Brunswick Food And Drug

BRUNSWICK FOOD & DRUG 663 The Kroger Co., d/b/a Brunswick Food and Drug and United Food and Commercial Workers Union, Local No. 1063, chartered by the Inter- national Food and Commercial Workers Inter- national Union, AFL-CIO, CLC. Cases 10- CA-20082, 10-CA-20100, 10-CA-20416, and 10-CA-20537 30 June 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND STEPHENS On 29 November 1985 Administrative Law Judge Philip P. McLeod issued the attached deci- sion. The General Counsel and the Charging Party filed exceptions and supporting briefs, and the Re- spondent filed an answering brief. 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 only to the extent consistent with this Decision and Order, and to adopt the recommend- ed Order as modified. The judge found that the Respondent did not violate Section 8(a)(3) and (1) of the Act by sus- pending and then discharging Bonnie Manning be- cause of her conduct on 11 October 1984. 1 Both the General Counsel and the Charging Party except to this finding. 2 We find merit in their ex- ceptions and, for the reasons set forth below, we reverse the judge and fmd that the Respondent vio- lated Section 8(a)(3) and (1) by disciplining Man- ning because of the 11 October incident. Toward the end of 1983 and throughout the spring and summer of 1984, the Union conducted an organizing campaign among the Respondent's work force. On 21 September an election was con- ducted, and the Union received a majority of the valid votes cast. On 11 October representatives from the Union visited the Respondent's deli res- taurant for the first time since the election. The representatives purchased food and sat down to eat with employees who were on a break, as they had frequently done during the weeks preceding the Board-conducted election. Bonnie Manning was one of the employees present. The Union's repre- sentatives were asked to leave the store by the Re- dates refer to 1984 unless otherwise indicated. The Charging Party additionally excepts to the Judge's failure to order one of the Respondent's spokesmen to read the Board's Order to the employees. We find no merit in this exception. The Charging Party fails to show any reason why posting the Board's notice would be an m- adequate remedy for the Respondent's unfair labor practices. spondent's comanager; however, they refused to do so. The Respondent's comanager then contacted the police and had the Union's representatives evicted from the store. The judge found that the Respondent's conduct violated Section 8(a)(1) of the Act.3 While the union representatives were being evicted by the police, Bonnie Manning stated in the presence of deli restaurant customers that she would "like to apologize for the ignorance of man- agement." According to the credited testimony of the Respondent's witnesses, Manning "jumped up from her seat," "paced around," and made the statement to customers on her own initiative in a very excited manner. The General Counsel and the Charging Party except to the judge's crediting of the Respondent's witnesses rather than Manning, who testified that, in response to a customer's in- quiry, she stated in a normal tone of voice, "Sir, I apologize for management, but as an employee there is nothing I could [sic] do." We adopt the judge's credibility resolutions. 4 We do not, howev- er, agree with his conclusions that (1) the Respond- ent's unlawful conduct in having the Union's repre- sentatives removed by the police was "directed" only at those individuals and not at Manning and the other employees who had been meeting with the representatives or (2) Manning's spontaneous protest of this unlawful conduct was "so excessive and extreme that it lost any protected nature it might otherwise have." Rather, we find that the protest was provoked by the Respondent's own misconduct. In concluding, contrary to the judge, that the discharge of Manning violated Section 8(a)(3) and (1) of the Act, we start from the premise that em- ployees have a right to meet with their collective- bargaining representative on their own time. 3 That right is protected against interference under Sec- tion 8(a)(1) of the Act; and, pursuant to Section 8(a)(3), employers may not discriminate against em- ployees for seeking to exercise that right or protest its curtailment. 'The Respondent has not excepted to this or any other violation find- ing made by the judge. 4 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 Well 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. 5 As explained below, the conversations involved here were quiet and nondisruptive. Since they comported with the normal use of the area in which they were conducted, it is immaterial that they took place on the Respondent's property. See Hughes Properties v. NLRB, 758 F.2d 1320, 1323 (9th Cir 1985), and cases there cited. In any event, as previously noted, the Respondent has not excepted to the finding that it violated the Act when it had the Union's representatives removed by the police. 284 NLRB No. 78 664 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Here, some of the off-duty employees had been exercising their rights, following the Union's victo- ry, to meet with union representatives in the public dining area, just as they had done prior to the elec- tion. The record shows that the conversations were as routine and nonobtrusive as they had been before the election, yet the Respondent chose to disrupt them by summoning the police to eject the union representatives. This provocative and unlaw- ful action could reasonably be expected to create a sense of indignation, as well as to prompt a verbal reaction, by a directly affected employee such as Manning, who even before the election had been an ardent and open union supporter. To assert, as our dissenting colleague does, that the eviction of the union representatives was di- rected at them only, and not the employees they were meeting with, is to ignore the fact that em- ployees have the right to meet with their union representatives and that the eviction of the union representatives, which broke up such a meeting, necessarily amounted to interference with that right. As the rights guaranteed by the Act are rights which are given to employees, not union representatives, it is difficult to say, as our col- league does, that interference with those rights is not conduct directed at employees but rather con- duct directed only at union representatives. Admit- tedly, the union representatives were the only per- sons physically evicted from the Respondent's premises, but it would be anomalous to conclude that the Respondent's conduct was directed at only the union representatives. Clearly, the eviction of the union representatives, in addition to its immedi- ate interference with employee rights, also sent a message to the employees that the Respondent was going to continue to fight the Union even though the Union had recently been elected as the employ- ees' collective-bargaining representative. To be sure, as the judge noted, otherwise pro- tected employee conduct may be so extreme as to lose the protection of the Act; and in such a case discharge or discipline by the employer for that conduct is lawful. But even when an employer has not itself acted unlawfully before the discharge or discipline in question, we balance an employee's protected right—for example a right to discuss a contract grievance—against the employer's "right to maintain order and respect" and also to "permit some leeway for impulsive behavior." NLRB v. Thor Power Tool Co., 351 F.2d 584, 587 (7th Cir. 1965). Accord: Crown Central Petroleum Corp. v. NLRB, 430 F.2d 724, 730 (5th Cir. 1970). When the impulsive behavior is induced by the employ- er's unlawful infringement of employee rights, we also compare the seriousness of the employer's un- lawful conduct with the extent of the employee's reaction. 6 As we stated in Louisiana Council 17, AFSCME, 250 NLRB 880, 886 (1980): [A]n employer cannot provoke an employee to the point where [the employee] commits . . . an indiscretion . . . and then rely on this to terminate the employment. [W]here . . . the employer's wrongful provocation is serious and compelling, we will permit the employee a certain amount of leeway in response. As the court stated in [NLRB v.] M B Headware Co., [349 F.2d 170, 174 (4th Cir. 1965)]: "The more extreme an employer's wrongful provo- cation the greater would be the employee's sense of indignation and the more likely its ex- cessive expression." The judge sought to apply that standard here, but we cannot agree that in view of the totality of circumstances he was correct in concluding that Manning's comment—a direct response to the union representatives' getting the boot—was unpro- tected. The judge's suggestion that her protest was unprotected because it was communicated to cus- tomers and continued for more than a moment ig- nores the factual context. The deli restaurant was a small area in which patrons were using some of the approximately 12 tables and booths. Consequently, even before Manning's comment, the patrons' at- tention could not help but be drawn to the con- frontation either as it began when the Respondent unlawfully provoked it or as it culminated with the arrival of police, summoned there by the Respond- ent. Under such circumstances, it was not unrea- sonable for Manning to direct her excited com- ments to the customers, who had witnessed the in- 6 Two of the cases on which our dissenting colleague relies, Blue Jeans Corp., 170 NLRB 1425 (1968), and NLRB a. M B Headware Go, 349 F.2d 170 (4th Cir. 1965), involved situations in which an employee was provoked by his or her own discharge or layoff and then responded to that provocation with disruptive, insubordinate, or threatening conduct. Consequently, the Board in those cases had to determine whether the em- ployee's postchscharge conduct precluded the employee from being rein- stated by Board Order The Board, however, has not found discharge to be the only type of employer provocation which would warrant an al- lowance of some leeway for impulsive behavior. In Thor Power, supra, grievance committeeman Tinsley, was discharged for allegedly referring to the company superintendent as a "horse's ass" after the superintendent, during the course of a grievance meeting, loudly objected, using an ob- scene epithet, to Tinsley's participation in the grievance procedure The Board found that the discharge violated Sec. 8(a)(3) of the Act, and the court, m affirming the Board, concluded that Tinsley's impulsive behav- ior in the context of that grievance meeting could not be said to have exceeded the bounds of protected activity Id. at 587. Our dissenting col- league has identified no principled basis for concluding that only m the case of unlawful discharges may we assess the allegedly excessive or in- subordinate character of an employee's conduct in the light of the em- ployer's conduct that provoked it Just as the court in Thor Power de- clined to eiamine employee Tinsley's conduct "in a vacuum" (id. at 586), so we assess Manning's conduct in the light of the Respondent's unlawful conduct that provoked It BRUNSWICK FOOD , & DRUG 665 cident. 7 Her comments were, in a sense, an effort to defend the lawfulness of the activity for which the union representatives were being removed—to suggest that it was the remover, rather than those removed, who was in the wrong. In any event, the Respondent selected the setting for this confronta- tion, and it is thus hardly in a position to object that customers were drawn into it. 8 Neither, in our view, does the fact that Manning became very ex- cited and repeated her statements at least twice constitute prolonged or extreme conduct in com- parison with the provocation.9 In sum, we conclude that the Respondent's un- lawful interference with the rights of its employees, including Manning, to meet with their union repre- sentatives provoked a protest from Manning that, under the circumstances, was not rendered unpro- tected by virtue of the manner in which it was ex- pressed. We therefore find that the Respondent violated Section 8(a)(3) and (1) by discharging her for that response.1° The judge also noted that Bonnie Manning had released "verbal bar- rages" in front of customers on two previous occasions. The first time she was warned that her conduct was unacceptable and the second time she was suspended for the remainder of the workday. Because, however, the comments for which Manning was discharged here were not only linked to the protected activity of meeting with union representatives but also were provoked by the Respondent's unlawful disruption of that ac- tivity, we cannot find that the previous incidents either established a precedent for this discipline or removed its likelihood of discouraging union activity. Member Stephens notes that other reasons, m addition to Respond- ent's own choice of situs for its violation, weigh against agreeing with the dissent that Manning's remarks to persons other than "supervision or management" deprive her protest of the protections of the Act. Even when otherwise protected activity is not a response to employer conduct that is unlawful under the Act, some leeway is given for impulsive and exaggerated , utterances that come to the attention of outside parties. Thus, for example, in NLRB v. Cement Transport, 490 F 2d 1024 (6th Cir. 1974), cert denied 419 U.S 828 (1974), the Court observed that in the "the context of a struggle to organize a union . . allegedly offensive ac- tions . . . directly related to activities protected by the Act" enjoy an immunity if they "are not so egregious as to be considered indefensible." Id. at 1029-1030. The employee involved there had, among other actions in the course of his union organizing effort, made unflattering remarks about the employer to a state agency, but this appeal to outside parties was not found to justify the employee's discharge. In the present case, the union organizmg effort had ended, but the Respondent's hostile treat- ment of the union representatives suggested that the campaign for recog- nition of the employees' chosen representative was still not completely won. Member Stephens therefore notes that our decision here comes within accepted principles in according some leeway for Manning's im- pulsive conduct in that setting, notwithstanding that her remarks were addressed to the customers who had witnessed the Respondent's unlawful conduct. 9 Member Stephens emphasizes, however, that nothing in the decision here gives an employee license to ignore "the requirements of discipline and good manners" (NLRB v. M & B Headwear, 349 F.2d 170, 174 (4th Cir. 1965)), nor is an employer precluded from meting out appropriate discipline (and even discharge) for improper conduct that, apart from the employer's own unlawful acts, is harmful to its business. Member Ste- phens therefore notes that the decision here turns very precisely on the facts of this case. " We amend the Order and notice to correct the inadvertent omission in the judge's decision and to reflect the additional 8(a)(3) violation we have found. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, The Kroger Co., d/b/a Brunswick Food and Drug, Brunswick, Georgia, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. 1. Substitute the following for paragraphs 1(m) and (n) and reletter the present paragraph (n) as paragraph (o). "(m) Promulgating, maintaining, and enforcing an overly broad rule which prohibits employees from wearing union buttons; issuing written warn- ings to employees; suspending and discharging em- ployees for violating such a rule. "(n) Suspending and discharging employees pro- testing curtailment of employees' right to meet with their collective-bargaining representative." 2. Substitute the following for paragraphs 2(c), (d), and (e). "(c) Offer Ella Rost and Bonnie Manning imme- diate and full reinstatement to their former posi- tions, or, if those positions no longer exist, to sub- stantially equivalent positions without prejudice to their seniority and other rights and privileges pre- viously enjoyed. "(d) Make whole Ella Rost and Bonnie Manning for any loss of earnings or benefits they may have suffered by reason of the discrimination against them by payments to them of sums of money equal to the amounts they normally would have earned from the dates of the discrimination to the dates of the Respondent's offer of reinstatement, less net in- terim earnings, with backpay to be computed in the manner prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest thereon to be com- puted in the manner prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987). "(e) Remove from its files written warnings issued to Ella Rost dated 22 August and/or 23 August 1984, as well as any reference to the dis- charge of Ella Rost and remove from its files any reference to the 11 October 1984 suspension of Bonnie Manning and the subsequent discharge of Bonnie Manning, and notify them in writing that this has been done and that evidence of the unlaw- ful warnings, suspension, and discharges will not be used as a basis for future personnel actions against them." 3. Substitute the attached notice for that of the administrative law judge. CHAIRMAN DOTSON, dissenting in part. I disagree with my colleagues' finding that the Respondent's unlawful removal of two union repre- 666 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD sentatives from its deli restaurant was so serious and compelling a provocation against employee Bonnie Manning that she should not be held ac- countable for her loud and disruptive "apology" to restaurant patrons "for the ignorance of manage- ment." Like the judge, I would find Manning's out- burst represents disloyal unprotected conduct and would dismiss the complaint allegation that the Re- spondent violated Section 8(a)(1) and (3) by disci- plining her. The Union's organizing activities at the Re- spondent's retail grocery store began in December 1983, During the ensuing campaign and following the Union's election victory, the Respondent com- mitted a number of unfair labor practices.' Except- ing the subject of discipline, there is no allegation that the Respondent's misconduct involved dis- crimination against Manning. 