E.D.S. Service Corp.

National Labor Relations Board - Board Decisions

Jan 6, 1971

187 N.L.R.B. 698 (N.L.R.B. 1971)

698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
E.D.S. Service Corporation and Myrtle T. Coker.
Case 20-CA-5882
January 6, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On July 30, 1970, Trial Examiner Allen Sinsheimer,
Jr., issued his Decision in the above-entitled proceed-
ing, finding that the Respondent had engaged in and
was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. Thereafter, the
Respondent and the General Counsel filed exceptions
to the Trial Examiner's Decision and briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner, as modified herein.
We agree with the Trial Examiner's finding that
application of the no-solicitation rule to Coker's
union solicitation, while not applying it to the
numerous and extensive instances of solicitation for
other purposes, was clearly disparate and discrimina-
tory. The General Counsel contends, however, that
the Trial Examiner erroneously failed to conclude
that the Respondent thereby violated Section 8(a)(1)
of the Act, and erroneously failed to recommend an
appropriate order. We find merit in this contention.
We, therefore, find the application of the no-solicata-
tion rule to be a violation of Section 8(a)(1), and will
modify the order accordingly.
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 Trial Examiner as modified below and
hereby orders that the Respondent, E.D.S. Service
Corporation, San Francisco, California, its officers,
agents, successors, and assigns, shall take the action
set forth in the Trial Examiner's Recommended
Order, as so modified:
1. Substitute the following for paragraph I of the
Recommended Order:
"1. Cease and desist from:
"(a) Discouraging membership in Freight Checkers,
Clerical Employees and Helpers Union, Local 856,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, or any other
labor organization of its employees, by discriminating
in regard to their hire or tenure of employment or any
term or condition of employment.
"(b) Enforcing a rule against solicitation on working
time, disparately or discriminatorily, for the purpose
of interfering with, restraining, or coercing employees
in the exercise of the rights guaranteed them by
Section 7 of the Act"
2. In footnote 17 of the Trial Examiner's Decision,
substitute "20" for "10" days.
3. Substitute the attached Appendix A for the
Appendix A attached to the Trial Examiner's Deci-
sion.
APPENDIX A
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
We hereby notify our employees that:
WE WILL NOT enforce a rule against solicitation
on working time, disparately or discriminatorily,
for the purpose of interfering with, restraining, or
coercing employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
WE WILL NOT discourage membership in Freight
Checkers, Clerical Employees and Helpers Union,
Local 856, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America, or any other labor organization by
discharging, laying off, or otherwise discriminat-
ing in regard to the hire and tenure of employment,
or any term or condition of employment of our
employees.
WE WILL offer Myrtle Coker immediate and full
reinstatement to her former job, or if that job no
longer exists, to a substantially equivalent position
without prejudice to her seniority or other rights
and privileges.
WE WILL make Myrtle Coker whole for any loss
of wages or any other earnings she may have
suffered as a result of the discrimination against
her.
All our employees are free to become or remain, or
refrain from becoming or remaining, members of the
above-named labor organization, or any other labor
organization.
187 NLRB No. 92
E.D.S. SERVICE CORP. 699
E.D.S. SERVICE
CORPORATION
(Employer)
Dated By
(Representative) (Title)
We will notify immediately the above-named individ-
ual, if presently serving in the Armed Forces of the
United States, of the right to full reinstatement, upon
application after discharge from the Armed Forces, in
accordance with the Selective Service Act and the
Universal Military Training and Service Act.
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's
Office, 450 Golden Gate Avenue, Box 36047, San
Francisco, California 94102, Telephone
415-556-0335.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
ALLEN SINSHEIMER , JR., Trial Examiner : This proceeding
was heard at San Francisco , California , on April 7 and 8,
1970. The complaint issued on February 12, 1970, 1 alleges a
violation of Section 8(a)(3) of the Act by the discharge of
Myrtle T. Coker. The issues will be more fully set forth
hereafter.
Upon the entire record , including observation of the
witnesses and after due consideration of the briefs filed by
the General Counsel and the Respondent , I make the
following: 2
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
herein involved is E.D .S. Service Corporation and the
change of name appears to have no material effect herein.
