Albertson's, Inc. v. N.L.R.B.

• Decision Date: 10 November 1998
• Docket Number: No. 97-9509,97-9509
• Citation: 161 F.3d 1231
• Parties: 159 L.R.R.M. (BNA) 2865, 136 Lab.Cas. P 10,300 ALBERTSON'S, INCORPORATED, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, United Food and Commercial Workers Union, Local 394, Intervenor.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1231

161 F.3d 1231

159 L.R.R.M. (BNA) 2865, 136 Lab.Cas. P 10,300

ALBERTSON'S, INCORPORATED, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, United Food and Commercial Workers Union, Local 394, Intervenor.

No. 97-9509.

United States Court of Appeals, Tenth Circuit.

Nov. 10, 1998.

Brian Michael Mumaugh (Monique A. Tuttle with him on the briefs), of Holland & Hart LLP, Denver, Colorado, for the petitioner.

Ana L. Avendano, Attorney (Margaret Gaines Neigus, Supervisory Attorney, and Anne Marie Lofaso, Attorney, with her on the brief), of the National Labor Relations Board, Washington, D.C., for respondent.

Robert D. Metcalf, Kathryn M. Engdahl, and Connie L. Howard, of Garber & Metcalf, P.A., Minneapolis, Minnesota, on the brief for intervenor.

Before: SEYMOUR, Chief Judge, McWILLIAMS, Senior Circuit Judge, and MURPHY, Circuit Judge.

SEYMOUR, Chief Judge.

The National Labor Relations Board (NLRB) brought unfair labor practice charges against Albertson's, Inc. (Albertson's) under section 8(a)(1) of the National Labor Relations Act (NLRA), 29 U.S.C. § 158(a)(1). The NLRB's complaint alleged that Albertson's engaged in disparate enforcement of its no-solicitation policy against the union representing Albertson's employees, thereby assisting employees in filing a decertification petition, and engaged in surveillance of employees' union activities by confiscating and photocopying pro-union materials. After a hearing, an administrative law judge (ALJ) issued a decision and recommended order finding that Albertson's had committed unfair labor practices. The NLRB adopted the ALJ's findings of fact, conclusions of law, and recommended order. Albertson's appeals, contending that the NLRB's section 8(a)(1) holdings are contrary to law and not supported by substantial evidence, and that the NLRB improperly held the decertification petition tainted by the alleged unfair labor practices. The NLRB has cross-petitioned for enforcement of its order. We affirm and enforce the NLRB's order.

I.

Albertson's operates a grocery store in Rapid City, South Dakota, where it engages in the retail sale of groceries and employs approximately 100 people. At all times relevant to this litigation, Albertson's had the following "no-solicitation" policy:

Non-employees may not solicit, distribute literature or use sound devices on Company premises at any time.

Employees who are working should not be disturbed, interrupted or disrupted by solicitations or the distribution of literature. Unauthorized presence of any employee in the non-selling areas of the store or in other non-public areas of our facility for any purpose is strictly prohibited unless the employee is on duty, preparing to come on duty, or preparing to leave after having been on duty.

No employee may engage in solicitation of any kind during working time, or while the person(s) he or she is soliciting is on working time. Further, no employee may distribute literature during working time or in working areas (note: working time does not include authorized periods of off-duty times--e.g., meal time, break time, etc.).

Rec., vol. 2, General Counsel's Ex. 2.

According to the findings of the ALJ, ¹ certain Albertson's employees in the spring of 1994 undertook a union organizing campaign. Employee David Dahl spoke with fellow employees about the union and distributed election authorization cards. In March 1994, store director Dan Yeazel informed Dahl that he was displeased about Dahl's union organizing activities. When Dahl asked Yeazel's permission to speak with employees in the break room while they were off the clock, Yeazel refused and suggested that Dahl's pro-union efforts threatened his status with the company. Albertson's later reduced Dahl's hours, resulting in the union's filing of charges with the NLRB and an eventual private settlement agreement.

In June 1994, the union won a representation election and bargained over the course of the next year with Albertson's over the terms and conditions of a collective bargaining agreement. During this time, store cashier Diane Pesek, a local union supporter, became a member of the union negotiating committee and attended bargaining sessions. Sometime in 1994, shortly after the election, Pesek attempted to circulate a petition concerning year-round school in Rapid City. Grocery manager John Binger told Pesek that such solicitation on the sales floor or while Pesek was on the clock violated company policy.

