Meijer, Inc.

National Labor Relations Board - Board Decisions

Jun 29, 2005

344 N.L.R.B. 916 (N.L.R.B. 2005)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
344 NLRB No. 115
916
Meijer, Inc. and Robert Lee Caldwell. Cases 9–CA–
40631 and 9–CA–40778
June 29, 2005
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On August 31, 2004, Administrative Law Judge Mi-
chael A. Rosas issued the attached decision. The Re-
spondent filed exceptions and a supporting brief. The
General Counsel filed cross-exceptions, a supporting
brief, and an answering brief to the Respondent’s excep-
tions. The Respondent filed an answering brief to the
General Counsel’s cross-exceptions.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings,1 and conclusions and to adopt the recommended
Order as modified and set forth in full below.2
The judge found that the Respondent did not violate
Section 8(a)(1) of the Act by prohibiting employee
Robert Caldwell from distributing union literature and
soliciting union membership at the entry gates to its dis-
tribution facility. We disagree.
Facts
The Respondent operates a distribution center in Tipp
City, Ohio, and retail stores in the Dayton, Ohio area.
The employees at the distribution center are currently
represented by the United Food and Commercial Work-
ers Local 1099. Since September 2003,3 Caldwell has
been involved in a campaign to replace that current Un-
ion with another labor organization, Real Union. On Oc-
tober 17, Caldwell distributed applications for Real Un-
ion membership at the turnstile-gated entrance to the

1 We adopt the judge’s finding that the Respondent violated Sec.
8(a)(1) by disparately enforcing its no-solicitation and no-distribution
policy. The judge correctly found that while the policy prohibiting
solicitation and distribution on worktime is presumptively valid on its
face, the Respondent disparately enforced this policy by permitting
employees, during worktime, to solicit for the Local 1099 campaign
fund. We further note that while this issue was not explicitly alleged in
the complaint, it was fully litigated, and there is no contention in the
parties’ exceptions that questions whether it was fully litigated.
Chairman Battista finds it unnecessary to pass on whether the solici-
tation and distribution policy was disparately enforced. As noted be-
low, the Respondent’s solicitation and distribution policy unlawfully
prohibited employees from soliciting and distributing in the retail store
parking lots. Accordingly, he finds that it is unnecessary to addition-
ally find that the disparate enforcement of its policy is unlawful, as any
such finding would not materially affect the remedy.
2 We shall modify the judge’s recommended Order to accurately re-
flect the violations found, including the additional findings herein, and
we shall substitute a new notice to conform to the language set forth in
the Order.
3 All dates hereafter are in 2003, unless otherwise indicated.
Respondent’s distribution facility. Union Steward Steve
Cullen approached Caldwell, told him that the employees
were already represented by a union, and demanded that
Caldwell leave. After Caldwell refused, Cullen tele-
phoned the Respondent’s manager, Jack Evans, and in-
formed him that someone was bothering people in the
parking lot. Caldwell then finished his distribution and
started to drive away. However, when he saw employee
Lisa Patton, Caldwell stopped, got out of his truck, and
handed Patton a flyer.
Meanwhile, Evans came out to investigate the com-
plaint from Cullen. Observing Caldwell’s improperly
parked truck, Evans approached Caldwell and asked
whether he was working. Caldwell responded that he was
not on duty. Evans then told Caldwell that he had no
business being there and directed Caldwell to leave. Af-
ter Caldwell left, Evans obtained a flyer from Patton and
forwarded it to the Respondent’s manager, Matthew Jam-
rog.
Subsequently, Jamrog sent a letter to Caldwell, dated
October 20, stating in pertinent part that:
Simply stated, our Solicitation Policy prohibits
solicitations and/or distribution of any materials on
company property (including sidewalks and parking
lots) by non-team members for any purpose. Team
members shall not engage in solicitation for any
purpose during the working time of the person being
solicited or the person doing the solicitation.
In addition, distribution of literature or other ma-
terial of any kind is not allowed during actual work-
ing time or in any work area of any Meijer facility at
any time. Materials will not be allowed to be posted
or left laying around anywhere in our facilities.
This rule does not apply to break periods, meal
periods or any other specified period during the
work day when both the soliciting and solicited Mei-
jer team member are on non-working time and in
non-public, non-work areas. This means that both
the solicitor and the team member must not be on the
clock and must be in a non-work area: i.e., break-
rooms. The company considers our store parking
lots to be a “work area” since we have team mem-
bers that work in this outside area of the store.
The Respondent also attached to the letter the no-
solicitation/no-distribution policy, contained in the team
member handbook, which states in pertinent part that:
The Company prohibits solicitation and/or distri-
bution of any materials on Company property (in-
cluding sidewalks and parking lots) by non-
associate/team members for commercial, charitable
or any other purpose. Associates/team members
MEIJER, INC. 917
shall not engage in commercial, charitable or any
other solicitations in non-sales working areas during
their working time or the working time of the asso-
ciate/team member being solicited. For purposes of
the foregoing, “working time” does not include au-
thorized break or meal periods or any other specified
periods during the work day when the associate/team
member properly is not engaged in performing work
tasks. Associates/team members shall not engage in
such solicitation or distribution in sales or guest con-
tact areas at any time. Associates/team members
shall not at any time engage in distribution of any
materials of any sort in any work areas.
The Judge’s Recommended Decision
The judge found that Evans did not violate Section
8(a)(1) by unlawfully interfering with Caldwell’s pro-
tected activity because Evans did not know that Caldwell
was engaged in union distribution when he directed
Caldwell to leave the parking lot. Rather, the judge
found that the General Counsel failed to meet the as-
serted burden of proving that Evans knew Caldwell was
engaging in protected activity when he directed Caldwell
to leave. The judge further found that, even assuming
that the General Counsel had demonstrated Evans’
knowledge of Caldwell’s protected activity, the October
20 letter repudiated the illegal conduct because it assured
Caldwell that, in the future, he would be permitted to
distribute literature in the distribution facility parking lot.
Analysis
Contrary to the judge, for the reasons more fully set
forth below, we find that the October 17 incident violated
Section 8(a)(1).
First, we find that the judge erred in imposing a burden
upon the General Counsel to show that Evans had
knowledge of Caldwell’s protected activity when he di-
rected Caldwell to leave. “[I]t is well established that
evidence of employer knowledge is not a necessary ele-
ment of an 8(a)(1) violation. Rather, the test is whether
the Respondent’s conduct would reasonably tend to in-
terfere with, threaten, or coerce employees in the exer-
cise of their Section 7 rights.” Alliance Steel Products,
340 NLRB 495 (2003). Applying the appropriate stan-
dard, we find that Evans’ conduct towards Caldwell
would reasonably tend to interfere with Caldwell in the
exercise of his protected activity.4 Moreover, the impact

