City Market, Inc.

National Labor Relations Board - Board Decisions

Dec 15, 2003

340 N.L.R.B. 1260 (N.L.R.B. 2003)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1260
Dillon Companies, Inc. d/b/a City Market, Inc. and
United Food and Commercial Workers, Local 7,
AFL–CIO. Cases 27–CA–17679, 27–CA–17851,
and 27–CA–17957
December 15, 2003
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS
SCHAUMBER
AND WALSH
On May 23, 2003, Administrative Law Judge Thomas
M. Patton issued the attached decision. The Respondent
filed exceptions and a supporting brief, and the General
Counsel filed exceptions, a supporting brief, and an an-
swering brief to the Respondent’s exceptions. The Re-
spondent filed an answering brief to the General Coun-
sel’s exceptions, and the Charging Party filed an answer-
ing brief to the Respondent’s and General Counsel’s ex-
ceptions. The General Counsel filed a reply brief to the
Respondent’s answering brief.
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,1 and conclusions and
to adopt the recommended Order.
The judge found, and we agree, that the Respondent
violated Section 8(a)(1) of the Act when, during the or-
ganizing campaign, it promulgated a no-solicitation rule.
Although that rule was facially valid, the Respondent
instituted it specifically in response to its employees’
union organizing activities. Further, the Respondent
failed to show that it promulgated the rule to maintain
production and discipline.2
The Respondent posted a “No-Solicitation Policy” and
“Interoffice Memorandum” on an employee bulletin
board in the store’s breakroom on February 8, 2002.

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance 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.
We note that there are no exceptions to the judge’s recommended
dismissals except for his dismissal of the allegation that the Respondent
violated Sec. 8(a)(1) by its increased use of security guards to engage in
surveillance of its employees’ union activities.
2 NLRB v. Roney Plaza Apartments, 597 F.2d 1046, 1049 (5th Cir.
1979), enfg. 232 NLRB 409 (1977) (“promulgation of a [new rule]
upon the commencement of a union organizational campaign is strong
evidence of discriminatory intent,” although the employer may demon-
strate that imposing the new rule “was justified because the union cam-
paign brought about substantial work disruption.”).
This posting came after the Union had resumed an organ-
izational campaign. The Union had lost a representation
election held in the prior August. The Union had filed
objections, and the Board had ordered a rerun election.3
Store Manager Peter Palmer testified that the Respondent
posted the policy in response to two employees’ com-
plaints of organizing efforts by union supporters. We
agree with the judge’s finding that there is no evidence
that the solicitation attempts that preceded the posting
involved unlawful or unprotected activity.
Our dissenting colleague confuses the presumption re-
garding the legality of a no-solicitation rule with the pre-
sumption regarding the timing of such a rule. Under Pey-
ton Packing, 49 NLRB 828 (1943), and Republic Aviation
Corp. v. NLRB, 324 U.S. 793 (1945), rules like the one
here are presumed to be lawful on their face. That pre-
sumption is not rebutted here, and thus the rule is lawful.
However, this case involves the timing of the promulga-
tion of the rule. Where, as here, the rule has lain dormant
for a substantial period of time, and is resurrected only in
the context of a union campaign, there is a reasonable
presumption of a nexus between those two events. In
addition, if the timing can be explained by matters apart
from the campaign, the Respondent, as the promulgator,
is in the best position to adduce evidence of that explana-
tion. Phrased differently, once it is shown that the rule
was promulgated in the context of a union campaign, the
burden of explanation lies with the employer.
Here, the Respondent has offered as an explanation,
only the complaints of employees. However, there is no
showing that these employees were solicited in coercive
ways, nor is there a showing that they were solicited dur-
ing working time. In short, since the reason for the res-
urrection of the policy was protected concerted activity,
i.e., solicitation not shown to be unprotected, the resur-
rection of the policy was unlawful.
Contrary to the suggestion of our colleague, we do not
say that the timing of the policy (i.e., during a union
campaign) is sufficient to establish that the policy was
caused by the campaign. We merely say that, upon that
showing of timing, the burden is on the employer to ex-
plain the timing.
In the instant case, the Respondent’s explanation of the
timing is that it received complaints by employees. Al-
though our colleague says that these were “legitimate”
complaints, they were complaints about protected solici-
tations by fellow employees.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
3 The rerun election had not yet been held.
340 NLRB No. 151
CITY MARKET, INC. 1261
orders that the Respondent, Dillon Companies, Inc. d/b/a
City Market, Inc., Buena Vista, Colorado, its officers,
agents, successors, and assigns, shall take the action set
forth in the Order.

MEMBER SCHAUMBER, dissenting in part.
The issue here is whether an employer’s promulgation
of a facially valid no-solicitation rule at the onset of,
and/or in response to, a union organizing campaign, in-
terferes with the Section 7 rights of its employees and is
therefore violative of Section 8(a)(1) of the Act. My
colleagues answer in the affirmative and therefore adopt
the judge’s finding of a violation. I disagree. Since the
Respondent’s no-solicitation policy was entirely lawful,
expressly permitting, for example, solicitations during
employee meal and breaktimes, its posting prior to the
holding of a second election was not, without more,
unlawful. In reaching a contrary conclusion, the judge
erred by relying solely on the timing of the Respondent’s
posting of its lawful “Solicitation Policy” to infer a dis-
criminatory purpose in its promulgation. As discussed
herein, the administrative law judge’s finding that the
promulgation of the no-solicitation policy was for a dis-
criminatory purpose and was therefore unlawful is at
odds with settled Supreme Court and Board law. My
colleagues therefore err in adopting that finding.
A. Facts
An election was held among the Respondent’s em-
ployees at its Buena Vista, Colorado store, the only store
at issue here, on August 2, 2001. Although the precise
number of unit employees is not known, the judge de-
scribed the store as “quite small.” After losing the elec-
tion, the Union filed objections. On December 20, 2001,
the Board ordered that a second election be held. On
February 8, 2002, and before a second election, the Em-
ployer posted its “Solicitation Policy” and an “Interoffice
Memorandum” on an employee bulletin board in the
store’s breakroom.1 The “Solicitation Policy” had been
included in the Employer’s personnel manual since at
least 1995, but had not previously been announced to
employees.
B. Judge’s Findings
The complaint alleged that the Respondent’s February
8 “promulgation or re-promulgation” of its solicitation
policy was to discourage its employees from assisting the
Union and was therefore violative of Section 8(a)(1) of
the Act.

