NOTICE: This
opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive
Secretary, National Labor Relations Board,
Wal-Mart Stores, Inc. and United Food and Commercial Workers International
August 20, 2007
DECISION AND ORDER
By Chairman Battista and Members Schaumber and Walsh
On September 24, 2002, Administrative Law Judge Albert A. Metz issued the attached decision. The Respondent filed exceptions and a supporting brief. The General Counsel and the Charging Party each filed an answering brief to the Respondent’s exceptions, and the Respondent filed a brief in reply to the General Counsel. The General Counsel and the Charging Party each filed cross-exceptions and a supporting brief. The Respondent filed answering briefs to the cross-exceptions of the General Counsel and the Charging Party.
The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.
The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings,[2] and conclusions only to the extent consistent with this Decision and Order and to adopt the recommended Order as modified and set forth in full below.
i. summary findings and rulings
This case involves allegations that between June 2000 and
May 2001 the Respondent, Wal-Mart Stores, Inc., violated Section 8(a)(1) and
(3) of the Act during a campaign by the United Food and Commercial Workers International
Union (the Union) to organize the Respondent’s employees at three of its retail
stores in Las Vegas, Nevada. The stores
were located at
Regarding the allegations of unfair labor practices at South Rainbow, we (1) affirm the judge’s finding that the Respondent violated Section 8(a)(1) on June 17, 2000, by disparaging employee Avis Hammond’s union activity and inviting him to quit, but (2) reverse the judge’s finding that the Respondent violated Section 8(a)(1) on July 12 and August 30, 2000, by warning Hammond for distributing union literature.[3] We adopt the judge’s dismissals of the allegations that the Respondent (1) promulgated and enforced an unlawful solicitation and distribution rule on July 12, 2000 (in addition to disparately enforcing that rule), and (2) engaged in surveillance of union activity in the store breakroom.[4]
Regarding the allegations at East Tropicana, we unanimously (1) affirm the judge’s finding that the Respondent violated Section 8(a)(3) and (1) on October 20, 2000, by warning employee Diana (Angie) Griego for solicitation and distribution, and (2) reverse the judge’s finding that the Respondent did not violate Section 8(a)(3) and (1) on December 15, 2000, by issuing a written warning to Griego for union solicitation and distribution. We reverse the following violations found by the judge: (1) that the Respondent violated Section 8(a)(1) on April 26, 2001, by creating the impression of surveillance of its employees’ union activity,[5] and (2) that the Respondent violated Section 8(a)(1) on April 10 by denying Griego’s request for a coworker representative to be present at an interview with managers.[6]
We unanimously adopt the judge’s finding that the Respondent violated Section 8(a)(1) in December 2000 by threatening employee Valerie Gonzalez with withdrawal of benefits. We also unanimously adopt the judge’s dismissal of allegations that the Respondent (1) promulgated and enforced an unlawful solicitation and distribution rule on October 28, 2000, in mid-November 2000, and on December 15, 2000, March 10 and May 17, 2001;[7] (2) created the impression of surveillance in early November 2000; (3) prohibited union-related conversation outside the breakroom on May 17, 2001; and (4) engaged in surveillance of union activity in the breakroom.[8]
Regarding the allegations at West Craig, we unanimously affirm the judge’s finding that the Respondent violated Section 8(a)(1) on December 12, 2000, by interfering with union handbilling, as well as his dismissal of the allegation that the Respondent unlawfully created the impression of surveillance by observing the handbilling.
