Albertson's, Inc.

National Labor Relations Board - Board Decisions

Jul 29, 2005

344 N.L.R.B. 1172 (N.L.R.B. 2005)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
344 NLRB No. 141
1172
Albertson’s, Inc. and Lora Noble. Case 28–CA–16466
July 29, 2005
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS
LIEBMAN AND SCHAUMBER
On May 25, 2001, Administrative Law Judge Jay R.
Pollack issued the attached decision. The Respondent
filed exceptions and a supporting brief, the General
Counsel filed an answering brief, and the Respondent
filed a brief in reply.
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.2
We adopt the judge’s finding that Bev Howey, Re-
spondent’s bookkeeper at store 989, was Respondent’s
agent when she, in effect, instructed Teri Klewin and
Lora Noble, respectively, the scan coordinator and
backup scan coordinator at store 989, not to engage in
protected concerted activities. We further adopt the
judge’s finding that Howey’s statements were attribut-
able to Respondent and that Respondent violated Section
8(a)(1) of the Act through Howey’s statements.
In brief the facts are that, as Respondent’s bookkeeper,
Howey’s duties involved keeping the store accounts and
balancing the books. But Howey had other duties, one of
which was to serve as a witness when Store Manager
Danny Semerjibashian met with female employees in
interviews which involved discipline or counseling. It
was in this capacity that Howey sat in on the May 3,
2000 meetings which Semerjibashian held, first with
Klewin, and then with Noble, and it was in this context
that Howey, consistent with Semerjibashian’s warnings
to Klewin and Noble, instructed each of them not to en-
gage in protected concerted activities. Semerjibashian
did not disavow Howey’s instructions. It is in this con-
text that we must determine whether Howey was acting

1 The Respondent has implicitly excepted to some of the judge’s
credibility findings. The Board’s established policy is not to overrule
an administrative law judge’s credibility resolutions unless the clear
preponderance of all the relevant evidence convinces us that they are
incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd.
188 F.2d 362 (3d Cir. 1951). We have carefully examined the record
and find no basis for reversing the findings.
2 In the remedy section of his decision, the judge found that an ex-
punction provision was necessary to remedy the Respondent’s unlawful
transfer of discriminatee Lora Noble from store 989 to store 958. We
agree. The judge included such a provision in his notice to employees,
but inadvertently omitted an expunction provision from his recom-
mended Order. We shall modify the judge’s recommended Order to
include such a provision.
as Respondent’s agent when she instructed Klewin and
Noble not to engage in protected concerted activities.
We agree with the judge that she was.
In Pan-Oston Co., 336 NLRB 305, 306 (2001) (em-
phasis added), the Board explained the test for determin-
ing agency status:
The Board’s test for determining whether an em-
ployee is an agent of the employer is whether, under
all of the circumstances, employees would reasona-
bly believe that the employee in question was re-
flecting company policy and speaking and acting for
management. Waterbed World, 286 NLRB at 426–
427 (and cases cited therein). The Board considers
the position and duties of the employee in addition
to the context in which the behavior occurred. Jules
V. Lane, 262 NLRB 118, 119 (1982).
. . . . .
Although not dispositive, the Board will consider
whether the statement or actions of an alleged em-
ployee agent were consistent with statements or ac-
tions of the employer. The Board has found that
such consistencies support a finding of apparent au-
thority.
The dissent contends that serving as a “conduit” for
management is a key element in the analysis of whether
an employee is an agent of the employer, and that since
Howey was not such a conduit, she was not Respon-
dent’s agent when she instructed Klewin and Noble at
the May 3 meetings not to engage in protected concerted
activities. We disagree with our colleague’s analysis and
conclusions. There is no requirement in the Board’s test
for agency status that an alleged employee agent must be
a conduit for management in order to be found the em-
ployer’s agent. Rather, as set out above, the test for
agency status is whether the alleged agent’s position and
duties, and the context in which the conduct occurs, es-
tablish that “employees would reasonably believe that
the employee in question was reflecting company policy
and speaking and acting for management.”
Applying this test here, we find, in agreement with the
judge, that Klewin and Noble would reasonably have be-
lieved that Howey was acting for Respondent when she
instructed them not to engage in protected concerted ac-
tivities and that Howey’s conduct is therefore attributable
to Respondent. In reaching this conclusion, we find it
especially significant that, in describing Howey’s duties,
Klewin testified that Howey was “kind of the store direc-
tor’s right hand man” (Tr. 316), and that Noble testified
that Howey “sits in on meetings as witnesses” [sic]. . . .
She does everything” (Tr. 269). Thus, Klewin and Noble
understood that Howey’s duties and authority were sub-
ALBERTSON’S, INC. 1173
stantial, and that one of her duties was to sit in as a witness
at meetings which Semerjibashian held with female em-
ployees. Further, Howey was more than a mere witness
here. First, she was present at the meeting at the behest of
Semerjibashian, apparently in his interest, and not as a
mere neutral observer. Second, her remarks were reflec-
tive of those of Semerjibashian. That is, Semerjibashian
expressed his disapproval of Noble and Klewin complain-
ing about working conditions. Indeed, he sought to sepa-
rate their shifts. Third, when Howey expressed herself on
the same theme, Semerjibashian did not disagree. In these
circumstances, the employees would reasonably under-
stand that Howey was reflecting the wishes of manage-
ment. The fact that this may also have been her personal
opinion simply means that she spoke for herself and man-
agement. Since her remarks were substantively 8(a)(1)
violations, and since she spoke in part for management, a
violation is established.
For these reasons, we adopt the judge’s finding that
Howey was Respondent’s agent at the May 3 meetings
and that her statements to Klewin and Noble are there-
fore atrributable to Respondent. Accordingly, we also
adopt the judge’s finding that Respondent violated Sec-
tion 8(a)(1) through Howey’s instruction to Klewin and
Noble not to engage in protected concerted activities.3
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Albert-
son’s, Inc., Mesa, Arizona, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
Order as modified.
1. Insert the following as paragraph 2(a) of the Order:
“(a) Expunge from our files any and all references to
the unlawful transfer of Lora Noble and notify her in
writing that this has been done and that this unlawful
discipline will not be used against her in any future per-
sonnel actions.”
2. Reletter the following paragraphs accordingly.
MEMBER SCHAUMBER, concurring in part and dissenting
in part.

3 Chairman Battista would reverse the judge’s finding that the Re-
spondent unlawfully threatened employee Noble. Although he agrees
with his colleagues that the Respondent unlawfully transferred Noble,
the alleged “threat” in his view consisted of the Respondent simply
informing Noble that she and employee Klewin were about to be split
up. The separation was unlawful because it was unlawfully motivated.
The statement (that they were to be split up) was factually correct. It
adds nothing to call this a separate and independent violation. Chair-
man Battista would not find an additional violation based on the con-
veyance of this factual information.
I agree with my colleagues that the Respondent vio-
lated Section 8(a)(1) of the Act by creating, however
inadvertently, the impression that its employees’ pro-
tected concerted activities were under surveillance in
mid-March 2000,1 by threatening on May 3 to split up
scan coordinator Teri Klewin and backup scan coordina-
tor Lora Noble, and by then transferring Noble from
store 989 to store 958 on May 5.
I also agree with my colleagues, for the reasons set out
in section 1 below, that Klewin is not a statutory supervi-
sor, and that, as explained in section 2 below, there is no
merit to Respondent’s argument that it lacked knowledge
of Klewin’s and Noble’s protected concerted activities
when it decided to transfer Noble to store 958. However,
for the reasons set out in section 3 below, I do not agree
with my colleagues that Bev Howey, Respondent’s
bookkeeper at store 989, was Respondent’s agent when
she sat in on two May 3 meetings which Store Manager
Danny Semerjibashian held first with Klewin, and then
with Noble. Consequently, I would reverse the judge’s
findings that Howey’s comments at those meetings are
attributable to Respondent and that Respondent violated
Section 8(a)(1) of the Act through Howey’s comments at
those meetings.
I. KLEWIN IS NOT A STATUTORY SUPERVISOR
I agree with the judge and my colleagues that Teri
Klewin, the scan coordinator at store 989, is not a statu-
tory supervisor. Klewin testified that she had been a
scan coordinator for 15 years and that during that time
she had never exercised, or been told that she had the
authority to exercise, supervisory authority (Tr. 163–
174). As the judge found, while Klewin directed the
work of the backup scan coordinator, first Lora Noble
and, after her transfer to store 958 on May 5, Lana Bry-
ant, that direction was routine and did not involve the use
of independent judgment.2 As the judge explained, the

1 All dates refer to 2000, unless otherwise stated.
2 While, as the judge noted, Klewin stated during the investigation
that she was a “supervisor,” and that she “supervised” Noble’s work,
and Noble referred to Klewin as her “supervisor” and her “boss,” the
use of the term “supervisor” does not establish supervisory status
within the meaning of Sec. 2(11) of the Act absent evidence of such
status. See, e.g., Masterform Tool Co., 327 NLRB 1071, 1071–1072
(1999) (footnote omitted), where the Board, in reversing the judge’s
finding that two employees, Rodriguez and Zapata, were statutory
supervisors, explained:
[T]he proper consideration is whether the functions, duties,
and authority of an individual, regardless of title, meet any of the
criteria for supervisory status defined in Section 2(11) of the Act.”
Consequently, that employees may have perceived Rodriguez and
Zapata to be supervisors does not, without more, confer supervi-
sory status on them.
In view of the judge’s finding that Klewin is not a statutory supervi-
sor, I interpret the judge’s statement, at sec. II,D,1, fourth par. of his
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1174
only factor pointing to supervisory status was Klewin’s
participation in Bryant’s discipline in June and August.
In finding that this factor did not evidence the use of in-
dependent judgment to discipline or to responsibly rec-
ommend discipline within the meaning of Section 2(11)
of the Act, the judge found that Semerjibashian made an
independent judgment of Bryant’s job performance and
that Klewin’s role in Bryant’s discipline was merely rep-
ortorial.3
In contending that the judge erred in finding that
Klewin was not a statutory supervisor, Respondent ex-
cepts, inter alia, to the judge’s finding that Klewin’s role
in the issuance of written warnings to backup scan coor-
dinator Bryant in June was merely “reportorial” and did
not involve the use of independent judgment. In support
of this exception, Respondent refers in its exceptions
brief to a portion of the transcript where Semerjibashian,
in response to leading questions from Respondent’s
counsel, testified that he would have had no way of
knowing about Bryant’s work deficiencies if Klewin had
not reported them to him, and that it was Klewin who
recommended to him that Bryant be disciplined. (R.
Exh. Br. at 20; Tr. 862–863.) Respondent then asserts
that after Klewin recommended that Bryant be disci-
plined, Semerjibashian, without making an independent
investigation, asked Klewin to put her “recommenda-
tions” in writing so that he could discipline Bryant. Re-
spondent states that in response to this request, “Klewin
typed up her analysis of Bryant’s performance problems,
and Semerjibashian used that document to prepare two
write-ups.” (R. Exh. Br. at 19.) Based on these asser-
tions, Respondent contends that Klewin exercised inde-
pendent judgment in effectively recommending that Bry-
ant be disciplined and that the judge erred in failing to
find that Klewin’s effective recommendation of disci-
pline evidences that she is a statutory supervisor. I find
Respondent’s arguments without merit.
First, while the judge noted that Semerjibashian testi-
fied that Klewin had recommended that Bryant be disci-
plined and that he would not have disciplined Bryant
absent Klewin’s recommendation (JD sec. II,D,1, 2d
par.), the judge clearly did not credit Semerjibashian’s
testimony, relied on by Respondent in its Exceptions
Brief, that Klewin recommended Bryant’s discipline.