1 The Respondent’s “Solicitation Policy” and its “Interoffice Memo-
randum” are fully set out at sec. II E(a) of the judge’s decision and are
therefore not repeated here.
In finding the violation, the judge explained that the
General Counsel did not contend that the solicitation
policy was invalid on its face, but rather that the posting
of the policy was unlawful because of its timing vis-à-vis
the second representation election. Citing, inter alia,
Harry M. Stevens Services, 277 NLRB 276 (1985), enfd.
mem. 793 F.2d 1288 (5th Cir. 1986), for the proposition
that “[a]n otherwise valid rule restricting solicitation or
distribution violates the Act when it is promulgated to
interfere with the employee right to self-organization
rather than to maintain production and discipline,” the
judge found that the General Counsel had established a
“prima facie case” that the Respondent promulgated the
solicitation policy to interfere with the employees’ right
to organize.
The administrative law judge further found that the
Respondent failed “to rebut” the General Counsel’s
prima facie case. Citing, inter alia, Bank of St. Louis,
191 NLRB 669 (1971), enfd. 456 F.2d 1234 (8th Cir.
1972), for the proposition that “[t]he Act protects persis-
tent union solicitation even when it disturbs or annoys
the employees who are solicited,” the judge found that
the evidence did not show that the Respondent posted the
policy to maintain production and discipline. In reaching
this conclusion, the judge found, in effect, that although
Palmer, the Respondent’s store manager, “conceded” that
the solicitation policy was posted in response to the
complaints of two employees regarding the Union’s or-
ganizing efforts, those complaints did not justify the
posting of the solicitation policy. This was so, the judge
reasoned, because there was “no evidence that the solici-
tation attempts that preceded the posting involved unlaw-
ful conduct or activity that was by its nature inherently
unprotected.”
C. Analysis
As an initial matter, I agree with the judge and my col-
leagues that the Respondent promulgated its “Solicitation
Policy” when it posted the policy in the employees’
breakroom in February. For although the policy had
been included in the Respondent’s personnel manual
since at least 1995, it was first announced—and first
made known—to employees in February 2002. Even so,
however, and contrary to my colleagues, I would reverse
the judge’s finding that the Respondent’s promulgation
of the “Solicitation Policy” violated Section 8(a)(1) of
the Act. I would do so for two reasons. First, there is no
evidence to support an inference that the Respondent
intended to interfere with its employees’ right to organize
when it posted its solicitation policy. Second, such evi-
dence as there is actually supports the Respondent’s ar-
gument that it posted the solicitation policy in order to
maintain production and discipline at the store.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1262
1. The judge erred in finding that the General Counsel
established a prima facie case that the promulgation
of the “Solicitation Policy” was unlawful
Since the “Solicitation Policy” itself is facially valid,
an analysis of the lawfulness of the Respondent’s prom-
ulgation of its solicitation policy must begin with the
presumption that it was, in fact, lawfully promulgated.
That presumption can only be overcome by showing that
the solicitation policy was promulgated for discrimina-
tory reasons. For, as the Board explained in Peyton
Packing Co., 49 NLRB 828, 843 (1943) (emphasis
added):
The Act, of course, does not prevent an employer from
making and enforcing reasonable rules covering the
conduct of employees on company time. Working
time is for work. It is therefore within the province of
an employer to promulgate and enforce a rule prohibit-
ing union solicitation during working hours. Such a
rule must be presumed to be valid in the absence of
evidence that it was adopted for a discriminatory pur-
pose.
Given this analytical framework, the relevant inquiry con-
cerns what evidence the judge relied on to overcome this
presumption and find the promulgation unlawful. In mak-
ing this inquiry, one must be mindful of the Supreme
Court’s admonition in Republic Aviation Corp. v. NLRB,
324 U.S. 793, 800 (1945) (emphasis added):
An administrative agency with power after hearings to
determine on the evidence in adversary proceedings
whether violations of statutory commands have oc-
curred may infer within the limits of the inquiry from
the proven facts such conclusions as reasonably may
be based upon the facts proven.
What evidence, then, does the judge rely on to establish that
the promulgation was itself unlawful? Or, put another way,
on what “proven facts,” does the judge rely to find that the
General Counsel has established a prima facie case that the
Respondent promulgated its “Solicitation Policy” for a “dis-
criminatory purpose”?
The answer is simply stated: the Respondent posted its
“Solicitation Policy” prior to the holding of a second
election. From this “proven fact,” the judge found that
the timing of the promulgation, standing alone, provided
sufficient evidence from which to infer that the Respon-
dent’s promulgation of its “Solicitation Policy” was for a
“discriminatory purpose.” And it is from this “evidence”
alone that the judge concluded that the General Counsel
had established a prima facie case that the promulgation
of the “Solicitation Policy” was unlawful. In so doing,
the judge erred. My colleagues only compound that error
by adopting the judge’s erroneous finding that the timing
of the promulgation evidenced a discriminatory purpose
for the additional reason, also erroneous, that “the Re-
spondent instituted [the no-solicitation rule] specifically
in response to its employees’ union organizing activi-
ties.”
To understand the judge’s analytical error, one need
only ask how the posting of a facially valid rule such as
the Respondent’s “Solicitation Policy,” standing alone,
can be found unlawful when the Board itself finds it to
be presumptively lawful? The simple answer is that it
cannot be unlawful—and, as the Supreme Court’s rea-
soning in Republic Aviation Corp. v. NLRB, 324 U.S. at
793, clearly demonstrates, this is true even assuming that
the rule is promulgated in response to a union organizing
campaign.
In Republic Aviation, the Court considered, as relevant
here, the validity of the employer’s no-solicitation pol-
icy. In doing so, the Court explained that the case
brought to the Court for review
the action of the National Labor Relations Board in
working out an adjustment between the undisputed
right of self-organization assured to employees under
the Wagner Act and the equally undisputed right of
employers to maintain discipline in their establish-
ments. Like so many others, these rights are not unlim-
ited in the sense that they can be exercised without re-
gard to any duty which the existence of rights in others
may place upon employer or employee. Opportunity to
organize and proper discipline are both essential ele-
ments in a balanced society. Id. at 797–798. [Empha-
sis added.]
In its ensuing discussion of the lawfulness of the employer’s
no-solicitation policy, the Court quoted with approval the
language set out above from the Board’s Peyton Packing
decision and relied on that language to find that the Board
had there “succinctly expressed the requirements of proof
which it considered appropriate to outweigh or overcome
the presumption as to rules against solicitation.” Id. at 793
fn. 10. In sum, the Court recognized that some limitation on
employees’ right to organize, here soliciting on behalf of the
Union, is permissible because that limitation ensures that an
employer can maintain “proper discipline” and production
in the workplace. Thus, while one might construe the limi-
tation on the right to solicit as “interference” with employ-
ees’ right to organize, it is an “interference” which the
Board, with Court approval, permits. But if “[i]t is . . .
within the province of an employer to promulgate and en-
force [such] a rule,” when, in fact, the policy is promulgated
is irrelevant to the analysis of whether the promulgation is
lawful. And therefore the timing of the promulgation,
standing alone, cannot stand as a “proven fact” from which
CITY MARKET, INC. 1263
to infer that the policy was adopted for a “discriminatory
purpose” and was therefore unlawful.
Board law is not to the contrary. As the judge ex-
plained in Montgomery Ward & Co., 227 NLRB 1170,
1174 (1977) (emphasis added), “the timing of an other-
wise valid rule’s promulgation, to coincide with the start
of organizational activities, standing alone, would . . . be
insufficient to establish its unlawfulness.” However, the
judge there went on to find the store’s promulgation
unlawful because it was not “standing alone.” Rather, the
judge found that the promulgation was part of “a pattern
within the [employer’s] organization [of] simultaneously
posting [the rule] for the general population of employees
while reading it to the leading union adherents, in the
locus of authority with the employee’s immediate super-
visor standing by.” Id. The judge concluded that the em-
ployer violated Section 8(a)(1) because he found that
“[s]uch a procedure would reasonably tend to discourage
an employee from engaging in any activities on behalf of
the union, particularly where the employee was neither
observed in, or accused of, violating the policy written.”
Id. And in Harry M. Stevens Services, 277 NLRB at 276,
which, as noted above, the judge relied on for the proposi-
tion that “[a]n otherwise valid rule restricting solicitation
or distribution violates the Act when it is promulgated to
interfere with the employee right to self-organization
rather than to maintain production and discipline,” the
Board relied on the fact that the employer there had
unlawfully discharged an employee for soliciting on be-
half of the union only 3 days before it promulgated its no-
solicitation rule to find that the rule was promulgated for
discriminatory reasons. Finally, in RCN Corp., 333
NLRB 295, 301 (2001), also relied on by the judge, in
finding the employer’s no-solicitation policy unlawful,
the judge there found that the policy was discriminatorily
enforced.
Clearly, then, the judge erred by relying on the timing
of the promulgation alone as a “proven fact” from which
to infer that the Respondent promulgated its “Solicitation
Policy” for a “discriminatory purpose.” Contrary to the
judge’s findings which my colleagues adopt, the General
Counsel has not established a prima facie case that the
Respondent’s promulgation of its “Solicitation Policy”
was unlawful.
2. The judge erred in finding that the Respondent failed
to rebut the General Counsel’s prima facie case
Even assuming, arguendo, that the General Counsel es-
tablished a prima facie case that the “Solicitation Policy”
was promulgated for a “discriminatory purpose,” I find
that the Respondent successfully rebutted that prima facie
case by establishing that it promulgated its “Solicitation
Policy” to maintain production and discipline at the store.
In finding that the Respondent failed to rebut the prima
facie case, the judge, as explained above, applied the
analytical framework set out in St. Louis Bank, supra,
which the Board employs to determine the lawfulness of
an employer’s instructions to employees that they should
notify the employer if they are badgered, harassed,
and/or threatened by union supporters or organizers dur-
ing a union campaign. Under this analysis, the Board
finds requests that employees report conduct broadly
defined as badgering or harassment unlawful because
they “would tend to restrain the union proponent from
attempting to persuade any employee through fear that
his conduct would be reported to management.” Bank of
St. Louis, 191 NLRB at 673. This is so because such
statements
have the “potential dual effect of encouraging employ-
ees to report to Respondent the identity of union card
solicitors who in any way approach employees in a
manner subjectively offensive to the solicited employ-
ees, and of correspondingly discouraging card solicitors
in their protected organizational activities.” Arcata
Graphics, 304 NLRB 541, 542 (1991), quoting W. F.
Hall Printing Co., 250 NLRB 803, 804 (1980). [Em-
phasis added.]
The judge’s reliance on such an analysis here is mis-
placed. For the Respondent’s “Solicitation Policy” did
not contain a request that employees notify it if they were
harassed or badgered by union supporters or organizers.2
Nor were the employees whose complaints prompted the
Respondent’s promulgation of its “Solicitation Policy”
responding to such a request. In these circumstances,
whether “the solicitation attempts that preceded the post-
ing involved unlawful conduct or activity that was by its
nature inherently unprotected,” is irrelevant to the issue of
whether the Respondent’s promulgation of its “Solicita-
tion Policy” was lawful. What is relevant is that the Re-
spondent, in the judge’s words, “conceded” that it prom-
ulgated the “Solicitation Policy” in response to employee
complaints. And however subjective the reaction of these
employees to the conduct complained of, however pro-
tected the conduct of the soliciting employees/union sup-
porters may have been, the Respondent had the right to
post its “Solicitation Policy” in response to the legitimate,
albeit subjective, concerns, and complaints of its employ-
ees. For, after all, the Respondent’s purpose in promul-
gating its “Solicitation Policy” was to maintain store pro-
duction and discipline at its own store and among its own

2 I note, however, that the Respondent’s “Interoffice Memorandum”
did contain such a request to report harassment. I agree with my col-
leagues that this request was unlawfully broad and vague under current
Board law.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1264
employees, and not, as it were, at some abstraction of a
reasonable store and among reasonable employees not its
own.3 Thus, assuming arguendo that the General Counsel
established a prima facie case that the “Solicitation Pol-
icy” was unlawfully promulgated, I find that the Respon-
dent has successfully rebutted that prima facie case.
And the finding that the Respondent has successfully
rebutted the General Counsel’s prima facie case necessar-
ily disposes of my colleagues’ erroneous claim, set out
above, that the timing of the promulgation evidenced a
discriminatory purpose because “the Respondent instituted
[the no-solicitation rule] specifically in response to its em-
ployees’ union organizing activities.” In support of their
claim, my colleagues first accuse me of “confus[ing] the
presumption regarding the legality of a no-solicitation rule
with the presumption regarding the timing of such a rule”
(emphasis in original). They then find a violation relying
on the following analysis: since the Respondent “resur-
rected” its no-solicitation policy “only in the context of a
Union campaign,” there must be a “nexus” between the
promulgation of the no-solicitation rule and the resump-
tion of the union campaign, and that nexus is sufficient to
establish a discriminatory purpose in the promulgation of
the no-solicitation policy. In finding a violation based on
such an analysis, it is my colleagues who are confused.
Even if the Respondent promulgated its no-solicitation
policy during the union campaign, such a finding based
on the timing of the promulgation is insufficient, for the
reasons set out above, to establish that the no-solicitation
policy was promulgated for a discriminatory purpose and
was therefore unlawful. In reaching a contrary conclu-
sion, the judge erred. Now my colleagues compound
that error by asserting that discriminatory purpose is es-
tablished here not merely by the timing of the promulga-
tion, but also by the fact that the promulgation was in
response to employees’ union-organizing activities. In
making this assertion, my colleagues confuse context
with cause. For, as explained above, the Respondent
promulgated its no-solicitation policy in response to le-
gitimate employee complaints.4 Thus, the true “nexus”

3 That the Respondent’s concern for maintaining production and dis-
cipline was legitimate is shown by the fact that two employees in the
store, which, as noted above, the judge described as “quite small,”
complained to the employer. Cf. Mack’s Supermarkets, 288 NLRB
1082, 1097 (1988), where the judge found that the employer did not
institute its no-solicitation rule to maintain production and discipline
because only two employees in a work force of approximately 128
employees filed complaints and one of those complaints concerned
matters that took place away from the store.
4 My colleagues imply that the employee complaints were not le-
gitimate because “they were complaints about protected solicitations by
fellow employees.” But whether the complaints were triggered by
protected solicitations is simply not relevant to the inquiry. What is
relevant is that the complaints were made in good faith (see fn. 3 above
here is between the promulgation and the complaints. As
explained above, since the Respondent has the right to
establish rules to ensure production and maintain disci-
pline, the promulgation of the no-solicitation policy was
not unlawful. And, in these circumstances, the mere fact
that the Respondent promulgated the rule in the context
of a union campaign cannot render the lawful promulga-
tion unlawful. Only by confusing cause and context, and
by creating a “nexus” where none exists, can my col-
leagues find otherwise. In doing so, my colleagues only
compound the judge’s error with their own.
Finally, I simply note here that the judge in the Bank of
St. Louis case, after finding unlawful the employer’s re-
quest that employees report constant badgering by union
proponents, observed that “[i]n the interest of preventing
disruption of work, [the employer] could, of course, law-
fully forbid the solicitation of union memberships in the
bank’s working areas during working time[.]” Id. at 673.
And that is, of course, precisely what the Respondent did
here.
D. Conclusion
For all the reasons set out above, I find that the Re-
spondent did not violate Section 8(a)(1) of the Act by
promulgating its “Solicitation Policy” on February 8,
2002. I further find, therefore, that the Respondent did
not violate the Act by cautioning employees in its Febru-
ary 8, 2002 “Interoffice Memorandum” that they risked
discipline and termination if they engaged in union orga-
nizing activities in violation of the Respondent’s lawful
“Solicitation Policy” or by requesting in the memoran-
dum that employees report solicitation in violation of the
policy.

