The Seng Co.

936 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Seng Company and Furniture and Bedding Workers Local 18B, United Furniture Workers of America, AFL-CIO. Case 9-CA-6989 May 28, 1974 SUPPLEMENTAL DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO On September 26, 1973, Administrative Law Judge Joseph I. Nachman issued the attached Supplemen- tal DecisionI in this proceeding. Thereafter Respon- dent filed exceptions 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 Supplemental Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclusions of the Administra- tive Law Judge only to the extent consistent herewith. The Administrative Law Judge found, correctly in our view, that Respondent's no-solicitation, no-dis- tribution rule was valid on its face.2 But he also found that Respondent discriminatorily enforced the rule against union adherents and that the reprimands issued to employees Hatcher, Logsden, and Mat- thews therefore violated Section 8(a)(1) and that the discharge of Matthews, because he breached the rule a second time, violated Section 8(a)(3) of the Act. We do not agree. In finding Respondent disparately enforced its no- solicitation rule the Administrative Law Judge relied on five incidents, and particularly the Powell incident. These were: 1. In January 1972, employee Elmore, after requesting advice from Plant Manager Glutting, prepared a letter of resignation from the Union for the Respondent and, just prior to the end of his shift, delivered a copy to Chief Steward Downs mile the latter was at work. On April 26 Downs reported this incident to Glutting who promised to investigate the matter. Glutting spoke to Elmore, Cain, who had accompanied Elmore when he handed the letter to i In his original decision herein the Administrative Law Judge found it unnecessary to consider the complaint on the merits because he considered the issues more appropriately left to the grievance and arbitration procedures contained in the parties' contract. On August 2, 1973, the Board issued its Decision (The Seng Company, 205 NLRB No 36) in which it found deferral was not warranted and remanded the case to the Administrative Law Judge for a supplemental decision on the merits 2 The rule states Downs, and Downs; he then concluded Elmore had not violated the Respondent's rule. 2. On April 25, 1972, employee Matthews, Union Steward Leroy Logsden, and several other employ- ees, during the course of the day, observed employee Powell, through the window of Powell's inspector's office, making nonunion buttons. Leroy Logsden, credited by the Administrative Law Judge, testified that when he saw Powell there were two buttons completed and Powell was lettering a third and that he observed Powell wearing such a button. Downs complained of Powell's activity to Glutting. At Glutting's request, Powell's supervisor investigated and reported back. According to the Administrative Law Judge, Glutting concluded that while Powell did make the buttons in the plant he did not violate the rule even though Powell made them during working time. 3. On December 16, 1972, Glutting gave employ- ee Hatcher permission to solicit the entire plant on behalf of a terminated employee whose family was in need of financial assistance. The solicitation was made during working hours. 4. Before Christmas, 1971, employees were solicit- ed for funds to buy a Christmas gift for their supervisor. 5. Although the record is not clear, it seems that all employees were solicited for funds to purchase flowers for the funeral of the deceased mother of the plant nurse. In our opinion, and our dissenting colleague agrees, the beneficent collections for the terminated employee, for flowers, and for the supervisor were too isolated to establish disparate application of the Respondent's lawful rule. We further note that there is no evidence that these isolated solicitations interfered with production.3 Contrary to the sugges- tion of our dissenting colleague, we do not under- stand Daylin, Inc., Discount Division d/b/a Miller's Discount Dept. Stores, 198 NLRB No. 40, to require a contrary result. In Daylin a majority of the Board found that the no-solicitation rule was unlawfully broad on its face,4 which is not the case here. In this case the rule is valid, and therefore we have only to decide, as we have, whether the beneficent solicita- tions are too isolated to warrant a finding of discriminatory application of the rule. We do not agree with the Administrative Law An employee shall not engage in solicitation of any sort during working time nor distribute literature in working areas at any time; nor shall anyone make collections or sales or possess items foi sale on company property without permission. 3 See Atkins Pickle Company, Inc, 181 NLRB 935, Emerson Electric Co, U S Electrical Motors Division, 187 NLRB 294. 