Bigg's Foods

National Labor Relations Board - Board Decisions

Jun 23, 2006

347 N.L.R.B. 39 (N.L.R.B. 2006)

BIGG’S FOODS
347 NLRB No. 39
425
Supervalu Holdings, Inc. d/b/a Bigg’s Foods and
United Food and Commercial Workers Interna-
tional Union, Local 1099.1 Cases 9–CA–39206, 9–
CA–39696, 9–CA–38747 and 9–CA–39994
June 23, 2006
DECISION AND ORDER
BY MEMBERS LIEBMAN, KIRSANOW, AND WALSH
On September 26, 2003, Administrative Law Judge
Arthur J. Amchan issued the attached decision.2 The Re-
spondent filed exceptions and a supporting brief. The
General Counsel and the Charging Party separately filed
limited cross-exceptions and answering briefs. The Re-
spondent filed an answering brief to the cross-exceptions
and a separate reply brief to the answering briefs of the
General Counsel and the Charging Party.3
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,4 and conclusions and
to adopt the recommended Order as modified below.5

1 We have amended the caption to reflect the disaffiliation of the
United Food and Commercial Workers International Union from the
AFL–CIO effective July 29, 2005.
2 On October 14, 2003, the judge issued a substitute notice for that
attached to his September 26, 2003 decision.
3 There are no exceptions to the judge’s findings that the Respondent
violated Sec. 8(a)(1) by tape recording a conversation with and interro-
gating an employee on February 26, 2002; promulgating a rule prohib-
iting employees from wearing union pins during working time; and
maintaining and enforcing a rule prohibiting employees from entering
its facilities (unless shopping) more than 10 minutes prior to the start of
their scheduled shift or remaining for more than 10 minutes after the
end of their scheduled shifts. Similarly, there were no exceptions to the
judge’s finding that the Respondent violated Sec. 8(a)(3) and (1) by
suspending employee Tina Morgan on March 8, 2002.
4 In finding that the Respondent unlawfully maintained an overbroad
confidentiality rule, we adopt the judge’s analysis and additionally rely
on Cintas Corp., 344 NLRB 943 (2005). There, the Board found
unlawful a confidentiality rule because employees could reasonably
construe it as prohibiting Sec. 7 activity. A like analysis applies here.
As the judge found, employees could reasonably understand the Re-
spondent’s confidentiality rule, which prohibits disclosure of, among
other things, salaries to “anyone outside the company,” as prohibiting
discussion of salaries with union representatives.
Member Kirsanow appreciates that the Respondent and employers
generally have a legitimate interest in safeguarding their confidential
information from disclosure to competitors. In finding, with his col-
leagues, that the Respondent’s confidentiality rule violates the Act, he
observes that nothing in the Board’s Order precludes the Respondent
from modifying its confidentiality policy “so that its interests are pro-
tected and the employees’ Sec. 7 rights are not violated.” Double Eagle
Hotel & Casino v. NLRB, 414 F.3d 1249, 1260 (10th Cir. 2005), cert.
denied 126 S.Ct. 1331 (2006).
5 We shall modify the judge’s recommended Order to conform to the
Board’s standard remedial language. We shall also conform the notice
to the Order.
This case principally concerns the Respondent’s oral
amendment of its written no-distribution rule, its subse-
quent enforcement of that amended rule, and the disci-
pline it imposed on employees under the amended rule.6
For the reasons stated by the judge, as well as the reasons
stated below, we adopt the judge’s findings that the Re-
spondent violated Section 8(a)(1) when it orally amended
its written no-distribution rule in response to its off-duty
employees’ union handbilling activities7 and prohibited
off-duty employees from distributing union handbills to
customers.8 We also adopt the judge’s findings that the

6 In his decision, the judge also discussed exceptions to the Respon-
dent’s written no-distribution rule that gave store managers some dis-
cretion to permit charitable distributions. Although certain aspects of
the judge’s decision could be read to suggest that he found the Respon-
dent’s written no-distribution policy unlawful on this basis, the decision
as a whole does not support that interpretation. The judge did not in-
clude such a violation in his conclusions of law (nor, for that matter,
did he include a remedy for such a violation in his recommended Or-
der), and there were no exceptions to the judge’s failure to do so. The
General Counsel also did not include an allegation in the complaint that
the Respondent’s written rule was facially unlawful on this basis. Thus,
we find it unnecessary to pass on this aspect of the judge’s decision.
7 The Respondent’s written no-distribution rules provide in pertinent
part (rule 2) that “[e]mployees may not distribute materials to other
employees in working areas of the business.” The written rules do not
mention distribution to customers. On April 15, 2002, at the Florence,
Kentucky store, employee Tina Morgan was told that she could not
distribute union handbills to customers in an area that was approxi-
mately 10 feet away from products on display. Later that same day at
the Union Centre store, Morgan was given a similar directive while
handbilling to customers approximately 20–25 feet away from products
on display. The next day, at the Western Hills store, Morgan was told
that she could not handbill to customers anywhere in the shopping
plaza. We agree with the judge that the Respondent amended its writ-
ten rule in response to its employees’ union activities. Moreover, we
additionally find that the Respondent did not clearly communicate to its
employees the scope of the oral amendment to its written no-
distribution rule. In these circumstances, a reasonable employee would
not know what conduct was prohibited by the orally amended rule.
Consequently, the amended no-distribution rule was also ambiguously
overbroad as to the areas where handbilling to customers was not per-
mitted. See Guardsmark, LLC, 344 NLRB 809, 810 fn. 6 (2005)
(Member Liebman dissenting in part on other grounds; Member
Schaumber dissenting in relevant part) (where a no-solicitation rule is
ambiguous, the ambiguity is resolved against the employer, the prom-
ulgator of the rule). Although the Respondent later sought to clarify the
scope of the rule, those clarifications were communicated only to em-
ployees engaged in handbilling. To be effective, a narrowing interpre-
tation of an overly broad rule must be communicated to the entire work
force covered by the rule. Guardsmark, supra, 344 NLRB 809, 810;
Chicago Magnesium Castings Co., 240 NLRB 400, 403-404 (1979),
enfd. 612 F.2d 1028 (7th Cir. 1980).
8 Although the judge cited Tri-County Medical Center, 222 NLRB
1089 (1976), in his decision, he analyzed the case under Santa Fe Hotel
& Casino, 331 NLRB 723 (2000). Because this case does not concern
off-duty employees’ access to the Respondent’s property, we agree
with the General Counsel that Santa Fe Hotel & Casino is the appropri-
ate analysis. Applying that standard, we adopt the judge’s finding that
the Respondent unlawfully prohibited its off-duty employees from
distributing union handbills to customers. We additionally adopt the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD426
Respondent violated Section 8(a)(3) and (1) by disciplin-
ing employees Amy Roberson, Helen Reardon,9 and
Karen Brown.10
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Super-
valu Holdings, Inc. d/b/a Bigg’s Foods, Cincinnati, Ohio,
its officers, agents, successors, and assigns, shall take the
action set forth in the Order as modified.
1. Substitute the following for paragraph 1(h).
“(h) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.”
2. Substitute the attached notice for that of the admin-
istrative law judge.

