W. W. Grainger, Inc.

W. W. GRAINGER, INC. W. W. Grainger, Inc. and Bruce K. Talaber. Case 13-CA-14405 April 21, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY On February 25, 1976, Administrative Law Judge John M. Dyer issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the General Counsel filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified herein. At all material times, Respondent had in effect three illegal no-solicitation rules: (1) In February 1975, when W. Winfield Hubley III, Respondent's director of relations, commenced his job, Respon- dent had a no-solicitation rule forbidding solicitation for any purpose anywhere on Respondent's property without Respondent's written permission; (2) on March 18 or 19, 1975, Hubley, realizing that the first rule contained an overly broad proscription, promul- gated a second rule, as part of Respondent's new rules of employee conduct, which forbade, inter alia, solicitation of labor organizations on company property; and (3) in April 1975, Hubley followed the second rule with a third rule which forbade soliciting for any purpose during working hours under penalty of discharge. During the first week in April 1975, Nick Boscari- no and Michael Hansen, brothers-in-law of Bruce K. Talaber, the Charging Party, who had previously worked for Respondent and were then working with the Union, commenced standing outside Respon- dent's Niles warehouse, soliciting employees to sign union authorization cards. Both their relationship to Talaber and their activity were known to Dean Null, Respondent's Warehouse personnel manager. Tala- ber handed out union authorization cards at the I In par. l(c) of his recommended Order. the Administrative Law Judge failed to use the broad injunctive cease-and-desist language "in any other manner" which the Board traditionally provides in cases involving serious 8(aX3) discriminatory conduct. See N.LR.B. v. Entwistle Manufacturing Company, 120 F.2d 532. 536 (C.A. 4, 1941). Accordingly, we shall modify the recommended Order to require Respondent to cease and desist from in any other manner infringing on employee rights. 229 NLRB No. 22 plant, talked to employees about the Union, handed out some union ballpoint pens prior to work, and on a few occasions discussed the Union or the sched- uling of a union meeting during working time.2 Respondent admits it had knowledge of Talaber's union activities. In April or May 1975, Null told Talaber that he, Null, had heard that Talaber was soliciting for the Union on working time; Talaber denied the accusa- tion and said he was merely telling the employees the Union was good. Null then told Talaber that if he caught him soliciting on company time he would be terminated. That same day Null told employee Pace that he heard Pace was soliciting for the Union, which was against company rules, but that Pace could solicit on his own time. Pace replied that it was Talaber who was soliciting for the Union. In neither interview did Null investigate to find out what Talaber or Pace had said, if anything, and Talaber and Pace both denied that they had been soliciting. On June 2, Warehouse Operations Manager Richard Muller, in charge of the warehouse during Null's absence, gave Pace a written warning, telling him, as grounds for the warning, that employee Chekos had told Muller that Pace had solicited Chekos when Pace should have been working. Pace denied the solicitation and told him it was Talaber who had been soliciting on company time.3 Later that day, Muller asked Pace whether he had solicited others. Pace replied that Talaber had solicited him during the past week as to attendance at a forthcom- ing union meeting, and that Talaber had also solicited employees Dublinski and Davis. Pace was not asked for further details on the alleged solicita- tions, and in regard to Davis and Dublinski did not inform Muller as to whether or not the alleged solicitations occurred on working time. Muller thereupon wrote up what he felt had transpired concerning Talaber, showed the document to Pace a few days later, asked him if it was true, and had him sign it. The document read as follows: I was approached during working hours by Bruce Talaber. My work was interrupted by Talaber's solicitation activity. I have brought this to the attention of my supervisor. According to both Muller and Pace, no particulars were requested or given as to whether a solicitation 2 Talaber conceded that while working he made remarks such as "Support the Union," "The meeting is cancelled," or "There is a meeting tonight"-remarks which took only a few seconds to make. 3 Pace testified that on one occasion in April Talaber offered him a union pen during working time, but that he did not mention this to Muller. He also testified that he merely told Muller, without elaboration, that Talaber had approached him during working hours. 