Hoerner Waldorf Corp.

612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Hoerner Waldorf Corporation and Little Rock Print- ing Specialties and Paper Products Union Local No. 630, Sub. of the International Printing and Graphic Communications Union . Cases 26-CA- 4992 and 26-CA-5390 December 29, 1976 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS JENKINS AND WALTHER On January 13, 1976, Administrative Law Judge Alvin Lieberman issued the attached Decision in this proceeding. Thereafter, the Respondent filed excep- tions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and brief and has-decided to affirm the rulings,' findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order.2 As the Administrative Law Judge found, the Respondent disparately enforced a no-solicitation rule to prohibit employees from discussing union activities, even though they freely and frequently discussed other nonwork-related matters during working time at their place of employment. Because it was discriminatorily enforced, the no-solicitation rule, though apparently valid on its face, was "an unjustified restriction of the employees' right of self- organization" and as such is unlawful under the Act. See Innkeepers of Ohio, Inc., d/b/a Ramada Inn of Fremont, 221 NLRB 331 (1975). When the Respon- dent told Rand Stephenson, whom it knew to be an avid union supporter, that he would have to abide by that rule and refrain from such discussion in order to return to work, Stephenson quit rather than comply with the unlawful condition imposed by Respondent. No other employee had ever been told to similarly comply with the no-solicitation rule in order to keep his job. We agree with the Administrative Law Judge that Respondent violated Section 8(a)(1) of the Act by conditioning Stephenson's continued employment upon his abandoning the right to engage in conduct 1 Respondent has excepted to the fact that the Administrative Law Judge corrected the transcript without giving the Respondent an opportunity to comment on the corrections or make additional ones. Respondent contends that the Administrative Law Judge's corrections distort the meaning of the transcript in a manner prejudicial to the Respondent . We have carefully reviewed the Administrative Law Judge's transcript corrections and find that they, for the most part, constitute simple grammatical and typographical changes. In no instance do the corrections affect the meaning of the substantive testimony. Nor do Respondent's own proposed corrections 227 NLRB No. 94 protected by Section 7 of the Act. We also find, in agreement with the Administrative Law Judge, that Respondent constructively discharged Stephenson in violation of Section 8(a)(3) of the Act when Stephen- son was compelled to leave his job rather than relinquish his statutory rights. While conceding that Respondent may have en- gaged in 8(a)(1) conduct by conditioning Stephen- son's employment upon compliance with an unlawful no-solicitation rule, our dissenting colleague does not agree that Respondent constructively discharged Stephenson. Instead, our colleague finds that Re- spondent did not intend to force Stephenson to quit because of his union activities and that, in any event, Stephenson was not asked to abandon such a fundamental Section 7 right as to justify his quitting. Our colleague's views on both counts are at odds with the most fundamental precepts of the Act. Section 7 of the Act guarantees employees "the right to self-organization, to form, join, or assist labor organizations 29 U.S.C. §157. It is well recognized that "organization rights are not viable in a vacuum; their effectiveness depends in some measure on the ability of employees to learn the advantages and disadvantages of organization from others." Central Hardware Co. v. N.LRB., 407 U.S. 539, 543 (1972). Since the beginning of the adminis- tration of the Act, union solicitation, the right of employees to discuss organization among themselves, has been considered essential to the free exercise of Section 7 rights. Peyton Packing Company, Inc., 49 NLRB 828 (1943), affd. 142 F.2d 1009 (C.A. 5, 1944), cert. denied 323 U.S. 730. In Republic Aviation Corporation v. N.LR.B., 324 U.S. 793, 801-803 (1945), the Supreme Court agreed with the Board's determination that invalid rules against solicitation are "inimical to the right of organization." In fact, the right of an employee to engage in union solicitation is so basic to Section 7 of the Act that a bargaining representative cannot waive that right, no matter what concessions are obtained in return. N.LR.B. v. Magnavox Company of Tennessee, 415 U.S. 322, 324- 327 (1974). At issue in the present case is the right of an employee to exercise this right, protected by Section 7 of the Act, to engage in organizational activities at the place of his employment. Addressing itself to the organizational rights of employees, the Supreme purport to alter the meaning of the relevant testimony . We accordingly find that Respondent was not prejudiced by the Administrative Law Judge's failure to give it an opportunity to comment on the transcript corrections. 