Albertson's, Inc.

National Labor Relations Board - Board Decisions

Sep 29, 1995

319 N.L.R.B. 93 (N.L.R.B. 1995)

93
319 NLRB No. 18
ALBERTSON’S, INC.
1 The Respondent only excepts to the judge’s finding that the Re-
spondent violated Sec. 8(a)(1) of the Act by instructing employees
that they were no longer able to speak to the union representative
on worktime and that they would be disciplined if they violated this
directive.
2 In its exceptions, the Respondent contends that the portion of the
complaint regarding Supervisor John Hayward’s directive to the em-
ployees, on July 29, that they could not speak to the business agent,
should be deferred to the parties’ grievance procedure pursuant to
the collective-bargaining agreement. We reject the Respondent’s ar-
gument because it was not raised in a timely manner in the Re-
spondent’s answer. United Technologies Corp., 274 NLRB 504
(1985). In its exceptions to this violation, the Respondent also relies
on Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992). The Board has
found in circumstances similar to those here that Lechmere does not
apply. See CDK Contracting Co., 308 NLRB 1117 (1992). See also
Fabric Warehouse, 294 NLRB 189 (1989), enfd. 902 F.2d 28 (4th
Cir 1990).
3 We agree with the Respondent that the judge’s recommended
Order and notice should be modified to reflect the parties’ agreement
regarding union visitation. The Order and notice are modified to use
the singular of ‘‘representative’’ and to add the following language:
‘‘provided that the business representative is not interfering with the
duties of the employees.’’ The Respondent also argues that the visi-
tation language in the notice should only be posted at store 781,
where the incident involving Hayward’s directive occurred. We dis-
agree. The Respondent continues to assert that Hayward’s directive
was a ‘‘plausible’’ interpretation of the parties’ collective-bargaining
agreement. In light of the fact that the same collective-bargaining
agreement applies to all four stores involved in this case, we find
that the visitation provision should be included in the notice posted
at each store.
Albertson’s, Inc. and United Food & Commercial
Workers Union, Local 373, a/w United Food
and Commercial Workers International Union,
AFL–CIO. Cases 20–CA–25393, 20–CA–25513,
20–CA–25530, and 20–CA–25742
September 29, 1995
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND TRUESDALE
On May 1, 1995, Administrative Law Judge Burton
Litvack issued the attached decision. The Respondent
filed exceptions and a supporting brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and record in
light of the exceptions1 and brief and has decided to
affirm the judge’s rulings, findings, and conclusions,2
and to adopt the recommended Order as modified.3
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent,
Albertson’s, Inc., Vacaville and Fairfield, California,
its officers, agents, successors, and assigns, shall take
the action set forth in the Order as modified.
1. Substitute the following for paragraph 1(e).
‘‘(e) Stating to, or in the presence of, employees that
they are not allowed to speak to a representative of the
Union on the clock; that they are only allowed to
speak to a representative of the Union when off the
clock or on breaks; and that they will be disciplined
for violating such directives; provided, however, that
the union representative is not interfering with the du-
ties of employees.’’
2. Substitute the attached notice for that of the ad-
ministrative law judge.
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 or-
dered us to post and abide by this notice.
WE WILL NOT promulgate, maintain, and enforce
any rule prohibiting the wearing at work of any pins,
badges, and buttons not issued by us, including any
pins, badges, and buttons indicating support for United
Food & Commercial Workers Union, Local 373, affili-
ated with United Food and Commercial Workers Inter-
national Union, AFL–CIO, the Union, which is the
representative for purposes of collective bargaining of
all employees covered in its March 1, 1991 through
March 4, 1995 collective-bargaining agreement with
us, and without affording prior notice to, and affording
the Union an opportunity to bargain over, those rules.
WE WILL NOT promulgate, maintain, or enforce any
overly broad rules prohibiting the wearing at work of
any pins, badges, and buttons not issued by us, includ-
ing any pins, badges, and buttons indicating support
for the Union.
WE WILL NOT require our employees to cease wear-
ing any pins, badges, or buttons indicating support for
the Union when those orders are based on overly broad
rules prohibiting the wearing at work of any pins,
badges, or buttons not issued by us.
WE WILL NOT coerce our employees who file con-
tractual grievances against us.
WE WILL NOT state to, or in the presence of, our
employees that they are not allowed to speak to a busi-
ness representative of the Union while on the clock;
that they are only allowed to speak to a business rep-
resentative while off the clock and on their breaks; and
that they are subject to being disciplined for violating
the above directives; provided, however, that the busi-
ness representative is not interfering with the duties of
the employees.
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94 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Unless stated otherwise, all events here occurred during 1993.
2 These matters were originally consolidated for trial with four
other cases; however, the parties arrived at a non-Board settlement
of the other matters and the cases were severed from the instant pro-
ceeding.
3 Respondent admitted the jurisdictional allegations of the three
complaints, including that, at all times material herein, it has been
an employer within the meaning of Sec. 2(2), (6), and (7) of the Act.
Further, Respondent admitted that the Union is a labor organization
within the meaning of Sec. 2(5) of the Act.
WE WILL NOT create among our employees the im-
pression that we are engaging in surveillance of their
activities in support of the Union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
WE WILL rescind any overly broad rules which pro-
hibit our employees from wearing at work any pins,
badges, or buttons not issued by us, including any
pins, badges, and buttons indicating support for the
Union.
ALBERTSON’S, INC.
Eugene Tom and Ivan Rodriguez, Esqs., for the General
Counsel.
Robert L. Ford, Esq. (Seyfarth, Shaw, Fairweather &
Geraldson), of San Francisco, California, and Peter H. An-
derson, Esq. (Bogle & Gates), of Seattle, Washington, for
the Respondent.
Dennis Warde, of Vallejo, California, for the Charging Party.
DECISION
STATEMENT OF THE CASE
BURTON LITVACK, Administrative Law Judge. The original
and first amended unfair labor practice charges in Case 20–
CA–25393 were filed by United Food & Commercial Work-
ers Union, Local 373, affiliated with Food and Commercial
Workers International Union, AFL–CIO (the Union) on June
7 and July 8, 1993,1 respectively, and, based on the unfair
labor practice charges, on July 20, 1993, the Acting Regional
Director of Region 20 of the National Labor Relations Board
(the Board) issued a complaint, alleging that Albertson’s,
Inc., Respondent, had engaged in conduct violative of Sec-
tion 8(a)(1) and (5) of the National Labor Relations Act (the
Act). The unfair labor practice charge in Case 20–CA–25513
was filed by the Union on July 22, 1993; the unfair labor
practice charge in Case 20–CA–25530 was filed by the
Union on July 30, 1993; and, on September 30, 1993, the
Regional Director of Region 20 issued a consolidated com-
plaint in these matters, alleging that Respondent had engaged
in conduct violative of Section 8(a)(1) and (5) of the Act.
The original and first amended unfair labor practice charges
in Case 20–CA–25742 were filed by the Union on November
12 and December 28, 1993, respectively, and based on those
unfair labor practice charges, the Regional Director of Re-
gion 20 issued a complaint, alleging that Respondent had en-
gaged in conduct violative of Section 8(a)(1) of the Act. Re-
spondent timely filed answers to the complaints, essentially
denying the commission of any of the alleged unfair labor
practices. The above-mentioned matters were consolidated
for hearing,2 and, as scheduled, they came to trial before me
in San Francisco, California, on April 7, 8, and 18 and May
5, 1994. At the trial, all parties were afforded the right to
examine and cross-examine all witnesses, to offer into the
record any relevant evidence, to argue their legal positions
orally, and to file posthearing briefs. The latter documents
were filed by counsel for the General Counsel and by coun-
sel for Respondent and have been carefully considered. Ac-
cordingly, based on the entire record, including the post-
hearing briefs and my observations of the testimonial de-
meanor of the several witnesses, I make the following
FINDINGS OF FACT3
I. ISSUES
It is alleged that Respondent engaged in conduct violative
of Section 8(a)(1) of the Act by promulgating and maintain-
ing a written rule for its northern California retail stores, in-
cluding at its store 781 in Vacaville, California, prohibiting
its employees from wearing, at work, any pins, badges, or
buttons on their uniforms other than pins, badges, or buttons
issued by Respondent; by promulgating, at its store 772 in
Vacaville, California, a written and an rule, prohibiting its
employees from wearing, at work, any pin, badge or button
not issued by Respondent; by orally promulgating, at its store
750 in Napa, California, a rule, prohibiting its employees
from wearing union pins at work; by orally promulgating, at
its store 781 in Vacaville, California, rules, prohibiting its
employees from speaking with the Union’s business rep-
resentatives unless the employees are off the clock and on
their own time and providing for disciplinary action against
employees who speak with the Union’s business representa-
tives while on the clock. It is also alleged that Respondent
violated Section 8(a)(1) and (5) of the Act by implementing
the aforementioned rules without prior notice to the Union
and without affording the Union an opportunity to bargain
with Respondent with respect to those rules. It is further al-
leged that Respondent engaged in conduct, violative of Sec-
tion 8(a)(1) of the Act, by interrogating employees about
their union activity at its store 755 in Fairfield, California,
and by creating the impression, amongst its employees at its
store 781 in Vacaville, California, that their union activities
were under surveillance by Respondent. Respondent denied
that it engaged in any of the above-alleged unfair labor prac-
tices.
II. RESPONDENT’S ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
1. Background
The record establishes that Respondent, a Delaware cor-
poration with its headquarters in Boise, Idaho, is engaged in
the retail sale of groceries at numerous locations in the west-
ern United States, including several retail food markets in the
northern California area, and that the facilities, which are in-
volved in this proceeding, are northern California stores lo-
cated in Napa (store 750), Fairfield (store 755), and Vaca-
ville (stores 772 and 781). The record further establishes that
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95ALBERTSON’S, INC.
4 Respondent admitted that the various store directors involved
here were supervisors within the meaning of the Act.