4 Although Caldwell was not specifically told by Evans that he was
not allowed to distribute union literature in the distribution center park-
ing lot during nonworktime, Member Schaumber nevertheless finds
that Evans’ conduct would reasonably tend to interfere with Caldwell’s
exercise of his Sec. 7 rights. Because Caldwell was told to leave the
parking lot shortly after he was engaged in distribution, he would rea-
of Evans’ conduct is not diminished by the absence of
evidence that Evans knew that Caldwell was engaging in
protected activity at that time.
Second, we find, contrary to the judge, that the Re-
spondent’s October 20 letter to Caldwell failed to effec-
tively repudiate Evans’ unlawful conduct. In that letter,
the Respondent prohibited solicitation and distribution in
the retail store parking lots.5 However, there is no evi-
dence that those parking lots are indeed “work areas,” as
the Respondent contends. Although the letter asserts that
employees perform some minimal work in parking lots,
that work is not integral to its business. That is, employ-
ees simply retrieve shopping carts and assist customers to
load purchases into cars. Thus, the Respondent’s prohibi-
tion of solicitation and distribution in these areas violates
Section 8(a)(1). See generally, National Steel Corp., 173
NLRB 401 (1968), enfd. 415 F.2d 1231 (6th Cir. 1969)
(holding that prohibiting distribution in parking lot
unlawfully restricts distribution in a nonwork area).6
In order for a repudiation to be effective, it must be
made in a context free of other related proscribed illegal
conduct. See Red Arrow Freight Lines, 289 NLRB 227
fn. 1 (1988) (employer’s attempted repudiation of an
unlawful “no-solicitation” instruction not effective where
posting occurred in the context of other unremedied un-
fair labor practices). Because the letter contained an
unlawful prohibition on solicitation and distribution, we
find that it did not constitute an effective repudiation of
Evans’ prior unlawful conduct.7

sonably relate his ejection to that distribution. This would tend to dis-
courage him from engaging in similar activity in the future. Moreover,
even if Caldwell’s ejection from the parking area was not reasonably
perceived to be directly related to his distribution of union literature,
the act of telling an employee that he is not allowed to be in the parking
lot during nonworktime would reasonably tend to discourage that em-
ployee from returning to the parking lot to engage in future protected
activities. Accordingly, Member Schaumber finds that Evans’ conduct
had the reasonable tendency to interfere with, restrain, or coerce em-
ployees in the exercise of their Sec. 7 rights.
5 The letter states that “store parking lots” are work areas.
6 We thus adopt the judge’s finding that the Respondent violated
Sec. 8(a)(1) by promulgating and maintaining, in its handbook, an
overly broad policy prohibiting employees from engaging in union
solicitation and distribution in the parking lots and other exterior areas
of its retail stores.
7 In agreeing that the Respondent’s October 20 letter to Caldwell did
not constitute an effective repudiation of Evans’ prior unlawful con-
duct, Chairman Battista and Member Schaumber do not pass on the
validity of all the factors required for an effective repudiation as set
forth in Passavant Memorial Area Hospital, 237 NLRB 138 (1978).
See Champion International Corp., 339 NLRB 672 fn. 6 (2003).
Member Liebman adheres to the test for finding an effective repudia-
tion set forth in Passavant Memorial Area Hospital, supra. In addition
to the reason relied on by her colleagues, she would find that the Re-
spondent failed effectively to repudiate its unlawful conduct here be-
cause the Respondent’s October 20 letter to Caldwell did not make
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD918
Accordingly, we reverse the judge and find that the
Respondent violated Section 8(a)(1) by preventing
Caldwell from distributing union literature outside the
distribution facility at a time when he was not scheduled
to work.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that the
Respondent, Meijer, Inc., Grand Rapids, Michigan, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Prohibiting off-duty employees from distributing
union materials in the parking lots and other exterior
areas of its distribution facility.
(b) Promulgating, maintaining, or enforcing a policy
prohibiting employees from engaging, during nonwork-
ing time, in solicitation and the distribution of literature
in the parking lots and other exterior areas of its retail
stores and distribution facilities.
(c) Promulgating, maintaining, or enforcing a policy
permitting solicitation for one union but prohibiting so-
licitation for other unions.
(d) In any like or related manner interfering with, re-
straining, 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.
(a) Rescind the no-solicitation/no-distribution policy,
contained in the team member handbook, and the letter
of October 20, 2003, and notify its employees, in writing,
that it has done so.
(b) Furnish all current employees with inserts for the
current employee handbook that (1) advise that the
unlawful rule has been rescinded, or (2) provide the lan-
guage of a lawful rule; or publish and distribute revised
handbooks that (1) do not contain the unlawful rule, or
(2) provide the language of a lawful rule.
(c) Within 14 days after service by the Region, post at
its Tipp City, Ohio distribution facility and Dayton, Ohio
area retail stores copies of the attached notice marked
“Appendix.”8 Copies of the notice, on forms provided by
the Regional Director for Region 9, after being signed by
the Respondent’s authorized representative, shall be
posted by the Respondent and maintained for 60 con-