2 Respondent excepts to the use of the word "fired" in that part of the notice which reads "wc WQ.L pay back to Rand Stephenson any salary lost by him because we fired hum" and to the use of the word "fired" in the sentence immediately preceding. We find merit in Respondent's exception. We shall accordingly change the notice by substituting for the word "fired" the words "constructively discharged." HOERNER WALDORF CORP. Court has stated "No restriction may be placed on the employees' right to discuss self-organization among themselves, unless the employer can demon- strate that a restriction is necessary to maintain production or discipline." N.L.R.B. v. Babcock & Wilcox. Company, 351 U.S. 105, 113 (1956). Because of its discriminatory enforcement, Respondent's no- solicitation rule is without justification and accord- ingly must fall. The Respondent is therefore without excuse for the imposition of its restriction on Steph- enson's organization rights. - Despite this well-established view that the right to solicit is a sine qua non for the right to self-organiza- tion, our dissenting colleague apparently considers that this right to solicit is a "qualified" right and thus not a fundamental Section 7 right. Obviously, the two terms are not mutually exclusive. Nowehere in the Act is there any language which states that certain Section 7 rights are less deserving of the Act's protections than others. It is true that the right of an employee to engage in union solicitation at the place of employment may well be balanced with an employer's right to maintain discipline or assure that "working time is for work." But the fact that the right to solicit may be circumscribed in some respects does not make it any less protected by the Act in those situations where the circumscriptions do not apply. For the Board is charged with balancing conflicting legitimate interests in order to advance the dominant purpose of the- Act - "the right of employees to organize for mutual aid without employer interfer- ence." Republic Aviation, supra at 798. Without the right to solicit, Section , 7's right to organize would indeed be a hollow guarantee and the fact that solicitation at best may in some instances be lawfully limited does not detract from this principle nor impair the right. Nor are we impressed by our colleagues's argument that Respondent did not intend to force Stephenson to quit because of his union activities and thus Respondent lacked the requisite unlawful motivation for a violation under Section 8(a)(3) of the,Act. It is inconsequential that the Respondent now protests that it did not intend to discourage union member- ship or that it took steps after the fact to rectify its violation. The surrounding circumstances to which our colleague alludes in defense of Respondent do not mitigate the violation. For it is undisputed that Respondent levied, as a condition for Stephenson's return to work, his compliance with the discriminato- ry no-solicitation rule. Where the natural conse- quence of an employer's actions is discouragement of union membership, it is presumed that the employer intended such discouragement since that is the 3 There was no 8(aXl) allegation in the complaint relating to the disparate application of the rule. 613 foreseeable consequence of his conduct. The Radio Officers' Union of the Commercial Telegraphers Union, AFL [A. H. Bull Steamship Company] v. N.LR.B., 347 U.S. 17, 44-48 (1954). In this case, Respondent's intent to discourage membership is plain from the fact that Respondent conditioned Stephenson's re- turn to work upon his compliance with the unlawful no-solicitation rule. - In a further attempt to excuse Respondent's unlaw- ful conduct, our colleague places the burden of choosing the appropriate remedy on Stephenson, who should have, according to the dissent, chosen- any course- of conduct to remedy Respondent's discrimi- natory conduct but the very one he did. Since Stephenson chose what - the dissent regards as the wrong remedy, our colleague would close the remedi- al doors of the Board. But Stephenson, as a ' layman, would hardly have a sophisticated knowledge of the remedial options open to him, and any burden in those circumstances should be borne by the wrong- doers instead of the victim . Stephenson's right to quit rather than foresake his statutory rights , i.e., the right of an employee to protect his Section 7 rights without having to relinquish them or suffer loss of employ- ment due to an employer's discriminatory conduct, is a choice the Board has unfailingly sustained. We do so here in fording that Respondent constructively and unlawfully discharged Stephenson. 