Albertsons, Inc

National Labor Relations Board - Board Decisions

Jun 16, 1988

289 N.L.R.B. 177 (N.L.R.B. 1988)

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).