that various persons, including supervisory personnel, solicited the signatures of workers to a letter requiring each signer to purchase a bottle of liquor for a person named in the letter; that these solicitations occurred in work areas; and that Supervisor Hoffman discussed a chain liquor letter with Rose at work. As Rose recalled, "just everybody was asking me to sign," including "tire builders," "supervisors" and "everybody in the tire room." 11 Employee Jerry Hoover credibly testified that the "liquor letter was passed around pretty openly in the shop there;" that he saw "supervisors going around with the liquor letter in their hands;" and that he "heard the other employees talking about it." 12 Employee Randy Angel credibly testified that he was solicited by Supervisor Tom Hembry at work to sign a chain letter. Employee Paul Grammont credibly testified that Supervisors Jerry Edwards, Bob Franks, Ron Hoffman, and Dick Hurley were involved in the chain liquor letter and that Edwards solicited Grammont's participation at work. In addition, Rose credibly testified that he was solicited to join "football pots" or pools while he was working and that supervisors participated in this form of solicitation. Rose estimated that about 50 percent of the solicitations in the plant took place on working time. Employee Hoover recalled that he was asked some three times during work by another employee to join a football pool.13 Employee Angel was solicited by a coworker to join a football pool on some two occasions. Employee Grammont credibly testified that Supervisor Edwards solicited him to join a football pool during work time. Grammont recalled that a coworker and other persons also solicited him and others at work to buy church raffle tickets in the presence of Supervisor Herb Blair.14 The controlling legal principles are clear. As the Eighth assertedly told the employees "before each election" that they could "distribute" union cards "in break areas on their breaks and lunch, but not in work areas." ii Under this chain system, Rose purchased a bottle of liquor for Supervisor Hoffman. 12 Hoover witnessed Supervisors Jerry Edwards and Ron Hoffman carrying the chain letter around during work time. Personnel Manager Sanders testified that Edwards is no longer a supervisor with the Company because Edwards assertedly "did not respect our policies and rules as we would require him to respect them." 13 Hoover identified the employee as Dennis Packham Hoover recalled that Supervisor Jim Sheebers also solicited him to join a football pool 14 The facts summarized above are based upon the credible testimony of employees Rose, Hoover, Angel, and Grammont, Their testimony is in part mutually corroborative. Further, their testimony is in part substantiated by the testimony of Hoffman. Sloan, Savage, Sanders, Kinder, Hammer, Hurley, Hembree, Franks, and Blair. And, relying upon demeanor, I am persuaded that the testimony of Rose, Hoover, Angel, and Granimont is trustworthy. Insofar as their testimony as recited above conflicts with the testimony of Hoffman, Sloan, Savage, Sanders, Kinder, Hammer, Hurley, Hembree, Franks, and Blair, I credit the testimony of the former as more trustworthy, complete, and accurate accounts of the events recited In particular, I do not believe Supervisor Hoffman's claim that he confined his solicitation of Rose on the chain liquor letter to break time. Nor do I credit Hoffman's claim that he was unaware of football pool activity on working time. I do not credit the denials of Savage and Hammer to claims that they were engaging in surveillance of union activities in the break area Nor do I credit Savage's denial of participation in the chain liquor letter or observing (Continued) 628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Circuit stated in Central Hardware Company v. N.L.R.B., 439 F.2d 1321, 1325 (C.A. 8, 1971),15 both the Supreme Court and the Board, in balancing the respective rights of management to conduct its own affairs and the employees to freely organize, recognized that the employer may make and enforce reasonable rules governing the conduct of employees on company time. Absent discriminatory factors, this would include prohibiting union solicita- tion by employees during working hours; but an employee's time outside working hours, even though on the company's premises, as during the luncheon hour, rest periods or after work, were his to use as he wishes, and the employee's activities during the non-working periods may not be unreasonably restrained. Republic Aviation Corp. v. N.L.R.B., supra, 324 U.S. at 803, 65 Sup.Ct. 932. Therefore, any rule prohibiting employee union solicitation outside of working hours is viewed as an unreasonable impediment to self-organization and discriminatory, absent evidence that such a rule is necessary in order to maintain production or discipline. Also, even a valid no-solicitation rule, properly circumscribed as set forth above, may be violative of 8(a)(1) if the rule is enforced in a disparate or discriminatory manner. [citations omitted.] * * * * In Talon, Inc., 170 NLRB 355 (1968), the Board found that the employer violated Section 8(a)(1) and (3) of the Act by discriminatorily discharging an employee "because she had solicited her fellow employees to join or support the union and, further, additionally violated" the Act "by applying discriminatorily a rule against solicitation during working hours in order to discourage union activity among its employees." The Board, in reciting its reasons for so finding, noted, inter alia, that the solicitation by the discharged employee "only took two or three minutes and in no way interfered with [the employees'] production efficiency or the cleanup of their machines;" the dis- charged employee was "summarily fired" by management such activity in the work areas. Savage acknowledged: ". . I knew they were going around, but I did not see any." Nor do I credit Savage's