Based upon the foregoing facts which were stipulated, I
find that the Respondent is engaged in commerce and that
its operations affect commerce within the meaning of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent's answer does not deny the allegation of the
complaint that Freight Checkers, Clerical Employers and
Helpers Union, Local 856, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, herein called the Union, is and has been at all
times material herein , a labor organization within the
meaning of Section 2(5) of the Act. Under the Board' s rules,
the allegation is accordingly admitted and I accordingly
find that said Union is a labor organization within the
meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Issues and Certain Stipulated or Uncontested
Matters
The issue in essence is whether or not Myrtle T. Coker
was properly discharged for violating an alleged rule
respecting solicitation and allegedly interfering with
production. The Respondent asserts that she was. The
General Counsel asserts: (1) that there was no such rule, (2)
that if there were it was discriminatorily applied, and (3)
that evidence as to penalty for other violations reflects
disparate treatment.
The parties stipulated that Ronald R. Simpson, John
McKay, and Rosemarie Tuel were supervisors within the
meaning of the Act . Simpson was San Francisco manager
and chief managerial officer at that location at the time
involved herein. McKay was assistant manager and Tuel
was a swing shift supervisor.
On September 11, 1969, Respondent took over the
operations of California Blue Shield hiring both the
employees and supervisors of that company. There was no
lapse of employment for either category.
E.D.S. Service Corporation, a Texas corporation, with
its principal place of business in Dallas, Texas, is engaged
at its San Francisco, California, location, in data prepara-
tion, services, and supplies. Prior to December 16, 1969, the
legal name of the corporation now known as E.D.S. Service
Corporation was D P. Services Federal Corporation.
During the calendar year 1970, E.D.S. Service Corporation
will receive at its San Francisco, California, location, goods
valued in excess of $50,000 shipped directly to it from
points outside the State of California. I note in the above
connection that the use of the name of the former
corporation apparently is solely in connection with
accuracy of the statement but that the only corporation
i A first amended charge was filed February 9, 1970, and the original
charge on December 16, 1969 An amendment to the complaint was filed
on February 18, 1970 , which corrects the date of termination from
December 11, 1970, to December 11, 1969
2 Respondent filed a motion to correct the record in certain respects
B. The Discharge
Myrtle T. Coker was discharged on the evening of
December 11, 1969, following her solicitations of two
employees to join the Union.
Her personnel action sheet states, "Employee is being
terminated for active solicitation for Union on company
premises on company time." There is some difference in
testimony as to the exact time the solicitations occurred and
some differences in testimony as to events involved and the
decision to terminate Coker. However, there is no question
that the solicitations by Myrtle Coker were for the union on
worktlme, that such was known to all supervisors involved,
No opposition thereto has been filed by the General Counsel I have
examined the record with respect to the changes requested and concluded
that the corrections are proper and should be granted Accordingly, the
motion to correct the record is granted and the transcript of proceedings is
hereby corrected
700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Tuel, McKay, and Simpson, and that Mrs. Coker was
terminated that evening thereafter.
McKay testified that Simpson had mentioned 3 or 4 days
before Coker was terminated that the Union had been
soliciting outside the building and cards were being handed
out, both outside the building, on the 25th floor,3 and
within the work area. No names were mentioned and
according to McKay all Simpson said was that if they saw
any cards being handed out "we were to pick them up if we
could."
On the swing shift of December 11, according to
Supervisor Rosemarie Tuel, Leonfe Salamon, a keypunch
operator, reported to Tuel that she was being bothered by
Myrtle Coker who was trying to have her sign a union card
and she was worried about this affecting her production.
Salamon said this had occurred several times. Tuel
immediately informed McKay in his office of the
occurrence. McKay asked her to bring Salamon in which
Tuel did. About 15 minutes later, Teodora Silan told Tuel
she was tired of being bothered by Mrs. Coker about union
cards. Tuel again went to McKay who asked her to bring
Silan in . Tuel was not present when McKay spoke to either
Salamon or Silan. Tuel, when asked how much time was
involved in Mrs. Coker's conversation with them, said they
told her this had occurred before but Tuel did not respond
as to the time involved in the particular incidents on
December 11. Tuel then saw McKay after Mrs. Silan left.
McKay called Simpson .4 After the call McKay asked her to
get a resignation form and cab voucher from Mrs. Coker.
