Fresh & Easy Neighborhood Market, Inc.

National Labor Relations Board - Board Decisions

Aug 11, 2014

361 N.L.R.B. 151 (N.L.R.B. 2014)

FRESH & EASY NEIGHBORHOOD MARKET, INC. 151
Fresh & Easy Neighborhood Market, Inc. and Mar-
garet Elias. Case 28–CA–064411
August 11, 2014
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA,
HIROZAWA, JOHNSON, AND SCHIFFER
This case raises the issue of whether an employee was
engaged in “concerted activity” for the purpose of “mu-
tual aid or protection” within the meaning of Section 7 of
the National Labor Relations Act when she sought assis-
tance from her coworkers in raising a sexual harassment
complaint to her employer. The judge found that she
was not, and the Acting General Counsel excepts.1 We
find that the employee was indeed engaged in concerted
activity for the purpose of mutual aid or protection. We
also agree with the Acting General Counsel that, to the
extent the Board’s divided decision in Holling Press,
Inc., 343 NLRB 301 (2004), would require a finding that
the employee’s activity was not for mutual aid or protec-
tion, that case—which lies far outside the mainstream of
Board precedent—should be overruled. Nevertheless, in
the particular circumstances of this case, we agree with
the judge that the employer did not violate Section
8(a)(1) when it questioned the employee about why she
obtained witness statements from her coworkers and in-
structed her not to obtain additional statements.
1 On April 23, 2012, Administrative Law Judge Joel P. Biblowitz is-
sued the attached decision. The Acting General Counsel filed excep-
tions and a supporting brief. The Respondent filed an answering brief,
and the Acting General Counsel filed a reply brief.
The National Labor Relations Board has considered the decision and
the record in light of the exceptions and briefs and has decided to af-
firm the judge’s rulings, findings, and conclusions only to the extent
consistent with this Decision and Order. We shall modify the judge’s
recommended Order to reflect the violations found and in accordance
with the Board’s standard remedial language, and consistent with our
decision in J. Picini Flooring, 356 NLRB 11 (2010). We shall also
substitute new notices to conform to the Order as modified and with
Durham School Services, 360 NLRB 694 (2014).
The judge found that the Respondent violated Sec. 8(a)(1) of the Act
by maintaining an overbroad and discriminatory confidentiality rule in
its employee handbook, on its company-wide intranet portal, and on its
New Hire CDs, and by failing to notify its employees at the Phoenix,
Arizona facility of changes to its solicitation and distribution rule. In
the absence of exceptions, we adopt the judge’s findings in this regard.
As discussed in the Amended Remedy section of this decision, we shall
amend the remedy and modify the recommended Order to require no-
tice posting by the Respondent at all of its facilities nationwide with
respect to its maintenance of the unlawful confidentiality policy. In
addition, in the absence of exceptions, we adopt the judge’s dismissal
of the allegations that the Respondent violated Sec. 8(a)(1) by main-
taining an overly broad and discriminatory solicitation policy, by creat-
ing an impression of surveillance, and by threatening employees with
unspecified reprisals.
I. FACTS
On August 24, 2011,2 employee Margaret Elias, a
cashier at the Respondent’s grocery store, asked supervi-
sor Bruce Churley if she could participate in training
related to the sale of alcohol, known as “TIPS.” Churley
told her to write a note to him on a whiteboard in the
breakroom, which Elias did on August 25. Her message
read, in relevant part: “Bruce . . . Could you please sign
me up for TIPS training on 9/10/11?”
On August 26, Elias saw that the word “TIPS” had
been changed to “TITS” and that a picture of a worm or
peanut urinating on her name had been added to her orig-
inal whiteboard message. Elias asked Michael Ander-
son, her team leader, about filing a sexual harassment
complaint and showed him the whiteboard. When An-
derson asked why she would want to do so, Elias left the
breakroom, angry at his reaction. Afterward, Anderson
telephoned Churley and, when informed of Elias’ plan to
file a sexual harassment complaint, Churley told Ander-
son to take a photograph of the altered whiteboard mes-
sage and erase it.
That same day, Elias hand copied the whiteboard pic-
ture and the altered message to a piece of paper.3 She
asked Anderson and two coworkers, Krista Yates and
Victoria Giro, to sign the document. All three did so.
Regarding the substance of Elias’ conversations with
those employees, the credited evidence establishes the
following:4 Before Anderson signed, Elias told him that
she wanted to depict what was on the whiteboard and to
file a sexual harassment complaint in connection with
that content. Likewise, before Yates signed, Elias indi-
cated to her that she wanted to file a complaint.5 When
Giro signed the document, she knew Elias was upset by
the whiteboard alteration and, at some point during their
conversation about the document, Elias mentioned want-
ing to file a complaint.6 Giro, who testified that she per-
sonally found the whiteboard alteration inappropriate,
suggested that Elias report the matter to Churley so he
could review the breakroom cameras, find out who al-
2 All dates are 2011 unless otherwise stated.
3 Employees at Elias’ level were not permitted to carry or use cam-
eras at the facility.
4 The judge generally credited the testimony of Anderson, Yates, and
Giro.
5 Yates testified that when Elias raised the whiteboard alteration to
her, Elias indicated that she wanted to file a complaint, but Yates could
not recall if Elias specifically stated that she wanted to file a sexual
harassment complaint.