Finally, we amend the judge’s remedy in two respects. First, we remove the provision ordering the Respondent to offer Griego instatement to the position of pharmacy clerk, and we limit her entitlement to backpay and benefits to the period from the date she was denied this position to the date she voluntarily resigned from the Respondent’s employ. Second, we shall order the Respondent to post separate notices conforming to the specific violations found at each store.[9]
ii. unfair labor practices
A. South Rainbow
1. Disparagement and invitation to quit
On June 17, 2000, Avis Hammond, who was employed as a
greeter at the Respondent’s South Rainbow store, brought 20 copies of a union
press release to the store. The press
release, entitled “Wal-Mart Layoffs Approaching ‘Critical Mass’ for Over-worked
Workers Says UFCW,” alleged that the Union had received numerous reports of layoffs
from aggrieved Wal-Mart employees and that, because employees felt unable to
talk to management about the issue, they were “coming to the union in droves.” The press release included the addresses of
two websites that employees could use to contact the
The Respondent excepts to the judge’s finding on the
ground that
The Respondent and our dissenting colleague further contend that Salby’s conduct constituted “free speech,” protected under Section 8(c). We disagree. Although Section 8(c) provides that “[t]he expressing of views, argument, or opinion” are not unlawful if “such expression contains no threat of reprisal or force or promise of benefit,” Salby’s conduct was not merely the expression of personal opinion, but both disparaged Hammond for engaging in protected activities and suggested that his protected activity was incompatible with continued employment. We therefore adopt the judge’s finding that,
through Salby’s conduct, the
Respondent violated Section 8(a)(1) of the Act by disparaging
2. Warnings for solicitation and distribution
In July 2000, employee Maxine Matervich reported to the
Respondent that, while she was working in her regular work area,
Although the judge credited evidence that
The Respondent excepts to the judge’s finding, arguing,
inter alia, that the extent of unpunished nonunion solicitation was too limited
to show that the Respondent’s discipline of
It is well settled that “isolated incidents of digression
from a no-solicitation rule . . . do not reflect the type of widespread
worktime solicitation indicative of disparate application of the rule.” Albertson’s
Inc., 289 NLRB 177, 191 (1988).[14] Here, the only evidence of tolerated nonunion
solicitation is Sorensen’s testimony that a single employee—Robinson—sold
B. East Tropicana
1. October 20, 2000 warning for solicitation
Diana (Angie) Griego was employed as a cashier at the Respondent’s Tropicana store during the union organizing drive. She campaigned openly for the Union and, according to the judge’s uncontested findings, the Respondent—subsequent to the October 2000 warning—violated Section 8(a)(3) by denying her the position of pharmacy clerk in January 2001 and violated Section 8(a)(1) by prohibiting her from soliciting customers outside the store in March 2001.
On October 20, 2000, East Tropicana Store Manager Mark Dutton gave Griego a “verbal coaching” for allegedly engaging in union solicitation and distribution on the sales floor. Dutton testified that he had received complaints from five employees that Griego engaged in such activity and that Assistant Manager Sheryl Seals told him that another three employees had also complained about Griego’s solicitation and distribution. Neither Seals nor any of the employees who allegedly complained about Griego’s conduct testified at the hearing. Griego denied that she violated the Respondent’s solicitation and distribution policy.
Crediting Griego’s denial, the judge found that the Respondent failed to present sufficient evidence to show that Griego in fact violated its policy, and that the General Counsel proved by a preponderance of the evidence that the warning was issued in retaliation for Griego’s union activity. The judge therefore concluded that the warning violated Section 8(a)(3) and (1) of the Act.
The Respondent excepts to this finding on the ground that the judge misallocated the burden of proof. In particular, the Respondent cites Burnup & Sims, 379 U.S. 21, 23 fn. 3 (1964), for the proposition that where an employer disciplines an employee on the basis of a reasonably held good-faith belief that the employee has engaged in misconduct, the General Counsel has the burden of proving that the employee did not, in fact, engage in that misconduct. The Respondent also contends that, at the time that the warning was issued, Griego did not deny having violated the solicitation and distribution policy.
We affirm the judge’s finding. The Burnup & Sims analysis is normally reserved for violations of Section 8(a)(1), and the judge found that this discipline violated Section 8(a)(3). Nevertheless, even under a Burnup & Sims analysis, we find that the Respondent’s defense would fail. That is, assuming that the Respondent demonstrated its initial good-faith belief that Griego had violated its solicitation and distribution policy, the General Counsel established that this belief was mistaken because Griego credibly denied violating the Respondent’s solicitation and distribution policy during the relevant timeframe. Accordingly, even assuming that the Burnup & Sims framework is the correct analysis, the judge properly found that the Respondent violated the Act by disciplining Griego on October 20.