reference to its unlawful conduct, nor acknowledge that Caldwell is
permitted to distribute flyers in the distribution center parking lot.
8 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
secutive days in conspicuous places including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or cov-
ered 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 em-
ployees and former employees employed by the Respon-
dent at any time since October 17, 2003.
(d) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
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 vio-
lated 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 bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT prohibit you, while off-duty, from dis-
tributing union materials in the parking lots and other
exterior areas of the distribution facility.
WE WILL NOT promulgate, maintain, or enforce a pol-
icy prohibiting employees from engaging during non-
working time, in solicitation and the distribution of lit-
erature in the parking lots and other exterior areas of our
retail stores and distribution facilities.
WE WILL NOT promulgate, maintain, or enforce a pol-
icy permitting solicitation for one union but prohibiting
solicitation for other unions.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the rights guaranteed you
by Section 7 of the Act.
WE WILL rescind the unlawful no-solicitation/no-
distribution policy contained in the team member hand-
book, and in our letter of October 20, 2003, reaffirming
MEIJER, INC. 919
that policy, and WE WILL furnish all current employees
with inserts for the current employee handbook that (1)
advise that the unlawful rule has been rescinded, or (2)
provide the language of a lawful rule; or publish and dis-
tribute revised handbooks that (1) do not contain the
unlawful rule, or (2) provide the language of a lawful
rule.
MEIJER, INC.
Julius U. Emetu II, Esq., for the General Counsel.
Jeffrey S. Rueble, Esq., of Grand Rapids, Michigan, for the
Respondent.
DECISION
STATEMENT OF THE CASE
MICHAEL A. ROSAS, Administrative Law Judge. This case
was tried in Cincinnati, Ohio, on May 24, 2004. The charge in
Case 9–CA–40631 was filed October 21, 2003,1 and the com-
plaint was issued December 30, 2003. The charge in Case 9–
CA–40778 was filed January 5, 2004, and a consolidated com-
plaint was issued on February 26, 2004.
The consolidated complaint alleges that the Respondent,
Meijer Stores, Inc., violated Section 8(a)(1) of the National
Labor Relations Act (the Act) by (1) telling an employee on
October 17 that he could not distribute union literature at the
entry gates to its distribution facility and (2) promulgating and
maintaining a rule since October 20 prohibiting employees
from soliciting and distributing literature in the parking lots and
other exterior nonworking areas of its retail stores. The Re-
spondent filed an answer admitting the jurisdictional aspects of
the consolidated complaint and denying that it violated the Act.
At the hearing, the parties were afforded a full opportunity to
call and examine witnesses, present oral and written evidence,
argue orally on the record and file posthearing briefs. On the
entire record, including my observation of the demeanor of the
witnesses, and after considering the briefs filed by the General
Counsel and the Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation headquartered in Grand Rap-
ids, Michigan, is a food and general merchandise retailer that
operates a distribution center in Tipp City, Ohio, and retail
stores in the Dayton, Ohio area. The Respondent derives annual
gross revenues in excess of $500,000 at its Dayton-area stores,
and purchases and receives at the distribution center goods
valued in excess of $50,000 directly from points outside the
State of Ohio. The Respondent admits and I find it is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act and the Union is a labor organiza-
tion within the meaning of Section 2(5) of the Act.

1 All dates are 2003, unless otherwise indicated.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The October 17 Incident
For the past 8 years, Robert Caldwell has been employed by
the Respondent as a warehouse clerk at its distribution facility
in Tipp City, Ohio. The distribution facility consists of four
warehouse buildings—801, 802, 804, and 805. Caldwell is
currently assigned to building 802. As a precondition of em-
ployment, he is registered as a member of the United Food and
Commercial Workers Local 1099 (the Union). However, for
some time, Caldwell has not been pleased with the Union’s
labor representation. As a result, in September 2003, Caldwell
began a campaign to replace the Union with another labor or-
ganization. He called his movement the “Real Union” and
formed a Real Union website. Since that time, Caldwell has
solicited coworkers during his lunch and break periods at the
distribution facility, and by distributing flyers to employees in
two of Respondent’s Dayton-area retail store parking lots.
Caldwell’s solicitation activities at the distribution facility were
consistent with the Respondent’s policy of permitting employ-
ees to participate in sports betting pools and charitable fundrais-
ing during their break and lunch periods, which constituted
nonworktime. However, the Respondent’s solicitation policy
was superceded partially by its collective-bargaining agree-
ments with five different union locals, which permitted union
representatives to solicit, during worktime, employee participa-
tion in the “Active Ballot Club,” a political campaign contribu-
tion fund. The only qualification attached was that such activi-
ties not unduly disrupt the Respondent’s business.2
After getting off early from the first work shift on the after-
noon of October 17, Caldwell drove his pickup truck from the
building 802 parking lot to the parking lot for buildings 801 and
805. Ed Kennedy, another building 802 employee, accompa-
nied him. Caldwell parked near the turnstile-gated entrance to
buildings 801 and 805. Caldwell stood near the entrance, but
was not blocking it. When he arrived, employees were still
leaving the first shift and others were arriving for the second
shift. Caldwell handed out applications for Real Union mem-
bership, while Kennedy stayed in the vehicle. He handed out
about 100 applications and the distribution was uneventful,
until Chris Cullen, a union steward, confronted him. Cullen
swore at Caldwell, told him that employees were already repre-
sented by the Union and demanded he leave. Caldwell resisted
and continued distributing flyers. Frustrated in his endeavor to
stifle Caldwell, Cullen said, “I’ll take care of this.” As he
walked toward the entry gate, Cullen pulled out his cellular
telephone. Unbeknownst to Caldwell, Cullen was calling Jack
Evans, the Respondent’s loss prevention manager at the distri-
bution center. Clearly misstating the situation, Cullen told Ev-
ans there was a disturbance in the 801 parking lot and someone
was bothering people there.
When Caldwell finished handing out applications, he got in
his truck and started to leave. However, he stopped the vehicle