Michael Cooperman, Esq., for the General Counsel.
Gustav V. Achey, Esq. and Karin Ranta Curran, Esq., of Den-
ver, Colorado, for the Respondent.
Bradley C. Bartels, Esq., of Wheat Ridge, Colorado, for the
Charging Party.

and accompanying text), and that, after all, the Respondent did not
forbid such solicitations but only promulgated a rule that would ensure
that such solicitations did not unduly interfere with work. In these
circumstances, the Respondent’s promulgation of its no-solicitation rule
was lawful. It is nothing more nor less than the application to the eve-
ryday workplace of that “working out [of] an adjustment between the
undisputed right of self-organization assured to employees under the
Wagner Act and the equally undisputed right of employers to maintain
discipline in their establishments” contemplated by the Supreme Court
in Republic Aviation Corp. v. NLRB, 324 U.S. 797–798 (1945) (empha-
sis added). Viewed in this light, my colleagues’ “adjustment” of these
two competing rights cannot stand, for their “adjustment” is nothing
more than the exaltation of the former right at the expense of the latter.
CITY MARKET, INC. 1265
DECISION
I. STATEMENT OF THE CASE
THOMAS M. PATTON, Administrative Law Judge. This
case was tried in Buena Vista, Colorado, on October 8–10,
2002.1 The charge in Case 27–CA–17679 was filed October
26, 2001. The charge in Case 27–CA–17851 was filed February
14, 2002, and was amended on June 20, 2002. The charge in
Case 27–CA–17957 was filed April 9, 2002. A consolidated
complaint issued June 25, 2002, and was amended September
12, 2002.2 The Respondent denies any violation of the Act.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel, the Charging Party and the Respon-
dent, I make the following
II. FINDINGS OF FACT
A. Jurisdiction
Dillon Companies, Inc. d/b/a City Market, Inc. (the Em-
ployer or Respondent) operates retail grocery stores, including
a store in Buena Vista, Colorado (the Store), the only facility
involved in this proceeding. The Respondent admits, the record
establishes, and I find that the Respondent meets the Board’s
standards for asserting jurisdiction and that it is an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
B. The Labor Organization
The Respondent admits, the record establishes, and I find
that United Food and Commercial Workers, Local 7, AFL–CIO
(the Union) is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
C. Background
In early 2001, the Union began an effort to organize a unit of
employees at the Store. The Respondent campaigned against
the Union. The Union filed a petition in Case 27–RC–8117 and
a Decision and Direction of Election issued on July 3, 2001.3 A
representation election was conducted on August 2. The Union
lost the election and filed objections. On December 20, follow-
ing a hearing on objections, the Board directed the holding of a
second election. At the time of the hearing before me the sec-
ond election had not been held. The record does not disclose
the unit description or the number of unit employees. It ap-
pears to have been a typical retail grocery unit. The Store was
described as being quite small. The day-to-day supervision of
the Store was by the store manager and assistant managers.
The record suggests that some assistant managers may have
been eligible voters. The record does not show that there were
any other statutory supervisors involved in the day-to-day op-
eration of the Store.

1 The name of the Respondent appears as corrected at the hearing.
2 At the opening of the spelling of the name of Milton A. Christen-
sen appearing in the complaint was corrected by an amendment to the
complaint.
3 Unless otherwise noted, all dates hereafter are June 2001 through
May 2002.
In disposition of Case 27–CA–17679 the Respondent and the
Union entered into a Board informal settlement agreement ap-
proved by the Regional Director on January 8. The record
demonstrates and the General Counsel acknowledges on brief
that the settlement agreement was intended to resolve charges
that the Employer violated Section 8(a)(1) in June and July by
threatening employees on several occasions with the loss of
existing wages and benefits if they selected the Union as their
representative and by engaging in surveillance of employees to
discourage union activity. The consolidated complaint includes
an order vacating and setting aside the settlement agreement
and alleges 8(a)(1) violations in June and July.
The consolidated complaint avers that by 8(a)(1) violations
in February and March the Respondent violated the settlement
agreement. The answer denies any unfair labor practices, avers
that the settlement agreement was not violated and that the
settlement agreement should not be set aside. At the opening of
the trial the Respondent again asserted that the settlement
agreement had not been violated and contended that the settle-
ment agreement was a bar to the complaint allegations of Sec-
tion 8(a)(1) violations in June and July. The complaint allega-
tions of independent Section 8(a)(1) conduct are in 18 para-
graphs numbered 5(a) through 5(s). There is no paragraph 5(c)
because it was amended out of the complaint at the hearing on
the motion of the General Counsel.
D. Introduction
In Hollywood Roosevelt Hotel Co., 235 NLRB 1397 (1978),
the Board held that “a settlement, if complied with, will be held
to bar subsequent litigation of all prior violations except where
they were not known to the General Counsel or readily discov-
erable by investigation or were specifically reserved from the
settlement by mutual understanding of the parties.” The set-
tlement agreement in Case 27–CA–17679 is not in evidence
and there is no evidence that the settlement agreement or other
factors limit the applicability of Hollywood Roosevelt. Cf. B &
K Builders, Inc., 325 NLRB 693, 694 (1998). Thus, the settle-
ment of Case 27–CA–17679 bars the litigation of the alleged
violations in June and July, unless the Regional Director’s ac-
tion in vacating the settlement agreement is sustained. Accord-
ingly, the merits of Cases 27–CA–17851 and 27–CA–17957
will be addressed first. I have not relied on presettlement ac-
tions in reaching a decision on Respondent’s postsettlement
conduct. For the reasons discussed later, some of the allega-
tions of post settlement violations have merit. Next, the issue
of whether the settlement agreement was properly set aside will
be addressed. Finally, because the evidence establishes that the
settlement agreement was properly vacated, the merits of the
presettlement violations will be considered.
E. Postelection, postsettlement events
1. Complaint 5(h)—February 8 promulgation or repromulga-
tion of a solicitation policy to discourage its employees from
assisting the Union; Complaint 5(i)—February 8 threats of
discharge or other discipline of employees if employees vio-
lated a solicitation policy; Complaint 5(j)—February 8 solicita-
tion of complaints from employees regarding violations of a
solicitation policy; Complaint 5(k)—February 8 written solici-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1266
tation of complaints from employees who felt harassed or in-
timidated by another employee, without regard to whether the
activity of the other employee was protected by the
National Labor Relations Act
(a) Facts
The evidence is that a “Solicitation Policy” and an “Interof-
fice Memorandum” were documents posted on an employee
bulletin board in the breakroom at the Store on February 8,
where employees read it.
The “Interoffice Memorandum” was as follows:

INTEROFFICE MEMORANDUM
TO: ALL EMPLOYEES
FROM: PETE PALMER
SUBJECT: SOLICITATION REMINDER
DATE: 2/8/02
CC: MILT CHRISTENSEN
Please be reminded that this is a place of business and
that working time is for work. City Market has a Solicita-
tion Policy and a copy is attached.
If an employee violates the Solicitation policy they
will be placing their job in jeopardy and will receive disci-
pline up to and including termination.
If any employee thinks they are being solicited in vio-
lation of the Solicitation Policy or think they are being
harassed or intimidated by another employee please let
Devin or me know so we can put a stop to it.
Thank You.
Pete Palmer

The “Solicitation Policy” was a part of the Employer’s per-
sonnel manual. The policy predated the union organizing cam-
paign at the Store. The “Solicitation Policy” was as follows:

STORE PERSONNEL MANUAL—PAGE:S–7–A–1 MASTER
ORIGINAL DATE 10/9/95—REVISED DATE________
GENERAL OPERATIONAL GUIDELINES
SUBJECT SOLICITATION POLICY FOR ALL STORES

Working time is for work. Consequently, an employee may
not during his or her working time solicit another employee.
Working time does not include meal or break periods. In or-
der to minimize litter and disruption to store operations, the
following guidelines will govern solicitation and distribution
of literature,
SALES FLOOR AREA
• No solicitation is permitted during hours when
the store is open to the public. In addition, em-
ployees may not solicit during their working
time or in a manner which interrupts the work of
another employee.
• No distribution of literature is allowed at any
time, except for authorized product promotions.
ALL OTHER AREAS
• Nonemployees may not solicit or distribute lit-
erature, except by permit as explained below.
• Employees may not solicit or distribute literature
during their working time or in any working area
in a manner which interrupts the work of another
employee. Employees may not solicit or dis-
tribute literature in a manner that interferes with
traffic or entry and exit from the store building
or parking lot, or in a manner that involves
unlawful conduct. Examples of unlawful con-
duct include harassment and disorderly conduct
as defined in [S]tate criminal statutes.
• To prevent clutter, City Market may dispose of
any discarded or unattended literature. There
shall be no unlawful discrimination or contract
violation regarding literature distribution.
PERMIT REQUIREMENT
Except for: (1) employee solicitation and distribution author-
ized above, and (2) authorized product promotions, no person
or group may solicit or distribute literature inside or outside
the store building on property (including parking lots) owned,
leased, used pursuant to easement agreements (as with some
shopping centers) or otherwise controlled by City Market or
its affiliates, unless they first secure a written permit to do so.
Permits shall be issued for retail store facilities only, by store
managers. The number of permits per day may be limited by
store managers. There shall be no unlawful discrimination
against permit applicants.