2. December 15, 2000 warning for distribution
On December 15, 2000, employee Griego was summoned to a meeting with Managers Dutton and Seals in Dutton’s office, at which she was issued a “written coaching” for distributing union material on the sales floor in violation of the Company’s solicitation and distribution policy. The written coaching referenced Griego’s prior coaching on October 20 and stated, “[t]he next level of corrective action [will] be: Decision making day” if Griego persisted in this conduct.
The judge dismissed the allegation that Griego’s December 15 warning violated Section 8(a)(3) and (1) of the Act. He did so on the ground that Griego had, on this occasion, violated the Respondent’s solicitation and distribution policy, and that the evidence did not demonstrate disparate treatment.
The General Counsel and the Charging Party except to this dismissal, contending that Griego’s discipline was more severe than would have been warranted under a nondiscriminatory application of the Respondent’s policies, because it built upon the unlawful discipline issued to her on October 20. We find merit in this argument.
As discussed above, on October 20, 2000, the Respondent gave Griego a “verbal coaching” for violations of its solicitation and distribution policy that she had not, in fact, committed. Therefore, but for that unlawful discipline, Griego would have received, at most, a “verbal coaching” on December 15, instead of the next step in the progressive discipline procedure, a “written coaching.”[17] Accordingly, because the Respondent disciplined Griego on December 15 more severely than it would have done had it not earlier discriminated against her, the December 15 discipline was discriminatory. Accordingly, we reverse the judge and find that the December 15 discipline violated Section 8(a)(3) and (1) of the Act.
3. April 26, 2001 creation of the impression
of surveillance
On April 26, after Griego returned from lunch with fellow
On those facts, the judge found that Comitor’s conduct violated Section 8(a)(1) by creating the impression of surveillance in light of her “concentrated vigilance of the employees’ union activities.” The Respondent excepts to this finding on the ground that the union activity at issue was conducted openly and that Comitor did nothing out of the ordinary by observing it.
Contrary to the judge and our dissenting colleague, we find that Comitor’s conduct did not create an unlawful impression of surveillance. It is well settled that management officials do not create an unlawful impression of surveillance by appearing to monitor union activity that is conducted openly, particularly when it occurs on company premises, unless the officials act in a manner that is out of the ordinary. See, e.g., Rogers Electric, Inc., 346 NLRB No. 53, slip op. at 2 (2006); Loudon Steel, Inc., 340 NLRB 307, 313 (2003). Here, Griego handed out a brightly colored union pen openly on the sales floor, a part of the store where employees could reasonably expect management officials to be present in the ordinary course of business. Moreover, the credited evidence does not support a conclusion that Comitor’s behavior was out of the ordinary.
We recognize that there were two instances in which Comitor observed union activity that day. However, those instances were neither alleged nor found to be surveillance or creating the impression of surveillance. For all that appears they were a consequence of normal observation. Given the openness of Griego’s union activities, and the likelihood that Comitor’s duties as an assistant manager would involve the observation of employee activity throughout the store, those two instances are insufficient to establish that her observation of Griego’s activity,[19] reasonably created on impression that Comitor was spying on employees.
Accordingly, we reverse the judge and find that the Respondent did not create an unlawful impression of surveillance by speaking to Griego after observing her hand out a union pen.
C. Seizure of Handbills at West Craig
On December 12, 2000, Norine Sorensen, whom the Respondent employed at its South Rainbow store, was distributing union handbills outside the Respondent’s West Craig store when she was approached by Tiffani McClendon, a management trainee at that store. Sorensen had met McClendon once before but did not recognize her. As McClendon approached, Sorensen asked her if she was a Wal-Mart employee. McClendon told her that she was and asked Sorensen if she was from store 1584 (South Rainbow). Sorensen told McClendon that she was from that store and began handing McClendon a handbill. McClendon angrily asked Sorensen, “What are you out here doing this for?” grabbed all of Sorensen’s handbills, and drove off in her car.