claim that football pool activity was confined to the break areas. In addition, I do not believe Supervisor Kinder's claim that all solicitation of the chain liquor letter was confined to break areas or his claim that he was unaware of football pool activity in the plant. To the same effect, I discredit Hammer's denial of participation or involvement in the chain liquor letter activity. I am not persuaded that Hammer confined his football pool activity to the break area. Supervisor Hurley acknowledged that he participated in the chain liquor letter "in our tire room office." I do not believe his claim that this activity was confined to break times. And, I reject his claim that he never saw football cards circulated in work areas. Hurley admitted that his name was on a chain liquor letter. Supervisor Hembree admitted participating in the chain liquor letter. I do not believe his claim that his solicitations of employees were confined to break areas. Nor do I credit his denial of further involvement in or awareness of the liquor letter and football pool activities. Supervisor Bobby Franks admitted that his name was on the chain letter. He claimed that "one of the supervisors that originally got the letter up" put his name on the letter. I discredit his assertions that he was not further involved in all such activity and related activity which was, as he claimed, "without first giving her a warning" or "an opportunity to defend herself;" "no one else had ever been discharged for soliciting;" and "employees were permitted by manage- ment to solicit freely for organizations .....16 The Board concluded in Talon that, on the record before it, "the purpose of the respondent in discharging" the employee "was not to maintain the efficiency of production or discipline," but to use the employee's "asserted violation of its no solicitation rule as a pretext to mask its real purpose to discourage and stop union activity in its plant" (ibid.) Cf., Textron, Inc., 199 NLRB 132 (1972), where the Board recently found that the employer violated Section 8(a)(3) and (1) by discharging employees because of their union activities. The Board noted in Textron that it was unnecessary, in so finding, "to resolve the question of whether or not" the discharged employees "might actually have interfered with production in violation of respon- dent's no solicitation rule since the record amply demonstrates and the trial examiner found that the rule was, in any event, disparately applied and enforced against the discriminatees to prohibit union activities" (ibid). And see Universal Cigar Corp., 173 NLRB 865 (1968), enforce- ment denied in part 425 F.2d 867, 868 (C.A. 5, 1970). The validity of Respondent's written no-solicitation rule is not challenged in the instant case. Rather, General Counsel contends that Respondent, in enforcing this rule against employee Rose, acted in a discriminatory and disparate manner. For the reasons stated below, I agree. The credited testimony establishes that during March 1973, shortly after the Union renewed its organizational efforts at Respondent's Oklahoma City plant, Personnel Manager Sanders warned employee Grammont that "he knew what was going on in the break area" because "he had somebody watching the break area ..... Thereafter, on March 20, Rose was observed by management while he engaged in organizational activities on behalf of the Union during his break period. Two days later, on March 22, Rose was summarily discharged allegedly for "handing out literature not related to his work" and "interfering with his work or other people's work." The record, however, is clear and I find that Rose, in handing over a deck of union cards to Hoover while making a delivery to Hoover, did not interfere with any person's work. The entire transaction consumed an insignificant amount of time. Significantly, confined to nonworking time Supervisor Blair testified that Rose solicited him to join a football pool in the working area and Blair assertedly told Rose "I don't gamble and you are not supposed to be doing it in the first place " I do not credit Blair's testimony that he was unaware of the liquor letter solicitations in work areas. 15 Enforcing in part 181 NLRB 491 ( 1970), vacated and remanded in part 407 U.S. 539 (1972), on remand 468 F 2d 252 (C.A. 8, 1972). 16 The Board stated (170 NLRB at 355 n. I)- . . employees were permitted by management to solicit freely for organizations known as the Sunshine Club, Stanley Home Products, Avon Products, Christmas collections for the purpose of buying Christmas gifts for supervisors, and, the authorization, just about 2 weeks before the discharge, of solicitations in connection with the operations of a number pool, although gambling was prohibited, even during nonworking time In many cases such solicitation was engaged in without employees first having obtained permission as the no- solicitation rule required ; nevertheless, Respondent neither put a stop to the activities, nor reprimanded employees for failing to obtain permission. DAYTON TIRE & RUBBER CO. 629 Respondent's no-solicitation rule provides that "Anyone who breaks this rule and thereby neglects his work or interferes with the work of others will be subject to discharge" (emphasis added). Management, nevertheless, promptly held a meeting and determined that Rose, employed for over two years, should be discharged for violating this rule despite the absence of any actual neglect of work or interference with the work of others. No other employee had been disciplined or terminated for violating this rule although, as the credited evidence shows, employees and supervisors openly had engaged in viola- tions of the rule when they solicited signatures to chain liquor letters, subscribers to football pools, and related activities. These tolerated solicitations during work time were far more extensive and time consuming than the isolated act of Rose handing over to Hoover at work a