Inland Shoe Manufacturing Co., Inc.

INLAND SHOE MFG. CO. 843 Inland Shoe Manufacturing Co., Inc. and United Shoe Workers of . America, AFL-CIO. Case 14-CA-7480 June 21, 1974 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND PENELLO On November 30, 1973, Administrative Law Judge Elbert D. Gadsden issued the attached Decision in this proceeding. Thereafter, 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 2 of the Administrative Law Judge and to adopt his recommended Order as modified herein.3 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 modified herein, and hereby orders that the Respon- dent, Inland Shoe Manufacturing Co., Inc., Ad- vance, Missouri, its officers, agents, successors, and assigns, shall take the actions set forth in the said recommended Order, as modified below. 1. Delete the words "Promulgating, distributing, posting," from paragraph 1(a) of the recommended Order. 2. Substitute the attached notice for that of the Administrative Law Judge. I The Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544, enfd. 188 F.2d 362 (C.A. 3, 1951). We have closely examined the record and although some of the Administrative Law Judge's credibility resolutions are partially based on irrelevant factors, we find no basis for reversing his findings in that such resolutions are also based on the demeanor of the witnesses. In so finding, however, we do not adopt the Administrative Law Judge's crediting of the testimony of Supervisor Delores Deck to the effect that she knew of, and occasionally initiated, the circulation of collection boxes, as the record contains no such testimony by Deck. Moreover, as Supervisor Wilker did not testify, we do not concur with the Administrative Law Judge's observation that there exists a conflict in the testimony of Wilker and other witnesses concerning the events immediately surrounding the discharge of employee Van Matre. 2 Member Penello, who did not participate in Avon Convalescent Center, Inc., 200 NLRB No. 99, agrees with the Administrative Law Judge in the present case that the no-solicitation rule is invalid . However, he does not agree with the holding in Avon Convalescent Center, Inc., to the extent that it finds a no-solicitation rule prohibiting solicitation during "working time" to be invalid. Thus, he would not rely on the Administrative Law Judge's citation of that case. 3 We find merit in Respondent's exception to the Administrative Law Judge's conclusion that the promulgation and posting of Respondent's no- solicitation rule violated Sec. 8(axl) in that as the rule was promulgated and posted more than 6 months prior to the filing of charges, an 8(a)(l) finding based on such conduct is time-barred by Sec. 10(b) of the Act. Therefore, we shall modify his recommended Order accordingly. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discourage concerted or union activity of employees by maintaining or enforcing a broad and patently invalid no-solicitation rule. WE WILL NOT disparately or discriminatorily enforce any rule against employee union solicita- tion. WE WILL NOT discourage membership in United Shoe Workers of America, AFL-CIO, or any other labor organization, by discharging employees or otherwise discriminating in any manner in respect to their tenure of employment or any term or condition of employment. WE WILL NOT engage in surveillance of employ- ees' concerted activity or union meetings. WE WILL NOT coercively interrogate employees about their and other employees' union member- ship, activities, and desires. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise and enjoyment of rights guaranteed to them by Section 7 of the National Labor Relations Act, except to the extent that such rights may be affected by lawful agreements in accord with Section 8(a)(3) of the Act. WE WILL offer Marylyn Van Matre immediate and full reinstatement to her former position or, if such position no longer exists, to a substantially equivalent one, without prejudice to the seniority and other rights and privileges enjoyed by her, and make her whole for any loss of pay she may have suffered by reason of her discharge, with interest at the rate of 6 percent per annum. All our employees are free to become, remain, or refuse to become or remain, members of said Union or any other labor organization, except to the extent that such rights may be affected by lawful agree- ments in accord with Section 8(a)(3) of the Act. INLAND SHOE MANUFACTURING CO., INC. (Employer) 211 NLRB No. 142 844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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, 210 North 12th Boulevard, Room 448, St. Louis, Missouri 63101, Telephone 314-622-4167. DECISION STATEMENT OF THE CASE ELBERT D. GADSDEN, Administrative Law Judge: Upon an original and an amended charge of unfair labor practices, filed on July 9 and 30, 1973, respectively, by Russell Taylor, vice president of the United Shoe Workers of America, AFL-CIO, herein called the Union, against Inland Shoe Manufacturing Co., Inc., herein called the Respondent, the General Counsel of the National Labor Relations Board issued a complaint against Respondent on August 24, 1973, alleging that Respondent had engaged in unfair labor practices in violation of Section 8(aX3) and (1) and Section 2(6) and (7) of the National Labor Relations Act, as amended, herein called the Act. The primary issues raised by the pleadings are whether (a) Respondent violated employees' rights protected by the Act by discharging an employee for exercising such rights; or (b) Respondent had a valid no-solicitation rule which was violated by said employee for which she was justifiably discharged. A hearing in the above matter was held before me at Cape Girardeau, Missouri,on September 25, 1973. Briefs have been received from counsel for the Respondent and the General Counsel and have been carefully considered. Upon the entire record in this case and from my observation of the witnesses, I hereby make the following: FINDINGS OF FACT 1. JURISDICTION Respondent, a Missouri corporation maintaining plants in the cities of Advance and Perma, Missouri, is and has been at all times material herein, engaged in the manufac- ture, sale, and distribution of shoes and related products, with an annual value in excess of $50,000 from the shipment of said products from its plants in the State of Missouri, directly to points located outside the State of Missouri. The complaint alleges, the answer admits, and I find that Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED United Shoe Workers of America, AFL-CIO, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Introduction Since on or prior to May 1, 1965, the corporate Respondent has maintained two plants in Missouri (Perma and Advance) engaged in the manufacture of shoes and related products. However, all of the transactions giving rise to the subject matter of this proceeding occurred at its Advance, Missouri, plant which employs about 550 persons. Approximately 220-275 of these persons work in the plant's fitting department. Since May 1, 1965, Mr. Gary Davault has been employed by the Respondent and was designated director of manufacturing for both plants in August 1970. Thus, Director Davault is and has been at all times material herein, superintendent for Respondent's Advance, Missouri, plant, and by virtue thereof, he is now and has been a supervisor and an agent for Respondent within the meaning of the Act. It is stipulated that floorladies, Delores Deck and Evelyn Wilker, have been and are now supervisors of Respondent and are also its agents within the meaning of Section 2(11) of the Act. The application for employment form used by Respon- dent from May 1965 to August 1973, contained the two following questions: "Are you now or have you ever been a member of a Union?", and, "Name of Union?" This application form was revised by the Respondent, effective August 1, 1973, upon the advice of its legal counsel, deleting therefrom the two above-quoted questions relating to union membership. The alleged discriminatee, Marylyn Van Matre was first employed by Respondent from 1969 to August 1971. On December 8, 1972, the Respondent posted a notice in the plant to all employees advising them that there would be no solicitation of any kind during working hours. This rule was also set forth in the "Employee Bulletin" dated January 3, 1972, which was distributed to all employees. Marylyn Van Matre completed an original application form for reemployment in which she stated as required, that she was not, nor had she ever been, a member of a union. She was thereupon employed as a sewing machine operator in the fitting department by the Respondent in April 1973. Evelyn Wilker and Delores Deck were supervisors in the fitting department over which Jerry Dunning was the foreman. Evelyn Wilker was the immediate supervisor of employee Van Matre, until July 3, 1973,1 when Van Matre was discharged, allegedly, for distributing union authorization cards to fellow employees during work hours, in violation of the Company's rule against solicitation.2 In regard to the alleged discriminatory discharge of Marylyn Van Matre in violation of Section 8(a)(3) and (1) of the Act, the principal questions presented for decision 1 Hereinafter all dates will refer to the year 1973, unless otherwise 2 The facts set forth above are undisputed in the record specified. INLAND SHOE MFG. CO. 845 are whether Respondent had a valid no-solicitation rule in existence prior to July 3, whether Van Matre was distributing union cards in violation thereof, and if so, was her discharge for such violation a discriminatory applica- tion of the rule by Respondent, and whether Respondent was engaged in surveillance of a union meeting on July 26, all in violation of the Act. B. Preliminary Facts Rule Against Solicitation In the Respondent's "Employee Bulletin" dated January 3, 1972, which was distributed to each employee, the employees were advised as pertinent herein as follows: You should be guided by the following restrictions and policies on the following pages: Page 2, Item 12: There will be no solicitation of any kind during working hours. This includes the selling of all kinds of merchandise. Item 16: of the bulletin listed restrictions (a)-(i), the violation of which, Respondent advised would be grounds for immediate discharge. (Solicitation was not a restriction listed hereunder.) Item 17: of the bulletin listed restrictions (a)-(f), the violation of which, Respondent advised would be subject to warning and if repeated, would be subject to discharge. (Solicitation was not a restriction listed hereunder.) (GC's Exh. 3). Since on or about December 8, 1972, Respondent has had the following notice posted in its plants: Plant Director Davault creditably testified that he authorized the preparation and the posting of the "Notice to Employees" dated December 8, 1972, prohibiting solicitation of any kind during working hours, because the plant was going on increased production and in an effort to stop employees in the Parma plant from leaving their work stations 10 and 15 minutes before quitting , or lunch times to purchase snacks ; and that the prohibition against reading at their machines was established because one employee would read his Bible during work time. The employees are given a 10-minute break period in the morning, a lunch period, and a 10-minute break period in the afternoon. Based upon the foregoing documentary evidence and the credited testimony of Marylyn Van Matre and Plant Director Davault, I conclude and find that at least, since January 3, 1972, Respondent has had a rather broad rule against any kind of solicitation during plant "working hours" (working hours not defined) which was distributed to all employees, including Van Matre ; that Plant Director Davault had the rule republished and posted in the plant on December 8, 1972, in an effort to stop employees in the Parma plant from leaving their work stations before break or lunch times to purchase snacks and from reading books, magazines, etc., at their machines ; that employees are given a break period in the morning, a lunch period and a break period in the afternoon; that since the words "working hours" can reasonably be construed as including the break and lunch periods, the rule is ambiguous in this respect; and that since the rule is ambiguous on its face, it is therefor invalid and is violative of Section 8(a)(1) of the Act. December 8, 1972 NOTICE TO ALL EMPLOYEES - ADVANCE & PARMA WE WOULD LIKE TO REMIND ALL EMPLOYEES ON THE FOLLOWING RESTRICTIONS THAT HAVE BEEN A PLANT POLICY FOR YEARS. THE FOLLOWING ARE BEING ABUSED BY SOME EMPLOYEES: 1. ALL COATS MUST BE HUNG ON THE COAT RACKS PROVIDED . YOU MUST NOT LEAVE OR PREPARE TO LEAVE YOUR WORK STATION UNTIL THE FINAL BELL RINGS. 2. THERE WILL BE NO SOLICITATION OF ANY KIND DURING WORKING HOURS. THIS INCLUDES THE SELLING OF ALL KINDS OF MERCHANDISE. 3. NO EMPLOYEE SHALL GO TO THE LUNCH ROOM FOR FOOD DURING WORKING HOURS. 4. NO EMPLOYEE IS PERMITTED TO READ BOOKS, NEWSPAPERS, MAGAZINES , ETC. DURING WORKING HOURS. THESE RULES WILL BE ENFORCED. ANYONE VIOLATING THEM WILL BE SUBJECT TO DISCIPLINARY ACTION. MARVIN LINK (GC's Exh. 2) C. Solicitation Marylyn Van Matre, the Charging Party, credibly testified that she knew about the Company's rule against solicitation during her tenure of employment with Respon- dent. However, when she was asked whether she had observed other employees distributing advertising or subscription literature or selling and delivering merchan- dise or other products during working periods, she said she had specifically observed Mary Keene distributing an Avon folder (catalog) and selling Avon products during work periods; and that about 2 weeks before she was discharged, employee Sandy Fredricks yelled to her during the working period, asking her if she wanted to buy some Tupperware; that she advised Sandy that she did not, and Sandy then passed the Tupperware folder (catalog) to employee Brenda Nenniger, who works behind her. Van Matre's credited testimony also established that she did not know personally whether plant supervisors saw these solicitation activities of employees Keene and Fredricks. She further stated that as often as once a week she had observed shoe boxes being circulated among the employees during working periods for contributions for employee family-related occasions such as birthdays, marriages, 846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD deaths, and resignations. The boxes usually had a note pinned to them stating their purpose as heretofore described, and are often passed from one machine worker to the next during working periods but more often, during break and lunch periods. She once observed employees reading these order catalogs or advertising materials at their machines during working period.3 Specifically, with respect to the circulation of boxes for contributions, Van Matre's testimony was creditably corroborated by the testimony of Phyllis Accord, who testified that she had observed such boxes being circulated during the working periods as often as once a week, and as late as July 3, the same day Van Matre was discharged. She further stated that she too was aware of the plant's rule against solicitation and that, while on her break, Van Matre gave her a union card which she (Accord) in turn, signed on her own break. Phyllis Accord said when she circulated a contribution box in the past, she had done it with the permission of Supervisors Jerry Dunning or Delores Deck. She further stated that the circulations of the boxes took place during the working periods while the girls were actually sewing at their machines , but she had not observed the circulation or solicitation of any mer- chandise or other subject matter during work periods. Again, with regard to the circulation of boxes and the sale of merchandise, Van Matre's testimony was creditably corroborated by the testimony of employee Ruth Carver, who stated that she, personally, had distributed Stanley folders (catalogs) and products among the employees during the break, lunch, and work periods. In early spring of this year, employee Carver said she distributed a folder during the work periods about the upcoming appearance of a musical aggregation to appear at a beer glass festival in Emenince, Missouri; and that in August she observed employee Faith Hackler exhibiting to employees and circulating among them as they worked at their machines a folder (catalog) for the sale of panties . Some of the workers were looking at the folder while at work at their machines. Also in August she observed employee Martha Tacket distributing or