Up to this point to Tuel's knowledge, Mrs. Coker had not
been invited to speak to McKay. Tuel brought in some
papers and McKay dictated some words to her which she
retyped on the same type of form. Tuel said, McKay did
not directly ask for her recommendation but they talked
about it and "both more or less agreed that it
was-termination was the answer." Tuel said she thought
she asked him if termination was the next step and McKay
replied "yes." At this point he dictated the words that
would be on the resignation form. McKay asked if Mrs
Coker was a good operator and Tuel told McKay she was.
McKay then asked Tuel to bring Mrs. Coker to the office.
McKay who became assistant manager in San Francisco
on December 1, 1969,5 testified that, about 7 p.m. on
December 11, Tuel informed him that Mrs. Salamon had a
complaint about being bothered by Coker as to signing a
union card. He asked Tuel to bring Mrs. Salamon to his
office. Tuel left and McKay spoke to Mrs. Salamon who
told him Mrs. Coker had come to her desk and was
bothering her about signing a union card and that Salamon
3 Apparently in a break or nonwork area
4 Tuel testified as follows concerning what she heard McKay say in his
call to Simpson
Q You don' t have to remember the exact words, the substance,
or whatever you can remember of what he said
A He told them that he had two sworn statements from two
different girls
And approximately what the contents were of them
Q Did he tell them the contents or did he-
A Yeah, he told them that the girls were complaining about
being interrupted during working hours, working time And that it was
about passing union cards during working time
And that he was going to terminate Myrtle Coker or something to
that effect
5 McKay alternated between swing and graveyard shifts and on
said she could not get her production out. McKay asked if
she had been bothered before and Salamon responded she
had been outside by union personnel and on the 25th floor
(a break or nonwork area) by other personnel. I note this
varies from Tuel's more general testimony as to Mrs.
Salamon having been bothered before, which did not
specify either the locale or precisely who was involved.
McKay asked her if she would write a statement relating
the same facts which she did.6
McKay testified that shortly after Mrs. Salamon left,
Mrs. Silan had come to Tuel complaining about being
bothered by Mrs. Coker about signing a union card and he
asked Tuel to bung her. Tuel left and McKay spoke to Silan
who said that "she had been bothered also about signing
union cards and that she did not want to be bothered while
she was working." McKay asked her to make a statement
which she did.7
McKay testified he then asked Tuel to come in and he
"asked her what she thought about these two incidents"
and they talked about them. McKay further
testified". . .she told me that these two girls had been
bothering her and that she felt that Myrtle Coker should be
let go." McKay then testified "I said I would contact Ron
Simpson and talk to him.
McKay called Simpson. Tuel, as previously set forth (fn.
4), was present for the last part of the conversation. McKay
testified he told Simpson he had two sworn statements that
Coker had been bothering the girls on the night shift and
summarized the statements, that this had occurred at the
machines and they had been asked to sign union cards; and
Simpson asked did he have signed statements and did he
have the cards. McKay said he responded "Yes" and
Simpson said "terminate her." They discussed the wording
in the resignation form, what the reason would be, and
Simpson said, "terminate her for union solicitation on
Company premises." Tuel returned at this point. McKay
gave her the information to waste on the form and said he'd
call back after the action was taken. Tuel was instructed to
make sure work at Coker's desk was gathered upon it. A
few minutes thereafter, Coker was brought to his office by
Tuel. McKay asked for her building pass and she couldn't
find it. He handed her the resignation form and said, "You
are being terminated for union solicitation on Company
premises and I'd like you to sign this form . . .. " Coker read it
over and commented, "I've done no more than a dozen other
people." McKay said, "I am talking to you and I am not
talking to anyone else and I'd like you to sign the form."