2 Caldwell and the Matthew Jamrog, the Respondent’s manager of
collective bargaining and administration, agreed that the Respondent’s
solicitation policy, as set forth in the “team member handbook” permit-
ted solicitation in nonwork areas during nonworktime, as well as the
exception for the “Active Ballot Club.” R. Exh. 2; Tr. 29–30, 124–128.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD920
after observing another employee and union shop steward, Lisa
Patton, get out of her car and walk toward the turnstile. Cald-
well got out of his vehicle and gave her an application. He did
not have any other flyers in his hand.3 At this point, Caldwell’s
vehicle was 20–30 feet from the entrance.
In the meantime, based on Cullen’s representations, Evans
went to the parking lot to investigate. When Evans got there, he
saw about 12 to 14 employees lined up at the entrance. Evans
did not see a disturbance, but noticed a white pickup truck
parked in the travel portion of the parking lot.4 He saw Cald-
well standing next to the open driver’s side door of the truck
and another person sitting in the truck. Evans, knowing that
Caldwell worked in building 802 on the other side of the com-
plex, assumed he was the subject of Cullen’s complaint. Cald-
well was also concerned that Evans’ truck was parked in the
travel portion of the parking lot. As a result, Evans walked over
to him and asked if he was “off the clock.” Caldwell informed
Evans he was offduty. Evans responded that Caldwell had no
business being there and asked him to leave. Caldwell re-
sponded that he had a right to be there. When Evans repeated
his directive, Caldwell said, “[W]e’ll see about that,” got in his
truck and left. Caldwell never said anything about passing out
union flyers. After Caldwell left, Evans saw Patton standing
nearby with a piece of paper in her hand. Evans approached
Patton and asked what Caldwell gave her. She told Evans that it
was an application for membership in Real Union. At Evans
request, Patton gave him the flyer. Evans took the form back to
his office and reported the incident to Rick Hershberger, direc-
tor of the distribution facility. Hershberger told Evans to submit
a report to Matthew Jamrog, the Respondent’s manager of col-
lective bargaining and contract administration.5
B. The October 20 Letter
On October 20, the next workday, Evans met and discussed
the October 17 incident with Jamrog. Later that day, Evans
distributed a memorandum to security staff explaining that
employees were permitted to pass out union literature in the

3 I credit the testimony of Patton that Caldwell did not have any
other flyers in his hand. Tr. 96. Caldwell’s testimony—that he had
driven about 20 feet when he saw Patton, stopped his vehicle, got out to
hand her a flyer—supports a strong inference that he did not have any
other flyers in his hand when approached by Evans. Tr. 60.
4 Caldwell conceded on cross-examination that he was not parked in
a parking space. Tr. 36–37.
5 Due to the significant inconsistencies in Caldwell’s testimony on
this issue, I did not credit his assertion that he handed one of the flyers
to Evans prior to being told by the latter that he had to leave. Caldwell
testified at trial that, when Evans approached him in the parking lot,
Evans touched his shoulder and asked, “[W]hat have you got there,
what are you doing.” Caldwell allegedly responded by handing Evans a
flyer and telling him that he was passing out applications for the Real
Union. Tr. 21. However, Caldwell contradicted this testimony in an
affidavit sworn to on December 19, 2003. In that affidavit, Caldwell
failed to mention that he handed Evans a copy of the flyer, that Evans
touched his shoulder or asked him what he was passing out. Tr. 39–40.
On the other hand, I found Evans and Patton to be credible witnesses.
As such, I credit the consistent testimony of both that, as Evans ap-
proached Caldwell, the latter had nothing else in his hands. Evan and
Patton each testified that it was she who gave Evans a copy of the flyer
after Caldwell drove away.
distribution facility parking lot during nonworktime. In addi-
tion, Jamrog sent a letter to Caldwell by certified mail outlining
the Respondent’s solicitation policy.6 The letter, which was
received by Caldwell on or shortly after that date, and stated in
pertinent part:
Based on your recent distribution of materials on Mei-
jer property we have been receiving questions regarding
our “Solicitation Policy.” I would like to re-affirm our pol-
icy regarding this matter.
Simply stated, our Solicitation Policy prohibits solici-
tations and/or distributions of any materials on company
property (including sidewalks and parking lots) by non-
team members for any purpose. Team members shall not
engage in solicitation for any purpose during the work
time of the person being solicited or the person doing the
solicitation.
In addition, distribution of literature or any other mate-
rial of any kind is not allowed during actual working time
or in any work area of any Meijer facility at any time. Ma-
terials will not be allowed to be posted or left laying
around anywhere in our facilities.
This rule does not apply to break periods, meal periods
or any other specified period during the work day when
both the soliciting and solicited Meijer team member are
on non-working time and in non-public, non-working ar-
eas. This means that both the solicitor and the team mem-
ber must not be on the clock and must be in a non-work
area, i.e., breakrooms. The company considers our store
parking lots to be a “work area” since we have team mem-
bers that work in this outside area of the store.
At no time will we allow a non-team member or team
members from other units/stores to be in the backrooms or
breakrooms of other units/stores to solicit team members.
They must stay only in areas where the general public is
allowed, and cannot solicit team members that are in work
areas or on the clock.
Finally, our telephone, telephone lines, fax machines,
copy machines and all business equipment are for business
use only and are not to be used for any non-business rea-
sons.
These and other policies are set forth in the Team
Member Handbook. I have enclosed a copy the handbook
for your reference. Hopefully, the handbook and this letter
will clarify any questions you may have regarding our So-
licitation Policy. If you have any other questions in the fu-
ture, please do not hesitate to contact me at (616) 791–
5450.
In fact, the October 20 letter did not reaffirm the Respon-
dent’s solicitation policy. The letter specifically stated that
solicitation and distribution were not permitted in the retail
store parking lots and implied that such activity was permitted
in the distribution facility parking lot. However, the actual pol-
icy, which was contained in the team member handbook, pro-
hibited such activity in all of the Respondent’s parking lots and
sidewalks:

