W. W. Grainger, Inc.

National Labor Relations Board - Board Decisions

Apr 21, 1977

229 N.L.R.B. 161 (N.L.R.B. 1977)

W. W. GRAINGER, INC.
W. W. Grainger, Inc. and Bruce K. Talaber. Case
13-CA-14405
April 21, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND MURPHY
On February 25, 1976, Administrative Law Judge
John M. Dyer issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and the General Counsel filed
an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
and to adopt his recommended Order, as modified
herein.
At all material times, Respondent had in effect
three illegal no-solicitation rules: (1) In February
1975, when W. Winfield Hubley III, Respondent's
director of relations, commenced his job, Respon-
dent had a no-solicitation rule forbidding solicitation
for any purpose anywhere on Respondent's property
without Respondent's written permission; (2) on
March 18 or 19, 1975, Hubley, realizing that the first
rule contained an overly broad proscription, promul-
gated a second rule, as part of Respondent's new
rules of employee conduct, which forbade, inter alia,
solicitation of labor organizations on company
property; and (3) in April 1975, Hubley followed the
second rule with a third rule which forbade soliciting
for any purpose during working hours under penalty
of discharge.
During the first week in April 1975, Nick Boscari-
no and Michael Hansen, brothers-in-law of Bruce K.
Talaber, the Charging Party, who had previously
worked for Respondent and were then working with
the Union, commenced standing outside Respon-
dent's Niles warehouse, soliciting employees to sign
union authorization cards. Both their relationship to
Talaber and their activity were known to Dean Null,
Respondent's Warehouse personnel manager. Tala-
ber handed out union authorization cards at the
I In par. l(c) of his recommended Order. the Administrative Law Judge
failed to use the broad injunctive cease-and-desist language "in any other
manner" which the Board traditionally provides in cases involving serious
8(aX3) discriminatory conduct. See N.LR.B. v. Entwistle Manufacturing
Company, 120 F.2d 532. 536 (C.A. 4, 1941). Accordingly, we shall modify the
recommended Order to require Respondent to cease and desist from in any
other manner infringing on employee rights.
229 NLRB No. 22
plant, talked to employees about the Union, handed
out some union ballpoint pens prior to work, and on
a few occasions discussed the Union or the sched-
uling of a union meeting during working time.2
Respondent admits it had knowledge of Talaber's
union activities.
In April or May 1975, Null told Talaber that he,
Null, had heard that Talaber was soliciting for the
Union on working time; Talaber denied the accusa-
tion and said he was merely telling the employees the
Union was good. Null then told Talaber that if he
caught him soliciting on company time he would be
terminated. That same day Null told employee Pace
that he heard Pace was soliciting for the Union,
which was against company rules, but that Pace
could solicit on his own time. Pace replied that it was
Talaber who was soliciting for the Union. In neither
interview did Null investigate to find out what
Talaber or Pace had said, if anything, and Talaber
and Pace both denied that they had been soliciting.
On June 2, Warehouse Operations Manager
Richard Muller, in charge of the warehouse during
Null's absence, gave Pace a written warning, telling
him, as grounds for the warning, that employee
Chekos had told Muller that Pace had solicited
Chekos when Pace should have been working. Pace
denied the solicitation and told him it was Talaber
who had been soliciting on company time.3 Later
that day, Muller asked Pace whether he had solicited
others. Pace replied that Talaber had solicited him
during the past week as to attendance at a forthcom-
ing union meeting, and that Talaber had also
solicited employees Dublinski and Davis. Pace was
not asked for further details on the alleged solicita-
tions, and in regard to Davis and Dublinski did not
inform Muller as to whether or not the alleged
solicitations occurred on working time. Muller
thereupon wrote up what he felt had transpired
concerning Talaber, showed the document to Pace a
few days later, asked him if it was true, and had him
sign it. The document read as follows:
I was approached during working hours by Bruce
Talaber. My work was interrupted by Talaber's
solicitation activity.
I have brought this to the attention of my
supervisor.