(Emphasis supplied.) Coker refused to sign and was told her
check would be ready in 24-48 hours. Coker got up and
December I I was on swing shift He had been on that shift only 4 days at
that time Accordingly it would appear that he could not have had
extensive personal knowledge of the over 110 people employed on the same
floor as Coker
6 This statement says
I was working on my machine when Myrtle Coker came & asked if
I sent a union card- I flatly said no-so she gave me one to be filled
out & will mail it for me-I took the card & I'll mail it myself- I told
her-That was around 6 30 P M -Dec 11, 1969
r This statement says
When I'm in my machine punching Myrtle Coker go near Leonie's
machine and as [sic] if she join the Union and Myrtle give the card to
Leome and latter [sic I she ask me if I have one card like Leonie Then
I answer I don ' t have anything like that so Myrtle handed me and [sic]
application card for the Union The time is about 5 30 P M
ED S SERVICE CORP
walked out McKay then called Simpson to tell him there
was no incident when Coker left McKay also testified
Coker was a good worker as he had not had any bad
reports He said that prior to December 11 he had not had
occasion to discuss her work with anyone and had not
received her personnel file prior to his conversation with
Simpson in which Simpson told him to terminate Coker
McKay also testified that Tuel told him that Coker was a
good tape operator when he asked Tuel what kind of an
operator Coker was and added that " any previous
incidents would have been brought up and they were not "
McKay said there was no discussion with Tuel about any
action less than termination McKay also stated that he did
not recommend to Simpson that Coker be terminated but
that Simpson made the decision without his recommenda-
tion
Although McKay and Simpson agreed that Simpson
made the decision to terminate Coker there is some
difference in version as to their conversation that resulted
in Coker's termination Simpson testified that about 9
o'clock in the evening McKay telephoned him at home and
said he had a complaint from two different operators that
Coker had bothered them by trying to get them to sign
union cards when they were working and Coker should
have been working Simpson further testified
He told me that he had talked to both the girls, what
they had said, and told me what he thought should be
done He wanted to clarify it with me at that time
I listened to everything he presented to me and told
me [sic] at this time "yes," to terminate her
Simpson then dictated to McKay the exact wording and
told him to put down the reason for dismissal was "for the
act of solicitation of the Union on a Company premise "
McKay again called later in the evening and said she had
been terminated and he had written statements from the
two women who complained Simpson said he made the
actual decision to terminate Coker and the reason was
The reason being it's interrupting to other employees
while they are trying to work, trying to get them to sign
a union card, and also the period in time when the
person herself, Myrtle Coker-she should have been
working, which she was not
Simpson also said he believed in the initial conversation, he
covered Coker's work record with McKay who had her
personnel record in front of him Simpson added, "I am
generally acquainted with her performance in the past It
had been good She is a good operator " Simpson at one
point said that before making his decision he didn't ask
about Tuel's recommendation At another point, Simpson
said he acted on recommendations of both Tuel and
McKay He said he asked McKay for his recommendation
and McKay said he would terminate her Simpson said he
did not ask how much production time was lost in McKay's
estimation Simpson estimated the length of his conversa-
tion with McKay at about 10 minutes
Simpson also testified concerning customary termination
procedure that he would ordinarily give about 60-percent
8 Some question arose concerning a statement in an affidavit Coker
gave a Board agent which if read literally could make it appear that there
was more to the conversation with Salamon but further examination of
Coker revealed that this referred to another conversation at another time
That such was the case is further supported by Salamon s statement which
701
weight to the swing shift supervisor's recommendation in
cases of termination which recommendation should be
documented by facts, history of employment record
including warnings , if any, etc The remaining 40 percent
involved in effecting a decision would come from the
managers making the decision based on available facts
Simpson said he liked to have a complete file to review
before making ajudgment
Coker testified Salamon sat directly in front of her She
got up from her machine, walked to Salamon's desk, and
said "Here's another card Do not tear this one up," 8 and
that was all she said Coker said Salamon had torn up one
before Coker testified that Salamon had not told her she
did not want to be bothered but took the card and put it in
her purse According to Coker as she walked away Teodora
Silan, who sat next to Salamon looked at her and asked for
a card Coker told her she didn't have any more and walked
back to her desk Subsequently, about 10 minutes later, she
found another card and went to Silan and said "I found
another card," gave her the card, and went back to her
desk Coker placed the time about 7 45, following her break
period which ended at 7 30 I note discrepancies as to time
among various witnesses but so far as the record reflects
these do not appear to have significance in so far as
affecting any material findings or conclusions
Coker's testimony reflects brief conversations with
Salamon and Silan on the evening of December 11 For
reasons set forth in footnote 8, supra, I am crediting her
testimony in this respect McKay had been informed by
Tuel as set forth above In addition he had the statements
executed by Salamon and Silan These do not reflect any
prolonged or extensive interference with production
Simpson testified as set forth that he did not ask how much
production time was lost Accordingly based on all the
foregoing, I find and conclude that Coker's solicitation of
Salamon and Silan did not severely interfere with
production I further find and conclude that any direct
interference with production that may have been involved
was minimal
C The Alleged No-Solicitation Rule
As set forth, E D S and its named predecessor had taken
over operations from Blue Shield on September 11, 1969 At
the time Blue Shield's employees were subject to its rules A
booklet containing the latest rules issued by Blue Shield,
according to Tuel, was distributed to its employees some
time in 1969
One of the rules in the Blue Shield Handbook dealt with
Solicitation and was as follows
Solicitations
There shall be no solicitation of employees on company
premises by any nonemployee for any purpose There
shall be no unauthorized solicitations by employees on
company premises on behalf of any club, society,
religious organization, or political party An employee
shall not solicit on company premises on behalf of a
makes no reference thereto Neither Salamon nor Silan were called as
witnesses Their statements as indicated are brief Based on all the
foregoing and my appraisal of Coker I am crediting her testimony as to
her conversations with Salamon and Sdan on December 11
702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
labor organization while the solicitor or person solicited
is supposed to be working.