5 Respondent conceded Wilson’s status as an agent within the
meaning of the Act.
the Union is the representative for purposes of collective bar-
gaining of all of Respondent’s employees, working in the job
classifications set forth in the most recent collective-bargain-
ing agreement between the parties, which was effective from
March 1, 1992, through March 4, 1995. Each of the retail
markets, involved here, is under the direction and control of
a store director, who is responsible for applying Respond-
ent’s personnel policies at his or her facility.4
2. Respondent’s prohibition against unauthorized pins,
buttons, and badges
The record reveals that Respondent’s employees are re-
quired to wear uniforms while working. Thus, for example,
male and female checkers, the individuals who are stationed
at the cash registers at the checkout counters, wear navy or
black slacks, a white shirt with Respondent’s logo, a gray
and blue apron with Respondent’s logo, a tie, and a name
badge with a ribbon attached. The record further reveals that
for at least 13 years Respondent has maintained in effect a
document, entitled ‘‘Company Personnel Policies,’’ which
sets forth each of Respondent’s employee personnel policies,
a copy of which is given to each new employee at the time
of hire, and of which the new employees are required to ac-
knowledge receipt by executing the document. Section 3 of
the dress and appearance provision of the personnel policies
states that ‘‘all store employees must wear uniforms or
aprons as provided, with name badges on the left chest. No
other badges shall be worn unless authorized by the store Di-
rector.’’ Georgina Harwood, the customer service supervisor
at store 772 in Vacaville and who, Respondent admits, is a
supervisor within the meaning of the Act, testified that she
explains each provision of the personnel policies to new hires
and that, with regard to the above-quoted provision, tells
them ‘‘that we don’t allow any . . . pins other than pertain-
ing to company business because customers could be of-
fended if they come in and somebody had a political pin or
a religious-type pin.’’ However, notwithstanding Harwood’s
denial that she has ever witnessed employees, at her store,
wearing religious pins, pro-life pins, or picture buttons, af-
fixed to employee uniforms, as will be described infra, bar-
gaining unit employees at store 772 and at Respondent’s
other stores involved here, testified that, prior to March
1993, Respondent did not enforce any practice prohibiting
unauthorized pins and buttons, and that, if applied at all sub-
sequent to the above date, Respondent’s policy, regarding
unauthorized buttons and pins seems to have only been en-
forced as to union-related pins.
In these regards, Dennis Warde, a business representative
for the Union, testified that in early April during a normal
visit to store 781 in Vacaville he was informed by an em-
ployee that she could no longer wear a union pin as employ-
ees were no longer permitted to do so. According to Warde,
the employee mentioned a notice that had been posted on a
bulletin board located next to the store director’s office.
Warde then went upstairs to where the employee had seen
the notice and discovered the General Counsel’s Exhibit 4
posted on the specified bulletin board. This ‘‘confidential’’
memorandum, dated March 26 and issued by Pat Shipley,
Respondent’s employee development manager for its north-
ern California division, is directed to the store directors in
her division, and concerns Respondent’s dress code and the
wearing of nonauthorized pins and badges. It reads, in part,
as follows:
I would like to address our dress code policy on em-
ployees wearing pins-badges-buttons that are not dis-
tributed to them by Albertson’s. These are not part of
our dress code. The only items of this type that are cur-
rently authorized as part of our uniform policy are
items supplied by Albertson’s, i.e.:
Name Badge
Ribbon
Fast, Friendly Service Pin/Award
Certified Checker Pin
A+ Award Pin
I Can—I Care Button
Hot French Bread Stickers/Hats
Pins issued in conjunction with OUR Sales Promotions
only. Any pin from any other source is not authorized.
Please see that this is in effect and in your store in all
departments and that you personally handle.
Testifying that he regularly visited store 781 prior to and
subsequent to discovering the above document, Warde stated
that he had always observed employees wearing union but-
tons but that ‘‘there were many people, who had been wear-
ing buttons prior to the posting of [the] notice that would no
longer wear a Union pin.’’
Although not entirely clear from the record, Warde appar-
ently discussed Shipley’s memorandum with Frank Collard,
who is Warde’s superior in the Union’s official hierarchy.
Then, on or about April 7, Collard wrote to Jacqueline Wil-
son, a contract administrator in Respondent’s labor relations
department and the individual with whom the Union deals
concerning contractual matters,5 regarding Shipley’s memo-
randum and its effect on employees, who desired to wear
union insignia items on their uniforms. Thereafter, on April
22, Wilson wrote to Collard and, after criticizing Collard’s
impudence for writing his letter, stated:
With regard to our policy concerning the wearing of
union buttons, employees may wear union buttons in
the non-selling areas of our stores only provided the
buttons do not offend decency or hamper production. In
1984, we revised our policy concerning them wearing
of union buttons at the direction of an administrative
law judge of the NLRB. The judge held that we may
prohibit union buttons in the selling areas of our stores.
He stated: ‘‘Under the protection of Section 7 of the
Act, employees may wear union buttons or other em-
blems at work to demonstrate union adherence. This
employee right is balanced against an employer’s right
to operate its business, and an employer may restrict
the wearing of union emblems for consideration such as
production, discipline, or customer relations. . . . Ac-
cordingly, we are modifying the rule so that it prohibits
the wearing of union buttons by employees only in sell-
ing areas of the store when employees are working.
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96 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 As at store 781, during his visits to store 750 before and after
his conversation with App, Warde observed employees wearing
union pins but, subsequent to his conversation with App, ‘‘much
fewer people.’’
7 Conceding that G.C. Exh. 2 was prepared pursuant to her instruc-
tions, Harwood asserted that it represented no change from existing
company policy and that it had always been her policy to deny em-
ployees the right to wear any noncompany authorized pins or but-
tons. However, Harwood failed to explain why, if not a new policy,
it was necessary to post G.C. Exh. 2. As to the conversation with
Ward, regarding G.C. Exh. 2, Harwood recalled that the former
asked if she had written it; that she denied it, saying she would put
it on the wall; and that Ward replied that he would not put his name
to such a document.
8 According to Borba, she had been warned ‘‘more than once’’
during February and March about wearing a union pin on her uni-
form and, prior to 1993, ‘‘I would wear it until they told me to take
it off. . . . I’d take it off . . . and then a few days later I would
replace it on my uniform.’’
9 Fanning, who appeared on behalf of Respondent and who testi-
fied that he was the store director in store 772 only until February
1 when he was demoted to a nonsupervisory position, stated that he
always interpreted the above-quoted provision of the personnel poli-
cies as not applying to employees who worked in the nonselling
areas of his store as ‘‘they had absolutely no customer contact,’’
that, on one occasion, he did speak to Borba about a button on her
uniform, that such occurred 6 months to 2 years prior to the end of
his tenure as store director, and that, while denying threatening dis-
cipline on that occasion, he did request that Borba remove the but-
ton.
Harwood corroborated Fanning as to the date of the end of his ten-
ure as store director and recalled speaking to Borba during the pe-
riod June and July 1992—‘‘she was wearing the union pin and I just
asked her ‘please remove it because it’s not part of the dress code.’’’
Borba asked why, and Harwood reiterated that it was against the
dress code and that ‘‘you don’t wear any pins other than the store
pins.’’
Wearing of union buttons, which do not hamper pro-
duction or offend decency, in the non-selling areas,
such as the back room, lounge or restrooms, or on
break time, is no longer prohibited.’’
On or about May 26, an incident involving enforcement of
Shipley’s March 26 directive occurred. Clifford Carneiro,
who is a receiving and dairy clerk at store 750 in Napa and
who was uncontroverted, testified that as a receiving clerk he
works in the back room, receiving the products ordered from
vendors and, as a dairy clerk, he spends, at least, half the
workday on the sales floor, performing his dairy department
job duties. Continuing, Carneiro stated that, on the above
date, as was his ‘‘regular’’ habit, he wore a union pin, con-
taining the initials UFCW in a straight line, on the strap of
his uniform apron, that, at approximately 9:30 a.m., he was
speaking to a vendor in the store’s receiving area when Mike
App, the store director, approached them, and that App
looked at his pin and said, ‘‘You can’t wear that any more.’’
According to the employee, he just stared at App but obeyed
the latter’s instruction and removed the pin from his apron
strap. Carneiro added that this was the first time any super-
visor questioned his practice of wearing a union pin. Appar-
ently in response to the Carneiro incident, on May 27, ac-
cording to Warde, he visited Respondent’s store 750 in Napa
in order to speak to App, regarding what had occurred. Con-
fronting the store director outside of his office, Warde, who
was likewise uncontroverted as to this conversation, asked if
App had ordered the employee to remove his union pin. App
confirmed the incident, and, after Warde asked why there
had been a policy change, responded that he was ‘‘just en-
forcing Albertson’s dress code policy.’’6 Warde further testi-
fied that, either the next day or later in that week, he placed
a telephone call to Jacqueline Wilson, and, after some brief
introductory conversation, asked what the problem was with
union pins. Wilson replied that the policy was an upper man-
agement decision, that it was not directed at him, and that
he should not vent his displeasure at the store directors.
On or about June 10, according to Business Representative
Warde, he made a regular visit store 772 in Vacaville, and,
as was his wont, went upstairs in order to read the employee
notices, posted on the bulletin board. There, either next to or
affixed to the timeclock, he found the General Counsel’s Ex-
hibit 2, a handwritten notice signed by Georgina Harwood.
The document reads, ‘‘Only company supplied pins &
badges & ribbons may be worn on your uniform at work.
Thanks for your cooperation.’’ Warde immediately photo-
copied the document, located Harwood in the store, and
asked her about the notice. The latter replied that Store Di-
rector George Gaston had instructed her ‘‘to tell people to
take their Union buttons off.’’7 Warde added that at store
772 both prior to and subsequent to his discovery of the
General Counsel’s Exhibit 2, he observed employees wearing
union pins, but ‘‘there are much fewer people wearing Union
pins . . . than before the posting of this notice.’’ Finally,
Warde testified that prior to April 1993 Respondent had nei-
ther given the Union any notice of its intent to change its
practice regarding the wearing of union pins nor afforded the
Union an opportunity to bargain over the change from its
prior practice.
The record discloses that in addition to posting General
Counsel’s Exhibit 2 the managers of store 772 may have
orally enforced its posted policy, banning unauthorized pins
and buttons against two bargaining unit employees. Thus,
Angela Borba, a general merchandise clerk at store 772, tes-
tified that one day in April 1993 while Winfred (Bud) Fan-
ning was the store director she was working in the store’s
customer service booth when Georgina Harwood entered the
booth. At the time, Borba was wearing a rectangular shaped,
1-by 2-inch pin, with the notation ‘‘Union, yes’’ and a
checkmark in a voting space, above her name tag. Harwood
looked at the employee and ‘‘told me to remove my Union
pin . . . and I took it off and put it in my pocket.’’ Harwood
then commented that she had spoken to Borba about wearing
the pin on previous occasions and left the booth.8 According
to Borba, 5 minutes later Fanning entered the booth and
asked her to come with him. ‘‘[H]e took me out of the booth
and . . . he told me that I’ve been warned before, that if I
wore it again that this would be my last verbal warning and
disciplinary action would be taken against me.’’ Realizing
that he was referring to her habit of wearing a Union pin on
her uniform, Borba protested, saying ‘‘that the courts had
said it was unfair practice for the store to discriminate be-
tween union pins and other pins.’’ Fanning replied that they
were not in a court and reiterated that she was not allowed
to wear her union pin.9
Tammy Lynn Cuveros, a current employee who worked at
store 772 through October 1993 as an assistant manager in
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97ALBERTSON’S, INC.
10 While in this position, she was a member of the bargaining unit
represented by the Union.
11 Cuveros testified that she had regularly worn union pins during
the previous 2 years at store 772 and no supervisor had ever asked
her to remove them.
12 On or about this date was the first time Cuveros noticed G.C.
Exh. 2, which had been posted by the employee timeclock.
