Albertsons, Inc

ALBERTSONS, INC. Albertsons, Inc.-Southco Division and Retail Clerks Local Union 1557. Case 10-CA-17793 June 16, 1988 DECISION AND ORDER By CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFF On November 25, 1983, Administrative Law Judge Robert A . Gritta issued the attached deci- sion. The Respondent, the General Counsel, and the Charging Party filed exceptions and supporting briefs and the Respondent and the General Counsel filed answering briefs. 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, fmdings, and conclusions only to the extent consistent with this Decision and Order. 1. The judge concluded that the Respondent vio- lated Section 8(a)(1) by instituting posted invalid no-solicitation rules.' Specifically, the judge found that the rules were facially invalid because the Re- spondent failed to explain to employees their right to solicit on behalf of the Union during nonwork- time and in nonwork areas. The Respondent has excepted to this finding and for the reasons set forth below we dismiss this allegation of the com- plaint. On September 21, 1981,2 the Respondent opened a combined grocery and drugstore in Huntsville, Alabama. Approximately 150 nonunionized em- ployees man the facility. Although there is a main employee breakroom in the rear of the store, the snack area of the delicatessen department is also designated as a breakroom for off-duty workers. As a requirement of employment, the employees at- tended orientation sessions at which the Respond- ent advised them to adhere to posted signs at the stores' two entrances and near the employee time- clock. The three signs were identical and entitled "NO SOLICITATIONS." They stated: Solicitation, distribution of literature or use of sound devices on company premises by anyone not employed by the Company is strictly prohibited. Unauthorized presence of any employee on the interior of the company premises for any pur- ' We agree with the judge's finding that the no- solicitation/no-distribu-tion rule set forth in the Company 's personnel policy statement is both invalid and unlawful. 2 All dates are in 1981 unless otherwise indicated. 177 pose is strictly prohibited unless that employee is on duty, scheduled for work or actually en- gaged in the purchase of goods. Solicitation by anyone in the selling areas of the store is strictly prohibited. No employee may engage in solicitation of any kind during working time, or while the person (or persons) he or she is soliciting is on work- ing time. Further, no employee may distribute literature during working time or in working areas. The rules remained posted at the various loca- tions until November 12. At that time, in response to the Board's decision in T.R. W. Bearings, 257 NLRB 442 (1981), the Respondent replaced the above no-solicitation rule with a new rule. The Re- spondent posted the new rule at the same locations as its predecessor. It contained the identical four paragraphs as the old rule with the addition of a final definitional paragraph regarding working time: Working time does not include authorized pe- riods of off-duty times, e.g., mealtime, break- time, etc. After the posting of the rule there was no further clarification by the Respondent. In his decision the judge addressed the two rules as a unitary policy. Apparently the judge relied on T.R. W. Bearings, and determined that the rules were invalid because the Respondent did not ex- plain to employees their right to solicit in the deli- catessen snack section when off duty. Contrary to the judge, we find that the posted no-solicitation rules were facially valid. In Our Way, Inc., 268 NLRB 394 (1983), we expressly overruled T.R. W. Bearings and stated rules prohib- iting solicitations during working times are pre- sumptively valid . We further stated in Our Way that proscribed solicitations during worktime im- plies that solicitations are permitted during non- worktime, i.e., the employees' own time . Here, nei- ther rule prohibits solicitations during nonwork pe- riods. Rather, it is clear that the Respondent did not intend to restrict solicitations during nonwork- times as evident from the posted rules' explicit ex- planation that the no-solicitation policy did not in- clude off-duty times, mealtimes, and breaktimes. Accordingly, we shall dismiss this allegation of the complaint. 3 8 The Respondent's no-solicitation rules are facially valid because they proscribe solicitation in working areas during working time. At the hear- ing, however, the Respondent's store director, Malmberg, testified that he understood the Respondent's no-solicitation rules to prohibit distribu- Continued 289 NLRB No. 39 178 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2. The judge also found that the Respondent vio- lated Section 8(a)(3) by discharging employees Bailes and Woodley for violating the posted no-so- licitation rules. We agree with the Respondent's ex- ception to this finding and for the reasons set forth below we dismiss this allegation of the complaint. Employees Bailes and Woodley were employed in the cosmetic and drug departments, respectively. At all times during business hours the cosmetic, drug, and grocery departments are work and sell- ing areas. Although the snack section of the delica- tessen serves as a breakroom for off-duty workers, the remaining sections of this department are work- ing and selling areas open to the public. In mid-November the employees began an orga- nizational campaign and Bailes and Woodley solic- ited union cards at the store. According to the credited testimony of three employees, Bailes and Woodley solicited for unionization during working time and in selling areas. On November 20, em- ployee McBride was requested by Bailes to sign a union card while both employees were working in the cosmetic department. Later that day Bailes, while stocking shelves in the department, asked employee Deacon how she felt about unions and further advised that a union would alleviate em- ployee mistreatment. A few days later employee Ford, while working in the delicatessen, was ap- proached by Bailes and Woodley and requested to sign a union card. After the three employees re- ported the solicitations to the Respondent, Bailes and Woodley were discharged on November 23 for violation of the posted no-solicitation rule.4 In his decision, the judge found that because Bailes and Woodley were discharged pursuant to an invalid posted no-solicitation rule the discharges themselves were invalid. Although the judge noted that the employees had solicited during working time and in selling areas, he concluded that the Re- spondent had not rebutted the presumption of the bons in its delicatessen and parking lot Because the record indicates that a portion of the delicatessen was designated as an employee break area and a section of the parking lot had been set aside for employee use, such an understanding , if acted upon, would invalidate the Respondent's other- wise valid no-solicitation rules . See, e.g., Harolds Club, 267 NLRB 1167 (1983), enfd 758 F 2d 1320 (9th Cir 1985); Stoddard-Quirk Mfg Co, 138 NLRB 615 (1962). However, there is no record evidence that the Re- spondent communicated Malmberg's overboard interpretation to employ- ees, or enforced its no-solicitation rules in the break area in the delicates- sen or at any inappropriate time or place in the parking lot. Accordingly, we find that Malmberg 's understanding of the Respondent 's rules did not render them invalid 4 There is no contention that the discharges were effected pursuant to the personnel policy statement (See fn 1 , supra ) There is similarly no logical linkage between these two discharges and Malmberg 's subsequent testimony at the unfair labor practice hearing-testimony that, as we have explained above (fn 3, supra), did not make unlawful a rule that was valid on its face and not shown to have been unlawfully maintained or enforced Our order remedies any coercive effects and that statement, however, by requiring its rescissions and giving the customary cease-and- desist direction invalidity of the rule by showing that the solicita- tion had impaired the employees' job performance. As we disagree with the judge's finding that the Respondent instituted and posted invalid no-solici- tation rules, we reject the related finding that the Respondent unlawfully discharged the employees under the rules. Here, the employees solicited union support during the working time and in sell- ing areas of the store. These activities were in clear violation of the Respondent's no-solicitation policy and resulted in their lawful discharges. According- ly, we shall dismiss this allegation of the com- plaint.5 3. On the day following their discharges, Bailes and Woodley appeared in the Respondent's delica- tessen area that is open to the public. They were accompanied by Union Representatives Powers and Norwood. All four wore union jackets display- ing a large union logo. They sat down at a table and consumed food and beverages. They did not attempt to solicit or speak to employees about the Union. The purpose of the visit was to demonstrate to the employees that the Union supported Bailes and Woodley. As set forth more fully by the judge, in response to this and subsequent visits to the deli- catessen by these individuals to leave the premises and summoned the police when they refused. All four were arrested in connection with their refusals to leave. The judge found that the threats of arrest and the arrests themselves did not violate Section 8(a)(1). The judge reasoned that Bailes' and Wood- ley's communication to other employees that the Union supported them following their discharges was unprotected under Section 7 of the Act be- cause to find otherwise "would dilute the basic rights to organize and not to organize" and would reduce Section 7 activity to a "carnival atmosphere of logos, signs, and symbols." We disagree and find that the Respondent violated Section 8(a)(1). Contrary to the judge, there is no evidence that the conduct of Bailes and Woodley was likely to create a "carnival atmosphere." Instead, it is clear that their activity was undertaken in a manner fully consistent with the normal use of the delicatessen, i.e., the delicatessen was open to the public for food and beverage service, and Bailes, Woodley, and the union representatives sat down at a table and consumed food and beverages. Further, their visit was designed merely to demonstrate to the Respondent's employees that the Union supported Bailes and Woodley and, by inference, supported 5 We adopt the judge's finding that the Respondent did not apply its posted no-solicitation rule in a disparate manner because the alleged inci. dents noted by the judge occurred outside selling areas or were unknown to management or isolated and inconsequential in character ALBERTSONS, INC. the Respondent's current employees. Because their activities supported the normal use of the delicates- sen and were nonobtrusive, it is immaterial that the conduct took place on the Respondent's property.6 Further, we conclude that the Respondent's at- tempt to eject four individuals and its summoning of the police for that purpose unlawfully interfered with the exercise of Section 7 rights, Montgomery Ward & Co., 263 NLRB 233 (1982). Bailes and Woodley were known to the Respondent as active union supporters, and Powers and Norwood identi- fied themselves to the Respondent as union repre- sentatives. As previously noted, all four were wear- ing jackets with large union logos. The Respond- ent's employees had a legitimate interest in receiv- ing this message of support. The Respondent ad- mittedly sought to bar Bailes and Woodley from the delicatessen because they were "not welcome." Thus, it is evident that the Respondent singled out these individuals for special treatment, notwith- standing that their outward activities were fully consistent with the normal use of the delicatessen area from which they were ejected. The Respondent contends that it lawfully barred Bailes and Woodley because they had engaged in disruptive conduct while soliciting employees during their period of employment and that Powers and Norwood lawfully were barred be- cause they attempted to interfere with manage- ment's lawful authority to oust Bailes and Wood- ley. We find no merit in these contentions. Although the Respondent lawfully discharged Bailes and Woodley for violating a valid no-solici- tation rule, it does not follow that irrespective of the circumstances the Respondent permissibly could interfere with the Section 7 rights of its em- ployees to receive a nondisruptive show of mutual support and solidarity. The Respondent's assertion that Bailes' and Woodley's return to its premises soon after their discharge clearly evidenced their intention to create a disruptive scene and that the Respondent therefore was justified in seeking to bar Bailes and Woodley to avoid such an occur- rence, is not borne out by the evidence. There is nothing in the record that even remotely suggests that Bailes or Woodley gave the impression of en- gaging in, or of preparing to engage in, disruptive conduct. There is no evidence, for example, that they sought to solicit on-duty employees regarding the Union upon their visit to the delicatessen. Their breach of a valid no-solicitation rule while previ- ously employed with the Respondent by itself does not establish that their mere physical presence 6 Harolds Club Y. NLRB, 758 F.2d 1320, 1323 (9th Cir. 1985), and cases there cited; Brunswick Food & Drug, 284 NLRB 661 fn. 5 (1987) 179 alone likely would be disruptive to the normal ac- tivities of the delicatessen.? Thus, the facts of this case, which show a non- disruptive silent communication of legitimate Sec- tion 7 interests between employees and union rep- resentatives, do not support the Respondent's con- tention that its conduct was justified by its legiti- mate business interest in ensuring decorum. Ac- cordingly, we find that the Respondent violated Section 8(a)(1) by effectively threatening and caus- ing the arrest of Bailes, Woodley, Powers, and Norwood. See Brunswick Food & Drug, supra. ORDER The National Labor Relations Board orders that the Respondent, Albertsons, Inc.