6 R. Exh. 1.
MEIJER, INC. 921
Non-Solicitation/Non-Distribution and Non-Trespass Policy
Policy No: 079 Revision: 1 Effective: 06/08/94
The Company prohibits solicitation and/or distribution
of any materials on Company property (including side-
walks and parking lots) by non-associate/team members
for commercial, charitable or any other purpose. Associ-
ates/team members shall not engage in commercial, chari-
table or any other solicitations in non-sales working areas
during their working time or the working time of the asso-
ciate/team member being solicited. For purposes of the
foregoing, “working time” does not include authorized
break or meal periods or any other specified periods dur-
ing the work day when the associate/team member prop-
erly is not engaged in performing work tasks. Associ-
ates/team members shall not at any time engage in distri-
bution of any materials of any sort in any work areas.
To further explain to the general public our general
policy, we post the following notice:
NOTICE TO THE PUBLIC
Solicitation or distribution of literature or other matter
and trespass by members of the public and/or non-Meijer
employees is prohibited on this property.
Within 2 weeks after the October 20 letter was issued, Cald-
well ran into Evans and asked for clarification of the letter.
Evans referred Caldwell to Mike Sullivan, the building 802
supervisor. Caldwell complied and spoke with Sullivan. Spe-
cifically, Caldwell wanted to know whether the letter author-
ized solicitation in the distribution facility parking lots. Sulli-
van said he would consult with Jamrog and get back to him.
Within a day, Sullivan informed Caldwell he could distribute
literature in the distribution facility parking lots, with certain
restrictions: the distribution had to be during nonworktime;
flyers could not be placed on windshields; and neither harass-
ment nor littering would be permitted.7 Nevertheless, after the
October 17 incident, Caldwell stopped distributing literature in
the distribution facility parking lots. Caldwell’s inaction was
attributable to a change in his work schedule, which made it
made difficult to catch other employees during shift changes,
and “a lack of positive response” from employees. It was not
attributable to the October 20 letter.8
C. The Retail Store Parking Lot
The October 20 letter and Sullivan’s subsequent statement to
Caldwell informing him that he could solicit coemployees in
the distribution facility parking lots reaffirmed the Respon-

7 The exact date of Caldwell’s request for clarification of the Octo-
ber 20 letter was unknown. Caldwell estimated that it occurred
“roughly two weeks” later, while Sullivan testified that Caldwell ap-
proached him later that week or the following week. The exact timing
of their conversation is inconsequential. Tr. 25–26, 106–107.
8 At the hearing, Caldwell claimed that the October 20 letter deterred
him from further distribution of union literature. Tr. 51. However, he
conceded in his December 19 affidavit that he stopped distributing
literature due to a change in his schedule to a 6-day workweek, which
made it difficult to “catch other employees as they begin and end their
shifts.” Tr. 56–57.
dent’s prohibition against solicitation and distribution in the
Respondent’s store parking lots.9 Respondent’s rationale for its
no-solicitation policy in store parking lots, as stated in the team
member handbook, is that those areas constitute work areas. In
determining whether its store parking lots constitute work ar-
eas, a review of the activities at one of the Respondent’s typical
Dayton-area stores is appropriate.
A typical store operated by the Respondent in the Dayton
area is store 102 in Kettering.10 Store 102 is open 24 hours a
day, 7 days a week. The store occupies a 4.5-acre portion of the
46-acre property. The store’s parking lot extends over 10–15
acres and has approximately 1000 parking spaces. The remain-
der of the property consists of wooded areas, grass, and reten-
tion ponds.11
The type of work performed in the store 102 parking lot con-
sists of periodic work activity and sporadic work activity. Peri-
odic work activities are performed by utility clerks and security
guards. Security guards periodically patrol the parking lot,
while utility clerks push and collect shopping carts. Each store
utilizes approximately 50 to 80 utility clerks. Each utility clerk
collects approximately 86 shopping carts per hour, helps cus-
tomers load purchases into vehicles about 30 times per work-
day, and collects trash. In addition, employees from the Re-
spondent’s gas station on the outer edge of the property carry
cash or materials through the parking lot to or from the store.
Sporadic activities are performed by utility clerks and contrac-
tors. Utility clerks occasionally trim bushes and trees, and
shovel snow in limited areas—along the front of the store, in
front of fire exits, and handicapped parking spaces. They wear
safety reflective vests to make them visible to moving vehicles.
Contractors are employed to mow grass, paint stripes, and
clean, sweep, or plow snow in the parking lot.
Portions of the parking lot and areas immediately outside the
store are also used sporadically for displaying, selling and stor-
ing products, and promotional activities.12 Seasonal products,
such as lawnmowers, gas grills, swing sets, and pools, are dis-
played between the two entrances in front of the stores. Store
clerks occasionally operate periodic garden and sidewalk sales.
In addition, companies such as NASCAR, United Way, and
Coca Cola are permitted to hold promotional events in the park-
ing lot.
On an average day, store 102’s parking lot experiences sig-
nificant customer and employee activity. Store 102 has ap-
proximately 7000 daily transactions; on Saturdays, it averages
9000–9500 transactions. During holiday seasons, the store has