decision, that “Klewin did not have to closely supervise or direct No-
ble’s work,” to mean that Klewin did not have to closely “monitor” or
direct Noble’s work.
3 While Semerjibashian was the store manager at the time that Bry-
ant was issued the two written warnings at issue in June, he left Store
989 later in June (Tr. 58). The next store manager was Don Hinton,
and it was Hinton, not Semerjibashian, as the judge stated, who issued
the third written warning to Bryant in August. This inadvertent error
does not affect the analysis.
Rather, the judge implicitly credited Klewin’s testimony
as to the events surrounding Bryant’s June discipline and
found that Klewin’s role was merely reportorial.
Second, while Respondent asserts that Klewin “ana-
lyzed” Bryant’s performance and made disciplinary rec-
ommendations, and that Semerjibashian requested that
Klewin put her analysis and recommendations in writing
so that he could issue written warnings to Bryant, the
documentary evidence does not support these assertions.
Klewin testified that she took her handwritten notes of
Bryant’s job performance to Semerjibashian and that
Semerjibashian then asked her to type up these handwrit-
ten notes and give them to him. Klewin typed up her
notes and submitted the two “writeups” to Semerji-
bashian (R. Exhs. 19 and 20). These writeups are de-
scriptive in nature. They describe Bryant’s job perform-
ance, note her deficiencies, and include the comments of
other officials regarding Bryant’s performance. The
writeups include neither an “analysis” of Bryant’s per-
formance nor a recommendation that she be disciplined.
Consequently, the judge did not err in finding that
Klewin’s writeups were reportorial, simply noted infor-
mation about Bryant’s job performance, and did not in-
volve the use of independent judgment.4
As to Respondent’s contention that Semerjibashian
disciplined Bryant on Klewin’s recommendation without
making an independent investigation, it must be remem-
bered that in April, as explained by the judge, Division
Scan Manager Antoinette Fonzo, who was Bryant’s su-
pervisor, was dissatisfied with Bryant’s job performance.
At the time, Bryant was the scan coordinator at store 958.
Also in April, as explained more fully below in section 2,
Semerjibashian requested that Klewin and Noble be split
up. Accordingly, in early May, Fonzo, pursuant to Se-
merjibashian’s request, transferred Noble to store 958 as
the backup scan coordinator and then transferred Bryant
to store 989 as the backup scan coordinator and Noble’s
replacement. Thus, Bryant’s transfer to store 989 as
backup scan coordinator from store 958, where she had
been scan coordinator, was a demotion. It is in this con-

4 Using the information reported in these two writeups, Semerjibashian
himself prepared the two written warnings which he gave to Bryant (R. Exh.
21). Semerjibashian signed each of the warnings. Klewin also signed the
warnings as a “witness” (Tr. 471). Thus, the documentary evidence sup-
ports Klewin’s testimony that Semerjibashian prepared the written warnings
which he issued to Bryant (Tr. 469–471). As noted above, Respondent does
not disagree. Given this evidence, it is clear that the judge erred when he
stated that “Klewin drafted two warning notices for . . . Bryant [and that t]he
warnings were given to Bryant in Semerjibashian’s office.” (JD sec. II,D,1,
2d par.) Klewin prepared the writeups, which were reportorial in nature.
Semerjibashian then used the information in the writeups to prepare the
written warnings.
ALBERTSON’S, INC. 1175
text that Klewin’s testimony, which, again, I find the
judge implicitly credited, must be set.
Klewin testified that after Fonzo transferred Bryant to
store 989, Fonzo “told Danny [Semerjibashian] and
[Klewin], ‘You guys have to document, write [Bryant]
up, get rid of her.’” (Tr. 467.) Klewin further testified
that Semerjibashian was keeping track of Bryant because
she had been demoted and sent to store 989. Semerji-
bashian “was constantly asking” Klewin about Bryant’s
performance. At least every other day, Danny sought out
Klewin and asked Klewin, “Is she doing any better, is
she doing any better.” (Tr. 469.) Set in this context, I
find that Semerjibashian, in effect, conducted an ongoing
investigation of Bryant’s job performance from the time
that Bryant started work at store 989. Given this investi-
gation, there was no need to conduct a further investiga-
tion of Bryant’s performance after Klewin submitted her
writeups to him. Thus, in the circumstances here, the
fact that Semerjibashian did not conduct an independent
investigation after Klewin submitted her writeups does
not evidence, as Respondent contends, that Semerji-
bashian did not conduct an independent investigation of
Bryant’s performance. Rather, it indicates that Semerji-
bashian’s investigation was already complete when he
requested that Klewin type up her handwritten notes of
Bryant’s job performance and submit them to him.5
For all these reasons, I find that the judge did not err in
finding that Klewin is not a statutory supervisor, and that
Respondent’s exceptions to that finding lack merit.
II. SEMERJIBASHIAN’S KNOWLEDGE OF KLEWIN’S AND
NOBLE’S PROTECTED CONCERTED ACTIVITIES
At footnote 5 of his decision, the judge stated that “Se-
merjibashian was aware in January 2000, that Noble and

5 There is scant evidence regarding the discipline of Bryant in Au-
gust. While the judge stated summarily that “[i]n August, Klewin
recommended a third warning and a suspension for Bryant” (JD sec.
II,D,1, 3d par.), Klewin’s testimony does not support such a finding.
Klewin testified that while she wrote the written warning (R. Exh. 22)
which then Store Manager Hinton gave to Bryant on August 28 (the
first time that she had ever done so), she did not recommend that Bry-
ant be suspended. As Klewin explained, “it wasn’t up to me whether
she had a suspension or not. It was her third write-up so she would get
a suspension for that.” (Tr. 479.) When asked whether she had
checked the box marked suspension on the August 28 written warning,
Klewin testified: “I doubt that I did that because that’s not up to me
whether she’s suspended or not. The third warning—you’re supposed
to be suspended after the third warning but that doesn’t mean Don
[Hinton] had to do that.” (Tr. 480.) Hinton did not testify. In my
view, this evidence does not support a finding that Klewin recom-
mended a warning and suspension for Bryant in August. However,
even assuming arguendo that the judge’s finding is correct, and assum-
ing that Klewin used independent judgment in making this recommen-
dation, this one isolated instance of the exercise of supervisory author-
ity does not establish that Klewin is a statutory supervisor. See, e.g.,
Volair Contractors, 341 NLRB 673, 675 (2004).
Klewin were complaining about Corcoran.” Respondent
excepts to this finding on the ground that the evidence
establishes that Semerjibashian first learned that Klewin
and Noble were complaining about Corcoran in late
April when assistant front-end managers and admitted
Supervisors Kyle Wood and Sarah Tobey informed Se-
merjibashian that Klewin and Noble had complained to
them about Front-End Manager Amber Corcoran, and
had requested that they call Respondent’s 800 number to
complain about her. Respondent further contends that
Semerjibashian had made a request in the middle of
April, i.e., before he learned of Klewin’s and Noble’s
protected concerted activities, to Fonzo, who, as noted
above, was Respondent’s division scan manager, that
Fonzo separate Klewin and Noble. Based on these con-
tentions, Respondent argues that since Semerjibashian
did not learn of Klewin’s and Noble’s complaints about
Corcoran until after he requested that they be split up, the
decision to transfer Noble from store 989 could not have
been unlawfully motivated. Finally, Respondent asserts
that since it was Fonzo who made the decision to transfer
Noble from store 989 to store 958, and since Fonzo was
not aware of Klewin’s and Noble’s protected concerted
activities when she made that decision, the transfer was
not unlawful for this reason also. Respondent’s argu-
ments are without merit.
That Respondent knew of Klewin’s and Noble’s com-
plaints about Corcoran prior to the middle of April, when
Respondent contends that Semerjibashian requested that
Fonzo split up Klewin and Noble, is established by the
testimony of Lori Athey, an assistant front-end manager
and admitted supervisor, who testified that during the
period from May 1999 to May 2000, employees, includ-
ing Klewin and Noble, would periodically complain to
her about Corcoran (Tr. 149–152). At one point, Re-
spondent’s counsel moved to strike this portion of her
testimony as “very non-specific vague testimony” (Tr.
154). The judge denied the motion and admitted the tes-
timony for the limited purpose of “establish[ing] com-
pany knowledge that employees were complaining about
the supervision of Ms. Corcoran” (Tr. 155). The judge
did not err in this regard.
As found by the judge, between August 1999 and May
2000, Noble had over 30 conversations with fellow em-
ployees in which Noble registered her complaints about
Corcoran. As the judge further found, during the period
from May 1999 to May 2000, Klewin also had several
conversations with her fellow employees in which she
and her fellow employees expressed their complaints
about Corcoran. Given that Noble’s and Klewin’s com-
plaints during the relevant period of time centered on
Corcoran, and given that Semerjibashian testified that
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1176
starting in January department heads complained to him
that Klewin and Noble were complaining too much about
operations at the store (see fn. 7 below), one can infer
that the department heads informed Semerjibashian that
Corcoran was a subject of these complaints. Thus, in
January, as found by the judge, Semerjibashian knew of
Klewin’s and Noble’s protected concerted activities.
In these circumstances, that Wood and Tobey told Se-
merjibashian in late April that Klewin and Noble were
complaining to them about Corcoran does not establish,
as Respondent contends, that this was the first time that
Semerjibashian learned of these complaints. The evi-
dence is otherwise.
Finally, equally without merit is Respondent’s argu-
ment that since Fonzo made the decision to transfer No-
ble, the decision was not unlawful. Semerjibashian and
Fonzo both testified that Semerjibashian requested that
Fonzo split up Klewin and Noble. As shown above, Se-
merjibashian knew of Klewin’s and Noble’s protected
concerted activities when he made the request, and it
was, as the judge found, those activities that motivated
Semerjibashian to make the request. In such circum-
stances, it is well established that if an unlawfully moti-
vated action of a management official leads to adverse
action being taken against an employee, the unlawful
motivation may be attributed to the employer, even if the
official who made the decision had no knowledge that
the underlying action was improperly motivated. See,
e.g., Golden’s Foundry & Machine Co., 340 NLRB
1176, 1177–1178 (2003) (“[i]t is well established that if a
supervisor provides a false report that leads to a dis-
charge, that supervisor’s unlawful motivation is imput-
able to the employer, even if the official who actually
makes the discharge determination is unaware of the su-
pervisor’s animus”).
III. HOWEY WAS NOT RESPONDENT’S AGENT
AT THE MAY 3 MEETINGS
My colleagues adopt the judge’s finding that Bev
Howey, Respondent’s bookkeeper at store 989, was Re-
spondent’s agent when she sat in on two meetings which
Semerjibashian held separately with Klewin and Noble
on May 3. Since I find that Howey was not Respon-
dent’s agent when she sat in on the May 3 meetings, I
further find that the complaint allegation that Respon-
dent, through Howey, violated Section 8(a)(1) by order-
ing, in effect, Klewin and Noble not to engage in pro-
tected concerted activities, must be dismissed.6