161 DECISIONS OF NATIONAL LABOR RELATIONS BOARD had taken place or as to the details of the alleged solicitation of Dublinski and Davis. Muller conceded that after receiving the signed document he did not check further to see whether Talaber had been contacting other employees. When Muller showed the document to Vice President Lyons, Lyons stated he felt it was a flagrant case involving multiple instances of solicitation. The both decided, however, to sit on the matter until June 9. On June 9, Talaber, reporting for work, was ushered into Muller's office. Muller told him he was being terminated for soliciting on company time. Talaber denied the accusation and demanded to see the supportive evidence but was refused. He then left the plant. Respondent contends that it disciplined employees only for soliciting on company time, asserting that Hubley had explained to the employees the meaning of its ban against solicitation on working time. The record does not bear out this assertion. Thus, at the time of the promulgation of the third no-solicitation rule, Hubley testified: it was our clear understanding and intent that the preclusion of solicitation during working hours meant during an employee's working time when he should be working. When asked whether he instructed management supervisors to explain what the rule meant, Hubley replied that when he met with Respondent's manage- ment groups he instructed them to tell their supervi- sors what was meant by the rule: that the no-solicitation rule applied only to working hours, working time, and that an employee was protected during lunch periods and break periods even though we are paying for the break periods, they were protected. There is no evidence, however, that the supervisors ever communicated this interpretation to the employ- ees as a group, other than individually to Talaber and Pace in the particular circumstances noted above. In fact, as the Administrative Law Judge found: When Dean Null, the warehouse manager, who issued the original warnings to Pace and Talaber, was asked the distinction between "working hours," "working time," and "company time," he answered it was all the same thing to him.... 4 Saco-Lowell Shops, a Division of Maremont Corporation, 169 NLRB 1090, 1095 (1968), enfd. 405 F.2d 175 (C.A. 4, 1968); Marion Manufacturing Company, 161 NLRB 55, 61 (1966), enfd. 388 F.2d 306 (C.A. 4, 1968); Standard Trucking Company, 134 NLRB 371, 374-375 (1961); May Department Stores Company, a corporation, doing business as Famous-Barr Respondent relies on its explanations of its no- solicitation rules to Pace and Talaber in order to prove that Pace's disciplining and Talaber's dis- charge were properly motivated. We disagree. It is clear that Respondent enforced its rules against Pace and Talaber without significant prior investigation of their alleged misconduct, with the result that its representatives, Null and Muller, were unaware of what offending statements, if any, were made; the dates of the alleged conversations; the time of day thereof; whether the conversations caused an inter- ruption of work; or who initiated them. Furthermore, Respondent repeatedly refused to divulge to Pace or Talaber the nature of the allegations against them, thereby deliberately denying them the opportunity to explain or deny their alleged conduct.4 In such circumstances, we find that its disciplinary actions against Pace and Talaber and its discharge of Talaber were pretextual actions designed to punish and, in the case of Talaber, rid itself of known union adherents without regard to whether they had violated its rules.5 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge as modified below and hereby orders that the Respon- dent, W. W. Grainger, Inc., Niles, 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 l(c): "(c) In any other manner interfering with, restrain- ing, or coercing employees in the exercise of the rights guaranteed them under Section 7 of the Act." 2. Insert the following as paragraphs 2(a) and (b) and reletter the subsequent paragraphs accordingly: "(a) Offer Bruce Talaber immediate and full reinstatement to his former job or, if it no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges. "(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 Order." Company, 59 NLRB 976, 982 (1944), enfd. in relevant part 154 F.2d 533 (C.A. 8, 1946), cert. denied 329 U.S. 725 (1946). 5 In view of this finding we deem it unnecessary to pass upon Respondent's claim that its explanation to Pace and Talabor of the valid application of its no-solicitation rule rendered the rule valid as to them. 162 W. W. GRAINGER, INC. 3. Substitute the attached notice for that of the Administrative Law Judge. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government Following a hearing in which the Company and the General Counsel of the National Labor Relations Board participated and offered evidence, it has been found that we violated the National Labor Relations Act. We have been ordered to post this notice and to abide by what we say in this notice. WE WILL NOT fire employees for engaging in union or concerted activities with other employ- ees for their mutual aid and protection. WE WILL offer Bruce Talaber immediate and full reinstatement to his former job or, if it no longer exists, to a substantially equivalent one, without prejudice to seniority or other rights and privileges, and reimburse him for the pay he lost as a result of our action. WE WILL NOT issue and enforce invalid no- solicitation rules and will rescind such invalid rules and remove any notices of warning or discipline issued pursuant to such rules. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed them under Section 7 of the Act. W. W. GRAINGER, INC. DECISION STATEMENT OF THE CASE JOHN M. DYER, Administrative Law Judge: Bruce K. Talaber filed a charge on June 16, 1975,1 against W. W. Grainger Inc., herein called Respondent or the Company, alleging that Respondent had discriminatorily discharged him on June 9, because of his activities on behalf of Local 714, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called Local 714 or the Union, in violation of Section 8(aX)() and (3) of the Act. The Regional Director of Region 13, issued a complaint and notice of hearing on August 29, alleging that Respondent had maintained and enforced three separate overly broad no-solicitation rules which had interfered with and coerced the employees and that Respondent had warned and disciplined certain employees and discharged Unless specifically stated otherwise all events herein occurred during 1975. Bruce Talaber for violating these rules, and accordingly breached Section 8(aX)() and (3) of the Act. Respondent filed a timely answer, amended at the hearing in this matter, which admitted the commerce and jurisdictional factors, the status of the Union and of certain named personnel, and that it had promulgated and published the three quoted rules but denied that the rules were enforced in a manner which violated the Act. While Respondent admitted issuing warnings to employees Talaber and Pace concerning "solicitation" and firing Talaber for "solicitation" it denied that such acts were in enforcement of the quoted rules or violated the Act. All parties were afforded full opportunity to appear, to examine and cross-examine witnesses and to argue orally at the hearing held in Chicago, Illinois, on December 4, 1975. Briefs from Respondent and the General Counsel have been received and considered. The main question in this case is whether Respondent discharged Talaber for "soliciting for a union" or for merely talking about a union and if such action was taken in enforcement of its no-solicitation rules. A supportive question thus raised is, "What is solicitation?" From the evidence in this case it seems clear that Respondent equated talking about a union with "solicitation" and once it found a "solicitation" violation which it felt was "flagrant," moved to discharge the main union proponent. Therefore, it has been found that Respondent promulgated and enforced overly broad, invalid no-solicitation rules in violation of Section 8(aX1) of the Act and, by using its definition of "solicitation," discharged Talaber in violation of Section 8(aXl) and (3) of the Act. On the entire record in this case including the exhibits and testimony and including my evaluation of the reliability of the witnesses based on the evidence they produced and their demeanor, I make the following: FINDINGS OF FACT 1. COMMERCE FINDINGS AND UNION STATUS W. W. Grainger Inc., is an Illinois corporation with its principal office and place of business in Niles, Illinois, where it is engaged in the wholesale distribution of electrical products. During the past year Respondent shipped directly to points outside the State, from its Niles, Illinois, warehouse, goods valued in excess of $50,000. Respondent admits and I find that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. Respondent admits and I find that Local 714, Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. II. THE UNFAIR LABOR PRACTICES A. Background and Undisputed Facts According to the Company's corporate director of relations, W. Winfield Hubley III, the Company consists of 163 DECISIONS OF NATIONAL LABOR RELATIONS BOARD three groups. The first group has 136 warehouse sales office branches located throughout the United States which stock and sell the Company's products. There is a manufacturing group consisting of seven manufacturing locations which produce the Company's products such as pumps, gears, reduction assemblies and related products. The third group consists of two warehouses, one in Bensonville, Illinois, and the larger consisting of three warehouse areas in Niles, Illinois. From these warehouses the inventory is distributed to the branches. Approximately 90 people work in the Niles warehouses and another 50 in the Bensonville warehouse. According to Hubley, some of Respondent's locations are organized, and the Company has experienced attempts at union organization at various places including the Niles warehouses over a period of several years. Hubley testified that, when he began his job with Respondent in February 1975, the Company had a document entitled "Personnel Policies" which had become effective November 20, 1972, and was distributed to employees when they were hired. This four-page document which contains employee rules and benefits lists as one of the rules the following: "Solicitations: Solicitation by an employee, employees, or others, for any purpose, is expressly forbidden in any area of the Company's property at any time without written permission of the personnel office." Hubley undertook to promulgate a new set of rules of employee conduct which would be applicable to the whole company and not just the Chicago area. He stated that the "no-solicitation" rule quoted above was too broad and he knew that it was in violation of the National Labor Relations Board so he endeavored to clarify that problem by providing a more up-to-date no-solicitation rule. The new rules of employee conduct were published around March 18 or 19 and distributed to the employees around the first part of April according to Hubley. The preamble of these 45 rules states that they set forth misconduct which is detrimental to the well being of all and that commission of such acts will result in appropriate disciplinary action. Rule 30 states: "Soliciting, canvassing, selling, or distrib- uting goods or printed materials on company property. This applies to social, charitable, political, labor, religious, fraternal or other