9 As previously discussed, the letter and Sullivan’s statement assured
Caldwell of his Sec. 7 right to distribute and solicit in the distribution
facility parking lot. However, the no-solicitation policy contained in
Respondent’s employee handbook, which remained in effect, continued
to prohibit such activity in all of Respondent’s facilities.
10 Ken Barclay, an employee of nearly 21 years, has been the direc-
tor of six Meijer stores over the past 10 years. He testified that the
Kettering store was similar in size and layout to the other four Dayton-
area stores located at Harshman Road and in Springboro Pike, Engle-
wood, Beaver Creek, and Troy.
11 R. Exh. 3.
12 Jamrog could not say the frequency that Respondent has such
vendor events or sidewalk sales in the parking lot.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD922
in excess of 10,000 daily transactions. The number of store
transactions generally reflects the number of customer vehicles
utilizing the parking lots. However, while cold statistics are
informative, the most meaningful evidence of a day in the life
of store 102’s parking lot can be gleaned from security video-
tape generated by the Respondent in the regular course of busi-
ness.
Videotape of store 102’s parking lots during the period of
4:24 to 7 p.m. on May 15, 2004, depicts typical customer and
employee activity on a Saturday afternoon.13 The videotape,
which runs at double the speed of real time, shows footage
from three video cameras positioned on the store’s roof. The
cameras continuously rotate in providing varying views of the
main parking area in front of the store and the garden center
parking lot adjacent to the right side of the store.14 The camera
on the left side of the store is marked “west.” The camera on
the right side of the building is marked “east,” while the camera
in between them is marked “center.” During the videotaped
period, the parking lot was approximately half full. All three
cameras revealed a significant amount of empty parking spaces
in the outer portions of the parking lot. The west camera
showed vast open areas on the left side of the main parking
area. The east camera showed vast open areas on the right side
of the main parking area and the garden center parking area.
The cameras also showed a constant, but slight, flow of pedes-
trian and vehicular traffic throughout the main parking lot.
Utility workers can be seen pushing shopping carts on four
occasions.15
Store 102 has approximately 425 employees, 90–95 percent
of whom are covered by the Respondent’s collective-bargaining
agreement with the Union. However, one seeking to solicit
employees in the parking lot during nonworktime would not be
able to distinguish every employee from a customer for several
reasons. First, store employees park throughout the parking lot.
The Respondent urges employees to park in the outer portions
of the parking lot, but they generally ignore that request. Sec-
ond, employees start or leave work at various times, do not
have set shifts and enter and leave each store through the same
entrances and exits used by customers. Lastly, while some em-
ployees arrive to or leave work wearing the Respondent’s man-
datory clothing,16 others change into or out of their work
clothes in the store locker room.

