Capitol Records, Inc.

CAPITOL RECORDS, INC. Capitol Records, Inc. and District No. 123, Interna- tional Association of Machinists and Aerospace Workers, AFLCIO. Case 38-CA-2733 December 9, 1977 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND MURPHY On July 26, 1977, Administrative Law Judge Alvin Lieberman issued the attached Decision in this proceeding. Thereafter, the Respondent filed excep- tions and a supporting brief, and the General Counsel filed limited exceptions and a reply 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 briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge,' to modify his remedy so that interest is to be computed in the manner prescribed in Florida Steel Corporation, 231 NLRB 651 (1977),2 and to adopt his recommended Order.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 and hereby orders that the Respondent, Capitol Records, Inc., Jacksonville, Illinois, its officers, agents, succes- sors, and assigns, shall take the action set forth in the said recommended Order, except that the attached notice is substituted 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 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. 2 See, generally, Isis Plumbing & Heating Co., 138 NLRB 716(1962). 3 The Administrative Law Judge failed to conform his notice to his recommended Order. Therefore we will substitute a notice to remedy his inadvertent omission. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discharge you or do anything else to your disadvantage, and WE WILL NOT threaten to do so because you handed out or signed a card for, joined, or supported District 123, Internation- al Association of Machinists, or any other union. WE WILL NOT close our plant, and WE WILL NOT threaten to do so, if District 123, International Association of Machinists, or any other union becomes your representative in dealing with us. WE WILL NOT make or enforce any rule, including the rule we adopted and mailed to employees on March 18, 1976, prohibiting em- ployees from carrying on union activities during nonworking time; and WE WILL immediately cancel our March 18, 1976, rule. WE WILL NOT enforce, by discharging or disciplining any employee or in any other way, any rule, including the rule entitled "Contribu- tions and Solicitations" appearing on page 12 of our handbook, by prohibiting only union solicita- tion, while at the same time permitting other kinds of solicitation. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of their right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the National Labor Relations Act, as amended. As it has beer decided that we discharged Mary Fry and Janet Mathews for soliciting for District 123, International Association of Machinists, during time we considered to be working time, although we permitted other employees during working time to take part in, and carry on other forms of solicitation: WE WILL immediately offer to take Mary Fry and Janet Mathews back to work for us at their old jobs; and WE WILL pay Mary Fry and Janet Mathews any wages they lost, plus interest, because we discharged them. All our employees are free, without any objection from us, to become or remain members of District 123, International Association of Machinists, or any 233 NLRB No. 155 1041 DECISIONS OF NATIONAL LABOR RELATIONS BOARD other Union, or not to become or remain members of District 123, International Association of Machinists. CAPITOL RECORDS, INC. DECISION STATEMENT OF THE CASE ALVIN LIEBERMAN, Administrative Law Judge: The hearing in this proceeding, with all parties except the charging party represented, was held before me in Jacksonville and Springfield, Illinois, on several days between September 9, 1976, and February 9, 1977, upon the General Counsel's complaint and an amendment thereto dated, respectively, May 28 and August 27, 1976,1 and Respondent's answers as amended during the hearing. In general, the issues litigated were whether Respondent violated Section 8(a)( ) and (3) of the National Labor Relations Act, as amended (Act). 2 More particularly, the questions for decision are as follows: 1. Did Respondent violate Section 8(a)(1) of the Act by promulgating and maintaining invalid rules prohibiting solicitation? 3 2. Did Respondent violate Section 8(a)(1) of the Act by disparately enforcing its no-solicitation rules? 3. Did Respondent violate Section 8(a)(1) of the Act by threatening employees? 4. Did Respondent violate Section 8(a)(3) of the Act by discharging two employees, Mary Fry and Janet Ma- thews? 4 Upon the entire record and my observation of the witnesses and their demeanor while testifying, and having taken into account the arguments made and the briefs submitted, 5 I make the following: FINDINGS OF FACT I. JURISDICTION Respondent, a Delaware corporation, is engaged at Jacksonville, Illinois, and elsewhere, 6 in the manufacture and sale of phonograph records, cassette tapes, and related products. During the 12 months preceding the issuance of the complaint, a representative period, Respondent sold goods valued at more than $50,000 to customers located outside the State of Illinois. Accordingly, I find that Respondent is engaged in commerce within the meaning of the Act and that the assertion of jurisdiction over this t The complaint was issued pursuant to a charge filed on April 19, 1976. 