Knoch, Kiley, and Swygert, Circuit Judges. Kiley, C. J., dissenting.
The petitioner, Wm. H. Block Company, filed its petition to review and set aside an Order of the National Labor Relations Board, respondent, and the Board filed its Petition to Enforce that Order.
Two complaints were issued charging the petitioner with violations of § 8(a)(1), (3) and (4)*fn1 of the National Labor Relations Act, as amended, in the discharge of two employees, Allen Maxwell and Paul Harlan, because of their union activity and because they gave testimony before the Trial Examiner in a hearing on two prior cases.
The two complaints were consolidated for hearing. The Trial Examiner determined that neither employee was discharged because of union activity or testimony in the prior hearing but on the contrary had been discharged for cause. He recommended dismissal of the complaints.
On exceptions filed by the General Counsel, the Board found that both employees were discriminatorily discharged and ordered them reinstated and given back pay. The petitioner seeks to review and set aside the Board's Order and the Board seeks to enforce its Order.
The facts are largely undisputed.
The petitioner operates five retail department stores in Indiana. It also has a Service Building at which both these employees worked.
The manager of operations and assistant to the president of the petitioner was Edwin Hinnefeld. He made the decision to discharge the two employees. Until he left the petitioner's employ in February, 1964, Thomas Kimberlin was personnel director. He reported directly to Mr. Hinnefeld. The manager of the Service Building at the pertinent time was Charles Roller who also reported directly to Mr. Hinnefeld. The two employees were under the supervision of Raleigh Wininger who was general receiving and marketing manager. He reported to Mr. Roller, who succeeded Francis Cunningham as manager of the Service Building in November, 1963.
At the pertinent times the petitioner had distributed to new employees a book entitled "You" which contained a copy of the petitioner's no-solicitation rule, as follows:
"No solicitations, subscriptions, sale of tickets or posting of placards may be made in the store for any need or project without the knowledge and approval of the Personnel Director."
"It is a store policy that associates refrain from soliciting contributions at any time for a gift to those in supervisory or executive positions. Associates are requested not to make any such contributions if approached."
Paul Harlan was employed in the Service Building as a "lister " counting and checking merchandise against orders and putting it on a conveyor line to be marked.
During the latter part of March and April, 1963, the Retail, Wholesale and Department Store Union, AFL-CIO, was trying to organize the Service Building employees. Mr. Harlan signed a union card, attended meetings, and, with another employee, Larry Bolton, solicited other employees by passing out cards during working time. When Mr. Roller advised him of the no-solicitation rule, he signed an acknowledgment of receiving notice of such a rule but continued the solicitation during working time. He and Larry Bolton were both laid off for one week in April, 1963. This lay-off was the subject of an unfair labor practice charge and complaint. Mr. Harlan testified on behalf of the General Counsel at the hearing on that complaint. The Trial Examiner found both men were discriminatorily laid off on the ground that solicitation had been permitted with impunity for many purposes and that the rule against solicitation had been invoked here with the ...