organizations." According to Hubley, in February, when he began with the Company, there were organizational activities going on throughout the organization and specifically in California and he wanted to post a clear no-solicitation rule and issued the following to all units of the Company in April: "Soliciting for any purpose during working hours is prohibited. Appropriate discipline, up to and including discharge, will be taken should this rule be violated." Regarding this rule which was to be posted on all company bulletin boards, Hubley said that it was, "Our clear understanding and intent that the preclusion of solicitation during working hours meant during an employee's working time when he should be working." General Counsel's witnesses would reverse the order of issuance of these last two rules and place them as being issued in April or May. Nick Boscarino and Michael Hansen had both worked at Respondent, left the Company's employ and were working with the Union in the spring of 1975. Bruce Talaber who began working with Respondent on April 23, 1973, is related to both men, and this fact was known by the Company as Warehouse Personnel Manager Dean Null admitted. Either late in March or early April Boscarino and Hansen stood in front of the company warehouses and passed out authorization cards to employees entering or leaving. B. Events Culminating in Talaber's Discharge Bruce Talaber was classified as a utility man which means that he was trained for all the positions in the company warehouse and could fill in at any spot including the jobs of loaders, trailer loaders, unloaders, order pickers, stockkeepers, checkers, and equipment drivers. Talaber testified that he gave out union authorization cards to some of the employees at the plant but that most of his contacts were from his home at night and some were before or after work hours, during lunchtime or during breaks. He stated that he talked to employees about the Union and on a few occasions talked to employees concerning the Union or a union meeting during working time. Talaber remembered speaking to Walter Pace, Dublinski, Rick Davis, and Watts and gave authorization cards to Pace, Watts, and a few others and gave Pace some ballpoint pens imprinted with a union slogan in early April prior to work. Prior to May, Talaber rode to work with Dublinski at least twice a week and during such rides they discussed the Union and with other employees would discuss the Union or other topics in the breakroom before starting work. On April 11, according to Warehouse Personnel Manag- er Dean Null and on either May 9 or 16 according to Talaber, Null told Talaber he had been told that Talaber was "soliciting for the Union" while he was supposed to be working. Talaber denied it saying that all he had done was tell the employees that the Union was good. Null said he did not care who was lying but if he caught Talaber soliciting for the Union on company time he would be terminated. Talaber said he told Null that the main reason he called him in was because his brothers-in-law had been outside distributing union cards. Null denied that Talaber had said this to him. Talaber said he would not do anything on company time. Later the same day Null summoned Walter Pace for a meeting and told Pace he had heard that Pace had been "soliciting for the Union" and that was against the Company's rules but that Pace could solicit on his own time. Pace testified he told Null that Talaber was the one who was soliciting for the Union and was the main man for Local 714. Null did not deny that Pace told him Talaber had been soliciting for the Union but said he did not believe Pace told him that Talaber was the one pushing the Union. On June 2, Warehouse Operations Manager Richard Muller, who was in charge of the warehouse during Null's 164 W. W. GRAINGER, INC. absence on vacation, met with Walter Pace and gave him a written warning.2 Muller stated that an employee named Chekos had told him that Pace had solicited him when Pace should have been working and based on this report Muller prepared and gave Pace the written warning. Pace testified that Muller handed him the written warning and asked him to sign it saying Pace had been soliciting on company time. Pace denied it and Muller said he had witnesses and again asked Pace to sign the written warning. Pace told Muller that Talaber had been soliciting on company time. Pace's testimony is a bit confused at this point, but indicates that he did not give Muller any specifics about any Talaber solicitation and was not asked for any details not even when it happened. He testified that he had in mind the time that Talaber had given him a pen in April which he placed as while working. Muller testified that he came back to Pace later that same day and wanted to know whether Talaber had solicited others. According to Muller, Pace said that Talaber "had solicited him the prior week in regards to a meeting that they were going to have in June" and that among others Talaber had solicited Dublinski and Davis. Muller said he wanted to get "written documentation" and that "I wrote up what I felt had transpired concerning Bruce" showed it to Pace on the following Wednesday, asked him if it was true and Pace signed it. This document reads as follows: I WAS APPROACHED DURING WORKING HOURS BY BRUCE TALABER. MY WORK WAS INTERRUPTED BY TALABER'S SOLICITATION ACTIVITY. I HAVE BROUGHT THIS TO THE ATTENTION OF MY SUPERVISOR Although the top of the document is dated "6/4/75," under