The J. L. Hudson Co.

172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The J. L. Hudson Company and Retail Store Employ- ees Union, Local No. 876, Retail Clerks Interna- tional Association, AFL-CIO. Case 7-CA-8540 July 12, 1972 DECISION AND ORDER On October 5, 1971, Trial Examiner Thomas A. Ricci issued the attached Decision in this proceeding. Thereafter, both Respondent and General Counsel filed exceptions and supporting briefs, and Respon- dent filed an answering brief. 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, as herein modi- fied. For the reasons set forth in his Decision, we affirm the Trial Examiner's finding and conclusion that Respondent maintained an unlawful no-solicitation rule, thereby restraining and coercing employees in violation of Section 8(a)(1) of the Act.' We do not, however, agree with the Trial Examin- er's conclusion that Respondent did not unlawfully discriminate against Mrs. Eva Murphy by imposing a 2-week disciplinary layoff on her for soliciting employees to join the Union. The Trial Examiner reasoned that because Murphy well knew that one purpose of Respondent's invalid no-solicitation rule was to prohibit such activity while she was supposed to be working, Respondent's imposition of a discipli- nary layoff because she engaged in such solicitation during her working time was lawful. In effect, the Trial Examiner has applied a presumption of lawfulness to the discipline because the activities for which Murphy was disciplined occurred on working time. In this he failed to follow applicable precedent. As the Supreme Court has stated: "No restrictions may be placed on the employees' right to discuss self- organization amongst themselves unless the employ- er can demonstrate that a restriction is necessary to maintain production or discipline." 2 Of course, that statement of principle reflects that the solicitation of fellow workers to join a union is a protected Section 7 right, but that the right to its exercise must give way r As found by the Trial Examiner the ambiguities inherent in the "Collections" no-solicitation rule were not dispelled by the oral explana- tions given to groups of 25 to 40 employees of a set of rules respecting solicitation given to supervisors Whether or not those rules accord with the provisions of the Act was not litigated in this proceeding. Assuming, however, that they do, Respondent continued to maintain the "Collections" no-solicitation rule and failed to make clear that the "Collections" rule in the employee handbook, despite its wording, was not applicable to solicitation of union membership See J R Simplot Company Food Processing Division, 137 NLRB 1552 2 N L R.B V. Babcock & Wilcox Co, 351 U.S. 105, 113; Republic Aviation Corp v. N L.R B., 324 U S. 793. in certain circumstances to the employer's right and need to maintain production and discipline. Recognizing that "work time is for work,"3 the Board has developed a set of presumptions to guide decisions in this area. The Board presumes that a valid no-solicitation rule-one limited to prohibition of solicitation during employees' working time-is for the legitimate purpose of maintaining production and discipline, notwithstanding that it restricts employee exercise of Section 7 rights.4 Similarly, an invalid no-solicitation rule-one that restricts such activity during nonworking time and in nonworking areas-is presumed to have been adopted for the purpose of restricting the employees' exercise of Section 7 rights, rather than for the legitimate reasons of maintaining order and discipline. These presumptions carry over to the enforcement of such rules.5 In a recent cases similar to this case, the Board reversed a Trial Examiner who had similarly found that a discharge for worktime solicitation of union cards was lawful, stating: The Trial Examiner's rationale presumes that, despite the absence of a valid rule, employers may terminate employee organizers who engage in work-time union solicitation even though the activities of the employees entail no interference with production or plant discipline. In our opinion, the question of whether work-time solicitation is protected or unprotected activity cannot be determined on an absolute basis. On the contrary, the result must turn on the delicate balance that must be maintained between the employee's right to engage in organizational activity and the employer's responsibility for the maintenance of rules necessary to efficient opera- tion of the plant. This balance must be adminis- tered in a fashion ensuring that reprisals are not taken against the principal in-plant organizers where legitimate interests of employers are not involved. A discharge based on work-time distribution of cards in the absence of a 'valid rule is suggestive that the employer was reacting to the protected aspect of the employee's conduct, rather than considerations of plant efficiency. Accordingly, in J Peyton Packing Co, 49 NLRB 828. 4 Peyton Packing Co, supra, Walton Manufacturing Company, 126 N LRB 697 5 Ibid The presumption may be rebutted by a showing that special circumstances make the rule necessary to maintain production and discipline . Walton Manufacturing Company, supra in department stores, a broader rule-one that prohibits solicitation in selling areas even during an employee's nonworking time-is privileged . See, e g , Marshall Field & Company, 98 NLRB 88 , and Great Atlantic & Pacific Tea Company, 123 NLRB 747, and cases cited by the Trial Examiner. 