Following Coker's termination, in January 1970, the
Respondent issued a no-solicitation rule as follows:
NOTICE TO ALL EMPLOYEES
Based upon long established rules, your attention is
called to the following:
Solicitation of any type by employees during working
time is prohibited.
Distribution of literature of any type or description by
employees during working time is prohibited.
Distribution of literature of any type or description in
working areas is prohibited.
Violation of any of the above rules will result in
immediate disciplinary action including discharge.
The General Counsel claims there was no rule against
solicitation in effect at the time of Coker's discharge.
Simpson testified that in September 1969 he announced to
all employees that the rules of Blue Shield would continue
in effect under Respondent. Tuel corroborated this
testimony. Coker denied hearing such a statement. Without
belaboring the matter of recollection of making assertions
versus recollection of hearing such, both Simpson and Tuel
were definite in their testimony. Also continuance of the
rules was a reasonable action to take until new rules were
adopted. Simpson's testimony in the main appeared
credible and in this instance, where also otherwise
supportable, I am crediting his testimony concerning his
announcement to employees as to continuing effect of the
Blue Shield Rules.
As set forth, Tuel also testified the handbook of rules had
been distributed by Blue Shield to all employees. The
General Counsel argues that this was not sufficient
foundation without production of employees. Tuel had
been a supervisor under Blue Shield. While her testimony
might not establish that every employee actually received a
handbook, it does show general distribution. I am so
crediting her testimony in this respect .9 Coker was vague
about receipt of a handbook such as the one received in
evidence but admitted receiving a "white copy." She could
not recall reading anything about solicitation and testified
she could not recall any occasion in which she was told
employees should not solicit for any cause on company
time . Although the Blue Shield handbooks had been
distributed at some time, this does not reflect that a rule
against solicitation was ever specifically called to anyone's
attention. Simpson testified that except for a general
reference to the Blue Shield handbook,i° when he
announced in September the Blue Shield rules would be in
effect, that he did not specifically call the no-solicitation
rule therein to the attention of the employees. Further, the
record in fact reflects, as shown hereafter, that so far as
would appear, in practice there were no indicated limitations
B The General Counsel contends Tuel's testimony and an affidavit she
gave as to the existence of a no-solicitation rule are contradictory and that
I should conclude therefrom that there was no rule in effect. I have noted
and considered the General Counsel's contentions but am not analyzing
them further herein because (1) I do not believe what Tuel may or may
not have thought would materially affect the promulgation of a rule
on solicitations after E.D.S. took over to the time of Coker's
termination. This evidence is considered next.
D. Application of the Alleged No-Solicitation Rule
Simpson testified that except for the United Fund he had
no knowledge of any solicitations and that was supposed to
be conducted on nonwork time . McKay testified it was his
understanding that all solicitation was prohibited and said
he was unaware that any solicitations were taking place.
