Beverly Farm Foundation, Inc.

536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Beverly Farm Foundation, Incorporated and Service Employees Union Local 50, affiliated with Service Employees International Union, AFL-CIO. Cases 14-CA-7893, 14-CA-8021, 14-CA-8472, 14-CA- 8731, and 14-CA-8842 June 30, 1976 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING, JENKINS, AND PENELLO On January 23, 1976, Administrative Law Judge John F. Corbley issued the attached Decision in this proceeding. Thereafter, Respondent and the General Counsel filed exceptions and supporting briefs. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge, with the following clarification, and to adopt his recom- mended Order, as modified herein. The allegations of the complaint involve conduct which occurred before and other conduct which oc- curred after the enactment of P.L. 93-360, effective August 25, 1974, which broadened the coverage of our Act over the health care industry. We agree with the Administrative Law Judge that Respondent is an employer within the meaning of the Act since the enactment of the health care amendments,2 and we adopt his findings that certain conduct by Respon- dent which occurred subsequently violated Section 8(a)(1) and (3) of the Act. We also agree with the Administrative Law Judge's dismissal of the allegations of the complaint involving conduct which occurred before the health care amendments. However, these allegations are being dismissed not because the Board lacked statu- tory jurisdiction over Respondent but because the Board, in the exercise of its discretion, would have declined jurisdiction over this Respondent. Thus, we would dispel any implications (in the Administrative Law Judge's Decision) that the Board lacked juris- diction over Respondent prior to the health care i The Respondent has excepted to certain credibility findings made by the Administrative Law Judge It is the Board's established policy not to over- rule 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 As noted by the Administrative Law Judge, the Board has previously held that Respondent's facility falls within the meaning of the new Sec 2(14) of the Act. Beverly Farm Foundation, Incorporated, 218 NLRB 1275 (1975) amendments because Respondent was not a statuto- ry employer. Instead, we are dismissing these allega- tions because the Board, under then-existing Board policy, would have declined jurisdiction over Re- spondent in accordance with the Board majority's holding in Ming Quong Children's Center.3 In Ming Quong, a majority of the Board declined to assert jurisdiction over an employer operating a type of nonprofit institution whose activities are non- commercial in nature and are intimately connected with the charitable purposes of the institution. As was the case in Ming Quong, no basis exists here for finding that Respondent falls within a classification of nonprofit "hospital" over which we were (before the health care amendments) statutorily prohibited from asserting jurisdiction. Like the employer in Ming Quong, Respondent is a nonprofit charitable organization engaged in caring for children who are emotionally disturbed. Thus, the Board would have declined to assert jurisdiction over Respondent be- fore the health care amendments on the basis of Respondent's charitable function or worthy purpose in accordance with established Board precedent; i.e., Ming Quong. In dismissing these allegations, we are mindful that the Board has recently held that the 1974 health care amendments removed any basis the Board may have had for declining jurisdiction over nonprofit organi- zations on the basis of their charitable function or worthy purpose' Nevertheless, we find it inappropri- ate to reach back now to overrule established Board precedent which has lost its vitality only because of the health care amendments to pass on allegations involving conduct that admittedly took place before those amendments. In sum, we shall dismiss the allegations of the com- 7 Member Fanning joins with his colleagues in dispelling any implication that the Board lacked statutory jurisdiction over the Respondent before the health care amendments He does not join in their dismissal of the violations alleged to have occurred then He would consider those allegations on their merits not only because he dissented in Ming Quong, on which they appar- ently rely, but because he sees no reason not to follow the rationale of Siemons Mailing Service, 122 NLRB 81 (1958), where the Board determined that it would apply a revised jurisdictional standard to all future and pend- ing cases that had not been dismissed , settled , or decided That this applies to alleged unfair labor practices that occurred prior to the revision of stan- dards seems to have been decided in Poor Richard's Pub, 217 NLRB 102 (1975) Member Jenkins did not participate in Ming Quong His adoption of the decision here does not imply that he would have declined to assert jurisdic- tion over this Respondent prior to the health care amendments , but only that he recognizes that the Board would have so declined Member Penello joins in this decision solely because he believes that Respondent falls within the definition of "health care institution," as used in the 1974 amendments to the Act Beverly Farm Foundation, Incorporated, 218 NLRB 1275 (1975) He does not agree that the 1974 amendments affect- ed the validity of Ming Quong as it applies to charitable, nonprofit, noncom- mercial , nonhealth care institutions, and adheres to the holding in that deci- sion See the dissenting opinion in The Rhode Island Catholic Orpha, Asylum, a/k/a St Aloysius Home, 224 NLRB No 70 (1976) The Rhode Island Catholic Orphan Asylum, a/k/a St Aloysius Home, supra 225 NLRB No. 70 BEVERLY FARM FOUNDATION, INC. 537 plaint related to conduct which occurred before the enactment of the health care amendments because the Board would have declined to assert jurisdiction over Respondent at that time in accordance with es- tablished Board law. Otherwise, as indicated above, we adopt the Administrative Law Judge's findings and conclusions in all respects. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge as modified below and hereby orders that Respondent, Beverly Farm Foundation, Incorporated, Godfrey, Illinois, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: 1. Substitute the following for paragraph 2(a): "(a) Offer Loretta Henson immediate and full re- instatement to her former job or, if it no longer ex- ists, to a substantially equivalent position, without prejudice to her seniority or other rights and privi- leges, and make her whole for any loss of pay she may have suffered as the result of the discrimination against her, in the manner set forth in `The Remedy' section of the Administrative Law Judge's Decision." 