Broadway, The, a Division of Carter Hawley Hale Stores, Inc.

THE BROADWAY The Broadway, a Division of Carter Hawley Hale Stores, Inc. and United Food and Commercial Workers Union, Local 770, Chartered by United Food & Commercial Workers International Union, AFL-CIO-CLC. Cases 31-CA-11556, 31-CA-11670, and 31 -CA-12314 25 August 1983 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JENKINS AND HUNTER On 30 March 1983 Administrative Law Judge James T. Barker issued the attached Decision in this proceeding. Thereafter, the Charging Party filed limited exceptions and Respondent filed an an- swering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, The Broadway, a Division of Carter Hawley Hale Stores, Inc., Los Angeles, California, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, except that the attached notice is substituted for that of the Administrative Law Judge. We note that only a limited exception has been taken to the wording of the Administrative Law Judge's recommended Order and notice. The Administrative Law Judge found that Respondent violated Sec. 8(a)(l) of the Act by soliciting grievances and impliedly promising to re- dress them. The Charging Party contends that, absent some reference to union activity or employee concerted activity, the prohibition against so- liciting employee grievances in par. l(a) of the recommended Order ap- pears to require Respondent to ignore employee grievances, even where no union or concerted activity is being carried on. Contrary to the Charging Party, we find that par. I(a) of the Administrative Law Judge's Order properly remedies the corresponding violations. However. we shall substitute the attached notice for that of the Administrative Law Judge so as to conform the notice to his recommended Order. 267 NLRB No. 45 APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT interfere with, restrain, or coerce our employees in their rights to engage in union or other protected concerted activity, by engaging in unlawful surveillance of em- ployees; prohibiting employees in the store on their day off from wearing union T-shirts, while permitting other employees in the store on their day off who were not wearing union T-shirts to remain in the store; and/or solicit- ing employee grievances and impliedly promis- ing to redress those grievances. WE WILI. NOT in any like or related manner interfere with, restrain, or coerce our employ- ees in the exercise of rights guaranteed them in Section 7 of the Act. THE BROADWAY, A DIVISION OF CARTER HAWLEY HALE STORES, INC. DECISION STATEMENT OF THE CASE JAMES T. BARKER, Administrative Law Judge: This case was heard before me at Los Angeles, California, on September 7, 8, 9, and 30 and October 1, 1982, pursuant to an order consolidating cases, consolidated amended complaint, and notice of hearing issued on December 15, 1981, by the Acting Regional Director of the National Labor Relations Board for Region 31, and pursuant also to a further order consolidating cases and amending the complaint issued on August 19, 1982, by the Regional Director for Region 31.1 The charge in Case 31-CA- 11556 was filed on September 29 by United Food and Commercial Workers Union, Local 770, chartered by United Food & Commercial Workers International Union, AFL-CIO-CLC, herein called the Union. There- after, on October 30 the Union filed a charge in Case 31- CA-11670, and on July 9, 1982, the Union filed a charge in Case 31-CA-12314. The respective charges were timely served on Respondent. Respondent timely filed answers to the complaint, the consolidated amended complaint, and to the consolidated complaint as further amended. Moreover, at the hearing Respondent further amended its answer in light of amendments to the con- solidated complaint granted pursuant to the motion of counsel for the General Counsel made at the outset of the hearing, and in further light of stipulations achieved by the parties. Respondent admits certain factual allega- I Unless otherwise specified the dates herein refer to the calendar year 1981. 385 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tions of the complaint and others were denied. The Gen- eral Counsel and Respondent were represented by coun- sel at the hearing, and the parties were accorded full op- portunity to introduce relevant evidence, to examine and cross-examine witnesses, to make opening and closing statements, and to file briefs with me. Counsel for the General Counsel and counsel for Respondent timely filed briefs. Upon the entire record in this proceeding, 2 and briefs filed herein, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT The Broadway, a Division of Carter Hawley Hale Stores, Inc., herein called Respondent, has been at all times material herein, a corporation duly organized under and existing by virtue of the laws of the State of California with an office and principal place of business located at 10250 Santa Monica Boulevard, Los Angeles, California, where it is engaged in the business of operat- ing a retail department store. In the course and conduct of its business operations, Respondent annually purchases and receives goods or services valued in excess of $50,000 directly from suppli- ers located outside the State of California. Similarly in the course and conduct of its business operations, Re- spondent annually derives gross revenues in excess of $500,000. Upon the basis of the foregoing facts, which are not in dispute, I find that at all times material herein, Respond- ent has been an employer engaged in commerce and in a business affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Respondent concedes, and I find, that at all times ma- terial herein the Union has been a labor organization within the meaning of Section 2(5) of the Act. II1. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issues 1. The substantive allegations The General Counsel contends that in violation of the Act and to influence its employees in the choice of a col- lective-bargaining representative Respondent: (I) en- gaged in surveillance of employees' union activities; (2) created the impression among employees that their union activities were under surveillance; (3) instructed security personnel to engage in surveillance of employees' union activities; (4) told employees that their union activities were under surveillance; (5) impliedly promised employ- ees to redress grievances; (6) implemented a low cost lunch program for employees; (7) enforced an impermis- sibly broad no-solicitation and no-distribution rule which had been effectuated and promulgated prior to the com- mencement of the Union's organizing effort; and (8) in a disparate manner ordered off-duty employees to leave 2 Certain errors in the transcript are hereby noted and corrected. the store premises because they were wearing union T- shirts while permitting off-duty employees who were wearing outer garments other than union T-shirts to remain on store premises. Further, the General Counsel alleges that, following a Board-conducted representation election at which the employees voted not to be repre- sented by the Union, Respondent, in violation of Section 8(a)(l) and (3) of the Act, issued a written and an oral warning to employee Andrew Villanueva because he had supported and assisted the Union in its organizing efforts. Respondent denies the commission of any unfair labor practice and contends, in substance, that the credible evi- dence of record does not support the contentions of the General Counsel. Specifically, Respondent asserts that certain of the alleged incidents of surveillance did not transpire, that the actions of management and security personnel which may have served as the basis for the General Counsel's allegations of increased or closer scru- tiny of employee activities coincidental to the beginnings of the Union's organizing effort, did not relate to that undertaking but evolved from established, longstanding, and ingrained management activities and procedures which antedated any union activity, or from security measures and staffing considerations which were busi- ness-based and unrelated to any employee organizing ac- tivity. Moreover, Respondent denies that any of its agents impliedly promised to redress employee griev- ances, and asserts that the low cost lunch program for employees which was effectuated during the course of the Union's organizing efforts had its origins in a busi- ness decision reached by management prior to the advent of the organizing effort. Further, Respondent asserts that its decision to forbid off-duty employees to wear union T-shirts on store premises was based on considerations recognizing the commercial nature of the union T-shirt enterprise and was a valid application of its no-solicita- tion rule and represented a permissible exercise of its management prerogatives. Finally, Respondent contends that it reprimanded Andrew Villanueva solely because of the content of his assertedly intemperate and insubordi- nate remarks to a high management official. 2. The trial notes ruling Respondent ascribes as prejudicial error warranting a new hearing my refusal to direct counsel for the General Counsel to produce notes which she had taken during the course of pretrial meetings with six separate wit- nesses called to testify in support of the complaint, or, in the alternative, my refusal to undertake in-camera review of said notes to determine whether they fall within the provisions of Section 102.118(d) of the Board's Rules and Regulations, Series 8, as amended, encompanying rele- vant portions of the Jencks Act, 18 U.S.C. § 3500 (1982).3 In support of this contention, Respondent cites 3 Sec. 102.118(d) of the Board's Rules and Regulations provides inter alia: (d) The term "statement" as used in subsections (b) and (c) of this section means: (I) a written statement made by said witness and signed or otherwise adopted or approved by him: or (2) a steno- graphic, mechanical, electrical, or other recording, or a transcription Continued 386 THE BROADWAY NLRB v. Safway Steel Scaffolds Co., 383 F.2d 273 (5th Cir. 1967); NLRB v. Seine & Line Fishermen's Union of San Pedro, 374 F.2d 974 (9th Cir. 1967); and Wallace De- tective & Security Agency v. NLRB, 335 F.2d 749 (9th Cir. 1964). In the course of the cross-examination of each of the witnesses encompassed within the instant ruling, it was established that each had met with counsel for the Gen- eral Counsel in preparation for trial and that counsel had taken notes of the conversation. Counsel for Respondent was accorded full opportunity to cross-examine concern- ing the circumstances of these meetings and fully devel- op the record with respect thereto. The interviews were uniform, in that, in no instance did counsel for the Gen- eral Counsel disclose to the prospective witness the con- tent of the notes she had taken, and no witness was shown to have read, adopted, signed, or to have other- wise verified the accuracy of the contents of the notes. At the hearing, in a timely fashion, at the conclusion of direct examination, counsel for the General Counsel proffered the pretrial affidavits in her possession which had been signed or otherwise adopted by the witness on the stand. In response to demands and inquiries lodged by counsel for Respondent, counsel for the General Counsel represented to and before me that her case file contained no other documents meeting the specific re- quirements of Section 102.118 of the Board's Rules and Regulations. Additionally, she stated on the record that she had personally taken no notes qualifying as "state- ments" within the definition of Section 102.118(d) there- of. She reiterated these positions throughout the course of the proceeding. Nevertheless, at appropriate times during the course of the cross-examination of certain of the General Counsel's witnesses, counsel for Respondent demanded production of those pretrial preparation notes which cross-examina- tion had disclosed were in possession of counsel for the General Counsel. In light of the record which had been developed, I declined to order production of the notes. In each instance, counsel for Respondent requested, in the alternative, that I undertake an in-camera review of the notes for the purpose of determining whether the notes constituted substantially verbatim recitals of the witness, which would bring the notes within the purview of Section 102.118(b)(2) of the Board's Rules and Regu- lations. I affirm my ruling refusing to order production of the notes, and to undertake an in-camera inspection of them. In Coca-Cola Bottling Co., 250 NLRB 1341, 1342 (1980), the Board stated: First, contrary to Respondent's contention, we find that the record does not conclusively support the conclusion that a "statement" within the mean- ing of Section 102.118(d) of the Board's Rules was taken at the time Davis apparently visited the Re- gional Office. The testimony established only that Davis spoke to a Board agent who was writing thereof, which is a substantially verbatim recital of an oral statement made by said witness to an agent of the part) obligated to produce the statement and recorded contemporaneously with the making of such oral statement. something while Davis was talking. Clearly, this does not qualify as a statement by the witness as de- fined by Section 102.118(d). Nor, without further evidence, does it constitute a statement "adopted or approved" by Davis. [Footnote citations deleted.] In Philips Medical Systems, 243 NLRB 944, fn. 1 (1979), the Board stated: Respondent excepts to the Administrative Law Judge's failure to order the General Counsel to produce a typewritten document which Respondent asserts contains a statement transcribed by the Gen- eral Counsel from her original notes which were destroyed prior to the witness' appearance. We find that the original notes (which were not signed) did not constitute a "statement" as defined in Sec. 102.118(d) of the National Labor Relations Board Rules and Regulations, Series 8, as amended; there- fore, a fortiori, the General Counsel's typewritten transcription of those notes does not constitute a "statement" that must be produced under this sec- tion. In Palermo v. United States, 360 U.S. 343, 352-353 (1959), in considering whether certain memoranda consti- tuted "statements" of the kind required to be produced under the Jencks Act, § 3500, (e)(2) (1982), after which Section 102.118(d)(2) is patterned, the Court stated: It is clear that Congress was concerned that only those statements which could properly be called the witness' own word should be made available to the defense for the purposes of impeachment. It was im- portant that the statement could fairly be deemed to reflect fully and without distortion what had been said to the government agent. Distortion can be a product of selectivity as well as the conscious or in- advertent infusion of the recorder's opinion or im- pressions. It is clear from the continuous congres- sional emphasis on "substantially verbatim recital," and "continuous, narrative statements made by the witness recorded verbatim, or nearly so .... " that the legislation was designed to eliminate the danger of distortion and misrepresentation inherent in a report which merely selects portions, albeit accu- rately, from a lengthy oral recital. Quoting out of context is one of the most frequent and powerful modes of misquotation. We think it consistent with the legislative history, and with the generally re- strictive terms of the statutory provision, to require that summaries of an oral statement which evidence substantial selection of material, or which were pre- pared after the interview without the aid of com- plete notes, and hence rest on the memory of the agent, are not to be produced. Neither, of course, are statements which contain the agent's interpreta- tions or impressions. In expounding this standard we do not wish to create the impression of a "delu- sive exactness." The possible permutations of fact and circumstance are myriad. Trial courts will be guided by the indicated standard, informed by fidel- ity to the congressional purposes we have outlined. 387 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I . . Final decision as to production must rest, as it does so very often in procedural and evidentiary matters, within the good sense and experience of the district judge guided by the standards we have outlined, and subject to the appropriately limited review of appellate courts. [Footnote citations delet- ed.] In my view, and on the strength of the authority above cited, Respondent errs in its contention that forthwith production of the trial notes of counsel was mandated. Moreover, in light of the Board's holdings in Coca- Cola, supra, and Philips Medical Systems, supra, in-camera inspection of notes admittedly selectively recorded by counsel for the General Counsel during the course of pretrial preparation meetings becomes, in the context of the instant record, a discretionary and not a mandatory procedure left to the "good sense and experience" of the administrative law judge influenced by the oral testimo- ny of the participating witnesses given under oath, de- scribing the procedures followed by counsel in formulat- ing the notes, as well as by the representations of counsel herself, in her capacity as an "officer of the court." Moreover, as the Board does not interpret Section 102.118(b)(2) as encompassing trial notes of counsel, in- camera inspection of that class or category of document perforce becomes a discretionary act and not a mandato- ry procedure. E.g., Philips Medical Systems, supra; Armi- tage Sand & Gravel, 203 NLRB 162 (1973): The Stride Rite Corp., 228 NLRB 224 (1977); and Hadley Adhesive & Chemical Co., 202 NLRB 946 (1973). See Campbell v. United States, 365 U.S. 85, 92-93 (1961); Palermo v. United States, supra at 353-355; Goldberg v. United States, 425 U.S. 94, 109-111 (1976). Cf. NLRB v. Safway Steel Scaffolds Co., supra; Saunders v. United States, 316 F.2d 346, 349-350 (D.C. Cir. 1963); Wallace Detective Security Agency v. NLRB, supra at 756. NLRB v. Seine & Line Fishermen's Union of San Pedro, supra at 981. No due-process question arises from the refusal to resort to in-camera inspection of the unsigned trial notes of counsel, bearing no imprimatur of witness adoption when no basis in the record exists for impugning the rep- resentations of the General Counsel's trial counsel that the notes are a nonproducible work product protected by the recognized evidentiary shield. Hickman v. Taylor, 329 U.S. 495, 512-513 (1947); NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 148-149 (1974). Upon a showing of special need, or in a circumstance wherein substantial basis in the record exists for believing a disputed docu- ment may qualify as a substantially verbatim recital or an oral statement made by the witness testifying in substan- tiation of the General Counsel's case, in-camera inspec- tion of the disputed document should be undertaken by an administrative law judge. NLRB v. Seine & Line Fish- ermen's Union of San Pedro, 374 F.2d 974 (9th