Wayne Home Equipment Co.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Wayne Home Equipment Company, Inc. and Interna- tional Union, Allied Industrial Workers of Ameri- ca, AFL-CIO. Case 25-CA-8068 May 13, 1977 DECISION AND ORDER BY MEMBERS JENKINS, MURPHY, AND WALTHER On December 13, 1976, Administrative Law Judge Bernard Ries issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief and the General Counsel filed a brief in support of the Administrative Law Judge's Decision. Pursuant to the provisions of the 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 conclusionsI of the Administrative Law Judge and to adopt his recommended Order. 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, Wayne Home Equipment Company, Inc., Fort Wayne, Indiana, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. The Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. DECISION STATEMENT OF THE CASE BERNARD RIES, Administrative Law Judge: Pursuant to a charge filed on July 6, 1976, and a complaint issued on August 31, 1976, a hearing was held in this case at Fort Wayne, Indiana, on September 20, 1976. At issue is whether Respondent coercively interrogated an employee on June 24, 1976; whether, in June 1976, Respondent kept under surveillance and gave the impression of surveillance of the union activities of its employees; whether Respon- dent has maintained and enforced unlawful rules relating to solicitation of support for unions and distribution of literature in support of unions; and whether Respondent unlawfully discharged Finley M. Lowe on June 25, 1976. Briefs were received from the parties on or about November 8, 1976. Upon the entire record,' and after due consideration of the briefs filed by the parties, I make the following: FINDINGS OF FACT I. JURISDICTION Respondent, an Indiana corporation, is engaged in the manufacture, sale, and distribution of pumps, components for furnaces, and related products at its principal place of business in Fort Wayne, Indiana. During the year preced- ing issuance of the complaint, a representative period, Respondent manufactured, sold, and distributed at its Fort Wayne facility products valued in excess of $50,000 which were shipped directly from such facility to States other than the State of Indiana, and purchased, transferred, and delivered to its Fort Wayne facility goods and materials valued in excess of $50,000 which were transported directly to such facility from States other than the State of Indiana. The answer to the complaint concedes, and I find, that Respondent is now, and has been at all times material, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 1. THE STATUS OF THE LABOR ORGANIZATION The answer admits, and I find, that International Union, Allied Industrial Workers of America, AFL-CIO, is, and has been at all times material, a labor organization within the meaning of Section 2(5) of the Act. 111. THE FACTUAL SETTING Respondent manufactures oil burners, gas burners, water pumps, and sump pumps. In June 1976, it employed about 280 hourly paid employees, who worked in adjoining buildings separated by a street. Among the departments maintained by Respondent is the service department, which is responsible for repairing and reconditioning equipment returned under warranty and equipment which has been rejected during the production process. In June 1976 there were eight employees in that department. John Mildred, conceded to be a supervisor, was in charge of the service department. Also employed in the department was Cecil Banks, a self-described "working group leader." Finley Lowe, alleged here to be a discriminatee, was one of the three pump repairmen in the service department. Respondent's employees are not represented by a union, although there has been in existence for some time an employee-management committee, referred to as the Council. Prior to June 1976, the company had been the target of intermittent union campaigns. Richard Doak, the plant manager, testified that various unions had been Errors in the transcript have been noted and corrected. 229 NLRB No. 103 654 WAYNE HOME EQUIPMENT COMPANY, INC. passing out literature for what "seems like for 18 months or 2 years." Around the beginning of 1976 the International Union of Operating Engineers conducted an organization- al campaign. That apparently died down and, probably in June 1976, the Allied Industrial Workers began an organizing effort. When Finley Lowe heard about the campaign, he took an active interest in it. Around June 9 or 10, Lowe signed a card for the Union, given to him by fellow employee William Cox, and began distributing cards to other employees. By the time he was discharged on June 25, Lowe had solicited, directly or indirectly, some 36 authorization cards, and had received 29 more cards from Alonzo Jones, an employee to whom Lowe had given a batch of cards. Prior to April 1975, the employee manual in effect at the plant listed 18 rules of conduct, as to which no differentia- tion in terms of gravity was made. A general statement of the penalties attaching to violations of the rules stated that "customarily" a written warning notice would be issued for a first violation, a second violation could result in an I- week layoff, and, upon a third violation, the company "shall have the right" to discharge an employee. One of the rules listed was entitled "Solicitations," and it read as follows: Solicitation of employees and/or distribution of any written or printed matter is not permitted on our premises except by employees during their nonworking time. [The exception does not permit the distribution of written or printed matter in any working area.] In April 1975, in conjunction with the employee committee, management issued a new handbook with a more elaborate system of rules and penalties. Two classes of violations were established. The "Class I Violations" were 17 in number. According to the system, for a violation of a Class I rule, an employee "will be subject" to immediate discharge "without warning." For the "Class II1 Violations," of which there were 21, employees would receive graduated punishment. The more serious Class I violations, including such items as deliberate falsification of records, theft of property, provoking a fight, carrying firearms, immoral conduct, etc., also included two provi- sions relating to solicitation and distribution. Rule 13 reads as follows: Vending, soliciting or collecting contributions for any purpose whatsoever at any time on the premises unless authorized by the Management. Rule 14 reads as follows: Distributing written or printed matter of any descrip- tion on Company premises unless approved by the Management. 