Pace's signature are the initials of Messers Lyons and Palluth and the date of "6/6/75." According to Pace, Muller came to him a few days after the written warning took a paper out of a portfolio gave it to him and asked him to read it and sign it. Apparently there was practically no conversation concerning this document and Pace was not asked for any further particulars as to when such a "solicitation" had taken place. Pace did not tell Muller when Talaber had spoken to Dublinski, and Davis and Muller did not ask if such had occurred during working time. Muller stated that after receiving the "written documen- tation" from Pace he had not checked to see whether Talaber "had been contacting other employees." Muller reported the incident to Vice President Lyons and apparently from the document's initials it was given to Lyons. According to Muller, Lyons said he felt it was a flagrant case involving multiple instances of solicitation and Muller said he thought Talaber should be fired. Together they decided to sit on it until Monday, June 9. 2 The warning signed by Pace and Muller on June 2 is as follows: YOU WERE ISSUED A VERBAL WARNING ON 4/11/75 FOR SOLICITING DURING WORKING HOURS. SINCE YOU HAVE CONTINUED TO SOLICIT DURING WORKING HOURS, IN SPITE OF THE PRIOR WARNING, THIS WRITTEN WARNING IS BEING ISSUED. On Monday, June 9, before signing in, Foreman Galbreath took Talaber to Muller's office. Muller told Talaber he was being terminated for soliciting for a union and they had evidence in the Company's files that he was soliciting on company time. Talaber denied it and asked to see the evidence in the files. He was told he could not see it and was escorted out to get his belongings and left. On the following day Talaber called Vice President Lyons and asked if Lyons had heard what had happened to him and asked for his job back. Lyons said he would think about it and to call back later. Talaber asked if he could come see Lyons, and Lyons agreed. On June 12 he went to the plant and met with Lyons who told him they were not going to take him back and that the Union had used him as a pawn. Talaber denied that he had told Lyons that the Union had used him as a pawn. C. Positions and Conclusions In its brief Respondent concedes that the three different no-solicitation rules are presumptively invalid due to the language used, but claims that the rules became valid because it applied them in a valid way and communicated such to the employees. Respondent claims that it discip- lined employees only where someone was soliciting on working time. The brief claims that Director of Relations Hubley explained to the Niles warehouse employees that working hours as employed in its rules meant worktime and that only worktime solicitation was proscribed and cited certain portions of the transcript in this proceeding as the basis for this claim. However, the cited portions of the transcript do not back up this statement. Hubley, concern- ing his talks with the employees, did not claim that at any time he ever explained to them the difference between working hours and working time nor was there any evidence that any other management representative had done so. Hubley did state that he had explained this difference to the heads of the various departments but nothing further than this was claimed. Here the rules were not made known to the employees in general although the distinction between working hours and working time was made known to Pace and Talaber when they were verbally warned for "soliciting" on company time. Employees need to know what the rules are if they are to be guided by them. If they are not informed that the rules are being enforced in a different manner from which they are written then they are being misled in that they can only know that the invalid rules are in force. Respondent relies on Essex International, Inc., 211 NLRB 749 (1974), in claiming that its rules were made valid by application. However, the facts in that case (a representation proceeding) are different from those in the instant case. In Essex the Board found that the company had three rules concerning solicitation and that two of them said that solicitation would not be allowed during "working time" and one of the rules used the words "working hours." The Board found that the "working SHOULD YOU VIOLATE THE SOUCITATION RULE AGAIN YOU WILL BE DISCHARGED. 165 DECISIONS OF NATIONAL LABOR RELATIONS BOARD hours" rule was prima facie invalid and to overturn the prima facie invalidity would take extrinsic evidence to demonstrate that a "working time" concept of the rule was communicated to the employees or that the rule was applied in a "working time" way as to make it clear. The Board went on in Essex to find that the "working time" concept had been explained to the employees and that the "working hours" rule was shown not to have been applied whereas the two "working time" rules were known to the employees as the valid rules and understood by them as the rules which governed their conduct. In its explanation the Board said it was necessary that the employees understood the rule, but did not say that if an employee or two knew the rule, that such was sufficient. When Dean Null, the warehouse personnel manager who issued the original warnings to Pace and Talaber, was asked the distinction between "working hours," "working time" and "company time," he answered it was all the same thing to him. Such a response does not make it clear that the distinctions were crystalized