The judge found that McClendon was the Respondent’s agent during this encounter and that, by her conduct, the Respondent coerced and interfered with union activity in violation of Section 8(a)(1) of the Act. In finding that McClendon was the Respondent’s agent, the judge relied on evidence showing that the Respondent’s management trainees, including McClendon, were aligned with management rather than with the Respondent’s statutory employees. In particular, the judge relied on evidence showing the management trainees’ responsibility for directing employees’ work, their presence at disciplinary meetings as representatives of management, their longer work hours, higher pay, and different dress from employees, and their attendance at management meetings. The judge also relied on evidence that the Respondent instructed management trainees to report on union activity with the goal of “stopping” it.
In its exceptions, the Respondent argues, inter alia, that it was not liable for McClendon’s seizure of the flyers because the judge erred in finding that she had apparent authority to take this action on the Respondent’s behalf. The Respondent contends that the judge’s finding was incorrect as a matter of law because the General Counsel presented no evidence that the Company manifested to Sorensen, in particular, that it had authorized management trainees in general to seize union flyers, or that Sorensen believed—either actually or reasonably—that McClendon had authority to do so.
For the reasons stated below, we find that McClendon was the Respondent’s agent when she seized the flyers from Sorensen because she had actual authority to take this action on the Respondent’s behalf. Because we find that McClendon possessed actual authority, we need not consider the Respondent’s argument that she acted without apparent authority.
The Board applies common law agency principles to determine the existence of an agency relationship. See, e.g., Tyson Fresh Meats, Inc., 343 NLRB 1335, 1336 (2004). It may, therefore, find an agency relationship between the purported agent and the principal where the agent possesses either actual or apparent authority to act on the principal’s behalf:
[A]ctual
authority refers to the power of an agent to act on his principal’s behalf when
that power is created by the principal’s manifestation to him. That
manifestation may be either express or implied. Apparent authority, on the
other hand, results from a manifestation by a principal to a third party that
another is his agent.
For
responsibility to attach under either theory of agency, it is not necessary that the
principal expressly authorize, actually desire, or even know of the action in
question. A “principal is responsible for
its agent’s actions that are taken in furtherance of the principal’s interest
and fall within the general scope of authority attributed to the agent.” Tyson
Fresh Meats, supra, 343 NLRB at 1337, quoting Bio-Medical of Puerto Rico, 269
NLRB 827, 828 (1984). Moreover, under the common law of agency, a
principal may be responsible for its agent’s actions if the agent reasonably
believed from the principal’s manifestations to the agent that the principal
wished the agent to undertake those actions.
See Restatement 2d, Agency, §
33.
Applying
these principles, we find that the Respondent was liable for McClendon’s
seizure of the flyers, because the General Counsel has shown that McClendon’s
action was within the scope of her actual authority. In making this finding, we rely on credited
evidence that the Respondent communicated to McClendon, along with other management
trainees, that the Company was opposed to unionization and that trainees were to
report on union activity with the goal of “stopping” it. Given that evidence, we find that, even
though there is no record evidence that the Respondent expressly authorized
McClendon to seize the flyers, McClendon would reasonably have believed that
the Respondent desired her to do so. We
therefore affirm the judge’s conclusion that the Respondent violated Section
8(a)(1) through McClendon’s action.
iii. remedial issues
A. Griego’s Entitlement to Reinstatement
According to the judge’s uncontested finding, the Respondent
violated Section 8(a)(3) when it failed to promote Griego to pharmacy cashier
at the
The Respondent excepts to the judge’s recommendation on the ground that, because Griego left her employment with the Respondent voluntarily, she is not entitled to an instatement order nor to backpay beyond the date of her resignation. The General Counsel responds that Griego’s entitlement to instatement and the duration of her entitlement to backpay should be decided at compliance because that is the Board’s usual practice and the record is incomplete regarding the circumstances of Griego’s resignation.
We agree with the Respondent. Contrary to the General Counsel and our
dissenting colleague, it is not the Board’s usual practice to leave to
compliance the issue of whether an employee who voluntarily quits after being
subjected to unlawful discrimination is entitled to an offer of reinstatement
and backpay. Rather, the Board decides
from the record of the merits hearing whether the respondent’s unlawful conduct
caused the employee’s resignation. See,
e.g., Sunrise Senior Living, Inc., 344 NLRB No. 151, slip op.
at 1, 1 fn. 5 (2005), enfd. mem. 183 Fed. Appx. 326 (4th Cir. 2006); Dauman Pallet, Inc., 314 NLRB 185, 187
(1994). If the Board finds
otherwise, it does not order reinstatement,
and it cuts off the Respondent’s backpay liability to the discriminatee as of
the date of the discriminatee’s resignation.