6 As the hearing transcript reflects, Giro testified that Elias did in-
form Giro of her desire to file a complaint about the whiteboard inci-
dent, and the judge credited Giro’s testimony generally. The judge’s
finding that Elias never told Giro that she wanted to file a complaint is
clearly erroneous.
361 NLRB No. 12

152 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tered Elias’ message, and take appropriate corrective
action. As found by the judge, during these conversa-
tions Elias was loud and angry.
At the time that Anderson, Yates, and Giro signed Eli-
as’ document, only the hand- drawn picture and the al-
tered whiteboard message appeared on the paper. At
some later point, Elias added the following statement:
“Someone changed the board to ‘TITS’ instead of TIPS
and [sic] and put a worm pissing on my name. I take this
as sexual harassement [sic]. This has been on the [b]oard
since I got here at 2PM.” Elias testified that although she
did not intend that statement to be a joint complaint, “I
was offended and I believe that the other girls were of-
fended too. And it just seemed that if we were to file a
harassment charge that it wouldn’t happen again.” Elias
also testified that she felt the altered message was “sexu-
al-based harassment” for her and the two other women
who were working that night.7
Later on August 26, Churley returned to the store and
saw the photograph of the altered whiteboard that Ander-
son had taken. Churley then reviewed the breakroom’s
video footage and identified Gary Hamner as the em-
ployee who altered Elias’ whiteboard message. Churley
emailed Employee Relations Manager Monyia Jackson
to report the incident. He also spoke to Anderson, Giro,
and Yates about Elias’ request that they sign her hand-
written reproduction of the altered whiteboard message.
The three stated that they believed they were only wit-
nessing that Elias’ reproduction was correct, that they did
not want to help her bring a sexual harassment com-
plaint, and that they felt forced to sign the document.
Nonetheless, Giro testified that she would not have liked
the whiteboard alteration if it had happened to her and
thought that management should have been notified in
some way so that disciplinary action could be taken. In
fact, Giro testified that, the day after she signed Elias’
document, she went to Churley and told him that she
thought the whiteboard alteration was inappropriate and
that she hoped he would “take care of it.”
In the following days, Yates made a formal complaint
against Elias for “bullying” her into signing the statement
showing the reproduced whiteboard message and ac-
cused Elias of altering the statement after Yates signed it.
In addition, Hamner complained that Elias cursed at him
upon his arrival to work on August 26.
7 Although the judge discredited Elias’ testimony regarding her de-
meanor while soliciting her coworkers to sign the reproduced white-
board message, he did not discredit her testimony as to her reasons for
seeking to raise the sexual harassment complaint to the Respondent.
We may thus properly rely on Elias’ testimony on this point. See River
Ranch Fresh Foods, LLC, 351 NLRB 115, 117, 117 fn. 15 (2007).
Employee Relations Manager Jackson then began an
investigation into the whiteboard incident and the com-
plaints against Elias. After interviewing Anderson,
Yates, and Hamner, Jackson telephoned Elias on August
31.8 Jackson spoke to Elias about her sexual harassment
complaint, as well as her coworkers’ complaints against
her. When Jackson questioned Elias about why she felt
that she had to obtain her coworkers’ signatures on the
statement, Elias responded that it was for her own protec-
tion. Jackson also instructed Elias not to obtain any fur-
ther statements so that Jackson could conduct her inves-
tigation into the incident. She told Elias, however, that
Elias could talk to other employees and ask them to be
witnesses for her. Elias was never threatened with and
did not receive discipline for her actions. Upon complet-
ing the investigation, Jackson concluded that the white-
board alterations were inappropriate, disciplined Hamner
for making the alterations, informed Elias of her decision
in writing, and assured Elias that she would be protected
against retaliation. Jackson found no merit to Yates’ and
Hamner’s complaints against Elias.
II. THE JUDGE’S DECISION
The judge found that the Respondent did not violate
Section 8(a)(1) of the Act by questioning Elias about
why she felt she had to obtain her coworkers’ signatures
on the hand-drawn reproduction of the altered white-
board, or by instructing Elias not to solicit additional
written statements from her coworkers. Relying largely
on Holling Press, 343 NLRB 301, the judge reasoned
that Elias had not been engaged in concerted activity for
the purpose of mutual aid or protection at the time she
sought her coworkers’ assistance in raising a sexual har-
assment complaint to management. Instead, he found
that Elias’ complaint was personal and not shared by
other employees, and that her goal in raising the issue to
management was a purely individual one. In addition,
the judge, observing that the Respondent did not bar Eli-
as from speaking with her coworkers, found that Jack-
son’s request that Elias take no further statements was
not meant to deprive her of the right to engage in con-
certed activities, but rather to prevent disruption at the
store. He thus concluded that the Respondent’s ques-
tions and instructions to Elias were not unlawful.
III. DISCUSSION
A. Elias Engaged in Concerted Activity for the
Purpose of Mutual Aid and Protection
To be protected under Section 7 of the Act, employee
conduct must be both “concerted” and engaged in for the
purpose of “mutual aid or protection.” Although these
8 The judge credited Jackson’s version of the telephone call.

FRESH & EASY NEIGHBORHOOD MARKET, INC. 153
elements are closely related, our precedent makes clear
that they are analytically distinct. See Summit Regional
Medical Center, 357 NLRB 1614, 1616 (2011). As de-
scribed more fully below, whether an employee’s activity
is “concerted” depends on the manner in which the em-
ployee’s actions may be linked to those of his coworkers.