13 There is no dispute that, from time to time, Respondent requires
its bargaining unit employees to wear special promotional pins, such
as Visa pins. Moreover, on special occasions, including sporting
events (the World Series and the Super Bowl), Halloween, and local
festivals, Respondent encourages bargaining unit employees to wear
appropriate attire rather than their normal uniforms and decorates its
stores in accord with the theme. On these special dress occasions,
Respondent does not dictate the exact attire to be worn.
the service deli,10 testified that, on or about May 20, she had
a conversation with Harwood by the water fountain in the
service deli. Cuveros testified that, at the time, she was wear-
ing a company-supplied ‘‘fast, friendly service’’ ribbon, her
name badge, 1-and 2-year pins, and two union pins (a
‘‘Union, yes’’ pin and a small pin bearing the initials UFCW
in copper letters);11 that Harwood noticed the Union pins and
‘‘told me that I wasn’t allowed to wear any type of pins that
didn’t pertain to Albertson’s, that I needed to take off the
pin.’’ Notwithstanding Harwood’s instruction, Cuveros con-
tinued to wear her union pins and observed that other em-
ployees also were wearing unauthorized pins and buttons,
such as buttons with pictures of children in Little League
uniforms and Lotto pins. Thereafter, according to Cuveros,
on or about June 3, while in the service deli area by the
water fountain, Harwood again noticed that the former was
wearing the two union pins described above, pointed to
them, and said, ‘‘I told you two weeks ago to take [those]
off.’’ This time, the employee removed the pins from her
uniform and placed them in a pocket.12
In addition to the above-described instances during which
Respondent’s managers allegedly orally enforced its policy
against the wearing of unauthorized pins and buttons against
employees who wore union related pins at work, there is also
record evidence that the policy was neither rigidly enforced
against union pins nor ever enforced against other unauthor-
ized pins and buttons. Thus, Angela Borba testified that sub-
sequent to being told by Fanning to remove her union pin
she has worn a different union pin on her uniform while
working and has observed another bargaining unit employee
wearing a large, round Marine World button, bearing pictures
of her children, and other employees wearing pins with reli-
gious symbols, baseball pins, Christmas pins, and San Fran-
cisco 49er pins and that none of the buttons or pins were
company supplied. Likewise, bargaining unit employee, Ruth
Baumann, who worked in the customer service booth at store
781 in Vacaville until she transferred to store 772 in Septem-
ber 1993, testified that during the summer of 1993 she ob-
served other store 781 bargaining unit employees, who had
regular contact with the public, wearing religious symbols,
guardian angel pins, union buttons and pins, holiday pins,
and United Way pins on their uniforms on a daily basis. Fur-
ther, bargaining unit employee Dollie Fleming who worked
at store 781 until January 1994 and then transferred to store
750 in Napa, testified that, from August through December
1993 at store 781, she observed employees who have cus-
tomer contact wearing pins and buttons, which were not
issued by Respondent; that the pins and buttons included lot-
tery pins, buttons with pictures of children, and religious
pins; and that she regularly wore a pro-life pin, a guardian
angel pin, and a union pin. Finally, in this regard, Business
Representative Warde testified that in visits to stores 750,
772, and 781 after June 1993 he regularly observed courtesy
clerks and general merchandise clerks, all of whom had con-
tacts with customers, wearing pins and buttons not issued by
Respondent and that besides union pins, such included Lotto
pins, buttons containing pictures of children, and religious
pins.13
3. The alleged unlawful interrogation of Tina Jimenez
The facts involving this alleged violation of the Act are
not in dispute. Tina Jimenez, who is employed by Respond-
ent as a clerk in the customer service booth at its store 755
in Fairfield, testified that, prior to June or July 1993, she had
been a checker but suffered an injury, which forced her to
take a medical leave of absence. After recovering, she re-
turned to work and was placed in the customer service booth.
A month later, Store Director Brian O’Connell informed Ji-
menez that her rate of pay would be reduced from $15.13
to $9.99 per hour, and she immediately placed a telephone
call to the Union, speaking to Pete Rockwell and Dennis
Warde, her union representatives. A few days later, she filed
a grievance against Respondent over her reduction in wages.
Jimenez further testified that, at approximately 11 a.m. on
September 27, she walked into the customer service booth at
the store and found O’Connell at the door of the safe. Seeing
her, the store director asked, ‘‘‘So, Teen, did you call . . .
Pete Wilson?’ I said, ‘Who?’ He said, ‘Pete from the Union.’
I go, ‘Oh, okay. Pete Rockwell?’ ‘Yes, I did.’ And he goes,
‘What about?’ And I said, ‘Well, you know what about,
Brian.’ And he goes, ‘Well, you’re not going to get your
money back.’ And I said, ‘Well, why not?’ And then he
didn’t say anything.’’ They then discussed how she might re-
turn to her former position, with O’Connell remarking that
she would need a full medical release and Jimenez saying
she would not do so, and whether her injury was work relat-
ed. Jimenez concluded, stating that no one else was present
during the conversation, that it lasted ‘‘just a few minutes,’’
and that, at the time of the conversation, she was aware that
O’Connell knew about the grievance and had spoken with
Dennis Warde about it. Respondent failed to call O’Connell
as a witness in order to confirm or deny the foregoing testi-
mony of Jimenez.
4. Respondent’s rules prohibiting employees from
speaking to union officials while on the clock and
imposing discipline for doing so
Unlike the incident involving employee Jimenez, the inci-
dent, involving the alleged unfair labor practices which oc-
curred on June 29, is a matter of substantial factual dispute.
As background, section 16.1 of the parties’ most recent col-
lective-bargaining agreement provides that:
[T]he business representatives of the Union shall have
the right . . . to visit any and all stores and shall have
free access to the employees during such visits for the
purpose of making inquiries from the employees rel-
ative to information concerning working conditions,
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98 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
14 Clearly, this was not an insignificant labor dispute. Thus, Dennis
Warde testified that the Union alleged that no less than 83 contrac-
tually violative work assignments had been given to courtesy clerks
during the spring and summer of 1993 and estimated that, as a re-
sult, Respondent was potentially liable for $99,500 in contractual
fines. Further, according to Thomas Halbert, who was Respondent’s
store director at store 781 during the above time period, he met re-
peatedly with Warde whenever the latter visited store 781 in order
to demonstrate to him that the job assignments to the courtesy clerks
were contractually valid.
15 The frequency of Warde’s visits to store 781 during the spring
of 1993 was a contentious issue at the trial. Warde testified that dur-
ing his tenure as a business representative prior to June 1993 he vis-
ited store 781 between 35 and 40 times—the same number of visits
he made to Respondent’s other stores in the Union’s geographical
territory. The store’s grocery manager, Wendy Welch, who was the
immediate subordinate of Store Director Halbert and an admitted su-
pervisor within the meaning of the Act, asserted that on two occa-
sions during the 5-or 6-week period prior to the week of June 28
and 29 Warde visited store 781 ‘‘every day.’’ Neither Halbert, who
recalled Warde being in the store ‘‘once or twice a week’’ during
April through June, nor John Hayward, who was a ‘‘key’’ person
in the store and an admitted supervisor within the meaning of the
Act and who recalled seeing Warde in the store ‘‘maybe average of
once a week maybe a little less than that’’ during the 2-or 3-month
period prior to June, corroborated Welch’s assertion. Contrary to
Welch, Warde recalled visiting store 781 no more than three times
in April and in May and, perhaps, four times in June.
16 These were ‘‘notifications’’ to the store director that the section
of the collective-bargaining agreement pertaining to courtesy clerks
had allegedly been violated.
17 Warde testified that he personally handed these ‘‘citations’’ to
Halbert, recalling that, on June 23, he handed several to Halbert and
said that he should stop the violations. Halbert testified that, rather
than handing the citations to him, Warde’s normal practice was to
slip them under his office door.
18 Welch denied any personal feelings regarding Warde’s actions
regarding the courtesy clerk citation. Halbert denied taking Warde’s
conduct personally but conceded that he was ‘‘agitated’’ not so
much by the complaints themselves but more by Warde’s manner of
serving the citations on him—slipping them under the door.
19 Ruth Baumann corroborated Warde, testifying that, at approxi-
mately 6 p.m. on June 28, she was inside the customer service booth
and noticed Warde walking with Halbert and engaged in a conversa-
tion. Suddenly, ‘‘Halbert yelled at me in front of Dennis . . . have
I taken a break today. . . . And I said no. And he told Dennis . . .
maybe you ought to ask the booth girls about their break?’’ An hour
later, according to Baumann, Halbert came downstairs from his of-
fice, approached the customer service booth, and said to Baumann,
‘‘Sorry about that. Thanks for being a good sport.’’
Halbert recalled that on that date, ‘‘I came downstairs from the
office, and I walked out the door . . . next to the customer service
booth . . . . I noticed that [Dennis Warde] and Ruthie Baumann and
two other employees were standing at the booth and . . . talking’’
while a customer was waiting to be served. ‘‘I walked up and said
are all of you on a break . . . and get back to work and take care
of customers.’’ He denied complimenting Baumann for being a good
sport.
20 Warde testified that he did not follow his normal routine of
walking through the store in a counterclockwise direction, convers-
ing with bargaining unit employees. While conceding that he spoke
to Fleming, Baumann, and a deli clerk, Warde denied saying any-
thing more than hello or interfering with their work.
21 The ‘‘look’’ appeared to Warde as Welch’s effort at ‘‘muffling’’
Hayward’s speech.
complaints of members . . . and other matters . . .
provided said investigation may be accomplished with-
out interfering with the duties of the employees.
In accord with that provision, Dennis Warde testified that
he would visit Respondent’s four stores in the Union’s geo-
graphic territory ‘‘at least twice a month, sometimes more
so’’ if there is significant activity at a particular store. Also
as background, the record establishes that during the spring
and summer of 1993 Respondent and the Union were en-
gaged in a dispute at store 781 in Vacaville involving the
latter’s assertion that the store 781 management had been
violating the parties’ collective-bargaining agreement by reg-
ularly assigning to the store’s courtesy clerks work, which
ostensibly should have been performed by employees in
higher job classifications,14 and that, in conjunction with the
dispute, during his spring and summer visits to store 78115
Warde often left courtesy clerk ‘‘citations’’16 with Store Di-
rector Halbert17 and would regularly check the daily job as-
signment sheet for the courtesy clerks.18
As to the incidents which assertedly precipitated Respond-
ent’s alleged unfair labor practices, Warde testified that he
visited store 781 during the late afternoon of June 28 in
order to serve eight additional courtesy clerk citations, in-
volving 20 separate alleged contract violations, on Thomas
Halbert. Entering the store between 5 and 6 p.m., he imme-
diately went upstairs to the store director’s office and found
Halbert standing beside his desk. With the citations in his
hand, Warde began by saying he had some good news and
some bad news and continued, saying that he hoped someone
had been ‘‘instructing’’ Halbert to have the courtesy clerks
perform their duties as ‘‘here’s a handful of citations for you.
