WIPO, Inc.

National Labor Relations Board - Board Decisions

Oct 11, 1972

199 N.L.R.B. 649 (N.L.R.B. 1972)

WIPO, INC. 649
WIPO, Inc. and National Council of Distributive
Workers of America . Case 10-CA-9278
October 11, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING AND
JENKINS
On April 12, 1972, Trial Examiner Nancy M.
Sherman issued the attached Decision in this proceed-
ing. Thereafter, Respondent and General Counsel
filed exceptions and supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the
Trial Examiner's Decision in light of the exceptions
and briefs and has decided to affirm the Trial
Examiner's rulings, findings , and conclusions and to
adopt her recommended Order with the following
modifications.
Contrary to the Trial Examiner, we find that
Respondent's actions in posting, promulgating, and
maintaining a no-solicitation rule, which failed to ad-
vise employees with sufficient clarity when they may
solicit for the Union and when they may not, were
violative of Section 8(a)(1) of the Act. In reaching this
conclusion we note that the posted rule prohibiting
solicitations of any kind "on company time on com-
pany property," might reasonably be interpreted by
an employee as prohibiting union solicitation during
nonworking time.' We shall therefore amend the Trial
Examiner's recommended Order and notice to em-
ployees accordingly.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Trial Examiner as modified below and
hereby orders that Respondent, WIPO, Inc., Colum-
bus, Georgia , its officers , agents , successors, and as-
signs, shall take the action set forth in the Trial
Examiner's recommended Order, as so modified:
1. Insert the following as subparagraph 1(a) and
reletter paragraphs 1(a) and (b) as 1(b) and (c):
"(a) Promulgating, maintaining, or enforcing no-
solicitation rules prohibiting employees during non-
working time from soliciting for the Union on
Respondent's property."
2. Substitute the attached notice for the Trial
Examiner's notice.
CHAIRMAN MILLER, dissenting in part:
I dissent only with respect to the reversal of the
Trial Examiner's finding that the no-solicitation rule
was a valid rule. She cited Board and court cases
which are squarely in point and which fully support
her conclusion.
My colleagues say the cases she cites are "inap-
posite." That is simply not true.
In Universal Cigar, for example, 173 NLRB 865,
relied on by the Trial Examiner, this Board agreed, at
865, with a Trial Examiner's finding that a rule pro-
hibiting solicitation "on company time" was a valid
rule.
How that case can be deemed "inapposite" es-
capes me.
I would affirm the Trial Examiner's Decision in
its entirety.
i Southern Electronics Co, Inc., 175 NLRB 69, 72. In reaching our conclu-
sion we find that the cases relied upon by the Trial Examiner in finding the
rule valid on its face are inapposite . See TXD, In. 23 . Moreover, contrary to
our dissenting colleague, in Universal Cigar Corporation, 173 NLRB 865, the
Board was not called upon to pass upon the validity of the no-solicitation
rule there involved, since the gravamen of the 8(a)(3) complaint was the
disparate enforcement of the rule with respect to the discharge of a named
employee. Accordingly, the Board , in finding the violation, did not need to
pass upon the validity of the rule itself . Indeed, as the General Counsel had
conceded the validity of the rule , and its validity was therefore not litigated,
the Board was not free to pass upon the rule
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial in which all parties had the opportunity
to present their evidence, it has been decided that we
violated the law and we have been ordered to post this
notice. We intend to carry out the order of the Board
and abide by the following:
WE WILL NOT promulgate , maintain, or en-
force no-solicitation rules prohibiting solicitation
on behalf of the Union during nonworking time
on our property.
WE WILL NOT discharge or otherwise discrim-
inate against employees because of union activi-
ties by them or by their kin.
WE WILL offer James W. Brown immediate
and full reinstatement with backpay.
Our employees are free to join or assist Na-
tional Council of Distributive Workers of Ameri-
ca, or any other union, and to engage in union
activities for their mutual aid or protection.
WE WILL NOT interfere with, restrain, or
coerce employees in the exercise of these rights.
199 NLRB No. 11
650
Dated By
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WIPO, INC.
(Employer)
(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 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Room 701, Peachtree Building, 730
Peachtree Street, NE., Atlanta, Georgia 30308, Tele-
phone 404-526-5760.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
NANCY M. SHERMAN, Trial Examiner: This proceeding,
heard at Columbus, Georgia, on February 15, 1972, pur-
suant to a charge filed on November 2, 1971, and a com-
plaint issued on January 4, 1972, presents the questions: (1)
whether Respondent violated Section 8(a)(1) of the Na-
tional Labor Relations Act, as amended (herein called the
Act) by posting, promulgating and maintaining a rule
forbidding solicitation "for any purpose and of any nature
... on company time on company property"; and (2) wheth-
er Respondent's discharge of employee James W. Brown on
October 20, 1971, was motivated by his own and his wife's
activity on behalf of the Charging Party, herein called the
Union, and therefore, violated Section 8(a)(3) and (1) of the
Act.
Upon the entire record, including my observation of
the demeanor of the witnesses , and after due consideration
of the briefs filed by the General Counsel and the Respon-
dent, I make the following:
FINDINGS OF FACT
1. THE RESPONDENTS BUSINESS AND
THE LABOR ORGANIZATION INVOLVED
Respondent is a Georgia corporation, with its principal
office and place of business located at Columbus, Georgia,
where it manufactures and sells industrial towels. It annual-
ly sells and ships directly to customers outside Georgia
products valued in excess of $50,000. Upon these facts I find
that, as Respondent admits, it is engaged in commerce with-
in the meaning of Section 2(6) and (7) of the Act, and that
assertion of jurisdiction over such operations will effectuate
the policies of the Act. National Council of Distributive
Workers of America, the Charging Party, is a labor organi-
zation within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Sequence of Events;
the No-Solicitation Rule
Union activity among the employees here involved was
in progress by May 1971.' J. L. Gore, who was on
Respondent's payroll, attended union meetings, obtained
signatures on a few union cards, and was subsequently
elected shop steward. During his break period in May or
June, en route back to his work place after making a pur-
chase at a drink machine elsewhere in the plant, Gore stop-
ped in the sewing room to converse with a female employee.
Employee Junior Ponder (who was working at that time)
then joined the conversation. Franklin Hopkins, admittedly
a supervisor, came up and told Ponder to get back to work
or be fired, that Hopkins did not want him talking to
anybody that-had anything to do with the Union. Hopkins
also told Gore that he had a gun out in the car. At some later
time, Gore went to Hopkins and told him that "we was not
discussing anything about the Union whatsoever, and I
didn't think he had any right to even make a remark like
that."2
On June 25, Respondent posted the following notice to
its employees:
No solicitation for any purpose and of any nature is
allowed on company time on company property.
