Harry M. Stevens Services, Inc.

276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Harry M. Stevens, Inc, a/k/a Harry M. Stevens Services, Inc. and Local Union No. 251, Hotel Employees and Restaurant Employees Interna- tional Union, AFL-CIO-CLC. Cases 23-CA- 9029 and 23-CA-9038 8 November 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS DENNIS AND JOHANSEN On 17 June 1983 Administrative Law Judge Wil- liam N. Cates issued the attached decision. The Re- spondent filed exceptions and a supporting brief. The Charging Party filed a memorandum in oppo- sition to the Respondent's exceptions. The General Counsel filed a brief in support of the administra- tive law judge's decision. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,' and conclusions as modified herein, but not to adopt the recommended Order. The judge found that the Respondent violated Section 8(a)(1) by denying an employee, on her re- quest, the presence and assistance of a coworker at an interview which the employee reasonably be- lieved might result in discipline, citing the Board's decision in Materials Research Corp., 262 NLRB 1010 (1982), and its interpretation of NLRB v. J.. Weingarten, 420 U.S. 251 (1975). Subsequent to the issuance of the judge's decision, the holding in Ma- terials Research was reversed. In Sears, Roebuck & Co., 274 NLRB 230 (1985), the Board held that the extension of the Supreme Court's decision in Wein- garten to unrepresented employees was erroneous. The Board concluded that the right to representa- tion at Weingarten-type interviews applies only to unionized employees. Here, there was no certified or recognized bargaining representative. Therefore, the Respondent had no obligation to agree to the employee's request that a coworker attend the in- vestigatory interview. Accordingly, we shall dis- miss this allegation of the complaint. After the judge issued his decision in this case, the Board issued Our Way, Inc., 268 NLRB 394 (1983), wherein the Board overruled the holding of ' The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F.2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings T.R. W. Bearings, 257 NLRB 442 (1981), that rules prohibiting employees from soliciting during "working time" as well as rules prohibiting solicit- ing during "working hours," are presumptively in- valid. In Our Way, the Board returned to Essex International, 211 NLRB 749 (1974), holding that rules using "working hours" are presumptively in- valid because the term connotes periods that in- clude the employees' own time. In contrast, rules using "working time" are presumptively valid be- cause that term connotes only periods when the employee is performing actual job duties. Accord- ingly, we disagree with the judge's finding, made in reliance on T.R. W., with regard to the Respond- ent's 25 August 1982 no-solicitation/no-distribution rule. However, an otherwise valid rule violates the Act when it is promulgated to interfere with the employee right to self-organization rather than to maintain production and discipline. Olympia Plastics Corp., 266 NLRB 519, 531 (1983); Montgomery Ward & Co., 227 NLRB 1170 (1977). Here, the complaint alleged that the Respondent unlawfully promulgated the 25 August rule, an allegation that the judge did not directly address. The rule was promulgated during the Union's organizational campaign. Further, as the judge found, prior to the promulgation of the 25 August rule, the Respond- ent did not have a valid no-solicitation rule in effect and about 22 August 1982 the Respondent discharged employee Fitzsimmons for soliciting on behalf of the Union. Finally, we find that the Re- spondent failed to rebut the General Counsel's prima facie case and to establish that its no- solicitation/no-distribution rule was promulgated to maintain production and discipline. Accordingly, based on all the facts herein, we conclude that the Respondent promulgated its 25 August no- solicitation/no-distribution rule for discriminatory reasons and thereby violated Section 8(a)(1) of the Act. The judge found that employee Fitzsimmons openly distributed a union authorization card to a fellow employee vendor in a public area of the As- trodome; that after handing the vendor the card, Fitzsimmons moved away; that he then glanced over his shoulder towards the vendor and noticed an individual with a walkie-talkie approach the vendor and take the card from his hand; that indi- vidual then approached Fitzsimmons and "stuffed" the union card in his face and asked if Fitzsimmons had given it to the other vendor. The judge found, based on the credited testimony, that by this con- duct the Respondent had engaged in surveillance of its employees' union activities. The judge further found that the Respondent's employees work throughout the premises at the Astrodome and thus 277 NLRB No. 31 HARRY M. STEVENS SERVICES the Respondent's supervisors also moved through- out the facility during the course of their employ- ment in overseeing Respondent's employees. The Respondent's supervisors keep in contact with one another and upper management by walkie-talkie. This is the Respondent's standard manner of super- vising its employees. It was not instituted with the advent of the Union's organizational campaign. Based on the totality of the circumstances, we do not find that this conduct constituted impermissible surveillance. Rather, the alleged surveillance of Fitzsimmons resulted from his open distribution of literature in the Respondent 's sales area. As set forth in Chemtronics, Inc., 236 NLRB 178 (1978), quoting from Milco, Inc., 159 NLRB 812, 814 (1966), with respect to conduct in "full public view," "[U]nion representatives and employees who choose to engage in their union activities at the employer's premises should have no cause to complain that management observes them." As this is the case here, we shall dismiss this allegation. ORDER The National Labor Relations Board orders that the Respondent, Harry M. Stevens, Inc., a/k/a Harry M . Stevens Services, Inc., Houston, Texas, its officers, agents, successors , and assigns, shall 1. Cease and desist from (a) Requesting its employees to engage in sur- veillance of their fellow employees' union activi- ties. (b) Promulgating a no-solicitation/no-distribution rule for the purpose of discouraging union activi- ties. (c) Discouraging union activity or membership in the Union, or any other labor organization, by discharging employees or otherwise discriminating against them in any manner with respect to their tenure of employment or any term or condition of their employment. (d) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. 'Take the following affirmative action designed to effectuate the purposes of the Act. (a) Offer Orell Fitzsimmons and Irene Allen im- mediate and full reinstatement to their former jobs or, if those jobs no longer exist , to substantially equivalent positions, without prejudice to their se- niority or any other rights or privileges previously enjoyed, and make them whole for any loss of earnings and other benefits suffered as a result of the discrimination against them, in the manner set forth in the remedy section of the decision. 277 (b) Expunge from its files any reference to the August 1982 discharges of employees Orell Fitz- simmons and Irene Allen, and notify both of them in writing that this has been done and that evi- dence of their unlawful discharges will not be used as a basis for future personnel actions against them. (c) Rescind and abrogate its discriminatorily pro- mulgated rule prohibiting unauthorized soliciting on company premises during active working time and unauthorized distribution of literature of any description in working areas. (d) Preserve and, on request, make available to the Board or its agents for examination and copy- ing, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (e) Post at its Houston, Texas facility copies of the attached notice marked "Appendix."2 Copies of the notice, on forms provided by the Regional Director for Region 23, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon re- ceipt and maintained for 60 consecutive days in conspicuous places including all places where no- tices to employees are customarily posted. Reason- able steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. 