Inland Shoe Manufacturing Co., Inc.

National Labor Relations Board - Board Decisions

Jun 21, 1974

211 N.L.R.B. 843 (N.L.R.B. 1974)

INLAND SHOE MFG. CO. 843
Inland Shoe Manufacturing Co., Inc . and United
Shoe Workers of . America , AFL-CIO. Case
14-CA-7480
June 21, 1974
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
PENELLO
On November 30, 1973, Administrative Law Judge
Elbert D. Gadsden issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting 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 brief
and has decided to affirm the rulings, findings,' and
conclusions 2 of the Administrative Law Judge and to
adopt his recommended Order as modified herein.3
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 herein, and hereby orders that the Respon-
dent, Inland Shoe Manufacturing Co., Inc., Ad-
vance, Missouri, its officers, agents, successors, and
assigns, shall take the actions set forth in the said
recommended Order, as modified below.
1. Delete the words "Promulgating, distributing,
posting," from paragraph 1(a) of the recommended
Order.
2. Substitute the attached notice for that of the
Administrative Law Judge.
I The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge . It is the Board's established policy not to
overrule an Administrative Law Judge 's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544, enfd . 188 F.2d 362 (C.A. 3, 1951). We have closely
examined the record and although some of the Administrative Law Judge's
credibility resolutions are partially based on irrelevant factors, we find no
basis for reversing his findings in that such resolutions are also based on the
demeanor of the witnesses.
In so finding, however , we do not adopt the Administrative Law Judge's
crediting of the testimony of Supervisor Delores Deck to the effect that she
knew of, and occasionally initiated, the circulation of collection boxes, as
the record contains no such testimony by Deck. Moreover , as Supervisor
Wilker did not testify , we do not concur with the Administrative Law
Judge's observation that there exists a conflict in the testimony of Wilker
and other witnesses concerning the events immediately surrounding the
discharge of employee Van Matre.
2 Member Penello, who did not participate in Avon Convalescent Center,
Inc., 200 NLRB No. 99, agrees with the Administrative Law Judge in the
present case that the no-solicitation rule is invalid . However , he does not
agree with the holding in Avon Convalescent Center, Inc., to the extent that it
finds a no-solicitation rule prohibiting solicitation during "working time" to
be invalid . Thus, he would not rely on the Administrative Law Judge's
citation of that case.
3 We find merit in Respondent 's exception to the Administrative Law
Judge's conclusion that the promulgation and posting of Respondent's no-
solicitation rule violated Sec. 8(axl) in that as the rule was promulgated and
posted more than 6 months prior to the filing of charges, an 8(a)(l) finding
based on such conduct is time-barred by Sec. 10(b) of the Act. Therefore,
we shall modify his recommended Order accordingly.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discourage concerted or union
activity of employees by maintaining or enforcing
a broad and patently invalid no-solicitation rule.
WE WILL NOT disparately or discriminatorily
enforce any rule against employee union solicita-
tion.
WE WILL NOT discourage membership in
United Shoe Workers of America, AFL-CIO, or
any other labor organization, by discharging
employees or otherwise discriminating in any
manner in respect to their tenure of employment
or any term or condition of employment.
WE WILL NOT engage in surveillance of employ-
ees' concerted activity or union meetings.
WE WILL NOT coercively interrogate employees
about their and other employees' union member-
ship, activities, and desires.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exercise
and enjoyment of rights guaranteed to them by
Section 7 of the National Labor Relations Act,
except to the extent that such rights may be
affected by lawful agreements in accord with
Section 8(a)(3) of the Act.
WE WILL offer Marylyn Van Matre immediate
and full reinstatement to her former position or, if
such position no longer exists, to a substantially
equivalent one, without prejudice to the seniority
and other rights and privileges enjoyed by her,
and make her whole for any loss of pay she may
have suffered by reason of her discharge, with
interest at the rate of 6 percent per annum.
All our employees are free to become, remain, or
refuse to become or remain, members of said Union
or any other labor organization, except to the extent
that such rights may be affected by lawful agree-
ments in accord with Section 8(a)(3) of the Act.
INLAND SHOE
MANUFACTURING CO.,
INC.
(Employer)
211 NLRB No. 142
844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered , defaced , or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board 's Office , 210 North 12th Boulevard, Room
448, St . Louis , Missouri 63101, Telephone
314-622-4167.
DECISION
STATEMENT OF THE CASE
ELBERT D. GADSDEN, Administrative Law Judge: Upon
an original and an amended charge of unfair labor
practices, filed on July 9 and 30, 1973, respectively, by
Russell Taylor, vice president of the United Shoe Workers
of America, AFL-CIO, herein called the Union, against
Inland Shoe Manufacturing Co., Inc., herein called the
Respondent , the General Counsel of the National Labor
Relations Board issued a complaint against Respondent on
August 24, 1973, alleging that Respondent had engaged in
unfair labor practices in violation of Section 8(aX3) and (1)
and Section 2(6) and (7) of the National Labor Relations
Act, as amended, herein called the Act. The primary issues
raised by the pleadings are whether (a) Respondent
violated employees' rights protected by the Act by
discharging an employee for exercising such rights; or (b)
Respondent had a valid no-solicitation rule which was
violated by said employee for which she was justifiably
discharged.
A hearing in the above matter was held before me at
Cape Girardeau, Missouri,on September 25, 1973. Briefs
have been received from counsel for the Respondent and
the General Counsel and have been carefully considered.
Upon the entire record in this case and from my
observation of the witnesses, I hereby make the following:
FINDINGS OF FACT
1. JURISDICTION
Respondent, a Missouri corporation maintaining plants
in the cities of Advance and Perma, Missouri, is and has
been at all times material herein, engaged in the manufac-
ture, sale, and distribution of shoes and related products,
with an annual value in excess of $50,000 from the
shipment of said products from its plants in the State of
Missouri, directly to points located outside the State of
Missouri.
The complaint alleges, the answer admits, and I find that
Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
United Shoe Workers of America, AFL-CIO, herein
called the Union, is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction
Since on or prior to May 1, 1965, the corporate
Respondent has maintained two plants in Missouri (Perma
and Advance) engaged in the manufacture of shoes and
related products. However, all of the transactions giving
rise to the subject matter of this proceeding occurred at its
Advance, Missouri , plant which employs about 550
persons. Approximately 220-275 of these persons work in
the plant's fitting department. Since May 1, 1965, Mr.
Gary Davault has been employed by the Respondent and
was designated director of manufacturing for both plants
in August 1970.
Thus, Director Davault is and has been at all times
material herein, superintendent for Respondent's Advance,
Missouri, plant, and by virtue thereof, he is now and has
been a supervisor and an agent for Respondent within the
meaning of the Act. It is stipulated that floorladies, Delores
Deck and Evelyn Wilker, have been and are now
supervisors of Respondent and are also its agents within
the meaning of Section 2(11) of the Act.