And . . . its going to very expensive.’’ Halbert responded by
asking the union business agent to leave. Warde complied
with Halbert’s order, went downstairs, and began speaking to
Ruth Baumann by the customer service booth. Moments
later, Halbert came downstairs and yelled ‘‘something about
breaks or ‘Don’t you have something better to do.’’’19
Warde testified that, the next day, June 29, at approxi-
mately 5:30 p.m., he returned to store 781 in order to check
on the duties of the customer service clerks that afternoon
and evening. He walked into the store, said hello to some
employees, including Dollie Fleming, Ruth Baumann, and a
deli clerk, went to the customer service booth, and began ex-
amining the courtesy clerk duties list, which was affixed to
a clip board hanging on a wall of the booth.20 As he did so,
‘‘Wendy Welch came over to me and [asked] ‘what are you
looking for?’ And I said, ‘I’m just checking the list to see
if those duties have been removed.’’’ At that point, John
Hayward joined them and asked if Warde was continuing to
talk about ‘‘courtesy clerk stuff.’’ Warde responded that he
was just examining the list. According to Warde, Welsh then
gave Hayward ‘‘a look,’’21 and the latter said he was a good
union member and did not want to violate the collective-bar-
gaining agreement. The conversation then ended, and Warde
continued to examine the courtesy clerk job list. He finished
and made a photocopy of the document.
Warde continued, as he was replacing the duties list onto
the clipboard at the customer service booth, Hayward ap-
proached and, with what Warde described as a ‘‘very stern’’
demeanor, said, ‘‘‘You can’t talk to people anymore when
they’re on the clock. . . . I’m going to ask you to stop, or
I’ll have you arrested.’ And then [Hayward] turned and he
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99ALBERTSON’S, INC.
22 Warde conceded that he may have been speaking to Baumann
as Hayward approached.
23 Warde testified that this was the first time he had been informed
of any change in the contractual access policy and that Respondent
had never offered to bargain about it.
24 Warde’s purpose was to ask each if he or she ‘‘had been in-
structed not to speak to me, and whether they had been threatened
with discipline if they did speak to me.’’ According to Warde, each
said, ‘‘No.’’
25 The customer service booth is a cubicle with open glass win-
dows and is open at the top. Inside are the store safe, a telephone,
a money order machine, and a computer.
26 Describing business as ‘‘a little slow that night,’’ she observed
seven or eight checkers working, waiting on customers.
27 Baumann stated that, while Hayward did not say her name, as
no one else was in the booth, she assumed Hayward’s remarks were
directed at her.
28 During cross-examination, Baumann stated that Warde came
back to the store the next evening and greeted her. She recalled tell-
ing him that she felt as though she was in a ‘‘Catch-22’’ position
as ‘‘I was being harassed’’ because Welch and Hayward said we
weren’t supposed to be speaking to union representatives while on
the clock, and ‘‘I didn’t want to be in that position.’’
29 This bothered Halbert as employees would ‘‘ignore’’ customers
while speaking to Warde.
walked toward the checkstand.’’22 Moments later, after
checking with both Baumann and Fleming, who were work-
ing nearby and overheard what Hayward said, Warde walked
over to a checkstand at which Hayward was finishing with
a customer. Warde asked him, ‘‘What’s the deal,’’ and Hay-
ward replied that Welch had just ‘‘called’’ him, instructing
him that no one was allowed to speak with Warde except on
their own time and that he was to ask Warde to stop or he
would call the police. Hayward added that if an employee to
whom Warde was speaking did not stop he or she would be
disciplined. Warde replied that he understood Hayward was
just doing what he had been instructed to do and walked out
of the store,23 passing by Baumann or Fleming and stating
that he would be back. Warde then went to his car, which
was in the store’s parking lot, telephoned Frank Collard from
his car, ‘‘reentered the store,’’ and, without interference from
Hayward, spoke to each bargaining unit employee,24 with
whom he had not yet spoken that evening. After speaking to
the employees, Warde departed from the store.
Warde further testified that he returned to store 781 the
next evening (June 30) ‘‘to serve some more courtesy clerk
citations’’ based on the copy of the duty list, which he had
obtained the previous evening. The business representative
added that he spoke to employees, that no employees were
prohibited from speaking to him, and that no employees were
disciplined for speaking to him. Further, Warde conceded
that, notwithstanding being informed of Respondent’s policy
changes regarding his contractual right to speak to bargaining
unit employees during his visits to store 781, since June 30,
he has been permitted to freely speak to employees at store
781, no employees have been prohibited from speaking to
him, and no employees have been disciplined for doing so.
However, he added, ‘‘I do notice a significant difference in
people’s feeling comfortable speaking to me. Fewer people
speak to me in the store now. If they do, they look around
to make sure no supervisor is around.’’
Counsel for the General Counsel offered the respective
testimony of employees Ruth Baumann and Dollie Fleming
as corroboration of Warde’s account of the events of June
29. Baumann, a night shift general merchandise clerk who
was assigned to the customer service booth25 in store 781 be-
fore transferring to store 772 in September, testified that at
approximately 6 p.m. on June 29 she was inside the customer
service booth looking ‘‘straight forward’’ through the win-
dows towards the checkstands26 and observed John Hayward
and Wendy Welch standing ‘‘directly in-between [check-
stands seven and eight] and the booth in the middle’’ and
having a conversation. Stating that she had no difficulty
overhearing what they said and describing Welch as ‘‘very
upset’’ and loud, Baumann recalled Welch saying ‘‘that . . .
she had spoken with Tom Halbert, and that Dennis was not
allowed to talk to any employee unless they were off the
clock or on their break. [Welch] also stated that the employ-
ees were on Albertson’s property.’’ According to Baumann,
10 to 15 minutes later, she observed Hayward approach Mike
Thill, a customer service clerk who was standing by the door
to the customer service booth, and instruct the clerk ‘‘not to
talk to Dennis, that if he did talk to Dennis he’d be written
up.’’ Then, Hayward entered the customer service booth and,
after opening the door to the safe, said out loud ‘‘that no em-
ployees were allowed to talk to the Union representative
while they were on the clock, unless they were off the clock
or taking their breaks.’’27 Estimating the time as 30 minutes
after Hayward left the customer service booth, Baumann,
who remained in the booth, saw Dennis Warde, who had
been walking around the store, and Hayward meet directly
in front of the customer service booth and heard the latter
‘‘tell Dennis Warde that if he didn’t quit talking to the em-
ployees that he would have to call the police and have him
arrested.’’28 Fleming, who worked as a checker at store 781
before transferring to store 750 in Napa in January 1994, tes-
tified that, one night about 2 months prior to an August con-
frontation with Wendy Welch, described infra, while she was
‘‘fixing up’’ the front of the store in order to make it ‘‘look
pretty,’’ she observed Hayward and Ward in the middle of
the floor between the last cash register and the customer
service booth and overheard Hayward say that ‘‘he was told
that Dennis was not allowed to talk to the employees while
they’re on the clock about the union and that he was told
that he could call the cops on Dennis.’’ Fleming added that
this was the only time she saw Warde that night and that,
notwithstanding what Hayward said to him, Warde continued
to visit the store and speak to employees while they were
working.
Respondent’s defense to the alleged unfair labor practices
concentrates upon the activities of Warde, and, in particular,
his proclivity for interrupting the work of bargaining unit
employees during his visits to store 781. In this regard, Store
Director Halbert testified that ‘‘sometime’’ in April, May, or
June, he had a conversation with Warde about interrupting
the work of employees and that this conversation resulted
from the union representative’s habit of entering the store,
walking over to the service deli, leaning on the counter, and
conversing with employees, who were supposed to be work-
ing.29 Then, according to Halbert, Warde would go into the
‘‘back room’’ and remain there for 15 to 20 minutes, speak-
ing to the employees, who worked in there. Accordingly,
when Halbert met with Warde, ‘‘I told Dennis that it was
fine if he talked to the employees as long as he didn’t take
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100 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
30 Warde specifically denied the occurrence of such a conversation.
31 During cross-examination, Halbert said that the only person to
whom he mentioned this strategy was Wendy Welch. Further, in de-
nying that he took Warde’s fixation with the asserted courtesy clerk
violations personally, Halbert averred that the main difficulty with
Warde was his continued interference with the work of the store’s
employees.
32 Warde specifically denied the occurrence of such a conversation.
33 Welch stated that between 5 and 6 p.m. is the busiest time of
the day at the market.
34 During cross-examination, Welch said that the instruction to
Hayward, regarding calling the police, was her own idea.
35 During cross-examination, he expressed a desire to once again
work in that position.
36 Later, during direct examination, asked if Welch said what he
should do if Warde did not stop interfering with employees’ job du-
ties, Hayward said, ‘‘Well, the first time I was to ask him to stop;
second time I was to ask him to leave, and [if he refused to do so]
I was to tell him that I would have him removed from the store.’’
During cross-examination, Hayward said this was his first conversa-
tion with Welch that day.
37 Hayward stated that 6 p.m. is ‘‘a busy time of the day.’’
them away from their work or interrupt their job duties. I
said . . . if he wasn’t able to do that . . . he should wait
. . . . and [talk] to them while they are on their break . . .
or while they are at lunch.’’ According to Halbert, Warde’s
response was that he knew the collective-bargaining agree-
ment and would do whatever he wanted to do.30 Based on
Warde’s conduct and attitude, Halbert devised a procedure
for dealing with him—‘‘I felt that if he interfered with the
job duties of the employees . . . I would ask him to stop [and
then] I would ask him again to stop or leave the store. . . .
Then I would call the [police] and have him removed.’’ He
added that the foregoing ‘‘wasn’t a known procedure. I
didn’t post . . . it on the board . . . but I did discuss it with
my key people.’’31
Wendy Welch, the grocery manager at store 781, testified
that, either on June 28 or 29, she observed Dennis Warde in-
side store 781 from approximately 4:30 until 5:45 p.m. and
that, while she made no effort to stop him from speaking to
bargaining unit employees, on one occasion, she observed
him ‘‘speaking to a checker . . . while she was checking out
a customer. And I asked him to please stop, because it was
rude to the customer.’’ Warde complied with her request, and
later, at approximately 6 p.m., toward the end of her work
shift, he approached Welch as she was working with a cus-
tomer at the ‘‘butcher block.’’ According to Welch, Warde
said he wanted to discuss a grievance. She finished with the
customer, and they spoke. Welch asked what she could do
for him, and Warde handed her a grievance. Thereupon,
‘‘Dennis said to me that he heard that I was going to dis-
cipline my employees if they were caught talking to him.
. . . I told him that was not true.’’ Warde said he had heard
it, and Welch replied that he had misunderstood and that
what she told employees was ‘‘if Dennis came in and talked
to them it could interfere with their job duties.’’ Warde said
that was not true, she was wrong, and ‘‘he can talk to the
employees at any time he wanted to. Welch replied that she
was not incorrect and did ‘‘what the contract read.’’32 The
conversation ended, and Warde walked toward the front of
the store. After completing some job tasks in the back of the
store, Welch also walked toward the front of the store and,
according to her, observed Warde speaking to John Hayward
and, as a result, the latter failing to perform his job duties.