2. Substitute the attached notice for that of the Administrative Law Judge. CHAIRMAN MURPHY, concurring in part and dissent- ing in part: I have previously indicated that I would not assert jurisdiction over this Employer. Beverly Farm Foun- dations, Inc., 218 NLRB 1275 (1975). Accordingly, I concur in the dismissal of the complaint insofar as it alleged violations occurring prior to the effective date of the health care amendments, and I dissent as to the failure to dismiss the complaint's allegations of violations occurring after the effective date of said amendments. In addition to the reasons set out in the dissenting opinion concerning this Employer, supra, see the reasons set forth in the dissent in The Rhode Island Catholic Orphan Asylum, a/k/a St. Aloysius Home, 224 NLRB No. 70 (1976). Farm Foundation, Incorporated, have violated the National Labor Relations Act and we have been or- dered to post this notice. The National Labor Relations Act gives you, as employees, certain rights including the right: To self-organization To bargain collectively through a represen- tative of your own choosing To form, join, or help unions To act together for collective bargaining or other mutual aid or protection To refrain from any or all such activities. WE WILL NOT do anything which interferes with your rights set forth above. WE WILL NOT threaten you with loss of bene- fits or other reprisals if you support the Union or engage in union activities. WE WILL NOT discriminatorily enforce our no- solicitation rule. WE WILL NOT discharge you and then refuse to reinstate you for supporting Service Employees Union Local 50, affiliated with Service Employ- ees International Union, AFL-CIO, or any other labor organization. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exer- cise of their rights guaranteed in Section 7 of the Act. WE WILL offer to reinstate Loretta Henson to her former job or, if it no longer exists, to a sub- stantially equivalent position with full seniority and all other rights and privileges as the Board has found that she was discharged because she supported the organizational campaign of the above-named Union. WE WILL also make up all pay lost by Loretta Henson because of her discharge, with 6-percent interest. BEVERLY FARM FOUNDATION, INCORPORATED DECISION STATEMENT OF THE CASE APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had the chance to give evidence it has been decided that we, Beverly JOHN F. CORBLEY, Administrative Law Judge: A hearing was held in this case on November 17, 1975, at St. Louis, Missouri, pursuant to a charge in Case 14-CA-7893 filed by Service Employees Union Local 50, affiliated with Ser- vice Employees International Umon, AFL-CIO, hereinaf- ter sometimes referred to as the Union or the Charging Party, on April 19, 1974, and served on Respondent by registered mail on or about the same date; on a charge in Case 14-CA-8021 filed by the Umon on July 10, 1974, and served on Respondent by registered mail on or about the 538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD same date ; on a charge in Case 14-CA-8472 filed by the Union on April 2, 1975, and served on Respondent by reg- istered mail on or about the same date; on a charge in Case 14-CA-8731 filed by the Union on August 18, 1975, and served on Respondent by registered mail on or about the same date; on a charge in Case 14-CA-8842 which was filed by the Union on October 14, 1975, and served on Respondent by registered mail on or about October 14, 1975; on a complaint and notice of hearing and various orders or amended orders consolidating cases, complaint, and notice of hearing issued by the Regional Director or Acting Regional Director of Region 14 of the National Labor Relations Board on June 11 and August 9, 1974, and October 8 and November 5, 1975, which were thereafter duly served on Respondent. The complaint, as fully consol- idated in the amended order consolidating cases, com- plaint, and notice of hearing, issued by the Regional Direc- tor in November, will be referred to hereinafter simply as the complaint or ultimate complaint. The complaint alleges that Respondent, on different occasions in 1974 and 1975, violated Section 8(a)(1) of the Act, variously, by interrogat- ing employees in regard to their union activities; creating the impression that employees' union activities were under Respondent's surveillance; threatening reprisal against em- ployees for engaging in union activities; and discriminato- rily enforcing a no-solicitation rule and other acts of inter- ference with employees' Section 7 rights to engage in union activities. The complaint further alleges that Respondent has violated Section 8(a)(1) and (3) of the Act by discharg- ing employee Della Tomerlin on June 18, 1974, and there- after refusing to reinstate her because of her union activi- ties and by refusing on and since October 13, 1975, to reinstate employee Loretta Henson because of her union activities after she returned from sick leave. In its answer, also duly served, to the original complaint and subsequent consolidated complaints, Respondent has denied the com- mission of any unfair labor practices. At the hearing, I was advised that the Charging Party had requested the Regional Office to permit the Charging Party to withdraw its charge in Case 14-CA-8021. Inas- much as the charge in that case formed the basis of the allegations in paragraphs 5(N), (Q), (R), (S), (T), (U), and (V), and 6 of the ultimate complaint, I dismissed said para- graphs from the bench upon the unopposed motion of the General Counsel.' Now in his brief to me, the General Counsel moves that I also dismiss paragraphs 5(P), (W), and (AA) of the com- plaint on the ground that the evidence adduced at the hear- ing does not support the allegations set forth in these para- graphs. This motion by the General Counsel is likewise unopposed. I, accordingly, hereby dismiss paragraphs 5(P), (W), and (AA) of the complaint.' Because of my finding that the Board lacked jurisdiction over Respondent prior to August 25, 1974, I shall also rec- ' The instant paragraphs contained a number of allegations that Sec 8(a)(1) had been violated by Respondent and further included the afore- mentioned allegation that employee Della Tomerlin had been discharged in violation of Sec 8(a)(3) and (1) of the Act 2 These paragraphs dealt with allegations of certain violations of Sec 8(a)(l) ommend that certain allegations of the complaint dealing with incidents occurring prior to that date be dismissed (paragraphs 5(A) through (M), and 5(0) and 5(P) ). As to the remaining specific allegations of the complaint (pars. 5(X) through (Z), and par. 7) I will find, for reasons which appear hereinafter, that Respondent has violated the Act by refusing to reinstate employee Henson and that Respondent has interfered with the Section 7 rights of its employees in a number of particulars essentially as alleged. At the hearing, the General Counsel and Respondent were represented by counsel. The parties were given full opportunity to examine and cross-examine witnesses, to in- troduce evidence, and to file briefs. The parties waived oral argument at the conclusion of the hearing. Briefs have sub- sequently been received from the General Counsel and Re- spondent and have been considered. Upon the entire record in this case, including the briefs, and from my observation of the witnesses, I make the fol- lowing: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent is, and has been at all times material herein, a corporation duly organized under, and existing by virtue of, the laws of the State of Illinois. At all times material herein, Respondent has maintained its only office and place of business at Humbert Road in the city of Godfrey and State of Illinois, herein called Respondent's installation or facility. Respondent is, and has been at all times material herein, operating a home for mentally retarded persons. Respondent's installation locat- ed at Godfrey, Illinois, is the only facility involved in this proceeding. During the year ending December 31, 1973, which peri- od is representative of its operations during all times mate- rial hereto, Respondent's gross income from its services exceeded $500,000. Respondent, in the course and conduct of its business operations, purchased and caused to be transported and delivered at its Godfrey, Illinois, installa- tion foodstuffs and other goods and materials valued in