-Southco Division, Huntsville, Alabama, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Interrogating its employees about their union sympathies or those of other employees. (b) Threatening employees with discharge for engaging in protected activities on behalf of a union. (c) Maintaining, giving effect to, or enforcing its company personnel policy no-solicitation/no- distribution/no-access rules which prohibit employ- ees from engaging in union solicitations and distri- butions at all times in the store. (d) Interfering with, restraining, or coercing its employees by threatening the arrest of union sup- porters and representatives from its delicatessen and causing their arrest. (e) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Rescind the company personnel policy no- solicitation/no-distribution/no-access rules now ex- isting to the extent that such rules prohibit union solicitations and distributions by employees on company premises at all times. 7 In this regard, we find no merit to the Respondent 's assertion that it justifiably barred Bailes and Woodley because of their alleged repeated acts of intimidation and threats toward employees during their period of employment. We have found that the Respondent lawfully discharged Bailes and Woodley on the basis of their solicitation of union support during working time and in selling areas of the store contrary to the Re- spondent's legitimate no-solicitation rule. In doing so, however, we do not disturb the judge's finding that "in the last analysis" the Respondent failed to establish that it was reacting not just to a breach of the no-solici- tation rule, but also reported alleged threats on the part of Bailes and Woodley. 180 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD (b) Post at its facility in Huntsville, Alabama, copies of the attached notice marked "Appendix."8 Copies of the notice, on forms provided by the Re- gional Director for Region 10, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. 6 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT interrogate you about your union sympathies or desires. WE WILL NOT threaten you with discharge for engaging in protected activities in behalf of a union. WE WILL NOT maintain, give effect to, or en- force a company personnel policy no-solicitation/- no-distribution/no-access rules which prohibit you from engaging in union solicitations and distribu- tions at all times from our delicatessen and causing their arrest. WE WILL NOT interfere with, restrain, or coerce our employees by threatening the arrest of union supporters and representatives from our delicates- sen and causing their arrest. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL rescind the company personnel policy no-solicitation/no-distribution/no-access rules now existing to the extent that such rules prohibit union solicitations and distributions by employees on company premises at all times. ALBERTSONS, INC.-SOUTHCO DIVI- SION Sharon Howard, Esq., for the General Counsel. Lawrence D. Levien, Esq. and Richard N. Appel, Esq. (Akin, Gump, Strauss, Hauer & Feld), of Washington, D.C., for the Respondent. George E. Barrett, Esq. and Michael J. Passino, Esq. (Bar- rett & Ray), of Nashville, Tennessee, for the Charging Party. DECISION STATEMENT OF THE CASE ROBERT A. GRITTA, Administrative Law Judge. This case was tried before me on October 27 and 28 and De- cember 1 and 2, 1982, in Huntsville and Decatur, Ala- bama, based on a charge filed by Retail Clerks Local Union 1557 (the Union) on January 6, 1982, and a com- plaint issued by the Acting Regional Director for Region 10 of the National Labor Relations Board on February 25, 1982.1 The complaint alleged that Albertsons, Inc. Southco Division (Respondent) violated Section 8(a)(1) and (3) of the Act by coercively interrogating, threaten- ing, and discharging employees because they engaged in organizational activities in behalf of the Union. Addition- ally, Respondent maintained an invalid no-solicitation rule. Respondent's timely answer denied the commission of any unfair labor practices. All parties were afforded full opportunity to be heard, to examine and cross-examine witnesses , to introduce evi- dence, and to argue orally. Briefs were submitted by the General Counsel, Respondent, and the Union. All briefs were considered. On the entire record2 in this case and from my obser- vation of the witnesses and their demeanor on the wit- ness stand, on substantive, reliable evidence considered along with the consistency and inherent probability of testimony, I make the following FINDINGS OF FACT I. JURISDICTION AND STATUS OF LABOR ORGANIZATION-PRELIMINARY CONCLUSIONS OF LAW The complaint alleges, Respondent admits, and I find that Albertsons, Inc.-Southco Division is a Delaware corporation engaged in the retail sales of drugs, grocer- ies, and sundry items in Huntsville, Alabama. Jurisdiction is not in issue. Albertsons, Inc.-Southco Division, in the past calendar year, in the course and conduct of its busi- ness operations in Huntsville, grossed in excess of $500,000 and received at its Huntsville facility goods and materials valued in excess of $50,000 directly from points ' All dates are in 1981 unless otherwise specified 2 Jt Exh 1, a summary of the 141 polygraph examinations, is received into the record by stipulation ALBERTSONS, INC. located outside the State of Alabama. I conclude and find that Albertsons is an employer in commerce and in operations affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. The complaint alleges, Respondent admits, and I con- clude and find that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. THE ISSUES A.. Coercive interrogation of employees by supervisors or agents of Respondent. B. Threats of discharge for union activity by supervi- sors. C. Threats to have employees arrested and having both employees and union representatives arrested. D. Promulgation and maintenance of invalid written no-solicitation rules. E. Discriminatory discharges of employees Debra Bailes and Candace Woodley. III. THE ALLEGED UNFAIR LABOR PRACTICES George Malmberg testified that he has been employed by Albertsons for 10-1/2 years. For 1 year he was the store director in Huntsville with complete authority. (At present he is grocery manager in an Albertsons' Pensaco- la store.) Huntsville is a new store which opened Sep- tember 23. Some hirings of employees for the new store occurred before Malmberg arrived on August 27. The store is designed by departments with each department a_ selling area of the store. Cash registers line the front por tion of the store as an addition to the selling areas in the store. With the exception of the warehouse, stock areas, offices, and breakroom, the entire store, including the delicatessen, is open to the public. Malmberg considers the parking lot a nonselling work area of the store. Em- ployees utilize the breakroom and the delicatessen for nonwork breaktimes. The offices, breakroom, warehouse, and stock areas are nonselling areas of the store. During the hiring procedures, all employees, except the courtesy clerks, are required to take a polygraph test. When hired each employee receives a written list of "company per- sonnel policies" that they are expected to read and sign for acknowledgement. Each employee serves a 30-day trial period before becoming a permanent employee. Em- ployees are disciplined by verbal or written warning de- pending on the offense; however, several stated offenses are cause for immediate dismissal. In addition to the stated causes, Malmberg testified that within his discre- tion he can terminate an employee for their conduct. In December 1981 or January 1982 he terminated an em- ployee who pulled advertising signs from the shelves as she left the store after work. Pat Layne was terminated for insubordination and fail- ure to comply with expressly stated management theo- ries. In late November Malmberg received information from employee Hale that Layne was soliciting employee signatures on union cards. Malmberg called Layne and her immediate supervisor-Bentley-to his office. Malm- berg told Layne that as part of management she must back management's wishes and theories or desires as far as the running of the operation, and that she could not 181 actively support the Union. Layne responded that she understood and that there would be no problems. Malm- berg decided to explain to Layne rather than discipline her and to have Bentley present also because he had no knowledge that any supervisors understood what their position was to be during a union organizational drive. Following this Malmberg on December 1 received infor- mation from employee Barbara Watson that Layne solic- ited Watson to attend an upcoming union meeting. When Watson resisted with the excuse, "I've got to work tom- morrow," Layne suggested that Watson called in sick so she could attend the meeting. Layne ended the conversa- tion by lamenting her lack of authority to hire employees even though she could fire employees, because with both authorities she could stock the front end with union sup- porting employees. The following day, Malmberg sum- moned Layne to his office and confronted her with his information. Layne admitted to it and Malmberg termi- nated her. Two weeks prior to opening of the store, Malmberg received from his management a no-solicitation poster (G.C. Exh. 4) which he posted in three locations in the store. Later around November 11, via the company produce truck from Orlando, he received a revised poster to replace the original. Malmberg removed the first poster and posted the revised poster in the same three locations. He then returned the acknowledgement of the switch in posters to Orlando. On only one occasion did Malmberg allow a solicita- tion by an outside organization on company premises. The American Heart and Lung Association was permit- ted to park a car on the sidewalk outside the store and sell raffle tickets to the general public. They were not al- lowed to solicit customers or employees inside the store. Malmberg did not work Saturday, November 21, or Sunday, November 22; however, several supervisors and employees reported to him on events occurring both days involving Bailes and Woodley soliciting signatures from employees in the store. Supervisors Stevens and Usery reported that Bailes and Woodley were soliciting employees to sign union authorization cards in the store and telling some employees to meet them in the parking lot to sign cards. Several employees reported to Stevens and Usery that they were threatened by Bailes, Wood- ley, and Supervisor Pat Layne for not signing union cards. Malmberg received the report that Bailes and Woodley told employee Deacon, "If you don't sign one and we form a picket line then anybody that crosses the picket line could get beat up by hit men that we have." A second report he received stated that employee Ford was approached by Bailes and Woodley in the restroom on Saturday, November 21, to sign a union card and again on Sunday, November 