Therefore, she interrupted the conversation between Warde
and Hayward and said to Hayward that he wasn’t doing his
job and she needed him to do it. Warde then walked out of
the store, and, a few minutes later, as she prepared to leave
for the day, she observed Warde in the parking lot. She then
sought to find Hayward, who was to be in charge of the
store when she departed, in order ‘‘to let John know that Mr.
Warde was out there and . . . I didn’t want Dennis interfer-
ing with customer relations or job duties.’’33 She found Hay-
ward and told him that Warde was outside and might come
back inside. She then instructed Hayward that ‘‘if he did
come back inside and if he was interfering with any employ-
ee’s job duties, [he should] ask Mr. Warde to stop.’’ Then,
she instructed her subordinate to ask Warde to leave and, if
he refused, ‘‘you either escort him out or you have the police
escort him out.’’34 Welch specifically denied telling Hayward
to prohibit Warde from entering the building or disallowing
Warde the opportunity to speak to employees.
John Hayward, who, while continuing in Respondent’s
employ at the time of the hearing, was no longer a ‘‘key’’
person,35 testified, in Respondent’s behalf, that between 4:30
and 5:30 p.m. on June 28 or 29, he had a conversation with
Wendy Welch regarding Dennis Warde. ‘‘She said that Den-
nis had been in the store that day and there was some inter-
ference with employees performing their job duties and that
she expected that he may be back in and ask me to watch
and to make sure there was no interference with employees’
duties.’’36 He denied any instructions from Welch to tell
Warde not to speak to employees or to tell employees not
to speak to Warde. Later, at approximately 6 p.m., according
to Hayward, he was by the entrance to the customer service
booth when he noticed Warde approaching him. Stating that
this was the first time he had seen the business representative
that day, Hayward recalled Warde asking me ‘‘how things
were going and if I had seen anything going on in the store.
. . . I responded that things were fine and that I hadn’t
seen anything but I really didn’t have time to talk to him.’’37
Warde walked away and over to a checkstand where he
began speaking to a courtesy clerk, Mike Thill, who, Hay-
ward observed, stopped bagging a customers’ groceries while
speaking to Warde. Believing that Warde had interrupted
Thill’s work, Hayward walked to that checkstand and told
Thill to continue working and stop talking to Warde if doing
so was interfering with his ability to work. He also told Thill
he ‘‘could be written up’’ if such continues and ‘‘said some-
thing to Dennis at the same time to that effect.’’
Thereupon, according to Hayward, Warde walked over to
the service deli, and he began speaking to a deli clerk not-
withstanding that ‘‘there was a customer waiting to be
helped.’’ Warde went to the deli counter and told the em-
ployee that she should be working and not speaking to
Warde and told Warde that he should not be talking to the
employees and interfering with their work. Hayward turned
and walked away, but observed Warde continuing to speak
to the clerk. Hayward immediately returned to the service
deli, and, ‘‘at that time, I asked [Dennis] to leave the store’’
as ‘‘his talking to these employees [at that busy time] was
interfering with the job duties of the employees.’’ He added
that if Warde refused to leave he ‘‘could call the police and
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101ALBERTSON’S, INC.
38 Asked a leading question at this point, Hayward said that he
also warned Warde that he would have to leave the store during their
first confrontation at the service deli counter.
39 Warde denied ever interfering with the work of any employee
while he or she worked, but conceded being aware of complaints
from at least two employees at store 781 that he had interrupted their
work. Those individuals never testified at the instant hearing regard-
ing those assertions.
40 Welch testified that, on July 31, she was having an extremely
difficult time filling the shifts with enough checkers, and, after near-
ly panicking over not being able find anyone, asked Thomas Halbert
for, and received, permission to ‘‘upscale’’ an available general mer-
chandise clerk (Perez) to check groceries. Subsequently, she learned
that Fleming had confronted Perez over performing those duties.
41 I recognize that Georgina Harwood testified that she has always
enforced the personnel policy against unauthorized badges and that
employee Angela Borba testified that prior to 1993 management at
store 772 did occasionally ask her to remove a union button from
her uniform; however, as Borba was able to violate Respondent’s
practice with virtual impunity and as there is no evidence that the
personnel policy was ever enforced at the remainder of Respondent’s
stores involved here, Respondent’s enforcement of its personnel pol-
icy against unauthorized badges appears to have been nonexistent
and haphazard at best.
have [Warde] removed.’’38 According to Hayward, he did
not see Warde39 inside the store any longer that evening and
believed Warde had departed. Finally, Hayward specifically
denied saying, inside the customer service booth by the safe,
what was attributed to him by Ruth Baumann and denied
saying to anyone that employees were prohibited from speak-
ing with a business representative unless off the clock or on
his or her own time or threatening discipline in such a cir-
cumstance.
5. The confrontation between Wendy Welch and
Dollie Fleming
Employee Dollie Fleming testified that on the evening of
July 31 she observed Valerie Perez, a general merchandise
clerk at store 781, working as a checker at a checkstand.
Aware of the controversy at the store over courtesy clerks
performing work outside their job classification and of the
filing of grievances over this matter, Fleming approached
Perez and asked why she was performing checking duties
and what her job classification was. Perez responded that she
did not know her classification. Nothing else was said, and,
2 days later (August 2) at approximately 7 p.m., as she was
counting the money in her drawer prior to commencing her
checking duties Wendy Welch telephoned her on the ‘‘com
line’’ and requested that Fleming come upstairs to the man-
ager’s office for a conversation. The latter went upstairs and,
as she walked into the office, Welch closed the door. Ac-
cording to Fleming, to whom Welch appeared ‘‘very angry
and upset,’’ she sat down, and ‘‘Welch asked me why I was
talking to Valerie Perez.’’ Fleming responded that she want-
ed to know what had been going on that night as Perez was
checking but was only a general merchandise clerk. ‘‘And
she told me that she didn’t want me to talk to Valerie
Perez.’’ Welch then asked Fleming why she had confronted
Perez, and ‘‘I told her the reason is . . . because I wanted
to find out why [Perez] was checking.’’ At this point, Welch,
with whom Fleming had been friends, leaned forward and
said, in an accusatory tone, ‘‘I thought we had it narrowed
down who was . . . talking to the Union. We didn’t think
it was you.’’ When Welch made this comment, according to
Fleming, she became scared and said she wasn’t the only
employee who ever called the Union. Fleming testified that
the conversation then turned to other matters, lasting ‘‘prob-
ably about a half an hour.’’ During cross-examination, Flem-
ing stated that she was the one who initially broached the
subject of the Union, stating that what Valerie Perez had
done violated the union contract and that, as a general mer-
chandise clerk, Perez could not act as a checker as ‘‘it vio-
lates the Union contract.’’ She added that it was when she
made the foregoing statement that Welch uttered her accusa-
tion. Also, during cross-examination, Fleming testified that as
she wore a union button her support for the Union was well
known in the store.
While agreeing that they spoke on August 2 regarding
Fleming’s conduct toward Valerie Perez, Wendy Welch testi-
fied to a different version of the conversation. According to
the grocery manager,40 she remained late on the above date
in order to speak to Fleming about the Perez matter, and, at
approximately 7 p.m., asked Fleming to report to her up-
stairs. Fleming entered the office, and, according to Welch,
she ‘‘asked [Fleming] why she approached Valerie in the
checkstand when Dollie refused the shift.’’ The employee re-
plied that she had ‘‘every right’’ to do so as she was trying
to ascertain if Perez had been ‘‘classified.’’ Welch replied
that Perez was receiving ‘‘upscale wages’’ and that Fleming
should have spoken to Welch rather than ‘‘interrogating’’
Perez at a checkstand. Welch denied initiating any conversa-
tion about the Union, saying Fleming first raised the subject
when saying that she could have gone to the Union with
questions but that ‘‘she was afraid to go to the Union be-
cause she felt that I can lay her off at any time if she went
to the Union.’’ Welch replied that she would never do such
a thing. Welch further denied accusing Fleming of being the
one who was calling the Union and concluded by stating that
Fleming apologized about causing the problem with Perez.
B. Analysis
Initially, I turn to the allegations that Respondent’s imple-
mentation of written and oral rules, pertaining to the wearing
at work of unauthorized pins and buttons, were violative of
Section 8(a)(1) and (5) of the Act. In this regard, counsel for
the General Counsel argue that not only do these rules inter-
fere with employees’ Section 7 rights so as to be violative
of Section 8(a)(1) of the Act but also Respondent unilaterally
implemented those rules, which constituted a change from its
existing practice, without giving notice to the Union or af-
fording the Union an opportunity to bargain over their imple-
mentation in violation of Section 8(a)(1) and (5) of the Act.
At the outset, the uncontroverted record evidence establishes,
and I find that for several years prior to March 1993, while
maintaining in effect, as a provision of its personnel policies,
a vaguely worded rule prohibiting the wearing of unauthor-
ized ‘‘badges,’’ Respondent’s enforcement of the policy was,
at best, sporadic and that employees at its northern California
stores, located within the territorial jurisdiction of the Union
(store 750 in Napa, store 755 in Fairfield, and stores 772 and
781 in Vacaville), generally wore buttons and pins, which
exhibited support for the Union, on their uniforms without
interference41 from Respondent; that, on or about March 26,
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102 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
42 In light of the corroborative testimony of employees, who were
testifying adversely to the interests of Respondent, I do not rely on
the testimony of Georgina Harwood, who was comparatively less re-
liable, that she has never observed employees wearing religious and
other unauthorized pins and buttons on their uniforms at store 772.
There is no dispute that, while employed at store 772, employee
Angela Borba has been told more than once by store management
to remove union pins from her uniform and that Borba has complied
for a few days but then resumed wearing the same or like pins.
What is in dispute is whether such an incident occurred in April
1993. The employee was sure that the incident occurred a week be-
fore Store Director Fanning was demoted from that position. Fanning
testified that his demotion occurred in February, and, as I do not be-
lieve that Fanning had any real reason to fabricate such testimony,
I believe Borba was confused as to the date of this particular in-
stance of her being told not to wear a union button.
43 I do not believe Harwood that G.C. Exh. 2 was but a restate-
ment of her normal practice. Thus, if such were the case, she did
not explain the necessity for posting the document, and it obviously
tracks what Shipley wrote in her March 26 memorandum.