Sunrise Senior Living, supra.
Here, Griego testified that she terminated her employment with the Respondent on the advice of her doctor, and there is no affirmative evidence to show that her resignation was in any way related to the Respondent’s failure to offer her the job of pharmacy cashier.[20] We find, therefore, that her resignation in May was not caused by the Respondent’s unlawful conduct. Accordingly, we amend the Order by removing the requirement that the Respondent offer Griego instatement to the position of pharmacy clerk, and by limiting the Respondent’s backpay liability to the period between its failure to promote Griego to that position and Griego’s resignation.
B. The Notice to Employees
In his recommended Order, the judge required the Respondent to post the same remedial notice at each of the three locations at which he found that the Respondent had committed unfair labor practices. The judge did not explain why a consolidated notice was appropriate.
The Respondent argues that the judge erred in ordering the posting of a consolidated notice, contending that this requirement departs from the Board’s usual practice of directing that remedial notices refer only to the specific violations that occurred at the location where the notice is posted.
Contrary to our dissenting colleague, we find merit in the Respondent’s exception. In cases such as this one, where different violations of the Act are found at various locations in the same geographic area, the Board orders a common notice when it finds “considerable similarity in the nature of the unfair labor practices” committed at the different locations. Albertsons, Inc., 307 NLRB 787 (1992), enft. denied mem. 8 F.3d 20 (5th Cir. 1993); G. C. Murphy Co., 216 NLRB 785 (1975). Where, however, there is only one unfair labor practice common across the different locations, the Board orders the posting of notices conforming to the specific violations found at each store. F. W. Woolworth Co., 173 NLRB 1146, 1146–1147 (1968).
Here, the only unfair labor practice found to have taken
place at more than one location was interference with union handbilling, at
ORDER
The
Respondent, Wal-Mart Stores, Inc.,
1.
Cease and desist from
(a)
Disparaging employees’ union activities or inviting them to quit because they
support the
(b)
Discriminatorily disciplining employees because they have engaged in activities
on behalf of the United Food and Commercial Workers International Union, or any
other labor organization.
(c) Discriminatorily preventing
employees from engaging in solicitations and distributions of union materials
or promulgating and enforcing no-solicitation, no-distribution
rules that are overly broad and discriminatory.
(d) Preventing or hindering
employees from engaging in union activities on the sidewalks and parking lots
in front of Respondent’s stores.
(e) Confiscating union
literature from employees who are lawfully distributing such materials.
(f) Refusing and failing to
select employees for positions in Respondent’s stores because those employees
have engaged in union activities.
(g) Interrogating employees
concerning their union activities.
(h) Threatening employees with
the loss of benefits because they engage in union activities.
(i) 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.
(a) Make Diana (Angie) Griego whole for any loss of earnings and other
benefits suffered as a result of the discrimination against her, from the date
that the Respondent failed to hire her as pharmacy clerk until the date of her
voluntary resignation, with interest as prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987).
(b)
Within 14 days from the date of this Order, remove from its files any reference
to the unlawful denial of the pharmacy clerk position to Diana Griego and the
discriminatory discipline given to Griego and, and within 3 days thereafter
notify her in writing that this has been done and that the discriminatory memos
and warnings will not be used against her in any way.
(c) 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
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.
(d) Within
14 days after service by the Region, post at its stores
in Las Vegas copies of the attached notices:
the notice marked “Appendix A” at the
South Rainbow Boulevard store,
the notice marked “Appendix B” at the East
Tropicana Avenue store, and the
notice marked “Appendix C” at the West Craig Road store.[22] Copies
of the notices, 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 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 covered by any other material. In the event that, during the pendency of
these proceedings, the Respondent has gone out of business or closed any of the
facilities involved in these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notices to all current employees and
former employees employed by the Respondent at the closed facility or
facilities at any time since June 17, 2000.