judge’s findings that on certain occasions the Respondent unlawfully
prohibited off-duty employees from handbilling anywhere on the prem-
ises when there were locations in the shopping plazas where handbill-
ing would have been permissible under either the Respondent’s written
or amended no-distribution rule.
There were also three occasions in which union handbills were dis-
tributed to employees as well as to customers. In agreement with the
judge, we find that the Respondent unlawfully prohibited handbilling to
customers on these occasions. The record does not show, however, any
occasion where union handbills were distributed only to employees.
Consequently, we do not reach the question of whether handbilling
only to employees in any of the locations in question would have come
within the scope of the Respondent’s written prohibition against distri-
bution to employees in working areas of the business.
9 In finding that the discipline issued to Roberson and Reardon vio-
lated Sec. 8(a)(3), we adopt the judge’s analysis and additionally rely
on Double Eagle Hotel & Casino, 341 NLRB 112 fn. 3 (2004), enfd. as
modified 414 F.3d 1249 (10th Cir. 2005), cert. denied 126 S.Ct. 1331
(2006).
10 On October 10, 2002, Brown distributed union handbills to cus-
tomers by the entrance of the Colerain Avenue store. The record indi-
cates that Brown was stationed “fairly close” to products on display for
sale. Brown stopped handbilling after the Respondent told her that she
was violating the Respondent’s orally amended no-distribution rule.
The Respondent, however, suspended Brown for her handbilling con-
duct even though Brown had never before been told in which specific
areas handbilling was impermissible under the Respondent’s orally
amended no-distribution rule. On November 26, 2002, Brown again
distributed union handbills to customers at the Colerain Avenue store in
an area approximately 10–15 feet from products on display. Brown was
initially suspended and eventually discharged for her November 26
handbilling. Under Double Eagle Hotel & Casino, supra, Brown’s
October 10 suspension violated Sec. 8(a)(3) because it was imposed
pursuant to an unlawfully amended rule as discussed above. Absent this
unlawful suspension, Brown would not have been later discharged
under the Respondent’s progressive discipline policy. Thus, as the
judge found, that discipline also violated Sec. 8(a)(3).
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT discharge, suspend, or otherwise dis-
criminate against any of you for supporting United Food
and Commercial Workers Union, Local 1099, or any
other labor organization, or for distributing union litera-
ture or other protected literature in nonworking areas
during nonworking time.
WE WILL NOT enforce or maintain a rule that prohibits
employees from distributing union literature or other
literature pertaining to concerted protected activity in
nonworking areas during nonworking time.
WE WILL NOT call the police or threaten to call the po-
lice to enforce a rule that prohibits employees from dis-
tributing union literature or other protected literature in
nonworking areas during nonworking time.
WE WILL NOT enforce or maintain a rule that prohibits
employees from being in employee break areas on the
exterior of our stores more than 10 minutes before or 10
minutes after their shift.
WE WILL NOT enforce or maintain a rule that prohibits
employees from wearing quarter-sized or smaller buttons
or pins above their nametags while working that demon-
strate membership or support for any union.
WE WILL NOT tape record conversations with employ-
ees due to their union activities or coercively interrogate
employees about their union activities.
WE WILL NOT maintain a confidentiality policy that
could be interpreted as prohibiting employees from dis-
cussing salaries with anyone outside of the Company.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s
Order, offer Karen Brown and Helen Reardon full rein-
BIGG’S FOODS 427
statement to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions, without
prejudice to their seniority or any other rights or privi-
leges previously enjoyed.
WE WILL make Amy Roberson, Tina Morgan, Karen
Brown, and Helen Reardon whole for any loss of earn-
ings and other benefits resulting from their unlawful dis-
charge or discipline, less any net interim earnings, plus
interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful discharges of Karen Brown and Helen Reardon and to
the unlawful discipline of Amy Roberson, Tina Morgan,
Karen Brown, and Helen Reardon and, WE WILL, within
3 days thereafter, notify each of them in writing that this
has been done and that the unlawful discharges and dis-
cipline will not be used against them in any way.
WE WILL amend our confidentiality policy so as to
clarify that employees are not prohibited from discussing
salaries with anyone outside of the Company.
SUPERVALU HOLDINGS, INC. D/B/A BIGG’S
FOODS
Naima R. Clarke, Esq., for the General Counsel.
Keith P. Spiller and Eric S. Clark, Esqs. (Thompson, Hine
LLP), of Cincinnati, Ohio, for the Respondent.
Peter M. Fox, Esq. (Kircher, Robinson & Welch), of Cincinnati,
Ohio, for the Charging Party.
DECISION
STATEMENT OF THE CASE
ARTHUR J. AMCHAN, Administrative Law Judge. This case
was tried in Cincinnati, Ohio, on April 28 through May 1, and
June 2 and 3, 2003. The charges were timely filed between
April 1, 2002, and February 13, 2003 and the second consoli-
dated complaint was issued on March 26, 2003.
This case primarily concerns handbilling by four of Respon-
dent’s employees; Tina Morgan, Amy Roberson, Karen Brown,
and Helen Reardon, who are also union organizers. These in-
dividuals passed out union handbills in front of the entrances
and/or exits of several Bigg’s’ grocery stores when they were
off duty. In a number of instances, Respondent ordered these
employees to refrain from handbilling and called the police
when they refused to do so. Each of the four was disciplined
for allegedly violating Biggs’ no-solicitation/no-distribution
rule. Brown and Reardon were ultimately terminated for dis-
tributing union literature outside of Respondent’s stores. The
General Counsel alleges that Respondent’s no-solicitation/no-
distribution rule violated Section 8(a)(1) of the Act and that the
discharges of Brown and Reardon violated Section 8(a)(3) and
(1) of the Act.
Respondent also terminated Morgan and Roberson. Morgan
was fired for violating Respondent’s confidentiality policy by
posting sales information on the Union’s website. Roberson
was fired for giving her business card to another employee
while both were on the clock at her cash register. The General
Counsel does not allege that these terminations violated the
Act, but contends that both were disciplined on earlier occa-
sions in violation of Section 8(a)(3) and (1). Morgan was sus-
pended for returning late from a break and Roberson received a
written warning and a suspension for distributing handbills.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel, Respondent, and the Charging Party, I
make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, Bigg’s Foods, a corporation, is a subsidiary of
Supervalu Holdings, Incorporated. Bigg’s operates a number
of retail facilities in the Cincinnati, Ohio vicinity, from which it
sells groceries and related products. It annually derives gross
revenues from each of these facilities in excess of $500,000 and
receives at each of these facilities goods valued in excess of
$50,000 directly from places outside of the State of Ohio, or in
the case of the Florence, Kentucky store, directly from places
outside the Commonwealth of Kentucky. Respondent admits
and I find that it is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act and that the
Union, the United Food and Commercial Workers International
Union (UFCW), Local 1099, is a labor organization within the
meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
In late January and/or early February 2002, pursuant to the
settlement of previous unfair labor practice charges, Respon-
dent hired four UFCW organizers. Three, Tina Morgan, Amy
Roberson, and Karen Brown, were full-time employees of the
Union. The fourth, Helen Reardon, is apparently a volunteer
organizer for the Union. Morgan and Roberson were hired as
front-line (checkout) cashiers at Bigg’s Union Centre store in
West Chester, Ohio. Morgan worked from about January 28,
until April 1, 2002. Roberson worked from January 28 until
mid-June 2002.
Reardon worked as a front-line cashier at the “Skytop,” Ohio
store from January 28 until December 3, 2002. Brown worked
in the bakery at Respondent’s Colerain Avenue store in metro-
politan Cincinnati from February to November 26, 2002. So
far as this record indicates, the Union is not the authorized col-
lective-bargaining representative of any Bigg’s employees.
Respondent, by Chris Devers, the manager of its Florence,
Kentucky store, violated Section 8(a)(1) of the Act on or about
February 26, 2002, by tape recording a discussion with an em-
ployee concerning Respondent’s work rules because the em-
ployee joined and assisted the Union and to discourage em-
ployees’ union activities. Respondent, by Chris Devers, also
violated the Act by interrogating an employee about the em-
ployee’s union activities on February 26, 2002 (complaint pars.
5(a) and (b) and 11; stipulations at Tr. 17).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD428
A. Tina Morgan’s March 8, 2002 Suspension
(Complaint Par. 10(a))
Respondent accords employees who work 4 to 6 hours in a
day a 15-minute paid break. Employees working 6 hours or
more are entitled to two 15-minute breaks. Employees working
8 hours or more are entitled to two 15-minute breaks and a 30-
minute unpaid meal. Employees must clock in and out for
breaks and meals.
Jenny Diehl, who supervised the front-line cashiers at Union
Centre, began to enforce the breaktimes in mid-February 2002
after service desk employees advised her that breaks and
lunches were falling behind schedule due to cashiers returning
late. Front-line leads and employees under the age of 18 were
exempted from Diehl’s strict enforcement of the breaktimes.
Tina Morgan was 1-minute late in returning from her 15-
minute break on February 12, 2002; 2 minutes late from return-
ing from break on February 15, and 3 minutes late in returning
from break on February 16. Diehl issued Morgan a “counsel-
ing” or written warning for these incidents on February 22,
2002 (GC Exh. 13). Several other employees were also issued
counselings or written warnings at this time.
According to Diehl, one of the service desk employees at the
Union Centre store came to her on the evening of Tuesday,
March 5, to report that Morgan was late returning from break
again. Morgan clocked out for break at 5:16 p.m. and clocked
back in at 5:33 p.m., 2 minutes late. Diehl further testified that
because of this report she pulled timeclock punches for front-
line employees. On the basis of her review of the timeclock
punches, she suspended Morgan for 1 day on March 8, 2002
(GC Exh. 14).
In order to prove a violation of Section 8(a)(3) and (1), the
General Counsel must generally make an initial showing that
(1) the employee was engaged in protected activity; (2) the
employer was aware of the activity; and (3) the activity was a
substantial or motivating reason for the employer’s action.
Once the General Counsel makes this initial showing, the bur-
den of persuasion shifts to the Respondent to prove its affirma-
tive defense that it would have taken the same action even if the
employees had not engaged in protected activity, Wright Line,
251 NLRB 1083 (1980), enfd. 662 F.2d 899 (lst Cir. 1981); La
Gloria Oil & Gas Co., 337 NLRB 1120 (2002). The General
Counsel and the Union allege that the discriminatory motive for
Morgan’s suspension is established by the disparate manner in
which Respondent treated her tardiness compared with other
employees.
I agree. Morgan was the only employee suspended for re-
turning late from breaks, as opposed to being given a written
warning.1 Respondent distinguishes Morgan’s case from other
employees in that Morgan was suspended only after having
been written up previously for returning late from breaks.
However, I infer that because of its animus towards her union
affiliation, Respondent was watching Morgan much more