22, at her delicatessen workstation while she was working. A third report of employee Ayers stated that Supervisor Layne solicited her signature on a union card in the breakroom and later in the store parking lot. Layne told Ayers that she should sign the card or lose her job. On Monday morning, November 23, Malmberg was approached individually in his office by employees Deacon, McBride, and Ford. Deacon told Malmberg 182 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD that Bailes and Woodley did tell her in the store's park- ing lot that she would be beat up if she tried to cross a picket line and work. Bailes and Woodley also told Deacon that suppliers and truckdrivers would not cross the picket lines. McBride told Malmberg that Bailes had solicited her signature on a union card Friday, Novem- ber 20, while both employees were working in the cos- metic department. The next day Bailes stopped McBride in the parking lot and told her if she did not sign a union card she would be fired when the union came in. Ford told Malmberg that during worktime on Saturday, No- vember 21, Bailes and Woodley solicited her signature in the bathroom and the following day while she and a co- worker were working in the delicatessen Bailes and Woodley solicited the signature of the coworker then asked Ford if she had thought anymore about "it." Malmberg reported the events to his management in Orlando who affirmed that the employees could be dis- charged. Approximately 1:30 p.m. Malmberg decided to discharge Bailes and Woodley for no-solicitation viola- tions and intimidation of employees. Malmberg did not confront Bailes or Woodley with his information before deciding to terminate them. That afternoon Malmberg called Woodley to his office. He told her because she had chosen to break the no-solicitation, no-access, no-dis- tribution rule and had intimidated employees while on and off the clock, she was being terminated and was not to return to the store. Malmberg told Woodley to sign her timecards, leave the store, and not return. Malmberg then called Bailes to his office and told her the same thing. The next day, about noon, Bailes and Woodley came into the store wearing union jackets. Malmberg told them they were not welcome in the store. One of two men who identified themselves to Malmberg as Powers and Norwood, union representatives, said the girls did not have to leave because the store was public and they were going to the delicatessen. The four went to the del- icatessen, ordered drinks, and sat at a table. Malmberg called the police. When the police arrived, Malmberg told the officer who came into the store that two termi- nated female employees in the delicatessen were not wel- come in the store. Malmberg and the officer went to the delicatessen. The officer told Malmberg to tell the four that they were not welcome and ask them to leave. Powers spoke up and said, "Why don't you ask him why he wants us to leave." The officer said it did not make any difference, "if the proprietor doesn't want you in the store you have to leave. If you don't leave, I'll have to place you under arrest." Powers then said to the officer, "You, on your own," whereupon the officer arrested Powers and escorted the four outside the store. That same afternoon at 3:30, the four individuals re- turned to the store. Malmberg again told them to leave. They said they would not leave and were going to the delicatessen. Malmberg called the police. Malmberg told the policeman of the prior arrest. The policeman told Malmberg to repeat the warning to the four and if they did not leave he would remove them. Malmberg then told the group they were not welcome and would have to leave. The policeman told the group, "this man's the proprietor; Ya'll are all going to have to leave, otherwise you will be guilty of trespassing after warning." They re- fused to leave, so the policeman arrested all four. Later that same day, around 6 p.m., Powers and Nor- wood came into the store. George Hart, the grocery manager, saw them and told them to leave the store. Powers said, "Get the hell out of my way" and headed for the delicatessen. Malmberg went to the delicatessen and told both men that they had been previously arrested for not leaving the store and they should now leave the store. Both men said they would not leave, so Malmberg told them he was going to call the police. The police ar- rived and told Malmberg that he would have to go downtown and sign a complaint to get the men removed. Malmberg did so and both men were arrested in the store. Malmberg stated that he effected the arrests be- cause Powers and Norwood interfered with his duty as proprietor of the store on the first occasion and he did not want the situation repeated. At some point during the day a letter to employees ex- pressing Albertsons' opposition to the Union was mailed to all Huntsville employees from division headquarters in Orlando, Florida. Patricia Layne testified that she was employed by Al- bertsons from September until December as assistant front-end manager. Her duties included directing the functions of the cashiers and courtesy clerks with the re- sponsibility for discipline of the courtesy clerks. Layne had terminated the employment of the one employee. During her employment, Layne was not aware of any company policy that prohibited employees from talking about noncompany matters while working. In fact, ev- eryday employees talked about noncompany matters with impunity while working. Layne also was not aware of any company policy against solicitations in the store. She stated it was possible that the Company had posted no-solicitation rules in the store, but she had never seen them. Albeit, Layne attended the new employee orienta- tion, she did not recall any reference to no-solicitation rules. Layne recalled that in October a lady came into the store and told her she was seeking food donations for the church. Layne referred the lady to Malmberg. Later the lady came to Layne's checkout stand with $40 to $50 worth of groceries. Layne asked Supervisor Usery how to handle it, and he said to ring it up and give him the receipt. This same month another lady was seeking a Po- laroid film donation and asked Layne about it. Layne sent her to Malmberg. Layne did not hear anymore about it. At the end of October a lady approached Layne looking for donations of halloween decorations for a school festival. Layne referred her to Malmberg. Layne was later instructed to simply bag the decorations for the lady and let her go. The following month Layne and several employees were in the breakroom waiting for their shift time. Sherry Phillips, a cashier, came in, put her purse in her locker, and clocked in. As she left the breakroom, she placed Home Interior folders on the table then went to work. She said to give the brochures back to her and asked the employees if they wanted to buy something after they had looked them over. After Layne clocked out that day and was on her way out of ALBERTSONS, INC. 183 the store, she slipped the brochure in Sherry's pocket as she passed her cash register. Layne first became aware of the union organizing in late November. The third week in November, Bailes and Woodley solicited Layne's help getting employees to sign union cards. Layne was in the breakroom at the time. Layne told them she would not help. The follow- ing Sunday when Layne arrived at work and parked her car she saw Bailes and Woodley sitting in their parked car. Bailes and Woodley shouted to Layne, "We got them." Layne walked to their car and asked, "What do you have." They asked Layne to get in the car and they would discuss it off the property. After getting off the property, Bailes and Woodley showed Layne the union cards and asked if she would sign one. After a short dis- cussion Layne did sign one. Layne was asked again to help get employees to sign cards and she agreed to do so. Bailes and Woodley told Layne not to solicit on com- pany time but she could solicit on the property as long as she was on break or off the clock. She participated in the campaign on behalf of the Union by soliciting em- ployees to sign union cards and asking employees how they felt about the Union and if they had any interest in union activities. Early in the campaign, Malmberg ques- tioned Layne about union solicitations in the store. Layne responded that it had taken place off the proper- ty. Malmberg asked Layne about her departure from the store on Sunday, November 22, in Candy Woodley's car with emphasis on the number of people in the car. Before Layne could answer, Malmberg stated that there were two others in the car. Later Malmberg spoke with Layne in his office, in the presence of Kayla Bentley, the front-end manager. Malmberg told Layne that as a super- visor, she was considered part of management and, there- fore, could not participate in any union organizing or so- liciting. In late November an employee, Susan Ayers, was in Layne's car in the parking lot. Layne had union cards and Ayers signed one in the car. Layne did not recall any conversation with Ayers about damage to em- ployees' cars during this solicitation but she did tell Ayers nor to discuss the Union on company property. On December 4 Layne was fired for violating the no-so- licitation rule and insubordination in that Layne, in spite of Malmberg's warning, did thereafter engage in solicita- tions of employees to sign union cards. David Eng testified that he has been employed at Al- bertsons as a stocker for 14 months. He was hired when the store opened but did not get a polygraph until 2 months ago. Eng did receive and sign the Albertsons policy sheet which contained the store policy on no-so- licitation. Eng also saw the no-solicitation posters in sev- eral locations in the store ever since he was employed. Since his employment, he has had several conversations with supervisors about the Union. In November while stocking the frozen food cooler in the backroom, Assist- ant Manager Stringfellow approached him and asked, "Do you think this place needs a Union." Eng replied that he had never thought about it then told Stringfellow that he was fired from Raglands Bros. for union activity. Eng told Stringfellow that he had helped the union orga- nize Raglands. Nothing else was said. Three or four days later on the sales floor in the frozen food aisle, while Eng was working, Stringfellow walked up. Eng men- tioned the Company letter about unions. Stringfellow then asked him if he was involved with the Union. Eng replied, "No," and Stringfellow walked off. Within 5 or 10 minutes Stringfellow returned and said, "I think you've got a promising future here. I hope you don't get involved with the Union; I'd hate to see you go." Eng stated that probably everyday employees con- versed about noncompany matters while working and were not disciplined for it. Eng was not aware of any policy prohibiting conversations about noncompany mat- ters while working. Eng also saw solicitations in the store. The PepsiCola deliveryman sold raffle tickets for a softball team to Eng and other stockers while Eng was stocking the cola shelves. At this time ther were not any supervisors in the vicinity. On another occasion he was at the timeclock in the breakroom, clocking out, and a group of girls were collecting money for Pam Campbell, an employee who was getting married. Recently, Bever- ly Nash, the delicatessen manager,3 was working and a group of stockmen were purchasing breakfast. Nash asked the stockmen to contribute to flowers for Susan Ayers who was in the hospital. Eng,did no know that Ayers was in the hospital and gladly contributed to the flower fund. Barbara Watson testified4 that she has been employed by Albertsons as a cashier since the store opened. Her supervisor was Pat Layne. Watson attended the orienta- tion session for new employees, which included discus- sions of what employees should do on the job; what em- ployees should not do on the job; the no-solicitation policy, the insurance policies, the dress code, and em- ployee benefits. A training period of 2 weeks followed with additional explanations of the company policies. Printed posters of the store's no-solicitation rules were posted on the front windows the day the store opened for business. An additional poster was framed and hung in the employees breakroom. Watson on November 20 was off work but was in the store to do some shopping. While passing the cosmetics counter, Bailes, who was stocking shelves, called her over. Bailes asked Watson if she knew the store was fixing to go union. Watson said she had not heard any- thing. Bailes said that was the rumor and asked Watson how she felt about unions. Watson replied she did not know because she had never worked with a union . Bailes said she thought the Union would be a good idea be- cause the employees were being mistreated. The conver- sation lasted about 3 minutes then Watson continued her shopping. A few days later Bailes and Woodley were in the parking lot asking employees to come over to them and talk about the Union . Bailes and Woodley had several employees with them discussing the Union. Watson was leaving for lunch and Bailes called her over. Bailes and Woodley were not in uniforms . Bailes asked Watson if she would join the Union and sign a card. Bailes said, "the Union's not in and it's going to take a lot to get it 3 The parties stipulated that Nash became a supervisor in August 1982. 