The application for employment form used by Respon-
dent from May 1965 to August 1973, contained the two
following questions: "Are you now or have you ever been a
member of a Union?", and, "Name of Union?" This
application form was revised by the Respondent, effective
August 1, 1973, upon the advice of its legal counsel,
deleting therefrom the two above-quoted questions relating
to union membership. The alleged discriminatee, Marylyn
Van Matre was first employed by Respondent from 1969
to August 1971. On December 8, 1972, the Respondent
posted a notice in the plant to all employees advising them
that there would be no solicitation of any kind during
working hours. This rule was also set forth in the
"Employee Bulletin" dated January 3, 1972, which was
distributed to all employees.
Marylyn Van Matre completed an original application
form for reemployment in which she stated as required,
that she was not, nor had she ever been, a member of a
union. She was thereupon employed as a sewing machine
operator in the fitting department by the Respondent in
April 1973. Evelyn Wilker and Delores Deck were
supervisors in the fitting department over which Jerry
Dunning was the foreman. Evelyn Wilker was the
immediate supervisor of employee Van Matre, until July 3,
1973,1 when Van Matre was discharged, allegedly, for
distributing union authorization cards to fellow employees
during work hours, in violation of the Company's rule
against solicitation.2
In regard to the alleged discriminatory discharge of
Marylyn Van Matre in violation of Section 8(a)(3) and (1)
of the Act, the principal questions presented for decision
1 Hereinafter all dates will refer to the year 1973, unless otherwise 2 The facts set forth above are undisputed in the record
specified.
INLAND SHOE MFG. CO. 845
are whether Respondent had a valid no-solicitation rule in
existence prior to July 3, whether Van Matre was
distributing union cards in violation thereof, and if so, was
her discharge for such violation a discriminatory applica-
tion of the rule by Respondent , and whether Respondent
was engaged in surveillance of a union meeting on July 26,
all in violation of the Act.
B. Preliminary Facts
Rule Against Solicitation
In the Respondent's "Employee Bulletin" dated January
3, 1972, which was distributed to each employee, the
employees were advised as pertinent herein as follows:
You should be guided by the following restrictions
and policies on the following pages:
Page 2, Item 12: There will be no solicitation of any
kind during working hours. This includes the selling of
all kinds of merchandise.
Item 16: of the bulletin listed restrictions (a)-(i), the
violation of which, Respondent advised would be
grounds for immediate discharge . (Solicitation was not
a restriction listed hereunder.)
Item 17: of the bulletin listed restrictions (a)-(f), the
violation of which, Respondent advised would be
subject to warning and if repeated, would be subject to
discharge. (Solicitation was not a restriction listed
hereunder.) (GC's Exh. 3).
Since on or about December 8, 1972, Respondent has
had the following notice posted in its plants:
Plant Director Davault creditably testified that he
authorized the preparation and the posting of the "Notice
to Employees" dated December 8, 1972 , prohibiting
solicitation of any kind during working hours, because the
plant was going on increased production and in an effort to
stop employees in the Parma plant from leaving their work
stations 10 and 15 minutes before quitting , or lunch times
to purchase snacks ; and that the prohibition against
reading at their machines was established because one
employee would read his Bible during work time. The
employees are given a 10-minute break period in the
morning , a lunch period , and a 10-minute break period in
the afternoon.
Based upon the foregoing documentary evidence and the
credited testimony of Marylyn Van Matre and Plant
Director Davault, I conclude and find that at least, since
January 3, 1972 , Respondent has had a rather broad rule
against any kind of solicitation during plant "working
hours" (working hours not defined) which was distributed
to all employees, including Van Matre ; that Plant Director
Davault had the rule republished and posted in the plant
on December 8, 1972, in an effort to stop employees in the
Parma plant from leaving their work stations before break
or lunch times to purchase snacks and from reading books,
magazines , etc., at their machines ; that employees are
given a break period in the morning, a lunch period and a
break period in the afternoon ; that since the words
"working hours" can reasonably be construed as including
the break and lunch periods, the rule is ambiguous in this
respect ; and that since the rule is ambiguous on its face, it
is therefor invalid and is violative of Section 8(a)(1) of the
Act.
December 8, 1972
NOTICE TO ALL EMPLOYEES - ADVANCE & PARMA
WE WOULD LIKE TO REMIND ALL EMPLOYEES ON THE
FOLLOWING RESTRICTIONS THAT HAVE BEEN A PLANT
POLICY FOR YEARS . THE FOLLOWING ARE BEING ABUSED
BY SOME EMPLOYEES:
1. ALL COATS MUST BE HUNG ON THE COAT RACKS
PROVIDED . YOU MUST NOT LEAVE OR PREPARE TO
LEAVE YOUR WORK STATION UNTIL THE FINAL BELL
RINGS.
2. THERE WILL BE NO SOLICITATION OF ANY KIND
DURING WORKING HOURS. THIS INCLUDES THE
SELLING OF ALL KINDS OF MERCHANDISE.
3. NO EMPLOYEE SHALL GO TO THE LUNCH ROOM FOR
FOOD DURING WORKING HOURS.
4. NO EMPLOYEE IS PERMITTED TO READ BOOKS,
NEWSPAPERS , MAGAZINES , ETC. DURING WORKING
HOURS.
THESE RULES WILL BE ENFORCED . ANYONE VIOLATING
THEM WILL BE SUBJECT TO DISCIPLINARY ACTION.
MARVIN LINK
(GC's Exh. 2)
C. Solicitation
Marylyn Van Matre, the Charging Party, credibly
testified that she knew about the Company's rule against
solicitation during her tenure of employment with Respon-
dent. However, when she was asked whether she had
observed other employees distributing advertising or
subscription literature or selling and delivering merchan-
dise or other products during working periods, she said she
had specifically observed Mary Keene distributing an
Avon folder (catalog) and selling Avon products during
work periods; and that about 2 weeks before she was
discharged, employee Sandy Fredricks yelled to her during
the working period, asking her if she wanted to buy some
Tupperware; that she advised Sandy that she did not, and
Sandy then passed the Tupperware folder (catalog) to
employee Brenda Nenniger, who works behind her. Van
Matre's credited testimony also established that she did not
know personally whether plant supervisors saw these
solicitation activities of employees Keene and Fredricks.
She further stated that as often as once a week she had
observed shoe boxes being circulated among the employees
during working periods for contributions for employee
family-related occasions such as birthdays, marriages,
846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
deaths , and resignations . The boxes usually had a note
pinned to them stating their purpose as heretofore
described , and are often passed from one machine worker
to the next during working periods but more often, during
break and lunch periods. She once observed employees
reading these order catalogs or advertising materials at
their machines during working period.3
Specifically, with respect to the circulation of boxes for
contributions, Van Matre's testimony was creditably
corroborated by the testimony of Phyllis Accord, who
testified that she had observed such boxes being circulated
during the working periods as often as once a week, and as
late as July 3, the same day Van Matre was discharged. She
further stated that she too was aware of the plant's rule
against solicitation and that, while on her break, Van
Matre gave her a union card which she (Accord ) in turn,
signed on her own break. Phyllis Accord said when she
circulated a contribution box in the past, she had done it
with the permission of Supervisors Jerry Dunning or
Delores Deck. She further stated that the circulations of
the boxes took place during the working periods while the
girls were actually sewing at their machines , but she had
not observed the circulation or solicitation of any mer-
chandise or other subject matter during work periods.