The posting occurred following complaints to management
by two employees regarding solicitations by union supporters.
One of those employees had quit, telling Pete Palmer, manager
of the Store, that one of the reasons she was quitting was that
she did not wish to be involved in the organizing politics.
(b) Analysis
The General Counsel does not contend that the restrictions
on solicitation and distribution in the 1995 policy were facially
unlawful. Rather, the General Counsel contends that the post-
ing of the policy was unlawful because of the timing vis-à-vis
the upcoming representation election. An otherwise valid rule
restricting solicitation or distribution violates the Act when it is
promulgated to interfere with the employee right to self-
organization rather than to maintain production and discipline.
Harry M. Stevens Services, 277 NLRB 276 (1985), enfd. mem.
793 F.2d 1288 (5th Cir. 1986); RCN Corp., 333 NLRB 295
(2001). Palmer conceded that the policy was posted in response
to two employee complaints of organizing efforts by Union
supporters. In the circumstances of the present case the posting
of the policy violated the Act.
There is no evidence that the solicitation attempts that pre-
ceded the posting involved unlawful conduct or activity that
was by its nature inherently unprotected. The Act protects
persistent union solicitation even when it disturbs or annoys the
employees who are solicited. Cement Transport, Inc., 200
NLRB 841, 845–846 (1972), enfd. 490 F.2d 1024 (6th Cir.
1974), cert. denied 419 U.S. 828 (1974); Bank of St. Louis, 191
NLRB 669, 673 (1971), enfd. 456 F.2d 1234 (8th Cir. 1972).
Under the rationale of the Board’s opinion in Harry M. Stevens
Services, supra, the General Counsel has established a prima
CITY MARKET, INC. 1267
facie case that the Respondent has failed to rebut. Thus, the
evidence does not show that the policy was posted to maintain
production and discipline. Harry M. Stevens Services, id. The
fact that the policy dates from 1995 does not require a different
conclusion. The record shows that the policy was in a man-
agement personnel manual, but not that the limitations in the
policy had previously been imposed on the Store employees or
communicated to them. Accordingly, the posting of the policy
limiting soliciting and distributing by employees on behalf of
the Union violated Section 8(a)(1).
The memorandum that was posted with the policy on Febru-
ary 8 cautions employees that they risk discipline and termina-
tion if they engage in union organizing activities in violation of
the policy. Because the policy was an unprivileged restriction
of protected activities by employees the threats of discipline
and discharge violated Section 8(a)(1). Similarly, the request in
the memorandum that employees report solicitation in violation
of the policy violated Section 8(a)(1) because the limitations on
solicitation were not privileged.
The request in the memorandum that employees report to
management if they were subjected to undefined harassment or
intimidation must be viewed in the context of the other unlaw-
ful aspects of the posting. The request would have the foresee-
able effect of discouraging employees from engaging in pro-
tected solicitation, lest they place their employment at risk if
other employees reported them for violating the unprivileged
policy or for having engaged in protected conduct that the Re-
spondent considered harassment or intimidation. The solicita-
tion of reports of concerted activity by other employees under
these circumstances violated Section 8(a)(1).
2. Complaint 5(l)—February 12 statement to employees by
Palmer that the solicitation policy was posted in response to
solicitation by the Union; Complaint 5(m)—February 12 state-
ment by Palmer to an employee that solicitation for the Union
was not allowed on employee breaktime; Complaint 5(n)—
February 12 statement by Palmer to an employee that
employees soliciting for the Union in violation of the
solicitation policy could lose their jobs
(a) Facts
On about February 12, Palmer called employee Steffanie
Sorenson into his office. Assistant Store Manager Devin Dahl
was also present. Sorenson, Palmer, and Dahl described the
conversation in their testimony. The central facts regarding the
conversation as related by Sorenson were not refuted. To the
extent that that there are inconsistencies between the testimony
of Sorenson, in contrast with that of Palmer and Dahl, I found
Sorenson to be the more credible witness regarding this conver-
sation.
Palmer began by explaining that he wanted to tell Sorenson
why the solicitation memo had been posted. He said that the
memo had been posted because employees had complained of
being harassed by people soliciting for Local 7. Sorenson
asked who had complained and there was a discussion of the
complaints. In discussing the reported complaints of one em-
ployee Sorenson asked, “Was it on a break? Was it lunch?”
Palmer replied, “[W]ell, breaks are company time. You can’t
be soliciting on company time.” Sorenson replied, “[L]unch
hours are ours and we can talk what we want to about [sic].”
Palmer then stated, “I know it’s going on the clock, and I won’t
have employees harassed, and jobs could be lost if it contin-
ues.”
The purported harassment described by Palmer did not in-
volve Sorenson; she was not accused of having engaged in
prohibited or inappropriate activities and she was not disci-
plined. Palmer testified that he addressed the issue with
Sorenson because she was a leader in the organizing effort and
that he considered her to be a good person to explain the reason
for the posting of the solicitation memo. As the meeting con-
cluded, Palmer repeated that the employees could not solicit on
the clock and that if it happened, jobs could be lost. Sorenson
was one of the most active employees in the union organizing
campaign.
(b) Analysis
The evidence establishes that Palmer called Sorenson to a
meeting in his office on about February 12, where she was told
that she could not solicit for the Union on breaktime. This was
clearly an unprivileged limitation of protected activity. See Our
Way, Inc., 268 NLRB 394 (1983). The Employer argues that no
violation should be found because the restriction was imposed
on only one occasion, was not part of the formal policy, that
there is no evidence it was communicated to any other employee
and no discipline was imposed for soliciting on breaktime. The
Employers’ arguments are not convincing. The violation was
not an isolated instance of 8(a)(1) conduct, the instruction was
never rescinded, and Sorenson was a known leader in the orga-
nizing effort. Thus, the limitation would have the foreseeable
effects of interfering with the protected activities of a leader of
the organizing effort and that the limitation would become
known to other employees. Accordingly, the restriction on so-
licitation on breaktime violated Section 8(a)(1).
Palmer’s statement that “jobs could be lost” for soliciting for
the Union on the clock was unlawful because it was made in
the context of his remarks that soliciting on breaks could be
limited because breaks were on the clock. Moreover, for the
reasons discussed supra, the posting of the policy restricting
solicitation was itself unlawful. Accordingly the threat of job
losses violated Section 8(a)(1).
Palmer’s statement that the memo had been posted because
employees had complained of being harassed by people solic-
ited by the Union violated Section 8(a)(1) because it was made
in the context of the unlawful limitation on organizing activity,
thus conveying the message that protected activity was viewed
by the Employer as being harassment that might be cause for
discipline.
3. Complaint 5(o)–Implied threat to an employee by Palmer
on February 19 of unspecified adverse consequences if the
employee participated in activities in support of the Union;
Complaint 5(p)—Threat by Palmer on February 19 to discharge
employees for engaging in activities in support of the Union
(a) Facts
Lucille Seedorf was hired as a deli employee in February and
was discharged in April. Initially she did not support the orga-
nizing effort, but became a supporter of the Union prior to her
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1268
discharge. There is no contention that her discharge was union
related.
Seedorf and Palmer testified about remarks Palmer made
during Seedorf’s employment interview. No one else was pre-
sent. There are significant credibility issues regarding what
was said. Both agree that Palmer discussed the union organiz-
ing effort. According to Seedorf, Palmer said that union people
were trying to bring the Union in and that management did not
want the Union, but that it should not affect her, but also said
that she might be approached by the Union. According to See-
dorf, Palmer described two former employees who had left
because of union harassment and instructed her to report it to
him if she was approached about the Union on worktime, be-
cause that was not proper.4
Seedorf testified that Palmer said that whatever her opinion
was, either way, it would not affect her job and she told him she
was neutral. According to Seedorf, Palmer said in substance
that “these union people were leading themselves into the posi-
tion where they would eventually—their activities would even-
tually cost them their jobs.”
Seedorf testified that Palmer told her that one woman in par-
ticular that she would be working with named Ruth (later iden-
tified by Seedorf as Ruth Powell) was a strong union supporter,
as were named two cashiers, whose names Seedorf could not
recall based upon her recollection of Palmer’s remarks. See-
dorf testified, “I didn’t find out about them until much later on
while I was working.” Seedorf never identified the two cash-
ers, but the implicit suggestion is that these two cashiers were
leading union proponents Sorenson and Debra Sapp. Seedorf
testified that Palmer’s remarks related to the Union were made
at the conclusion of the meeting, after she was hired.
Palmer’s version of the hiring interview was that he ex-
plained to Seedorf that during the previous year there had been
a union campaign, and that the City Market employees voted
not to be represented by Local 7, but that they had filed unfair
labor practice charges and that the process was not completed.
Palmer testified that he told Seedorf that union supporters
might approach her and that he told her that it was up to her
whether to give them her address and phone number. Palmer
specifically denied mentioning Powell, Sorenson, or Sapp;
denied that he told Seedorf that two employees resigned be-
cause of the union; and denied that he told Seedorf that union
supporters were doing things that could cost them their jobs.
Based upon considerations of demeanor and the probabili-
ties, I find that Palmer’s testimony was more credibly offered
and more probable. I do not credit Seedorf’s testimony that is
inconsistent with that of Palmer regarding the employment
interview.
(b) Analysis
The statements Palmer made to Seedorf during her employ-
ment interview that there had been a union campaign, and that
the City Market employees voted not to be represented by the
Union, that unfair labor practice charges and that the process
was not completed, as well as his remarks that union supporters

4 Seedorf initially testified that Palmer requested a report of solicita-
tion at any time, but she amended that testimony.
might approach her and that it was up to her whether to give
them her address and phone number did not violate Section
8(a)(1). There is an absence of other credible and probative
evidence of a violation during that conversation. Accordingly,
I shall recommend that complaint paragraphs 5(o) and 5(p) be
dismissed.
4. Complaint 5(q)—March 5 interrogation of an employee by
Palmer regarding union activities by other employees
(a) Facts
At the time Lucille Seedorf began work employee Ruth
Powell was on vacation. Seedorf testified that one morning
after Powell returned from vacation Palmer passed Seedorf in
the deli while she was working and said to her, “Have you
heard anything?” to which she replied, “No, everything has
been very quiet here,” to which Palmer replied “Good.” See-
dorf testified that she interpreted Palmer’s question as an in-
quiry whether Ruth had said anything to her about the Union.
Palmer denied that the incident occurred.
In view of my findings regarding what was said in Seedorf’s
employment interview, it would not have been logical for her to
assume that the question she attributed to Powell was an in-
quiry about the Union. In any case, based upon considerations
of demeanor and the probabilities, I credit Palmer’s denial of
the conversation.
(b) Analysis
Because there is an absence of credible supporting testi-
mony, I shall recommend dismissal of complaint paragraph
5(q).
5. Complaint 5(r)—March 15 failure to take appropriate
action when employees threatened a coworker with adverse
consequences if the coworker voted for the Union
(a) Facts
Seedorf described an incident in March in a backroom at the
Store where she had gone on break. Seedorf testified that she
entered the area where employees Sherry Wilson and Linda
Cain were discussing the Union. Wilson had the title of assis-
tant deli manager, but the record does not show her to be a
statutory supervisor or agent of the Employer. No one else was
present. Seedorf testified that she joined the conversation. She
testified on direct examination.5

I was going to my locker and I wasn’t quite paying attention
to what they were saying, because usually when they talked
union I tried to get out real quick, but Linda said something,
and—something about a vote and getting the Union in there
to get this vote over with and their hemming and hawing, and
I says well does that mean is that good to have this over with,
and she says, well yeah. There’s a notice on the board over
there. I says well okay. Fine. I says well one way or another,
I said the vote, you know, is—I can’t remember. All right.
She had said something about well we’ll know how the vote
goes because this is a small store, and we know how many
5 Quoted testimony and documents in this decision are set forth ver-
batim. Corrections of spelling and grammar have been made only
where essential and such corrections are noted.
CITY MARKET, INC. 1269
people are working here, so if one vote goes out of the ordi-
nary, in other words, for the Union and not against the Union,
we’ll know who voted that way and we’ll take you and nail
you to the wall. And I said well, it’s a secret vote. Nobody
knows who votes, and she repeated again, she says no, we
know, because we know how many people are in the store.
We know who is for the Union, who is against the Union,
who the new people are. At that point, everybody started
laughing. Pete [Palmer] passed by the breakroom, and he
looked in and he said well it sounds like you girls are having a
good time, and Sherry repeated the story to him and he just—
. . . . Repeated what went on, the story about the vote and if
one person voted for the Union, you know, if it went to the
Union by one vote, they’d know who it was and nail her to
the wall. Pete just laughed a little bit and said well that’s not
nice, and he walked away.

On cross-examination Seedorf testified as follows regarding
the conversation with Cain:

I said well even with the union vote, you know, when
it’s time to vote, it’s a closed vote. You don’t know who
is voting for who. And she said to me well, that’s where
you’re wrong because it’s a small place and we know how
many people are here and exactly how many are for the
Union and how many are against the Union, and if one
person, if the Union wins by one vote, we will take that
person and nail her to the wall.
. . . .
I would think she was referring to a third person, who-
ever that person would be.