2 General Counsel suggests that the rules were in fact made more stringent to combat the ongoing union activity. It might be noted that Class I violation number 15, which proscnbes "immoral conduct or indecency." could be considered to have embraced the pornography problem. It is also of interest that while solicitation and distribution of all kinds without Plant Manager Doak testified (albeit with less than complete certainty) that the rules relating to solicitation and distribution were "tightened up" because of a proliferation of pornography passed out on company premises.2 On June 16, Lowe solicited "working group leader" Banks to sign a card; Banks did so. Banks testified that this occurred while both he and Lowe were working in the service department. Lowe denied that he had solicited Banks or anyone else other than on his free time; as to Banks, he said that the solicitation, "to the best of my knowledge," was done at lunchtime. Lowe seemed a more credible person than Banks, but I was not unimpressed with Banks' demeanor. They both were somewhat shaky in certain areas of testimony. Given the fact that, as Lowe testified, he worked "side by side" with Banks, I am somewhat doubtful about the likelihood that he waited until lunchtime to propose that Banks sign a union card. Either on June 16 or during the following week, according to the mutually corroborative testimony of Lowe and Banks, employee James Staker came into the service department. There was talk about the Union, and Banks suggested that Staker sign a card. Staker said he had already signed one, but Banks, as Banks himself testified, suggested that Staker sign another card. Staker did so and handed the card to Lowe. Around Friday, June 19, Service Department Manager Mildred saw three employees from the service department at a soft drink machine prior to their breaktime. He told them to return to their work station. He also instructed Banks to talk to all the service department employees about leaving their work station prior to breaktime. Banks did so. Beginning the week of Monday, June 21, as Mildred conceded, he spent more time in the service department than he normally does. He explained his increased attention as a product of his desire, spawned by the incident of the preceding Friday, to see if employees were leaving for their breaks or lunch periods earlier than they were entitled to. Probably on Wednesday, June 23, Mildred came into the service department shortly before the afternoon break and noticed that Lowe was absent. He asked Banks where Lowe was, and Banks told him that he did not know. In leaving the department, he noticed Lowe walking toward the other building. He followed Lowe and, according to his testimony, saw Lowe enter the work area of Alonzo Jones. At that time the break whistle had sounded and Mildred did not stage a confrontation with Lowe, but rather went to see another supervisor in the building about some business. He testified that he got involved in other matters and did not return, as he had planned to do, to ascertain on what errand Lowe was about in the other building. permission were designated as Class I violations, such seemingly significant conduct as "threatening intimidating, coercing or interfering with fellow employees," "making false, vicious or malicious statements about any employee, the Company or its products," and "Smoking in 'No SMOKING' areas" were considered lesser offenses, and consigned to Class 11. 655 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Early in the morning of Thursday, June 24, Banks talked to Lynn Durnell, Respondent's production control manag- er and an admitted supervisor. 3 Banks told Durnell that he felt guilty about signing a union card and wanted to confess to having done so. He further told Durnell that Lowe had given him the card. After work had begun on that Thursday, Mildred came into the service department. The department is made up of three separate rooms. It appears that Lowe's work station is in the second room and that the third room is occupied by employees William Cox and Jeff Happel. Mildred testified that when he entered the room in which Cox and Happel worked, he found those two present along with Lowe. He says he saw Lowe about to hand to "another employee" (his testimony is no more definite than this) a white card, about 3 by 5 inches, with printing on it. Mildred said that "upon observing me entering the room, Mr. Lowe quickly withdrew the card and placed it back in his pocket." According to Cox, Mildred told the employes to break it Up.4 Mildred said nothing to them about the white card. Mildred testified that he thought that the "white card" which he allegedly saw was a union card, but he "had no proof at that time." Mildred then went back to his office to look at the employee handbook. He recalled that "there was a rule against passing out.printed matter. . . so I went back to my office to refer to it." After reading rule 14 set out above, he returned to the service department where he encountered Cecil Banks. He testified that he asked Banks if he had ever observed Lowe passing out "printed matter during company time." Banks replied that "he had observed and had received a union card from Mr. Lowe during working hours." Banks further stated that he had signed the card and returned it to Lowe. Banks gave shifting testimony about whether Mildred had in fact asked him if he was aware of any solicitation by Lowe "on company time." At first Banks specifically testified that he did not tell Mildred when he had signed the card-" I didn't tell him what time it was or anything like that ... I didn't say anything to him about [whether it was during working time]. I just told him that I signed a card, and had handed it back to him." On cross-examina- tion, however, he recalled that Mildred had asked him if the transaction had occurred "during working time," and he said he had told Mildred "I think it was." Finally, Banks testified that he was "really not sure that he asked me if it was during working hours or not." 5 Since rule 14 itself makes no reference to "company time," and since Mildred admittedly had to make reference to the employee manual to refresh himself as to the content of the rule, it seems I I arrive at the date of June 24 on the following analysis. Banks signed his card on Wednesday, June 16. He seemed quite positive that he talked to Durnell on a Thursday, but he felt sure that it was not the Thursday immediately following his signing of the card. He said that the confession to Durnell was "quite a while" after he signed the card, and that he "waited a while before I said anything to anybody." However, he also testified that he talked to Durnell before Lowe was fired on June 25. Durnell testified that Banks spoke to him early one morning at the timeclock when Durnell was trying to catch three employees who were thought to be involved in a conspiracy to punch the timecards of the others. Durnell did not give the date of his conversation with Banks, but the record shows that the three employees