in the minds of Respondent's officials, much less the employees who had received no explanation. Respondent's brief claims that Talaber admitted "solicit- ing" and gave four citations to the transcript of this hearing. In each of these references, Talaber admitted talking to other employees concerning the Union but did not say that he had "solicited" any employees. Talaber said he made remarks such as "support the union," "the meeting is cancelled," or "there is a meeting tonight" to employees during working hours but said that was all he said to employees during "working time." In Null's interviews with both Talaber and Pace in April or May when he warned them verbally about "soliciting" Null did not investigate to find out what Talaber or Pace had said and Talaber and Pace both denied that they had been "soliciting." Muller said he had received a complaint from an employee named Chekos who said that Pace had "solic- ited" him when Pace should have been working and on such a claim and without any further investigation issued a written warning to Pace. Pressed about Chekos' statement Muller said the "solicitation" had to do with a union meeting and that Pace had told Chekos about a union meeting. With this written second warning hanging over him, Pace told Muller, according to Muller that Talaber had "solicited him the prior week in regards to a meeting that they were going to have in June," and Muller then had Pace give him "written documentation" which was his evidence in discharging Talaber for "flagrant multiple violations." This "violation" was not investigated beyond the written statement signed by Pace. Later in his testimony Muller was asked whether there were any restrictions as to what employees discussed as long as they continued to work and answered: "No. All of us, the employees and management, we have all discussed a wide range of subjects. Baseball, sex, whatever you want." Then to a leading question "So long as it does not interfere with your work?" Muller answered "that's right. Yes." During cross-examination Muller was asked whether that freedom to discuss while working included discussion of unions and his immediate answer was "Not according to our work rules, no. It does not include . ." and his answer was broken by an objection by Respondent's counsel. After some further record discussion and another question, Muller refined his answer and stated that the freedom to talk included union activities "within limits" and in a "narrow sense." He defined these terms by saying that if the discussion was not active solicitation which he said meant "a request of some sort, a request of some performance, which of course, would be going beyond the limits of general conversation." Pace did not remember giving any particulars to Null or Muller about any "solicitation" when he spoke to them about Talaber's activities. Certainly it should have been clear to both Null and Muller that Pace was on a spot for what he was told was his "solicitation" and sought to ingratiate himself with Respondent by offering Talaber to them. Respondent did not check with Talaber as to what had transpired, but seized on this statement by Pace and according to Muller, "So I wrote up what I felt had transpired concerning Bruce [Talaber]," showed it to Pace and had him sign it. In this regard Respondent was going against what Hubley said was the norm where there were serious violations of the company rules. According to Hubley, when he discussed the 45 new rules of conduct with the employees, Respondent was mainly interested in attend- ance and Hubley laid out what he said was a four-step procedure leading up to discharge for employees who continued to violate the attendance rules. He also spoke about the other rules and said that violation of the rules would bring discipline according to the seriousness of those rules and in regard to serious rules there would first be a written warning so that the employee would know exactly what it was he had done and if it continued that he would then be discharged. Since Respondent apparently consid- ered solicitation a serious rule, we have the situation where a written warning was given to Pace but none was ever given to Talaber. It should be clear that "solicitation" for a union is not the same thing as talking about a union or a union meeting or whether a union is good or bad. "Solicitation" for a union usually means asking someone to join the union by signing his name to an authorization card in the same way that solicitation for a charity would mean asking an employee to contribute to a charitable organization or having the employee sign a chance book for such a cause or in the commercial context asking an employee to buy a product or exhibiting the product for him from a book or showing the product. If there were problems concerning an amount of talking being done because of a particular situation and that amount of talking interfered with production, or caused difficulties in the plant, then where such a situation obtained Respondent could promulgate a rule forbidding discussion of that particular item because of the harm it was causing production or the friction leading to violence it was causing employees but it would have to be founded specifically on such circumstances. 