However, Tuel and Coker testified otherwise as to the
occurrence of solicitations. Tuel admitted apparently
reluctantly to having knowledge of numerous solicitations
on company premises and time during the period from
September 1969, when E.D.S. took over to December 11,
1969, including one in which she was a principal participant
and which involved a substantial period of worktime. Coker
enlarged on the number of these including those Tuel
participated in with no subsequent denial by Tuel.
More specifically, Tuel testified to a collection for a girl
on day shift whose husband passed away, where the girls
took up a collection for her, a girl on swing shift who was
going to have a baby and for whom they took up a
collection, and also baseball pools. With particular
reference to the World Series in October, Tuel took an
envelope around to each employee and asked if they
wanted to get into a baseball pool. She collected money
from those who did. This took her one-half hour or 40
minutes on worktime. Other betting pools included a check
pool which involved the six-digit number on each check
with the participants playing poker by using five of the
numbers. An envelope was passed around and everyone
who wanted to put in a quarter. Tuel said no one person
was in charge of this which occurred on payday every other
Thursday. These were also on company time . Tuel testified
she guessed there were some football pools but said she
couldn't remember the girls involved. Tuel said the girls
who administered the check pools went around and asked
the other girls at their machines .t they wanted to play and
put their name down. According to Tuel, most of the time
lead operators administered the check pool. Tuel did not
stop any of the pools, nor report them to Simpson. Tuel also
said the United Crusade came around. Tuel also recalled
other collections including buying a ticket at work from a
girl for a church bazaar, purchasing a raffle ticket from a
girl at work which involved a couple of minutes, and buying
a ticket to the Irish Sweepstakes. The latter was initiated in
the office at the assignment control desk where the girls
received their work. Tuel told the girl she would buy a ticket
later in the evening which Tuel did in her office.
Coker testified that she heard Tuel talking to employees
about football games and "She'd have a number of pools on
the sheet that wasn't taken up; and she'd come around,
said, `I've only so many more to go.' " Coker heard her talk
to a number of girls including the girl who answers the
telephone whom Tuel told she bought one for her in the
although her conduct and that of others may have affected its continued
existence or enforcement, and (2) resolution of this contention is
unnecessary to a determination of this case.
10 Simpson asserted he referred to this handbook at an initial meeting in
September . There is contrary testimony . However , I find it unnecessary to
resolve any such conflict herein
E.D.S. SERVICE CORP. 703
name of her grandson . Coker said she saw Tuel "Just going
up and down the aisle to everybody's desk." Tuel asked
Coker specifically if she wanted to buy a ticket to a football
game in November . Apparently with reference to this pool,
Coker said that the soliciting went on during worktime for 3
or 4 hours while it went all over the office . Coker also
testified Tuel had collected for birthday pools and later
turned this regular pool collection over to the telephone
operator to collect . This was 25 cents once a month for a
birthday gift-collected on worktime on payday. Coker
said she contributed to and saw Tuel collecting for check
pools on payday every other Thursday. Coker testified as to
seeing Tuel going about and collecting for these pools.
The foregoing reflects amplification by Coker of Tuel's
part in pool collections . Where there is variance, I am
crediting Coker since Tuel , as a supervisor , was naturally
somewhat reluctant to indicate the full extent of her
participation . This is reflected in her record testimony and
was manifested in expression and attitude in testifying.ll
Accordingly , I find Tuel had been involved in soliciting for
baseball pools, football pools , check pools , and also
birthday pools and that others also participated in such
solicitations and also in solicitations for such matters as
babies, church bazaars, raffles, Irish Sweepstakes, etc.
Obviously , these all took up worktime , some both
regularly and extensively.
E. Penalties for Offenses Generally
The handbook relied on by Respondent for its alleged
no-solicitation rule, supra, also contains a rule as to
termination:
Termination
The company may terminate employees with notice for
unsatisfactory work performance . In some cases,
depending on the seriousness , employees may be
released without notice . Pay may be given in lieu of
notice under certain circumstances . Pay in lieu of notice
generally will not be made in serious cases, or when
repeated warnings have been given.
Testimony was also elicited of Simpson that a large
number of written warnings had been issued to employees.
The majority had been for excessive absenteeism , tardiness,
and low production . McKay said that during his brief
tenure prior to Coker's discharge he had had reason to issue
warnings for attendance problems to five or six employees.
He spoke to each one involved and discussed the problem
with them as one involving loss of production.