4 Watson testified directly for the General Counsel and Respondent in response to two subpoenas during a single stint on the stand. 184 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD in. There's a chance that you can be fired if you join and if the management finds out ." Watson was in a hurry to get her lunch so she left. On December 1, Watson was working on her register and Layne came to her and said she would like to speak to her about the Union. Watson told Layne she would talk with her. Later Watson had a 10-minute break and met Layne in the delicatessen. Layne asked her how she felt about unions and stated that she (Layne) thought it would be a good idea for the employees. Layne said she had the authority to fire employees and wished she had the authority to hire them also so she could fill the front with union supporters. Layne then asked Watson to sign a union card and encouraged Watson to do so . Watson did not say much, she was just listening. The conversa- tion ended and Watson returned to her register. That evening Watson took her 10-minute break. Layne came over and told Watson that an important union meeting was scheduled for the following morning at a local motel. Watson told Layne that she was scheduled to work and could not attend. Layne told Watson to call in sick or make some excuse so she could attend. The breaktime ended and Watson returned to her register. The next afternoon Layne came into work and gave Watson a hard look as she passed. Watson later went over and apologized to Layne for not attending the meeting. Several times after that while Watson was working on her register, Layne would come over and point to a customer saying, "You need to talk to him; he's a union representative; or it might be a good idea to speak with him," Watson developed a feeling that Layne was pressuring her, so she went to Malmberg and report- ed the conversations that took place on the job between she and Bailes and she and Layne. Debra Bailes testified that she was employed by Al- bertsons before the store opened and attended the store's orientation program on benefits. She was hired to work in the cosmetics department. On September 7, 8, or 9, Bailes was one of several employees to receive a poly- graph examination administered by an employee of Al- bertsons. The examination took about 20 minutes. During the examination, the operator asked Bailes if she was ever affiliated with a union. She responded that she had signed a union card at Food World where she was em- ployed for 3 months and that her husband worked at Kroger and was a member of the Retail Clerks Union. The operator also asked questions about theft, illegal drugs, and about her financial condition. Bailes did not recount the union question during the exam until she was conversing with the union attorneys after the state tres- pass proceeding.5 Bailes stated that the union campaign began on No- vember 21, about noon, when she went to Kroger and spoke to T. C. Smith, an official of the Kroger union. Bailes stated she was unhappy that her hours of work had been reduced. Smith gave her a stack of membership cards for her use in soliciting Albertsons' employees and 6 Bailes gave affidavits The first on December 16, 1981, the second on January 19, 1982. The polygraph examination and the union question were only mentioned in the second affidavit The parties stipulated that the trespass proceeding occurred on December 28, 1981 she signed one and returned it to Smith . Bailes left about 1:15 p.m. and went to Woodley's house. Bailes solicited Woodley and both returned to Kroger where Woodley signed a membership card. Smith told them that solicit- ing Albertson' employees could not be done on compa- nytime but any time that was their time, like breaks, was okay. Bailes went to work at 3 p.m. that day and was busy preparing for Sunday's specials. She took her break just before the stockers were due to start work at 10 p.m. Bailes went to the breakroom and the stockers were there. She asked them if they were interested in joining the Union. They replied that they were, so they and Bailes agreed to meet the next morning , Sunday, Novem- ber 22, at Krystals restaurant at 7 a.m. Bailes and Wood- ley met the stockers the following morning and secured several signed membership cards. A courtesy clerk who came in Krystals also signed a membership card . Bailes and Woodley left Krystals and went to Albertsons' park- ing lot about 9 a.m. that day and remained until after dark. As employees came into the store or left the store, Bailes and Woodley solicited their signatures on union cards. Those who agreed to sign would get in Bailes' car and when the car was off company property, the em- ployee would sign. Bailes would then bring the employ- ee back to Albertson' parking lot. On several occasions Bailes used the store restroom and delicatessen and solic- ited employees in the breakroom. Bailes recalled signing Pat Layne and Barbara Watson in the parking lot and while in the store's delicatessen asked Linda Deacon to come outside and talk about the Union. Bailes denied any conversation with Watson about the Union prior to Sunday and any solicitations of Carol Ford, Sally McBride, or Pam Campbell. That night Layne called Bailes and said she had two employees wanting to sign cards. Bailes met Layne behind Albertsons with the two employees and the cards were signed. The next day, Monday, November 23, Layne met Bailes at Hardee's restaurant about 10 a.m. with an employee willing to sign a card. The employee signed a card. Later this same day Malmberg in Usery's presence called Bailes to his office. Malmberg told Bailes that she had violated the no-solicitation rule and was terminated. Malmberg also told Bailes that she was not to come back into the store. Bailes stated that she was not given any other reason for her discharge. The day following her discharge, Bailes returned to the store accompanied by Woodley and Union Repre- sentatives Powers and Norwood (all four wore union jackets) to show the employees that they were supported by the Union. Malmberg met them in the lobby and told Norwood that the girls were not welcome in the store. Norwood asked Malmberg if the store was public, and Malmberg replied, "Yes." The four then walked to the delicatessen and sat down. Norwood and Powers or- dered drinks for the group. Malmberg came to the table and asked the four to leave. Norwood asked if he was asking them to leave because the girls were represented by he and Powers. Malmberg said that has nothing to do with it and walked off. Malmberg came over again and asked the four to leave. Powers said "No," and asked if Malmberg was asking them to leave because he and Nor- ALBERTSONS, INC. 185 wood were union organizers . Malmberg said, "No." A policeman then came to the table and asked the four to leave. Powers told the policeman that he would leave if the policeman was asking him to, but not because Malm- berg was asking him to. The policeman placed Powers under arrest and all four left the store. As they were leaving, Norwood told Bailes and Woodley to shout "Go Union" and Woodley began hollering "Go Union" and the policeman told her not to be so loud. Bailes and Woodley then began saying "Go Union" in a speaking voice. Bailes could not recall what else was said during this encounter. Norwood and Powers told Bailes and Woodley to go back to the store and 3 hours later the group returned to the store. Hart, the grocery manager, followed them to the delicatessen and then summoned Malmberg. Within minutes Malmberg and a policeman came up. The policeman asked them to leave. Powers told the policeman they would leave if he ordered them to leave but would not because Malmberg told them to leave. The policeman said they had 60 seconds to leave or he would arrest them. He counted down the seconds and put all four under arrest. As they got to the police car, Woodley told the policeman to search her, but Powers told her to just get in the car. Norwood and Powers made a third entry into the store but specifically told Bailes and Woodley not to accompany them. Bailes' only awareness of a company policy prohibit- ing solicitation was the printed company personnel policy sheet that she read and signed when hired. Bailes never saw a no-solicitation poster in the store or on the front windows. Everyday employees talked about non- company matters while working and were never disci- plined for it. Bailes recalled one solicitation in the store during working hours. Pam Campbell, supervisor of cos- metics, told Bailes that Nancy Heard had gotten married and she would like to take up money for a flower fund for her. This statement occurred while both employees were on the floor working. Candace Woodley testified that she was hired as a drugclerk by Albertsons in August. Woodley attended an orientation session in which the employee benefits and working conditions were discussed . The session did not include any, discussion of the store's no-solicitation policy. However, Malmberg and Valle, her drug manag- er, did on several occasions tell Woodley that her break- time was her own time and she could do what she wanted during break. Four or five weeks after she began working, Woodley was summoned to the manager's office to take a polygraph test. During the test the opera- tor asked Woodley if she or any member of her family was a member of a union. Woodley told the operator that her ex-husband was a Kroger employee and a member of the Kroger union in response to a question of where her husband worked. Woodley participated in the union campaign by help- ing Bailes solicit employee signatures on union cards. Smith, a union official at Kroger, had told Bailes and Woodley not to solicit while working and not to do it on company property. Smith gave them both a stack of union cards. Woodley accompanied Bailes to Krystals, Hardee's, and employees' homes to get cards signed. Woodley also spent all day Sunday talking to employees as they left work or came in to work. Woodley specifi- cally recalled soliciting Linda Deacon and giving her two union cards but denied talking union with Susan Ayers, Sally McBride, and Carol Ford. Monday morn- ing, while working, Woodley had a question about or- dering merchandise and went to Malmberg's office. He was on the phone and had a union card in his hand. Malmberg motioned for Woodley not to come into the office. Woodley waited until Malmberg finished his phone call and then went in the office. They resolved the order problem, and Woodley went back to work. During morning breaktime in the breakroom, Woodley talked with Pam Campbell about signing union cards. Campbell had asked if a union campaign was in progress, and they discussed the Union. After Woodley returned to work following lunch, she was summoned to Malm- berg's office. Kayla Bentley, front-end manager, was present. Malmberg told Woodley she was terminated for solicitation. Woodley asked, "For solicitation of what." Malmberg said solicitation is solicitation. Woodley asked, "What was I soliciting." Malmberg said, "You know what you were soliciting." Malmberg then said, "You are terminated, your check will be mailed to you and under no circumstances are you to enter this store again." Malmberg said if she returned to the store again, he would have her arrested. He told her not to talk to any employees, punch the clock, figure the timecard, and sign out. Woodley was not given any reason for her ter- mination other than solicitation. Woodley stated that the only rule about solicitation that she was aware of was contained in the Employer's personnel policy sheet she read and signed when first hired. She never saw any rules posted on the front win- dows of the store or upstairs near the store office. Em- ployees always talked about noncompany matters while working, and