excess of $50,000, of which goods and materials valued in excess of $50,000 were transported and delivered to its in- stallation at Godfrey, Illinois, directly from points located outside the State of Illinois. The complaint alleges, the answer admits, and I find that Respondent is now and has been at all times material here- in an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act since the effective date of Public Law 93-360, i.e., August 25, 1974. Indeed, the Board in an earlier decision involving this same Em- ployer (218 NLRB 1275 (1975)) has already so held. Respondent denies that it was an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) prior to the aforementioned date. Because certain alleged unfair labor practices herein occurred before that date, findings must also be made in respect to Respondent's sta- tus for such earlier period. I find, for reasons which will appear, that Respondent was not an employer engaged in BEVERLY FARM FOUNDATION, INC 539 commerce within the meaning of Section 2(2), (6), and (7) of the Act prior to August 25, 1974. The jurisdictional facts in respect to Respondent's oper- ations are set forth in detail in the Board's earlier decision in Case 14-RC-7687, 218 NLRB 1275 (1975), are incorpo- rated by reference herein, and need not be repeated in this Decision.; Suffice it to say that the Employer, prior to the effective date of P.L. 93-360, operated the same facility which it now operates for the care of mentally retarded persons and that it did so on a not-for-profit basis.4 In deciding to take jurisdiction over the Employer in Case 14- RC-7687, which it did on the basis of P.L. 93-360, the Board did not state whether it would have asserted juris- diction over Respondent prior to the enactment of that law which amended the Act. In urging that jurisdiction should be asserted for such prior period, the General Counsel relies on Siemons Mail- ing Service, 122 NLRB 81 (1958), where the Board, in revis- ing its discretionary jurisdictional standards to embrace a larger number of employers than that over which it had previously asserted jurisdiction in the same class, de- termined to apply the revised standards to all future and pending representation and unfair labor practice cases. The General Counsel urges that, inasmuch as that part of the present unfair labor practice case dealing with allega- tions prior to August 25, 1974, was pending at the time the Board issued its decision in Case 14-RC-7687, the Board's revision of its standards in that decision should be applied hereto. The General Counsel further argues that the Board's intention to apply this standard to pending cases is implicit from its instant decision because the Board failed in that decision to dismiss the petition in Case 14-RC-7687 which was filed before the effective date of the P.L. 93-360 amendments. I disagree. To analyze this question it is first necessary to examine the Board's determination of the impact of P.L. 93-360 on its jurisdiction. The Board in Case 14-RC-7687 (218 NLRB 1275 (1975)) held that Respondent is a health care institution within the meaning of Section 2(14) of the Act (i.e., pursuant to P.L. 93-360). In Lutheran Association for Retarded Children,5 which also involved a nonprofit home for the care of mentally retarded children, the Board as- serted jurisdiction for the same reason and added that, since institutions of this type clearly fall within the defini- tion of a health care institution within the meaning of Sec- tion 2(14), the Board's Ming Quong Children's Center doc- trine 6 does not apply. In Ming Quong the Board determined that it would not assert jurisdiction over non- profit charitable organizations engaged in caring for chil- dren who are emotionally disturbed. The Board's holding that P.L. 93-360 precludes the ap- plication of Ming Quong to eleemosynary institutions for the care of retarded children subsumes the proposition that-absent the enactment of P L 93-360-Ming Quong 31 have been asked to take administrative notice of the transcript of hearing in that case and have done so See the Board's earlier decision in Cases 14-CA-7893 and I4-CA-7687 (215 NLRB 401 (1974) ), of which I also take administrative notice herein s 218 NLRB 1278 (1975) 6 210 NLRB 899 (1974) would be applicable to such institutions. Or, stated another way, the Board has held that P.L. 93-360 has overruled the Board's Ming Quong rule (insofar as institutions of this type are concerned) and requires that the Board take juris- diction over this type of institution. Thus the Board's decision in Case l4-RC-7687 (218 NLRB 1275 (1975)) to take jurisdiction over the Respon- dent and its decision in Lutheran Association, supra, did not involve the Board's revision of the discretionary dollar standard it would apply to a class of industries over which the Board had already taken jurisdiction, as in Siemons, supra, relied upon by the General Counsel. The Board's decisions in Case 14-RC-7687 and in Lutheran Association rather involved the Board's recognition that its jurisdiction had been mandatorily expanded by Congress in P.L. 93- 360 to cover a class of employers over which the Board was not asserting jurisdiction at the time P.L. 93-360 was en- acted. The Board's discretion did not come into play; it merely carried out the direction of Congress and that direc- tion took effect on and after August 25, 1974, not before. The Board's discretion was exercised only in deciding which employers in the class over which jurisdiction must now be taken had a sufficient impact on commerce to war- rant the Board's assertion of jurisdiction. The Board did not explain why it did not dismiss the petition in Case l4-RC-7687 as a petition filed earlier than the effective date of P.L. 93-360. It seems to me, however, that the most reasonable explanation why the Board did not see fit to dismiss on this basis lies in the fact that even if the petition were not viable prior to August 25, 1974, it was nonetheless pending on that date and hence had life breathed into it at that time. Further, the petition sought an election which was an event which would occur in the future. In analogous circumstances, the Board has enter- tained election petitions filed at times when an election was barred by statute on the theory that, if the election sought was put off to a time when the election was not barred, the statute was thus served.' Moreover, had the Board dis- missed the petition on the technical basis of the date it was filed, this presumably would have resulted only in the filing of a new petition with the necessity of a further hearing and decision with its consequent additional expense to the Board and the parties. In similar situations where the hear- ing has already been held, the Board has declined to dis- miss and proceeded on the basis of a petition untimely when filed.8 Accordingly, I conclude that the Siemons rule relied upon by the General Counsel is inapplicable to the present case essentially on the basis that to apply it herein and to make unfair labor practice findings as to events occurring prior to August 25, 1974, would be to establish an effective date for P.L. 93-360 which is earlier than that set by Con- gress. Since I hold Siemons inapplicable, the question becomes whether the Board would have asserted jurisdiction over Respondent prior to August 25, 1974, under some other then existing standard or whether it would have declined jurisdiction under Ming Quong I conclude the latter. 