Each of the employees individually also received a copy of
this rule. There is no evidence that Respondent had ever
previously promulgated a rule forbidding solicitation on
company time or property.3 Before this rule was posted,
company personnel had, to management 's knowledge, en-
gaged in various kinds of commercial solicitation on compa-
ny property, and at least in some cases on company time.
The no-solicitation rule remained on the bulletin board for
a short time;4 the record fails to show who removed it or
why it was removed.
On August 6, the Regional Director issued a Decision
and Direction of Election among Respondent's employees
1 All dates hereafter are 1971 unless otherwise stated
2 My findings as to this incident are based on Gore 's uncontradicted and
credible testimony. In accepting Gore's testimony, I am mindful of the fact
that at the time of the hearing Hopkins may not have been in Respondent's
employ and that Gore 's'preheanng affidavit did not assert that Hopkins
specifically mentioned the Union. I nevertheless believe Gore's hearing testi-
mony that Hopkins' reproaches were specifically directed against conversa-
tion with union adherents. Indirect corroboration of this version is provided
by Gore's reference (in both his affidavit and his testimony) to Hopkins'
threat against Gore himself (who was not even Hopkins' subordinate), and
by Gore's specific reference to the Union in his later conversation with
Hopkins, a reference not claimed to be omitted from Gore's affidavit. Gore
impressed me as an honest witness whose friendly feelings toward Brown (a
neighbor and his nephew by marriage) were counterbalanced by some appre-
hension, after his December 1971 discharge , about whether Respondent
would pay him $2,600 in paid-up retirement benefits should he testify ad-
versely to it.
7 Uncontradicted and credible testimony of J. L . Gore and former employ-
ee French establishes that Respondent had not posted such a notice for at
least the previous 16 years
Respondent's counsel stated on the record that the rule remained on the
bulletin board for about a day, but the testimony is less precise.
WIPO, INC.
in which, inter alia, he found J. L. Gore to be a supervisor.'
As noted above, Gore had previously campaigned in favor
of the Union. After the issuance of the Direction of Elec-
tion, General Manager Arwood Begor and Company Attor-
ney Mark Youmans called Gore into the office; told him
that because of his union activity he "knew the people, the
leaders and more or less who was for the Union"; asked him
"would [he] be willing ... since [he] was a supervisor, to help
them kind of talk against the Union and help them talk it
out"; and requested him to make speeches against the Un-
ion to employees. Gore made such antiunion speeches to
groups of employees, in the presence of General Manager
Begor and Personnel Manager Linedecker.
The representation election was held on September 9.
The tally of ballots showed that 47 valid votes were cast for
the Union, 45 valid votes were cast against the Union, and
(so far as relevant here) 2 ballots were challenged, one cast
by Carrie Brown and the other by Nicholas Matichka.6 On
the basis of the parties' September 24 stipulation that Carrie
Brown was eligible, on October 6 the Acting Regional Di-
rector ordered that her ballot be opened and counted. The
Acting Regional Director further ordered:
If the revised tally of ballots shows that the remain-
ing undetermined challenged ballot of Nicholas Ma-
tichka is not determinative, an appropriate certification
shall be issued. However, in the event the remaining
undetermined challenged ballot of Matichka is suffi-
cient to affect the results of the election, the under-
signed shall take the necessary steps to resolve his eligi-
bility consistent with the Board's Rules and Regula-
tions.
Since Carrie Brown's ballot turned out to be for'the
Union, the Union was certified without resolution of
Matichka's status. Prior to the hearing on February 15,
1972, Respondent and the Union had engaged in negotia-
tions, but the record fails to show whether a bargaining
agreement was reached.
B. The Discharge of James W. Brown
1. James Brown's work history
James W. Brown was hired by Respondent about Octo-
ber 1959 as a helper on a dye printing machine at $ 1.10 an
hour . In mid- 1971, Brown was a dye printing machine oper-
ator with an hourly rate of $2.25 . This rate represented a
differential over other machine operators of 25 cents an
hour, which he received because he was also the "senior
shift leader" on the day shift.
In late July, Ricey Sartin , a machine operator who was
the senior shift leader on the night shift, told Respondent
that he was quitting in 2 weeks because he did not want to
work nights any more. Plant Superintendent Samuel A.
Pinkston thereupon transferred Sartin to the job of senior
shift leader on the day shift . Pinkston admittedly offered
Brown the job of senior shift leader on the night shift, at his
existing $2.25 wage rate. Brown rejected the offer. Upon
s He made this finding in connection with the Company's motion to dis-
miss the petition on the ground that Gore assisted the Union in procuring
its showing of interest.
6 A third challenged ballot was cast by an individual whom the parties
stipulated to be ineligible.
651
Sartin's transfer to the day shift, Brown's rate was decreased
to $2.15 an hour (15 cents more than an ordinary operator)
because Pinkston did not want to pay the same rate to two
employees, one of whom had greater responsibilities than
the other.?
In late September, the senior shift leader on the 3-man
night shift (Hopkins) resigned. Thereafter, about September
27, Respondent temporarily eliminated the night shift in the
printing department and transferred one of the employees
on that shift to the day shift, thereby increasing it from three
to four men. Pinkston called the employees in that depart-
ment together and told them that their then 8-hour working
day was being extended to 10 hours, with a quitting time of
5:30 p.m. rather than 3:30.8 As Pinkston admittedly knew,
Brown's working the extra 2 hours caused his family consid-
erable personal inconvenience.9 So far as is material here,
Brown failed to work overtime (when scheduled to do so)
on about 4 separate occasions between September 30 and
October 18, inclusive." Senior Shift Leader Sartin credibly
testified that when Brown did not work late although sched-
uled to do so, he would "usually always" tell Sartin that he
"was going to leave, that he couldn't work"; and that Sartin,
who had no authority to excuse Brown, told him "on several
occasions" to see Plant Superintendent Pinkston before
leaving. Sartin further credibly testified that "sometimes"
Brown would return to say that "it would be all right if he
could get by without him"; and that Brown "always" told
him when he was going to go home. This testimony by
Sartin, a witness called by Respondent, to a large extent
corroborates Brown's testimony, which I credit, that on
each occasion before leaving, he told Pinkston that he
"would like to be off" or that he "couldn't work the
overtime"; that on each occasion Pinkston replied "go
ahead," usually on condition that he "check with" Sartin to
make sure that "they could make it without me"; and that
Brown "always" told Sartin, either before or after talking to
7 I do not credit Pinkston's testimony that he replaced Brown with Sarum
partly because Brown had failed to perform the shift leader's duty of seeing
to it that the work area was cleaned up by the shift before quitting time. This
testimony is inconsistent with Pinkston's admission that he offered Brown
the shift leader's position on the night shift, when the conduct which Pinkston
attributed to Brown would be more likely to occur than on the day shift
because Pmkston regularly worked days but was usually absent from the
plant during most of the night shift. Indeed, although not contending that
"senior shift leader" on the day shift is a supervisory position , Respondent
stipulated that Franklin Hopkins, who replaced Sartin on the night crew, was
a supervisor . For the reasons set forth infra, In 39, I regard Pinkston as a
generally unreliable witness
8 For reasons unexplained in the record , Brown did not attend this meet-
mg. However, the substance of Pmkston 's remarks was relayed to Brown by
Senior Shift Leader Sartin.