4 Member Kennedy dissented on this point, and therefore would not consider Dayhn applicable here in any event 210 NLRB No. 129 THE SENG COMPANY 937 Judge that the Powell incident constitutes disparate application of the rule. Glutting testified on both direct and cross-examination that he concluded that Powell had not violated the rule after receiving the report on the matter he had requested from Czeplicki, Powell's immediate supervisor, that, while Powell had some buttons in the office, he was neither making nor distributing the buttons on working time. Thus, the record does not support the Administrative Law Judge's implication that Glutting knew that Powell made the buttons during working time. It is true that Glutting also testified that he thought such conduct was not solicitation in any event. But whether that opinion is right or wrong has no bearing here, because, to Glutting's knowledge, the alleged violation had not transpired in fact. Finally, we do not regard the fact that Elmore gave Steward Davis a copy of his resignation from the Union during Davis' working hours as grounds for finding disparate treatment.5 When Elmore handed Downs the resignation his (Elmore's) shift was ending. Downs was still on duty, a fact which the Administrative Law Judge deems significant. How- ever, nothing was said; Elmore simply handed Downs the resignation and continued on his way. We agree with the Respondent that there was no solicitation whether on or off working time. We note that the contract between Respondent and the Union provides that the Union be supplied with a copy of such a resignation. There is no evidence or even claim that receipt of such documents was not a normal function of the chief steward. In conclusion, for the reasons set forth above, we find Respondent did not engage in disparate applica- tion of the no-solicitation rule. Accordingly, we shall dismiss the complaint in its entirety. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor 5 Our dissenting colleague points out that Elmore prepared his resignation in Glutting's office after asking Glutting how to withdraw from the Union Our colleague does not suggest it was unlawful to allow Elmore to seek advice from Glutting Therefore, it seems tenuous to suggest that Elmore's preparation of such a bnef document in the office amounts to violation of a no-solicitation rule 6 Plant Manager Glutting testified Supervisor Czeplicki conducted the Powell investigation , Czeplicki did not testify Sanders , on the other hand, was a witness and testified he investigated the Powell incident. 7 In this connection see Atkins Pickle Company, Inc, 181 N LRB 935, and Emerson Electric Co, 187 NLRB 294, in which I participated. Those cases involved limited and isolated instances of beneficent collections . It should be noted, however, contrary to the Administrative Law Judge's implication (see In. 15), that the Board has not held that allowing collections for beneficient causes does not establish disparate application of an otherwise lawful rule The Board's position in this matter was set forth in Serv-A,r, Inc., 175 NLRB 801, upon remand from the Tenth Circuit Court of Appeals, 395 F.2d 282. There the Board accepted the court's holding that two or three collections for beneficient purposes "fall far short of Relations Board hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. MEMBER FANNING, dissenting: I would adopt the Administrative Law Judge's finding that Respondent discriminatorily enforced its no-solicitation rule against union adherents. My colleagues, in finding that the no-solicitation rule was not discriminatorily enforced, choose to view the five instances involved as separate and unrelated. Such a viewpoint is myopic; the Respondent's conduct must be viewed as a whole. When so viewed it becomes clear that Respondent has employed a double standard-one standard for union adherents and one for those who opposed the Union. Thus, even the manner in which Respondent treated the complaints of the opposing factions indicates its proclivity to discriminate against the union adherents. For exam- ple, when complaints were lodged against Hatcher and Miller for soliciting for the Union, no investiga- tion was conducted by Respondent although Hatch- er and Miller denied they engaged in such activity. On the other hand, although three employees complained that Powell had made antiunion buttons on worktime, Supervisor Sanders, who testified he made an investigation of the Powell incident, stated that Powell denied he had made the buttons on worktime and that he (Sanders) "had no reason to doubt his word." 6 Faced only with the three beneficent collections, I might agree that allowing such collections would not amount to disparate application of the rule in question.? But these incidents do not stand alone and therefore must be considered in the context of Respondent's overall conduct and not as separate incidents. The majority takes issue with my citation of Daylin, Inc., Discount Division d/b/a Miller's Discount Dept. Stores, 198 NLRB No. 40, on the ground that in Daylin the Board majority found the no-solicitation rule unlawfully broad on its face, whereas here we have a presumptively valid rule.8 It establishing forbidden discrimination " However, the Board in In 3 further noted, "we do not understand the court of appeals' decision as meaning that a finding of discriminatory application would not be justified even if numerous solicitations for vanous and sundry social and charitable purposes were allowed, but only as concluding that disparate treatment was not established by the quantum of such incidents shown by the record before it " s The