6 Greentree Electronics Corporation, 176 NLRB 917. 198 NLRB No. 19 THE J. L. HUDSON COMPANY Selwyn Shoe Manufacturing Corporation,3 it was held that in the absence of such a rule it was not a sufficient defense that the dischargee's activities (in that case, antiunion activities) "impinged on working time." The Board said: There must also be a showing that the discharge flowed from [the employee's] abdication of her working duties rather than from the fact that she engaged in solicitation against the union.4 3 172 NLRB No 81 4 Id Respondent has made no such showing in this case. The facts relating to Murphy's solicitation of two other employees as set forth by the Trial Examiner reveal that Murphy's activities caused no disruption or interference in production or in the maintenance of discipline in the store. Both Kreis and Hatfield testified that they continued working at their jobs while Murphy solicited them. Respondent did not rebut their testimony. Murphy, herself was in the marking room, where Kreis and Hatfield were working, in the line of duty. Neither the earlier warning given Murphy against soliciting for the Union nor the disciplinary interview itself supports the conclusion that the discipline was meted out for the purpose of maintaining production and order in the store. The warning, like the posted rule against such activities, was so broadly stated that it reached Murphy's union activities on her nonworking time, giving rise to the inference that Respondent's concern was with the nature of her activity rather than the circumstances under which it was per- formed. Similarly, the discipline was expressly meted out because Murphy had solicited in defiance of the earlier warning against solicitation for the Union. No mention was made to Murphy at either interview that her activities interfered with maintenance of order or production in the store. Moreover, Respondent has no rule banning, nor has it otherwise shown that it discourages, similar worktime discussions causing no disruption of operations but relating to more innocu- ous subjects. Considering all the circumstances, we find that Respondent disciplined Murphy in reprisal for her union activity and not in the interests of maintaining production and discipline. Accordingly, we find that Respondent thereby violated Section 8(a)(1) and (3) of the Act.7 Greentree Electronics Corporation, supra, and cases cited therein See also KDI Precision Products, Inc, 185 NLRB No 60, Heritage House of Connecticut, Inc, d/b/a Alliance Medical Inn-New Haven, 192 NLRB No 158 We do not hold, as Chairman Miller charges , that because Respondent has maintained an unlawful no-solicitation rule, it has lost the right to THE REMEDY 173 Having found that Respondent engaged in unfair labor practices in addition to those found by the Trial Examiner, we shall order Respondent to cease and desist therefrom and to take the additional affirmative action necessary to effectuate the purpos- es of the Act. We have found, contrary to the Trial Examiner, that Respondent gave Murphy a disciplinary 2-week layoff without pay in reprisal for her union activities. We shall therefore order Respondent to make whole Eva Murphy for any loss of pay she may have suffered by paying to her a sum of money equal to the amount she normally would have earned as wages from the date of the start of the disciplinary layoff to the date of her full reinstatement, computed in accordance with the formulas set forth in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumb- ing & Heating Co., 138 NLRB 716. ADDITIONAL CONCLUSION OF LAW Add the following as the Trial Examiner's third Conclusion of Law and renumber the Trial Examin- er's third Conclusion of Law as number 4. 3. By giving Eva Murphy a disciplinary 2-week layoff without pay in reprisal for her union activities, Respondent discriminated against Murphy in her hire and tenure of employment and has discouraged membership in a labor organization, thereby engag- ing in unfair labor practices in violation of Section 8(a)(3) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, The J. L. Hudson Company, Detroit, Michigan, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Maintaining a no-solicitation rule which may be read as prohibiting employees from soliciting for the Union during their nonworking hours in nonselling areas of the store. (b) Discouraging membership in or activities on behalf of Retail Store Employees Union, Local No. 876, Retail Clerks International Association, AFL-CIO, or any other labor organization, by disciplining employees or by discriminating in any other manner in regard to their hire, tenure of maintain an orderly workplace by needed discipline of employees who disrupt production or order or are involved in other derelictions of duty while engaged in solicitation on behalf of a union Rather, as we think the cited cases make clear, we hold only that in such circumstances the Respondent must show that the discipline has been meted out for those reasons rather than for the act of engaging in solicitation 174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employment, or any term or condition of employ- ment. (c) In any like or related manner interfering with, restraining, or coercing employees in the exercise of rights guaranteed them by Section 7 of the