Excel Container, Inc.,
325 NLRB 17 (1997).
(e) 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.
It is further ordered
that the complaint is dismissed insofar as it alleges violations of the Act not
specifically found.
Dated,
Robert J. Battista, Chairman
Peter
C. Schaumber,
Member
(seal) National
Labor Relations Board
Member Walsh, dissenting in part.
I agree in most respects with my colleagues. I disagree, however, with their refusal to adopt the judge’s findings that the Respondent violated the Act at South Rainbow Boulevard (South Rainbow), by disparately enforcing its solicitation and distribution policy against employee Avis Hammond on July 12 and August 30, 2000, and at East Tropicana Avenue (East Tropicana), by creating an unlawful impression of surveillance through its treatment of employee Diana (Angie) Griego on April 26, 2001. I also disagree with the majority’s refusal to adopt in full the judge’s recommended remedial order: I would grant the standard instatement and make-whole remedy to Griego for the Respondent’s unlawful denial of a pharmacy clerk position to her, and I would require the Respondent to post the same notice to employees at all three stores.
i. unfair labor practices
A. Disparate Enforcement of Solicitation and
Distribution Policy at South Rainbow
The judge correctly found that on July 12 and August 30, 2000, the Respondent violated Section 8(a)(1)
by disparately enforcing its solicitation and distribution policy against
employee Hammond’s union activity. The
judge credited the unrebutted testimony of photo lab employee Norine Sorenson,
that Pam Robinson, an employee and later a management trainee, sold
Sorenson’s testimony establishes that Robinson’s solicitation
was not a one-time incident but a continuing practice. Specifically, Sorenson testified that
Robinson “was selling
B. Creation of the Impression of Surveillance
at
The
judge correctly found that the Respondent created an impression of surveillance
on April 26, 2001, when Assistant Manager Connie Comitor approached employees
Griego, Valerie Gonzalez, and Josepine Ross after Griego gave Ross a pen
bearing a union message, “Be Wise—Organize,” at the entrance to the selling
area, and told them to “take it to the breakroom.” The judge also found that Comitor’s instruction
unlawfully discriminated against union activity because the Respondent did not
restrict the use or exchange of any other kind of pen—a finding to which the
Respondent does not except.
An employer creates an impression of surveillance if employees would reasonably conclude from the employer’s words or conduct that their union activities are being monitored. Mountaineer Steel, Inc., 326 NLRB 787 (1998), enfd. mem. 8 Fed Appx. 180 (4th Cir. 2001). If an employer behaves in a manner that is out of the ordinary as it observes union activities, or by its statements or actions implies that it has done so, it engages in unlawful surveillance or creates an unlawful impression of surveillance, even if the employees’ union activities are conducted openly. Loudon Steel, Inc., 340 NLRB 307, 313 (2003). In determining whether an employer’s observation of open union activity is out of the ordinary, the Board takes into account whether the employer’s observations occurred in connection with other coercive behavior. See Rogers Electric, Inc., 346 NLRB No. 53, slip op. at 2 (2006) (unlawful threats accompanied employer’s display of phone records showing calls made by employees from a company phone in furtherance of their protected activity); Hoschton Garment Co., 279 NLRB 565, 566 (1986) (unlawful attempt to prohibit open union handbilling accompanying observation of that activity); Eddyleon Chocolate Co., 301 NLRB 887, 888, (1991) (unwarranted summoning of police and threat to close plant accompanying observation of open union handbilling).
Here, Griego’s distribution of the union pen was conducted
openly on company premises. However, as
explained below, Comitor’s observation of Griego’s activity, particularly when
combined with Comitor’s prohibition of this activity, would not have reasonably
been perceived as ordinary behavior by management. The Respondent, through Comitor, therefore
created an unlawful impression of surveillance.