selling some packaged items to employees while they were working at their work stations ; and she too, saw boxes being circulated for contributions during work periods. When witness Carver was asked if she knew whether Supervisor Deck or other supervisors saw the boxes being circulated during the working periods, she replied: "If she didn't see them I don't know what would have kept her from seeing them". The circulation was done openly and visible to all persons in that department. Carver further stated that about a year ago she sold lipstick, tupperware, pantyhose, and panties, many times during the working periods; and that she had never been told to refrain from doing so, nor had she ever tried to conceal or hide her distributing or soliciting activities. Also creditably testifying about having observed boxes being circulated for contributions during the working periods, was Floorlady Cibel Lutes, who stated that she noted frequent circulations of such boxes. Lutes further stated that she had never reported the circulation of contribution boxes, which occurred during working peri- ods about twice a week , and as late as mid-June 1973; and that contribution boxes were circulated openly in a manner which was visible to everybody, including supervisors. She did not report her observations of the circulation of the boxes for contributions as a violation of the rule against solicitation, because she presumed that supervisors knew about it, and to her knowledge, nothing was ever done about it by management. Supervisor Delores Deck stated that contribution boxes are circulated as frequently as 2 or 3 times a week; and that she too had circulated a box among workers during the working period some time ago. However , a week ago when she was asked by an employee to assist in circulating a box, she advised said employee to obtain permission from supervisor, Jerry Dunning. Although Plant Director Davault denied having personal knowledge of any kind of recent employee solicitation during work periods, he creditably testified that prior to his notice to all employees on December 8, 1972, he had previously severely warned employees about violating the plant's rule against solicitation ; that he had never dis- charged an employee for such a violation; and that he was sure that some of the plant's 550 employees had received disciplinary warnings for violating the rule against solicita- tions. As an example, he cited employee Mary Keene as one person who had been warned for distributing Avon products to employees during work periods. He admitted that he did not know whether Van Matre did in fact stop working when she gave the union cards to employee Lutes; and that he did not ask Van Matre any questions about the authenticity of Supervisor Wilker's report of her distribut- ing the cards. Based upon the foregoing credited testimony of Van Matre and employees Phyllis Accord, Ruth Carver, and Floorlady Cibel Lutes, I conclude and find that Van Matre and practically all plant employees (including supervisors) actually had knowledge of the existence of the no- solicitation rule; that notwithstanding the existence of the rule and plant employees knowledge thereof, several employees during working periods, at all times material herein, nevertheless engaged in the widespread and frequent circulation of boxes for contributions towards employee-family related occasions; that at least one plant supervisor had actually observed, and in the recent past, had circulated contribution boxes herself during work periods; that such knowledge and participation of supervi- sory personnel is imputed to Respondent; that during work periods, some employees have engaged in solicitation or distribution activities such as selling Avon and Stanley products (cosmetics), panties, and pantyhose ; that Plant Director Davault knew about some past (prior to Decem- ber 8, 1972) nonunion solicitation activities of employees during working periods, who were warned or reprimanded by himself or other supervisors for violating the no- solicitation rule; but that no employee, except Van Matre, has ever been discharged for violating the rule, either prior or subsequent to its distribution and posting on December 3 Van Matte's testimony is credited because she appeared to be telling witnesses, especially with respect to the circulation of boxes for contnb- the truth and because her testimony is essentially consistent with , and is utions. substantially corroborated by the credited testimony of subsequent INLAND SHOE MFG. CO. 8, 1972; that with respect to contribution boxes, the rule was neither strictly enforced by Respondent nor substan- tially complied with by the employees; that Respondent knew the rule was not enforced at all with respect to contribution boxes, and it probably knew or should have known that it was not strictly enforced against the selling of products and other merchandise since these activities were carried on openly, even if only on isolated occasions during work periods; and that even though Van Matre distributed the cards to Lutes during a working period, she either did not interrupt her work or appreciably affect her production in doing so. D. Union Activity The documentary evidence (G.C. Exh. 4) and the credited testimony of Marylyn Van Matre established that in responding to questions in the course of completing her application which resulted in her employment with Respondent in April, she indicated that she was not, nor had she ever been, a member of a union. However, during the lunch hour (between 12 and 12:30 p.m.) on July 2, Van Matre and the girls (fellow employees) were sitting in a car on the plant's parking lot when they were approached by Mrs. Helen Oliver, a representative for the Union. Mrs. Oliver introduced herself and inquired about an employee whom Van Matre and her fellow employees did not know. Nevertheless, Van Matre advised Mrs. Oliver that she was interested in the Union. Thereupon, Mrs. Oliver gave her 50 blank union authorization cards for herself and other interested plant employees to complete and sign. Van Matre immediately distributed a card to each girl in the car at that time, and after work, gave two of the cards to workers in the car on the way home. During a morning work break on July 3, the union cards fell out of Van Matre's purse and she thereupon wrapped them in an old sheet with which she had used to clean her machine. She then layed the cards on the top of her purse beside her machine. There is a conflict in the testimony of Van Matre and Floorlady Lutes with respect to the events which thereafter transpired as follows: On the one hand, Van Matre testified what about 11:15 a.m. on the same day, July 3, while at work at her machine, she was approached by Floorlady Cibel Lutes who distributes work to the girls; that Lutes asked her if she had any union cards and she said "Yes," and Lutes thereupon pointed to a box beside the machine (indicating to Van Matre to throw the cards in the box), and Van Matre picked up some cards (which were lying on top of her purse) and with one hand threw them into the box without stopping her work at the machine. Her immediate supervisor, Evelyn Wilker, was on the other side of the room (40 or 50 feet away) at the time 4 l credit Van Matre's testimonial account of how she came to throw the union cards in Lutes' box, not only because Van Matre impressed me that she was telling the truth , but for the following reasons: Van Matre does not deny that she distributed the cards to Lutes, but Lutes , assuming her version of t;ie conversation is true, told Van Matre she would not sign a union card if ¶ he were given one. Nevertheless , Lutes asked Van Matre if she had some cards, then permitted the latter to throw the cards into her box which she was carrying or about to carry and which she did not return to Van Matre, but walked away with the cards in the box as if she had not previously expressed no personal interest therein. Such conduct on Lutes' part appears 847 and Van Matre did not know how Floorlady Lutes knew she had the cards. On the other hand, Floorlady Lutes testified that when she approached Van Matre at her machine, the latter asked her if someone gave her a union card would she sign it, and she (Lutes) responded: "No," but that she asked Van Matre if she had cards and Van Matre said just a minute, reached into her purse and took out the cards which were wrapped in a worksheet and dropped them into her (Lutes') box that she was carrying. Lutes said she then reported this incident to her supervisor, Evelyn Wilker, and she (Lutes) gave the cards to Plant Director Davault. When Lutes was asked why did she keep the cards rather than returning them to Van Matre since she had told the latter that she would not sign them, Lutes said she took the cards just out of curiosity and that she did not return them to Van Matre because the latter had dropped them in her box and because "there is not suppose to be any solicitation of any kind in the factory during working hours." 