6 Par. 5(c) of the complaint alleged that Respondent “[o]n May 3, by
Semerjibashian, promulgated an overly broad and discriminatory rule
prohibiting its employees from discussing complaints among them-
selves and from calling the Respondent’s telephone hotline to complain
about working conditions and other terms and conditions of employ-
As explained by the judge, Howey is the bookkeeper at
store 989. In this capacity, Howey is responsible for
balancing the store sales each day, compiling the payroll,
balancing accounts receivable, answering the telephones,
and for other office and bookkeeping functions. As part
of her duties, Howey maintains confidentiality concern-
ing employees, store sales, and company information.
When Semerjibashian meets privately with a female em-
ployee for discipline or counseling, he requests that
Howey be present.
On May 3, Semerjibashian summoned Klewin to his
office for a meeting. At Semerjibashian’s request,
Howey sat in on the meeting. Klewin explained that the
problems at the store were attributable to Amber Cor-
coran, the front-end manager. Klewin also stated that
employee morale was low because of Corcoran, and that
employees were afraid to speak up because of fear of
retaliation. During the course of the meeting, Semerji-
bashian stated that he did not want to get “blind-sided,”
and told Klewin that he was getting complaints from
other department heads about Noble and Klewin con-
stantly complaining,7 and he advised Klewin to schedule
Noble on separate shifts.
During the course of the interview, Klewin asked
Howey, who had been sitting quietly, “Can I ask you
how you feel about this whole situation and what’s going
on? What do you think?”8 Having been asked her “opin-
ion,”9 Howey entered into the conversation. At one
point, Howey stated that if anyone approached Klewin
“on the aisles or whatever, just tell them you want noth-
ing to do with whatever is going on. That your job is
scan and that’s it. . . . If they have a problem, then they
need to go to Danny, Bruce or Sarah Carey. Go to Sarah
Carey, don’t call the 800 number. Go to Sarah Carey.”10

ment.” At the third day of the hearing, however, the counsel for the
General Counsel moved to amend complaint par. 5(c) by substituting
Beverly Howey’s name for Semerjibashian’s (Tr. 497). The judge
granted the motion (Tr. 498). Accordingly, and contrary to the judge’s
implication at sec. II, F,2 of his decision, it is only Howey’s conduct at
the May 3 meetings that is alleged to be unlawful. For the reasons
explained below, I find, contrary to my colleagues, that Howey’s con-
duct at the May 3 meetings was not unlawful.
7 Semerjibashian testified that managers began to complain to him
about Klewin’s and Noble’s complaints about store operations in Janu-
ary (Tr. 877–880).
8 R. Exh. 33, p. 11. Klewin and Noble secretly taped certain interviews
and conversation that they had with management officials. Certain portions
of the tapes were transcribed and introduced into evidence. R. Exh. 33 is a
transcription of R. Exh. 1, the tape of the May 3 meeting between Semerji-
bashian and Klewin at which Howey was the witness.
9 Klewin testified that in making this inquiry, she was asking for
Howey’s “opinion” on this issue (Tr. 415).
10 R. Exh. 33, p. 16. “Bruce” is the drug manager at store 989 and
Carey is the division loss prevention manager (Tr. 416).
ALBERTSON’S, INC. 1177
Semerjibashian neither affirmatively adopted nor dis-
avowed Howey’s comments.
After his interview with Klewin, Semerjibashian met
with Noble. Howey again sat in. Semerjibashian again
complained about getting “blind-sided.” He told Noble
that there was “too much complaining, bitching, too
much this, too much that.”11 He told Noble that she and
Klewin spent too much time together and that she and
Klewin were about to be “split up.”12 Semerjibashian
told Noble not to worry about the store and that her only
concern was the scan department. During the conversa-
tion, Howey said, “Lora, the people you are talking to,
and I don’t know who they are, or whatever, they need to
come in and see Danny. They need to, you cannot be a
speaker for them because that is all hearsay. They are
telling you and you are telling.”13 Semerjibashian neither
adopted nor disavowed Howey’s remarks.
In determining whether Howey was Respondent’s
agent when she attended the May 3 interviews which
Semerjibashian held first with Klewin, and then with
Noble, the judge first cited Southern Bag Corp., 315
NLRB 725, 725 (1994), where the Board set out the
analysis it applies to determine whether an employee is
an agent of the employer:
The Board applies common law principles when
examining whether an employee is an agent of the
employer. Apparent authority results from a mani-
festation by the principal to a third party that creates
a reasonable basis for the latter to believe that the
principal has authorized the alleged agent to perform
the acts in question. See generally, Great American
Products, 312 NLRB 962 (1993); Dentech Corp.,
294 NLRB 924 (1989); Service Employees Local 87
(West Bay), 291 NLRB 82 (1988). The test is
whether, under all the circumstances, the employees
“would reasonably believe that the employee in
question [the alleged agent] was reflecting company
policy and speaking and acting for management.”
(Citations omitted.) Waterbed World, 286 NLRB
425, 426–427 (1987). As stated in Section 2(13) of
the Act, when making the agency determination,
“the question of whether the specific acts performed
were actually authorized or subsequently ratified
shall not be controlling.”
Relying on Diehl Equipment Co., 297 NLRB 504
(1989), the judge found that Howey was Respondent’s

11 R. Exh. 34, p. 2. R. Exh. 34 is a transcript of the tape recording
(R. Exh. 8) of the May 3 meeting between Semerjibashian and Noble at
which Howey served as a witness.
12 R. Exh. 34, p. 2.
13 R. Exh. 34, p. 12.
agent at the May 3 meetings when she spoke to Klewin
and Noble. In making this finding, the judge first relied
on the facts that Howey “worked closely” with Semerji-
bashian and that “[Howey was present when Semerji-
bashian met with female employees for disciplinary pur-
poses.” The judge then concluded that “[i]n light of
Howey’s presence at these meetings and Semerji-
bashian’s failure to disavow Howey’s comments,”
Klewin and Noble “would reasonably believe that
Howey was reflecting Respondent’s policy and speaking
and acting for Respondent.”
Finally, having found that Howey was Respondent’s
agent, the judge found that “Semerjibashian’s silence in
response to Howey’s remarks created the impression that
Respondent was ordering Klewin and Noble not to engage
in protected concerted activities with other employees and
not to engage in protected concerted activities on behalf of
other employees.” The judge concluded that by this con-
duct Respondent violated Section 8(a)(1) of the Act.
Agreeing with the judge that Howey was Respondent’s
agent, my colleagues adopt his finding of these viola-
tions. Since I find, for the reasons explained below, that
Howey was not Respondent’s agent when she spoke to
Klewin and Noble at the May 3 meetings, I further find
that Howey’s comments are not attributable to Respon-
dent and that therefore Respondent did not violate Sec-
tion 8(a)(1) as found by the judge.
Initially, I agree with the judge and my colleagues that
the test for determining agency status under the Act is
“whether, under all the circumstances, ‘the employees
would reasonably believe that the employee in question
was reflecting company policy and speaking and acting for
management.’” Waterbed World, 286 NLRB 425, 426–
427 (1987), quoting Einhorn Enterprises, 279 NLRB 576
(1986). In applying this test, I am mindful that “it is the
burden of the party who asserts that an individual has
acted with apparent authority to establish the agency rela-
tionship.” Pan-Oston Co., 336 NLRB 305, 306 (2001).
Further, “the party who has the burden to prove agency
must establish an agency relationship with regard to the
specific conduct that is alleged to be unlawful.” Id.
In the present case, then, the issue is whether the Gen-
eral Counsel has satisfied his burden of establishing that
Klewin and Noble reasonably believed that Howey was
acting as Respondent’s agent when she advised them not
to discuss complaints amongst themselves or with other
employees and not to call Respondent’s telephone hot-
line to complain about working conditions. For the fol-
lowing reasons, I find that the General Counsel has failed
to meet this burden.
In finding that Howey was Respondent’s agent at the
May 3 meetings, the judge relied solely on the facts that
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1178
Howey worked closely with Semerjibashian, that Semer-
jibashian asked Howey to sit in on meetings with female
employees where discipline or counseling was involved,
and that Semerjibashian did not disavow Howey’s com-
ments. Relying on Diehl Equipment Co., supra, the
judge then summarily found that Howey was Respon-
dent’s agent when she told Klewin and Noble not to en-
gage in protected concerted activity. The facts in Diehl
Equipment Co. are, however, readily distinguishable
from those in the present case. Further, although not
discussed by the judge, it is those facts that provided the
Board its rationale for adopting the judge’s finding of
agency status in that case. Since those facts, and that
rationale, are absent here, the judge erred by relying on
Diehl Equipment Co. to find that Howey was Respon-
dent’s agent at the May 3 meetings.
In Diehl Equipment Co., supra, the primary issue was
whether the respondent, Diehl Equipment Company
(DEC), violated Section 8(a)(3) of the Act by failing or
refusing to hire certain individuals, including alleged
discriminatee John Lehner, because of their support for
the union. In that case, Lehner went to DEC’s office
where he spoke to Beryl Dyer.14 Dyer was seated at a
desk immediately inside the entrance to DEC’s office.
Lehner asked if any work was available. Dyer did not
respond, but handed Lehner a job application and asked
him to fill it out. Lehner filled out the application and
returned it to Dyer. Noting that Lehner’s previous em-
ployers were signatories to union agreements, Dyer
commented, ‘‘‘You’re Union.’” Id. at 506–507. After
Lehner confirmed that he was a union member, Dyer told
him that DEC did not hire union help anymore, that
Lehner would have to go to the union hall if he wanted
employment. Lehner left. DEC never contacted him.
In finding the 8(a)(3) violation, the judge relied, inter
alia, on his finding that Dyer was DEC’s agent when she
told Lehner that DEC did not hire union applicants and
that therefore Dyer’s statement was attributable to DEC.
In finding that Dyer was DEC’s agent when she told
Lehner of DEC’s policy not to hire union applicants, the
judge found that as DEC’s “office factotum” of nine
years, Dyer “was aware of and reflected that policy in her
comments to Lehner and that she possessed the apparent
authority to speak on DEC’s behalf and therefore spoke
as DEC’s agent when she advised Lehner . . . [that] DEC
did not hire union members[.]” Id. at 506, fn. 15.