Cir. 1967); Wallace Detective & Security Agency v. NLRB, 335 F.2d 749 (9th Cir. 1964); NLRB v. Safway Steel Scaffolds Co., 383 F.2d 273 (5th Cir. 1967); cert. denied 390 U.S. 955. But when unrestricted cross-examination, and the record generally, forms a substantial basis for concluding that the disputed trial notes constitute privileged work prod- ucts of counsel, no issue of full disclosure or fair play arisen. Rather, the duty of an administrative law judge to regulate the course of the hearing, to prevent undue delay in or extension of the hearing process, and to pre- clude mere fishing expeditions becomes the superseding consideration. Cf. Colton Sportswear Mfg., 182 NLRB 825 (1970). In writing in contemplation of forthcoming unfair labor practice litigation, an attorney must be able to "as- semble information, [and] shift what he considers to be relevant from the irrelevant facts" without feeling that he is working for his adversary at the same time. Hick- man v. Taylor, 329 U.S. 495, 511 (1947). Under Respond- ent's theory of a per se obligation on my part to review trial notes of Government counsel, without regard to the fundamental state of the record formulated on the basis of cross-examination of the witness, and the record rep- resentations of Government counsel, uttered in recogni- tion of his or her status as an attorney, and as a "officer of the court," the teachings of Hickman v. Taylor and the work product concept become strongly diluted and forces the General Counsel's representative to prepare for trial with the certain knowledge that every note made or handwritten jot recorded in the presence of a prospective witness will, with certainty, become the object of scrutiny by an administrative law judge. Such is not the law. Coca-Cola Bottling Co., supra; Armitage Sand & Gravel. Nor do the court decisions in Wallace Detective & Security Agency v. NLRB, supra; General En- gineering, Inc. v. NLRB, 311 F.2d 570 (9th Cir. 1962); NLRB v. Seine & Line Fishermen's Union, supra; or NLRB v. Safway Steel Scaffolds, supra; hold that in- camera inspection by an administrative law judge is a nondiscretionary act to be undertaken in all circum- stances. B. Pertinent Facts 1. Background facts a. Organization structure The events here pertinent transpired at the Century City retail establishment of Respondent, a division of Carter Hawley Hale Stores. The Century City facility is one of 41 stores comprising the Broadway Southern California division of the parent company. At pertinent times Paul Chevalier has been employed by the parent company in the position of vice president of employee relations. In his position of responsibility, Chevalier and his staff provide assistance in collective- bargaining negotiations, grievance handling, management response to union organizing campaigns, and litigation before regulatory or governmental agencies as may be required by individual stores or divisions. At the Century City store during pertinent times, the following individuals served in the managerial and/or su- pervisory capacities indicated: Sue Nave Richard Gieser Chris Huntsman Holly Johnson Craig Rotan Frank Capilupo store mgr. asst. store mgr., operations asst. store mgr., personnel asst. store mgr., merchandise asst. store mgr., merchandise grp. mgr, womens access. 388 THE BROADWAY Bonnie Honore special agent, security Throughout the Southern California division of Re- spondent, a security operation is maintained with respon- sibility for loss prevention and shoplift apprehension. The security function at the Century City store is pro- vided by security agents, security inspectors, shoplift de- tectives, and investigators. On a theoretical basis, all se- curity personnel work out of a central location and are assigned to various stores. In practical application, how- ever, a security agent and a number of inspectors are regularly assigned to specific stores. Virginia (Jenny) Hartman and Patricia (Pam) Johnson were employed by Respondent at all times material herein in the capacity of security agents, while Richard Larimor was employed as an inspector. They, like other security personnel, report- ed directly to Bonnie Honore during the times they per- formed duties at the Century City store. Honore, in turn, reported to Charles Neer who was assigned to and main- tained an office at a facility known as the service build- ing, situated at a location in Los Angeles, separate from the Century City location. Neer reported to Sanford Weeks, chief special agent for stores, who maintained an office at the service building and had responsibility for the security function at 40 of Respondent's stores. Inspectors are responsible for preventing theft and carry out their duties wearing a red coat, which renders them highly visible within the confines of the store. Shoplift detectives are responsible for detecting and ap- prehending shoplifters. Investigators are responsible for investigating internal and external theft, and those perti- nent to the instant proceeding reported directly to George Sweitzer. The clothing worn by detectives and investigators is not distinctive in the sense of readily identifying them as security personnel. In the parlance of the profession they work "undercover," in that they wear street clothing. At pertinent times, normal staffing authorization at the Century City store provided for the employment of Bonnie Honore as special agent, a day female inspector, a day male inspector, a night female inspector and a night male inspector. In August 1981 an authorized part- time position was vacant. Crystal Rinehart served as a night female inspector and Richard Larimore served as the day male inspector. Detectives and investigators also occasionally served at the Century City store, as needed. Two hundred hours of security time was budgeted to the Century City store and was sufficient in amount to cover the proposed allocation of red coat positions. However, in the normal evolution of operations, while assignments to security positions within the Century City store would from time to time become necessary in order to fill va- cancies created by vacation, illness, reassignment or res- ignation of personnel; increased staffing by red coats, shoplift detectives, and investigators would also be uti- lized to meet potential security needs resulting from spe- cial sales promotions, after-hours sales, and theft activi- ties. In addition, to meet exigencies, including a defined increase in thefts and inventory loss as reflected in a va- riety of reports and control devices employed by Re- spondent, saturation coverage might be ordered. A satu- ration drive would involve increased utilization of securi- ty personnel at the target store for a period of time.4 Richard Larimore testified without contradiction that two saturation drives were conducted at the Century City store during the year he was employed there. b. The organizing campaign In August 1981 the Union commenced an organizing campaign among Respondent's employees at the Broad- way facility. The campaign was under the direction of Steven Nickelson and Victor Ochoa, special representa- tive organizers for the Union. The initial organizing ac- tivity at the Century City facility commenced on August 24, and on October 27, 1981, a representation petition was filed in Case 31-RC-5236. During the organizing campaign which followed, employee meetings were held, an organizing committee was formed, and campaign leaf- lets were prepared and distributed. The names and ad- dresses of 30 employees identified as comprising "The Committee to Organize the Broadway" appeared on some of the leaflets distributed in the proximity of the south entrance to the store, the door through which em- ployees entered and left the store. In addition, a table was maintained in the employee lounge during the cam- paign at which organizing efforts were carried out on behalf of the Union. The Union's effort to organize the store became a matter of common notoriety on or about Tuesday, August 24, when the public distribution of leaf- lets commenced outside of store entrances. During the morning of August 24, Nickelson and Ochoa entered the store and circulated throughout the store. They had coffee and lunch in the restaurant and spoke with many employees. As the campaign progressed union organizers Nickelson and Ochoa entered the store several times a week. Following a hearing, a unit determination was made by the Regional Director and an election was con- ducted in the unit held appropriate for the purposes of collective bargaining on May 28, 1982. The Union lost the election and a certification of results of that election was issued on June 14, 1982. 5 During the course of the organizing campaign, Re- spondent conducted employee meetings at which its po- sition with respect to unionization was present. Paul Chevalier spoke at these meetings." 2. The alleged unlawful conduct a. Increased visibility of management personnel At all pertinent times prior to and during the organiz- ing campaign, Respondent followed a policy known as the good-night policy whereby at store closing a member of senior management would be at the employee exit door to bid exiting employees good night and verify that, (I) all employees were leaving by the door; (2) that any I The foregoing is based on the credited testimony of Bonnie Honore, Sanford Weeks, and documentary evidence of record. ' Documentary evidence of record, a stipulation of the parties, and un- refuted evidence of record establishes the foregoing. I find insufficient basis in the record to support Gieser's passing assertion that the union organizers left union literature on countertops, either on August 24 or thereafter. 6 The testimony of Christine Huntsman and Richard Gieser supports the foregoing findings which are not in dispute. 389 DECISIONS OF NATIONAL LABOR RELATIONS BOARD packages or purchases in their possession had been prop- erly sealed in accordance with company policy; and (3) that the sealing ticket was properly removed from pack- ages as the employee left. In addition to senior manage- ment, a member of the security staff would usually be present. Nave, Gieser, and Honore each participated in this procedure on nights when they worked until 9 p.m. closing. When two members of senior management were working, both would on occasion be present at the door at closing time. In addition, for a period of time prior to August 24, an aspect of the good-night procedure was applied to the 6 p.m. change of shift. Two members of the security staff would stand at the employee exit and Gieser would join them. However, approximately a week following the commencement of overt organizing activities at the store, Nickelson confronted Gieser with the concept that Gieser was spying on organizing activi- ties going on outside the store. This caused Gieser to cease his personal participation but the 6 p.m. procedure continued throughout the organizing effort, using securi- ty personnel. In appearing as a witness called on behalf of Respond- ent, Gieser testified as follows: Q. Now, after organizing activities started, were there every more members of senior management at the door than before activities started? A. I would say for the most part, yes. Q. Why is that? A. We were working more hours within the store, just being at the front door, saying goodnight to the employees. Q. Do you know why you were working more hours? A. Not really. No. Regional Vice President Kalkstein and Vice President of Employee Relations Paul Chevalier both appeared at the Century City store during the course of the organizing campaign, but this was not an unusual occurrence. Em- ployees Schlaff and Frederickson gained the impression that Kalkstein was in the store more frequently after or- ganizing efforts commenced than prior thereto. b. Scrutinizing of nonemployee organizers Richard Gieser, who, as found, served as assistant store manager in operations at the Century City facility, testified credibily that during the organizing campaign he I The credited testimony of Sue Nave, Richard Gieser, and Bonnie Honore supports the foregoing findings. I have also considered the testi- mony of John Schlaff and credit it only to the extent that it is consistent herewith. I reject his testimony to the effect that on occasions, at 9 p.m. closing, neither security nor management personnel was present at the employee exit participating in the good-night procedure. I do not credit the testimony of Andres Villanueva to the effect that, prior to August 24, the night manager on duty, and not Sue Nave or Richard Gieser, partici- pated in the good-night procedure. Villanueva's testimony on this subject was imprecise, based on speculation and generally not credible. I reject his testimony to the extent that it bears an implication that only after union organizing efforts commenced did Nave and Gieser participate in the procedure. I do not adopt any implication that may be drawn from Villanueva's testimony to the effect that prior to the organizing effort the participation of security personnel was infrequent and limited to week- ends. personally observed security personnel following the nonemployee union organizers through the store. The se- curity personnel were instructed that they should make certain that nonemployee organizers were not distribut- ing literature in the store or leaving it on countertops. The senior management staff of the Century City store was responsible for following union organizers Nickelson and Ochoa while they were in the store. The avowed purpose of this procedure was to insure that they did not engage in solicitation of employees or pass out literature to employees or leave it on countertops. c. Increased security personnel In August, Sanford Weeks ordered a saturation at the Century City store. The saturation commenced on August 11 with the assignment of three detectives to the store. During the succeeding 5 days an average of three detectives were assigned to the store. Additionally, during this period of time the security force was aug- mented by detailing an additional investigator (red coat) to the store on August 12 and 13, and two on August 14. The saturation was ordered by Weeks in response to theft occurrences as disclosed by known loss reports and reports of major theft occurrences coming to his atten- tion and by conversations with buying office, store man- agement, and security personnel reflecting trends in in- ventory shrinkage and theft occurrences. The saturation was terminated on August 16.8 On August 17, 18, and 19 the regularly assigned security staff carried out the secu- rity functions at the store. In addition, Virginia Hartman, a detective, in training under Respondent's target store concept, spent a portion of the workday at the store. In addition, Virginia Hartman, a detective in training under Respondent's target store concept, spent a portion of the workday at the store. On the 3 succeeding days the secu- rity coverage at the store was provided entirely by regu- larly assigned personnel. However, commencing on August 24 and for the ensuring 2-week period the number of red coats and detectives providing security service at the store increased from the coverage level re- corded for the final 2 weeks of July 1981, or the first 10 days of August 1981. The utilization of security person- nel on special assignment to the store essentially equaled that which was occasioned by the saturation which had been employed during the period of August 11 through August 16. Additionally, during the 2-week period com- mencing August 24, regional supervision, represented by either Novak or Neer, appeared at the store during 5 of the days. On August 26 and 27 Novak was present in the store, while Neer was in the store on August 30 and 31 and on September 1. Moreover, in addition, during the 5- week period commencing September 7, consistent use was made of additional security personnel to augment the regular security staff, and the consistency of use ex- ceeded to a substantial degree the use level that had been recorded during the last 2 weeks of July and the first 10 days of August. 8 The credited testimony of Stanford Weeks and documentary evi- dence of record establishes the foregoing. 