Wilson testified that she was training Seedorf and was pre-
sent on several occasions in the breakroom with Seedorf and
Cain. She acknowledged discussing the Union with Cain, but
denied such discussions with Seedorf. She specifically denied
that Cain made the “nail to the wall” remark described by See-
dorf and testified that she had no recall of any conversation
involving the three employees regarding the Union where
Palmer was either in the breakroom or at the door. Cain testi-
fied to having been in the breakroom with Seedorf and Wilson
and having discussed the Union with Seedorf, but denied hav-
ing a conversation in which she made the “nail to the wall”
remark described by Seedorf. Palmer did not testify regarding
his involvement in the incident.
In resolving the issue of what happened in this conversation I
found Seedorf’s description on cross-examination of what Cain
said to have been the more credibly offered and the most prob-
able account, including her testimony that the remarks made by
Cain were not directed at her. I credit Seedorf’s testimony that
Palmer stopped at the door and that the substance of the re-
marks described by Seedorf on cross-examination, quoted
above, were related to him and that he chuckled and remarked
“That’s not nice.” I specifically do not credit Seedorf’s testi-
mony on direct examination that she was told, “[W]e’ll take
you and nail you to the wall.” In resolving the credibility issues
I have considered the possible bias of Seedorf, who had been
fired, the absence of testimony by Palmer regarding this inci-
dent, as well as the demeanor of all the relevant witnesses and
the probabilities.
(b) Analysis
The credited evidence establishes that employee Cain had
stated to employee Seedorf in the breakroom that if the Union
won by one vote, the antiunion employees would know who
that person was and would nail the voter to the wall, provoking
laughter from those present; that Palmer then looked into the
breakroom, commented on the laughter; the remark was related
to him and he chuckled and said “that’s not nice.” The General
Counsel contends that Section 8(a)(1) was violated on two
theories. The first argument is that by not disciplining Cain, the
Employer thereby condoned interference with Seedorf’s rights.
The second argument is that by not taking action against Cain,
the Employer disparately applied the unlawfully promulgated
solicitation policy.
An employer violates Section 8(a)(1) if it condones threats of
physical violence or assaults by employees on other employees
because of their union or antiunion sympathies. Newton Bros.
Lumber Co., 103 NLRB 564, 569 (1953); Fred P. Weissman
Co., 69 NLRB 1002 (1946), enfd. 170 F.2d 952 (6th Cir. 1948),
cert. denied 336 U.S. 972 (1949). The Act imposes an affirma-
tive duty upon an employer to insure that its obligation to main-
tain discipline in the plant and to provide its employees with the
opportunity to work without interference from their coworkers
is not delegated or surrendered to any union or antiunion group.
Newport News Shipbuilding, 236 NLRB 1499, 1506–1507
(1978).
The remarks that Cain made and the context, including the
laughter of the employees that apparently led Palmer to look
into the breakroom, is insufficient to establish that Palmer was
put on notice that Cain had engaged in “unlawful conduct,” the
only limitation in the posting policy that would be relevant to
threats.
Without reference to the solicitation policy, a preponderance
of the evidence does not establish that the report to Dahl of
what Cain said regarding the election, when viewed in context
of the circumstances of the report, was so opprobrious that the
employer had a duty to intervene.
In view of the foregoing, I find that the General Counsel has
not established the violation and I shall recommend that com-
plaint paragraph 5(r) be dismissed.
6. Complaint 5(s)—March 18 disparate application of the
solicitation policy by failing to take appropriate action when
informed that an employee had violated the policy while
engaged in activity opposed to the Union
(a) Facts
In support of complaint paragraph 5(s) the General Counsel
offered the following testimony by Seedorf:

A . . . I was clocked—I was going into work. I was passing
through the meat department, and Linda Cain approached me
and said to me what’s this I hear that you’re going over to the
Union side all of a sudden, and I just looked at her and I said
well that’s news to me, and I continued on my way to clock
in. It bothered me so later on that day, I went to see . . . Devin
Dahl, to speak to him because I was upset, and I had told him
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1270
what happened and he said to me well don’t worry about it.
It, in no way, effects your job performances, but it does, be-
cause it’s bothering me. I mean I’m feeling like I’m neutral
and everybody knows I’m neutral. People are assuming I’m
for Union, and now I’m being approached, and it’s making
me uncomfortable. He said well that shouldn’t be and I’ll
bring it up. They were having—I—some kind of a meeting. I
believe it was a management meeting or something like that.
He said I’ll bring it up and I’ll tell them that this shouldn’t be
discussed.

Dahl described a different and more detailed version of the
conversation. He testified that Seedorf approached him outside
the breakroom and began telling him that Cain had said that
Seedorf was changing her vote over to the Union and Seedorf
expressed concern that it would affect management’s opinion
of her. Dahl asked her to come with him to the office. In the
office the conversation continued and Seedorf reiterated her
concern. Dahl testified that he told Seedorf that regardless of
her opinion of the Union, it would not affect the Employer’s
opinion of her. According to Dahl he told her that if she felt
that an employee was harassing her in any way she should talk
to management and told her that he would remind the depart-
ment heads in their weekly meeting that employees should
respect each other. Dahl testified that he did address the issue
at the next department head meeting.
Based upon considerations of demeanor and the probabilities
I conclude that Dahl was attempting to accurately describe the
conversation and that his recollection was better than that of
Seedorf. I accordingly credit his version.
(b) Analysis
I find it unnecessary to address the question of whether the
Employer would violate the Act for not enforcing the provi-
sions of the unlawfully promulgated solicitation policy. The
evidence does not establish that Seedorf related anything to
Dahl that would put him on notice that Cain had done anything
that violated the solicitation policy. While there is evidence
consistent with Cain speaking to Seedorf while Cain was on the
clock, the testimony does not establish that Dahl was so in-
formed. There is no allegation that the remarks made by Dahl
to Seedorf otherwise violated the Act. I shall recommend that
complaint paragraph 5(s) be dismissed.
F. The Settlement Bar Issues
The settlement agreement in Case 27–CA–17679 approved
on January 8, was intended to resolve charges that the Em-
ployer violated Section 8(a)(1) in June and July. The Employer
contends that the settlement agreement was improperly set
aside and that the settlement agreement bars a finding of unfair
labor practices antedating the settlement agreement.
The consolidated complaint includes an order vacating and
setting aside the settlement agreement pursuant to Section
101.9(e)(2) of the Board’s Rules and regulations.6 The stated

6 Sec. 101.9(e)(2) provides: “In the event the respondent fails to
comply with the terms of an informal settlement agreement, the Re-
gional Director may set the agreement aside and institute further pro-
reason for setting aside the agreement is that the Respondent
violated the settlement agreement by engaging in Section
8(a)(1) conduct in February and March. The settlement agree-
ment is not an exhibit and the record does not disclose the
terms of the agreement.7
A settlement agreement generally disposes of all issues, with
certain exceptions. See Hollywood Roosevelt Hotel Co., 235
NLRB 1397 (1978). The Board’s settlement bar rule is an af-
firmative defense and must be raised in the pleadings or at the
trial; otherwise it is waived. See Richard Mellow Electrical
Contractors Corp., 327 NLRB 1112 (1999). Here the Respon-
dent has explicitly raised a settlement bar defense and the set-
tlement bar question was placed in issue.
A settlement agreement can be set aside if its provisions are
breached or if postsettlement unfair labor practices are commit-
ted. R.T. Jones Lumber Co., 303 NLRB 841, 843 (1991). In
determining whether there has been a breach of a settlement
agreement or whether post settlement unfair labor practices are
committed sufficient to set aside the agreement, mechanical or
a priori rules are not applied. Rather, there must be an exercise
of a sound judgment based on all the circumstances of the case,
Deister Concentrator Co., 250 NLRB 358, 359 (1980); and,
more important, in order to “properly” set aside a settlement
agreement, the subsequent or continuing unfair labor practices
must be “substantial,” Porto Mills, Inc., 149 NLRB 1454, 1470
(1964), and not “isolated,” Foodarama, 260 NLRB 298, 299 fn.
2 (1982); Coopers Local 42 (Independent Stave Co.), 208
NLRB 175 (1974). As noted in Farm Fresh, Inc., 301 NLRB
907, 935 (1991), the question, in each case, is just what quali-
fies as “minor and isolated” or indeed “substantial.” Oster Spe-
cialty Products, 315 NLRB 67, 70 (1994).
The General Counsel and the Union contend on brief that the
settlement agreement was breached. While there is a standard
form that is used for informal settlements (Form NLRB–4775),
the form can be amended, See NLRB Case Handling Manual
10146.2. The notice that is customarily a part of an informal
settlement agreement is not a standard form and is crafted to
address the particular situation. Both the agreement and the
notice are subject to negotiation. In the absence of evidence of
the provisions of the settlement, I am unable to conclude
whether the settlement agreement was breached.
The Respondent contends that the terms of the settlement
agreement block setting the agreement aside until the merits of
Cases 27–CA–17851 and 27–CA–17957 are fully adjudicated.
In support of this contention the Respondent argues as follows
on brief:

Under the terms of the informal settlement, the agreement
would only be set aside if the Employer engaged in any unfair
labor practices for a period of one year from the date of the
settlement. The events that allegedly occurred in the year
2002 have not been adjudicated to be unfair labor practices.

ceedings.” An “informal settlement agreement” is a specific type of
Board settlement.
7 On brief the General Counsel asks that notice be taken that the
posting period for Board notices is 60 days. I decline to take the re-
quested notice. A 60-day posting period is routine, but is not invariably
required. See NLRB Case Handling Manual 10132.1.
CITY MARKET, INC. 1271
The only basis the Government has to set aside the informal
settlement are a series of unproven, unadjudicated allegations
of unfair labor practices. This constitutes a procedural defect
in the most recent hearing of this matter. A second hearing on
whether the terms of the informal settlement had been vio-
lated should have been held when and only when, there had
been a hearing on the unfair labor practice charges that alleg-
edly occurred in 2002.

The Respondent cites no authority in support of this argu-
ment and it is not self-evident that such a provision in the set-
tlement agreement would bar setting the settlement agreement
aside. I need not reach the merits of the defense in the absence
of evidence of the provisions of the settlement agreement.
While the record evidence does not establish that the settle-
ment agreement was breached, the cases discussed earlier hold
that an alternative ground for setting aside a settlement agree-
ment can be the commission of postsettlement unfair labor
practices. Based upon the substantial nature of the postsettle-
ment unfair labor practices committed by the Respondent,
which began shortly after the approval of the settlement agree-
ment, I conclude that the agreement should be set aside. The
unlawful posting of restrictions on solicitation and distribution
on February 8, accompanied by threats to discipline employees
and the request that employees to report concerted activity to
management was particularly egregious, because it would have
the foreseeable effect of interfering with the employees’ exer-
cise of their right to campaign in a rerun election. The unlawful
restrictions on protected activity imposed in the meeting be-
tween Palmer, Dahl, and Sorenson on February 12, coupled
with the threat that jobs could be lost, was not an isolated mat-
ter, since Sorenson was one of the leading Union proponents.
Accordingly, I conclude that the settlement was properly set
aside.8
G. Preelection, Presettlement Events
1. Complaint paragraph 5(a)—June 6 threats by John Hailey
of the loss of benefits and wages
(a) Facts
The complaint alleges that at five meetings in June and July,
admitted supervisors and agents made statements that violated
Section 8(a)(1) of the Act. On June 6, the Respondent held a
mandatory meeting of a small group of employees at a real es-
tate office near the Store. John Hailey, a manager at another of
the Respondent’s stores and an admitted agent, conducted the
meeting. Store Manager Pete Palmer was present. The employ-