2 In pertinent part these sections provide: Sec. 8(a) It shall be an unfair labor practice for an employer- (I) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7; (3) by discrimination in regard to hire or tenure of employment ... to encourage or discourage membership in any labor organization ... Sec. 7, insofar as relevant, states: Sec. 7. Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted matter by the National Labor Relations Board (Board) is warranted. II. THE LABOR ORGANIZATION INVOLVED District No. 123, International Association of Machinists and Aerospace Workers, AFL-CIO (Union) is a labor organization within the meaning of the Act. II. INTRODUCTION Briefly, this case is principally concerned with two no- solicitation rules promulgated and maintained by Respon- dent, the manner of their enforcement, and the discharge of two employees for violating the rules. Also involved in this proceeding are, the complaint alleges, threats made to employees by Respondent's agents. The General Counsel contends that the no-solicitation rules are invalid; that they were disparately enforced to restrict union activity by Respondent's employees; and that thereby Respondent violated Section 8(a)(1) of the Act. The General Counsel further asserts that the threats alleged in the complaint constituted additional violations of Section 8(aX)(). Finally, the General Counsel argues that, inasmuch as the no-solicitation rules are invalid and were not uniformily enforced, Respondent violated Section 8(a)(3) by discharging the two employees for not comply- ing with the rules. Respondent denies that its agents made the threats attributed to them in the complaint. Concerning its no- solicitation rules, Respondent's position is that they are valid and were not disparately enforced. Therefore, Respondent's argument continues, it did not violate Section 8(a)(3) of the Act by discharging the two employees for their noncompliance with the rules. IV. PRELIMINARY FINDINGS AND CONCLUSIONS 7 A. Respondent's Plant and its Supervisors Tony Bouselli is the manager of Respondent's plant and is in complete charge of its operation. George Zeigler is the activities for the purpose of collective bargaining or other mutual aid or protection .... 3 From time to time these rules will be referred to as no-solicitation rules. 4 Another issue raised by the pleadings, but which in the view I take of this case need not be decided, is whether persons employed by Respondent as group leaders are supervisors. 5 Although all the arguments of the parties and the authorities cited by them, whether appearing in their briefs or made orally at the hearing, may not be discussed, each has been carefully weighed and considered. 6 Respondent's Jacksonville, Illinois, plant is the only one involved in this proceeding. 7 The purpose of these findings and conclusions is to furnish a frame of reference within which to consider the facts relating to Respondent's alleged unfair labor practices and to the conclusions to which they may give rise. To the extent that the contentions of the parties relate to the findings and conclusions made here they will be treated here, although they, as well as the findings and conclusions, may again be considered in other contexts. 1042 CAPITOL RECORDS, INC. plant personnel director and, as set forth in his job description, s is "in charge of personnel administration for the. . . plant." Respondent's plant is departmentalized. There are, among others, a collation department, a record depart- ment, and a tape department. Phonograph records are manufactured in the record department, and cassette tapes are assembled, labeled, and packaged in the tape depart- ment. In each department there is a general foreman who is responsible for its entire operation. In addition, in each department there are assistant foremen, also known as supervisors. At all material times, Daniel O'Hagen was the general foreman of the tape department, Duane Welch was an assistant foreman in that department, Lester Abbott was the general foreman of the collation department, and Chuck Saxer was an assistant foreman in the record department. At the hearing, Respondent conceded that the following people "are supervisors within the meaning of Section 2(1 ) of the Act"; Bouselli, plant manager; Zeigler, plant personnel director; O'Hagen and Abbott, respectively general foremen of the collation and record departments; 9 and Saxer, an assistant foreman in the record department. Inasmuch as the duties of all assistant foremen are similiar, I find that while Welch, who left Respondent's employ on October 8, 1976,'10 held that position in the tape depart- ment, he, too, was a supervisor within the meaning of Section 2(1 1) of the Act. B. Working Hours in