Tuel also admittedly told Simpson after Coker 's termina-
tion she had violated the no-solicitation rule. Tuel was
retained but told "There would be no more."
F. Additional Findings and Conclusions
From the foregoing, although it may be arguable whether
or not the rules of Blue Shield applicable to solicitation had
been adopted and continued under E.D.S. and employees
generally notified thereof, I have concluded that the rules of
Blue Shield were continued in effect and the employees
notified to such effect. However, it is clear the no-
solicitation rule was not specifically called to their
attention.12 On the contrary through the numerous
solicitations for various purposes previously set forth,
including particularly those by Supervisor Tuel, which
extensively occurred and would necessarily interfere with
production, it is evident that employees had every reason to
believe there was no no-solicitation rule in force and effect.
Also any claim by Respondent of improper production
interference on the part of Coker through her solicitation is
negated by the extent of unrestricted interference involved
in the soliciting by Tuel (and others with Tuel's knowledge)
during the period from September 11, when E.D.S. took
over, to December 11.13
Accordingly, not only could this conduct be said to estop
Respondent from asserting such a rule but, under the
circumstances, application of a rule to Coker and not the
numerous and extensive other instances of solicitation
clearly was disparate and discriminatory,14 and I so find.
Respondent contends to the contrary that the evidence
does not establish discriminatory enforcement citing Serv-
Air, Inc., 175 NLRB No. 128, in which the Board held that
the circulation of an election petition on working time did
not establish permission where the evidence did not
indicate that this was brought to the attention of
management and in which the Board held that evidence
pertaining to instances of worktime collections for
beneficent purposes (family of deceased employee, hospi-
talized wife, community chest), was insufficient to establish
disparate enforcement of the rule.
The claim of lack of knowledge by higher management
asserted by Respondent is clearly unsupportable where as
set forth one of Respondent's own supervisors, Tuel, was
involved in numerous and various acts of solicitation on
worktime and, in addition, was aware of a substantial
additional number of such solicitations.
As for the number and nature of instances of solicitation
involved, Serv-Air is clearly distinguishable. The number
and extent thereof was small in Serv-Air in contrast to the
numerous and extensive solicitations in the instant case
while the nature of most solicitations occurring herein were
not beneficent but involved lotteries and betting
pools-raffles, sweepstakes, baseball pools, football pools,
check pools, etc. The Serv-Air decision is accordingly
inapropos. Respondent also contends that the General
Counsel has not demonstrated that "the other isolated
instances of solicitation resulted in a corresponding
interference with production" citing Atkins Pickle Compa-
ny, 181 NLRB No. 144. The record herein is replete with
other instances of solicitation as set forth occurring during
a 3-month period September 11 to December 11, and
obviously taking up very substantial amounts of production
time and necessarily materially interfering with production
in contrast with the minimal nature of Coker's solicitation.
11 Tuel while testifying was manifestly not happy about having to
describe these solicitations. This reaction is not surprising and under the
circumstances, while I believe she tried to respond credibly, there appeared
to be some omissions of recollection.
12 As for its validity, there may be some ambiguity and a possible
question as to a provision for authorized permission of solicitation for
certain matters but not union solicitation. For reasons set forth above, it is
unnecessary to pass on the validity thereof.
13 Actually as found the time involved in the interference with
production through the solicitation by Coker was minimal.
14 See H. R. Block, 150 NLRB 341 at 343.
704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The other solicitations , herein , were not isolated but very
numerous and extensive and clearly resulted in a corre-
sponding interference with production. The Atkins Pickle
case is therefore inapplicable.
Finally, Respondent's motivation is further reflected by
the manner and circumstances surrounding and involving
the termination , including the immediacy thereof , conflict
in testimony of supervisors as to who recommended what
action , the fact of Coker admittedly having a good record
with no indication of any derelictions , the failure to
question her as to the solicitation prior to the determination
to terminate her, the fact that the rule had never been
specifically called to the employees' attention , the limited
amount of actual interference with production involved,
and the failure to consider or take lesser action such as
reprimand or suspension in view of Coker 's good record,
which was contrary to action taken in the cases of
attendance , absenteeism , etc., where reprimands had been
given.