Act, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a)(3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Make whole Eva Murphy for any loss of earnings suffered by reason of the discrimination against her, in the manner described in the section of this Order entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (c) Post at its store in Detroit, Michigan, copies of the attached notice marked "Appendix." s Copies of said notice, on forms provided by the Regional Director for Region 7, after being duly signed by an authorized representative, shall be posted by Res- pondent 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 Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 7, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. CHAIRMAN MILLER, concurring and dissenting: Employee Murphy was disciplined by her employ- er for leaving her own duty area, during her own working time, and interrupting the work of her fellow employees, at their duty stations during their working time, so that she might make solicitations. The occasion of her discipline was by no means her first such dereliction, and she had been previously cautioned against such conduct. The majority finds that Respondent's maintenance of the unlawfully broad "no-collections" rule-and failure to publicize its lawful "no-solicitation" rule more fully-some- how taint Respondent's actions in imposing a proper and moderate suspension. I would not overrule the Trial Examiner's finding that the "no-collections" rule operated, in this case, in a manner offensive to Section 8(a)(1) and I concur in so much of my colleagues' order as affords a remedy for that violation. But I do not believe that we should preserve a rule of law which prohibits an employer from maintaining an orderly workplace, by needed discipline, for the naked reason that he maintains an improper no-solicitation rule. In short, I would affirm the Decision of the Trial Examiner in its entirety. MEMBER KENNEDY, dissenting: I would affirm the Trial Examiner's dismissal with respect to the Employer's disciplinary 2-week layoff of Eva Murphy. In my view, Respondent's rule with respect to union solicitation and distribution is lawful and does not violate Section 8(a)(1) of the Act. Accordingly, I would dismiss the complaint in its entirety. The record herein establishes that Mrs. Murphy was given the disciplinary layoff because she persist- ed in her efforts to organize Respondent's employees during worktime. It is uncontradicted that Mrs. Murphy, along with other employees, attended a meeting in late August or early September 1970 at which Respondent's rule with respect to union solicitation and distribution was explained and fully discussed. A series of meetings with all employees was held in groups of 25 to 40 people. Questions were answered as to the current union organizational activity. There is no contention that Respondent violated Section 8(a)(1) at any of these meetings. The rule reads as follows: RULES OF DISTRIBUTION AND SOLICITA- TION The Company has established a simple policy regarding all solicitation., The policy reads: "Other than for the annual United Founda- tion, no one is permitted to solicit Hudsoni- ans for any reason during working hours." This rule applies to all forms of solicitation and is designed to protect the privacy of our Employees and the interests of the Company. 8 In the event that this Order is enforced by a Judgment of a United Pursuant to a Judgment of the United States Court of Appeals Enforcing an States Court of Appeals, the words in the notice reading "Posted by Order Order of the National Labor Relations Board " of the National Labor Relations Board" shall be changed to read "Posted THE J. L. HUDSON COMPANY 175 HUDSON'S RULES OF SOLICITATION The following is a detailed breakdown as to when and where union solicitation will or will not be permitted by the Company , under the law. It is important to note that both of the requirements as to time and place must be met for them to be legal solicitation. REQUIREMENTS AS TO TIME Before and after Hudsonians to Other Hudsonians Outsiders to Hudsonians working hours Yes Yes During working hours No No Lunch periods, scheduled reliefs Yes Yes** REQUIREMENTS AS TO PLACE Areas adjacent to Company property Yes Yes Employee ' s work area* Yes No Selling floor and areas adjacent thereto during store hours No No Non-selling areas not adjacent to selling areas Yes No Public restaurants, public lounges and washrooms Yes Yes** *Other than selling floor during store hours. No solicitation is permitted there by anyone. **Non-employees are not allowed in employee lunch- rooms or lounges at any time or for any purpose. Respondent's rule set forth above satisfies the criteria which the Board has long applied to the peculiarities of the retail department store industry. May Department Stores Company, 59 NLRB 976 (1944); Marshall Field & Co., 98 NLRB 88 (1952); Heck's Inc., 170 NLRB 178 (1968). On October 30, 1970, Karl L. Gmeiner, personnel manager of the Oakland store, conferred with Mrs. Murphy with respect to her solicitations for the Union on company time. Mrs. Murphy was advised at the interview that further solicitation by her during working hours would result in disciplinary action. Notwithstanding reports that Mrs. Murphy was soliciting on the selling floor in December 1970, and that she solicited pharmacists on six different