4. Director Davault creditably testified that Supervisor Wilker had previously asked him "could we discharge someone for distributing union cards during work time?" and he said "Yes, provided we have proof on it." Later Lutes handed the cards (as wrapped) to him while standing outside his office. Based upon the foregoing documentary evidence (G.C. Exh. 4) and the credited testimony of Van Matre and Director Davault, I conclude and find that Respondent's use of its application form for employment, calling for the disclosure of union affiliation which Van Matre had completed, constituted interference and coercive conduct on the part of Respondent with respect to the exercise of employee rights guaranteed under Section 7 of the Act; that although such conduct has been abated by recent revision of the application form, since it was originally instituted, its nonrevival should be assured by remedial order; that when said inquiry is considered along with the subsequent credited testimony of Director Davault's conversation with Van Matre during the meeting in which she was discharged, it is clear that Respondent (Director Davault) had knowledge of Van Matre's union activity (distributing union cards on July 3) fromSupervisor Wilker and/or Floorlady Lutes, who reported Van Matre for allegedly violating the plant's no-solicitation rule. E. Discriminatory Discharge The credited and undisputed testimony of Van Matre established that as she entered the door on her return from lunch about 12:30 p.m. on the same day, July 3, and stopped to clock in, she noted that Supervisor Wilker was holding her timecard. She then asked Supervisor Wilker if she (Wilker) was going to watch her clock in and Wilker to be inconsistent with a conclusion of innocence of solicitation , especially since Lutes immediately reported the incident to Supervisor Wilker and delivered the cards to Plant Director Davault . Such conduct is also indicative of conduct designed to induce a fellow employee to violate the no-solicitation rule resembling a form of entrapment, and it infers that Lutes was in opposition to the Union as her conduct implies. Hence, a close examination of Lutes' conduct in opposition to the Union indicates that she has a motive for not being a truthful witness with respect to the matter as to who initiated or induced the distribution of the cards during the work period. 848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD said "No, we're going in here where its cool ." Van Matre was then escorted by Wilker into Director Davault 's office. A moment later, Director Davault came into the office and asked them to have a seat and called his office manager or secretary, Inez Whittaker, to come into the office to witness what was about to take place. There is a conflict in the testimony of Van Matre, Wilker, Plant Director Davault, and Office Manager Whittaker, with respect to the conversations which ensued in the office. According to Van Matre's testimony, Plant Director Davault said, "Hi," and laid three union authori- zation cards on his desk which he said Van Matre had been passing out; that he (Davault) said to Van Matre, that she knew he was against the Union when she came to work there. She responded "Yes"; that she did know ; and that Director Davault then advised her that she was fired and that he wanted her to know why she was fired . Specifically, she said Davault said she had been passing out union cards on company time, and that she said, "I could have found them in a box, but I did not on company time"; that he then said he even knew where we were having our little union meetings and that he was fighting the Union. She responded, "and I am fighting for it." At this point, Director Davault instructed Office Manager Whittaker to prepare her check. Van Matre further stated that at no time during their conversation was she asked did she distribute the cards during work time . Nor was she ever advised that she was behind in her work or that her work was unsatisfactory or that she took off early for lunch or violated any other rules of the plant. Director Davault's testimonial account of the conversa- tion which transpired in his office at the time of Van Matre's discharge was as follows : On July 3, about 1 p.m., Supervisor Wilker brought Van Matre to his office and he asked them to have a seat as he went to the door and called his secretary or office manager, Mrs. Whittaker, to come in and witness the conversation. "I held up the union cards that I received from Mrs . Lutes. I told Mrs. Van Matre that I had union cards that she had been soliciting during work time, shortly before noon. I told her, and I quote, `you're being discharged for soliciting union cards during work time. This is against company policy. Any activities such as these must be conducted on your own time .' " He then asked Van Matre if she had anything to say, and she shrugged her shoulders and said nothing. "I then told Mrs. Wilker to take her to the office waiting room and be seated." I directed Mrs. Whittaker to prepare her final check. Director Davault denied that he told Van Matre that he would fight the Union to his last breath, or words to that effect. Nor did he say that she knew he was against the Union when she was hired. He stated that he was 3 I credit Director Davault's testimony with respect to his attitude towards unions which he in his own testimony admitted has existed for some time (particularly prior to July 3) and during the employment tenure of the dischargee, Marylyn Van Matre. Such attitude on the part of Director Davault (which he stated is representative of the plant's attitude) is the clearest evidence of union animus . In terms of the additional conflict in the testimonial account of the conversations which transpired during the discharge meeting in the office of Director Davault on July 3, 1 further credit Van Matre's testimonial account and discredit Davault's testimonial account, not only because she appeared to be telling the truth but also because her account is consistent with the substantial evidence of Director Davault's union animus. Although Khrector Davault's testimony about the informed by Supervisor Wilker that Van Matre was distributing union cards and that he actually received the cards from Floorlady Lutes. He further stated that the plant gives employees a 10-minute break in the morning and 10 minutes in the afternoon. Director Davault admitted that Mrs. Wilker did not advise him that she saw Van Matre distributing the union cards and Floorlady Lutes did not tell him that Van Matre was distributing union cards, she just gave the cards to him. He stated that Van Matre was a qualified company worker with a good record and that her earnings at all times were equal to or above the minimum wage as a piece worker. He did not have any evidence that Van Matre had stopped working when she gave the union cards to Lutes but he was of the opinion that she had stopped her work and he did not question Van Matre about the authenticity of Wilker's report that she (Van Matre) was distributing union cards during work time. Later in his testimony with regard to the General Counsel's charge of Respondent's surveillance of employ- ees union meeting on July 26, Director Davault said that employees' union meetings were of extreme importance to his knowing whether the employees were trying to organize a union because such efforts represent a discredit to management; that management wants to satisfy the employees without any outside interference from unions or other people; that he considered the Union outside interference; that everybody in Inland Shoe Company knows that that is the way he