Administrative Law Judge found the no-solicitation rule presump- tively valid on its face. I will accept that judgment primarily because the General Counsel did not file exceptions . However, I must confess serious doubt as to this finding Under the rule all solicitation is prohibited while collections are prohibited only if permission is not requested or, upon request, is not granted As a result union solicitation is prohibited outright-permission cannot be granted-but collections or money solicita- tions which may also disrupt production are allowable if the solicitor receives permission beforehand Such a rule, if not presumptively invalid on its face, at least ensures discriminatory application, as union solicitation is banned without any recourse to seeking permission In this connection (Contiwaed) 938 DECISIONS OF NATIONAL LABOR RELATIONS BOARD should be noted, however, that in Daylin the Administrative Law Judge not only found the rule involved was too broad but also that the respondent had discriminatorily applied the rule by allowing a number of solicitations for beneficent and social purposes. And although the Board majority in Daylin did find the rule overly broad, it also specifically addressed itself to the Administrative Law Judge's finding that the respondent had discriminatorily applied the rule and held "and discriminatory application of the rule seems clear; the rule itself prohibited all solicitation, expressly including chari- table and social, yet was ignored by Respondent as to several other solicitations and applied only in the case of union solicitation." 9 In my opinion, the majority cannot ignore the overall effect of the manner in which Respondent applied its rule by describing the instances of beneficent solicitation as isolated and de minimis since Respondent's failure to apply the rule to such solicitations in the context of this case clearly supports the conclusion the rule was applied only against union activity. The real issue, and the one which the majority ignores, is whether the Respondent can prohibit union activity while allowing antiunion activity. The Board has consistently held, as most recently indicated in Daylin, Inc., supra, that employees have the right to solicit, even during working time, so long as there is no interference with production. For this reason, an otherwise valid no-solicitation rule is valid (or permissible) only because it is presumed to be directed toward and have the effect of preventing interference with production.10 If, however, after claiming the necessity of such a rule to prevent interference with production an employer permits or condones other solicitation or antiunion activity, as here, during working time, it negates any reliance upon these factors as special interests in need of protection. Put differently, an employer cannot rely on the protection of such a rule if it uses the rule only to prohibit union activity while allowing interference Gooch Packing, 187 NLRB 351, is distinguishable, since there all solicitations or collections were subject to prior authorization 9 See also Gooch Packing, Inc, supra, Hosiery Corporation of America, 175 NLRB 180, and Talon Inc, 170 NLRB 355 io Thus, in numerous cases, even where a rule was presumptively valid on its face, the Board has held that the respondent must show there is some basis for prohibiting certain employee conduct , srch as the fact that the conduct was having some disturbing effects on its operations or production. See Whitcraft Houseboat Division, North American Rockwell, 195 NLRB 1046; Hosiery Corporation of America, supra, Universal Cigar Corporation, 173 NLRB 865; and General Electric Company, 169 NLRB 1101. t1 In this connection, no evidence was adduced by Respondent to show that the alleged solicitation by union adherents actually interfered with production See Montgomery Ward & Co., Incorporated, 202 NLRB No. 124. 12 Powell was observed by Matthews, Steward Logsden, and several other employees at different times during the workday making the nonunion badges . Logsden testified that Powell as an inspector had some flexibility as to when he took his breaks and was not required to take his breaks at the regularly scheduled breaktimes However, Logsden further testified Powell with production for other solicitations and other nonunion activity.ii To do so is to engage in discriminatory application of its rule in violation of Section 8(a)(1). Starting from the premises that an employer has no right to promulgate a rule solely for the purpose of prohibiting union activity while allowing interference with production for other solicitation or antiunion activity, and that the employer's treatment of union advocates must be viewed in its totality, it appears clear to me that Respondent disparately enforced its rule. It is incongruous to find that a no-solicitation rule was not discriminatorily applied when one union adherent is terminated and two others receive reprimands on the same day that an antiunion employee is permitted to make antiunion badges on his worktime. The Administrative Law Judge found that Powell did make the badges on worktime.12 The majority suggests, however, that whether or not Powell made the badges on worktime is of no consequence since Plant Manager