See NLRB v. City Disposal Systems, 465 U.S. 822, 831
(1984); Meyers Industries, 268 NLRB 493, 497 (1984)
(Meyers I), remanded sub nom. Prill v. NLRB, 755 F.2d
941 (D.C. Cir. 1985), cert. denied 474 U.S. 948 (1985),
supplemented Meyers Industries, 281 NLRB 882, 887
(1986) (Meyers II), affd. sub nom. Prill v. NLRB, 835
F.2d 1481 (D.C. Cir. 1987), cert. denied 487 U.S. 1205
(1988). The Supreme Court has observed, however, that
“[t]here is no indication that Congress intended to limit
[Section 7] protection to situations in which an employ-
ee’s activity and that of his fellow employees combine
with one another in any particular way.” NLRB v. City
Disposal Systems, 465 U.S. at 835. The concept of “mu-
tual aid or protection” focuses on the goal of concerted
activity; chiefly, whether the employee or employees
involved are seeking to “improve terms and conditions of
employment or otherwise improve their lot as employ-
ees.” Eastex, Inc. v. NLRB, 437 U.S. 556, 565 (1978).
Under Section 7, both the concertedness element and
the “mutual aid or protection” element are analyzed un-
der an objective standard. An employee’s subjective
motive for taking action is not relevant to whether that
action was concerted. “Employees may act in a concert-
ed fashion for a variety of reasons—some altruistic,
some selfish—but the standard under the Act is an objec-
tive one.” Circle K Corp., 305 NLRB 932, 933 (1991),
enfd. mem. 989 F.2d 498 (6th Cir. 1993). Nor is motive
relevant to whether activity is for “mutual aid or protec-
tion.” Rather, the analysis focuses on whether there is a
link between the activity and matters concerning the
workplace or employees’ interests as employees. As one
court has explained:

The motive of the actor in a labor dispute must be dis-
tinguished from the purpose for his activity. The mo-
tives of the participants are irrelevant in terms of de-
termining the scope of Section 7 protections; what is
crucial is that the purpose of the conduct relate to col-
lective bargaining, working conditions and hours, or
other matters of “mutual aid or protection” of employ-
ees.

Dreis & Krump Mfg. Co. v. NLRB, 544 F.2d 320, 328 fn. 10
(7th Cir. 1976).
Applying those principles, we disagree with the
judge’s findings that Elias’ solicitation of her coworkers’
assistance was neither concerted nor for the purpose of
mutual aid or protection.
1. Elias was engaged in concerted activity
In Meyers I, the Board defined concerted activity as
that which is “engaged in with or on the authority of oth-
er employees, and not solely by and on behalf of the em-
ployee himself.” Meyers I, 268 NLRB at 497. In Meyers
II, the Board clarified that the Meyers I definition of con-
certed activity includes cases “where individual employ-
ees seek to initiate or to induce or to prepare for group
action, as well as individual employees bringing truly
group complaints to the attention of management.” Mey-
ers II, 281 NLRB at 887. The requirement that, to be
concerted, activity must be engaged in with the object of
initiating or inducing group action does not disqualify
merely preliminary discussion from protection under
Section 7. In this regard, “inasmuch as almost any con-
certed activity for mutual aid or protection has to start
with some kind of communication between individuals, it
would come very near to nullifying the rights of organi-
zation and collective bargaining guaranteed by Section 7
of the Act if such communications are denied protection
because of lack of fruition.” Mushroom Transportation
Co. v. NLRB, 330 F.2d 683, 685 (3d Cir. 1964). In addi-
tion, it is well established that “the activity of a single
employee in enlisting the support of his fellow employ-
ees for their mutual aid and protection is as much ‘con-
certed activity’ as is ordinary group activity.” Whittaker
Corp., 289 NLRB 933, 933 (1988), quoting Owens-
Corning Fiberglas Corp. v. NLRB, 407 F.2d 1357, 1365
(4th Cir. 1969).
Here, Elias sought her coworkers’ assistance in raising
a sexual harassment complaint to management, by solic-
iting three of them to sign the piece of paper on which
she had copied the altered whiteboard message in order
to “prove” the harassment to which she had been sub-
jected. Although she did not intend to pursue a joint
complaint, her testimony establishes that she wanted her
coworkers to be witnesses to the incident, which she
would then report to the Respondent. Two of those
coworkers testified that they were aware of her intent to
memorialize the incident for the purpose of reporting it
to management. Even without more, under Meyers II
and its progeny, Elias’ conduct in approaching her
coworkers to seek their support of her efforts regarding
this workplace concern would constitute concerted ac-
tivity. Elias did not have to engage in further concerted
activity to ensure that her initial call for group action
retained its concerted character. See Circle K Corp., 305
NLRB at 933; and Whittaker Corp., 289 NLRB at 934.
The Board has previously found similar action to support
a finding of concerted activity. See Holling Press, 343
154 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
NLRB at 302 (employee appealing to her coworkers to
support her sexual harassment claim was engaged in
concerted activity), citing Mushroom Transportation v.