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,. Hoerner Waldorf Corporation, Little Rock, Arkansas, it officers, agents, successors, 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. MEMBER WALTHER, dissenting in part and concurring in part: I agree that by conditioning Stephenson's employ- ment upon his compliance with a disparately en- forced, and therefore invalid, rule regarding the discussion of union business during working time Respondent may have engaged in conduct circum- scribed by Section 8(a)(1) of the Act.3 I cannot, however, agree that Respondent's conduct consti- tutes a constructive discharge in violation of Section 8(a)(3). 614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD -The record shows -that Respondent voluntarily recalled Stephenson after a 3-month layoff and offered him- a job, despite the fact that it knew Stephenson- to- be an avid union supporter. As a condition of his employment, Stephenson was asked to refrain from talking about the Union during working time. This_was a request which Respondent had a perfect right to make, were it not for the fact that Respondent had forfeited this right by prior discriminatory application of its no-solicitation rule; It was a request-which Respondent in any event could validly have made had it appropriately signaled its intention to thereafter enforce its no-solicitation rule in a nondiscriminatory manner. Stephenson, accepted, then upon further reflection rejected,- Respondent's condition and quit his job rather than comply., Shortly thereafter, Respondent, on December 27, 1974, wrote Stephenson a concilia tory letter in which'it offered to reappraise Stephen- son's employment status. Ali exchange of letters followed and it was agreed that Stephenson would accept reemployment : with Respondent and refrain from talking about union business- working time if Respondent uniformly .enforced its rule concerning discussion of nonwork-related matters. Stephenson resumed, employment with Respondent on January 29, 1975. In my 'view, `the circumstances ,surrounding the termination of Stephenson's employment fail to demonstrate that Respondent intended to force Stephenson to quit because` of his union activities. The facts that Respondent voluntarily recalled Steph- enson from layoff and quickly took steps after Stephenson quit to'procure his return to work belie any inference of antiunion motive or purpose. Had Respondent wanted `to rid itself of Stephenson, it would, not have recalled him. Had Respondent been truly motivated by a desire to expunge itself of union adherents or suppress - union activity, it would not have reemployed Stephenson or moved so expedi- tiously to settle things after Stephenson quit. Nor am I convinced that the condition imposed- by Respondent was sufficiently coercive to warrant the finding' of a 'constructive discharge. A constructive discharge in violation of Section 8(a)(3) is usually made out where the employer, with the intent of discouraging union membership, makes working conditions so unbearable or unpalatable that the employee is forced to resign. Cavalier Olds, Inc., 172 NLRB 807 (1968); N.LR.B. v. Tennessee Packers, Inc., Frosty Morn Division, 339 F.2d 203 (C.A. 6, 1964). Constructive discharge is also made out where an employer conditions' the employee's continued employment on the employee's relinquishment of a Section 7 right and the employee quits rather than comply with the condition. John B. Shriver, an Individual, -d/b/a John B. Shriver Company, 103 NLRB 23 (1953); Block-Southland Sportswear, Inc., Southland Manufacturing, Inc., 170 NLRB 936 (1968); Interstate 65 Corporation d/b/a Continental Inn, 186 NLRB 248 (1970); Swain Manufacturing Company, 201 NLRB 681 (1973). This latter category of constructive discharge presumably equates sacrifice of a Section 7 right with the imposition of harsh and unreasonable working „conditions. The apparent rationale is that requiring an employee to abandon his or her rights is so inherently coercive as to justify the employee in quitting. I cannot agree that, in the circumstances of this case, Respondent's requirement that Stephenson abandon what was at best a qualified right, was so onerous and intolerable that Stephenson was justified in quitting. I do not find that Stephenson's situation can, be properly compared to situations where the employee is presented with the unsettling choice between abandoning the union and being fired or is otherwise asked to forgo the-exercise of a fundamen- tal right. See Atlas Mills Inc., 3 NLRB 10 (1937); John B. Shriver Company, supra; American Enterprises, Inc., 191 NLRB 866 (1971). Stephenson was not without a remedy. He could have filed an 8(a)(1) charge with the Board and sought to have Respondent enjoined from discrimi- natorily enforcing-its no-solicitation rule or her could have defied Respondent's request and tested its threat to fire him. Either of these alternatives was the proper course for him to pursue. Accordingly, I would