Glutting was acting on the information he received, which was to the effect that Powell had not made the badges on worktime, and therefore to Glutting's knowledge the alleged violation had not occurred in fact. They find that the record does not support the Administrative Law Judge's finding that Glutting decided that Powell did not violate the rule "even though Powell made the buttons during working time" because on both direct and cross-examination Glutting testified he concluded Powell had not violated the rule because Czeplicki, Powell's immediate supervisor, told him, after talking to Powell, that while Powell had some buttons in the office he was neither making nor distributing them on worktime.13 They note, however, that upon a further questioning on cross- examination, Glutting added that he thought such conduct was not solicitation in any event,14 but they conclude that this was only an opinion which whether right or wrong has no bearing here. I submit this conclusion totally ignores the record evidence. always took his breaks with the other employees and did so on that particular night. Powell, on the other hand , admitted he made nonunion buttons but claimed he always did so either at home or, if in the plant, on break or lunch periods. With regard to the incident in question , Powell testified he made only one sign but claims it read, "no outside calls " The Administrative Law Judge did not credit Powell to the extent his testimony conflicted with Matthews, Logsden, and the other employees who saw Powell making the badges 13 See discussion, supra (and fn. 6), of Respondent's proclivity to discriminate against union adherents by the very manner in which it handled such investigations As noted Czeplicki did not testify i4 If the majority suggests in accordance with Glutting's "opinion" that making antiunion badges on working time is not solicitation , they beg the question For the only valid purpose for such a no-solicitation rule is to prohibit interference with production in this connection , see J W Morrell Company, 168 NLRB 435, where the Board found a no-solicitation rule was disparately enforced because , among other things, the respondent enforced its rule against union adherents while allowing employees to prepare antiunion documents on worktime THE SENG COMPANY 939 For, in addition to the testimony relied on by my colleagues, Glutting also testified on direct as follows: Q. If he had made any buttons during working time, is there any shop rule, any specific shop rules that this would be violating? THE WITNESS: . . . yes, I did know that he was making buttons and had made buttons, yes. Now I do not consider that a violation of the shop rule Number 1, no I do not. JUDGE NACHMAN: Would it make any differ- ence as to where he made them any difference in the violation or not? A. In my estimation sir, it does not. Q. Even if he made them right there in the plant during working hours? A. Yes sir. Q. That would not be a violation of the shop rule? A. No sir. And on cross-examination, after being asked if he had received the complaints of the union adherents about Powell making antiunion buttons on work- time, he testified: Q. So you take from that fact that there had been a report made by Logsden and Mr. Scott, but there was no basis for the fact that Powell was making buttons? A. Well, to me it was not just that complicat- ed. To me it was just very simple, whether he was making the buttons or not didn't really make a damn bit of difference to me. Q. In your view that didn't violate the rule. A. That did not violate the rule. I always felt that solicitation takes two people. On the basis of this testimony it is, therefore, clear, as found by the Administrative Law Judge, that Glutting decided that Powell did not violate the rule "even though Powell made the buttons during worktime." It is also clear that Glutting was interested in prohibiting interference with production only when union adherents were involved. Likewise I believe that Elmore's act of resigning from the Union on working time is further evidence that Respondent was concerned with interference with production only to the extent engaged in by union adherents. I do not suggest, as my colleagues point out, that it was unlawful to allow Elmore to seek advice from Glutting but only that this incident further evidences Respondent's discriminatory treat- ment of union adherents. Elmore went to Glutting's office during worktime to inquire about resigning from the Union. Glutting not only told him what he had to do but allowed Elmore to prepare his letter of resignation in that office. After Elmore prepared the letter, Glutting told him to give a copy to Chief Steward Downs. Elmore took the copy tq Downs while both he and Downs were on worktime. My colleagues, in dismissing this incident as insignifi- cant, point out that nothing was said when Elmore gave Downs his resignation and that in any event the incident did not involve solicitation.15 As with the Powell incident, we have a situation where Respon- dent promulgated and enforced a no-solicitation rule against union adherents, presumably to prevent interference with production, but allowed an antiun- ion employee to cease his production so it could inform him how to