2 Concerning the out- burst for which Manning was discharged, the evi- dence shows that on 11 October 1984, a few weeks after the election, Union Representatives Curtis Williams and Mitchell Harden came to the Re- spondent's store, exchanged pleasantries with em- ployees, and then proceeded to the store's deli res- taurant where they purchased food and sat down. When Manager Lloyd Kerr saw these two enter the store, he called the Respondent's Atlanta divi- sion office as earlier directed. He was instructed to ask the two union representatives to leave and, if they refused, to call the police and have them re- moved. Kerr went to the deli and asked the union representatives to leave the store. Manning, who happened to be sitting with Williams and Harden at the time, asked Kerr, "Why the hell after nine I agree with the judge's findmg that early m the Union's organizing campaign the Respondent violated Sec 8(a)(I) by asking Manning if she knew anything about an upcoming union meeting, requesting her to attend the meeting and bring back mformation about what she saw and who attended, and later questionmg her about what she had learned The judge also found that about 12 January 1984 and again in late February or early March the Respondent violated Sec. 8(a)(1) when it asked Man- ning whether she knew about a planned union meeting On both of these occasions Manning asked whether the Respondent wanted her to attend the meeting and offered to find out who attended and what took place. In each instance Manning later located the Respondent's representatives m the store's deh restaurant and reported her findings, the last time simply indicating, "It was the same old crew, nothing to worry about" In the absence of exceptions, I adopt pro forma the judge's findings con- cerning these later incidents where Manning offered to be the Respond- ent's informant and voluntarily reported her findings to the Respondent in a casual manner at a time and place of her choosing. 2 Durmg preelection meetings the Respondent unlawfully established a complaint procedure, promised to remedy employee grievances, and threatened employees would lose benefits if it had to bargain with the Union The Respondent also unlawfully prohibited employees from wear- ing union buttons Mannmg was one of many employees in attendance when the unlawful statements were made and subjected to the Respond- ent's unlawful dress code Also Manning was, as discussed above, unlaw- fully asked by the Respondent to secure information about union meet- ings and, after the election, was told she could not talk to employees re- gardmg wages and pay increases Unlike other employees, Manning was never sanctioned for any breaches of the unlawful work rules imposed by the Respondent. months they were just now asking these two gen- tlemen to leave?" Williams told Kerr he and Harden "were not going anywhere." Kerr then telephoned the police. Upon their arrival, the police confronted Williams and Harden and re- moved them from the store. As this was happening Manning "jumped up from her seat," "paced around," and excitedly told the customers present that "she'd like to apologize for the ignorance of management." Manning repeated her unsolicited, disparaging remarks more than once before stomp- ing back to her work station behind the service area in the deli. Manning was suspended for 3 days and subsequently discharged for her public out- burst. In the hour following their above-described removal by the police, Williams and Harden re- turned twice to the store. On the second occasion Kerr again called the police and had them re- moved. This time they were warned that they would be charged with criminal trespass if they showed up at the store again. The majority finds that Manning's outburst dis- paraging management to its customers did not render unprotected her protest over the Respond- ent's unlawful removal of the union representatives. The premise of their finding is that in order to reach the proper balance between the right of em- ployees to engage in protected concerted activities and the right of an employer to maintain disci- pline, 3 employee misconduct in the course of oth- erwise protected activity should be excused in the face of wrongful employer provocation. The line of Board and Court decisions relying on this premise and discussed below involve employees who, pushed to the breaking point by repeated em- ployer harassment, have responded to such direct provocation—often their own discriminatory dis- charge or layoff—with disruptive, insubordinate, or threatening conduct. While I agree with the bal- ance reached in those cases, I find their facts distin- guishable from those of the case at hand in several critical respects. First, Manning was not the target of chronic employer harassment. Second, Man- ning's emotional outburst disparaging management was in response to actions taken by the Employer against union representatives, not herself. Third, Manning's outburst was directed at the Respond- ent's customers, not its supervision or management. The quote from Louisiana Council 17, AFSCME,4 cited by the majority as justification for exonerating Manning, originated in NLRB v. M 3 NLRB v. Thor Power Tool Go, 351 F.2d 584, 587 (7th Cir. 1965), NLRB v. Illinois Tool Works, 153 F 2d 811, 815-816 (7th Cir. 1946); Re- public Aviation Corp. a NLRB, 324 U.S. 793 (1945). 4 250 NLRB 880 (1980). BRUNSWICK FOOD & DRUG 667 & B Headwear Co. 5 There, key union proponent Vaughan, the victim of unlawful surveillance, was unexplainably transferred to the blocking depart- ment and on the same day laid off allegedly be- cause there was insufficient blocking work. Later, when Vaughan applied for an advertised operator's job, she was turned down on the grounds that she had been trained as a blocker. After her layoff Vaughan threatened to harm the supervisor who had spied on the union meeting at her home, and subsequently told a vice president to shut up when he intruded upon her discussion with the company president about being rehired. The court affirmed the Board's finding that Vaughan was discrimina- torily laid off and rejected the employer's claim that its violation of the Act was absolved by Vaughan's later insubordination. The court found that Vaughan's conduct was understandable under the circumstances, and neither harmed nor incon- venienced the employer, nor provided a basis to deprive Vaughan of her job. In this setting the court found (349 F.2d at 174): An employer cannot provoke an employee to the point where she commits such an indis- cretion as is shown here and then rely on this to terminate her employment. See NLRB v. Tennessee Packers, Inc., 339 F.2d 203 (6th Cir. 1964). The more extreme an employer's wrongful provocation the greater would be the employee's justified sense of indignation and the more likely its excessive expression. Repeating the above quote from M & B Head- wear, the Board in Blue Jeans Corp. 6 found that a threat by employee Hammonds as she was being discriminatorily discharged did not negate the ille- gality of the employer's conduct. Citing a litany of antiunion activities targeted at Hammonds, includ- ing surveillance, threats of discharge, and interro- gation, as well as the denial of any explanation for her discharge or the name of her accuser, the Board found that the employer's discriminatory treatment had brought on the emotional outburst and that the judge had erred in denying Ham- monds' reinstatement. 7 A similar set of facts existed .5 349 F.2d 170 (4th Cir. 1965). 6 170 NLRB 1425 (1968). 7 While the employer impropriety in Thor Power, supra, occurred during the course of a grievance meeting, the balance struck is similar to that called for by the Fourth Circuit in M & B Headwear. Thor Power discharged grievance committeeman Tinsley because, after a heated grievance meeting fueled by the ill temper and loudly uttered obscene ep- ithet of a company superintendent, extremely displeased at Tinsley's par- ticipation, Tinsley mumbled to the grievant something about "the horse's ass," apparently referring to the superintendent. The court found that "not every impropriety committed during [the course of Sec. 7] activity places the employee beyond the protective shield of the Act," that the remark which allegedly precipitated Tinsley's discharge "cannot be con- sidered in a vacuum" (351 F 2d at 586), and that the Board had reason- in Trustees of Boston University. 8 There the Board found that the provocation as well as illegal dis- crimination against employee Schiffer, including two unfounded warnings and changed and more onerous working conditions, had contributed sub- stantially to creating a suspicious and tense atmos- phere, and that the resultant heightened conflicts between Schiffer and her supervisor did not justify discharging Schiffer or denying her reinstatement and backpay. The court9 agreed that while Schiffer's offensive dealings with supervisors and fellow employees, including an occasion when she brandished a pair of scissors, was not insignificant, it nonetheless was stimulated by the employer's own wrongful conduct and therefore not a legiti- mate basis for her discharge. Much the same pat- tern existed in Louisiana Council 17, supra. There the employer, piqued by protected concerted ac- tions taken by Linecum and other employees, threatened that employees would be "in trouble" if they pursued outside assistance, unlawfully restrict- ed their movement to prevent them from attending a union meeting, discriminatorily suspended Line- cum, transferred him without legitimate business justification, and then discharged him in part for his poor posttransfer attitude. The Board refused to shift the onus for Linecum's unlawful discharge where the employer, through its unfair labor prac- tices, had made Linecum's working conditions bur- densome and then relied on his response to justify his discharge. The elements of provocation existing in the above cases are not present here. Manning was never singled out by the Respondent for harass- ment as the discriminatees in the above cases had been. Admittedly, Manning witnessed a number of the Respondent's unfair labor practices, but she was not alone on this account. Manning violated several unlawfully imposed work rules, but unlike other employees was never sanctioned for these breaches. Further, while the Respondent unlawful- ly questioned Manning about fellow employees' union activities, a finding that the Respondent thereby harassed Manning would be misplaced since Manning twice volunteered to gather infor- mation about union meetings for the Respondent and willingly reported back her fmdings. Thus, the campaign of attrition waged against the discrimina- tees in the above cases by their respective employ- ers is not present here. ably concluded that Tmsley's impulsive behavior, in the context of the grievance meeting, balanced favorably against the company's right to maintain order and respect. 8 224 NLRB 1385 (1976) 9 Trustees of Boston University v. NLRB, 548 F.2d 391 (1st Cir 1977). 668 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD As for the events of 11 October, it cannot rea- sonably be found that the Respondent's unlawful act of evicting two union representatives was di- rected at Manning. The Respondent's concern was the presence of union representatives on its prem- ises, a fact made clear by Manager Kerr's orders in advance of the incident to telephone the Respond- ent's Atlanta division office should any union rep- resentatives arrive on the premises. Kerr's orders to remove the union representatives had nothing to do with Manning, whose presence when Kerr and later the police confronted Williams and Harden was coincidental. While Manning immediately took offense at Kerr's request that the union representa- tives leave, Williams and Harden ignored Man- ning's attempt to embroil herself in the confronta- tion and informed Kerr directly that they had no intention of leaving. The police likewise confronted and removed only Williams and Harden. There is no evidence that they even spoke to Manning who became unhinged and loudly and repeatedly an- nounced "the ignorance of management" to the Respondent's uncomprehending customers. That the Respondent's focus was on the union represent- atives not Manning is reinforced by the fact that later, when Manning was not present, Kerr had the police again remove Williams and Harden from its store, this time with the warning that they would be arrested for criminal trespass if they reappeared. I find that Manning was not the victim of direct employer provocation as were the employees in the above-discussed cases. 1° The onus for Manning's discharge properly rests where it was placed by the judge, on her own shoulders. The Respondent's unlawful removal of the union representatives from its premises cannot be used as an excuse for Man- ning's poor judgment. Her disruptive and disloyal outburst, made directly to the Respondent's unin- volved customers, removed her protest from the protection of the Act" and I find that disciplinary action was legitimately taken by the Respondent. 15 Recognizing that "case precedent and policy emanciated in case de- cisions have general applicability to non-parties in the future," Bernstein, The NLRB's Adjudication-Rule Making Dilemma Under the Administrative Procedure Act, 79 Yale L. Rev 571, 612 (1970), I am surprised at the ma- jority's citation of inapt precedent to support a strained new view on the meaning of employer provocation. It is settled that the Board is free to adopt new rules of decision, however, it may, not depart sub Wend° from its usual rules of decision to reach different, unexplained results in a single case NLRB v Silver Bay Local 962, 498 F.21 26, 29 (9th Cir 1974), appeal after remand 510 F.2d 1364 (1975), NLRB v. Operating En- gineers Local 925, 460 F.2d 589, 604 (5th Or 1972). Iron Workers Local 111 v. NLRB, 122 LRRM 2611, 2615-2616 (DC Or 1986) Here, the majority's departure from the Board's accepted definition of provocation is wholly unexplamed As one court has observed: "Mhere may not be a rule for Monday, another for Tuesday, a rule for general application, but denied outright in a specific case" Mary Carter Paint Co. v. FTC, 333 F 2d 654, 660 (5th Cir. 1964) (Brown, C J concurring specially), quoted with approval in Operating Engineers Local 925, supra " Sec 7 of the Act "does not embrace concerted activity undertaken for an unlawful objective or protect employees against discharge for re- sorting to 'indefensible' means . . in pursuit of their collective ends, however lawful" Jefferson Standard Broadcasting Co., 94 NLRB 1507, 1509-1510 (1951), revd. 202 F.2d 186 (D.C. Cir. 1952), set aside 346 U.S. 464 (1953). The Supreme Court observed 346 U S at 477. "Congress, while safeguardmg, in §7, the right of employees to engage in 'concerted activities for the purpose of collective bargammg or other mutual aid or protection,' did not weaken the underlying contractual bonds and loyal- ties of employer and employee" It cannot be denied that Manning's dis- paraging remarks, directed at urunvolved customers of the Respondent, were far more destructive to these bonds and loyalties than the action of employee Thompson in NLRB v. Cement Transport, 490 F.2d 1024 (6th Cm), cert. denied 419 U.S. 828 (1974), cited by the majority as precedent for according Manning some leeway for her impulsive behavior. Thomp- son, in seeking a form stating Cement Transport's Interstate tariffs, told the Kentucky Department of Motor Transportation that he had been unable to obtain a copy of the form from his company. I find, in agree- ment with the court, that "[e]ven assuming that Thompson had told a falsehood, the utterances of such an isolated and non-prejudicial remark could not justify his discharge." (490 F.2d at 1030). The same cannot be said of Maiming's outburst, which would have been equally indefensible had it occurred during an organizational campaign. 