8 A different conclusion is not warranted based upon the statement in
the complaint that the settlement agreement was set aside because the
agreement was breached. The issue of whether the agreement should
be set aside based upon postsettlement unfair labor practices was fully
litigated. A different conclusion is also not warranted based upon the
language in Sec. 101.9(e)(2) of the Board’s Rules and Regulations that
provides that a settlement agreement may be set aside because it has
been breached. As demonstrated by the cases discussed above, the
Board has held for many years, with court approval, that the commis-
sion of postsettlement unfair labor practices is an alternative ground for
setting aside a settlement agreement without proof of a breach of the
specific terms of a settlement agreement.
ees were shown an antiunion video. Employee Steffanie
Sorenson attended. She was at a total of about six such meet-
ings. She described the video as depicting what union organiz-
ers would do during an organizing campaign. The General
Counsel does not contend that the showing of the video was
itself unlawful.9 After the video was shown Hailey opened the
meeting to questions. Sorenson and former employee Joyce
Randall testified regarding what was said, as did Hailey and
Palmer. Employee Justin Huber also attended an antiunion
meeting at the real estate office, but could recall no details and
the record does not establish that he attended the June 6 meeting.
Based on the totality of credibly offered and probable evi-
dence and putting together a composite picture of what oc-
curred, I reach the following factual conclusions regarding the
June 6 events. In discussions following the video several em-
ployees voiced their views on the pros and cons of the Union,
including the mention of job security, union dues, and negotia-
tions. At one point Hailey held up a blank piece of paper and
told the employees that in negotiations, “You start with a blank
piece of paper and you negotiate. Three things can happen.
You could get more. You could get less. Or you could get the
same.”
The testimony of Hailey and Palmer regarding what he said
at the June 6 meeting was credibly offered and is consistent
with the use of a blank piece of paper as a prop. The testimony
of employee witnesses that Hailey made certain other remarks
has not been credited. Thus, I conclude, contrary to the testi-
mony of Sorenson, that the credible testimony does not estab-
lish that Hailey said that negotiations start “at zero.” Sorenson
conceded that she had not attributed such a remark to Hailey
when she described the incident at the hearing on objections.
Randall’s testimony that at this meeting Hailey specifically told
the employees that during contract negotiations there would be
no raises or vacations, that wages might be reduced to $6 per
hour and that the employees could lose their insurance and
other benefits was not convincingly offered, was not corrobo-
rated, and is not credited. As discussed later, there was a sub-
sequent meeting where the possibility of wage reductions was
addressed.
(b) Analysis
There are a number of reported decisions where the Board
has addressed the lawfulness of statements by employers that
bargaining “begins from scratch,” “starts at zero,” “starts with a
blank page” or similar statements. The terms are synonymous.
The principals to be followed in assessing the lawfulness of
such statements under Section 8(a)(1) are found in the opinion
in Coach & Equipment Sales Corp., 228 NLRB 440, 440–441
(1977), where the Board states:

“Bargaining from scratch” is a dangerous phrase which car-
ries within it the seed of a threat that the employer will be-
come punitively intransigent in the event the union wins the
election. The Board has held that such “hard bargaining”
9 Sorenson testified that the title of the videotape was “Promises,
Promises.” The record suggests, but does not establish, that the video
was “Promises, Promises, Promises,” a video discussed in Parts Depot,
Inc., 332 NLRB 670 (2000).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1272
statements may or may not be coercive, depending on the
context in which they are uttered. Thus, where a bargaining-
from-scratch statement can reasonably be read in context as a
threat by the employer either to unilaterally discontinue exist-
ing benefits prior to negotiations, or to adopt a regressive bar-
gaining posture designed to force a reduction of existing bene-
fits for the purpose of penalizing the employees for choosing
collective representation, the Board will find a violation.
Where, on the other hand, the clearly articulated thrust of the
bargaining-from-scratch statement is that the mere designa-
tion of a union will not automatically secure increases in
wages and benefits, and that all such items are subject to bar-
gaining, no violation will be found. A close question some-
times exists whether bargaining-from-scratch statements con-
stitute a threat of economic reprisal or instead constitute an at-
tempt to portray the possible pitfalls for employees of the col-
lective-bargaining process. The presence of contemporaneous
threats or unfair labor practices is often a critical factor in de-
termining whether there is a threatening color to the em-
ployer’s remarks. [Footnotes omitted.]

Hailey did not threaten to unilaterally discontinue existing
benefits prior to negotiations. There were no contemporaneous
threats or unfair labor practices that lend a threatening color to
the remark. The postelection Section 8(a)(1) violations dis-
cussed, supra, occurred over 8 months later, following the elec-
tion. In considering a similar employer statement in Mediplex
of Connecticut, Inc., 319 NLRB 281 (1995), the Board con-
cluded:

The Respondent’s message to its employees that union repre-
sentation was no guarantee of better benefits and might result
in less desirable benefits, is legitimate campaign propaganda,
which employees are capable of evaluating. Such expressions
of views are protected by Sec. 8(c) of the Act.

The statements and use of the blank sheet of paper are not
per se unlawful. The numerous cases cited by the General
Counsel and the Union in support of their position on this issue
have been considered.10 In those cases there was a context,
absent here, that rendered the remarks coercive. See BI-LO,
303 NLRB 749, 750 (1991), enfd. 985 F.2d 123 (4th Cir.
1992); UARCO, Inc., 286 NLRB 55 (1987). I shall recommend
dismissal of complaint paragraph 5(a).
2. Complaint paragraph 5(b)—June 21 threats by Phyllis Nor-
ris and/or Milton Christensen of the loss of profit sharing
(a) Facts
On June 21, there was a meeting of department managers at
the Store. Phyllis Norris, Respondent’s president and Milton
Christensen, employee relations manager, conducted the meet-
ing. Justin Huber, a statutory employee also attended the meet-
ing. Huber was the Employer’s scanning coordinator. Palmer
invited him to the meeting.

10 Eg., TRW-United Greenfield Division, 245 NLRB 1135 (1979);
Centre Engineering, Inc., 246 NLRB 632 (1979); Overnite Transporta-
tion Co., 334 NLRB 1074 (2001); and Lear-Siegler Management Ser-
vice, 306 NLRB 393 (1992).
At the Store the Respondent had a profit sharing plan for
employees age 21 and over with a year of service. The Em-
ployer contribution was 5 percent of an employee’s base salary.
The profit sharing contributions became 20 percent vested at 3
years service and vested in additional 20 percent increments
each year thereafter, becoming fully vested after 7 years. The
vested portion of the profit sharing plan was paid to employees
upon retirement or when they otherwise ended their employ-
ment. In addition, there was a 401(k) plan that was funded
solely by employee contributions. The alleged threats during
the June 21 meeting related to loss of profit sharing if the Un-
ion was voted in. Huber, Palmer, and Christensen described
differing versions of what occurred at the meeting.
Huber testified as follows as a witness for the General Coun-
sel:

A. [Norris] asked if there were any questions because
there was a union campaign coming up and she wanted in-
put from the department heads, I guess, and Brian asked if
we vote the Union in will we lose profit sharing 401K, and
she said no. It would be frozen during the time of negotia-
tions. We would—the store would not contribute anything
to profit sharing 401K during negotiations if the Union
was voted in.
Q. Did she say anything else that you can recall sub-
ject to benefits?\
A. I believe she said that benefit[s], that we would not
get benefits during the time of negotiations. They would
resume after negotiations, but they would be what we ne-
gotiated.
Q. Do you remember Milt Christensen saying any-
thing on that subject?
A. I don’t recall.

Palmer testified:

A. I believe Brian Bailey, who at the time was my
grocery manager, brought up the subject about profit shar-
ing and if the Union were brought in, if profit sharing—if
City Market would still contribute to profit sharing.
Q. Was a response given?
A. Phyllis turned it over to Milt Christensen, and I
think Milt implied that in the Grand Junction stores, if the
Union had come in and City Market no longer contributed
to profit sharing, but then again, he stated that everything
had to be negotiated.
Q. Was there any discussion about what would hap-
pen to profit sharing during the negotiations?
A. I’m not for certain if there was.
Q. Did Phyllis make any comments about the profit
sharing plan?
A. I’m not for certain.

Christensen testified as follows:

Q. Was there any discussion of the profit sharing
plan?
A. One of the people at the meeting, I think it was
Brian Bailey, asked a question, if the Union is voted in,
what happens to our profit sharing plan, and can we keep
the profit sharing plan?
CITY MARKET, INC. 1273
Q. Okay. Was there a response to that question?
A. Yes, I responded.
Q. And what did you respond?
A. I told them that for whatever portion that you’re
vested, is always yours and nobody can ever take that
away. That’s always yours, no matter what. And as far as
whether you can keep the profit sharing plan, that’s nego-
tiable. That would come down to negotiations. But that
the fact was, that in the contracts that we had—City Mar-
ket had with Local 7, the profit sharing plan had never
been negotiated into any of those existing contracts.
Q. Was there any other discussion about profit shar-
ing?
A. No, that was it.

Of the three versions quoted above, I credit the testimony of
Christensen as being the more accurate account of who ad-
dressed the issue of profit sharing and of what was said. His
testimony was detailed, convincingly offered, and seems prob-
able. Palmer’s recollection of the details was not as good. In
contrast to Palmer and Christensen, Huber’s testimony was
offered in an unconvincing fashion and he was obviously con-
fused regarding the distinction between the profit sharing plan
and the 401(k) plan.
I found Huber’s testimony that he “believed” Norris said that
employees would not receive benefits during negotiations un-
convincing, inconsistent with other credited testimony, and
improbable. Accordingly, it is not credited. The complaint
does not allege that such a statement was made at the June 21
meeting and the General Counsel has not urged that a violation
be found based upon this testimony.
(b) Analysis
The credited evidence does not establish that any threat that
employees would lose benefits was made in the June 21 meet-
ing. Accordingly, I shall recommend dismissal of complaint
paragraph 5(b).
3. Complaint 5(d)—Threats on or about July 18, 19, and 20
by Randy Griffin that benefits and wages, including profit
sharing plan and insurance, would be lost
(a) Facts
On July 18, 19, and 20, Respondent’s District Manager
Randy Griffin conducted six or seven mandatory meetings of
different groups of employees at the Store. At each of the
meetings Griffin distributed a leaflet titled “Employee Ques-
tions About the Union, Part Two” that included the following:

QUESTION: Could I lose wages and/or benefits if the
union comes in?
ANSWER: YES, you could lose wages and/or bene-
fits as a result of negotiations with the UFCW. The union
will tell you: “Don’t worry because it is against the law for
the Company to take away wages or benefits because you
vote in the Union. Please be careful and listen carefully
when the UFCW makes statements like this. True it is il-
legal for management to “take away wages or benefits as
punishment for bringing in the union.” But that is just
clever wording to get around the real issue which is that
employees can lose wages and/or benefits as the result of
the bargaining (trading) process—On any item or on the
entire package, you could get more, the same as you had
or LESS than you had when the negotiations started. This
is the real answer to the question–YES, you can lose.
[Italics, capitalization, and underlining in the origi-
nal.]11

Sorenson attended one of the meetings conducted by Griffin.
She credibly testified that at that meeting Griffin held up a
blank piece of paper and told the employees, “[In] negotiations,
there are two sides. You sit down at a table and try and work
things out together. You start out with a blank page. You
could get more, less, or the same.” Hailey testified that Griffin
responded to an employee request for clarification by using an
analogy of negotiation for the sale of a house. Hailey credibly
testified that Griffin told the group that negotiations were simi-
lar to buying a house, in that a buyer has a certain price that he
wants, and the seller has a certain price that he wants and usu-
ally the two settle in the middle somewhere, that neither side
got what they want.
Credibly offered testimony of Griffin and Hailey establishes
that the remarks made by Griffin regarding profit sharing were
that the Union contracts that had already been negotiated at
other stores did not include profit sharing, but if the Union did
come in, the employees profit sharing would still be there, and
that the employees would receive the amounts that were vested
when their employment ended. The employees were told that
during negotiations profit sharing would “float.”
Sorenson testified that she could not quote Griffin exactly,
but that in substance he said that insurance would be “frozen”
during negotiations, which could be 6 months or a year. In
contrast, Hailey credibly testified that the employees were
never told at this meeting that the Respondent would cease
contributions for insurance.
Huber attended one of the three meetings conducted by Grif-
fin. The date was not established. On direct examination and
then on cross-examination he testified that he could not re-
member who was present, but later he testified that he never
attended a meeting with Sorenson. He testified that Griffin
distributed the handout and then held up a blank piece of paper
and said, “[T]his is where you—you start with nothing, and
then in negotiations, you can wind up with less, you can wind
up with more, or you can stay where you’re at currently during,
[or] after negotiations are concluded.” Griffin denied the “start
with nothing” remark described by Huber. I found Griffin to be
a more credible witness on this issue and accordingly find that
Griffin did not say that negotiations “start with nothing.”
(b) Analysis
For the same reasons discussed earlier regarding the “blank
piece of paper” remarks made by Hailey on June 6, the state-
ments by Griffin while holding up a blank piece of paper were
not unlawful. The General Counsel contends that the emphasis
in the “Employee Questions” leaflet on the word “Less” war-