Pat Shipley, Respondent’s development manager for its
northern California division, published a confidential memo-
randum, advising store managers that wearing any buttons,
badges, and pins not distributed by Respondent ‘‘in all de-
partments’’ of their stores was violative of Respondent’s
dress code and enumerating the specific buttons and pins,
which could be worn by employees for compliance with the
dress code; and that Shipley’s memorandum itself was posted
on the employees’ bulletin board at store 781 in April; that,
in June, Georgina Harwood, the customer service supervisor
at store 772, posted a hand-printed sign, setting forth
Shipley’s directive that only ‘‘company supplied’’ pins,
badges, and ribbons could be worn at work, on the employ-
ees’ timeclock. Moreover, the testimony of employee
Clifford Carneiro was uncontroverted that in the morning of
May 27, while in the back of the store 772 speaking to a
delivery truckdriver, he was approached by Store Director
Mike App and that, on noticing Carneiro was wearing a pin,
bearing the initials of the Union, affixed to his uniform
apron, App said, ‘‘You can’t wear that any more.’’ And the
testimony of employee Tammy Lynn Cuveros was
uncontroverted that on or about May 20 and June 3 in the
service deli of store 772, observing on each occasion that
Cuveros was wearing two union pins on her uniform, Har-
wood informed her that she was not allowed to wear pins
which did not pertain to Respondent and she had to remove
the pins. Furthermore, on occasions, such as holidays, local
festivals, or national sporting events, Respondent encourages
its employees to dress in appropriate clothing. Finally, sev-
eral employees and Union Business Representative Dennis
Warde testified corroboratively that, notwithstanding the pub-
lication of the above-described written and the oral rules pro-
hibiting the wearing of union pins, employees have continued
to regularly wear religious and other unauthorized pins and
buttons affixed to their uniforms.42
The right of employees, while working, to wear union
pins, buttons, and other insignia has long been held to be ac-
tivity protected by Section 7 of the Act. Republic Aviation
Corp. v. NLRB, 324 U.S. 793 (1945); Raley’s, Inc., 311
NLRB 1244, 1246 (1993); Mack’s Supermarkets, 288 NLRB
1082, 1098 (1988); and Albertson’s, Inc., 272 NLRB 865,
866 (1984). However, this employee right is balanced against
an employer’s right to operate its business, and an employer
may limit or even prohibit the wearing of union pins or other
insignia at work if so-called ‘‘special circumstances’’ exist.
Mack’s Supermarkets, supra; Albertson’s, Inc., supra. As
noted by the administrative law judge in Raley’s, Inc., supra,
the Board has evolved a substantial body of case law on the
matter of the existence of these special circumstances offered
to justify restrictions or prohibitions upon the wearing of
Union pins or other insignia, ranging from obscene or derog-
atory material to the existence of a business interest in pre-
serving employees’ uniformity of appearance when dealing
with the public. In all cases, ‘‘the burden of proof respecting
the existence of special circumstances which justify prohibi-
tion or limitation of union buttons is on the employer who
seeks to justify the limitation of employees’ Section 7
rights.’’ Id.
Here, I believe that all of the allegedly unlawful conduct
flows from the March publication of the Shipley memoran-
dum, prohibiting the wearing at work of pins, badges, and
buttons, which are not supplied by Respondent. Thus, it was
that document, which was posted in store 781, and the hand-
written notice, posted in store 772, is clearly a restatement
of the prohibitions set forth in the Shipley document.43
Moreover, I view Georgina Harwood’s orders to employee
Cuveros as a reiteration and enforcement of the latter notice,
which bears her signature, and, given the location of the indi-
viduals, store 750 store director App’s instruction to em-
ployee Carneiro likewise appears to be an act of enforcement
of Shipley’s policy directive, which applied to all depart-
ments of Respondent’s stores. Careful analysis of the General
Counsel’s Exhibits 2 and 4 and Respondent’s enforcement of
the policies establishes that, in the absence of any qualifying
or limiting language, Respondent’s prohibition against the
wearing of unauthorized pins and buttons at work unambig-
uously applies to all areas of its stores and not only to the
times when employees are working but also to their
breaktimes, and no reasonable reading of the rules would
cause one to conclude that the prohibitions apply only to the
selling areas of the stores and to times when employees are
working. In these circumstances, the conclusion is mandated
that Respondent’s written and oral restriction on the wearing
at work of unauthorized pins, buttons, and badges is unlaw-
fully overbroad, constituting an ‘‘unreasonable impediment to
employee union activity,’’ violative of Section 8(a)(1) of the
Act. Raley’s, Inc., supra at 1246; Mack’s Supermarkets,
supra at 1098; Page Avjet Corp., 275 NLRB 773, 777
(1985); and Albertson’s, Inc., supra at 866.
Respondents’ counsel argue that the restriction on pins,
buttons, and badges did not apply to nonselling areas of the
stores, involved here, and did not apply to nonworking time.
In this regard, counsel cite to Jacqueline Wilson’s April 22
letter to the Union, in which she states that employees may
wear union buttons in the nonselling areas of the stores pro-
vided that the buttons do not offend decency or hamper pro-
duction. However, I have previously concluded that nothing
in the wording of either Shipley’s memorandum or Har-
wood’s version of the document would cause one to believe
that those rules did not apply to nonselling areas or to break
periods. Moreover, as Shipley’s memorandum was posted on
the employee bulletin board at store 781 and as Harwood’s
written restatement of the document was posted by the em-
ployee timeclock at store 772, it is clear that Respondent
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103ALBERTSON’S, INC.
44 Counsel for Respondent, citing an unpublished decision of the
United States Court of Appeals for the Ninth Circuit, denying en-
forcement to Albertson’s, Inc., 300 NLRB 1013 (1990), argue that
the General Counsel is ‘‘collaterally estopped’’ to the extent that he
seeks to require Respondent to allow the wearing of union pins and
buttons in the selling areas of Respondent’s stores during working
time. Contrary to counsel, inasmuch as the only rules before me pro-
hibited employees from wearing unauthorized pins and buttons, in-
cluding union pins and buttons, in any areas of the stores at any
time, I need not consider the legality of a rule, restricting the wear-
ing of union insignia in the selling areas of Respondent’s stores.
Simply stated, such is not before me.
45 In these circumstances, I find without merit Respondent’s coun-
sels’ contention that the existence of the personnel policy provision
mandates a finding that the unfair labor practice charge in Case 20–
CA–25393 was time-barred by Sec. 10(b) of the Act.
meant that employees would read and be aware of Respond-
ent’s policy. In these circumstances, if Wilson’s interpreta-
tion of the published rules was what Respondent intended, it
was incumbent on Respondent to have replaced what had
been posted at its stores with a corrected version, and Re-
spondent’s failure to do so establishes that what was pub-
lished was, in fact, Respondent’s intended policy regarding
unauthorized pins, buttons, and insignia.44
Counsel next argue that there is no record evidence, estab-
lishing that the wearing of union pins by Respondent’s em-
ployees was in support of any protected concerted activities
and that, therefore, the conduct was not privileged by Section
7 of the Act. On this point, they cite to the United States
Court of Appeals for the Ninth Circuit’s opinion in NLRB v.
Harrah’s Club, 337 F.2d 177 (1964), in which the court ex-
amined the Supreme Court’s Republic Aviation, supra, con-
clusion that the wearing of union buttons comes within the
ambit of Section 7 of the Act and held that ‘‘we do not think
that the Supreme Court intended to erect this into a rule
which makes the wearing of union buttons per se a guaran-
teed right. We think there must be evidence of a purpose
protected by the act—i.e., collective bargaining or other mu-
tual aid or protection.’’ Harrah’s Club, supra at 179. From
this, counsel argue that, just as in Harrah’s Club, there is no
record evidence here of any collective bargaining or organi-
zational basis for the wearing of union pins by the bargaining
unit employees and that, therefore, restrictions on such con-
duct is permissible. While I agree that, other than as an obvi-
ous showing of support for the Union, there is no record evi-
dence as to the reason the bargaining unit employees wore
union pins at work and that there is no question that Re-
spondent’s counsel’s view of the law in the Ninth Circuit is
accurate, I am quite certain that they realize that the Ninth
Circuit’s view of what the Supreme Court meant in Republic
Aviation is not the view of the Board, which, as stated
above, views the wearing of union insignia as a right guaran-
teed by Section 7 of the Act unless the employer involved
can establish the existence of ‘‘special considerations’’ justi-
fying restrictions on the right. Raley’s, Inc., supra. Inasmuch
as an administrative law judge is bound by established-Board
precedent which has not been reversed by the Supreme Court
or by the Board itself, I must find this aspect of Respond-
ent’s defense to be without merit.
Counsel for the General Counsel next argue that the afore-
mentioned unlawful prohibitions, against unauthorized pins,
buttons, and badges, constituted unilateral changes from past
practice, implemented without affording the Union prior no-
tice and an opportunity to bargain. I agree. At the outset,
there can be no question that the Shipley memorandum and
its progeny represented a significant change from past prac-
tice. Thus, contrary to counsel for Respondent, I have pre-
viously concluded that while Respondent maintained a
vaguely worded prohibition against the wearing of unauthor-
ized ‘‘badges’’ such was, at best, only sporadically enforced
and, as the personnel policy provision seems to have been
circumvented with impunity by bargaining unit employees
who regularly wore union insignia, religious pins and sym-
bols, and various types of buttons on their uniforms in the
stores’ selling and nonselling areas, one also may justifiably
conclude that prior to March 26, Respondent’s practice was
to ignore the wearing of such pins, buttons, and badges, none
of which were issued by it. Further, the very fact that Re-
spondent found it necessary to issue the Shipley memoran-
dum supports the view that it represented a change from the
above-described past practice.45 Moreover, there is no record
evidence that the Union was afforded any notice or an oppor-
tunity to bargain over such by Respondent prior to its publi-
cation of Shipley’s ‘‘confidential memorandum,’’ announcing
its prohibition of all but certain enumerated pins, buttons,
and badges, the posting of the Shipley memorandum and of
the Harwood handwritten notice, and its enforcement of
those written rules. Accordingly, I find that Respondent’s
unilateral implementation of its prohibitions against the wear-
ing of unauthorized pins, buttons, and other insignia without
giving notice to the Union or affording it an opportunity to
bargain was violative of Section 8(a)(1) and (5) of the Act.
Equitable Gas Co., 303 NLRB 925 (1991); and Holladay
Park Hospital, 262 NLRB 278 (1982).
Next, I turn to the allegation that Respondent engaged in
conduct, violative of Section 8(a)(1) of the Act, by interro-
gating employee Tina Jimenez who works at store 755, about
her union activities. In this regard, Jimenez’ testimony was
uncontroverted, and I find that, upon returning to work after
recovering from an injury she was given a different job and
had her rate of pay reduced by in excess of $5 an hour; that
she spoke to Union Business Representatives Dennis Wade
and Pete Rockwell regarding her reduced rate of pay; that a
formal grievance was filed in her behalf by the Union; that
Store Director Brian O’Connell spoke to union officials re-
garding the grievance; that, a few days later, O’Connell initi-
ated a conversation with Jimenez with the comment, ‘‘So,
Teen, did you call Pete Wilson’’; that, after she, asked who,
he said ‘‘Pete from the Union’’; that, after Jimenez said she
had, the store manager asked ‘‘what about’’; and that, after
she said he knew ‘‘what about,’’ he responded that she
would not be returned to her former rate of pay. In support
of the allegation that the foregoing constitutes conduct viola-
tive of Section 8(a)(1) of the Act, counsel for the General
Counsel argues that what occurred here is virtually identical
to that which the Board found violative of the Act in H.M.S.