feels about the Union because the Company has been through this matter before with elections several times ; and that he has bitterly fought union organization because Respondent (the Company) has been opposed to them.5 Based upon the credited testimony of Van Matre and Director Davault, I conclude and find that on and prior to July 3, Respondent (Director Davault) manifested strong and longstanding animus towards unionization of the plant; that Respondent had knowledge of Van Matre's union activity on July 3 because Supervisor Wilker informed Director Davault that Van Matre was distribut- ing union authorization cards to fellow employees during the work period, and Floorlady Lutes gave said cards to him; that about 1 p.m. on the same day, without giving her an oral warning, without investigating Supervisor Wilker's report, without asking Van Matre about the authenticity of the report, or without inquiring whether her production was interrupted, Director Davault discharged Van Matre, allegedly for violating the plant's no-solicitation rule; and that if the no-solicitation rule were in fact valid , Respon- dent's discharge of Van Matre was discriminatory and in violation of Section 8(aX3) and (1) of the Act for the discharge conversations was corroborated by his Office Manager Whittaker, I do not give persuasive weight to her testimony because I received the impression that she was not telling the whole story and because she works directly under his supervision and it would be reasonably expected that it would be uncomfortable, or perhaps not in her best interest, to give testimony adverse to Director Davault's interest and contradictory to his own testimony. In discrediting Director Davault's version of the discharge conversations, I also took into consideration the fact thatSupervisor Wilker, who informed Davault that Van Matre was distributing union cards during work period, did not appear and testify at the hearing. No explanation was offered for her absence INLAND SHOE MFG. CO. 849 following reasons: (a) Respondent's knowledge of Van Matre's union activity on July 3; (b) Respondent animus towards unionization of plant employees on and prior to July 3; (c) Respondent's discharge of Van Matre allegedly for violating a presumably valid plant no-solicitation rule, which was not enforced against widespread and frequent nonunion solicitations during work periods, but for the first time, was discriminatorily enforced against Van Matre for union solicitation during working period on July 3; (d) Respondent's discharge of Van Matte on July 3 was substantially motivated by union animus towards her union activity (soliciting for the union); and (e) Respon- dent's asserted reason for discharging Van Matre on July 3 because she was violating a presumably valid no-solicita- tion rule is clearly pretextual. F. Surveillance of Union Meeting Supervisor Delores Deck creditably testified that while at work on Thursday, July 26, she was approached by Plant Director Davault who asked her, either, "Do you know that there is a union meeting?" or "Are you going to a union meeting," on that evening, and she said "No, I've got enough trouble of my own." Supervisor Deck did not know about the union meeting until she was questioned by Director Davault. On the next day, in the presence of employee Phyllis Beal, she said she implied to employee Ruth Carver that Director Davault had asked her to attend the union meeting the night before and she told him, "If I went I would go on my own" and "If I went on my own, I wouldn't have seen eye to eye with everything they said out there and I probably would have spoken up and there would have been a disagreement because there are good and bad points on both sides. However, at the hearing, Supervisor Deck said her above implied statements to the girls (Ruth Carver and Phyllis Beal) were not true; and that Director Davault did not ask her to go to the meeting.6 The credited testimony of Marylyn Van Matre estab- lished that she went to the union meeting at the Carrol Motor Inn (the Inn) on July 26. The Inn is located just outside Advance, Missouri. Van Matre arrived at the Inn in her car with employee Ruth Carver about 7:35 or 7:40 p.m. and parked in front of the Inn. As she got out of her car she observed a station wagon passing them at a slow rate of speed. The slow speed is what attracted her attention and she recognized and identified the driver as Plant Director Davault. At that time he was driving in the direction of the plant. After entering the motel, Van Matre had occasion to go to the storm door about 8:10 p.m. to see if other plant employees were coming to the meeting and again, she saw the same station wagon (in which she had seen Director Davault) turning around in the parking lot of the "Lonely Widows Lounge," just across the road from 6 1 credit the testimony of the witness with respect to her first statement that she was asked by Director Davault whether she knew about the meeting or was she going to the union meeting on July 26. 1 also credit the witnesses testimony with respect to the conversation she held with employees Ruth Carver and Phyllis Beal, but not with respect to the alleged implication that Director Davault asked her to go to the meeting, because this appears to be a misunderstanding in communication . At least it is not clear that such an import was intended or implied by the communication. Rather, it appears that the witness was merely advising the employees about her conversation with Director Davault as she testified at the hearing. That the Inn. The station wagon was driven north toward town. Finally, as she, several plant employees, and Mrs. Oliver, the union representative, were leaving the Inn about 8:30 p.m., she saw Director Davault's station wagon again driving slowly by the Inn. The essence of the credited testimony of Helen Oliver, the union representative, substantially corroborates the testimony of Van Matre in the following respects: She arrived at the Inn on July 26, between 6:30 and 7 p.m., at which time she saw the station wagon driven by Director Davault, whom she had seen and had been identified to her earlier in July; that shortly after 7:30 p.m., Van Matre and Carver were standing at the storm door of the Inn when they attracted her attention to the same station wagon which was about to enter the motel parking lot; and that when the union meeting terminated at 8:30 p.m., while on the Inn's parking lot, she saw the same station wagon driving slowly pass the Inn's parking lot. She said she believes the speed limit on the highway in question (highway 25) is between 45-60 miles per hour.? Director Davault denied that he was engaged in surveillance of the union meeting at the Inn on July 26, although he admitted that he was on highway 25, by and across from the Inn, on three occasions, essentially around the three times designated by the testimony of Van Matre and union representative Oliver. Director Davault's expla- nation for his presence in that vicinity on three occasions during that evening is as follows: He first passed the Inn on his way from the Parmer plant in Maldon, Missouri, to the plant in Advance, where he also lives; that Advance is about 1/2 mile beyond the Inn; that he passed the Inn about 7:30 p.m.; that he shortly thereafter entered the plant and was checking some managerial chores when he discovered that the boxtoe machine was not functioning; that he then tried to contact Foreman Jerry Dunning, but noting that he was not at home, he proceeded to drive "up through town looking for him because Dunning could repair the machine and he needed to consult with the latter about production before going to the Parma plant the next morning. In looking for Dunning, Director Davault said: A. I went up to the main part of town. I don't know if it is Main Street. I wouldn't swear to it. It is a street that runs between Jo Jo's Tavern and Cecil's Tavern. I looked for Mr. Dunning. He was not there. I circled the block and went out by the Lonely Widows Lounge to see if he was there. He was not. s s s s A. I turned in the driveway, swung out so that I could see the cars that were parked in the road. There were about eight cars parked on the south side. He was is, either he asked her if she knew about the union meeting or whether she was going to attend the meeting. This appears to be what transpired even though the witness said she lied. I believe she meant she did not adequately express herself especially since I got the impression at the hearing that she does not express herself clearly. 