she recalled several instances where em- ployees were solicited while working. In October a cash- ier, Lisa Crane, was working at her station and Woodley was in the front of the store. Crane told Woodley that she was selling for Home Interiors and asked Woodley is she was interested. Crane gave a catalog to Woodley so she could look over the merchandise. At another time, Pam Campbell, head of cosmetics, asked Woodley if she would contribute to flowers for Nancy Heard's upcom- ing wedding. Woodley said she would on payday. Both Campbell and Woodley were looking at the time. Also, shortly after the grand opening, a charitable organization raffled off a new car in front of the store. The car was on the sidewalk adjacent to the drug entrance to the store. All passersby were solicited on the sidewalk. Woodley was part of a group of four that were arrest- ed in the store the day following her discharge. Woodley recalled that when Malmberg first requested that the four leave the premises, both Powers and Norwood told him that Section 7 of the National Labor Relations Act gave Bailes and Woodley the right to be there. At the time all four in the group were wearing union jackets bearing a large insignia of the Union. Woodley recalled that she and Bailes shouted, "Go Union" as the police- man escorted them from the store. On returning to the store some 2-1/2 hours later, all four were arrested at the 186 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD behest of Store Director Malmberg under basically the same circumstances. Woodley and the group returned to the store after the discharge so the employees would know of the union backing and on advice by the union attorneys. John Materni, director of employee relations for Al- bertsons-Southco Division, testified that all stores are ar- chitecturally the same in terms of layout, i.e., the offices and employee breakroom are always on a mezzanine floor. Also all new stores are opened on Wednesday fol- lowing employee orientations on Monday of the same week. All orientation sessions follow the same format and are given in three sessions by departments: a compa- ny history, a visual aid showing store locations through- out the country, a discussion of wage policies followed by an explanation of the local wage structure, identifica- tion and explanation of the employee insurance policies that are available, personnel policies including dress code, Federal wage and hour restrictions such as work- ing off the clock, store security, safety on the job, em- ployee grooming standards, and company no-solicitation policies. Materni always uses the framed no-solicitation rule as a visual aid when discussing the no-solicitation rule. If employees have questions about the rule's lan- guage, he explains it. If no questions are raised, the lan- guage of the rule is not explained. He could not recall what occurred at the Huntsville orientation when the no- solicitation rule was covered. In all stores the attendance of all employees, except courtesy clerks (bag boys and girls), is mandatory. All orientation takes place in the employee breakroom. The no-solicitation rules are identical corporatewide and are posted in all stores. In November, due to a change in NLRB case law, Respondent changed the legend on its no-solicitation poster. Each store was sent the new posters to replace the old posters. The new posters had an added paragraph explaining "working time" but there was no accompanying oral explanation for employees of the new rule. Materni did not instruct store directors to advise employees of the change. Each set of posters for each store was mailed with a cover letter dated November 10. The store directors were re- quested to return the cover letter acknowledging that the posters had been exchanged. Materni stated that he re- ceived acknowledgements from all the store directors in the Southco Division and filed the letters. At some later date during housecleaning of his files they were discard- ed. Materni did visit the Huntsville store on several oc- casions between its opening date and December. Howev- er, he was unable to state that he visited Huntsville in November after his office requested that the no-solicita- tion posters be exchanged. Albeit Materni has the responsibility to inform new employees, on store openings, of the company policies, he does not become involved in employee disciplines. Albertsons does not have a progressive discipline policy, but rather employee discipline is left to each individual store director. The only written procedures for discipline of employees is contained in the company personnel poli- cies that each employee signs upon hiring. Sally McBride testified that she was hired by Albert- sons in September as a cosmetics stocker. She and Bailes worked together and Woodley stocked the drug wall. On Friday, November 20, around 7 a.m. on the cosmet- ics floor while she and Bailes were stocking the shelves, Bailes asked her if she had thought about the store going union. McBride responded that she had not given it any thought. Bailes then asked McBride if she would like to have a union card. Bailes said she had cards with her, and McBride could have one now or could come by Bailes' house and sign one. Bailes also told her that a union meeting was scheduled. McBride told Bailes that she would have to talk it over with her husband first. The following night Bailes met McBride in the parking lot adjacent to the store and asked again if she wanted a union card. McBride told Bailes that she and her hus- band decided not to sign a card. McBride testified that Bailes said, "If I didn't sign a card, that Albertsons was definitely going to go union and I would be fired if I did not sign a union card at that time." McBride told Bailes she would take her chances because she did not want to sign or go to meetings. McBride reported the Friday and Saturday incidents with Bailes to Malmberg on Monday, November 23. McBride stated that the no-solicitation policy of the store was discussed during the orientation session and that signs were posted in the store. The same sign that was used in orientation is posted beside the timeclock, beside the office door, and at the front of the store on the glass doors. The employees were told to read the signs. Carol Ford testified that she worked for Albertsons from September 1981 to April 1982. She worked in the delicatessen for 6 months then worked in the bakery until her separation. Ford had the responsibility for the meat and cheese section of the delicatessen. Usually she worked with another employee who served the table customers and served hot food or sandwich orders. Ford and her coworkers frequently engaged in personal and noncompany conversations while working. As far as Ford knew there was no rule against talking while work- ing. Ford did have two union conversations with two employees while she was working. The first occurred on Saturday, November 12, with Bailes in uniform. Ford was on her way to the restroom and as she passed the breakroom, Bailes called to her from the breakroom. Bailes asked if Ford had thought about joining the Union. Bailes said her husband was in the Kroger union and had good benefits. Bailes said if the employees can get the Union in then the good benefits would be for Al- bertsons' employees also. Ford turned and went to the restroom which ended the previous 5-minute conversa- tion. The next day while Ford and coworker Melody were working in the delicatessen , Bailes and Woodley, who were not working, came into the delicatessen. Ford was waiting on a customer and Melody was at the cash register. Bailes and Woodley went to the register and started talking to Melody. When Ford finished with the customer, she walked to the group at the register. Melody said to Bailes and Woodley that she was in favor of the Union and would come outside and sign a union card with them. Woodley turned to Ford and asked if she had thought anymore about what Debra had talked ALBERTSONS, INC. 187 to her about the night before. Ford said she had but was not interested in the Union. Woodley said, "Well, we want you to sign a card . If you feel like you can, it will be outside in the car." Woodley stated to Ford that she only needed a few more signatures in order to have enough to get a vote. Ford left the group to wait on a customer. When she finished with the customer, she re- joined the group at the register and told Melody that they had to get back to work. Bailes and Woodley an- nounced an upcoming union meeting at a local hosterly and left. That afternoon Assistant Store Director Usery came in and Ford spoke to him about the union conver- sations in the store involving Bailes and Woodley. Usery told Ford if she was concerned to speak to Malmberg. Later Malmberg came in the store and Ford told him she wanted to talk to him about union conversations. Maim- berg said they could talk the next day in his office. On Monday morning Ford recounted the events for Malm- berg, and he asked her to reduce the events to writing and sign it. Ford did so and gave it to Malmberg. Later Malmberg presented a typed version of Ford's statement to her before a notary, which she did. Linda Deacon testified that she was hired as a drug- clerk at Albertsons the day the store opened. Deacon at- tended an orientation session chaired by Materni which included an explanation of the no-solicitation rule. Ma- terni told the new employees that solicitations could not occur while employees were working on the clock except on breaks and lunch. Deacon also saw the store no-solicitation rule posted at each front door and by the office. She worked with Bailes and Woodley handling and stocking the drug wall. (In June 1982 Deacon was promoted to cosmetician in the same department.) Several months after the store opened, Deacon had two conversations with Bailes and Woodley about the Union. The first occurred either November 19 or 20 at the drug wall while she and Bailes were working. Deacon was stocking and Bailes was walking by the wall on her way to cosmetics. Bailes stopped and told Deacon that she wanted to talk to her about getting the Union in. Deacon said "Okay" and Bailes walked off. The follow- ing Sunday, Deacon was in the store to shop around noon, and as she got a shopping cart Bailes and Woodley walked up. One of them said they were trying to get as many employees to sign cards as they could by Monday, the next day. They suggested going to the delicatessen, getting a Coke, and talking about the Union. When pur- chasing the Cokes from Melody in the delicatessen, either Bailes or Woodley told Melody they wanted to talk to her about signing a union card, outside. Melody told them she would see them on her lunch hour. The three left the delicatessen and went to Bailes' car in the parking lot. Bailes gave Deacon two cards telling her about better pay, better hours, and better working condi- tions with a union. Deacon said her husband did not agree with unions, and Bailes told her to talk to him. Bailes added that there would be picket lines, joined by Kroger employees, and any Albertsons employee that did not sign would not be allowed to cross the line. The picketing employees would have hit men after the non- signing employees and there would be a lot of ill feel- ings. Also the suppliers would not be allowed to cross the picket lines either. Deacon excused herself saying she would talk to her girlfriend, Connie White, about signing a card. Bailes and Woodley told Deacon if she signed the card, they would pick it up at her house because they needed them in by Monday. Deacon went to White's house and talked to her. Deacon told White what Bailes and Woodley had said about the Union and the picket line. Deacon stayed at White's house about an hour. She did not tell White that she was frightened by Bailes' remark about employees who did not sign cards. White did not want to sign a card. Deacon then returned to the store about 2 hours after getting the cards and re- ported the two conversations with Bailes and Woodley to the drug manager, Stevens, telling Stevens she was scared by the conversation and he said he would handle it. Deacon gave the two union cards to Stevens. The fol- lowing morning, Deacon talked to Malmberg about the union conversations with Bailes and Woodley. Malmberg asked Deacon to write what happened and sign it. Deacon did as Malmberg requested, and he told her, "It will be okay." Deacon had been solicited for Tupperware and a baby shower by employees in the breakroom during lunch or employees' breaktimes. She had not been solicited during work hours before or since the