NLRB, above, 330 F.2d 683.9
In concluding that Elias was not engaged in concerted
activity, Member Miscimarra and the judge maintain that
Elias was raising a personal complaint not shared by oth-
ers and that her coworkers signed the statement only to
stop her “annoying” conduct.10 But under Board prece-
dent, concertedness is not dependent on a shared objec-
tive or on the agreement of one’s coworkers with what is
proposed. See, e.g., El Gran Combo, 284 NLRB 1115,
1117 (1987), enfd. 853 F.2d 996 (1st Cir. 1988); and
Meyers II, 281 NLRB at 887. The concerted nature of
Elias’ request would not be diminished even if Elias’
coworkers did not agree with her sexual harassment
complaint, or, as Member Miscimarra argues, did not
want to sign the document. The Board has also recog-
nized that activity such as Elias’ solicitation in this case
may be protected even if the solicited employee is un-
comfortable with the request. See Frazier Industrial Co.,
328 NLRB 717, 719 (1999), enfd. 213 F.3d 750 (D.C.
Cir. 2000). It is also well established that an employee
may act partly from selfish motivations and still be en-
gaged in concerted activity, even if she is the only im-
mediate beneficiary of the solicitation.11 Thus, Elias’
initial request, on its own, establishes concerted activity,
regardless of whether her coworkers signed or refused to
9 To this extent, we agree with Holling Press, despite our rejection
below of other aspects of that decision. Abramson, LLC, 345 NLRB
171 (2005), meanwhile, is distinguishable. In that case, the Board
addressed whether an employee pursuing a Title VII claim was engaged
in concerted activity. In concluding that he was not, the Board found
that there was no evidence that the employee discussed his wage con-
cerns underlying the Title VII claim with other employees or that he
sought his coworkers’ support in remedying the alleged discrimination.
Id. at 173–174. By contrast, Elias discussed the whiteboard alteration
with three coworkers, informed them of her intention to raise a com-
plaint to management, and solicited their assistance in doing so.
10 Nor does the record establish that Elias was raising a wholly per-
sonal complaint. Employee Victoria Giro credibly testified that she
would have been concerned had she been the victim of Hamner’s mis-
conduct, that she agreed that management should have been notified in
some way so that disciplinary action could be taken, and that she her-
self raised the whiteboard alteration to Churley and asked him to “take
care of it.”
11 See Circle K Corp., 305 NLRB at 933; El Gran Combo, 284
NLRB at 1117; and Dreis & Krump Mfg. Co., 221 NLRB 309, 314
(1975), enfd. 544 F.2d 320, 328 (7th Cir. 1976). Further, the Board has
held that “[w]here an employee’s objectives in taking certain action
may be mixed, and one supports a finding of concertedness, [the Board]
may not ignore it in favor of one that does not.” Circle K Corp., 305
NLRB at 934 fn. 9.
sign the document and notwithstanding their irritation
with the manner of her request for their assistance.12
Member Miscimarra further contends that our decision
today will result in unprecedented Section 7 protection
for an employee soliciting assistance from his or her
coworkers in raising a complaint to management even if
the solicited employees are unwilling to help or file their
own complaint against the employee seeking assistance,
they do not have a shared interest in the matter raised by
the employee, and the complaint raised by the soliciting
employee lacks merit. However, what our colleague
deems unprecedented protection is, in fact, consistent
with decades of Board precedent. As noted, solicited
employees do not have to agree with the soliciting em-
ployee or join that employee’s cause in order for the ac-
tivity to be concerted. See Mushroom Transportation,
330 F.2d at 685; Circle K Corp., 305 NLRB at 933;
Whitaker Corp., 289 NLRB at 934; and El Gran Combo,
284 NLRB at 1117. Nor do the solicited employees have
to share an interest in the matter raised by the soliciting
employee for the activity to be concerted. See El Gran
Combo, 284 NLRB at 1117; and Hintze Contracting Co.,
236 NLRB 45, 48 (1978), enfd. mem. 1979 WL 32447
(9th Cir. 1979). Further, the protected, concerted nature
of an employee’s complaint to management is not de-
pendent on the merit of such a complaint. See Spinoza,
Inc., 199 NLRB 525, 525 (1972), enfd. 478 F.2d 1401
(5th Cir. 1973). It is thus clear that, in finding Elias’
conduct to be concerted, we are applying established
precedent. Our colleague’s criticisms, therefore, repre-
sent a dispute with existing Board jurisprudence.
2. Elias’ concerted activity was for the purpose of
mutual aid and protection
We turn now to the question whether Elias’ concerted
activity was for the purpose of mutual aid or protection.
Our finding that it was flows from the Supreme Court’s
endorsement, in Eastex, of the view that Congress de-
signed Section 7 “to protect concerted activities for the
somewhat broader purpose of ‘mutual aid or protection’
as well as for the narrower purposes of ‘self-
organization’ and ‘collective bargaining.’” 437 U.S. at
565 (emphasis added). Thus, the “mutual aid or protec-
tion” clause encompasses “much legitimate activity [by
employees] that could improve their lot as employees.”
Id. at 567. The Court concluded that it was appropriate
for the Board to draw the precise boundaries of that
12 In finding that Elias did not act concertedly, the judge also found
that Elias’ conduct was disruptive to the store’s operations. In our
view, such evidence is more relevant to the question, not presented
here, whether an employee engaged in protected concerted activity
loses such protection by her conduct. See Atlantic Steel Co., 245
NLRB 814, 816 (1979).