7 Vickers, Incorporated, 124 NLRB 1051 (1959) 8 Deluxe Metal Furniture Company, 121 NLRB 995, 999 (1958) 540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In this regard, the General Counsel urges that Ming Quong is inapplicable because Respondent's operations are more like those of a nursing home than they are like the activities of the facility in Ming Quong, over which the Board declined to assert jurisdiction and which existed for the care of emotionally disturbed children. The short an- swer to this contention is that the Board, as I have previ- ously mentioned, has already held that, but for the en- actment of P.L. 93-360, Ming Quong would be applicable to an employer like the present one which is an eleemosy- nary institution engaged in the care of retarded children. That is, the Board has itself already held, for all practical purposes, that Ming Quong is not distinguishable. The Board has also explicitly held that its nursing home stan- dard is-not applicable to Respondent 9 Accordingly, I conclude that the Board did not have ju- risdiction over Respondent prior to August 25, 1974, and shall recommend dismissal of those allegations of the com- plaint dealing with events occurring prior to that date.10 I shall, however, make findings of fact as to events occurring prior to that date. 11. THE LABOR ORGANIZATION INVOLVED The Charging Party is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. 111. THE ALLEGED UNFAIR LABOR PRACTICES A. Respondent's Hierarchy The complaint alleges, the answer admits, and I find that, at all times material herein, the following named per- sons occupied the positions as set forth below and have been and are now, supervisors of the Respondent within the meaning of Section 2(11) of the Act, and its agents: John C. Mueller, executive director; Jhnoeva Chappee, as- sistant executive director; Alice F. Kenshalo, laundry su- pervisor; Gwen Elliott, supervisor in kitchen and dining room; Stanley Gray, maintenance superintendent; Beryl 9 215 NLRB 401 (1974) 10 In determining that the Board lacked jurisdiction over Respondent prior to August 25, 1974, I am not unmindful of the Order of Administrative Law Judge Arthur Leff in this proceeding (G C Exh I(z), dated November 10, 1975) in which he denied Respondent's motion to dismiss the pre-August 1974 allegations of the complaint and found ment in the contentions of the General Counsel that the rationale of Stemons applies herein I disagree with Administrative Law Judge Leff for the reasons set forth supra and, as I have concluded, Sremons does not apply By the same token I do not accept Respondent's "waiver" in its brief to me of its objection to the Board's jurisdiction This "waiver" was expressly made by Respondent "in light of Stemons Mailing Service, 122 NLRB 81 " As such, it is conditioned upon the application of Sremons-a condition which is not met because of my holding that Stemons does not apply Moreover, the matter of the Board's jurisdiction is open to inquiry even if it is not raised by the parties Southwest Mississippi Electric Power Associa- tion, 110 NLRB 1884, 1885, fn. 3 (1954) The impact of my determination may, in any event, be an academic one if the Board agrees with my findings of violation For the paragraphs of the complaint, dismissed as the result of my jurisdictional findings, all deal with alleged violations of Sec 8(a)(I) and even if I were to have found that the Board had jurisdiction when they occurred and further found the allega- tions to have merit, this would occasion no significant variation in the remedial order Storktme Corporation, 141 NLRB 899, fn 1 (1963) G. Garrett, supervisor at new girls building; Marcella Shake, supervisor at Logan hall; and Dorothy Mayberry, supervisor at Raboteau hall. B. Background The Union's campaign to organize Respondent's em- ployees began at least as early as February 1974, for at about that time it came to the attention of Respondent. Thus Laundry Supervisor Kenshalo told employee Norma Iler, about the middle of February 1974, that Supervisor Beryl Garrett had advised Kenshalo that "they" had heard that the laundry was in back of the Union and "they" wished that employees would stop passing out union cards because it was upsetting Respondent's executive director, Mueller. her admitted to Kenshalo that everyone in the laundry had signed union cards.) t After Respondent had confirmed the existence of the Union's campaign it demonstrated its concern about that campaign in a number of instances through the contact of its supervisors with various employees. For example, Main- tenance Supervisor Gray, on one occasion sometime after January 1974, spoke to a group of employees including Virginia Daubman and stated that he did not believe the Union could do anything for the farm (Respondent's in- stallation). The next day Gray met Daubman as Daubman was corning out of the kitchen and Gray asked Daubman how things were going with the Union. Daubman stated she did not know.12 In the same vein in April 1974, Supervisor Gwen Elliott stated in the presence of employee Daubman that Elliott wondered how many employees had signed union cards. Daubman replied that Daubman did not know but that she, Daubman, had not signed one. On another occasion in 1974 Elliott asked Daubman directly if Daubman had signed a union "paper." 13 Also in April 1974 Supervisor Gwen Elliott told employ- ee Gary Guthrie that Elliott knew that Guthrie had signed a union card. Guthrie did not respond but changed the subject.14 On April 18, 1974, Respondent's executive director, John Mueller, addressed a meeting of employees at Re- spondent's facility. In this meeting the Union's cam- paign was discussed. Mueller told the employees he would prefer that they would not Join or support a union but their choice was their own. He told them, however, that Respon- dent would give employees anything the Union would give them.'5 Mueller also brought up the matter of the Respondent's vacation policy after referring to a union handbill on the same subject. Mueller said he would change this policy 16 11 These findings as to what Kenshalo told Her and Iler's response are based on the credible and undisputed testimony of Her in this regard. 12 These findings as to the Gray-Daubman conversations are based on the credible and undisputed testimony of Daubman in this regard 13 These findings are based on the undisputed testimony of Daubman in this regard 14 These findings are based on the credible and undisputed testimony of Guthrie in this regard 15 These findings are based on the admissions of Mueller and the undis- puted testimony of Guthrie in this regard 16 These findings are based on the credible testimony of McBride and BEVERLY FARM FOUNDATION, INC. 541 On June 25, 1975, the Union filed a petition for a Board- conducted election in Case 14-RC-7687. On August 9, 1974, the General Counsel filed a petition with the Board for a declaratory order stating whether the Board would assert jurisdiction over Respondent. On December 9, 1974, the Board dismissed this petition stating that it would not determine whether to assert juris- diction over Resondent without the development of a complete record.'? On January 2, 1975, a hearing was held in Case 14-RC- 7687. On June 30, 1975, the Board issued its Decision and Di- rection of Election in Case 14-RC-7687.18 An election was held in late July 1975 which, apparently, the Union lost because it promptly began organizing again as will appear. As will also appear, Respondent, through its supervisors, continued its opposition to their unionization both before and after this election. One of the employees engaged in the Union's organizational campaign , Loretta Henson, was discharged in early October 1975. C. The Alleged Violations of Section 8(a)(1) Several alleged violations of Section 8(a)(1) by Respon- dent occurred after August 25, 1974 (actually in 1975). These will now be considered. 