390 THE BROADWAY Thus on August 24 when union organizing efforts became readily visible at the store, two detectives on temporary assignment were present in the store. The fol- lowing day three detectives were present. Then, on August 26 two detectives, including Hartman, were present, and Novak made an appearance at the store. Novak worked undercover. During this 3-day period no red coats were brought into the store to augment the regular staff of investigators. In the 4-day period com- mencing August 27, additional red coats were utilized, and, as found, on 2 of those days regional supervision was present. Then, during the initial 10 days of Septem- ber an essential balance was maintained between the number of red coats used to assist the regular security staff and the number of detectives employed for that pur- pose. Some augmentation, either by red coats or detec- tives, or both, was utilized at the store during the suc- ceeding 4-week period. In this regard, the record shows that one additional red coat was assigned to the store on August 27 and 28. The regular staff of red coats was as- sisted by three additional investigators (red coats) on August 29; one on August 30; two on September 1; one on September 2; three on September 3; one on Septem- ber 4; two on September 5; one on September 8; two on September 9; and one September 10 and 12. No addition- al red coats were used until September 24 when two were assigned.9 Weeks testified that there existed at relevant times a divergence of view among senior security supervision over the relative effectiveness and efficacy of using uni- formed red coats (investigators), who were readily iden- tifiable by customers and store personnel, or plain- clothes detectives for the purpose of deterring shoplifting and theft. Weeks further testified that this divergence in point of view, and subsidiary conflicts over supervision, led to the termination of the saturation which com- menced on August 11 and which he initially had intend- ed to have a 2-week duration. He further testified that he attempted during the period commencing August 24 to accommodate both contending facets of the loss preven- tion philosophy. Evidence of record establishes that dollar loss amounts increased significantly in August 1981, as contrasted to the 3 previous months. These losses subsided in September to the approximate dollar loss levels of July 1981. Moreover, the number of loss preventions reported by red coats during the week August 11-16 coinciding with the saturation declined by approximately two-thirds, only to rise significantly after the termination of the saturation. In the latter period fewer red coats were used to augment the regular staff. On the other hand, the decrease in the loss preventions reported during the first 2 weeks of September coincided with the significant increase in the use of red coats at the store during that 2-week period. A similar correlation be- tween the number of loss preventions reported and the s Documentary evidence of record establishes the foregoing. The testi- mony of Richard Larimore and Crystal Rhinehart to the effect that there were five additional red coats in the store after organizing commenced is not accepted insofar as it infers the presence of a group of five different red coats in the store on the same day. Moreover, I find on the basis of Sue Novak's testimony that she worked undercover and not as a red coat. I reject the implications of Larimore's testimony that she was iden- tifiable by employees as a "red coat." utilization or nonutilization of red coats to assist the reg- ularly assigned red coat staff was discernible during the weeks ending September 19 and 26. On August 24 and for a period of time prior thereto, a vacancy existed in the part-time security position allocat- ed to the Century City store. Moreover, Larimore, the day male inspector, had been granted a promotion and was scheduled to assume a new position at the service building. Larimore assumed his new position soon after the organizing activity commenced. Similarly, at ap- proximately that point in time, Greenwood, the day female inspector, resigned from the company. Patricia (Pam) Johnson, who in August 1981 was serving as secu- rity manager at the Panorama City store of Respondent, was detailed on August 29 to serve on temporary duty as a red coat at the Century City store. Johnson worked ap- proximately 4 days at the Century City store. She was instructed to remain in a specified area of the store and patrol the sales floor and check fitting rooms to prevent theft. She was told that her immediate concern should be with shoplifters using trashbags as a method of oper- ation. During the 4-day period she was assigned to the Century City store, Johnson filled in for Honore as secu- rity manager of the Century City store.10 In addition, Gail Joy, a security supervisor at Respondent's North- ridge store, was brought into the Century store on a part-time basis, as were one or two other individuals. Gail Joy would also fill in for Honore during the ab- sence of the latter. Honore testified, in substance, that Johnson and Joy were brought to the store to provide coverage and, as supervisors, were in a position to meet other needs, including monitoring of union activity. Honore testified affirmatively that monitoring of union activity was one of the purposes for which Johnson and Joy were brought to the Century City store. Efforts were undertaken to recruit permanent replace- ments for Larimore and Greenwood, but no permanent replacements were found during times pertinent herein. Moreover, when Rinehart, the night female inspector, left her employment at the store on September 17, fur- ther recruitment efforts were undertaken but not success- fully. Virginia Hartman, who, as found, was employed as a special agent under Respondent's target store concept, was assigned to the Century City store from September 1 through September 7, pursuant to instructions of her su- perior. Hartman was told that union activity was going on at the store and she was to monitor the customer doors to make certain the doors were not blocked by in- dividuals engaged in union activity. In pursuit of this facet of her assignment, Hartman observed the customer doors from her vantage point on the mall adjacent to the store and from inside nearby shops to which she retreat- ed in order to find relief from the heat of the mall. She carried a two-way radio, as was common practice with security personnel. She observed union organizers Ochoa to I do not credit the implication of Honore's testimony that Johnson served on an ongoing basis as her substitute. Nothing in Johnson's cred- ited testimony suggests that she worked on a recurring basis at the Cen- tury City store, and no implication to this effect is adducible from docu- ments in evidence. 391 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and Nickelson passing out literature on occasions during this period of time. While she used the two-way radio to report the entry into the 'store of suspicious appearing in- dividuals, she did not use the radio for the purpose of re- porting ingress of individuals whom she believed to be employees. Although she observed individuals speaking with the union organizers near the entrance in the mall, she had no occasion to report the identity of any em- ployee known to her, as such, because no blockage of the doors occurred as a result of this conduct. Hartman knew none of the employees, either sales or support per- sonnel, and could identify individuals as employees only by reason of the badge which each employee wore.l d. The alleged unlawful surveillance (1) Gieser instructs Larimore On August 24 when Nickelson and Ochoa made their initial appearance at the Century City premises and com- menced distributing handbills outside the employee en- trance on the mall, Gieser was on the sales floor and ob- served that the union representatives were handbilling the store. Gieser spoke with Honore and they in turn spoke with Larimore, the day male inspector. This tran- spired in the morning hours soon after store opening. Gieser stated that there were some union organizers out- side who were engaging in handbilling. He asserted that this activity was permissible but that company rules pro- hibited the organizers from soliciting employees or dis- tributing literature in the store. Gieser instructed Lari- more that if the organizers should enter the store he was to notify management. Soon after 10 a.m. Nickelson and Ochoa entered the store. Larimore received a call from an operator inform- ing him that they were in the restaurant. Larimore went to the restaurant but Nickelson and Ochoa had left. Lari- more notified Gieser informing Gieser that the organiz- ers had proceeded to another department. Gieser assert- ed he would handle the matter from there. 12 " The credited testimony of Virginia Hartman establishes the forego- ing. I have also evaluated documentary evidence of record in determin- ing her period of service at the Century City store between September I and 7. "I A composite of the testimony of Richard Larimore and Richard Gieser establishes the foregoing. As I observed him testify, Larimore im- pressed me as a witness who endeavored to recount the events about which he testified with clarity and truthfulness. Gieser similarly im- pressed me as a truthful witness, but I am convinced he did not have to- tally accurate recall of this incident. Thus, I conclude that the conversa- tion here pertinent occurred in the morning hours after store opening and not in the evening as Gieser recounted. Moreover, I am convinced that Gieser's instructions to Larimore encompassed both solicitation of em- ployees and distrubution of literature. However, I am similarly convinced that Larimore was incorrect in his recollection that Gieser instructed him affirmatively to follow the employees through the store and record the names of employees to whom they spoke. This instruction would have been inconsistent with instructions reflecting company policy subsequent- ly given security personnel by Honore, and it is noteworthy that Lari- more recorded no names even though he testified that he had observed the union representatives talking with employees and that he had in his possession writing material with which he could have made such a recor- dation. Further, Larimore appears not to have "followed" Nickelson and Ochoa through the store on August 24, but his efforts to observe their activity appeared to have evolved from an operator's page rather than a volitional tracing of the progress of the union representatives through the store. Honore could recall no conversation with Larimore involving (2) Honore instructs security staff Soon after organizing efforts began, Honore met with the security staff; including Larimore, Rinehart, Green- wood, and Belden. Honore told the staff that union ac- tivity was going on in the store and that she had been told from "downtown" that the security staff was not to get involved. She stated that the staff was to perform their normal functions and if problems arose they should alert management. They were also informed that if non- employee union organizers entered the store they should notify store management. The security staff was also told by Honore on this occasion that there was going to be some additional security personnel in the store.' 3 (3) Gieser observes employees On August 25, Wendy Cano, a store employee, pro- ceeded from her workplace in the store towards the south entrance for the purpose of spending her morning break period in the mall area outside of the store and proximate to the south entrance. In the moderate sports- wear department inside the store near the south entrance she observed Gieser leaning on a clothes rack in the de- partment. Cano left the store and joined other employees who were taking their breaks in the mall area. Cano and the other employees engaged Nickelson in conversation while Ochoa engaged in handbilling. As they spoke to Nickelson, the employees were sitting on a wall in the mall and Cano could observe Gieser in the store in the vicinity of the clothes rack in the moderate sportswear department looking out into the mall directly at the group of employees as they spoke to Nickelson. Cano's break lasted 30 minutes. Gieser continued throughout that time period to focus his attention on the group of employees speaking with Nickelson. When Cano entered the store at the conclusion of her break she observed Gieser standing where he had stood when she left to commence her break.'4 (4) Sue Novak's involvement In August 1981, Sue Novak was employed as the re- gional security manager for region I-A with responsibil- ity over five stores. The Century City facility was not Gieser wherein Gieser instructed Larimore to record the names of em- ployees seen talking to union organizers. '" The foregoing is based primarily on the credited testimony of Bonnie Honore. I have also considered the testimony of Richard Lari. more and Crystal Rinehart and credit it only to the extent that it is con- sistent with the foregoing findings. I am unable to accept the anomaly present in the testimony of Larimore and Rinehart that Honore would, on the one hand, instruct the red coat personnel to pursue their normal duties and abstain from discussing the merits of union representation, while, on the other hand, directing them to be acquiescent and obedient to the directions of other security personnel which potentially could divert them from their regular duties and render them promanagement partisans in the organizing efforts. In sum, I reject the interpretations given Honore's remarks by Larimore and Rinehart in their testimony. Rather, I credit Honore's testimony that she, in effort, instructed the red coats to contact management if they observed "a problem." "' The foregoing is based on the credited testimony of Wendy Cano. Richard Gieser testified that he could remember no incident of the type described by Cano in her testimony. To the extent that he intended by his testimony to deny the conduct attributed to him by Cano he was not convincing. I found Cano to be a credible and convincing witness. 392 THE BROADWAY included within her region. Novak reported directly to Sanford Weeks but was higher in the chain of command than were security agents, five of whom reported to her. Charles Neer, as found, was regional security manager over the region in which the Century City store is locat- ed. He was on vacation during the last week of August. Novak was instructed by Weeks to report to the Cen- tury City store and be available to assist in countering potential shoplifting activities. Novak reported to the Century City facility on Wednesday, August 26, and worked the entire day shift. She worked at the Century City store for a portion of the following day, Thursday, August 27. Honore was not in the store on those 2 days. Novak worked undercover during the time she spent at Century City and thus wore no identifying uniform or badge. She devoted the principal portion of her time to patrolling the sales areas and protecting against potential customer and employee theft.'5 Larimore testified that at a point in time after the organizing effort had com- menced, Novak spoke to him and other inspectors and informed them that one of the other security agents had been stationed undercover in a store "across the way." Novak did not identify the store but according to Lari- more she instructed the inspectors to assist that agent in identifying the employees who were talking with the union organizers. This identification was to be accom- plished through use of two-way radios. Larimore further testified that in a separate conversa- tion which transpired on a Saturday, Novak stated to Larimore, Rinehart, and Greenwood that three employ- ees were having lunch outside the store with the union organizers and that the inspectors were to remain in the store at the employee entrance and obtain the names of the employees. Larimore testified that at the conclusion of the conversation the three inspectors went to the second floor and that he, Larimore, went on break after patrolling a short time. Novak credibly denied the conduct attributed to her by Larimore. Her demeanor and straightforward manner in testifying concerning these two asserted incidents con- vinced me that her account and her denials were worthy of belief and entirely more convincing than Larimore's account which appeared to be laced with supposition, confusion, and contradiction. Illustrative of these defi- ciencies with respect to the second incident is Larimore's testimony that the inspectors were to remain at the em- ployee entrance for the purpose of observing the three employees leaving in the company of the union organiz- ers from an outside restaurant of which there were sev- eral. In contradistinction, Larimore testified following the conversation with Novak that he went to lunch and that all of the other inspectors who had assertedly been the recipients of Novak's instruction, immediately left the vicinity of the entrance and pursued patroll duties on the second floor of the store. Similarly, Larimore was con- fused with respect to the day of the week on which this second incident occurred. Finally, with respect to both incidents, he appeared as I observed him testify, to lack certitude with respect to the details of each of the inci- dents. I do not credit him. Moreover, in rejecting Lari- '" The credited testimony of Sue Novak, as supported by documentary evidence of record, establishes the foregoing. more's version and crediting Novak, it is noted that Rinehart, whom Larimore identified as being a partici- pant in both conversations with Novak, gave no support in her testimony of Larimore's version of these conversa- tions. (5) Larimore speaks with Schlaff During the organizing campaign, John Schlaff was em- ployed as night assistant manager-a nonsupervisory po- sition-at the Century City facility. He was active in publishing and distributing newsletters to employees at the store. In the campaign literature that was distributed at the Century City premises he was identified by name as one of the members of the organizing committee. On or about August 25 Schlaff had occasion to speak with Larimore. The conversation transpired in the early after- noon at a time when Schlaff had been speaking with Nicholson, one of the union organizers. Larimore was walking in the mall area outside the store and stopped to speak with Schlaff. He told Schlaff, in substance, that su- pervision and management had been watching his activi- ties and knew that he was a "ringleader" of the organiz- ing effort and was writing the bulletins. Larimore told Schlaff that management had brought in undercover people from other stores and that one was stationed with a walkie-talkie in the Tot Toggery, a children's clothing store on the mall. Larimore stated that management was noting each person who talked to an organizer and was requesting in-store security to help compile a list of names. Larimore noted that he had refused to record any names and added that he was advising Schlaff of these things because he was afraid that management would "come down hard" on him.'6 (6) The involvement of Virginia Hartman Soon after the organizing campaign commenced, Honore had occasion to speak with Hartman using a two-way radio. Hartman was speaking from outside the store. She informed Honore that a suspicious appearing individual was entering the store and offered a verbal de- scription of the individual. A detective was assigned to work on the matter.'7 Crystal Rinehart testified that ap- proximatley 3 or 4 days after the union activity com- menced Honore told her that Hartman was in the Tot Toggery watching the employee entrance. Rinehart fur- ther testified that while she was speaking with Honore, Hartman contacted Honore by radio and gave "descrip- tions of people that were outside by the employee en- trance . . . ." Rinehart further testified that Honore made notes of this occasion. She could identify the indi- vidual speaking with Honore by virtue of the accent which she knew Hartman to possess. Rinehart also testi- fied that on other occasions she heard Hartman giving descriptions of "employees." Honore credibly testified that she had never instructed Hartman to station herself in the Tot Toggery and ob- oe In findings that this conversation transpired, I rely on the testimony of John Schlaff. I have also considered the testimony of Richard Lari- more. I? The credited testimony of Bonnie Honore establishes the foregoing. 393 DECISIONS OF NATIONAL LABOR RELATIONS BOARD served the activities of employees. In substance, she denied the comment attributed to her by Rinehart. 