withdraw from the Union and allow him to prepare and deliver his resignation on working time. This is disparate or discriminatory treatment of union adherents and I would find, in agreement with the Administrative Law Judge, that Respondent applied its no-solicitation rule in a discriminatory manner. If the Respondent were really concerned with interference with production, why could Glutting not have told Elmore to return to his office after his shift ended? On this record, if a union adherent had passed a union authorization card, without saying a word, to another employee, would Respondent have declined to apply the no- solicitation rule? I think not. I would find for all the reasons set forth above that the Respondent discriminatorily applied its no-solici- tation rule against union adherents in violation of Section 8(a)(1) and, with respect to Matthews, of Section 8(a)(3). 15 My colleagues also point out that there is no evidence or claim that receiving such resignations during working time was not the normal function of the union steward. Yet, on the other hand, there was no evidence that it was a normal function of the union steward Apparently, Downs did not consider it a part of his function since he complained to Glutting about it. SUPPLEMENTAL DECISION STATEMENT OF THE CASE JOSEPH I. NACHMAN, Administrative Law Judge: This case was heard by me at Leitchfield, Kentucky, on December 6 and 7, 1972, and on January 18, 1973, I issued my Decision recommending that the Board defer the dispute here involved to the grievance and arbitration provisions of the collective-bargaining agreement in effect between The Seng Company and the Charging Union. By its Decision and Order issued August 2, 1973 (205 NLRB No. 36), the Board disagreed with my recommendation and remanded the case to me for the preparation of a Supplemental Decision on the merits containing appropri- ate findings of fact, conclusions of law, and recommended Order. 940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT' Background Early in 1970, Respondent opened its Leitchfield, Kentucky, plant (the only plant involved in this proceed- ing) for operation. With the opening of this plant, there was posted on the bulletin board a set of plant rules governing the conduct of employees while on plant premises, which has remained posted at all times since. Involved in this proceeding is rule 12, which reads: An employee shall not engage in solicitation of any sort during working time nor distribute literature in working areas at any time; nor shall anyone make collections or sales or possess items for sale on company property without permission. The penalty provided in the rules for violation of this provision was a warning for a first offense, and discharge for a second offense. Late in 1970 or early in 1971, after a Board-conducted election, the Union was certified as the collective-bargain- ing representative of Respondent's employees in an appropriate unit. Although bargaining for a contract commenced shortly after the certification, agreement was not reached until September 17, 1971, when a contract was entered into for a term of 1 year from that date. The contract brought to an end a strike and picketing which had been in progress for sometime, with some employees honoring the picket line, with others continuing to work.2 In late August 1972, pursuant to a decertification petition, the Board conducted a further election among the employees in the unit involved, which election the Union lost, and hence was decertified, but the parties continued to administer the contract they had entered into until its expiration on September 17, 1972. The Unfair Labor Practices Alleged On April 4,3 Respondent issued written reprimands to employees Wade Hatcher, David Miller, and Farley Logsden for violating rule 12 by soliciting for the Union while working. A copy of the reprimand was placed in the personnel file of each of said employees. On April 25, employee Ed Matthews was reprimanded for the same reason, but as he had been reprimanded in December 1971, for the same offenses, he was discharged.4 Except in the case of Farley Logsden, who admitted that he had solicited 1 As stated in my initial Decision, no jurisdictional issue „ involved. 2 The intense feeling between the prounion and antiunion employees was plainly apparent at the trial The spectator section of the courtroom was an area about 30 by 40 feet with an aisle about t feet wide on each side, another about the same width in the center. The prounion employees all sat on one side of the center aisle, and the antiunion employees sat on the c,ther side of the center aisle, and to paraphrase Kipling, never did the twain meet. 3 This and all dates hereafter mentioned are 1972, unless otherwise stated 4 The evidence shows that on December 4, 1971, Matthews received a reprimand for soliciting a fellow employee, while at work, to sign a union card. The complaint herein alleges this to be a violation 5 Thus, Wade Hatcher testified that although he did solicit in the parking lot and while on breaks, he never solicited in the plant, but employees Mattingly and Smith, witnesses called by Respondent, testified that they were severally solicited by Miller to join the Union. Edward Matthews while