14 As the judge noted, Dyer kept DEC’s books, handled payroll,
typed letters, answered telephones and performed general clerical du-
ties. Dyer also prepared the reports accompanying periodic payments
into trust funds established under the Plumbing & Air Conditioning
Contractors of Central and Northern Arizona (PAC) and union agree-
ments during the time that DEC was a party to those agreements.
Significantly, in affirming the judge’s conclusion that
Dyer was DEC’s agent, the Board relied in addition on
the fact that Dyer’s job “routinely involved handing job
applications to individuals and receiving the completed
applications from them.” Id. at 504, fn. 2. Relying on
this factual finding, the Board concluded that DEC “had
placed Dyer in a position in which she had the apparent
authority to provide information and to answer questions
relative to the application forms she handled.” Id. In
other words, the Board found that Dyer was DEC’s agent
because she was, in effect, DEC’s conduit for conveying
information about applications and the processing of
them. It is on this finding, i.e., that Dyer was DEC’s
conduit, that the Board primarily relied in affirming the
judge’s finding that Dyer was DEC’s agent.
The finding that an employer has used an individual as
a “conduit” for the conveying of information from man-
agement to employees is a “key aspect” in the analysis of
whether the individual acted with apparent authority in
respect to the conduct under consideration.15
In the present case, however, it is clear that Howey
does not serve as a “conduit,” i.e., one who transmits
information from management to employees. Howey’s
job duties do not encompass such a function. While it
may be that one of Howey’s “duties” is to sit in as a wit-
ness when Semerjibashian meets with female employees
where discipline or counseling is involved, such a role
does not involve relaying information to employees.
Obviously, Howey’s role as a silent witness in such
meetings defeats any notion that this “duty” encompasses
the role of a conduit for management. Thus, the judge’s
finding that Howey is Respondent’s agent, based as it is
on the mere facts that Howey, as bookkeeper, works
closely in that capacity with Semerjibashian and that
Semerjibashian asked Howey to sit in on meetings with
female employees, is erroneous, and his reliance on
Diehl Equipment Co., supra, is misplaced.
Further, in the present case, unlike in Diehl Equipment
Co., where Dyer was unknown to Lehner, Howey was a
“friend” of Klewin’s, and socialized with Klewin and
Noble both at work and outside of work.16 Given this

15 As explained in Mays Electric Co., 343 NLRB No. 20, slip op. at
5 (2004) (footnote omitted):
Apparent authority results from a manifestation by the employer
that creates a reasonable basis for the employees to believe that
the employer has authorized the alleged agent to perform the acts
at issue. A key aspect of the analysis is whether the employer
has used the employee in question as a conduit for transmission
of information from management to other employees.
16 Tr. 310 and 315–316. Klewin also testified that she was con-
cerned about Howey’s health and called her “all the time,” both at
home and at work (Tr. 517). Likewise, Howey testified that she con-
sidered Klewin to be a “friend” (Tr. 784).
ALBERTSON’S, INC. 1179
personal relationship, and the fact that Respondent never
held Howey out as a conduit of information from man-
agement to employees, Klewin and Noble would rea-
sonably have understood that by her comments at the
May 3 meetings, Howey was conveying her own per-
sonal subjective views and not those of management.
That this conclusion is correct is underscored by
Klewin’s own testimony, as set out above, that she solic-
ited Howey’s advice because she wanted Howey’s opinion
on the issues being discussed. Obviously, since Klewin
solicited Howey’s opinion, she could only reasonably have
understood that Howey was expressing her own personal
views. In these circumstances, the fact that Semerji-
bashian did not disavow what were, after all, Howey’s
own personal views, has no place in the analysis.
For all these reasons, I find that the General Counsel
has not met his burden of establishing that Howey was
Respondent’s agent when she spoke at the May 3 meet-
ings with Klewin and Noble. Accordingly, I would re-
verse the judge’s findings that Howey was Respondent’s
agent when she made the statements at issue in the May
3 meetings and that those statements were attributable to
Respondent. I would therefore reverse the judge’s find-
ing that Respondent violated Section 8(a)(1) through
Howey’s statements at the May 3 meetings, and I would
dismiss this allegation of the complaint.
Richard A. Smith and Sandra L. Lyons, for the General Coun-
sel.
Monica L. Goebel and John B. Nickerson (Steptoe & Johnson),
of Phoenix, Arizona, for the Respondent.
DECISION
STATEMENT OF THE CASE
JAY R. POLLACK, Administrative Law Judge: I heard this
case in trial at Phoenix, Arizona, on December 7, 8, and 12,
2000, and January 16, 17, and 18, 2001. On May 9, 2000, Lora
Noble (Noble) filed the charge alleging that Albertson’s, Inc.,
(Respondent or the Employer) committed certain violations of
Section 8(a)(1) of the National Labor Relations Act (the Act).
The Regional Director for Region 28 of the National Labor
Relations Board issued a complaint and notice of hearing on
July 31, 2000, against Respondent alleging that Respondent
violated Section 8(a)(1) of the Act. Respondent filed a timely
answer to the complaint, denying all wrongdoing.
All parties have been afforded full opportunity to appear, to in-
troduce relevant evidence, to examine and cross-examine wit-
nesses, and to file briefs. Upon the entire record,1 from my ob-

1 The General Counsel filed a motion to correct the transcript on Feb-
ruary 23, 2001. As the motion was unopposed, the motion is granted and
the corrections therein are received in evidence as Jt. Exh. 1.
servation of the demeanor of the witnesses,2 and having consid-
ered the posthearing briefs of the parties, I make the following
FINDINGS OF FACT AND CONCLUSIONS
I. JURISDICTION
Respondent is a corporation with various offices and facili-
ties, in the State of Arizona, where it has been engaged in the
retail sale of groceries and related items. Respondent annually
derives gross revenues in excess of $500,000 and purchases and
receives goods and materials valued in excess of $5000 from
outside the State of Arizona. Accordingly, Respondent admits
and I find that Respondent is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Issues
Respondent operates numerous retail grocery stores in the
State of Arizona. Lora Noble was employed as a backup scan
coordinator at Respondent’s store 989 in Mesa, Arizona. The
scan department at store 989 consisted of a scan coordinator,
Teri Klewin,3 and a backup scan coordinator, Noble. The coor-
dinator’s job is to ensure proper pricing, tagging, signing, and
documenting of all store merchandise. The backup coordinator
is responsible for changing prices and ensuring their accuracy.
The coordinator’s job is full time while the backup coordina-
tor’s job is part time. Respondent requires that the backup be
scheduled to work during the same hours as the coordinator.
Klewin as coordinator reports to the store director and the divi-
sion scan manager. At the times relevant herein, Danny Semer-
jibashian was the store director and Antoinette Fonzo was the
division scan manager.4
Teri Klewin has been a scan coordinator for Respondent for
15 years. She has been the scan coordinator at store 989 since
the store opened in May 1999. Lora Noble was employed by
Respondent from April 1997 until November 2000. Noble
worked at store 989 from May 1999 until May 5, 2000, when
she was transferred from store 989 to store 958, also in Mesa,
Arizona. She served as backup coordinator from August 1999
until her transfer and also worked as a cashier to obtain extra
hours until September 1999.
The General Counsel alleges that Respondent violated Sec-
tion 8(a)(1) of the Act by creating the impression among its
employees that their protected activities were under surveil-
lance and by discouraging employees from making complaints