the Tape Department Although three daily shifts are maintained in several departments, there are only two in the tape department. The day shift is known as the first shift and the night shift is called the third shift. The hours of the first shift are from 7:30 a.m. until 4 p.m., and those of the third shift are from 11 p.m. until 7:30 a.m. There are two 10-minute rest breaks on each shift and a meal break of 20 minutes. During these periods no work is done. This situation obtains not only in the tape depart- ment, but also in all other departments. Employees in all departments, including the tape department, are not required to leave their departments during rest and meal breaks and not all do so. Some take their rest and meal breaks at their work stations. Employees on the first shift in the tape department may "punch in" as early as 10 minutes before the shift begins. However, they do not begin work before 7:30 a.m., the shift's starting time. Third shift employees in the tape department may leave their work stations and line up at the timeclock 5 minutes before the end of the shift, but they do not actually "clock s G.C. Exh. 13. 9 Respondent's concession was made at the session of the hearing held on September 9. 1976. O'Hagen resigned the following month. 10 All dates hereinafter mentioned without stating a year fall within 1976. Hl The complaint alleges that these discharges were violative of Sec. 8(a)3) of the Act. 12 At no matenal time did Respondent have a rule prohibiting employees from talking while at work. 13 G.C. Exh. 12. 14 Abbott's account of this conversation differed from that given by out" until the shift's end at 7:30 a.m. After leaving their work stations, preparatory to entering the line at the timeclock, and while waiting on that line to "clock out" the employees on the third shift are not required to do any work. C. The Union's Organizing Campaign In March 1976, the Union instituted a drive to organize Respondent's employees. Between the start of its campaign and April 15, the date on which Mary Fry and Janet Mathews were discharged," the Union held several meetings attended by Respondent's employees. Some of them, including Fry and Mathews, signed cards authoriz- ing the Union to act as their bargaining representative and sought signatures to such cards from fellow employees. In addition, employees talked about the Union while they were working. 2 On March 16, Respondent became aware of the Union's organizing campaign and soon took countermeasures. Among these was a letter sent to all employees on March 18,'3 in which Respondent made known its opposition to the Union. In this letter, the employees were informed that the Union's organizing effort was a "matter ... of concern to the company"; that "if the union were to get in . . . it would not work for [their] benefit"; and that it was Respondent's "positive intention to oppose the union by every proper and legal means to prevent it from coming in here." Finally, in this regard, the letter notified employees that "if anybody ... puts [them] under pressure to sign a [union] card or vote for the union, [to let Respondent] know and we will undertake to make sure this stopped." V. THE ALLEGED UNFAIR LABOR PRACTICES A. Facts, Contentions, and Conclusions Concerning Respondent's Alleged 8(a)(1) Violations 1. The threats The complaint alleges, and the answer denies, that Respondent violated Section 8(aXI) of the Act by a threat made by one of its agents that employees would be discharged for engaging in union activity and by a statement made by another agent of Respondent that one of its plants had been closed because of a union's advent. The facts concerning these matters are set forth below. On April 12 or 13, 1976, in a conversation between Lester Abbott, the general foreman of the collation department, and Tom Teany, a maintenance man in Respondent's employ, Abbott stated, as Teany testified, "people handing out union cards ... might get fired." 14 Teany. Abbott testified that he told Teany that employees "would be reprimanded" for distributing union cards, if they did so during "working time." I believe Teany's version, which did not contain the limiting words referred to by Abbott, rather than Abbott's. I was not impressed with Abbott's demeanor as a witness. Furthermore, in determining whether to believe Abbott or Teany, I have considered not only Abbott's demeanor, but also the fact that Teany was in Respondent's employ at the time of the hearing. Teany's testimony, adverse to Respondent, was therefore given at considerable risk of economic reprisal, including loss of employment. Thus having much to lose, Teany's testimony, damaging to Respondent, was in a (Continued) 1043 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Debra Statton began to work for Respondent on June 1. During her hiring interview a few weeks earlier she was informed, as she testified, by George Zeigler, Respondent's plant personnel director, that "some people were trying to start a union . . . at [Respondent's premises] and ... that in another. . . plant [operated by Respondent] in another city, the Union finally got in and after a while [that plant] closed down." Zeigler's linking the "clos[ing] down" of the plant to a union's "get[ting] in" is, in my opinion, a not too thinly veiled threat that the same fate would befall Respondent's Jacksonville plant, in which Statton sought employment, should the Union succeed in becoming the employees' bargaining representative. As such it is inherently coercive of rights guaranteed to employees by Section 7 of the Act. Equally coercive is the threat made to Teany, an employee, by Abbott, the general foreman of the collation depart- ment,15 that employees would be discharged for union activity. Accordingly, I conclude as alleged in the complaint that by the foregoing threats Respondent violated Section 8(a)(1) of the Act. 2. The rules There are, in effect, two no-solicitation rules in Respon- dent's plant. The first has been in force since at least 1974 and appears in a handbooks6 issued by Respondent to all employees upon being hired. In pertinent part it states: No employee shall be allowed to solicit on company property during the time he/she is to be working. Anyone who does so and thereby neglects his/her own work or interferes with the work of others will be subject to disciplinary action or discharge. The other rule is set forth in a letter sent by Respondent to all employees 17 on March 18, 1976, 2 days after Respondent learned that the Union had initiated its organizing campaign. This rule provides that: No person will be allowed to carry on union organizing activities on working time or in working areas. Anyone who does so and thereby neglects his own work or interferes with the work of others will be subject to discharge. The General Counsel contends that by disparately enforcing the handbook rule to restrain only union solicitation while permitting solicitation for other purposes, Respondent violated Section 8(a)(1) of the Act. Asserting that the letter rule was adopted for a discriminatory purpose, i.e., to stultify the Union's efforts to organize Respondent's employees, the General Counsel argues that by its promulgation Respondent further violated Section 8(a)(1). sense contrary to his own interest and for this reason not likely to be false. Federal Stainless Sink, Div. of Unario Industries, Inc., 197 NLRB 489, 491 (1972); Georgia Rug Mill, 131 NLRB 1304, 1305 (1961), reversed on other grounds, 308 F.2d 89 (C.A. 5, 1962). Accordingly, I credit Teany and not Abbott. 15 It will be remembered that Respondent conceded at the hearing that Zeigler and Abbott were supervisors within the meaning of the Act. (a) The letter rule A distinction exists between rules dealing with distribu- tion of literature and those concerned with oral solicitation. Regarding the former, an employer may normally forbid, without trenching on Section 8(aX)() of the Act, the distribution of union literature in working areas of a plant at any time. However, an employer may not prohibit, without violating Section 8(a)(1), oral union solicitation in working areas during nonworking time. As the Board held in this regard, in Stoddard-Quirk Manufacturing Co., 138 NLRB 615, 621 (1962). [W]e believe that to effectuate organizational rights through the medium of oral solicitation, the right of employees to solicit on plant premises must be afforded subject only to the restriction that it be on nonworking time. However, because distribution of literature is a different technique and poses different problems both from the point of view of the employees and from the point of view of management, we believe organizational rights in that regard require only that employees have access to nonworking areas of the plant premises. The Board also held in Stoddard-Quirk, at 617, "that an employer may in the normal situation make and enforce a rule forbidding his employees to engage in [oral] union solicitation during working time ... but that a broad rule banning such activity during nonworking time is presump- tively invalid." This presumption can be overcome by "a showing .. . that [such a broad rule] is necessary for production or discipline." Gould, Inc., 216 NLRB 1031, 1037 (1975). Respondent's letter rule falls directly within the proscrip- tion of Stoddard-Quirk. By the use of the disjunctive preposition "or" it broadly bans, even during nonworking time, "union organizing activities . . . in working areas." As has been found regarding "working areas" in Respondent's plant, not all employees leave those locations during their rest and meal breaks. Some remain at their work stations. These periods being, as has also been found, nonworking time, the employees who remain at their work stations during these breaks have the right, as Stoddard- Quirk makes clear, to engage there at those times in oral solicitation on behalf of the Union. Yet, Respondent's letter rule prohibits this. Thus, this rule, being overbroad, is presumptively invalid. And Respondent has offered no evidence to rebut this