Again, with regard to the circulation of boxes and the
sale of merchandise , Van Matre's testimony was creditably
corroborated by the testimony of employee Ruth Carver,
who stated that she, personally, had distributed Stanley
folders (catalogs) and products among the employees
during the break, lunch, and work periods. In early spring
of this year, employee Carver said she distributed a folder
during the work periods about the upcoming appearance of
a musical aggregation to appear at a beer glass festival in
Emenince, Missouri; and that in August she observed
employee Faith Hackler exhibiting to employees and
circulating among them as they worked at their machines a
folder (catalog) for the sale of panties . Some of the workers
were looking at the folder while at work at their machines.
Also in August she observed employee Martha Tacket
distributing or selling some packaged items to employees
while they were working at their work stations ; and she
too, saw boxes being circulated for contributions during
work periods. When witness Carver was asked if she knew
whether Supervisor Deck or other supervisors saw the
boxes being circulated during the working periods, she
replied: "If she didn't see them I don't know what would
have kept her from seeing them". The circulation was done
openly and visible to all persons in that department.
Carver further stated that about a year ago she sold
lipstick, tupperware, pantyhose, and panties, many times
during the working periods; and that she had never been
told to refrain from doing so, nor had she ever tried to
conceal or hide her distributing or soliciting activities.
Also creditably testifying about having observed boxes
being circulated for contributions during the working
periods, was Floorlady Cibel Lutes, who stated that she
noted frequent circulations of such boxes. Lutes further
stated that she had never reported the circulation of
contribution boxes, which occurred during working peri-
ods about twice a week , and as late as mid-June 1973; and
that contribution boxes were circulated openly in a manner
which was visible to everybody, including supervisors. She
did not report her observations of the circulation of the
boxes for contributions as a violation of the rule against
solicitation, because she presumed that supervisors knew
about it, and to her knowledge, nothing was ever done
about it by management.
Supervisor Delores Deck stated that contribution boxes
are circulated as frequently as 2 or 3 times a week; and that
she too had circulated a box among workers during the
working period some time ago. However , a week ago when
she was asked by an employee to assist in circulating a box,
she advised said employee to obtain permission from
supervisor, Jerry Dunning.
Although Plant Director Davault denied having personal
knowledge of any kind of recent employee solicitation
during work periods, he creditably testified that prior to his
notice to all employees on December 8, 1972, he had
previously severely warned employees about violating the
plant's rule against solicitation ; that he had never dis-
charged an employee for such a violation; and that he was
sure that some of the plant's 550 employees had received
disciplinary warnings for violating the rule against solicita-
tions. As an example, he cited employee Mary Keene as
one person who had been warned for distributing Avon
products to employees during work periods. He admitted
that he did not know whether Van Matre did in fact stop
working when she gave the union cards to employee Lutes;
and that he did not ask Van Matre any questions about the
authenticity of Supervisor Wilker's report of her distribut-
ing the cards.
Based upon the foregoing credited testimony of Van
Matre and employees Phyllis Accord, Ruth Carver, and
Floorlady Cibel Lutes, I conclude and find that Van Matre
and practically all plant employees (including supervisors)
actually had knowledge of the existence of the no-
solicitation rule; that notwithstanding the existence of the
rule and plant employees knowledge thereof, several
employees during working periods, at all times material
herein , nevertheless engaged in the widespread and
frequent circulation of boxes for contributions towards
employee-family related occasions; that at least one plant
supervisor had actually observed, and in the recent past,
had circulated contribution boxes herself during work
periods; that such knowledge and participation of supervi-
sory personnel is imputed to Respondent; that during work
periods, some employees have engaged in solicitation or
distribution activities such as selling Avon and Stanley
products (cosmetics), panties, and pantyhose ; that Plant
Director Davault knew about some past (prior to Decem-
ber 8 , 1972) nonunion solicitation activities of employees
during working periods, who were warned or reprimanded
by himself or other supervisors for violating the no-
solicitation rule; but that no employee, except Van Matre,
has ever been discharged for violating the rule, either prior
or subsequent to its distribution and posting on December
3 Van Matte 's testimony is credited because she appeared to be telling witnesses, especially with respect to the circulation of boxes for contnb-
the truth and because her testimony is essentially consistent with , and is utions.
substantially corroborated by the credited testimony of subsequent
INLAND SHOE MFG. CO.
8, 1972; that with respect to contribution boxes, the rule
was neither strictly enforced by Respondent nor substan-
tially complied with by the employees; that Respondent
knew the rule was not enforced at all with respect to
contribution boxes, and it probably knew or should have
known that it was not strictly enforced against the selling
of products and other merchandise since these activities
were carried on openly, even if only on isolated occasions
during work periods; and that even though Van Matre
distributed the cards to Lutes during a working period, she
either did not interrupt her work or appreciably affect her
production in doing so.
D. Union Activity
The documentary evidence (G.C. Exh. 4) and the
credited testimony of Marylyn Van Matre established that
in responding to questions in the course of completing her
application which resulted in her employment with
Respondent in April, she indicated that she was not, nor
had she ever been, a member of a union. However, during
the lunch hour (between 12 and 12:30 p.m.) on July 2, Van
Matre and the girls (fellow employees) were sitting in a car
on the plant's parking lot when they were approached by
Mrs. Helen Oliver, a representative for the Union. Mrs.
Oliver introduced herself and inquired about an employee
whom Van Matre and her fellow employees did not know.
Nevertheless, Van Matre advised Mrs. Oliver that she was
interested in the Union. Thereupon, Mrs. Oliver gave her
50 blank union authorization cards for herself and other
interested plant employees to complete and sign. Van
Matre immediately distributed a card to each girl in the car
at that time, and after work, gave two of the cards to
workers in the car on the way home.
During a morning work break on July 3, the union cards
fell out of Van Matre's purse and she thereupon wrapped
them in an old sheet with which she had used to clean her
machine . She then layed the cards on the top of her purse
beside her machine . There is a conflict in the testimony of
Van Matre and Floorlady Lutes with respect to the events
which thereafter transpired as follows: On the one hand,
Van Matre testified what about 11:15 a.m. on the same
day, July 3, while at work at her machine, she was
approached by Floorlady Cibel Lutes who distributes work
to the girls; that Lutes asked her if she had any union cards
and she said "Yes," and Lutes thereupon pointed to a box
beside the machine (indicating to Van Matre to throw the
cards in the box), and Van Matre picked up some cards
(which were lying on top of her purse) and with one hand
threw them into the box without stopping her work at the
machine . Her immediate supervisor, Evelyn Wilker, was on
the other side of the room (40 or 50 feet away) at the time
4 l credit Van Matre's testimonial account of how she came to throw the
union cards in Lutes' box, not only because Van Matre impressed me that
she was telling the truth , but for the following reasons: Van Matre does not
deny that she distributed the cards to Lutes, but Lutes , assuming her version
of t;ie conversation is true , told Van Matre she would not sign a union card
if ¶ he were given one. Nevertheless , Lutes asked Van Matre if she had some
cards, then permitted the latter to throw the cards into her box which she
was carrying or about to carry and which she did not return to Van Matre,
but walked away with the cards in the box as if she had not previously
expressed no personal interest therein. Such conduct on Lutes' part appears
847
and Van Matre did not know how Floorlady Lutes knew
she had the cards.