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. WE WILL NOT request you to attend union meet- ings and report what takes place at those meetings and otherwise conspire with you to learn what we can about union activities among employees. WE WILL NOT expressly and/or impliedly threat- en you with closure of the Brunswick store if you select a union to represent you or if management should become "deadlocked" in negotiations with a union. WE WILL NOT tell you that we want you to re- consider your support for the Union. WE WILL NOT threaten you that if you select the Union to represent you, you will lose your "PCS card," or any other benefits. WE WILL NOT promulgate an unlawful no-solici- tation rule which prevents you from soliciting union authorization cards anywhere on our proper- ty. WE WILL NOT grant you wage increases in order to dissuade you from supporting the Union. WE WILL NOT Solicit grievances from you and promise either expressly or impliedly to remedy such grievances. WE WILL NOT interrogate you about your union activities and sentiments and the union activities and sentiments of your fellow employees. BRUNSWICK FOOD & DRUG 669 WE WILL NOT tell you that you cannot commu- nicate with other employees about promotions and pay raises. WE WILL NOT threaten to retaliate against you by removing you from the positions which you hold because of your support for the Union. WE WILL NOT withhold promised wage increases from you because of the Union. WE WILL NOT cause union representatives to be evicted from our public snack bar, although they are using the snack bar in a manner consistent with its purpose. WE WILL NOT promulgate, maintain, or enforce an overly broad rule which prohibits employees from wearing union buttons; or issue written warn- ings to you, suspend, or discharge you for violating such a rule. WE WILL NOT suspend or discharge you for pro- testing curtailment of your right to meet with your bargaining representative. WE WILL NOT in any other manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL extend to employee Charles Hicks the wage increase promised to him and withheld from him because of the Union, and WE WILL make Hicks whole for any loss of earnings or benefits he may have suffered by paying him the raise retroac- tively to 1 October 1984, with appropriate interest. WE WILL remove from our files the written rep- rimands issued to employees Rost, Chubb, and Dowling for violating our unlawful rule prohibit- ing employees from wearing union buttons, and notify them in writing that this has been done and that evidence of the unlawful warnings will not be used as a basis for future personnel actions against them. WE WILL offer Ella Rost and Bonnie Manning immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantial- ly equivalent positions, without prejudice to their seniority or any other rights or privileges previous- ly 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 remove from our files written warn- ings issued to Ella Rost dated 22 August and/or 23 August 1984, as well as any reference to the dis- charge of Ella Rost and remove from our files any reference to the 11 October 1984 suspension of Bonnie Manning and the subsequent discharge of Bonnie Manning and notify them in writing that this has been done and that evidence of the unlaw- ful warnings, suspension, and discharges will not be used as a basis for future personnel actions against them. THE KROGER CO., D/B/A BRUNS- WICK FOOD AND DRUG Ann Leslie Unger, Esq., for the General Counsel. John M. Flynn, Esq., and Donna K Snider, Esq., of Cin- cinnati, Ohio, for the Respondent. Norman J. Slawsky, Esq. (Jacobs and Langford, P.A.), of Atlanta, Georgia, for the Union. DECISION STATEMENT OF THE CASE PHILIP P. McLtop, Administrative Law Judge. I heard this case on January 23, 24, and 25, and February 26, 27, and 28, 1985, in Brunswick, Georgia. The case originated from four charges filed on March 20 and 30, August 27, and October 19, 1984, by United Food and Commercial Workers Union, Local No. 1063, chartered by the International Food and Commercial Workers International Union, AFL-CIO-CLC (the Union) against The Kroger Company, d/b/a Brunswick Food and Drug (Respondent). On May 10, 1984, a consolidated complaint and notice of hearing issued in Cases 10-CA-20082 and 10-CA- 20100, alleging that by various acts and conduct, Re- spondent violated Section 8(a)(1) and (3) of the National Labor Relations Act (the Act). On July 25, 1984, the Regional Director for Region 10 approved a settlement agreement remedying the allega- tions in Cases 10-CA-20082, and 10-CA-20100, and a related case, Case 10-CA-20024, which is not the subject of this proceeding. As a result of' the Regional Director's investigation of the charge in Case 10-CA-20416, the Regional Director concluded that a course of unlawful conduct beginning on August 8, 1984, and continuing thereafter, violated the substantive provisions of the settlement agreement. By letter dated September 26, the Regional Director set aside the 8(a)(1) portions of the settlement agreement, leaving other portions of the settlement intact. The Re- gional Director did not disturb the settlement agreement in Case 10-CA-20224 and, as indicated, it is therefore not involved in this proceeding. The consequence of setting aside the settlement agree- ment in Cases 10-CA-20082 and 10-CA-20100 was to revive alleged $(a)(1) allegations dating back to Decem- ber 1983. The facts relating to those alleged violations are discussed in full detail below. Because I have found that subsequent to July 25, when the settlement agree- ment was approved, Respondent engaged in various vio- lations of the Act that are related to those addressed in the settlement agreement, I also find that the Regional Director was justified in setting aside the settlement agreement. City Cab Co. of Orlando, 273 NLRB 1344 (1985); Hatfield Trucking Service, 270 NLRB 136 (1984). Therefore, in order to avoid repetition, I have consid- ered and made legal conclusions regarding the various 670 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD allegations predating the settlement as they are discussed factually. On September 28, 1984, a consolidated complaint and notice of hearing issued in Cases 10-CA-20082, 10-CA- 20100, and 10-CA-20416. Finally, on December 21, 1984, an order consolidating cases, amended consolidated complaint, and notice of hearing issued in all four of the cases captioned herein. The final consolidated complaint sets forth numerous alleged violations of Section 8(a)(1) of the Act, including allegations that Respondent interrogated its employees concerning their union membership and activities; threat- ened its employees that Respondent would close its Brunswick store if employees joined the Union; threat- ened employees that it would be futile to select the Union as their collective-bargaining representative; threatened employees with loss of benefits, including dental and medical benefits, prescription cards, and wages if employees joined the Union; threatened to demote employees if they joined the Union; threatened employees with loss of access to management to present grievances individually if employees joined the Union; threatened to discharge employees who joined the Union; solicited employees to abandon the Union; solicit- ed employees concerning grievances they had with Re- spondent; promised employees a wage increase and ex- tended hospitalization benefits to its part-time employees; maintained and enforced a no-solicitation rule, which prohibits any solicitation at any time on Respondent's property; prohibited employees from discussing promo- tions and wages with fellow employees; demanded that employees remove prounion buttons from their clothing; and removed union representatives from its public snack- bar even though they were using the snackbar consistent with its purpose. The final complaint also alleges several violations of Section 8(a)(1) and (3) of the Act, including allegations that Respondent issued a verbal warning to, suspended, and later discharged employee Ella Rost; denied employee Charles Hicks a merit raise; and dis- charged employee Bonnie Manning because of their membership in, and activities on behalf of, the Union.' In its answer to this complaint, Respondent admitted certain allegations, including the filing and serving of the charges, its status as an employer within the meaning of the Act, the status of the Union as a labor organization within the meaning of the Act, and the status of various individuals as supervisors and agents of Respondent within the meaning of Section 2(11) of the Act. Re- spondent denied having engaged in any conduct that would constitute an unfair labor practice within the meaning of the Act. At the trial, all parties were represented and afforded full opportunity to be heard, to examine and cross-exam- ine witnesses, and to introduce evidence. Following the close of the trial, all parties filed timely briefs with me, which I have considered. On the entire record in this case and from my observa- tion of the witnesses, I make the following 1 By letter dated December 11, 1984, the Regional Director dismissed charges in Case 10-CA-2O537 that Charles Hicks and Bonnie Manning were suspended in violation of Sec. 8(0(3) of the Act. FINDINGS OF FACT I. JURISDICTION The Kroger Company, d/b/a Brunswick Food and Drug is, and has been at all times material, an Ohio cor- poration with an office and place of business located at Brunswick, Georgia, where it engaged in the retail sale of groceries. During the past calendar year, which period is representative of all times material, Respondent received gross revenues in excess of $500,000 and pur- chased and received at its Brunswick, Georgia facility goods valued in excess of $50,000 directly from suppliers located outside the State of Georgia. Respondent is, and has been at all times material, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. IL LABOR ORGANIZATION United Food and Commercial Workers Union, Local No. 1063, chartered by the International Food and Com- mercial Workers International Union, AFL-CIO-CLC is, and has been at all times material, a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Background Respondent's retail grocery store in Brunswick, Geor- gia, is a new facility. Respondent began interviewing and hiring employees to work in that store in late February or early March 1983. The store opened on May 10, 1983. In early December 1983, the Union began an organizing campaign among Respondent's employees at the Bruns- wick store. Employee Bonnie Manning testified that on December 6, 1983, she was summoned to Store Manager Joe Hall's office. According to Manning, who I credit, Hall asked Manning if she knew that there was going to be a union meeting. Manning said she did not. Hall then told Man- ning to see if she could find someone to go with her to the meeting, to find out what the Union was telling em- ployees, and to see who was at the meeting. Manning at- tended the meeting and reported back to Hall after- wards. On the next morning, December 7, Hall ap- proached Manning in Manning's work area to again dis- cuss the meeting. According to Maiming's credited testi- mony, Hall asked Manning how many people had attend- ed the meeting. Manning replied that 14 or 15 had at- tended. Hall asked Manning, "Did they promise these guys anything?" Manning said they did not. As will be seen below, Manning and Hall had several conversations at different times regarding the Union. Manning, by her own admission, was actively opposed to the Union during the early months of the campaign. She later became one of its most active supporters. Respond- ent argues that because of this change in allegiances, Manning should be discredited. Store Manager Hall had no specific recollection of particular conversations he had with Manning with the exception of the conversa- tion immediately following Maiming's attendance at the first union meeting. Hall testified that he never asked BRUNSWICK FOOD: DRUG 671 Manning to attend any meetings, but that Manning vol- unteered to do so on several occasions. Hall testified, "In all instances, I told her that as a Kroger manager, I couldn't tell her to go or not to go. If she was asking me as a person, my advice was that she needed to be in- formed and she needed to do what she wanted to do." Hall's testimony about this purportedly neutral response to Manning struck me as being rehearsed. I discredit Hall in this regard. Hall also testified, "Bonnie [Manning] was always anxious to tell us what she knew and what was happening." Standing alone, I credit this statement. What is left unsaid, however, and what is amply revealed by Manning's credible testimony is that Hall was an anx- ious listener and an active conspirator with Manning to learn what he could about the Union's campaign among Respondent's employees. Manning's testimony regarding these early conversations with Hall is straightforward and candid. I credit that testimony. I find that by asking Manning to attend union meetings and report back to him what took place at those meetings, and by otherwise conspiring with Manning to learn what he could about the union campaign, Hall violated Section 8(a)(1) of the Act. Eagle Headers, 273 NLRB 1486 (1985); L & Equipment Co., 272 NLRB 652 (1984). B. Employee Meetings of December 7 and 8 On December 7, Respondent's zone manager, Tex Randall, personnel manager, Steve Wood, and assistant personnel manager, Pete Williams, went to the Bruns- wick store to talk to employees about the Union's orga- nizing campaign. Randall, Wood, and Williams held sev- eral meetings with small groups of employees on Decem- ber 7 and at least one such meeting on December 8. Ap- proximately 15 to 25 employees attended each meeting. At these meetings, Randall and Wood both spoke to em- ployees, using a prepared script as the basis for their re- marks. There was considerable testimony whether Wood and Randall simply read the script verbatim, or whether they also ad-libbed as they saw fit. Randall and Wood testified that they used the script as an outline or guide, but that they departed from the script when they felt it appropriate. They denied reading to employees one of the statements in the prepared script, discussed in greater detail below. I do not credit their denial. Based on the testimony of all the witnesses on this point, I fmd that Randall and Wood read the prepared script to employ- ees, but departed from it by adding various impromptu comments when they desired. Employee Jonathan Chubb attended a meeting with about six other employees at approximately 8:15. a.m. on December 7. Randall, Wood, and Hall were all present. According to Chubb, Randall began by stating he had been informed that some employees had contacted a union and that Randall was deeply concerned. Accord- ing to Chubb, whom I credit, Randall told employees they could revoke their union authorization cards by contacting the Board, and Randall discussed how to ac- complish this. Randall told employees that $4 per hour, which Respondent was then paying full-time employees, was the rate Respondent had agreed to pay, and there was no way Respondent could pay any more even if the Union came to represent employees. Chubb testified Randall stated, "If Kroger had to pay higher wages, they would have to raise the price of groceries to be competi- tive and . . . if a Kroger store is not competitive, they would have to close down the store, which they have done." Chubb testified Randall stated, "The Scottsboro, Alabama, store and the Martinsburg, Tennessee, store closed because of the Union." Chubb then immediately added, "What he was referring to was the high wages that were being paid there." Last, Chubb testified Ran- dall discussed a "PCS card" Brunswick employees have, which allows them to obtain prescription drugs from Re- spondent at no or low cost to employees. According to Chubb, Randall told employees, "No other Kroger store in the Atlanta [area, where employees are all represented by unions] has this privilege and that if the Union were elected, we would lose the prescription card. . . ." Employee Ella Rost testified she attended a meeting about 10 a.m. on December 7 with Randall, Wood, and 10 to 15 fellow employees. Rost, whom I credit, testified that Randall and Wood both read from a text and spoke extemporaneously. According to Rost, Wood explained that the purpose of the meeting was to give employees Respondent's position concerning the Union. According to Rost, Randall talked about "other Kroger stores that had been union and . . . had closed . . because of the high rate of pay for the union stores." A few moments later, Rost testified that Randall or Wood "discussed the rates of pay in the other stores and that the reason they had closed was because their union wages were so high that they could not pass the cost of the pay hike on . . ." Rost then testified, "Mr. Randall did mention the fact that the Scottsboro, Alabama, store had closed be- cause of the Union." I then asked the witness: JUDGE MCLEOD: Because of the Union or be- cause of the high rates of pay? THE WITNESS: Because of the Union. JUDGE MCLEOD: lie made that specific state- ment? THE WITNESS: Mr. Randall did make that state- ment, yes. In its brief, Respondent implies that Rost is contradicted by employee Barney Oswalt and should therefore be dis- credited. In describing this same meeting, Oswalt admit- ted on cross-examination that neither Wood nor Randall said Respondent would close the Brunswick store be- cause of the Union. Oswalt testified, "I don't remember that statement being made within that frame of phrase. These subjects were all related you know." I do not find Oswalt's testimony to contradict Rost. Rost does not claim that either Randall or Wood specifically stated that Respondent would close the Brunswick store because of the Union. Neither does any other of the General Coun- sel's witnesses. Rather, the General Counsel argues that by Randall and Wood repeatedly discussing other stores that Respondent had closed, they were inferring the probability of the Brunswick store closing as well be- cause of the union. Rost, who I credit, testified Randall "made a statement that he didn't want our store to close like some of the other stores had." Rather than contra- 672 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD dicting one another, Oswalt and Rost tend to corrobo- rate one another. Rost testified that Wood discussed employee benefits, and in particular the "PCS card." According to Rost, Wood reminded employees that the Brunswick store was the only store that had such a card, pointed out to em- ployees that such a card was "not part of the union package," and told employees "that if the Union came in we would lose our PCS card." Rost testified Wood also told employees that "once the Union was voted in, they would go into negotiations and we would lose all bene- fits and we would start from day 1 with a blank sheet of paper and we would negotiate from there, we would have nothing. We would lose everything, PCS card, our health benefits, everything. We would start over from day 1 with nothing and go from there." I credit Rost. Employee Elizabeth Dowling testified about a meeting that she attended at approximately 8 p.m. on December 7 with approximately 25 other employees. Randall, Wood, and Store Manager Joe Hall were present. According to Dowling, Randall did most of the talking, both from a prepared script and extemporaneously. Dowling, like Chubb, testified that Randall began the meeting by tell- ing employees Respondent had learned of union activity. According to Dowling, Randall then discussed union au- thorization cards and how they might be retrieved. Dowling testified that Randall discussed Kroger's "open door policy" and told employees that "in signing the au- thorization cards we would be allowing a third party to come between us and our Kroger family" According to Dowling, Randall also talked about a store in Scottsboro, Alabama, that had been closed because Respondent "could not afford to pay high union wages." Dowling added, "He said since the Brunswick store was already running—I think he used the expression 'in the red'—that they could not afford to pay one penny more." Dowling testified that Randall added, "Our only job security was in continuing to run the store the way it had been run and not increasing salaries." Dowling, like Rost and Chubb, testified that "PCS cards" were discussed. Ac- cording to Dowling, Randall said "that he couldn't guar- antee that if the Union came in we would not lose the prescription card." The testimony of Randall and Wood is similar to that of Chubb, Rost, and Dowling in many respects. In cer- tain important respects, however, it differs. Randall testi- fied that at each of these meetings he used an actual