7 I credit the testimony of Van Matre and Union Representative Oliver, with respect to the proper identity of Director Davault and his station wagon, because their description of Davault and the station wagon was essentially consistent and corresponded with Director Davault's admission of his presence in the vicinity of the Inn on July 26. DECISIONS OF NATIONAL LABOR RELATIONS BOARD not parked there. I made a circle as short as the car would turn. I don't know how short that would be. Drove in front of the tavern and across over to the M & R Drive Inn. There were three cars parked in front of the tavern. I noticed Harold Stilts' truck parked in front of the M & R Drive Inn. As I got to the point where I could see behind the drive in I noticed another truck there belonging to Paul Buessink . On the spur of the moment I decided to stop in there and get a malt and talk to them, which I did. A. I parked it in back of the drive in where I saw Mr. Paul Buessink's truck. Q. Would you describe the location of the Lonely Widows Tavern and the M & R driveway? A. They both face Highway 25 for a distance of ten foot between the two buildings. Q. Do they have a common front in terms of parking? A. Yes, they have a common front which is a common parking lot. A. We all got up at the same time and walked to the front of the building. I paid for my malt. Mr. Stilts went out the front door. Mr. Buessink and I went out the back door. We all got in our vehicles about the same time. Harold pulled out on the road before I did. I pulled out behind him. Mr. Buessink pulled out behind me. Q. When you pulled onto Highway 25, where did you go? A. I went directly to the factory. Q. What direction is that? A. West on 25. Q. What did you do the rest of the night? A. I worked until 9:45 in my office and went home. Q. Now, why did you search the taverns for Mr. Dunning? A. Mr. Dunning has a habit of drinking during the afternoon after work. I found him several times prior to that at these taverns. We have three that he goes to. Q. When you say afternoon, would you say what period of time that would be? A. Well, he usually goes over about 6, between 6 and 8, before that, have two or three beers before going to bed that night. Q. Did you stop that car on the night of July 26, 1973, and keep the Carrol under surveillance? A. No, sir. Director Davault's testimony about having a malt at the M & R Tavern and his search for Jerry Dunning was corroborated by Harold Stilts, who has sold electrical s I credit Director Davault's testimony that he was in the immediate vicinity of the Inn at the times heretofore designated by the witnesses, but I discredit his denial that he was not engaged in surveillance of the union meeting for the following reasons : (a) it is against the weight of the logical consistency of the credited evidence ; (b) it is contrary to his interest in the union meeting manifested by his inquiry of the same to Supervisor Deck; (c) it is the antithesis of his emphatically expressed curiosity about the appliances and has repaired such items for compensation by Respondent's plant. Davault admitted that he has a station wagon which the evidence shows (essentially) matches the description given by witnesses Van Matre and Oliver. He also admitted that he knew where the union meeting was being held on July 26 and that he probably did ask Supervisor Deck if she knew about the union meeting on July 26, but he did not see any of the employees on that evening when he was in the vicinity of the Inn. When asked why did he ask Supervisor Deck about the union meeting being held on July 26, Director Davault replied: A. The only reason I would have asked her would be to find out if she was aware there was a union meeting out there. Q. Why would that have been a matter of concern to you since you already knew from Mr. Link that there was such a meeting? A. I would say it would be of extreme importance to me whether or not employees were trying to organize a union. Q. Why? A. This would be a discredit to management if employees were not suitable to pay by management of the factory. Q. You were opposed to organizations? A. The management wants to satisfy the people without any outside interference from unions or other people. Q. An organization you feel would be outside interference? A. I feel that union is an outsider, yes, sir. Q. That is an interference? A. Yes, sir, I feel it is. Q. It is a discredit to management , you feel? A. Yes, sir. Q. You have made that attitude perfectly clear, haven't you? A. What do you mean by that? Q. Everybody knows how you feel? A. Everybody knows at Inland Shoe that is how I feel because we have had elections before. We have been through them several times. Q. You have bitterly fought organization, haven't you? A. Yes, we have opposed them.8 Based upon the foregoing credited and undisputed testimony of Supervisor Deck and Director Davault, I conclude and find that Plant Director Davault knew in advance that a union meeting was scheduled to be held at the Inn on the evening of July 26, and that he manifested an interest in said meeting. Moreover, based upon the foregoing credited testimony of dischargee Van Matre, Union Representative Helen Oliver, and Plant Director Gary Davault, I further conclude and find that Director employee's efforts to unionize and his (Respondent's) strong opposition to unionization of plant employees; and (d) because while his testimony about his search for Foreman Dunning might be truthful, it is obviously like an alibi and is pretextual, when weighed against all of the evidence which demonstrates that he was satisfying his acknowledged curious appetite for knowledge of the employees union activity. INLAND SHOE MFG. CO. 851 Davault was within reasonable visual proximity of the Carrol Motor Inn on July 26 at approximately 7:35 p.m., 8:10 p.m., and 8 :30 p.m., so as to have enabled the above- named witnesses to see and identify his station wagon and himself, and reasonably so as to have enabled himself to see and identify Van Matre, Mrs. Oliver, and other plant employees in front of the Inn ; that dischargee Van Matre, Union Representative Oliver, and several plant employees, including employee Ruth Carver, were present at the union meeting at the Inn on the evening of July 26, during which time, Van Matre and Mrs. Oliver did in fact see and identify Director Davault's station wagon and Director Davault driving slowly by the Inn on three occasions, at approximately 7:35 p.m., 8:10 p.m. and 8:30 p.m., respectively ; that Director Davault's credited testimony essentially corroborates their testimony to the extent that he was driving his station wagon at the times and places designated by the witnesses ; that since witnesses Van Matte and Oliver were standing on the Inn's lot at 7:35 p.m. and were able to see and identify Director Davault and his station wagon, it is only logical to presume, in the absence of creditable evidence to the contrary, and I so find, that he probably did see and identify Van Matre, Mrs. Oliver, and perhaps some of the other employees in front of the Inn when they saw and identified him; that in order to aid his observation and identification of plant employees, he drove slowly (10 or 20 mph on a highway with a speed limit of 45-60 mph) when he was passing the Inn; that Director Davault emphatically stated that he was interested in the union meeting because it was of extreme importance to him to know whether the employees were trying to organize a union because that would be a discredit to management and he (Respondent) was opposed to the Union; that under such circumstances, his arrivals and departures by the Inn were too frequent in number and too precise in time to attribute to coincidence; and that such conduct on his part constitutes surveillance of employees union activities by Respondent, in violatioA of Section 8(a)(1) of the Act. Analysis and Conclusion I find upon the credible evidence of record that the Respondent's action in promulgating, posting, maintain- ing, and enforcing a broad rule prohibiting "any kind of solicitation during working hours" is invalid