were discharged on Thursday, June 24. It seems likely, therefore, that the conversation occurred on the latter Thursday. unlikely that Mildred made any reference to "company time." Mildred further testified that Banks told him that he had observed Lowe passing cards to "other people," but he named only Jim Staker. Mildred did not testify as to whether Banks had pinpointed the time, working or nonworking, during which Lowe had handed a card to Staker. Banks testified that he told Mildred about the Staker incident but he did not "remember telling him when it happened or not." Banks further testified that he told Mildred about his own role in having Staker sign a second card, which Mildred did not deny. Mildred was himself possessed of the authority to discharge Lowe, and he testified that, upon the facts he had witnessed and ascertained, he thought that discharge was necessary. However, "due to the fact that a union organizing campaign was in effect in our company, I thought it would be a rather sensitive matter," and he decided to consult with Plant Manager Doak before taking further action. He told Doak, after catching up with him in the late afternoon, that he "had observed what I felt was a violation, and I had had testimony and a witness testify that the company rules, what we call our Class I violations, one of them had been violated, and I thought that disciplinary action was in order." Doak testified that Mildred told him that he had seen Lowe attempt to pass "printed material" earlier in the day, that Banks had said to Mildred that he had been handed a union card by Lowe "during working hours," and that Banks had said that employee Staker had "come back to the department and received a card." The two management officials decided that Lowe should be terminated. Doak did not call in either Lowe or Banks to verify the allegations made by Banks about Lowe. On the following day, June 25, Lowe was called into Doak's office. Mildred was there. According to Lowe, Doak told Lowe that he was going to give him the choice of being discharged or of quitting. When Lowe asked the reason, Doak said it was "for passing out printed literature." Lowe asked about the nature of the literature, and Doak replied that "it don't make any difference, as long as it was printed literature." Lowe then asked about the effect on his unemployment insurance and his pension rights if he quit rather than be discharged, but got no satisfactory answer. He decided to accept a discharge. In discussing the basis for the discharge, Doak said, "I got witnesses, but I am not going to impose on them. I am not going to bring them out." Lowe denied that any reference was made to his having distributed literature "during working hours." Subsequently, however, he testified that he ' Mildred's testimony on this was not very certain. He testified as follows: I just told them to get back to their work stations. Just to get back to work. They were already at their work stations. I don't remember exactly what words I used. Later, however, he testified that as he walked in through the door, the employees "observed me, and dispersed." I Banks' pretrial affidavit states that Mildred had asked if Lowe was passing out printed literature "during working time," and that he had replied that Lowe had given him a card "during working time." 656 WAYNE HOME EQUIPMENT COMPANY, INC. told Doak, "I didn't pass out no literature during work hours whatsoever." He then retracted his testimony, saying that "nobody, as I recall," mentioned "working time during that conversation between [him] and Mr. Doak." Mildred, who professed great difficulty in recalling what was said 3 months before the hearing, testified, "I think Mr. Doak said something about that he had been observed passing out printed matter on company time, and I think he said, I believe now if I recall, Mr. Doak was the one that said, 'We have no choice but to dismiss you.' " Doak did not testify about the discharge interview. At the time of his discharge, Lowe had been employed for slightly over 7 years. He had received a commendation in each of those years for "excellent" attendance. On one occasion he had been issued a written warning for not punching out for the lunch break. Mildred described him as a "relatively steady worker," but "slow." IV. ANALYSIS AND CONCLUSIONS A. The Unlawful No-Solicitation and No- Distribution Rules As stated above, Respondent has maintained at all material times the following prohibitory rules, to which sanctions attached: 13. Vending, soliciting or collecting contributions for any purpose whatsoever at any time on the premises unless authorized by the Management. 14. Distributing written or printed matter of any description on Company premises unless aproved by the Management. Respondent purported to discharge Lowe for violation of rule 14, and Respondent's brief addresses only the validity of that rule. The brief concedes that rule 14 is "too broad." It is equally obvious that rule 13, prohibiting solicitation "at any time on the premises unless authorized by the Management," presumptively abridges the right of employ- ees to solicit for union support on their nonworking time. No showing of any special circumstances justifying the breadth of the two rules was offered. I find that by maintaining, since on or about January 6, 1976,6 the foregoing rules, Respondent has violated Section 8(a)(l) of the Act. Republic Aviation Corporation v. N.LR.B., 324 U.S. 793 (1945); Stoddard-Quirk Manufacturing Co., 138 NLRB 615 (1962); Yellow Cab, Inc., 210 NLRB 568 (1974). B. The Discharge of Finley Lowe Respondent relied on Lowe's alleged violations of rule 14, the no-distribution rule, as the basis for his discharge. In common acceptation, an employee's efforts to obtain signatures on union authorization cards are considered solicitation, rather than distribution of printed matter, but the label applied is a matter of indifference to the issues presented here. In Daylin, Inc., Discount Division d/b/a Miller's Discount Dept. Stores, 198 NLRB 281 (1972), the Board discussed the principles relevant here: The Chairman's dissent is based on a misconception of the statutory right of employees to engage in union solicitation at their place of work. The Act establishes and protects their right to so engage, even during working time, so long as there is no interference with production. Only a substantial business justification, such as a genuine interference with the progress of the work, justifies any restriction on this right of solicita- tion. A no-solicitation rule is presumptively, and only presumptively, valid if it is limited to prohibiting solicitation during the time an employee is expected to be working and not during breaktime, lunchtime, or the like.2 Such a rule is valid because it is presumed to be directed toward, and to have the effect of, preventing interference with production. But where a no-solicitation rule goes beyond these limits, as the present one does, it is an unlawful infringement upon the employees' freedom to solicit their fellow employees for (or against) union represen- tation. The rule in such case can provide no justifica- tion for the discharge of an employee who violated it. Therefore, if an employee is discharged for soliciting in violation of an unlawful rule, the discharge also is unlawful unless the employer can establish that the solicitation interfered with the employee's own work or that of other employees, and that this rather than violation of the rule was the reason for the discharge. As we noted above, no such interference is shown here. Thus the employee has been discharged for engaging in an activity protected by the Act, and the violation is plain. Enforcement of an unlawful rule in this manner is, of course, a separate further interference with employee rights. 