1. Paragraph 5(X) of the complaint In April 1975 Supervisor Stanley Gray mentioned the Union in the "pot room" (apparently near the kitchen of Respondent's facility) in the presence of employee Guthrie. Gray stated at that time that if employees went on strike they would lose their jobs. Gray added that employees would no longer receive certain benefits such as advances in pay or loans if they voted for the Union.19 I find that the instant remarks by Gray constituted a threat of reprisal against employees if they supported the Union and that Respondent thereby violated Section 8(a)(1) of the Act. 2. Paragraph 5(Y) of the complaint On or about July 23, 1975, a few days before the Board- conducted election, Supervisor Dorothy Mayberry spoke to employee Alice Hallows in the presence of employee Robert Fredricks in the dining area of Respondent's facili- ty. Mayberry told Hallows that if Hallows wanted any sick days she had better take them at that time because if the Union got in she would not get any more sick days. When Hallows expressed surprise, Mayberry repeated that May- Daubman in this regard I do not credit Mueller 's testimony to the extent it is contrary Thus Mueller testified that any remarks he made about vaca- tions were in response to an employee question at the meeting Mueller's instant testimony is contradicted by his own notes which were prepared by him prior to the employee meeting and set forth remarks which he made at that meeting These notes show that he brought up the subject of vacations i^ 215 NLRB 401 (1974) is 218 NLRB 1275 (1975) 19 These findings are based on the credible and undisputed testimony of Guthrie in this regard berry did not think Hallows would get any more sick days. To this Hallows responded that they would just have to wait and find out.20 Mayberry's comments on this occasion constituted by their very nature a threat of reprisal against employee sup- port for the Union . Because of the inherent threatening nature of these remarks , it matters not, as Respondent ar- gues, that this was merely the opinion of Mayberry. Threats of this nature by employers and their agents are not protected by Section 8(c). They are prohibited by Sec- tion 8(a)(1).21 I accordingly conclude that by these remarks of Mayberry, Respondent violated Section 8(a)(1) of the Act. 3. Paragraph 5(Z) of the complaint In late July 1975, shortly after the representation elec- tion and at about 10:40 p.m., employee Lucille Roswell spoke to employees Jane Nichols and Bob Fredricks in the bathroom of the Raboteau building at Respondent' s facili- ty. Roswell was on her own time as was Fredricks. Nichols was completing her shift but was resting and not working at the time. Roswell told Nichols and Fredricks that new union cards had to be signed to obtain another Board elec- tion. Roswell laid down blank cards on a nearby stand and placed her pen on them. Roswell then proceeded to explain to the employees the benefits she felt employees would de- rive from joining the Union, such as better working condi- tions and the opportunity to file grievances. The employees at first were apparently not interested in signing so Roswell picked up her pen, put it back in her purse, and went on to ask Nichols about Nichols' children. Nichols then announced that she might as well fill out the card, so Roswell gave Nichols Roswell's pen and Nichols filled out the card. When Nichols finished, Fredricks did the same.22 On or about August 5, 1975, Roswell went to see Mueller about obtaining a loan to enable Roswell to visit Roswell's father who was ill. After the loan was obtained from Muel- ler in the latter's office at Respondent's facility, Mueller asked Roswell to stay because Mueller wanted to speak to her about another matter. Mueller then informed Roswell that there had been a complaint that Roswell had used some pressure in asking employees to sign union cards. Mueller told Roswell this was not to be done at Beverly Farm on company time. Roswell expressed surprise at this and told Mueller that everyone was entitled to his opinion and could always say so. Mueller countered that if there were any further complaints Roswell would be dismissed. Roswell stated there would be no more complaints.23 Mueller admitted that the incident about which he spoke to Roswell had involved Fredricks and Nichols. The report of the matter had been given to him by Mayberry. 20 These findings are based upon the credible testimony of Hallows in this regard, as essentially corroborated by Mayberry 1 See, e g , Pure Chem Corporation, 192 NLRB 681, 691 (1971) 22 These findings are based on the credible and undisputed testimony of Roswell in this regard 23 These findings are based on the credible and undisputed testimony of Roswell in this regard as extended and corroborated by Mueller 542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As can be seen from the above findings, which are based on undisputed testimony, Roswell did not use any pressure of a coercive nature to persuade Fredricks or Nichols to sign cards. Indeed, she had given up the effort when Ni- chols and Fredricks decided to sign. It is further undisput- ed that Fredricks and Roswell were on their own time when the incident occurred. But even though Roswell's efforts were noncoercive in nature the question remains whether it was lawful for Mueller to warn Roswell under threat of discharge that "this [Roswell's noncoercive solicitation] was not to be done on Beverly Farm" on working time.24 It is well established that employers may regulate the activities of their employees on worktime and, indeed, may establish rules for this purpose, as Respondent has done here in its bulletin on "Personnel Policies" (G.C. Exh. 2). In that bulletin, issued on February 15, 1973, Respondent requires that there will be "no buying or selling among employees and/or children unless approved by the office." Further on page 6 of this same bulletin Respondent has promulgated the rule that "Any personal business must be conducted after duty hours." However the record is replete with evidence that sales and solicitations for sales of such items as Avon and Stanley products and punchcards and collections for gifts and flowers frequently occur on work- time.25 Supervisors themselves occasionally participate in these activities. But no one, supervisor or employee, has been disciplined for these incidents. Mueller admitted that he has never warned anyone they would be discharged for continuing sales or services or taking up collections on worktime. From the foregoing it is clear that Respondent through Mueller-at least insofar as the Roswell matter was con- cerned-treated union solicitations in disparate fashion from the way it treated all other personal nonbusiness ac- tivities in which its employees engaged on company time. But the Board has held that an employer may not enforce even a valid rule against solicitations on worktime in a manner which discriminates against union solicitations but turns a blind eye towards nonunion personal activities of employees which also occur on worktime.26 Accordingly, against the background of Respondent's tolerance of sales and collections of its employees on company time and its opposition to the Union, I conclude that Mueller's instant warning to Roswell was a discriminatory effort to enforce Respondent's no-solicitation rule and that Respondent thereby violated Section 8(a)(1) of the Act .21 D. The Discharge of Henson Loretta Henson