2 If 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 Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice 278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. WE WILL NOT request that our employees engage in surveillance of their fellow employees' union activities. WE WILL NOT promulgate a no-solicitation/no- distribution rule in order to discourage our employ- ees from union activities. WE WILL NOT discourage membership in Local Union No. 251, Hotel Employees and Restaurant Employees International Union, AFL-CIO-CLC, or any other labor organization, by discharging any of our employees, or in any manner discriminating against them in regard to their tenure of employ- ment or any term or condition of employment. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Sec- tion 7 of the Act. WE WILL offfer Orell Fitzsimmons and Irene Allen immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to sub- stantially equivalent positions, without prejudice to their seniority or any other rights or privileges pre- viously enjoyed and WE WILL make them whole for any loss of earnings and other benefits resulting from their discharge, less any net interim earnings, plus interest. WE WILL expunge from our files any reference to the August 1982 discharge of employees Orell Fitzsimmons and Irene Allen, and WE WILL notify them that this has been done and that evidence of this unlawful conduct will not be used as the basis for future personnel actions against them. WE WILL rescind and abrogate our rule prohibit- ing unauthorized soliciting on company premises during active working time and unauthorized distri- bution of literature of any description in working areas. HARRY M. STEVENS, INC. A/K/A HARRY M. STEVENS SERVICES, INC. Michael Maslanka, Esq., for the General Counsel. Douglas P. Catalano, Esq., and Ralph C. Dawson, Esq. (Reavis and McGrath), of New York, New York, for the Respondent. James Robinson, Esq. (Kircher and Phalen), of Cincinnati, Ohio, for the Charging Party. DECISION STATEMENT OF THE CASE WILLIAM N. CATES, Administrative Law Judge. This matter was tried before me on March 8 and 9, 1983, at Houston, Texas. The hearing was held pursuant to an order consolidating cases, consolidated complaint, and notice of hearing issued by the Regional Director for Region 23 of the National Labor Relations Board (the Board), on October 21, 1982,1 and is based on charges filed by Local Union No. 251, Hotel Employees and Restaurant Employees International Union, AFL-CIO- CLC (the Union). The charge in Case 23-CA-9029 was filed on August 24, and the charge in Case 23-CA-9038 was filed on September 2. The consolidated complaint in substance alleged that Harry M. Stevens, Inc., a/k/a Harry M. Stevens Services, Inc. (Respondent) engaged in surveillance of the union activities of its employees and requested its employees to engage in surveillance of other employees' union activities. It was also alleged that Respondent denied its employee Irene Allen the assist- ance of a fellow worker at an interview which she had reasonable cause to believe would result in disciplinary action against her and that Respondent, in September 1982, promulgated a no-solicitation/no-distribution rule for its employees in order to discourage its employees from joining, supporting, and/or assisting the Union. Each of the above allegations was alleged to have violat- ed Section 8(a)(1) of the National Labor Relations Act (the Act). The consolidated complaint further alleged that about August 22 Respondent discharged its employ- ee Orell Fitzsimmons, and about August 25 discharged its employee Irene Allen in violation of Section 8(a)(3) and (1) of the Act. The issues herein were joined by Re- spondent's original answer of October 28, wherein it re- sponded to certain allegations of the complaint and denied the commission of the alleged unfair labor prac- tices. On the entire record made in this proceeding, includ- ing my observation of each witness who testified herein, and after due consideration of briefs filed by counsel for the General Counsel, for Respondent, and for the Charg- ing Party, I make the following FINDINGS OF FACT 1. JURISDICTION Paragraph 2 of the order consolidating cases, consoli- dated complaint, and notice of hearing alleges that at all times material, Respondent, a New York corporation, maintained an office and place of business in Houston, Texas, where it engages in the business of concessions management. 2 Paragraph 3 of the complaint alleges that at all times material herein Respondent purchased and re- ceived at its Houston, Texas facility goods and materials valued in excess of $50,000 directly from points located I All dates herein are 1982 unless otherwise indicated. 2 Respondent by its amended answer dated November 2 states that Re- spondent is a Texas corporation Whether Respondent is a New York or Texas corporation is of no moment to a finding that it is an employer within the meaning of the Act. HARRY M. STEVENS SERVICES outside the State of Texas. ;Paragraph 4 of the complaint alleges that Respondent was, and is, an employer en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. In its answer, as amended, Respondent responded only to paragraphs 5, 7, 9-12, and 15-18, of the complaint.3 Respondent did not respond to paragraphs 1-4, 6, 8, 13- 14 of the complaint. Section 102.20 of the Board's Rules and Regulations provides as follows: The respondent shall, within 10 days from the serv- ice of the complaint, file an answer thereto. The re- spondent shall specifically admit, deny, or explain each of the facts alleged in the complaint, unless the respondent is without knowledge, in which case the respondent shall so state, such statement operating as a denial. All allegations in the complaint, if no answer is filed, or any allegation in the complaint not specifically denied or explained in an answer filed, unless the respondent shall state in the answer that he is without knowledge, shall be deemed to be admitted to be true and shall be so found by the ]Board, unless good cause to the contrary is shown. Inasmuch as Respondent failed to specifically admit, deny, or explain the facts contained in paragraphs 1-4, 6, 8, and 13-14 of the complaint, and further because Re- spondent did not state that it was without knowledge with respect to those same paragraphs and no good cause being shown with respect to its failure to respond to those paragraphs of the complaint, I shall therefore deem them to be admitted, and I so find that they are admitted. See World's Best Janitorial Services, 255 NLRB 582 ('1981), and World's Best Janitorial Services, 263 NLRB No. 65 (1982) (not reported in Board volumes).4 I find that Respondent is, and has been at all times ma- terial herein, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. LABOR ORGANIZATION The complaint alleges, but Respondent denies, that the Union is a labor organization within the meaning of Sec- tion 2(5) of the Act. The undisputed evidence in this case shows that the purpose of the Union is to represent em- ployees in matters concerning working conditions, hours of employment, rates of pay, negotiating collective-bar- gaining agreements, and processing grievances. The evi- dence also demonstrates that employee members of the Union participate in union meetings including voting on collective-bargaining agreements and to elect union offi- cers. I conclude, and find, that the Union is a labor orga- a As noted at fn 2 herein, Respondent responded to par 2 of the com- plaint only to indicate it was a Texas corporation as opposed to a New York corporation 4 It is noted that par 6 of the complaint alleges that Concessions Man- ager Ron Butt, Concessions Supervisor Ron Kramer, and Stand Supervi- sor Gertrude Orphry are supervisors and agents of Respondent acting on its behalf within the meaning of Sec. 2(11) and (13) of the Act Inasmuch as Respondent made no response to these allegations, I deem them to be admitted, and I find that Butt, Kramer, and Orphry, at all times material herein, were supervisors and agents of Respondent within the meaning of Sec 2(11) and (13) of the Act 279 nization within the meaning of the Act. See Datagraphic, Inc., 259 NLRB 1285 (1982); Foremost Foods Distributing, 258 NLRB 1198, 1200 (1981); and Litton Business Sys- tems, 199 NLRB 354 (1972). III. THE ALLEGED UNFAIR LABOR PRACTICES A. Brief Background Respondent is a concessionaire with operations located at various entertainment, sports, and recreational facili- ties throughout the United States. At all times since March 1981, Respondent has operated the concessions at the Astrodome in Houston, Texas. Respondent's oper- ation at the Astrodome is the only one involved in this proceeding. The Union commenced an organizational campaign at Respondent's Astrodome operations in the summer of 1982, and as will be discussed infra, the Union advised Respondent in writing of its organizational cam- paign. B. The Issues This case presents a number of questions which were thoroughly litigated. The issues are generally summa- rized for purposes of discussion as follows: 1. Whether about August 22 Respondent engaged in surveillance of the union activities of its employ- ee Orell Fitzsimmons in violation of Section 8(a)(1) of the Act. 2. Whether Respondent about August 22 dis- charged Orell Fitzsimmons in an effort to discour- age membership in a labor organization in violation of Section 8(a)(3) and (1) of the Act. 3. Whether about September Respondent in vio- lation of Section 8(a)(1) of the Act promulgated an invalid no-solicitation/no-distribution rule in order to discourage its employees from joining, support- ing, or assisting the Union. 