11 The entire handout is in the record, but there has been no conten-
tion that statements other than the quoted portion are evidence of
unlawful threats.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1274
rants a different conclusion. I do not agree. Merely emphasiz-
ing that there was a possibility that negotiations could result in
employees receiving less, while in the same sentence acknowl-
edging that the employees could receive more, is insufficient to
establish a violation of Section 8(a)(1). It is not unlawful for an
employer to emphasize the possible downside of collective
bargaining, so long as the argument, read in context does not
amount to a threat. Coach and Equipment Sales, supra. More-
over, any coercive effect is more than counterbalanced by Grif-
fin’s statement that to the employees that in collective bargain-
ing, as with selling a house, the parties usually “settle in the
middle somewhere, that neither side got what they want.”
Thus, Griffin’s remarks were consistent with good faith bar-
gaining and an outcome where the Union was successful in
achieving at least a part of what was sought. Indeed, this is a
common outcome of good faith bargaining.
The statement by Griffin that insurance would be “frozen”
during negotiation was, in context, no more than a statement
that the Employer would not take unilateral action to change
insurance. Thus, there is no evidence that the employees had
any reason to conclude, based upon Griffin’s remarks, that they
would be denied expected insurance benefits during negotia-
tions if the Union gained representative status. Cf. Reno Hilton
Resorts Corp., 319 NLRB 1154, 1182 (1995), where a state-
ment that previously announced insurance benefits would be
frozen was found to violate Section 8(a)(1).
In the absence of credible and probative evidence that the
Respondent threatened employees with the loss of wages or
benefits at the July 18, 19, and 20 meetings, I shall recommend
dismissal of complaint paragraph 5(d).
4. Complaint 5(e)—July 26 threats by Bruce Saunders and/or
John Hailey that benefits and wages would be lost
(a) Facts
On July 26, there was a mandatory meeting of a group of
employees at the Store. Employees Steffanie Sorenson and
Dale Hampa and managers, Saunders and Hailey, testified
about that meeting. Sorenson and Hampa were then apparently
working a day shift. Saunders and Hailey agree that they were
at the meeting described by Sorenson and Hampa. Their ac-
counts differed somewhat from those of Sorenson and Hampa.
Based on the totality of credited evidence and considering the
demeanor of the witnesses and the probabilities, the following
is a composite picture of what occurred at the July 26 meeting.
The same handout that had been distributed at the employee
meetings on July 18, 19, and 20, discussed above, was distrib-
uted. In addition, the employees were shown a video and were
given another handout titled “The Facts about Negotiations.”
There has been no contention that the handouts or the video
were independently unlawful. The gist of the video was that
unions were weak in negotiations and gave in to employers.
The video is not in evidence. Following the video, one of the
managers held up a sheet of paper and stated that negotiations
began with a blank page and that the employees might end up
with more, less, or the same. Saunders and Hailey each testi-
fied that Hailey ran the meetings they attended together and
that in each of those meetings it was Hailey who used the blank
sheet of paper. Based upon considerations of demeanor and the
probabilities, I conclude that Sorenson and Hampa were incor-
rect in their recollection that Saunders was the person who held
up the sheet and made this remark.
One of the employees asked what could happen if negotia-
tions did not go well. Saunders stated that the Union could
strike, the Union could abandon the employees, the Union
might agree to a contract without it being ratified by the em-
ployees and that negotiations could possibly go on for 6 months
or a year. He cited a situation at a City Market store in Ala-
mosa, Colorado, where he said negotiations went on for over a
year and that the Union then abandoned the unit. The record
does not reflect that the statements regarding ratification and
the Alamosa unit were untrue.
Saunders asked if everyone knew what an impasse was.
Several employees offered definitions that demonstrated that
they understood the term. Sanders raised the possibility that the
employer might implement its last offer. Saunders described a
hypothetical situation where the current wages were $7 per
hour, the Union was seeking an increase to $8 and the Em-
ployer proposed $6 and the Employer’s $6 proposal was im-
plemented following impasse. Hampa said that he did not think
that the Employer could do that and Sorenson agreed. Saunders
asked Hampa if he was a lawyer. Saunders said that he was not
a lawyer, but that he had the number for the National Labor
Relations Board if they wanted to call them. Sorenson said that
she had the number and was going to call the Board. Hampa
stated that he was a family man and could not take a pay cut.
At that time Hampa was earning $10 per hour. Saunders said
that as a family man, Hampa should do the right thing.
(b) Analysis
The “Employee Questions” handout, discussed in connection
with the July 18–20 meetings, supra, was not unlawful. There
is little detail regarding the video and it does not support a find-
ing of a violation. There has been no contention and the evi-
dence does not establish that the “Facts about Negotiations”
handout was unlawful. The evidence regarding the obviously
hypothetical situation posed by Saunders is insufficient to con-
clude that it was a threat that benefits and wages would be lost
if the employees selected the Union to represent them. For the
same reasons discussed earlier regarding the “blank piece of
paper” remarks made by Hailey on June 6, similar remarks and
the use of a blank piece of paper at the July 26 meeting were
not unlawful. I shall recommend dismissal of complaint para-
graph 5(e).
5. Complaint 5(f)—July 26 or 27 threats by John Hailey
that benefits and wages would be lost
(a) Facts
About July 26 or 27, there was a mandatory meeting at the
Store attended by a small group of employees. The exact date
of the meeting was not established. Hailey conducted the meet-
ing. Saunders and Palmer were present. Employees Sapp and
Huber and Managers Saunders and Hailey testified about the
meeting. Sapp and Huber were then working a night shift.
Unless otherwise noted, the following is a composite picture of
what the credible evidence shows occurred at this meeting.
CITY MARKET, INC. 1275
The employees were shown a video regarding negotiations
and a document was distributed, which Hailey challenged the
employees to ask the Union to sign. The document contained
“guarantees” by the Union as to what the Union would secure
in negotiations. Hailey said that the Union would not sign,
because the Union could not guarantee anything. The video
and document are not in evidence and there has been no conten-
tion that they are independently unlawful.
Hailey asked if there were any questions. Following some
discussion, Hailey held up a blank piece of paper. Sapp testified
that when Hailey held up the piece of paper he said that negotia-
tions started with a “clean slate.” No other witness testified to
hearing a reference by Hailey to a clean slate. (There is incon-
clusive evidence that at another meeting Griffin may have re-
ferred to a clean slate.) Sapp demonstrated poor recollection of
the details of the meeting and it appears that the expression was
her understanding of the import of what was said, rather than an
actual recollection of Hailey’s words. In contrast, Huber testi-
fied that Hailey “held up a blank piece of paper and said this is
where you—you start with nothing, negotiations started with
nothing.” As with much of his testimony, Huber impressed me
as being a witness attempting to tailor his testimony to support
the Union and to relate his understanding of the import of what
he had heard, rather than what was actually said. It seems more
probable that Hailey said, as credible testimony establishes he
said at other meetings, that negotiations start with a “blank
page.” However, in the absence of credible testimony establish-
ing what Hailey said at this particular meeting regarding where
negotiations started, I find that the General Counsel has not
established what was said regarding that subject.
As at the July 26 meeting, there was discussion of the mean-
ing of impasse. Hailey said that negotiations could take as long
as 6 months or a year. I do not credit Huber’s claim that Hailey
said negotiations “would” take 6 months to a year. Hailey gave
an example of negotiations regarding a unit of pharmacy tech-
nicians in Alamosa, Colorado who had voted in the Union, and
after a year of negotiations an agreement could not be reached
and there was an impasse and the Union had “walked away.”12
Sapp credibly testified that Hailey said that if there was an im-
passe the Employer could implement its final offer. Huber of-
fered an embellished version that Hailey said that the final offer
at Alamosa was less than those employees were then earning
and that the Employer could have implemented the final offer,
but did not. Huber’s version was not corroborated by Sapp, is
inconsistent with Hailey’s more credibly offered testimony and
is not credited.
(b) Analysis
There is an absence of credible testimony that Hailey threat-
ened employees at this meeting with the loss of benefits or
wages it they selected the Union or that the Respondent other-
wise violated the Act at this meeting. Accordingly, I shall rec-
ommend dismissal of paragraph 5(f) of the complaint.