1 The disciplinary actions taken against Tammy Browning and Ryan
Gabbard in April 2002 are not comparable. Browning was repeatedly
late for work as well as late returning from break. Gabbard, on several
occasions, did not show up for work without giving Respondent the
required 2-hour notice so that it could find a replacement for him.
closely than other employees and seized upon the first opportu-
nity to suspend her because she was a union organizer. More-
over, at least one other employee, Mary Jo Jones, who was not
suspended, had a far worse punctuality record than Morgan.
Respondent has made no credible argument for treating Morgan
more severely than Jones.
I find Diehl’s explanation as to how she was apprised of
Morgan’s tardiness on March 5 and why she only considered
only late time punches prior to March 7 in implementing disci-
pline incredible. At transcript 787 Diehl testified that the ser-
vice desk employees “had expressed a concern because we
were on [sic] telling the service desk employees to make sure
breaks and lunches were running very smoothly.” Thus, Diehl
implies that an unnamed service desk reported to her when she
noticed that Morgan had returned from break 2 minutes late on
the afternoon of March 5.
I find that either Diehl was monitoring Morgan to catch her
returning late from breaks or that she had specifically told ser-
vice desk employees to advise her whenever Morgan was late.
I draw this inference due to obvious lack of concern shown by
Diehl and/or service desk employees with the punctuality of
another front-line cashier supervised by Diehl, Mary Jo Jones.
During the period from February 10–16, Morgan was late re-
turning from break three times; she and several other employ-
ees were given counselings or written warnings. Jones was late
returning from break four times during this period and received
no discipline.
While it’s possible that Diehl merely overlooked Jones’s tar-
diness for that week, Jones was late returning from break on
four occasions during the week of February 17–23. Morgan
was not late once during this period.
During the week of March 3–9, Morgan was late once—by 2
minutes; Jones’ punctuality record for the week is as follows
(GC Exh. 15(c)):
Tuesday, March 5 (the day for which Morgan was sus-
pended):
Jones clocked in at 8:01 a.m. She went on break at
10:01; returned at 10:17 (one minute late).
Jones clocked out for lunch at 11:59 a.m.; returned at
12:33 a.m. (four minutes late).
Jones clocked out for break at 2:17 p.m., returned at
2:33 p.m. (one minute late).
Thursday, March 7:
Jones clocked in at 8:01 a.m. She went on break at
9:56 a.m.; returned at 10:14 a.m. (three minutes late).
Jones clocked out for lunch at 11:54 a.m.; returned at
12:28 p.m. (four minutes late).
Jones clocked out for break at 2:41 p.m.; returned at
3:01 p.m. (five minutes late).
Friday, March 8, (the day Diehl suspended Morgan):
Jones clocked in at 8:00 am; she went on break at
10:03 a.m.; returned at 10:21 a.m. (three minutes late).
Jones clocked out for lunch at 12:00 p.m.; returned at
12:31 p.m. (one minute late).
Jones clocked out for break at 2:04 p.m.; returned at
2:20 p.m. (one minute late).
BIGG’S FOODS 429
I conclude that Diehl and the service employees noticed
Morgan’s tardiness and ignored Jones’ tardiness because they
were closely monitoring Morgan but not Jones, because Mor-
gan was a union organizer and Jones was not.2 I conclude fur-
ther that Respondent’s monitoring of Morgan was motivated by
its animus towards her activities on behalf of the Union.
The following week Jones was late from returning from
break three times. Diehl issued her a written warning; rather
than a suspension on March 23 (R. Exh. 35). During the period
from February 10 through March 16, 2002, Morgan was late
returning from break four times for total of 8 minutes. Jones
was late returning from break or lunch at least 23 times for at
least 47 minutes. Jones had never been written up for late
breaks prior to March 23. However, I find that Diehl and those
reporting to her could only have been unaware of Jones’ pro-
longed breaks only if they were paying close attention to Mor-
gan and not to Jones, because of Morgan’s union affiliation. I
therefore conclude that Morgan’s suspension violated Section
8(a)(3) and (1).
1. April 15, 2002
In early April, Bigg’s suspended Morgan for violating its
confidentiality policy by posting the gross sales figures for the
Union Centre store on the Union’s website. On May 2, Re-
spondent fired Morgan for this reason.3 In the interim, Morgan
and Roberson began distributing handbills outside the entrances
of several Bigg’s stores.4 The message on the handbills pro-

2 Kathy Hicks took a 37-minute lunchbreak on February 10 and a
45-minute lunchbreak on February 16. On February 26, Bigg’s issued
Hicks a written counseling for being late once returning from lunch
during the week of February 10–16. On February 17, Hicks took a 43-
minute lunchbreak and apparently nobody noticed that she was 13
minutes late returning from lunch. Hicks was 1-minute late in returning
from break on March 3 and again on March 4, but Diehl apparently
didn’t notice or simply ignored this when she reviewed the timecards
on March 8. Hicks received no additional discipline.
Patricia Retherford, who was late returning from her break or meal
on nine different occasions in February, returned from her break 1-
minute late on March 4 and 5. There is no evidence that Respondent
had a policy of excusing a 1-minute deviation from an employee’s
breaktime. In fact, Morgan was counseled in part for being 1-minute
late on February 12.
3 The General Counsel does not allege that Bigg’s violated the Act
by discharging Morgan.
4 Bigg’s does not allege in any of these incidents that Morgan,
Roberson, Brown, or Reardon blocked entry into its stores or interfered
with the work of its employees. In almost all the incidents the only
employees working in the vicinity of the handbillers, if any, were em-
ployees gathering carts from the parking lot. However, Biggs’s’ em-
ployees were required to work on items displayed outdoors. Collec-
tively, employees could spend several hours per day watering and prun-
ing plants displayed outside the stores. Outdoor displays of items such
as pumpkins, apples, mulch, firewood, or ice melt had to be restocked,
or reorganized periodically.
In every instance in which Bigg’s management employees ap-
proached handbilling employees, they were informed or already knew
that they were Bigg’s’ employees. In all, or at least most of these in-
stances, the Bigg’s personnel also knew that Morgan, Roberson,
Brown, and Reardon were union organizers, who were working pursu-
ant to a settlement between the Union and Bigg’s.
tested Morgan’s suspension and alleged that it was motivated
by her support for the Union.5
Morgan first distributed handbills protesting her suspension
to customers and to some employees at one of the two en-
trances to the Florence, Kentucky store. Morgan positioned
herself on the sidewalk about 10 feet in front of the entrance
doors. She was about 10 feet from some plants that Bigg’s
displayed for sale outside of this entrance. The only employees
working in the area were those moving shopping carts.
Annette Cheatham, the assistant store manager, approached
Morgan and told her that she was violating Respondent’s no-
solicitation/no-distribution rule and that she would have to stop
distributing her handbills. Morgan told Cheatham that she was
an employee at Bigg’s’ Union Centre store. Cheatham told
Morgan that if she didn’t stop distributing the handbills she
could be arrested. Cheatham then summoned Store Manager
Chris Devers, who called the local police. When the police
arrived, Morgan left.6
Morgan and Bill Dudley, the Union’s director of strategic
operations and organizing, then drove to the Union Centre
store. Morgan began distributing handbills at the produce en-
trance. Respondent was not displaying any items for sale out-
side this entrance although bags of mulch were displayed out-
side the store some distance from where Morgan was handbill-
ing.
After Morgan had distributed a handbill to one customer,
Jenny Diehl, the operations manager at the Union Centre store,
and Glenn Glazier, the grocery manager, approached her and
told her that she was violating Respondent’s no-solicitation/no-
distribution policy and that they would call the police if she did
not stop. They gave Morgan a letter from the owner of the
Union Centre Pavilion dated April 9, 2002, stating that the
owner had delegated to Bigg’s the authority to prevent trespass-
ing in the shopping center. Morgan wrote on this document
that she received it on April 15. Store Manager Michael
Macaluso came out of the store and also told Morgan that Re-
spondent would call the police if she continued to distribute
handbills. Bigg’s called the police and Morgan left.7