whose union activities will be described, infra, began work on May 14, 1974, and was employed continuously thereafter as an attendant of retarded chil- dren until June 25, 1975, when she went on sick leave. During her sick leave she spent some time in a hospital 24 Roswell specifically testified that she believed that Mueller had warned her against repeating the activity on "working time " 25 Employees Franklin, Her, McBride, Daubman, variously, credibly so testified 26 See, e g, Pepsi Cola Bottlers of Miami, Inc, 155 NLRB 527, 529 (1965) 27 Id under the care of a psychiatrist, Dr. Carroll. Henson re- turned to work in late August or early September 1975. About 4 weeks after her return to work Henson, Hal- lows, and Roswell believed that their supervisor was being "rough" on them because they were union adherents and decided to see Mueller about it. The three, accordingly, met with Mueller in late September and discussed the problem, and Henson asked for a transfer. This was grant- ed about a week later and Henson began work at building 3, also known as Smith Cottage. After Henson had worked there for 2 days, she injured her leg when she was picking up a child. She finished out the day, which was on or about September 24, 1975, and consulted Dr. Carroll. He suggest- ed that she take a few days off which she did after obtain- ing the permission of Mueller and Chappee, Respondent's assistant executive director. On October 8, after obtaining a medical release from her doctor, Henson went to Respondent's facility and request- ed Chappee that she be permitted to return to work. This and Henson's later efforts to resume her employment will be discussed more fully below. Suffice it to say at this point that Henson has not been employed by Respondent since on or about September 24, 1975, and, insofar as the record shows, she was not informed that she was terminated until the date of the hearing. Henson attended union meetings in 1974 and in 1975. She voted in the Board-conducted election in July 1975. Prior to this election, she solicited employees to sign union cards. After the election she also solicited at least two em- ployees to sign cards. Henson's union adherence was known to Respondent. Thus, in September 1975, Supervi- sor Mayberry made the comment in the presence of em- ployee Marcie Hayes that "all Loretta Henson and Alice Hallows have on their mind is union." As to Henson's performance, her work has never been criticized by any of Respondent's supervisors. She has nev- er been disciplined nor given time off nor has she ever been warned that any action on her part might lead to dis- charge.28 As noted Henson telephoned Chappee on October 8, 1975, about returning to work. Chappee told Henson that Henson would have to work as a "floater" (an attendant with no fixed assignments to a particular building at Respondent's facility). Henson at first refused this offer because she felt that merely being off sick should not de- prive her of the opportunity of obtaining the same perma- nent assignment she felt she had before. Henson later agreed, however, to accept assignment as a floater and Chappee told Henson that Chappee would telephone Hen- son. From the foregoing, I conclude that the import of this conversation was that both Chappee and Henson were agreeable to Henson's returning as a floater and that Chap- pee would call Henson back to notify Henson when and where to report, etc. When Chappee did not call, Henson called Chappee on October 10, 1975. Chappee put Henson off and said that the matter would first have to be discussed with Mueller. 28 The findings as to Henson's work record are based on her credible and undisputed testimony in this regard The findings as to Mayberry's com- ment are based on the credible testimony of Hayes in this regard and were not denied by Mayberry BEVERLY FARM FOUNDATION, INC. 543 On October 13 Chappee telephoned Henson and told Henson that Chappee and Mueller had discussed the mat- ter and that Respondent "had no work" for Henson. Hen- son then asked Chappee if Henson could draw unemploy- ment to which Chappee replied that this was between Henson and the unemployment agency.29 At some point during this period Henson spoke to Muel- ler who told Henson he was not aware of any openings. Shortly after October 13, 1975, Henson filed for unem- ployment compensation. The unemployment office con- tacted Mueller and advised Mueller that Henson had ap- plied for unemployment compensation and asked Mueller why Henson was no longer working for Respondent. Muel- ler stated that the reason was Henson's insubordination and other reasons. Henson's position at Raboteau, which she held in Au- gust and September 1975, has been filled as has her posi- tion in Smith Cottage which she held near the end of Sep- tember. Respondent has hired five or six attendants since October 10, 1975. Concluding Findings as to Henson's Discharge As I have noted, Henson was never clearly told that she was discharged until the date of the hearing. She was only told by Chappee on October 13, 1975, as I have found, that there was "no work" for her, which could also mean that she had merely been replaced and temporarily laid off. Consequently the only reasons given by Respondent for what we now know to be Henson's discharge are those which came out at the hearing. To begin with, however, it should be made clear that Henson's psychiatric confinement in June, July, and Au- gust 1975 was not advanced as a cause for her discharge. Indeed, she returned and worked for about a month after such confinement. Respondent maintains in its brief that the decision to discharge Henson was not made until October 13. Respon- dent argues that there were three reasons underlying this decision: (1) Henson's remarks to employees shortly before her taking leave in September 1975 about how to obtain unemployment compensation without working; (2) her in- subordination about taking a transfer from Raboteau to Smith Cottage in September 1975, and her claimed subse- quent refusal to accept work as a floater when it was of- 29 The foregoing findings as to Henson's conversations with Chappee about Henson returning to work are based on the credible testimony of Henson in this regard To the extent the testimony of Chappee is contrary, I do not credit it Thus, inter a/a, I do not credit Chappee's testimony that she never told Henson there was no work for Henson , nor her testimony that Henson never told Chappee that Henson would accept work as a float- er-Chappee in any event, admitted that she had "heard" Henson would accept work as a floater Chappee's testimony was characterized by a degree of uncertainty which I did not find in Henson For example, Chappee's testimony when first called as a witness by the General Counsel differs significantly from Chappee's later testimony on the subject of the term of Henson's employ- ment after Henson returned from the hospital in late August or early Sep- tember 1975 She was vague about her contacts with Henson in October and also about whether Henson was drawing unemployment Henson was a more certain witness and her testimony is supported by the logic of events That is, for example, she filed for unemployment compensation after she said she was told there was no work for her fered; and (3) reports received by Chappee shortly after Henson went on sick leave in September that Mrs. Kirk, the supervisor of Smith Cottage, and the employees there did not want Henson back. Respondent also says that a matter of great concern to it is an alleged remark by Hen- son in September, reported for the first time at the hearing, indicating a poor