FRESH & EASY NEIGHBORHOOD MARKET, INC. 155
clause “as it considers the wide variety of cases that
come before it.” Id. at 568.
In Meyers II, the Board “acknowledged that efforts to
invoke the protection of statutes benefitting employees
are efforts engaged in for the purpose of ‘mutual aid or
protection’” and reiterated the Supreme Court’s view that
“proof that an employee action inures to the benefit of
all” is “proof that the action comes within the ‘mutual aid
or protection’ clause of Section 7. 281 NLRB at 887. In
exercising the authority affirmed by the Eastex Court, the
Board has found that a broad range of employee activi-
ties regarding the terms and conditions of their employ-
ment falls within the scope of the “mutual aid or protec-
tion” clause. See, e.g., Dreis & Krump Mfg., 221 NLRB
at 314 (employees’ complaints over supervisory handling
of safety issues); and Tanner Motor Livery, 148 NLRB
1402, 1404 (1964), enfd. in relevant part 349 F.2d 1 (9th
Cir. 1965) (employees’ protest of racially discriminatory
hiring practices). See also Ellison Media Co., 344 NLRB
1112, 1113–1114, 1119 (2005) (conversation between
two employees was for mutual aid or protection where
one employee, who had previously complained about
offensive comments from a supervisor, urged a second
employee to report sexually suggestive comments from
same supervisor); and Owens Illinois, 290 NLRB 1193,
1204–1205 (1988), enfd. 872 F.2d 413 (3d Cir. 1989)
(employee’s action in contacting OSHA was protected).
As those cases indicate, Elias’ activity unquestionably
would be deemed for “mutual aid or protection” had she
attempted to join forces with another employee who
likewise had been the victim of alleged sexual harass-
ment by Hamner (or anyone else in the Respondent’s
workplace for that matter). Thus, the question presented
here is whether Elias’ solicitation of support from her
coworkers should be treated any differently simply be-
cause, on this occasion, Elias was confronting miscon-
duct that Hamner seemingly directed at her alone.13 Af-
ter a review of well-established precedent, we answer
that question in the negative.
In other contexts, the Board has found that an employ-
ee who asks for help from coworkers in addressing an
issue with management does, indeed, act for the purpose
of mutual aid or protection, even where the issue appears
to concern only the soliciting employee, the soliciting
employee would receive the most immediate benefit
13 Although it was directed at Elias, Hamner’s misconduct affected
other employees, too, as indicated by Giro’s testimony that she would
not have liked the altered wording if it had been aimed at her, that she
thought management should have been notified in some way so that
disciplinary action could be taken, and that she did ask Supervisor
Churley to take action. Moreover, the inappropriate and offensive
message was publicly posted on a whiteboard in the employee break-
room and not delivered privately to Elias.
from a favorable resolution of the issue, and the solicit-
ing employee does not make explicit the employees’ mu-
tuality of interests. In IBM Corp., 341 NLRB 1288,
1294, 1307 fn. 13 (2004), for example, the Board reaf-
firmed that the “mutual aid or protection” element is sat-
isfied where a single employee, facing a disciplinary
interview, requests assistance from a coworker.14 The
Supreme Court has held the same. See NLRB v. J.
Weingarten, Inc., 420 U.S. 251, 260 (1975) (single em-
ployee’s appeal for help from other employees implicates
“mutual aid or protection” even though only that em-
ployee may have had an immediate stake in the out-
come). Discipline, of course, is often highly individual-
ized—and the IBM Board certainly did not suggest that
concerted activity exists only where the employee asked
for help has engaged in the same or similar alleged con-
duct for which his coworker is being investigated. Like-
wise, in El Gran Combo, 284 NLRB at 1116–1117, the
Board found that an employee who, unlike his band ma-
tes, did not receive a share of the band’s album sales
nonetheless acted for the purpose of mutual aid or pro-
tection by soliciting fellow band members to support his
individual demand for a share of the group’s earnings.
Similarly, in Circle K Corp., 305 NLRB at 932–934, the
Board found that even where an employee may have
been motivated by personal concerns in soliciting a
coworker to sign a letter to management regarding terms
and conditions of employment of concern to all employ-
ees, the employee was nonetheless engaged in concerted
activity that satisfied the “mutual aid or protection” re-
quirement. In Rock Valley Trucking Co., 350 NLRB 69,
69, 83–84 (2007), the Board found that a truckdriver who
was assigned lower mileage than his coworkers was en-
gaged in protected conduct when he raised the disparities
with his coworkers and his manager and asked a cowork-
er to bring the issue to management. Although the driver
was the one who directly suffered from the unequal as-
signment, the Board agreed that his actions were aimed
not merely to secure a personal benefit, but also sought a
change from a flawed assignment process that could af-
fect all employees.
Although arising in widely varying circumstances, all
of those cases are grounded in the “solidarity” principle.
In enacting Section 7, Congress created a framework for
employees to “band together” in solidarity to address
their terms and conditions of employment with their em-
ployer. City Disposal Systems, 465 U.S. at 835.
“[M]ak[ing] common cause with a fellow workman over
his separate grievance” is a hallmark of such solidarity,
14 A Board majority held that in a nonunion setting, the employer
lawfully may refuse the request. Id. at 1294.