Machine Works, 284 NLRB 1482 (1987). In the cited case,
the collective-bargaining agreement between the union and
the employer permitted the union access to the plant during
working hours in order to discuss possible grievances. Dur-
ing a visit by a union business agent, an employee briefly
discussed his eligibility for health benefits with the former,
and, a short while later, a supervisor approached the em-
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104 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
46 I specifically discredit Halbert, Welch, and Hayward that Warde
continually interrupted or interfered with employees as they were
working. Warde denied this, and I credit him, noting that, other than
the above witnesses, Respondent presented no witnesses who
claimed to have seen Warde interrupt employees in their work.
ployee and asked what the employee had been talking to the
union about. The employee said his conversation with the
union agent concerned hospitalization, and the supervisor re-
sponded that the employee was not eligible for such benefits
and that the union could not help him. Then, 2 months later,
the business agent again visited the plant and spoke to the
employee, and, as on the earlier occasion, the supervisor ap-
proached the employee and asked if he had been discussing
hospitalization with the business agent. Notwithstanding find-
ing the subject of the interrogation to have been ‘‘innoc-
uous,’’ the Board found the supervisor’s conduct unlawful as
it ‘‘could reasonably tend to discourage employees from talk-
ing freely with the representatives in the future or, perhaps,
from talking to them at all.’’ Id. at 1483. Counsel for the
General Counsel assert that ‘‘the identical result obtains
here’’ as ‘‘O’Connell’s questions . . . were of the very type
that could reasonably tend to discourage employees from
talking freely with their Union representatives.’’ Further,
counsel argue that O’Connell’s conduct was coercive as there
was no valid reason for him to have questioned Jimenez in
the above manner and as the store director was, in effect,
‘‘singling out the unit member and questioning her behind
the back of her bargaining representative.’’ Inasmuch as
O’Connell was well aware of Jimenez’ grievance and what
it entailed, I agree with counsel for Respondent that the ex-
change between the store director and the employee did not
constitute unlawful interrogation; however, I, nevertheless,
believe that, in the instant circumstances, the store director’s
comments were coercive and interfered with Jimenez’ Sec-
tion 7 rights and unlawful. Thus, I find counsel for the Gen-
eral Counsel’s arguments persuasive that there could have
been no purpose for the store director’s conduct other than
harassment of an employee who had engaged in a contractual
right and an activity, privileged by Section 7 of the Act. In-
deed, how else may one explain O’Connell’s mocking intro-
ductory comment and his concluding remark? In these cir-
cumstances, I believe, and conclude, that O’Connell’s con-
duct was coercive and interfered with Jimenez’ Section 7
rights—in violation of Section 8(a)(1) of the Act.
In considering the complaint allegations that on or about
June 29, Respondent promulgated rules, prohibiting its em-
ployees from speaking to the Union’s business representative
unless they are off the clock and on their own time and pro-
viding for disciplinary action against employees who speak
to the business representative while on the clock, and that
Respondent violated Section 8(a)(1) and (5) of the Act by
implementing the rules, which are mandatory subjects of bar-
gaining, unilaterally and without prior notice to the Union or
affording the Union an opportunity to bargain with regard to
the above rules, and Section 8(a)(1) of the Act by conveying
the rules to the bargaining unit employees, I note that, in de-
termining what occurred and the legal consequences of the
conduct, credibility resolutions are required. In this regard, I
have weighed the relative credibility of Union Business Rep-
resentative Dennis Warde against that of Wendy Welch, John
Hayward, and Thomas Halbert and believe that Warde’s tes-
timony was inherently more credible and, therefore, shall
rely on his testimony as to what occurred in the early
evening of June 29. Thus, while Warde’s testimonial de-
meanor while did cause me to doubt his honesty, I note that,
in significant aspects, his testimony was corroborated by cur-
rent employees, Ruth Baumann and Dollie Fleming, each of
whom was testifying adversely to the interests of Respondent
and appeared to be testifying candidly. In contrast to Warde,
Welch appeared to be a disingenuous witness; in particular,
her assertion that Warde visited store 781 every day during
the 5-or 6-week period prior to June 29 was not corroborated
by any other witness and was utterly incredible. Further, I
note that John Hayward failed to corroborate Welch, regard-
ing the ‘‘incident’’ at approximately 6 p.m. that evening
when, according to the unreliable Welch, she assertedly ob-
served Hayward and Warde engaged in conversation near a
checkstand, approached them, and, in the presence of Warde,
admonished Hayward that he should stop speaking to Warde
and resume working. As to Hayward, he did not seem to be
testifying candidly, impressing me as being a sycophant,
whose intent was to regain Respondent’s favor and a super-
visory position, and an unreliable witness. Finally, as be-
tween Store Director Halbert and Warde, the latter appeared
to be the much more straightforward witness; in particular,
given the potential monetary liability, I found incredible
Halbert’s assertion that he was more bothered by the manner
in which Warde served the courtesy clerk citations on him
rather than the citations themselves, and I note that Halbert’s
assertion, that he gave Welch the idea of warning Warde that
Respondent would have the police remove him from store
781 if he continued to interfere with employees’ work, was
not corroborated by Welch, who claimed responsibility for
the idea.46
Based on the foregoing credibility resolutions, I find that,
in the spring of 1993, during his regular visits to store 781,
inasmuch as Respondent and the Union were engaged in a
dispute, concerning that store’s management’s alleged assign-
ment of job duties, outside of their contractual job classifica-
tion, to the store’s courtesy clerks, besides speaking to bar-
gaining unit employees, Union Business Representative Den-
nis Warde would regularly check the store’s courtesy clerk
job assignment sheets and present contract violation citations,
alleging improper courtesy clerk job assignments, to Store
Director Thomas Halbert, who, having met with Warde sev-
eral times in order to convince the latter that the job assign-
ments were contractually permissible and given the potential
monetary liability, was ‘‘agitated’’ over the citations, and
that, on June 28, Warde was at the store and presented
Halbert with 8 courtesy clerk citations, involving 20 alleged
instances of improper job assignments. I further find that, the
next evening (June 29), Warde once again visited store 781;
that, having observed the business representative examining
the courtesy clerk assignment sheet, Wendy Welch and John
Hayward approached him, with the former asking what he
was looking for and the latter asking if Warde was continu-
ing to talk about ‘‘courtesy clerk stuff;’’ that, as Warde
photocopied the courtesy clerk assignment sheet, Welch
spoke to Hayward in front of the courtesy clerk booth, say-
ing that ‘‘she had spoken with Tom Halbert, and that Dennis
was not allowed to talk to any employee unless they were
off the clock or on their break’’; that, a few minutes later,
Halbert was overheard speaking to customer service clerk,
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105ALBERTSON’S, INC.
47 I find counsel for the General Counsel’s reliance on such cases
as Migali Industries, 285 NLRB 820 (1987), misplaced. In the cited
decision, not only was a copy of the new progressive disciplinary
system posted, with a notation that it would be effective imme-
diately, but also the Union was provided with a copy of the new
policy on a subsequent occasion—after implementation. Here, the
announcement of the new ‘‘rules’’ was by a low level supervisor at
just one of Respondent’s stores. While it is true that Respondent has
never repudiated what Hayward announced on June 29, it is also true
that there is no record evidence that Warde or any other union offi-
cial spoke to the store director of store 781 regarding what Hayward
announced or to Respondent’s management officials, in charge of
labor relations policy, as to whether, in fact, a new policy had been
implemented. I believe that the Union’s failure to do either suggests
that it likewise believed that no new policy had been announced.
What appears to have occurred was a reaction to Warde’s continued
filing of the courtesy clerk citations rather than the intended imple-
mentation of a change in Respondent’s labor relations policy.
Mike Thill, telling the employee ‘‘not to talk to Dennis, that
if he did talk to Dennis he’d be written up’’; and that Hay-
ward then entered the customer service booth and, in the
presence of Ruth Baumann, said out loud ‘‘that no employ-
ees were allowed to talk to the Union representative . . . un-
less they were off the clock or taking their breaks.’’ More-
over, I find that, later, as Warde returned the original of the
courtesy clerk job assignment sheet to a clipboard, which
hangs from a wall of the customer service booth, Hayward
approached and, sternly, said, ‘‘You can’t talk to people any
more when they’re on the clock. . . . I’m going to ask you
to stop, or I’ll have you arrested’’; that, moments later, in-
credulous at what he had just been told, Warde walked over
to Hayward, who was at a checkstand, and asked, ‘‘what’s
the deal’’; and that Hayward responded that he had just spo-
ken to Welch, who had instructed him that no employees
were allowed to speak to Warde except on their own time,
that, if Warde was asked to stop and refused, Hayward
should call the police, and that, if the employee refused to
stop talking to Warde, he should be disciplined.
Counsel for the General Counsel argue that the foregoing
orally promulgated rules represent unilateral modifications of
the union-access provision of the collective-bargaining agree-
ment between Respondent and the Union; that the subjects
of the rules concern mandatory subjects of bargaining; that
Respondent was obligated to have notified the Union of the
unilateral changes prior to implementation and to have af-
forded the Union an opportunity to bargain about them; and
that Respondent’s failure to do so was violative of Section
8(a)(1) and (5) of the Act. I disagree. Thus, I note that
Halbert and, undoubtedly, his assistant Welch were ‘‘agi-
tated’’ over Warde’s involvement in the ongoing courtesy
clerk job assignment dispute. Moreover, while the credited
evidence is that John Hayward, acting on behalf of his supe-
riors at store 781, did, in fact, announce the existence of new
business agent access policies for that store, there is no
record evidence that said ‘‘rules’’ were actually imple-
mented. To the contrary, as Dennis Warde conceded, later
that evening and the next evening, he engaged in his normal
practice of going around to the various areas of store 781
and speaking to bargaining unit employees while they
worked; no supervisor stopped him from doing so; no super-
visor stopped employees from speaking to him; and no em-
ployees were disciplined for speaking to him while on the
clock. Warde further testified that, subsequently, there has
been no change in the contractual union access policy—no
supervisor has prevented him from speaking to bargaining
unit employees as they worked; no supervisor has prohibited
bargaining unit employees from speaking to him during their
worktime; and no employees have been disciplined for
speaking to him while on the clock. In these circumstances,
noting that no such rules were ever announced for any store
but store 781 and that what occurred, on the evening of June
29, appears to represent merely the store management’s over-
reaction to Warde’s legitimate activities, and absent any
record evidence that the ‘‘rules’’ were ever implemented, I
do not believe that Respondent’s June 29 acts and conduct
ever arose to the level of a unilateral change violative of
Section 8(a)(1) and (5) of the Act, and I so find.47 Accord-
ingly, I shall recommend dismissal of the applicable para-
graphs of the consolidated complaint in Cases 20–CA–25513
and 20–CA–25530.