op- erating statement from the Brunswick store and ex- plained to employees, line-by-line, the costs of doing business. According to Randall, he went on to say he felt confident that if the store could increase sales and main- tain good operating results, the Brunswick store would probably begin making money within a year. Randall admits emphasizing that the store had to remain competi- tive in order to remain open. Randall told employees that he could "point to markets where Kroger has become uncompetitive." Randall then told employees about stores in Grand Rapids, Michigan; Baton Rouge, Chicago, Milwaukee, Birmingham, and Morristown, Tennessee, where stores had been closed because they were "highly unprofitable" or "no longer competitive." Randall admits telling the employees that Respondent's inability to obtain concessions from a union was a reason for closing the Grand Rapids' store. With regard to the other store closings, Randall testified, "I did not talk about those as far as relating to employee costs." Randall admits discussing Respondent's Scottsboro, Alabama store with employees. That store had not in fact closed, and Randall denies telling employees at the meetings on December 7 and 8 that the store had closed. The Scotts- boro store had recently become unionized. According to Randall, he compared the Scottsboro store with the Brunswick store. Randall pointed out to employees that the Scottsboro store was unprofitable. According to Randall, he also pointed out to employees that sales at the Brunswick store were almost twice that at the Scottsboro store. Randall admitted telling employees that union picket lines at the Scottsboro store "could have had some effect on this store not achieving the amount of sales . . . that our store was achieving in Brunswick." Randall testified that he compared the Brunswick store with the unionized Scottsboro store rather than with a nonunion store of similar size to Brunswick Iodated in Warner Robins, Georgia, "because we wanted—we didn't have the same similarities of what was happen- ing—that store is profitable." Randall admitted, however, that the Warner Robins store is in most respects more similar to the Brunswick store than is the Scottsboro store. The two factors that allow Brunswick to be com- pared with Scottsboro are that Scottsboro is unionized and allegedly unprofitable. Randall admitted that the Brunswick store was unprofitable largely because it was a new store, and it is not unusual for new stores to be unprofitable for accounting purposes during their first year of operation. Randall denies telling employees they would lose their "PCS cards" if they became unionized. According to Randall, "There was questions from the people would they lose their PCS card and I stated that I knew of no place where we had PCS cards where we had organized clerks, I was not aware of any that had PCS cards." Ac- cording to Randall, he simply told employees, "Every- thing is negotiable, can't promise anything." Randall's testimony in this respect was not convincing. According to Personnel Manager Wood, he discussed with employees the wage and benefit package at the Brunswick store. Wood testified, "I said to the group of employees that we had put together. . . a total compen- sation package . . . for the Brunswick store that we knew to be competitive in the area . . . Wood denies that either he or Randall told employees they would lose benefits if they chose to be unionized. Wood, like Ran- dall, testified that employees asked if they would lose their PCS cards if the Union was selected to represent them. Wood testified: I explained to the employees that were we to get to the point of having to negotiate a contract with the Local that was seeking to represent them, that it would be just that; a negotiation process, a process of give and take, and that there would be gains in some areas. There could be losses in some areas, but that there were no guarantees. BRUNSWICK FOOD & DRUG 673 The testimony of former Store Manager Joe Hall varies considerably from that of Wood and Randall in one very important respect. Hall agrees with Wood and Randall they told employees that, "As of that point in time, no organized store had a PCS card. Only the stores—the employees that were not organized had them." Hall, however, also testified, "It was said, you know, what the employees had at the point and that, you know, if the Union was voted in, you would have to go back to square one and start negotiating all over again and they may or may not end up with what they already had." Hall's ad- mission lends considerable credence to the mutually cor- roborative testimony of employee witnesses that they would lose all existing benefits if the Union was selected to represent employees. I credit that testimony. Respondent introduced the script read to employees by Randall and Wood and used as a basis for other ex- temporaneous remarks. This document supports the testi- mony of employee witnesses. On the first page, the script states in part: If you sign any kind of card—you will have signed away your right and ability to deal directly with the company. If you sign a card you will have authorized someone else to speak for you. Both Randall and Wood deny reading this statement to employees. Their denial was particularly unconvincing. Moreover, it left me with the distinct impression that Randall and Wood were prepared to deny having said anything that they perceived to be against Respondent's interests. The script of the meeting also states in part: If you signed a card and want it back—ask for it back—Write a certified letter and demand that the card be given back, or seek counsel from the NLRB 404-221-2896. . . . . We thought that our lines of communication were open in this store. We think we have the situa- tion here for you to express your self in terms of ideas, suggestions or problems. If there are prob- lems we would like to know about them—pay- checks not arriving on time? Any other problems with benefits? If there are let us know. The similarity between the testimony of employee wit- nesses and the script itself is striking. Further, Chubb, Rost, and Dowling impressed me as being wholly credi- ble. Chubb, in particular, impressed me as a very careful, thoroughly straightforward witness with a superb com- mand of detail. Rost also impressed me as being very certain, straightforward, and having a good memory. Similarly, Dowling impressed me as being very straight- forward, totally without pretense, and cooperative on cross-examination. I credit their testimony. I find that in these meetings on December 7 and 8, Respondent at times simply linked various store closures to the high cost of (union) wages. When Respondent limited its statements to such economic matters, it did not violate the Act. At certain times during these speeches on De- cember 7 and 8, however, Respondent explicitly linked certain store closures to unionization by employees. With regard to the Scottsboro, Alabama store Randall told employees either that it had closed or that it would close, and I credit Rost that he specifically gave as the reason "the Union." By doing so, Respondent violated Section 8(a)(1) of the Act. I also credit Chubb and Rost that in the meetings they attended, employees were spe- cifically told that if the Union came in, employees would lose the PCS cards. Further, I credit Rost that employ- ees were told if the Union was voted in, when negotia- tions began employees would lose all benefits and begin from day one. By these statements, Respondent threat- ened to withdraw employee benefits if they selected the Union in violation of Section 8(a)(1) of the Act. From the script of the December 7 and 8 meetings, I conclude Respondent told employees that by signing an authorization card they were signing away their "right and ability" to deal directly with Respondent. Similar statements have been found to violate Section 8(a)(1) of the Act. Colony Printing & Labeling, 249 NLRB 223, 224 (1980). The current Board, however, has held that such statements do not violate Section 8(a)(1) of the Act be- cause they simply "explain . . . a change in the manner in which employees and employers deal with each other when a union is elected." United Artists Theatre, 277 NLRB 115 (1985); Tr-Cast, Inc., 274 NLRB 377 (1985); Purolator Products, 270 NLRB 694 (1984). Accordingly, I find that Respondent's statement in this case did not vio- late Section 8(a)(1) of the Act. Respondent also advised employees how to revoke their authorization cards. Even though the mere act of advising employees in this manner may tend to encourage them to do so, an em- ployer may nevertheless inform employees of such a right, even if employees have not solicited such informa- tion, so long as the employer makes no attempt to ascer- tain whether employees avail themselves of this right nor offers any assistance nor otherwise creates the impression that employees are in peril by refraining from revoking their cards. Mariposa Press, 273 NLRB 528 (1984). Ac- cordingly, I find that by this statement, Respondent did not violate Section 8(a)(1) of the Act. Lastly, I conclude that in the meeting with employees on December 7 and 8, Respondent told employees, "If there are problems we would like to know about them— paychecks not arriving on time? Any other problems with benefits? If there are let us know." This statement represents an outright solicitation of grievances from em- ployees. I find it to be substantially different from the sit- uation in Mariposa Press, supra, in which the Board found that a solicitation of grievances that was ambigu- ous and that, on the whole, represented a reiteration of company policy did not violate the Act. Particularly in light of Respondent establishing an employee grievance procedure at a later meeting, which is discussed in great- er detail below, it becomes apparent that at both of these meetings Respondent was neither abiguons nor reiterat- ing existing policy. Further discussion follows my con- sideration of the August 8 and 9 meetings. C. Other Events of December 1983 On December 15, 1983, Rost wore a union button to work for the first time. This button stated, "Vote Yes 674 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD UFCS AFL-CIO." When Lloyd Kerr saw Rost wearing the button, he asked her to take it off. Rost complied. After lunch on the same day, Rost put the button back on. Store Manager Joe Hall saw Rost wearing the button, and told Rost to remove it. Rost, whom I credit, testified: Mr. Hall gave me Kroger's position on wearing the union pin, they considered it to be an unauthorized part of our uniform and they said that it was Kroger's uniform and they did not want the union button worn on it . . . . If I wanted to wear it on my clothes, on my own time, I could. Rost again removed the button. About a half hour later, Rost changed her mind, and again put the button back on. When Hall saw Rost again wearing the button, he called Rost to his office and gave her a written repri- mand. Employee Chubb also wore a union button to work on December 15. Chubb was instructed to remove the button by Managers Hall and Turner. When Chubb re- fused to do so, he was given a written warning. On De- cember 16, Chubb again wore the button to work. On December 16, Chubb again wore the button to work. On that day, Chubb asked Grocery Manager Jerry Miller whether he would be fired if he continued to wear the union button. It is uncontroverted that Miller told Chubb he would be fired. There are numerous instances of em- ployees being told to remove union buttons. Few, if any, instances are denied by Respondent. I have described each instance separately below. I then discuss and con- sider these instances jointly later in this decision. Employee Hendrix Ketchup testified that in December 1983 he was called to Store Manager Hall's office. Ac- cording to Ketchup, Hall asked if Ketchup had signed a union card, whether Ketchup was passing out union cards, and if Ketchup knew anyone that was signing union cards. Ketchup testified that he replied, "No" to all these questions. Hall testified he had been told that Ketchup was passing out union authorization cards on the sales floor while he was "on the clock." Hall testi- fied, "I told him I didn't care whether it was true. I didn't know whether it was true. Only that he wasn't to do it." Hall denied that he asked Ketchup if Ketchup had signed a union card or received a card from anyone else. The General Counsel urges that Ketchup was a "cautious, measured witness who should be credited." My impression of Ketchup was somewhat different. For example, at one point during his testimony Ketchup sud- denly froze, seeming to forget even where he was or what he was doing. Ketchup's testimony on cross-exami- nation showed that he left out much on direct. I was left with the distinct impression that Ketchup's testimony was not reliable. Instead, I credit Hall, and I fmd that no violation of the Act occurred in this instance. D. Events of January 1984 Approximately January 12, 1984, Store Manager Hall approached Manning in front of the delicatessen area of the store. Manning, whom I credit, testified that Hall asked if Manning knew anything about the union meet- ing that was to take place that week. Manning said that she did not, and asked Hall if he wanted her to go to the meeting. Hall replied, "Do what you want to. If you can fmd someone to go with, go." Manning told Hall she had plans, but that she could find out who attended the meeting and what took place. Hall replied, "Do what you can." On the morning after the union meeting, Hall approached Manning and asked if she had found out any- thing. Manning replied that she had not. Later that day, Manning spoke with other employees about the union meeting and reported these facts to Hall who, at the time, was seated with Customer Service Manager Don Edwards in the deli-restaurant. Hall denied this conver- sation with Manning. Although Respondent called Cus- tomer Service Manager Edwards as a witness, he did not rebut Manning's testimony regarding her conversation in his presence with Edwards. I credit Manning. Hall's ac- tions on this occasion again violated Section 8(a)(1) of the Act. Ella Rost testified that in mid-January 1984 Store Manager Hall approached her and told Rost he wanted to talk to her "off the record." Rost, whom I credit, tes- tified Hall stated that if Rost ever repeated the conversa- tion, Hall would deny it ever took place. Hall then told Rost he wanted her to "reconsider being for the Union." Hall asked why an intelligent person like Rost would be in favor of the Union and involved with "half baked" people like Chubb and Dowling. Hall did not deny having the conversation with Rost nor contradict her version of it. Rather, Hall simply described the conversa- tion somewhat differently. According to Hall, "Ella was very upset." Rost complained that some employees were not being as friendly toward her as they had been in the past. According to Hall: As I explained to her, she was dealing with a situa- tion where some people were very adamantly against the union and some were for it. As long as you had that, you were going to have people dis- agreeing and not being friendly with each other. Hall did not deny asking Rost to "reconsider" her sup- port for the Union, and I credit Rost that Hall did so. Whether it is unlawful for an employer to ask an em- ployee to "reconsider" his/her support for a union must depend on the circumstances. There may well be circum- stances in which an employer might do so in a noncoer- cive manner. I find that in the circumstances of this case, however, the "request" was coercive and therefore vio- lated Section 8(a)(1) of the Act. Hall in effect suggested to Rost that if she was smart she would oppose the Union. Hall referred to other union supporters as "half baked." By Hall's own admission, the context of the con- versation included discussion about why people were not being friendly with one another. The obvious implication of this request by Hall that Rost reconsider her support for the Union was that she might receive a more friendly reception if she did not support the Union. It is for this reason that I find Hall's "request" coercive and a viola- tion of Section 8(a)(1) of the Act. On the night of January 1Z 1984, employee Chubb and Store Manager Hall had an extended conversation BRUNSWICK FOOD & DRUG 675 about the Union near the employee breakroom. Chubb testified convincingly that Hall initiated this conversation by asking Chubb "what my biggest gripe was." Chubb replied that it definitely had to be the payscale at Re- spondent's Brunswick store. Hall replied that Chubb had sought the job and that Hall did not understand why Chubb thought the pay was unfair. Hall then told Chubb that by now he should realize only 2 or 3 percent of the employees had any interest in the Union. Chubb simply smiled. Hall then asked, "Jonathan, how many union cards are signed or do you have signed?" Chubb went into the breakroom, got his jacket, and returned, prepar- ing to leave. Hall was still there. Hall told Chubb, "Jonathan, I'd like to make a bet with you." Chubb responded, "What kind of a bet?" Hall then stated, "I'll bet for the best steak dinner in town, that if this union comes in, you'll wind up with one-third less than what you have in your pocket right now." Chubb asked, "Do you mean wages or benefits?" Hall replied, "Both." Chubb stated, "Mr. Hall, I'll just have to take you up on the bet." In later testimony, Chubb recalled another portion of the Janu- ary 21 conversation. Chubb testified that during that conversation, Hall asked Chubb "for a simulated case." Hall asked Chubb what he would if he was a mediator, the Union and Respondent were in negotiations, Re- spondent was willing to pay $4 per hour, and the Union wanted $10 per hour. Chubb replied that that was why he wanted a union, he would not be there. Hall then stated, "Well, sounds to me like if Kroger wants $4.00 an hour and the Union wants $10.00 an hour, and nobody is going to break, there would be a deadlock and if there was a deadlock, they would have to close the store be- cause neither side would agree." Hall denied this conver- sation with Chubb. I credit Chubb, whose testimony was candid, straightforward, and detailed. I find that in this conversation with