13 The videotape was received in evidence with the understanding
that the parties would subsequently determine what portion of the tape
to submit into the record. In a letter, dated June 2, 2004, the parties
reported their agreement that the portion of the tape between 1624
hours (4:24 p.m.) and 1900 hours (7 p.m.) be received in evidence. The
letter has been received in evidence as Jt. Exh. 2.
14 None of the videotapes cover the loading docks on the left side of
the store.
15 Barclay opined that the activity shown on the videotape is “an av-
erage of the day,” while the period of 5:30 to 6:30 p.m. is the busiest
time of the day. Tr. 181–184; R. Exh. 4.
16 Store employees are required to wear name badges on company-
issued red or teal colored polo shirts and black or khaki colored pants.
III. DISCUSSION
A. The October 17 Incident
The General Counsel asserts that the Respondent violated
Section 8(a)(1) by prohibiting Caldwell from distributing litera-
ture and soliciting union membership in the distribution facility
parking lot on October 17. The Respondent does not dispute
that Caldwell engaged in concerted, protected activity by dis-
tributing union flyers in the distribution parking lot on October
17. However, it does contend that Evans, the security manager
who directed Caldwell to leave the parking lot that day, was
unaware Caldwell had been engaging in union activity. Fur-
thermore, assuming, arguendo, that Evans knew about Cald-
well’s union activity, the Respondent took prompt and effective
action to repudiate any unlawful conduct.
Section 7 of the Act provides, in pertinent part, that
“[e]mployees shall have 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 bargain-
ing or other mutual aid or protection, and shall also have the
right to refrain from any or all such activities.” An employer
who interferes with, restrains, or coerces employees in the ex-
ercise of such rights violates Section 8(a)(1). The test does not
turn on the employer’s motive or whether the coercion suc-
ceeded or failed, but rather, whether the employer engaged in
conduct, which it may be reasonably said, tends to interfere
with the free exercise of employee rights under the Act. Gissel
Packing Co., 395 U.S. 575 (1969); Almet, Inc., 305 NLRB 626
(1991); American Freightways Co., 124 NLRB 146, 147
(1959).
The evidence established that Evans was not aware of Cald-
well’s union activities when he told him to leave the distribu-
tion facility parking lot on October 17. Evans testified credibly
that he approached Caldwell after receiving a telephone call
from Cullen complaining that an unnamed person was bother-
ing people in the parking lot. Evans conceded he did not see a
disturbance, but approached Caldwell because he saw him
standing next to his truck, which was parked in a strange spot in
the travel portion of the parking lot; Patton was standing
nearby. Evans also knew Caldwell worked on the other side of
the distribution facility and asked if he was “on the clock.”
After Caldwell informed him that he was on nonworktime,
Evans told him to leave. Caldwell responded that “we’ll see
about that” and drove away. It was after Caldwell left that Ev-
ans asked Patton what she had in her hand. Patton showed Ev-
ans the flyer and agreed to let him have it. Evans then submit-
ted the flyer to management for advice as to how his staff
should handle solicitation in the future. Evans’ version of the
events was corroborated by Patton, whom I also found credible.
Caldwell, on the other hand, was not credible in his rendition
of the facts surrounding the incident of October 17. As previ-
ously explained, that portion of Caldwell’s trial testimony was
fraught with inconsistencies. In his sworn affidavit to the Gen-
eral Counsel on December 19, Caldwell omitted any reference
to the following events as alleged at trial: that Evans ap-
proached him in the parking lot, placed an arm on his shoulder
and asked what he had in his hand; and that Caldwell then
MEIJER, INC. 923
handed Evans a flyer and told him he was passing out applica-
tions for Real Union. Accordingly, the General Counsel failed
to meet his burden of proving that Evans knew Caldwell was
engaged in concerted protected activity when he asked him to
leave the parking lot on October 17.
Assuming, arguendo, that the General Counsel had demon-
strated knowledge on the part of Evans at that time, the October
20 letter repudiated his illegal conduct. The letter was sent to
Caldwell by Jamrog the next business day and assured Caldwell
that, in the future, he would be permitted to distribute literature
in the distribution facility parking lot. Accordingly, the October
20 letter was timely and cured any violation of Section 8(a)(1)
with respect to the October 17 incident. Passavant Memorial
Area Hospital, 237 NLRB 138, 139 (1978); Atlantic Forest
Product, Inc., 282 NLRB 855, 872 (1977).
B. The Respondent’s Distribution and Solicitation Policy
The General Counsel also asserts that the Respondent vio-
lated Section 8(a)(1) by promulgating and maintaining a rule
prohibiting employees from distributing any literature in the
parking lots and other exterior nonwork areas of its retail stores.
The Respondent contends that it may legally maintain such a
policy because its store parking lots constitute work areas
“where therefore, solicitation and distribution could create traf-
fic and safety hazards and embroil customers in union organiza-
tional activity.”17
The Section 7 right of employees to engage in union solicita-
tion at their place of business is limited only by an employer’s
legitimate interest of maintaining production and workplace
discipline. United Services Auto Assn., 340 NLRB 784 (2003);
Daylin Inc., 198 NLRB 281 (1972). Accordingly, the Board has
long presumed lawful rules restricting union solicitation or
distribution when employees are expected to be working. Star-
Brite Industries, 127 NLRB 1008, 1010 (1960). Employers may
also ban solicitation and distribution in the working areas of
their facilities in order to prevent hazards to production.
Stoddard-Quirk Mfg., 138 NLRB 615, 619 (1962). However, an
employer violates Section 8(a)(1) if it fails to enforce a no-
solicitation rule against similar activities, while simultaneously
enforcing the rule against union solicitation or distribution. St.
Vincent’s Hospital, 265 NLRB 38, 40 (1982).
On the other hand, a prohibition on communication among
employees cannot be so broad that it prohibits communication
during paid nonwork periods such as breaks and lunchbreaks or
during unpaid work periods, such as before and after work, if
the employees are lawfully on the employer’s premises. Such
broad prohibitions are presumptively invalid. Laidlaw Transit,
Inc., 315 NLRB 79, 82 (1994); St. John’s Hospital, 222 NLRB
1150 (1976). Similarly, absent adequate business justification,
it is a violation of 8(a)(1) for an employer to promulgate, main-
tain, or enforce a rule prohibiting off-duty employees from
soliciting or distributing literature in the employer’s parking
lots and other outside nonwork areas. St. Luke’s Hospital, 300
NLRB 836, 837 (1990), Orange Memorial Hospital, 285
NLRB 1099 (1987); Tri-County Medical Center, 222 NLRB
1089 (1976). Such Section 7 organizational rights also attach to