166 W. W. GRAINGER, INC. In the instant case however, all we have are invalid no- solicitation rules, no rules against talking, no investigation as to what was said by any of the alleged "solicitators" or by any of those who were solicited, or when or where such "solicitations" took place and a fast seizure on "multiple solicitations" which were thought to make a "flagrant" case in violation of company rules which warranted, according to Respondent discharge of this individual. The word "contact" (which was used by Respondent as a synonym for "soliciting") and the word "soliciting" are not magic words that when coupled with "working time" mean that anything said about a union by an employee provides a valid ground for discipline or discharge. "Soliciting" means something more than was shown here. Since Respondent made no effort to distinguish between "solicitation" for a union on "working time" and talk about unions and in view of the invalid no-solicitation rules, the absence of any investigations or showing of any work disruption (see Daylin Inc., Discount Division d/b/a Miller's Discount Dept. Stores, 198 NLRB 281 (1972), I conclude and find Respondent was enforcing invalid no- solicitation rules and that its warnings to Pace and Talaber and its discharge of Talaber violated Section 8(aX I) and (3) of the Act. 111. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section II, and therein found to constitute unfair labor practices in violation of Section 8(a)(1) and (3) of the Act, occurring in connection with Respondent's business operations as set forth above in section I, 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. IV. THE REMEDY Having found that Respondent engaged in the unfair labor practices set forth above, I recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act as follows: Having found that Respondent discharged Bruce Tala- ber by its actions of June 9, 1975, and did not thereafter offer him reinstatement, I recommend that Respondent offer him immediate and full reinstatement to his former position, or if such position has been abolished or changed in Respondent's operations, then to any substantially similar position without prejudice to his seniority or other rights and privileges and that Respondent make him whole for any loss of pay he may have suffered by reason of Respondent's discriminatory termination by payment to him of a sum equal to that which he would have normally received as wages from June 9, 1975, the date of his termination until Respondent offers him reinstatement, less any net earnings for the interim. Backpay is to be computed on a quarterly basis in the manner established 3 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. by the Board in F. W. Woolworth Company, 90 NLRB 289 (1950), with interest at the rate of 6 percent per annum to be computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). I further recommend that Respondent make available to the Board, upon request, payroll and other records in order to facilitate checking the amounts of backpay due him and any other rights he might be entitled to receive. Having further found that Respondent's no-solicitation rules are invalid and that in enforcing such rules Respon- dent gave warnings both verbal and written to its employees, it is recommended that Respondent rescind its rules prohibiting solicitation during working hours and remove any memorandum or notice of warning given in regard to solicitation from its employees personnel files. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent violated Section 8(aXl) and (3) of the Act by its discriminatory termination of Bruce Talaber because he engaged in union and concerted activities with other employees for the purpose of mutual aid and protection. 3. Respondent violated Section 8(aXl) of the Act by promulgating and enforcing invalid no-solicitation rules. Upon the basis of the foregoing findings of fact, conclusions of law, and the entire record in this proceed- ing, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER3 The Respondent, W. W. Grainger Inc., Niles, Illinois, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discriminatorily terminating employees because they engage in union or concerted activities with other employ- ees for their mutual aid and protection. (b) Promulgating and enforcing invalid no-solicitation rules. (c) In the same or any similar manner interfering with, restraining, or coercing employees in the exercise of rights under Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Make Bruce Talaber whole for the loss of pay he suffered by reason of Respondent's discrimination against him in accordance with the recommendations set forth in the section of this Decision entitled "The Remedy." (b) Revoke and rescind its invalid no-solicitation rules and remove any warnings or memorandum regarding solicitations from its employees' personnel files in accord- ance with the recommendations set forth in the section of this Decision entitled "The Remedy." 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. 167 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) Post at all of its plants, warehouses, and offices copies of the attached notice marked "Appendix." 4 Copies of said notice, on forms provided by the Regional Director for Region 13, after being duly signed by an authorized representative of Respondent, shall be posted by Respon- dent immediately upon receipt thereof and maintained by it for 60 consecutive days thereafter, in conspicuous places, I In the event 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 to a including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 13, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 168