8 (7) Honore converses with Rinehart Shortly after the organizing campaign commenced, Rinehart approached Honore on the selling floor and said that she knew who was involved in the union activi- ty. She added that she was going to take her break and follow her usual routine of sitting outside where the union activists normally gathered. Honore told Rinehart that because of implications that could be drawn she should stay away from that area. Rinehart responded that she just wanted to see what was going on. Honore stated that her lunch and her breaktime was her own but cautioned that in order for the security department to be protected she should stay away from the area in ques- tion. Rinehart responded that she was going to go ahead on her break. She did so. Honore observed Rinehart go outside and sit on the ledge with other employees who were active on behalf of the Union. Nicholson was also present.' (8) Chevalier and Schlaff converse In early September, Paul Chevalier, vice president in charge of employer relations, conducted a meeting I8 Upon a consideration of the credited testimony of Virginia Hartman and Bonnie Honore, and in light of the deficiencies implicit in Rinehart's testimony, I do not credit that portion of Rinehart's testimony attributing to Honore a remark to the effect that Hartman had been stationed in the Tot Toggery for the purpose of observing the union activities of employ- ees. Initially, it is clear from the testimony of Hartman and of Rinehart that there exists in the record no substantial foundation for concluding that Hartman was well acquainted with the employee complement, gen- erally, or had a capacity to identify individuals as employees other than by virtue of the badges which they were required to wear while on duty, and which they generally wear while on break. Moreover, Rinehart's mind set, as revealed by her answer defining how she was able to know that the descriptions being radioed by Hartman were those of employees, discloses a high level of rationalization. Thus, Rinehart testified, "How do I know they were? I guess because, why would they be talking about anybody else?" The record amply establishes that two-way radios were routinely used by security personnel both prior to and during the orga- nizing effort to describe individuals entering the store who had a suspi- cious appearance. Rinehart's testimony with respect to the foregoing inci- dents appears highly rationalized, subjective, and based principally on supposition. 19 The credited testimony of Honore establishes the foregoing. I reject the testimony of Crystal Rinehart to the extent that it is inconsistent with the above findings. The testimony of Honore, and the record as a whole, establishes to my satisfaction that Honore was circumspect in her desire to maintain an independent posture of the security forces in the face of the employee organizing effort and management's legitimate and predict- able interest and concern therewith. Honore had instructed the red coats to remain neutral, and I am not convinced that she would have aban- doned this policy and inferentially recanted from the instructions which she had given Rinehart and the other red coats just a day or two earlier by encouraging Rinehart to eavesdrop on the union activities of her fellow employees in the manner described by Rinehart. I reject Rine- hart's testimony and do so not only upon the conviction that Honore tes- tified truthfully with respect to this incident, but of the further conviction that Rinehart possessed an aberrant memory of salient events, and inter- faced this deficiency with her own subjective interpretations influenced by her inquisitive interest in the activities of the union organizers and her fellow employees to whom she spoke on a daily basis. Indeed, the in- struction to engage in surveillance of employee union activity which Rinehart attributes to Honore, stands in stark contrast to the counsel given Rinehart by Honore to the effect that, remaining as a roommate with Leslie Bass, one of the female employees active in the Union, placed substantial strains on Rinehart's capacity to remain neutral in the manner expected of security personnel. which was attended by Chris Huntsman and a group of employees, including Schlaff and other employees who had identified themselves as members of the employee organizing committee, as evidenced in the literature dis- tributed by the Union. During the meeting, Schlaff had identified himself as the author of the news bulletins which had been distributed. Chevalier had questioned the accuracy of the bulletins, and Chevalier and Schlaff had an exchange of views as to whether the asserted in- accuracies were deliberate misrepresentations. After the meeting, Schlaff and Chevalier spoke privately. During the course of their discussion, Chevalier stated that the Union was going to lose overwhelmingly. Chevalier fur- ther stated that, while unionization would be a bad thing, he felt the union campaign had been beneficial because it brought to the attention of upper management several problems at the Century City store of which they had not been aware. He added that as a consequence upper management would always have "a special eye on Cen- tury City" and would have a special ear turned to its problems. Chevalier also noted that there had been no prior organizing efforts in the Broadway chain and that "they would always be aware of Century City's prob- lems." 2 0 3. The no-solicitation rule a. The rule as promulgated At all relevant times Respondent's employee handbook has contained the following rule under the heading "So- licitation:" It is a violation of our policy for anyone to come on our property to solicit or distribute literature for any purpose which would interfere with the work- ing time of our employees or tend to irritate our customers. Our invitation to the public is to use our store property for shopping and purposes incidental to shopping. Employees may not solicit or distribute literature to other employees or be solicited or receive literature for any purpose during their working time. Our em- ployees cannot properly perform their work if they are interfered with by solicitation or distribution. Immediately report to your Supervisor or a member of Management if any person, Company employee or otherwise, attempts to solicit you for any reason in violation of these rules. The handbook contains no textual amplification or clari- fication of the rule. Each new-hire is presented with a copy of the employee handbook at an orientation session. Copies of the rule are posted at entrances and at employ- ee timeclocks within the store. 2 20 The undisputed testimony of John Schlaff establishes the foregoing. 1I The credited testimony of Chris Huntsman and documentary evi- dence of record establishes the foregoing. 394 THE BROADWAY b. The implementation of the rule In support of the union organizing effort, T-shirts were printed and distributed to some of the employees. On the front of the shirt integrated with a union logo was the slogan "Help Make The Broadway Your WayP' On the back of the shirt appeared the slogan "Support Collective Bargaining." The front and back slogans were in bold lettering and easily discernible to the eye. Efforts were made to raise funds by offering the shirts for sale at S5 a piece. The sale and distribution were coordinated through Ochoa, Nicholson, and some of the members of the organizing committee. On or about October 20 an organizing meeting was held, attended by several of Respondent's employees and by Ochoa and by Nicholson. The need for additional signed authorization cards was discussed. T-shirts were distributed to some of the employees in attendance. After the meeting, a group of employees riding together in an automobile agreed to wear their T-shirts on payday when they went to the store to obtain their paychecks. On October 22 Villanueva and Bass met near the em- ployee entrance. It was a nonworking day for each of them. Each wore a union T-shirt. They entered the store and proceeded to a sales department on the second floor. Bass did some shopping and in the process spoke to a salesperson. They then proceeded to the third floor and browsed in the housewares department. They were ap- proached by Hollie Johnson and Craig Rotman. Johnson asked them to leave the store, stating they were in viola- tion of the store's no-solicitation policy. Villanueva and Bass were told either to leave the store or remove their T-shirts. After further discussion they went to the office of Chris Huntsman and spoke separately with her. She showed each of them the rule regarding solicitation con- tained in the employee handbook. In substance, Hunts- man told Villanueva and Bass that the rule against solici- tation prohibited them from wearing their T-shirts in the store on their days off. Villanueva entered the store the following day wear- ing his union T-shirt. He was off duty. No member of management or supervision approached him. On Friday, October 23, Sharon Slaughter, Jo Anne Remmes, De- siree Taylor, and Monica Alexander each wore their union T-shirts when they came to the store on their re- spective days off for the purpose of obtaining their pay- checks. Each used the escalators and saw and talked to on-duty employees or customers. Each was instructed by Huntsman either to leave the store or remove their T- shirts. The reason given was the no-solicitation rule. Slaughter was wearing a regular T-shirt under her union T-shirt. She removed the latter and remained in the store. Remmes, Taylor, and Alexander left the store, covered the union T-shirt with other garments, and re- turned to the store. They were not approached by super- vision or management. On May 13, Wendy Cano wore her union T-shirt to the store on her day off. She entered the store for the purpose of purchasing a pair of jeans. While she was making her purchase, she was approached by Huntsman who informed her that she was in violation of the store's solicitation policy because she was wearing a union T- shirt. Huntsman instructed her to leave the store. How- ever, Cano had a sweater in her possession and she placed the sweater over her T-shirt and she was permit- ted to complete her purchase. She did so and proceeded to the third floor personnel offices. She spoke again with Huntsman and discussed the solicitation rule and its pa- rameters. Huntsman told her that if she continued to wear the T-shirt she would have to leave the store. Cano was wearing her sweater over her T-shirt when Hunts- man made this declaration. At some point in time it had come to the attention of Chevalier that employees had commenced the practice of wearing union T-shirts. Chevalier had been told that the employees were purchasing the T-shirts and wearing them in the mall and were entering the store wearing them. As a result, Chevalier recommended to store man- agement that employees be precluded from wearing the union T-shirts into the store. Chevalier testified that he based his recommendation on the fact that the "company has a solicitation rule which does not allow anyone to wear solicitation materials of any kind or distribute solic- itation materials of any kind for any purpose in the store." He further testified that he took the position that when employees were off duty "they were like any out- sider" and that they "should not be permitted to do any- thing more than any other outsider would be permitted to do." Respondent did not have, in promulgated form, a no-access rule, and under longstanding practice employ- ees were permitted on their days off to come to the store to shop or to retrieve their paycheck.22 During their break or lunch periods, employees were permitted to staff a table in the employee canteen situat- ed on the fourth floor of the store and to distribute cam- paign literature and handbills from the table. The em- ployees were permitted also to place and maintain a sign on the table in the canteen bearing the slogan "Help make the Broadway your way." Moreover, throughout the entire organizing campaign, employees were permit- ted to engage in solicitation on behalf of the Union both before and after work and while they were on their break and lunch periods. No limitation was imposed on the freedom of employees to converse about the Union in the store on their break or lunch periods, or to speak with Ochoa and/or Nicholson in the store during their free, nonduty time.23 4. Capilupo and Frederickson converse On August 24, the day on which the Union com- menced handbilling at the Century City facility, Frank s" The above findings are based on evidence which is essentially undis- puted. These findings are based on a distillation of the testimony of Andres Villanueva, Leslie Bass, Sharon Slaughter, Jo Anne Remmes, Monica Alexander, Wendy Cano, Paul Chevalier, and Christine Hunts- man. The sum of the testimony gives credence to the general outline of events above-described. Huntsman concedes the accuracy of the attribu- tions of the employee witnesses concerning the application of the no-so- licitation rule to the wearing of T-shirts in the store by off-duty employ- ees, and her directive to either leave the store or remove the T-shirts which they were wearing. The finding with respect to the incident in- volving Villanueva and Bass is based primarily on Bass' testimony. I credit the testimony of Villanueva only to the extent that it is consistent with the above findings. aS The testimony of John Schlaff, Leslie Bas, Andres Villanueva, and Christine Huntsman establishes the foregoing. 395 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Capilupo, divisional group manager of fashion accesso- ries at the Century City store, had occasion to speak with David Frederickson, a sales associate, who on August 24 was assigned to the Cartier department under Capilupo's general supervison. Frederickson worked fre- quently in the Cartier department but his assignment to that operation was not a permanent one. However, both prior and subsequent to August 24 Capilupo and Freder- ickson had occasion to converse both in the line of duty and with respect to diverse subjects such as music, world events, and general business conditions. Frederickson and Capilupo had a mutual interest in music, and Frederick- son had attended the performance of a rock-and-roll band in which Capilupo played. The conversation on August 24 occurred in context with handbilling by the Union which constituted the first overt organizing activities at the Century City store and the first handbilling effort of a labor organization which Capilupo had ever witnessed. The event had given rise to a degree of confusion on the part of managers and rank-and-file store personnel. Frederickson initiated the conversation which lasted approximately 20 minutes. In speaking with Capilupo, Frederickson observed that he had noticed a "kind of general confusion" characterized by "managers kind of running around." In a conversa- tional manner, the participants spoke of the union's pres- ence outside the store, and Frederickson observed that there had been plans to leaflet the store on the previous Friday but a decision against this had been made. He spoke also of supervision being "stoned faced" and in- volving in petty practices. Towards the end of the con- versation, Capilupo asked Frederickson how he felt about the activities. Frederickson responded that he was definitely for it and added that the question which Capi- lupa was asking him was an illegal one. This caused Ca- pilupo to laugh because he had never known Frederick- son to be quite so formal. Capilupo did not pursue the matter further.24 5. Rotman speaks with Frederickson Approximately a week later, Frederickson had occa- sion to speak with Craig Rotman, an assistant store man- ager with supervisory authority over him. The conversa- tion commenced on the sales floor. In the course of the conversation, the subject of employee grievances arose. Rotman noted that he could not do anything about grievances "unless they are written down in black and white." He suggested that they go to his office and talk about the matter. Frederickson and Rotman went up- stairs to Rotman's office situated on the third floor in the personnel department. In the office, Rotman sat behind his desk and Frederickson sat down across the desk from him. As he and Frederickson spoke, Rotman recorded notations on a yellow legal-size writing pad. Frederick- son specified poor pay, inadequate raises, lack of man- agement understanding of employees, the dress code, and several other matters as employee grievances. The list of grievances as recorded by Rotman filled approximately 24 The foregoing is based on combination of the credited testimony of David Frederickson and Frank Capilupo. Capilupo conceded that he asked Frederickson how he felt about "what was going on." two-thirds of one page. As Rotman and Frederickson discussed these matters, Rotman stated that he "couldn't make any promises" and he repeated this statement during the course of the conversation in the office. Rotman added that he would retain the anonymity of the list which he was compiling. In addition, during the course of the conversation, Rotman asked Frederickson to state his opinion of the management personnel. As the conversation drew to a close, Rotman told Frederickson that he would see what he could do about the grievances and stated he would take them up with higher authority. He cautioned that he could not promise anything "be- cause of the legalities." Frederickson worked in close contact with Rotman for a period of several months prior to this conversation. Over the period of the work relationship, Frederickson had occasion to speak with Rotman concerning a variety of work-related matters and employees generally. Thus, Frederickson had expressed his desire to obtain a com- mission selling job, his opposition to a proposed dress code policy, an apparent delay in the granting of a raise to one of his fellow employees, the slow manner in which a medical insurance benefit was being processed with respect to a fellow employee, merchandising prob- lems, and deficient staffing. Other employees had spoken to Rotman in a similar vein. Additionally, after the con- versation in Rotman's office, Frederickson had occasion to speak with Rotman concerning grievances. Frederickson was unable to recall whether he in- formed Rotman on the occasion of the interview in Rot- man's office that he supported the Union, or whether this information was imparted to Rotman prior to the meeting. 26 Respondent's employee handbook which, as found, was distributed to all employees at the outset of their employment contains a written expression of policy as follows: Open Door Policy Once you've actually started working at your job, you may find you have some questions you want to ask or some details you don't understand. Our "Open Door" policy means that you are welcome to discuss your questions in a relaxed way, and know you'll receive an answer. If you have a job problem or complaint, you should discuss the problem with your Supervisor. If you are not satisfied with the results of your discussion, or you feel uncomfortable discussing it with your Supervisor, go to the Personnel Manager. If you are still not satisfied, talk with the Store Manager or the Regional Personnel Manager. If you wish to put your problem or complaint in writing, you can obtain the appropriate form from Personnel. We assure you that you will never be penalized in any way because you use the Problem Solving-Employ- ee Complaint procedure. It was set up for your pro- : All of the foregoing findings are based on the credited and undis- puted testimony of David Frederickson. Craig Rotman was not called to testify. 