2 Where it could be shown from the characteristics of the work that union solicitation during worktime would in no way interfere with performance of the work, for example, Lil Abner's mattress-testing job, a no-solicitation rule of any kind would be invalid. The Chairman's view appears to be that, because the employer may in a presumptively valid way limit solicitation, there can be no interference with employ- ees' rights by discharging them for soliciting on worktime. The correct view, however, is that any prohibition of solicitation, by rule or discipline, interferes with employee rights, and that such interfer- ence must-in the absence of a valid rule-be support- ed by an affirmative showing of impairment of production. Reliance on an invalid rule is, of course, no such showing. Thus, where the employer has in effect no valid rule prohibiting solicitation, he can justify a discharge grounded on the invalid rule only by a showing that there was "genuine interference with the progress of the work" and "that [the interference] rather than violation of the rule was the reason for the discharge." Pretermitting the question of 6 A date mandated by Sec. 10(b) of the Act. 657 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "genuine interference," and giving Respondent the benefit of the doubt on other issues at present, it is apparent that Lowe was not discharged because of any such claimed interference, but rather that "violation of the rule was the reason for the discharge." While Mildred testified that the conversation between Lowe, Cox, and Happel, which he witnessed on June 24, was "obviously disrupting produc- tion," there was no basis for such a conclusion-he was only present for, as he put it, "a matter of seconds" and, as he conceded, "the other two [Cox and Happel] weren't really away from their work stations." 7 According to both Mildred's and Banks' accounts of their June 24 discussion about other solicitations by Lowe, Mildred could not reasonably have had any basis for believing that there had been "genuine" interference with production. That Mil- dred was more interested in enforcing the rule than in protecting the production process is indicated by his testimony that, after he broke in on the discussion between Lowe and the other two men, he returned to his office to ascertain whether there was a "rule against passing out printed matter. I believe that there was that rule, so I went back to my office to refer to it." Mildred further testified that he recommended dismissal of Lowe "for violation of that work rule." Mildred also gave the following testimony: Q. (By Mr. Winkler) You considered that a serious violation, passing printed matter? A. I consider any violation of our rules a serious violation. I don't make up the rules. My job is just to enforce them, and if the rule calls for a dismissal, then it is not within really within my ... Q. You enforce the rules as you seen them? A. Yes sir. It thus appears from the foregoing that "it was the invalid no-distribution rule, not a decision by management that this distribution was interfering with legitimate business or property interests, that was being enforced." Yellow Cab, Inc., 210 NLRB 568, 569 (1974). Furthermore, again construing the evidence most favor- ably to Respondent, there was no basis for Mildred to conclude that there had been any "genuine interference" with production by Lowe. He testified that he saw Lowe begin to hand a card to one of the other employees, but he could not testify that it was a union card and at best the transfer would have taken a few seconds. He said that, when he questioned Banks about other incidents, Banks told him that he had received and signed a union card from Lowe "during working hours." In Essex International, Inc., 211 NLRB 749, 750 (1974), the Board held that that term "is reasonably calculated to" refer to a period encompass- ing the time at which employees begin their work shift until the time they end their work shift, including their free time. There was no reason for Mildred to give Banks' statement other than such a "reasonable" construction. As to the card handed to Staker by Lowe upon the suggestion of Banks, Mildred did not testify that Banks told him when the transaction occurred, and Banks testified that he did not I In fact. Lowe was only one room away from his work station, and his duties often take him into the room in which Mildred found him. s This is the rationale, "cast in terms of orthodox labor law," on which the Court of Appeals for the Sixth Circuit based its affirmance of the "know if I remember telling him when it happened or not, but I told him it happened." Thus, there was no reasonable basis for Mildred to believe that Lowe had caused any substantial impediment of production. But even assuming that Lowe gave a card to Banks on working time, gave a card to Staker on working time, and was about to hand a card to Cox or Happel on working time, the Board, in applying Miller's Discount Dept. Stores, supra, has held that such transitory incidents do not constitute "genuine interference." Boaz Spinning Company, Inc., 210 NLRB 1078, 1081, 1082 (1974) (employee had gone to three working employees and discussed the union and invited them to a meeting); The Singer Company, 220 NLRB 1179 (1975) (one employee "distributed the pam- phlets in a working area during breaktime" and another "distributed the literature in a working area during working time"). Thus far, I have limited my analysis to the rather narrow confines which I conceive to be appropriate under the Board's analytical approach to discipline based on invalid rules set out in Miller's Discount Dept. Stores. However, it is well established that, even in the presence of a valid rule, such discipline may be held violative of Section 8(a)(3) if the record shows that the real reason for the discipline was the nature of the activity rather than the violation of the rule. Where the employer invokes the rule to thwart union organization rather than to serve legitimate business considerations, such conduct is, of course, violative of the Act. Montgomery Ward & Co., Incorporated, 202 NLRB 978, 979 (1973); Hanes Hosiery, Inc., 219 NLRB 338 (1975). 