9 Brown's wife also worked at the plant, and during the relevant period her
workday ended at 3:30 . The Browns' two younger children (the youngest
then about 3 months old) had to be picked up from the babysitter shortly
after 3.30, and the Browns wanted at least one parent to be home when the
remaining three (the oldest then 10 or I I years old ) returned from school at
4 or 4 . 30. Accordingly, if Brown worked overtime , either the Browns had to
drive to work separately or Mrs. Brown would have to pick up the children
and then return to pick up Brown.
10 Specifically, about I day during the pay period ending October 2, on 2
days during the pay period ending October 9, and on October 18.
Brown worked only one 10-hour day (and only 4 days) during the pay
period beginning September 26 and ending October 2 . However , between
September 26 and 29 , inclusive, Brown 's daughter was in the hospital, and
Pinkston admittedly excused him from working full time during this period.
No employee worked overtime during the pay period ending October 16,
when work was apparently light.
652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pinkston, that he was leaving. There is no evidence that
Sartin ever told Brown that Respondent could not "get by
without" him. Brown credibly testified without contra-
diction that until October 19, he had never been reprimand-
ed for not working overtime."
2. The Browns' union activity
Brown signed a union card in May 1971, and attended
a union meeting almost every week thereafter up to the time
of the hearing in February 1972. In August 1971, when
Plant Superintendent Pinkston mentioned Brown to Ar-
wood Begor (Respondent's general manager and vice presi-
dent), Begor commented , "That one, James Brown, I am
sure he will be for the Union because he loves money so
much."12
Brown was the husband of employee Carrie Brown,
who, as previously noted, cast a challenged ballot in the
September 9 election. Immediately after the election, Plant
Superintendent Pinkston approached her and asked "what
right did [she] think [she] had to vote.... he didn't think [she]
had any right to vote." Mrs. Brown replied, "I think I have
as much right as anyone else." On the following day, Pink-
ston escorted her to the company president's office, where
she was interviewed by Company Attorney Youmans.13
Youmans asked a "few" questions about what union repre-
sentatives had told her, inquired what literature they had
passed out, and asked (in Mrs. Brown's words) whether
"we" had received any "papers" from Respondent. You-
mans said "something about a meeting," to which Mrs.
Brown replied, "Just because you go to a meeting, that does
not necessarily mean that you will vote for a Union." You-
mans also said "something about voting," to which Mrs.
Brown replied that "it was personal and private, and [she]
didn't think it should be discussed." 14 Youmans stated that
"the Union hadn't won and there wasn't going to be one in
there." Mrs. Brown inquired, "You mean we've lost?" and
Youmans replied, "Yes." Youmans asked whether Mrs.
Brown's husband worked at the plant and she replied that
he did. Youmans asked whether any union representatives
had visited her home, and she told him no. It appears from
the record and from Respondent's brief (p. 17) that You-
mans' interview with Mrs. Brown was one of several em-
111 do not credit Pmkston's testimony that he gave Brown permission to
leave early on only two occasions , when Brown 's daughter was in the hospi-
tal, and that on "numerous" other occasions Brown "took off on his own."
If there had really been occasions on which Brown had "clocked out and
gone without ever consulting with me " (as Pmkston testified), Pinkston surely
would have had some idea (as he admittedly did not) whether Brown had
done this on 1, 2, 5 , or 20 occasions . (Only 18 working days elapsed between
the inauguration of the 10-hour day and Brown's discharge .) Moreover,
company witness Sartin failed to corroborate Pinkston 's testimony that Pink-
ston repeatedly asked Sartm about Brown 's whereabouts after 3:30, and that
Sartm replied Brown was "supposed to come by and let you know." Fur-
thermore, it is likely (to say the least) that any such conduct by Brown would
have led to his reproof by Pinkston; yet neither Pinkston nor any other
witness testified that such reproofs were forthcoming . For the reasons set
forth infra, In. 39 , I regard Pinkston as a generally unreliable witness.
12 This finding is based on the credible and undenied testimony of J L.
Gore . Although Respondent called Pmkston as a witness , he was not asked
about this conversation Begor was not called as a witness, nor was his
absence explained.
"Pmkston was not present during this interview.
14 She could not remember whether Youmans asked how she voted.
ployee interviews scheduled by Respondent in an
apparently unsuccessful effort to find out a basis for object-
ing to the election.
3. James Brown's discharge
As previously noted, when Mrs. Brown's challenged
ballot was opened and proved to be for the Union, the,
Union's majority became indefeasible, and it became un-
necessary to determine the eligibility of Matichka, who had
cast the remaining challenged ballot. Matichka (whose bal-
lot the Union had challenged) had worn "vote no" insignia
during the campaign, and Pinkston admittedly knew that
his ballot had been challenged.
The revised tally of ballots, which showed that Mrs.
Brown's "yes" vote had caused the Union to win, was re-
ceived by Respondent on Friday, October 15. About 3:25
p.m. on October 19, Brown advised Senior Shift Leader
Sartin that he could not work late. Sartin raised no objec-
tion. Brown then went to Pinkston and told him that he
could not work late. Pinkston replied that Brown "would
have to work late, the machines had to run." Brown replied
that he could not stay. Pinkston then brought up Brown's
absence the preceding Friday (when Brown had been out
sick) 15 and said that the next time Brown was out a day like
that he would be docked for it.16 Brown replied that if he
was docked and not the others, he would quit; and asserted
(accurately, infra, C 2(c)) that the others had been out as
much as he. Pinkston asked whether he had checked with
Sartin. Brown replied yes, and Pinkston said to "go ahead,
that he would talk to [Brown] tomorrow."17 Brown clocked
out at 3:30, and left for the day.