According to both Muller and Pace, no particulars
were requested or given as to whether a solicitation
2 Talaber conceded that while working he made remarks such as
"Support the Union," "The meeting is cancelled," or "There is a meeting
tonight"-remarks which took only a few seconds to make.
3 Pace testified that on one occasion in April Talaber offered him a
union pen during working time, but that he did not mention this to Muller.
He also testified that he merely told Muller, without elaboration, that
Talaber had approached him during working hours.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had taken place or as to the details of the alleged
solicitation of Dublinski and Davis. Muller conceded
that after receiving the signed document he did not
check further to see whether Talaber had been
contacting other employees. When Muller showed
the document to Vice President Lyons, Lyons stated
he felt it was a flagrant case involving multiple
instances of solicitation. The both decided, however,
to sit on the matter until June 9.
On June 9, Talaber, reporting for work, was
ushered into Muller's office. Muller told him he was
being terminated for soliciting on company time.
Talaber denied the accusation and demanded to see
the supportive evidence but was refused. He then left
the plant.
Respondent contends that it disciplined employees
only for soliciting on company time, asserting that
Hubley had explained to the employees the meaning
of its ban against solicitation on working time. The
record does not bear out this assertion. Thus, at the
time of the promulgation of the third no-solicitation
rule, Hubley testified:
it was our clear understanding and intent that the
preclusion of solicitation during working hours
meant during an employee's working time when
he should be working.
When asked whether he instructed management
supervisors to explain what the rule meant, Hubley
replied that when he met with Respondent's manage-
ment groups he instructed them to tell their supervi-
sors what was meant by the rule:
that the no-solicitation rule applied only to
working hours, working time, and that an
employee was protected during lunch periods and
break periods even though we are paying for the
break periods, they were protected.
There is no evidence, however, that the supervisors
ever communicated this interpretation to the employ-
ees as a group, other than individually to Talaber
and Pace in the particular circumstances noted
above. In fact, as the Administrative Law Judge
found:
When Dean Null, the warehouse manager, who
issued the original warnings to Pace and Talaber,
was asked the distinction between "working
hours," "working time," and "company time," he
answered it was all the same thing to him....
4 Saco-Lowell Shops, a Division of Maremont Corporation, 169 NLRB
1090, 1095 (1968), enfd. 405 F.2d 175 (C.A. 4, 1968); Marion Manufacturing
Company, 161 NLRB 55, 61 (1966), enfd. 388 F.2d 306 (C.A. 4, 1968);
Standard Trucking Company, 134 NLRB 371, 374-375 (1961); May
Department Stores Company, a corporation, doing business as Famous-Barr
Respondent relies on its explanations of its no-
solicitation rules to Pace and Talaber in order to
prove that Pace's disciplining and Talaber's dis-
charge were properly motivated. We disagree. It is
clear that Respondent enforced its rules against Pace
and Talaber without significant prior investigation of
their alleged misconduct, with the result that its
representatives, Null and Muller, were unaware of
what offending statements, if any, were made; the
dates of the alleged conversations; the time of day
thereof; whether the conversations caused an inter-
ruption of work; or who initiated them. Furthermore,
Respondent repeatedly refused to divulge to Pace or
Talaber the nature of the allegations against them,
thereby deliberately denying them the opportunity to
explain or deny their alleged conduct.4 In such
circumstances, we find that its disciplinary actions
against Pace and Talaber and its discharge of
Talaber were pretextual actions designed to punish
and, in the case of Talaber, rid itself of known union
adherents without regard to whether they had
violated its rules.5
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge as
modified below and hereby orders that the Respon-
dent, W. W. Grainger, Inc., Niles, Illinois, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order, as so
modified:
1. Substitute the following for paragraph l(c):
"(c) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of the
rights guaranteed them under Section 7 of the Act."
2. Insert the following as paragraphs 2(a) and (b)
and reletter the subsequent paragraphs accordingly:
"(a) Offer Bruce Talaber immediate and full
reinstatement to his former job or, if it no longer
exists, to a substantially equivalent position, without
prejudice to his seniority or other rights and
privileges.