8 I am fully convinced by the record that the discharge of Lowe was actuated by illicit considerations. My assessment of the evidence leads me to believe that Mildred did not, on June 24, stumble onto an act of solicitation. Production Control Manager Durnell testified that, in the early morning of June 24, Banks, expressing guilt, told him that he had signed a union card at Lowe's behest. According to Durnell, he asked Banks to secure a card for him, but he testified that he did not tell Doak or any other member of management about Banks' confes- sion. I do not believe Durnell. He admitted that he asked Banks to get him a card because he "thought it was in the interest of the company to know that there was any soliciting going on in the company of any kind, or whether a union was trying to organize again." It is simply inconceivable to me that Durnell, possessed of such loyalty, did not immediately notify other management representatives of the conduct reported to him by Banks.9 It was this information, I infer, that caused Mildred later that day to fabricate a pretext for institution of an inquiry into Lowe's solicitation activities. I disbelieve Mildred's testimony that he saw Lowe about to hand a card, which he suspected to be a union card, to Cox or Happel. Lowe and Cox denied that any such conduct had occurred; Happel did not testify. Lowe appeared to be an honest witness, but he had, of course, a private interest to serve in this proceeding. Cox apparently had none, and he was a most Board's order in Miller's. The court expressly reserved judgment on the Board's analysis quoted supra. 496 F.2d 484, 489, fn. 3 (1974). 9 Doak seemed to recall some sort of conversation with Durnell about the organizing effort, but could remember no details. 658 WAYNE HOME EQUIPMENT COMPANY, INC. impressive man. The record shows that, in fact, Cox had been the one who had brought to the attention of Lowe that the AIW was organizing, and Cox gave some cards to Lowe around June 9 or 10. Cox signed a card himself thereafter, although he could not recall when. Lowe testified that around the middle of June, on two different occasions, he gave cards to Happel so that Happel could solicit signatures. It seems quite unlikely, therefore, that, on June 24, Lowe would have been handing "a card" to Cox or Happel. I credit the testimony of General Counsel's witnesses that no such attempted transfer of a card occurred on June 24. Mildred, however, needed some such incident in order to rationalize his then talking to Banks about whether he had ever seen Lowe solicit for the Union, a fact which, I have concluded, Mildred had already learned from Durnell. Based on the scant information given him by Banks, Mildred then presented the case to Doak, who agreed that summary discharge was mandated. The record contains further support for my conclusion that the discharge was improperly motivated. It is settled law that an inference of unlawful motive may be derived from disparate treatment accorded employees found to have engaged in union solicitation and those whose other nonproductive use of working time has gone unchallenged. Alberts, Inc., 213 NLRB 686 (1974); Ling Products Company, Inc., 212 NLRB 152 (1974); State Chemical Company, 166 NLRB 455 (1967); N.L R.B. v. Daylin, Inc., supra. Palpable evidence of discrimination exists here. I shall pass over the United Fund collections performed by employees on working time and similar collections for needy or retiring employees, known to and permitted by management. It has been held that isolated "beneficent acts fall far short of establishing forbidden discrimination," Serv-Air, Inc. v. N.LR.B., 395 F.2d 557, 560 (C.A. 10, 1968).10 Accord: The May Department Stores Company, d/b/a Famous-Barr Company, 174 NLRB 770 (1969); Astronautics Corporation of America, 164 NLRB 623 (1967). Aside from the foregoing activities, however, there had been less humanitarian employee use of worktime for nonwork purposes. Avon representatives have solicited and sold freely, and Doak conceded that he has seen Avon literature in the plant; although no management represen- tative admitted to knowledge of such transactions on working time, it seems inconceivable that they would have been completely unnoticed by the supervisory staff. Mildred knew of the "check pool" gambling which had been popular when he was an hourly employee and which "may have been" conducted on worktime. Although Mildred testified that he had not observed check pool collecting by employees since he became part of manage- ment, it is difficult to imagine that management representa- tives were not aware of it. Cf. Ling Products Company, Inc., 0O While the Board, upon remand in Serv-Air, accepted the court's position, it noted that "we do not understand the court of appeals' decision as meaning that a finding of discriminatory application would not be justified even if numerous solicitations for various and sundry social and charitable purposes were allowed, but only as concluding that disparate treatment was not established by the quantum of such incidents shown by the record before it." 175 NLRB 801, 802, fn. 3 (1969). "i Although there was testimony as to a rather elaborate system of voting 212 NLRB 152 (1974) ("it is hard to envision Weber's not being aware of this activity.")"x Lowe testified that he had bought a gun from Doak himself, with Banks as an intermediary, most aspects of the transaction apparently having occurred on working time. Cox credibly testified to a similar occurrence when Banks had attempted, as Doak's agent, to sell a target bow belonging to Doak; Cox found a prospective buyer for the bow; Doak brought the bow to Cox in the service department; Cox gave a check to Banks to give to Doak; and Banks gave the check to Doak, all or most of which, as Cox recalled, occurred during working time. More directly in point is Lowe's testimony, which I credit, that at a meeting of the Council in January 1976 the employees were told that management could not bargain with them while the IUE was organizing. An employee suggested that a petition be circulated in which the employees would indicate that they did not want to be represented by an outside union. Lowe, a member of the Council, testified that he raised a question as to possible supervisory objection to members of the Council going around the plant during worktime and securing signatures on the petitions. One of the management officials stated, "Tell them it is committee business." Thereafter, Lowe collected 23 signatures on the petition, mostly during worktime, and