4. Whether Respondent about August 25 required its employee Irene Allen to be present for, and submit to, an interview which she had reasonable cause to believe might result in disciplinary action, while denying her the assistance of another employ- ee. 5. Whether Respondent about August 25, acting through Concessions Manager Ron Butt, requested employee Irene Allen to engage in surveillance of her fellow employees' union activities in violation of Section 8(a)(1) of the Act. 6. Whether Respondent about August 25 dis- charged Irene Allen, because she joined, supported, or assisted the Union and in an effort to discourage membership in a labor organization in violation of Section 8(a)(3) and (1) of the Act. C. The Discharge of Orell Fitzsimmons Orell Fitzsimmons started work for Respondent in June as a beer vendor . On Sunday, August 22, the day Fitzsimmons was terminated, he reported to the Astro- dome for work at 10 a.m. Fitzsimmons went first to his check-in station where he obtained a food ticket for a 280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD free lunch, and he also obtained his tabulation sheet at that time. His tabulation sheet was a ticket on which a running account of the number of trays of beer he sold during the day was kept.5 Fitzsimmons stated beer ven- dors wore an employee badge, a price of beer badge, and a badge that indicated beer could not be sold to anyone under the age of 19. Fitzsimmons could not recall if he had his beer badge on at the time of his discharge; how- ever, he did recall that no one on that date told him to get a beer badge. Fitzsimmons testified that before a vendor could sell beer, he was supposed to sign in, obtain a uniform, get a product badge, and obtain a tabu- lation sheet. Fitzsimmons asserted beer could only be sold after noon on Sunday in the State of Texas. On August 22, the Houston Oilers had a football game that started at 11:30 a.m., and the Houston Astros had a baseball game that started later that same evening. Fitz- simmons stated that after he finished his free lunch, which was still prior to noon, that he, along with ap- proximately 12 other vendors, went to the concourse area and stood along and up against a wall where they watched the cheerleaders and the pregame warmups. While watching the pregame activities, Fitzsimmons stated he observed that one of the vendors in the group had not signed a union card. Fitzsimmons asked the vendor if he would like to sign a card.6 Fitzsimmons talked with his fellow vendor for approximately 1 minute. Customers were present in the area at the time; however, the vendors had not commenced to sell beer because it was still before noon. Fitzsimmons stated that after he gave a union card to his fellow vendor, he went back across the area and stood beside yet another vendor where they watched the start of the football game. Fitzsimmons testified he glanced back across at the vendor he had just given a card to and observed that a man with a walkie-talkie wearing a coat and tie came up to the vendor and tore the union card out of his hand. Fitzsimmons stated the individual then came to him and "stuffed it [the union card]" in his face and asked him if he had given it to the other vendor. The individual then asked Fitzsimmons to come with him, that he had someone who wanted to talk to him in the personnel office. Fitzsimmons told the indi- vidual he would rather talk where they were. At that point in time, a second individual showed up and was wearing a Respondent's T-shirt. Fitzsimmons testified the first individual used his radio to get someone else to come to where they were. A third person appeared who had a walkie-talkie radio and also at that point another person came to where they were. Fitzsimmons testified that he later learned the additional individual was Con- cessions Manager Butt. Butt asked Fitzsimmons if he would come right then with him to the personnel office. Fitzsimmons told Butt he would rather talk to him 5 The total number of trays sold times $2.50 equaled the compensation received for selling the beer. 6 Fitzsimmons asserted he gave out 26 signature cards The greater portion of which had been passed out on the Friday before he was termi- nated on a Sunday Fitzsimmons stated that the first time the Union let them have cards to obtain signatures on was the Friday before he was terminated on Sunday. Fitzsimmons stated the Union started its campaign in the summer of 1982 probably in either June or July where they were, if it was okay. Fitzsimmons testified that since he did not know at that time who Butt was, he asked him who he was and why they could not talk where they were. Butt told Fitzsimmons, "I am your boss, you are fired," Fitzsimmons asked Butt why and was told something like "you refused to come with me." Fitzsimmons testified he never refused to go with Butt but rather merely asked why they could not talk where they were. Fitzsimmons testified that by this time five men with radios were standing around him so he decided to go with them. Fitzsimmons along with the other five went to the laundry room where he turned in his uniform. Fitzsimmons continued to ask the group who they were, and Butt then asked him if he had read the sign. Fitzsim- mons asked what sign. Butt told him "the no solicitation sign." Fitzsimmons responded that he had not. As the group moved along, they all stopped at a place where Butt pointed to a sign that said "no solicitation," and Butt asked Fitzsimmons to read the sign. Fitzsimmons stated he read the sign and told Butt it was against state and Federal laws, that the sign was wrong, and that he had a right to do what he was doing.7 Fitzsimmons stated the group then escorted him to the back door and he left the premises.8 Fitzsimmons testified he observed fellow vendor Ronald Dennis handing out union cards at the Astro- dome prior to a Houston Astros baseball game on August 20. Fitzsimmons testified Butt approached Dennis and told him, "If we catch you handing out cards again we are going to fire you." Fitzsimmons testified this took place prior to Dennis vending beer and prior to the start of the game.9 Fitzsimmons stated, as far as he knew, Dennis was never fired. Dennis, a 2-year employee of Respondent, testified about his conversation with Butt that took place on August 20. Dennis stated he and Fitzsimmons were talk- ing to employees about the Union and getting some of them to sign cards for the Union at the time of the con- versation. Dennis stated that some of the individuals who worked for Butt came to him and asked him what he had in his hand. Dennis told them it was none of their business. The individuals then grabbed for the materials that Dennis had in his hand. Dennis threw the materials into a dumpster and told the individuals if they wanted the materials, they could get them out of the dumpster. The individuals then took Dennis to Butt's office. In route to the office, Dennis inquired if he was fired and 7 Signs posted about the Astrodome read as follows NO SOLICITATION All Forms of Vending, Solicitations & Distribution of Literature or Other Material For Any Type of Organization Are Prohibited With- out Astrodome Management Approval [R. Exh 211 Fitzsimmons stated no one from management had ever pointed out to him the solicitation signs or explained to him employees' rights with re- spect to solicitation. Butt testified the signs applied to outside organiza- tions only 8 All of the events described by Fitzsimmons took place, according to him, prior