attitude by Henson toward retarded chil- dren. As to the alleged insubordination of Henson this deals with her refusal at first to accept an assignment at Smith in September 1975 which she had originally asked for and then her agreement in the same conversation to accept it. I reject this as a ground for Henson's discharge because the matter was obviously resolved on the spot and Henson worked for 2 days after the event occurred. Moreover, the "insubordination," insofar as this record shows, derives only from Henson's change of mind which falls signifi- cantly short of the disrepect connotation normally associ- ated with insubordination in discharge cases. As to Henson's claimed refusal to accept rehire as a floa- ter, I have already rejected this on the basis of the credited testimony of Henson, who, I have found, did agree to ac- cept work as a floater. The reason-about Henson's alleged statement regard- ing drawing unemployment compensation-requires a bit more discussion. During her final 2 days in Smith Cottage in September 1975, Henson was engaged in a conversation with other employees which included Linda Edwards, Jan- et Nash, and Brenda Taylor. There is a dispute about what was said. I find, based on the credited testimony of Henson, that Edwards said how nice it would be to stay at home and draw unemployment. Henson responded that there were two ways this would be done, by obtaining a doctor's slip saying the employee was too nervous for the job or by getting fired. This matter was reported to Supervisor Kirk, and Edwards, Nash, and Taylor signed a statement as to what Henson said. The statement which was received in evidence is dated September 22, 1975.30 I do not agree with Respondent that this indicates any dishonesty by Henson. She was merely giving a response to a question put to her, and her answer at most indicates bad judgment. Nor do I agree that this is the reason why Hen- son was discharged. For, from Respondent's own evi- dence-the testimony of Chappee-it is clear that Respon- dent as of October 8, 1975, was willing to take Henson back as a floater. October 8, of course, was some 2 weeks after the incident of September 22, 1975, was reported to Kirk. This shows beyond cavil that Respondent itself did not consider the matter serious The next reason, the matter of Henson's claimed person- ality conflict with Kirk and other Smith employees must also have been deemed unimportant by Respondent. For Chappee admitted that she did not make a record of the 30 Only Henson and Edwards testified as to this incident I do not credit Edwards' testimony that Henson brought the matter up gratuitously, be- cause it seems less plausible, in the circumstances , than the testimony of Henson Henson was a new employee at Smith , hence could not have been expected to enjoy, as yet, the easy familiarity with other employees of that building which would have been prerequisite to Henson volunteering the information, as Edwards claimed 544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD reason for it. Nor was the matter sufficient to make Re- spondent unwilling to rehire Henson as a floater when Henson spoke to Chappee on October 8, 1975. From the foregoing, it is clear that as of October 13, 1975, when, according to Respondent's brief, Henson was terminated there is no credible probative evidence that Henson was discharged for cause. 1 There is, of course, significant credible and probative circumstantial evidence that Henson was discharged be- cause of her union acitvities. These activities have been heretofore recounted as well as Respondent's knowledge of Henson's union allegiance. The attitude of Respondent and particularly that of Mueller opposing the unionization of Respondent's employees from the beginning of the Union's campaign have also been set forth in detail. Mueller's feelings in this regard continued after the Board- conducted election in July 1975. Thus, in early August 1975, as I have found, he threatened to discharge Roswell if it was again reported that Roswell sought on company time to solicit employees to join the Union. I have found this threat of discipline to be discriminatory in view of Respondent's tolerance of numerous other personal, but nonunion, activities of its employees on company time. This means, of course, that Mueller's ire was not occa- sioned by the coincidence that Roswell's activity occurred during work hours but rather that it was an act dedicated to organizing, or reorganizing, the Union. Roswell was not the only individual who signed up em- ployees to join the Union after the July election Henson also did so at that time. While the precise dates when Henson's activities occurred are not shown, Respondent was certainly aware of them in September when Mayberry mentioned in the presence of Hayes that "all Loretta Hen- son and Alice Hallows have on their minds is union." Respondent, at least at first, was spared from actually discharging Henson in September because Henson went on sick leave. It apparently hoped that Henson would just go away. Thus, when Henson sought to return on October 8, 1975, and thereafter, Respondent gave her what can only be described as the runaround. In this same connection it is interesting to note that Respondent's witnesses Chappee and Mueller were unwill- ing even at the hearing to admit that Henson had ever been discharged. Thus, as I have mentioned, Chappee denied telling Henson there was no work available for her. Muel- ler, when questioned about the reason he was called by the unemployment compensation officer shortly after October 13, 1975, stated that the latter was just inquiring about "the situation." When pressed, Mueller then clarified this testi- mony to say that he thought the inquiry concerned the reason for the compensation application (a reason ascribed by Mueller was insubordination). Finally, Mueller stated, in answer to his counsel's question whether Henson has 31 The date October 13, 1975, is the date Henson was told by Chappee, as I have found, that Respondent had no work for Henson This assertion in Respondent's brief is , of course , somewhat at odds with the testimony of Chappee, which I have discredited , that Chappee never told Henson that there was no work available for Henson Whatever the date on which it was in fact decided that Henson would be terminated , she has not been permitted to return to work since October 8, 1975, when she requested such permission been terminated, that "I guess technically you would have to classify it that way." I conclude from all the foregoing that Respondent's re- fusal to permit Henson to return to work on and since at least October 13, 1975, constitutes a discharge effective that date and that Respondent 's determination to dis- charge Henson was occasioned by Henson 's union activi- ties. I further conclude that by discharging Henson Re- spondent has violated Section 8(a)(1) and (3) of the Act.32 There remains to be disposed of only Respondent's addi- tional defense-apparently to any present requirement that it reinstate Henson-that it should not be so required be- cause of what it learned on the day of the hearing to be Henson's claimed attitude towards retarded children. This matter developed apparently from an off-the-record disclosure by Mayberry to Mueller (lust before or during the hearing) about a comment made by Henson to May- berry while Henson was still employed by Respondent. The remark, as testified to by Mayberry at the hearing, was that Henson said if she, Henson, had a retarded child she "just couldn't put up with it, that she'd have to do away with it some way or another, smother it