Harry M. Stevens Services, Inc.

National Labor Relations Board - Board Decisions

Nov 8, 1985

277 N.L.R.B. 276 (N.L.R.B. 1985)

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