to noon on August 22 9 Fitzsimmons testified that on days other than Sunday beer could not be sold prior to the National Anthem being played. HARRY M. STEVENS SERVICES was just told to come to the office. Dennis testified that once in the office, Butt told him, "You shouldn't be so- liciting . . . . It is against the law to solicit . . . . You shouldn't solicit . . . . He said . . . if I was caught again I would definitely be fired." Butt then told Dennis to go back to work. Dennis stated that at the time he was taken to the office, the vendors had not started to sell beer because it could not be sold prior to the National Ana hem being played. Dennis testified he was with Fitzsimmons at the Astro- dome prior to noon on August 22. Dennis stated that about 11:30 a.m. he saw Fitzsimmons give a union card to a fellow vendor.10 Dennis stated he next observed a woman call on her radio and then a group of four or five individuals i r came and got Fitzsimmons. Dennis testified he told Fitzsimmons at the time that the woman was calling in on him. Dennis testified Fitzsimmons came to him and told him that Fitzsimmons had been fired. Dennis also testified he came to where Fitzsimmons was talking to his fellow vendors about the Union. Dennis stated Fitzsimmons was not "screaming and yelling .. . jumping up and down . . . or . . . waving." i z The Union introduced in evidence an interoffice memorandum of Respondent dated September 12 (C.P. Exh. 2). The correspondence addressed to Concessions Manager Butt was signed by K. J. Lombard. The corre- spondence which concerned Fitzsimmons' discharge stated he had been questioned by Floor Supervisor Mark Watson for giving out literature to four other vendors while in uniform during working hours. The correspond- ence also stated in part: Mr. Fitzsimmons was requested to stop passing out literature while in uniform and delaying other em- ployees from their normal duties. He refused both Mr. Watson's and Mr. Butt's requests and stated he would continue to distribute literature. Mr. Fitzsimmons was suspended for the above in- fractions to our rules and regulations by Mr. Butt, Concessions Manager. Butt, in identifying the interoffice correspondence, testi- fied it was incorrect in certain respects. Butt stated the date of the suspension reflected on the correspondence- August 20-was incorrect inasmuch as Fitzsimmons was actually not suspended until August 22. Butt also testified that the correspondence Was "improper" in that it re- flected Fitzsimmons had been suspended for giving out literature. Butt stated the reason given by Lombard in the interoffice correspondence was simply wrong. r a Concesions Manager Butt testified he had been em- ployed for the past 28 years by Respondent at various of its locations. Butt's areas of responsibility were person- nel, purchasing, payroll, inventory controls, payroll per- 10 Dennis stated this was prior to their being able to sell beer inasmuch as beer could not be sold prior to noon on Sunday 11 Dennis described the individuals as "some of the employees of Ran [Butt I some of the supervisors and stuff" 12 Dennis described Fitzsimmons as a "quiet type person." 13 Butt testified that as far as he knew Watson had never questioned Fitzsimmons about the incident even though the interoffice correspond- ence prepared by Lombard reflected that he had 281 centages, shortages, and stock. Butt testified he had never met Fitzsimmons prior to August 22, and he did not know if Fitzsimmons was for or against the Union. Butt testified he had not watched, and he did not know of any one acting on behalf of Respondent that had watched, the activities of Fitzsimmons. Butt testified that each of his supervisors carried walkie-talkie radios. Butt testified he received a call on August 22 at approximately 11-30 a.m. from Floor Super- visor Ed Burkhalter who told him there was a commo- tion involving a group of vendors on the second level near concession stand 407. Butt told Burkhalter he would be right down. Butt testified that the first thing he saw when he arrived in the area was a group of vendors gathered around, and he saw one vendor in the middle "yelling, screaming, waving his hands up and down, talk- ing to one of [his] supervisors." Butt later learned the vendor in question was Fitzsimmons. According to Butt, the supervisor Fitzsimmons was "yelling" at was Mark Watson. Butt stated Watson was present when he got there, however, Burkhalter was not because he only called him to tell him of the commotion. Butt testified Watson was not present when he spoke with Fitzsim- mons. Butt asserted Fitzsimmons said something at the time like "I have got a right to do it or, I will do it." Butt testified he walked over to Fitzsimmons and told him to go to the vending station, sign in, and get his badges.14 Butt testified a vendor had to report to the commissary twice-once to get his badges and once to obtain his product. Butt testified that when he told Fitz- simmons to go to his vending station, Fitzsimmons told him no. Butt then asked Fitzsimmons to go to his office with him. Fitzsimmons again said no and stated, "I am passing out union cards; you got no right to-you people have no right to stop me." Butt testified he told Fitzsim- mons, "I don't care about your union cards; I told you to go back to the vending station." As the other vendors watched, Fitzsimmons again told Butt he would not go with him. Butt stated he then told Fitzsimmons he was fired. Butt testified, "I fired him because he was inter- rupting the operation of the vending station and under- mining discipline." Butt stated he did not fire Fitzsim- mons because he was soliciting cards. Butt testified Fitz- simmons should not have been vending beer at the time because it was prior to noon, however, he should have already been signed in. Butt stated that most of the ven- dors around Fitzsimmons did not have on their product badges. Butt testified he was the only one in the area at the time with a walkie-talkie radio. Butt testified that Di- rector of Employee Relations Luongo came into the conversation immediately after he had fired Fitzsimmons, Butt testified that he and Luongo escorted Fitzsimmons out of the building. Butt stated he did not speak to any of the other vendors. Butt stated Fitzsimmons was on worktime because if he had not sold enough beer to have made minimum wage, he would have been paid for 4 hours of work at minimum wage. 14 Butt testified Respondent had product badges that a vendor was re- quired to wear that reflected the price of the product being sold by the vendor. Butt said Fitzsimmons did not have on such a badge at the time he approached him 282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Butt testified that prior to August 25, Respondent did not have a written no-solicitation rule for its operation at the Astrodome. Respondent through its counsel admitted that the rule articulated in the complaint was set forth in writing after Fitzsimmons was discharged.15 Butt testified that prior to August 25 Respondent had adopted the no-solicitation rule of their landlord, the Houston Sports Association. Butt acknowledged that the employees of Respondent had never at any time been given a copy of the Houston Sports Association rule. Butt testified, "It was common knowledge that people knew that they could do what they wanted on their lunch hour and their breaks. People could sell candy on their breaks . . . . They would sell tickets or coupons. They were never stopped from doing that. Everybody knew that." D. Credibility Resolutions Surrounding Fitzsimmons' Discharge After observing Fitzsimmons testify, I credit his testi- mony with respect to the events that took place on August 22. There are a number of factors that, in my opinion, substantiate his testimony. For example, employ- ee Dennis testified Fitzsimmons was a quiet type of person not given to yelling, screaming, and waving his arms as attributed to him by Butt. 16 I do not believe Butt's testimony that Fitzsimmons was in a screaming, yelling argument with Supervisor Watson, and yet when Butt showed up, Watson just simply left the area and became unavailable to hear what was said or to assist Butt. It is also suspicious to me that Luongo would arrive on the scene precisely after Butt had suspended Fitzsimmons. Rather, I find Fitzsimmons truthfully stated a group of four to five supervisors with walkie-talkie radios were present when he was suspended. Butt ac- knowledged that his supervisors