396 THE BROADWAY tection and benefit and you will find that all Super- visors and other members of Management will be more than willing to talk over any matter which is important to you. Our goal is to continue building The Broadway, based on the standards already established, so that it remains a desirable place in which to work and a pleasant place in which to shop. Because our people are the most important asset in our business, we are committed to a policy of fair and equal treatment, and to improving the skills of all our employees. We hope we've made a good impression and pro- vided you with the guidelines for understanding how we function, what's expected of you, and what you can expect from us. 6. The low-cost lunch program At all relevant times Respondent has operated an em- ployee canteen at its Century City facility. It also operat- ed a restaurant within the store open to the employees and the public. Prior to late 1981, the food and bever- ages available for employee purchase were dispensed through vending machines. This included sandwiches, canned foods, candy, and soft drinks. In November or December 1981, a freshly prepared sandwich and salad became available to employees at the price of S1.25.26 In the meantime, in September 15, 1980, Sue Nave became store manager of the Century City facility. Two weeks prior thereto she had entered the employ of Re- spondent and had pursued an orientation program de- signed to familiarize her with the policies, procedures, and systems of Respondent. The orientation program was conducted at the service building and at two other stores of Respondent. Prior to entering the employment of Respondent, Nave had been employed by Weinstock's and by Federated Department Stores. Employee rela- tions and store maintenance were included in Nave's re- sponsibilities as store manager of the Century City facili- ty. During her initial week as manager of Century City, she toured the entire store to become familiar with the store layout and the physical condition of each of its areas. Her tour included the canteen, the employee lounge, and the employee quite room which were areas on the fourth floor designated specifically for employee use. She found the employee canteen to be drab, cheer- less, and cluttered. She noted that the floor was not clean. In general, she concluded that the employee facili- ties at the Century City store compared very unfavor- ably to those at the other Broadway stores with which she had become acquainted, and with the Weinstock's store. Moreover, as Nave toured the store and spoke with employees, she received negative comments con- cerning the condition of the facilities. These criticisms became more specific and defined at employee meetings conducted by Nave with groups of sales and sales sup- port personnel. During the course of these meetings, em- ployees stated that the food in the vending machines was 2a The undisputed testimony of Sue Nave, Colin Flint, Wendy Cano, and Richard Larimore establishes the foregoing. not fresh and that the vending and change machines in the employee canteen would malfunction. Additionally, employees complained that the price of available food in areas near the store was "very high." Nave's initial undertaking designed to improve the em- ployee facilities was to direct the removal of the stock which was stacked from floor to ceiling in the quite room. Additionally, a broken lampshade in the lounge was replaced. By November 1980 a project to paint the canteen, clean the floors, and to secure new tables, chairs, and pictures for the canteen was initiated. This project was completed by June 1981. On August 14, 1981, Nave spoke with Colin Flint, who was then regional food service manager with re- sponsibility over food service operations in nine stores, incuding Century City. Craig Rotman also participated in the discussion. They spoke of the problem of maintain- ing a consistent level of products available in the vend- ing machines in the canteen. As the conversation evolved, Rotman mentioned an employee lunch that had been served in a competing store in which he had worked. Alternatives to the vending machine food ar- rangement were explored, and Nave inquired if it were feasible to provide a fresh sandwich and salad to the em- ployees for consumption in the canteen. After consider- ing the matter briefly, Flint stated that he could see no logistical problems. He noted the existence of local health ordinances and stated that he would check the ap- plicability of those. Nave, Flint, and Rotman discussed the equipment which would be necessary, and Flint noted that the following week he would determine whether a salad bar, not presently in use at one of the other store facilities, would be available. The discussion then turned to the type and variety of sandwiches that would be offered. Flint expressed concern whether per- sonnel would be available to prepare the sandwiches and made a note to himself to consult the restaurant manager. The participants discussed but discarded the concept of offering soup in connection with the program. During the course of the meeting, Flint made a notation that if a salad bar were not available in one of the other stores, he should order one. He entered a further notation to the effect that he should advise Tony Gracyk, his superior, concerning Nave's request and get an approval from Gracyk. Flint was aware of the fact that the program of offering fresh sandwiches and salads in an employee can- teen in a store having a restaurant facility would create a new precedent within the chain. The meeting ended on this note. Early the next week, Flint spoke with Gracyk who evidenced no objection to the program but requested that Nave reduce her suggestion to writing. At the September and October meetings between Nave and groups of employees, Nave made known the decision to offer a lunch of sandwiches and fresh salads and the employees reacted positively. The soup and salad luncheon was first offered in November or December 1981.27 2' The foregoing findings are based on a distillation of the credited tes- timony of Sue Nave and Colin Flint and documentary evidence of Continued 397 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Nave testified that she concluded the September 14 meeting with Flint and Rotman comprehending that the luncheon program would be implemented without fur- ther action on her part. She further testified that at no time after the meeting did she converse or receive any written communication from Flint or anyone else at the regional level regarding the low-cost lunch program. Flint testified that he had authority to implement the program and that the approval of his superior, Tony Gracyk, was not essential to the full implementation of Nave's request. Nave and Flint both testified that they had no knowledge of any union activity at the store at the time of the September 14 meeting. Prior to September 14, two of Respondent's stores provided a food service program similar to that which was discussed to the Century City store. However, these were not stores containing restaurant facilities. More- over, subsequent to September 14, in October 1981 and March 1982, similar food programs were made available to employees at two other stores operated by Respond- ent. 2 8 7. The final warning to Villanueva On May 28, 1981, a representation election was con- ducted at the store. After voting had been completed, the ballots were counted. The official count revealed that a majority of the ballots were cast against the Union. Paul Chevalier participated in the ballot count in his capacity as vice president of employee relations. The result of the election became a matter of general knowl- edge between 8 and 8:20 p.m. Andres Villanueva had learned of the results of the election at the time he com- menced his evening break at 8 p.m. Villanueva was scheduled to work the 6 to 9 p.m. shift that evening. His normal break period would last 15 minutes. At the outset of this break, Villanueva left the store through the south entrance. He quickly consumed a beverage and sat for approximately 5 minutes speaking with other employees. He then moved to a position near a tree planter and spoke with Steven Nickelson and Victor Ochoa about the results of the election. Their conversation took place near the escalators. Villanueva was upset over the results of the election and his distress brought him to the point of tears. He observed Sue Nave, Holly Johnson, and some other managers walk past. Soon thereafter, Cheva- lier departed the store through the south entrance and walked toward the escalators. Villanueva observed Chevalier and stopped his conversation with Nickelson and Ochoa. Chevalier was alone. record. I reject the testimony of Flint to the effect that the fresh sand- wich and salad luncheon was offered within 2 weeks of the September 14 meeting. The summaries of employee group meetings conducted by Nave contain notations suggesting that decision to implement the luncheon was first communicated to employees in September and October and that the actual initiation of the luncheon program did not commence until No- vember and December. Thus the summary of employee group meetings conducted in October and November 1981 by Nave contained no nota- tion suggesting the actual operation of the fresh luncheon program, whereas the summaries for the November-December 1981 period contain a specific notation to the effect that a salad bar had been added. More- over, the testimony of Wendy Cano tends to support the conclusion that the actual operation of the luncheon program did not commence until the organizing campaign was well underway. 2a The credited testimony of Colin Flint establishes the foregoing. As Chevalier proceeded from the south entrance toward the escalators, Villanueva left Nickelson and Ochoa and walked toward Chevalier. As Villanueva walked toward Chevalier he addressed some comments to Chevalier which Chevalier was unable to understand. Chevalier knew that Villanueva was addressing him and he stopped. Villanueva approached to within 5 or 6 feet of Chevalier and called Chevalier a "fascist bastard." He added, "I hope you are happy that you fooled most of the people." Villanueva then repeatedly called Chevalier a "fascist bastard." Chevalier made no response and started to walk away. Nickelson and Ochoa were ap- proximately 10 feet away when Villanueva addressed Chevalier. However, Nickelson and Ochoa approached Chevalier, and Nickelson asked him to wait. Chevalier stopped and Nickelson approached Chevalier. Ochoa stood nearby and Villanueva was a few feet further away. Nickelson asked Chevalier what was going on. Nickelson had heard some but not all of Villanueva's statement to Chevalier. Chevalier did not respond to Nickelson's inquiry, and Nickelson placed his hand on Chevalier's arm above the elbow. Nickelson stated that people tend to get "extremely upset during times like this" and that Chevalier should understand this. Cheva- lier responded, "Don't touch me. Don't touch me." Chevalier spoke in a loud voice and was exasperated. Nickelson released Chevalier's arm and looked toward Ochoa. Ochoa motioned for Nickelson to leave Cheva- lier alone. Nickelson turned again to Chevalier and again placed his hand on Chevalier's arm. Nickelson comment- ed that emotions run high during an election. Chevalier requested Nickelson to let go of his arm. Nickelson per- sisted in maintaining his grasp on Chevalier's arm. Chev- alier repeated his request to Nickelson to let go of his arm. Nickelson did so, saying, "Take a walk." Chevalier proceeded down the escalator to his parked automobile. He proceeded by automobile to a restaurant. At the res- taurant he joined Chris Huntsman and Holly Johnson for dinner. He informed Huntsman that he had had a very disturbing experience. He recounted that Villanueva had approached him and called him a "fascist bastard" sever- al times. He added that he had been "assaulted" by Nick- elson and had found both incidents upsetting. He told Huntsman that he wanted to think about what had hap- pened and did not wish to make a recommendation under the emotional impact of the incident. He stated his desire to be objective.2 9 29 The foregoing is based on a consideration of the testimony of Paul Chevalier, Andres Villanueva, Steven Nickelson, Victor Ochoa, and Christine Huntsman. The findings with respect to the statements ad- dressed to Chevalier by Villanueva are based primarily on the credited testimony of Chevalier. I credit Villanueva only to the extent that his tes- timony supports the findings above made. Villanueva did not impress me as an entirely credible witness. His testimony concerning the incident in question impressed me as highly selective, and his testimony, generally, revealed a strong bias and compromise with truth in circumstances wherein the General Counsel's case would be furthered by shading the truth or employing selective recall. I have heretofore discredited Villan- ueva's version of the events surrounding his visit to the store in the com- pany of Bass. In addition, the testimony of Nickelson supports that aspect of Chevalier's testimony suggesting that contrary to Villanueva, Villanueva's comments to Chevalier were not limited to the innocuous statement, "I hope you are happy that you fooled most of the people." In Continued 398 THE BROADWAY In the meantime as Chevalier proceeded toward the escalator after his incident with Nickelson, Nickelson joined Ochoa and they made loud remarks such as "lame brain" and "hypocrite." For his part, Villanueva in- formed Ochoa that he did not feel like returning to work. Villanueva's break period was ending. In response, Ochoa contacted Nave by telephone and inquired if Vil- lanueva could be excused from work for the balance of the evening. Nave declined to give her permission. Ac- cordingly, Ochoa spoke with Huntsman by telephone, explaining that Villanueva "wasn't feeling too well" and thus his work would be adversely affected if he returned. Huntsman gave her permission of Villanueva to leave work for the evening. Villanueva did so.30 After evaluating the incident involving Villanueva for several days, Chevalier recommended that Villanueva be given a final warning but not terminated. This recom- mendation was communicated through channels to Huntsman. Huntsman met with Stuart Levine, director of legal personnel services, and it was decided to put Villanueva on "cause" warning and that he be told that he would be terminated if any further incidents occurred. In evaluating the nature of the personnel action to be taken, Chevalier, Levine, and Huntsman each considered the factual context in which the incident had transpired and the emotions which were present in the aftermath of the election. Thereafter, Huntsman directed to be pre- pared a written "cause warning," dated June 15, 1982. Huntsman was on vacation at the time and the warning was not presented to Villanueva until June 22, 1982. Thus, during the workday on June 22 Villanueva was called to Huntsman's office. He met with her and was presented with a cause warning form containing, in perti- nent part, the following: At approximately 8:40 p.m. Mr. Chevalier, vice president of employee relations, exited the store and was spoken to by Andy [Villanueva] in a loud and abusive manner, using obscenities and foul language. This behavior was inappropriate and intolerable. The recommendation contained on the face of the notice called for Villanueva's termination if any "outbursts of this or similar nature" should occur in the future. In pre- senting the written warning to Villanueva, Huntsman read the contents aloud and explained that a cause warn- ing was being given to him because management had felt that the emotions of the evening had contributed to Vil- lanueva's actions. Villanueva asked no questions and of- fered no statements. He refused to sign the notice form. However, he entered the following written comments on the form: addition, I credit Chevalier to the effect that Nickelson twice placed Chevalier's arm in his grasp, neccesitating Chevalier's repeated requests that he be released. The testimony of Ochoa is essentially consistent with that of Chevalier concerning the sequence of events. It inferentially re- futes that element of Nickelson's testimony that is inconsistent with Chevalier's concerning the sequential happenings. Finally, I have consid- ered the testimony of Christine Huntsman with respect to the comments made to her by Chevalier when he joined Huntsman and Johnson at dinner soon after the incident in question. See Rule 803(2), Fed. R Evid., as amended August 1, 1982. s0 The credited testimony of Victor Ochoa establishes the foregoing. I disagree with the reasons given to me for such accusations. He regards to my "foul and abusive language," I was addressing Mr. Chevalier as an ex- ploiter and repressor of Broadway Century City employees. I feel no apology or reprimand is justi- fied by Broadway management and I can only say that this is a mere purging of union supporter, of whom I am well known for [sic] among manage- ment. On June 25, 1982, Villanueva presented to manage- ment a document entitled, "Counter-Reprimand and Grievance." In substance, the grievance recounted that on Wednesday, March 19, 1982, he, Villanueva, had ap- proached Sharlene Pearson, supervisor-employee train- ing, at the south entrance of the Century City store while she was distributing "anti-union" literature. The grievance further recounted that after receiving a copy of the literature being distributed, he, Villanueva, asked Pearson to state her reasons and purpose for distributing the literature. The grievance further stated that Pearson responded in a defensive tone, refused to answer any questions, and directed a "foul and abusive remark" to Villanueva. The grievance named Linda Pesich, an as- sistant manager, as a witness to the incident. In due course Huntsman interviewed Pesich who in- formed Huntsman that she overheard Pearson call Vil- lanueva "a creep." Thereupon, Huntsman interviewed Pearson, related the details, and conceded that she had called Villanueva "a creep." Huntsman cautioned against the conduct. She concluded that the incident did not in- volve the "severity" of Villanueva's comment to Cheva- lier. No further personnel action was taken. Respondent did not communicate any formal response to Villanueva concerning his grievance. s t IV. CONCLUSIONS A. The Surveillance Issues The record establishes that from August 24, 1981, until the election on May 28, 1982, the Union and its employ- ees organizing committee carried out a wide range of or- ganizing activities, both within and outside the store, openly and free from employer interference or limitation. Not in dispute is the fact that handbilling and discourse between employees and union organizers Nickelson and Ochoa was conducted publicly on the adjoining mall, in close proximity to the employee entrance to the store, and in full view of employees, supervisors, management, and customers involved in normal pursuits in the selling areas of the store. Additionally, a wide range of organiz- ing activity and contacts were pursued within the em- ployee rest and break areas of the store and this was ob- served by supervision and permitted by management. The General Counsel tacitly concedes that Respondent accorded the organizers and employees a substantial degree of latitude in pursuing their organizing efforts a' The credited testimony of Christine Huntsman, and documentary evidence of record establishes the foregoing. I have also considered the testimony of Andres Villanueva and credit it to the extent that it is con- sistent with the above findings. 