17 R. Br. at 21.
off-duty employees, like Caldwell, seeking such access at fa-
cilities other than those where they work. Hillhaven Highland
House, 336 NLRB 646, 648 (2001).
Nevertheless, the Respondent maintains that its parking lot
and the exterior areas around its stores are working areas. In
order to constitute a work area, an area must be integral, not
merely incidental, to the employer’s main function. Santa Fe
Hotel & Casino, 331 NLRB 723, 730 (2000) (security, mainte-
nance, and gardening at entrances outside hotel-casino inciden-
tal to main functions of lodging and gambling); U.S. Steel
Corp., 223 NLRB 1246, 1248 (1976) (work tasks such as
“cleaning up, maintenance or other incidental work, are per-
formed at some time in almost every area of every company”);
National Steel Corp., 173 NLRB 401, 403 (1968), enfd. 415
F.2d 1231 (6th Cir. 1969) (existence of security guards did not
convert parking lot, streets, passageways, and sidewalks into
working areas).
The primary purpose of the Respondent’s retail store parking
lots is to provide customer and employee parking. They are also
places where employees perform a variety of periodic or spo-
radic work activities. Utility clerks periodically retrieve shop-
ping carts and, as necessary, assist customers load purchases.
Sporadically, the Respondent’s employees display merchandise
or conduct sidewalk sales and other promotional events. Unlike
the stores, there are no employees permanently stationed in the
parking lots, there are no cash registers and no constant cus-
tomer-employee interaction. There are also occasions when
other companies are permitted to hold promotional events, like
NASCAR racing, United Way fundraisers, and Coca Cola-
sponsored children’s activities. However, these functions are
merely incidental to the Respondent’s primary function—the
business of selling merchandise inside its stores. Indeed, the
Respondent treats its parking lots as an incidental function by
permitting its employees to flout the directive to park on the
outer portions, thereby preventing customers from parking
closer to the store.
As depicted in videotape of store 102’s parking lot, there is a
continuous, albeit dispersed, flow of pedestrian and vehicular
activity throughout the parking lot on a typical day. However,
the activity shown failed to reveal the performance of a signifi-
cant amount of work in the parking lot, which was half full.
Utility clerks collected and pushed shopping carts on several
occasions, but none are seen assisting customers. There was no
evidence of a sidewalk sale or any type of promotion. There
was also no indication of how union solicitation or literature
distribution to off-duty employees would create a littering haz-
ard and safety risks for utility workers and customers.
Under the circumstances, the Respondent failed to demon-
strate a business justification for its broad prohibition against
the solicitation and distribution in the Respondent’s store park-
ing lots and exterior nonworking areas. Ohio Masonic Home,
290 NLRB 1011 (1988). Furthermore, the policy, as set forth in
the Respondent’s employee handbook, remains in effect as to
all of the Respondent’s facilities, including the distribution
center. The October 20 letter to Caldwell did nothing to modify
that policy, which continues to apply to all employees. Accord-
ingly, the Respondent’s no-solicitation policy is overly broad as
it applies to union solicitation and distribution, during employ-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD924
ees’ nonworktime, in the distribution facility parking lot and its
retail stores.18 On this basis, the Respondent’s policy consti-
tutes an unfair labor practice in violation of Section 8(a)(1).
However, the legal consequences flowing from Respondent’s
illegal no-solicitation/distribution rule do not end there.
The employee handbook rule prohibiting solicitation or dis-
tribution during the working time is presumptively valid on its
face. Nevertheless, Respondent disparately enforced the rule by
agreeing to a collective-bargaining provision permitting em-
ployees, while working, to engage in campaign activity on be-
half of the Union—the Active Ballot Club—but then refusing
to permit employees in other types of union solicitation. Other
solicitation would include Caldwell’s criticism of the Union
and advocacy for a new union. The record is devoid of any
evidence tending to show that such a ban on Section 7 rights—
in contrast to specific advocacy for the Active Ballot Club—is
necessary for the operation of its stores or for the maintenance
of discipline or security in its parking lots. Accordingly, the
presumption of validity attaching to Respondent’s no-
solicitation rule as it related to working time activity was in-
validated by its unfair and disparate application. Capitol Re-
cords, Inc., 233 1041, 1045–1046 (1977), citing Star-Brite
Industries, 127 NLRB at 1010 (“presumptions [of validity at-
taching to a rule prohibiting solicitation] may be overcome . . .
by evidence establishing an unfair application of the rule”).
Accordingly, I conclude that by disparately enforcing the hand-
book rule to preclude solicitation and distribution not otherwise

18 The consolidated complaint only alleged a violation as to the ap-
plicability of Respondent’s policy to the parking lots and other exterior
areas of its stores. However, the issue was fully litigated and evidence
received of the employee handbook rule regarding solicitation and
distribution at all of Respondent’s facilities. See Facet Enterprises v.
NLRB, 907 F.2d 963, 969–975 (10th Cir. 1990).
related to the Active Ballot Club, the Respondent violated Sec-
tion 8(a)(1).19
CONCLUSIONS OF LAW
1. Meijer, Inc. is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. By promulgating and maintaining a policy prohibiting
employees from engaging, during nonworking time, in solicita-
tion and the distribution of literature in the parking lots and
other exterior areas of its retail stores and distribution facilities,
the Respondent has engaged in unfair labor practices affecting
commerce within the meaning of Section 8(a)(1) of the Act.
3. By promulgating, maintaining and enforcing a policy pro-
hibiting employees from soliciting during working time, while
simultaneously permitting employees to engage in a specific
type of solicitation on behalf of the Union during working time,
the Respondent has engaged in unfair labor practices affecting
commerce within the meaning of Section 8(a)(1) of the Act.
4. By engaging in the conduct described above, the Respon-
dent has engaged in unfair labor practices affecting commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
5. The Respondent did not further violate the Act as alleged
at paragraph 4(a) of the consolidated complaint.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
[Recommended Order omitted from publication.]

19 The theory of disparate enforcement of Respondent’s no-
solicitation rule to working and nonworkingtime activities was neither
pled nor argued by the General Counsel. However, this issue was also
fully litigated with the testimony from both sides regarding the Active
Ballot Club.