2 The credibility resolutions herein have been derived from a review
of the entire testimonial record and exhibits, with due regard for the
logic of probability, the demeanor of the witnesses, and the teachings of
NLRB v. Walton Mfg. Co., 369 U.S. 404, 408 (1962). As to those wit-
nesses testifying in contradiction to the findings herein, their testimony
has been discredited, either as having been in conflict with credited
documentary or testimonial evidence or because it was in and of itself
incredible and unworthy of belief.
3 Respondent contends that Klewin is a supervisor within the mean-
ing of Sec. 2(11) of the Act.
4 Fonzo supervised scan coordinators and backup coordinators at 73
stores in Respondent’s southwestern division.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1180
on Respondent’s employee hotline without prior approval.
Further the complaint alleges that Respondent, through its
bookkeeper, Beverly Howey, prohibited employees from dis-
cussing grievances amongst themselves and from calling Re-
spondent’s employee hotline. The complaint also alleges that
Respondent through Semerjibashian threatened Noble with
transfer and a change in work hours for engaging in protected
activity. In addition, the General Counsel alleges that Respon-
dent warned Noble to avoid discussions with other employees
in response to Noble’s concerted activities. Finally, the Gen-
eral Counsel alleges that Respondent transferred Noble from
store 989 because of her protected concerted activities. The
employees at store 989 were not represented by any labor or-
ganization and the General Counsel does not allege any orga-
nizing activities at the store. Rather, the General Counsel al-
leges that Noble, Klewin and other employees were engaged in
protected concerted activities.
Respondent denies the commission of any unfair labor prac-
tices. Further, Respondent contends that Klewin is a statutory
supervisor, and therefore, could not have engaged in protected
activities under the Act. Respondent also contends that Howey
was not a supervisor or agent of Respondent and, therefore,
Respondent is not responsible for her remarks to Klewin. Re-
spondent denies that Noble was engaged in any protected con-
certed activities. Finally, Respondent contends that Noble was
transferred from store 989 to store 958 because of legitimate
business reasons.
B. Facts
As stated earlier, Noble worked as a cashier at store 989
from May 1999 until September 1999. In September 1999,
Noble asked Store Director Semerjibashian not to assign her
any additional hours as a cashier. Noble, at that time was
working as the backup scan coordinator. She had been supple-
menting her hours by working as a cashier. However, because
Noble was unhappy with Front-End Manager Amber Corcoran,
she asked not to work any more in Corcoran’s department.
Noble viewed Corcoran as rude to customers and employees.
Further, Noble believed that Corcoran was “write-up happy”
and was unfairly issuing discipline to employees.
Respondent provides an orientation and policy handbook for
each new employee. The employee handbook provides, inter
alia, for a complaint procedure for employees to utilize in re-
solving work-related problems without fear of retaliation. As
part of this complaint procedure Respondent provides a toll free
hotline number for employees to call and express their work-
related concerns. Employees may use this hotline anonymously.
Noble spoke with employee Susan Fitton in January 2000,
about Corcoran’s alleged change in requiring a doctor’s note
for absences based on illness. In addition, Noble had at least 30
conversations concerning Corcoran with fellow employees,
including Klewin, Beth Dupont, Kim Lawrence, a cashier, and
coffee shop employees, only identified as Linda and Virginia.
These conversations which took place between August 1999
and May 2000, centered on the employees’ perception that
Corcoran was rude to employees and disciplined them unfairly.
Noble encouraged employees to call Respondent’s hotline and
complain about Corcoran. She stated that she intended to call
the hotline and, that, if employees complained about Corcoran
as a group, maybe Respondent would do something to correct
the situation. Noble testified that some employees were anx-
ious for corrective action but many were apprehensive about
retaliation from Respondent.
Klewin had several conversations between May 1999 and
May 2000, with employees, Beth Dupont, Susan Fitton, and
Noble, in which the employees discussed their dislike of Cor-
coran’s treatment of customers and employees. Klewin en-
couraged employees to call Respondent’s hotline and complain
about Corcoran. In April, Klewin encouraged Dupont to call
the hotline. Klewin also discussed complaints about Corcoran
with Sarah Clark, Sarah Tobey, Lori Athey, and Kyle Wood,
assistant front-end managers. The parties stipulated that these
assistant front-end managers were supervisors within the mean-
ing of the Act. Noble and Klewin encouraged Wood and To-
bey to call the hotline and complain about Corcoran. These
two supervisors informed Semerjibashian5 and Corcoran that
Noble and Klewin were attempting to get employees, including
Wood and Tobey, to call the hotline about Corcoran. Athey
testified that several employees, including Noble, Klewin, and
Dupont complained to her about Corcoran.
Beth Dupont was a cashier at store 989 from May 1999 until
September 2000. On January 24, 2000, Dupont called the hot-
line to complain about Corcoran. Dupont complained that Cor-
coran called employees names, such as “dumb,” “stupid,” and
“lazy,” in front of customers. She also complained that Cor-
coran threatened to fire employees, required an employee to
work in violation of the State health code, hired her sister-in-
law against company policy, failed to properly follow Respon-
dent’s progressive disciplinary system, and generally was rude
to customers and employees.6 While Dupont remembered only
calling the hotline once, Respondent’s records suggest that
Dupont also made an anonymous call 2 weeks earlier complain-
ing that Corcoran called employees “stupid and lazy” in front
of customers. That complaint also mentioned that Corcoran
had required an employee to work with “pink eye” and had
hired her sister-law without a required drug test.
In mid-March 2000, Semerjibashian, conducted a meeting
with front-end managers to discuss their job responsibilities.
At some time during the meeting Semerjibashian made a state-
ment to the effect that the safe room and registers were
“bugged” and employees should watch what they say. Appar-
ently, Semerjibashian’s remarks caused the assistant front-end
managers to believe that the store was “bugged.” In fact, the
store had video surveillance throughout the store and audio
surveillance at the customer service desk. The employees and
supervisors were aware of those security devices. Apparently,
in attempting to tell employees that the audio device at the cus-
tomer service desk was sensitive and could pickup some con-
versations at nearby registers, Semerjibashian created the im-
pression that the entire store was “bugged.” Shortly after this
meeting, several of the supervisors informed employees that

5 Semerjibashian was aware in January 2000, that Noble and Klewin
were complaining about Corcoran.
6 Prior to filing this complaint with the hotline, Dupont attempted to
resolve these issues with Semerjibashian on at least two occasions.
ALBERTSON’S, INC. 1181
Semerjibashian had informed them that all of the registers were
bugged. Supervisors Clark, Tobey, and Athey all informed
employees of what they believed Semerjibashian had said at the
supervisors’ meeting. Clark and Tobey both told Noble that the
store was bugged, that the only safe place to talk was outside,
and that a couple of individuals could be fired for what they
had said. In the meeting, Semerjibashian had made reference to
inappropriate personal remarks made about Corcoran by two of
her assistant front-end managers.
In response to the reports that employee conversations were
bugged, Klewin sent anonymous letters on March 23 and April
14 to Respondent’s corporate headquarters requesting that the
recording cease immediately. As a result of Klewin’s letters,
Respondent’s loss prevention department investigated the mat-
ter. Robert Martinez, Respondent’s assistant manager for loss
prevention, went to store 989 to investigate the anonymous
complaints. On Martinez’ second trip to the store he was ac-
companied by his supervisor, Sara Carey, loss prevention man-
ager. During their investigation, Martinez and Carey inter-
viewed a number of employees including Dupont, Klewin, and
Noble.
Dupont informed Martinez that she believed the store was
bugged and further complained about Corcoran’s treatment of
employees. Although Martinez reassured Dupont that the store
was not bugged, Dupont was not convinced. Klewin met with
Martinez and Carey. She also complained about Corcoran in
addition to stating her belief that the store was bugged. Klewin
was not convinced that the store was not bugged. Noble met
with Martinez and Carey at her request. Noble discussed both
her fear that the store was bugged and also the problems with
Corcoran. Noble told Martinez and Carey that employees were
fearful of coming forward because Semerjibashian always sided
with Corcoran. Noble stated that employees feared retaliation if
they called the hotline about Corcoran. Subsequently, Martinez
issued a report of the investigation. Martinez concluded that
the employees did not understand the capabilities of the store’s
surveillance system. According to Carey, Respondent con-
cluded that the allegations made by the employees that their
conversations were being recorded, resulted from Semerji-
bashian’s exaggeration of the capabilities of the store’s surveil-
lance system.
In April 2000, Dupont spoke with Klewin about her continu-
ing problems with Corcoran. Klewin told Dupont that Noble
had called the hotline and complained about Corcoran. Klewin
suggested that other employees should join in Noble’s com-
plaint. A few days later, Klewin gave Dupont the hotline num-
ber and Noble’s case number. Dupont and Klewin distributed
this information to other employees, including Fitton and a
coffee shop employee.
On April 21, Klewin and Noble spoke with Kyle Wood, as-
sistant front-end manager, about a scan report. Wood told No-
ble that she had too many hand-keyed items (items that were
not scanned) that she was using incorrect codes, and that she
could be disciplined for using them. Noble stated that she was
using the correct codes and said she didn’t know what codes
Wood was referring to. Wood returned with a copy of a book-
let maintained at the cash registers for use by cashiers. Noble
told Wood that she had never seen these codes before. Klewin
told Wood that these codes were unauthorized and that she
could be disciplined for using them. Unbeknownst to Wood,
Klewin was correct in her assertion that the codes were unau-
thorized and not to be used. Wood responded by informing
Noble and Klewin that Corcoran had authorized the codes and
was ensuring that the cashiers followed these codes. Klewin,
knowing that these codes were not authorized, took a copy of
the codes to send to Scan Manager Antoinette Fonzo. Shortly
thereafter, Klewin sent Fonzo a copy of the codes with a brief
memo asking for clarification. Fonzo called Klewin and told
Klewin that Corcoran had claimed that Klewin had put the
codes in the store’s computer. Klewin stated that she had not
put the codes in the system and believed Corcoran had done it
because she was enforcing the codes and her statistics looked
better because of the codes. Corcoran testified that she did not
have the knowledge to enter these codes into the computer and
had assumed that Klewin must have done it. Respondent con-
cluded that these codes were entered into the computer at the
time of the store’s grand opening and had never been removed.
Neither Klewin nor Corcoran was at fault.
On May 1, Noble called Respondent’s loss prevention de-
partment and spoke with Carey. Noble asked how supposedly
confidential information, revealed to Martinez and Carey, was
made known to Corcoran and Semerjibashian. Later that eve-
ning, Noble called the employee hotline and restated her com-
plaints, and those of Dupont, Fitton, and Klewin, regarding
Corcoran and the recording of employee conversations.
On the morning of May 3, Semerjibashian summoned Klewin to
his office for a meeting with Howey in attendance.7 Klewin ex-
plained that the problems in the store were attributable to Cor-
coran’s rude conduct towards employees and even Semerjibashian
himself. Klewin stated that employee morale was low because of
Corcoran and that employees were afraid to speak up because of
retaliation. During this discussion Semerjibashian told Klewin that
he was getting complaints from other department heads about No-
ble and Klewin constantly complaining. He advised Klewin to
schedule Noble on separate shifts so that they did not spend so
much time together. Semerjibashian also stated that he was tired of
being “blind-sided.” Semerjibashian was embarrassed that the
managers in the Employer’s divisional office and in its headquar-
ters found out about problems before he did. Klewin stated that
rather than separate her and Noble, Respondent would be better off
dealing with Corcoran, the source of the problem. During this
conversation, Klewin asked Howey, who had not spoken earlier,
for her opinion. Howey told Klewin that if any employee ap-
proached her, she should say that that she wanted “nothing to do
with whatever is happening.” Howey told Klewin that Klewin’s
job was to scan and “that’s it.” Howey added that if other employ-
ees had a problem they should go to Semerjibashian or Sarah
Carey. Howey said employees should not call the employee hot-
line but, instead, should call Carey. Semerjibasian did not affirma-
tively adopt or disavow Howey’s remarks.
After speaking with Klewin, Semerjibashian spoke with No-
ble, accompanied by Howey. Semerjibashian again complained
about being “blind-sided.” He repeatedly stated that “there’s