Bailes and Woodley union conversations. Susan Ayers testified that she was hired as a cashier in October after the store had first opened. Her immediate supervisor was Pat Layne , assistant front-end manager. On Sunday, November 22, at midnight after Ayers had been relieved, she went to the breakroom to clock out. Layne was in the breakroom figuring timecards before clocking out. When Ayers entered the room, a courtesy clerk, Brian Taylor, and another cashier, Sandra, were also present. Taylor was signing a union card. Layne asked Ayers to sign a union card. Ayers testified, "She told me that I'd better sign a union card because once the Union came in if I didn't sign one I'd lose my job " After waiting a minute, Ayers asked Layne if she could wait until the next day so Ayers could discuss the card with her parents. Layne said, "No, you are either with me tonight or not at all." At this point Layne and Taylor left the room and walked toward the parking lot. Sandra told Ayers, "you'd better sign the union card because if you don't, you'll lose your job once they come in," as the two walked down the stairs from the breakroom. Sandra called to Layne to stop because Ayers was going with them to the parking lot. Ayers did sign a card in Layne's car. At that time Bailes drove up and Layne gave the cards to Bailes. Over the weekend Ayers talked with her parents and decided she should not have signed the card. Ayer's next scheduled day to work was Tues- day when she arrived at work, to the office to talk to Kayla Bentley. She told Bentley what transpired Sunday night and Bentley told Ayers she would have to talk to Manager Richard Stevens. Bentley called Stevens to the office. Both Stevens and Usery came to the office. Ayers repeated the events of Sunday night to Stevens. Ayers then asked Stevens if she could get her card back. Ste- vens told her she had such a right. The next day Ayers asked Layne to return the union card, and Layne told 188 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD her, "Don't worry, you've already signed a union card; you'll be protected." Ayers told Layne she was not wor- ried about protection, she wanted her card back. Layne said, "Well, they've been sent to Nashville and I can't get it back." In January, Ayers was asked by Respondent to reduce her recollection of the events of Sunday, No- vember 22, to writing. She did so, and on January 26, 1982, she signed a notarized statement of the events. Joseph Brown testified that he has been employed by Respondent for 4 years as a polygraph examiner. He ad- ministers approximately 40 examinations per week. In ad- dition to other individuals, he administered the employ- ment examination to Bailes and Woodley. Brown denied that he asked any questions of Bailes and Woodley relat- ing to their past union activity or the union activity of either of their spouses. Brown stated that pursuant to Alabama stated that pursuant to Alabama law, he pretested individuals by asking questions in several general areas found on the worksheet itself, noted their responses, and, depending on the areas of response, he asks specific questions during the actual test. If he perceives deception during the test, he gives a person the chance to explain the ap- parent deception. If the explanation is reasonable, he will retest the individual, to verify the previous apparent de- ception. All information supplied by the individual during the pretest is written down. From this supplied information, Brown chooses which questions to ask during the actual test from the "preemployment ques- tions" section of the test form. The machine's responses to these questions are analyzed to determine whether the individual was deceptive. The individual's responses during the actual test are not recorded. The question propounded during pretesting that occa- sionally got an affirmative response of union membership was: "Have you ever belonged to any hobby groups, social clubs, school groups, business or community club?" When individuals responded that they belonged to a union, Brown would not pursue the union inquiry; however, whatever was volunteered was recorded. Brown stated that a union affiliation indicated by an indi- vidual would not affect his ultimate hiring recommenda- tion. Failure to recommend individuals is based on theft of money and/or merchandise from previous employers, medical problems that are current and may affect their function on the job applied for, including Respondent's liability for the necessary insurance, use of illegal drugs currently or at anytime on the job, and discrepancies be- tween job applications and information elicited during the polygraph.6 Pamela Campbell Gothart testified that she was em- ployed at Albertsons for 10 months as cosmetics manag- er. She was hired before the store opened and later vol- untarily quit. In November she solicited flower money from the other employees in cosmetics for Nancy Head, cosmetics supervisor in Orlando. Gothart testified that she solicited the funds on the selling floor while the de- 6 Respondent, subsequent to the trial, moved to withdraw the originals of R Exhs 9 and 10 and submit copies Because the originals were part of the record I considered, I shall grant Respondent's request of exhibit withdrawal but only after final disposition of the case, including any ex- ceptions and/or appeals partment employees were working. When the solicitation was completed, she ordered the flowers by phone from the store pharmacy and had the card read, "From the cosmetics department at 4348." Gothart was later thanked for the flowers and card. At Christmastime, the cosmetics and drug wall employees collected money from each other to buy a Christmas gift for Stevens, the drug manager. When the money was collected, someone went outside the store to purchase the gift, and the fol- lowing day it was presented to Stevens while he worked at the store safe. Stevens was surprised when the gift was presented to him. When Stevens was presented his gift, he suggested that a gift should be bought for Malm- berg. One of the employees collected the money, includ- ing a contribution from Stevens, and during lunch hour purchased the gift and later presented it to him in his office. A card was purchased in the store and taken to the back where employees signed the card that was also presented to Malmberg. Richard Lee Stevens testified that he was drug manag- er at Huntsville from November 1981 through February 1982. On December 23 or 24 as he walked through the drug department, he was stopped by a group of female employees and presented a Christmas gift card. His gift was a desk plaque and within minutes he took it upstairs to his desk. While he was at his desk, the same group of employees were presenting a gift to Malmberg in his office. Stevens was not aware how the money was col- lected for either gift and did not contribute to Malm- berg's gift or sign the Christmas card. The employees who gave the gifts were cosmetics and drug wall em- ployees. Analysis and Conclusions The conduct complained of in this case covers a 2- month period from the prehire polygraph examinations in September to the arrests for trespass in November. Al- though the General Counsel's complaint alleges an un- lawful promulgation of a no-solicitation rule, no evidence was proffered to support either the motivation for publi- cation of the rule or the timing of the promulgation. There remains, however, several issues of facial validity of three separate rules and the lawfulness of their mainte- nance to be determined in conjunction with other com- plaint allegations. A. Interrogation and Threats Bailes and Woodley both testified that Brown, the polygraph examiner, asked questions about their union involvement and that of their spouses. They also testified that they made responses indicating union affiliations for themselves or their husbands. Brown admittedly received some employees, during the examinations , a past union affiliation of the examinee or a member of the family. Of the 141 polygraph reports, 11 contained notations of union affiliation. The reports on Bailes and Woodley did not contain any such notations. Brown stated that he always noted any oral responses made by the examinees during the pretest interview and that the pretest was the only portion of the test in which such responses are noted. During the actual testing, only the examinees' ALBERTSONS, INC. 189 physiological responses are noted and those are printed by the machine itself. Brown's testimony was straightfor- ward and did not appear, guarded. He was neither eva- sive nor listless in his responses but attempted to answer all questions put to him. I credit Brown's denial that he asked union affiliation questions of Bailes and Woodley during the examination . I also discredit Bailes and Wood- ley in relation to such questions being asked. In addition to the unexplained hiatus in the recall of both witnesses, I found both witnesses much too curt during their testi- fied recall of the events. Additionally, the plausibility of their testimony is contrary to the objective evidence in the record. The General Counsel further contends that the presence of union affiliation notations on the 11 re- ports in the record in conjunction with the failure to rec- ommend 6 of the employees for hire are probative of co- ercive interrogation during the examination. Brown's tes- timony of the question propounded which received the union response was not only plausible and credible but fit logically within the framework of the printed test forms and the various notations shown on the exhibits. As Brown stated, some people volunteer nothing, some a little, and some a lot. I conclude and find that the exa- minees, including Bailes and Woodley, were not coer- cively interrogated during the polygraphs. I further con- clude and find that the volunteered responses by several employee prospects during the polygraph examinations did not influence Brown's recommendation for hire. Thus, the admitted presence of the union affiliation nota- tions were not used in a manner inconsistent with all other information acquired during examinations. There- fore, I shall recommend dismissal of the allegation relat- ing to the polygraph examinations. David Eng ' credibly testified that he was queried by Supervisor Stringfellow while working. Although, of the three separate conversations, Eng initiated one by men- tioning the company letter, Supervisor Stringfellow went beyond any permissible colloquy on the letter by asking Eng if he was involved with the Union. More particular- ly, since in the first conversation Eng had told Stringfel- low of his prior union activity and resulting discharge. As if to cap off the conversations, Stringfellow then ut- tered an implied threat of discharge to Eng if he became so involved again. Both the questions and the threat were very clear. In addition to Eng's credibility, his tes- timony is uncontroverted. I, therefore, conclude and find that Respondent, through Supervisor Stringfellow, coer- cively interrogated and threatened employee Eng in vio- lation of Section 8(a)(1) of the Act and shall order the violations remedied. The General Counsel alleged unlawful interrogation of employees by Supervisor Pat Layne. The record shows that the interrogations occurred while Layne was solicit- ing for the Union. She would first inquire of employees how they felt about the Union, then would solicit signa- tures on union cards. In total, Layne solicited about six employees for the Union. The record evidence clearly shows that Layne solicited several employees in the store while the employees were working although when her supervisor, Malmberg, questioned her union activities, she claimed all the union activity occurred off the prop- erty. Layne also expressed ignorance of the company no- solicitation rule and apparently any involvement by a su- pervisor on behalf of the Union. She did tell Malmberg that it would not happen again, but she lied. No sooner was she out of Malmberg's sight than she began again so- liciting for the Union. Layne was a recalcitrant supervi- sor who was intent on helping the Union contrary to her Employer's wishes. The coercion of employees, who may have wished to remain neutral, by a prounion super- visor was not fully on the record. A prounion supervi- sor, acting contrary to the employer's interest, can hardly coerce prounion employees during a union solici- tation. Moreover, Layne's alleged commission of an unfair labor practice was not beneficial to Respondent whereby Layne's agency status in order to bind Re- spondent would be supported. In