5 This was the theme of all the handbills distributed by the Union in
the spring of 2002 at Respondent’s stores.
6 I credit Tina Morgan’s account of this incident where it conflicts
with that of Annette Cheatham. In particular, I find it likely that Mor-
gan and other union representatives left the Florence store only when
the police arrived. This is consistent with their conduct in similar inci-
dents.
7 At Tr. 766, Jennifer Diehl testified that she first encountered Amy
Roberson handbilling on Friday, April 19, 2002. Diehl did not contra-
dict Morgan’s testimony about her interaction with Morgan on April
15, and she conceded that she observed Morgan handbilling at the
Union Centre store on a date she could not recall. Respondent did not
call Glenn Glazier, who was still the grocery manager at Union Centre
at the time of trial, and should also have been able to directly contradict
Morgan about the events of April 15, if she was making them up. In
contrast, the Union called Bill Dudley as a rebuttal witness to corrobo-
rate Morgan’s testimony with regard to the events of April 15.
Similarly, Store Manager Michael Macaluso did not directly contra-
dict Morgan regarding April 15; he essentially ignored it (Tr. 841).
However, Macaluso’s notes, Exh. R-43, suggest that April 18 was not
the first occasion that Macaluso told Morgan not to handbill at his
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD430
As of April 15, 2002, Bigg’s solicitation and distribution pol-
icy provided in relevant part:
1. Solicitation for any cause and distribution of any
materials by employees is prohibited at all times when one
or more of the involved employees is on work time.
2. Employees may not distribute materials to other
employees in working areas of the business.
3. Solicitation and/or the distribution of literature for
political causes or gambling is prohibited at all times in all
areas of the business. . . .
4. . . . .
5. Solicitation and/or the distribution on company
premises by non-employees is prohibited at all times. . . .
6. The only exception to items 1 and 2 above, is com-
pany-sponsored charitable contributions such as the
United Way Fund Drive. Solicitation for fundraising for
matters such as any employee or a relative of an employee,
a birth or death . . . may be conducted only with the ad-
vance approval of the Human Resources Department, or
store manager in a retail business. . . .
7. Retail store managers may approve solicitation
and/or distribution by nonprofit community organizations
from time to time on an infrequent basis, provided that
such activities are non disruptive and further the store’s
business and goodwill interests. [GC Exh. 4.]
The policy on its face does not prohibit off-duty employees
from soliciting and distributing literature to customers or other
nonemployees.
2. April 16, 2002
On April 16, Morgan went to Bigg’s store in Western Hills
with Bill Dudley. She then began distributing handbills outside
of one of the entrances. Tom Brink, the store manager, ap-
proached Morgan. There is a conflict between the testimony of
Morgan and Brink as to whether any items were displayed for
sale nearby. Brink testified that there were plants near the en-
trance; Morgan testified that she saw no products for sale. I
find it unnecessary to resolve this conflict. Even after Morgan
informed Brink that she was a Bigg’s’ employee, he told Mor-
gan that she could not distribute literature anywhere in the
shopping plaza including the parking lot. At trial, Brink testi-
fied that she could have distributed literature in the employee
break area outside the store, but that is not what he told her on
April 16.
Morgan and Dudley then went to the Colerain store where
Morgan again distributed handbills. Paula Meece, a human
relations specialist at the store, approached Morgan and told her
she was violating Respondent’s no-solicitation/no-distribution
policy. When Morgan refused to leave, Meece called the po-
lice. The officers responding to the call talked to Dudley who
told them that Morgan had a right to distribute literature under
the NLRA. The police officers declined to take any action
other than asking Morgan to remove her company uniform;
Morgan removed her Bigg’s apron and nametag, turned her

store. This note states, “I approached her and told her we have a no
solicitation policy in the center, that this is the second time she is asked
to leave and not return.”
polo shirt inside out, and continued to handbill for another 10
minutes.8 There were some plants displayed outside the store
although it is not clear how close Morgan was to these items.
3. April 17, 2002
Morgan returned to Union Centre on April 17, 2002. Mor-
gan went inside looking for Store Manager Mike Macaluso, but
he was not at work. She talked to a management employee
named Larry Poe instead and told him she intended to distribute
handbills. Poe told Morgan she would have to handbill out by
the street, off of Bigg’s property. Morgan told Poe that he
might want to call Mike Brooks, Bigg’s director of operations.
Morgan went outside and stood near an entrance that was
some distance from mulch that was on display. No products
were displayed for sale at this entrance. Poe came outside
about 10 minutes later. He told Morgan that he had spoken to
Brooks and that she could stand at the entrance, but not to block
it. Morgan cut Poe off and told him that she knew what she
could do and what she couldn’t do.
Respondent invokes the “Ten-Minute Rule” on April 17,
2002, to prohibit Roberson from waiting outside the Union
Centre store more than 10 minutes before the start of her shift.
Soon after the September 11, 2001 terrorist attacks in New
York and Washington, D.C., the Food and Drug Administration
issued guidelines for protecting the nation’s food supply from
terrorists. These guidelines are recommendations and do not
have the force of law.
Pursuant to these guidelines, and instructions from its parent
company, Supervalu Holdings, Inc., Bigg’s distributed to its
employees new rules regarding food security in March 2002.
One of these rules provides that:
We welcome employees as customers. However, unless
shopping, employees should not enter the store more than ten
minutes before the start of their scheduled work shift and
should leave the store within ten minutes after the end of the
scheduled work shift.
(GC Exh. 5, p. 2, Daily Work Assignments, par. 2.)
On April 17, 2002, Amy Roberson arrived at the Union Cen-
tre store at 9:30 a.m., one-half hour before the start of her work
shift at 10 a.m. She went to the smoking break area outside of
the store. Store Manager Mike Macaluso approached her and
told Roberson she could not wait in the smoking area because
of the new 10-minute rule.
4. April 18, 2002
Tina Morgan returned to Union Centre on April 18, 2002, to
handbill and was met by Store Manager Mike Macaluso. Their
testimony conflicts as to whether only mulch was displayed in
the area in which Morgan attempted to handbill, or also, as
Macaluso testified, bedding plants on pallets. In any event,

8 Meece testified that she did not see Morgan prior to April 19 or
calling the police. I credit Morgan. Her testimony and Meece’s indi-
cates that Exh. 10(c) was a photograph taken by Dudley of Morgan
handbilling at Colerain on April 16. Morgan’s testimony that Dudley
went to Colerain with her on April 16 and not on April 19 is consistent
with Dudley’s absence from Respondent’s videotape exhibit, R-12
taken on April 19, Exhs. R-10 and 11, and Meece’s testimony that she
had met Dudley.
BIGG’S FOODS 431
Macaluso informed Morgan that she was not allowed to distrib-
ute literature anywhere in the shopping plaza and that if she
persisted he would call the police. Morgan left the premises.9
The same day Morgan went to Respondent’s Mason, Ohio
store on Fields Ertel Road. Mike Bracken, the store manager,
told Morgan she was not allowed to distribute literature where
she was located and that he would call the police if she didn’t
stop. There is a conflict in testimony as to whether there were
any items displayed for sale where Morgan was standing. At
trial, Bracken testified that he would have allowed Morgan to
handbill in the employee break area. He did not tell her this
and she did not inquire as to whether there were any areas on
the exterior of the store in which Respondent would allow her
to handbill.
5. April 19, 2002
Amy Roberson distributed handbills at Union Centre on
April 19.10 She came within 4–6 feet of flowers and mulch that
was displayed for sale. Roberson distributed a handbill to a
Bigg’s employee entering the store. Store Manager Mike
Macaluso told Roberson that she could not distribute literature
anywhere in the shopping plaza and that she could not distrib-
ute literature to employees who were on break.11 There were
areas in front of the store where no products were displayed for
sale. Macaluso did not indicate to Roberson that she would be
allowed to distribute handbills in these areas (Tr. 885). When
Roberson persisted in handbilling, Macaluso called the police.
Bigg’s issued Roberson a written warning for her violation
of the Company’s no-solicitation/no-distribution policy. Al-
though Respondent has a progressive discipline policy in which
a first offense usually is punished with a verbal warning, Bigg’s
gave Roberson a written warning on the theory that she had
been apprised of its policies in orientation.
Macaluso refused to allow Roberson to work her shift on
April 19. However, after he consulted with Operations Director
Michael Brooks, Bigg’s paid Roberson for the shift she missed.
Morgan and Roberson drove from Union Centre to the Colerain
Avenue store where they distributed handbills, at least one of
which was handed to an employee going to work and one to a
customer looking at flowers displayed outside the entrance. No
employees were working in the area except those collecting
shopping carts from the parking lot.
Store Manager Ron Gribbens told Morgan and Roberson
they couldn’t handbill and ultimately called the police. At trial
Paula Meece testified that Morgan and Roberson would not
have been in violation of Respondent’s no-solicitation/no-
distribution policy if they had handbilled in the parking lot or
nonworking areas. However, on April 19, neither Meece nor
Gribbens told either Morgan, Roberson, or the police that there

9 Tr. 884, LL. 1–3 are mistranscribed. I asked Macaluso if he told
Morgan that there were areas outside the store where she could solicit.
He confirmed that he did not tell her that she was free to solicit at other
locations on the exterior of the Union Centre store.
10 Morgan met Roberson at Union Centre, but did not handbill.
Store Manager Macaluso told Morgan she was not allowed anywhere in
the shopping plaza.
11 Macaluso did not contradict Roberson’s testimony on this issue at
Tr. 142.
was any area outside the store in which employees were al-
lowed to distribute handbills.
6. April 23 or 24, 2002
Roberson distributed handbills at the produce entrance of the
Union Centre store on April 23 or 24, 2002. Racks of flowers
were displayed nearby. Mike Macaluso approached Roberson
and told her she was not allowed to distribute handbills in the
shopping plaza. He ultimately called the police and Roberson
left. Bigg’s suspended Roberson for 3 days as a result of this
incident.
7. April 25, 2002
On April 25, 2002, Karen Brown, a union organizer who was
working in the bakery at the Colerain store, handbilled for 15–
20 minutes outside an entrance to that store in area in which no
items for displayed for sale. Several management officials
were aware of her presence and did nothing to stop Brown from
handbilling.
8. May 7, 2002
On May 7, Brown attempted to handbill outside the produce
entrance of the Colerain store. While there were no items dis-
played by the produce entrance, Brown at times approached
flowers that were on display at the front of store (Tr. 248).
Paula Meece and Store Manager Ron Gribbens approached
Brown and told her she was violating Respondent’s no-
solicitation/no-distribution rule. She refused to leave until they
called the police. When the police arrived, Brown left. Re-
spondent did not discipline Brown as a result of this incident.12
B. May 18, 2002,—Store Manager Michael Macaluso Sends
Amy Roberson Home for Refusing to Remove a Union Button
From Her Shirt
On May 18, 2002, Amy Roberson wore a quarter-sized
UFCW button above her nametag on her Bigg’s polo shirt.
While she was at her cash register, Store Manager Michael
Macaluso approached Roberson and told her that she had to
remove the button because she was a violating the company
dress code. While Macaluso testified that he could not see
Roberson’s button well enough to see that it was a union pin, I
find that he knew it was a UFCW pin regardless of whether or
not he could see it. Macaluso was aware that Roberson was a
UFCW organizer who was working at his store pursuant to the
settlement of previous unfair labor practice charges. He also
had confronted Roberson recently for distributing handbills in
front of his store on two occasions and had suspended her.
Roberson refused to remove the button, arguing that other em-
ployees wore noncompany buttons on their uniforms and that
there was no company rule prohibiting them.
Macaluso then walked down the cashier’s line looking for
cashiers who were wearing noncompany sanctioned insignias.
Another cashier, Karen Gellison, was wearing a pin depicting
hands folded in prayer. Macaluso told Gellison to take the pin
off and she apparently did so. There is no evidence that Re-
spondent ever enforced a rule prohibiting the wearing of such