all carried walkie-talkie radios. Another factor that persuades me that Watson was present and that Fitzsimmons was fired for soliciting cards for the Union is the fact that the interoffice corre- spondence of Respondent indicates that Watson was present and questioned Fitzsimmons, and that Fitzsim- mons was discharged for giving out literature to four other vendors during working hours and while in uni- form. I simply find unbelievable Butt's explanation that the interoffice correspondence was incorrect with re- spect to the reason for the discharge of Fitzsimmons. Based on the record testimony as a whole, I am persuad- ed that Butt discharged Fitzsimmons because he was so- liciting cards for the Union and not for the asserted rea- sons stated by Butt that it was because of Fitzsimmons' dereliction of duty, insubordination, and his actions in undermining employee discipline. I am fully persuaded 15 The rule alleged in the complaint is as follows. Commission of any of the following acts may be considered just cause for remedial action, which could range from oral to written reprimand , to suspension from work without pay , to dismissal (7) Unauthorized soliciting on company premises during active working time Unauthorized distribution of literature of any description in working areas is 1 am convinced that Dennis told the truth in this respect notwith- standing the fact that Dennis was not an articulate witness , nor was he always responsive to questions and at times he answered far more than was elicited of him by the questions placed before him that Fitzsimmons did not refuse to go with Butt on re- quest, to Butt's office but rather only inquired as to why they could not talk where they were. The testimony of Dennis, which I credit, clearly demonstrates that Butt did not wish employees to solicit for the Union and had made quite clear what action he would take if solicita- tion for the Union continued. Butt did not deny the con- versations attributed to him by Dennis. As was acknowledged by Respondent, it had no writ- ten no-solicitation/no-distribution rule prior to Fitzsim- mons' discharge on August 22. Respondent's contention that prior to that time it had adopted the no- solicitation/no-distribution rule of its landlord, the Hous- ton Sports Association, is unpersuasive. Concessions Manager Butt's testified that Respondent adopted the Houston Sports Association's no-solicitation/no-distribu- tion policy in March 1981 was an afterthought on Butt's part, in my opinion. Butt acknowledged that Respondent had not reduced the Houston Sports Association rule to writing nor had it given the rule to its employees at any time prior to Fitzsimmons' discharge. Butt's testimony that Respondent's no-solicitation/no- distribution rule, which he contended was in effect prior to August 25, was common knowledge among the em- ployees is not supported by the record herein. It is quite clear that Respondent had no rule that the employees had knowledge of prior to August 25. The only rule that was posted about the Astrodome was one that Butt testified did not apply to employees of Re- spondent, but rather applied to outside persons coming to the Astrodome. A reading of that notice tends to sup- port Butt's testimony that it did not apply to Respond- ent's employees. I am, therefore, persuaded that at the time of Fitzsimmons' discharge, Respondent did not have a valid no-solicitation rule in effect which was known to the employees. I am persuaded in agreement with the General Coun- sel that Fitzsimmons was discharged for soliciting for the Union at a time prior to the start of his work, and as such, the General Counsel established a prima facie vio- lation of the Act in that Fitzsimmons was discharged for soliciting for the Union at a time when he had not com- menced his assigned work, and he was discharged in the absence of a valid no-solicitation/no-distribution rule. In the absence of a formal no-solicitation rule, an employer has the right to discipline an employee for engaging in union activity only if the employee's conduct interfered with production on the occasion in question. See Midwest Stock Exchange, 244 NLRB 1108 (1979), and Pilgrim Life Insurance Co., 249 NLRB 1228, 1243 (1980). Respondent failed to meet its burden of demonstrating that Fitzsim- mons' conduct in anyway interfered with production. The vendors had not commenced to sell beer at the time he was disciplined because they could not sell beer prior to noon. The evidence indicates it would have taken the employees in question 2 to 3 minutes to have been fully ready to sell beer for Respondent. As such, there simply is no showing on this record that by Fitzsimmons pre- senting a card to a fellow vendor prior to the time they commenced to sell beer interfered with Respondent's production. Considering all the circumstances, I find that HARRY M STEVENS SERVICES Respondent discharged Fitzsimmons in reprisal for his union activity and not in the interest of maintaining pro- duction and/or discipline. Respondent failed to meet its burden of demonstrating that Fitzsimmons' discharge -would have taken place in the absence of his protected conduct. Accordingly, I find that Respondent violated Section 8(a)(3) and (1) of the Act when, on August 22, it discharged Fitzsimmons. Paragraph 7 of the complaint alleges that on August 22 Respondent, by individuals unknown to the General Counsel, and by its Concessions Manager Butt, engaged in surveillance of the union activities of its employee Orell Fitzsimmons at its facility at the Astrodome in Houston, Texas. Such conduct, according to the General Counsel, violated Section 8(a)(1) of the Act. The General Counsel contends that if an employee can reasonably believe that his union activities have been placed under surveillance, that such conduct on the part of a respondent violates Section 8(a)(1) of the Act. The General Counsel, in essence, contends that the circum- stances surrounding Fitzsimmons ' discharge clearly gave him and others the impression that his soliciting had-been under surveillance by Respondent, otherwise, Respond- ent would not have known that he was soliciting for the Union. Respondent contends there is not one scintilla of evidence in this record to support such a claim that un- known security personnel and/or Butt engaged in sur- veillance of Fitzsimmons' activities. Respondent points to the testimony of Fitzsimmons that he did not know Butt until the day of his discharge, and to Butt's testimony that he did not know Fitzsimmons prior to that day. Re- spondent contends that since the General Counsel of- fered nothing more than the bare contention that some agent of Respondent must have seen employees handing out cards, that a prima facie showing of surveillance was not established by the General Counsel. Respondent fur- ther contends that since the conduct took place on Re- spondent's premises at the Astrodome, that it cannot constitute surveillance where an employee does soliciting on Respondent's premises in the open. I am persuaded that the General Counsel established that Respondent engaged in surveillance of the union ac- tivity of its employee Fitzsimmons inasmuch as the evi- dence indicated that as soon as Fitzsimmons gave his fellow vendor a union card, action was taken by person- nel of Respondent to immediately bring that fact to man- agement's attention, and management acted thereon. The fact that Respondent had the activities of its employees with respect to the Union under surveillance is further buttressed by the fact that only days earlier when em- ployee Dennis solicited fellow employees to support the Union, he, too, was immediately confronted by manage- ment personnel of Respondent, and told he would be dis- charged if he continued soliciting. The overall record testimony, in my opinion, supports the complaint allega- tion, and I so find that Respondent engaged in surveil- lance of the union activities of its employees in violation of Section 8(a)(1) of the Act. 283 E. The No-Solicitation/No-Distribution Rule Promulgated by Respondent on August 25 It is without question that Respondent on August 25 promulgated the no-solicitation/no-distribution rule as set forth at footnote 15 of this decision. The General Counsel contends the rule violates Sec- tion 8(a)(1) of the Act in various respects. The General Counsel contends that any rule prohibiting solicitation and distribution on "worktime" is presumptively invalid unless the prohibition expressly excludes break