occasions in January 1971, Respondent took no action until the incident of February 2, 1971. It is undisputed that on that date Mrs. Murphy, during her worktime, entered the marking room where fellow employees Mary Kreis and Clara Hatfield were working and solicited them to sign union authorization cards. Mrs. Murphy stated to them that the Union had gotten into the store, and that if they had not signed union cards, they had better do so, because otherwise they would have to pay some kind of a fee. When the incident was reported to management, Mrs. Murphy was summoned to General Manager MacGregor's office. He reviewed with her the earlier meeting in Mr. Gmeiner's office on October 30, 1970, and he notified her of the 2- week layoff without pay. For reasons best known to the General Counsel, Mrs. Murphy was not called as a witness in this proceeding. The uncontroverted facts are that she was soliciting union membership during working time in violation of a valid company rule. I do not agree with my colleagues that this case is similar to Greentree Electronics Corporation.9 That case involved the discharge of two employees for a brief casual conversation which violated an overly broad no-solicitation rule. Here we have a 2-week suspension for repeated, persistent solicitations on company time which violated a valid no-solicitation rule. Finally, I disagree with my colleagues' conclusion that Respondent's rule with respect to "Collections" violated Section 8(a)(1) of the Act. There is no evidence in this record that the suspension of employee Eva Murphy was predicated on the "Collections" rule. Manifestly, that rule was not directed at union solicitation. There is not the slightest suggestion in this record that any employee understood the "Collections" rule to apply to union solicitation. There is no evidence that the Respon- dent ever construed the "Collections" rule to apply to union solicitation. The Board has refused to predicate an 8(a)(1) finding on a technical construc- tion of a no-solicitation rule absent a showing of unlawful enforcement. See The Lion Knitting Mills Company, 160 NLRB 801, fn. 1. The Respondent made its position crystal clear in its meetings in August and September 1970. Indeed, the record establishes that Eva Murphy is the only person who has been disciplined for violating its no-solicitation rule at the Oakland store since it opened some 10 years ago. I would dismiss the complaint in its entirety. 9 176 NLRB 917 APPENDIX. NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a full trial in which both sides had the opportunity to present their evidence, the National Labor Relations Board has found that we, The J. L. Hudson Company, violated the National Labor Relations Act, as amended, and ordered us to post this notice. We hereby notify you that: 176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT maintain a no-solicitation rule which may be read as prohibiting employees from soliciting for the Union during their nonworking hours in nonselling areas of our store. WE WILL NOT discourage membership in or activities on behalf of Retail Store Employees Union, Local No. 876, Retail Clerks International Association, AFL-CIO, or any other union, by disciplining, laying off, or otherwise discriminat- ing against employees in regard to any working conditions. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condi- tion of employment, as authorized in Section 8(a)(3) of the Act, as modified by the Labor Management Reporting and Disclosure Act of 1959. WE WILL give backpay to Eva Murphy to make up for the wages she lost because we laid her off for 2 weeks. All our employees are free to become or remain, or refrain from becoming or remaining, members of Retail Store Employees Union , Local No. 876, Retail Clerks International Association , AFL-CIO, or any other labor organization. THE J. L. HUDSON COMPANY (Employer) Dated By (Representative) (Title) was filed on March 8, 1971, and the complaint issued on May 14. The issues of the case are whether the Respondent is maintaining an illegal no-solicitation rule in violation of Section 8(a)(1) of the Act, and whether it imposed a discriminatory layoff upon an employee in violation of Section 8(a)(3) in implementation of such unlawful rule. Briefs were filed after the close of the hearing by the General Counsel and the Respondent. Upon the entire record and from my observation of the witnesses I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY The J. L. Hudson Company, a Michigan corporation, is engaged in the retail sale and distribution of clothes, appliances, drugs, furniture, and related products, and maintains its principal place of business in the city of Detroit. During the year ending December 31, 1970, a representative period, it purchased and caused to be !delivered to its Detroit store materials for retail valued in excess of $100,000, of which goods and materials valued in excess of $50,000 were transported and delivered to that (location directly from points located outside the State. During the same period its gross revenue for business loperations in the Detroit Metropolitan area exceeded 1$500,000 in value. I find that the Respondent is engaged in commerce within the meaning of the Act and that it will effectuate the policies of the Act to exercise jurisdiction herein. It. THE LABOR ORGANIZATION INVOLVED I find that the Retail Store Employees Union, Local No. 876, Retail Clerks International Association, AFL-CIO, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. 