12 The statement in R. Br. 23, that Brown was suspended in October
2002 “because she had been previously warned in writing regarding
handbilling a working area in May 2002,” is incorrect (Tr. 213–214).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD432
items previously, although several management employees
were aware that employees wore noncompany pins while on
duty [e.g., Tr. 212–213; Karen Brown wore a union button for
an extended period at the Colerain store; Jenny Diehl saw
Roberson with her union button at Union Centre and said noth-
ing, Tr. 733]. Further, Respondent’s dress code (R. Exh. 33, p.
17) does not either directly of indirectly suggest that the wear-
ing of noncompany buttons is prohibited. I conclude that the
first time Bigg’s interpreted its dress code to prohibit buttons,
pins or insignias was on May 18, when Macaluso noticed
Roberson wearing what he knew was a union button.13
1. October 10, 2002
Karen Brown distributed union handbills at the produce en-
trance of the Colerain store on October 10, 2002. These hand-
bills unfavorably compared the benefits accorded to Bigg’s
employees with those accorded unionized employees at other
subsidiaries of Supervalu Holdings.14 While pacing in front of
the store, Brown came close to flowers displayed under the
windows outside of the cashier’s stations. The new store man-
ager, Darryl Caldwell, and Human Relations Specialist Paula
Meece approached Brown and told her that she was violating
Respondent’s no-solicitation policy. Meece told Brown that
Respondent would call the police if Brown continued to dis-
tribute material; Brown refused to stop.
Caldwell and Meece went back inside the store and called
Respondent’s counsel. Afterwards, they went back outside and
told Brown that she could not handbill in any of Respondent’s
selling areas. Brown did not distribute any literature on Octo-
ber 10, after being told that she could not distribute near any
selling areas.15 Caldwell and/or Meece told Brown that she
could distribute material by the pharmacy entrance, where no
items were displayed. Brown did not distribute by the phar-
macy entrance.
October 10 was the first occasion that Respondent informed
any representative of the Union as to what it considered to be a
working area in which the distribution of union literature by
employees was forbidden and what was a nonworking area in

13 There is no evidence that Roberson lost any pay as the result of
being sent home early for refusing to remove the union button. The
General Counsel has not alleged that an 8(a)(3) violation with regard to
this incident.
Roberson was fired on June 2, 2002, for giving her business card to
another employee while both were on duty. The General Counsel has
not alleged that Roberson’s discharge violated the Act—although at
first glance it appears unlikely that Respondent would have fired
Roberson for this incident had she not previously received two suspen-
sions, which the General Counsel alleges were illegal.
14 The contrast between benefits for Bigg’s employees and those at
unionized stores of Supervalu subsidiaries was the theme of all the
handbills distributed by Brown and Reardon during the fall of 2002.
15 Caldwell at Tr. 495 testified that when he initially approached
Brown, he told her she was not allowed to distribute her literature be-
cause she was in a selling area. However, his testimony at Tr. 496 and
his notes of October 10 (Exh. R-24), Meece’s testimony and notes (Tr.
422; Exh. R-15) make it clear that neither Caldwell nor Meece drew the
distinction between selling areas and nonselling areas when they first
confronted Brown. Moreover, Meece’s notes corroborate Brown’s
testimony that when Caldwell and Meece told her that she could not
distribute in selling areas, Brown “said ok and left.”
which employees could distribute literature. Prior to this date,
Bigg’s either said nothing, merely told the union employees
they were in a working area, or told union representatives that
they were prohibited from distributing their literature anywhere
on the exterior of the stores. On October 11, Respondent dis-
played items for sale in front of the pharmacy entrance as well
in front of the produce entrance.
On October 19, Bigg’s issued Brown a 3-day suspension for
violating its no solicitation/no distribution rule on October 10.
She had previously received a 1-day suspension for wearing a
T-shirt to work that said, “Bigg’s violates workers rights” in-
stead of her company uniform shirt. There is no evidence that
Brown violated Respondent’s written solicitation and distribu-
tion policy. There is no evidence, for example, that she distrib-
uted a handbill to any employee.
2. October 16, 2002
On October 16, 2002, Helen Reardon, a voluntary union or-
ganizer working at Respondent’s “Skytop” store, distributed
handbills in front of the grocery entrance to that facility.16 The
grocery entrance was one of four entryways into the store and
was the primary entrance. Reardon stood on the sidewalk in
front of the entrance 5–10 feet from pumpkins and other pro-
duce displayed by the doors.
Store Manager Chad Sanders approached Reardon and told
her to stop distributing handbills. Reardon told Sanders that
she was entitled to distribute literature in nonworking areas.
Sanders replied that the area in which she was standing was a
working area. When Reardon refused to leave, Sanders called
the police. It is clear from Sanders’ testimony and his notes of
the incident that he considered any location on Bigg’s property
to be a “working area.” He told the police, and they told
Reardon that she could distribute handbills only on Beechmont
Avenue, a public street (Tr. 673–674; R. Exh. 28). Respondent
suspended Reardon for 3 days as a result of this incident. She
had previously been suspended for 1 day for leaving work
early.
Unlike other store managers or Biggs’s management offi-
cials, Sanders concedes that he allows some charitable organi-
zations to solicit on store property with his permission (Tr.
647). When Sanders confronted Reardon and talked to the
police he gave no indication that there was anywhere on
Biggs’s property she would be allowed to distribute literature.
At trial, he testified that he would not have allowed Reardon to
distribute in front on the grocery entrance even if she stood on
the asphalt surface in the fire lane of the parking lot. He opined
that she would still be in a “working area” because the mums
on display would only have been 8 feet from her.
3. October 22, 2002
Karen Brown and Helen Reardon distributed handbills at an
entrance to Biggs’s’ “Ridge and Highland” store on October
22, 2002. Respondent did not have any products displayed
outside of this entrance when they arrived. Store Manager
Robert Miller approached Brown and Reardon and told them
that he would call the police if they did not stop distributing the

16 These handbills had the same or similar message to those distrib-
uted by Brown.
BIGG’S FOODS 433
handbills. Miller then went back into the store and shortly
thereafter an employee moved bins of pumpkins from another
entrance to the one at which Brown and Reardon were standing.
Brown and Reardon left a few minutes later.17
4. November 7, 2002
On November 7, 2002, Karen Brown distributed handbills at
the pharmacy entrance to the Colerain Avenue store. There
were no items displayed for sale at this entrance and Respon-
dent made no effort to stop her.
5. November 14, 2002
Karen Brown went back to the Ridge and Highland store on
November 14, 2002, and distributed handbills. Biggs’s was not
displaying any items for sale in the area in which she was pac-
ing. Bernie Schlesinger, a store manager, approached Brown
and told her that she could not distribute handbills because she
was in a selling area. When Brown asked what items Biggs’s
was selling in the area, Schlesinger mentioned a newspaper
vending machine from which USA Today was sold.18 Brown
left shortly thereafter.
6. November 26, 2002
Brown handbilled again at Colerain on November 26, 2002.
Brown was as close as 3–4 feet to items being displayed on
sale. Store Manager Darryl Caldwell approached Brown and
demanded that she stop. Brown refused and Caldwell called
the police.
Shortly after Brown reported for her work shift on the same
day, Bigg’s suspended her. On December 6, it terminated her
employment for violating its no-solicitation/no-distribution
policy on November 26. As was the case in the October inci-
dent, there is no evidence that Brown violated Bigg’s written
solicitation and distribution policy by giving a handbill to an
employee in a working area.
7. December 3, 2002
Helen Reardon distributed handbills again in front of one of
the exit doors at the Skytop store on December 3, 2002. Pump-
kins, firewood, and other items were displayed for sale outside
of these doors. Reardon was somewhere in the vicinity of 4–10
feet from the doors and the products for sale, standing on the
sidewalk. Store Manager Chad Sanders demanded that she stop
distributing handbills, Reardon declined and Sanders called the
police. When the police arrived Reardon left. Bigg’s termi-
nated Reardon for violating its no-solicitation/no-distribution
rule on December 3.