or something." In her own testimony Henson vigorously denied making this remark and told a different story of the incident from that told by Mayberry. I find that the following occurred . While Henson and Mayberry were working together during September 1975, Mayberry had occasion to "whip" a retarded child.33 This caused Henson to remark to Mayberry that if she, Henson, ever had a retarded child she would not put "it in a place like that where she [Mayberry] could beat it." In making this finding as to what was said by crediting Henson's testimony over that of Mayberry I have consid- ered all the surrounding circumstances . Thus, I have con- sidered the fact that Mayberry did not deny that she "whipped" a child on the occasion in question . I have also considered Henson's work record wherein no dereliction was shown in her care of retarded children at Respondent's facility. In a year of work Mayberry admitted she never saw Henson mistreat a child. Then I have considered the seriousness of the remark, as Mayberry reported it, as con- trasted with her failure as a supervisor to mention it for 2 months from the time it was made to the time of the hear- ing. This same passage of time, of course, could not help but dim her memory at least to a degree. The "or some- thing" at the end of Mayberry's report of the statement supports this conclusion. I have also considered the fact that there are indeed certain similarities between Henson's version and that of Mayberry. Henson's "would not put it [the retarded child] in a place like that" is not substantially unlike Mayberry's "couldn't put up with it." This similari- ty, plus the potential for noise in the room based on the child's presumed reaction to being "whipped," may well 32 And, in reaching this conclusion, I am satisfied that the reasons now advanced by Respondent to support its decision are pretextual after- thoughts vitiated in large part by its stated willingness on October 8, 1975, to permit her to return to work as a floater at that time . See Tupperware Company, Division of Dart Industries, Inc, 197 NLRB 1079 (1972) In the circumstances, I attach no weight to the self-serving testimony of Mueller, Chappee , and Mayberry , that Henson's union activities had nothing to do with her discharge 33 Henson so testified and Mayberry did not deny it BEVERLY FARM FOUNDATION, INC. 545 have caused a misunderstanding . Finally, I have consid- ered the diligent efforts of Henson to return to work to care for retarded children against the background of Respondent's pretextual basis for keeping her from doing so. For all these reasons I credit Henson 's foregoing version of what Henson said and conclude that Respondent has no ground in cause to refuse to reinstate her at this time. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth above, occurring in connection with the operations of Respondent described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the sev- eral States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY The recommended Order herein will contain the conven- tional provisions for cases involving findings of interfer- ence, restraint, and coercion in violation of Section 8(a)(1) of the Act and unlawful discharge in violation of Section 8(a)(3) and (1) of the Act. This will require Respondent to cease and desist from the unfair labor practices found and to post a notice to that effect which will also state the affirmative action Respondent will be required to take to remedy its discharge of Henson. Thus, Respondent will be required to offer Henson reinstatement to her former or substantially equivalent position without prejudice to her seniority and other rights and privileges. She will be made whole for any loss of earnings she may have suffered by reason of the discrimination against her by payment to her of a sum of money equal to that which she would have earned from the date of her unlawful discharge to the date of the offer of reinstatement to her, less net earnings, if any, during such period to be computed in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), with 6-percent interest thereon as prescribed by Isis Plumbing & Heating Co., 138 NLRB 716 (1962). It will also be recommended, in view of the nature of the unfair labor practices in which Respondent has engaged (see N.L.R.B. v. Entwistle Mfg., Co., 120 F.2d 532, 536 (1941)) that Respondent be ordered to cease and desist from infringing in any other manner upon the rights guar- anteed employees by Section 7 of the Act. CONCLUSIONS OF LAW quently, to reinstate Loretta Henson because of her union activities, Respondent has violated, and is violating, Sec- tion 8(a)(1) and (3) of the Act. 5. Respondent has not violated the Act except as found herein. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record in this proceeding, and pursuant to Section 10(c) of the Act, I hereby issue the following rec- ommended: ORDER34 Respondent Beverly Farm Foundation, Incorporated, Godfrey, Illinois, its officers, agents, successors, and as- signs, shall: 1. Cease and desist from: (a) Discouraging membership or activities on behalf of Service Employees Union, Local 50, affiliated with Service Employees International Union, AFL-CIO, or any other labor organization by discriminating in regard to hire and tenure of employment or in any other manner in regard to any term or condition of employment of any of Respondent's employees in order to discourage union membership, or union or other concerted activities. (b) Threatening employees with loss of benefits if they support a union or discriminatorily enforcing its no-solici- tation rule against the union activities of the employees, or in any other manner interfering with, restraining, or coerc- ing employees in the exercise of their rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Offer Loretta Henson immediate and full reinstate- ment to her former or substantially equivalent position, without prejudice to her seniority or other rights and privi- leges, and make her whole for any loss of pay she may have suffered as the result of the discrimination against her in the manner set forth in the section of this Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records neces- sary to analyze the amount of backpay due under the terms of this Order. (c) Post at its facility in Godfrey, Illinois, copies of the attached notice marked "Appendix." 35 Copies of this no- 1. Since August 25, 1974, Respondent has been engaged in commerce within the meaning of the Act. 2. The Union is a labor organization within the meaning of the Act. 3. By threatening employees with loss of benefits if they supported the Union and by discriminatorily enforcing its no-solicitation rule against the activities of its employees in the circumstances found herein, Respondent has violated Section 8(a)(1) of the Act. 4. By refusing since at least October 13, 1975, and subse- 34 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. 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 35 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 read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tice, on forms provided by the Regional Director for Re- gion 14, after being duly signed by Respondent's represen- tative, shall be posted by it immediately upon receipt there- of, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Rea- sonable 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 wast- ing, within 20 days of the receipt of this Order what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be, and it here- by is, dismissed insofar as it alleges unfair labor practices not found herein.