periods, mealtimes, or other specified periods during the workday when employees are not engaged in performing their work tasks. The General Counsel contends that adding the word "active" to worktime in the present case fails to comport with Board requirements to make the rule valid. The General Counsel contends that the phrase "company premises" could well cause an employee to believe that solicitation during his breaktime was prohib- ited in nonwork areas, such as restrooms, parking lots, and other nonworking locations. Thus, the General Counsel contends the phrase "company premises" is overly broad and violative of the Act. The General Counsel contends the fact that an employee must obtain authorization from Respondent prior to engaging in dis- tribution of literature makes the rule invalid . The Gener- al Counsel urges the rule is invalid and in violation of Section 8(a)(1) of the Act. The Charging Party, likewise, contends that the rule is patently unlawful. Respondent states the rule expressly refers to "active" working time, thus making clear that the rule does not apply to all hours spent on the premises. Respondent contends that the word "active" served as a modifier for the words working time and clearly demonstrated that the rule was not intended to prohibit solicitation during all working hours. Respondent further contends there was no testimony in the record to show that the rule was understood or interpreted to apply to employees' meal- times or breaktimes . Respondent argues that a no-solici- tation policy which is understood by employees not to apply to mealtimes, breaktimes, or before or after work is lawful. Respondent also contends that the General Counsel failed to present any proof that Respondent's no-solicitation rule was ever enforced in an unlawful manner. I am persuaded that Respondent 's rulle as set forth at footnote 15 herein is invalid and in violation of Section 8(a)(1) of the Act for a number of reasons. ;First, the word "unauthorized" with respect to soliciting on com- pany premises during active working time is not a com- plete bar to solicitation, but rather a bar only to that so- licitation which Respondent might find offensive such as union solicitation. Second, the phrase "company prem- ises" might well be interpreted by employees to mean that solicitation during any breaktime was prohibited even in nonwork areas such as breakrooms and rest- rooms. Third, the Board in T.R. W Bearings, 257 NLRB 442 (1981), held that any rule which prohibited solicita- tion during "working time" was presumptively invalid. I am persuaded that by adding the word "active" to the words "work time" in the instant rule Respondent failed to so modify worktime as to make it clear to employees 284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD they could engage in lawful solicitation during breaktime or other periods when they were not actually working. The rule, at best, is ambiguous and as the Board has pointed out in T.R. W., the risk of ambiguity must be borne by the promulgator of the rule. The rule as pres- ently drafted by Respondent restrains, or by its ambigui- ty tends to restrain, employees from engaging in lawful solicitation and, as such, it constitutes an unlawful re- straint against and interference with the exercise by the employees of rights guaranteed them by Section 7 of the Act. I, therefore, conclude and find that the rule promul- gated by Respondent on August 25, and placed into effect on August 26, is invalid and in violation of Section 8(a)(1) of the Act. Respondent's contention that there has been no showing that the rule has been enforced in an unlawful manner and, as such, cannot be the basis for finding an unfair labor practice is without merit because employees who might adhere to the invalid rule would never reach the point where enforcement of it by Re- spondent would be necessary; yet, at the same time the rule would place invalid and unlawful restrictions on the employees in the exercise of their Section 7 rights. See Robertshaw Controls Co., 263 NLRB 958, 960 (1982). F. The Discharge of Irene Allen Irene Allen commenced work for Respondent in August 1981. On August 11, she attended a meeting of the Union and signed a letter indicating she was on the Union's in-plant organizing committee.17 Allen reported to work at the Astrodome at 10 a.m. on August 25. After clocking in, Allen picked up the inventory books for the pizza stand she was assigned to and proceeded to her as- signed stand. At that stand, she, along with the other em- ployees assigned to that particular stand, I s began to pre- pare pizzas to be sold during the sporting event sched- uled at the Astrodome that day. The stand opened on that day at 1 p.m. At approximately noon, when the other employees had finished setting up the stand, they went on break. Allen told fellow employee Tillis that her leg was hurting, and she sat on a crate of carry out pizza boxes to rest her leg. While resting her leg, Allen no- ticed Concessions Manager Ron Kramer and Stand Su- pervisor Gertrude Orphry talking to each other at a dis- tance of about 50 feet from the stand. I" Approximately 10 minutes later, Kramer came into the back of the stand where Allen was and told her that Orphry wanted to see her by the timeclock. Allen testified she and Kramer went to the timeclock but Orphry was not there, so they 17 The letter that Allen, among others, signed was mailed to Respond- ent on August 13 (G C Exh 4), and it was received by Respondent on August 16 (G.C Exh. 5) The letter stated This is to inform you that we, the undersigned employees, are on the Organizing Committee for the Hotel Employees and Restaurant Em- ployees International Union, Local 251, AFL-CIO, and we are enti- tled to certain privileges and benefits under the National Labor Rela- tions Act We should not be discriminated against, intimidated, co- erced, or denied any of our rights under the law Irene Allen was the first of a number of employees to sign the letter 18 According to Allen's testimony, it would appear that the other as- signed employees were Clarence Draydon, Audrey Tillis, and Millie Phil- lips 19 Allen testified that her immediate supervisor was Elite Cleveland Cleveland reported to Orphry, Orphry reported to Kramer; and Kramer reported to Concessions Manager Ron Butt. proceeded to Consessions Manager Butt's office. Orphry was in Butt's office when she and Kramer entered, how- ever, Orphry and Kramer left the office after Orphry asked Butt if he wanted her to stay. Butt told Allen he had some complaints about her. Allen stated she asked Butt if she could have a coworker present with her, and Butt told her no that it would not be necessary because the conversation was going to be a friendly one between the two of them. Butt then asked Allen if she would like a better job. Allen testified she thought about it, and asked Butt what she would have to do to get a better job. Butt told Allen all she would have to do would be to go to the meetings and keep him abreast of what was going on. Allen testified she became suspicious because the only meetings she had been at- tending were union meetings. Allen told Butt "hell no" that she was not going to "rat" on her coworkers. Allen testified that it was at this point that Butt told her she was suspended. Allen asked why, and Butt told her because she had been sleeping on the job. Butt told Allen two supervisors had seen her asleep. Allen told that Krammer and Orphry were too far away when they saw her to tell whether she was asleep or not, and she was not asleep.20 Butt then showed Allen a piece of paper and asked her if that was her signature on the paper. Allen told Butt it was. Allen asserted it looked like the paper she had signed for the Union; however, the top and bottom of the paper was covered by other papers, so that only her signature was visible. Butt again told Allen she was suspended. Allen asked if she was suspended or fired, and Butt told her "You are suspend- ed indefinitely or until you come around to our way of thinking." Allen stated she did not ask Butt what he meant by "our way of thinking." Allen then left Butt's office, and as she did, she saw Kramer who asked her for her badge and employee button. Allen had to go to pizza stand 405 to get them. Kramer then escorted her to an exit door, and she left the Astrodome. Stand Supervisor Orphry testified she had been in charge of seeing that certain stands were properly staffed and operated at the Astrodome for