17 Brown and Reardon’s account of this incident is uncontroverted.
Miller, who still worked for Biggs’s at the time of the hearing in this
matter, did not testify (Tr. 969–970).
18 Michael Brooks, Respondent’s operations director, testified that he
considered only those areas in which products are displayed which are
stocked by Bigg’s employees, to be working areas. Thus, areas in
which only newspaper or soft drink vending machines are present
would not be a working area and employees would be free to distribute
union literature within those areas.
C. Is Respondent’s No-Solicitation/No-Distribution Rule
Valid as Written and Enforced?19
At issue is the validity and Respondent’s enforcement of its
rule that “employees may not distribute materials to other em-
ployees in working areas of the business.” Respondent’s writ-
ten rules against solicitation and distribution did not prohibit
the distribution of literature by off-duty employees to custom-
ers or other nonemployees. While, absent a discriminatory
motive, Bigg’s could have amended this rule, either orally or in
writing, it only did so in response to handbilling by the Union.20
Thus, even if Respondent could otherwise promulgate such a
rule, I find that the rule is illegal due to its discriminatory mo-
tive, Youville Health Care Center, 326 NLRB 495 (1998); State
Chemical Co., 166 NLRB 455 (1967). The fact that the “oral
rule” against promulgation by employees to customers was
discriminatory is established by the fact that Bigg’s never dis-
seminated such a rule to all its employees; it only disseminated
it to the discriminatees when it discovered them distributing
literature to customers outside its stores.
Respondent’s no-solicitation/no-distribution policy makes an
exception for “company-sponsored charitable contributions
such as the United Way Fund Drive.” It also allows solicita-
tions conducted with the prior approval of the human resources
department for fund-raising campaigns conducted on behalf co-
workers on the occasions of such events as a birth, death, etc.
The Supreme Court stated in NLRB v. Babcock & Wilcox
Co., 351 U.S. 105 (1956), that an employer may validly post
his property against nonemployee distribution of union litera-
ture . . . if [it] does not discriminate against the union by allow-
ing other distribution. The Board has held that an employer
violates Section 8(a)(1) of the Act when it prohibits labor or-
ganizations from distributing literature while discriminating in
favor of certain charitable organizations, Albertson’s, Inc., 332
NLRB 1132 (2000). Board law provides an exception for “a
small number of beneficent acts,” Hammary Mfg. Corp., 265
NLRB 57 fn. 4 (1982). Respondent’s policy which on its face
gives Respondent unfettered discretion to allow distribution by
charities it favors is overly-broad and violates the Act under
current Board law.
On the other hand, the United States Court of Appeals for the
Sixth Circuit [the circuit in which this case arises] explicitly
sanctioned some discrimination against union distribution in
Cleveland Real Estate Partners v. NLRB, 95 F.3d 457 (6th Cir.
1996)—at least insofar as the owners of private commercial
premises forbid handbilling by “nonemployee” union organiz-
ers engaged in nonorganizational informational activity di-
rected at the general public.21 However, the court has not ap-

19 Despite the repetitive use of the word solicitation, the parties
herein agree that the instant case only concerns the distribution of lit-
erature at the exterior of Respondent’s stores by employees.
20 Skytop employee Patti Wesselman received a verbal warning on
August 29, 2002, for soliciting customers for her personal business
while on the clock; a clear violation of Respondent’s no-solicitation/no-
distribution rule as written (Exh. R-27).
21 While I read the holding of Cleveland Real Estate Partners to ap-
ply only to distribution by “nonemployee organizers,” the discussion at
95 F.3d at 465, certainly suggests that the court may also allow a prop-
erty owner, who allows solicitation and distribution by charitable or-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD434
plied this rule to discrimination against union activity by em-
ployees. In at least two cases, Meijer v. NLRB, 130 F.3d 1209,
1213–1217 (6th Cir. 1997); and NLRB v. St. Francis Health-
care Center, 212 F.3d 945, 958–969 (6th Cir. 2000), the court
enforced Board orders finding an 8(a)(1) violation against em-
ployers who in the absence of compelling special circum-
stances, forbid employees from wearing union pins, while al-
lowing employees to wear nonlabor related company-approved
pins.22 The Sixth Circuit has also held that an employer who
tries to forbid employees from distributing literature in non-
work or mixed areas during nonworking time violates the Act,
United Parcel Service v. NLRB, 228 F.3d 772 (6th Cir. 2000).
Restrictions that apply to nonemployee union organizers are
at least in some circumstances illegal when employed to organ-
izers or other individuals who are employees of the employer.
In Lechmere, Inc. v. NLRB, 502 U.S. 527 (1956), the Court held
that employers are generally entitled to bar nonemployee union
organizers from their property. However, the Lechmere deci-
sion does not apply to the distribution of union literature by
employees, Nashville Plastic Products, 313 NLRB 462
(1993).23 The controlling Board case with regard to the distri-
bution of union literature by employees is Tri-County Medical
Center, 222 NLRB 1089 (1976). The Board found that Tri-
county violated Section 8(a)(1) in preventing an employee from
distributing union literature in front its hospital and in the rear
parking lot on a day when he was not scheduled to work.
The Board held that an employer’s rule which denies access
to off-duty employees [and inferentially their right to distribute
literature] is valid only if (1) it limits access solely with respect
to the interior of the plant and other working areas (emphasis
added); (2) is clearly disseminated to all employees; and (3)
applies to off-duty employees for any purpose and not just to
those employees engaging in union activity. The Board con-
cluded that, “except where justified by business reasons, a rule
which denies off-duty employees entry to parking lots, gates
and other outside nonworking areas will be found invalid.”
The Tri-County decision makes it clear that there may be ar-
eas on the exterior of an employer’s premises to which an em-
ployer can deny access to off-duty employees and prevent them
from distributing union literature. Left open, however, by the
Board and by Respondent’s no-distribution/no-solicitation rule
is the issue of what constitutes an outside work area.

ganizations, and/or the distribution of other nonlabor relations material,
to discriminate against employees who are distributing union literature
to the general public.
22 The United States Court of Appeals for the District of Columbia
Circuit, which might also review the instant matter, has found that
discrimination in favor of non labor-related solicitation/distribution
violates Sec. 8(a)(1), Lucile Salter Packard Children’s Hospital v.
NLRB, 97 F.3d 583, 587 and fn. 4 (D.C. Cir. 1993).
23 An organizer who works for an employer is an “employee” within
the meaning of the Act, Town & Country Electric, 516 U.S. 85 (1995).
At p. 38 of its brief, Respondent suggests that the Lechmere holding
may, or should be, extended to off-duty employees as well as nonem-
ployees. If so, there will be little left of employee Sec. 7 rights, since
employees at work can only distribute literature at break and meal
times.
In Santa Fe Hotel & Casino, 331 NLRB 723 (2000), the
Board held that an employer may not effectively destroy the
right of employees to distribute literature by categorizing as a
work area entrances to its facility where the activities per-
formed are incidental to its main function. In that case, the
employer had argued that the entrances to its gambling casino
were work areas on account of security, maintenance, and gar-
dening activities that employees performed at these entrances.24
The Court of Appeals for the Sixth Circuit, however, appears
to allow employers to prohibit outdoor handbilling on the basis
of minimal work activity. In Pikeville United Methodist Hospi-
tal v. Steelworkers, 109 F.3d 1146, 1157 (6th Cir. 1997), the
court found that the employer could prohibit employee hand-
billing at the front entrance of a hospital because patients were
dropped off there and, thus, the entrance constituted a “work
area.”
On balance, I find that under certain conditions Respondent
could prohibit employees from distributing union literature in
front of its stores in areas in which products are displayed for
sale without violating the Act.25 However, Respondent would
also have to prohibit all noncompany related distribution in
such areas and clearly disseminate its rule to all employees, Tri-
County, supra.
With the exception of the October 10 and November 26,
2002 incidents at the Colerain store, Respondent enforced its
no-distribution rule in an overly broad manner to include areas
on the outside of the stores where no items were displayed for
sale and where no work was being performed. This includes its
prohibition of distribution in the employee smoking areas on
the exterior of the buildings. Thus, I find that Respondent vio-
lated Section 8(a)(1) in maintaining an enforcing an overly
broad no distribution rule since April 15, 2002. Although, I
find that a valid rule was communicated to Karen Brown on
October 10, 2002, at the Colerain store, a valid rule was never
generally disseminated or communicated to employees.
D. Respondent Violated the Act in Threatening to Call
the Police and/or Calling the Police as Alleged in
Complaint Paragraph 7
Respondent violated Section 8(a)(1) in threatening to call the
police and/or calling the police to enforce an invalid, overly-

