Albertson's, Inc.

National Labor Relations Board - Board Decisions

Aug 12, 2005

344 N.L.R.B. 1357 (N.L.R.B. 2005)

ALBERTSON’S, INC.
344 NLRB No. 158
1357
Albertson’s, Inc. and United Food and Commercial
Workers Union, Local Union No. 540.1 Case 28–
RC–6300
August 12, 2005
DECISION AND DIRECTION OF SECOND
ELECTION
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
The National Labor Relations Board has considered an
objection to an election held on November 18, 2004,2 and
the hearing officer’s report recommending disposition of
it. The election was conducted pursuant to a Decision
and Direction of Election issued on August 24.3 The
tally of ballots at Store No. 1016 shows five for and three
against the Petitioner, with one challenged ballot, an in-
sufficient number to affect the results.
The Board has reviewed the record in light of the ex-
ceptions and briefs, adopted the hearing officer’s find-
ings and recommendations only to the extent consistent
with this Decision and Direction, and finds that the elec-
tion at Store No. 1016 must be set aside and a new elec-
tion held.
We find that the hearing officer erred in overruling the
Employer’s Objection 1, which alleged that the Union,
by its agents and representatives, affected the election by
distributing a fake letter, forged on Albertson’s letter-
head, claiming the existence of a company plan to con-
vert all nonunion stores in various locations, including El
Paso, to price-impact Super Saver stores, potentially re-
sulting in job loss and reduction in wages and benefits
for current employees. In spite of the Employer’s at-
tempt to respond to the forged document before the elec-
tion, we find insufficient evidence that the employees
were able to recognize the forged letter for what it was.
We therefore sustain Objection 1 and set aside the elec-
tion. We find it unnecessary to pass on the hearing offi-
cer’s recommendations to overrule the Employer’s re-
maining objections.

1 We have amended the caption to reflect the disaffiliation of the
United Food and Commercial Workers International Union from the
AFL–CIO effective July 29, 2005.
2 All dates are in 2004 unless otherwise indicated.
3 On July 19, the Union petitioned for a single unit comprised of all
meat department employees at five Albertson’s stores in El Paso,
Texas. The Regional Director found the scope of the petitioned-for unit
inappropriate, and directed individual elections at the five stores on
November 17–19. The Board denied Petitioner’s request for review on
October 6. The Employer objected only to conduct as it affected the
election at Store No. 1016.
I. FACTS
A. Background
Albertson’s, whose corporate headquarters is in Boise,
Idaho, operates eight grocery stores in El Paso, Texas,
under the Albertson’s brand name. The Union represents
meat department employees in three of these stores, and
on July 19, petitioned the Board seeking to represent
meat department employees at the five other El Paso
stores.
The Union’s campaign was spearheaded by Billy
Myers, an experienced international organizer for the
United Food and Commercial Worker’s Union, Region
5, James Heredia, a union representative, and Rubin
Gonzales, an Albertson’s employee. The Employer’s
preelection campaign was headed by Amanda Paquet
from its labor relations department in Denver, Colorado.
The Union’s primary issues during the campaign were
job security and benefits. The Union disseminated cam-
paign materials to employees indicating, among other
things, that Albertson’s had launched a new subsidiary
called Extreme, Inc., with stores operating under the
banner “Super Saver.” In other locations, including Dal-
las, Albertson’s had converted some of its existing Al-
bertson’s stores to Super Saver stores. New Super Saver
employees generally received reduced hours and benefits
compared to those enjoyed by current Albertson’s em-
ployees. Union campaigners contended that only a vote
for the Union would protect El Paso employees from
having their stores transformed to Super Saver stores and
having their wages, hours, and benefits reduced.
B. The Letter
On or about November 4, an allegedly anonymous fax
addressed to union campaign organizer Billy Myers was
received at Myers’ hotel. The fax was a letter dated
January 8, 2004 from “Chris”4 to Mike Clawson, pur-
ported president of Extreme, Inc.5 The originating fax
number was from Boise, Idaho, the home of Albertson’s
corporate headquarters, and the Albertson’s name-stamp
was on the top of the document.6 Myers blacked out the
originating fax information except for the Boise area
code and the Albertson’s name-stamp.

4 “Chris” was never identified, and no one named Chris worked at
Albertson’s corporate headquarters in Boise, the point of origin of the
fax.
5 The record shows that Extreme, Inc. was incorporated in August
2004 and thus did not exist as of January 8, 2004, the date of the letter.
In addition, Mike Clawson was president of Albertson’s Northwest
Division in January 2004.
6 Myers testified that he knew “Al” at Albertson’s corporate head-
quarters, and Al had sent him corporate documents in the past. But
Myers testified that Al did not send this letter, and he claimed that he
did not know who sent the document.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1358
The letter, printed on what appeared to be Albertson’s
letterhead, stated the following:7
Mike Clawson: 1/08/04
As of to date, our pilot California based Extreme Super
Saver stores are operating on schedule with only a few
minor glitches. As of our financial goals, we still need
to make more cost efficient cuts.
It is very difficult to reach our budget cuts in the stores
with the union contracts. As discussed in our meetings
we believe that targeting our nonunion stores is manda-
tory to make the budget cuts required to establish our
financial goal. Therefore I list several States and cities
in which would be prime candidates and due to this
area being so financially deprived and the stores are not
represented by the Union.
6 Stores in Dallas, TX
9 Oklahoma City, OK
8 Stores in El Paso, TX
3 Stores in Baton Rouge, LA
1 Corpus Christi, TX
3 Lufkin, TX
3 Midland, TX
This cities above have the greatest potential to have
larger profit margins than our California stores.
We also observe the importance of stressing our pro-
gram to under price our competition, “Wal-Mart” in the
cities listed.
We will continue to keep updating you as we continue
to make progress in our Extreme program.
Thanks,
Chris
CC:
Larry Johnson
Jennifer Vroman
Terry Lawrence
Myers testified that he often received documents from
Albertson’s corporate office, but he did not know who
sent this letter. Although Myers stated that he believed
the letter was genuine, and he claimed that he continued
to believe it was genuine throughout the campaign and
thereafter, the hearing officer did not credit Myers’ tes-
timony regarding his beliefs about the authenticity of the
letter.8

7 The text of the letter is reproduced as received, including spelling
and grammatical errors.
8 Although the hearing officer found Myers to be a generally credi-
ble witness, he did not believe that someone with Myers’ campaign
experience and knowledge of the Company would not, at the very least,
Within a few days after Myers received the letter, he
showed it to four “key” employees who were active in
the Union’s campaign and asked them if they knew any-
thing about the letter or its contents: Yolanda Sandoval,
a meat department employee at Store No. 1016; Yvonne
Mena, a meat department employee at Store No. 999;
“Sylvia,” an employee working at one of the unionized
stores in El Paso; and “Fernie,” an employee at Store No.
1016 but not in the meat department, and thus, not eligi-
ble to vote in the election. Myers acknowledged that he
gave copies of the letter to Mena and Fernie because they
asked for copies, but he also stated that he told them not
to distribute the letter. Myers also showed the letter to
Eloy Pdregon, a meat department employee at Store No.
999, on a home visit before the election.
In addition to these five employees to whom Myers
showed the letter, Carlos Aldrete and Enrica Jiminez,
both meatcutters at Store No. 1016, testified that union
organizers, Heredia and Gonzales, showed them copies
of the letter during home visits before the election.9
Although the record is not clear as to the extent of the
letter’s distribution at the five stores, there was evidence
that other employees saw the letter before the election.
Mena testified that she showed the letter to her supervi-
sor and to all meat department employees at Store No.
999, and Myers testified that other employees told him
they had seen the letter.
In response to the circulating document, company rep-
resentative Paquet sent a letter to local Union President
Johnny Rodriguez dated November 12 stating, with spe-
cific supporting proof, that the letter was a forgery.10
Paquet demanded that the Union cease distributing the
fake document, notify all eligible voters that the docu-
ment was fake and the information false, and inform the
Company of any information the Union had on who pre-
pared the document. The Union did not respond to or
comply with Paquet’s letter.

question the letter’s authenticity. There were no exceptions to the
hearing officer’s credibility findings.
9 Aldrete testified that he saw the letter 2 or 3 weeks before the elec-
tion. Jiminez stated that he believed he saw the letter during a home
visit on November 16, 2 days before the election and after the Com-
pany’s November 12 rebuttal letter to the Union, in which the Em-
ployer demanded that the Union cease using the forged document in its
campaign. Jiminez, however, was not certain about the date of the
home visit.
10 Paquet listed numerous factual errors in the letter. For example,
on January 8, 2004, the date of the letter, Extreme, Inc. did not exist,
and Mike Clawson, to whom the letter is addressed, was president of
Albertson’s Northwest Division. In addition, the letter named stores in
several cities where Albertson’s has no stores, the California Super
Saver stores are union and are not affiliated with Extreme, Inc., and
three of the eight El Paso stores are union.
ALBERTSON’S, INC. 1359
In addition to sending the rebuttal letter to the Union,
the Company held mandatory meetings before the elec-
tion with all employees at each of the five El Paso stores.
The Company informed the employees that the letter was
fake, pointed out the factual errors in the letter, and made
available copies of the rebuttal letter sent to the Union.
C. The Election
Individual elections were held at the five El Paso
stores from November 17 to 19. The Union lost elec-
tions at four stores. At Store No. 1016, the vote was five
for and three against the Union, with one challenged bal-
lot. The Employer objected to the outcome of this elec-
tion, charging among other things that the forged letter
tainted the election and prevented employees from exer-
cising free choice.
II. HEARING OFFICER’S REPORT
The hearing officer recommended overruling the Em-
ployer’s objection to the forged document. The hearing
officer rejected the Employer’s contention, based on Mt.
Carmel Medical Center, 306 NLRB 1060 (1992), that the
distribution of a forged document during an election
campaign was a per se violation requiring that the elec-
tion be set aside. Instead, the question to be addressed is
whether voters were “unable to recognize propaganda for
what it was.” Midland National Life Insurance Co., 263
NLRB 127, 133 (1982).
The hearing officer found that the letter on its face was
an obvious forgery. Thus, a reasonable Albertson’s em-
ployee would have recognized the letter for what it was,
i.e., campaign propaganda favoring the Union, prepared
by someone other than Albertson’s. In addition, the
hearing officer found that the Company’s response was
sufficient to expose the forgery and allow employees to
recognize the letter for what it was.
For the reasons set forth below, we agree that Mt.
Carmel did not establish a per se rule requiring that an
election be set aside because of a forged document. But
we disagree with the hearing officer that a reasonable
Albertson’s employee, under these circumstances, would
have been able to recognize the forgery for what it was.
Thus, we sustain the Employer’s Objection 1, set aside
the election, and order a new election.
III. ANALYSIS
The Board announced the standard for evaluating
preelection propaganda, including misrepresentations
and forged documents, in Midland National, 263 NLRB
at 133:
[W]e rule today that we will no longer probe into the
truth or falsity of the parties’ campaign statements, and
that we will not set elections aside on the basis of mis-
leading campaign statements. We will, however, inter-
vene in cases where a party has used forged documents
which render the voters unable to recognize propa-
ganda for what it is. Thus, we will set an election aside
not because of the substance of the representation, but
because of the deceptive manner in which it was made,
a manner which renders employees unable to evaluate
the forgery for what it is. [Footnotes omitted.]
After Midland National, anonymous or falsely attrib-
uted campaign propaganda has been treated as “the nec-
essary but not sufficient threshold for a case by case ex-
amination to determine whether a voter can ‘recognize
propaganda for what it is.’” North American Directory
Corp., 939 F.2d 74, 79 (3d Cir. 1991) (quoting Midland
National, above).
A. The Board Has Not Adopted a Per Se Rule for Forged
Campaign Documents
Despite the Board’s acknowledged case-by-case analy-
sis of alleged campaign forgeries, the Employer here
argues that in Mt. Carmel, above, the Board adopted a
per se rule to set aside an election in cases where a
forged document is distributed before the election. In
Mt. Carmel, a forged LM-2 report11 was distributed to
employees before the election. The Board, in a brief
decision, set aside the election. The Board found that
because of the nature of the forgery at issue, i.e., the un-
ion’s financial disclosures, the document was not, on its
face, an obviously recognizable forgery. Moreover, dis-
tributing a true copy of the LM-2 report was not likely to
expose the forgery for what it was because employees
would not be able to distinguish the forged document
from the genuine one. Thus, relying on Midland Na-
tional, the Board set aside the election because, under the
circumstances, employees were unable to recognize the
forgery for what it was.
We agree with the hearing officer that Mt. Carmel did
not create a per se rule for forgeries. We further decline
the Employer’s request that the Board reject its estab-
lished analysis and adopt a per se rule requiring that an
election be set aside when forgeries are involved.
B. Employer’s Exception to Hearing Officer’s Finding
that Employees Should Have Recognized Forgery for
What It Was
The Employer argues that even in the absence of a per
se rule for campaign forgeries, the election at Store No.
1016 should be set aside because Albertson’s employees

11 Under the Labor-Management Reporting and Disclosure Act
(LMRDA), labor unions must file annual financial disclosures with the
Office of Labor-Management Standards. An LM-2 is one such docu-
ment.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1360
were unable to recognize the forgery for what it was. We
find merit to this exception.
First, the Employer argues that a reasonable employee
would not have recognized the letter, on its face, as an
obvious forgery. We agree. The hearing officer found
that the letter was clearly fake, relying among other
things on the following errors: it was poorly drafted, with
grammatical and spelling errors; the CEO’s name (Larry
Johnston) was misspelled; the letter referred to stores in
cities where Albertson’s did not have any stores; the let-
ter is dated January 8, 2004, and refers to “Extreme
stores,” but Extreme stores did not exist until August
2004; the addressee, Mike Clawson, was not affiliated
with Extreme, Inc. in January 2004; and California Super
Saver stores were unionized.
The hearing officer found that these material errors of
fact would be “immediately evident to employees.” We
do not share this view. For example, we would not ex-
pect the average employee to know the correct spelling
of the CEO’s name, who Mike Clawson was, in what
cities Albertson’s had stores, or the representation status
of Albertson’s California stores. Moreover, union organ-
izer Myers did not redact the Albertson’s name-stamp or
the Boise, Idaho area code from the top of the fax, both
of which added to the document’s authentic appearance.
In short, the record does not support a finding that the
letter was obviously recognizable as a forgery to a rea-
sonable Albertson’s employee.12
Second, the hearing officer, relying primarily on Heinz
Pet Products v. NLRB, 97-5058, 97-5212, 1998 WL
449771 (6th Cir. 1998), found that the Employer’s re-
sponse to the forged letter, including meetings with em-
ployees before the election and distributing to employees
the Employer’s rebuttal letter to the union, was enough to
expose the letter as a forgery. We find that the facts in
this case are distinguishable from Heinz Pet Products,
and in the particular circumstances of this case, we find
that the Employer’s response to the forged letter was
insufficient to repair the damage that the letter did to
employee free choice in the election.
In Heinz Pet Products, an anonymous, forged letter
falsely impugning the employer’s campaign tactics ap-
peared at the homes of two employees. One of the em-
ployees brought the letter to the union’s headquarters.
The next day, the forged letter was all over the em-
ployer’s plant, but there was no evidence implicating the
union or indicating who was responsible for distributing
the letter. The only activity directly linking the union

12 There is no inconsistency between this conclusion and the finding
that union organizer Myers could not reasonably believe that the docu-
ment was real. Myers, unlike the employee, was an experienced union
agent who was familiar with the Employer.
with the letter’s distribution was a home visit where a
union agent showed the letter to two employees. The
employer in Heinz Pet Products objected to the election
results both on the grounds of union agent distribution of
the letter and on the grounds of third-party distribution,
and the court treated the two issues separately. With
regard to union agent distribution, the court noted that
the union was responsible for showing the letter to two
employees only, and thus the effect was de minimis and
did not alter the election’s outcome. Id. at 2.13 With
regard to distribution of the letter by third parties, the
court correctly held that misconduct by third parties is
given less weight than misconduct by a party. Id. at 3.
Thus, with regard to the third-party distribution, the court
held that the employer’s efforts to counter the letter, in-
cluding widespread distribution of a letter to a union of-
ficer exposing the forgery, as well as a series of employer
speeches declaring the letter to be a forgery, would have
reasonably led employees to believe that the letter was
not authentic and thus mitigated its effect on their free
choice. Id. at 4.
In this case, on the other hand, we are primarily con-
cerned only with distribution by union agents. Union
organizer Myers testified that he gave copies of the
forged Albertson’s letter to two “key” employees, Mena
and Fernie. Mena testified that she showed the letter to
her supervisor and to all of the employees in the meat
section at her store. In addition, union agents Myers,
Heredia, and Gonzales showed the letter to at least three
employees during home visits. Thus, unlike the unattrib-
uted distribution of the forgery in Heinz Pet Products,
here the Union, through its agents, was directly responsi-
ble for disseminating the forged document to a signifi-
cant number of employees.14 It therefore cannot be said
that the distribution by the union agents was de minimis.
Although the Employer’s efforts to dispel the effects
of the forgery cannot be discounted, because we are deal-
ing with distribution by a party, we must look more
closely at all the circumstances to determine if those ef-
forts would reasonably have caused employees to assess
the forged letter for what it was, and thus recognize it as
campaign propaganda. In the circumstances of this case,
we find that this standard has not been met.
First and foremost, the hearing officer did not credit
Myers’ claim that he believed the letter was genuine. He
found that Myers, an experienced union organizer who
was familiar with Albertson’s operations, should have

13 Over 700 employees voted in the election, and the union won by
31 votes. Thus, showing the forgery to two employees could not have
affected the election’s outcome.
14 The hearing officer found that the letter was distributed by union
agents, and the Union did not dispute the finding.
ALBERTSON’S, INC. 1361
been suspicious, at the very least, of the letter and its
authenticity.15 Nevertheless, Myers himself initiated the
distribution of the letter, and union agents continued to
distribute the letter on home visits.
Moreover, the Union never acknowledged or advised
unit employees that the letter was a forgery, even after
the Employer asked it to do so.16 The Union’s choice to
remain silent, despite receiving clear evidence that the
letter was not authentic, unnecessarily added to employ-
ees’ confusion, especially because a simple union ac-
knowledgement of the forgery would have helped to dis-
pel such uncertainties. Even though the Employer met
with employees and claimed that the letter was a forgery,
a reasonable employee could have been confused by the
authentic-looking document in the face of the Union’s
silence, and may have doubted the Employer’s attempt to
reveal that the letter and its contents were false.
In sum, employees were being told by the Employer
that the letter was a fake, but the Union was distributing
the letter to the employees as real.17 Faced with conflict-
ing views from the two party antagonists, the employees
were “unable to recognize propaganda for what it [wa]s.”
Midland National, 263 NLRB at 133. The Union could
have cleared up the confusion, but chose not to do so.
The ultimate question, as Midland National makes
clear, is whether employees were able—under all the
circumstances—to recognize the forged document for
what it was. One such circumstance that must be taken
into account is the Employer’s attempts to reveal the
letter as a forgery. In this case, however, in disagreement
with the hearing officer, we find that those attempts were
insufficient to mitigate the effects that the forged letter
had on employee free choice. The nature and contents of
the letter, the Union’s role in its distribution, and the Un-

15 For example, the letter states that the Company was targeting eight
stores in El Paso. Myers, the union organizer, certainly knew that three
of the El Paso stores were union. Indeed, he testified that he met with
Sylvia, an employee from one of the union stores in El Paso, and
showed her the letter.
16 Cf. Kitchen Fresh, Inc., 716 F.2d 351, 355 (6th Cir. 1983), cited in
Heinz Pet Products for the proposition that “[p]ublic disavowal is re-
quired where the union or its agent is responsible for the misconduct.”
Heinz above at 4 fn. 6. The Heinz court further stated, “Where the
union did not engage in misconduct, a union’s silence is at most a fac-
tor to consider in determining whether employees reasonably could
recognize the forged documents as campaign propaganda.” Id. In
Kitchen Fresh, the court found that an employee who circulated false
rumors was not a union agent, and the union disavowed the rumors, so
the rumors and the union’s conduct were not grounds to set aside the
election. In contrast, the hearing officer in the present case found that
Myers and other union organizers were union agents, and the Union
failed to disavow the forged letter.
17 We recognize that the Union told Mena and Fernie not to further
distribute the letter. However, the cat was out of the bag, and the Un-
ion took no steps to safeguard against further distribution.
ion’s decision to remain silent rather than inform em-
ployees of the forgery all prevented employees from rea-
sonably recognizing the letter as a forgery, despite the
Employer’s efforts. As such, in the particular circum-
stances of this case,18 we believe this letter is the kind of
forgery that, according to Midland National, warrants the
Board’s intervention. We therefore sustain the Em-
ployer’s Objection 1, set aside the election, and direct a
second election as set forth below.
DIRECTION OF SECOND ELECTION
A second election by secret ballot shall be held among
the employees in the unit found appropriate, whenever
the Regional Director deems appropriate. The Regional
Director shall direct and supervise the election, subject to
the Board’s Rules and Regulations. Eligible to vote are
those employed during the payroll period ending imme-
diately before the date of the notice of second election,
including employees who did not work during that period
because they were ill, on vacation, or temporarily laid
off. Also eligible are employees engaged in an economic
strike that began less than 12 months before the date of
the first election and who retained their employee status
during the eligibility period and their replacements.
Jeld-Wen of Everett, Inc., 285 NLRB 118 (1987). Those
in the military services may vote if they appear in person
at the polls. Ineligible to vote are employees who have
quit or been discharged for cause since the payroll pe-
riod, striking employees who have been discharged for
cause since the strike began and who have not been re-
hired or reinstated before the election date, and employ-
ees engaged in an economic strike that began more than
12 months before the election date and who have been
permanently replaced. Those eligible shall vote whether
they desire to be represented for collective bargaining by
United Food and Commercial Workers Union, Local
Union No. 540.
To ensure that all eligible voters have the opportunity
to be informed of the issues in the exercise of their statu-
tory right to vote, all parties to the election should have
access to a list of voters and their addresses that may be
used to communicate with them. Excelsior Underwear,
156 NLRB 1236 (1966); NLRB v. Wyman-Gordon Co.,
394 U.S. 759 (1969). Accordingly, it is directed that an
eligibility list containing the full names and addresses of
all the eligible voters must be filed by the Employer with
the Regional Director within 7 days from the date of the
notice of second election. North Macon Health Care
Facility, 315 NLRB 359 (1994). The Regional Director

18 We also consider the closeness of the election. Here the election
vote was five for and three against the Union, so a change in just one
vote could have affected the outcome.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1362
shall make the list available to all parties to the election.
No extension of time to file the list shall be granted by
the Regional Director except in extraordinary circum-
stances. Failure to comply with this requirement shall be
grounds for setting aside the election whenever proper
objections are filed.