the past 2 years, and that she was responsible for pizza stand 405. Orphry stated she was Allen's supervisor on August 25. Orphry testified that a counter employee, Patrick Turner, came to her on August 25 and told her that Allen was in the back of the pizza stand asleep. Orphry asserts she went to pizza stand 405 and found Allen in the back asleep. Orphry stated Allen was the stand manager, and it was her responsibility to see that the counter employees pre- pared the food stuffs to be sold that day.21 Orphry testi- fied she did not disturb Allen, but rather went to Con- cessions Supervisor Kramer and told him to go to pizza stand 405 and have a look around. Kramer went to the stand, and according to Orphry, he came back out and said he did not see anything. Orphry sent Kramer back 20 Allen acknowledged on cross-examination that she had taken medi- cation the night before, but stated the medication did not make her sleepy Allen stated she was resting her leg, not her eyes 21 Orphry stated that others who worked pizza stand 405 that day were Audrey Tillis, Millie Phillips, and Clarence Draydon HARRY M. STEVENS SERVICES into the stand again, and this time, he found Allen asleep and awakened her. Kramer did not remember going into the stand more than once when he awakened Allen; however, he stated it was possible he could have gone back and spoken with Orphry after first seeing Allen asleep., but he did not remember that happening. Kramer asserts he said nothing to Allen when he awakened her. Orphry testified she left pizza stand 405 after Kramer had awakened Allen. Orphry stated Kramer went down- stairs at that point. Kramer testified he went downstairs and spoke with Concessions Manager Butt and then came back, got Allen, and took her to Butt's office. Con- cessions Manager Butt testified he told Kramer to go and bring Allen to his office. Others present in Butt's office besides Allen were Orphry, Kramer, Butt, and Director of Employee Rela- tions Dominic Luongo. Kramer testified Allen told Butt she had taken some medication and was resting her eyes. Orphry testified Allen denied she had been asleep. Ac- cording to Kramer, Butt asked Allen if she was in fact asleep, and Allen told him she was only resting her eyes. According to Orphry, Butt told Allen she was not paid to sleep on the job. Butt testified he asked Allen why she had been sleeping, and she told him she was on medica- tion. Butt testified he made a comment to her about why she would come to work while taking medication. Butt testified Allen did not show him any medication. Kramer testified Butt then told Allen she was suspended for sleeping in the stand. Kramer testified that his immediate supervisor was Bill Mayer. Kramer could not recall if Mayer was present on August 25; however, he acknowledged that he did not seek out Mayer, but rather went to Mayer's superior, who was Butt, to inform him of Allen's sleeping in the stand. Kramer and Orphry both stated nothing was said about surveillance on Allen's part, nor was she asked to spy on the Union for Respondent. Kramer testified he was aware of the Union's organizational campaign at the time. Butt testified he never asked Allen to conduct sur- veillance on any other employee, nor did he offer her a better job if she would do any such thing. Kramer and Orphry both stated that Allen never at anytime asked to be represented by anyone at the meeting. Kramer also stated that Allen was never alone with Butt. Kramer could not explain what Luongo was doing in Houston that day inasmuch as Luongo's office was in New York. Butt testified he alone made the decision to terminate Allen, and he had made his decision before Allen was brought to his office on August 25. Butt acknowledged he talked to Luongo about the discharge before he dis- charged Allen, but he alone made the decision to termi- nate her. Butt stated Allen was fired for dereliction of duty-failure to perform her duties as a stand manager. Butt asserted if Allen had not been asleep, she would have been performing her duties which were to see that the personnel were present at the stand, that the stand was clean, that pizzas were prepared, that everything was functioning, that the personnel had on their hats and badges, and that the cashiers rang up the proper sales. Butt testified that Respondent had over the years ter- minated numerous employees for not performing their 285 jobs, or for violating company requirements.22 Butt, however, acknowledged on cross-examination that he did not inquire of Kramer if he had encountered any pre- vious problems in supervising Allen. Butt also stated he only talked to Orphry about Allen after he had fired her. Butt acknowledged he did not know if pizza stand 405, Allen's assigned stand, had been properly set up on the day in question or not. Butt also stated he did not review Allen's personnel file before he fired her. G. Credibility Resolutions Surrounding Allen's Discharge Certain matters are not in dispute with respect to the events of August 25 as they relate to Allen. It is undis- puted that Respondent knew of Allen's being on the Union's in-plant organizing committee, and that she was the first employee to sign the in-plant organizing com- mittee list It is, likewise, undisputed that Allen was called to Butt's office and subsequently discharged. There is, however, conflict in the testimony as to wheth- er Allen met with Butt alone and what was said by whom at the meeting. I carefully and closely observed the witnesses as they testified, and Allen instilled confi- dence and projected an outward manner that compelled the conclusion that her testimony was worthy of belief. All of Respondent's witnesses in this aspect of the case were less than convincing in their testimony. Although Respondent presented two witnesses who stated they ob- served Allen asleep, I am nonetheless persuaded she was not, and they, in fact, did not observe her asleep. Con- trary to the urgings of the General Counsel, I do not view this as an appropriate situation for drawing an ad- verse inference against Respondent based on its failure to call Patrick Turner to support Orphry's and Kramer's testimony that Allen was asleep. I am persuaded that in failing to call Patrick Turner, Respondent did nothing more than run the risk that the witnesses it did present in support of its position might fail to be convincing in their total testimony. Also, Respondent's contention was not that it fired Allen because Turner observed her asleep, but rather, Respondent contends it terminated Allen be- cause Orphry and Kramer found her asleep. Inasmuch as I have believed the testimony of Allen based on her su- perior demeanor, I am persuaded that further witnesses presented by Respondent would not have altered the result herein. In summary, Allen did not impress me as a person who had contrived the comments she attributed to Butt. I am persuaded, and find, that Butt stated in sub- stance and effect the remarks attributed to him by Allen at their August 25 meeting. I am, likewise, persuaded that Allen and Butt met alone, and that Allen requested a coworker to be present with her after Butt told her that he had some complaints about her. It is very logical 22 Respondent presented various examples of employees that had been discharged for such offenses as not ringing up sales , being late for assign- ments, selling beer to minors, not performing work assignments , appear- ing to be intoxicated, drinking while on duty, leaving an assigned duty station, stand shortages, customer complaints, walking off the job, incom- petence on the job, trespassing in restricted areas, playing on the ball field, refilling used beer cups, overcharging customers, and for other specified reasons (R Exhs 3-20) 286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and probable that Allen did, in fact, so ask, and I reject Respondent's contention that Allen did not know to ask for a representative in her meeting with Butt inasmuch as Union Representative Lucio testified without contradic- tion that he had explained Section 7 rights to the em- ployees when he spoke with them prior to the time when Allen met with Butt on August 25. I found totally un- convincing Orphry's testimony that when she observed Allen asleep, she did nothing to her, nor even attempted to awaken her. I, likewise, found unbelievable Kramer's testimony that he simply awakened Allen but said noth- ing to her. From the credited facts as outlined above, I find that the General Counsel