24 Respondent states at p. 43 of its brief that handbilling to discour-
age customers from shopping at Bigg’s is not entitled to the same level
of protection as more traditional Sec. 7 activities, citing Jean Country,
291 NLRB 11, 14 (1988). First of all, Jean Country involved solicita-
tion by nonemployee organizers, rather than employees. Secondly,
there is no distinction between the Sec. 7 right to solicit employees and
nonemployees, Stanford Hospital & Clinics v. NLRB, 325 F.3d 334,
343 (D. C. Cir. 2003); Santa Fe Hotel & Casino, supra. “The right of
employees to distribute union literature during nonworktime and in
nonwork areas is not limited only to distribution to prospective union
members. Employees have a statutorily protected right to solicit sym-
pathy, if not support, from the general public, customers, supervisors,
or members of other labor organizations,” NCR Corp., 313 NLRB 574,
576 (1993).
25 It is unnecessary for me to decide whether Respondent could pro-
hibit employee distribution of union literature in an area in which the
only products displayed were items such as propane tanks or firewood,
which may require very infrequent attention by Bigg’s employees.
BIGG’S FOODS 435
broad no-distribution rule on every occasion alleged in para-
graph 7 of the complaint:
April 15, 2002 at the Florence, Kentucky store;
April 15, 2002 at the Union Centre store;
April 18, 2002 at the Union Centre store;
April 18, 2002 at the Mason (Fields Ertel Road) store;
April 19, 2002 at the Colerain Avenue store;
April 24, 2002 at the Union Centre store;
May 7, 2002 at the Colerain Avenue store;
October 10, 2002 at the Colerain store [Paula Meece
threatened to call the police before she told Karen Brown
that she was only prohibited from distributing literature in
selling areas];
October 16, 2002 at the Skytop store;
October 22, 2002 at the Ridge and Highland store;
November 26, 2002 at the Colerain store;26
December 3, 2002 at the Skytop store.
Respondent also violated the Act as alleged in complaint
paragraph 8, when Thomas Brink and Michael Macaluso told
the employee/organizers that they could not distribute union
literature anywhere on the property of the shopping center in
which the Western Hills and Union Centre stores were located.
Respondent violated Section 8(a)(3) and (1) of the Act in is-
suing a written warning to Amy Roberson on April 22, 2002,
and suspending her on April 26, 2002. It violated the Act in
suspending Karen Brown on October 19, 2002, and suspending
Helen Reardon on October 19, 2002. Bigg’s also violated the
Act is discharging Karen Brown and Helen Reardon in Decem-
ber 2002.
Under current Board law it is not clear whether any disci-
pline taken under an overly broad no-solicitation/no-
distribution rule is lawful. Given that fact, I will apply the law
as stated by former Chairman Hurtgen in Mt. Clemens General
Hospital, 335 NLRB 48 fn. 2 (2001), enfd. 328 F.3d 837 (6th
Cir. 2003), and former Member Cowen in Baptist Medical Cen-
ter/Health Midwest, 338 NLRB 346, 349 fn. 17 (2002). Under
certain limited circumstances, an employer may take discipli-
nary action against an employee pursuant to a rule that is inva-
lid if it makes it clear that it is enforcing the rule in a manner
that is not overly broad.
On October 10, Respondent clearly explained to Karen
Brown which areas on the exterior of its Colerain store it
deemed to be a working area and which areas it deemed to be
nonworking areas. However, I conclude that all discipline is-
sued to the discriminatees as the result of their handbilling vio-
lated the Act. As noted previously, Respondent’s written rules
against solicitation and distribution did not prohibit the distri-
bution of literature by off-duty employees to customers or other
non-employees. Bigg’s illegally “amended” its rule orally in
response to handbilling by the Union, Youville Health Care

26 On November 26, Karen Brown was distributing literature in a
working area after having been informed on October 10, by Respondent
that distributing literature in a selling/working area was prohibited—but
that distribution elsewhere did not violate its rule. However, there is no
evidence that Brown violated Respondent’s written no distribution rule
by distributing handbills to employees in a working area.
Center, 326 NLRB 495 (1998); State Chemical Co., 166
NLRB 455 (1967). The fact that the “oral rule” against prom-
ulgation by employees to customers was discriminatory is es-
tablished by the fact that Bigg’s never disseminated such a rule
to all its employees; it only disseminated it to the discrimina-
tees when it discovered them distributing literature to custom-
ers outside its stores.
Even assuming that Respondent lawfully disciplined Brown
after the November 26 incident, it did not lawfully discharge
her. Brown was discharged because she had been disciplined
twice before. The 3-day suspension Bigg’s gave to Brown on
October 19 for handbilling on October 10 was unlawful.
Brown did not distribute literature on that day after she was
informed that she was in a working area and that she was only
prohibited from distributing literature in working areas where
no products were being sold. Had Brown not received the sus-
pension in October, she would not have been terminated pursu-
ant to Respondent’s progressive discipline system in December.
All other disciplinary actions taken by Respondent for viola-
tions of its no-solicitation/no-distribution rule were unlawful
also because they were taken pursuant to an overly-broad rule
that was communicated in its illegal manner to the employees.
The illegal disciplinary actions include: Amy Roberson’s April
22 written warning, Roberson’s April 26 suspension, the Octo-
ber 19 suspension of Reardon, and the December termination of
Reardon The General Counsel has not alleged that Roberson’s
discharge in June was illegal. However, it is clear that
Roberson would not have been discharged for handing an em-
ployee her business card while both were on the clock but for
previous disciplinary actions, which were unlawful.
Roberson was given a written warning April 22 for handbill-
ing on April 19 (GC Exh. 17). Respondent skipped the verbal
warning step in its progressive discipline program because it
had informed Roberson of its no-solicitation/no-distribution
policy at her orientation in January 2002. However, a lawful
no-solicitation/no-distribution rule was never communicated to
Roberson. Roberson received a 3-day suspension for handbill-
ing on April 24. She apparently was not disciplined for wear-
ing her union button in May but was fired in June for distribut-
ing her business card while working at her cashier’s station.
Respondent was entitled to discipline Roberson for the June
incident, but it is highly unlikely that Roberson would have
been fired in June but for the unlawful written warning and
unlawful suspension in April. The testimony of Jenny Diehl,
the Bigg’s supervisor who administered discipline to Roberson,
strongly suggests that Roberson would not have been fired in
June had that been her first violation of Respondent’s no-
solicitation/no-distribution rule. Nevertheless, I cannot find a
violation of the Act because Roberson’s discharge may not
have been fairly and fully litigated (see Tr. 776).
E. Respondent Violated Section 8(a)(1) by Prohibiting
Amy Roberson From waiting in the Outside Employee
Break Area More than 10 Minutes Before the Start of
Her Shift on April 17, 2002
When Store Manager Michael Macaluso prohibited Amy
Roberson from waiting in the outside employee break area a
half-hour before her shift began on April 17, he invoked a rule
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD436
that by its terms applies only to the interior of the store. Re-
spondent has not demonstrated any business reason that justi-
fies it in denying Roberson access to the area, Tri-County, su-
pra. For example, there is no indication that prohibiting off-
duty employees from this area had any relationship to protect-
ing the nation’s food supply from terrorists. Moreover, I find
that Macaluso, who knew Roberson was a union organizer and
who had prohibited Tina Morgan from distributing union litera-
ture anywhere in the Union Centre shopping plaza 2 days ear-
lier, was motivated by antiunion animus in ordering Roberson
to leave this area. Therefore, I find Bigg’s by Michael
Macaluso violated Section 8(a)(1) on April 17, 2002, and con-
tinues to violate the Act insofar as it denies off-duty employees
access to outside nonworking areas more than 10 minutes be-
fore or after their shift.
F. Respondent Violated the Act by Orally Promulgating
on May 18, 2002, and Maintaining a Rule at its Union
Center Store Prohibiting Employees from Wearing Union
Pins During Working Time
First of all, I find that Michael Macaluso promulgated Re-
spondent’s rule against the wearing of noncompany insignias
on May 18, 2002, as a reaction to observing Roberson’s union
pin. Thus, even if Respondent could otherwise promulgate
such a rule, I find that the rule is illegal due to its discrimina-
tory motive, Youville Health Care Center, supra; State Chemi-
cal Co., supra.
Moreover, employees have a protected right to wear union
insignia, Holladay Park Hospital, 262 NLRB 278, 279 (1982).
An employer may not lawfully restrict employees from wearing
union insignia unless it demonstrates the existence of “special
circumstances,” such as where the display of such insignia
unreasonably interferes with a public image which the em-
ployer established as part of its business plan through appear-
ance rules for its employees, United Parcel Service, 312 NLRB
596, 597 (1993), enf. denied 41 F.3d 1068 (6th Cir. 1994);
NLRB v. Autodie, International, 169 F.3d 378, 383 (6th Cir.
1999).
Employee contact with customers, in of itself, does not jus-
tify a prohibition of union insignia. The legality of the prohibi-
tion depends on a number of factors, one of which is the size of
the insignia, Produce Warehouse of Coram, 329 NLRB 915
(1999). Other things being equal, a quarter-size union pin worn
above an employee’s nametag does not establish a “special
circumstance” justifying a Respondent in prohibiting such in-
signias. In this case, Bigg’s has not made the showing neces-
sary to prohibit Roberson from wearing her button, Meijer, Inc.
v. NLRB, 130 F.3d 1209, 1215 (6th Cir. 1997).27
G. Did Respondent’s Confidentiality Policy When
Read in Conjunction with its Data Confidentiality
Statement Violate the Act?
Paragraph 6(b) of the complaint alleges that since about May
14, 2002, Respondent has maintained a rule prohibiting em-