the other committee members similarly collected such signatures. Also closely apposite is an incident which occurred I week before Lowe was discharged. Mildred testified that he saw three service department employees at a soft drink machine prior to lunchtime. He told them to return to their work station. Although such conduct clearly violates at least two of the "Class II Violations," rule 4 ("Wasting time, loafing or taking more time than permissible during break periods and lunch periods") and rule 10 ("Leaving the work station or Company property during working hours without prior permission from Supervisor"), Mildred did not rush to his rule book or issue the written warning which appears to be mandatory under the penalty system for Class II violations ("For violations occurring within the group of Class II rules, the following points will be charged to the employee's personal record: Ist Violation I point (a written warning will be given)"). In attempting to explain his failure to do so, Mildred offered a melange of excuses: there is some "misunderstanding" about when employees can leave their stations, it is possible that the employees could not hear the whistle in their location, the clocks are not always right, "there is a lot of extenuating circumstanc- es," and they "might not have realized what time it was or not quite understood the rules." But Mildred admitted that the employees had offered no such explanations and he apparently had not asked them why they were taking an early break; he simply ordered them to return to work. While Mildred testified that he gave these employees "the for employee members of the Council, involving both a primary and general election on working time, this may well be viewed as falling into the classification of "beneficent" activity, implicating as it does an established arrangement presumably benefiting all the employees. But cf. The Contract Knitter, Inc.. 220 NLRB 558 (1975), where a finding of disparate enforcement was based on the employer's toleration of solicitation for an employee committee during working time. 659 DECISIONS OF NATIONAL LABOR RELATIONS BOARD benefit of the doubt," he gave no convincing explanation of why he did not give Lowe that same benefit, since, prior to Lowe's discharge, he was not asked whether he "under- stood the rules," he was not asked whether Banks' accusations were true, and he was not given the name of his accuser.12 In this connection, the disparate treatment of Banks is particularly interesting. According to Mildred, Banks told him that he had signed a card during working time. Banks testified that he also told Mildred that, when employee Staker had come into the department, he, Banks, had suggested that Staker sign a second card. However, although Mildred thus had reason to believe that Banks as well as Lowe had participated in unauthorized solicitation on worktime, no discipline at all was meted out to Banks. Although Mildred testified that he considers "any violation of our rules a serious violation," Banks, who informed on Lowe, came out of the incident unscathed. The answer to the discrepancy undoubtedly lies in Doak's admission that "I will have to say that probably somebody has mentioned there are suspicioned individuals" thought to have engaged in union activity in the past and that he was "sure" that Lowe's "name would have been brought up" in connection with his prounion bent prior to June 1976. As described above, the record discloses a fair amount of tolerance of nonproductive activity by employees on working time. Viewing the evidence in a light most charitable to Respondent, it shows that when Lowe, an employee with over 7 years' tenure, was discharged, the evidence of Lowe's derelictions known to Respondent was, at best, that: (I) Lowe had been seen attempting to hand an unidentified card to another employee on working time, an incident which could only have taken a few seconds; (2) Mildred had been told by Banks that Lowe had handed him a card "during working hours," which did not clearly establish that Lowe had done so on "working time"; and (3) Banks had told Mildred that Lowe had given a card to employee Staker but had not indicated whether or not this had occurred on Lowe's free time. Against the background of relative latitude toward employee use of working time for nonwork activity, the harsh penalty exacted in Lowe's case-the industrial equivalent of capital punishment- must be viewed as attributable to the nature of Lowe's activities, rather than to the time consumed by them. It is of further significance that after calling Lowe in on June 25 and telling him, according to Lowe's credited testimony, that he was being terminated for passing out literature and that Respondent had witnesses but that it was not going to identify them, Doak said, according to Mildred, "We have no choice but to dismiss you." That is a highly questionable reading of the penalty system. It provides, "For violations occurring within the group of Class I rules, an employee will be subject to immediate discharge WITHOUT WARNING." The rule does not require an immediate discharge, but only makes an employee "subject to" such punishment.'3 The record shows that this was the first occasion on which an employee had been discharged for violation of the no-distribution rule. 12 Mildred testified that Lowe, "having worked with these rules . . . should . . . know them very well." But Mildred, a supervisor, admittedly had to consult the rule book himself. Respondent's conduct here, viewed in total context, inexorably gives rise to an inference that it was motivated to discharge Lowe because he was organizing for the Union, and not because of any legitimate concerns. The analysis employed in Gooch Packing, Inc., 187 NLRB 351, 355 (1970), is apt: "[O]n the basis of hearsay and without any warning, Peeples summarily discharged Villalovos, an employee with an unblemished work record . .. The celerity with which Peeples acted on Lomas' uncorroborat- ed allegation in effecting the immediate discharge of Villalovos, an employee with a satisfactory work record, for a single alleged breach of the no-solicitation rule is in sharp contrast with the treatment accorded Lomas, several months earlier, for admitted thievery on the job." And the incredulity expressed by the court in N.LRB. v. Daylin, Inc., supra at 488, might well have been provoked by the facts of the instant case: "Yet the manager gave no warning about violation of the company rule and there was no consideration of any lesser penalty. We find it difficult to believe that if management had ever seen fit to enforce its no-solicitation rule prior to November 25, 1970, it would have employed automatic discharge for an otherwise satisfactory employee who committed the first offense of soliciting for a charitable bake sale." I find, in sum, that the discharge of