find that Respondent did not constructively discharge Stephenson in violation of Section 8(a)(3). APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT question our employees concern- ing their union membership, activities, -and de- sires. ' ' WE WILL NOT threaten our employees with loss of existing privileges or benefits in 'order to discourage our employees from supporting the Union. WE WILL NOT solicit the grievances of our employees and imply that we will rectify those grievances in order to induce our employees not to support the Union. WE WILL NOT institute a program to rectify the grievances ofour employees in order to induce our employees not to support the Union. WE WILL NOT require any person to give up any right given to him by the National Labor Rela- HOERNER WALDORF CORP. Lions Act in order to get a job with us, or to continue to work for us, or to be recalled from layoff by us. WE WILL NOT discharge, fail to recall from layoff, or discriminate against employees in any other way in order to discourage them from membership in the Union. - WE WILL NOT in any other manner interfere with any right given to employees by the National Labor Relations Act. As it has been decided that we constructively discharged Rand Stephenson because he refused to give up rights given him by the National Labor Relations Act, WE wILL pay back to Rand Stephenson any salary lost by him because we constructively discharged him. WE WILL respect your right to form any union, to support any union, to help any union, and to deal with us through any union. WE WILL also respect your right not to do any of these things. All our employees are free, without any objection from us, to become or remain members of Little Rock Printing Specialities and Paper Products Union Local No. 630, or any other union, or not to become or remain members of any union. HOERNER WALDORF CORPORATION DECISION STATEMENT OF THE CASE ALVIN LIEBERMAN, Administrative Law Judge: The hearing in this proceeding, with all parties represented, was held before me in Little Rock, Arkansas, on -March 6 and July 22 and 23,1975, upon the General Counsel's complaint dated January 30, 1975,1 and Respondent's answer. In general, the issues litigated were whether Respondent violated Section 8(a)(1) and (3) of the National Labor Relations Act, as amended (herein called the Act).2 More particularly, the questions for decision are as follows: 1. Did the conditions imposed upon Rand Stephenson, an employee of Respondent, when he was recalled from 1 The complaint was issued pursuant to charges filed between February 7, 1974, and January 20, 1975, by Little Rock Printing Specialties and Paper Products Union Local No. 630. 2 In pertinent part these sections provide: Sec. 4(a) It shall bean 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 or any term or ' condition of employment to encourage or discourage membership in any labor organization .... Section 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'thieir own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection ... 615 layoff interfere with rights guaranteed to employees by Section 7 of the Act? 2. Was the termination of Stephenson's employment violative of Section 8(a)(1) and (3) of the Act? Upon the entire record,3 upon my observation of the witnesses and their demeanor while -testifying, and having taken into acount the arguments made and the briefs submitted,4 I make the following: FINDINGS OF FACT I. JURISDICTION Respondent, a corporation, is engaged at Little Rock, Arkansas, in the manufacture and distribution of corrugat- ed boxes. During the year ending on January 29, 1975, a representative period, Respondent purchased material valued at more than $50,000 from vendors located outside the State of Arkansas. Accordingly, I find that Respondent is engaged in commerce within the meaning of the Act and that the assertion of jurisdiction over this matter by the National Labor Relations Board (herein called the Board) is warranted. - - II. THE LABOR ORGANIZATION INVOLVED Little Rock Paper Products Union Local No. 630, Sub. of the International Printing and Graphic Communications Union (herein called the Union) is a labor organization within the meaning of the Act. 11. INTRODUCTION Briefly, this case is concerned with the termination of Rand Stephenson's employment with Respondent shortly after Stephenson's recall from layoff: The General' Counsel and the Union, the Charging Party, contend 5 that Stephen- son was either constructively or actually discharged be- cause of his refusal to submit to a rule prohibiting him from discussing the Union or other nonwork-related matters during working time, although no such condition was previously imposed on other employees .6 Respondent's position, simply stated, is that Stephenson quit his employment with Respondent under conditions not amounting to a constructive discharge. 