7 Semerjibashian asked Howey to be present as a witness whenever
he had a private discussion with a female employee.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1182
too much complaining, bitching, too much this, too much that.”
He repeatedly stated that Noble and Klewin had too many opin-
ions. He told Noble that nothing was perfect that every store
had some problems. Semerjibashian asserted that Noble and
Klewin spent too much time together. He then told Noble that
she and Klewin were about to be “split up.” Semerjibashian
told Noble not to worry about the store and that her only con-
cern was the scan department. He confirmed that he might
have to schedule Noble on different hours from Klewin. Dur-
ing the conversation, Howey said that if other employees had
complaints, they should speak for themselves and that Noble
should not speak for other employees. Semerjibashian did not
affirmatively adopt or disavow Howey’s remarks.
After leaving Semerjibashian’s office, Noble called the em-
ployee hotline to complain. She received a return call from
Kim Hoffman, Respondent’s district sales manager. Noble told
Hoffman that Semerjibashian had threatened her hours and
days of work. Noble said that she was afraid that she would be
transferred to another store. Noble informed Hoffman that she
had encouraged other employees to call. Hoffman answered
that no other employees had called the hotline. Noble then
stated that she preferred not to say anything further. Hoffman
replied, “ I guess if that’s the case, what I need for you to do is
do your job and mind your own business. If something hap-
pens to you personally let me know. . . Other than that I don’t
want to be caught in hearsay and I don’t want you to be saying
that this person said that this had happened to them.” Hoffman
told Noble, at the end of the conversation, that he suggested
that she do her job and “go on with life.”
Later that same afternoon, Noble received a message that
Gaylene Austin, Respondent’s coordinator of EEO and labor
relations, had called her. Noble returned the call and spoke with
Austin. Noble informed Austin of Noble’s earlier conversa-
tions with Semerjibashian and Hoffman and stated that she did
not believe that she should speak with anyone from Respon-
dent. Austin answered that all Respondent had was what Noble
had heard second or third hand. Noble said that it didn’t make
sense for her to encourage people to come forward, if they were
going to be retaliated against. Austin argued that Noble was
hampering Respondent’s investigation by speaking for other
employees. Noble repeated that Semerjibashian and Hoffman
had told her to mind her own business. Austin stated that No-
ble could not “carry the torch for people.” Austin said that if
employees came to Noble about their problems, Noble should
tell the employees to call the employee hotline.
On May 4, Semerjibashian notified Noble that she was being
transferred from store 989 to store 958. Semerjibashian told
Noble that he appreciated her work at the store, that he was
sorry about the transfer and that he wished she would be happy
at her new store. After learning of Noble’s transfer, Klewin
went to speak with Semerjibashian. Klewin told Semerji-
bashian that she and Noble would stop talking to other employ-
ees and “drop everything” if Semerjibashian would reconsider
Noble’s transfer. Semerjibashian told Klewin that it was too
late and that the matter was out of his hands.
C. Respondent’s Defense
Respondent offered evidence that the job performance of
Lana Bryant, scan coordinator at store 958, was unsatisfactory
in April 2000. During this same time period, Antoinette Fonzo,
division scan manager and Bryant’s supervisor, also learned
that Semerjibashian wished to separate Klewin and backup scan
coordinator Noble. Semerjibashian did not indicate to Fonzo
the reasons for this request. Fonzo testified that she assumed
the reason for this was that Klewin and Noble were fooling
around at work. I do not credit Respondent’s attempt to argue
that some practical jokes played on Semerjibashian by Noble
and Klewin had any part in the transfer. Semerjibashian was
very friendly with both employees and suffered the jokes in
good humor. Neither employee was ever counseled about the
practical jokes and Semerjibashian continued to be on very
friendly terms with both employees.
Fonzo replaced Bryant with an experienced scan coordinator,
Chris Courier. She also decided to transfer Noble after she
replaced Bryant as scan coordinator. Bryant was made backup
coordinator to relearn the scan coordinator job. Noble was
transferred to store 958 and Bryant transferred to store 989.
Store 958 was closer to Noble’s home than was store 989.
Noble received the same wages at store 958. Further, at store
958, Noble was able to work more hours than she had worked
at store 989. When Noble questioned Fonzo as to why she was
transferred, Fonzo told Noble that the transfer was done as a
favor to Semerjibashian. I find that Fonzo made the transfer
pursuant to Semerjibashian’s request and as a favor to Semerji-
bashian. The transfer was not meant to be disciplinary in na-
ture and did not have a negative effect on Noble’s wages or
benefits.
D. The Supervisory Agency Issues
Section 2(11) of the Act defines a supervisor as one who has
authority, in the interest of the employer, to hire, transfer, sus-
pend, layoff, recall, promote, discharge, assign, reward, or dis-
cipline other employees, or responsibly direct them, or to adjust
their grievances, or effectively to recommend such actions, if in
connection with the foregoing the exercise of such authority is
not merely a routine or clerical nature, but would require the
independent use of judgment. To be found to be a statutory
supervisor, one only must be shown to independently exercise
one of the enumerated authorities.
1. Klewin
As stated earlier, Klewin was a scan coordinator for 15 years.
She reported to Store Director Semerjibashian and Division Scan
Manager Fonzo. Klewin’s basic job function was to ensure the
proper pricing, tagging, signing, and documenting of all store mer-
chandise. Klewin worked on a 40-hour week and was hourly paid.
Noble worked a 24-hour week and was paid the same hourly wage
as Klewin. During the investigation of this case Klewin referred to
herself as a supervisor, and stated, “I supervised the work of Lora
Noble.” During the investigation and at the hearing, Noble referred
ALBERTSON’S, INC. 1183
to Klewin as her supervisor and as her boss.8 Semerjibashian testi-
fied that after a short training period for Noble, the only difference
between the duties of Klewin and Noble was that Klewin was a
full-time employee.
During Klewin’s employment as scan coordinator, Klewin
had not hired, rewarded, discharged, laid off, transferred an
employee or recommend that an employee be hired, rewarded,
discharged, laid off, or transferred. However, in June 2000,
Klewin drafted two warning notices for backup scan coordina-
tor Lana Bryant. The warnings were given to Bryant in Semer-
jibashian’s office. Bryant testified that she believed the notices
came from Klewin because Klewin and not Semerjibashian had
knowledge of these deficiencies. Further, Bryant testified that
Klewin and not Semerjibashian checked her work. Klewin
took photographs of Bryant’s work to support the discipline of
Bryant. Semerjibashian testified that Klewin had recom-
mended the discipline for Bryant and that he would not have
issued the discipline absent Klewin’s recommendation.
In August, Klewin recommended a third warning and a sus-
pension for Bryant. Klewin drafted the suspension notice,
signed the notice, and was present when Semerjibashian pre-
sented the warning and suspension to Bryant. Bryant was then
suspended for 1 day. Thereafter, Bryant was told by Fonzo that
Bryant’s days in the scan department were “limited” based on
reports given by Klewin to Fonzo.
Bryant testified that her activities were directed each day by
a task list given to her by Klewin. However, Klewin did not
have to closely supervise or direct Noble’s work because Noble
was an outstanding employee. At the end of each day, Klewin
checked Bryant’s work. Both Bryant and Noble had to speak
with Klewin before taking a day off from work.
The burden of establishing supervisory status rests on the
party asserting supervisory status. Benchmark Mechanical
Contractors, 327 NLRB 829 (1999); Alois Box Co., 326 NLRB
1177 (1998); Youville Health Care Center, 326 NLRB 495
(1998). In cases where an employee deemed a supervisor
would be denied employee rights under the Act, the Board has
been reluctant to find supervisory status. See, e.g., RAHCO,
Inc., 265 NLRB 235 (1982); Westinghouse Electric Corp. v.
NLRB, 424 F. 2d 1151 (7th Cir. 1979), cert. denied 400 U.S.
831 (1970).
It is well settled that an employee cannot be transformed into
a supervisor merely by the vesting of a title and theoretical
power to perform one or more of the enumerated duties listed in
Section 2(11) of the Act. Wilson Tree Co., 312 NLRB 883
(1993); Advanced Mining Group, 260 NLRB 486 (1982). The
exercise of some supervisory authority in a merely routine,
clerical, perfunctory, or sporadic manner does not elevate an
employee into the supervisory ranks, “the test must be the sig-
nificance of her judgments and directions.” NLRB v. Wilson-
Crissman Cadillac, 659 F.2d 728 (6th Cir. 1981); Hydro Con-
duit Corp., 254 NLRB 433 (1981); Commercial Fleet Wash,
190 NLRB 326 (1971).