at work, the evidence is in serious conflict as to whether the employee involved did in fact violate rule 12. However, because the case can be disposed of on other grounds, I find it unnecessary to resolve the conflicts.5 The General Counsel's basic contention is that, assuming the validity of rule 12, it was enforced by Respondent in a disparate manner. The evidence dealing with disparate enforcement is as follows: 1. The contract between Respondent and the Union contains a modified union-security and checkoff provision, with the right to any employee to terminate the checkoff by notice to the Company and the Union. Sometime in January, employee Rodgers Elmore decided to terminate his dues-checkoff authorization, and discussed the matter with Plant Manager Glutting, who informed Elmore that it would be necessary for Elmore to prepare a letter of resignation from the Union which he would give to the Company, with a copy to General Union Steward Odell Downs. Elmore prepared the necessary letter in Glutting's office, and shortly before the end of his shift at 3 p.m., delivered the copy to Steward Downs while the latter was at work.6 Downs testified without contradiction that sometime in April he reported to Glutting that Elmore gave him the withdrawal while he (Downs) was at work, and that Glutting "just laughed." Downs further testified that as chief steward he was supposed to receive a copy of all reprimands issued to employees for violation of plant rules; that he never received one involving Elmore; and that, although he received copies of a number of employee reprimands issued from time to time, these always involved employees who supported the Union, never employees who opposed the Union. Glutting admitted that, at a time he fixed as April 26, Downs, who was then accompanied by Union Agent Scott, raised with him, among other things, the conduct of Elmore in handing him the copy of the letter resigning from the Union, and that he promised to investigate that matter. According to Glutting, he later talked separately with Elmore, and with Cain,7 as well as Downs, all three of whom agreed as to what had happened, and that, on the basis of the facts so reported to him, he concluded that Elmore's conduct did not violate rule 12. His reasons for so concluding Glutting did not state. 2. On April 25, the day Matthews was discharged, the latter went to the water fountain located near a window likewise denied that he at anytime solicited in the plant , but employees Lyons and Saltzman, witnesses called by Respondent, testified to occasions in December 1971 and April 1972, while they were at work, on which they were solicited by Matthews to join the Union . As above stated, employee Farley Logsden admitted that he solicited for the Union while at work. 6 According to Elmore's uncontradicted testimony, his shift ends at 3 p in and he closes down his machine about 7 minutes before the end of the shift to permit him to wash up before clocking out, and he estimates that he gave the copy of the letter to Downs about 3 or 4 minutes before 3. Downs claimed that he was handed the letter about 10 minutes before 3, but I deem it unnecessary to resolve this conflict The uncontradicted and credited testimony of Downs is that his shift does not end until 3.30 p.m, and that he was at work when Elmore handed him the letter of resignation from the Union. 7 Cain had accompanied Elmore when the latter delivered the letter to Downs. THE SENG COMPANY 941 looking into the inspector's office, and there observed Royce Powell8 making nonunion buttons. Matthews reported this to Steward Leroy Logsden. During the course of the day, Steward Logsden and several other employees went to the window of the inspector's office to observe Powell's activity. These employees testified that through the window they observed Powell preparing buttons on pieces of cardboard about 3 inches in diameter on which he wrote the legend "Non-union." Leroy Logsden credibly testified that when he observed Powell there were two completed buttons on the table, and he was lettering the third one; and that later during the shift he saw Powell wearing the same or a similar button in the plant .9 Powell admitted that he wore such a button in the plant, and that he gave buttons of this kind to other employees in the plant when they asked him for them. Glutting testified that at the meeting with Union Agent Scott and Steward Downs, on April 26, the latter brought up the subject of Powell's making nonunion buttons in the plant the preceding day, and that he promised to investigate the matter. According to Glutting, because Powell worked on a different shift he asked the latter's supervisor to get the facts for him, and that, on the basis of the supervisor's report, he concluded that while Powell did make antiunion buttons in the plant, what he did was not a violation of the rule, and that this was true even though Powell made the buttons during working time. The basis for this conclusion Glutting did not explicate. 