399 DECISIONS OF NATIONAL LABOR RELATIONS BOARD inside the store and on breaktime and in nonwork areas of the store. But it is the General Counsel's view that Respondent transgressed the Act by utilizing the pres- ence and perceptive capabilities of its managerial group and security forces in an inhibiting manner, pursuant to a triadic scheme calculated to convey to employees that their union activities were under scrutiny of manage- ment, as well as agents of management in the personia of security personnel. Thus, the General Counsel asserts that Respondent reacted to the beginning of the union campaign by: (1) increasing the visability of senior man- agement personnel in the store; (2) adopting and follow- ing a policy of having a member of senior management follow nonemployee union organizers who entered the store; and (3) increasing the security forces at the store. The General Counsel is on tenuous grounds in con- tending that the marginally accelerated participation of management in the good-night program, or the increased presence in the store of regional officials Kalkstein and Chevalier, in the early phases of the organizing effort, were acts of unlawful surveillance, or served reasonably to convey impressions inhibiting the organizing activities of employees. It is well established that management officials may observe public union activity, particularly when such ac- tivity occurs on company premises, without violating Section 8(a)(1) of the Act, unless such officials do some- thing out of the ordinary. Metal Industries, Inc., 251 NLRB 1523 (1980). In the face of organizing activities, employers may adhere to past practices and routines with which employees are familiar even though this may result in the routine presence of these officials in the pre- cise area or proximity of openingly conducted organizing activities. Chemtronics, Inc., 236 NLRB 178 (1978). Union representatives and employees who chose to engage in their union activities at the employer's prem- ises should have no cause to complain that management observes them. Milco, Inc., 159 NLRB 812, 814 (1966). The good-night procedures carried out over the years by Respondent for legitimate business purposes was one which continued without significant change after the advent of organizing activities. The test for determining whether an employer engages in unlawful surveillance, or unlawfully creates the impression of surveillance, is an objective one and involves the determination of whether the employer's conduct, under the circumstances, was such as would tend to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed under Section 7 of the Act. U.S. Steel Corp. v. NLRB, 682 F.2d 98 (3d Cir. 1982). No per se violation of Section 8(a)(1) of the Act resulted from the decision of Respondent to continue its good-night policy after management became fully aware of the organizing efforts. See G.C. Murphy Co., 216 NLRB 785 (1975). Continuation of this policy and routine after public, widespread activities of union advocates in and near the premises of the store had high- lighted the campaign, could have had no effect reason- ably to restrain employees in the organizing pursuits, or to interfere in any improper manner with their participa- tion therein. In my view of the record, the mere pres- ence of some additional management personnel at the store at closing hours, on some occasions, did not serve to modify in any substantial manner, a practice with which the employees had become fully familiar, for there is no showing that on those occasions when additional managers were present at the door greeting and bidding good night to exiting employees, they paid any attention to the organizing activity that may have been going on in the mall or behaved in a manner suggesting to em- ployees that the activities being conducted outside the store by exiting employees was being observed by the managers or given scrutiny. The motivation for addition- al management presence may have arisen from a benign desire to convey greater congenitally, or, as Gieser testi- fied, due entirely to an extension of management work- ing hours which placed management personnel on the premises at store closing time. Whatever the motivation, the mere presence was not sufficient, in the circum- stances of this record, to sustain this allegation of the complaint by the preponderance of the credible evi- dence. Cf., Cumberland Farms Diary of New York, Inc., 258 NLRB 900 (1981); Badische Corp., 254 NLRB 1195, 1200 (1981); Crown Cork & Seal Co., 254 NLRB 1340 (1981); Larand Leisurelies, 213 NLRB 197, 205 (1974). Nor do I find merit in the contention of the General Counsel that the rights of employees to organize free from the impermissible surveillance or scrutiny of their employer was somehow compromised by the asserted frequency with which Regional Vice President Kalkstein and Vice President of Employee Relations Chevalier ap- peared at the Century City store during the course of the organizing campaign. That management as well as em- ployees have an interest and stake in the outcome of or- ganizing efforts is too self-evident to require recital. Just as the collective-bargaining process is a matter of impor- tance necessitating the reasonable attention and involve- ment of the employer, likewise are the preludes to the achievement of a bargaining relationship. Embedded in Section 8(c) of the Act and in the pronouncements of the U.S. Supreme Court in NLRB v. Gissel Packing Co., 395 U.S. 575 (1969), is a recognition of the right of employ- ers to participate in the process. If a union wishes to or- ganize in public it cannot demand that management must hide. Tarrant Mfg. Co., 196 NLRB 794, 799 (1972). Nor do I find unlawful surveillance or impression thereof arising from the practice of management in fol- lowing the nonemployee union organizers through the sales areas of the store when they entered the store during the course of the organizing campaign. The evi- dence of record establishes that throughout the campaign Nickelson and Ochoa entered the store on frequent occa- sions and usually circulated throughout the store, passing through sales areas where customers were present and sales personnel were pursuing their normal work tasks. Respondent undertook no efforts to impinge upon the freedom of Nickelson and Ochoa to enter the store and to meet and talk freely with employees in the public res- taurant, employee canteen, and employee lounge. The General Counsel concedes that a retail establishment such as Respondent may issue rules restricting the locus of distribution and solicitation to some extent, and does not appear to challenge the right of Respondent to have precluded discourse and solicitation between the union 400 THE BROADWAY organizers and employees as the latter carried out their duties in the sales areas while they were on the clock. Employers are free to observe activities taking place on their premises when the scrutiny of those activities is in furtherance of a legitimate business purpose within the province of management to control, and is not concerned with the union activities of employees as distinguished from impermissible conduct of nonemployee union orga- nizers. See Documation, Inc., 263 NLRB 706 (1982); Hea- tilator Fireplace, 249 NLRB 544, 547-548 (1980); see also Stone & Webster Engineering Corp., 220 NLRB 905 (1975), enfd. in pertinent part 536 F.2d 461 (1976); cf. General Motors Corp., 237 NLRB 1509, 1516 (1978); Montgomery Ward & Co., 256 NLRB 800 (1981), enfd. 692 F.2d 1115 (7th Cir. 1982). In the circumstances of this case, including the public nature of the union orga- nizing effort, the high degree of free access to the store accorded the union organizers throughout the course of the organizing effort, and the freedom enjoyed by the employees to meet during their free time in areas of the store set aside for employees' use, it may not be conclud- ed that employees were restrained or coerced in the ex- ercise of their rights to freely organize, by the practice of Respondent of keeping nonemployee organizers under visual scrutiny as they entered and progressed through- out the store. Nor am I able to conclude that, in a related sense, Re- spondent created the impression of surveillance by in- creasing the size of its security staff at its Century City store, and capitalizing on its visual presence for the pur- pose of inhibiting employees in the exercise of their rights to freely organize. The Board has held that an em- ployer cannot, with impunity, use its security personnel as an instrument in impeding self-organization of its em- ployees. See Clear Lake Hospital, 223 NLRB 1, 8 (1976). Clearly an unprecedented buildup of security forces for the purpose of engaging in overt, undisguised, and open visual scrutiny of employees involved in organizing ac- tivities will not be permitted under the Act. Hochschild Kohn, 260 NLRB 25 (1982). However, the General Counsel does not here challenge the right of an employ- er during the course of an organizing campaign conduct- ed at its premises to continue the use of security person- nel at staffing levels necessary to the furtherance of le- gitimate business interest. Nor does the General Counsel appear to contest the well-established proposition that under the objective test applicable to the legal principle of surveillance, employees must be aware and perceive that their union activities are under scrutiny by their em- ployer, either directly or through its agents. E.g., Service Spring Co., 263 NLRB 812 (1982). As is disclosed by the record, saturation drives were not unprecedented in Re- spondent's operation, or in the Century City store. One had transpired shortly before organizing activities became evident at the Century City facility. Moreover, the return to higher levels of security staffing which marked the 7-week period following the beginning of the organizing drive was achieved partially through utiliza- tion of security personnel working undercover, and the clear weight of the evidence is to the effect that employ- ees had no means of identifying this group of individuals as having affiliation with the store operation. That these plainclothes personnel, under cover of anonymity, may have been charged by management with monitoring union activity and maintaining unobstructed ingress and egress through store entrances, could not reasonably be found to have had a restraining or coercive effect on em- ployees, for their communications were solely with man- agement and other security personnel and were discreet and confidential in nature, arising from the fact that the principal function of these plainclothes agents was to deter internal and external theft, a responsibility necessi- tating complete anonmity vis-a-vis store employees. While the facts of record establish a higher utilization level of security personnel generally, the only visible manifesta- tion of this use, so far as employees were concerned, was in the red coat category. Focus must therefore be on em- ployee perception of the increased presence and use of this group of security agents. I am unable to conclude that in the Century City store, comprised of four floors, including three floors of selling space, the addition of one or two red coats within the store on any given busi- ness day would have the effort of conveying to employ- ees that management was subjecting organizing efforts to scrutiny.3 2 Further, in the strict sense of the term, the "additional red coats" assigned to the Century City facil- ity during the 7-week period following the beginning of organizing activity were utilized to provide budgeted red-coat coverage created by a vacancy in a part-time position, and vacancies created by the transfer of Lari- more and the resignation of Greenwood. In this latter regard there was, in point of fact, no increase of red-coat coverage; merely a change of identity. Moreover, even if this staffing implementation had been one likely to come to the attention of employees, I am constrained to con- clude that Respondent made a sufficient showing of busi- ness justification to overcome the suspicion that lurks below the surface of the record regarding the timing of this implementation. In this regard, I find that security management had sufficient insight into theft, shrinkage, and inventory trends to have accorded prima facie justification for the decision to assign additional security forces to the Centu- ry City facility during the period following the election. In so concluding, I credit the testimony of Weeks that he received a continuing inflow of trend information with respect to inventory losses and shoplift threats. It is rea- sonable to conclude that in the dynamics of loss preven- tion, the flow of intelligence information would be timely and current, and that the dramatic increases in losses for Century City reflected in the report of losses occurring during August 1981 would have come to the timely attention of Weeks, at least in general outline and trend form. That the report did not issue in final form until September 24, 1981, does not, in my view, over- come the explanation proffered by Weeks in his general- ly credible testimony. Further, I find no basis in the record for rejecting the testimony of Weeks to the effect that the saturation campaign which he initiated on s2 The use of three additional red coats on August 29 and September 3 appears to have been the exception and not the rule, and too isolated to support a finding of a substantial, unprecedented buildup of security per- sonnel, identifiable as such by employees seeking to organize. 401 DECISIONS OF NATIONAL LABOR RELATIONS BOARD August 11 was initially intended to continue for 2 weeks, but was prematurely terminated due to conflicts and di- vergence of viewpoint within supervision. In sum, the record contains sufficient credible evidence to suggest a business justification for the presence of additional secu- rity forces during the initial days of the organizing cam- paign. Moreover, the "additional" red coat presence was insubstantial and marginal, not of the magnitude likely to be inhibiting, and was necessitated, in significant degree, by normal, budgeted staffing needs, affected by turnover considerations. Upon an application of the objective standard against which issues of surveillance must be measured, I conclude and find that the General Counsel failed to sustain this allegation of the complaint by the requisite preponderance of the credible evidence. Moreover, I find nothing in the instruction issued to Larimore by Gieser on August 24, or in the instructions given the security staff by Honore soon after organizing efforts commenced, or in the statements of Novak by Larimore, Rhinehart, and/or Greenwood in the early phases of the organizing effort, constituting surveillance or interference, restraint, or coercion within the meaning of Section 8(a)(1) of the Act. In contradistinction, I find Gieser engaged in unlawful surveillance of the Union and protected activities of em- ployees on August 25 when he stood inside the store and observed employees on their break conversing with Nickelson on the wall near the south entrance to the store. Gieser's conduct in maintaining sustained visual scrutiny of the actions of the employees as they met and conversed with Nicholson over a period of approximate- ly 30 minutes clearly served to have an inhibiting affect on Cano, who had an essentially unbroken line-of-sight view of Geiser who stood inside the store watching and observing. This conduct violated Section 8(a)(l) of the Act. However, I find no violation of the Act resulting from the comments of Larimore to John Schlaff on or about August 25 relating to the purported attention being given Schlaff by management and supervision because of his role in preparing the bulletins being distributed by the Union; and relating also to the stationing of an agent in the Tot Toggery for the asserted purpose of scrutinizing the organizing activities of the employees. Conceding for analytical purposes the validity of the General Counsel's contention that Larimore, in his position as a security agent, possessed agency status, attribution of these state- ments to Respondent is not appropriate in the circum- stances of this case. Initially, no credible evidence of record supports the notion that Respondent had instruct- ed any member of the security staff to undertake surveil- lance of employee organizing activities. Moreover, there is no specific predicate in the record for the finding that Larimore had, in fact, been informed of Schlaff's orga- nizing activities, or that any member of management had discussed, with Larimore, Schlaff's role or involvement in authorizing the union newsletters. Further, there is substantial basis in the record for concluding that Lari- more's reference to alleged surveillance of employees being conducted from the Tot Toggery was a flight of Larimore's imagination colored in significant regard by his own interpretation of rumors of an essentially innocu- ous conversation between Honore and Hartman using a two-way radio. I am unable to conclude that this excur- sion into the area of speculation by a security agent having only nebulous agency connection with Respond- ent may be attributed to Respondent. See Air Express International Corp., 245 NLRB 478, 492 (1979); cf. Stride Rite Corp., 228 NLRB 224, 230 (1977). In a closely related sense, I find no violation of Sec- tion 8(a)(l) of the Act arising from any statements which Honore may have made to Crystal Rinehart concerning the activities of Virginia Hartman, or from any commu- nications over two-way radio from Hartman to Honore, which the record reflects Rinehart may have overheard. The credited testimony of Virginia Hartman and Bonnie Honore, considered in context with Crystal Rinehart's description of the events, accords no basis for concluding that the General Counsel's evidence with respect to this issue preponderates. Nor do I find a violation of Section 8(a)(l) of the Act resulting from Rinehart's decision to spend a break period on the mall near the employee entrance to the store in the company of Nicholson and other employees, as found above. This initiative on the part of Rinehart is not attributable to Honore or any member of Respond- ent's management and supervision, and Respondent may not be held responsible for the fact that Respondent was thus placed in a position of observing employee involve- ment in organizing activities and rendering it possible for her to overhear discussions between employees and Nicholson. Finally, I find no violation of the Act deriving from the remarks of Chevalier to Schlaff to the effect that upper management would always have a "special eye" on the Century City facility. The use of this terminology, as reflected in Schlaff's undisputed and credited testimo- ny, was in conjunction with