8 Dupont testified that when she worked as backup scan coordinator,
Klewin was her supervisor. Chris Courier, a scan coordinator for 9
years, testified that she was a supervisor.
The Board has rejected the contention that mere suggestions
are effective recommendations. Brown & Root, Inc., 314 NLRB
19 (1994). The Board has also rejected the contention that
signatures on a discipline form amounted to an effective rec-
ommendation, finding instead that such signatures were for
witness purposes. Necedah Screw Machine Products, 323
NLRB 574 (1997). See also Highland Telephone Cooperative,
192 NLRB 1057 (1971) (where “crew leader” had been occa-
sionally consulted about employee’s progress and had recom-
mended employee’s raise not sufficient to establish supervisory
status). An employee does not become a supervisor merely
because she gives some instructions or minor orders to other
employees. NLRB v. Wilson-Crissman Cadillac, supra. Nor
does an employee become a supervisor because she has greater
skills and job responsibilities or more duties than fellow em-
ployees. Federal Compress & Warehouse Co. v. NLRB, 398
F.2d 631 (6th Cir. 1968).
In the instant case, Klewin’s participation in Bryant’s disci-
pline is the only factor pointing to supervisory status. How-
ever, in similar cases the Board has found that the noting of
information for employee warnings is reportorial and not an
indicia of supervisory authority. Illinois Veterans Home at
Anna L.P., 323 NLRB 890 (1997); Ten Broeck Commons, 320
NLRB 806, 812 (1996); Passavant Health Center, 284 NLRB
887 (1987). The reasoning is that no independent judgment is
involved. Northcrest Nursing Home, 313 NLRB 491 (1993);
Cook Composites & Polymers, Co., 313 NLRB 1105 (1994).
Here, Semerjibashian ordered Klewin to write out warnings for
Bryant and that Semerjibashian and not Klewin decided what
disciplinary action to take. I find that Semerjibashian made an
independent judgment of Bryant’s job performance and that
Klewin merely reported Bryant’s deficiencies as directed by
Semerjibashian.
2. Howey
Beverly Howey is the bookkeeper at store 989. Howey is re-
sponsible for balancing the store sales each day, compiling the
payroll, balancing accounts receivable, handling returned
checks, handling receipts for the store’s dry cleaning operation,
answering the telephone, and a variety of other office and
bookkeeping functions. As part of her duties, Howey “main-
tains confidentiality concerning employees, store sales, and
company information.” As stated earlier, when Semerjibashian
meets with a female employee privately for discipline or coun-
seling, he requests that Howey be present. Howey works
closely with the store director but does not supervise any em-
ployees. Howey does not have the authority to hire, lay off,
promote, transfer, grant a raise, discipline, or draft warnings.
Nor is there any evidence that Howey has the authority to rec-
ommend such action.
The General Counsel, realizing that Howey is not a supervi-
sor, argues that Howey was an agent of Respondent at the May
3 meetings with Klewin and Noble.
The Board applies the common law principles of agency when
determining whether an employee is an agent of the employer.
Southern Bag Corp., 315 NLRB 725 (1994). Apparent authority
results from a manifestation by the principal to the third party that
creates a reasonable basis for the latter to believe that the principal
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1184
has authorized the alleged agent to perform the acts in question.
Southern Bag Corp., ibid.; Beaird Industries, 311 NLRB 768
(1993); Albertson's, Inc., 307 NLRB (1992). The test is whether,
under all of the circumstances, the employees would reasonably
believe that the alleged agent was reflecting company policy and
speaking and acting for management. Waterbed World, 286
NLRB 425, 426–427 (1987). As stated in Section 2(13) of the Act,
when making an agency determination, “the question of whether
the specific acts were actually authorized or subsequently ratified
shall not be controlling.” GM Electrics, 323 NLRB 125 (1997);
Southern Bag Corp., supra.
In Diehl Equipment Co., Inc., 297 NLRB 504 (1989), the
Board found that a bookkeeper was an agent of the employer.
In Diehl, the bookkeeper was a 9-year employee who kept the
employer’s books, handled payroll, and performed various
clerical duties. The bookkeeper told an applicant for employ-
ment that the respondent-employer did not hire union members.
The Board found that the bookkeeper possessed the apparent
authority to speak on the employer’s behalf and, therefore,
spoke as the employer’s agent. Diehl supra, at 507 fn. 21.
In the instant case, Howey worked closely with Store Direc-
tor Semerjibashian. She was present when Semerjibashian met
with female employees for disciplinary purposes. In light of
Howey’s presence at these meetings and Semerjibashian’s fail-
ure to disavow Howey’s comments, I find that Klewin and
Noble would reasonably believe that Howey was reflecting
Respondent’s policy and speaking and acting for Respondent.
E. The Transfer
Pursuant to Section 7 of the Act, employees have the right to
engage in concerted activities for their mutual aid and protection.
Employees having no bargaining representative and no estab-
lished procedure for presenting their grievances may take action
to spotlight their complaint and obtain a remedy. NLRB v. Wash-
ington Aluminum Co., 370 U.S. 9, 12–15 (1962). Accordingly,
an employer may not, without violating Section 8(a)(1) of the
Act, discipline or otherwise threaten, restrain, or coerce employ-
ees because they engage in protected concerted activities.
In this case, Noble and Klewin were engaged in concerted
activities when they discussed their dissatisfaction concerning
Corcoran’s supervisory methods with other employees. These
discussions and calls to the employer’s toll free hotline, were
taken in an effort to protest and change the working conditions
of employees working for and with Corcoran. Where employ-
ees seek to protest the selection or termination of a supervisor
or other management officials, an analysis of whether the em-
ployees’ activities are protected under the Act is fact-based and
depends on whether “such facts establish that the identity and
capability of the supervisor involved has a direct impact on the
employees own job interests and on their performance of the
work they are hired to do.” Dobbs Houses, 135 NLRB 885,
888 (1962), enf. denied 325 F.2d 531 (5th Cir. 1963). See also
Hoytuck Corp., 285 NLRB 904, 907 (1987). Here, I find that
Noble, Klewin, Dupont, Fitton, and other employees were en-
gaged in protected concerted activities in complaining about
Corcoran’s treatment of employees and customers. The protec-
tion of the protected activity does not depend upon the merit or
lack of merit of the grievance. Skrl Die Casting, Inc., 222 NLRB
85, 89 (1976).
Respondent argues that Noble was not engaged in protected
concerted activities on the ground that she was not supervised
by Corcoran and that, therefore, Noble’s complaints were not
related to her terms and conditions of employment. First, I find
that Corcoran’s supervision did have a significant impact on
Noble’s employment. It was Corcoran’s supervisory methods
that caused Noble to give up part-time work as a cashier. Fur-
ther, it was as a result of Corcoran’s supervision that Noble was
involved in the dispute concerning unauthorized codes. It is
also clear that Noble and other employees believed that Cor-
coran was involved in bugging the store.
Second and more important, even if Noble was considered
not personally affected by Corcoran’s treatment of employees
and customers, Noble’s personal involvement in assisting Du-
pont and Fitton, who were more immediately affected by Cor-
coran’s supervision, falls within the “mutual aid or protection
clause” of Section 7 of the Act. Senior Citizens Coordinating
Council, 330 NLRB 1100, 1105 (2000); Delta Health Center,
310 NLRB 26, 43 (1993). Nor may Respondent be absolved
from liability under the Act because it acted in good faith and
without union animus or a willful intent to violate the Act. The
law is well established that when it is once made to appear from
the primary facts that an employer has engaged in conduct
which operates to interfere with an employee’s statutorily pro-
tected right, it is immaterial that the employer was not moti-
vated by antiunion bias or ill intentions.” Fabric Services, Inc.,
190 NLRB 540, 543 (1971). See also NLRB v. Burnup & Sims,
Inc., 379 U.S. 21 (1964), and Time-O-Matic, Inc. v. NLRB, 264
F.2d 96 (7th Cir. 1959). The test is whether the employer en-
gaged in conduct which, it may reasonably be said, tends to
interfere with the free exercise of employee rights under the
Act. Continental Chemical Co., 232 NLRB 705 (1977), and
American Lumber Sales, 229 NLRB 414 (1977).
In Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899
(1st Cir. 1981), cert. denied 455 U.S. 989 (1982), the Board
announced the following causation test in all cases alleging
violations of Section 8(a)(3) or violations of Section 8(a)(1)
turning on employer motivation. First, the General Counsel
must make a prima facie showing sufficient to support the in-
ference that protected conduct was a “motivating factor” in the
employer’s decision. Upon such a showing, the burden shifts
to the employer to demonstrate that the same action would have
taken place even in the absence of the protected conduct. The
United States Supreme Court approved and adopted the
Board’s Wright Line test in NLRB v. Transportation Manage-
ment Corp., 462 U.S. 393, 399–403 (1983). In Manno Electric,
321 NLRB 278, 280 at fn. 12 (1996), the Board restated the test
as follows: The General Counsel has the burden to persuade
that antiunion sentiment was a substantial or motivating factor
in the challenged employer decision. The burden of persuasion
then shifts to the employer to prove its affirmative defense that
it would have taken the same action even if the employees had
not engaged in protected activity.
For the following reasons, I find that the General Counsel
has made a prima facie showing that Respondent was motivated
by unlawful considerations in transferring Noble. First, Noble
ALBERTSON’S, INC. 1185
and Klewin were engaged in protected concerted activities, for
at least 4 months. Second, Respondent was clearly aware of
such activities. There is strong evidence that Semerjibashian and
Respondent lost patience with the activities of these employees.
The transfer occurred after Noble and Klewin were ordered to
cease these protected activities. Finally, Noble was not given any
legitimate business reason for the transfer. Rather, she was later
told that she had been transferred as a favor to Semerjibashian.
The burden shifts to Respondent to establish that the same
action would have taken place in the absence of Noble’s pro-
tected concerted activities. Respondent has not met its burden
under Wright Line.
Respondent contends that Fonzo made the decision to trans-
fer Noble and that Fonzo had no knowledge of Noble’s pro-
tected concerted activities. However, knowledge of a supervi-
sor is properly attributable to an employer. Ready Mixed Con-
crete Co., 317 NLRB 1140 (1995); Pinkerton’s Inc., 295 NLRB
538 (1989); Colson Equipment, 257 NLRB 78 (1981). I find
that the knowledge of Semerjibashian and Respondent’s other
managers is attributable to Fonzo. Further, I find it irrelevant
that Fonzo may have had no unlawful motive. She made the
transfer pursuant to Semerjibashian’s request and as a favor to
the store director. Under such circumstances, Fonzo would be
a mere conduit, and the relevant motive would be that evi-
denced by Semerjibashian’s words and conduct. As stated
above I find Semerjibashian’s conduct to be motivated by a
desire to keep Klewin and Noble from concertedly complaining
about terms and conditions of employment.
Respondent contends that Noble was a good employee and,
therefore, her transfer to store 958 benefited Respondent’s busi-
ness. Where, as here, General Counsel makes out a strong prima
facie case under Wright Line, the burden on Respondent is sub-
stantial to overcome a finding of discrimination. Eddyleon
Chocolate Co., 301 NLRB 887, 890 (1991). An employer cannot
carry its Wright Line burden simply by showing that it had a
legitimate reason for the action, but must “persuade” that the
action would have taken place even absent the protected conduct
“by a preponderance of the evidence.” Centre Property Man-
agement, 277 NLRB 1376 (1985); Roure Betrand Dupont, Inc.,
271 NLRB 443 (1984). “The mere presence of legitimate busi-
ness reasons for disciplining or discharging an employee does not
automatically preclude the finding of discrimination.” J. P. Ste-
vens & Co. v. NLRB, 638 F.2d 676, 681 (4th Cir. 1981). I find
that Respondent has shown that Bryant needed to be replaced at
store 958. Bryant was demoted to a backup scan coordinator and
a replacement scan coordinator was brought in. However, Re-
spondent did not prove that either Bryant or Noble had to be
transferred. I find that Respondent has failed to establish that
Noble would have been transferred absent her protected conduct.
Thus, I find that Respondent has failed to carry its burden under