fact, the opposite exists. Layne knowingly went beyond the scope of her agency as a supervisor and intentionally solicited employees against the interest of her Employer. Although Layne feigned ignorance of her accepted role as a supervisor when Malmberg confronted her with her actions, I find that Layne was well aware of her expected procompany stance during the campaign. She simply disregarded what was expected of her to do that which in her mind was paramount; solicit for the Union. I find Layne's remark to cashier Watson instructive of Layne's main purpose while employed as a supervisor for Respondent, "fill the front end [cash register] with union supporters." Layne's support of the Union, itself, bordered on the un- lawful and any coercion demonstrated by Layne was beneficial to the Union and those employees soliciting for the Union. Therefore, in view of all the circum- stances, I conclude and find that Layne's solicitations of employees did not include coercive interrogation charge- able to Respondent. Accordingly, I shall dismiss the complaint allegation of interrogation by Layne as an agent and supervisor of Respondent. Woodley's testimony that Malmberg threatened her with arrest if she came back to the store after her dis- charge I do not credit. Woodley's testimony of the events in November, while not completely un- trustworthy, was dotted with suppositions and specula- tion if not outright fabrications. Woodley appeared to avoid several affirmative responses that she considered injurious to her cause. Thus, she stated she never saw the no-solicitation posters nor heard discussions of the no-so- licitation rule when the record evidence establishes con- vincingly that the rule was discussed during orientation and the rule was posted in three conspicuous places in the store. Woodley stated that she was told on several occasions by Malmberg and her drug manager, Valle, that breaktime was her own and she could do what she wanted, but she avoided any correlation with the no-so- licitation rule of Respondent. She chose instead to associ- ate any knowledge she had of a no-solicitation rule to the Kroger employee, Smith, and his admonitions ex- pressed when he gave Woodley and Bailes the union cards. In my view Woodley's recall of the termination conversation as it relates to an arrest was prompted more by the events which subsequently transpired rather than any anticipatory exchange by Malmberg. Bailes, who was terminated at the same time for the same reason, 190 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD gave no such arrest testimony and indeed both Woodley and Bailes testified that the subsequent incursion back into the store was prompted by the union representatives and the union attorneys. I, therefore, conclude and find that no threat of an arrest was made to Woodley and shall dismiss that allegation of the complaint in regard to employee Woodley. B. No-Solicitation/No-Distribution/No-Access Rule The record evidence clearly shows that Respondent, on hiring employees, has them read and sign "Company Personnel Policies." In addition, prior to the store open- ing for business, a no-solicitation poster was posted in three conspicuous places in the store, two upfront on the entrance doors and one framed on the wall upstairs by the timeclock. Due to the Board's change in case law (TRW Inc., 257 NLRB 442 ( 1981)) a replacement poster originated in November and was distributed to the stores for posting November 10. Malmberg effected the ex- change of posters on November 12. Although the latest poster incorporated additional language, there was no specificity communicated to employees on its posting. Respondent's three no-solicitation rules contain differ- ent language. The Company's personnel policy sheet prohibits solicitations during worktime and on store prem- ises at anytime. It also refers the reader to the rule posted in the store. The posted rule extant from the store open- ing to approximately November 12 prohibited solicitation in the selling areas of the store and distribution of litera- ture during working time or in working areas. The present rule carries the same language as its predecessor with an addition of a clarifying paragraph for working time. The record evidence shows that the stores delicatessen area is a combination of public area, selling area, and nonselling area. Indeed, the cafeteria area of the delica- tessen is expressly designated as a break area for employ- ees off the clock. Thus, employees on break in the deli- catessen are free to solicit and be solicited whereas the employees on duty in the delicatessen would not have such freedom. Whether nonemployees have a right to so- licit off-duty employees in the delicatessen is not reached because that issue, although parenthetically referred to by the General Counsel and the Charging Party, is not in this case. Additionally, Malmberg referenced the parking lot as a work area. The record does sustain the parking lot as a work area at times for the courtesy clerks (bag boys or girls) but otherwise the parking lot is a non work area. The Board law is clear. No-solicitation rules suscepti- ble to an interpretation that solicitations are prohibited during all business hours, including employees' nonwork- ing mealtimes and breaktimes, are unlawful. An ambigu- ous rule, however, may be made lawful in the Board's view. An employer that does not intend for its employ- ees to misinterpret the rule against solicitation need only communicate to employees that the restriction of the rule does not apply during break periods and mealtimes or other specified periods during the workday when em- ployees are properly not engaged in performing their work tasks. A successful communication to employees lies in completeness of the clarification. There should be no ambiguity left. Here, Respondent promulgated two rules (company personnel policies and first posted rule) with little or no clarification for employees. Indeed, as Materni testified, any explanation of either rule's lan- guage was determined solely by inquiries from employ- ees that may or may not be forthcoming. In addition, any such inquiries could be limited to less than all the employees since the orientation sessions wherein the in- quiries would originate were divided into three sessions among the approximately 150 employees. That method or approach to explanation of clarification falls far short of what the Board requires to validate a presumptively invalid rule. With regard to the present rule and its self- contained clarification of working time, there still exist unexplained ambiguities. The employees have two main break areas; the employee breakroom and the public por- tion of the delicatessen. The employees also have a des- ignated parking area in the store's public parking lot. Malmberg's interpretation (the delicatessen is a selling department like all other departments in the store) and resultant enforcement of the no-solicitation rule prohibits employees to solicit one another in the public snack sec- tion of the delicatessen. Albeit, Malmberg may never have enforced the rule against employees on break in the delicatessen, employees are restrained in exercising their organizational rights by the printed rule prohibiting so- licitations in selling areas. Absent a specific explanation to employees that off- duty employees can solicit in the delicatessen snack sec- tion, both posted rules are invalid. The invalidity of the referenced posted rule likewise fails to validate the "Company Personnel Policies" rule, which is facially in- valid. In my view any referenced clarification of a rule must itself be wholly valid to be effective. Malmberg's assessment that the parking lot is a work area is subject to several attacks. As a work area, employees could be confused about their rights in the parking lot when working or when in nonwork status, particularly in the absence of an explanation to employees, other than cour- tesy clerks, from Malmberg. The identical confusion would exist for any off-duty employee wishing to distrib- ute literature relative to organizational rights to employ- ees to exercise these rights. Any proscription in the park- ing lot is invalid as an infringement of employees' Sec- tion 7 rights. In summary, the article in "Company Personnel Poli- cies" relating to solicitations is invalid; the two posted no-solicitation/no-distribution/no-access rules are invalid; the snack section of the delicatessen is a nonselling, non- work area for off-duty employees and the parking lot is a nonwork area except in those instances when courtesy clerks are performing their work function of collecting shopping carts or cleaning up the area. I conclude and find that Respondent has violated Sec- tion 8(a)(1) of the Act by maintenance of three separate no-solicitation rules and shall order a remedy. The no- distribution portions of the two posted rules are likewise facially invalid and shall be remedied. The several acts offered as solicitations by employees contrary to Respondent's no-solicitation rule are, in my view, not probative of disparate treatment by Respond- ent. The charity raffle which Malmberg authorized was ALBERTSONS , INC. 191 outside the store and only involved the Respondent's sidewalk. There was no solicitation allowed in the store of either employees or customers . The incidents, wherein employees directed persons seeking charitable donations to Malmberg, are not solicitations coming within the purview of work rules for employees. The "Home Interi- ors" instance was not substantiated 'as a solicitation in the selling area of the store, but rather occurred in the breakroom during nonwork time of the participants. The Pepsi Cola deliveryman did in fact solicit an employee on the selling floor, but no evidence was proffered to evince management's knowledge of the solicitation or any resultant condonation. The collection of money for a wedding present was restricted to a very few employees and without knowledge of supervision and certainly at a time when the recipient was not a supervisor . The col- lection by employees to buy flowers for a hospitalized employee, although not entirely clear, appeared to occur in the proximity of the backroom, a nonwork area of the store. The Christmas presents for Malmberg and Stevens were presented during worktime and, at least, partially solicited during worktime in selling areas of the store; however, no supervisor was involved in the solicitations nor does the credible evidence show that any supervisor had knowledge that the solicitations had taken place. Deacon's testimony of the solicitation for a baby gift was insubstantial to constitute "a solicitation" and further her testimony showed that her knowledge of the fact was based on supposition and guess work rendering the testi- mony nonprobative of the fact. An employer's tolerance of a beneficient solicitation, in itself, does not constitute evidence of disparate treatment between union solicitations and other solicitations. Like- wise, isolated incidents of digression from a no-solicita- tion rule, when known to management , do not reflect the type of widespread worktime solicitation indicative of disparate application of the rule . The Board does not use a per se approach to proven solicitations but rather eval- uates the quantum of incidents involved to determine whether unlawful discrimination has occurred . Here, the quantum of proven acts of solicitations, known to man- agement, do not evidence disparity in application of Re- spondent's rule. C. Discharges Bailes and Woodley were admittedly discharged for violating Respondent's no-solicitation/no-distribution/no- access rule that was posted in three conspicuous places in the store. The credible record evidence shows clearly that both Bailes and Woodley, contrary to their protesta- tions, did solicit working employees in the selling areas of the store. Albeit Malmberg testified that his decision to discharge was based partially on reports from employ- ees accusing Bailes and Woodley of prounion intimida- tion during their union solicitations , he also testified that he considered the alleged intimidations as the manner in which Bailes and Woodley engage in solicitations. That is to say that Malmberg did not view the alleged intimi- dations as separate and distinct from the contemporane- ous solicitations. As I view the circumstances , it would make no difference whether Malmberg separated or combined the acts of solicitation and the manner in which they were conducted . The undisputed fact is simple, Bailes and Woodley did not engage in union ac- tivities within the limits of Respondent's published rule and were discharged for it. It is well established that if an employee is disciplined pursuant to an invalid no-solicitation rule, then the disci- pline imposed under the rule is presumptively invalid, notwithstanding that the employee solicited while work- ing. Flav-O-Rich Inc., 234 NLRB 1011 (1978). The pre- sumptive invalidity of the discipline vitiates all actions against the employee including discharge. Respondent can, however, rebut the presumption by demonstrating convincingly that the solicitation impaired the employ- ees' job performance or the performance of other em- ployees, and this impairment was the reason for the dis- charge. The General Counsel has sustained her burden of pre- senting a prima facie case of discrimination in the dis- charges of Bailes and Woodley . 