and violative of Section 8(a)(1) of the Act, because such rule might reasonably be construed by some of Respondent's employ- ees as prohibiting union solicitation during nonworking time. This position is amply supported by decisions of the Board in Avon Convalescent Center, Inc., 200 NLRB No. 99, cited by the General Counsel, and in WIPO, Inc., 199 NLRB 649. In Joseph Horne Co., 186 NLRB 754, the Board held that "A no-solicitation rule which is overly broad, whether enforced or not, has an inhibiting effect on lawful organizational activities and is therefore illegal ." Literally, the Respondent's broad and ambiguous rule herein does not make exception for nonworking periods during the whole working day and therefore, clearly implies a prohibition against union solicitation on company property during the nonworking time of the employees. Counsel for the Respondent contends that the mere fact that Respondent's no-solicitation rule was expressed in language which prohibited solicitation "during working hours" does not render the rule invalid on its face. In support of this position he cited Ward Manufacturing, Inc., 152 NLRB 1270 (1965). However, a close examination of the above-cited case reveals that the language of the no- solicitation rule in that case was against solicitation "during working hours unless prior written approval has been obtained." Clearly, this is a conditional, rather than an unconditional and absolute prohibition , as is proscribed in the rule in the instant case. Moreover, it is further noted that the decision in the Ward case was not based primarily upon the clarity or construction of the words "during working hours." More precisely, the decision in the Ward case was predicated upon the purpose of the promulgation of the rule, which was found to have been based upon a discriminatory purpose. In view of this obvious distinction, the principal of the Ward case is not applicable to the facts in the instant proceeding. Assuming that the Respondent's no-solicitation rule is not overly broad and invalid, but rather, on its face is concise and is presumptively valid . I nevertheless find upon the evidence of record that at all times material herein, Respondent's employees frequently and openly circulated contribution boxes amongst all employees in the department during work periods ; and that such circulations were not only known by supervisory personnel but on some occasions included their approval and participation. I also find that certain employees of Respondent, openly sold (on occasions subsequent to December 8, 1972) Avon and Stanley products as well as other merchandise to fellow employees during work periods. Since the evidence shows that such selling or solicitation activities were carried on openly, to the knowledge of management in the past (prior to December 8, 1972) and to the knowledge of some employees at the present time, it is apparent that some supervisory personnel in all probability knew about them. In any event, it is unequivocally clear that supervisory personnel of Respon- dent had knowledge of the undisputed and frequent circulation of collection boxes during work periods. Such knowledge of supervisory personnel is knowledge on the part of Respondent. Under these circumstances the conclusion is inevitable that Respondent's presumptively valid no-solicitation rule was not enforced against nonun- ion-employee solicitations during work periods , but was, disparately enforced against Van Matre for distributing union cards on July 3. Since such discriminatory action was taken by Respondent on July 3, purportedly upon a presumptively valid or invalid no-solicitation rule, a remedial order should be issued to prevent any future discriminatory application of a valid or presumptively valid no-solicitation rule. The disparate nature of Respondent 's discharge of Van Matre on July 3 is further amplified when it is noted that employees who violated the rule in the past were given an oral warning, and that Van Matre is the first and only employee discharged for violating the rule . Not only was Van Matre discharged, but she was discharged without any oral warning as others had received, and without Respon- dent making any effort to investigate the authenticity of 852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the report of her solicitation, or to make a determination as to whether her production was significantly interrupted in the course of distributing the cards. The evidence is clear that Van Matre did not stop working when she passed the cards to Lutes. Consequently, it cannot be maintained that her production was appreciably or even noticeably affected. However, even if Van Matre's distribution of the union cards interrupted her work, it was only momentarily interrupted, and such minuscule interference with work has been held to be so minimal that an employer's real concern is not the flow of production, but rather, the curtailment of union organizational activity. Selwyn Shoe Manufacturing Corporation, 172 NLRB 674, and Mason & Hanger-Silas Mason Co., Inc., 167 NLRB 894. It is obvious from the evidence of the abrupt discharge of Van Matre (an admittedly competent and highly satisfactory employee) that Respondent was more concerned with her organiza- tional activity than with what effect interruption in her work had on production. Respondent's action in discharg- ing Van Matre, therefore, constitutes a discriminatory application of a presumptively valid no-solicitation rule, which the Board has repeatedly held to be violative of Section 8(a)(3) and (1) of the Act. Green Tree Electronics Corporation, 176 NLRB 917, and Universal Cigar Corpora- tion, 173 NLRB 865. Counsel for the Respondent also contends that the Board has held that solicitations for beneficient causes do not justify a finding that an otherwise presumptively valid no-solicitation rule is unlawful. In support of this conten- tion, he cites Sequoyah Spinning Mills, Inc., 194 NLRB 1175. However, an examination of the Sequoyah case reveals that the Board essentially held that where the evidence shows that certain nonunion solicitations took place during working time, before a no-solicitation rule was recently revised, and one of the solicitations thereafter was for the purpose of collecting money to purchase flowers for the funeral of the relative of an employee, such departures from the rule do not justify a conclusion that the no-solicitation rule was discriminatorily applied. Even in the Emerson Electric Co. and the Serv-Air, Inc., cases, cited in the Sequoyah case, it is clearly demonstrated that permitted, occasional or infrequent, beneficent worktime solicitations (for funerals, the ill, etc.) do not constitute a departure from the rule of such magnitude as to result in a widespread and common practice in derogation of the rule. More precisely, the Board held that the "permitted worktime solicitations set forth therein were solely for beneficent causes and, further, even too isolated to establish disparate application of Respondent's otherwise lawful rule." Since the evidence in the instant proceeding is unequivo- cally clear that widespread worktime beneficent solicita- tions were frequently (two and three times a week) carved out by Respondent's employees with the knowledge, and sometimes the participation of supervisory personnel, it is obvious that such solicitations do not fall within the exception enunciated in the above-cited cases. Hence, said cases, distinguishable as they are, do not govern the solicitation in the instant proceeding which gave rise to a disparate or discriminatory application of Respondent's rule, thereby constituting a violation of Section 8(a)(3) of the Act. In view of Respondent's (Director Davault's) longstand- ing, admitted, undisputed and creditably corroborated animus towards the Union, and its knowledge of Van Matre's union activity (distributing union cards) on July 3, for which she was discharged, the evidence of record is more than sufficient to support the conclusion that Respondent's discharge of Van Matre, and its failure or refusal to rehire her, were substantially motivated by union animus. Consequently, the evidence is equally clear that Respondent's contention that Van Matre was discharged for violating its no-solicitation rule is merely pretextual. Since Respondent's discharge of Van Matre and its failure or refusal to rehire her are based substantially and practically entirely upon her union activity, such discharge and failure or refusal to rehire her, interfered with, restrained, coerced, and discriminated against her in the exercise of her Section 7 protected rights, in violation of Section 8(a)(3) and (1) of the Act. J. P. Stevens & Co. v. N.L.R.B., 380 F.2d 292, 300 (C.A. 2, (1967)). A review of the evidence of record readily reveals that a determination of the question as to whether Respondent (Director Davault) engaged in surveillance of the union activities of its employees on July 26, depends upon an evaluation of the credibility of the conflicting testimony of the witnesses herein and the chain of probative circumstan- tial evidence as a whole. In making such an evaluation, I took into consideration not only the impressions of veracity I received from observing the witnesses testify but also their concurring testimonies, all probative evidence bearing on a motive likely to have affected their veracity, and the logical consistency of the evidence in light of the prevailing circumstances prior and subsequent to July 3. Thus, having reviewed the evidence as a whole, I conclude and find that while Director Davault might have had a plausible and legitimate reason (his search for Jerry Dunning) for being in the immediate vicinity of the Inn on July 26, I nevertheless find that the frequency of his presence in the vicinity coinciding with the exact date and times employees were present for their meeting, obviously and logically related to his foreknowledge of the scheduled union meeting and his admitted and reported interest in knowing about the employees union organizational efforts. Such factors clearly demonstrate that his presence in the vicinity of the meeting was in furtherance of his admitted interest in the employees'union activity, and to conduct a surveillance of the employees organizational meeting. In doing so, Respondent's (Director Davault's) conduct constitutes a design and an effort to interfere with, restrain, and coerce its employees in the exercise of their rights guaranteed under Section 7 of the Act, which resulted in a violation of Section 8(a)(1) of the Act. Counsel for the Respondent contends that the mere presence of Respondent (Director Davault) in the immedi- ate vicinity of the Inn on July 26 does not necessarily constitute surveillance, especially when its presence in the vicinity is reasonably explained. In support of his conten- tion counsel cites Hamburg Shirt Corporation, 156 NLRB 511, and other cases which made a finding on the limited theory of his contention. However, it is particularly noted INLAND SHOE MFG. CO. that in not one of the cases cited by counsel for Respondent was there such an abundance of probative and corroborated evidence that management had foreknow- ledge of the union meeting; that management inquired of a supervisor as to whether she knew about or was going to attend the union meeting ; and that management emphati- cally confessed its interest in knowing about the organiza- tional activities of its employees because it strongly opposed unionization of plant employees. When these and the other evidentiary factors are taken into consideration, the cases cited by counsel for Respondent are thereby rendered obviously distinguishable from, and are not applicable to, the Respondent's conduct in the instant case. IV. THE EFFECTS OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in unfair labor practices warranting a remedial order, I shall recommend that it cease and desist therefrom and that it take certain affirmative action to effectuate the policies of the Act. It having been found that Respondent interfered with, restrained, and coerced Marylyn Van Matre and/or its other employees in the exercise of their Section 7 protected rights, in violation of Section 8(a)(1) of the Act; and that it discharged Marylyn Van Matre in violation of Section 8(a)(3) and (1) of the Act, the recommended Order will provide that Respondent offer her reinstatement to her job, and make her whole for loss of earnings within the meaning and in accord with the Board's decisions in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716, except as specifically modified by the wording of such recommended Order. Because of the character of the unfair labor practices herein found, the recommended Order will provide that Respondent cease and desist from or in any manner interfering with, restraining, and coercing employees in the exercise of their rights guaranteed by Section 7 of the Act. N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532, 536 (C.A. 4, 1941). Upon the basis of the above findings of fact and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Inland Shoe Manufacturing Co., Inc., the Respon- dent, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. B In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions , and recommended Order herein shall, as provided in Sec. 853 2. United Shoe Workers of America, AFL-CIO, is and has been, at all times material herein, a labor organization within the meaning of the Act. 3. By discriminating in regard to the tenure of employment of Marylyn Van Matre, thereby discouraging membership in the Union, a labor organization, Respon- dent has engaged in unfair labor practices condemned by Section 8(a)(3) and (1) of the Act. 4. By interrogating (on its application for employment) Van Matre and other employees about their past and current union affiliation, and by conducting a surveillance of their organizational efforts, Respondent violated Section 8(a)(1) of the Act, except to the extent that such rights may be affected by lawful agreements in accord with Section 8(a)(3) of the Act. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDERS Respondent, Inland Shoe Manufacturing Co., Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Promulgating, distributing, posting, maintaining, and enforcing a broad ambiguous and invalid no-solicitation rule prohibiting union solicitation during employees nonworking periods. (b) Disparately or discriminatorily enforcing its rule against employee union solicitation. (c) Discharging or otherwise discriminating against employees in regard to hire or tenure of employment, or any term or condition of employment because of protected concerted activities. (d) Interfering with, restraining, coercing, or discriminat- ing against employees exercise of their Section 7 protected rights, by engaging in surveillance of their union or concerted activities. (e) Coercively interrogating (in written application form or otherwise) employees about their and other employees' union membership, activities, and desires. (f) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights guaran- teed in Section 7 of the Act except to the extent that such rights may be affected by lawful agreements in accord with Section 8(a)(3) of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Offer Marylyn Van Matre immediate and full reinstatement to her former position or, if such position no longer exists, to a substantially equivalent position, without prejudice to her seniority or other rights previously enjoyed, and make her whole for any loss of pay suffered by reason of the discrimination against her with interest at the rate of 6 percent, in the manner described in the section entitled "The Remedy." (b) Preserve and, upon request, make available to the 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. 854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of the recommended Order. (c) Post at Respondent's plant at Advance, Missouri, copies of the attached notice marked "Appendix." 10 Copies of said notice, on forms provided by the Regional Director for Region 14, after being duly signed by Respondent's representatives, shall be posted by it immedi- 10 In the event the Board's Order is enforced by a Judgment of the 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 ately upon receipt thereof, and be maintained by Respon- dent for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent- to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 14, in writing, within 20 days from receipt of this Order, what steps the Respondent has taken to comply herewith. "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board."