156 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
even if “only one of them . . . has any immediate stake in
the outcome.” NLRB v. Peter Cailler Kohler Swiss
Chocolates Co., 130 F.2d 503, 505 (2d Cir. 1942). By
soliciting assistance from coworkers to raise his issues to
management, an employee is requesting that his cowork-
ers exercise vigilance against the employer’s perceived
unjust practices. See El Gran Combo de Puerto Rico v.
NLRB, 853 F.2d 996, 1005 fn. 4 (1st Cir. 1988), quoting
J. Weingarten, 420 U.S. at 260–261. The solicited em-
ployees have an interest in helping the aggrieved indi-
vidual—even if the individual alone has an immediate
stake in the outcome—because “next time it could be one
of them that is the victim.” Id.15 “An injury to one is an
injury to all” is one of the oldest maxims in the American
labor lexicon.16
Applying that bedrock principle here would lead to the
conclusion that Elias, too, was acting for the purpose of
mutual aid or protection in soliciting her coworkers’ as-
sistance in complaining to management about an incident
of alleged sexual harassment.17 Nevertheless, we recog-
nize, as did the judge, that such a finding appears to be
foreclosed by the Board’s decision in Holling Press. In
that case, over a dissent by then-Member Liebman, the
Board found that an employee, although acting concert-
edly, did not act for the purpose of mutual aid or protec-
tion when she sought a colleague’s assistance in connec-
15 As Judge Learned Hand observed more fully in Peter Cailler
Kohler Swiss Chocolates:
When all the other workmen in a shop make common cause with a
fellow workman over his separate grievance, and go out on strike in
his support, they engage in a “concerted activity” for “mutual aid or
protection,” although the aggrieved workman is the only one of them
who has any immediate stake in the outcome. The rest know that by
their action each one of them assures himself, in case his turn ever
comes, of the support of the one whom they are all then helping; and
the solidarity so established is “mutual aid” in the most literal sense, as
nobody doubts. 130 F.2d at 505–506.
16 The phrase is traced at least as far back as the motto of the nine-
teenth-century Knights of Labor. See, e.g., Atleson, Values and As-
sumptions in American Labor Law 206 fn. 13 (1983).
17 As described, after seeing the altered whiteboard message, Elias
engaged her fellow employees in conversations about the message,
expressed her position that it constituted sexual harassment, stated that
she planned to file a complaint with management, and asked her
coworkers to sign the document she had prepared showing the altered
message. And, although Elias did not intend her subsequently added
statement alleging sexual harassment to be a joint statement, she testi-
fied that she proceeded with her complaint to management not only
because she was offended, but because she believed other female em-
ployees were offended as well and that filing a complaint might prevent
similar conduct in the future. Accordingly, it is clear that Elias’ activity
had a purpose relating to working conditions at the Respondent’s facili-
ty. See Dreis & Krump, 544 F.2d at 328 fn. 10. That being true, it
does not matter that Elias alone apparently was the intended target of
the whiteboard incident. Nor does it matter that she did not articulate
any mutuality of interest at the time. See Timekeeping Systems, Inc.,
323 NLRB 244, 248 (1997); and Whittaker Corp., 289 NLRB at 933.
tion with her sexual harassment complaint. In doing so,
the Board concluded:

[W]here one employee is the alleged victim, that lone
employee’s protest is not concerted. And, even if the
victim seeks support from another employee, and that
seeking of support is concerted activity, the “mutual aid
or protection” element may be missing. The bare pos-
sibility that the second employee may one day suffer
similar treatment, and may herself seek help, is far too
speculative a basis on which to rest a finding of mutual
aid or protection. [343 NLRB at 303–304.]

Thus, Holling Press effectively nullifies the solidarity prin-
ciple when it comes to claims of sexual harassment involv-
ing conduct directed at only one employee. In doing so,
Holling Press seemed to create a special exception for sexu-
al harassment claims.
The General Counsel asks us to reverse Holling Press
in that respect. Drawing on the Board’s decision in Mey-
ers II, above, he argues that when an individual employ-
ee effectively invokes statutory protections benefitting
employees—here, protections against sexual harassment
in the workplace—that employee’s efforts are for the
purpose of “mutual aid or protection” under established
Board and Supreme Court precedent, discussed above.18
We agree that Holling Press cannot be reconciled with
that precedent.
The fundamental flaws of Holling Press were persua-
sively articulated by the dissent in that case. First, the
Board erroneously discounted the solidarity principle as
it applies to sexual harassment in the workplace. Faced
with the IBM case described above, the Board accepted
that the solidarity principle may apply when a single em-
ployee is threatened with discipline because “discipline
and the threat thereof are commonplace occurrences,”
Holling Press, 343 NLRB at 304, and so other employ-
ees are likely to seek similar assistance in return in the
future. By contrast, the Board posited, claims of sexual
harassment “are not a common everyday occurrence,”
and so there is merely a “theoretical possibility” of future
reciprocation. Id. As pointed out by the dissent, the
premise that claims of sexual harassment are rare is
simply indefensible.19 More broadly, as the dissent ex-
18 In Meyers II, the Board accepted the principle “that efforts to in-
voke the protection of statutes benefitting employees are efforts en-
gaged in for the purpose of ‘mutual aid or protection,’” although such
efforts may not necessarily be concerted. 281 NLRB at 887.