Chubb, Hall violated the Act in sever- al respects. First, by asking Chubb what his biggest gripe was, Hall was unlawfully soliciting grievances from Chubb. The fact that Chubb may have been a known union adherent might excuse Respondent for certain non- coercive interrogation. It does not, however, give Re- spondent the right to solicit grievances, which is equally coercive regardless of whether the employee is a known adherent. Similarly, I fmd that by asking Chubb how many authorization cards were signed, Respondent vio- lated Section 8(a)(1) of the Act. Such interrogation, even of a known union adherent, is designed to reveal more than his own union sympathies or the reasons for them. It is designed to reveal the sympathies of the employees at large, and I therefore find it to be coercive regardless of the employee to whom it is directed. By offering to bet Chubb that if employees select the Union, they would end up with one-third less than current benefits, Hall was predicting or in effect promising that this would be the result. Such a "promise" (i.e., threat) to reduce benefits because employees select the Union is clearly coercive, Finally, Hall's description of a "simulat- ed" bargaining session carried with it the threat if the Union and Respondent "deadlocked" in bargaining, Re- spondent would close the Brunswick store. Such a threat clearly violates Section 8(a)(1) of the Act, and I so find. Chubb testified that on January 28 he was called to Hall's office around 11:30 a.m. After Chubb had been seated, Hall stated, "Jonathan, I want you to understand very clearly that you do not have to answer this, but I have reliable sources, I don't have proof, but I have reli- able sources that have told me you have been out in the parking lot harassing employees to get them to sign union cards." Chubb did not respond directly. Instead, Chubb asked Hall, "Does that mean on my time and an- other employee's own time, does that mean I can ask them to sign union cards in the public restaurant or in the parking lot as long as we are on our own time?" Hall responded, "No, nowhere on Kroger property. The res- taurant and parking lot are Kroger property." Chubb did not respond, and the conversation terminated. Hall did not testify regarding this conversation and Chubb's straightforward testimony is unrebutted. It is not an adequate defense that in this conversation Hall told Chubb he did not have to answer the charges against him. Any employee, summarily called to a man- ager's office and accused of engaging in specific conduct is, despite such disclaimers, put in a position of feeling compelled to respond. Despite how management's accu- sation is phrased, a response is expected. The employee is forced to choose between responding or remaining silent and suffering the consequences. Not only did Hall interrogate Chubb about his union activities, but he orally promulgated an unlawful no-solicitation rule, which prevented Chubb from soliciting union authoriza- tion cards anywhere on Respondent's property. Our- Way, Inc., 268 NLRB 394 (1983); Birmingham Ornamen- tal Iron Co., 240 NLRB 898, 902 (1979); Essex Interna- tional, 211 NLRB 749 (1974). It is undisputed that employee Elizabeth Dowling was told to remove a union button by Manager Edwards on December 15, 1983, by Manager Hall on December 17, 1983, and by Managers Miller and Turner on January 31, 1984. When Dowling refused to remove the button on January 31, she received a written warning. E. The February 1984 Increase in Wages and Benefits On February 12, 1984, Zone Manager Randall, Person- nel Manager Wood, and Assistant Personnel Manager Williams again visited the Brunswick store and held meetings with employees. During these meetings, Re- spondent announced that employees would be receiving wage increases and that part-time employees would be eligible to receive Respondent's hospitalization benefits for the first time. These wage increases and extended benefits took effect immediately. With regard to the ben- efits that were made available for part-time employees, Respondent told employees this was being done because "in the handbook [given to you when you were hired] you were told that within a year a benefit package would be available for part-time employees." With regard to the wage increases, employees were told, "A review of current wages paid at [this store] and those currently being paid at competitors in Brunswick indi- cate that changes need to be made in order to keep our wages competitive." 676 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The General Counsel argues that the delivery and timing of the announcement of increased benefits and pay raises evidences an attempt to dissuade employees from supporting the Union. The evidence supports this conclusion with regard to the pay increases, but not with regard to the increased benefits. Assistant Personnel Manager Williams testified that benefit packages for part- time employees were extended at other nonunion stores on the individual anniversary dates of those stores. The store in Brunswick opened in May, not in February. Nevertheless, Respondent began hiring employees at the Brunswick store in late February or early March, several weeks prior to the store opening. The "Brunswick Food and Drug Employee Handbook" given to new employ- ees stated in part, "After one year of part-time service • . . a benefit package will be made available to part- time employees." (Emphasis added.) Undisputed testimo- ny reflects that Personnel Manager Wood began efforts to extend benefits to part-time employees at five stores as early as October 1983. Wood worked with Mike Jame- son, manager of insured benefits at corporate headquar- ters in Cincinnati, Ohio, to develop such a plan. On Oc- tober 3, 1983, 2 months before the advent of union activ- ity, Wood wrote to Jameson, enclosed a copy of a pro- posed benefit package for part-time employees, and asked Jameson to "set the wheels in motion for implementing this new plan." Wood received final approval of the ben- efit plan from his superior, Bob Hodge, in early Decem- ber 1983. Wood, however, waited to implement the plan until February 12, not long before the anniversary date of newly hired employees. Although Respondent would no doubt argue that the increase in benefits and the wage increases naturally go hand-in-hand, I view the situation differently. Assistant Personnel Manager Williams testified that Respondent has a standard policy of reviewing wages in its nonunion stores annually. Williams acknowledged the use of an "anniversary date" for such reviews, but it is not clear from his testimony whether the anniversary date used in other stores is the date of the store opening or the date of the first hired employees. We must therefore look fur- ther. Nowhere in the printed handbook given to newly hired employees in March, April, and May 1983 is there any promise, express or implied, that Respondent will review wage rates on a recurring basis. An insert is sta- pled to the last page of that pamphlet reflecting the in- creased wage rates granted to employees on February 12, 1984. It is on that insert where, for the first time, Re- spondent announced: Kroger will conduct wage surveys between the sixth and twelfth month after this scheduled in- crease is in effect to remain current And competitive with other retail food stores in the trade area. It is our intention to see that our employees are provid- ed with competitive wage rates and benefits as re- flected in the trade area. Assistant Personnel Manager Williams testified he trans- ferred to the Atlanta division in July 1983, at which time he was given responsibility for "salary and wage admin- istration for the Brunswick store as well as other groups." Williams testified that because surveys can take several months to complete, he began working on the Brunswick survey sometime in November 1983. He com- pleted the survey and received fmal approval from Per- sonnel Manager Wood and Atlanta Division Vice Presi- dent Bob Hodge in early February 1984. In the fmal analysis, the only explanation Williams gives for choosing the February date to implement a wage increase is that the information and approval needed had been obtained at that time. If Respondent had planned to grant such a wage increase for any ex- tended period, why did Wood and Williams tell employ- ees in the meetings on December 7 and 8 that any in- crease in wages would cause the Brunswick store to gen- erate further accounting losses, which might jeopardize the future existence of the store? If Respondent was planning such a wage increase, Why did Store Manager Hall not tell Chubb about this in their conversation on January 21, rather than chide Chubb for wanting more money than he was already receiving? I find it hard to believe that a store manager such as Hall would not have been aware of a policy to grant annual wage reviews if in fact such a policy existed. I find it even harder to be- lieve that if Hall had been aware wage review was immi- nent he would not have told Chubb about it in their con- versation. In short, the reasons advanced by Respondent for granting a wage increase on February 12, 1984, simply do not ring true. In the end, I am convinced that while Respondent had good reason to extend insurance coverage to part-time employees in February 1984, it seized on that as an opportunity to grant a general wage increase to employees in order to dissuade them from supporting the Union. I find that by doing so, Respond- ent violated Section 8(a)(1) of the Act. F. Other Events of February and March 1984 Employee Manning testified that in late February or early March 1984, Store Manager Hall again approached her and asked if she knew that the Union was having an- other meeting. Manning asked Hall if he wanted her to attend. According to Manning, whom I credit, Hall re- plied, "If you can get someone to go with you, go and find out who is there and how many. . . and what they are saying." Manning attended the meeting as requested that night. The following morning, Manning approached Hall as he sat in the deli restaurant with Meat Manager Lloyd Kerr, Deli Bakery Manager Robbie Turner, and Manager Dugger. Manning simply stated to Hall, "It was the same old crew, nothing to worry about." Manning left. Turner denied hearing Manning report any informa- tion about union meetings to Hall in February or March 1984. However, one could not expect Turner to remem- ber Maiming's brief statement to Hall, much less to place any significance on it at the time. I therefore do not find Turner's denial significant. As I have already stated above, there is no doubt that Manning willingly, and even happily, supplied information to Hall. Nevertheless, I find that Hall was an active conspirator with Manning. As testified to by Manning, in several instances Hall asked Manning to attend union meetings and report back BRUNSWICK FOOD & DRUG 677 to him. I find that by again soliciting Manning on this occasion to obtain information about union meetings, Re- spondent violated Section 8(a)(1) of the Act. Employee Hendrix Ketchup was discharged approxi- mately March 17, 1984. Two or 3 days after he was dis- charged, Hendrix telephoned Respondent's Nashville, Tennessee headquarters to speak with someone in man- agement about his discharge. Someone in the Nashville headquarters contacted Williams, and Williams returned Ketchup's call. Ketchup, who had been discharged for failing to report for work, testified that during the con- versation Williams asked Ketchup if he was in favor of the Union. Ketchup testified he told Williams yes, that he favored the Union. Williams, who was far more be- lievable than Ketchup about the substance of this con- versation, testified Ketchup told him "he had incurred some medical expenses as a result of an on-the-job injury and hadn't been paid yet." Ketchup added, "I lifted something and I pulled a muscle in my back." Ketchup asserted to Williams that while he had officially been ter- minated for "not working his schedule" the three real reasons for his discharge were that he was black, the store managers did not like him, and he was affiliated with the Union. After several more minutes, Williams asked Ketchup what Ketchup wanted him to do. Wil- liams testified: He ended up by saying he just wanted something done about it. I asked him if he wanted his job back, if that was what he was asking me to do for him? He said, no, he didn't want to work there any- more. He just wanted somebody to be aware of it and somebody to get on the managers about it. Williams denied that he asked Ketchup if Ketchup was for the Union, Williams admitted he asked Ketchup to explain what he meant when he said he was fired for not working his schedule. Williams also admits he asked Ketchup why Ketchup thought he was being discrimi- nated against because of his race. It is therefore some- what plausible that Williams might have asked Ketchup if he favored the Union, since Ketchup advanced his union nffiliation as one of the real reasons for his dis- charge. Nevertheless, I found Williams the far more credible and trustworthy witness with regard to his con- versation and I credit his denial. Even if I were to fmd, however, that Williams asked Ketchup if he was for the Union, in the context of this conversation, such a ques- tion would not be coercive. Ketchup had already been discharged. Ketchup initiated the call to Respondent. Ketchup advanced his union affiliation as one of the rea- sons for his discharge. This kind of assertion naturally raises questions about the extent of his affiliation and sup- port for the Union. In that context, therefore, I do not find that Williams' inquiry, even if it occurred, was coer- cive. G. Employee Meetings of August 8 and 9 On August 8, Wood and Randall again went to the Brunswick store. With them were new Zone Manager Jack Fair and Atlanta Division Personnel Manager Gary Preston. On August 8 and 9, Wood, Randall, Fair, and Preston held several meetings with different groups of employees. Wood and Preston had again prepared a "script" which, like the earlier one, was read to employ- ees to and added to by the speakers. The script indicates that several topics were discussed, including the Union having filed a petition for an elec- tion with the Board, Respondent's opposition to the Union, and the closing of several stores in various parts of the country. The script reflects that it was during these meetings Respondent first announced the establish- ment of an employee "complaint procedure." Employees were informed: Here is how the complaint procedure works. Should you have a complaint about working condi- tions, disciplinary action or other similar topics and feel that other avenues (teams, open door, etc.) are not best suited to deal with the complaint, you should write your complaint, giving specifics, to Pete Williams, assistant personal manager, Atlanta. Mr. Williams, along with Mr. Randall and Mr. Preston, will review your complaint and advise you within 10 days of what is being done concerning the complaint. You can be sure that all facts will be considered and any decision will be fair and equita- ble. After advising employees that a petition had been filed with the Board by the Union, the script reflects that em- ployees were told: The union cannot promise any of you that they will be successful in negotiating a collective bargaining agreement which is equivalent to the wages and fringe benefits which you currently enjoy. As we have said many times, the Kroger Company strives to be competitive in the market place in which we operate. The union cannot force the company into any position which we do not agree with. The com- pany's only legal obligation is to negoiate. The script reflects that with regard to store closings, employees were told in part: In other markets across the country, the Kroger Company has taken a firm stand in its position rela- tive to negotiations and has been forced to make difficult decisions regarding the continued operation or total withdrawal from a market place. The most recent examples of this took place in Baton Rouge, Louisiana, Pittsburgh, Pennsylvania; Cleveland, Ohio and Detroit, Michigan. The company is com- mitted to being in a competitive posture with other retailers in the market place. To do otherwise would jeopardize the future for all of us. This script was added to by the speakers. Employee Chubb testified a fellow employee asked if Kroger would close the Brunswick store in the event employees elected the Union. Chubb testified that Wood stated, "Kroger would not close the store because of the Union; howev- er, the high union wages would cause us to become un- competitive and if the store were to become uncompeti- 678 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD tive, they would close the store." Employee Rost testi- fied that in response to a question concerning the closing of stores in the North, Preston informed employees "he was involved with that and that it was definitely closed because the Union had pay raises that priced the stores right out." Wood stated that Respondent "had no plans of closing the Brunswick store at that time, but they may further down the road." According to Rost, whom I credit, Preston and Wood told employees that "if the Union was voted in and we did go into negotiations, when it started—Eon] day I, [there would be a] blank sheet of paper with no benefits, no nothing and we would start negotiating from there and that it was entire- ly possible we would lose everything." Rost testified that in response to a question by employee Pam Young, Pres- ton or Wood also stated "we would lose [the PCS cards] if we went into negotiations." Employee Bonnie Man- ning attended the same meeting as Rost. She, like Rost, recalled the question by employee Pam Young. Manning testified that Young asked if employees would lose their PCS cards if the Union came in to the store. Manning testified that Wood or Randall replied, "Yes." Manning, like Rost, testified that Wood stated, "Once we started negotiations . . . there would be a piece of paper put down, it would go to zero. What we had presently would go to zero and we would start negotiations. We'd go from there with it." Randall testified vaguely about having a private con- versation with employee Pam Young on August 8 deal- ing with the subject of