Finley Lowe on June 25, 1976, was inspired by a desire to frustrate his organizing activities on behalf of the Union and not by any proper business considerations. The Contract Knitter, Inc., supra, Hanes Hosiery, Inc., supra; Mitsubishi Aircraft International, Inc., 212 NLRB 856 (1974); Gooch Packing, Inc., supra. I would reach the same conclusion even if I were in error in inferring, as I have, that Mildred was told by Durnell what Durnell had learned from Banks on the morning of June 24, and even if I err in my determination that Mildred did not see Lowe attempt to hand a card to another employee later that day. C. The Alleged Interrogation of June 24, 1976 The complaint alleges that Respondent, by Service Department Manager Mildred, "interrogated its employees concerning their own and other employees' Union mem- bership, activities, and desires at its facility" on June 24, 1976. That allegation, it develops, refers to the question put by Mildred to Cecil Banks about whether he had seen Lowe distributing any printed literature. Curiously, the complaint alleges, and the answer denies, that Banks is a supervisor within the meaning of Section 2(11) of the Act, and General Counsel made an effort to establish that status at the hearing. In his brief, General Counsel describes Banks as a "first line supervisor." In its brief, Respondent argues that Banks is not a supervisor. General Counsel cites no case for the proposition that questioning a supervisor about whether he has seen an employee hand out "printed matter" or "union cards" tends to interfere with employee rights guaranteed by Section 7. I see no useful analogy in those cases holding 13 At the hearing, counsel for Respondent phrased a question to Doak as follows: "And a Class I violation calls for discharge, is that right, or it can call for discharge, is that correct?" Doak answered affirmatively. 660 WAYNE HOME EQUIPMENT COMPANY, INC. that, in particular circumstances, discipline of supervisors may interfere with employee rights, 14 nor does General Counsel rely on that line of cases. It does appear to me that Banks is a statutory supervisor. He assigns work to the service department employees; he is the person chiefly in charge of the service department during most of the day; he has, according to Mildred, "authority to bring a situation to my attention" if he believes that discipline is in order, and, depending on the situation, Mildred may accept without question Banks' report on the facts; he is authorized, according to Banks, to sign warning slips if Mildred agrees that they should be issued; in his prior job, as supervisor on the sump pump line, he had an office and a desk and would discuss with employees their attendance problems; he has orally reprimanded employees for leaving for breaks prior to the scheduled time; and when Mildred caught the three employees at the soft drink machine on June 18, he instructed Banks to announce to the employees that they should refrain from such activity, which Banks did (he told the employees that Mildred was "riding my back about them quitting early, and I would like to see it stopped"). Although Banks did sign a union card, the "guilt" which he admittedly felt about that action, causing him to talk to Durnell, strongly bespeaks an ultimate feeling of loyalty toward the management side. Even if interrogating, a supervisor might, depending on the facts, be a violation of the Act. The question put by Mildred to Banks, as to whether he had seen an employee passing out printed matter, would not seem to fall within that category. Accordingly, I recommend dismissal of this allegation of the complaint. D. The Alleged Surveillance and Impression of Surveillance The complaint alleges that Mildred, on June 21, 23, 24, and 25, both kept under surveillance the union activities of the employees and gave the employees the impression that they were the object of such surveillance. Lowe testified that prior to June 21 Mildred's normal routine was to appear in the service department "usually" three times a day for perhaps 10 to 15 minutes at a time. Beginning on the date named, "everytime I turned around, John Mildred was there." Cox testified more temperately that for about "a week to a week and one-half"' prior to Lowe's discharge, Mildred was "down there more often than he was, than he normally had been." Mildred agreed that he appeared in the service department more often during the week beginning June 21 than was normal for him. He explained his increased frequency of appearance as a reaction to his having found employees leaving early for breaks on the preceding Friday, June 18: "I was suspicious or had reason to believe that people were leaving early for breaks within my department. I sort of 14 E.g.. Talladega Cotton Factory, Inc.. 106 NLRB 295 (1953); Better Monkey Grip Company, 115 N LRB 1170 ( 1956): Ebasco Services, Incorporat - ed. 181 NLRB 768 (1970). '5 The testimony is as follows: Q. Now. at the present time, does Mr. Mildred still show up as often in the, in your department as he did before the termination of Mr. Lowe? made a point of coming down during the break time for a couple of days just to, right before the break time, to sort of keep my eye on the situation." Although there is ample ground for suspicion that Respondent was aware of Lowe's energetic support of the union organizing campaign prior to June 24, there is no firm evidence of that fact. Lowe's testimony that Mildred was present beginning June 21 "everytime I turned around" is more dramatic than Cox's testimony that Mildred was "down there more often ... than he normally had been." The reason given by Mildred for increasing his visits to the department is a rational one. Although General Counsel argues on brief that Cox testified that "after the discharge of Lowe, Mildred returned to his normal routine of 2 or 3 visits daily to the service department," Cox's testimony does not so clearly pinpoint the time at which Mildred resumed his former habits.'5 In all, I do not believe that I can properly attribute Mildred's more frequent visits to the service department beginning around June 21 to a desire to keep the union activities of the employees under surveillance or to give them the impression that such activities were under surveillance. The following incident is also alleged to constitute unlawful surveillance. Probably on Wednesday, June 23, Mildred followed Lowe to the building across the street where Lowe had gone to get some parts. Mildred explained this as part of his effort to police the attendance of the employees. He explained that he had been in the service department shortly before breaktime, had seen that Lowe was not present, had asked Banks where Lowe was, had received no satisfactory explanation, had gone out into the hall and noticed Lowe going toward the other building, and had decided to follow