"(b) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this Order."
Company, 59 NLRB 976, 982 (1944), enfd. in relevant part 154 F.2d 533
(C.A. 8, 1946), cert. denied 329 U.S. 725 (1946).
5 In view of this finding we deem it unnecessary to pass upon
Respondent's claim that its explanation to Pace and Talabor of the valid
application of its no-solicitation rule rendered the rule valid as to them.
162
W. W. GRAINGER, INC.
3. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
Following a hearing in which the Company and the
General Counsel of the National Labor Relations
Board participated and offered evidence, it has been
found that we violated the National Labor Relations
Act. We have been ordered to post this notice and to
abide by what we say in this notice.
WE WILL NOT fire employees for engaging in
union or concerted activities with other employ-
ees for their mutual aid and protection.
WE WILL offer Bruce Talaber immediate and
full reinstatement to his former job or, if it no
longer exists, to a substantially equivalent one,
without prejudice to seniority or other rights and
privileges, and reimburse him for the pay he lost
as a result of our action.
WE WILL NOT issue and enforce invalid no-
solicitation rules and will rescind such invalid
rules and remove any notices of warning or
discipline issued pursuant to such rules.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exercise
of the rights guaranteed them under Section 7 of
the Act.
W. W. GRAINGER, INC.
DECISION
STATEMENT OF THE CASE
JOHN M. DYER, Administrative Law Judge: Bruce K.
Talaber filed a charge on June 16, 1975,1 against W. W.
Grainger Inc., herein called Respondent or the Company,
alleging that Respondent had discriminatorily discharged
him on June 9, because of his activities on behalf of Local
714, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, herein called
Local 714 or the Union, in violation of Section 8(aX)() and
(3) of the Act.
The Regional Director of Region 13, issued a complaint
and notice of hearing on August 29, alleging that
Respondent had maintained and enforced three separate
overly broad no-solicitation rules which had interfered with
and coerced the employees and that Respondent had
warned and disciplined certain employees and discharged
Unless specifically stated otherwise all events herein occurred during
1975.
Bruce Talaber for violating these rules, and accordingly
breached Section 8(aX)() and (3) of the Act.
Respondent filed a timely answer, amended at the
hearing in this matter, which admitted the commerce and
jurisdictional factors, the status of the Union and of certain
named personnel, and that it had promulgated and
published the three quoted rules but denied that the rules
were enforced in a manner which violated the Act. While
Respondent admitted issuing warnings to employees
Talaber and Pace concerning "solicitation" and firing
Talaber for "solicitation" it denied that such acts were in
enforcement of the quoted rules or violated the Act.
All parties were afforded full opportunity to appear, to
examine and cross-examine witnesses and to argue orally
at the hearing held in Chicago, Illinois, on December 4,
1975. Briefs from Respondent and the General Counsel
have been received and considered.
The main question in this case is whether Respondent
discharged Talaber for "soliciting for a union" or for
merely talking about a union and if such action was taken
in enforcement of its no-solicitation rules. A supportive
question thus raised is, "What is solicitation?" From the
evidence in this case it seems clear that Respondent
equated talking about a union with "solicitation" and once
it found a "solicitation" violation which it felt was
"flagrant," moved to discharge the main union proponent.
Therefore, it has been found that Respondent promulgated
and enforced overly broad, invalid no-solicitation rules in
violation of Section 8(aX1) of the Act and, by using its
definition of "solicitation," discharged Talaber in violation
of Section 8(aXl) and (3) of the Act.
On the entire record in this case including the exhibits
and testimony and including my evaluation of the
reliability of the witnesses based on the evidence they
produced and their demeanor, I make the following:
FINDINGS OF FACT
1. COMMERCE FINDINGS AND UNION STATUS
W. W. Grainger Inc., is an Illinois corporation with its
principal office and place of business in Niles, Illinois,
where it is engaged in the wholesale distribution of
electrical products. During the past year Respondent
shipped directly to points outside the State, from its Niles,
Illinois, warehouse, goods valued in excess of $50,000.
Respondent admits and I find that it is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
Respondent admits and I find that Local 714, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, is a labor organization within
the meaning of Section 2(5) of the Act.
II. THE UNFAIR LABOR PRACTICES
A. Background and Undisputed Facts
According to the Company's corporate director of
relations, W. Winfield Hubley III, the Company consists of
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
three groups. The first group has 136 warehouse sales office
branches located throughout the United States which stock
and sell the Company's products. There is a manufacturing
group consisting of seven manufacturing locations which
produce the Company's products such as pumps, gears,
reduction assemblies and related products. The third group
consists of two warehouses, one in Bensonville, Illinois,
and the larger consisting of three warehouse areas in Niles,
Illinois. From these warehouses the inventory is distributed
to the branches. Approximately 90 people work in the
Niles warehouses and another 50 in the Bensonville
warehouse. According to Hubley, some of Respondent's
locations are organized, and the Company has experienced
attempts at union organization at various places including
the Niles warehouses over a period of several years.
Hubley testified that, when he began his job with
Respondent in February 1975, the Company had a
document entitled "Personnel Policies" which had become
effective November 20, 1972, and was distributed to
employees when they were hired. This four-page document
which contains employee rules and benefits lists as one of
the rules the following: "Solicitations: Solicitation by an
employee, employees, or others, for any purpose, is
expressly forbidden in any area of the Company's property
at any time without written permission of the personnel
office." Hubley undertook to promulgate a new set of rules
of employee conduct which would be applicable to the
whole company and not just the Chicago area. He stated
that the "no-solicitation" rule quoted above was too broad
and he knew that it was in violation of the National Labor
Relations Board so he endeavored to clarify that problem
by providing a more up-to-date no-solicitation rule. The
new rules of employee conduct were published around
March 18 or 19 and distributed to the employees around
the first part of April according to Hubley. The preamble
of these 45 rules states that they set forth misconduct which
is detrimental to the well being of all and that commission
of such acts will result in appropriate disciplinary action.
Rule 30 states: "Soliciting, canvassing, selling, or distrib-
uting goods or printed materials on company property.
This applies to social, charitable, political, labor, religious,
fraternal or other organizations."
According to Hubley, in February, when he began with
the Company, there were organizational activities going on
throughout the organization and specifically in California
and he wanted to post a clear no-solicitation rule and
issued the following to all units of the Company in April:
"Soliciting for any purpose during working hours is
prohibited. Appropriate discipline, up to and including
discharge, will be taken should this rule be violated."
Regarding this rule which was to be posted on all company
bulletin boards, Hubley said that it was, "Our clear
understanding and intent that the preclusion of solicitation
during working hours meant during an employee's working
time when he should be working."
General Counsel's witnesses would reverse the order of
issuance of these last two rules and place them as being
issued in April or May.
Nick Boscarino and Michael Hansen had both worked at
Respondent, left the Company's employ and were working
with the Union in the spring of 1975. Bruce Talaber who
began working with Respondent on April 23, 1973, is
related to both men, and this fact was known by the
Company as Warehouse Personnel Manager Dean Null
admitted. Either late in March or early April Boscarino
and Hansen stood in front of the company warehouses and
passed out authorization cards to employees entering or
leaving.
B. Events Culminating in Talaber's Discharge
Bruce Talaber was classified as a utility man which
means that he was trained for all the positions in the
company warehouse and could fill in at any spot including
the jobs of loaders, trailer loaders, unloaders, order pickers,
stockkeepers, checkers, and equipment drivers.
Talaber testified that he gave out union authorization
cards to some of the employees at the plant but that most
of his contacts were from his home at night and some were
before or after work hours, during lunchtime or during
breaks. He stated that he talked to employees about the
Union and on a few occasions talked to employees
concerning the Union or a union meeting during working
time. Talaber remembered speaking to Walter Pace,
Dublinski, Rick Davis, and Watts and gave authorization
cards to Pace, Watts, and a few others and gave Pace some
ballpoint pens imprinted with a union slogan in early April
prior to work. Prior to May, Talaber rode to work with
Dublinski at least twice a week and during such rides they
discussed the Union and with other employees would
discuss the Union or other topics in the breakroom before
starting work.
On April 11, according to Warehouse Personnel Manag-
er Dean Null and on either May 9 or 16 according to
Talaber, Null told Talaber he had been told that Talaber
was "soliciting for the Union" while he was supposed to be
working. Talaber denied it saying that all he had done was
tell the employees that the Union was good. Null said he
did not care who was lying but if he caught Talaber
soliciting for the Union on company time he would be
terminated. Talaber said he told Null that the main reason
he called him in was because his brothers-in-law had been
outside distributing union cards. Null denied that Talaber
had said this to him. Talaber said he would not do
anything on company time.
Later the same day Null summoned Walter Pace for a
meeting and told Pace he had heard that Pace had been
"soliciting for the Union" and that was against the
Company's rules but that Pace could solicit on his own
time.
Pace testified he told Null that Talaber was the one who
was soliciting for the Union and was the main man for
Local 714. Null did not deny that Pace told him Talaber
had been soliciting for the Union but said he did not
believe Pace told him that Talaber was the one pushing the
Union.
On June 2, Warehouse Operations Manager Richard
Muller, who was in charge of the warehouse during Null's
164
W. W. GRAINGER, INC.
absence on vacation, met with Walter Pace and gave him a
written warning.2 Muller stated that an employee named
Chekos had told him that Pace had solicited him when
Pace should have been working and based on this report
Muller prepared and gave Pace the written warning.
Pace testified that Muller handed him the written
warning and asked him to sign it saying Pace had been
soliciting on company time. Pace denied it and Muller said
he had witnesses and again asked Pace to sign the written
warning. Pace told Muller that Talaber had been soliciting
on company time. Pace's testimony is a bit confused at this
point, but indicates that he did not give Muller any
specifics about any Talaber solicitation and was not asked
for any details not even when it happened. He testified that
he had in mind the time that Talaber had given him a pen
in April which he placed as while working.
Muller testified that he came back to Pace later that
same day and wanted to know whether Talaber had
solicited others. According to Muller, Pace said that
Talaber "had solicited him the prior week in regards to a
meeting that they were going to have in June" and that
among others Talaber had solicited Dublinski and Davis.
Muller said he wanted to get "written documentation" and
that "I wrote up what I felt had transpired concerning
Bruce" showed it to Pace on the following Wednesday,
asked him if it was true and Pace signed it. This document
reads as follows:
I WAS APPROACHED DURING WORKING HOURS BY BRUCE
TALABER. MY WORK WAS INTERRUPTED BY TALABER'S
SOLICITATION ACTIVITY.
I HAVE BROUGHT THIS TO THE ATTENTION OF MY
SUPERVISOR
Although the top of the document is dated "6/4/75,"
under Pace's signature are the initials of Messers Lyons
and Palluth and the date of "6/6/75."
According to Pace, Muller came to him a few days after
the written warning took a paper out of a portfolio gave it
to him and asked him to read it and sign it. Apparently
there was practically no conversation concerning this
document and Pace was not asked for any further
particulars as to when such a "solicitation" had taken
place. Pace did not tell Muller when Talaber had spoken to
Dublinski, and Davis and Muller did not ask if such had
occurred during working time.
Muller stated that after receiving the "written documen-
tation" from Pace he had not checked to see whether
Talaber "had been contacting other employees." Muller
reported the incident to Vice President Lyons and
apparently from the document's initials it was given to
Lyons. According to Muller, Lyons said he felt it was a
flagrant case involving multiple instances of solicitation
and Muller said he thought Talaber should be fired.
Together they decided to sit on it until Monday, June 9.
2 The warning signed by Pace and Muller on June 2 is as follows:
YOU WERE ISSUED A VERBAL WARNING ON 4/11/75 FOR SOLICITING
DURING WORKING HOURS. SINCE YOU HAVE CONTINUED TO SOLICIT
DURING WORKING HOURS, IN SPITE OF THE PRIOR WARNING, THIS
WRITTEN WARNING IS BEING ISSUED.
On Monday, June 9, before signing in, Foreman
Galbreath took Talaber to Muller's office. Muller told
Talaber he was being terminated for soliciting for a union
and they had evidence in the Company's files that he was
soliciting on company time. Talaber denied it and asked to
see the evidence in the files. He was told he could not see it
and was escorted out to get his belongings and left. On the
following day Talaber called Vice President Lyons and
asked if Lyons had heard what had happened to him and
asked for his job back. Lyons said he would think about it
and to call back later. Talaber asked if he could come see
Lyons, and Lyons agreed. On June 12 he went to the plant
and met with Lyons who told him they were not going to
take him back and that the Union had used him as a pawn.
Talaber denied that he had told Lyons that the Union had
used him as a pawn.
C. Positions and Conclusions
In its brief Respondent concedes that the three different
no-solicitation rules are presumptively invalid due to the
language used, but claims that the rules became valid
because it applied them in a valid way and communicated
such to the employees. Respondent claims that it discip-
lined employees only where someone was soliciting on
working time. The brief claims that Director of Relations
Hubley explained to the Niles warehouse employees that
working hours as employed in its rules meant worktime
and that only worktime solicitation was proscribed and
cited certain portions of the transcript in this proceeding as
the basis for this claim. However, the cited portions of the
transcript do not back up this statement. Hubley, concern-
ing his talks with the employees, did not claim that at any
time he ever explained to them the difference between
working hours and working time nor was there any
evidence that any other management representative had
done so. Hubley did state that he had explained this
difference to the heads of the various departments but
nothing further than this was claimed. Here the rules were
not made known to the employees in general although the
distinction between working hours and working time was
made known to Pace and Talaber when they were verbally
warned for "soliciting" on company time. Employees need
to know what the rules are if they are to be guided by them.
If they are not informed that the rules are being enforced in
a different manner from which they are written then they
are being misled in that they can only know that the invalid
rules are in force.
Respondent relies on Essex International, Inc., 211
NLRB 749 (1974), in claiming that its rules were made
valid by application. However, the facts in that case (a
representation proceeding) are different from those in the
instant case. In Essex the Board found that the company
had three rules concerning solicitation and that two of
them said that solicitation would not be allowed during
"working time" and one of the rules used the words
"working hours." The Board found that the "working
SHOULD YOU VIOLATE THE SOUCITATION RULE AGAIN YOU WILL BE
DISCHARGED.
165
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hours" rule was prima facie invalid and to overturn the
prima facie invalidity would take extrinsic evidence to
demonstrate that a "working time" concept of the rule was
communicated to the employees or that the rule was
applied in a "working time" way as to make it clear. The
Board went on in Essex to find that the "working time"
concept had been explained to the employees and that the
"working hours" rule was shown not to have been applied
whereas the two "working time" rules were known to the
employees as the valid rules and understood by them as the
rules which governed their conduct. In its explanation the
Board said it was necessary that the employees understood
the rule, but did not say that if an employee or two knew
the rule, that such was sufficient.
When Dean Null, the warehouse personnel manager who
issued the original warnings to Pace and Talaber, was
asked the distinction between "working hours," "working
time" and "company time," he answered it was all the
same thing to him. Such a response does not make it clear
that the distinctions were crystalized in the minds of
Respondent's officials, much less the employees who had
received no explanation.
Respondent's brief claims that Talaber admitted "solicit-
ing" and gave four citations to the transcript of this
hearing. In each of these references, Talaber admitted
talking to other employees concerning the Union but did
not say that he had "solicited" any employees. Talaber said
he made remarks such as "support the union," "the
meeting is cancelled," or "there is a meeting tonight" to
employees during working hours but said that was all he
said to employees during "working time."
In Null's interviews with both Talaber and Pace in April
or May when he warned them verbally about "soliciting"
Null did not investigate to find out what Talaber or Pace
had said and Talaber and Pace both denied that they had
been "soliciting."
Muller said he had received a complaint from an
employee named Chekos who said that Pace had "solic-
ited" him when Pace should have been working and on
such a claim and without any further investigation issued a
written warning to Pace. Pressed about Chekos' statement
Muller said the "solicitation" had to do with a union
meeting and that Pace had told Chekos about a union
meeting.
With this written second warning hanging over him, Pace
told Muller, according to Muller that Talaber had
"solicited him the prior week in regards to a meeting that
they were going to have in June," and Muller then had
Pace give him "written documentation" which was his
evidence in discharging Talaber for "flagrant multiple
violations." This "violation" was not investigated beyond
the written statement signed by Pace.
Later in his testimony Muller was asked whether there
were any restrictions as to what employees discussed as
long as they continued to work and answered: "No. All of
us, the employees and management, we have all discussed
a wide range of subjects. Baseball, sex, whatever you
want." Then to a leading question "So long as it does not
interfere with your work?" Muller answered "that's right.
Yes."
During cross-examination Muller was asked whether
that freedom to discuss while working included discussion
of unions and his immediate answer was "Not according to
our work rules, no. It does not include . ." and his answer
was broken by an objection by Respondent's counsel. After
some further record discussion and another question,
Muller refined his answer and stated that the freedom to
talk included union activities "within limits" and in a
"narrow sense." He defined these terms by saying that if
the discussion was not active solicitation which he said
meant "a request of some sort, a request of some
performance, which of course, would be going beyond the
limits of general conversation."
Pace did not remember giving any particulars to Null or
Muller about any "solicitation" when he spoke to them
about Talaber's activities. Certainly it should have been
clear to both Null and Muller that Pace was on a spot for
what he was told was his "solicitation" and sought to
ingratiate himself with Respondent by offering Talaber to
them. Respondent did not check with Talaber as to what
had transpired, but seized on this statement by Pace and
according to Muller, "So I wrote up what I felt had
transpired concerning Bruce [Talaber]," showed it to Pace
and had him sign it.
In this regard Respondent was going against what
Hubley said was the norm where there were serious
violations of the company rules. According to Hubley,
when he discussed the 45 new rules of conduct with the
employees, Respondent was mainly interested in attend-
ance and Hubley laid out what he said was a four-step
procedure leading up to discharge for employees who
continued to violate the attendance rules. He also spoke
about the other rules and said that violation of the rules
would bring discipline according to the seriousness of those
rules and in regard to serious rules there would first be a
written warning so that the employee would know exactly
what it was he had done and if it continued that he would
then be discharged. Since Respondent apparently consid-
ered solicitation a serious rule, we have the situation where
a written warning was given to Pace but none was ever
given to Talaber.
It should be clear that "solicitation" for a union is not
the same thing as talking about a union or a union meeting
or whether a union is good or bad. "Solicitation" for a
union usually means asking someone to join the union by
signing his name to an authorization card in the same way
that solicitation for a charity would mean asking an
employee to contribute to a charitable organization or
having the employee sign a chance book for such a cause or
in the commercial context asking an employee to buy a
product or exhibiting the product for him from a book or
showing the product.
If there were problems concerning an amount of talking
being done because of a particular situation and that
amount of talking interfered with production, or caused
difficulties in the plant, then where such a situation
obtained Respondent could promulgate a rule forbidding
discussion of that particular item because of the harm it
was causing production or the friction leading to violence it
was causing employees but it would have to be founded
specifically on such circumstances.
166
W. W. GRAINGER, INC.
In the instant case however, all we have are invalid no-
solicitation rules, no rules against talking, no investigation
as to what was said by any of the alleged "solicitators" or
by any of those who were solicited, or when or where such
"solicitations" took place and a fast seizure on "multiple
solicitations" which were thought to make a "flagrant" case
in violation of company rules which warranted, according
to Respondent discharge of this individual. The word
"contact" (which was used by Respondent as a synonym
for "soliciting") and the word "soliciting" are not magic
words that when coupled with "working time" mean that
anything said about a union by an employee provides a
valid ground for discipline or discharge. "Soliciting" means
something more than was shown here.
Since Respondent made no effort to distinguish between
"solicitation" for a union on "working time" and talk
about unions and in view of the invalid no-solicitation
rules, the absence of any investigations or showing of any
work disruption (see Daylin Inc., Discount Division d/b/a
Miller's Discount Dept. Stores, 198 NLRB 281 (1972), I
conclude and find Respondent was enforcing invalid no-
solicitation rules and that its warnings to Pace and Talaber
and its discharge of Talaber violated Section 8(aX I) and (3)
of the Act.
111. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section II, and
therein found to constitute unfair labor practices in
violation of Section 8(a)(1) and (3) of the Act, occurring in
connection with Respondent's business operations as set
forth above in section I, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
IV. THE REMEDY
Having found that Respondent engaged in the unfair
labor practices set forth above, I recommend that it cease
and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act as follows:
Having found that Respondent discharged Bruce Tala-
ber by its actions of June 9, 1975, and did not thereafter
offer him reinstatement, I recommend that Respondent
offer him immediate and full reinstatement to his former
position, or if such position has been abolished or changed
in Respondent's operations, then to any substantially
similar position without prejudice to his seniority or other
rights and privileges and that Respondent make him whole
for any loss of pay he may have suffered by reason of
Respondent's discriminatory termination by payment to
him of a sum equal to that which he would have normally
received as wages from June 9, 1975, the date of his
termination until Respondent offers him reinstatement, less
any net earnings for the interim. Backpay is to be
computed on a quarterly basis in the manner established
3 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
by the Board in F. W. Woolworth Company, 90 NLRB 289
(1950), with interest at the rate of 6 percent per annum to
be computed in the manner set forth in Isis Plumbing &
Heating Co., 138 NLRB 716 (1962). I further recommend
that Respondent make available to the Board, upon
request, payroll and other records in order to facilitate
checking the amounts of backpay due him and any other
rights he might be entitled to receive.
Having further found that Respondent's no-solicitation
rules are invalid and that in enforcing such rules Respon-
dent gave warnings both verbal and written to its
employees, it is recommended that Respondent rescind its
rules prohibiting solicitation during working hours and
remove any memorandum or notice of warning given in
regard to solicitation from its employees personnel files.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Respondent violated Section 8(aXl) and (3) of the
Act by its discriminatory termination of Bruce Talaber
because he engaged in union and concerted activities with
other employees for the purpose of mutual aid and
protection.
3. Respondent violated Section 8(aXl) of the Act by
promulgating and enforcing invalid no-solicitation rules.
Upon the basis of the foregoing findings of fact,
conclusions of law, and the entire record in this proceed-
ing, and pursuant to Section 10(c) of the Act, I hereby issue
the following recommended:
ORDER3
The Respondent, W. W. Grainger Inc., Niles, Illinois, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discriminatorily terminating employees because they
engage in union or concerted activities with other employ-
ees for their mutual aid and protection.
(b) Promulgating and enforcing invalid no-solicitation
rules.
(c) In the same or any similar manner interfering with,
restraining, or coercing employees in the exercise of rights
under Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Make Bruce Talaber whole for the loss of pay he
suffered by reason of Respondent's discrimination against
him in accordance with the recommendations set forth in
the section of this Decision entitled "The Remedy."
(b) Revoke and rescind its invalid no-solicitation rules
and remove any warnings or memorandum regarding
solicitations from its employees' personnel files in accord-
ance with the recommendations set forth in the section of
this Decision entitled "The Remedy."
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
167
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Post at all of its plants, warehouses, and offices copies
of the attached notice marked "Appendix." 4 Copies of said
notice, on forms provided by the Regional Director for
Region 13, after being duly signed by an authorized
representative of Respondent, shall be posted by Respon-
dent immediately upon receipt thereof and maintained by
it for 60 consecutive days thereafter, in conspicuous places,
I In the event the Board's Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 13, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
168