On the other hand, Floorlady Lutes testified that when
she approached Van Matre at her machine, the latter asked
her if someone gave her a union card would she sign it, and
she (Lutes) responded: "No," but that she asked Van
Matre if she had cards and Van Matre said just a minute,
reached into her purse and took out the cards which were
wrapped in a worksheet and dropped them into her
(Lutes') box that she was carrying. Lutes said she then
reported this incident to her supervisor, Evelyn Wilker, and
she (Lutes) gave the cards to Plant Director Davault. When
Lutes was asked why did she keep the cards rather than
returning them to Van Matre since she had told the latter
that she would not sign them, Lutes said she took the cards
just out of curiosity and that she did not return them to
Van Matre because the latter had dropped them in her box
and because "there is not suppose to be any solicitation of
any kind in the factory during working hours." 4.
Director Davault creditably testified that Supervisor
Wilker had previously asked him "could we discharge
someone for distributing union cards during work time?"
and he said "Yes, provided we have proof on it." Later
Lutes handed the cards (as wrapped) to him while standing
outside his office.
Based upon the foregoing documentary evidence (G.C.
Exh. 4) and the credited testimony of Van Matre and
Director Davault, I conclude and find that Respondent's
use of its application form for employment, calling for the
disclosure of union affiliation which Van Matre had
completed, constituted interference and coercive conduct
on the part of Respondent with respect to the exercise of
employee rights guaranteed under Section 7 of the Act;
that although such conduct has been abated by recent
revision of the application form, since it was originally
instituted, its nonrevival should be assured by remedial
order; that when said inquiry is considered along with the
subsequent credited testimony of Director Davault's
conversation with Van Matre during the meeting in which
she was discharged, it is clear that Respondent (Director
Davault) had knowledge of Van Matre's union activity
(distributing union cards on July 3) fromSupervisor Wilker
and/or Floorlady Lutes, who reported Van Matre for
allegedly violating the plant's no-solicitation rule.
E. Discriminatory Discharge
The credited and undisputed testimony of Van Matre
established that as she entered the door on her return from
lunch about 12:30 p.m. on the same day, July 3, and
stopped to clock in, she noted that Supervisor Wilker was
holding her timecard. She then asked Supervisor Wilker if
she (Wilker) was going to watch her clock in and Wilker
to be inconsistent with a conclusion of innocence of solicitation , especially
since Lutes immediately reported the incident to Supervisor Wilker and
delivered the cards to Plant Director Davault . Such conduct is also
indicative of conduct designed to induce a fellow employee to violate the
no-solicitation rule resembling a form of entrapment , and it infers that
Lutes was in opposition to the Union as her conduct implies . Hence , a close
examination of Lutes' conduct in opposition to the Union indicates that she
has a motive for not being a truthful witness with respect to the matter as to
who initiated or induced the distribution of the cards during the work
period.
848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
said "No, we're going in here where its cool ." Van Matre
was then escorted by Wilker into Director Davault 's office.
A moment later , Director Davault came into the office and
asked them to have a seat and called his office manager or
secretary, Inez Whittaker, to come into the office to
witness what was about to take place.
There is a conflict in the testimony of Van Matre,
Wilker, Plant Director Davault, and Office Manager
Whittaker, with respect to the conversations which ensued
in the office . According to Van Matre's testimony, Plant
Director Davault said, "Hi," and laid three union authori-
zation cards on his desk which he said Van Matre had been
passing out ; that he (Davault) said to Van Matre , that she
knew he was against the Union when she came to work
there . She responded "Yes"; that she did know ; and that
Director Davault then advised her that she was fired and
that he wanted her to know why she was fired . Specifically,
she said Davault said she had been passing out union cards
on company time, and that she said , "I could have found
them in a box, but I did not on company time"; that he
then said he even knew where we were having our little
union meetings and that he was fighting the Union. She
responded , "and I am fighting for it." At this point,
Director Davault instructed Office Manager Whittaker to
prepare her check . Van Matre further stated that at no time
during their conversation was she asked did she distribute
the cards during work time . Nor was she ever advised that
she was behind in her work or that her work was
unsatisfactory or that she took off early for lunch or
violated any other rules of the plant.
Director Davault's testimonial account of the conversa-
tion which transpired in his office at the time of Van
Matre 's discharge was as follows : On July 3, about 1 p.m.,
Supervisor Wilker brought Van Matre to his office and he
asked them to have a seat as he went to the door and called
his secretary or office manager, Mrs. Whittaker, to come in
and witness the conversation. "I held up the union cards
that I received from Mrs . Lutes . I told Mrs . Van Matre that
I had union cards that she had been soliciting during work
time, shortly before noon. I told her, and I quote, `you're
being discharged for soliciting union cards during work
time . This is against company policy. Any activities such as
these must be conducted on your own time .' " He then
asked Van Matre if she had anything to say, and she
shrugged her shoulders and said nothing. "I then told Mrs.
Wilker to take her to the office waiting room and be
seated." I directed Mrs. Whittaker to prepare her final
check . Director Davault denied that he told Van Matre
that he would fight the Union to his last breath , or words
to that effect . Nor did he say that she knew he was against
the Union when she was hired. He stated that he was
3 I credit Director Davault's testimony with respect to his attitude
towards unions which he in his own testimony admitted has existed for
some time (particularly prior to July 3) and during the employment tenure
of the dischargee , Marylyn Van Matre. Such attitude on the part of Director
Davault (which he stated is representative of the plant's attitude) is the
clearest evidence of union animus . In terms of the additional conflict in the
testimonial account of the conversations which transpired during the
discharge meeting in the office of Director Davault on July 3, 1 further
credit Van Matre 's testimonial account and discredit Davault's testimonial
account, not only because she appeared to be telling the truth but also
because her account is consistent with the substantial evidence of Director
Davault's union animus . Although Khrector Davault's testimony about the
informed by Supervisor Wilker that Van Matre was
distributing union cards and that he actually received the
cards from Floorlady Lutes . He further stated that the
plant gives employees a 10-minute break in the morning
and 10 minutes in the afternoon.
Director Davault admitted that Mrs. Wilker did not
advise him that she saw Van Matre distributing the union
cards and Floorlady Lutes did not tell him that Van Matre
was distributing union cards , she just gave the cards to
him. He stated that Van Matre was a qualified company
worker with a good record and that her earnings at all
times were equal to or above the minimum wage as a piece
worker . He did not have any evidence that Van Matre had
stopped working when she gave the union cards to Lutes
but he was of the opinion that she had stopped her work
and he did not question Van Matre about the authenticity
of Wilker's report that she (Van Matre) was distributing
union cards during work time.