PCS cards. Randall did not testi- fy to such a discussion having occurred in the employee meeting. Randall's testimony does not rebut Rost's and Manning's testimony about those meetings. Preston testified that during one of the employee meet- ings, an employee did ask if they would lose PCS cards if employees became organized. According to Preston, "We told them that wasn't a question we could answer; that the collective bargaining process, what I referred to as, was a give and take process. I can't predict." I do not credit Preston's testimony in this regard. Rather, I found Rost and Manning to be more straightforward and far more believable. Preston also testified about his comments regarding store closmgs. Preston told employees that Kroger stores had closed in Philadelphia, Pennsylvania, because Kroger's main competitor was able to negotiate union wage concessions while Kroger was not. Preston also told of store closings in Pittsburgh, Pennsylvania. Ac- cording to Preston: I told the employees that in Pittsburgh, contrary to popular belief it wasn't a situation of union and non- union. In fact, it was a situation where most of the retailers, the major retailers in the Pittsburgh area are organized. Preston explained that "the problem in Pittsburgh came up when Giant Eagle [Kroger's main competitor] was successful in negotiating concessions with their employ- ees. Kroger was unable to negotiate these same conces- sions. Preston also spoke of store closings in Michigan. Preston admits telling employees "that the Michigan situ- ation was unlike Pittsburgh in that it really was a union/nonunion situation." According to Preston, how- ever, he went on to explain: We found that the growth of the non-union opera- tor growing at tremendous rates and that the union operators were getting smaller and smaller rather than larger and our rate spread was such that it was very difficult to operate. Finally, Preston told employees about store closings in Baton Rouge, Louisiana. With regard to these closings, Preston told employees that Kroger sold approximately a half-dozen stores in Baton Rouge to A&P, which re- opened them as nonunion stores. The testimony of Chubb and Rost agrees with that of Preston that in these meetings on August 8 and 9, store closings by Respondent in various parts of the country were discussed in the context of, and attributed to eco- nomic factors—not to unionization itself. Even though Respondent dwelled at length on store closings, such statements are nevertheless lawful because they convey an economic fact of life—that employees may collective- ly price themselves out of the market—which is not a threat directed at employees for unionization per se. An employer has the right to convey this fact to employees. Certain other statements made by Respondent in these meetings on August 8 and 9 do not fall into this protect- ed category. I credit Rost and Manning that in the meet- ing they attended, Respondent told employees that if it did enter into negotiations, not only would Respondent start with a blank sheet of paper, but employees would have "no benefits, no nothing." What employees had en- joyed "would go to zero." In response to a question by one employee, Respondent repeated in this meeting that employees would lose their PCS cards. By such threats, Respondent violated Section 8(a)(1) of the Act. Lastly, I find that in these meetings on August 8 and 9, Respond- ent established an employee "complaint procedure" in violation of Section 8(a)(1) of the Act. Respondent does not even claim that it had considered such a procedure prior to the advent of union activity. The tenor of the script used in the August 8 and 9 meetings reflects clear- ly that it had not been considered, and that it was a recent innovation. The establishment of such a complaint procedure is the epitome of grievance solicitation. Unlike the situation in Matiposa Press, supra, Respondent did not tell employees it could not make any promises regarding resolution of their problems. In fact, Respondent specifi- cally promised to "advise [an employee] within 10 days of what is being done concerning [your] complaint." Re- spondent therefore either expressly or impliedly prom- ised to remedy employee grievances whenever possible. Therefore, I find that by establishing this "complaint procedure" and expressly or impliedly promising to remedy employee grievances, Respondent violated Sec- tion 8(a)(1) of the Act. H. Other Events of August 1984 On August 8, employee Ricky Strickland wore a union button on his uniform. Strickland was approached by Managers Lloyd Kerr and Don Edwards. Edwards told BRUNSWICK FOOD & DRUG 679 Strickland to remove the union button. 2 Edwards told Strickland that the union pin was not part of the uniform and thus could not be worn. Strickland removed the button. On August 16, Respondent held a "team concept" meeting with employees. Chubb attended one of these meetings about 3 p.m. in the employee breakroom. Chubb had been wearing a union button throughout the workday. As Chubb entered the breakroom for the em- ployee meeting, he was met by Manager Williams. Wil- liams instructed Chubb to remove the button. Chubb asked Williams what would happen if he did not take off the button. Williams replied, "I'll give you two warnings and then I'll have to suspend you, and this is one of the warnings." Chubb called Williams' attention to the "Notice to Employees" posted pursuant to the settlement agreement approved by the Regional Director on July 25. That notice reads in part, "We will not instruct our employees to remove buttons in violation of the Act." Williams responded, "We do not interpret that to mean you can wear a union button." Chubb removed the button. Before the meeting began, Manning entered the breakroom wearing a union button. She was confronted by Williams, who told Manning to remove the button.3 Manning asked Store Manager Clabey, who was with Williams, whether he would suspend her if she refused to take off the button. Clabey responded, "If I have to ask you again, I will." Manning, like Chubb, pointed out to Williams and Clabey the "Notice to Employees." Man- ning stated, "We have a notice by the National Labor Relations Board that you will not ask us to remove but- tons." Williams responded that that was not how Kroger interpreted the notice. Manning removed her union button, but informed Williams and Clabey that further charges would be filed with the Board. On August 22, Strickland again wore a union button to work. Front End Manager Don Edwards approached Strickland shortly after 10 a.m. Edwards told Strickland that the pin was not part of Strickland's uniform, and while Strickland was on company time, Strickland was not to wear the button. Strickland removed the button as instructed. I. The Discharge of Ella Rost On August 8, Ella Rost also wore a union button on her uniform at work. Manager Kerr told Rost to remove the button because it was an unauthorized part of Rost's uniform. Rost protested and referred Kerr to the "Notice to Employees" described earlier. Rost told Kerr, "The 2 The complaint specifically references the Augst 8 incident, but incor- rectly alleges that it was Kerr who instructed Strickland to remove the button. Strickland testified that it was Edwards who spoke. Because Kerr and Edwards approached Strickland together, I view this as a minor dis- crepancy in the complaint to which the pleadings may appropriately be conformed to the proof as covered by the General Counsel's motion at the close of the trial 3 Manning initially testified that this conversation with Williams took place around 1 or 1:30 p.m. Chubb, however, testified that he witnessed the conversation, which took place in the breakroom before the meeting began. Chubb had astounding recall of specific detail, and I found him to be completely candid and credible. I therefore place this conversation be- tween Manning and Williams in the breakroom Just before the "team concept" meeting. Labor Board states that we do have a right to wear the union pin." Kerr repeated that he wanted Rost to take off the pin. Rost did so. On August 22, Ella Rost again wore a union button to work. Manager Kerr noticed Rost wearing the button, and told her to remove it. Rost, again referring to the "Notice to Employees," told Keer that she had a legal right to wear the button and that she was not going to remove it. A few minutes later, Store Manager Clabey approached Rost and told her to remove the union button. Clabey stated that if Rost did not remove the button, she would be suspended for the rest of the day, and if she returned to work the next day wearing the button, she would be suspended for another day. Clabey asked Rost to remove the button. Rost asked Clabey for his request and warning in writing. A few minutes later Rost was called to Clabey's office. Rost was then sus- pended for the remainder of that day and told to report back to work the next morning. When Rost returned to work the following morning, she again wore the union button. Soon thereafter, Kerr asked Rost to remove the button. Rost refused. Kerr then asked Rost to go upstairs to Clabey's office, which she did. Clabey gave Rost the written suspension notice from the previous day. Clabey then told Rost to remove the union button from her uniform. Rost replied, "No." According to Rost, whom I credit, Clabey then "again stated Kroger's policy of not wearing unauthorized but- tons on the authorized uniform. . . ." Clabey told Rost that if she continued to wear the button, she would be suspended for 3 days. Clabey told Rost to remove the button or leave the store. Rost again refused to remove the button, at which time she was given a 3-day suspen- sion. Rost was told to go downstairs and wait for copies of her suspension notice. Rost left the office, punched out on the timeclock, and went to the deli-restaurant where she purchased a cup of coffee. A few minutes later, Rost was again called to Clabey's office, where she was given the 3-day suspension notice. Rost then re- turned to the deli-restaurant. Rost sat down and contin- ued to drink the coffee that she had previously pur- chased. A few minutes later, Kerr and Clabey passed the deli-restaurant and saw Rost still in her uniform wearing the union button. Rost credibly testified: [clabey] told me that even though I was off the clock, I was still in uniform, I was not entitled to wear a union button, and I had 15 minutes to take it off or I would be fired. Rost refused to remove the button. Approximately 20 minutes later, Rost was again called to Clabey's office. Rost was given a termination notice stating, "Ella Rost is being terminated for failure to follow a direct order given by a member of management." J. Events of September 1984 Employee Charles Hicks was promoted to lead clerk in early August 1984. Hicks testified that in early Sep- tember Grocery Manager Jerry Miller approached him one day while Hicks was on break. According to Hicks, who I credit, Miller took a notebook from his shirt 680 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD pocket and stated that Store Manager Clabey wanted Miller to make a list of who was for and who was against the Union within the grocery department. Hicks replied that he thought it was illegal for Miller to do that. Miller agreed, but repeated that he still had to form the list. Miller then began to read aloud the names of employees in the grocery department. After reading each name, Miller stated whether he thought the employee was for or against the Union. Miller paused after each comment, as if awaiting a response from Hicks. Hicks testified that he "primarily went along with him." It is undisputed that Miller did not ask Hicks about his own union sympathies. After going through the list, Miller commented that it appeared only two employees were for the Union, and he stated that it really did not matter if the Union came in since wages would stay the same. The conversation ended. Miller was not called as a wit- ness by Respondent, and there is no evidence contradict- ing Hicks' otherwise credible testimony. I find that the conversation occurred as described by Hicks. There can be little doubt that Miller effectively interrogated Hicks about the union sentiments of his fellow employees, and I fmd that Miller's actions violated Section 8(a)(1) of the Act. A Board-conducted election was scheduled to be held at Respondent's Brunswick facility on September 21, 1984. On September 19, Respondent held a meeting of employees at the local Ramada Inn as a part of its elec- tion campaign. Attendance was mandatory. Employees wore street clothes to the meeting, however, not work uniforms. Nevertheless, it is undisputed that employees Charles Hicks and Bonnie Manning were required by Respondent to remove union buttons they were wearing prior to entering the meeting. On September 21, the Board-conducted election took place as scheduled. The Union received a majority of the valid votes cast. On September 22, the day after the election, Bonnie Manning had a brief conversation with a fellow employ- ee named Evelyn, whose last name Manning could not recall. Manning congratulated Evelyn for a recent pro- motion from part-time employee to a full-time meatwrap- per. Other employees were also present during the con- versation. That afternoon, Manager Kerr approached Manning on the sales floor. Kerr told Manning, "Union or no union, promotions and pay raises is none of your damn business." Manning asked, "Are you talking about Evelyn?" Kerr replied, "Yes." Kerr did not testify re- garding this conversation, and I credit Manning. By tell- ing Manning that she could not communicate with other employees about promotions and pay raises, Respondent violated Section 8(a)(1) of the Act. For years the Board has recognized that to stifle communication between em- ployees about such matters is to choke off collective bar- gaining at its roots. Salt River Valley Water Users Assn., 99 NLRB 849 (1952); Root-Carlin, Inc., 92 NLRB 1313 (1951). The Board has uniformly held such action to vio- late the Act. Coosa Valley Convalescent Center, 224 NLRB 1288 at fn. 1 (1976). Jeannette Corp., 217 NLRB 653 (1975), enfd. 532 F.2d 916 (3d Cir. 1976). On September 22, the day after the Board-conducted election, employee Charles Hicks reported for work 2 hours late. Hicks received a 3-day suspension. On the morning of the next day, September 23, Hicks went to Respondent's store for a "team meeting." The meeting was canceled. While Hicks was at the store, he was sum- moned to Store Manager Clabey's office. Hicks and Clabey disagree about what happened during the ensuing conversation. Hicks testified Clabey opened the conver- sation by telling Hicks that he (Clabey) did not give a damn whether the Union was in the store or not, Clabey did not see how an intelligent adult like Hicks would have anything to do with the Union. According to Hicks, Clabey "mentioned that stores up North had closed because of the Union." Hicks testified he replied that Clabey could not make him believe a store doing a million dollars a month business, which the Brunswick store was then doing, would be closed. Clabey respond- ed, "Anything is possible." Hicks testified that during this conversation Clabey asked Hicks what the Union had offered him to vote for the Union. Finally, Hicks testified that Clabey stated he did not feel Hicks was the right man for the lead clerk job. Clabey testified that the purpose of the conversation with Hicks concerned Hicks' suspension for tardiness. Hicks' tardiness on September 22 was the third such in- stance during August. According to Clabey, he warned Hicks that "this is not the type of thing that a lead clerk should be late, he should be setting an example." Clabey admits telling Hicks that Clabey "was beginning to wonder if we had made a mistake with promoting him to lead clerk." Clabey testified, however, that this remark was made solely in the context of Hicks' repeated tardi- ness and suspension. According to Clabey, Hicks assured Clabey he could do the job as lead clerk, and Clabey re- plied, "Well, time will tell, we'll see." Clabey acknowl- edges there was discussion during this conversation con- cerning the Union. According to Clabey, Hicks said he hoped there were not any hard fellings on Clabey's part regarding the union organizing campaign. Clabey testi- fied he assured Hicks that there were not. Clabey denied that there was any discussion during the conversation with Hicks about stores closing because of the Union. However, immediately after that denial, in response to a second question whether there was any discussion about the closing of stores during the conversation with Hicks, Clabey then replied, "I don't recall, there might have been." I have little doubt that Clabey's ostensible reason for initiating this discussion with Hicks was Hicks' tardiness and the suspension that resulted on the evening prior to this conversation between Clabey and Hicks. Respondent points out that although a charge was filed over Hicks' suspension, that charge was dismissed. As a result, Re- spondent argues, "In these circumstances there can be no findings here that Clabey's concern about Hicks' contin- ued lead clerk status was anything but legitimate and noncoercive." I cannot agree. Although I credit Clabey that this conversation with Hicks started ostensibly to discuss with Hicks his tardiness and the resulting suspen- sion, I do not credit the remainder of his testimony. I credit Hicks that Clabey made the remarks to which Hicks testified. More specifically, I find that Hicks ex- BRUNSWICK FOOD & DRUG 681 pressed disbelief Respondent would consider closing the Brunswick store because of the Union in view of its sub- stantial dollar volume of sales. I credit Hicks that Clabey responded, "Anything is possible," and I find that Cla- bey's statement constituted a poorly disguised threat. I further find that it was in the context of the discussion regarding the Union, Clabey told Hicks he did not feel Hicks was the right man for the lead clerk job. I fmd that in doing so Clabey issued another poorly disguised threat to retaliate against Hicks because of his support for the Union. By doing so, Clabey violated Section 8(a)(1) of the Act. At the time Hicks was promoted to lead clerk in early August 1984, Hicks was due a 6-month "merit" increase of 