3 Issued simultaneously is a separate order.correcting obvious inadvertent errors in the stenographic transcript of thisproceediig. Included in this order are the corrections sought by the General Counsel in a motion to which no opposition was filed. 4 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 in this Decision, each has been carefully weighed and considered. s Notwithstanding that the Union made no opening statement and submitted no brief, it became apparent during the hearing that its conten- tions concerning the issues in this case are similar to the General Counsel's. Accordingly, the contentions of the General Counsel and the Union will be jointly referred to hereinafter as the General Counsel's contentions. 6 The complaint alleges, and the General Counsel argued in his opening statement, that Stephenson's discharge was constructive. In his brief, however, the General Counsel makes the alternative argument set forth in the text 616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IV. PRELIMINARY FINDINGS AND CONCLUSIONS 7 A. The Union's Organizational Campaign About November 1973 the Union, which then represent- ed, and still represents, Respondent's production and maintenance employees, began a campaign to organize Respondent's office workers. On December 12, 1973, the Union filed a petition for certification. On March 18, 1974,8 it was certified as the collective-bargaining representative of Respondent's office employees. See, in this connection, Hoerner- Waldorf Corporation, 214 NLRB 771 (1974), enfd. 525 F.2d 805 (C.A. 8, 1975). B. The Settlement Agreement On February 7, 1974, while the Union's campaign to organize Respondent's office workers was in progress, the Union filed a charge in Case 26-CA-4992 alleging several violations of Section 8(a)(1) of the Act by Respondent. On March 4 Respondent entered into an agreement with the Union in settlement of this charge whereby Respondent undertook to refrain from conduct proscribed by Section 8(a)(1). Several days later the settlement agreement was approved by the Regional Director for Region 26 of the National Labor Relations Board. On January 20, 1975, the Union, in Case 26-CA-5390, filed an amended charges alleging that Respondent had engaged in postsettlement violations of Section 8(a)(1) and (3) of the Act by "discriminatorily [attempting] to impose unlawful and discriminatory conditions on Rand Stephen- son on or about December 16, 1974... thereby creating conditions such as to constructively discharge him." 10 Based on his investigation of this charge the Regional Director, on January 30, 1975, vacated and set aside the settlement agreement in Case 26-CA-4992 and issued a complaint alleging as unfair labor practices not only Respondent's conduct since the settlement agreement relating to the termination of Stephenson's employment, but also Respondent's conduct preceding the settlement agreement.' i The law concerning the circumstances warranting the setting aside of a settlement agreement and giving consider- ation to presettlement conduct as evidence of violations of the Act is clear. "It is the Board's established practice not to consider as evidence of unfair labor practices conduct of a Respondent antedating a settlement agreement, unless the Respondent . . . has engaged in independent unfair labor practices since the settlement." 12 In apparent recognition of the foregoing well-settled principle, Respondent conced- ed at the hearing that, if merit were to be found to the complaint's allegations concerning the termination of Stephenson's employment, an order could be entered in the r The purpose of these findings 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 specifically to the findings made here, they will be treated here, although they, as well as the findings, may again be considered in other contexts. 8 All dates hereinafter mentioned without stating a year fall within 1974 9 The original charge in Case 26-CA-5390 was filed by the Union on December 18, 1974 10 G.C. Exh. 1(1). usual form on the allegations of the complaint dealing with Respondent's presettlement conduct claimed to have been violative of Section 8(a)(1) of the Act "as though [they] had been established by evidence," notwithstanding that no evidence would actually be taken. Accordingly, the matters litigated at the hearing related only to the question of whether the postsettlement termina- tion of Stephenson's employment with Respondent was violative of Section 8(axl) and (3) of the Act. C. The Rule Respondent contends that there has been for a substan- tial period of time an unwritten rule applicable to all employees, regardless of whether they worked in its manufacturing plant or in its office,13 prohibiting them from discussing the Union and other nonwork-related subjects during working time. Although seemingly facially valid, the validity of the rule, assuming its existence, was impaired by its disparate and discriminatory enforcement. Innkeepers