Later in his testimony with regard to the General
Counsel's charge of Respondent's surveillance of employ-
ees union meeting on July 26, Director Davault said that
employees ' union meetings were of extreme importance to
his knowing whether the employees were trying to organize
a union because such efforts represent a discredit to
management ; that management wants to satisfy the
employees without any outside interference from unions or
other people ; that he considered the Union outside
interference ; that everybody in Inland Shoe Company
knows that that is the way he feels about the Union
because the Company has been through this matter before
with elections several times ; and that he has bitterly fought
union organization because Respondent (the Company)
has been opposed to them.5
Based upon the credited testimony of Van Matre and
Director Davault, I conclude and find that on and prior to
July 3, Respondent (Director Davault) manifested strong
and longstanding animus towards unionization of the
plant; that Respondent had knowledge of Van Matre's
union activity on July 3 because Supervisor Wilker
informed Director Davault that Van Matre was distribut-
ing union authorization cards to fellow employees during
the work period , and Floorlady Lutes gave said cards to
him; that about 1 p.m. on the same day, without giving her
an oral warning, without investigating Supervisor Wilker's
report, without asking Van Matre about the authenticity of
the report, or without inquiring whether her production
was interrupted , Director Davault discharged Van Matre,
allegedly for violating the plant's no-solicitation rule; and
that if the no-solicitation rule were in fact valid , Respon-
dent's discharge of Van Matre was discriminatory and in
violation of Section 8(aX3) and (1) of the Act for the
discharge conversations was corroborated by his Office Manager Whittaker,
I do not give persuasive weight to her testimony because I received the
impression that she was not telling the whole story and because she works
directly under his supervision and it would be reasonably expected that it
would be uncomfortable , or perhaps not in her best interest, to give
testimony adverse to Director Davault's interest and contradictory to his
own testimony. In discrediting Director Davault's version of the discharge
conversations, I also took into consideration the fact thatSupervisor Wilker,
who informed Davault that Van Matre was distributing union cards during
work period, did not appear and testify at the hearing. No explanation was
offered for her absence
INLAND SHOE MFG. CO. 849
following reasons: (a) Respondent's knowledge of Van
Matre's union activity on July 3; (b) Respondent animus
towards unionization of plant employees on and prior to
July 3; (c) Respondent's discharge of Van Matre allegedly
for violating a presumably valid plant no-solicitation rule,
which was not enforced against widespread and frequent
nonunion solicitations during work periods, but for the
first time, was discriminatorily enforced against Van Matre
for union solicitation during working period on July 3; (d)
Respondent's discharge of Van Matte on July 3 was
substantially motivated by union animus towards her
union activity (soliciting for the union); and (e) Respon-
dent's asserted reason for discharging Van Matre on July 3
because she was violating a presumably valid no-solicita-
tion rule is clearly pretextual.
F. Surveillance of Union Meeting
Supervisor Delores Deck creditably testified that while at
work on Thursday, July 26, she was approached by Plant
Director Davault who asked her, either, "Do you know
that there is a union meeting?" or "Are you going to a
union meeting," on that evening, and she said "No, I've got
enough trouble of my own." Supervisor Deck did not know
about the union meeting until she was questioned by
Director Davault. On the next day, in the presence of
employee Phyllis Beal, she said she implied to employee
Ruth Carver that Director Davault had asked her to attend
the union meeting the night before and she told him, "If I
went I would go on my own" and "If I went on my own, I
wouldn't have seen eye to eye with everything they said out
there and I probably would have spoken up and there
would have been a disagreement because there are good
and bad points on both sides. However, at the hearing,
Supervisor Deck said her above implied statements to the
girls (Ruth Carver and Phyllis Beal) were not true; and that
Director Davault did not ask her to go to the meeting.6
The credited testimony of Marylyn Van Matre estab-
lished that she went to the union meeting at the Carrol
Motor Inn (the Inn) on July 26. The Inn is located just
outside Advance, Missouri. Van Matre arrived at the Inn
in her car with employee Ruth Carver about 7:35 or 7:40
p.m. and parked in front of the Inn. As she got out of her
car she observed a station wagon passing them at a slow
rate of speed . The slow speed is what attracted her
attention and she recognized and identified the driver as
Plant Director Davault. At that time he was driving in the
direction of the plant. After entering the motel, Van Matre
had occasion to go to the storm door about 8:10 p.m. to see
if other plant employees were coming to the meeting and
again, she saw the same station wagon (in which she had
seen Director Davault) turning around in the parking lot of
the "Lonely Widows Lounge," just across the road from
6 1 credit the testimony of the witness with respect to her first statement
that she was asked by Director Davault whether she knew about the
meeting or was she going to the union meeting on July 26. 1 also credit the
witnesses testimony with respect to the conversation she held with
employees Ruth Carver and Phyllis Beal, but not with respect to the alleged
implication that Director Davault asked her to go to the meeting, because
this appears to be a misunderstanding in communication . At least it is not
clear that such an import was intended or implied by the communication.
Rather , it appears that the witness was merely advising the employees about
her conversation with Director Davault as she testified at the hearing. That
the Inn. The station wagon was driven north toward town.
Finally, as she, several plant employees, and Mrs. Oliver,
the union representative, were leaving the Inn about 8:30
p.m., she saw Director Davault's station wagon again
driving slowly by the Inn.
The essence of the credited testimony of Helen Oliver,
the union representative, substantially corroborates the
testimony of Van Matre in the following respects: She
arrived at the Inn on July 26, between 6:30 and 7 p.m., at
which time she saw the station wagon driven by Director
Davault, whom she had seen and had been identified to
her earlier in July; that shortly after 7:30 p.m., Van Matre
and Carver were standing at the storm door of the Inn
when they attracted her attention to the same station
wagon which was about to enter the motel parking lot; and
that when the union meeting terminated at 8:30 p.m., while
on the Inn's parking lot, she saw the same station wagon
driving slowly pass the Inn's parking lot. She said she
believes the speed limit on the highway in question
(highway 25) is between 45-60 miles per hour.?
Director Davault denied that he was engaged in
surveillance of the union meeting at the Inn on July 26,
although he admitted that he was on highway 25, by and
across from the Inn, on three occasions, essentially around
the three times designated by the testimony of Van Matre
and union representative Oliver. Director Davault's expla-
nation for his presence in that vicinity on three occasions
during that evening is as follows: He first passed the Inn
on his way from the Parmer plant in Maldon, Missouri, to
the plant in Advance, where he also lives; that Advance is
about 1/2 mile beyond the Inn; that he passed the Inn
about 7:30 p.m.; that he shortly thereafter entered the
plant and was checking some managerial chores when he
discovered that the boxtoe machine was not functioning;
that he then tried to contact Foreman Jerry Dunning, but
noting that he was not at home, he proceeded to drive "up
through town looking for him because Dunning could
repair the machine and he needed to consult with the latter
about production before going to the Parma plant the next
morning.