deck of cards. Rose was an active union supporter. He wore a union T- shirt at work; he distributed union application cards to his coworkers; and he was a member of the Union's organizing committee. As stated, on March 20, he V as observed by management soliciting the union memberships of his coworkers during a break period. Accordingly, on this record, I find and conclude that the real reason Respondent summarily discharged employee Rose on March 22 was not because of the employee's claimed violation of the no-solicitation rule but, instead, was because of the employee's known union activities and Respondent's attempt to discourage the employees from engaging in protected union activities. In addition, on this record, I find and conclude that Respondent's application of the no-solicitation rule to Rose, while not applying it to the numerous and extensive instances of solicitation for other purposes, "amply demonstrates . . . that the rule was, in any event, disparately applied and enforced against [Rose] to prohibit Union activities." Textron, Inc., supra. CONCLUSIONS OF LAW 1. Respondent, The Dayton Tire & Rubber Company, a Division of the Firestone Tire & Rubber Company, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO-CLC, is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent violated Section 8(a)(1) and (3) of the Act by creating the impression of surveillance of employee union activities and scrutinizing the union cards of employee Grammont; by discharging employee Rose on March 22, 1973, in order to discourage employee Rose and his coworkers from engaging in protected union activities; and by applying discriminatorily a rule against solicitation during working hours in order to discourage employees from engaging in protected union activities. 4. The above unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 17 in the event no exceptions are filed as provided by Section 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations, and recommended Order herein The Remedy Having found that Respondent engaged in certain unfair labor practices, I will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. And, as the unfair labor practices committed by the Respondent are of a character striking at the core of employee rights safeguarded by the Act, I shall recommend that it cease and desist from in any other manner infringing upon rights guaranteed in Section 7 of the Act. It has been found that Respondent, in violation of Section 8(a)(1) and (3) of the Act, discriminatorily discharged employee Rose. It will therefore be recom- mended that Respondent offer to employee Rose immedi- ate and full reinstatement to his former, or substantially equivalent, position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings suffered by reason of his unlawful layoff and termination, by payment to him of a sum of money equal to that which he normally would have earned from the date of discrimination to the date of Respondent's offer of reinstatement, less net earnings during such period, with backpay computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Co., 90 NLRB 289. Backpay shall carry interest at the rate of 6 percent per annum, as set forth in Isis Plumbing & Heating Co., 138 NLRB 716. Further, it will be recommended that Respondent preserve and make available to the Board, upon request, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary and useful to determine the amount of backpay due and the rights of reinstatement under the terms of these recommendations. ORDER 17 Upon the basis of the foregoing findings of fact and conclusions of law and upon the entire record in the case, Respondent, The Dayton Tire & Rubber Company, a Division of the Firestone Tire & Rubber Company, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Creating the impression that employee union activi- ties are under surveillance. (b) Scrutinizing employee union authorization cards. (c) Discouraging membership in United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO-CLC, or in any other labor organization, by discharging any of its employees, or in any other manner discriminating against them with respect to their hire or tenure of employment or any term or condition of their employment. (d) Applying discriminatorily a rule against solicitation during working hours in order to discourage union activity among its employees. (e) In any other manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed to them in Section 7 of the Act. shall, as provided in Section 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Offer to employee Thomas J. Rose immediate and full reinstatement to his former job, or if that job no longer exists, to a substantially equivalent position without prejudice to his seniority or other rights and privileges and make him whole for the loss of earnings, in the manner set forth in the Remedy section. (b) Preserve and make available to the Board or its agents all payroll and other records, as set forth in the Remedy section of this Decision. (c) Post at its offices and facilities in Oklahoma City, Oklahoma, copies of the notice attached hereto as "Appendix." 18 Copies of said notice, on forms provided by the Regional Director for Region 16, shall after being duly signed by Respondent, be posted immediately upon receipt thereof, in conspicuous places, and be maintained for a period of 60 consecutive days. Reasonable steps shall be taken to insure that notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 16, in writing, within 20 days from the date of this Decision what steps Respondent has taken to comply herewith. Is In the event that the Board's Order is enforced by a Judgment of a "Posted Pursuant to a Judgment of the United States Court of Appeals United States Court of Appeals, the words in the notice reading "Posted by Enforcing an Order of the National Labor Relations Board."" Order of the National Labor Relations Board" shall be changed to read