Wright Line and that the transfer of Lora Noble violated Section
8(a)(1) of the Act. See Bronco Wine Co., 253 NLRB 53 (1981);
Hunter Douglas, Inc., 277 NLRB 1179 (1985).
F. Independent 8(a)(1) Allegations
1. Impression of surveillance
The record shows that Klewin discussed complaints about
Amber Corcoran, front-end manager, with Sarah Clark, Sarah
Tobey, Lori Athey, and Kyle Wood, assistant front-end manag-
ers. Noble and Klewin encouraged Wood and Tobey to call the
hotline and complain about Corcoran. Athey stated that several
employees, including Noble, Klewin, and Dupont complained
to her about Corcoran.
In mid-March 2000, Semerjibashian, conducted a meeting
with front-end managers to discuss their job responsibilities.
At some time during the meeting Semerjibashian made a state-
ment to the effect that the safe room and registers were
“bugged” and employees should watch what they say. Appar-
ently, Semerjibashian’s remarks caused the assistant front-end
managers to believe that the store was “bugged.” In fact, the
store had video surveillance throughout the store and audio
surveillance at the customer service desk. The employees and
supervisors were aware of those security devices. Apparently,
in attempting to tell these supervisors that the audio device at
the customer service desk was sensitive and could pickup some
conversations at nearby registers, Semerjibashian created the
impression that the entire store was “bugged.” Shortly after
this meeting, several of the supervisors informed employees
that Semerjibashian had informed them that all of the registers
were bugged. Supervisors Clark, Tobey, and Athey all in-
formed employees of what they believed Semerjibashian had
said at the supervisors’ meeting Clark and Tobey both told
Noble that the store was bugged, that the only safe place to talk
was outside, and that a couple of individuals could be fired for
what they had said. In the meeting, Semerjibashian had made
reference to inappropriate personal remarks made about Cor-
coran by two of her assistant front-end managers.
In response to the reports that employee conversations were
bugged, Klewin sent anonymous letters on March 23 and April
14, to Respondent’s corporate headquarters requesting that the
recording cease immediately. As a result of Klewin’s letters,
Respondent investigated the matter. Robert Martinez, Respon-
dent’s assistant manager for loss prevention, went to store 989
to investigate the anonymous complaints. On Martinez’s sec-
ond trip to the store he was accompanied by his supervisor,
Sarah Carey, loss prevention manager. During their investiga-
tion, Martinez and Carey interviewed a number of employees
including Dupont, Klewin, and Noble.
In determining whether an employer has created the impres-
sion of surveillance among its employees, the Board uses the
test enunciated in United Charter Service, 306 NLRB 150
(1992). The test is whether employees would reasonably as-
sume from the statement in question that their protected con-
certed activities have been placed under surveillance. South
Shore Hospital, 229 NLRB 363 (1977); Schrementi Bros. Inc.,
179 NLRB 853 (1969).
I find no evidence that Respondent kept the concerted activi-
ties of its employees under surveillance. However, the remarks
made by Athey and the other supervisors reasonably caused
Klewin, Noble and other employees to believe that their conver-
sations about Corcoran, the hotline, and other work conditions
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1186
were under surveillance by Respondent’s management. The fact
that Respondent did not keep the protected activities under sur-
veillance or intend to chill employee protected activities, does not
change this conclusion. United Charter Service, supra. I find the
supervisors’ reports of surveillance of the cash registers and
throughout the store tended to restrain and coerce employees in
the exercise of their Section 7 rights to discuss work concerns
and grievances. Accordingly, I find that Respondent inadver-
tently violated Section 8(a)(1) of the Act.
2. Ordering employees not to engage in protected activities
On the morning of May 3, Semerjibashian summoned Klewin to
his office for a meeting with Howey in attendance. Klewin ex-
plained that the problems in the store were attributable to Cor-
coran’s rude conduct towards employees and even Semerjibashian
himself. Klewin stated that employee morale was low because of
Corcoran and that employees were afraid to speak up because of
retaliation. During this discussion Semerjibashian told Klewin that
he was getting complaints from other department heads about No-
ble and Klewin constantly complaining. He advised Klewin to
schedule Noble on separate shifts so that they did not spend so
much time together. Semerjibashian also stated that he was tired of
being “blind-sided.” Semerjibashian was embarrassed that manag-
ers in the Employer’s divisional office and in its headquarters
found out about problems before he did. Klewin stated that rather
than separate her and Noble, Respondent would be better off deal-
ing with Corcoran, the source of the problem. During this conver-
sation, Klewin asked Howey, who had not spoken earlier, for her
opinion. Howey told Klewin that if any employee approached her ,
she should say that that she wanted “nothing to do with whatever is
happening.” Howey told Klewin that Klewin’s job was to scan and
“that’s it.” Howey added that if other employees had a problem
they should go to Semerjibashian or Sarah Carey. Howey said
employees should not call the employee hotline but, instead, should
call Carey. Semerjibasian did not affirmatively adopt or disavow
Howey’s remarks.
Howey was also present for a meeting on May 3, with Se-
merjibashian and Noble. During the conversation, Howey said
that if employees had complaints, they should speak for them-
selves and that Noble should not speak for other employees.
Semerjibashian did not affirmatively adopt or disavow
Howey’s remarks.
I find that Semerjibashian’s silence in response to Howey’s
remarks created the impression that Respondent was ordering
Klewin and Noble not to engage in protected concerted activi-
ties with other employees and not to engage in protected con-
certed activities on behalf of other employees. I find that Se-
merjibashian’s and Howey’s conduct and actions tended to re-
strain and coerce employees in the exercise of their Section 7
rights to discuss work concerns and grievances. Accordingly, I
find that Respondent violated Section 8(a)(1) of the Act regardless
of its motive.
3. Threats
As discussed earlier, on May 3, Semerjibashian spoke with
Noble, accompanied by Howey. Semerjibashian again com-
plained about being “blind-sided.” He repeatedly stated that
“there’s too much complaining, bitching, too much this, too
much that.” He repeatedly stated that Noble and Klewin had
too many opinions. He told Noble that nothing was perfect that
every store had some problems. Semerjibashian asserted that
Noble and Klewin spent too much time together. He then told
Noble that she and Klewin were about to be “split up.” Semer-
jibashian told Noble not to worry about the store and that her
only concern was the scan department. He confirmed that he
might have to schedule Noble on different hours from Klewin.
As shown above, during this conversation, Howey said that if
employees had complaints, they should speak for themselves
and that Noble should not speak for other employees.
Based on these facts, I find that Respondent through Semer-
jibashian threatened Noble with a change in her work schedule
and/or a transfer because she had engaged in protected con-
certed activities with Klewin and other employees. As found
above, Respondent followed through on this threat by transfer-
ring Noble to store 958.
CONCLUSIONS OF LAW
Respondent is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
1. By creating the impression that it kept the protected con-
certed activities of its employees under surveillance, Respon-
dent violated Section 8(a) (1) of the Act.
2. By ordering employees not to engage in protected con-
certed activities, Respondent violated Section 8(a)(1) of the Act.
3. By threatening to change the work hours and/or transfer
employees for engaging in conduct protected by Section 7 of
the Act, Respondent violated Section 8(a)(1) of the Act.
4. By transferring employee Lora Noble from store 989 be-
cause of her protected concerted activities, Respondent violated
Section 8(a)(1) of the Act.
5. The above unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2(6) and (7)
of the Act.
THE REMEDY
Having found that Respondent engaged in unfair labor prac-
tices, I shall recommend that it be ordered to cease and desist
therefrom and that it take certain affirmative action to effectu-
ate the policies of the Act.
Usually, I would recommend that Respondent offer Lora
Noble full and immediate reinstatement to the position she
would have held, but for her unlawful transfer. However, for
reasons unconnected to this case, Noble voluntarily quit her
employment for a better career opportunity. Thus, a reinstate-
ment remedy is not warranted. Further, normally Respondent
would be directed to make Noble whole for any and all loss of
earnings and other rights, benefits and privileges of employ-
ment she may have suffered by reason of Respondent’s dis-
crimination against her, with interest. Backpay would be com-
puted in the manner set forth in F. W. Woolworth Co., 90
NLRB 289 (1950), with interest as provided in New Horizons
for the Retarded, 283 NLRB 1173 (1987). See also Florida
Steel Corp., 231 NLRB 651 (1977), and Isis Plumbing Co., 139
NLRB 716 (1962). However, the record reveals that Noble did
not suffer financially because of the transfer but rather had
increased earnings as a result of the transfer.
ALBERTSON’S, INC. 1187
Respondent shall also be required to expunge any and all ref-
erences to its unlawful transfer of Noble from its files and notify
Noble in writing that this has been done and that the unlawful
discipline will not be the basis for any adverse action against her
in the future. Sterling Sugars, Inc., 261 NLRB 472 (1982).
On the foregoing findings of fact and conclusions of law, and
upon the entire record, and pursuant to Section 10(c) of the Act,
I issue the following recommended9
ORDER
Respondent, Albertson’s, Inc., Mesa, Arizona, its officers
agents, successors, and assigns, shall
1. Cease and desist from
(a) Creating the impression among its employees that it kept
the protected concerted activities of its employees under sur-
veillance.
(b) Ordering employees not to engage in protected concerted
activities.
(c) Threatening to change the work hours and/or transfer
employees for engaging in conduct protected by Section 7 of
the Act.
(d) Transferring employees in order to discourage activities
protected by Section 7 of the Act.
(e) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days after service by the Region, post at its
stores 989 and 958 in Mesa, Arizona, copies of the attached
notice marked “Appendix.”10 Copies of the notice, on forms
provided by the Regional Director for Region 28, after being
signed by Respondent’s authorized representative, shall be
posted for 60 consecutive days in conspicuous places, including
all places where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to ensure the
notices are not altered, defaced, or covered by other material.
In the event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facilities
involved in these proceedings, the Respondent shall duplicate
and mail, at its own expense, a copy of the attached notice to all

9 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
10 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.”
current employees and former employees employed by the
Respondent at any time since April 2000.
(b) 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 Re-
spondent has taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had a chance to give evi-
dence, the National Labor Relations Board has found that we
violated Section 8(a)(1) of the National Labor Relations Act
and has ordered us to post this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
To organize themselves;
WE WILL NOT create the impression among its employees that
we keep the protected concerted activities of our employees
under surveillance.
WE WILL NOT order employees not to engage in protected
concerted activities.
WE WILL NOT threaten to change the work hours and/or trans-
fer employees for engaging in conduct protected by Section 7
of the Act.
WE WILL NOT transfer employees in order to discourage ac-
tivities protected by Section 7 of the Act.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE HAVE NOT offered reinstatement to Laura Noble to the po-
sition she would have held, but for her unlawful transfer be-
cause Noble voluntarily quit her employment with Albertson’s
to pursue another career. Noble suffered no monetary losses as
a result of her transfer.
WE WILL remove from our files any and all references to the
unlawful transfer of Lora Noble and notify her in writing that
this has been done and that the fact of this unlawful discipline
will not be used against her in any future personnel actions.
ALBERTSON’S, INC.