In looking for Dunning, Director Davault said:
A. I went up to the main part of town. I don't
know if it is Main Street. I wouldn't swear to it. It is a
street that runs between Jo Jo's Tavern and Cecil's
Tavern. I looked for Mr. Dunning. He was not there. I
circled the block and went out by the Lonely Widows
Lounge to see if he was there. He was not.
s s s s
A. I turned in the driveway, swung out so that I
could see the cars that were parked in the road. There
were about eight cars parked on the south side. He was
is, either he asked her if she knew about the union meeting or whether she
was going to attend the meeting. This appears to be what transpired even
though the witness said she lied . I believe she meant she did not adequately
express herself especially since I got the impression at the hearing that she
does not express herself clearly.
7 I credit the testimony of Van Matre and Union Representative Oliver,
with respect to the proper identity of Director Davault and his station
wagon, because their description of Davault and the station wagon was
essentially consistent and corresponded with Director Davault 's admission
of his presence in the vicinity of the Inn on July 26.
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not parked there . I made a circle as short as the car
would turn . I don't know how short that would be.
Drove in front of the tavern and across over to the M &
R Drive Inn. There were three cars parked in front of
the tavern . I noticed Harold Stilts' truck parked in
front of the M & R Drive Inn. As I got to the point
where I could see behind the drive in I noticed another
truck there belonging to Paul Buessink . On the spur of
the moment I decided to stop in there and get a malt
and talk to them, which I did.
A. I parked it in back of the drive in where I saw
Mr. Paul Buessink 's truck.
Q. Would you describe the location of the Lonely
Widows Tavern and the M & R driveway?
A. They both face Highway 25 for a distance of ten
foot between the two buildings.
Q. Do they have a common front in terms of
parking?
A. Yes, they have a common front which is a
common parking lot.
A. We all got up at the same time and walked to
the front of the building. I paid for my malt. Mr. Stilts
went out the front door. Mr. Buessink and I went out
the back door. We all got in our vehicles about the
same time. Harold pulled out on the road before I did.
I pulled out behind him. Mr. Buessink pulled out
behind me.
Q. When you pulled onto Highway 25, where did
you go?
A. I went directly to the factory.
Q. What direction is that?
A. West on 25.
Q. What did you do the rest of the night?
A. I worked until 9:45 in my office and went home.
Q. Now, why did you search the taverns for Mr.
Dunning?
A. Mr. Dunning has a habit of drinking during the
afternoon after work. I found him several times prior to
that at these taverns. We have three that he goes to.
Q. When you say afternoon, would you say what
period of time that would be?
A. Well, he usually goes over about 6, between 6
and 8 , before that, have two or three beers before going
to bed that night.
Q. Did you stop that car on the night of July 26,
1973, and keep the Carrol under surveillance?
A. No, sir.
Director Davault's testimony about having a malt at the
M & R Tavern and his search for Jerry Dunning was
corroborated by Harold Stilts, who has sold electrical
s I credit Director Davault's testimony that he was in the immediate
vicinity of the Inn at the times heretofore designated by the witnesses, but I
discredit his denial that he was not engaged in surveillance of the union
meeting for the following reasons : (a) it is against the weight of the logical
consistency of the credited evidence ; (b) it is contrary to his interest in the
union meeting manifested by his inquiry of the same to Supervisor Deck; (c)
it is the antithesis of his emphatically expressed curiosity about the
appliances and has repaired such items for compensation
by Respondent's plant. Davault admitted that he has a
station wagon which the evidence shows (essentially)
matches the description given by witnesses Van Matre and
Oliver. He also admitted that he knew where the union
meeting was being held on July 26 and that he probably
did ask Supervisor Deck if she knew about the union
meeting on July 26, but he did not see any of the
employees on that evening when he was in the vicinity of
the Inn . When asked why did he ask Supervisor Deck
about the union meeting being held on July 26, Director
Davault replied:
A. The only reason I would have asked her would
be to find out if she was aware there was a union
meeting out there.
Q. Why would that have been a matter of concern
to you since you already knew from Mr. Link that there
was such a meeting?
A. I would say it would be of extreme importance
to me whether or not employees were trying to organize
a union.
Q. Why?
A. This would be a discredit to management if
employees were not suitable to pay by management of
the factory.
Q. You were opposed to organizations?
A. The management wants to satisfy the people
without any outside interference from unions or other
people.
Q. An organization you feel would be outside
interference?
A. I feel that union is an outsider , yes, sir.
Q. That is an interference?
A. Yes, sir, I feel it is.
Q. It is a discredit to management , you feel?
A. Yes, sir.
Q. You have made that attitude perfectly clear,
haven't you?
A. What do you mean by that?
Q. Everybody knows how you feel?
A. Everybody knows at Inland Shoe that is how I
feel because we have had elections before . We have
been through them several times.
Q. You have bitterly fought organization, haven't
you?
A. Yes, we have opposed them.8
Based upon the foregoing credited and undisputed
testimony of Supervisor Deck and Director Davault, I
conclude and find that Plant Director Davault knew in
advance that a union meeting was scheduled to be held at
the Inn on the evening of July 26 , and that he manifested
an interest in said meeting. Moreover, based upon the
foregoing credited testimony of dischargee Van Matre,
Union Representative Helen Oliver , and Plant Director
Gary Davault, I further conclude and find that Director
employee's efforts to unionize and his (Respondent 's) strong opposition to
unionization of plant employees ; and (d) because while his testimony about
his search for Foreman Dunning might be truthful , it is obviously like an
alibi and is pretextual , when weighed against all of the evidence which
demonstrates that he was satisfying his acknowledged curious appetite for
knowledge of the employees union activity.
INLAND SHOE MFG. CO. 851
Davault was within reasonable visual proximity of the
Carrol Motor Inn on July 26 at approximately 7:35 p.m.,
8:10 p.m ., and 8 : 30 p.m ., so as to have enabled the above-
named witnesses to see and identify his station wagon and
himself, and reasonably so as to have enabled himself to
see and identify Van Matre, Mrs. Oliver, and other plant
employees in front of the Inn ; that dischargee Van Matre,
Union Representative Oliver, and several plant employees,
including employee Ruth Carver, were present at the union
meeting at the Inn on the evening of July 26, during which
time , Van Matre and Mrs . Oliver did in fact see and
identify Director Davault's station wagon and Director
Davault driving slowly by the Inn on three occasions, at
approximately 7:35 p.m., 8:10 p .m. and 8:30 p.m.,
respectively ; that Director Davault's credited testimony
essentially corroborates their testimony to the extent that
he was driving his station wagon at the times and places
designated by the witnesses ; that since witnesses Van
Matte and Oliver were standing on the Inn's lot at 7:35
p.m. and were able to see and identify Director Davault
and his station wagon , it is only logical to presume, in the
absence of creditable evidence to the contrary, and I so
find , that he probably did see and identify Van Matre,
Mrs. Oliver , and perhaps some of the other employees in
front of the Inn when they saw and identified him; that in
order to aid his observation and identification of plant
employees , he drove slowly (10 or 20 mph on a highway
with a speed limit of 45-60 mph) when he was passing the
Inn; that Director Davault emphatically stated that he was
interested in the union meeting because it was of extreme
importance to him to know whether the employees were
trying to organize a union because that would be a
discredit to management and he (Respondent) was
opposed to the Union ; that under such circumstances, his
arrivals and departures by the Inn were too frequent in
number and too precise in time to attribute to coincidence;
and that such conduct on his part constitutes surveillance
of employees union activities by Respondent, in violatioA
of Section 8(a)(1) of the Act.