However, the consolidated complaint also alleges that Re-
spondent’s above-described conduct was violative of Section
8(a)(1) of the Act, and, on this point, I agree. Thus, I have
previously found that, in the presence of bargaining unit em-
ployees, John Hayward stated that employees would no
longer be able to speak to Dennis Warde and that if they did
speak to him they would be ‘‘written up’’ and, to other bar-
gaining unit employees, that they would not be permitted to
speak to union representatives unless they were off the clock
or on breaks. Of course, Respondent’s employees not only
have a Section 7 right to engage in union activities but also
have a contractual right, while working, to speak to rep-
resentatives of the Union, who are visiting their store. Hay-
ward’s above directive to bargaining unit employees, coupled
with the threat of discipline, clearly impinged on their right
to speak to union representatives in violation of Section
8(a)(1) of the Act, and I so find. Stroh Brewery Co., 290
NLRB 1025, 1027 (1988).
Regarding the remaining allegation of unlawful conduct,
that Respondent created the impression of surveillance of
their activities in support of the Union amongst its employ-
ees in violation of Section 8(a)(1) of the Act, I note that this
involves the confrontation between Dollie Fleming and
Wendy Welch in the evening of August 2 at store 781 and
that there is no dispute that such a confrontation occurred.
What is in dispute concerns what was said, and, in this re-
gard, as between the bargaining unit employee and the gro-
cery manager, I have previously found that, as a current em-
ployee, Fleming testified against the interests of her em-
ployer and that Welch’s demeanor was that of a most dis-
ingenuous witness. As Fleming impressed me with her can-
dor, I shall credit her as to what occurred that evening. Ac-
cordingly, I find that, on the evening of July 31, Fleming
confronted employee, Valerie Perez, who was performing the
work of a checker, work which was outside of her contrac-
tual job classification, and asked why Perez was working as
a checker, that Welch became aware of the Fleming-Perez
incident; that, at approximately 7 p.m. on August 2, aware
that the Union had been serving courtesy clerk citations,
based on employees working outside of their job classifica-
tions, on Respondent on a regular basis, Welch directed
Fleming to come to an upstairs office; and that Fleming did
so and Welch closed the door. I further find, as to what was
said between them, that, in an angry voice, Welch began by
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106 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
48 No exceptions were taken to this finding.
asking why Fleming had been speaking to Perez; that Flem-
ing replied that she wanted to find out what had been going
on that night because Perez was checking but was classified
as a general merchandise clerk; that Welch then said that she
did not want Fleming to speak to Perez and asked why she
had done so; that Fleming replied she wanted to find out
why Perez had been checking as such was a violation of the
union contract because a general merchandise clerk can not
check; and that, at this point, Welch leaned forward in her
chair and said accusingly, ‘‘I thought we had it narrowed
down who was . . . talking to the Union. We didn’t think
it was you.’’
Counsel for the General Counsel argue ‘‘that, in these cir-
cumstances, such statements by the employer unlawfully cre-
ate the impression that employees’ protected concerted ac-
tivities [are] under surveillance by management.’’ Counsel
cite several Board decisions in support. One such cited deci-
sion, Emerson Electric Co., 287 NLRB 1065 (1988), in-
volved a conversation between a plant manager and an em-
ployee during which the plant manager informed the em-
ployee that he was aware that the latter had attended union
meetings and had expressed interest in the union but that he
did not consider the employee ‘‘a pusher.’’ The Board con-
cluded that the plant manager’s statements ‘‘reasonably
suggest[ed]’’ that he was closely monitoring the union in-
volvement of the employee and, therefore, had unlawfully
created the impression of surveillance. In contrast, counsel
for Respondent cite to several Board decisions in which the
Board concluded that employer statements did not constitute
creation of the impression of surveillance of protected con-
certed activities. In one such decision, Raytheon Co., 279
NLRB 245 (1986), an administrative law judge found that,
during a conversation between the plant’s quality assurance
manager and other supervisors near an employee’s work sta-
tion, the plant turned toward the employee, the they knew
who had started the union thing, and then pointed at the em-
ployee, saying it had been another employee and him. In
finding that said comment did not arise to creation of the im-
pression of surveillance, the administrative law judge based
his conclusion on an examination of the circumstances, sur-
rounding the comment—finding that the employee’s union
activities were ‘‘notorious,’’ that the comment was made in
a noncoercive atmosphere, and that the comment was unac-
companied by any unlawful threats. Id. at 260–261.48 In rely-
ing on the decision, counsel for Respondent note that Flem-
ing was a known supporter of the Union, she and Welch had
a friendly relationship, and the conversation ended amicably.
On balance, I believe that Welch’s comment was coercive
and did create the unlawful impression that Respondent was
engaging in surveillance of the employees’ union activities.
In this regard, I note that there is no record evidence that
Welch had any ‘‘legitimate basis’’ for making her comment
to Fleming. United Charter Service, 306 NLRB 150, 151
(1992). Moreover, while Welch did not accompany her state-
ment with other unlawful statements, I have previously con-
cluded that, just 1 month earlier, in Fleming’s presence, Su-
pervisor John Hayward, pursuant to Welch’s instructions, un-
lawfully stated that employees would no longer be allowed
to speak to Dennis Warde while on the clock and were sub-
ject to discipline for doing so. Finally, the clear implication,
to be drawn from Welch’s statement, was that Respondent
was clearly concerned with the number of citations, which
had been filed involving employees being assigned work out-
side of their job classifications, to the extent that it was
‘‘closely monitoring’’ its employees in an effort to discover
which one was supplying damaging information to the
Union. Emerson Electric Co., supra. In these circumstances,
I believe that Welch’s comment did create the impression
that Respondent was engaging in surveillance of its bargain-
ing unit employees’ union activities and find that it was vio-
lative of Section 8(a)(1) of the Act.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. At all times material, the Union has been the representa-
tive for purposes of collective bargaining of Respondent’s
employees in the following appropriate unit:
All employees who are covered by the terms of the col-
lective-bargaining agreement between Respondent and
the Union, which was effective from March 1, 1992
through March 4, 1995.
4. Since on or about March 26, 1993, by promulgating and
placing into effect new written and oral rules, prohibiting its
employees from wearing at work any pins, badges, or buttons
not issued by Respondent, including those indicating support
for the Union, without prior notice to the Union or affording
the Union an opportunity to bargain over the rules, Respond-
ent has engaged in conduct violative of Section 8(a)(1) and
(5) of the Act.
5. Since on or about March 26, 1993, by promulgating and
placing into effect overly broad written and oral rules prohib-
iting its employees from wearing at work any pins, badges,
or buttons not issued by Respondent, including those indicat-
ing support for the Union, Respondent has engaged in con-
duct violative of Section 8(a)(1) of the Act.
6. By coercing an employee because she filed a grievance
against it, Respondent engaged in conduct violative of Sec-
tion 8(a)(1) of the Act.
7. By stating to, and in the presence of, bargaining unit
employees that they were not allowed to speak to representa-
tives of the Union while on the clock, were only allowed to
do so when off the clock or on breaks, and would be dis-
ciplined if they violated the above directives, Respondent en-
gaged in conduct violative of Section 8(a)(1) of the Act.
8. By creating amongst its employees the impression that
it was engaging in surveillance of their activities in support
of the Union, Respondent engaged in acts and conduct viola-
tive of Section 8(a)(1) of the Act.
9. The above-described unfair labor practices are unfair
labor practices affecting commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
10. Unless specified above, Respondent engaged in no
other unfair labor practices.
REMEDY
Having found that Respondent engaged in certain unfair
labor practices, I shall recommend that it be ordered to cease
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107ALBERTSON’S, INC.
49 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
50 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
National 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.’’
and desist therefrom and to take certain affirmative action
designed to effectuate the purposes and policies of the Act.
Specifically, I shall recommend that Respondent be ordered
to rescind the directive contained in the March 26 Shipley
dress code memorandum and all subsequent rules, pertaining
to the wearing at work of any pins, badges, and buttons not
issued by Respondent, based on the memorandum. Further,
consistent with Raley’s Inc., supra, the instant remedy shall
be coextensive with Respondent’s application of any rules,
which were instituted pursuant to the March 26 Shipley
memorandum.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended49
ORDER
The Respondent, Albertson’s, Inc., Vacaville and Fairfield,
California, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Promulgating, maintaining, and enforcing any rules,
prohibiting the wearing at work of any pins, badges, or but-
tons not issued by Respondent, including any pins, badges,
and buttons indicating support for the Union, without giving
prior notice to and bargaining with the Union as the rep-
resentative for purposes of collective bargaining of all em-
ployees who are covered under the March 1, 1991, through
March 4, 1995 collective-bargaining agreement between Re-
spondent and the Union.
(b) Promulgating, maintaining, and enforcing any overly
broad rules, prohibiting the wearing at work of any pins,
badges, or buttons not issued by Respondent, including any
pins, badges, and buttons indicating support for the Union.
(c) Requiring employees to remove union pins or buttons
pursuant to any overly broad rules, prohibiting the wearing
at work of any pins, badges, and buttons not issued by Re-
spondent.
(d) Coercing employees because they file contract griev-
ances against Respondent.
(e) Stating to, or in the presence of, employees that they
are not allowed to speak to representatives of the Union
while on the clock; that they are only allowed to speak to
representatives of the Union when off the clock or on breaks;
and that they will be disciplined for violating the directives.
(f) Creating amongst its employees the impression that it
is engaging in surveillance of their activities in support of the
Union.
(g) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Rescind the March 26, 1993 Shipley memorandum,
pertaining to the wearing at work of any pins, badges, and
buttons not issued by Respondent and all subsequent written
and oral rules, which were promulgated and placed into ef-
fect and which pertain to the March 26 Shipley memoran-
dum.
(b) Distribute and publicize the removal of the overly
broad limitations on the wearing of any pins, badges, and
buttons not distributed by Respondent, including pins,
badges, and buttons indicating support for the Union, to the
same extent that any such overly broad rules have been pub-
licized and distributed at any of Respondent’s facilities
where the rules have been applied.
(c) Post at its store 750 in Napa, store 755 in Fairfield,
and stores 772 and 781 in Vacaville, California, copies of the
attached notice marked ‘‘Appendix.’’50 Copies of the notice,
on forms provided by the Regional Director of Region 20,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt and maintained by for 60 consecutive days in conspicu-
ous 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, de-
faced, or covered by any other material.
(d) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER ORDERED that, insofar as the consolidated
complaint in Cases 20–CA–25513 and 20–CA–25530 alleges
that Respondent violated Section 8(a)(1) and (5) of the Act
by promulgating certain rules without notifying the Union
and without affording the Union an opportunity to bargain,
the paragraphs shall be, and the same are, dismissed.
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