25 cents per hour. According to Hicks, who I credit, Store Manager Hall told Hicks that in addition to the scheduled 6-month increase of 25 cents per hour, Hall would recommend that Hicks receive an additional 25- cent-per-hour increase as a result of the promotion to lead clerk. It is undenied Hall also told Hicks that if Hicks was still holding the lead clerk job in September, he would be raised to $6 per hour. Hicks did in fact re- ceive the 6-month increase of 25 cents per hour and the additional 25 cents per hour recommended by Hall short- ly after Hicks became leadperson. In early September 1984, Store Manager Hall was replaced by Clabey. Hicks asked Clabey if Clabey was aware that he was supposed to receive a raise to $6 per hour at the end of September. Hicks testified Clabey responded that he was aware of this. Hicks also asked Clabey if the union business or the election scheduled for September 21 was going to inter- fere in any way with his raise. CIabey said it would not, and offered to give Hicks that assurance in writing. Hicks told Clabey that Clabey's word was good enough for him. According to Hicks' undenied testimony, Clabey added, "You have my word, you will receive your raise at the end of September." During the first or second week of October, Hicks again approached Clabey about the raise. Clabey then told Hicks that he and Gro- cery Manager Jerry Miller would be on vacation soon, but when they returned "he would have Miller put it through." Near the end of October, Hicks asked Miller about the raise. Miller simply responded, "No." Later that same day, Miller told Hicks that he was not sure, but he thought there was some type of freeze on raises because of the Union. Miller told Hicks that if he had any futher questions he should speak to Clabey. Hicks went immediately to Clabey and inquired about the pay raise. Clabey said he would check with Assistant Person- nel Manager Pete Williams. Approximately 1 to 2 weeks after this conversation, Clabey told Hicks that there was a freeze on merit increases and that Hicks' next raise would be his usual scheduled raise based on length of service. Hicks never received the promised raise to $6 per hour. Hall did not deny promising Hicks the raise to $6 per hour if he was still in the lead clerk position in Septem- ber 1984. Neither did Clabey deny renewing the promise to Hicks when Clabey became store manager. Respond- ent apparently considers the fact that Hicks was suspend- ed for 3 days for tardiness shortly after the election to be a self-evident reason for withholding the increase from Hicks. In its brief, Respondent argues simply that "there is no basis to the allegation that Hicks' performance war- ranted a 'merit' increase." The point, however, is not whether the General Counsel has established that Hicks warranted a "merit" increase. The point is that Hicks was promised an increase and it was not given to him. Hicks' unrebutted testimony is that he was told that his promised wage increase was frozen "because of the Union." This is not denied by Respondent. I therefore find that by withholding Hicks' promised wage increase because of the Union, Respondent violated Section 8(a)(1) and (3) of the Act. K. Ejection of Union Representatives From Respondent's Facility In the weeks preceding the Board-conducted election, union representatives made frequent visits to the Bruns- wick store. It was common for them to eat in the deli- restaurant and, while there, talk with employees who were off work or on break. The first time union representatives returned to the store following the election was on October 11. Store Manager Clabey was absent that day, and Kerr had been left in charge. Clabey instructed Kerr that if union repre- sentatives showed up in the store during his absence, Kerr was to telephone Preston in the Atlanta division office. When Union Representatives Curtis Williams and Mitchell Harden came to the store on October 11, they first walked the entire perimeter of the store, exchanging brief greetings with employees. In the dairy department, Williams and Harden stopped and spoke to employee Carlos Inacio for 1 or 2 minutes. Kerr testified that during this conversation Inacio stopped working. Inacio, whom I credit, testified that during this conversation he continued stocking dairy shelves. After the conversation with Inacio, Williams and Harden proceeded to the deli- restaurant, where they purchased food and sat down. As soon as Kerr saw Williams and Harden in the store, he telephoned Gary Preston, as he had been di- rected to do. Preston instructed Kerr to ask Williams and Harden to leave the store and, if they refused, to call the police and have them removed. Kerr did as he was in- structed. Kerr, accompanied by Manager Robbie Turner, approached Williams and Harden and asked them to leave the store. Employee Bonnie Manning was sitting with Williams and Harden at the time. Manning asked Kerr, "Why in the hell after nine months they were just now asking these two gentlemen to leave." Williams told Kerr that he and Harden "were not going anywhere." Kerr then telephoned the police and had Williams and Harden removed from the store. Approximately 15 minutes later, Williams and Harden returned to the store. Kerr again watched them from the upstairs office. On this occasion, Williams and Harden walked through the store and then left. Apparently they spoke to no one and purchased nothing. Then, approxi- mately 30 to 45 minutes later, Williams and Harden re- turned to the store a third time. On this visit, Williams and Harden again took their usual route around the pe- rimeter of the store. When Kerr saw Williams and Harden enter the store for the third time, he left the 682 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD office and proceeded toward the back of the store. Kerr testified that as Williams and Harden approached Inacio, Kerr heard Inacio holler to Williams and Harden, "Hey, did you hear about Bonnie? Isn't that something!" I credit Kerr. Kerr then observed Williams and Harden stop and speak to Inacio for another minute or two. Kerr overheard Williams or Harden comment, "Bonnie can take care of herself. We'll see you later." Kerr again called the police and had Williams and Harden removed from the store. Williams and Harden were warned that they would be charged with criminal trespass if they showed up at the store again. In support of the argument Respondent violated Sec- tion 8(a)(1) of the Act by evicting union business agents from its public deli-restaurant, the General Counsel cites Montgomery Ward & Co., 263 NLRB 233 (1982). Re- spondent relies on the seminal case May Department Stores Co., 59 NLRB 976 (1944), dealing with no-solicita- tion rules. May Department Stores, however, does not deal with removal of union representatives from store premises. Rather, it simply formulated the now well-set- tled rule that in a retail establishment an employer may not lawfully establish a rule that prohibits union solicita- tion off the selling floor during nonworking hours. Re- spondent implies that in removing Williams and Harden from its store it was simply enforcing a valid rule prohib- iting them from soliciting or disturbing employee Carlos Inacio while Inacio was on the selling floor working. Re- spondent argues in its brief, "The removal of. . . Wil- liams and. . . Harden. . . turns upon a narrow issue of fact: Did the union agents disrupt Carlos Inacio while he was at work and before Kerr had them removed?" I have found that Inacio's work was not disturbed, and that he continued stocking shelves. Nevertheless, I do not agree with Respondent that resolution of the issue turns on this narrow fact. Rather, I find that Respond- ent's reliance on May Department Stores is misplaced. Throughout the period relevant to this case, Respondent did not have a valid no-solicitation rule that was uni- formly and lawfully applied, whether to employees or to the union agents who frequented Respondent's store in the weeks before the election. As to employees, Re- spondent prohibited them at times from soliciting any- where on Respondent's premises at any time. As to union agents, prior to the election Respondent did not at- tempt to prevent, limit, or in any way restrict their visits to the store or their behavior while in the store. If Re- spondent objected to them walking the perimeter of the store saying hello to employees who were working, Re- spondent may well have lawfully restricted them from doing so, requiring instead that they go directly to the deli-restaurant to meet only with employees who were not working. Montgomery Ward & Co., supra, fn. 1 and cases cited therein. Respondent never attempted to do so. Instead, it was only after the Union won the election, and I believe in response to that, that Respondent decid- ed to prevent further visits to the store. The evidence is very clear that it was not the 1- or 2-minute conversation with Inacio that caused Respondent to evict the union representatives from its store. It was their mere presence in the store after winning the election that caused that. This is shown very clearly by the fact that Clabey, who was not in the store that day, had left instructions with Kerr to telephone Atlanta division headquarters if union representatives came to the store. Respondent had al- ready decided to take action. When Respondent did have Williams and Harden removed from the store, Respond- ent warned them not to come back. It was obviously Re- spondent's purpose and intention to prevent union repre- sentatives from coming to the store at all, not just to limit their visits in some lawful manner. There is no evi- dence that Williams or Harden attempted to use the public snackbar in any manner inconsistent with its pur- pose. Accordingly, I find that by having union represent- atives evicted from the snackbar Respondent violated Section 8(a)(1) of the Act. Montgomery Ward & Co., supra. L. The Discharge of Bonnie Manning On October 11, employee Bonnie Manning was given a 3-day suspension. At the end of that suspension, she was terminated Manning's suspension and termination were precipitated by something that happened while Union Representatives Williams and Harden were being confronted and removed from Respondent's deli-restau- rant by police the first time on October 11. Manning and employee Kelly Jacobs testified that while Williams and Harden were being confronted by police, Manning was asked what was going on by a cus- tomer sitting in the deli-restaurant. Manning and Jacobs assert that Manning, speaking in a normal tone of voice, told the customer, "Sir, I apologize for management, but as an employee there is nothing I could do." Numerous witnesses presented by Respondent, including other em- ployees, paint a considerably different picture. Employee Cathy Austin testified that after Harden and Williams were asked by police to leave the store, Man- ning "jumped up from her seat" and "paced around." On her own initiative, Manning then turned to customers sit- ting in the deli-restaurant and said that "she'd like to apologize for the ignorance of management." Austin tes- tified that Manning "stomped out" and returned to her work area behind the service area in the deli. According to Austin, Manning had become "real excited" and kept repeating that she apologized for the ignorance of man- agement. Austin testified she heard Manning make this statement "at least three times." Other employees, in- cluding Mary Hardwick, Rena Hyers, and Leslie Bradley testified to having heard identical or similar comments made by Manning. The General Counsel argues that Hardwick and Bradley were not in a position to have ob- served or overheard Manning. I disagree. Further, I found their testimony to be detailed, candid, and wholly credible. Although I found Manning's testimony regard- ing her conversations with Hall to be candid, I cannot say the same thing about her testimony concerning her discharge. Manning's description of her discharge left me with the distinct impression she was fabricating testimo- ny where necessary. Kelly Jacobs impressed me as a thoroughly biased witness whose only purpose in testify- ing was to advance her position with those people she saw as her comrades I credit employees Austin, Hard- wick, Hyers, and Bradley. I conclude that Manning BRUNSWICK FOOD & DRUG 683 indeed took it upon herself, after she saw that police were confronting Williams and Harden, to approach cus- tomers on her own and "apologize for the ignorance of management." The General Counsel argues that an employer may not provoke an employee to commit an indiscretion and then seize on the opportunity to discharge the employee. Re- spondent, on the other hand, argues that Manning's con- duct was both disloyal and unprotected. The cases cited by Respondent4 contain excellent discussion about cir- cumstances in which concerted activity may nevertheless be unprotected because it is disloyal. They do not defi- nitely resolve the issue in this case, however, because they do not involve disloyal conduct that is precipitated or provoked by the employer's own unlawful action. At least two cases cited by the General Counsel, Golden Day Schools, 644 F.2d 834 (9th Cir. 1981), and State County Employees, Louisiana Council No. 17, 250 NLRB 880 (1980), are more on point. Both deal with allegedly disloyal conduct provoked by the employer's own un- lawful actions. I note, however, that in Golden Day Schools the question was whether such conduct should bar reinstatement, not whether the discharge itself was unlawful, and therefore a standard was applied that is not altogether applicable here. The Board's decision in Louisiana Council No. 17, supra, articulates the standard by which the instant case should be resolved: We have adhered to the principle that "[a]n em- ployer cannot provoke an employee to the point where [the employee] commits . . . an indiscretion . . and then rely on this to terminate [the] employ- ment?' Thus where, as here, the employer's wrong- ful provocation is serious and compelling, we will permit the employee a certain amount of leeway in response. As the court stated in M B Headware Co. [349 F.2d 170, 174 (4th Cir. 1965)] The more extreme an employer's wrongful provocation the greater would be the employee's sense of indignation and the more likely its exces- sive expression. The standard to be used in resolving a case such as this necessarily requires a balancing test. The employer's wrongful provocation must be balanced against the em- ployee's reaction. There can be little doubt that calling police to forcibly remove someone from a public restau- rant is extreme. I must also note, however, that this "provocation" Was directed at union representatives Wil- liams and Harden, not at Manning. Manning could have chosen to remain a bystander or witness, as other em- ployees did. Instead, she chose to exacerbate the con- frontation. If Manning had reacted with a verbal barrage directed solely at Respondent's management, her con- duct might also be considered more understandable and more excusable. Instead, Manning chose to draw custom- ers into the incident by directing her comments to them. Lastly, if Manning's comments had been brief and short- lived, they might be more excusable even if directed at a 4 Bird Engineering, 270 NLRB 1415 (1984), American Arbitration Assn., 233 NLRB 71(1977); Giant Open Air Market, 231 NLRB 945 (1977). customer. Instead, Manning continued to "rant and rave" even after she returned to her work area. I must also note that this was not the first time Manning had lost her temper and released a verbal barrage in front of custom- ers. She had done so twice before. The first time she was warned that such conduct was unacceptable. The second time she was suspended for the remainder of that work- day. It cannot be said, therefore, that Respondent had ever tolerated or excused such conduct when it was un- related to union activity. Considering all the circum- stances surrounding the incident that precipitated Man- ning's discharge, I am persuaded that while Respondent provoked, or at least caused, the situation, Manning's conduct was so excessive and extreme that it must lose any protected nature it might otherwise have. Accord- ingly, I find that Respondent did not violate Section 8(a)(1) or (3) of the Act when it discharged Manning. M. Discussion, Analysis, and Conclusions Regarding the Removal of Union Buttons and the Related Discharge of Ella Rost The General Counsel argues that by requiring employ- ees to remove union buttons, by reprimanding employees for failing to do so, and by discharging Ella Rost for re- fusing to do so, Respondent violated Section 8(a)(1) of the Act. Respondent argues that it maintained and en- forced a uniform and lawful rule prohibiting employees from wearing union buttons and other insignia except those issued to employees by Respondent. The evidence is overwhelming, and largely uncontra- dieted., that on numerous occasions Respondent required employees to remove union buttons that they were wear- ing at work. These prounion buttons were small, clip-on buttons approximately 1-1/4 inches in diameter. The but- tons bore one of two inscriptions: Either "Vote Yes Retail Clerks Union AFL-CIO" or "Vote Yes UFCW AFL-CIO." When employees refused to remove the but- tons, they were issued written warnings. Employees Rost, Chubb, and Dowling were among those who re- ceived written reprimands. On August 22 and 23, 1984, when employee Rost refused to remove such a union button, she was first suspended and eventually dis- charged. Most of the instances when Respondent required em- ployees to remove buttons such as those described above involved employees wearing such buttons on their uni- form while working on Respondent's sales floor. The evidence is very clear, however, that Respondent re- quired employees to remove such buttons at other times as well. Employees Chubb and Manning were required to remove union buttons prior to entering a "team con- cept meeting," which was being attended only by em- ployees and was being held in a breakroom frequented only by employees. Employee Rost was discharged for refusing to remove a union button at Respondent's direc- tion even though she had clocked out and was not on Respondent's worktime. Employees Hicks and Manning were required by Respondent to remove union buttons