Analysis and Conclusion
I find upon the credible evidence of record that the
Respondent 's action in promulgating, posting, maintain-
ing, and enforcing a broad rule prohibiting "any kind of
solicitation during working hours" is invalid and violative
of Section 8(a)(1) of the Act, because such rule might
reasonably be construed by some of Respondent's employ-
ees as prohibiting union solicitation during nonworking
time . This position is amply supported by decisions of the
Board in Avon Convalescent Center, Inc., 200 NLRB No.
99, cited by the General Counsel, and in WIPO, Inc., 199
NLRB 649. In Joseph Horne Co., 186 NLRB 754, the Board
held that "A no-solicitation rule which is overly broad,
whether enforced or not, has an inhibiting effect on lawful
organizational activities and is therefore illegal ." Literally,
the Respondent's broad and ambiguous rule herein does
not make exception for nonworking periods during the
whole working day and therefore, clearly implies a
prohibition against union solicitation on company property
during the nonworking time of the employees.
Counsel for the Respondent contends that the mere fact
that Respondent's no-solicitation rule was expressed in
language which prohibited solicitation "during working
hours" does not render the rule invalid on its face. In
support of this position he cited Ward Manufacturing, Inc.,
152 NLRB 1270 ( 1965). However , a close examination of
the above-cited case reveals that the language of the no-
solicitation rule in that case was against solicitation
"during working hours unless prior written approval has
been obtained." Clearly, this is a conditional , rather than
an unconditional and absolute prohibition , as is proscribed
in the rule in the instant case . Moreover, it is further noted
that the decision in the Ward case was not based primarily
upon the clarity or construction of the words "during
working hours." More precisely, the decision in the Ward
case was predicated upon the purpose of the promulgation
of the rule, which was found to have been based upon a
discriminatory purpose . In view of this obvious distinction,
the principal of the Ward case is not applicable to the facts
in the instant proceeding.
Assuming that the Respondent 's no-solicitation rule is
not overly broad and invalid , but rather , on its face is
concise and is presumptively valid . I nevertheless find
upon the evidence of record that at all times material
herein, Respondent's employees frequently and openly
circulated contribution boxes amongst all employees in
the department during work periods ; and that such
circulations were not only known by supervisory personnel
but on some occasions included their approval and
participation . I also find that certain employees of
Respondent , openly sold (on occasions subsequent to
December 8, 1972) Avon and Stanley products as well as
other merchandise to fellow employees during work
periods . Since the evidence shows that such selling or
solicitation activities were carried on openly, to the
knowledge of management in the past (prior to December
8, 1972) and to the knowledge of some employees at the
present time , it is apparent that some supervisory personnel
in all probability knew about them . In any event, it is
unequivocally clear that supervisory personnel of Respon-
dent had knowledge of the undisputed and frequent
circulation of collection boxes during work periods. Such
knowledge of supervisory personnel is knowledge on the
part of Respondent . Under these circumstances the
conclusion is inevitable that Respondent 's presumptively
valid no-solicitation rule was not enforced against nonun-
ion-employee solicitations during work periods , but was,
disparately enforced against Van Matre for distributing
union cards on July 3. Since such discriminatory action
was taken by Respondent on July 3 , purportedly upon a
presumptively valid or invalid no-solicitation rule, a
remedial order should be issued to prevent any future
discriminatory application of a valid or presumptively
valid no-solicitation rule.
The disparate nature of Respondent 's discharge of Van
Matre on July 3 is further amplified when it is noted that
employees who violated the rule in the past were given an
oral warning, and that Van Matre is the first and only
employee discharged for violating the rule . Not only was
Van Matre discharged , but she was discharged without any
oral warning as others had received, and without Respon-
dent making any effort to investigate the authenticity of
852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the report of her solicitation, or to make a determination as
to whether her production was significantly interrupted in
the course of distributing the cards. The evidence is clear
that Van Matre did not stop working when she passed the
cards to Lutes. Consequently, it cannot be maintained that
her production was appreciably or even noticeably
affected. However, even if Van Matre's distribution of the
union cards interrupted her work, it was only momentarily
interrupted, and such minuscule interference with work has
been held to be so minimal that an employer's real concern
is not the flow of production, but rather, the curtailment of
union organizational activity. Selwyn Shoe Manufacturing
Corporation, 172 NLRB 674, and Mason & Hanger-Silas
Mason Co., Inc., 167 NLRB 894. It is obvious from the
evidence of the abrupt discharge of Van Matre (an
admittedly competent and highly satisfactory employee)
that Respondent was more concerned with her organiza-
tional activity than with what effect interruption in her
work had on production. Respondent's action in discharg-
ing Van Matre, therefore, constitutes a discriminatory
application of a presumptively valid no-solicitation rule,
which the Board has repeatedly held to be violative of
Section 8(a)(3) and (1) of the Act. Green Tree Electronics
Corporation, 176 NLRB 917, and Universal Cigar Corpora-
tion, 173 NLRB 865.
Counsel for the Respondent also contends that the
Board has held that solicitations for beneficient causes do
not justify a finding that an otherwise presumptively valid
no-solicitation rule is unlawful. In support of this conten-
tion, he cites Sequoyah Spinning Mills, Inc., 194 NLRB
1175. However, an examination of the Sequoyah case
reveals that the Board essentially held that where the
evidence shows that certain nonunion solicitations took
place during working time, before a no-solicitation rule
was recently revised, and one of the solicitations thereafter
was for the purpose of collecting money to purchase
flowers for the funeral of the relative of an employee, such
departures from the rule do not justify a conclusion that
the no-solicitation rule was discriminatorily applied. Even
in the Emerson Electric Co. and the Serv-Air, Inc., cases,
cited in the Sequoyah case, it is clearly demonstrated that
permitted, occasional or infrequent, beneficent worktime
solicitations (for funerals, the ill , etc.) do not constitute a
departure from the rule of such magnitude as to result in a
widespread and common practice in derogation of the rule.
More precisely, the Board held that the "permitted
worktime solicitations set forth therein were solely for
beneficent causes and, further, even too isolated to
establish disparate application of Respondent's otherwise
lawful rule."
Since the evidence in the instant proceeding is unequivo-
cally clear that widespread worktime beneficent solicita-
tions were frequently (two and three times a week) carved
out by Respondent's employees with the knowledge, and
sometimes the participation of supervisory personnel, it is
obvious that such solicitations do not fall within the
exception enunciated in the above-cited cases. Hence, said
cases , distinguishable as they are, do not govern the
solicitation in the instant proceeding which gave rise to a
disparate or discriminatory application of Respondent's
rule, thereby constituting a violation of Section 8(a)(3) of
the Act.