presump- tion. In Gould, Inc., 216 NLRB 1031 (1975), the Board had for determination the validity of a no-solicitation rule almost in haec verba, with Respondent's rule here under consider- ation. As in the instant case, the rule in Gould, set forth at 1037, prohibited "solicitation ... during working time or in working areas." (Emphasis supplied.) That rule was held by the Board to be presumptively invalid because it 16 G.C. Exh. 9. For convenience, this rule will be referred to as the "handbook rule." 1? G.C. Exh. 12. For convenience, this rule will be referred to as the "letter rule." 1044 CAPITOL RECORDS, INC. "restricts employee solicitation in 'working areas' at all times." In the absence of evidence rebutting this presump- tion, the Board found the Gould rule violative of Section 8(aX)(1) of the Act. Accordingly, I conclude, as the Board did in Gould, that by promulgating and maintaining the letter rule Respon- dent violated Section 8(a)(1) of the Act regardless of the reason for its promulgation.'s (b) The handbook rule Notwithstanding the existence of the handbook no- solicitation rule, Respondent's employees for many years engaged in solicitation of all sorts in Respondent's plant during working time without hindrance. Thus, employees offered for sale, sold, and bought, a wide variety of merchandise,' 9 including Avon products, Tupperware, shoes, jewelry, and raffle tickets. Collections were taken up for bereaved and sick employees and for gifts to be presented to employees, assistant foremen, and foremen. Finally, in this regard, employees participated in baseball, football, and check pools, the latter two under the sponsorship of the foreman and an assistant foreman in the tape department. These various endeavors in violation of the handbook rule were widespread and even when not conducted by supervisors, as was the case regarding football and check pools, were well known to Respondent's officials. Yet, no employee was penalized for failing to observe the rule until April 15, 1976, when two employees, Mary Fry and Janet Mathews, were discharged for soliciting on behalf of the Union.2 0 As George Zeigler, Respondent's plant director, testified concerning this, although solicitation by employ- ees of the type described above during working time had become a matter of "general knowledge throughout the plant [no] disciplinary action [was] taken at any time [before April 15] against employees who were involved." On January 16, 1976, because of a situation which had developed in one of Respondent's other plants, Zeigler, as he further testified, "informed all foremen and supervisors that solicitation during working time had to stop." Some foremen and assistant foremen passed this infor- mation on to the employees under their supervision. It is clear, however, that the employees who worked on the first shift in the tape department were never made aware by their foreman or assistant foreman at any time after January 16 and before April 15 that there was to be no more solicitation during working time. As Daniel O'Hagen, at all material times the general foreman of the tape department, testified respecting this, "between January 1976 and April 15th [he] never [told the] supervisors or group leaders or employees in [his] depart- ment that they could no longer sell or solicit items on is This being so, findings as to whether Respondent adopted the letter rule to stultify the Union's efforts to organize its employees are unnecessary. 19 As the General Counsel aptly remarked during the hearing, "the only thing that didn't happen down at [Respondent's plant is employees were not allowed to set booths up on the production line." 10 These discharges, alleged in the complaint as having been violative of Sec. 8(a)3) of the Act, will be discussed in a later section of this Decision. 21 It will be remembered that at no pertinent time was there a second shift in the tape department. 22 The check pool procedure was modified somewhat after January 16. company time," nor did he "make sure [during this period] that [the no-solicitation rules] had been carried out in [his] department." Further, in this connection, as Duane Welch, at all material times the assistant foreman of the first shift of the tape department, related, "in 1976 [no] meetings [took] place where employees were told that they could no longer buy or sell items during working hours in the tape department"; that he was not "during 1976" instructed by O'Hagen "to put a stop to employees' buying or selling items during working hours"; and that he never "in fact . . .put a stop to it." Regardless of the extent to which, after January 16, the handbook rule was enforced in other departments, or in the tape department on the third shift,2' it was not at any material time, except in one instance, enforced on the first shift in the tape department. With the knowledge of O'Hagen and Welch, employees on that shift continued to sell various items, to take up collections of various sorts, and to participate in check pools. 22 The single instance in which an employee on the first shift in the tape department was disciplined for violating the handbook rule consisted of Mathew's discharge for soliciting on behalf of the Union. As Zeigler, Respondent's plant personnel director, testified, he ordered Mathews' discharge "for," among other things, "violation of a long standing rule concerning solicitation during working time." Simultaneously, and for the same reason, Zeigler ordered the discharge of Fry, who worked on the third shift in the record department. The handbook rule 23 prohibiting solicitation "during the time [an employee] is to be working" appears to be presumptively valid on its face. However, as found above, Respondent disparately enforced the rule by discharging two employees for soliciting on behalf of the Union during working time, whereas employees who engaged in other forms of solicitation during working time were not disciplined in any way. "Under these circumstances, the enforcement of the (handbook rule] in order to preclude only discussions concerning union activities was an unjustified restriction of ... employees' right of self-organization and violated Section 8(aX1) of the Act." Innkeepers of Ohio, Inc., d/b/a Ramada Inn of Fremont, 221 NLRB 331 (1975). To the same effect, see also Hoerner Waldorf Corporation, 227 NLRB 612 (1976), and The Wm H. Block Company, 150 NLRB 341, 343 (1964). Furthermore, notwithstanding that the handbook rule is presumptively valid on its face, this presumption was rebutted, and the rule became invalid, by the discriminato- ry manner in which it was enforced. As the Board stated in this regard, in Star-Brite Industries, Inc., 127 NLRB 1008, 1010, "presumptions [of validity attaching to a rule Before that date, the entire process took place during working time. After January 16, the collection and payoff were made during nonworking time, but the winner was determined during working time. 23 As earlier set forth, and repeated here for ready reference, the handbook rule is as follows: No employee shall be allowed to solicit on company property during the time he/she is to be working. Anyone who does so and thereby neglects his/her own work or interferes with the work of others will be subject to disciplinary action or discharge. 1045 DECISIONS OF NATIONAL LABOR RELATIONS BOARD prohibiting solicitation ] may be overcome ... by evidence establishing an unfair application of the rule." Accordingly, I conclude that, by disparately enforcing the handbook rule to preclude only union solicitation, Respondent violated Section 8(a)(1) of the Act. I further conclude, that by disparately enforcing the handbook rule Respondent deprived the rule of any validity it might otherwise have had and converted it into an invalid rule. B. Facts Concerning Respondent's Alleged 8(a)(3) Violations The complaint alleges that Mary Fry and Janet Mathews were discharged in violation of Section 8(a)(3) of the Act. Although the events leading to these discharges are similar, each will be separately discussed. I. Mary Fry Mary Fry was hired by Respondent in 1974. She was discharged on April 15, 1976. From May 1975 until her discharge, Fry worked on the third shift in the record department. On April 13, 1976, during working time, Fry went into the restroom where she encountered another employee, Marilyn Cox, who was just getting over a nosebleed. Fry told Cox that there was to be a union meeting that day, suggested that Cox attend, and informed Cox, as Fry recounted, that she had union cards in her locker and that "if anybody wanted to sign [them] they could [do so] after work." Cox replied, as she related, that she would "have to think about it." Fry's conversation with Cox soon came to the attention of George Zeigler, Respondent's plant personnel director. On April 14, Zeigler ordered Fry's discharge "for," as he testified, "violation of a long standing rule concerning solicitation during working time, and for pestering, bother- ing, and hassling [an employee]." 24 Fry's employment was terminated the next day. In discharging Fry, her supervisor told her, as she stated, that Zeigler had directed him "to let [her] go [because she had] been soliciting for the Union on company time." 2. Janet Mathews Janet Mathews entered Respondent's employ in August 1975. Like Fry, she was discharged on April 15, 1976. Except for a 2-week period immediately after she was hired Mathews worked on the first shift in the tape department. On April 13 and 14, and possibly on April 12, Mathews "punched in" about 7:25 a.m., while employees who worked on the third shift, including Marilyn Cox, Connie 24 The "pestering, bothering, and hassling" consisted, seemingly, of Fry's requesting Cox to attend a union meeting and informing Cox that she had union cards for employees to sign. 25 As I have found, the hours of the first shift are from 7:30 a.m. until 4 p.m.; that employees working on this shift are permitted to "punch in" as early as 10 minutes before the shift begins; and that they are not required to do any work before the shift's starting time. I have also found that the hours of the third shift are from II p.m. until 7:30 a.m.; that employees working on this shift may line up at the timeclock 5 minutes before the termination of the shift; that they do not actually "clock out" until the shift's end at 7:30 a.m.; and that they do no work while standing on the "clock out" line. 28 In Mathews' case her "pestering, bothering, and hassling employees" Bach, and Russeline Burbridge, were standing on line at the timeclock waiting to punch out at 7:30 a.m. 25 After she had "punched in" on those days, but before Cox, Bach, and Burbridge had "punched out," Mathews spoke briefly to them about the Union. She asked them to join the Union, attend its meetings, and to sign union cards. The employees to whom Mathews spoke replied, in essence, that they were not interested in anything concern- ing the Union. Following Mathews' short conversation with Cox, Bach, and Burbridge on the days here under consideration Mathews went to her work station and the others "punched out." Mathews' encounters with Cox, Bach, and Burbridge came to the attention of George Zeigler, Respondent's plant personnel director, about the same time as did the situation involving Mary Fry, and he took the same action in Mathews' case as he took in Fry's. On April 14, simultaneously with ordering Fry's discharge, Zeigler ordered Mathews' discharge for the same reasons as he ordered Fry's. 26 On April 15, the day on which Fry's employment was terminated, Mathews was discharged by her foreman. In doing so, as Mathews testified, he told her that it had been "reported" that she "[had] been soliciting for the Union on company time," and that he was "going to have to let [her] go for soliciting for the Union on company time." C. Contentions and Concluding Findings Concerning Respondent's Alleged 8(a)(3) Violations The General Counsel contends that Respondent violated Section 8(aX3) of the Act by discharging Mary Fry and Janet Mathews. I agree. As admitted by George Zeigler, Respondent's plant personnel director, Mary Fry and Janet Mathews were terminated because they violated Respondent's no-solicita- tion rules.27 I have found, however, that the handbook rule became invalid by the disparate manner in which it was enforced and that the letter rule is invalid because it is overbroad on its face. This being the case, I further find that the discharges of Fry and Mathews were violative of Section 8(a)(3) of the Act.28 Accordingly, I conclude that by discharging Fry and Mathews, Respondent violated Section 8(aX3) of the Act. VI. THE EFFECT OF RESPONDENT'S UNFAIR LABOR PRACTICES UPON COMMERCE Respondent's unfair labor practices occurring in connec- tion with its operations set forth in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to consisted, apparently, of her having asked Cox, Bach, and Burbridge to join the Union, attend its meetings, and to sign union cards. 27 I place little weight on the additional ground mentioned by Zeigler for ordering the discharge of Fry and Mathews. The "pestering, bothering, and hassling" he referred to was part and parcel of the solicitation in which, in the circumstances, they had a right to engage. 28 "[1 If a rule against solicitation is invalid as to union solicitation ... a discharge because of violation of that rule discriminates within the meaning of ISection] 8[a (3) in that it discourages membership in a labor organization." Republic Aviation Corporation v. N.LR.B., 324 U.S. 793, 805 (1945). 1046 CAPITOL RECORDS, INC. lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. VIl. THE REMEDY Having found that Respondent engaged in unfair labor practices within the meaning of Section 8(a)(l) and (3) of the Act, my Order will require Respondent to cease and desist therefrom and to take such affirmative action as will effectuate the policies of the Act. In the latter connection, my Order will require Respondent to offer full and immediate reinstatement to Mary Fry and Janet Mathews and to make them whole for any losses they may have suffered by reason of the discrimination practiced against them. Any backpay found to be due to the foregoing employees shall be computed in accordance with the formula set forth in F. W. Woolworth Company 90 NLRB 289 (1950), and shall include interest computed at the rate of 6 percent per annum as provided for in Isis Plumbing & Heating Co., 138 NLRB 716, 720-721 (1962).29 Upon the basis of the foregoing findings of fact, and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW I. 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 the following conduct, Respondent has engaged, and is engaging, in unfair labor practices within the meaning of Section 8(a)( ) of the Act. (a) Threatening to discharge employees for engaging in union activity. (b) Threatening to close its plant upon the Union's becoming its employees' agent for collective bargaining. (c) Promulgating and maintaining a rule prohibiting its employees from engaging in oral solicitation on behalf of the Union in its plant during nonworking time. (d) Disparately enforcing the rule contained in the handbook issued to its employees to prohibit only solicitation on behalf of the Union. 