3. On December 16, 1972, employee Ben Goins, who had been a union steward in the plant, was terminated ' 10 Because a number of employees in the plant regarded the Goins family as in dire need of financial assistance, they decided to take up a collection to be contributed to the family. The collection was made by employee Wade Hatcher by circulating among all employees in the plant while they were at work, and taking such contributions as the particular employee offered. Before taking up the collection Hatcher discussed the proposed collection with his supervisor who, after checking with Plant Manager Glutting, gave Hatcher permission to solicit the entire plant.11 4. Before Christmas 1971, certain employees decided to take up a collection to buy Supervisor Rich a Christmas gift. The employees involved12 were solicited for that purpose, and the gift was purchased and presented to the supervisor.13 5. The evidence additionally shows that in late 1971 the employees were solicited for a contribution to a fund to purchase flowers for the funeral of the deceased mother of the plant nurse. Although the record is not entirely clear, s Powell was at the time employed as a precision inspector , a rank-and- file job, but about October 1972 became a supervisor in one of the departments of the plant 9 Based on the credited testimony of Matthews, Leroy Logsden, and Allen Lambert and the admission of Powell . Powell admitted that he made nonunion buttons , but claimed that he always did so either at home , or, if he did so at the plant, it was during his lunch or break periods According to Powell, on the occasion involved he made only one sign He admitted that the sign was about 3 inches in diameter, but claims that the legend on it read "No outside calls " Why it was necessary to make such a sign Powell did not explain To the extent that his testimony conflicts with that of Matthews, Leroy Logsden, and Lambert, f do not credit it apparently all employees in the plant were solicited for this purpose.14 Glutting admitted that he was aware of the solicitation made in the plant for the benefit of Goins, and that he gave permission for it. He testified that, while such solicitation was contrary to the language of the rule, no violation thereof occurred because he had given his permission for the solicitation. Glutting additionally admitted that he had permitted other collections, such as gifts for a foreman at Christmas, and for flowers at the time of a bereavement. With respect to these incidents, he conceded that such collections violated the rule absent his permission, but claimed that no violation then occurred because he had given his permission. Discussions and Conclusions The General Counsel's contention that Respondent's conduct in reprimanding Hatcher, Miller, Logsden, and Matthews, and subsequently discharging Matthews, violat- ed Section 8(axl) and (3) of the Act is premised on two alternative theories: (1) that the "no-solicitation" rule here involved is overly broad and hence violative of Section 8(a)(1) of the Act; and (2) that, even if the rule is valid on its face, on the facts of this case Respondent enforced it only against union adherents while permitting other nonunion activity and solicitation. Turning first to the contention that the rule is invalid on its face, the General Counsel' s argument seems to be based on the language of the last clause in the rule which seems to reserve to Respondent the right to permit employees to engage in conduct which, absent such permission, is prohibited, and from this fact concludes that the rule must have been intended to infringe upon employee rights, and not to maintain production. I find and conclude that this theory must be rejected. It is well settled that a rule barring solicitation in work areas of the plant during working time is presumptively valid. Republic Aviation Corp. v. N.LR.B., 324 U.S. 793, 803, fn. 10 (1945). The fact that the rule adds that such conduct shall not be engaged in without the employers permission in no way affects the validity of the rule. Nor can it be argued under the evidence in this case that the phrase "working time" was ambiguous to the employees because it could possibly be construed by them as embracing all hours they were at the plant, and as prohibiting such conduct during their lunch and break periods. Plant Manager Glutting testified-and the em- ployees corroborated his testimony in that regard-that he conducted meetings with employees and told them that the rule applied only to those periods they were actually at 10 The reason for Goins' termination is not discloses by the record, nor is it an issue in this case The record does show that following arbitration Goins was reinstated to his job about April 6 11 Based on the credited testimony of Wade Hatcher , and the admissions of Plant Manager Glutting 12 The record does not disclose whether this collection was plantwide or limited to a particular department i3 Based on the credited testimony in this respect of Ben Goins and Rodger Mattingly, and the admissions of Plant Manager Glutting 14 Based on the credited testimony of Goins, and the admissions of Plant Manager Glutting 942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD work, and that during lunch and break periods, even if compensated for, they were free to solicit . This sufficiently clarified any possible ambiguity . Accordingly, I find and conclude, contrary to the General Counsel's contention, that the rule here involved is valid on its