19 In recent years, the EEOC, and state and local agencies in a work
sharing agreement with it, have received over 11,000 sexual harassment
allegations yearly. U.S. Equal Employment Opportunity Commission,
Sexual Harassment Charges EEOC & FEPAs Combined: FY 1997–FY
2011, available at

FRESH & EASY NEIGHBORHOOD MARKET, INC. 157
plained, neither the Act nor Board precedent distin-
guishes between different types of workplace grievances
for purposes of determining whether the “mutual aid or
protection” requirement is met. Thus, an employee who
receives assistance with a workplace sexual harassment-
related complaint today may assist a coworker with a
disciplinary matter tomorrow, or any other matter involv-
ing other terms and conditions of employment.
Second, the Holling Press Board failed to deal ade-
quately with applicable Board precedent. It is settled that
the “Board is not at liberty to ignore its own prior deci-
sions, but must instead provide a reasoned justification
for departing from precedent.” Goya Foods of Florida,
356 NLRB 1461, 1463 (2011), quoting W & M Proper-
ties of Connecticut, Inc. v. NLRB, 514 F.3d 1341, 1346
(D.C. Cir. 2008). The Holling Press decision does not
meet that standard. As described, the Board’s rationale
for distinguishing IBM was baseless. But more general-
ly, Holling Press failed to come to grips with the lesson
of the cases embracing the solidarity principle: that the
“mutual aid or protection” element is satisfied by the
implicit promise of future reciprocation, when one em-
ployee answers another’s call for assistance, even if that
promise is rarely (or never) called upon.
The result is that Holling Press is an outlier, having
departed from established Board and court precedent
without providing a coherent reason for doing so. In-
deed, Holling Press effectively created an exception
from Section 7 for claims of sexual harassment in cir-
cumstances where those claims, had they instead con-
cerned discipline, safety, or many other matters similarly
affecting working conditions, would have enjoyed the
protection of the Act.20 We thus find that fidelity to
precedent and adherence to the principles of the Act will
be best served by overruling Holling Press to the extent
it is inconsistent with our decision today.21 We hold that
http://www.eeoc.gov/eeoc/statistics/enforcement/sexual_harassment.
cfm (last visited Aug. 23, 2013). Many others likely go unreported.
See, e.g., Westfall, The Forgotten Provision: How the Courts Have
Misapplied Title VII in Cases of Express Rejection of Sexual Advances,
81 U. Cin. L. Rev. 269, 280 (2012).
20 See Corbett, The Narrowing of the National Labor Relations Act:
Maintaining Workplace Decorum and Avoiding Liability, 27 Berkeley
J. Empl. & Lab. L. 23, 39–40 (2006) (observing that “[t]he Holling
Press majority struggled to distinguish IBM Corp. on the ground that
sexual harassment allegations lacked a mutual interest for all employ-
ees”); Brudney, Isolated and Politicized: The NLRB’s Uncertain Fu-
ture, 26 Comp. Lab. L. & Pol’y J 221, 226 (2005) (citing Holling Press
as reflecting a “shriveled understanding of when employees are en-
gaged in ‘protected activity’” under Sec. 7 of the Act).
21 In addition to bringing greater consistency to our precedent re-
garding the mutual aid or protection clause, overruling Holling Press
furthers the important federal policy of preventing sexual harassment in
the workplace. The Supreme Court has recognized that such harass-
ment is “every bit the arbitrary barrier to sexual equality at the work-
an employee seeking the assistance or support of his or
her coworkers in raising a sexual harassment complaint
is acting for the purpose of mutual aid or protection.
This decision applies equally to cases where, as here, an
employee seeks to raise that complaint directly to the
employer, or, as in Holling Press, to an outside entity.
Member Miscimarra charges that in so holding, we are
“eliminating the statute’s ‘mutual aid or protection’ lan-
guage” and broadening its reach to create Section 7 cov-
erage for “every individual employee—regarding every
individual complaint implicating any individual non-
NLRA right—as soon as the individual seeks the in-
volvement of anyone else who is a statutory employee.”
But the Board’s case law, as we have shown, has long
held that an employee who invokes the protection of a
statute benefitting employees is engaged in an activity for
mutual aid or protection (which may, or may not, be con-
certed, depending on the circumstances). Of course, we
do not find Elias’ activity protected simply because her
complaint implicated some statutory right. What matters,
rather, is that she approached her coworkers with a con-
cern implicating the terms and conditions of their em-
ployment, and sought their help in pursuing it.
Contrary to Member Miscimarra’s claims, our holding
today is squarely in line with established Board prece-
dent. Employees have protections both under the Act
and under other federal and state statutes governing the
workplace, which address terms and conditions of em-
ployment. That an employee’s activity in the workplace
may also implicate other statutes does not mean that it
has somehow lost the protection of the Act. Consistent
with Supreme Court and Board precedent, as discussed
above, employees are not required to choose between
engaging in Section 7 activity and pursuing their other
legal or administrative remedies.22 When Congress en-
place that racial harassment is to racial equality.” Meritor Savings
Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986). Thus, federal law recog-
nizes that prevention is the best way to eliminate sexual harassment and
encourages employers to do so by providing employees with, among
other things, effective means to report sexual harassment. See 29 CFR
§ 1604.11(f) (EEOC regulation); Faragher v. City of Boca Raton, 524
U.S. 775, 806 (1998). We do not agree with our dissenting colleague
that our decision will “predictably undermine” employee rights. Ra-
ther, we believe that fostering a supportive work culture with high
coworker solidarity where employees feel free to address sexual har-
assment with their coworkers, results in an increased likelihood of
reporting and has been linked to lower incidences of harassment in the
workplace overall. See Blackstone et al., Legal Consciousness and
Responses to Sexual Harassment, 43 Law & Society Rev. 631, 635,
646, 654 (2009).