7 Respondent's burden of going forward with the evidence to 'rebut the General Counsel's prima facie cases has not been sustained. To put it another way, Respondent has not shown that it would have discharged Bailes and Woodley absent their union activity. At first glance it appears that Respondent, in discharging Bailes and Woodley, was reacting to the reported threats against several employees and thereby sustaining its rebuttal of a discharge under an invalid rule and/or rebutting the General Counsel 's prima facie case. In the last analysis, however, that is not the case for Re- spondent failed to fully investigate the incidents as re- ported by several rank-and-file employees . Moreover, the threat reported by Deacon is not so curiously subject to a question of credibility. Malmberg acted on reported facts from one side of the conduct only , failing to make Bailes and Woodley aware of the allegations against them and further failed to allow Bailes and Woodley an opportunity to explain or deny the alleged misconduct. Further, Malmberg had considered , at approximately the same time, identical transgressions by a supervisor but, rather than issue discipline, simply explained Respond- ent's demand that supervisors not engage in prounion ac- tivities. I find Malmberg's disparate treatment of identical actions instructive of his intent (no matter how illogical, because in my view a prounion supervisor actively en- gaged in union solicitations would appear more adversar- ial than prounion employees engaged in exercising their rights) to rid himself of prounion employees . Malmberg knew from his reports that Bailes and Woodley were the leaders and chose to squelch the organizational drive among employees by eliminating the rank -and-file leaders rather than offering instruction on company policies as he did with Layne. The record is not clear with regard to the locus of the solicitations considered to be outside the work rules; however, it is clear that only Layne's so- licitations in the parking lot were considered by Malm- berg as infractions of Respondent's rules in relation to the parking lot. Although Malmberg was exercising his delegated discretion as a store director in deciding the necessary discipline, his decision to discharge was not 7 Wright Line, 251 NLRB 1083 (1980). 192 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD within the Respondent's stated causes for immediate dis- missal. Albeit Respondent's animus can be inferred from the record evidence when considered in toto, the timing of the discharges aid in sustaining the General Counsel's case. Thus, the General Counsel's sought after inference of unlawful motivation rises to a certainty in light of the disparity exercised under Respondent's published discipli- nary rules. Moreover, such facts (as shown above) have a tendency to establish that Respondent's real reason for the discharge was the nature of the protected activity, and not the violation of a "work rule" or in the alterna- tive that soliciting for the Union was the most serious of "work rule" violations. Accordingly, I conclude and find that Respondent's discharges of Bailes and Woodley violated Section 8(a)(1) and (3) of the Act, and I shall order that each be remedied. D. Threats of Arrests and Arrests The General Counsel's complaint alleges that employ- ees Bailes and Woodley and Union Representatives Powers and Norwood were threatened with arrest and were arrested because of their presence in a public area of the store and because of their membership in, and ac- tivities on behalf of, the Union. Although neither Powers nor Norwood testified, there is little dispute, if any, of the facts surrounding the ar- rests. Several facts are patently clear. Bailes, Woodley, Powers, and Norwood did not enter the store to engage in any organizational activity; no attempts was made by any of them to solicit any of Respondent's employees; Bailes' and Woodley's stated purpose was to display union support for their two individual causes and was in- stigated by either the union attorneys or Powers and Norwood; Malmberg's "not welcome in the store" ad- monition was directed to Bailes and Woodley, where- upon Powers and Norwood interjected themselves pro- claiming that Bailes and Woodley had a right to enter a public store; neither the right to access of employees nor nonemployees was raised by the group; Malmberg felt his authority as store director was challenged and the group refused to leave the store; Malmberg did not invoke the no-solicitation rule either for the employees or the nonemployees; Malmberg called the police who gave the four an opportunity to leave the premises or be arrested; Powers not only refused to leave but chal- lenged the policeman's individual ability and was arrest- ed; all four were escorted from the store; while exiting, Bailes and Woodley, at the instigation of Norwood, began loudly chanting, "Go Union" and continued until the policeman quieted them down; the two additional en- tries on Respondent's premises that same day were sub- stantially the same and resulted in all four being arrested the second time and Powers and Norwood being arrest- ed the third time. Further, the General Counsel has not argued access rights to the delicatessen for organizational purposes, nor has the General Counsel sought an affirmative order to give the Union, or its supporters, organizational access to the delicatessen. The General Counsel does contend that the arrests are probative of Respondent's animus toward the union and prounion employees and seeks attorney fees and cost expended in defending the arrests in state court. The General Counsel apparently bases her theory of the arrests as violative of Section 8(a)(1) on the suppo- sition that the group was using the delicatessen in a manner consistent with its purpose and was asked to leave because of their known union support. (Besides Powers and Norwood introducing themselves to Malm- berg as union representatives just prior to the first arrest, all four individuals wore union jackets displaying a large union logo.) The Charging Party argues, "clearly the fact that they did not intend to solicit openly for union membership ap- plications does not change the fundamental objective of the visit." The object of the visit being to display the Union's support for Bailes and Woodley. The Charging Party also contends that the Act was violated because Powers and Norwood were arrested because they were union representatives. Albeit several cases were cited by each party, I find little aid for my determination other than an inapposite comparison of the case law and the factual foundations therefor. The thrusts of the cases are twofold: the pre- emption of Section 7 rights over state property law where access is denied and the Board's remedial preroga- tives under the statute. As regards preemption, the "tres- passers" versus "invitees" circumstance is not presented in this case. For the Federal labor law to preempt state property law, there must be an issue involving communi- cation of information on the right to organize. Any such communication is expressly absent in this record. I do not consider Bailes and Woodley's desire to show the other employees in the store that the Union is supporting them (Bailes and Woodley) as a right protected by Sec- tion 7 of the Act. To hold otherwise would dilute the basic rights to organize and lower the correlative right to access to a carnival atmosphere of logos, sign, sym- bols. In my view, such an atmosphere would constitute prostitution of important and fundamental rights of em- ployee communication. More particularly, I find Bailes' and Woodley's use of the event (notwithstanding the ini- tiative was not their own) to chant "Go Union," instruc- tive of an atmosphere that should be denied in public selling or nonselling areas. In each of the cited cases the Board was faced with remedying an unfair labor practice involving an affirma- tive denial of Section 7 rights and the resultant 8(a)(1) violation. Here the General Counsel's theory assumes coverage under the statutory umbrella due to the pres- ence of employees and union representatives in a public store and because of their membership in, and activities on behalf of, the Union. The mere presence in a public place, without more, does not constitute conduct protect- ed by Section 7 of the Act. Thus, the Employer had the right to invoke the state property law and deny access without regard to the manner and means employed. Here, it is clearly, evident that no arrest would have re- sulted had Powers or Norwood not challenged the police authority and state law. Just as clearly, the second and third entries were made simply to confront the Em- ployer and the state property law again. It is a fact that all four of the group were members of a labor organiza- ALBERTSONS, INC. tion, but there is no evidence that such membership was the cause of the arrest. But for, the aforementioned need to test the policeman's authority and individual capabil- ity, no arrest would have been made. Union membership was never in issue. Further, there is no evidence of any union activity or the exercise of any organizational rights protected by Section 7 of the Act. Without such activity or exercise, there can be no conduct cognizable by the statute. Federal labor laws does not grant employees or nonemployees an unrestricted right of access even to communicate information on the rights of employees to organize. Obviously, where, as here, the communication desired is not founded on organizational rights of em- ployees, but rather on individual emotions the Federal labor law is unavailing . An employer's legitimate interest in controlling access to its property can only be out- weighed by employees' organizational rights as defined in Section 7 of the Act. I, therefore, conclude and find that Respondent has not violated Section 8(a)(1) of the Act by initiating the arrests of Bailes, Woodley, Powers, or Norwood on any of the three occasions under scruti- ny here. Further, if any threat of arrest was uttered, it was made by the uniformed policeman of Huntsville, Alabama, and, therefore, is not chargeable to Respondent or its agent, Malmberg. CONCLUSIONS OF LAW 1. Respondent has, through its supervisor, Jack String- fellow, interrogated and threatened its employees in vio- lation of Section 8(a)(1) of the Act. 2. By maintaining a no-solicitation/no-distribution/no- access rule in three separate printed forms, each of 193 which fails to clarify for employees their right to solicit in behalf of the Union during nonwork times and in non- work areas and which prohibits distributions during worktime in work areas without explanation, Respondent has interfered with, coerced, and restrained its employees in the exercise of their Section 7 rights in violation of Section 8(a)(1) of the Act. 3. Respondent's terminations of Debra Bailes and Can- dace Woodley on November 23 were discriminatory and in violation of Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices, I find it necessary to order the Respondent to cease and desist therefrom and to take certain affirmative action designed to effectuate the poli- cies of the Act. The Respondent having discriminatorily discharged employees Debra Bailes and Candace Woodley, I find it necessary to order it to offer them full reinstatement to their former positions or, if those positions no longer exist, to substantially equivalent positions, with backpay computed in the manner prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), and Florida Steel Corp., 231 NLRB 651 (1977),8 from November 23, 1981, the date of discharge, to the date of proper offers of reinstatement. [Recommended Order omitted from publication.] 8 See generally Isis Plumbing Co., 138 NLRB 716 (1962).