The following morning, Brown reported to work at the
usual hour, 7 a.m. About 9:15 or 9:20 that morning, Pink-
ston called him into the office and discharged him, giving
as a reason that "he did not want to work the evening
before."
Several days after Brown's discharge, Mrs. Brown
came to Pinkston's office, toward the end of the work day,
to collect her husband's last paycheck. Pinkston reproached
her for telling "everyone" that he had fired Brown because
he refused to work overtime. Pinkston said, "I did not fire
him because he refused to work overtime. I fired him be-
cause he had been asking for it a long time and he was not
doing his job like he should have done." Pinkston told her,
"Now there is nothing concerning what James did ... As
far as you and me are concerned, you don't know nothing
about what happened back there. As far as you and me are
concerned, it is water over the dam as long as you do your
job and do it right." Mrs. Brown replied, "I have tried to
15 During Pinkston 's temporary absence from the office on October 15,
Mrs Brown had reported her husband's asthmatic attack to Head Fixer
Owens, to whose supervisory status Respondent had stipulated in the repre-
sentation proceeding. Owens apparently failed to relay this message to Pink-
ston, but later that day Pinkston learned from Mrs. Brown about both her
husband 's illness and her report to Owens. This week had been a light
production week (supra In 10).
16 Brown was paid for at least 40 hours' work a week whether or not he
worked 40 hours.
17 My findings as to the substance of this conversation are based on
Brown's credited testimony. I do not credit Pinkston 's version of the incident
except to the extent that it is corroborated by Brown. For the reasons set forth
infra, In 39, 1 regard Pmkston as an unreliable witness.
WIPO, INC.
obey the rules that they tell me, and try to do what they tell
me to do." Pinkston then said, "Well, as long as you do that,
it is water under the dam as far as you and me are con-
cerned. If you come and tell me you are not going to do
something, you can go and punch the time clock." Mrs.
Brown commented, "I hope you can sleep good at night,
knowing that I have to come down here and support five
kids." Thereupon, when Mrs. Brown said something about
unemployment insurance, Pinkston told her that because
the union representatives had come to the unemployment
compensation insurance office , Respondent was "going to
fight it."ts
Pinkston conceded that the night shift had been "elim-
inated temporarily"; his testimony indicates that Respon-
dent had contemplated resumption of the night shift as soon
as it could obtain an adequately trained night crew and
senior night shift leader. Having "retrained men," Respon-
dent reinstituted the night shift and returned to the regular
8-hour day in mid- or late December, 6 to 8 weeks after the
filing of the charge herein alleging that Brown 's discharge
was unlawful. Pinkston testified that he had not reemployed
Brown because Brown had never come down to ask about
a job and "I don't go out calling people to come back to
work."19 At all times after the election, Mrs. Brown re-
mained in Respondent's employ in the same job and at the
same rate of pay.
C. Conclusions
1. The no-solicitation rule
In the absence of special circumstances (not claimed to
be present here), an employer may not lawfully forbid his
employees to engage in union solicitation on the employer's
premises where both the soliciting and the solicited employ-
ees are on their own time, including break time.20 Without
disputing the foregoing, Respondent contends that the post-
ed rule cannot reasonably be read as forbidding such solic-
itation during these periods. The risk of ambiguity must, of
course, be assumed by Respondent, which drafted the
rule 2' While some Board decisions lend support to the Gen-
eral Counsel 's contention that Respondent 's rule is unlawful
because it fails to advise employees with sufficient clarity
when they may solicit and when they may not,22 the most
recent apposite Board decision which I have been able to
find points to a contrary conclusion .23 Accordingly, I find
that the no-solicitation rule is not invalid on its face.
18 My findings as to this conversation are based on the credited testimony
of Mrs. Brown . While I am well aware that she was a highly interested
witness, her demeanor while testifying persuaded me that she was telling the
truth. I do not credit Pinkston's version of the conversation except to the
extent that it is corroborated by Mrs. Brown . For the reasons set forth infra,
fn. 39, I regard Pinkston as an unreliable witness.
19 The complaint herein (issued January 4, 1972) alleged, and
Respondent's January 14 answer admitted, that Respondent had "failed and
refused to reinstate" Brown
20 Campbell Soup Co. v. N L.R.B., 380 F.2d 372 (C.A. 5); Saco-Lowell
Shops, 169 NLRB 1090, fn. 1, 1093, enfd . 405 F.2d 175 (C.A. 4); N L.R B.
v. Varo, Inc., 425 F.2d 293, 297 (C A. 5).
21 G. C. Murphy Co, 171 NLRB 370, affd . 422 F.2d 685 (C.A. D C.);
Marlene Industries Corp., 166 NLRB 703, 704, enfd. in relevant part 406 F.2d
886 (C.A 6).
22 Marlene Industries, supra, 166 NLRB at 704, 729, Forest Industries Co.,
164 NLRB 1092.
653
Nor do I agree with the General Counsel that the rule
was discriminatorily enforced against union activity. While
an employee did circulate an antiunion petition on compa-
ny time and premises after the rule was posted, the record
fails to disclose either that Respondent knew that this activi-
ty took place on company time or that the employee was not
punished for it. There is no other record evidence showing
any sort of solicitation activity after the rule was posted.24
Although I have found this rule to be valid on its face,
a Section 8(a)(1) violation would nonetheless be made out
by a showing that the rule was promulgated for the purpose
of combating union organization rather than maintaining
production or discipline.25 Moreover, Respondent had pre-
viously permitted solicitation activity in the plant during
working hours, the rule was posted during a union drive
which Respondent opposed, and Respondent later (as I
find, infra) discriminatorily discharged an employee. How-
ever, there is no evidence that the posting of the rule co-
incided with any significant stage in the union drive, which
had been in progress for about 2 months, or with
Respondent's initial awareness of it; the discriminatory dis-
charge did not take place until almost 4 months later; and,
as previously found, there is no evidence that Respondent
subsequently disciplined any employee for union solicita-
tion in violation of the rule? I do not believe that the record
preponderantly shows that the rule was promulgated for the
purpose of combating union organization?' Accordingly, I
shall recommend that the complaint be dismissed insofar as
it alleges that Respondent violated the Act by posting, pro-
mulgating, and maintaining the no-solicitation rule.
2. The discharge of James W. Brown
a. Controlling legal principles
The General Counsel contends that Respondent dis-
charged James W. Brown because of his own and his wife's
union activity, both reasons which (Respondent concedes)
are proscribed by the Act 28 Respondent asserts that
Brown's discharge was in no way motivated by either of
these considerations, and tenders, as the real reason for his
discharge, considerations which the General Counsel can-
not and does not contend to be unlawful.
23 Universal Cigar Corp, 173 NLRB 865 , 869, modified because of rule's
validity, 425 F.2d 867 (C.A 5). See also, Logan Mfg. Co, 162 NLRB 1586,
1587, 1589; Buckeye Mart, 170 NLRB 1, 4. Cf. SNC Mfg Co., Inc, 174
NLRB 159 , enforcement denied in relevant part, 434 F .2d 473, 478-479
(C.A D.C.).
I do not rely on Rogers Mfg Co., 175 NLRB 961 , cited by Respondent
as "diapositive," in view of In . 1 of the Board's decision, which states, "In
the absence of exception, we adopt , pro forma, the Trial Examiner's finding
that the Respondent 's no-solicitation rule is not on its face presumptively
invalid "
24 The Gore -Ponder-Hopkins incident was not shown to have occurred
prior to June 25, when the rule was posted.
25 Milford Fabricating Co., 193 NLRB No. 146; Memcor, Inc., 162 NLRB
930, 933, 935-936; Ward Manufacturing, Inc, 152 NLRB 1270, 1271, 1277;
Tiidee Products, Inc, 176 NLRB No. 133, enfd. 440 F.2d 298 (C.A.D.C.)
26 Indeed , there is no evidence that Respondent ever knowingly had occa-
sion to, or did, discipline any employee for any violation of this rule.
21 See Permian Corp, 189 NLRB No . 131, enfd . 457 F.2d 512 . Cf. Medley
Distilling Co, Inc, 187 NLRB No. 12, where the rule was promulgated
shortly after the union drive began.
28 N.L.R.B. v. Link -Belt Co , 311 U.S. 584 , 601, J Ziak & Sons, Inc., 152
NLRB 380,383-385, enfd . 63 LRRM 2145 (C.A.D.C .); Lummus Co. v. N.L.R.
B, 339 F 2d 728 , 731-734 (C.A.D C ); Washington Forge, Inc, 188 NLRB No.
17
654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The applicable principles in such a case are well settled.
" ... management is for management. Neither Board nor
Court can second-guess it or give it gentle guidance by
over-the-shoulder supervision. Management can discharge
for good cause, or bad cause, or no cause at all. It has, as
the manager of its own business affairs, complete freedom
with but one specific, definite qualification: it may not dis-
charge when the real motivating purpose is to do that which
the Act forbids." N.L.R.B. v. McGahey, 233 F.2d 406, 413
(C.A. 5).29 On the other hand, because the issue in cases such
as these is the "real motivating purpose" of the discharge,
"the existence of [a lawful] cause is not a defense to a
discharge actually motivated by anti-union purposes." N.L.
R.B. v. Central Power & Light Co., 425 F.2d 1318, 1322 (C.A.
5). Further, to establish an unlawful discharge, the General
Counsel need not show that the employer's sole reasons for
the discharge were unlawful reasons ; rather, he need only
establish by preponderating evidence that "the employee
would not have been fired but for the anti-union animus of
the employer." Permian Corp., 189 NLRB No. 131, enfd.
457 F.2d 512, (C.A. 5), quoting N.L.R.B. v. Whitfield Pickle
Company, 374 F.2d 576, 582 (C.A. 5). Finally, because the
issue presented is the real reason for the discharge, the
employer's right to discharge for any lawful reason or for no
reason does not preclude the Board from considering
whether the reasons tendered by the employer are such as
would ordinarily be expected to explain the personnel ac-
tion at issue. See N.L.R.B. v. Condenser Corp., 128 F.2d 67,
75 (C.A. 3); N.L.R.B. v. Griggs Equipment, Inc., 307 F.2d
275, 278 (CA. 5).
With these principles in mind, I turn to the issues pre-
sented by Brown's discharge.
b. The General Counsel's evidence
Initially, I note the clear record evidence that Respon-
dent opposed the Union's efforts to organize its plant. Thus,
Respondent's officials procured J. L. Gore's assistance in
attempting to "talk [the Union] out" of the plant , for the
avowed reason that he would be particularly effective be-
cause he had previously been active on the Union 's behalf.
When the tally of ballots suggested (as later proved to be the
case) that the Union had won the election, Plant Superin-
tendent Pinkston berated Mr . Brown for voting at all. After
Brown's discharge , Pinkston attributed to a union
representative's participation in Brown's unemployment
compensation preceeding Respondent 's efforts (eventually
successful) to defer Brown's eligibility for compensation.
Moreover , during the union campaign , when Supervisor
Hopkins saw employee Ponder talking to union activist
Gore, Hopkins told Ponder to get back to work or be fired,
that Hopkins did not want him talking to anybody that had
anything to do with the Union ; and then threatened Gore
by telling him that Hopkins had a gun in his car. Such
antiunion bias and hostility are "highly significant factors
for Board evaluation in determining motive ." N.L.R.B. v.
Georgia Rug Mill, 308 F.2d 89 , 91 (C.A. 5).
It is likewise clear that when discharging James Brown,
Plant Superintendent Pinkston knew of (or at least suspect-
29 See also , Clark's Stores, 168 NLRB 273, 284.
ed) Brown's own union sympathies, and was also aware that
Mrs. Brown had provided the Union with its margin of
victory. Thus, it is undenied that in August 1971
Respondent's general manager and vice president told Pink-
ston that he was "sure [Brown] will be for the Union."30 I
also conclude, contrary to Pinkston's testimony, that before
discharging Brown he knew that Mrs. Brown's vote had
provided the Union's election margin . The results shown by
the revised tally of ballots would in all probability have
reached even an uninterested plant superintendent during
the 5-day period (including 3 working days) between the
date that Respondent received the tally and the date of
Brown's discharge. This likelihood is increased by
Pinkston's specific demonstration of interest in the elec-
tion-namely, his action just after the election in telling
Mrs. Brown that she had no right to cast a ballot. Moreover,
I infer from these remarks that he already knew that the
ballot she cast had been challenged; and I further infer,
from Matichka's open wearing of "vote no" insignia and
Pinkston's concession that prior to Brown's discharge Ma-
tichka told him his ballot had been challenged, that prior to
the discharge Pinkston knew that Mrs. Brown's ballot had
assured the Union's victory notwithstanding Matichka's
presumable "no" ballot. Further, I note that Pinkston dis-
charged Brown, an employee of 12 years' standing, early in
the morning of the second working day after Respondent
received the revised tally. "The abruptness of a discharge
and its timing are persuasive evidence as to motivation."
N.L.R.B. v. Sutherland Lumber Company, 452 F.2d 67 (C.A.
7).
c. Respondent's Explanation for the Discharge
At the outset of the hearing, Respondent's counsel stat-
ed that Brown was discharged because, during a continuous
period throughout the summer and fall of 1971, he "started
to build up a record of bad absenteeism , was careless about
his job, was untidy in keeping up his work area, and was
taking too many breaks away from his job station"; and that
"what touched off the decision to terminate him was his
inability and refusal to adjust to the hours expected of him
by the Employer."
However, the evidence renders highly improbable
Respondent's contention that work area untidiness or ex-
cessive breaks played a part in Pinkston's decision to dis-
charge Brown. Pinkston testified that the alleged untidiness
problem disappeared when Sartin replaced Brown as day
shift leader, about 3 months before Brown's discharge.
Pinkston also testified, variously, that he had observed
Brown taking too many breaks after Sartin became day shift
leader; that after Sartin took over, Pinkston did not discuss
the excessive breaks matter with Brown at all; and that
30 In view of this undemed and credited testimony , I cannot and do not
believe Pinkston 's testimony that before discharging Brown he had no knowl-
edge of Brown's union sympathies . For the reasons set forth infra, fn. 39, I
regard Ptnkston as a generally unreliable witness.
In finding that Ptnkston knew of James Brown 's union sympathies, I do
not, however, rely on Gore's knowledge thereof . Because he and Brown were
on friendly terms and Gore favored the Union (at least initially), I think it
unlikely that he passed this information on to antiunion management repre-
sentatives . Nor do I infer that Company Attorney Youmans relayed to man-
agement Mrs Brown 's admission during her interview that she, and probably
her husband, favored the Union ("you mean we've lost?")
WIPO, INC. 655
Pinkston had reproved Brown therefor on two or three oc-
casions in July or August (at least 7 weeks prior to Brown's
discharge), Pinkston "would say" before Sartin took over.
Moreover, Pinkston admitted that at the time Sartin took
over, Brown's alleged deficiencies in these respects had not
deterred Pinkston from offering to transfer him to senior
shift operator on the night shift; and when Brown refused
this offer, Respondent nonetheless continued to pay him
more than an ordinary operator on the day shift. Fur-
thermore, if Pinkston had really been as concerned about
the untidiness problem as his testimony alleges, I am per-
suaded that he would have complained (as he admittedly
did not) to other members of the crew, who were likewise
responsible for cleaning up the area, notwithstanding his
alleged desire to adhere to the "chain of command" headed
by Brown, a nonsupervisor. Indeed, Pinkston testified that
he "didn't particularly fire Brown for the place being
messed up."
Nor do I believe that Brown's attendance record
played any appreciable role in Respondent's decision to
discharge him. Thus, during the 3-1/2 weeks immediately
preceding his discharge, Brown's two absences (one because
of asthma and one related to his daughter's hospitaliza-
tion) 31 were much less frequent than Seay's 5 days of sick
leave (and 2 days of less than 8 hours) and comparable to
Tilley's one absence for unexplained reasons .32 Moreover,
while the record does not contain timecards covering any
earlier period, the testimony shows that less than 2 months
before Brown's discharge employee Sartin was out 2 weeks
with pneumonia. Sartin, who had presented a doctor's certi-
ficate, was still in Respondent's employ at the time of the
hearing. Pinkston testified that on "various occasions" from
May until Brown's October 20 discharge, Brown "would
take days off during the week," that his wife would "just
give a message in that he was sick," and that "there were no
conversations with him over the phone, as to whether he was
sick or not." However there is no evidence that Respondent
mentioned Brown's attendance record to him until the day
before his discharge, 4 days after Respondent received the
revised Tally and more than 5 months after his absenteeism
allegedly began. As noted, such record evidence as exists
fails to show that Brown's attendance record was bad in
comparison with that of other employees; Respondent
made no contention that he was not in fact sick on these
occasions ,33 or that it expressed doubt at the time that he
was really sick; and if Pinkston had really been concerned
about "no conversations with him over the phone," in all
probability he would have telephoned Brown . For the fore-
going reasons, I conclude that Brown's attendance record
play little or no part in Pinkston's decision to discharge him.
Respondent's contention that Brown's October 19 re-
fusal to work overtime "touched off" Pinkston's decision to
discharge him is, of course, virtually refuted by Pinkston's
disclaimer of this reason to Mrs. Brown shortly after the
discharge. Moreover, when considered cumulatively, other
considerations diminish the likelihood that this incident was
31 Pinkston's testimony indicates that the latter absence was excused.
32 While discharging Brown , with 12 years' tenure, Respondent retained
Seat', who at that time had been in its employ for about 2 months.
3 Brown suffers from asthma , an ailment which tends to recur periodical-
ly -
the sole triggering factor in Brown's discharge. Thus, al-
though there is credible evidence that Brown's action in
leaving after 8 hours slowed down production and made the
other employees work harder for the rest of the day,34 the
unavailability of a trained replacement (the very reason for
the 10-hour day) meant that Brown's termination extended
these difficulties to encompass the entire workday. Fur-
thermore, Respondent's failure to produce the production
records which it admittedly kept, the fact that a three-man
shift was capable of operating at full capacity,35 and the
absence of evidence that the remaining employees com-
plained about Brown's leaving about 8 hours, 6 suggest that
the adverse impact of Brown's absence was rather modest.
Cf. International Union of Automobile, Aerospace and Agri-
cultural Implement Workers of America v. N.L.RB., 459
F.2d 1329 (C.A.D.C.). Moreover, the 10-hour day was ex-
pected (and in fact turned out) to be temporary; and Pink-
ston knew that Brown was particularly inconvenienced 6y
it for reasons which would tend to create sympathy rather
than resentment. Additionally, the fact that this was the first
occasion on which Pinkston had denied Brown's request for
permission to leave early casts some doubt on whether Pink-
ston was motivated entirely by production considerations,
in the absence of any evidence suggesting that the need for
Brown's services was greater than on previous occasions
when permission had been granted. Further, Pinkston made
no claim that on October 19 he expressly gave Brown a
choice between overtime work and discharge, although in
analogous circumstances Pinkston had previously used such
tactics and thereby induced Brown to perform the work in
question??
At certain points in his testimony, Pinkston indicated
that the gravamen of Brown's offense was not that he
caused production difficulties, but was that he refused to
obey his superior's orders. It is true that Pinkston may have
felt less than secure as plant superintendent (a position he
had held for only 6 months);38 and his manner in testifying
suggested that he might be a person highly sensitive to any
supposed disregard of his authority. However, when asked
why he did not rehire Brown after reinstitution of the night
shift, which ended the overtime problem assertedly leading
to Brown's discharge, Pinkston did not refer to disciplinary
problems or (indeed) to any of the considerations which
assertedly led to Brown's discharge. Instead, Pinkston mere-
ly tendered the reason that Brown had not come down to
ask about a job-a hypertechnical explanation in itself ren-
dered dubious by the pendency of the charge herein, which
strongly suggested Brown's interest in returning to work.
Pinkston's limited explanation fails to suggest concern over
34 I would have assumed this much even in the absence of direct evidence,
since otherwise Respondent would not have wanted Brown to work overtime,
for which he was paid time-and-a-half after 40 hours.
35 While one of the other employees on Brown's shift was a trainee (Seay),
Pinkston testified that he had transferred Seay from the night shift upon its
discontinuance , and that the night shift had had better production than the
day shift.
Indeed , they might conceivably have welcomed any extra overtime-
rate hours Brown's absence might have afforded them
37 When directed to work at straight time the Saturday following Labor
Day in 1971 , Brown had replied that he would like to be off if he could.
Pinkston thereupon said, "If you care anything about your job, you had
better come on in ." Brown replied that he did not know whether he could
make it or not, but he did come in.
38 He had previously been a truckdnver for Respondent.
656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
supposed disrespect by Brown, whose manner and tone of
speech tend to counteract any impoliteness which might be
suggested by his words alone. Moreover, what comes close
to a tacit concession by Pinkston that Brown's alleged prior
shortcomings did not render him unsuitable for an 8-hour
shift further detracts from Respondent's contention that
such alleged deficiencies contributed to Pinkston's decision
to discharge Brown.
d. Conclusions as to the discharge
In sum, Respondent wanted to keep the Union out of
the plant; Pinkston knew or suspected (well before the elec-
tion) that James Brown favored the Union; and 5 days or
less after learning that Mrs. Brown's ballot had afforded the
Union an indefeasible election margin, Pinkston discharged
James Brown-an employee of 12 years' standing-on the
basis of explanations which "failed to stand under scruti-
ny," thus "buttress[ing]" the "inference of discriminatory
motivation." Griggs Equipment, Inc., supra, 307 F.2d at 278.
On the basis of a preponderance of the evidence, I conclude
that Respondent discharged James Brown at least in sub-
stantial part because of his and his wife's union sympathies,
in violation of Section 8(a)(3) and (1) of the Act 3
Under the circumstances of this case, I attach little
weight to Respondent's failure to take direct personnel ac-
tion against Mrs. Brown herself. Respondent must have
known that James Brown's discharge inflicted upon Mrs.
Brown hardships comparable to-perhaps greater than-
those which she would have suffered had she been dis-
charged instead. As Mrs. Brown observed to Pinkston when
she collected Brown's last paycheck, "I hope you can sleep
good at night, knowing that I have to come down here and
support five kids." Indeed, after Mrs. Brown made this
remark, Pinkston underscored the adverse economic effects
of union sympathies on the entire Brown family by telling
her that Respondent was going to "fight" her husband's
claim for unemployment compensation because the union
representatives had come to the unemployment compensa-
tion office. Moreover, other considerations may have led
Respondent to retain Mrs. Brown in its employ. Thus, Re-
spondent might have apprehended that Mrs. Brown's dis-
charge shortly after her determinative "yes" ballot was
opened would be too suspicious to risk. Furthermore, it is
conceivable that Mrs. Brown's immediate supervisors were
39 In finding Brown 's discharge to be unlawful , I have discredited Plant
Superintendent Pinkston in a number of material respects . As I have pointed
out supra, in certain instances Pmkston 's testimony as to highly material
issues was inconsistent with his admitted conduct or with the undisputed
testimony, was self-contradictory , was unlikely on its face, or lacked corrobo-
ration from an obvious source . The cold record 's demonstration that these
portions of his testimony are incredible casts doubt upon the believability of
other material parts of his testimony. N.LR B v. Pittsburgh Steamship Co,
337 U.S. 656, 659. Moreover , the manner in which Pinkston testified gave me
the distinct impression that he was interested in justifying his own conduct
rather than in telling the truth. It is for these reasons that I have discredited
his testimony to the extent indicated above.
In discrediting Pinkston , I do not , however, rely on Union Representa-
tive Scott's testimony that (contrary to Pinkston's testimony) Pinkston was
present at the count of the ballots . Company Attorney Youmans credibly
denied that Pinkston was then present . Scott admitted that he had not seen
Pinkston between the September 9 election and the February 15 hearing,
more than 5 months later. While Scott impressed me as an honest witness,
I believe he was mistaken in his identification.
unable or unwilling to find any deficiency which might
reasonably be advanced to justify her discharge. In short,
Respondent's lawful treatment of Mrs. Brown does not dis-
prove the General Counsel's contention that her husband
was unlawfully discharged. Cf. N.L.R.B. v. Challenge-Cook
Bros. of Ohio, 374 F.2d 147, 152 (C.A. 6).
Nor do I believe that the October 21 statement signed
by James Brown in connection with his application for un-
employment compensation impairs the General Counsel's
case . This statement asserted that "I was discharged ... for
refusing to work overtime." The characterization " refusing"
to work overtime fairly comports with James Brown's testi-
mony about what he told Pinkston on October 19. Brown's
statement regarding Respondent's discharge motives (of
which he obviously could have no personal, direct knowl-
edge) is, of course, not conclusive as a matter of law; such
a determination is, rather, initially a function of this Trial
Examiner and thereafter, perhaps, of the Board and the
Federal courts 40 Moreover, Brown's October 21 conclusion
that he was discharged for refusing to work overtime reflect-
ed Pmkston's statement when discharging him, and was
reached without knowledge of subsequent events which
have played a material part in my conclusion that he was
discharged at least partly for Union-related reasons-name-
ly, Pinkston's statement that he had not fired Brown for
refusing to work overtime, and that Respondent was going
to "fight" his unemployment compensation claim because
the union representatives had come to the unemployment
compensation office.
In finding that Brown was discharged at least in sub-
stantial part because of his and his wife's union activities,
I am aware of the different conclusion reached by an Ap-
peals Referee of the State Department of Labor Unemploy-
ment Security Agency. While relevant to the issues herein,
this determination is not controlling.41 My principal reason
for giving this determination little weight in the instant pro-
ceeding is that the issue there presented was significantly
different from the issue before me. The Referee's decision
stated:
The question to be resolved is whether or not the
employer was justified in making the discharge. If a
discharge takes place under conditions where three or
four reasons can be assigned as justification for it, the
employer merely has to show that one good reason did
exist, and that the discharge resulted immediately upon
the occurrence of the incident which he used for the
basis of the separation. Here the employer has shown
just that. The claimant's refusal to work the two hours
per day overtime under the usual conditions of time
and one-half was followed immediately by the dis-
charge. The incident concerning the union election oc-
curred several days before and may or may not have
caused the employer to form a dislike for the claimant.
This, however, would be immaterial in view of the fact
that the claimant did specifically refuse to accept an
assignment given to him.
4° N L. &B. v. Wiltse, 188 F 2d 917, 925-926 (C.A. 6)
41 Mitchell Plastics, Inc., 117 NLRB 597, 598, In. 1, modified 260 F.2d 472
(C.A. 6); Supreme Dyeing & Finishing Corp, 147 NLRB 1094, 1095, In. 1,
enfd. 340 F.2d 493 (C.A. 1); N.LR.B v Western Meat Packers, Inc, 368 F.2d
65, 70 (C A. 10); N LR.B. v Stafford Tmckin& Inc., 371 F.2d 244, 249 (C.A.
7).
WIPO, INC. 657
In contrast , as shown supra, the issue presented in the in-
stant proceeding is whether the real reason for Brown's
discharge was at least partly a "dislike" for his and his wife's
union activity ; and Respondent cannot defend a discharge
which in fact was partly so motivated by a showing that
"one good reason did exist" therefor . It is true that the
Referee further found that "The problem generated by the
union balloting seems to have been a coincidence ... there
was no relationship between the separation and the
claimant's wife's voting in the union election ." However,
this statement not only was unnecessary to the Referee's
decision , but also was made without the benefit of Mrs.
Brown's testimony , on which I have relied to a significant
extent in concluding that her union activity partly motivat-
ed her husband 's discharge . Cf. N.L. R.B. v. Tennessee Pack-
ers, 339 F.2d 203, 204 (C.A. 6). Nor can Brown's right to
relief in the instant proceeding be affected by his failure to
call her as a witness in the unemployment compensation
proceeding, in view of the fact that her testimony before me
was immaterial to the legal issues presented there.
CONCLUSIONS OF LAW
1. WIPO, Inc., is an employer engaged in commerce
within the meaning of the Act.
2. National Council of Distributive Workers of Ameri-
ca is a labor organization within the meaning of Section 2(5)
of the Act.
3. Respondent has not violated Section 8(a)(1) of the
Act by posting, promulgating, and maintaining a no-solic-
itation rule.
4. Respondent has violated Section 8(a)(3) and (1) of
the Act by discharging employee James W. Brown because
of his and his wife's union activity.
THE REMEDY
I shall recommend that Respondent cease and desist
from the unfair labor practice found, and like and related
conduct, and offer reinstatement with backpay to the em-
ployee discriminated against. In accordance with usual re-
quirements, reinstatement shall be to the discriminatee's
former job or, if that job no longer exists, to a substantially
equivalent position, without prejudice to his seniority or
other rights and privileges. The discriminatee shall be made
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 date of discharge (October 20, 1971)
to the date of a valid offer of reinstatement, less net earnings
during such period, to be computed in the manner pre-
scribed in F. W. Woolworth Company, 90 NLRB 289, and
Isis Plumbing & Heating Co., 138 NLRB 716. I shall also
recommend that Respondent post an appropriate notice.
Upon the foregoing findings of fact and conclusions of
law and upon the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recommended:
ORDER42
The Respondent, WIPO, Inc., its officers, agents, suc-
cessors , and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in National Council of
Distributive Workers of America, or any other labor organi-
zation, by discharging or in any other manner discriminat-
ing against employees in regard to their hire or tenure of
employment or any terms or conditions of employment.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the rights
guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act.
(a) Offer James W. Brown reinstatement to his former
job or, if this job no longer exists, to a substantially equiva-
lent job, without prejudice to his seniority or other rights
and privileges and make him whole for any loss of pay
suffered by reason of his discharge in the manner set forth
in the section of this decision entitled "The Remedy."
(b) Notify James W. Brown, if presently serving in the
Armed Forces of the United States, of his right to full rein-
statement upon application in accordance with the Selective
Service Act and the Universal Military Training and Service
Act of 1948, as amended, after discharge from the Armed
Forces.
(c) Preserve and, upon request, make available to the
Board, or its agents, for examination and copying, all pay-
roll records, social security payment records, timecards, per-
sonnel records and reports, as well as all other records
necessary to analyze and compute the amount of backpay
due under the terms of this recommended Order.
(d) Post at its Columbus, Georgia, plant copies of the
attached notice marked "Appendix ."43 Copies of said no-
tice, on forms provided by the Regional Director for Region
10, after being duly signed by the Respondent's representa-
tive, shall be posted by the Respondent immediately upon
receipt thereof and be maintained by it for 60 consecutive
days thereafter in conspicuous places, including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to insure that
said notices are not altered, defaced, or covered by any
other material.
(e) Notify the Regional Director for Region 10, in writ-
ing, within 20 days from the receipt of this Decision, what
steps have been taken to comply herewith.44
It is further recommended that the complaint herein be
dismissed, insofar as it alleges that the Respondent violated
Section 8(a)(1) of the Act by posting, promulgating, and
maintaining a no-solicitation rule.
42 In the event no exceptions are filed to this recommended Order as
provided by Section 102 46 of the Rules and Regulations of the National
Labor Relations Board, the findings, conclusions , and recommended Order
herein shall , as provided in Section 10(c) of the Act and in Section 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.
43 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 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 "
44 In the event that this recommended Order is adopted by the Board after
exceptions have been filed , this provision shall be modified to read : "Notify
the Regional Director for Region 10, in writing, within 20 days from the date
of this Order , what steps the Respondent has taken to comply herewith."