First, as Comitor testified, her encounter with Griego
over the pen was the second occasion on which she observed Griego distributing pens that
day. Earlier that day, Comitor observed
Griego giving a union pen to another coworker at another location. The fact that on the same day, on two occasions
in two different places, a company official with overall managerial responsibilities
for a store with some 400 employees was present to observe the union activities
of 1 of the 2 active union supporters at the store would strongly suggest to
employees that Comitor was paying unusual attention to those activities. The reasonableness of that inference is supported
by the fact that Comitor recorded and reported the encounters, because she
“felt it was necessary to have notes taken when we would have any type of
reaction regarding this.” There is no
evidence that Comitor made such notes or reports when she gave similar instructions
to employees on matters unrelated to the
Second, even assuming that Comitor’s repeated overt observations of Griego’s pen distribution were not, in themselves, unusual conduct by a management official, her scrutiny of Griego was combined with a discriminatory attempt to prohibit activity that the Respondent ordinarily–that is, when it was not union related—tolerated. See Hoschton Garment Co., supra at 566; Eddyleon Chocolate Co., supra at 888.
For those reasons, I would find, in agreement with the judge, that Comitor’s overt monitoring of, and intervention against, Griego’s distribution of union pens unlawfully created an impression of surveillance.
ii. remedial issues
A. Griego’s Entitlement to Instatement and Backpay
The Respondent unlawfully denied Griego the position of pharmacy clerk in January 2001. In May 2001, Griego, who was the object of numerous unfair labor practices, resigned her employment with the Respondent. In agreement with the judge, I would leave to compliance the issue of whether the Respondent should be ordered to offer Griego instatement to the position of pharmacy clerk and to make her whole for loss of earnings and benefits pending that offer.
Contrary to my colleagues, the record does not show that Griego’s decision to resign from the Respondent’s employment in May 2001 was the result of medical issues rather than its discrimination against her. According to Griego’s uncontradicted testimony, she applied for the pharmacy clerk position because she saw that job as a step toward her long-term goal of qualifying as a pharmacy technician.4 In light of that testimony, it is not reasonable to assume that the medical issues Griego referred to in her testimony would have motivated her to quit regardless of where she was working for the Respondent in May 2001. In any event, Griego’s testimony that she left the Respondent’s employment after being advised to do so by her doctor was not offered to explain why she quit, but merely to clarify when she did so.5 Indeed, immediately after leaving the Respondent’s employ, she took another job, at Albertson’s Fuel Express. Thus, on the record as it now stands, the majority’s conclusion that Griego would have resigned in any event has little evidentiary support. And that evidence is a slim basis on which to absolve the Respondent from the usual consequences of its admittedly unlawful conduct.
In these circumstances, I would find, in agreement with
the General Counsel, that the record is too unsettled to deprive Griego of
instatement and backpay. Certainly the
judge thought that. Accordingly, I would
adopt the judge’s standard instatement and make-whole remedy. That remedy would allow the Respondent to
litigate at compliance whether Griego would have quit even in the absence of
its unlawful conduct. See
B. The Notice Posting Requirement
The judge correctly recommended that the Respondent be
ordered to post at each of the three stores at issue in this case a single
notice referring to the unfair labor practices committed at all three
stores. Under established precedent, it
is appropriate to order an employer that has contemporaneously committed unfair
labor practices at separate locations to post the same notice at each of those
locations if the unfair labor practices are of a “similarly unlawful character”
and if, because the locations are within the same geographic and corporate
district, there is “at least reasonable cause for concern that the employees of
one store would become aware of the [r]espondent’s similar conduct at the
other[s].”6
In the instant case, both of those factors are
satisfied. First, the Respondent’s
unfair labor practices were of a “similarly unlawful character” because they
all tended to prevent the union from communicating its message to the Respondent’s
employees. Albertson’s, supra at 789.
More particularly, at each of the three stores, the Respondent has been
found to have either directly interfered with union solicitation and
distribution or to have punished or threatened the few employees who engaged in
that activity. Second, given that
violations occurred during the same period, were directed at a single
organizing campaign by a single union, and took place within the same
metropolitan area, there is “at least reasonable cause for concern” that the
employees at each store might become aware of the Respondent’s misconduct at
the other stores.
For those reasons, I would require the Respondent to post a common notice at each of the three stores where it violated the Act.
Dated,
Dennis P. Walsh, Member
National
Labor Relations Board
(