established a clear and strong prima facie case that Respondent violated Section 8(a)(3) and (1) of the Act when, on August 25, it discharged its em- ployee Irene Allen. The facts as established indicate that Allen was not, in fact, asleep, nor is there any evidence in this record that she was derelict in performing her duties. It is clear from the evidence that Respondent knew of Allen's union sympathies in that she was the first individual to sign the in-plant organizing committee letter, and Respondent had received the letter only days before Allen was discharged. The timing of the dis- charge is probative of the motive for the discharge. Re- spondent asked Allen, through Concessions Manager Butt, to go to union meetings and to keep him abreast of what was happening at the meetings. I am convinced Butt was referring to union meetings inasmuch as that was the only type of meetings that Allen had been at- tending. I am also persuaded that Butt had the in-plant organizing letter which Allen had signed present at the interview on August 25. The evidence is also quite clear that immediately upon Allen's refusing to "rat" on her fellow employees, she was suspended, which suspension was later converted to a discharge. To request an em- ployee to engage in surveillance of the employee's fellow employees' union activities and report back to manage- ment constitutes a violation of Section 8(a)(1) of the Act. See Maywood, Inc., 251 NLRB 979, 982-983 (1980). I conclude, and find, that Respondent violated Section 8(a)(1) of the Act on August 25, by soliciting employee Allen to observe and report back to Respondent on the union activities of other of Respondent's employees. It is, likewise, unlawful for a respondent to suspend or dis- charge an employee because they will not engage in sur- veillance of their fellow employees' union activities and report such activities to supervision. See Proctor-Silex Corp., 159 NLRB 598 at 602-603 (1966). I, therefore, conclude and find that Respondent violated Section 8(a)(3) and (1) of the Act when it discharged Allen on August 25 because she would not spy on the union ac- tivities of her fellow employees and report the findings of her surveillance to Respondent. Respondent's asserted reasons for discharging her were pretextuous and did not, in fact, exist. I find it unnecessary to discuss in detail the guidelines set forth in Wright Line, 251 NLRB 1083 (1980), inasmuch as I have concluded that the reasons advanced by Respondent for the discharge of Allen did not exist. Therefore, Respondent could not have demon- strated that it would have discharged Allen without regard to her protected activities. See Limestone Apparel Corp., 255 NLRB 722 (1981). See also Brookfield Dairy, 266 NLRB 698 (1983). The final issues remaining with respect to Allen are: whether she requested a coworker to be present with her during the interview that took place on August 25; whether she had reasonable cause to believe that disci- pline might result from the interview; and, whether the principles in Weingarten (NLRB v. Weingarten, 420 U.S. 251 (1974)) apply in the instant case. Based on the cred- ited facts as outlined above, I find that Allen did, in fact, ask for a fellow coworker to represent her at the meet- ing. The evidence is quite clear that Allen had reason to believe that discipline might result from the meeting inas- much as Butt told her just prior to her asking for a fellow coworker that he had some complaints about her. I am, therefore, persuaded in agreement with the Gener- al Counsel that Respondent violated Section 8(a)(1) of the Act by refusing Allen's request that a coworker be present with her during her interview with Butt. The Board held in Materials Research Corp., 262, NLRB 1010 (1982), that the rationale enunciated in Weingarten com- pelled the conclusion that unrepresented employees were entitled to the presence of a coworker at an investigatory interview if it is demonstrated that the employee reason- ably believed that discipline might result from the inter- view and the failure to allow a coworker to be present would constitute a violation of Section 8(a)(1) of the Act. I reject Respondent's argument that the Board's ap- plication of the Weingarten rule to nonunion employees was erroneous as a matter of law. I, likewise, reject Respondent's contention that even if the Weingarten rule applied, Concessions Manager Butt had already determined to discipline Allen before the meeting took place and, as such, to conduct a meeting without a coworker present did not violate the Act. Re- spondent relies on Baton Rouge Water Works Co., 246 NLRB 995 (1979), where the Board held the Weingarten rule was not applicable to meetings called to inform an employee of a disciplinary decision already made. Even assuming arguendo that Respondent's version of the facts were credited, which facts I do not credit, Concessions Manager Butt, by his own testimony, went beyond merely informing the employee of his previously made disciplinary decision and delved into the circumstance surrounding the alleged misconduct. Butt, based on his own testimony, asked Allen why she was sleeping in the back room, thus, Respondent was seeking justification for its conduct and, in effect, sought further facts to sup- port its actions against Allen. Thus, Respondent's con- duct, even if Butt's testimony had been credited, re- moved this meeting from the narrow holding of Baton Rouge Water Works Co., supra, and accordingly, a right to the presence of a coworker to assist Allen attached. Cf. Gulf States Mfg., 261 NLRB 852 (1982). Allen's testi- mony, which I credit, clearly demonstrates that Butt conducted an investigatory type interview. CONCLUSIONS OF LAW 1. Harry M. Stevens, Inc., a/k/a Harry M. Stevens Services, Inc. is an employer engaged in commerce HARRY M. STEVENS SERVICES within the meaning of Section 2(2), (6), and (7) of the Act. 2. Local Union No. 251, Hotel Employees and Restau- rant Employees International Union, AFL-CIO-CLC is a labor organization within the meaning of Section 2(5) of the Act. 3. By engaging in the following conduct, Respondent committed unfair labor practices in violation of Section 8(a)(1) of the Act: (a) Engaging in surveillance of its employees' union activities. (b) Requesting employees to engage in surveillance of their fellow employees' union activities. (c) Denying its employee Irene Allen's request for the presence and assistance of a coworker at an interview which she reasonably believed would result in discipli- nary action. (d) By promulgating and maintaining its no- solicitation/no-distribution rule which prohibited unau- thorized soliciting on company premises during active working time and unauthorized distribution of literature of any description in working areas. 4. By discharging its employees Orell Fitzsimmons on August 22 and Irene Allen on August 25 in order to dis- courage union activity and union membership, Respond- ent violated Section 8(a)(3) and (1) of the Act. 5. The unfair labor practices set forth above are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY 287 Having found that Respondent has engaged in certain unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act, I shall recommend that it cease and desist therefrom and take certain affirmative action to effectuate the policies of the Act. In addition to the usual cease-and-desist order and notice posting, my recommended Order will require Re- spondent to offer Orell Fitzsimmons and Irene Allen un- conditional reinstatement to their former jobs, or to sub- stantially equivalent positions if their former jobs no longer exist, and to make them whole for all wages lost as a result of their unlawful discharge. Said backpay and interest thereon is to be computed in the manner pro- scribed in F W. Woolworth Co., 90 NLRB 289 (1950), and Florida Steel Corp., 231 NLRB 651 (1977). See gen- erally Isis Plumbing Co., 138 NLRB 716 (1962). Further, it is recommended that Respondent expunge from its files any reference to its discharge of the above-named em- ployees and notify both of them in writing that this has been done and that evidence of their unlawful discharge will not be used as a basis for future personnel actions against them. See Sterling Sugars, 261 NLRB 472 (1982). I also recommend that Respondent be ordered to with- draw and abolish its invalid no-solicitation/no-distribu- tion rule and notify its employees that it has taken such action. [Recommended Order omitted from publication.]