of Ohio, Inc., Ramada Inn of Fremont, 221 NLRB 331 (1975); Central Hardware Company 181 NLRB 491 (1970), enfd. in this respect 439 F.2d 1321 (C.A. 8, 1971), reversed in another respect 407 U.S. 539. Thus, office employees frequently discussed nonwork- related matters during working time at their desks and elsewhere on Respondent's premises in the presence of supervisors and even with supervisors, including Howard Byers, Respondent's administration manager. However, except for an occasional mild rebuke for talking too much nothing further was done about this. In contrast to this leniency in enforcing the rule is the strict stand regarding it taken by Respondent toward Stephenson, known to be an avid union supporter, when, during the Union's campaign to organize Respondent's office workers, he and a fellow employee, Howard Gardner, talked about the Union in Respondent's copyroom. Upon this coming to his attention, Byers summoned Stephenson to his office and there firmly "told" Stephenson, as Byers testified, that he "should not talk about union business on company time." Byers admitted, in this connection, that he never gave such an order to any other employee. Furthermore, as also admitted by Vernon Withers, Respondent's personnel manager, Respondent's "policy of not permitting Union matters or any other discussion that was not job related during working time . . . was never enforced until it come to Rand Stephenson." Nor, finally, does it appear from the evidence that the continued employment of any employee other than Stephenson, as will be set forth below, was conditioned on his compliance with the rule. 11 In this respect the complaint alleges that before the settlement Respondent violated Sec. 8(axl) by soliciting grievances from employees and promising to institute, and instituting, a program of receiving and rectifying employee grievances in order to induce employees to refrain from supporting the Union ; by interrogating employees concerning their union sentiments ; and by threatening employees with loss of benefits if they supported the Union 12 Larrance Tank Corporation, 94 NLRB 352, 353 (1951 ). For the same effect, see also Greenville Shipbuilding, Inc., 165 NLRB 891, 892 (1967). 13 Rand Stephenson worked in Respondent's office. HOERNER WALDORF CORP. 617 Accordingly, I conclude that by the disparate manner in which the rule was enforced it was deprived of whatever validity it might otherwise have had.14 V. THE ALLEGED UNFAIR LABOR PRACTICES A. Facts Concerning Respondent's Alleged Postsettlement Violations of Section 8(a)(1) and (3) of the Act15 Rand Stephenson was initially employed by Respondent in 1964. He was laid off in September 1974. On December 16, 1974, Howard Byers, Respondent's administration manager, offered Stephenson a position in Respondent's office which had just become available. Pursuant to Byers' suggestion that he do so, Stephenson came to Byers' office that afternoon to talk about the job. Upon being informed of the nature of the work he would be doing and the salary he would receive, Stephenson accepted Respondent's offer of reemployment. Byers then turned to another subject, the Union. Con- cerning this, as Stephenson testified, Byers stated that he "didn't want [Stephenson] to talk with Howard Gardner in some corner or down the hall or in the copyroom about the union";16 he "didn't want [Stephenson] to talk to any employees in the office about the union"; and he "didn't want any talk of the union between the hours of 8:00 and 5:00." 17 Notwithstanding the prohibitions placed on him by Byers concerning his talking about the Union, Stephenson told Byers that he would start to- work the next day, December 17, at 8 a.m. However, during the evening of December 16 he gave consideration to what he called the restraints Byers "had imposed on [him] in relation to [his] job [and] primarily [his ] rights to free speech." Accordingly, immediately on his arrival at Respondent's office at 8 a.m., on December 17, Stephenson sought an audience with Byers, Respondent's administration manag- er, to complain about the conditions Byers laid down the previous afternoon. However, he was unable to speak to Byers until about 10 o'clock.