prior to entering a meeting that Respondent held at a local Ramada Inn as a part of its election campaign. On this occasion, attendance was mandatory and employees 684 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD were being paid, but employees were not even in uni- form and were not working. The evidence is overwhelm- ing that Respondent maintained a complete ban against employees wearing union buttons, which it applied to nonselling areas as well as selling areas of its store, and which it applied to nonworktime as well as worktime. Respondent's ban on wearing union buttons was applied even to times when employees were "on the clock" but neither working nor in uniform. The Board recently stated in Burger King Corp., 265 NLRB 1507 (1982): It is well settled that, in the absence of special cir- cumstances, an employee's wearing a union button at work is protected activity under Section 7 of the Act. Republican [sic] Aviation Corporation v. N.L.R.B., 324 U.S. 793 (1945). Respondent argues, and the Administrative Law Judge concluded, that Griggs' contact with customers constituted such a special circumstance, reasoning that Respondent seeks to project a neat, standard appearance by its employees and is therefore justified in prohibiting employees with substantial customers contact from wearing union buttons. However, "mere contact with customers is not a basis for barring the wear- ing of union buttons," and absent "substantial evi- dence that the button affected Respondent's busi- ness or that the prohibition was necessary to main- tain employee discipline," requiring the removal of such a small, nonprovocative button is unlawful. Virginia Electric and Power Company, 260 NLRB 408 (1982). Accord: Floridan Hotel of Tampa, Inc., 137 NLRB 1484, 1486 (1962); Consolidated Casinos Corp. Sahara Division, 164 NLRB 950, 950-951 (1967). In order for an employer to justify any restriction on the right of employees to wear a union button at work, it is the employer's burden to establish that "special cir- ctunstances" exist that warrant such restrictions. Re- spondent made no effort to establish such special circum- stances that would warrant it from prohibiting employees from wearing union buttons, whether on or off the sales floor. Instead, Respondent simply argues that such but- tons necessarily "connoted militancy and . . . triggered friction" on the part of employees who opposed the Union. In fact, Respondent itself paid for and distributed to union opponents "Vote No" buttons, which were ap- proximately 3 inches in diameter. There is no evidence of any incident between union proponents and union op- ponents that necessitated the ban on union buttons. The main thrust of Respondent's position on this issue, however, is not that there was some unusual incident that justified the banning of union buttons. Respondent's main argument is that it simply enforced a consistent rule which it had not issued to employees or approved, pro- hibiting the wearing of any insignia on employee work uniforms. Respondent's "employee handbook" contains the following rules: Basic Dress Regulations: In the best interest of customer satisfaction, cus- tomer service, and employee safety, the following guidelines for employee dress and appearance are to be observed. All employees- 1. The authorized Kroger uniform (clean and neat) is to be worn at all times while on duty. 2. Conspicuous or garish jewelry will not be per- mitted. 5. A Kroger name badge will be visibly worn at all times while on duty. Respondent argues that in prohibiting employees from wearing union buttons, it was simply enforcing a consist- ent rule against wearing "conspicuous or garish jewel- ry." The evidence, however, reflects that Respondent did not strictly enforce its rule in such a manner that em- ployees in fact maintained a uniform appearance. From time to time, employees were issued various trinkets pro- moting various products or services offered by Respond- ent. Some employees wore these and some did not. Some employees continued wearing the trinkets on their uni- form long after the special promotion ended. Some em- ployees wore trinkets of their own that were not issued by Respondent. The result was that different employees wore different trinkets at different times. The uniformity, to the extent there was any, was not in the trinkets and badges worn by employees but solely in the uniform itself. This lack of uniformity is actually reflected as well in Respondent's rule quoted above. The rule does not prohibit the wearing of all trinkets and insignia except those issued by Respondent. The rule does not even ban the wearing of all jewelry. Rather, the rule simply bans the wearing of "conspicuous or garish" jewelry. This was in fact the literal rule followed prior to the advent of union buttons of the record is clear that prior to that time, employees wore personal trinkets and jewelry without incident. When employees began to wear union buttons, Respondent prohibited them from doing so at all times when they were either wearing the Kroger uni- form or were "on the clock." This policy is the complete antithesis of what an employer may lawfully prohibit under any circumstances. Albertson s, Inc., 272 NLRB 865 (1984). Respondent argues that in Albertson 's, the Board "limited the protection provided the wearing of union buttons." The decision in Albertson's implies that the current Board would find lawful a rule prohibiting the wearing of union insignia provided it permits em- ployees the right to wear such insignia in nonselling areas, and does not apply to employee breaktimes when employees are not working. Such a policy might well represent a departure from the standard enunciated and quoted above in Burger King Corp., supra. However, whether the Board has or will adopt such a new criteria is purely academic as it relates to this case, for it is crys- tal clear that Respondent maintained and enforced a rule prohibiting employees from wearing union insignia both in nonselling areas and on nonworktime. Accordingly, under any test that the Board has used in the past, whether it be the standard enunciated in Burger King Corp., or the standard applied in Albertson '5, Respond- BRUNSWICK FOOD & DRUG 685 ent's rule prohibiting employees from wearing union but- tons violated Section 8(a)(1) of the Act. Accordingly, I also find that discipline imposed by Respondent pursuant to this unlawful rule, including the written warnings issued to employees, as well as the suspension and even- tual discharge of Ella Rost, violated Section 8(a)(1) of the Act. It is unnecessary to decide if Respondent could have had a lawful rule pursuant to which some of its ac- tions in this case might lawfully have been undertaken. It is enough that all times relevant to this case Respondent enforced a rule that was unlawful and that, pursuant to that unlawful rule, Respondent took the actions that it did. It has long been recognized that discipline imposed pursuant to an unlawful rule is itself unlawful. CONCLUSIONS OF LAW 1. The Respondent, The Kroger Company, d/b/a Brunswick Food and Drug 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 No. 1063, chartered by the International Food and Commercial Workers International Union, AFL-CIO- CLC is a labor organization within the meaning of Sec- tion 2(5) of the Act. 3. On December 6 and 7, 1983, January 12, 1984, and in late February or early March 1984, Store Manager Hall asked employee Bonnie Manning to attend union meetings and report back to him what took place at those meetings, and otherwise conspired with Manning to learn what he could about the union campaign, and Respondent thereby violated Section 8(a)(1) of the Act. 4. In meetings with employees on December 7 and 8, 1983, Respondent explicitly linked certain store closures to unionization by employees; threatened employees that if the Union came in, employees would lose their "PCS cards"; threatened employees that if the Union was voted in, when negotiations began, employees would lose all benefits; and solicited grievances from employees; and Respondent thereby violated Section 8(a)(1) of the Act. 5. In a conversation in mid-January 1984, Store Man- ager Hall told employee Ella Rost that he wanted her to "reconsider being for the Union," and Respondent there- by violated Section 8(a)(1) of the Act. 6. On January 21, 1984, Store Manager Hall solicited grievances from employee Jonathan Chubb; interrogated Chubb about the number of authorization cards that had been signed by employees; threatened to reduce benefits if employees selected the Union; and threatened that if the Union and Respondent "deadlocked" in bargaining, Respondent would close its Brunswick store; and Re- spondent thereby violated Section 8(a)(1) Of the Act. 7. On January 28, 1984, Store Manager Hall interro- gated employee Jonathan Chubb about his activities in soliciting authorization cards from fellow employees and, in the same conversation, promulgated an unlawful no- solicitation rule, which prevented Chubb from soliciting union authorization cards anywhere on Respondent's property, and Respondent thereby violated Section 8(a)(1) of the Act. 8. In February 1984 Respondent extended insurance coverage to part-time employees for reasons unrelated to union activity, and Respondent did not violate Section 8(a)(1) of the Act by doing so. 9. In February 1984 Respondent granted employees a general wage increase in order to dissuade them from supporting the Union, and Respondent thereby violated Section 8(a)(1) of the Act. 10.During meetings with employees on August 8 and 9, 1984, Respondent threatened the employees that if it entered into negotiations with the Union, employees would have no benefits and what they had enjoyed "would go to zero"; threatened employees that if they selected the Union they would lose their "PCS cards"; and solicited grievances from employees by establishing an employee "complaint procedure"; and Respondent thereby violated Section 8(a)(1) of the Act. During that same meeting, Respondent discussed store closings that it had made in various parts of the country, but it attrib- uted such closings solely to economic factors—not to unionization itself—and Respondent did not thereby vio- lation Section 8(a)(1) of the Act. 11. During early September 1984, Grocery Manager Jerry Miller interrogated employee Charles Hicks about the union sentiments of his fellow employees, and Re- spondent thereby violated Section 8(a)(1) of the Act. 12. On September 22, 1984, Manager Kerr told em- ployee Bonnie Manning that she could not communicate with other employees about promotions and pay raises, and Respondent thereby violated Section 8(a)(1) of the Act. 13. On September 23, 1984, Store Manager Clabey threatened employee Charles Hicks with possible store closure as a result of employees selecting the union as their collective-bargaining representative and threatened to retaliate against Hicks by removing Hicks from his position as lead clerk because of his support for the Union, and Respondent thereby violated Section 8(a)(1) of the Act. 14. During September 1984 Respondent withheld a promised wage increase from employee Charles Hicks because of the Union, and Respondent thereby violated Section 8(a)(1) and (3) of the Act. 15. On October 11, 1984, Respondent caused union representatives Curtis Williams and Mitchell Harden to be evicted from Respondent's public snackbar, although they were using the snackbar in a manner consistent with its purpose, and Respondent thereby violated Section 8(a)(1) of the Act. 16, On October 11, 1984, Respondent discharged em- ployee Bonnie Manning because of conduct by her that is not protected by the Act, and Respondent did not thereby violate Section 8(a)(1) or (3) of the Act. 17. Throughout the period relevant to this case, Re- spondent maintained and enforced a rule prohibiting em- ployees from wearing union buttons anywhere on Re- spondent's premises or at any time they were on Re- spondent's payroll, including nonselling areas of Re- spondent's facility and nonworkingtime, and Respondent thereby violated Section 8(a)(1) of the Act. In further- ance of this unlawful rule, Respondent issued written warnings to various employees, including employees Rost, Chubb, and Dowling. In addition, Respondent sus- 686 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD pended and later discharged employee Rost. By each of these actions Respondent violated Section 8(a)(1) of the Act. 18. The unfair labor practices that Respondent has been found to have engaged in, as described above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices in violation of Section 8(a)(1) and (3) of the Act, I shall recommend that it be ordered to cease and desist therefrom and to take certain affirmative action designed to affectuate the policies of the Act.5 On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed 6 ORDER The Respondent, The Kroger Co., d/b/a Brunswick Food and Drug, Brunswick, Georgia, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Requesting employees to attend union meetings and report what takes place at those meetings, and otherwise conspiring with employees to learn what it can about union activities among employees. (b) Expressly and/or impliedly threatening employees to close the Brunswick store if employees select a union to represent them or if management should become "deadlock" in negotiations with a union. (c) Telling employees that it wants them to reconsider their support for the Union. (d) Threatening employees that if they select the Union to represent them, employees will lose their "PCS card" or any other benefits. (e) Promulgating an unlawful no-solicitation rule that prevents employees from soliciting union authorization cards anywhere on Respondent's property. (f) Granting employees wage increases in order to dis- suade them from supporting the Union. (g) Soliciting grievances from employees and promis- ing, either expressly or impliedly, to remedy such griev- ances. 5 The Charging Party filed a bnef with me in which it requests that a broad ,cease-and-desist order be issued and in which it asks that Kroger be required to have management personnel read the Board's Order to em- ployees. I find no justification for requiring Respondent to read the Board's Order to employees The record reflects, however, that Respond- ent's unfair labor practices have been repeated and pervasive. After once entering into a settlement agreement pursuant to which it agreed not to engage in various kinds of unlawful conduct, Respondent thereafter con- tinued to engage in repeated violations of the Act. In view of these cir- cumstances, a broad cease-and-desist order is warranted. Htckmott Foods, 242 IsiLRB 1357 (1979). IF no exceptions are filed as provided by Sec. 102.46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec. 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses' (h) Interrogating employees about their union activities and sentiments, and the union activities and sentiments of their fellow employees. (i) Telling employees that they cannot communicate with other employees about promotions and pay raises. (j) Threatening to retaliate against employees by re- moving them from the positions that they hold because of their support for the Union. (k) Withholding promised wage increases from em- ployees because of the Union. (1) Causing union representatives to be evicted from Respondent's public snackbar, although they are using the snackbar in a manner consistent with its purpose. (m) Promulgating, maintaining, and enforcing an overly broad rule that prohibits employees from wearing union buttons, issuing written warnings to employees, and discharging employees for violating such a rule. (n) In any other manner interfering with, restraining, or coercing employees in the exercise of rights guaran- teed them in Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Extend to employee Charles Hicks the wage in- crease promised to him and withheld from him because of the Union, and make Hicks whole for any loss of earnings or benefits he may have suffered by paying him the raise retroactively to October 1, 1984, with appropri- ate interest. (b) Remove from its files the written reprimands issued to employees Rost, Chubb, and Dowling for violating Respondent's unlawful rule prohibiting employees from wearing union buttons, and notify them in writing that this has been done and that evidence of the unlawful warnings will not be used as a basis for future personnel actions against them. (c) Offer Ella Rost immediate and full reinstatement to her former position or, if that position no longer exists, to a substantially equivalent position without prejudice to her seniority and other rights and privileges. (d) Make whole Ella Rost for any loss of earnings or benefits she may have suffered by reason of the discrimi- nation against her and payment to her of a sum of money equal to the amount she normally would have earned from the date of the discrimination to the date of Re- spondent's offer of reinstatement, less net interim earn- ings, with backpay to be computed in the manner pre- scribed in F. W Woolworth Co., 90 NLRB 289 (1950), with interest to be computed in the manner prescribed in Florida Steel Corp., 231 NLRB 651 (1977); see generally Isis Plumbing Co., 138 NLRB 716 (1962). (e) Remove from its files written warnings issued to Ella Rost dated August 22 and/or August 23, 1984, as well as any reference to the discharge of Ella Rost, and notify her in writing that this has been done and that evi- dence of the unlawful warnings and discharge will not be used as a basis for future personnel actions against her. (f) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- BRUNSWICK FOOD & DRUG 687 essary to analyze the amount of backpay due under the terms of this Order. (g) Post at its Brunswick, Georgia facility, copies of the attached notice marked "Appendix." 7 Copies of the notice, on forms provided by the Regional Director for 7 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." Region 10, after being signed by the Respondent's au- thorized representative, shall be posted by the Respond- ent immediately upon receipt and maintained for 60 con- secutive days in conspicubus places including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (h) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply.