Albertson's, LLC

National Labor Relations Board - Administrative Judge Opinions

May 24, 2012

28-CA-023387 (N.L.R.B. May. 24, 2012)

JD(SF)–25–12
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES–SAN FRANCISCO BRANCH OFFICE
ALBERTSON’S, LLC
and Case 28-CA-023387
YVONNE MARTINEZ, an Individual
and Case 28-CA-023538
UNITED FOOD AND COMMERICAL
WORKERS UNION, LOCAL 1564
TABLE OF CONTENTS
Page
Decision…………………………………………………………………………… 1
Statement of the Case……………………………………………………………... 1
Findings of Fact…………………………………………………………………… 2
I. Jurisdiction……………………………………………………………………... 2
II. Alleged Unfair Labor Practices………………………………………………... 2
A. Introduction……………………………………………………………………. 2
B. Local 1564’s Organizing Campaign…………………………………………… 3
C. The 8(a)(1) Allegations………………………………………………………... 4
1. Andrick’s statutory status……………………………………………………… 5
2. The alleged unlawful rules…………………………………………………….. 7
a. Complaint paragraphs 5(a), (b) and (c)………………………………………... 8
b. Complaint paragraphs 5(f) and (g)…………………………………………….. 11
c. Complaint paragraphs 5(j) and (k)…………………………………………….. 13
3. The allegations about soliciting grievances…………………………………… 13
a. Complaint paragraphs 5(d) and (e)……………………………………………. 14
b. Complaint paragraph 5(i)……………………………………………………… 16
c. Complaint paragraph 5(o)……………………………………………………... 17
4. The allegations about providing benefits……………………………………… 17
a. Complaint paragraph 5(p)……………………………………………………... 18
b. Complaint paragraph 5(q)……………………………………………………... 18
5. The surveillance allegations…………………………………………………… 20
a. Complaint paragraph 5(h)……………………………………………………... 20
b. Complaint paragraphs 5(m) and (r)……………………………………………. 22
6. The threat allegations………………………………………………………….. 26
a. Complaint paragraph 5(l)……………………………………………………… 26
b. Complaint paragraph 5(n)……………………………………………………... 27
7. The Johnnie’s Poultry allegations……………………………………………... 27
D. The 8(a)(3) allegations………………………………………………………... 35
1. Yvonne Martinez’ suspension and discharge…………………………………. 36
2. The Perea discrimination allegations………………………………………….. 45
JD(SF)–25–12
ii
Conclusions of Law………………………………………………………………. 51
Remedy……………………………………………………………………………. 51
Order……………………………………………………………………………… 52
Appendix
JD(SF)–25–12
Albuquerque, NM
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES–SAN FRANCISCO BRANCH OFFICE
ALBERSTON’S, LLC
and Case 28-CA-023387
YVONNE MARTINEZ, an Individual
and Case 28-CA-023538
UNITED FOOD AND COMMERCIAL
WORKERS UNION, LOCAL 1564
David Garza and Sophia Alonso, Attys.
for the Acting General Counsel
Thomas Stahl, Glenn Beard, and Jeffrey Lowry, Attys.
(Rodey, Dickason, Sloan, Akin & Robb, PA)
for Albertson’s, LLC.
DECISION
STATEMENT OF THE CASE
WILLIAM L. SCHMIDT, Administrative Law Judge. I conducted 8 days of hearing in this
consolidated proceeding between September 27 and December 6, 2011, at Albuquerque, New
Mexico. Yvonne Martinez (Martinez or Charging Party Martinez) filed the original charge in
Case 28-CA-023387 on March 3, 2011. Martinez amended her charge on April 29, 2011, and,
that same day, the Regional Director for Region 28 of the National Labor Relations Board
(NLRB or the Board) issued a complaint alleging that Albertson’s, LLC (the Respondent or the
Company) violated Section 8(a)(1) and (3) of the National Labor Relations Act (the Act or the
NLRA). 1 On June 6, 2011, the United Food and Commercial Workers Union, Local 1564 (the
Union, Local 1564, Charging Party Union) filed the original charge in Case 28-CA-23538 also

1 Sec. 8(a)(1) makes it an unfair labor practice for an employer to “interfere with, restrain or
coerce employees in the exercise of the rights guaranteed in section 7.” The pertinent part of
Sec. 7 guarantees employees “the right to self-organization, to form, join, or assist labor
organizations, to bargain collectively through representatives of their own choosing, and to
engage in other concerted activities for the purpose of collective bargaining or other mutual aid
or protection, and . . . to refrain from any or all such activities.” The pertinent portion of Sec.
8(a)(3) prohibits employers from discriminating against employees “in regard to hire or tenure of
employment or any term or condition of employment to encourage or discourage membership in
any labor organization.”
JD(SF)–25–12
2
alleging that Albertson’s violated Section 8(a)(1) and (3) of the Act. Local 1564 amended its
charge on August 12. On August 16, the Regional Director consolidated the pending cases and
issued a consolidated complaint (the complaint). The Respondent filed a timely answer denying
that it engaged in the unfair labor practices alleged. At the hearing, counsel for the Acting 5
General Counsel (the General Counsel) moved to amend the complaint twice to allege additional
violations of Section 8(a)(1).2 I granted those motions over the Respondent’s opposition.
Having now carefully considered the entire record, the demeanor of the witnesses, the
reliability of witness testimony, and the arguments set forth in the briefs filed by the General 10
Counsel and the Respondent, I make now the following
FINDINGS OF FACT
I. JURISDICTION15
Respondent, a Delaware limited liability corporation with offices and places of business
in various States of the United States, including a facility located at 1625 Rio Bravo Boulevard,
SW in Albuquerque, New Mexico, (store 917) has been engaged in the retail sale of groceries,
meats, and related products. During the 12-month period ending March 3, 2011, Respondent 20
derived gross revenues in excess of $500,000 at store 917. During the same period Respondent
purchased and received at store 917 goods valued in excess of $50,000 directly from locations
outside the State of New Mexico. Based on the foregoing admitted facts, I find that it would
effectuate the policies of the Act for the Board to exercise its statutory jurisdiction to resolve this
labor dispute. 25
II. ALLEGED UNFAIR LABOR PRACTICES
A. Introduction
30
Albertson’s operates numerous supermarkets mostly in the western United States. It is
administratively organized into divisions. The Company’s southwest division, headquartered in
Phoenix, Arizona, oversees the operation of 105 stores. It includes all of the Company’s stores
in Arizona, Colorado, and New Mexico, as well as two stores in Utah and three stores in the El
Paso, Texas area. store 917 is the only facility involved in this proceeding. Approximately 80 35
employees work at that store. Local 1564 represents the meat department employees who work
there, but the remaining employees are unrepresented. This case arose from an aborted attempt
by Local 1564 to organize those other employees.
As detailed below, the various managers in the southwest division played key roles in the 40
events at issue here. These individuals include Mark Blankenship, the director of human
resources manager; Danny Ma, the labor relations manager; and Angelita (Angel) Seydel and
Katina Wood, both associate relations managers. Blankenship described Ma, a member of the
Arizona Bar, as his “employment lawyer,” the person he consults when there are legal issues
within his zone of responsibility. Seydel, who reports to Ma, has responsibilities that include the 45
stores in the division where some or all of the employees are represented by a labor organization.

2 See GC Exhs. 34 and 42.
JD(SF)–25–12
3
The division is administratively divided into districts, each with its own manager. store 917 is in
the district headed by Tom Houston. Houston visits the stores in his district from time to time
and provides ongoing direction to the store managers by email.
5
Don Merritt became the store director for store 917 in January 2010. His management
staff at the store includes Jeromy Garcia, assistant store manager/grocery manager who
substitutes for Merritt in his absence; Lucinda (Cindy) Andablo, the service operations manager
(aka front-end manager or customer service manager); Domeguita Gutierrez, general merchandise
manager; and Mike Mares, the meat department manager. The Company admits these 10
individuals are supervisors within the meaning of Section 2(11) of the Act. The parties disagree
about the statutory status of Alice Andrick, one of three assistant front-end managers at store 917
and a central figure in some of the more important aspects of this case. Andrick reported to
Andablo during the relevant times. The General Counsel alleges that she is both a statutory
supervisor and an agent of Albertson’s at the store.15
Charging Party Martinez worked 25 years for Albertson’s prior to her discharge on
December 4, 2010. She worked at store 917 for the past 7 or 8 years. At the time of her
termination (which is alleged as an unfair labor practice in violation of Sec. 8(a)(3)), Martinez
was the second most senior cashier at store 917. The other alleged discriminatee, Talie Perea, 20
has worked for Albertson’s for 9 years. She works as a cashier and has been assigned to store
917 for the past 4 years. Perea’s husband also works at store 917 as a meatcutter and belongs to
the unit represented by Local 1564.
B. Local 1564’s Organizing Campaign25
In July 2010, Juan Vasquez, a Local 1564 representative, made visits to store 917
ostensibly to speak with meat department employees. He also visited other stores and soon
gained the attention of company officials. The first clear indication that the Company knew of
his efforts is contained in a July 28 email that District Manager Houston sent to several store 30
directors, including Merritt at store 917. That email describes Vasquez as a “disgruntled x Meat
Mgr” now working for the Union “soliciting associates trying to get our people interested in the
union.” The email warned the store directors to make sure that the Company’s solicitation policy
was posted and to be on the “lookout for him.” (GC Exh. 26)
35
Around the same time, Assistant Store Manager Garcia passed along reports he had
received from a couple of senior employees about efforts by Vasquez to generate their interest in
unionizing. Shortly thereafter, Merritt encountered Vasquez inside the store speaking with the
represented meat department employees in the “meat back room.” Merritt introduced himself,
and proceeded to explain the Company’s solicitation policy. Subsequently, Merritt reported his 40
exchange with Vasquez in an email to Houston with copies to Labor Relations Manager Ma and
Associate Relations Manager Seydel. Seydel, in turn, contacted Merritt for more detail and,
based on the information she received from him, she provided further defensive instructions to
Merritt and arranged for Merritt to schedule meetings for her to speak with the employees the
following week. 45
Seydel’s email reflects a palpable sense of urgency. The defensive instructions she
provided to Merritt counseled that his assistant and the night-closing managers should be
JD(SF)–25–12
4
“walking the departments and the parking lot when he was not there;” that he review the
solicitation policy with department managers and instruct them to “monitor” the departments;
and finally, that the last names of employees be dropped from employee schedules. As described
below, employees soon noticed the extent to which the store management went to be watchful of 5
their conduct. In addition, managers from the division level conducted three captive audience
meetings that sought to impress on employees the pitfalls they faced if they went along with the
organizing drive as well as the number of benefits they already had.
C. The 8(a)(1) Allegations10
The complaint, as twice amended during the hearing, contains 20 separate allegations that
the Respondent’s supervisors or agents violated Section 8(a)(1). They are as listed here in the
order in which they will be considered:
15
1. Seven allegations (5(a)–(c), (f), (g), (j) and (k)) aver that the Respondent established
overly broad and discriminatory work rules to chill union activities among employees.
2. Four allegations (5(d), (e), (i) and (o)) charge that the Respondent solicited employee
grievances and implicitly promised to remedy them or promised other benefits in order to 20
dissuade employees from engaging in union activities at the store.
3. Two allegations (5(p) and (q)) claim that the Respondent offered, promised, or
provided benefits to employees to dissuade them from engaging in union activity.
25
4. One allegation (5(h)) claims that the Respondent asked certain employees to report to
management about their colleagues engaged in union activity.
5. Two allegations (5(l) and (n)) aver that an alleged supervisor threatened employees
while speaking with them about union activity. 30
6. Three allegations pertain to the General Counsel’s assertion that the Respondent
engaged in surveillance of employees’ protected activity (5(h) and (r)) or created the
impression that it was engaged in surveillance (5(m)) of employee union activities.
35
7. Two allegations (5(s) and (t)) claim that the Respondent, through its store director and
lawyers, unlawfully interrogated an employee during its hearing preparations.
As noted, the Respondent admits the statutory supervisor or agent status of all of those
individuals named as being responsible supervisors or agents for the conduct detailed in the 40
various 8(a)(1) allegations, save for the allegation that concern the conduct of Alice Andrick.
The parties are in sharp disagreement as to her status. Andrick is specifically named as the
responsible supervisor or agent in four (or five, depending on how you count inasmuch as
complaint par. 5(n) has two subparagraphs) of the 8(a)(1) allegations. I start with the resolution
of her status as the evidence shows that she knew about the early efforts to organize the nonmeat 45
employees and that she also played a key role in the Martinez discharge.
JD(SF)–25–12
5
1. Andrick’s statutory status
Complaint paragraph 4 alleges that Andrick, one of the assistant front-end managers, is a 5
supervisor within the meaning of Section 2(11) and an agent of the Respondent within the
meaning of Section 2(13) of the Act. The Respondent’s answer denies that compound allegation.
As I have concluded for reasons detailed below that Andrick is clearly an agent of the
Respondent within the meaning of Section 2(13), I find it unnecessary to resolve the more
problematic question as to whether she is also a supervisor within the meaning of Section 2(11).310
Unlike other portions of NLRA Section 2, Section 2(13) pertaining to the concept of
agency is more of a statutory directive than a definition. As with other claims pertaining to a
person’s status under Section 2, the burden of establishing that an individual is an agent of
another rests with the party asserting it. Oakwood Healthcare, Inc., 348 NLRB 686, 687 (2006). 15
Under the NLRA, an employer is responsible for the actions and statements of persons
acting as its agents. Section 2(2) provides that “the term ‘employer’ includes any person acting
as an agent of an employer.” The existence of an agency relationship is a fact question.
Overnite Transp. Co. v. NLRB, 140 F.3d 259, 265 (DC Cir. 1998).20
Section 2(13) provides that in “determining whether any person is acting as an ’agent’ of
another person so as to make (the principal responsible for the acts of an agent), the question of
whether the specific acts performed were actually authorized or subsequently ratified shall not be
controlling.” In cases where, as here, there is no known express authorization by the principal, 25
the Board examines whether the alleged agent acted with the “apparent authority” of the
principal. In these situations, the Board applies the common law principles of agency to
determine whether an individual is acting with the apparent authority of her/his employer when
evaluating a particular statement or action by the putative agent. Cooper Industries, 328 NLRB
145 (1999). In Pan-Oston Co., 336 NLRB 305, 306 (2001), the Board summarized these 30
principles as follows:
Apparent authority results from a manifestation by the principal to a third party that
creates a reasonable belief that the principal has authorized the alleged agent to perform
the acts in question. Southern Bag Corp., 315 NLRB 725 (1994) (and cases cited 35
therein). Either the principal must intend to cause the third person to believe the agent is
authorized to act for him, or the principal should realize that its conduct is likely to create

3 Sec. 2(11) defines a supervisor as “any individual having authority, in the interest of the
employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or
discipline other employees, or responsibly to direct them, or to adjust their grievances, or
effectively to recommend such action, if in connection with the foregoing the exercise of such
authority is not of a merely routine or clerical nature, but requires the use of independent
judgment. Although some evidence shows that Andrick occasionally assigned work tasks, took
corrective action against the store’s cashiers and courtesy clerks, and possessed authority to rule
on incidental tardiness excuses, there is a paucity of evidence establishing that the authority she
exercised went very beyond they type of routine direction given by an experienced individual.
JD(SF)–25–12
6
such a belief. Service Employees Local 87 (West Bay Maintenance), 291 NLRB 82
(1988) (citing Restatement 2d, Agency, § 27 (1958, Comment a)).
The Board’s test for determining whether an employee is an agent of the 5
employer is whether, under all of the circumstances, employees would reasonably believe
that the employee in question was reflecting company policy and speaking and acting for
management. Waterbed World, 286 NLRB at 426–427 (and cases cited therein). The
Board considers the position and duties of the employee in addition to the context in
which the behavior occurred. Jules V. Lane, 262 NLRB 118, 119 (1982).10
In short, the Board finds apparent authority exists when the individual is placed “in a position
where employees could reasonably believe that he spoke on behalf of management.”
Progressive Electric, Inc. v. NLRB, 453 F.3d 538 (DC Cir. 2006). The evidence shows that
Albertson’s put Andrick in just such a position and, therefore, it is responsible for her conduct 15
because she regularly acts as its agent when dealing with store 917 employees.
Andrick’s official title under the Respondent’s personnel classification nomenclature is
“Service Operations Assistant.” But neither Andrick nor the store employees are familiar with
the title.4 Instead, those who work in the store’s front-end operation repeatedly referred to her 20
and her colleagues performing the same job as “assistant front-end managers,” a traditional title
in the industry. Andrick said that she reports to Store Director Merritt even though she is
subordinate to Lucinda (Cindy) Andablo, the front-end manager, aka, the service operations
manager, a person the Respondent conceded was a Sec. 2(11) supervisor.
25
In addition to Andrick, Anthony (Tony) Candelaria and Ken Chavez served as the other
assistant front end managers during the same period.5 The work schedules characterize Andablo,
Andrick, Candelaria, and Chavez as the “Front End Management” and segregate them from the
other front-end employees. (See GC Exhs. 11–18).
30
As a rule, Andrick works a 10 a.m. to 4 p.m. shift; at other times she works a 4 p.m. to
midnight shift. The work schedules in evidence show that less than a majority of Andrick’s
worktime overlapped with Andablo’s work schedule. In Andablo’s absence, Andrick acted as
the front-end manager. She estimated that Andablo would not be present at all “maybe three
times a week” but in fact the schedules show that Andrick worked for considerable periods of 35
each day where she was on duty when Andablo was not present. The front-end managers do not
wear the standard maroon polo shirt with tan or black slacks worn by rank and file employees;
instead, they wear white blouses or shirts with black trousers or slacks.
By Andrick’s own description of her duties, she runs “the front-end, the cashiers, the 40
courtesy clerks” in the sense that she gives them tasks to perform and tells them when they are

4 When asked about her position, Andrick answered, with a degree of obvious puzzlement,
“I’m an assistant—what is it called—service operation manager.” Even this vague recollection
of her official job title appears to be technically incorrect.
5 Andablo left the store in July 2011. Susan Juarez replaced her. Juarez did not work at the
store when the events under consideration here occurred.
JD(SF)–25–12
7
free to take their breaks and their lunch periods. She also insures that the cashiers have the
proper level of cash at their checkout counters, and resolves problems that arise between the
cashiers and customers about coupons or product prices. Andrick has the combination to the
store safe to secure the cash she collects from the cashiers. She is occasionally invited to attend 5
management meetings but, more importantly, she meets regularly, if not several times a day,
with Store Director Merritt where he provides her with guidance and direction in carrying out
store policies. She distributes policy memos provided by management and, if an employee
signature is required, she obtains it. When a problem occurs at a register, she, in her own words,
“[steps] in and [tries] to fix what I can. Try to fix it. Try to take over for [the cashier having a 10
problem].”
Andrick obviously acted in Albertson’s interest in connection with the events that lead to
the suspension and discharge of Yvonne Martinez. In addition to her own role and conduct, her
presence in Merritt’s office when Mark Zbylut, Albertson’s district loss prevention manager, 15
questioned Martinez about the details of the incident that eventually led to her discharge, signals
her alignment with the interests of Albertson’s management that undoubtedly would be obvious
to any employee. Later, she told cashier Talie Perea about aspects of the Respondent’s close
oversight of the Local 1564’s activities learned from her routine meetings with Merritt.
20
Based on the evidence reflecting Andrick’s close alignment with management (including
her inclusion with management on the weekly work schedules and other incidental matters such
as her presence with Merritt in his office for Martinez’ investigatory interview on December 1),
her daily direction of the cashiers and courtesy clerks whether routine or not, her job functions
that support management objectives in the department such as the distribution of written 25
company policies and the collection of signed acknowledgments by employees, her daily
substitution for an acknowledged supervisor, and her management style uniform, I am
completely satisfied that employees at the store “would reasonably believe that [Andrick] was
reflecting company policy and speaking and acting for management.” For these reasons, I have
concluded that Andrick is an agent of the Respondent within the meaning of Section 2(13) and 30
that Albertson’s is responsible for her conduct. Ohmite Mfg. Co., 290 NLRB 1036 (1988)
2. The alleged unlawful rules
The Board has long construed broad rules barring conduct that could include Section 7 35
activities during work hours, as opposed to work time, as presumptively invalid. Our Way,
Inc.,268 NLRB 394 (1983), citing Essex International, Inc., 211 NLRB 749 (1974). Essex
International case holds that work rules barring protected activities during “working hours” are
presumptively invalid because that term connotes periods from the beginning to the end of work
shifts that may include the employees’ own time whereas the words barring such activities 40
during “working time” are presumptively valid because that term connotes periods when
employees are actually performing job duties, but not those periods during the workday that are
the employees’ own time, such as lunch and break periods.
An employer violates Section 8(a)(1) by maintaining workplace rules that tend to chill 45
employee Section 7 activities. Lafayette Park Hotel, 326 NLRB 824, 825 (1998). The Board
established an analytical framework in Lutheran Heritage Village-Livonia, 343 NLRB 646
(2004), that fact finders must use when deciding the lawfulness of workplace rules under the
JD(SF)–25–12
8
NLRA. It provides that rules explicitly restricting Section 7 activities violate Section 8(a)(1).
However, where a rule does not explicitly restrict Section 7 activity, the General Counsel must
establish by a preponderance of the evidence that: (1) employees would reasonably construe the
rule to prohibit Section 7 activity; (2) the employer adopted the rule in response to union activity; 5
or (3) the employer applied a rule to restrict employee Section 7 activity. Id. at 647. Trial judges
(and for that matter, the General Counsel and the Regional Directors) must give any disputed
rule a reasonable reading, refrain from reading particular phrases in isolation, and avoid
improper presumptions about interference with employee rights. Id. at 646.
10
If a workplace rule publicized to employees explicitly infringes the Section 7 rights of
employees, the mere maintenance of the rule violates the Act without regard to when it was
established or whether, if ever, the employer applied the rule to the detriment of an employee.
Guardsmark, LLC v. NLRB, 475 F.3d 369, 375-376 (D.C. Cir. 2007) Hence, an unlawful rule
appearing in an employee manual written long ago and never enforced may still be subject to a 15
proscriptive order under Section 10.
a. Complaint paragraphs 5(a), (b) and (c)
The General Counsel relies on the “mere maintenance” principle to bring the first three 20
allegations. On August 20, 2010, in direct response to the Union’s organizing activity at store
917, Associate Relations Manager Seydel traveled from her office in Denver to meet with
employees at store 917 to conduct meetings with small groups of the store’s unorganized
employees. Attendance by employees was mandatory, a feature that lead unions and others to
label these types of paid assemblies as “captive audience” meetings. During the meetings Seydel 25
conducted, she presented the Company’s initial response that contained numerous arguments for
resisting the ongoing unionization efforts. In effect, she served as the Company’s first responder
that directly engaged the store employees after the organizing drive began at store 917.
Complaint paragraphs 5(a), (b), and (c) aver that Seydel orally promulgated overly-broad 30
and discriminatory rules during her August 20 meetings that prohibit employees from soliciting
on behalf of the Union, talking about the Union, or even possessing union cards at work.
Respondent challenges these allegations on the ground that they are barred by the 10(b) statute of
limitations and that, in any event, they lack merit.6
35
Seydel arranged to meet with the unrepresented store 917 employees in groups of 10 or
so. During her presentations, Seydel worked largely from a PowerPoint presentation she had
prepared. (See R. Exh. 3)
Yvonne Martinez attended one of Seydel’s presentations. Martinez reported that Seydel 40
told the employees at the meeting she attended that the workers “could not talk about the union
while we were at work and we could not solicit union activity or we would be violating company
policy.” (Tr. 571) Later on, Martinez refined her answer by saying that Seydel did not say

6 Sec. 10(b) provides, in pertinent part, that: “no complaint shall issue based upon any unfair
labor practice occurring more than six months prior to the filing of the charge with the Board and
the service of a copy thereof upon the person against whom such charge is made.”
JD(SF)–25–12
9
anything about “working time.” Instead, she said that Seydel simply said they “could not solicit
Union activity or we would be violating company policy and said we couldn’t be passing out
cards.” (Tr. 666) The General Counsel adduced no evidence to corroborate Martinez’ account.
5
Seydel denied that she told employees that they could not talk about the Union or solicit
for the Union at work. She also denied that she discussed the Company’s solicitation policy at
all during the employee meetings. (Tr. 1527-1528) She and some of the employee witnesses
recalled that Albertson’s solicitation policy (R. Exh. 4) had been posted at the front entrance to
the store around this time. Seydel admitted that she reviewed that official policy in a meeting 10
with the store director and the department supervisors in a separate meeting during this visit.7
As for the employee meetings, Seydel denied that her presentations diverted from the matters
covered in her PowerPoint set up. In addition, Seydel said she lacked the authority to alter the
official solicitation policy.
15
On these points, I find Seydel’s account more reliable than Martinez’ recollection. Given
Seydel’s detailed, preprepared presentation during this visit, I find it more probable than not that
a reference of some kind would appear in her PowerPoint presentation had she actually
addressed the Company’s solicitation policy or any related topic. Its absence provides some
support for Seydel’s denials.20
Furthermore, the evidence gives no hint that any employee questioned the unusual
statements Martinez attributed to Seydel, either during the meetings or later. I find that a very
improbable scenario in view of the obvious statements to the contrary in the posted solicitation
policy, and the likelihood that at least some employees would likely know better as a result of 25
their long association with the unionized meat department. Those facts, coupled with the lack of
evidence lending support to Martinez’ recollection, have lead me to conclude that Seydel’s
assertions about the meetings are credible. Accordingly, I find that the General Counsel failed to
prove these allegations.
30
In addition, I find merit to the Respondent’s argument that these allegations are barred by
Section 10(b). In pertinent part, the specific allegations state as follows:
(a) Since on or about September 3, 2010, the Respondent, at the Respondent’s
facility, has maintained an overly-broad and discriminatory rule prohibiting its 35
employees from engaging in Union solicitation activity at work which, was orally
promulgated by . . . Seydel. . . . at a meeting with employees on or about
August 20, 2010.
(b) Since on or about September 3, 2010, the Respondent, at the Respondent’s 40
facility, has maintained an overly-broad and discriminatory rule prohibiting its
employees from talking about the Union while at work, which was orally promulgated by
Seydel at a meeting with employees on or about August 20, 2010.

7 This policy is also set out in the employee handbook. No claim is made by the General
Counsel that Albertson’s official rule relating to solicitation is unlawful.
JD(SF)–25–12
10
(c) Since on or about September 3, 2010, the Respondent, at the Respondent’s
facility, has maintained an overly-broad and discriminatory rule prohibiting its
employees from having Union cards on their possession at work, which was orally
promulgated by Seydel at a meeting with employees on or about August 20, 2010.5
[Emphasis added] The obvious question is this: If Seydel promulgated a rule at a meeting on
August 20, why does the General Counsel claim that the Respondent began maintaining such a
rule two weeks later on September 3? The obvious answer is in the first paragraph of this
decision. Martinez filed the initial charge in this consolidated proceeding on March 3, 2011. 10
Hence, if the General Counsel alleged that Seydel merely made statements that violate Section
8(a)(1) at the August 20 meeting, the allegations would be barred by the 6-month statute of
limitations in Section 10(b). By pleading her alleged statements as “rules,” the General Counsel
obviously sought to make an end run around the statute of limitations with the assertion they
were rules “maintained” during the 10(b) period. 15
In my judgment these allegations are little more than a pleading artifice. Here, the
General Counsel’s pleading acknowledges that the so-called rules were promulgated outside the
10(b) but cites two cases which hold the maintenance and enforcement of rules originally
promulgated outside the 10(b) period nonetheless violate 8(a)(1). Both of the cases are factually 20
distinguishable.8 But that aside, I also these pleadings unsuccessful for reasons other than
Seydel’s denials that I have previously credited.
Thus, if it is assumed that Martinez’ recollections about this matter were reliable, I have
concluded that the General Counsel, by using this pleading artifice, adopted the burden of 25
proving that Seydel, quite clearly a mid-level manager by any measure, possessed authority to
“promulgate” rules on behalf of this large corporate entity. In my judgment, the undeniable
inference warranted from a careful consideration of this record in its entirety, especially that
portion established by the General Counsel’s extensive and unwise use of 611(c) witnesses, is
that this Company’s rules are the product of lengthy horizontal and vertical consultations and 30
approvals. In this context, a finding that off-the-cuff remarks by a manager, at whatever level,
translate into a binding corporate “rule” would be irrational. This is especially true where, as
here, the remarks vary from widely distributed written rules clearly adopted by the Company.
Accordingly, I find the General Counsel failed to prove the factual and legal 35
underpinnings for these three allegations by a preponderance of the credible evidence.
Specifically, I find the General Counsel failed to prove that Seydel said or did anything at the
August 20 meeting that amounted to promulgating a workplace rule. To the extent that Seydel
actually made the remarks attributable to her by Martinez, I find that allegations claiming that

8 The cases cited by the General Counsel are Varo, Inc., 172 NLRB 2062, fn. 1 (1968) and
Alamo Cement Co., 277 NLRB 1031, 1036-1037 (1985). Both involved longstanding workplace
rules formally adopted by company management and distributed to employees in written form,
and enforced during the 10(b) period. Neither the historical rule publication aspect, nor the
element of enforcement within the limitations period, a factual aspect lending strong support for
finding a violation based on mere “maintenance,” are present here.
JD(SF)–25–12
11
those statements violated Section 8(a)(1) are barred by Section 10(b). Hence, I recommend that
complaint paragraphs 5(a) through (c) be dismissed.
b. Complaint paragraphs 5(f) and (g)5
On April 7 and 8, 2011, Danny Ma, the Respondent’s labor relations director, conducted
meetings with groups of employees at store 917 similar to those Seydel had conducted the
previous August. He also utilized the PowerPoint presentation technique. Complaint paragraphs
5(f) and (g) assert that Ma, acting on behalf of the Respondent, “orally promulgated” an overly-10
broad and discriminatory rule that prohibited employees from engaging in union activity while
“on the clock,” and from engaging in union activity “at work.”
Dean Olivas, a produce clerk at store 917, attended one of these presentations on April 7.
Olivas testified as follows in support of these allegations:15
A He said more than likely that’s up to us if (union representatives) approach us, that
they would probably ask us is if we were interested in signing a card or whatever.
Q Did he say anything about when you could talk to them?
A Make sure it was just done on our own time.20
Q Did he make any reference as to when your own time was?
A No company time, just make sure we’re not on the clock, just do it on our own time.
(Tr. 738) (Emphasis added)
25
Karry Jolly, the receiving coordinator at store 917, attended one of the Ma meetings. She
recalled that he told the employees that they could engage in union activities anytime “when we
were off the clock.” She went on to explain that Ma stated that what employees did “off the
clock, on our time . . . was fine.” Jolly also said Ma told them that “we shouldn’t discuss such
matters at work, because we do have a business to run, but if we choose to [we could do so] on 30
breaks, lunches and off the clock.” (Tr. 715)
Talie Perea also attended one of the meetings. She said that Ma informed the employees
that they could “talk and discuss the union when you were on break, when you were at lunch”
but they “were not allowed to discuss it when you were on worktime.” She recalled that he went 35
“over the no-solicitation policy” with those at the meeting she attended. (Tr. 738)
Cashier Albert Sanchez attended one of the meetings but he exhibited obvious difficulty
recalling Ma’s remarks. This is the sum of his recollection about Ma’s statements concerning
union solicitation at the store.40
Q Okay. And what else? Did he discuss that union card?
A He said that – I’m trying to remember what was said at that meeting.
Q That’s okay. What do you remember him saying about the union card or about the
union during the meeting?45
A That the –
Q Did he say anything about solicitation at the meeting?
A That we can’t solicitate (sic) in the store or –
JD(SF)–25–12
12
Q What did he say about that?
A That we’re not supposed to have the cards in the store.
(Tr. 1006) He repeated this claim on cross-examination when he testified as follows:5
Q And are you positive that in this meeting, Mr. Ma talked about solicitation?
A Solicitating [sic]?
Q Union solicitation?
A Uh-huh.10
Q At the store?
A That we’re not allowed to solicitate (sic) in the store.
Q Okay. Didn’t he say you’re not allowed to solicit on working time?
A I believe so. Yes.
15
(Tr. 1043) Sanchez said nothing in his pre-hearing affidavit about Ma discussing the Company’s
solicitation policy during this meeting.
Ma delivered a PowerPoint presentation at the April 7 and 8 employee meetings designed
to convince the employees that they should not unionize. (R. Exh. 11) Before meeting with the 20
employee groups, Ma conducted training sessions with the department managers covering “dos
and don’ts” the line supervisors need to follow during an organizing campaign. At those
sessions, Ma distributed copies of Albertson’s solicitation policy and explained it in detail. Ma
did not distribute the solicitation policy at the three employee group meetings and he claimed
that the subject never came up during those meetings. He also denied that he strayed into topics 25
not included on his PowerPoint slides. He specifically denied that he told employees in the
meetings or at any other time that they could not talk about union matters while “on the clock” or
that they could not engage in union activity “at work.” He conceded such statements would have
been inconsistent with Albertson’s solicitation policy that has been in effect, he said, as long as
he has worked for the Company. (Tr. 1606)30
I have concluded that the General Counsel’s evidence is too unreliable on which to find
that these allegations have been proven by a preponderance of the credible evidence. General
Counsel did little more than adduce magic words contained in his complaint allegations from the
witnesses he called but even then nearly all became confused and ultimately contradicted 35
themselves before finishing their testimony.
Sanchez in particular exhibited difficulty recalling what had been said and seemed
susceptible to virtually any suggestion by counsel. Jolly did not fare much better. Her claims
that Ma told employees that they had to solicit authorization cards “off the clock, on our time” 40
and that they could not do so “at work” was soon contradicted by her explanation that they could
engage in such protected activities during their lunch and work breaks. In the context of a
written solicitation rule that had been posted at the store for a lengthy period of time, the long
history of unionization in the meat department that would make it more likely that even long-
term, unorganized employees would be familiar with store rules on this subject, and an 45
organizing campaign that had been on-going for months without significant discipline related to
the solicitation policy, I have concluded that the employee reports detailed above, while honest
attempts to recount what they thought had been said, really amounted their own loose
JD(SF)–25–12
13
interpretation rather than Ma’s actual words. Any notion that he sought to establish rules
separate and apart from apart from the Company’s longstanding, lawful solicitation policy is
highly improbable. Accordingly, I recommend dismissal of allegations 5(f) and (g).
5
c. Complaint paragraphs 5(j) and (k)
These two allegations allege that Alice Andrick, found above to be a low-level agent of
the Respondent, orally promulgated overly-broad and discriminatory rules prohibiting employees
from engaging in union activities on two separate occasions in May 2011.10
General Counsel’s brief never makes any reference to complaint paragraph 5(k). His
brief refers to complaint paragraph 5(j) under a heading entitled “Threats and Impression of
Surveillance.” (GC Br. 24-25) There, counsel for the General Counsel makes reference to
testimony about several conversations between Andrick and Perea in early May about “gossip.”15
The Respondent denies that Andrick ever established any rule prohibiting employees
from engaging in union activity at work and asserts that the General Counsel failed to adduce
any evidence to support such allegations. In support, the Respondent cites the testimony of
Perea of denying that she ever heard Andrick say that employees could not engage in union 20
activity at work. (R. Br. 51; Tr. 913)
I agree with Respondent’s contention. I find the General Counsel failed to adduce
evidence to support these two allegations. Accordingly, I recommend dismissal of complaint
paragraphs 5(j) and (k).25
3. The allegations about soliciting grievances
The Board has long held that an employer’s solicitation of employee grievances in
response to a union organizing campaign coupled with an express or implied promise to resolve 30
them violates the Act. In Majestic Star Casino, LLC, 335 NLRB 407, 407-08 (2001), the Board
reiterated its rationale on this subject:
Board law in this area is clear:
35
Absent a previous practice of doing so . . . the solicitation of grievances during an
organizational campaign accompanied by a promise, expressed or implied, to
remedy such grievances violates the Act . . . [I]t is the promise, expressed or
implied, to remedy the grievances that constitutes the essence of the violation . . .
[T]he solicitation of grievances in the midst of a union campaign inherently 40
constitutes an implied promise to remedy the grievances. Furthermore, the fact
[that] an employer’s representative does not make a commitment to specifically
take corrective action does not abrogate the anticipation of improved conditions
expectable for the employees involved. [T]he inference that an employer is going
to remedy the same when it solicits grievances in a preelection setting is [sic] 45
rebuttable one.
JD(SF)–25–12
14
Maple Grove Health Care Center, 330 NLRB 775, (2000). Further, “the Board has
found unlawful interference with employee rights by an employer’s solicitation of
grievances during an organizational campaign although the employer merely stated it
would look into or review the problem but did not commit itself to specific corrective 5
action; the Board reasoned that employees would tend to anticipate improved conditions
of employment which might make union representation unnecessary.” Uarco Inc., 216
NLRB 1, 1–2 (1974).
a. Complaint paragraphs 5(d) and (e)10
Complaint paragraph 5(d) alleges that the Respondent violated 8(a)(1) merely by
maintaining a 1-800 telephone number to solicit grievances in order to dissuade employees from
engaging in union activities. Complaint paragraph 5(e) avers that around September 20, 2010,
Mark Blankenship, the Respondent’s director of human resources, solicited employee grievances 15
and promised employees increased benefits and improved terms and conditions of employment
to dissuade them from supporting the Union.
On September 20 Blankenship went to store 917 where he conducted meetings with small
groups of employees. He worked from a 21-slide PowerPoint presentation. (R. Exh. 10) The 20
presentation, in effect, introduced the employees to the managers in the labor and associate
relations, and the human resources groups within the southwest division by providing their
names, phone numbers, and a short summary of the work performed by these departments. The
next half dozen slides recounted the Company’s history and expressed certain values promoted
by the Company within its management and among its workers. The next three slides detailed 25
the various benefits the Company provides its employees. That is followed by the slide that is
central to this allegation. It is headed “Addressing Associate Concerns” and states that
“Albertsons policies that prohibit discrimination, harassment and retaliation are strictly
enforced.” It goes on to state that employees can “get help if you have a problem” by contacting
a supervisor, using the Company’s “Open Door Policy,” contacting the division office including 30
labor relations or human resources, or using the Associate Hotline 800 number.9 Employees
Martinez and Perea both acknowledged that they had long known about these resources for the
resolution of workplace problems, including the 800 number, and have used them on occasion.
The Respondent’s officials had not conducted meetings similar to this before. Generally, 35
it had communicated such information to its employees by way of the handbook it distributes to
employees or, as in the case of the hotline number, by way of posters around the store.
Blankenship claimed preparations for conducting this presentation began in late 2009 after the
divisional president returned from a meeting of company executives and presented him with the
task of providing better service to the division. He said that the division president wanted him to 40
“to get out and communicate with our associates and tell our associates why it’s great to be an
Albertson’s employee and talk a little bit about customer service, talk about benefits, and those
kinds of things.” (Tr. 1080) As a result, his department prepared the PowerPoint presentation
for use at all 105 stores in the division. Blankenship stated, incredulously, that at the time he

9 It is the telephone number that is the subject of complaint par. 5(d).
JD(SF)–25–12
15
made the presentation at store 917 on September 21, he was unaware that a union organizing
campaign was underway there. (Tr. 1083)
The General Counsel argues that the Respondent violated the prohibition against 5
soliciting grievances when Blankenship conducted a special meeting with employees after the
start of the union organizing campaign where he called particular attention to available
employees for resolving their problems including the 1-800 hotline. The Respondent argues that
Blankenship did not violate the Act by merely calling attention methods for resolving problems
that had been in existence for many years. 10
Nothing in Blankenship’s September 20 presentation or the testimony concerning his
remarks at those meetings establishes that he did anything other than highlight existing employee
benefits and longstanding problem-solving practices. It is well established that Section 8(c)
protects the right of an employer to inform employees of lawfully granted benefits and practices 15
even to influence the outcome of an organizing campaign.10 Raley’s, Inc. v. NLRB, 703 F2d 410,
414 (9th Cir. 1983) Although Blankenship’s obvious motive for conducting the meetings that
day was to counter the Union’s organizing campaign, that fact alone does not prohibit an
employer from promoting its existing benefits and procedures for that purpose. To the contrary,
the Board has held that a statement contained in a letter sent to employees ten days after the start 20
of an organizing campaign that it would, as before, “always remain ready to listen to your
suggestions and grievances” did not amount to an unlawful solicitation of employee grievances.
Kingsboro Medical Group, 270 NLRB 962 (1984). Kingsboro states:
It is well established that an employer who has had a past policy and practice of soliciting 25
employee grievances may continue such a policy and practice during a union’s
organizational campaign. Mt. Ida Footwear Co., 217 NLRB 1011 (1975); Reliance
Electric Co., 191 NLRB 44, 46 (1971), enfd. 457 F.2d 503 (6th Cir. 1972). In light of the
General Counsel’s failure to submit any evidence to establish that the Respondent’s letter
inaccurately reflected its past practice with regard to listening to its employees’30
suggestions and grievances we find that no violation of the Act occurred.
Id. at 963. By contrast, Embassy Suites Resorts, 309 NLRB 1313 (1992), cited by the General
Counsel, is factually distinguishable. In that case, the employer finalized and announced a new
dispute resolution process just days before a union organizing campaign culminated in an NLRB 35
representation election.
Based on the foregoing, and in the absence of evidence that Respondent provided some
explicit promise to resolve employee issues in a manner other than had always been its practice, I
recommend dismissal of complaint paragraph 5(d).40

10 Sec. 8(c) provides: “The expressing of any views, argument, or opinion, or the
dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or
be evidence of an unfair labor practice under any of the provisions of this Act, if such expression
contains no threat of reprisal or force or promise of benefit.”
JD(SF)–25–12
16
b. Complaint paragraph 5(i)
This allegation claims that Labor Relations Director Ma unlawfully solicited employee
grievances at meetings he conducted with store 917 employees in early April 2011.5
As noted in the previous section Ma conducted a series of meetings with the store
employees on April 7 and 8, 2011 using the PowerPoint presentation method. There is some
evidence that management perceived that there had been an uptick in the union organizing effort
around this time. Although Ma claimed that store visits are not unusual for him, seemingly this 10
had been the first occasion he had visited store 917. The content of his presentation, quite
similar to Seydel’s presentation in August 2010, was aimed at blunting the union organizing
effort. (See Resp. Ex. 11) The General Counsel makes no claim that Ma unlawfully solicited
grievances at his structured presentations to the store employees. Instead, the General Counsel’s
brief focuses on evidence of individual encounters Ma had with a particular employee, Talie 15
Perea. This evidence the General Counsel argues establishes that Ma searched “out grievances
more carefully than before.” (GC Br. 54-55)
According to Perea, prior to Ma’s presentation, she met with Ma and Merritt in the
employee break room. She said she declined the initial invitation by Ma to meet but later 20
changed her mind after Front-End Manager Andablo told her “H&R’s up there (in the store
offices); they’re your friends, not ours. If you have problems with your schedule or if you guys
want to complain, now is the time.” When Perea later met with Ma, he told her that it was open
enrollment time and wanted to know if she had any questions about the Company’s insurance or
if she had “any concerns in the store.” (Tr. 789-791) Andablo never contradicted Perea’s about 25
her explanation of the purpose of employees meeting individually with Ma.
Ma asserted that he has visited stores many times during his career with Albertson’s and
its predecessor. However, he had no recollection of a visit to store 917 prior to April 2011. He
also claimed that when he visits a store he ordinarily makes the rounds to speak with employees.30
However, he exhibited considerable evasiveness about any conversations he had with particular
employees while visiting store 917. He acknowledged that he provided a pre-hearing statement
to the General Counsel in which he said that he normally greeted the employees he encountered
and asked them “How are things? Do you have any questions? How is it going?” Ma claimed
to have no recollection of speaking with Perea as she reported above.35
The General Counsel argues that the foregoing evidence establishes that the Respondent,
by Ma, unlawfully solicited complaints and grievances in a manner out of character with its past
practices. He argues that Ma’s high-level position would convey a message to the ordinary store
worker that he could resolve their complaints and thereby impliedly suggested to employees that 40
he would resolve the issues they raised with him. The Respondent characterizes the meeting
with Perea as “voluntary” and contends that Ma did not solicit any grievances during his one-on-
one engagements with any of the store employees and certainly did not promise to resolve any of
their complaints.
45
Although it is true that these individual meetings were voluntary, I am satisfied on the
basis of Perea’s account as to how she came to meet with Ma and Merritt on this occasion,
whether by design or otherwise, shows that Ma’s individual meetings could easily be perceived
JD(SF)–25–12
17
by employees as for the purpose of listening to their complaints and grievances in circumstances
that implied remedies would follow. This conclusion is reinforced by Perea’s report that
Andablo told her she should go meet Ma if she had “problems with your schedule or if you guys
want to complain, now is the time.” Hence, Ma’s individual meetings with employees while at 5
the store for the purpose of conducting group meetings coupled Andablo’s explanation to
employees about what to expect if they met with Ma individually merits the inference that
Company’s high level management was making new and unusual efforts to resolve employee
complaints so that union representation would not be necessary. It is this type of conduct that the
Board has long held to be unlawful. Reliance Electric Co., 191 NLRB 44 (1971). Accordingly, 10
I find this conduct violated Section 8(a)(1) as alleged.
c. Complaint paragraph 5(o)
This allegation claims that Seydel unlawfully solicited grievances from store employees 15
in an effort to dissuade them from engaging in concerted activities. The allegation relates to a
meeting between Associate Relations Manager Seydel and Cashier Perea in May 2011.
As will be explained in detail in my discussion of the 8(a)(3) allegations below, Perea had
been requested in late April or early May 2011 to substitute for other cashiers on three separate 20
occasions. The substitutions were purportedly arranged by either Assistant Store Manager
Garcia or Assistant Front-End Manager Andrick, or a combination of both. According to Perea,
Front-End Manager Andablo confronted her on each occasion with repeated demands in quick
succession seeking to learn who authorized the substitution and, in effect, ignoring Perea’s
requests for relief from her station for routine breaks. Perea eventually complained to Store 25
Manager Merritt about Andablo. He apparently offered to take the matter up with Andablo but
Perea expressed reservations about his doing so because she was fearful of further retaliatory
conduct from Andablo.
Seydel claims that Perea left a phone message with her office around this time saying that 30
she had “concerns” that she wanted to discuss. Seydel attempted to return Perea’s call but could
not reach her to address the matter. When Seydel visited store 917 a few days later, she arranged
to meet with Perea. During their exchange, Perea recounted her problems with Andablo while
Seydel took notes. At the end of their meeting, Seydel promised to take care of the matter but
Perea never heard anything further about her complaints.35
The General Counsel characterizes this allegation as one in which Seydel solicited Perea
for grievances to dissuade her from supporting the Union. The Respondent expressed
puzzlement at this allegation. I too am at a loss to understand the factual basis for this claim as
the credible facts show Perea effectively initiated a discussion with Seydel about Andablo’s 40
conduct at the time. Hence, no basis exists to find that Seydel solicited Perea for her complaints
or grievances on this subject. Accordingly, I recommend dismissal of complaint paragraph 5(o).
4. The allegations about providing benefits
45
As previously noted, Section 8(c) protects the right of an employer to engage in puffery
concerning its existing wages, benefits, and employment practices as a counter to a union
organizing campaign. Raley’s Inc. v. NLRB, supra at 703 F.2d 414. However, an employer
JD(SF)–25–12
18
violates Section 8(a)(1) of the Act by granting employees benefits for the express purpose of
dissuading them from exercising their Section 7 right to organize for collective-bargaining
purposes or to act concertedly for their mutual aid and protection. NLRB v. Exchange Parts, 375
U.S. 405 (1964). The next two allegation implicate these fundamental principles. 5
a. Complaint paragraph 5(p)
Complaint paragraph 5(p) alleges that the Respondent put on a barbeque party for
employees on May 20, 2011, in order to dissuade them from supporting the Union. It is 10
undisputed that the barbeque “party” took place at the store on May 20, that the Company paid
for the supplies, and that the Company permitted employees to attend while on the clock.
Planning for the barbeque took place at a store managers’ meeting early in the month and
appears to have been proposed by Assistant Store Manager Garcia as an employee appreciation
event. The event was open to all employees, including the represented meat department 15
employees. The meat department manager, himself a union member, provided the barbeque grill
that Merritt used to cook food for the event.
Company-sponsored barbeques have occurred at store 917 before under prior managers
but this was the first barbeque held under Merritt’s stewardship. Merritt said two such events 20
were held at the prior store he managed. In addition to providing all of the supplies for this
event, the Company has also provided the main entre for employee potlucks held around the
Thanksgiving and Christmas holidays.
The General Counsel argues that the timing of this event during a union organizing 25
campaign and the fact that no such event had been held before while Merritt had been manager at
store 917 merits an inference that the motive for this event was to dissuade employees from
unionizing. The Respondent contends that the evidence establishes that such events have been
held at many store in the past and in any event, this claim is de minimis.
30
I find that the General Counsel failed to meet his burden of proving that the May 2011
barbeque was motivated for the express purpose of defeating the Union’s organizational effort.
This event took place nearly 10 months after the Company became aware of the Union
organizing drive. Evidence concerning the ebb and flow of this organizing drive is virtually
nonexistent except that which can be gleaned from incidental facts. For example, Perea said that 35
employee interest in the union tumbled after Martinez’ discharge in early December 2010.
However, Ma conducted a captive audience meeting opposing unionization in April 2011.
Regardless, events of this type have been held at this and other stores in the past and this
particular event occurred long after the organizing drive began. Further detracting from the
General Counsel’s claim is the fact that store 917 is a hybrid store—one department organized, 40
the others not—and this event included all of the store’s employees. According, I conclude that
this allegation lacks merit so I recommend its dismissal.
b. Complaint paragraph 5(q)
45
Complaint paragraph 5(q) alleges that the wage increase admittedly granted to the store
917 unrepresented employees on May 29, 2011, was for the purpose of dissuading them from
supporting the Union.
JD(SF)–25–12
19
The Company instituted the same wage increases for its unrepresented employees at
several other stores in northern New Mexico at the same time that the store 917 unrepresented
employees received this increase. Separate increases were instituted in southern New Mexico
and yet others were instituted in Colorado at the same time. The increases did not apply to all 5
employees. Instead, the new wages schedule provided: (1) “[g]enerous increases at the top rate
for most job classes;” (2) a new tier of wages for “most positions;” and (3) a separate service
supervisor wage schedule. Employees who had not reached the top of the existing wage
progression did not receive wage increases beyond those obtained by progressing to the next pay
level. The new rates were applicable to the bakery department employees at 24 New Mexico 10
stores and to clerks at 15 northern New Mexico stores, including store 917. (R. Exh. 38)
Human Resources Director Blankenship explained that the internal wage review process
leading to the May 2011 wage increase at store 917 actually began a year earlier pursuant to a
company policy of conducting annual reviews of the wages paid at its nonunion stores to insure 15
competitiveness in the various local labor markets where it does business. (R. Exh. 37)
Associate Relations Manager Seydel conducted the reviews that resulted in the 2011
increases. She explained that the process begins with an initial review to determine whether
company wages are below or might fall below those paid in the industry within a year. If the 20
initial review leads to a conclusion that company wages are competitive and will remain so, the
review process stops. If the initial review shows that the Company is not competitive or will
likely become uncompetitive within the year, then a more detailed review is conducted to
determine necessary wage adjustments to bring company wages in line with the industry
competition. The last wage adjustments at the New Mexico stores prior to May 2011 occurred in 25
late December 2008.11 Seydel explained that the initial wage reviews covering 2009 and 2010
established that no adjustments would be necessary to remain competitive.
Blankenship emailed the new wage rate schedules to the store managers on May 25. (R.
Exh. 38) His email included instructions about communicating notice of the increases to the 30
store employees. These instructions make no reference to using the event in order to promote the
continued unrepresented status of the affected stores or anything else related to the recent
unionization efforts. There is no evidence that Store Director Merritt or any other store director
actually used the occasion to advance an anti-union agenda. There is no evidence of organizing
activity at any of the affected stores other than the 10-month-old activity at store 917.35
If an employer grants benefits during an organizing campaign, the General Counsel
argues, the Board will infer improper motivation and interference with employee free choice
based on all the evidence presented and the employer’s inability to establish a legitimate reason
for the timing of the benefit. (GC Br. p. 61) The Respondent contends, in effect, that there is no 40
basis for such an inference because the wage increases at store 917 and 14 other northern New
Mexico stores resulted from its routine annual wage review.

11 For wage reviews, the company stores located in New Mexico are divided into northern
and southern regions. The stores in Albuquerque are considered with other stores in the northern
part of the state other than those in Santa Fe which are treated separately due to a local “living
wage” ordinance.
JD(SF)–25–12
20
I have concluded that the General Counsel failed to prove that this wage increase was
motivated by the Union’s organizing campaign at store 917. No direct evidence links this
increase to an unlawful motive and the circumstantial evidence strongly favors the Company’s
case. Thus, the increases occurred at store 917 and 14 other northern New Mexico stores 5
pursuant to a regular review process that occurs annually. The increases did not apply to all
employees. They came nearly 10 months after the start of the Union’s campaign commenced at
store 917. No evidence establishes that there were or had been organizing campaigns going on at
any of the other stores where the wage increases were implemented. Hence, any inference that
the wage increase at store 917 in May 2011 was motivated by the union activity at that particular 10
store would not be warranted. Therefore, I recommend dismissal of complaint paragraph 5(q).
5. The surveillance allegations
Where employees openly engage in protected activities on the employer’s premises, 15
management officials may lawfully observe those activities but they may not do anything out of
the ordinary to keep employee protected activities under watch. Albertsons v. NLRB, 161 F.3d
1231, 1238 (10th Cir. 1998). See also Broadway, 267 NLRB 385, 399-402 (1983) and the cases
cited there. Statements by employer agents causing employees to reasonably assume that their
protected activities are under surveillance also violate the Act. Tres Estrellas de Oro, 329 NLRB 20
50, 51 (1999); Electro-Voice, Inc., 320 NLRB 1094 (1996). In certain cases, the same set of
circumstances may amount to unlawful surveillance as well as an unlawful attempt to create the
impression of surveillance. Seton Co., 332 NLRB 979, 981 (2000).
a. Complaint paragraph 5(h)25
This allegation claims that on or about April 7, 2011, Labor Relations Director Ma
“asked employees to ascertain and disclose to Respondent the Union activities engaged in by
other employees.” Although not alleged as surveillance, the General Counsel’s brief treats it as
such.30
The facts in support are quite focused. Cashier Perea claimed that in the portion of his
April 7 presentation where Ma described the appearance and the effect of a union authorization
card, he “told us that if you were approached by anybody to sign a card, that you needed to let
[Store Director] Don [Merritt] know about it.” (Tr. 788) Later, during cross-examination, Perea 35
recounted this portion of the meeting in the following manner:
Q. All right. Well, let’s get back to Mr. Ma’s meeting then, where he had the
meeting with the employees.
A. Yes.40
Q. Okay? Walk us through what happened at that.
A. He was going over the company – the benefits. He had told us that if you – if
anybody approached you with a union card to sign it, that you needed to let front-end
manager know or Don, specifically Don, let Don know, and that you could talk about the
union, discuss it if you were on break, on lunch, that that was considered your time, so 45
you were allowed to do it, but you’re not allowed to do it during working hours.
(Tr. 942-943)
JD(SF)–25–12
21
Ma denied several different renditions of the notion contained in Perea’s testimony that
he requested those present at the meeting to snitch on any union agent or employee attempting to
solicit a union authorization card from the store employees. He testified as follows:
5
Q. In your meeting – in those meetings or at any other time at store 917, did you tell
employees that they could not talk about union matters while on the clock?
A. I did not.
Q. Is that consistent with the policy?
A. It’s inconsistent with the policy.10
Q. All right. Did you tell employees that they couldn’t engage in union activity of
any kind at work?
A. I did not.
Q. Would that be consistent with your policy?
A. No.15
Q. At any time at store 917, did you ask the employees to go out and ascertain and
figure out what people are doing in terms of union organizing activities and report back
to the store director or you?
A. No.
Q. Or to report back to anybody?20
A. No.
Q. Would that be consistent with the TIPS and FOE that you taught people [in
management] earlier?
A. It would be inconsistent with that.
Q. Well, did you ask it more subtly of people? Did you say, Hey, just keep an eye on 25
things, and give me a call or something if you see –
A. No, I did not.
Q. Did you ask anyone to report to you who was doing the organizing in the store?
A. No.
Q. Did you ask employees to report to you or anyone else if they were asked to sign 30
a union authorization card?
A. No, I did not.
(Tr. 1606-1607)
35
The General Counsel argues that I should credit the employee witnesses in this case
where their testimony conflicts with management witnesses because they testified credibly and
corroborated each other. In contrast, the General Counsel characterized Respondent’s witnesses
as having provided implausible, inconsistent and evasive testimony.
40
In this instance, the General Counsel is hoisted on the petard of his own arguments. He
points to the sequestration of witnesses and the fact that virtually all employee witnesses were
employed by Respondent at the time they testified. To be sure, these arguments warrant some
consideration but the General Counsel ignores the fact that this statement purportedly occurred in
the presence of several other store employees but he provided no corroboration whatever to 45
support Perea’s claims even after Ma emphatically contradicted Perea’s claims. Even though I
may not be at liberty to draw an adverse inference from the General Counsel’s failure to call
JD(SF)–25–12
22
corroborating witnesses, the absence of corroboration here detracts considerably from Perea’s
credibility on this issue.
Over the course of this hearing, Danny Ma impressed me as an adroit, well-informed 5
labor relations lawyer who probably serves his client quite well. The PowerPoint presentation
that he admittedly presented to the unorganized employees at store 917 on April 7 and 8 reflects
the kind of professional presentation one would reasonably expect and often sees from skilled
management lawyers in the context of a union organizing campaign in this day and age. But,
this allegation virtually requires that I conclude that Ma’s PowerPoint presentations to several 10
groups of the store employees amounted, at least in part, to a cover for his inducement of
employees to inform on those involved with the organizing effort. Although Ma impressed me
with having sufficient personal and professional skills to do just that, the fact that his
presentations were made to all of the store’s unorganized employees makes it less likely that he
made the kind of remark Perea attributes to him.15
Both Ma and Perea are hobbled with unmistakable biases As for Perea, she has an
strong interest in the outcome here; at the very least, she had strongly supported this particular
organizing effort. During her testimony, she exhibited a startling tendency to provide lengthy,
desultory responses to nearly every question. Unquestionably, Ma clearly knew of Perea’s 20
strong, prounion sympathies by the time of his April captive audience meetings, a fact that would
make the egregious statement she attributed to him uncharacteristically reckless. As further
detailed below, I have been unable to accord the kind of carte blanche credibility to Perea’s
testimony that General Counsel’s office seeks in this instance. In this context, it is hard to
imagine a situation that cried out for corroboration from at one or more of the other employees at 25
the same meeting but the General Counsel provided none at all.
For these reasons, I am unable to conclude that Perea’s testimony in support of this
allegation is sufficiently reliable for me to conclude that Ma asked the employees who attended
one or more of his meetings to become informers about the union activities of their fellow 30
employees. Accordingly, I recommend dismissal of complaint paragraph 5(h).
b. Complaint paragraphs 5(m) and (r)
Complaint paragraph5(r), added by amendment during the hearing (GC Exh. 34), alleges 35
that the Respondent beginning about September 3, 2010, engaged in surveillance of employees’
union and concerted activities at store 917. The essence of complaint paragraph 5(m) is that
Assistant Front-End Manager Andrick made a statement on or around May 3, 2011, that created
an impression employee union activities were under surveillance by the Company.
40
The General Counsel supports this allegation with wide ranging evidence beginning with
the directive from Houston to the Albuquerque store directors, including Merritt, in late July
2010 that they become vigilant for the presence of union organizers. (GC Exh. 26) Numerous
communications followed between Merritt and his district manager as well as divisional staffers
reporting ongoing union activities at the store. Merritt’s reports included:45
JD(SF)–25–12
23
1. August 10: Merritt emailed Associate Relations Manager Seydel advising that a
cashier had been approached by an unknown nonemployee union organizer in the store.
Seydel immediately recommends to Ma that they “do 917 meetings.”12 (GC Exh. 24)
5
2. August 12: Merritt emails Houston with a report that Union agent Juan Vasquez had
visited the store and had spoken to Cashier Gloria Padilla and Dairy Manager Sebastian
Martinez as well as some represented meat department employees. He copied Ma and
Seydel with the message. (GC Exh. 26)
10
3. Merritt admitted that in the weeks and months that followed, he continued to receive
reports from Martinez and Padilla about once or twice a week. Merritt became confident
from these employee reports that he had a good idea about the union organizing activities
in his store. (Tr. 382)
15
4. August 12: Seydel, reported to Ma that she discussed Merritt’s report about Vasquez’s
activities and provides more graphic detail inferring that Merritt either questioned or been
told about the encounter between Dairy Manager Sebastian Martinez and Union agent
Juan Vasquez. Seydel instructed Merritt to “review with his assistant and the night
closing managers that they should be walking the departments and parking lot when he is 20
not there and addressing any issues. (GC Exh. 26) She also instructed him to review the
Company’s solicitation policy with these managers and “remind them to monitor the
departments.” Finally, Seydel instructed Merritt to update the employees’ schedules to
ensure that only first names were used in order to limit the availability of contact
information to workers at the store helping the union organizers. (GC Exh. 26) 25
In addition to the early, just-noted emails containing detailed instructions, Merritt reported on the
ongoing union activities by way of telephone calls to Seydel.13
After the start of the union organizing, employees observed noticeable changes in the 30
conduct of the store supervisors. Cashier Perea observed Merritt spending unusually lengthy
periods of time at the front windows watching what was going on in the parking lot. On one
occasion after the union organizing was under way, she overheard Merritt telling Union agent
Vasquez to leave the store. (Tr. 782) Soon after the initial meeting (the Pizza Hut meeting
described below) between Vasquez and a small group of employees in late July or early August, 35
Assistant Front-End Manager Andrick approached Perea upset because she had not been told
about the meeting or asked to sign a union card. (Tr. 777)
According to Perea, the cashiers, courtesy clerks, and others would chat among
themselves, sometimes about unionizing, during the occasional intervals between customers. 40
Store Director Merritt confirmed that employees talk about a wide range of subjects while
around the checkout counters and admitted he does so himself. (Tr. 325-326) But after

12 Seydel’s union information meeting took place shortly thereafter on August 20.
13 Seydel made a preposterous claim that he never communicated with her about the union
activity at the store between August 2010 and the time the UFCW filed charges with the NLRB
in May 2011. Tr. 41-42. I find this claim by her to be false and misleading.
JD(SF)–25–12
24
management became aware of the organizing effort, Perea noticed that the managers’ presence in
the checkout area became much more frequent. She described it this way:
Q. Now, you talked about being watched. Can you elaborate on what you mean by 5
being watched?
A. They were very observant to – especially, just for myself, they were very
observant to me, watching when I would be talking, especially if it was me and Yvonne
(Martinez) on the days that we did see each other and work together. They would pace
across the front end, more frequently than we had seen them before, stopping at the 10
registers, kind of just to observe what we were saying, telling us we could not be up there
talking.
Q. And when did this watching occur?
A. That happened after the first meeting that was held with Angel (Seydel).
15
(Tr. 783)
Receiving Coordinator Karry Jolly attended the early union meeting at the Pizza Hut.
Perea told her about the meeting one day when she happened to be in the front of the store in the
checkout area. Following the union meeting, Jolly also noticed Merritt paid careful attention to 20
employee conversations. Thus, she recalled the following in graphic detail:
Q. Now, since the Union meeting at Pizza Hut, did you notice any differences or
changes in management’s behavior?
A. Just with Don Merritt.25
Q. What did you notice?
A. Don Merritt was out bringing in shopping carts, you know, in the back, like
policing the store basically.
Q. Okay. And when you say policing the store, can you describe that a little further?
A. Watching what the employees were doing, what they were talking about, just 30
policing the store.
Q. Okay.
A. You know, one incident was, when we were, he was looking for somebody
outside the bathroom and one of the other employees said, you know, he’s in the
bathroom, the man in the plaid shirt, where is he, he’s in the bathroom.35
Q. Well, okay, so let’s back up a little bit. So where were you when this happened?
A. I was over by the dairy cooler.
Q. Okay. And what did you see Don doing?
A. He was looking for somebody, a man in a plaid shirt.
Q. Okay. And who said that he was over by the bathroom?40
A. Sebastian.
Q. Okay. And who is Sebastian?
A. He is a Dairy Manager.
Q. Okay. And what else did you, did you hear that day?
A. Well, then Sebastian turned around and said that, he’s the Union rep, he went to 45
the bathroom. That was the only –
Q. Okay. And did employees joke about Don during this time?
A. Yes.
JD(SF)–25–12
25
Q. Okay. What was the joke?
A. The joke was he was always looking for the Union guy.
(Tr. 705-06)5
Yvonne Martinez also remembered that after the union organizing effort began, Merritt
and Assistant Store Director Garcia began policing the parking lot and collecting shopping carts,
and helping customers, tasks that had always been performed by the courtesy clerks. Before the
organizing effort, Martinez never saw Merritt and Garcia engage in this type of work. (Tr. 566, 10
660) Cashier Albert Sanchez noticed the same behavioral change by Merritt after the union
organizing began in July 2010. (Tr. 1003-1004)
It is evident that this close oversight continued for a considerable period. Two emails
from Merritt to Seydel reflect that he was carefully monitoring both the union agents and store 15
employees active in the organizing effort. One, sent on April 18, reads:
Also Billy and the other union person have not been in since about Thursday of last
week[.] [T]hey park in the lot and then leave in 1 vehicle and go towards Wal Mart then
come back in the late afternoon and leave. Also Gloria (Padilla) said they have not 20
bothered her for almost a week.
The other, sent on April 24, reads:
Since I last email (sic) on the union they are not coming In to (sic) the store but now I 25
have Tallie and Ivan Perea, Ken Chavez and Joseph Chavez and Zack. All are pushing
real hard on the sackers. They keep trying to corner the sackers and Tallie was
seen by (Assistant Store Director) Jeromy (Chavez) handing one of the sackers Vicente
something. Today on Sunday I was told that Ken tried to get Douglass in a corner of the
front end also. They are getting aggressive now.30
(GC Exhs. 25 and 30)
Perea said she had several conversations with Andrick in the spring of 2011 about
management’s claim that there was too much at the front end. Purportedly, Merritt called 35
Andrick to his office on several occasions to warn her about gossiping with the cashiers, in
particular Perea. Perea recalled a conversation with Andrick in early May 2011 shortly after
Andrick came back from a meeting with Merritt in his office. Purportedly Merritt had
admonished Andrick because there was too much “gossiping” around the checkout area.
Andrick also told Perea that Merritt said, “[w]e have one down there that thinks that she’s going 40
to get her way” but that he knew “about all this union stuff.” Andrick said she had also been
cautioned against thinking that Perea was her friend and told Perea, “Well, you know what
they’re trying to do up there; they’re trying to make you quit. They’re trying to make you walk
away from your job.” (Tr. 794-796)
45
The General Counsel argues that Merritt’s “increased presence” in the areas of the store
where employees discussed the union organizing effort from time to time “sent a clear signal to
grocery employees, particularly cashiers that their protected activity was under scrutiny by
JD(SF)–25–12
26
management.” (GC Br. 38-39) The Respondent argues that the General Counsel failed to
present evidence that it did anything more than lawfully observe “open, public union activity on
or near its property.” In my judgment, the Respondent’s contention lacks merit.
5
The preponderance of the evidence establishes that the Respondent’s store managers
altered their ordinary work habits in order to aggressively spy on the employee organizing
activities and the union agents assisting the employees. The heighten oversight by management
became so apparent to several employees that they began joking about it. The connection and
timing between the in-store managers’ change of work habits and the directives of the division-10
level managers to closely monitor union activities could not be clearer. For this reason, I find the
kind of aggressive oversight found here would tend to inhibit ordinary employee discussions
with each other and with the union representative assisting their organizing effort. International
Paper Co., 313 NLRB 280 (1993) Likewise, I find Andrick’s statements to Perea would tend to
convey the message that management was carefully watching her in-store interactions and would 15
also tend to inhibit her discussions with he coworkers. United Charter Service, 306 NLRB 150
(1992) Accordingly, I find merit to complaint paragraphs 5(m) and 5(r).
6. The threat allegations
20
It has long been settled that an employer, and by extension, the employer’s agents and
supervisors may “communicate to his employees any of his general views about unionism or any
of his specific views about a particular union, so long as the communications do not contain a
‘threat of reprisal or force or promise of benefit.’” NLRB v. Gissel Packing Co., 395 US 575,
618 (1968). As stated in NLRB v. Neuhoff Bros. Packers, Inc., 375 F.2d 372, 374 (5th Cir. 1967): 25
For despite the effort of management to keep its unsophisticated advocates within the
narrow lines allowed . . . its supervisors, whether ‘out of zeal, ignorance, or otherwise * *
* in championing the anti-union cause,’ made statements . . . which were outright, not
subtle, transgressions of Section 8(a)(1). These included threats to discontinue bonuses, 30
to fire union adherents, and persistent questions about known union meetings leading the
employees to believe that they were under surveillance and their union activities known
to management.
a. Complaint paragraph 5(l)35
This allegation avers that Andrick threatened employees with discharge in a May 2011
telephone conversation.
The testimony provided to support this allegation involved a telephone conversation 40
between Andrick and Perea in May outside their work hours. Perea said that during their
conversation the two of them discussed several things “going on with Don,” meaning Store
Director Merritt, and “what a jerk” he was. (Tr. 913) Perea added that two of them were in
agreement on several matters relating to Merritt and that she ultimately told Andrick, “This is
why we need the union.” Andrick purportedly responded by saying, “Well, that’s why I don’t 45
want Yvonne back.” (Tr. 793) Andrick provided no testimony concerning this claim and Perea
provided no indication that she pursued the matter further.
JD(SF)–25–12
27
The General Counsel argues that Andrick engaged in unlawful coercion by telling Perea
that she did not want Martinez reinstated. The Respondent contends that this conduct fails to
prove any of the allegations the General Counsel made with respect to Andrick.
5
I agree with the Respondent’s argument. There is no evidence that Andrick initiated this
telephone exchange. Instead, if the evidence establishes anything, it is that Andrick and Perea
had a wide ranging discussion about Merritt in which they largely agreed with each other. Given
the general tenor of their exchange, I am unable to conclude that Andrick’s ambiguous remark
toward the end of their discussion, even assuming that it actually occurred, sought to convey the 10
message asserted by the General Counsel, i.e., that Perea would suffer the same type of
recrimination as Martinez if she continued, as the General Counsel argued, to “make
representations that the Union will resolve her problems.” Accordingly, I recommend dismissal
of complaint paragraph 5(l).
15
b. Complaint paragraph 5(n)
This is a two part allegation. Together, it asserts that on May 10, 2011, at store 917,
Andrick threatened employees with “unspecified reprisals” and with discharge if they engaged in
Union activities.20
General Counsel points to a conversation between Andrick and Perea after Andrick
returned from Merritt’s office. As previously found, Andrick told Perea on one such occasion
that Merritt had disparaged Perea because of her union organizing efforts, and warned Andrick
against being friendly with Perea. Andrick purportedly followed this report with her own 25
perception that the store management was trying to make Perea quit. (Tr. 794-96) As previously
noted, Respondent argues that Albertson’s is not responsible for Andrick’s conduct, an argument
I have already rejected, and that the General Counsel failed to prove any of its allegations about
Andrick. I disagree in this instance.
30
I find the General Counsel has proven Andrick implicitly conveyed a threat to Perea by
with her message that her employment was imperiled because of her Union organizing activities.
Perea’s uncontradicted report that Andrick informed her, in effect, that the Albertson’s
management resented her union organizing activities and was actively engaged in an effort to
make Perea quit contains an unmistakable message that she was putting her job in jeopardy by 35
engaging in Union organizing activities. Accordingly, I find Andrick’s remarks on this occasion
violated Section 8(a)(1) as alleged in complaint paragraph 5(n).
7. The Johnnie’s Poultry allegations14
40
The allegations in complaint paragraphs 5(s) and (t) implicate the Board’s seminal
decision in Johnnie’s Poultry Co., 146 NLRB 770 (1964), enf. denied on other grounds 344 F.2d
617 (8th Cir. 1965). In that case the Board articulated safeguards necessary to privilege an

14 A significant error appears in the transcript of the testimony given in connection with this
subject at p. 1650, L. 25. The answer reflected there was provided by the witness, Attorney
Thomas Stahl, and the transcript is corrected to reflect that fact.
JD(SF)–25–12
28
employer from 8(a)(1) liability where either the employer or its counsel chooses to question
employees on matters involving their Section 7 rights in preparation for a hearing on an unfair
labor practice complaint. In summary, the Johnnie’s Poultry safeguards require: (1) that the
employer or its counsel obtain the employee’s voluntary participation after explaining the 5
purpose of the questioning and providing adequate assurances that no reprisals will occur; (2)
that the questioning itself be free of coercion in a context free from employer hostility to union
organization; and (3) that the questioning must not exceed legitimate purposes by prying into
other union matters, including the employee’s own subjective state of mind, or by otherwise
interfering with employee rights. An employer loses the benefits of the privilege by 10
transgressing the boundaries of these safeguards. Subsequent decisions establish that the
Johnnie’s Poultry does not apply to trial preparation inquiries unrelated to matters involving the
exercise of Section 7 rights, for example questions about standard work procedures. See, e.g.,
Delta Gas, 282 NLRB 1315, 1325 (1987), and the cases cited there.
15
On November 8, 2011, the sixth day of hearing, the Respondent called store 917 dairy
clerk Sebastian Martinez as a witness in its case. None of the parties claim that he is a supervisor
or agent of the Respondent. Ample evidence in this record warrants the conclusion that Martinez
had regularly and voluntarily spoken to Store Director Merritt about the ongoing union activities
of other store employees. This conduct most likely identified him to management as a 20
trustworthy employee favorably predisposed to its point of view. By the end of his testimony,
Martinez had described four different occasions when he met with the Respondent’s labor
relations director, Danny Ma, himself an attorney, and the Respondent’s outside counsel in this
case. When the hearing next resumed on December 5, counsel for the General Counsel moved to
amend the complaint to allege that these meetings violated Section 8(a)(1). I granted the motion 25
to amend over the strong objection of the Respondent.
The initial complaint in this consolidated proceeding issued on April 29, 2011. It was
based on the charge in Case 28-CA-023387 filed by Yvonne Martinez. That first complaint
contained allegations pertaining to the PowerPoint presentations by Seydel and Ma in August 30
2010 and April 2011, respectively. It also contained an allegation pertaining to the 800 hotline
as well as the 8(a)(3) allegations pertaining to Yvonne Martinez’ suspension and discharge. The
notice of hearing scheduled the hearing for June 7.
A series of postponements followed. On May 24, the Respondent’s motion to postpone 35
the hearing from June 7 to June 8 was granted. (GC Exh. 1(k)) On June 6, the Union filed its
charge in Case 28-CA-023538. The following day the Regional Director rescheduled the hearing
to August 23 to permit time for the investigation of the new charge. (GC Exh. 1(n)) On August
16 the consolidated complaint issued. The notice of hearing included with it set September 27 as
the new hearing date. (GC Exh. 1(r)) 40
At the hearing, the Respondent adduced testimony from Sebastian Martinez pertaining to
its defenses. To a degree his testimony paralleled the testimony of other witnesses called by the
Respondent. Among other matters, Martinez testified about the Respondent’s Catalina coupon
policy, an issue central to the complaint’s 8(a)(3) allegation concerning Yvonne Martinez; the 45
content of the captive audience meetings conducted by Seydel, Blankenship, and Ma; the
solicitation policy and any ancillary prohibitions on the employee union activity at the store;
JD(SF)–25–12
29
statements management may have made about the effect union representation would have on the
existing 401(k) plan; and the length of time he had seen 800 hotline posters around the store.
On cross-examination, counsel for the General Counsel focused largely on details related 5
to the meetings Martinez had with the Respondent’s lawyers, both Ma and the Company’s
outside counsel who appeared on its behalf at this hearing. In the first meeting, Martinez met at
the store with Labor Relations Director Ma and Associate Relations Manager Seydel. Martinez
explained that Store Director Merritt approached him at his work area shortly after Ma conducted
his captive audience meetings with store 917 employees in April 2011 and “asked me if I would 10
go in and talk to these couple of people that wanted to talk to me about something.” Merritt sent
Martinez to the “scan room,” a nearby office in the back of the store that Ma and Seydel used
when they spoke to Martinez. (Tr. 1170)
According to Martinez, Ma and Seydel told him at the outset that they “wanted to ask 15
him some questions” and that if he “thought the questioning was too far or too in-depth, (he)
could ask them to stop and (they’d) stop the questioning.” He recalled that they then began
asking him about their PowerPoint presentations to store employees but he quickly added:
“Offhand I can’t exactly remember the conversation, but it was concerning that.” (Tr. 1171)
Martinez also said that he was told at the outset of his questioning that it would be about “their 20
slide shows” but when counsel pressed him for the words they used, he said, “I can't remember
the exact words that they said. No.” (Tr. 1172) Martinez’ testimony then continued as follows:
Q. Okay. Did they explain that you had a choice in participating in the meeting or
not?25
A. Yes, they did.
Q. What did they say?
A. They said I had a choice to be there or not to meet with them. If I no longer
wanted to meet with them, it would be my choice not to do that anymore.
Q. Well, did they say that before or after they said that you could ask them to stop?30
A. It would have to be after. The first questioning was they brought me into the
room, explained they would be asking me some questions, and if I wanted them to stop,
they would have to stop the questioning.
Q. Okay.
A. And then they said it was my choice to be in there, that conversation, or not.35
Q. Okay. And then is that all they said, prior to asking you the questions?
(Intervening colloquy about an objection)
THE WITNESS: Like I said, I don't remember the exact conversation that took place. 40
It's been a while.
Q. BY MS. ALONSO: well, after they made those two -- after they said that you
could stop --
A. Right.
Q. -- them whenever you wanted to, and that it was your choice, did they say 45
anything else before proceeding to the questions?
A. No.
Q. Okay. That was all they said.
JD(SF)–25–12
30
A. Uh-huh.
Q. Okay. So then they did not tell you that there would be no reprisals taken against
you. Right?
A. Right.5
Q. And they did not tell you that you would -- that there would be no reprisals taken
against you for the substance of your statements. Right?
A. Right.
Q. And they did not tell you that you would not be disciplined if you chose not to
participate. Right?10
A. Right.
Q. Now, the questions that they asked you -- I know this was a while ago. You said
you don't remember when you first discussed it, but it was sometime in April. Right?
A. It would have to be after April, after Danny Ma's slide show.
Q. Okay. And when they asked you questions about what was going on at the store, 15
did they asked if you signed a union card?
A. I can't remember.
Q. Do you think it's possible they asked you that?
A. No, because that wasn't where it was -- the conversation wasn't about that, so --
Q. Okay. So why don't you tell me what they asked you about what was going on at 20
the store at that time.
A. They were asking me about solicitation.
Q. What did they say about -- what did they ask you about solicitation?
A. I can't remember the exact words, but if there was a lot of people of solicitation
going on in the store. That could be anywhere from purchasing/selling tamales to selling 25
cars, I guess.
Q. Okay. And what else did they ask you about the activity at the store at that time?
A. Offhand, I just can't -- it's been so long.
Q. Did they ask if you attended any union meetings?
A. No. I don't recall that happening. No. I -- or even brought up. No.30
Q. What else did they ask you at the meeting?
A. Honestly, I cannot recall. I can recall being at the meeting. They said, We're
going to ask you some questions. You know, if you wanted to stop, you can stop. It was
pertaining to the slide show, the meetings and the union coming in.
35
(Tr. 1172-1175)
Later, Martinez said that he understood based on what Ma had said at the outset of the
meeting that he had a choice as to whether to participate and that Ma also told him that nothing
would happen to him if he refused to answer questions. He also said that Ma asked if he would 40
be willing to testify and that he voluntarily agreed that he would. (Tr. 1216-1217) Martinez also
said that he understood there would be no retaliation if he declined to participate in the later
interviews that the Respondent’s trial counsel conducted. (Tr. 1219)
Both Seydel and Ma recalled their meeting with Martinez in the scan office. Ma 45
remembered that it occurred on May 6 but conceded that he might be off by a day or two. They
were, Ma said, trying to identify potential witnesses for the upcoming unfair labor practice
hearing. Ma said that he began by introducing Seydel and himself to Martinez. He then
JD(SF)–25–12
31
explained they wanted to talk with him because unfair labor practice charges had been lodged
against the Company regarding the employee meetings that they had conducted and that they
wanted to ask if he would be willing to be a witness at the upcoming hearing. Ma said he also
told Martinez that his participation was “strictly voluntary,” that it was “up to him.” In addition, 5
Ma said that he told Martinez that they would appreciate his participation but if he did not that
was his “right” and that there would be no retaliation against him for refusing to participate.
After Martinez, said he would be willing to participate, Ma then proceeded to question
him about the PowerPoint meetings that had been given. At the conclusion of his questioning, 10
Ma asked whether Martinez would be willing to testify about those matters and Martinez said
that he would. Ma denied that he questioned Martinez about his own union sympathies or
activities, or those of any other employee. (Tr. 1614-1616)
Seydel recalled that their meeting with Martinez occurred in May 2011 but was not more 15
specific. She remembered that Ma conducted the meeting and that the office door remained open
throughout the meeting. After the introductions, Seydel said that Ma told Martinez that he
wanted discuss some allegations that came up in an unfair labor practice charge against the
company and specifically wanted to talk to him about the PowerPoint meetings they and Mark
Blankenship held with the employees. She said that Ma told Martinez that his participation “was 20
voluntary,” that he didn't have to speak with them if he didn't want to, and that if he didn't want
to talk with them, he could go back to work and there would be “no consequence for him”
because he would not talk to them. (Tr. 1549) Following that, Seydel said that a lengthy
discussion ensued about the three store meetings the divisional managers conducted. She also
denied that Ma ever questioned Martinez about his union activities or sympathies or the union 25
activities or sympathies of other employees.
According to Martinez, he met three other times with the Respondent’s lawyers. All
these meetings, he said, took place at the law offices of Rodey, Dickason, Sloan, Akin & Robb
(the Rodey firm) in downtown Albuquerque. Martinez claimed that Attorney Thomas Stahl and 30
Ma were present for one meeting; Attorney Glenn Beard and Ma were present for the second;
and that only Attorney Beard was present for the third.
Attorney Thomas Stahl, a managing partner of the Rodey firm and the lead defense
counsel in this case, had a different recollection about the place and circumstances of his 35
interview with Martinez. Stahl said that he met with Martinez at store 917 on May 26, 2011,
which at the time would have been about 2 weeks before the hearing as scheduled at that time.
Stahl said he interviewed Martinez in the store director’s office and that no one else was present
during the interview. Stahl explained that he interviewed Martinez in order to determine
“whether he would be a witness we would use at this hearing.” Stahl, who said the interview 40
lasted about 45 minutes, provided this account of the start of their meeting:
Q. How did the meeting with Mr. Martinez start?
A. Mr. Martinez came up to the office area where I was, and I think I said, Are you
Mr. Martinez. He said he was. And then I introduced myself, that I was Tom Stahl, and I 45
was an attorney that -- and I represented Albertsons. I explained to him that there was as
National Labor Relations charge, complaint, against the company, and that there were
some allegations in that complaint that I wanted to talk to him about. Specifically there
JD(SF)–25–12
32
were some allegations about various meetings held at the store and some things that were
said by Albertsons' employees at those meetings, and I wanted to ask him about those
things and what he heard them say. And then I also said, there's also an issue about
Catalina coupons, and I wanted to ask his experience with Catalina coupons, knowledge 5
of the policy, that sort of thing.
Q. Okay. Did you talk to him about the voluntariness of the meeting?
A. Yes. I did explain to him that it was completely up to him whether he wanted to
talk to me or not. He could choose to leave if he wanted to, but I'd be happy if he'd talk
to me. I told him that if he chose not to talk to me, there would be no retribution, no 10
retaliation of any kind against him, and I explained to him also that if he did talk to me
and whatever he said, there wouldn't be any retaliation against him. I told him we just
want to hear the truth so we can prepare for this hearing.
Q. And how did Mr. Martinez respond to you, if he did?
A. He said he was very willing to help out, and he was glad to do so.15
(Tr. 1642-1643) Stahl went on to say that he questioned Martinez about the PowerPoint
meetings and the Catalina coupon policy that is relevant to Yvonne Martinez’ case. He denied
that he questioned Martinez about matters related to his union activities or sympathies or those of
other employees. In fact, Stahl said that Martinez once started to get into those subjects but that 20
he quickly cut him off. (Tr. 1644-1645)
Following the postponement of the hearing scheduled for June, Stahl said that a change in
Attorney Beard’s schedule permitted him participate in the preparation of the Respondent’s
defense. Because of that development, Attorney Beard handled all further interviews of 25
Martinez. However, Stahl had some recollection of sitting in on at least a part of one pre-hearing
interview of Martinez conducted by Attorney Beard.
Counsel for the General Counsel never pursued Martinez’ claim that he met with Stahl
and Ma at the Rodey firm’s office in any detail. Instead, most of Martinez’ testimony about the 30
meetings at that office focused his meeting with Attorney Beard and Ma. According to
Martinez, the first he learned about that meeting came about when Store Director Merritt
approached him at his work area in the store and told him that he needed to go downtown to
meet with the Company’s lawyers. In Martinez’ mind, this timing was very problematic because
a special operations representative (a person Martinez described as a department expert from the 35
corporate office) had conducted an audit of his department only the day before and had been
highly critical of Martinez for neglecting his department. Martinez protested saying that he
could not leave work. However, Merritt told him that he had to go because Albertson’s would be
charged for the lawyer’s time if he did not go. According to Martinez, Merritt provided him with
the office address where he was supposed to go for the meeting. (This is one of the more 40
significant facts supporting the conclusion I have reached that this meeting, which turned out to
be primarily with Attorney Beard and Ma, was the first meeting Martinez had at the Rodey firm.)
Martinez finally yielded to Merritt’s insistence and went to the Rodey firm for the meeting.
When Martinez arrived at the Rodey firm, he met Attorney Beard and Labor Relations 45
Director Ma. Even though neither of the lawyers said anything to him that day about his
willingness to be present and participate, Martinez said that he told them at the time of their
initial greeting that it was important that he get back to his work as soon as possible. This
JD(SF)–25–12
33
remark, Martinez claimed, prompted Ma to send a text message to Merritt about Martinez’
concern about being absent from his work duties. Martinez described the start this way:
Q. What exactly did he say?5
A. I explained to him that it was important for me to get back to the store. He texted
Don (Merritt). Don texted back, saying there'd be no reprisals against me for me being
there.
Q. How do you know what the text message said?
A. I don't.10
Q. Okay.
A. I'm going that it's their word --
Q. So you didn't read Danny Ma's text message.
A. No, I did not.
Q. Okay. What did he say to you?15
A. Danny Ma --
Q. What were the words he used?
A. Mr. Ma says, I texted Don, confirmed that you'll have no retaliation or rebuttal for
being here, being present with me.
Q. Okay. But he did not say that there would be no reprisals for not participating.20
A. No.
Q. And he also -- well, did he tell you that there would be no reprisals for the
answers that you gave him?
A. No.
25
(Tr. 1182) The meeting then progressed. Martinez reported that the inquiry at that time focused
mainly on Ma’s PowerPoint presentation to employees in April 2011.
Both Attorney Beard and Ma testified about this interview but neither addressed
Martinez’ account of his initial reluctance or the text message exchange he described. Attorney 30
Beard said that he interviewed Martinez on two occasions in preparation for the hearing. He said
he first met with Martinez on September 21, or five days in advance on the opening of the
hearing. Ma was present and Beard recalled that Stahl may have been in and out during the
meeting. Attorney Beard said that when he interviewed Martinez, he closely followed an outline
of subjects that Stahl had prepared following his interview with Martinez. He candidly 35
acknowledged that he did not address Johnnie’s Poultry assurances at this meeting. Attorney
Beard explained that he did not do so because he knew that Martinez “had already agreed to
testify” for the company, that he planned to cover the same subjects that Martinez had earlier
discussed with Stahl and Ma, and that he knew that Martinez “had been given the Johnnie’s
Poultry assurances by Mr. Stahl and/or Mr. Ma.” (Tr. 1654) Beard denied that he interviewed 40
Martinez about his own union activities or sympathies or those of other employees.
Later, Merritt again sent Martinez to the Rodey firm where he met with Attorney Beard
alone. This time, Martinez said, Beard explained that “they were coming to court” and that he
may or may not be called as a witness but that he had to be at the hearing location at a particular 45
time. Attorney Beard said that his second meeting with Martinez took place on November 1. At
the time, the hearing had been adjourned following 4 days of testimony, and was set to resume
on November 7. No one else was present for this meeting. Attorney Beard admittedly did not
JD(SF)–25–12
34
address the Johnnie’s Poultry assurances at this meeting because he already knew that Martinez
had voluntarily agreed to testify. Attorney Beard said that he covered the same subjects with
Martinez that had been covered before with one exception. That added topic concerned
Martinez’ report to Assistant Store Director Garcia about seeing a non-employee union organizer 5
in the store, and whether he had subsequently heard Store Director Merritt speak with the
organizer. This specific topic had been addressed during the first four days of hearing.
I found Martinez’ testimony concerning the detail and quality of the assurances he
received when he first met with Ma and later when he met with Attorney Stahl confused and 10
self-contradictory to such a degree as to be largely unreliable where not corroborated by others.
Plainly, Martinez served as a willing informer all along, and save for his first meeting with
Attorney Beard, he was undoubtedly a very willing, if not anxious, participant.
For purposes of resolving the issues raised here by complaint paragraphs 5(s) and (t), I 15
have concluded that the various counsel interview Martinez interviewed four times, first by Ma
with Seydel present, then by Attorney Stahl with no one else present, later by Beard with Ma
present throughout and Stahl present part of the time, and finally by Beard alone. The credible
testimony of Ma and Attorney Stahl establishes that both provided the requisite Johnnie’s
Poultry assurances prior to questioning Martinez. Attorney Beard admitted that he did not 20
address the assurances because he had been told by Attorney Stahl that the assurances had been
provided to Martinez previously after which he voluntarily agreed to testify about the subjects he
covered in his interviews.
Although the Board generally requires strict adherence to the Johnnie’s Poultry25
safeguards, it has noted that if has also found “unusual settings and special circumstances may
“excuse or mitigate an employer’s failure to give the required assurances.” Le Bus, 324 NLRB
588 (1997), citing a single case, inapplicable here, for the exception. Regardless, in the context
found here, I have concluded on the basis of the credible facts that Attorney Beard acted
reasonably, properly, and lawfully even though he interviewed Martinez twice without repeating 30
the required assurances that had had been give to this employee on two prior, closely-related
occasions.15
But for the vagaries of litigation, Respondent may well have called Martinez as a witness
well before Beard even became involved in the case. Even so, on the first occasion that Beard 35
interviewed Martinez, everyone agrees that Ma, the attorney who first obtained his voluntary
cooperation and agreement to participate as a witness in Respondent’s defense, was present
throughout. Moreover, after Martinez asserted at the first Beard meeting that he needed to be on
the job rather that talking with the two attorneys, Ma promptly interceded to obtain an assurance
from the store director that his absence would not be a problem and it was not. This all occurred 40
a week before the start of the hearing, at a time when it could be reasonably anticipated that
Martinez might be called as a witness before the first week of hearing was concluded. Moreover,

15 At least two circuits have looked to the total circumstances in determining whether the
questioning of an employee by an employer or its counsel in preparation for an unfair labor
practice hearing is coercive. See Central Transportation, Inc. v. NLRB, 997 F.2d 1180 (7th Cir.
1993); Retired Persons Pharmacy v. NLRB, 519 F.2d (2d Cir. 1975).
JD(SF)–25–12
35
there is no evidence this interview addressed any topic not previously addressed in the two prior
meetings Martinez had with the company counsel.
The evidence regarding Attorney Beard’s awareness of the events that may have occurred 5
back at store 917 in Martinez’ department prior to his first interview with Martinez is scant.
What there is comes largely from Martinez’ account about the texting back and forth between
Ma and Merritt which, despite the ordinary, everyday means by which I “size up” a witness, I
almost feel compelled to credit largely because none of Respondent’s witnesses responded to his
assertions. But at best, the concerns about being absent from the store that Martinez expressed to 10
Merritt initially and then to the two attorneys after arriving at the Rodey firm on September 21
relate to the unfortunate timing of the meeting from his perspective rather than to his willingness
to voluntarily cooperate with the defense lawyers. This conclusion is reinforced by the lack of
evidence that Martinez had any concerns about meeting with Beard on November 1.
15
In addition, I find that nothing occurred at any of the meetings warranting a conclusion
that the questioning of Martinez ever became coercive. After Ma’s initial interview, the
questioning at the subsequent meetings largely amounted to reviewing those matters that Ma
initially discussed with Martinez. Beard’s further inquiry on November 1 pertaining to
Martinez’ report to management of a union organizer in the store merely sought to determine 20
whether Martinez might have been an eyewitness to a relevant matter already raised at the
hearing. Nothing about this added matter indicates that it amounted to probing into Martinez’
subjective state of mind, which company officials obviously already knew anyway, or that it was
designed to interfere with his statutory rights.
25
Complaint paragraph 5(s) specifically charges Merritt with coercion. Counsel for the
General Counsel questioned Martinez at length in an effort to determine whether Merritt had
provided the relevant assurances to Martinez at those times when he sent him off to meet with
the company’s lawyers. Plainly, Merritt provided no Johnny’s Poultry assurances nor, in my
judgment, did he have a duty to do so. Merritt never questioned Martinez about substantive 30
matters or his protected activities. He did not, for example, pre-screen him for his knowledge
before sending him to meet with the defense counsel. Merritt served only as a conduit passing
along instructions received from others about the time and place of the meetings. Even though
he became heavy handed when Martinez resisted going to the September 21 meeting, Martinez’
reluctance then had nothing to do with his willingness to cooperate with the defense. 35
For the foregoing reasons, I recommend dismissal of complaint paragraphs 5(s) and (t).
D. The 8(a)(3) allegations
40
The complaint contains discrimination allegations related to two employees. Complaint
paragraphs 6(a) and (b) pertains to the claim that Respondent discriminated against Yvonne
Martinez by suspending her on December 1, 2010, and then discharging her on December 4.
Complaint paragraphs 6(c) through (f) pertains to the claims that Respondent discriminated
against Talie Perea by altering her lunch and break schedules as well as her shift schedule, by 45
denying her request to trade work shifts with another employee, and by denying a leave request
she allegedly made.
JD(SF)–25–12
36
1. Yvonne Martinez’ suspension and discharge
Relevant Facts: Store 917 is a standard Albertson’s supermarket. It employs
approximately 15 cashiers who work various schedules during the store hours.16 It has 105
checkout counters equipped with two turntable type devices, one where shoppers place the goods
they have selected for purchase and the other at the opposite end where the cashiers place the
items for bagging after they have been scanned. In between is a small alcove where the cashier
works scanning or entering the customer’s items on a computerized system connected to a
receipt printer. Also attached to that system is a device adjacent to the receipt printer that 10
produces discount coupon strip(s) for qualifying customers. The coupon strips are known as
“Catalina” coupons, named after the company that runs the promotion program. These two
printers are on a countertop next to the bagging turntable just above the cash register drawer to
the cashier’s left when facing the customer aisle. To the right of the scanner is a counter that
contains two drawers where miscellaneous items such as cash envelopes, rainchecks, the weekly 15
store ad, scan giveaway forms, pencils, and other supplies are stored.
As noted, Yvonne Martinez worked for Albertson’s for 25 years prior to her suspension
and discharge in December 2010. Martinez’ seniority as a cashier at the store was second only to
Gloria Padilla.17 The General Counsel claims that Albertson’s unlawfully discharged Martinez 20
because of her union and protected concerted activities. Respondent contends that it discharged
Martinez for cause, i.e., her failure to tender a discount coupon to a customer, or subsequently
destroy it, as required by the Company’s standard operating procedures.
In the spring of 2010, Martinez and other cashiers discussed among themselves their 25
growing dissatisfaction with the front end operation. These complaints included the failure of
their managers to give greater consideration to seniority in scheduling shifts, the failure to post
schedules in a timely manner, and the preferential treatment they perceived that management
accorded Padilla. On this latter score, Yvonne Martinez and some others felt that Padilla was the
only cashier consistently assigned a schedule with 40 hours of work on weekdays when all the 30
others had no fixed schedule, frequently worked less than 40 hours, and often bore the brunt of
the business need to reduce hours. Martinez registered a number of complaints to Cindy
(Lucinda) Andablo , the front-end manager who prepared the weekly schedules for the cashiers.
Martinez’ disenchantment with the scheduling process came to a head on June 19 when 35
she overheard Store Director Merritt and Andablo nearby discussing the allocation of hours for
the front-end operation. When she heard them, Martinez purportedly approached and said:
“What about me? Why don’t I get hours?” Merritt claimed that Martinez spoke with a loud
voice and he concluded from her tone that she was being insubordinate. He promptly escorted
Martinez to his office where he issued her a written warning for insubordination. (GC Exh. 28) 40
The warning made matters worse. Martinez took her complaints about the scheduling
and her warning to District Manager Tom Huston. She complained to him that both the

16 The store opens at 6 a.m. and closes at midnight 7 days a week.
17 At various locations in the early portions of the transcript, Padilla is incorrectly referred to
as Pedia.
JD(SF)–25–12
37
scheduling process at store 917 and the writeup Merritt issued had issued to her were unfair.
Shortly thereafter, Houston came to the store with a district overseer of the front-end managers.
The latter reviewed the scheduling process and Houston spoke first with Martinez and then with
Merritt. From Martinez’ perspective, her complaint to Houston changed little other than a toned-5
down version of the written warning Merritt issued on June 19.18
A short while after the warning episode, Union Organizer Juan Vasquez approached
Martinez in the store parking lot one evening after the end of her workday and asked if she
would be interested in a union. When Martinez said that she would, Vasquez asked her to speak 10
with other workers to learn if they would be interested in meeting with him at a nearby
restaurant. She agreed to do so.
The following day Martinez began talking with other employees about meeting with
Union Organizer Vasquez. She also enlisted Talie Perea to assist in canvassing the workers for 15
that purpose. As a result of their efforts, Vasquez met with a group of about ten store 917
employees at a Pizza Hut located in the vicinity of the store. At this gathering, he explained the
organizing process and how employees would benefit from union representation. Martinez
asked Vasquez a number of questions during the meeting and later both she and Perea took extra
union authorization cards to distribute at work.20
When Perea went to work the day after the meeting, Alice Andrick approached her for an
explanation as to why she had not been invited to the Pizza Hut meeting the previous evening.
Andrick also pressed her for information about who had attended.
25
In the coming weeks, Martinez and Perea talked to their coworkers about unionizing.
Their discussions took place in a variety of places around the store where they typically talked
with one another about both work and nonwork matters, including the break room, the parking
lot before and after work, and during brief encounters on the sales floor when they would be
engaged in incidental tasks while there was a lull in the customer flow. Martinez distributed 30
union authorization cards to those who specifically asked for one or who expressed at least some
interest in unionizing. She gave the signed cards she received to the union organizers. The other
store workers came to recognize Martinez and Perea as the employees most active with the union
organizing effort.
35
Around the same time that Vasquez met Martinez, he made a few forays into store 917
attempting to establish contacts with the workers. Two employees in particular, Gloria Padilla
and Sebastian Martinez, rebuffed his approach and promptly reported him to management. As
found in earlier sections, Merritt passed along these and subsequent contacts, activities and
rumors as well as his own observations to Angel Seydel and Danny Ma as District Manager 40
Houston instructed him to do. From August through the following April, Merritt and his
subordinate managers became very watchful for union organizers in and around the store. They
received plenty of help. A veritable network of employees kept regularly Merritt updated on

18 The original version of Martinez’ warning (GC Exh. 28) stated that she had walked away
from a customer in order to lodge her complaint about her hours. The revised version made no
mention of customers. (GC Exh. 27)
JD(SF)–25–12
38
various activities that heard and observed. This network included, in addition to Padilla and
Sebastian Martinez, Service Manager Rose Trujillo, cashiers Tomo Chavez, and Albert Sanchez,
and lobby clerk Vangie Chavez. (Tr. 385-387, 391) Merritt received information from one or
the other of this group about once or twice a week and he passed the information he received 5
along to Seydel and Ma.
Merritt admitted that he knew Yvonne Martinez had been active in the organizing drive
prior to her discharged at the beginning of December. (Tr. 449-450) This admission came on
the second day of the hearing when Merritt was questioned by Respondent’s counsel after 10
counsel for General Counsel called him as an adverse witness. Two months later when
Respondent called Merritt as its own witness it questioned Merritt about this subject again and
Merritt explained that a grocery manager from another store told him in early 2010 that Martinez
had favored a union about 10 years ago. (Tr. 1469-1470) I do not credit this subsequent
explanation. Rather I find it reasonable to infer that Merritt learn of Martinez’ union activities 15
and sympathies from the network of informers he cultivated at store 917 during the organizing
activities there as well as the careful observations he and other managers undertook between late
July 2010 and the time of her discharge.
For the several years, the Company has held a special promotion around the Christmas 20
shopping season utilizing the Catalina coupon system. Under this promotion, customers whose
register receipts reach or exceed $100 receive a Catalina coupon entitling them to a $10-discount
on the purchase of any of the gift cards available at the store. If for any reason the qualifying
customer is not provided with the coupon or does not want it, the store employees have strict
instructions to destroy it. This promotion in 2010 started on November 25 and ended on 25
December 7, with the coupons issued in this period expiring on December 31. (R. Exh. 16)
Cashiers periodically receive instructional materials regarding the procedures for
handling a whole host of discount coupons redeemable at the Company’s stores. (GC Exh. 10,
Exhs. 1, 3, and 4) Some are stunning in their detail. One labeled “Albertsons Coupon 30
Acceptance Cashier Training” describes separate, detailed procedures that must be followed for
seven different types of discount coupons, including the Catalina coupons. This particular
document requires the cashier to initial an acknowledgment of the numbered instructions number
by number. The bulk of the credible evidence shows that the front end manager or the assistant
substituting for that supervisor is expected to resolve any doubts cashiers encounter or actual 35
disputes they have with customers in connection with all sorts of discount coupons.
Martinez began work at 6 a.m. on December 1, 2010, at checkout counter No. 8.
Typically, Martinez said, the mornings are very busy at the checkout counters and the store
security video confirms that to be the case that particular morning. (GC Exh. 29) Throughout 40
that morning she was ringing up a number of short orders interspersed with some large orders.
Around 9 a.m. Martinez noticed that she had failed to give a customer the $10-Catalina discount
coupon she earned by making a $100+ purchase. After she noticed the coupon she tore it off and
set it on the counter to her right just above the supply drawers and continued with her work.
45
Shortly thereafter one of the customers gave Martinez a doughnut from the supply he had
purchased, a courtesy that occasionally happens. Martinez took a plastic shopping bag and put it
on the counter just above the supply drawer and set her doughnut on it. In between the following
JD(SF)–25–12
39
customers, Martinez ate from the doughnut. After she had eaten all she wanted, Martinez claims
that she slid the sack with the remaining portion of the doughnut off into the storage drawer to
keep until later. She speculated that the discount coupon may have gone into the drawer along
with the bag and her left over pastry.5
The security video shows that for the next 75 minutes or so, Martinez continued to have a
number of customers but she also had several lag periods. On some occasions she simply stood
at her register area. On a few occasions, she disappeared out of sight in the direction of the
shopping area. On two or three occasions, she went briefly into the working area of the customer 10
service desk. During nearly all of these lulls, no courtesy clerks or other employees can be seen
in the immediate vicinity of Martinez’ checkout counter.
Around 10:20 a.m., Assistant Front-end Manager Andrick came to Martinez’ checkout
counter and began rummaging through the supply drawers, ostensibly looking for packing tape.19 15
Andrick claims that she found the plastic bag in the drawer and set it on Martinez’ checkout
scanner with a verbal instruction not to waste bags. Then Andrick said she found the discount
coupon. Andrick took the coupon and left immediately without saying anything to Martinez
about it. There is no indication on the security video that Martinez, who was waiting on a
customer throughout her Andrick’s presence, noticed her leave with the coupon in hand nor is 20
there any indication that Martinez later opened the storage drawer between the time Andrick left
with the coupon and the time she returned later to relieve Martinez for her lunchbreak.
The times generated by the receipt printer and the Catalina printer clearly are not
synchronized. The transaction the Company’s loss prevention officials identified as having 25
generated the issuance of the $10-discount coupon at issue here shows that the register receipt
printed two minutes after the Catalina coupon printed. (Compare R. Exhs. 12 and 26) There is
also evidence that the machines do not always print simultaneously and that they have to be
serviced from time to time to correct that problem. The times recorded by the security camera
that recorded relevant events are even further out of synch.30
The security video shows that, after finding the coupon, Andrick walked directly from the
check stand, through the service area and into the safe room. Shortly thereafter, she emerged,
spoke briefly to a clerk at the service area, and then return to the safe room. After a few
moments, the same person that Andrick spoke to entered the safe area. Andrick explained that 35
she had Vangie Chavez come into the safe room to witness that she put the coupon in the safe.
(Tr. 248) Before she did so, Andrick wrote, “Found In Cashiers Drawer” on the back of the
coupon and initialed her writing. Chavez wrote “I Saw Alice Put in Here” below her first name
on the back. (Resp. Exh. 12) Andrick said she used this procedure for handling the coupon

19 Andrick claimed that Merritt instructed her to get the tape to use on the store ads that were
being blown around by the wind. Supposedly, this direction occurred at checkout No. 7. Tr.
244. Her account does not appear consistent with her movements in the security video. It shows
that she emerged from the safe room, went to look first in the storage drawer at checkout No. 7,
and then went to checkout No. 8 where Martinez was waiting on customers. Merritt is not
visible at checkout No. 7 or anywhere else in the security video around this time. (GC Exh. 29)
JD(SF)–25–12
40
discovery because some unnamed person claimed that Martinez’ daughter had redeemed a
couple of the discount coupons in the past. (Tr. 284-287)
About 10 minutes after finding the coupon, Andrick relieved Martinez for lunch. When 5
Martinez returned from her break, a grocery employee was near her checkout stand and told her
that Merritt wanted to see her in the safe room. When she went there, Merritt told her
“everything” had been taken care of and to go back to her register which she did. Sometime later
Andrick approached Martinez with a copy of the Catalina coupon policy statement to sign.
Martinez told her she had already signed one but agreed to sign another after Andrick insisted.2010
Shortly after Martinez signed the Catalina coupon form, Andrick returned to her station,
closed her off, and instructed her to go to Merritt’s office. On the way, Martinez asked Andrick
what Merritt wanted to see her about and Andrick told her, “Oh, I know what he wants to see
you for but I’ll let him tell you.”15
When Andrick and Martinez arrived at the store director’s office, Merritt was present
with District Loss Prevention Manager Mark Zbylut on a speaker phone. Zbylut questioned
Martinez about the discount coupon found in her drawer and her familiarity with the company
policy concerning them. After warning her that it was a very serious matter, Zbylut requested 20
that she write an explanation in her own words of what had occurred. Martinez prepared a brief
statement that merely said, “Was not aware of putting a coupon in drawer.” At the end of the

20 Andrick said that Merritt, who contacted Associate Relations Manager Seydel after
learning of the coupon, instructed her to get Martinez to sign the form after she told him about
finding the coupon. The Catalina coupon policy statement cashiers must sign provides:
It is extremely important that all "Checkout Coupons" (Catalina Coupons) be given to the
customers that they are intended for. Checkout Coupons are the coupons that print at the
checkstand on the checkout Coupon Printer next to the cash register. These coupons are
printed specifically for a certain customer, based on what the customer purchases.
It is important that all employees understand and follow the Company policies with
respect to Checkout Coupons:
1. The cashier must tear off any Checkout Coupons that have been printed at the
end of each order and give them to the customer along with the receipt.
2. If for any reason you fall to do #1 above, then the coupons printed for a
previous customer must be destroyed by tearing them in half lengthwise and
discarding them. They are not to be given to another customer or kept for personal
use.
3. Coupons are to be given to the customer for use on future orders; they are not
to be applied to the current order.
4. In the event a coupon is found or offered from a customer, an associate cannot
accept or use it.
Associates violating the Company's Checkout Coupon Policy will be subject to
termination without further warning.
Martinez signed copies of this statement three times: November 11, 2008, and December 1,
2009, and December 1, 2010, the latter after Andrick discovered the coupon.
JD(SF)–25–12
41
interview, Merritt informed Martinez that she would be suspended pending additional
investigation and that he would call her later.
On December 2, Zbylut said that he went to store 917 and viewed the security video 5
associated with the transaction. The next day he submitted his report concerning his telephone
interview with Martinez and his review of the security video. Based on his review of the security
video, Zbylut pegs the following important times as shown on the video timing system: (1)
transaction triggering the issuance of the disputed coupon starts at 9:03:01; (2) Martinez gives
the customer the receipt for the transaction but not the coupon at 9:04:06; (3) after checking out 10
other customers while the courtesy clerk is present assisting her, Martinez removes the disputed
coupon at 9:05:54 “and places it on the counter or in the drawer behind her.” Zbylut noted that
the courtesy clerk started to walk away just before Martinez reached over to tear of the coupon.21
(R. Exh. 29)
15
After Associate Relations Manager Seydel reviewed the Zbylut’s investigation report, she
recommended up and down the chain of command that the Company discharge Martinez for
violating the Catalina coupon policy. The violations, as detailed by Seydel, included: (1) failing
to give the coupon to the customer who earned it; (2) failing to destroy or discard the coupon
after she realizing it had not been given to the customer; and (3) keeping “the coupon for 20
personal use instead of discarding it.” In her written recommendation to the Mark Blankenship,
the human resources director, on December 3, Seydel reasoned that Martinez had violated the
coupon policy by failing to give it to the customer and then placing “it in the check stand
drawer.” She continued, “[e]ven if her intent was not to use the coupon herself” Martinez “did
not follow the policy by failing to give the customer the coupon and removing it and not tearing 25
it up.”22 (GC Exh. 5) About 90 minutes later, she notified Store Director Merritt of her
recommendation that Martinez be terminated for failing to follow the coupon policy.
At the hearing, Seydel claimed that her discharge recommendation in Martinez’ case was
consistent with the action taken in all other instances where employee violated the Catalina 30
coupon policy. Blankenship, however, recognized that Martinez’ situation did not fit squarely
with the enforcement precedent concerning that policy. He acknowledged that her situation was
unlike all other instances where the Company discharged an employee for violating the policy in
that she did not have personal possession of the coupon and she had not attempted to use the
coupon. Seemingly for that reason, Blankenship hesitated in signing off on Seydel’s 35
recommendation until after seeking District Manager Houston’s opinion via an email on early on
December 4 inside 2 hours of the time of the scheduled discharge. Houston argued that Martinez
had handled the whole matter deceptively and had “changed her story 3 times when questioned
by Don.” Although he agreed to go along with a “last and final” warning as Blankenship
proposed, Houston clearly favored the discharge recommendation and Blankenship finally 40
decided to go along. (GC Exh. 7)

21 The courtesy clerk was never identified. There is no evidence anyone spoke to this clerk
during the investigation leading up to Martinez’ discharge.
22 However, at the hearing Seydel reiterated her belief that Martinez kept the coupon for her
person use. Tr. 53.
JD(SF)–25–12
42
After receiving Seydel’s recommendation on December 3, Merritt telephoned Martinez
and requested that she meet with him at the store on the next day at 10 a.m. When she arrived,
Merritt met with her in the bookkeeper’s office and informed her of her discharge for violating
the coupon policy. He’s claims that Martinez began shouting at him. She claims that she 5
demanded a copy of the policy and her discharge papers. In response, Merritt told her that he
would call the sheriff if she refused to leave. Martinez subsequently protested to Blankenship
but to no avail.
Analysis and Conclusions: The outcome here turns on Respondent’s motive for 10
discharging Martinez. The General Counsel argues her union activity motivated her discharge.
Respondent argues that her discharge was for cause, namely, the failure to adhere to the Catalina
coupon policy. Based on the analysis below, I have concluded that Respondent discharged
Martinez because of her union activities and sympathies, and her protected concerted activities.
15
The Board employs a causation test in determining the motive underlying an employer’s
adverse action against an employee. Wright Line, 251 NLRB 1083 (1980), enfd. on other
grounds 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982) Later, the Supreme
Court approved Wright Line in NLRB v. Transportation Management Corp., 462 U.S. 393
(1983). As refined over the years, that test first requires the General Counsel to persuade that a 20
substantial or motivating factor for the employer’s challenged decision was prohibited by the
Act. If that burden is met, the burden of persuasion then shifts to the employer to prove as an
affirmative defense that it would have taken the same action even in the absence of the
employee’s protected activity. See Manno Electric, 321 NLRB 278, 280 fn. 12 (1996), and the
cases cited there.25
To carry his burden, the General Counsel must establish by either direct or circumstantial
evidence that (1) the employee engaged in a protected activity, (2) the employer knew of that
activity, and (3) the employer took adverse action against the employee motivated in substantial
part by the employee’s protected activity. FPC Moldings, Inc. v. NLRB, 64 F.3d 935, 942 (4th 30
Cir. 1995), enfg. 314 NLRB 1169 (1994). If he succeeds, then the burden of persuasion shifts to
the employer who must show that the same action would have been taken even in the absence of
the employee’s protected conduct. An employer does not carry its burden by merely showing a
legitimate reason for imposing discipline against an employee; instead it must persuade by a
preponderance of the evidence that the same action would have been taken even absent the 35
employee’s protected activity. Hicks Oils & Hicksgas, 293 NLRB 84, 85 (1989), enfd. 942 F.2d
1140 (7th Cir. 1991).
I find ample evidence to support a conclusion that the General Counsel’s met his Wright
Line burden of showing that Martinez’ discharge was motivated in substantial part by her union 40
and protected concerted activities. Martinez took an active role and vocal on two fronts, the
discontent among the cashiers over the store’s scheduling process, and the Union’s subsequent
efforts to organize the remainder of store 917. Both are core activities guaranteed by Section 7.
The credible evidence shows that she and other employees discussed their grievances 45
concerning the store’s scheduling practices that they felt were strongly skewed in favor of the
most senior cashier at the expense of the others as well as the inability of management to post
their weekly work schedule in a timely manner. Obviously, when employees work random
JD(SF)–25–12
43
schedules, the timely completion of the scheduling process takes on considerable significance.
The precipitous written warning issued to Martinez in the mid-June for her edgy comment about
the distribution of hours, which Merritt impetuously labeled as insubordination, illustrates the
remarkable degree of animus that even a basic level of employee dissent generated here. It also 5
identified Martinez as a troublemaker.
Martinez’ warning and Houston’s unwillingness to do anything significant about it, at
least from her perspective, segued easily into the favorable reception Martinez gave to Union
Agent Vasquez’ approach about organizing the rest of store 917. She quickly signed on to that 10
idea and arranged for a core group of employees to meet with Vasquez and initiate an organizing
effort among the other store employees. Martinez steadfastly assisted in this effort by promoting
the Union to her fellow employees and by obtaining signed authorization cards from those who
shared her interest in unionizing the rest of the store.
15
Unquestionably, the Company knew about Martinez’ participation in the organizing
effort. Merritt’s untruthful effort to explain away his early admission early that he knew about
Martinez’ union activities before her discharge coupled with the unceasing surveillance of the
organizing efforts and the cadre of employee informers make this conclusion entirely
unavoidable. Merritt’s generally unconvincing demeanor and his attempt to claim that his 20
knowledge of Martinez’ union sympathies was essentially stale and unrelated to Local 1564’s
ongoing organizing campaign was made all the worse by the suggestion that he learned of it out
of the blue in a conversation with another manager. In addition, Merritt acknowledged without
any significant qualification that he kept Ma, Seydel and Houston apprised of nearly everything
he learned about the organizing campaign from these sources. Their efforts to deny they knew of 25
Martinez’ involvement with the Union involvement prior to her discharge are disingenuous.
There is also ample evidence of union animus on the Company’s part. The unlawful
surveillance I have found here came about largely at the encouragement of the Company’s
district and division management. Moreover, even the lawful activities the Company swiftly 30
employed in response to Local 1564’s organizing drive (such as Seydel’s presentations in August
2010, Blankenship’s promotional about various Company benefits, and the barring of Vasquez
from the store) exhibit the kind of strong and swift opposition the Board and the courts rely on to
establish the animus element of the General Counsel’s case. See e.g. Healthcare Employees
Union, 441 F.3d 670,681 (9th Cir. 2006), citing Tim Foley Plumbing Service, 337 NLRB 328 35
(2001).
For the foregoing reasons, I find the General Counsel has provided an ample basis to
infer that Martinez’ discharge, after 25 years of service, resulted in substantial part from a
combination of her concerted and her union activities in the summer and fall of 2010. In the 40
wake of the General Counsel’s evidence, Respondent’s was required under Wright Line to show
persuasively that the same action would have been taken even absent her protected activities.
I have concluded for the following reasons that the Company failed to meet its Wright
Line burden. First, as noted above Merritt was untruthful about his knowledge of Martinez’45
union activities. Worse yet, Ma claimed that he first learned of her claim that she had been
involved with the union when she filed an unfair labor practice charge about her discharge in
JD(SF)–25–12
44
March 2011. His blithe assertion on this critical point is not at all credible considering the record
as a whole.
Secondly, I have concluded that Zbylut’s so called investigation is little more that a cover 5
for the managers seeking to discharge Martinez. I have reviewed the security video in evidence
several times, occasionally with the aid of a magnification device. Although I have no basis to
quarrel (with a single exception addressed below) about some of his basic observations detailed
in his final report, the incomplete nature of what he represented in his report supports my
conclusion that it has significant gaps. His testimony did not convince me otherwise. 10
From the perspective I have been able to observe from the video in evidence, Martinez
almost never looked squarely at the receipt and Catalina printers. Rather, in the period described
in Zbylut’s report, she appears to be largely engaged with the customers and their purchases.
When the printers functioned, she almost always appears to reach back to her left at what could 15
be reasonably described as a 7:30 or 8 position from her primary direction and place her left
hand on the receipt printer. What I observed on the critical transaction is a receipt that appears to
be nearly a foot long, quite unlike the abbreviated (three inch or so) document in evidence.
Furthermore, I am unable to conclude from the security video that Martinez even looked in the
direction of the receipt printer or the Catalina printer when she tore the receipt from the printer 20
and handed it to the customer.
Later, at the time Zyblut identified in his report as Martinez’ coupon discovery moment,
his report strongly implies that the courtesy clerk assisting Martinez was walking away. This
implies that Martinez waited until the courtesy clerk left before she dealt with the coupon that 25
had been printed three customers ago. That is clearly not the case. In fact, at the time Zyblut
identifies as the time when Martinez put the coupon “on the counter or in the drawer,” the
courtesy clerk was in the customer aisle looking in her direction almost within an arm’s length of
Martinez in the cashier’s cove.
30
Worse yet, Zyblut’s report skips the 75-minute interval from the time of the coupon
generating transaction to Andrick’s discovery while rummaging through the storage drawer. In
this interval, the security camera shows numerous opportunities available to Martinez while
alone and unobserved around the checkout counter to remove it from the drawer and put it in her
pocket, if as Andrick, Seydel and other managers so quickly charged, she harbored an intention 35
to convert the coupon to her own use. I find this defect in the investigative report seriously
undermines the conclusion harbored by those in the management chain that carried out the
discharge (with perhaps the exception of Blankenship) that Martinez sought to appropriate the
coupon to her own use. On the contrary, it supports the conclusion I have reached, based on
Martinez’ account, her testimonial demeanor, and the nearly conclusive video evidence, that she 40
never really gave the coupon much thought at all in view of the customer traffic at the time. In
fact, even after Andrick rummaged through the storage drawers at her register, Martinez made no
moves that indicate that she harbored a concern for the whereabouts of the coupon.
Third, the conduct of management (again with the exception of Blankenship for a short 45
time on the morning of December 4) from Andrick all the way up the chain of command, shows
a single-minded focus on Martinez and a remarkably rigid application of the Catalina coupon
policy as to her. But in rigidly applying the policy, they all overlooked the fact that the plain
JD(SF)–25–12
45
terms of the policy shows that it applies to all employees even though the policy obviously
establishes primary responsibility in the cashiers. Hence, the record contains anecdotal evidence
about employees and managers of all sorts finding coupons on the floor or still uncut from the
printer and destroying them as required by company policy. However, the security camera here 5
shows that the courtesy clerk assisting Martinez stared straight in the direction of the coupon
printer through the generating transaction and two more transactions without doing anything to
the $10-discount coupon that supposedly was at the printer for more than two minutes before
Martinez removed it. Insofar as is known, none of the participants in the decisionmaking circle
made any effort to even identify the courtesy clerk and question or correct him about his failure 10
to destroy the coupon he would have obviously observed. One can easily conclude, as I have,
that the explanation for this remarkable omission lies in the fact that Martinez was targeted for
some reason other than her failure to give the coupon to the customer and her subsequent failure
to destroy it, all of which the courtesy clerk could have done also.
15
Other evidence suggests that Martinez had a target on her back as far as the Company
was concerned. Andrick, the assistant front-end manager who would later tell another active
unionist that the Company was looking for a reason to get rid of her, handled the discovery of the
coupon in such an officious manner as to suggest that the Company wanted to pin something on
Martinez. She never bothered to seek an explanation from Martinez; instead, she dragooned a 20
witness from the service desk and secured coupon in the store safe along with other valuables.
Merritt’s first instinct appears to nail Martinez by requiring that she sign a current copy of the
coupon policy statement and contact Seydel for directions before he even spoke to Martinez. All
this suggests a single-minded effort to build a case against Martinez that would warrant
discipline. The conduct of the store managers and the other company officials in connection 25
with the discharge of Martinez simply fail to persuade me that the object of Martinez’ severe
discipline was to preserve the integrity of the company’s coupon policy.
As I have concluded that Respondent failed to meet its burden under Wright Line with a
persuasive case, I find that Respondent violated Section 8(a)(1) and (3) by suspending and 30
discharging Martinez.
2. The Perea discrimination allegations
The complaint paragraphs 6(c) – (f) allege that Respondent discriminated against Perea 35
by (1) altering her lunch and break schedule on May 2, 2011; (2) altering her shift schedules on
May 10 and 14; (3) denying her request to trade shifts with another employee on May 30; and (4)
denying her request for leave on May 31. Respondent denies these allegations.
Relevant facts about complaint paragraphs 6(c) and (d): Talie Perea, a cashier, has 40
been employed by Albertsons for 9 years. The last 4 years of her tenure she has worked at store
917. Perea’s husband, Ivan, works in the meat department at store 917 and is a member of the
unit represented by Local 1564. The Perea’s have seven children, a fact that affects at least
Talie’s availability for work at times.
45
As noted before, Martinez enlisted Perea’s help in canvassing other store employees’
interest in unionizing. Perea willingly agreed to help. She also attended the initial Pizza Hut
meeting, promoted the Union to her fellow employees and distributed authorization cards to
JD(SF)–25–12
46
employees who expressed an interest. She spoke to Assistant Front End Manager Andrick about
attending the Pizza Hut meeting the following morning and the two talked about the Union on
other occasions. Merritt specifically identified Perea in one of his reports to Seydel that I have
quoted above at p. 25.5
Under company policy, the employees, including the cashiers, receive lunchbreaks or 15-
minute breaks, depending on the length of their shift. Employees working up to 6 hours get a 15-
minute break but no lunch break. Those working between 6 and 8 hours get one short break plus
the meal period. Those working 8 or more hours get 2 short breaks and a meal period. The 10
break periods are paid but the meal period (half an hour) is not paid. The cashiers are relived
from their stations by the front-end manager in charge, be it Andablo or one of her assistants.
Under established policy, supervisors are supposed to make an effort to give the paid break as
near as possible in the middle shift or the middle of the period the employee works before and
after lunch. As the lunch break is unpaid, employees clock out and back for lunch.15
The Company utilizes a specialized software program (Visual Labor Management
(VLM)) to schedule employees. At relevant times Front-end Manager Andablo used that
program to schedule the front-end employees. When preparing a work schedule, the supervisor
enters all approved requests for time off and any known shift limitations that can be 20
accommodated so the program will prevent the scheduling of an employee for work during those
periods. Next, the supervisor calculates the total work hours available for assignment from
information provided by the store director about the projected sales for the upcoming week. The
scheduler in turn selects 3 weeks with similar sales out of the past 8 weeks and the program then
calculates the total work hours available for assignment. Once completed, the supervisor 25
allocates available hours by seniority. The schedule will reflect the unpaid lunch break usually at
the midpoint in the employee’s workday but it does not reflect the 15- minute paid breaks.
Andablo said that either she or one of her assistants will release the cashiers for their
short breaks based on the amount of customers at the time and the availability of relief personnel. 30
Although lunchbreaks are reflected on the weekly schedule, Andablo said that they too can be
adjusted occasionally to meet both the store needs and the worker’s preference.23 After the
front-end manager completes the schedule and corrects any mistakes, the store director reviews it
to confirm that it conforms to the allowable labor expenditures, that there is adequate manpower
coverage for the anticipated business, and that the senior employees have been allocated the most 35
hours. Following that review, the printed schedule is posted, usually by Friday afternoon.
Perea linked the events that form the basis for complaint paragraph 6(c) with the events
that underlie complaint paragraph 6(d). This series of events begins with Perea’s claim that
Front-End Manager Andablo became quite agitated over the fact that Assistant Store Manager 40
Garcia and Assistant Front-End Manager Andrick selected Perea as a substitute for “Lori
Kenton” one day in late April when that cashier was absent. According to Perea, Kenton’s shift,
as adjusted by Garcia at Perea’s request, ran from 8 a.m. to 4:30 p.m. Based on reasonable
inferences from Perea’s account, Andablo became upset at all involved with this substitution

23 Andablo occasionally adjusted Perea’s meal break to coincide with her husband’s.
JD(SF)–25–12
47
because she felt it was the front-end manager’s prerogative to select substitutes and she had not
been consulted.24 (Tr. 806-809)
By Perea’s account, Andablo ignored Perea’s repeated requests to be relieved for the 5
breaks called for by Kenton’s schedule. After calling Andablo about three times to be relieved
for a break, Perea claims that Andablo finally closed her register and sent her on break. Perea
said she then worked for only about half an hour after returning from the morning break before
Andablo told her to take the lunchbreak provided by the schedule.
10
Supposedly, Perea also covered two shifts that same week for another cashier, Tomisita
Chavez when this worker was absent because of an illness.25 Again, Perea claimed, Garcia and
Andrick made the arrangements for her to substitute for Chavez. These shifts, by her account,
ran from 8 a.m. to 2 p.m. Perea asserted that Andablo again hassled Garcia, Andrick and herself
over these substitutions. (Tr. 812-14) On both of these occasions, Perea said, she had to pester 15
Andablo for her break periods.26 Andablo flatly denied that she drastically altered the break
schedule as described by Perea. She also denied that Perea ever complained to her about the
release times for her breaks and for her lunch. (Tr. 1353-1355)
The following week Perea complained to Store Director Merritt the about the treatment 20
she perceived that she had received from Andablo the previous week. She claims that she told
Merritt of Andablo’s agitation with her and the persistent difficulty she encountered in getting
relieved for breaks. According to Perea, Merritt promised to speak to Andablo about her
concerns but Perea supposedly cautioned him against doing so for fear that Andablo would
retaliate against her through the scheduling decisions. Beyond that, Perea said that Merritt then 25
launched into a lecture about the excessive gossiping at the frond end. Merritt did not testify
about this meeting and it is not clear if he ever spoke to Andablo about Perea’s complaints.
Andablo then scheduled Perea for a total of 39 work hours the following week. The
schedule called for her to work everyday of the week. On two of those days, her shifts ran 30
relatively late. Thus, Perea’s May 10 shift ran from 5 to 10:30 p.m., and it ran from 6 to 11 p.m.
on May 14. Merritt said that Perea complained to him about her late shift on May 14 but said
nothing about the lateness of the May 10 shift or any other aspect of her schedule. As a result of

24 As a defensive measure against the organizing campaign, the store quit using employee
surnames when preparing work schedules. No one named “Lori” appears on the VLM schedules
but they do show a cashier named “Laura.” I have presumed that Laura on the VLM schedule is
the “Lori” Perea referred to in her testimony. I have also presumed that Laura is a relatively
junior employee as her name appears near the bottom of the VLM weekly schedules.
25 No one named “Tomisita” appears on the VLM schedules but they do list a cashier named
“Tommy.” I presume that Perea’s reference to Tomisita is the same person named “Tommy” on
the VLM schedules. I have further presumed that “Tommy” is a more senior cashier as her name
appears second on the schedule just beneath Gloria Padilla, the most senior cashier. I have also
presumed that “Tommy” is the other cashier Perea supposedly substituted for in late April.
26 Perea testified: “She didn't want to send me to break. It was a battle with her. I had to call
her on the phone. I had to beg for my break. I had to ask her several times for my break. Okay.
In a minute, I'll give it to you. Well, that minute passed half an hour, an hour.” Tr. 812-13.
JD(SF)–25–12
48
his efforts, Perea’s May 14 shift was switched to another employee. As a result, she did not have
to work at all on May 14.27 Perea’s made only a vague reference to this fact that confirms
Merritt’s account.
5
Perea also called Associate Relations Manager Seydel in Denver about her schedule that
week. The next time that Seydel went to store 917 she (along with Assistant Store Director
Garcia) met with Perea. In this meeting, Perea complained about the scheduling of late shifts the
previous week and about Andablo’s failure to release her for breaks in a timely manner.28 Perea
attributed Andablo’s animosity toward her to personal disagreements between the two of them 10
that had existed for years. Seydel said that Perea made no claim that her involvement with the
Union organizing campaign contributed to the Andablo’s hostility. (Tr. 1534-1535) Seydel said
she looked into Perea’s work schedules and found that she always worked numerous different
shifts. She also found occasions when Perea worked as late as 10 or 10:30 p.m. (R. Exh. 36)
15
Analysis and Conclusions: I have reviewed the cashiers’ weekly schedules for the
entire months of the April and May 2011. (GC Exh. 31) Counsel for the General Counsel makes
no claim that these weekly work schedules in evidence are fabricated or otherwise unreliable. In
fact, Counsel for the General Counsel subpoenaed those weekly schedules covering a 6 month
period, presumably examined them with a reasonable degree of care and then introduced them in 20
evidence. I have concluded based on my detailed examination that they do not square with
Perea’s rambling and dramatic testimony.
The VLM schedules for April and May 2011 show that the Laura was only rarely
scheduled to work morning hours. Laura’s schedules in this period do not list any 8 to 5 shift, or 25
any other shift starting 8 a.m. The bulk of her assigned shifts began around 2 p.m., or later, day
in and day out. The April and May VLM schedules reflect that she was scheduled to work
morning hours only on four occasions. The earliest time she started work was at 8:30 a.m.
(Saturday, May 14), the day when Perea was originally scheduled to work from 6 p.m. to 11 p.m.
but was later deleted due to Perea’s complaint. On Sunday, May 1, Laura’s shift began at 10 30
a.m. She was scheduled to start work at 11 a.m. on May 22 and 30. None of the morning
starting times reflected in Laura’s VLM work schedules fit the time and character of the situation
Perea described at great length in her testimony.
In addition, on those days where the weekly schedule reflects that Laura would have 35
qualified for a meal break by reason of the length of her shift, Perea was also scheduled for work.
In the 2 month period I examined, Laura was scheduled to work sufficient hours on five
occasions to qualify for a lunch period, April 22 and 23, and May 28, 29, and 30. Perea worked

27 Merritt’s testimony seems to imply that Perea may have worked another shift on May 14.
However, Perea’s time punch record for the month of May 2011 shows that not to be the case as
she had no time punches for May 14. See Resp. Exh. 35. No evidence shows a complaint by
Perea because she lost a shift that week. In any event, absent the May 14 shift, Perea’s schedule
would have called for 34 hours of work, a number not at all out of line with the amount of work
assigned to her in other weeks.
28 In her own testimony about her meeting with Seydel, Perea acknowledge almost off-
handedly that her original schedule for late work on May 14 had been changed.
JD(SF)–25–12
49
enough hours on all those same days to qualify for a meal period save for May 28 when she was
not scheduled for work at all. (GC Exh. 31) Based on this analysis, I am unable to conclude
Perea’s account about the bunching of the paid break with the lunch break is worthy of credit.
5
Similarly, I have reviewed the work schedules of Tomisita Chavez (Tommy) for the last
two weeks of April and the first week of May. In the April 17-23 period, Perea would not have
been available to replace Chavez because their schedules overlapped. She would have been
available to work one day in place of Chavez during the April 24-30 work week. On that day,
April 27, Chavez’ schedule called for her to work 8 a.m. to 4 p.m. with a lunch period from 11 to 10
11: 30 a.m. In the work week of May 1-7, Chavez was scheduled for only one day where she
had a meal break (May 4) but Perea was also scheduled to work 5 plus hours that same day.
Based on my analysis of the VLM records, Perea’s emphatic testimony about the
extensive harassment she supposedly suffered at the hands of Andablo over her break periods 15
while substituting for these other two other employees has, as the saying goes, “no legs.” I
simply find it impossible to credit her testimony in the face of the contradictory documentary
evidence. For this reason, and for the added reason that Merritt admittedly arranged to relieve
her from the only late shift (May 14) about which she complained, I have concluded that the
General Counsel failed to prove by a preponderance of the credible evidence that Perea suffered 20
the adverse actions alleged in the complaint paragraphs 6(c) and (d). Accordingly, I find that the
General Counsel failed to meet his Wright Line burden as to these complaint allegations. Hence,
I recommend dismissal of complaint paragraphs 6(c) and (d).
Relevant facts about complaint paragraphs 6(e) and (f): Perea claims (and complaint 25
paragraph 6(f) is meant to allege) that Andablo refused her request for an off day on Monday,
May 30, 2011 (Memorial Day). Andablo claims that Perea never made the standard request to
have the day off. Perea sort of contradicted this assertion. She said that she entered a request in
Andablo’s system to have that day off as early as February or March, probably on the back page
of the form Andablo kept for this purpose. Perea said she knew that early that she would need to 30
take Memorial Day off in order to accompany her son, who suffered from a bleeding problem in
an ear, to an appointment with a medical specialist for treatment.
After learning that she had not been given the day off, Perea requested that Andablo
switch her May 30 shift with Albert Sanchez’s June 3 schedule. On May 30, Sanchez was 35
scheduled to work from 8 a.m. to 4:30 p.m. Perea was scheduled to work from 9 a.m. to 5 p.m.
Perea was not scheduled for work on June 3. Andablo refused to approve that request (see
complaint paragraph 6(e)), in essence, because it would leave the store with inadequate coverage
on May 30 because of the overlapping schedules of Perea and Sanchez on that day.29
40
The VLM schedules show that Andablo honored Perea’s requests to be off work May 24,
and June 3, 4 and 5. (GC Exh. 31) The copy of the request book provided for employees who
do not want to be scheduled for specific days reflects in Perea’s own handwriting that she wanted

29 On May 30, Sanchez was scheduled to work from 8 a.m. to 4:30 p.m. Perea was
scheduled to work from 9 a.m. to 5 p.m. Perea was not scheduled for work on June 3.
JD(SF)–25–12
50
those 4 days off. The book does not show any similar request by Perea, or any other employee
for May 30, the Memorial Day holiday. (R. Exh. 43)
The copy of the request book in evidence does not show a request by Perea to be off on 5
May 30 that she may have entered on the back side of a page on an earlier date around the times
she claimed in her testimony. This is because Respondent asserted, in response to the General
Counsel’s subpoena, that it could not locate the original of the request book and could only
produce the copy it had in its possession. Respondent made no claim that the copy it produced
contained anything other than what appeared on the front pages of the original request book. 10
The copy that Respondent produced does not show any writing on the back of the pages where,
according to Perea’s claim, employees regularly made advance entries for time off and where she
claims she made her original request to be off on May 30.
Analysis and Conclusions: Ordinarily an adverse inference would be warranted against 15
Respondent for its failure to produce the original of the request book as requested by the General
Counsel. But I do not believe the interests of justice would be served by drawing an adverse
inference in the circumstances found here. I have reached this conclusion because Perea went
out of her way to vividly describe the dire necessity for being off work that day because of the
health of her son. She also described with nearly equal fervor the hostility that Andablo 20
exhibited toward her in the early part of that very month that led her to complain bitterly to the
store director and a divisional manager.
By continuing to advance the related allegations in complaint paragraphs 6(e) and (f) in
the wake of overwhelming adverse evidence, General Counsel seemingly seeks to have me 25
believe that Perea entered requests for four days off on the front pages of the request book in the
week before, the week during, and the week after May 30, all of which were granted, but did not
to enter a request to be off on May 30 for a desperately critical family purpose. Perea’s, and by
extension the General Counsel’s, argument subsumes that she relied on Andablo’s good faith to
honor a request she made on the back side of a page months earlier. I find this position to be not 30
at all believable, especially where, as here it is unsupported by a scintilla of evidence that there
ever was a doctor’s appointment as Perea claimed, or that her mother was pressed into service to
keep the doctor’s appointment with a child suffering from such a critical condition.
There is not a shred of credible evidence that Perea made any kind of timely request to be 35
off on May 30 apart from her untruthful assertions that Andablo gave her repeated oral
assurances to her that she would be off that day. I do not credit Perea’s assertions (any of them)
about her request for time off on May 30. Instead, I credit Andablo’s claim that Perea never
requested to be off on May 30 until well after the schedule for that week was prepared and
posted. Where, as here, Andablo honored four requests by Perea to be off work in the days 40
before and after May 30, I find it would be irrational to conclude that Andablo’s motive for
scheduling Perea for work that day was based on her union activities that had been going on for
the past 8 months.
Additionally, the complaint allegation about Perea’s belated effort to avoid working on 45
May 30 by trading shifts with Sanchez also lacks merit. Although it is true that there is evidence
that management regularly approved employee requests to exchange shifts, General Counsel’s
argument that this request was “denied by Respondent without any viable business reason” for
JD(SF)–25–12
51
doing so simply ignores the evidence showing that Perea and Sanchez were scheduled to work
virtually the same hours on May 30. Perea’s proposed exchange would, in effect, have left the
store one cashier short on that holiday.
5
Accordingly, I find, as to complaint paragraph 6(e) and (f) that the evidence fails to show
that Respondent took the adverse action claimed in that allegations. For this reason, I will
recommend dismissal of those allegations.
CONCLUSIONS OF LAW10
1. By soliciting employee complaints and grievances in order to discourage them from
engaging in union activities; by engaging in surveillance of employee union activities and by
creating the impression that those employee activities were under surveillance; and by implicitly
threatening employees, Respondent engaged in unfair labor practices affecting commerce within 15
the meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act.
2. By suspending and discharging Yvonne Martinez in December 2010 because of her
union and protected concerted activities, Respondent engaged in unfair labor practices affecting
commerce within the meaning of Section 8(a)(1) and (3), and Section 2(6) and (7) of the Act.20
REMEDY
Having found that the Respondent has engaged in certain unfair labor practices, it will be
ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate 25
the policies of the Act.
As Respondent discriminatorily suspended and discharged Yvonne Martinez in
December 2010, it will be required to offer her reinstatement and make her whole for any loss of
earnings and other benefits. Backpay shall be computed in accordance with F. W. Woolworth 30
Co., 90 NLRB 289 (1950), with interest at the rate prescribed in New Horizons for the Retarded,
283 NLRB 1173 (1987), compounded daily as prescribed in Kentucky River Medical Center, 356
NLRB No. 8 (2010), enf. denied on other grounds sub.nom., Jackson Hospital Corp. v. NLRB,
647 F.3d 1137 (D.C. Cir. 2011).
35
Respondent will also be required to expunge from its records any reference to Martinez’
suspension and discharge in December 2010, and to notify her in writing that this action has been
taken, and that any evidence related to that suspension and discharge will not be considered in
any future personnel action affecting her. Sterling Sugars, Inc., 261 NLRB 472 (1982).
40
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended30

30 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended 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.
JD(SF)–25–12
52
ORDER
The Respondent, Albertson’s, LLC, Albuquerque, New Mexico, its officers, agents,
successors, and assigns, shall5
1. Cease and desist from
(a) Soliciting complaints and grievances from employees in order to discourage them from
supporting the United Food and Commercial Workers Union, Local 1564, or any other labor 10
organization
(b) Engaging in surveillance of employee union or protected concerted activities or creating the
impression those employee activities are under surveillance.
15
(c) Implicitly threatening any employee by informing them that management was attempting to
make them quit their job.
(d) Suspending and discharging any employee because they engage in activities on behalf of
United Food and Commercial Workers Union, Local 1564, or any other labor organization.20
(e) In any like or related manner interfering with, restraining, or coercing employees in the
exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.25
(a) Within 14 days from the date of the Board’s Order, offer Yvonne Martinez full reinstatement
to her former job or, if that job no longer exists, to a substantially equivalent position, without
prejudice to her seniority or any other rights or privileges previously enjoyed.
30
(b) Make Yvonne Martinez whole for any loss of earnings and other benefits suffered as a result
of the discrimination against her as provided in the remedy section of the decision.
(c) Within 14 days from the date of the Board’s Order, remove from its files any reference to the
unlawful suspension and discharge of Yvonne Martinez in December 2010, and within 3 days 35
thereafter notify her in writing that this has been done and that her suspension and discharge will
not be used against her in any way.
(d) Preserve and, within 14 days of a request, or such additional time as the Regional Director
may allow for good cause shown, provide at a reasonable place designated by the Board or its 40
agents, all payroll records, social security payment records, timecards, personnel records and
reports, and all other records, including an electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due under the terms of this Order.
JD(SF)–25–12
53
(e) Within 14 days after service by the Region, post at its store 917 in Albuquerque, New
Mexico, copies of the attached notice marked “Appendix.”31 Copies of the notice, on forms
provided by the Regional Director for Region 28, after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent and maintained for 60 consecutive 5
days in conspicuous places including all places where notices to employees are customarily
posted. In addition to the physical posting of paper notices, notices shall be distributed
electronically, such as by email, posting on an intranet or an internet site, or other electronic
means, if the Respondent customarily communicates with its employees by such means.
Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, 10
defaced, or covered by any other material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to
all current employees and former employees employed by the Respondent at any time since
September 3, 2010. 15
(f) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that
the Respondent has taken to comply.
20
IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges
violations of the Act not specifically found.
Dated: Washington, D.C., May 24, 2012.
25
William L. Schmidt
Administrative Law Judge

31 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.”
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 Federal labor law and has ordered us to
post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT solicit complaints and grievances from employees in order to discourage them from
supporting the United Food and Commercial Workers Union, Local 1564, or any other labor organization
WE WILL NOT engage in surveillance of employee union or protected concerted activities or create the
impression that you union or protected activities are under surveillance.
WE WILL NOT implicitly threaten any employee by telling them that we are attempting to make them
quit their job.
WE WILL NOT suspend or discharge any employee because they engage in activities on behalf of United
Food and Commercial Workers Union, Local 1564, or any other labor organization.
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 offer Yvonne Martinez full reinstatement to her former job or, if that job no longer exists, to a
substantially equivalent position, without prejudice to her seniority or any other rights or privileges she
previously enjoyed.
WE WILL make Yvonne Martinez whole for any loss of earnings and other benefits suffered as a result
of our discrimination against her with interest as provided by law.
WE WILL remove from our files any reference to our unlawful suspension and discharge of Yvonne
Martinez in December 2010, and notify her in writing that this has been done and that her suspension and
discharge will not be used against her in any way.
ALBERSTON’S, LLC
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce
the National Labor Relations Act. It conducts secret-ballot elections to determine whether employees
want Charging Party representation and it investigates and remedies unfair labor practices by employers
and Charging Parties. to find out more abut your rights under the Act and how to file a charge or election
petition, you may speak confidentially to any agent with the Board’s Regional Office set forth below.
You may also obtain information from the Board’s website: www.nlrb.gov.
2600 North Central Avenue, Suite 1400
Phoenix, Arizona 85004-3099
(602) 640-2160
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF
POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER
MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE WITH ITS
PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S COMPLIANCE
OFFICER, 602-640-2146.