12 In fact, the Union had disclaimed interest in the Alamosa unit after
efforts to reach a contract had been unsuccessful.
6. Surveillance: Complaint 5(g)—July surveillance
by security guards
(a) Facts
During at least a part of the night shift when the Store was
open for business no store manager or assistant manager was
normally present. There was a night foreman, who may have
been present, but the night foreman was an eligible voter in the
election and the evidence does not show him to have been a
statutory supervisor. Thus, at times when the Store was open at
night no statutory supervisor or manager was present. Begin-
ning in mid-June, about 6 weeks before the August 2 election,
one security employee was assigned to work each night at the
Store, limited to times when no supervision was present.
The Employer’s work force includes security personnel. The
security personnel who worked at the Store are supervised by
Lead Investigator Catherine Stark, who works under the direc-
tion of management outside the Store. Ordinarily security em-
ployees were not assigned to work at the Store on a daily basis.
Rather, Stark would assign a security employee to work at the
Store once a week or once every other week, inferentially to
address theft issues. In addition, security personnel were avail-
able to address specific problems.
The security employees at issue wore a nametag like other
Store employees and there was nothing to distinguish their
appearance from that of other employees. The employees were
aware of the identity of the security employees. While at the
Store the security employees loitered in the vicinity of the front
entrance or sat at a picnic table in the parking lot and observed
the front door. The evidence does not show that the security
employees at issue were in nonpublic areas of the store.
The security employees were instructed to insure that per-
sons coming into the store did not disrupt work. Their instruc-
tions regarding their interaction with store employees were that
they could relate facts that they knew about unions, offer their
opinions and provide examples of their experience with unions.
The instructions included a prohibition on spying on employ-
ees.
The Employer had a written management policy, dated Oc-
tober 9, 1995, that prohibits solicitation or distribution of litera-
ture in the Employer’s retail stores by nonemployees, absent
special permission. The written policy is set forth in full supra,
in the discussion of the posting of the policy on February 8,
limiting employee soliciting. There is evidence that the man-
agement instructions regarding nonemployees had been en-
forced at other stores.
Employees Justin Huber, Debra Sapp, and Ruth Powell each
credibly testified that an assigned security employee observed
them while they were at work in the sales floor area from loca-
tions in the vicinity of the front entrance. Sapp testified that
when she was on duty at a check stand at the front of the store,
a security employee in the magazine area near her check stand
watched as a nonemployee friend of Sapp talked with her.
After the friend went to another location in the Store and en-
gaged in a conversation with another unidentified person, the
security employee approached Sapp and asked if she had been
discussing union business and whether the person was a union
person. Sapp answered no and explained that it was a nonem-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1276
ployee friend. The security employee then said “okay” and
went back to the magazine rack.
Customer Louis Drakulich, a former police officer with ex-
perience in retail security, corroborated the testimony of Huber
and Sapp regarding the activity of one of the night security
guards. Drakulich testified that he spent a lot of time in the
Store, at least one night a week. Drakulich knew Sapp and
Huber and discussed movies with them when he visited the
store. One night in about July he had a conversation with Sapp
and Huber in an aisle of the Store where they discussed a
movie. During the discussion, Drakulich remarked on the secu-
rity employee, who was then watching them. Drakulich had
never seen the security employee before, but he sensed that the
person was involved in security, apparently a consequence of
his years of experience in law enforcement.
(b) Analysis
The evidence shows and the Employer concedes that the
presence of a single security employee on a daily basis begin-
ning in mid-June was related to the scheduled election on Au-
gust 2. Stark testified that the security personnel were at the
Store to represent management when management was absent.
The General Counsel and the Union contend that the assign-
ment of security employees was unlawful based upon the ra-
tionale of Metal Industries, 251 NLRB 1523 (1980); Parsip-
pany Hotel Management Co., 319 NLRB 114 (1995), enfd. 99
F.3d 413 (D.C. Cir. 1996); and 6 West Limited Corp., 330
NLRB 527 (2000), enfd. denied 237 F.3d 767 (7th Cir. 2001).
Thus, it is argued that the use of the security employees was out
of the ordinary and was in response to the union organizing
activity and there was no legitimate reason for their presence.
The Respondent contends that it was privileged to have a man-
agement representative on the premises to foreclose solicitation
on its property by nonemployees under Lechmere, Inc. v.
NRLB, 502 U.S. 527 (1992). The Respondent further contends
that the employer did not violate Section 8(a)(1) when it ob-
served its employees, citing Roadway Package System, 302
NLRB 961 (1991). For the following reasons, I conclude that
the Employer’s increased use of security guards did not violate
the Act.
The test for determining whether an employer engages in
unlawful surveillance or unlawfully creates the impression of
surveillance is an objective one and involves the determination
of whether the employer’s conduct, under the circumstances,
was such as would tend to interfere with, restrain, or coerce
employees in the exercise of the rights guaranteed under Sec-
tion 7 of the Act. The Broadway, 267 NLRB 385, 400 (1983)
(citing U. S. Steel Corp. v. NLRB, 682 F.2d 98 (3d Cir. 1982)).
Management officials may observe public union activity on
company premises without risking an 8(a)(1) violation unless
such officials do something “out of the ordinary.” Metal Indus-
tries, Inc., 251 NLRB 1523 (1980). The evidence shows that
the use of security employees by the Respondent was out of the
ordinary and was admittedly related to the Union’s organizing
effort. The question is whether the use of the security employ-
ees was legitimate.
There is an inherent tension between an employer’s property
rights and the Section 7 rights of its employees. First Health-
care Corp., 336 NLRB 646 (2001). The Board is required to
seek a proper accommodation between Section 7 rights and
private property rights. The accommodation between employ-
ees rights and employers’ property rights must be obtained with
as little destruction of one as is consistent with the maintenance
of the other. Hudgens v. NLRB, 424 U.S. 507, 521 (1976).
Accordingly, any tendency of the Respondent’s increased use
of security guards during the preelection period to interfere
with the employees’ rights must be balanced against the ad-
verse impact on the Respondent’s property rights if the in-
creased use of security employees was not allowable in the
circumstances of this case. I conclude that a violation has not
been established.
Nonemployee union organizers had no right to enter the
Store and the Employer was privileged to exclude them. Lech-
mere, Inc. v. NLRB, 502 U.S. 527 (1992). To insure that non-
employee union organizers did not have free run of the Store at
times when no managers or supervisors were present, the Em-
ployer used a single security employee like those routinely used
for theft control. These employees were less likely to intimi-
date employees than would uniformed guards or contract per-
sonnel. The security employees stationed themselves where
they could observe the public entrance and thus watch for non-
employee union organizers. There is no evidence that they
attempted to observe employees in break areas or other nonpub-
lic areas. Thus, the presence of the security employees was no
greater than was reasonably necessary to achieve the Em-
ployer’s legitimate objective of excluding nonemployee Union
organizers. There is no evidence that they engaged in gratui-
tous intimidation and there was only one occasion where there
was any mention of the union, discussed below. There is an
absence of evidence of any actual surveillance of protected
activity.
The close observation of Sapp and Huber while they had an
extended conversation with Drakulich was consistent with the
employer’s right to exclude nonemployee union organizers.
Drakulich, a trained observer, had never seen that security em-
ployee, so it is reasonable to infer that the security employee
did not recognize Drakulich as being a legitimate customer.
There is no contention that Sapp and Huber were engaged in
their regular duties when they discussed movies with Draku-
lich. There was nothing in Drakulich’s appearance that was
inconsistent with the possibility that he was a nonemployee
union organizer. Any interference with protected rights by the
security employee was minimal.
Likewise, the conversation one security employee had with
Sapp at her register was consistent with the legitimate duties of
the security employee. There is no evidence that the conversa-
tion Sapp had with the unidentified friend was protected con-
certed activity. Since the Respondent was privileged to exclude
nonemployee union organizers, the security employee was
privileged to make reasonable inquiry when nonemployees
came into the store and engaged working employees in conver-
sation. Any interference with protected rights by the security
employee was minimal.13

13 There is no contention that the questions the security employee
asked were violations. That question was not litigated and I draw no
CITY MARKET, INC. 1277
It has not been shown that the single security employee had
more than a minimal impact on employee rights. In contrast,
denying the Employer to have some representative of manage-
ment on site would significantly impinge on the property rights
of the Employer. Accordingly, the use of the security employ-
ees did not violate the Act. Hudgens v. NLRB, 424 U.S. 507,
521 (1976); Tarrant Mfg. Co., 196 NLRB 794, 799 (1972). On
the facts of this case a different result is not required because the
Employer did not explain to employees the reason for the secu-
rity employees. Cf. 6 West Limited Corp., 330 NLRB 527 fn. 7
(2000), enfd. denied 237 F.3d 767 (7th Cir. 2001). Accordingly,
I shall recommend dismissal of complaint paragraph 5(g).
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. By posting of a policy limiting soliciting and distributing
by employees to interfere with employees’ right to self-
organization the Respondent engaged in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
4. By posting a memorandum threatening employees with
discipline and discharge for violating an unlawfully promul-
gated policy limiting soliciting and distributing on behalf of the
Union the Respondent violated Section 8(a)(1) of the Act.
5. By requesting in a memorandum that employees report
solicitation in violation of an unlawfully promulgated policy
limiting soliciting and distributing on behalf of the Union the
Respondent violated Section 8(a)(1) of the Act.
6. By requesting in a memorandum that employees who felt
harassed or intimidated by another employee report the matter
to the Respondent without regard to whether the activity of the
other employee was protected by the National Labor Relations
Act the Respondent violated Section 8(a)(1) of the Act.
7. By telling an employee that the above-mentioned memo-
randum and policy had been posted because employees had
complained of being harassed by people solicited by the Union
violated Section 8(a)(1).
8. By telling an employee that solicitation on behalf of the
Union during breaktime was prohibited the Respondent vio-
lated Section 8(a)(1) of the Act.
9. By threatening employees with discharge for soliciting on
behalf of the Union during breaktime the Respondent violated
Section 8(a)(1) of the Act.
10. The foregoing unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
11. The Respondent has not otherwise violated the Act.
12. The Settlement Agreement in Case 27–CA–17679 was
properly set aside by the Regional Director of Region 27.
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.

adverse inference because the Employer did not call the security em-
ployee as a witness.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended14
ORDER
The Respondent, Dillon Companies, Inc. d/b/a City Market,
Inc., Buena Vista, Colorado, its officers, agents, successors,
and assigns, shall
1. Cease and desist from:
(a) Posting or enforcing against employees at the Buena
Vista store the solicitation policy posted on February 8, 2002.
(b) Posting or enforcing against employees at the Buena
Vista store the interoffice memorandum posted on February 8,
2002.
(c) Requesting that employees at the Buena Vista store report
solicitation in violation of the solicitation policy and interoffice
memorandum posted on February 8, 2002.
(d) Requesting that employees at the Buena Vista store who
feel harassed or intimidated by another employee report the
matter to the Respondent, without regard to whether the activity
of the other employee was protected by the National Labor
Relations Act.
(e) Telling any employee at the Buena Vista store that the so-
licitation policy and interoffice memorandum posted on Febru-
ary 8, 2002, was posted because employees had complained of
being harassed by people, without regard to whether the activ-
ity of the other employee was protected by the National Labor
Relations Act.
(f) Telling any employee at the Buena Vista store that solici-
tation on behalf of the Union during breaktime is prohibited.
(g) Threatening any employees at the Buena Vista store with
discharge for soliciting on behalf of the Union during break-
time.
(h) In any like or related manner interfere with, restrain, or
coerce employees at the Buena Vista store in the exercise of
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative actions, which are neces-
sary to effectuate the policies of the Act.
(a) Withdraw the interoffice memorandum and the solicita-
tion policy posted on February 8, 2002, insofar as it applies to
the employees at the Buena Vista store.
(b) Within 14 days after service by the Region, post at its
Buena Vista retail store copies of the attached notice marked
“Appendix.”15 Copies of the notice, on forms provided by the
Regional Director for Region 27, after being signed by the Re-
spondent’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. Reason-
14 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mend 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.
15 If this Order is enforced by a judgment of the United States Court
of Appeals, the words in the notice reading “Posted By Order of the
National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1278
able steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other mate-
rial. In the event that, while these proceedings are pending, 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 8, 2002.
(c) 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.

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 be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.

WE WITHDRAW the posting of the interoffice memoran-
dum and the solicitation policy that we posted at the Buena
Vista store on February 8, 2002.
WE WILL NOT post or enforce against employees at the
Buena Vista store the interoffice memorandum or the solicita-
tion policy that we posted on February 8, 2002, limiting solicit-
ing and distributing by employees on behalf of United Food
and Commercial Workers, Local 7, AFL–CIO.
WE WILL NOT tell any employee at the Buena Vista store
that the interoffice memorandum and solicitation policy that we
posted on February 8, 2002, was posted because employees had
complained of being harassed by people solicited by the Union.
WE WILL NOT threaten any employee at the Buena Vista
store with discipline or discharge for violating the interoffice
memorandum or the solicitation policy posted on February 8,
2002.
WE WILL NOT ask any employee at the Buena Vista store
to report violations of the solicitation policy posted on February
8, 2002.
WE WILL NOT request that employees at the Buena Vista
store who have felt harassed or intimidated by another em-
ployee to report the matter to us without regard to whether the
activity of the other employee was protected by the National
Labor Relations Act.
WE WILL NOT tell any employee at the Buena Vista store
that solicitation on behalf of the Union during breaktime is
prohibited.
WE WILL NOT threaten any employee at the Buena Vista
store with discipline or discharge for soliciting on behalf of the
Union during breaktime.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of rights guaranteed you
by Section 7 of the Act.
DILLON COMPANIES, INC. D/B/A CITY MARKET, INC.