face . Notwith- standing this conclusion , the law is equally well settled that an employer violates Sectiosi 8(a)(1) of the Act if he enforces an otherwise valid rule in a disparate or discriminatory manner. Republic Aviation Corp. v. N.LR.B., supra at 805 ; J. W. Mortell Co., 168 NLRB 435, enfd . in pertinent part 440 F .2d 455 (C.A. 7, 1971). Upon consideration of the totality of the five incidents set forth above, and particularly the incident of Powell making nonunion buttons during his working time, and thereafter distributing them in the plant, conduct which was brought to the attention of supervision, and which Glutting admitted he did not view as a violation of the rule, and the three incidents of solicitation of funds while the employees were actually engaged in work, conduct which Glutting admitted was contrary to the rule, but not a violation thereof because he had given prior approval for the solicitation, I find and conclude that Respondent discriminatorily enforced its rule against union adherents, and that the reprimands issued to Hatcher , Miller, Logsden, and Matthews violated Section 8(a)(1) of the Act, and that its discharge of Matthews, allegedly because he violated the rule for a second time , violated Section 8(a)(3) and (1) of the Act. Firestone Textile Company, Division of Firestone Tire & Rubber Company, 203 NLRB No. 19, and the cases there cited.15 Upon the foregoing findings of fact, and the entire record in the case, I state the following: CONCLUSIONS OF LAW 1. Respondent is an employer within the meaning of Section 2(2) of the Act, and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By disparately enforcing its rule prohibiting solicita- tion Respondent interfered with, restrained, and coerced its employees in the exercise of rights guaranteed them by Section 7 of the Act, and thereby engaged in, and is engaging in, unfair labor practices proscribed by Section 8(a)(1) of the Act. 4. By reprimanding Wade Hatcher, David Miller, Farley Logsden, and Ed Matthews, and by subsequently discharging Ed Matthews, all for allegedly violating its disparately enforced "no solicitation" rule, Respondent discriminated against said employees in regard to their hire and tenure of employment, and interfered with, restrained, and coerced its employees in the exercise of rights guaranteed them by Section 7 of the Act, and thereby engaged in, and is engaging in, unfair labor practices proscribed by Section 8(a)(3) and (I) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices proscribed by the Act, it will be recommended that it be required to cease and desist therefrom, and to take the affirmative action set forth below, designed and found necessary to effectuate the policies of the Act. Having found that Respondent interfered with, re- strained, and coerced its employees in the exercise of their Section 7 rights ; discriminatorily reprimanded Hatcher, Miller, Logsden, and Matthews ; and thereafter discrimina- torily discharged Matthews , I conclude from the totality of this conduct that Respondent should be required to cease and desist from in any manner interfering with, restraining, and coercing its employees in the exercise of their Section 7 rights. N.L.R.B. v. Entwistle Mfg., Co., 120 F.2d 532 (C.A. 4, 1941); California Lingerie, Inc., 129 NLRB 912, 915. To remedy the discrimination against Hatcher , Miller, Logsden, and Matthews, it will be recommended that Respondent be required to remove from its files and destroy all references to the fact that they or any of them has been reprimanded for violating rule 12 , and that it offer to Ed Matthews immediate , full, and unconditional reinstatement to his former job or, if that job no longer exists, to a substantially equivalent job, without prejudice to his seniority or other rights, privileges, or working conditions, and make him whole for any loss of earnings he suffered by reason of the discrimination against him by paying to him a sum of money equal to the amount he would have earned from the date of his discharge to the date of Respondent's offer of reinstatement, less any amount he may have earned as wages during said period; such backpay to be computed in accordance with the formula set forth in F. W. Woolworth Company, 90 NLRB 289, with interest at the rate of 6 percent per annum, as provided in Isis Plumbing & Heating Co., 138 NLRB 716. It will be further recommended that Respondent be required to preserve and, upon request, make available to the authorized agents of the Board all records necessary or useful in determining compliance with the Board 's Order, or in computing the amount of backpay due. [Recommended Order omitted from publication.] 15 I am not unmindful of the Board's holding in Serv-Air, Inc, 175 an otherwise lawful rule, but I do not consider those cases applicable here NLRB 801, Atkins Pickle Company, Inc, 181 NLRB 935, and Emerson because the activity there was not union-related as was some of the conduct Electric Co, l87 NLRB 294, to the effect that permitting solicitation during in the instant case and I know of no standard that I might apply to support worktime for beneficent causes does not establish disparate enforcement of a conclusion that the antiunion conduct here involved was de mintmis