4. By discharging Mary Fry and Janet Mathews, thereby discouraging membership in the Union, Respon- dent has engaged, and is engaging, in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 5. The unfair labor practices engaged in by Respon- dent, as set forth in Conclusion of Law 3 and 4, above, affect commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following: 2" On brief the General Counsel argues that any backpay found to be due to Fry and Mathews should include interest at the rate of 9 percent, rather than the 6 percent rate provided for in Isis. Inasmuch as the Board, since Isis, has uniformly followed it with respect to the rate of interest to be included in backpay awards, the General Counsel's argument should be addressed to the Board, rather than to me. As an Administrative Law Judge, I am bound to follow the Board's countless decisions concerning the interest rate on backpay. Cf. Insurance Agents' International Union, AFL-CIO ORDER30 The Respondent, Capitol Records, Inc., Jacksonville, Illinois, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Threatening employees with discharge, or with any other form of reprisal, or effectuating any such threats, for joining, assisting, or in any other manner supporting District No, 123, International Association of Machinists and Aerospace Workers, AFL-CIO, or any other labor organization. (b) Threatening to close its plant, or effectuating such threat, should District No. 123, International Association of Machinists and Aerospace Workers, AFL-CIO, or any other labor organization, become the collective-bargaining representative of its employees. (c) Promulgating, maintaining, or enforcing any rule, including the rule promulgated and mailed to employees on or about March 18, 1976, prohibiting employees from engaging in union activity or solicitation during nonwork- ing time, or in any other manner prohibiting employees during nonworking time on Respondent's premises, from orally soliciting fellow employees to join, assist, or otherwise support District No. 123, International Associa- tion of Machinists and Aerospace Workers, AFL-CIO, or any other labor organization. (d) Enforcing in a disparate or discriminatory manner any rule relating to solicitation or union activity. (e) Discouraging membership in District No. 123, International Association of Machinists and Aerospace Workers, AFL-CIO, or any other labor organization, by discharging employees, or by discriminating in any other manner against employees in regard to hire or tenure of employment or any term or condition of employment. (f) In any other manner interfering with, restraining, or coercing employees in the exercise of their right to self- organization; to form, join, or assist labor organizations; to bargain collectively through representatives of their own choosing; or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the National Labor Relations Act, as amended, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment in conformity with Section 8(aX3) of the Act. 2. Take the following affirmative action which, it is found, will effectuate the policies of the Act: (a) Forthwith rescind the rule promulgated and mailed to employees, on or about March 18, 1976, and notify, in writing, all employees presently in its employ, and those employees who, if not now in its employ, were employed by it on March 18, 1976, or thereafter, of such recission. (Prudential Insurance Company of America), 119 NLRB 768, 773 (1957), reversed on other grounds 361 U.S. 477 (1960). 30 In the event no exceptions are filed as provided in Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and Order herein shall, as provided in Sec. 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. 1047 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Offer to Mary Fry and Janet Mathews immediate and full reinstatement to their former jobs, without prejudice to their seniority or other rights and privileges, and make them whole, in the manner set forth in the section of this Decision entitled "The Remedy" for any loss of earnings they may have suffered by reason of their unlawful discharge. (c) Preserve and, upon request, make available to the 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 this Order. 31 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant (d) Post at its premises copies of the attached notice marked "Appendix."31 Copies of said notice, on forms provided by the Officer-in-Charge of the Board's Subre- gion 38, after being duly signed by its authorized represen- tative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places where notices to employ- ees 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. (e) Notify said Officer-in-Charge, in writing, within 20 days from the date of this Order what steps Respondent has taken to comply herewith. to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 1048