In view of Respondent's (Director Davault's) longstand-
ing, admitted, undisputed and creditably corroborated
animus towards the Union, and its knowledge of Van
Matre's union activity (distributing union cards) on July 3,
for which she was discharged, the evidence of record is
more than sufficient to support the conclusion that
Respondent's discharge of Van Matre, and its failure or
refusal to rehire her, were substantially motivated by union
animus. Consequently, the evidence is equally clear that
Respondent's contention that Van Matre was discharged
for violating its no-solicitation rule is merely pretextual.
Since Respondent's discharge of Van Matre and its failure
or refusal to rehire her are based substantially and
practically entirely upon her union activity, such discharge
and failure or refusal to rehire her, interfered with,
restrained , coerced, and discriminated against her in the
exercise of her Section 7 protected rights, in violation of
Section 8(a)(3) and (1) of the Act. J. P. Stevens & Co. v.
N.L.R.B., 380 F.2d 292, 300 (C.A. 2, (1967)).
A review of the evidence of record readily reveals that a
determination of the question as to whether Respondent
(Director Davault) engaged in surveillance of the union
activities of its employees on July 26, depends upon an
evaluation of the credibility of the conflicting testimony of
the witnesses herein and the chain of probative circumstan-
tial evidence as a whole. In making such an evaluation, I
took into consideration not only the impressions of
veracity I received from observing the witnesses testify but
also their concurring testimonies , all probative evidence
bearing on a motive likely to have affected their veracity,
and the logical consistency of the evidence in light of the
prevailing circumstances prior and subsequent to July 3.
Thus, having reviewed the evidence as a whole, I conclude
and find that while Director Davault might have had a
plausible and legitimate reason (his search for Jerry
Dunning) for being in the immediate vicinity of the Inn on
July 26, I nevertheless find that the frequency of his
presence in the vicinity coinciding with the exact date and
times employees were present for their meeting, obviously
and logically related to his foreknowledge of the scheduled
union meeting and his admitted and reported interest in
knowing about the employees union organizational efforts.
Such factors clearly demonstrate that his presence in the
vicinity of the meeting was in furtherance of his admitted
interest in the employees'union activity, and to conduct a
surveillance of the employees organizational meeting. In
doing so, Respondent's (Director Davault's) conduct
constitutes a design and an effort to interfere with, restrain,
and coerce its employees in the exercise of their rights
guaranteed under Section 7 of the Act, which resulted in a
violation of Section 8(a)(1) of the Act.
Counsel for the Respondent contends that the mere
presence of Respondent (Director Davault) in the immedi-
ate vicinity of the Inn on July 26 does not necessarily
constitute surveillance , especially when its presence in the
vicinity is reasonably explained. In support of his conten-
tion counsel cites Hamburg Shirt Corporation, 156 NLRB
511, and other cases which made a finding on the limited
theory of his contention. However, it is particularly noted
INLAND SHOE MFG. CO.
that in not one of the cases cited by counsel for
Respondent was there such an abundance of probative and
corroborated evidence that management had foreknow-
ledge of the union meeting; that management inquired of a
supervisor as to whether she knew about or was going to
attend the union meeting ; and that management emphati-
cally confessed its interest in knowing about the organiza-
tional activities of its employees because it strongly
opposed unionization of plant employees. When these and
the other evidentiary factors are taken into consideration,
the cases cited by counsel for Respondent are thereby
rendered obviously distinguishable from, and are not
applicable to, the Respondent's conduct in the instant case.
IV. THE EFFECTS OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the operations of the
Respondent described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in unfair
labor practices warranting a remedial order, I shall
recommend that it cease and desist therefrom and that it
take certain affirmative action to effectuate the policies of
the Act.
It having been found that Respondent interfered with,
restrained , and coerced Marylyn Van Matre and/or its
other employees in the exercise of their Section 7 protected
rights , in violation of Section 8(a)(1) of the Act; and that it
discharged Marylyn Van Matre in violation of Section
8(a)(3) and (1) of the Act, the recommended Order will
provide that Respondent offer her reinstatement to her job,
and make her whole for loss of earnings within the
meaning and in accord with the Board 's decisions in F. W.
Woolworth Company, 90 NLRB 289, and Isis Plumbing &
Heating Co., 138 NLRB 716, except as specifically
modified by the wording of such recommended Order.
Because of the character of the unfair labor practices
herein found , the recommended Order will provide that
Respondent cease and desist from or in any manner
interfering with , restraining, and coercing employees in the
exercise of their rights guaranteed by Section 7 of the Act.
N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532, 536 (C.A. 4,
1941).
Upon the basis of the above findings of fact and upon
the entire record in this case , I make the following:
CONCLUSIONS OF LAW
1. Inland Shoe Manufacturing Co., Inc ., the Respon-
dent , is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
B 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.
853
2. United Shoe Workers of America, AFL-CIO, is and
has been, at all times material herein , a labor organization
within the meaning of the Act.
3. By discriminating in regard to the tenure of
employment of Marylyn Van Matre, thereby discouraging
membership in the Union, a labor organization, Respon-
dent has engaged in unfair labor practices condemned by
Section 8(a)(3) and (1) of the Act.
4. By interrogating (on its application for employment)
Van Matre and other employees about their past and
current union affiliation, and by conducting a surveillance
of their organizational efforts, Respondent violated Section
8(a)(1) of the Act, except to the extent that such rights may
be affected by lawful agreements in accord with Section
8(a)(3) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDERS
Respondent, Inland Shoe Manufacturing Co., Inc., its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Promulgating, distributing , posting, maintaining, and
enforcing a broad ambiguous and invalid no-solicitation
rule prohibiting union solicitation during employees
nonworking periods.
(b) Disparately or discriminatorily enforcing its rule
against employee union solicitation.
(c) Discharging or otherwise discriminating against
employees in regard to hire or tenure of employment, or
any term or condition of employment because of protected
concerted activities.
(d) Interfering with, restraining, coercing, or discriminat-
ing against employees exercise of their Section 7 protected
rights, by engaging in surveillance of their union or
concerted activities.
(e) Coercively interrogating (in written application form
or otherwise) employees about their and other employees'
union membership, activities, and desires.
(f) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights guaran-
teed in Section 7 of the Act except to the extent that such
rights may be affected by lawful agreements in accord with
Section 8(a)(3) of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer Marylyn Van Matre immediate and full
reinstatement to her former position or, if such position no
longer exists, to a substantially equivalent position, without
prejudice to her seniority or other rights previously
enjoyed, and make her whole for any loss of pay suffered
by reason of the discrimination against her with interest at
the rate of 6 percent, in the manner described in the section
entitled "The Remedy."
(b) Preserve and, upon request, make available to the
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.
854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 the recommended Order.
(c) Post at Respondent's plant at Advance, Missouri,
copies of the attached notice marked "Appendix." 10
Copies of said notice, on forms provided by the Regional
Director for Region 14, after being duly signed by
Respondent's representatives, shall be posted by it immedi-
10 In the event the Board's Order is enforced by a Judgment of the
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
ately upon receipt thereof, and be maintained by Respon-
dent for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
Respondent- to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 14, in
writing, within 20 days from receipt of this Order, what
steps the Respondent has taken to comply herewith.
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board."