him to see whether he was leaving early on a break or was performing his duties.? Lowe confirmed that this incident occurred shortly before breaktime. While I am suspicious about this episode, I again will accept Mildred's explanation for his behavior. Finally, there is the occasion on June 24 when Mildred entered the room in which Lowe, Cox, and Happel were present. By this time, as I have indicated above, it is my belief that Mildred had become aware of Lowe's solicita- tion activities. I cannot say, however, that his merely entering one of the rooms of the service department, which he managed, an act which he engaged in as a matter of routine several times every day, can be construed to constitute illegal surveillance of the union activities of employees. It is possible that somewhere in Mildred's subconscious mind he entertained the possibility of catching Lowe in the act of engaging in union activities, but that prospect could not have seemed very bright at the time. I shall therefore recommend dismissal of this allegation. A. Well, there again, this varies. John is in and out. It is, I would say it is kind of back to normal, really. You know, maybe two, maybe three times a day, depending on what John has to do. 1i Lowe would periodically go to the other building to obtain spare parts. 661 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW 1. Wayne Home Equipment Company, Inc., is an employer engaged in commerce within the meaning of Section 2(2) and (6) of the Act. 2. International Union, Allied Industrial Workers of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By discharging Finley Lowe on June 25, 1976, Respondent violated Section 8(a)(3) and (I) of the Act. 4. By maintaining and enforcing invalid no-solicitation and no-distribution rules, Respondent violated Section 8(a)(1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 6. Respondent has committed no unfair labor practices alleged in the complaint except as set out above. THE REMEDY Having found that Respondent has engaged in unfair labor practices, I shall recommend that it be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent unlawfully discharged Finley Lowe on June 25, 1976, I shall recommend that Respondent be required to offer him immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejduice to his seniority and other rights and privileges, and make him whole for any loss of earnings he may have suffered by reason of the discrimination against him, by payment to him of a sum of money equal to that which he normally would have earned from the aforesaid date of his termination to the date of Respondent's offer of reinstate- ment, less net earnings during such period, computed in accordance with F. W. Woolworth Company, 90 NLRB 289 (1950), with interest as prescribed in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). I shall also recommend that Respondent be restrained from maintaining unlawful no-solicitation and no-distribu- tion rules. Finally, I shall recommend that the customary notices to employees be posted. 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: ORDER 17 The Respondent, Wayne Home Equipment Company, Inc., Fort Wayne, Indiana, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging or otherwise discriminating against employees in regard to their hire, tenure of employment, or other terms and conditions of employment in order to discourage membership in International Union, Allied Industrial Workers of America, AFL-CIO, or any other labor organization. (b) Promulgating, maintaining, enforcing, or applying any rule or regulation prohibiting its employees, when they are on nonworking time, from distributing handbills or similar literature on behalf of any labor organization in nonworking areas of Respondent's premises, or discrimina- torily enforcing any otherwise valid rule pertaining to such activity. (c) Promulgating, maintaining, enforcing, or applying any rule or regulation prohibiting its employees, when they are on nonworking time, from soliciting other employees to support the International Union, Allied Industrial Workers of America, AFL-CIO, or any other labor organization, or discriminatorily enforcing any otherwise valid rule pertain- ing to such activity. (d) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights to self- organization, to form, join, or assist any labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Offer to Finley Lowe immediate and full reinstate- ment to his former or substantially equivalent position, without prejudice to his seniority and other rights and privileges, and make him whole in the manner described 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 payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amounts of backpay due under the terms of this recommended Order. (c) Post at its Fort Wayne, Indiana, facility copies of the attached notice marked "Appendix." 18 Copies of said notice, on forms provided by the Regional Director for Region 25, 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 25, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the allegations in the complaint be dismissed except insofar as specific findings of violations based on those allegations have been made above. 17 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. 18 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 to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 662 WAYNE HOME EQUIPMENT COMPANY, INC. 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 parties had the opportunity to present testimony, the National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post this notice. WE WILL NOT discharge or otherwise discriminate against any employee in regard to his hire, tenure of employment, or any term or condition of employment in order to discourage membership in International Union, Allied Industrial Workers of America, AFL- CIO, or any other labor organization. WE WILL NOT promulgate, maintain, enforce, or apply any rule or regulation prohibiting our employees, when they are on nonworking time, from distributing handbills or similar literature on behalf of any labor organization in nonworking areas of our premises, or prohibiting employees, during nonworking time, from soliciting their fellow employees to join or support any labor organization, or discriminatorily enforce any otherwise valid rule pertaining to such activities. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights under Section 7 of the National Labor Relations Act. WE WILL offer to Finley Lowe immediate reinstate- ment to his former job or, if such job no longer exists, to a substantially equivalent job, without prejudice to his seniority and other rights and privileges, and WE WILL make him whole for any loss of earnings he may have suffered by reason of our unlawful discrimination against him. WAYNE HOME EQUIPMENT COMPANY, INC. 663