111. THE UNFAIR LABOR PRACTICE 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, 500 Book Building, 1249 Washington Boulevard, Detroit, Michigan 48226, Telephone 313-226-3200. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE THOMAS A. Ricci, Trial Examiner: A hearing in the above-entitled proceeding was held before me on August 11, 1971, at Detroit, Michigan, on complaint of the General Counsel against the J. L. Hudson Company, herein called the Respondent or the Company. The charge The complaint is directed purely to a written no- solicitation rule being maintained by the Respondent in its Oakland, Michigan, department store, and always placed in the hands of its employees as one of many items in a welcoming handbook listing rules of conduct and employ- ee benefits. It reads: COLLECTIONS No one is allowed to solicit you during working hours except for the United Fund Torch Drive. If any person, Hudsonian or otherwise, attempts to solicit you, report it to your Supervisor immediately. This department store is a large one, with between 600 and 700 employees; there are many locations in it where employees do not work-cafeteria, lounge, restroom, and dressing rooms. The rule is ambiguous, for virtually any time of the day is "working hours" for some but not working time for other employees. It is not improper for an employer to demand that there be no union solicitation while people are themselves on duty, or when the workers they seek to persuade are at work, for "working time is for work." Peyton Packing Co., 49 NLRB 826. It is unlawful THE J. L. HUDSON COMPANY interference with the rights of employees to engage in self- organizational activities to prohibit such solicitation when employees are on their own time and are not acting in the general public selling area of the department store. May Department Stores, 59 NLRB 976. And the Board has held ,that when the rule is ambiguously phrased, so that it ,confuses the employees and can be read as prohibiting solicitation even when the employees involved are duty free, it must be held a violation of Section 8(a)(1) of the Act. When the "rule may be read to prohibit union solicitation by an employee in nonselling areas of the store even during an employee's nonworking time, it is at best ambiguous and the risk of ambiguity must be held against the promulgator of the rule rather than against the employees who are supposed to abide by it." G.C. Murphy Co., 171 NLRB No. 45. See also Farah Manufacturing Co., 187 NLRB No. 83. The Respondent seeks to avoid the finding of illegality in this case on the ground that the above quoted rule-as printed in its employee handbook-is not a no-solicitation rule at all, and bears no relationship to "union" solicita- tion. The argument rests in part on the fact the rule is entitled "collections," and in part on the fact there also sexists within the Company a second rule against solicita- tion, one included in a 15 -page document entitled "Memorandum To Management." One page in the management instructions contains two sections on the subject of distribution and solicitation. The first section reads: Other than for the annual United Foundation, no one is permitted to solicit Hudsonians for any reason during working hours. The second section, entitled "Hudson's Rules of Solicita- tion," details store areas where solicitation may take place, distinguishes between the rights of employees and of "outsiders" to solicit inside the building, and speaks of time-distinguishing between working hours and lunch periods or scheduled reliefs. This memorandum, and its rule against solicitation, has never been, and is not now being put in the hands of employees, nor posted for their 'information anywhere in the store. It is intended exclusive- ly for the use of supervisors. The Respondent argues in defense that it is this latter document that reflects the rule against union solicitation in this store, and not that given the employees. To overcome the obvious criticism that this rule is kept within the confines of management, there is testimony that in late August or early September 1970, at a time of "current .. . union activity in the store," it was orally explained in detail to all the employees, called in groups of from 25 to 40 at a time, in the training room. Withal, the rule there explained was still not given the employees in writing so as to dispel effectively and with certainty any ambiguity, that might remain in their minds as to exactly what rights they did or did not have. This proceeding was precipitated by a disciplinary 2- week layoff, without pay, imposed by the Company in February 1971 upon Mrs. Eva Murphy, an employee of years standing. She had solicited two other employees while all three of them were at work in their regular work stations. A concomitant allegation of the complaint is that 177 Murphy suffered illegal discrimination in employment, in violation of Section 8(a)(3) of the Act, because the Respondent that day enforced its ambiguous, and there- fore illegal, no-solicitation rule against her. Not so, says the Respondent; it was the Memorandum to Management that was enforced against Murphy. And again, to prove that the real rule against solicitation in this store is not the one set out in the employee handbook, the