a frank discussion and dia- logue which, on balance, must be viewed as a mere state- ment on the part of Chevalier that the union organizing campaign had served to heighten the awareness of upper management to several problems affecting employees at the Century City facility. It is in this context that he re- marked that these problems would be given special atten- tion and ongoing interest. I am unable to conclude from the context of the discussion between Chevalier and Schlaff that under an objective test, Chevalier's remarks had an inhibiting effect upon Schlaff's Section 7 rights, or conveyed to him that his organizing activities, or those of his fellow employees, would be subjected to present or future surveillance at the hand of manage- ment. B. The Solicitation Rule In agreement with the General Counsel, I conclude and find that Respondent's rule governing solicitation and distribution, as contained in the employee handbook, and as posted at various locations within the store, is presumptively invalid. This determination is necessitated by the decision of the Board in TR. W. Bearings, 257 NLRB 442, 443 (1981), wherein the Board stated: 402 THE BROADWAY We, however, see no inherent meaningful distinc- tion between the terms "working hours" and "working time" when used in no-solicitation rules. Both terms are, without more, ambiguous, and the risk of such ambiguity must be borne by the pro- mulgator of the rule. Either term is reasonably sus- ceptible of an interpretation by employees that they are prohibited from engaging in protected activity during periods of the workday when they are prop- erly not engaged in performing their work tasks (e.g., meal and break periods). As such, either term tends unlawfully to interfere with and restrict em- ployees in the exercise of their Section 7 organiza- tional rights. Inasmuch as employees may rightfully engage in organizational activities during breaktime and meal- time, rules which restrain, or which, because of their ambiguity, tend to restrain employees from en- gaging in such activity constitute unlawful restric- tions against and interference with the exercise by employees of the self-organizational rights guaran- teed by Section 7 of the Act. As pointed out in the dissenting opinion in Essex International, an employ- er who does not intend that its employees misinter- pret rules against solicitation during "working time" or "working hours" in the unlawfully broad sense described above need only incorporate in the rule itself a clear statement that the restriction on orga- nizational activity contained in the rule does not apply during break periods and mealtimes, or other specified periods during the workday when employ- ees are properly not engaged in performing their work tasks. In view of the foregoing, we hold that rules pro- hibiting employees from engaging in solicitation during "work time" or "working time," without further clarification, are, like rules prohibiting such activity during "working hours," presumptively in- valid. [Footnote citations deleted.] In its decision, the Board specifically overruled Essex International, Inc., 211 NLRB 749 (1974), to the extent that it held that rules prohibiting solicitation or distribu- tion during "work time" or "working time" are presump- tively valid.33 In the case at bar, the record shows that Respondent has undertaken no written revision of the solicitation rule, so as to define the intended scope and limitation of the term "working time," as contained in the two para- graphs comprising the rule. Under T.R. W. it is requisite to find that the presumption of invalidity attaches to both paragraphs of the rule. It is accordingly necessary to reject Respondent's contention that the initial para- graph is outside the scope of the instant inquiry. By ap- plying the prohibition contained in paragraph I of the rules to "anyone" and by extending the prohibition to "working time" of employees, that paragraph is rendered intrinsicly ambiguous within the meaning of TR. W. As the Board stated in TR. W., the risk of ambiguity must be 33 Chairman Fanning and Members Jenkins and Zimmerman partici- pated in the T.R. W decision. Then-Member Fanning and Member Jen- kins had dissented in Essex International. borne by the promulgator of the rule. I conclude that the rule in its entirety is presumptively invalid. The presumption of invalidity of a promulgated and posted rule may be rebutted. Standard Motor Products, 265 NLRB 482 (1982).34 In Standard Motor Products, the Board affirmed the decision of the Administrative Law Judge who concluded that the respondent therein had re- butted the presumption of invalidity of the no-solicitation rule arising by virtue of the reference therein to "work- ing hours" by properly, orally clarifying to employees the extent of application of the rule. The Administrative Law Judge concluded that no violation of the Act arose from the maintenance of the written and promulgated rule, as orally clarified by respondent's oral clarifica- tion.3 5 Standard Motor Products, must be interpreted as authority permitting a respondent charged with maintain- ing a presumptively invalid rule prohibiting solicitation to show that the rule had been sufficiently clarified, either through oral communication, or in such a manner as to convey an intent to permit solicitation during breaktime or other periods when employees are not ac- tively at work. Cf. Intermedics, Inc., 262 NLRB 1407 (1981); Southern Molding, Inc., 255 NLRB 839, 850 (1981); NLRB v. Rich's Precision Foundry, 667 F.2d 613 (7th Cir. 1981). But see Intermedics. Inc., supra, p. 6, (dis- senting opinion, then-Chairman Van de Water and Member Hunter); NLRB v. Rooney's at the Mart., 677 F.2d 44 (9th Cir. 1982). The record in this proceeding es- tablishes that throughout the course of the entire orga- nizing campaign employees were permitted to engage in a wide range of organizing activities in the employee lounge and canteen during their break and lunch periods with full knowledge of Respondent and without interfer- ence. The activities included discussion of the Union, dis- tribution of union literature, and discourse with nonem- ployee union organizers. Union literature was distributed and accepted by and between employees during their breaks and mealtime and no prohibition was interposed. I assume for the purposes of this proceeding that the rule enunciated in T.R. W. is applicable to the distribution of literature, in the circumstances encompassed by the Board's decision in that case. However, in the circum- stances of this case, including the freedom granted em- ployees to engage in organizing efforts in the store during their break and mealtimes, the absence of any evi- dence revealing an attempt on the part of Respondent to improperly limit this freedom, either with respect to oral solicitation or distribution of literature, and in the ab- sence also of any evidence of disparate application of the policy, I find that the presumption of invalidity arising from the application of the TR. W principle to the case at bar has been overcome. Basic to this determination is the finding, which I make, that the uniform practice of s4 The decision was rendered by a three-member panel comprised of Chairman Fanning and Members Jenkins and Zimmerman. 36 The respondent in Standard Motor Products, had promulgated the rule in writing but there had been no enforcement of the rule so as to prohibit employees from soliciting during their breaktime, lunchtime, or other free time during regular "working hours" without permission. Moreover, respondent's representative followed a practice of informing new employees that their "breaks were their own time and they could do what they wanted dunng breaks and lunch periods." 403 DECISIONS OF NATIONAL LABOR RELATIONS BOARD applying the rule governing solicitation and distribution of literature in a manner fully consonant with the con- cept that employees "may rightfully engage in organiza- tional activities during breaktime and mealtimes," as ar- ticulated in TR. W, constitutes a fully efficacious clarifi- cation of the rule, as promulgated and maintained. The objective interpretation accorded the scope and limita- tion of Respondent's rule by employees directly affected by it are more likely to be influenced by empirical expe- rience under the literal application of the rule, than by oral assurances. Cf. Standard Motor Products, Inc.. supra. C. The Union T-Shirt Issue The question remains whether Respondent independ- ently violated Section 8(a)(1) of the Act by prohibiting off-duty employees from remaining in the store in the general presence of employees and customers while wearing union T-shirts. It is Respondent's view that the shirts bearing the language, "Help Make The Broadway Your Way!" in close visual and textual context with the prominent insignia of the Union, and the numerical des- ignation of the local (770), constitutes solicitous material, indistinguishable in relevant, ultimate respects from the same language appearing in the same context on a placard or hand-carried sign. It is Respondent's view, that, under applicable court and Board precedent, solici- tation by off-duty employees in the sales or business areas of the store may properly be made subject to an employer's no-solicitation rule. 36 It is Respondent's contention that the selling floor and customer service areas of its retail establishment consti- tute private property from which nonduty employees may legitimately be excluded, absent a showing of dis- criminatory intent. E.g., Tri-County Medical Center, 222 NLRB 1089 (1976); GTE Lenkurt, 204 NLRB 921 (1973); NLRB v. Babcock & Wilcox Co., 351 U.S. 105 (1956). In Tri-County, the Board concluded that a no- access rule which prohibits solicitation or distribution by off-duty employees is valid if it: (1) limits access solely with respect to the interior of the plant and other work- ing areas; (2) is clearly disseminated to all employees; and (3) applies to off-duty employees seeking access to the plant for any purpose and not just to those employ- ees engaged in union activity. As a corollary, under the rule of Babcock & Wilcox a facially valid no-access rule prohibiting solicitation or distribution by off-duty em- ployees may be lawfully applied to prevent even union solicitation by nonemployees if it is applied in a nondis- criminatory manner, unless the union is able to show that it has no reasonable alternative means of communicating with the employees. Cf. Montgomery Ward & Co., 256 NLRB 800 (1981), enfd. 692 F.2d 1115 (7th Cir. 1982). In basic agreement with Respondent, I find that the initial paragraph of its duly promulgated rule governing solicitation, as applied to off-duty employees, constitutes, a permissible limitation upon rights of off-duty employ- ees to solicit in the sales area of the store in that it at- tempts to strike a reasonable balance between Respond- 36 Respondent contends, and I find, that, to the extent that the initial paragraph of Respondent's rule governing solicitation proscribes solicita- tion by nonemployee organizers in the selling areas of the store, the T.R. W standards are not applicable. ent's right to conduct its customer-dependent retail busi- ness in an orderly fashion, and the right of off-duty em- ployees to enter the store, either as shoppers and custom- ers, or for the limited purpose, integral to the employee relationship, of obtaining paychecks due and owing for services rendered. It becomes unnecessary, in my view, to determine whether the rule complies with the validity test articulated in Tri-County Medical Center, supra. Cf. Continental Bus Systems, 229 NLRB 1262 (1977); Conti- nental Bus Systems, 229 NLRB 1262 (1977); The Manda- rin, 221 NLRB 264 (1975). This is so, because, in agree- ment with the General Counsel, and contrary to the con- tention of Respondent, the T-shirts worn in the store did not constitute solicitous material which, in the circum- stances here present, Respondent could proscribe. A resolution of the instant issue is governed by the principles given explicit adoption in Republic Aviation Corp v. NLRB, 324 U.S. 793 (1945), wherein the U.S. Su- preme Court quoted approvingly from the Board's deci- sion in that case (51 NLRB 1186, 1187-88) that "the right of employees to wear union insignia at work has long been recognized as a reasonable and legitimate form of union activity, and Respondent's curtailment of that right is clearly violative of the Act." Applicable also is De Vilbiss Co., 102 NLRB 1317, 1321-22 (1953). wherein the Board held that an employer may not interpret a no- solicitation policy so as to bar the wearing of union in- signia or T-shirts on company premises. In so concluding the Board adopted the rationale of the Trial Examiner, that: Employees generally have a right under the Act to wear union insignia on company property, and the words, "join" or "vote" or "support" do not de- stroy the essentially protected character of the in- signia and convert such insignia into the kind of so- licitation which is otherwise amenable to proper rules under proper circumstances. Most, if not all, insignia, union or otherwise, have certain propagan- da effects, and the words "vote" or "join" on union insignia during a union campaign convey no addi- tional ideas not implied in a button or T-shirt which contains only the union name. Special circumstances may justify a prohibition against the use of union insignia by employees in working areas, but the mere fact that employees wearing union buttons or union insignia of other types may come in contact with customers has been held not to constitute "special circumstances" sufficient to deprive employees of the rights recognized to exist under the Act, as defined in the Republic Aviation Corp. v. NLRB, supra. E.g., Flori- dan Hotel of Tampa, 137 NLRB 1484 (1962), enfd. as modified 318 F.2d 545 (5th Cir. 1963); Howard Johnson Co., 209 NLRB 1122, 1130-31 (1973); Davison-Paxon Co., 191 NLRB 58 (1971); Virginia Electric & Power Co., 260 NLRB 1196 (1982). A prohibition against the wearing of union insignia may find justification in efficiency and production considerations, or in the need of an employer to maintain the integrity of a dress code or to sustain a rationally important professional image or appearance. E.g., Evergreen Nursing hIome, 198 NLRB 775, 778 404 THE BROADWAY (1972); United Parcel Service, 195 NLRB 441 (1972); Singer Co., 199 NLRB 1195, 1204 (1972). The instant case presents a melding of the hybrid policy considerations attending the permissible limiting of solicitations in the business areas of retail establish- ments, and the not always compatible rights accorded employees to support union objectives through wearing of insignia, including T-shirts. A fair balancing of con- flicting rights lies at the center. It would indulge a fic- tion to proclaim that off-duty employees present in the store for the purpose of obtaining their paychecks, or for the additional purpose of shopping, stand, as it were, pre- cisely in the shoes of on-duty employees, while, simulta- neously, and in all other respects, relegating them to a status precisely equivalent to that of a nonemployee. In my view, the realities of labor relations require a rejec- tion of that fiction. Respondent is correct that, in the main, the decided cases defining the right of employees under Section 7 of the Act to wear union insignia in the business areas of an employer's premises during working hours have involved on-duty employees, and not, as here, employees on store premises on days when they are off-duty and not scheduled to work. However, the rights accorded employees under Section 7 of the Act, and the fundamental economically based interest of the employee in his or her job and employment relationship, appear, for the precise purpose under discussion, to be treated by the Board as ongoing in nature, and broader than the duty-hours concept. Fully applicable here is the observation of the Administrative Law Judge in Harvey's Resort Hotel & Harvey's Inn, 236 NLRB 1670, 1676 (1978): It is well settled that, absent special circum- stances, an employer may not prohibit employees lawful on the premises from soliciting union support during nonwork time or distributing union literature in nonwork areas during nonwork time. This repre- sents a balancing of the statutory rights of employ- ees to self-organization against the employer's inter- est in production, safety, or discipline and, absent a showing that interference with the employees' statu- tory rights is essential, the statutory rights prevail. N.L.R.B. v. Babcock & Wilcox Company, 351 U.S. 105 (1965). This protection extends to activity before and after shifts. East Bay Newspapers, Inc. d/b/a Contra Costa Times, 225 NLRB 1148 (1976); M Res- taurants, Incorporated, d/b/a The Mandarin, 221 NLRB 264 (1975). [Emphasis supplied.] I specifically find that the rights of the employees herein to wear union T-shirts in Respondent's store on their days off is governed by the principle enunciated in Re- public Aviation Corp. v. NLRB, and its progeny, and the balancing of interest considerations fully articulated in those cases is here applicable. In this regard, I find that the record contains no evi- dence of detrimental effect upon the efficiency or profi- ciency of sales or office employees occasioned by the wearing of union T-shirts by the off-duty employees who were admonished by supervision for doing so. Nor is there any evidence that Respondent suffered a diminu- tion of professional esteem or customer acceptance by reason of the T-shirt wearing incidents. Neither conjec- ture nor the postulating of potential for injury substitutes for proof of actual injury. No evidence was adduced of adverse customer reaction to the presence of T-shirt clad individuals in the store. The shirts contained a message for those who paused to read it, but it was not one which disparaged Respondent or tended to interrupt normal store routine or pursuits. No potential for clog- ging of aisles, escalators, or elevators was present, as would clearly have attended the display of hand-carried signs or placards bearing the same message as that con- tained on the shirts. It is of no decisional significance that the shirts had a partial genesis as a fund-raising device. The commercial purposes were not explicit in the slogans and entirely latent. In short, I find that Respond- ent made an insufficient showing of "special circum- stances" justifying the imposition of an oral proscription against the wearing of union T-shirts by employees Alex- ander, Bass, Cano, Remmes, Slaughter, and Villanueva. I therefore conclude that the proscription interposed by Huntsman, Johnson, and Rotman violated Section 8(a)(1) of the Act. Cf. Ford Motor Co., 222 NLRB 855, 857 (1976). D. Additional Unlawful Conduct I. The alleged interrogation Contrary to the General Counsel I find no violation of Section 8(a)(l) of the Act arising from the conversation which transpired on August 24 between Frederickson and his Supervisor Capilupo. I conclude that the conver- sation occurred in circumstances lacking any suggestion of harassment and was merely an element of a wide ranging conversation between friends wherein the em- ployee, Frederickson, freely expresses his views concern- ing management and work related topics and openly manifested his support of the Union. Interrogation of em- ployees about their union or protected or concerted ac- tivities is not a per se violation of the Act and may or may not amount to coercion, depending on the manner in which it is done and the surrounding circumstances. Pepsi-Cola Bottling Co., 211 NLRB 870, 872 (1974); United Fireworks Mfg. Co. v. NLRB, 252 F.2d 428, 430 (6th Cir. 1958); Bourne v. NLRB, 332 F.2d 47 (2d Cir. 1964); NLRB v. Hotel Tropicana, 398 F.2d 430, 434 (9th Cir. 1968). Moreover, the Board precedent establishes that an objective test is applied in determining whether questions posed by supervisors to employees are coer- cive, in violation of Section 8(a)(1) of the Act. See, e.g., Harrison Steel Castings Co., 262 NLRB 450 (1982); PPG Industries, 251 NLRB 1146 (1980); Continental Chemical Co., 232 NLRB 705 (1977); Florida Steel Corp., 244 NLRB 45 (1976). In Florida Steel Corp., supra, the Board held: It has long been recognized that the test of interfer- ence, restraint, and coercion under Section 8(a)(1) of the Act does not turn on a respondent's motive, courtesy, or on whether the coercion succeeded or failed. It also does not turn on whether the supervi- sor and employee involved are on friendly or un- 405 DECISIONS OF NATIONAL LABOR RELATIONS BOARD friendly terms. Rather, the test is whether supervi- sor's conduct reasonably tended to interfere with the free exercise of employee's rights under the Act. Under this test, and applying the constituent elements thereof, I am unable to conclude that, in context of the total conversation here under scrutiny, Capilupo's in- quiry as to how Frederick "felt about the activities" tended to convey to Frederickson his employer's dis- pleasure with Frederickson's union activity or reasonably tended to interfere with the right of Frederickson, or any other employee, to freely exercise his rights under the Act. In my view Harrison Steel Castings Co., supra, and PPG Industries, supra, are distinguishable and not con- trolling here. Cf. Cherokee Culvert Co., 262 NLRB 917 (1982). 2. Rotman's alleged solicitation of grievances On the other hand, I find that Rotman engaged in con- duct in violation of Section 8(a)(1) by soliciting griev- ances from Frederickson in the early phases of the Union's organizing campaign. Respondent contends that the conversation between Frederickson and Rotman wherein Rotman compiled a list of grievances articulated voluntarily by Frederickson was nothing more than a routine interlude in a continu- um of Rotman's own past practice involving Frederick- son and other employees, and of Respondent's open-door policy, as enunciated in its promulgated employee manual, both of which antedated the advent of the Union. Respondent emphasizes also that no promises were made by Rotman, a critical factor, in Respondent's view, rendering the pertinent complaint allegation fatally deficient. The General Counsel convincingly counters that Rotman's appearance of benign impotentness to translate Frederickson's complaint into tangible, benefi- cial change is belied by the initiative taken by Rotman in inviting Frederickson to his office, on the occasion in question, and in the solicitous nature of the meeting wherein Rotman invited discourse and gave vitality to the responses by compiling a handwritten list of com- plaints which he agreed to submit to management. Present here was an implied promise that Frederickson's grievances, which reflected employee concern in matters intimate to the employment relationship, would be con- sidered by management with the viable potential that they would be remedied. Under the objective test appli- cable to Rotman's actions, the manifestations of his overt conduct in meeting, discussing, and painstakingly compil- ing a list of grievances was clearly more likely to impact Frederickson's consciousness than would Rotman's dis- claimer of promised action. These ingredients of initia- tive on the part of Rotman, coupled with the existence of the union organizing campaign which was clearly open and known to all concerned, tended to modify Rot- man's own past practice and the open-door policy which Respondent had pursued, in a manner transferring the initiative of approachment and communication from em- ployees to supervision. Although factual distinctions exist, I thus conclude that this case is controlled by the principles enunciated by the Board in Raley's Inc., 236 NLRB 971, 972 (1978); EMR Photoelectric, 251 NLRB 1597, 1610 (1980); Arrow Molded Plastics, 243 NLRB 1211 (1979). Accordingly, I find that Respondent, through Rotman, solicited employee grievances and im- pliedly promised to rectify them, in a manner which con- veyed the concept that union representation and support was unnecessary in order to achieve improvements in working conditions and terms of employment. 3 7 Cf., e.g., California Pellet Mill Co., 219 NLRB 435 (1975); Tiffin Division of Hayes-Albion Corp., 237 NLRB 20 (1978); Cherokee Culvert Co., 262 NLRB 917 (1982). 3. The low-cost lunch program I find that Respondent did not violate the Act by im- plementing a decision to offer a low-cost lunch program in the employee canteen. The evidence establishes that the program had its conceptual origin in a meeting which transpired prior to the first public manifestations of the Union's organizing effort, and the operative deci- sions with respect to the precise nature of the program and its contemplated effectuation at the earliest practica- ble time, were made before the managerial and supervi- sory participants in the meeting had any knowledge of union activity among the employees. I credit the testimo- ny of Store Manager Nave that at the conclusion of the meeting at which the plan was conceptualized and its precise nature determined, no decisions of substance re- mained to be taken, but only details essential to accom- plish implementation, involving as-soon-as-possible staff resolution remained. While it may be that after the meet- ing at which Nave issued implementing instructions, ap- proval by divisional vice president of food services, Tony Gracyk, stood as a decisional prerequisite to actual implementation. However, it appears fully inferable, from the record as a whole, that his rejection of the deci- sion of Store Manager Nave would have been in the nature of a countermand terminating the entire program. It is evident therefore that this countermand would be retroactive vis-a-vis that operative decision earlier reached by Nave with respect both to the nature and the implementation of the program. It thus can have no bear- ing upon the analytical issue of whether Nave's operative decision to proceed with the low-cost lunch program was "undertaken with the expressed purpose of imping- ing upon [employee] freedom of choice for or against unionization .... " See NLRB v. Exchange Parts Co., 375 U.S. 405, 409 (1964). The state of the record is such as to infer that the decisions reached at the mid-August meeting between Nave, Flint, and Rotman were suffi- ciently firm in all significant respects to render unneces- sary further involvement of Nave, in keeping with Gra- cyk's directive. The permissible inference is that staff work only was sufficient to accomplish the written for- mulation of the program in compliance with decisions earlier reached by Nave and that, contrary to Gracyk's suggestion to Flint, it became unnecessary for Nave to submit a written request that the program be implement- ed. In sum, I conclude and find that the decision to offer and to implement the low-cost lunch program had been 3a In the circumstances of the instant meeting the extent of Rotman's awareness of Frederickson's support of the Union is not relevant 406 THE BROADWAY reached prior to August 24, in a manner and to an extent constituting definitive approval thereof. Cf. Tommy's Spanish Foods, 187 NLRB 235, 236 (1970), enforcement denied in pertinent part 463 F.2d 116 (9th Cir. 1972). Although no formal announcement of the decision was made to the employees prior to the commencement of the organizing campaign, the evidence is convincing that the low-cost lunch was but an element of an ongoing program undertaken by Nave prior to the emergence of the Union, and having as its purpose the improvement of employee facilities. The date and manner of informing employees of the decision to offer the program was timely in relation to its actual implementation. Cf. J. P. Stevens & Co., 247 NLRB 420, 431 (1980); Ed Chandler Ford, 254 NLRB 851, 859-860 (1981); Litton Dental Prod- ucts, 221 NLRB 700 (1975). Moreover, both the timing of the announcement of the lunch plan, and the chronol- ogy of its implementation have been shown to relate solely to legitimate business reasonings, and appear not to have been orchestrated to interfere with the employ- ees' free choice of a bargaining representative. Cf. May Department Stores, 191 NLRB 928 (1971). 1 conclude and find, therefore, that the General Counsel failed to sustain this allegation of the complaint by the preponderance of the credible evidence. E. The Warning Notice to Villanueva I find that Respondent did not violate Section 8(a)(3) and (I) of the Act by issuing a cause warning to Villan- ueva. Rather, I conclude that Respondent acted reason- ably in disciplining an employee for gross insubordina- tion and affrontery to a senior management official. I re- jected the General Counsel's contention that Villanueva's comments were shielded from discipline because they oc- curred in the course of Villanueva's protected concerted activities; or that they were a form of animal exuberancy not sufficiently egregious to deprive him of the protec- tion of the Act. The short answer to the General Counsel's contention is that the decision to discipline Villanueva has nothing to do with his involvement in protected activity, but was predicated solely on his verbal abuse of Chevalier. Vil- lanueva was a known union advocate but his verbal foray occurred after the ballots in the election had been counted, and not in the course of advocating or support- ing legitimate labor relations objectives protected by the Act. This is not a case of verbal abuse transpiring in inti- mate context of organizing activities, preelection cam- paigning, grievance processing, or concerted protest against identified employer practices arguably inimical to employee interests, protected by the Act. E.g., Union Carbide Corp., 171 NLRB 1651 (1968); Coors Container Co., 238 NLRB 1312, 1320 (1978); Houston Shell & Con- crete Co., 193 1123 (1971); Red Top, Inc., 185 NLRB 989 (1970); Boaz Spining Co., 165 NLRB 1019 (1967), en- forcement denied 395 F.2d 512 (5th Cir. 1968); Webster Clothes, 222 NLRB 1262 (1976). Thus, the concept that an employee engaging in concerted activity must be per- mitted some leeway for impulsive behavior does not come into play, nor does the need arise to balance the right of employees to engage in concerted activity against the employer's right to maintain order and re- spect. See, e.g., NLRB v. Thor Power Tool Co., 351 F.2d 584 (7th Cir. 1965); NLRB v. Illinois Tool Works, 153 F.2d 811 (7th Cir. 1946); Socony Mobile Oil Co., 153 NLRB 1244 (1965). The record contains no evidence that in addressing Chevalier, Villanueva identified any specific conduct on the part of Respondent, or Cheva- lier, constituting impermissible preelection conduct, nor is he shown to have articulated any specification of con- duct allegedly constituting unfair labor practices on the part of Respondent of Chevalier. Rather, Villanueva acted alone in verbally assailing Chevalier, not in fur- therance of any identified or identifiable concerted objec- tive or group interest, but solely to satisfy his own pent up hostilities and frustrations. The nexus between Villan- ueva's insulting verbal assault on Chevalier and the po- tential for concerted action is both remote and highly speculative. Not only was Villanueva acting by himself, he was also acting for himself. See NLRB v. C & I Air Conditioning, 486 F.2d 977 (9th Cir. 1973), denying en- forcement of 193 NLRB 911 (1971); Hunt Tool Co., 192 NLRB 145 (1971); Northeastern Dye Works, 203 NLRB 1222 (1973); Continental Mfg. Corp., 155 NLRB 255, 257- 258 (1965). To recapitulate, I find, contrary to the Gen- eral Counsel, that Villanueva was not engaged in pro- tected concerted activity when he addressed Chevalier, and I reject the notion that his remarks must be consid- ered as part of the res gestae of the election process. Cf., Interboro Contractors, 157 NLRB 1295, 1301 (1965); Leece-Neville Co., 159 NLRB 293 (1966), enfd. 396 F.2d 773 (5th Cir. 1968); Red Top, supra. Nor do I find sufficient support in the record for con- cluding that Villanueva's advocacy of the union cause was the consideration which tipped the scale and moti- vated the issuance of the warning to Villanueva. Villan- ueva's identity as a union advocate is well established in the record, but his remarks to Chevalier were confronta- tional and insulting, and grossly so, and they were ren- dered while Villanueva was on duty, on the clock, as it were, albeit, during his breaktime. The evidence adduced by Respondent showing application of good cause, busi- ness-related judgment in deciding to discipline Villan- ueva, substantially outweighs the evidence tending to infer the presence of an antiunion motive in the decision to warn Villanueva. Applicable here is the observation of the court in NLRB v. Ace Comb Co., 342 F.2d 841, 847 (8th Cir. 1965): It must be remembered that it is not the purpose of the Act to give the Board any control whatsoever over an employer's policies, including his policies concerning tenure of employment, and that an em- ployer may hire and fire at will for any reason whatsoever, or for no reason, so long as the motiva- tion is not violative of the Act. The disciplinary action which Respondent took to re- dress the invective visit on Chevalier by Villanueva was clearly within its authority and not so excessive as to infer the presence of unlawful motivation of the Act. See NLRB v. Prescott Industrial Products Co., 500 F.2d 6 (8th Cir. 1974), enfg. 205 NLRB 51 (1973). The response of management to Villanueva's complaint concerning treat- 407 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ment accorded him by Sharlene Pearson, a trainee, for a minor supervisory position is so readily distinguishable generically as to form no basis for finding disparate treat- ment. I find no basis for concluding that Villanueva was disciplined because of the exercise of his Section 7 rights. See Host Service, 263 NLRB 672 (1982). Upon the foregoing findings of fact, and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Respondent, The Broadway, a Division of Carter Hawley Hale Stores, Inc., is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. United Food and Commercial Workers Union, Local 770, chartered by United Food & Commercial Workers International Union, AFL-CIO-CLC, is a labor organization within the meaning of Section 2(5) of the Act. 3. By observing employees as they met and conversed with union organizers in the public area of the mall lo- cated proximate to the south entrance of the Century City facility in a manner conveying to employees that their union or other protected concerted activities were being subjected to surveillance by management, Re- spondent, through Richard Gieser, interfered with, re- strained, and coerced employees in the exercise of rights guaranteed by Section 7 of the Act, and did thereby vio- late Section 8(a)(1) of the Act. 4. By ordering employees in the store during their day off to leave the store or remove T-shirts which they were wearing and which contained the slogan "Make The Broadway Your Way! in context with a printed logo and numerical designation identifying the Union, to leave the store premises, while permitting other employees who were in the store on their day off and who were not wearing T-shirts of the type described to remain in the store, Respondent interfered with, restrained, and co- erced employees in the exercise of rights guaranteed them by Section 7 of the Act, and did violate Section 8(a)(l) of the Act. 5. By soliciting employee grievances and impliedly promising to redress those grievances, Respondent, through Craig Rotman, engaged in conduct in violation of Section 8(a)(1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 7. Respondent did not in any other manner engage in conduct in violation of the Act. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that the solicitation rule, as maintained and promulgated in writing, is presumptively invalid under the decision of the Board in T.R. W. Bearings, 257 NLRB 442 (1981), but having further found that Re- spondent rebutted the presumption of invalidity of the rule as it pertained to solicitation and distribution of liter- ature on store premises, by employees during break peri- ods and mealtimes, by properly and efficaciously clarify- ing for employees the extent of application of the rule, I conclude no remedial order with respect to the rule is necessary. See Standard Motor Products, supra. Upon the foregoing findings of fact, conclusions of law, and upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recom- mended: ORDER 3 8 The Respondent, The Broadway, a Division of Carter Hawley Hale Stores, Inc., Los Angeles, California, its of- ficers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interfering with, restraining, or coercing employees in their rights to engage in union or other protected con- certed activity by engaging in unlawful surveillance of employees; prohibiting employees in the store on their day off from wearing union T-shirts, while permitting other employees in the store on their day off who were not wearing union T-shirts to remain in the store; and/or soliciting employee grievances and impliedly promising to redress those grievances. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Post at its Century City, California, retail establish- ment and place of business copies of the attached notice marked "Appendix."3 9 Copies of said notice on forms provided by the Regional Director for Region 31, after being duly signed by Respondent's authorized represent- ative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecu- tive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respond- ent to ensure that said notices are not altered, defaced, or covered by any other material. IT IS ALSO RECOMMENDED that the complaint be dis- missed insofar as it alleges violations of the Act not spe- cifically found. a3 In the event no exceptions are filed as provided in 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. 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. "' In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 408