27 The Meijer court distinguished the decision in United Parcel Ser-
vice v. NLRB, 41 F.3d 1068 (6th Cir. 1998), by the fact that UPS had
the sole right under its collective-bargaining agreement to promulgate
and enforce appearance standards.
ployees from discussing their salaries with persons who are not
employed by Respondent. However, the theory of a violation
in the briefs of both the General Counsel and the Charging
Party is quite different. Essentially, they argue Respondent
violated Section 8(a)(1) of the Act by requiring employees to
sign a data confidentiality agreement, which when read in con-
junction with its confidentiality policy, subjects employees to
discipline for discussing salaries with anyone outside the Com-
pany.
Respondent’s confidentiality policy (GC Exh. 2(a)) states
that information regarding sales volumes, profit margins, adver-
tising, promotional plans, financing, salaries, future expansion,
information from personnel records, and other confidential data
are considered to be particularly vulnerable to the kind of dis-
closure that would allow competitors to compete unfairly with
Bigg’s (emphasis added). The policy provides that Bigg’s:
reserves the right to have employees agree to sign a statement
of non-disclosure as a condition of their employment. This
statement simply promises that employees will not share any
information such as that listed to anyone outside the company.
The confidentiality policy is reviewed with all new Bigg’s
employees at least at the Union Centre and Forest Fair stores
(Tr. 1011–1012). New employees are then required to sign a
data confidentiality statement. In this statement the employee
acknowledges that he or she will be exposed to sensitive and
confidential information which could include, but is not limited
to profitability, sales data, promotional plans, budget data,
business plans, personnel records, and payroll records. The
confidentiality statement, unlike the confidentiality policy, does
not specifically mention salaries. The employee agrees not to
divulge “this information in any manner which might be detri-
mental to the conduct of Bigg’s business” and acknowledges
that failure to abide by the conditions of the confidentiality
statement could be grounds for discipline (GC Exh. 2(b)).
I find that Respondent violated Section 8(a)(1) in maintain-
ing a confidentiality policy, which on its face suggests that an
employee could be disciplined for divulging salary information
to persons, not associated with Bigg’s. Even without the data
confidentiality statement, an employee could interpret Respon-
dent’s reservation of the right to have employees agree to sign a
statement of nondisclosure as an indication that discipline
might result from disclosing salary information to persons out-
side of Bigg’s.
Moreover, when the confidentiality policy and the data con-
fidentiality statement are considered together, as they were in
employee orientations, an employee would most likely be left
with the impression that he or she could be disciplined for dis-
cussing salaries with anyone outside of Bigg’s, including union
representatives. As a result, Bigg’s maintenance of its confi-
dentiality policy standing alone and considered in conjunction
with the data confidentiality statement, violates the Act, IRIS,
U.S.A., Inc., 336 NLRB 1013 (2001). The instant case is dis-
tinguishable from Super K-Mart, 330 NLRB 263 (1999), relied
upon by Respondent, in that Bigg’s confidentiality policy spe-
cifically mentions salaries whereas Kmart’s’ policy did not.
BIGG’S FOODS 437
CONCLUSIONS OF LAW
1. Since April 15, 2002, Respondent has violated Section
8(a)(1) of the Act by orally promulgating, maintaining and
enforcing a rule prohibiting employees from distributing union
literature during nonworking time, in nonworking areas on the
exterior of its Colerain, Florence, Mason, Ridge and Highland,
Skytop, Union Centre, and Western Hills stores. It also ille-
gally and discriminatorily promulgated and enforced a rule
forbidding off-duty employees from distributing literature to
customers or other nonemployees at the exterior of its stores.
2. On May 18, 2002, Respondent violated Section 8(a)(1) by
orally promulgating a rule prohibiting employees from wearing
union pins during their working time at its Union Centre store.
3. Respondent has violated Section 8(a)(1) by threatening to
call the police and calling the police to have employees arrested
for trespass because they distributed union literature during
nonworking time at the exterior of its stores on the following
dates in the following locations:
April 15, 2002 at the Florence, Kentucky store;
April 15, 2002 at the Union Centre store;
April 18, 2002 at the Union Centre store;
April 18, 2002 at the Mason (Fields Ertel Road) store;
April 19, 2002 at the Colerain Avenue store;
April 23 or 24, 2002 at the Union Centre store;
May 7, 2002 at the Colerain Avenue store;
October 10, 2002 at the Colerain store [Paula Meece
threatened to call the police before she told Karen Brown
that she was only prohibited from distributing literature in
selling areas];
October 16, 2002 at the Skytop store;
October 22, 2002 at the Ridge and Highland store;
November 26, 2002 at the Colerain store;
December 3, 2002 at the Skytop store.
4. Respondent violated Section 8(a)(1) in telling employees
they could not distribute union literature anywhere on the prop-
erty of the Western Hills shopping center on April 16, 2002,
and on the property of the Union Centre shopping center on
April 18 and 19, 2002.
5. Respondent violated Section 8(a)(1) on April 17, 2002, by
telling Amy Roberson that she could not enter the break area on
the exterior of the Union Centre store more than 10 minutes
before the start of her shift.
6. Respondent violated Section 8(a)(3) and (1) of the Act in:
(a) Issuing a written warning to Amy Roberson on
April 22;
(b) Suspending Amy Roberson on April 26;
(c) Suspending Karen Brown on October 19, 2002;
(d) Suspending Helen Reardon on October 19, 2002;
(e) Discharging Karen Brown in December 2002; and
(f) Discharging Helen Reardon in December 2002.
(g) Suspending Tina Morgan on March 8, 2002.
7. Respondent, by Chris Devers, the manager of its Florence,
Kentucky store violated Section 8(a)(1) of the Act on or about
February 26, 2002, by tape recording a discussion with an em-
ployee concerning Respondent’s work rules because the em-
ployee joined and assisted the Union and to discourage em-
ployees’ union activities. Respondent, by Chris Devers, also
violated the Act by interrogating an employee about the em-
ployee’s union activities on February 26, 2002.
8. Respondent has violated Section 8(a)(1) at all times rele-
vant to this case in maintaining a confidentiality policy that an
employee could reasonably interpret to prohibit the discussion
of salaries with anyone outside of Bigg’s.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
The Respondent having discriminatorily discharged employ-
ees, it must offer them reinstatement and make them whole for
any loss of earnings and other benefits, computed on a quarterly
basis from date of discharge to date of proper offer of rein-
statement, less any net interim earnings, as prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), plus interest as com-
puted in New Horizons for the Retarded, 283 NLRB 1173
(1987).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended28
ORDER
The Respondent, Supervalu Holdings, inc. d/b/a Bigg’s
Foods, Cincinnati, Ohio, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Discharging, suspending or otherwise discriminating
against any employee for supporting United Food and Com-
mercial Workers International Union, Local 1099, or any other
union, or for distributing union or other protected literature in
nonworking areas during nonworking time.
(b) Enforcing and maintaining its overly broad no-
distribution rule insofar as it prohibits employees from distrib-
uting union literature during nonworking time in nonworking
areas at its Western Hills, Mason, Colerain, Florence, Union
Centre, Ridge and Highland, and Skytop stores.
(c) Enforcing and maintaining its illegal prohibition of the
wearing of union buttons at its Union Centre store.
(d) Enforcing and maintaining its illegal prohibition against
employees waiting in the outside break area of the Union Cen-
tre store before and after their work shifts.
(e) Calling the police and threatening to call the police to en-
force its overly broad no-distribution rule at its Western Hills,
Mason, Colerain, Florence, Union Centre, Ridge and Highland,
and Skytop stores.
(f) Tape recording conversations with employees because of
union activities and coercively interrogating employees about
union activities.

28 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD438
(g) Maintaining an overly broad confidentiality policy,
which could be interpreted as prohibiting employees from dis-
cussing salaries with anyone not affiliated with Respondent.
(h) In any like or related manner restraining or coercing em-
ployees in the exercise of the rights guaranteed 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 from the date of this Order, offer Karen
Brown and Helen Reardon full reinstatement to their former
jobs or, if those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any other rights
or privileges previously enjoyed.
(b) Make Amy Roberson, Tina Morgan, Karen Brown, and
Helen Reardon whole for any loss of earnings and other bene-
fits suffered as a result of the discrimination against them, in
the manner set forth in the remedy section of the decision.
(c) Amend its confidentiality policy so as to clarify that em-
ployees are not prohibited from discussing salaries with anyone
outside of Bigg’s.
(d) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful discipline and/or dis-
charges of Amy Roberson, Tina Morgan, Karen Brown, and
Helen Reardon, and within 3 days thereafter notify them in
writing that this has been done and that the discipline and/or
discharges will not be used against them in any way.
(e) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
(f) Within 14 days after service by the Region, post at its
Western Hills, Mason, Colerain, Florence, Union Centre, Ridge
and Highland, and Skytop stores copies of the attached notice
marked “Appendix.”29 Copies of the notice, on forms provided
by the Regional Director for Region 9, after being signed by the
Respondent’s authorized representative, shall be posted by the
Respondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other material. In
the event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facility in-
volved in these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respondent at
any time since February 26, 2002.
(g) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.

29 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.”