In July 1995, cashiers Gary Wehner and Carmel Lefor became dissatisfied with the union's inability to negotiate a collective bargaining agreement and discussed circulating a decertification petition. Wehner approached Yeazel for information on how to go about decertifying the union and Yeazel gave him the telephone number of the NLRB's regional office. Wehner also spoke with Christopher Yost, Albertson's labor relations representative, who apprized him of the company policy regarding solicitation. Wehner and two others subsequently circulated a decertification petition over a four-day period between July 18 and July 21 and secured 43 signatures, several of which were those of supervisors. Wehner and his colleagues solicited signatures while they were themselves on the clock and solicited others who were on the clock.

It is also clear that several Albertson's supervisors witnessed and participated in on-the-clock solicitation for the decertification petition. On one occasion, supervisor Randy Stewart witnessed but did not prohibit Wehner from attempting to solicit Pesek's signature as she stood in line as a customer to buy groceries during a busy period at the store. ² Pesek testified that the solicitation occurred between 4:30 and 5:00 P.M. and that Stewart was working at a check stand, an indication that the store was busy. On another occasion, Wehner solicited the signature of employee Jerray Bachman in the presence of supervisor Dave Motorude, who also did nothing to stop Wehner. Other supervisors signed the petition while they were working and discussed the petition with other employees who were working. For example, employee Nancy Anderson solicited the signature of liquor store manager Kirk Murphy at approximately 10:00 or 11:00 A.M. while he was waiting on customers. Anderson took over Murphy's check stand while he went to ask managers Yeazel and Stewart whether he was allowed to sign the petition. They informed him that he was permitted to sign and suggested that he should take his break and do so.

On September 15, 1995, shortly following her return from maternity leave, Pesek spoke to union president Tom Johnson about Wehner's decertification efforts. Later, at approximately six o'clock in the evening (an undisputedly busy time at the store), Johnson brought a pro-union petition attached to a clipboard to the check stand where Pesek was working and handed it to her while she was waiting for a customer to sign a check. Pesek then passed the petition to two other employees and asked them to sign it. These events transpired in a period of approximately twenty seconds. Supervisor Connie Mehrer witnessed this exchange and directed supervisor Sally Weaver to find out what was on the clipboard. Although Pesek specifically told Weaver that she was circulating a petition, Weaver confiscated the petition, carried it away, photocopied it, and placed it in the company's safe. When Pesek asked Weaver to return the petition, Weaver informed her that Yeazel had said she could not have it until she got off work and that she was not to have it on the sales floor or at any time she was on the clock.

Based on these facts, the NLRB found that Albertson's had violated section 8(a)(1) of the NLRA by disparately enforcing its no-solicitation policy and by engaging in surveillance of the employees' union activities. The NLRB subsequently ordered Albertson's to cease and desist from these unfair labor practices and to post copies of an appropriate remedial notice. ³

II.

Albertson's contends the NLRB's decision that it violated section 8(a)(1) of the NLRA by disparately enforcing its no-solicitation policy and engaging in unlawful surveillance is not supported by substantial evidence. While our review of the NLRB's legal determinations is de novo, see Medite of New Mexico, Inc. v. NLRB, 72 F.3d 780, 785 (10th Cir.1995), we uphold the NLRB's factual findings if they are supported by substantial evidence in the record as a whole. 29 U.S.C. § 160(e) (1994); see also NLRB v. L & B Cooling, Inc., 757 F.2d 236, 241 (10th Cir.1985) (citing Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951)). " 'Substantial evidence' is evidence that a reasonable mind might accept as adequate to support a conclusion." NLRB v. Oklahoma Fixture Co., 79 F.3d 1030, 1033 (10th Cir.1996) (citing Intermountain Rural Elec. Ass'n v. NLRB, 984 F.2d 1562, 1566 (10th Cir.1993)).

Section 7 of the NLRA protects employees' 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." 29 U.S.C. § 157 (1994). Employers violate section 8(a)(1) of the NLRA if they "interfere with, restrain, or coerce employees in the exercise of [these] rights." 29 U.S.C. § 158(a)(1) (1994). Although it is well established that employers may legitimately prohibit solicitation in working areas during work time, see Republic Aviation Corp. v. NLRB, 324 U.S. 793, 798-99, 65 S.Ct. 982, 89 L.Ed. 1372 (1945), an otherwise valid rule may violate the NLRA if it is enforced in a discriminatory manner, see Midwest Stock Exch., Inc. v. NLRB, 635 F.2d 1255, 1270 (7th Cir.1980). Disparate enforcement in favor of an anti-union solicitation amounts to unlawful assistance by the employer in violation of section 8(a)(1) by giving the impression that the...