It is accordingly clear that Respondent 's asserted basis
for Coker 's termination , namely the solicitations and
interference with production , was pretextual and I so
find . 15 Based on all the foregoing , I find that Coker was not
terminated therefor but because her solicitation was for the
Union . I accordingly further find that her termination was
violative of Section 8(a)(1) and (3) as alleged.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent , set forth in section III,
above, occurring in connection with the operations of
Respondent set forth in section I, above , have a close,
intimate , and substantial relation 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.
V. THE REMEDY
Having found that Respondent discriminated against
Myrtle Coker by discharging her, it will be recommended
that Respondent offer her immediate and full reinstatement
to her former job or, if that job no longer exists, to a
substantially equivalent position , without prejudice to her
seniority or other rights or privileges . It will also be
recommended that Respondent make her whole for any
loss of earnings she may have suffered by reason of the
discrimination against her by payment to her of a sum of
money equal to the amount she normally would have
earned as wages from December 11, 1969, to the date of
Respondent 's offer of reinstatement to her , less her net
earnings during said period . Loss of earnings shall be
computed in accordance with the formula prescribed in
F. W. Woolworth Company, 90 NLRB 289 , and interest at
the rate of 6 percent per annum shall be added to the
backpay computed in the manner set forth in Isis Plumbing
& Heating Co ., 138 NLRB 716. It will also be recommended
that Respondent preserve and make available to the Board
upon request payroll and other records to facilitate
computation of backpay.
Upon the basis of the foregoing findings of fact and upon
the entire record in the case , the Trial Examiner makes the
following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
and in a business affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By discriminating in regard to the hire and tenure of
employment of Myrtle Coker to discourage membership in
a labor organization , Respondent has engaged in and is
engaging in unfair labor practices within the meaning of
Section 8(a)(3) and ( 1) of the Act.
4. The aforesaid unfair labor practice is an unfair labor
practice affecting commerce within the meaning of Section
2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in the case, it
is hereby recommended that Respondent , E.D.S. Service
Corporation:
1. Cease and desist from discouraging membership in
Freight Checkers , Clerical Employers and Helpers Union,
Local 856, International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of America, or
any other labor organization of its employees by discnmi-
nating in regard to their hire and tenure of employment, or
any term or condition of employment.
2 Take the following affirmative action which it is
found will effectuate the policies of the Act:
(a) Offer Myrtle Coker immediate and full reinstatement
to her former job or, if that job no longer exists, to a
substantially equivalent position without prejudice to her
seniority or other rights and privileges.
(b) Make Myrtle Coker whole for any loss of earnings she
may have sustained as a result of the discrimination against
her in the manner proscribed in section V of this Decision
entitled "The Remedy."
(c) Preserve and, upon request, make available to the
Board , for examination and copying, all payroll records,
social security records, timecards, personnel records and
reports, and all other records necessary or useful to an
analysis of the amount of backpay due under the terms of
this Recommended Order.
(d) Notify Coker , if presently serving in the Armed
Forces of the United States, of her right to full reinstate-
ment , upon application , in accordance with the Selective
Service Act and the Universal Military Training and
Service Act, as amended, after discharge from the Armed
Forces.
(f) Post at its place of business located in San Francisco,
15 See Singer Company, 153 NLRB 922 at 924, see also Idaho Potato
Processors, 322 F 2d 573 (C A 9), enfg 137 NLRB 910 And see Wm H
Block Co, In 14, supra
E.D.S. SERVICE CORP. 705
California, copies of the attached notice marked "Appendix
A." 16 [Board's Appendix substituted for Trial Examiner's
Appendix] Copies of said notice to be furnished by the
Regional Director for Region 20, shall, after being duly
signed by an authorized representative of Respondent, be
posted by Respondent, immediately upon receipt thereof
and maintained by it for 60 consecutive days thereafter in
i6 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 , recommendations , 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 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
conspicuous places, 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.
(g) Notify the Regional Director for Region 20, in
writing, within 20 days from the date of this Decision, what
steps Respondent has taken to comply therewith.17
National Labor Relations Board" shall be changed to read "Posted
pursuant to a Judgment of the United States Court of Appeals enforcing
an Order of the National Labor Relations Board "
17 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify the Regional Director for
Region 20 , in writing, within 10 days from the date of this Order, what
steps it has taken to comply herewith "