- In the meantime Stephenson worked at his new job. When he ultimately saw Byers, Stephenson told him, as Byers testified, that he had thought over what Byers had said to him the day before; Byers was "discriminating against [him] and [his] freedom of speech"; and he "could not work under these conditions." Byers' response, as Stephenson put it, was that it was Respondent's "policy" that he could not "talk about union business during office hours," and that Respondent "chose to enforce it." At this point Byers asked Vernon Withers, Respondent's personnel manager, to come to his office and speak to Stephenson. Withers modified Byers' description of Re- spondent's "policy." In this regard, Withers stated to 19' The complaint does not allege, nor does the General Counsel contend, that by its disparate enforcement of the rule Respondent violated Sec. 8(a)(1) of the Act. is The complaint alleges in this regard that by imposing illegal conditions of employment on Rand Stephenson when he was recalled from layoff and by constructively discharging Stephenson Respondent violated Sec. 8(a)(l) and (3pof the Act. 16 It will be remembered that Stephenson's conversation about the Union with Gardner during the Union's campaign to organize Respondents office Stephenson, as Withers testified, that Respondent "had a policy [which it has the right to enforce] that union activities or any other activities ... that are not job related was prohibited [on company] time." Withers also told Stephenson that such activity could be engaged in during break and lunch times. As the conference ended Stephenson again announced that he could not work under those conditions. Byers replied that, if that was the case, Stephenson could not work for Respondent. After a subsequent exchange of correspondence between the Union and Respondent, Stephenson was reinstated on January 29, 1975, and was still in Respondent's employ at the time of the hearing. B. Concluding Findings Concerning Respondent's Postsettlement Violations of Section 8(a)(1) and (3) of the Act The legality of the conditions imposed on Rand Stephen- son when he was recalled from layoff depends on the validity of Respondent's rule prohibiting discussion by employees of nonwork-related subjects. Having already decided that the rule is invalid because of its disparate and discriminatory enforcement, I fmd that Respondent's requirement that Stephenson comply with it deprived Stephenson of a right guaranteed him by Section 7 of the Act. Innkeepers of Ohio, Inc., supra. Accordingly, I conclude that, by conditioning Stephen- son's continued employment on his refraining from engag- ing in conduct protected by Section 7, Respondent violated Section 8(a)(1) of the Act. Kerrville Telephone Company, 209 NLRB 328 (1974). The second question for decision, insofar as this phase of the case is concerned, is whether the postsettlement termination of Stephenson's employment was also violative of the Act. In this regard, the Board has "long held that to condition employment upon the abandonment by employ- ees of the rights guaranteed them by the Act is equivalent to discharging them outright for union activity." 18 This being so, I further conclude, as the Board did in Block-Southland, that Stephenson's quitting his job rather than accepting the illegal conditions of employment imposed on him by Respondent constituted a constructive discharge, as alleged in the complaint, in violation of Section 8(a)(3) of the Act. C. Findings and Conclusions Concerning Respondent's Alleged Presettlement Violations of Section 8(a)(1) of the Act Having found merit to the complaint's allegations regard- ing the termination of Rand Stephenson's employment, I further fmd and conclude, in accordance with Respon- dent's concession made at the hearing that Respondent workers resulted in Byers' telling Stephenson "not [to] talk about union business on company time," although other employees were not so severely restricted concerning conversations respecting other nonwork-related 'sub- jects. 17 Byers' testimony concerning his conversation with Stephenson was in substantial accord with that given by Stephenson. i& Block-Southland Sportswear, Inc., Southland Manufacturing Company, Inc, 170 NLRB 936, 938 (1968), enfd. sub nom Amalgamated Clothing Workers ofAmerica, 420 F.2d 1296 (C.A.D C.,1969). 618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD engaged in the presettlement violations of Section 8(a)(1) of the Act, set forth in the complaint.19 Specifically, I find and conclude that before the settlement Respondent violated Section 8(a)(l) by soliciting grievances from employees and promising to institute, and instituting, a program of receiving and rectifying employee grievances in order to induce employees to refrain from supporting the Union; by interrogating employees concerning their union sentiments; and by threatening employees with loss of benefits if they supported the Union. VI. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The unfair labor practices engaged in by Respondent occurrring in connection with its operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. VII. THE REMEDY Having found that Respondent engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act, my recommended Order will require Respondent to cease and desist therefrom and to take such affirmative action as will affectuate the policies of the Act. In this connection, inasmuch as Respondent has already reinstat- ed Rand Stephenson, Respondent will be required only to make him whole for any loss of earnings he may have suffered as a result of his unlawful discharge. Any backpay found to be due to Stephenson shall be computed in accordance with the formula set forth in F. W. Woolworth Company,-90 NLRB 289 (1950), and shall include interest in the -amount and manner provided in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Upon the basis of the foregoing findings of fact, and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Respondent is an employer within the meaning of Section 2(2) of the Act and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. , By the following conduct Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(1) of the Act: (a) Soliciting grievances from employees and promising to institute, and instituting, a program of receiving and rectifying employee grievances in order to induce employ- ees to refrain from supporting the Union, thereby interfer- ing with the right of employees to choose the Union for the purpose of collective bargaining. 19 As earlier stated, Respondent conceded at the hearing that, if the postsettlement termination of Stephenson's employment was found to have been violative of the Act, an order could be entered in the usual form on the allegations of the complaint dealing with Respondent's presettlement conduct claimed to have been in contravention of Sec 8(a)(1) of the Act "as though [they ] had been established by evidence," notwithstanding that no evidence would actually be taken. (b) Coerceively interrogating employees concerning their union sentiments. (c) Threatening employees with loss of benefits if they supported the Union. (d) Conditioning the continued employment of Rand Stephenson upon his refraining from activity protected by Section 7 of the Act. 4. By discharging Rand Stephenson, thereby discourag- ing membership in the Union, Respondent has engaged in, and is engaging in, unfair labor practices withn< the meaning of Section 8(a)(3) and (1) of the Act. 5. The unfair labor practices engaged in by Respondent as set forth in Conclusions 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, and conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER20 The Respondent, Hoerner Waldorf Corporation, Little Rock, Arkansas, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Soliciting grievances from employees and explicitly or impliedly promising to institute, or instituting, a program of receiving and rectifying employee grievances in order to interfere with the right of employees freely to choose a bargaining representative or to induce employees to reject or refrain from activities in support of Little Rock Printing Specialties and Paper Products Union Local No. 630, Sub. of the International Printing and Graphic Communications Union, or any other labor organization. (b) Coercively interrogating employees concerning their attitude toward, relationship to, knowledge of, activities on behalf of, or regarding any other matter relating to Little Rock Printing Specialties and Paper Products Union Local No. 630, Sub. of the International Printing and Graphic Communications Union, or any other labor organization. (c) Threatening employees with loss of benefits, or any other form of reprisal, or effectuating any such threats, for joining, assisting, or in any manner supporting, Little Rock Printing Specialties and Paper Products Union Local 630, Sub. of International Printing and Graphic Communica- tions Union, or any other labor organization. (d) Conditioning the hire, rehire, recall from layoff, tenure of employment, or any term or condition of employment of employees upon their refraining from engaging in any activity protected by, or guaranteed in, Section 7 of the National Labor Relations Act, as amended. (e) Discouraging membership in Little Rock Printing Specialties and Paper Products Union Local No. 630, Sub. of the International Printing and Graphic Communications Union, or any other labor organization, by discharging 20 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 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. HOERNER WALDORF CORP. employees, or by failing to recall employees from layoff, 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 rights 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. 2. Take the following affirmative action which will effectuate the policies of the Act: (a) Make Rand Stephenson whole, in the manner set forth in the section of this Decision entitled "The Remedy," for any loss of earnings he may have suffered by reason of his unlawful discharge. 21 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 619 (b) 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 recommended Order. - (c) Post at its premises in Little Rock, Arkansas, copies of the attached notice marked "Appendix." 21 Copies of said notice, on forms provided by the Regional Director for Region 26, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices- are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 26, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board."