Respondent produced the personnel file record of a prior warning to Murphy dated October 30, 1970. The warning interview of Murphy that day was recorded in writing and reads as follows: Mr. Norton and myself [Karl Gmemer, the personnel'; manager] interviewed Mrs. Murphy regarding her solicitation of other Hudsonians for the signing of union cards. It was pointed out that our policy was; "other than for the annual United Foundation, that no: one is permitted to solicit Hudsonians for any reason during working hours." Mrs. Murphy was advised that it is against Company policy for you to solicit during working hours. You are officially asked to cease your solicitation, and this is an official warning which will go on your record. Further instances of this kind will result in disciplinary action. Mrs. Murphy was asked if. she understood-her reply was "yes." At the hearing, Gmemer, the personnel manager,, testified it had been reported to him Murphy had solicited' for the Umon "on company time," and that he then told her she could not solicit "on the selling floor" or "during, working hours," but was free to do so "on her breaks and, during her lunch hours." But the interview report says nothing about Murphy doing anything on "company time"; and as to what she was told, it shows only reiteration of the general rule against solicitation "during working hours." No less significant is the fact that in his earlier affidavit relating to the incident, Gmeiner said nothing about activity on company time, or about, assurances given Murphy as to where and when she was permitted to solicit. The precise details as to time and place set out in the Memorandum to Management respecting the right of employees in this store to engage in union solicitation may or may not be in conformity with established Board law. The complaint is not directed to that document and therefore is no warrant to pass critical judgment upon it now. And an employer has a right to establish a proper no- solicitation rule orally and to communicate it to his, employees by word of mouth. In the total circumstances of this case, however, it must be found that the ambiguity' inherent in the rule placed in the hands of the employees is not adequately dispelled by the mere existence of the internal memorandum, or by the fact of the Respondent ,once explaining its intricate details to the assembled employees. They still have the ambiguous and improper ,one in their hands, the management instruction remains, hidden in the hands of the supervisors, and the record of reprimand to Murphy, at least, does no more than again reiterate the ambiguous language of the publicized hand- book rule. I find the handbook rule to be the one the Respondent is still giving its employees to understand is binding upon them, and that its continued maintenance is 178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a persisting violation of Section 8(a)(1) of the Act. On February 2, 1971, Murphy, herself on duty, went into a marking room with work in her hands to perform something or other pertaining to her work . Two markers -Kreis and Hatfield-were working there . Murphy told them the Union had obtained many membership cards and asked had they signed . One of them said no, and Murphy then told them they had better do so , else they would later have to pay a union fine of some sort. The conversation took no more than 3 to 5 minutes . This was solicitation to union membership pure and simple, and the General Counsel's contention in his brief that it was no more than a casual conversation , like talk about the weather , is entirely unpersuasive. And it was also solicitation not only "during working hours," but right on "company time," both with respect to Murphy's duties and with respect to the then occupation of the other ladies. In short, it was exactly the sort of "working time" solicitation of which the cases speak and which an employer may certainly insist not take place. Murphy cannot seek refuge in the fact that the rule, the one in the employee handbook , was ambiguous because it did not specify the areas and the times when employees could solicit. She may not have known what she could do during her breaks, or in the cafeteria, but she well knew one purpose of the rule was to prohibit such activity while she was supposed to be working and being paid. I shall therefore dismiss the complaint with respect to the alleged discrimination against Murphy. THE REMEDY Inasmuch as it has been found that the Respondent is maintaining an unlawful no-solicitation rule in the store, it must be ordered to rescind that rule and to so advise the employees. It must also be ordered hereafter to cease and desist from in this manner improperly interfering with the rights of the employees to engage in self-organizational activities. CONCLUSIONS OF LAW 1. The Respondent and the Union are, respectively, employer and labor organization within the meaning of the Act. 2. By maintaining a no-solicitation rule which may be read as prohibiting employees from soliciting for the Union during their nonworking hours in nonselling areas of the store, the Respondent has restrained and coerced its employees , and is restraining and coercing its employees, in violation of Section 8(a)(1) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices proscribed by Section 2(6) and (7) of the Act. [Recommended Order omitted from publication.]