22 Member Miscimarra’s concern that our holding creates “process
restrictions” that will detract from the legal protection afforded to em-
ployees under other statutes is unfounded. First, the purported prob-
lems identified by our colleague are no more than functions of the
rights employees already have under the Act. Further, as demonstrated

158 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
acted workplace legislation in the decades after the Act
was passed, it clearly intended to give employees more
rights and more remedies, not to eliminate existing ones.
Accordingly, we find that Elias’s solicitation of her
colleagues’ assistance in complaining to the Respondent
about the whiteboard incident was for the purpose of
mutual aid or protection.
B. The Respondent did not Violate Section 8(a)(1)
by Instructing Elias not to Obtain Additional
Statements from her Coworkers
Having found that Elias acted both concertedly and for
the purpose of mutual aid and protection, we turn to the
allegations that the Respondent violated Section 8(a)(1)
by its actions in connection with its investigation into
Elias’ conduct. The Acting General Counsel has except-
ed to the judge’s finding that the Respondent did not vio-
late Section 8(a)(1) when Manager Jackson instructed
Elias not to obtain additional statements from her
coworkers related to the sexual harassment complaint.
Under the particular facts of this case, we agree with the
judge that Jackson’s instruction to Elias did not violate
the Act.
There is no question that, as a general matter, employ-
ees have a Section 7 right to discuss with one another
ongoing employer investigations into alleged employee
misconduct, including allegations of sexual harassment.
23 Indeed, to prohibit such discussions, an employer
bears the burden of showing that it has a legitimate busi-
ness justification that outweighs employees’ Section 7
rights. See Hyundai America Shipping Agency, 357
NLRB 860, 874 (2011). In the particular circumstances
of this case, we find that the Respondent made that
showing.
It is settled that “an employer is responsible for acts of
sexual harassment in the workplace where the employer
. . . . knows or should have known of the conduct, unless
it can show that it took immediate and appropriate cor-
rective action.” 29 CFR § 1604.11(d) (EEOC regula-
tion). Consistent with this principle, the Board has rec-
ognized that employers have a legitimate business inter-
by our decision below on the specific violations alleged, our holding
will not restrict employers’ ability to carry out their business opera-
tions, to handle complaints, or to conduct investigations as necessary.
For similar reasons, we reject Member Johnson’s criticism, in his par-
tial dissent, that we somehow regard the Board as an “überagency” or
that we apply Sec. 7 to override all other statutory frameworks created
by Congress.
23 See, e.g., Ellison Media, 344 NLRB 1112, 1113–1114 (2005);
Phoenix Transit System, 337 NLRB 510, 510 (2002) (Sec. 7 protects
employees’ right to discuss sexual harassment complaints), enfd. mem.
63 Fed.Appx. 524 (D.C. Cir. 2003); All American Gourmet, 292 NLRB
1111, 1130 (1989) (rule precluding employee from discussing sexual
harassment complaint with coworkers violated Sec. 8(a)(1)).
est in investigating facially valid complaints of employee
misconduct, including complaints of harassment. See
Consolidated Diesel Co., 332 NLRB 1019, 1020 (2000),
enfd. 263 F.3d 345 (4th Cir. 2001). The interest in a full,
fair, and accurate resolution of sexual harassment com-
plaints, along with prompt corrective action, is not exclu-
sively the employer’s. Employees also have an interest
in raising sexual harassment complaints to management
and having an effective system in place for addressing
such complaints.
Here, as part of her investigation into Elias’ sexual
harassment complaint, Jackson instructed Elias not to
obtain additional statements from her coworkers in con-
nection with that complaint. Jackson’s instruction to
Elias was narrowly tailored to address the Respondent’s
need to conduct an impartial and thorough investigation.
Elias was specifically told that, in relation to the investi-
gation, she should let Jackson obtain any additional
statements. Jackson did not prohibit Elias from discuss-
ing the pending investigation with her coworkers, asking
them to be witnesses for her, bringing subsequent com-
plaints, or obtaining statements from coworkers in future
complaints.24 Further, as Elias had made additions to the
statement after her coworkers had signed it and her
coworkers had expressed concern to Jackson over these
alterations, Jackson’s instruction would reasonably be
viewed as seeking to safeguard the integrity of the inves-
tigation, not restrict Elias in the exercise of her Section 7
rights. Thus, although instructions limiting employees
from discussing or seeking assistance with sexual har-
assment complaints and investigations may in other con-
texts violate the Act, we find on these facts that Jack-
son’s narrowly tailored instruction to Elias did not do so.
We therefore agree with the judge that the Respondent
did not violate Section 8(a)(1) by instructing Elias to
refrain from obtaining additional witness statements in
connection with the sexual harassment complaint.
C. The Respondent did not Violate Section 8(a)(1)
by Questioning Elias about the Whiteboard
Incident and her Request to Her Coworkers
The General Counsel also excepts to the judge’s find-
ing, made without explanation, that the Respondent did
not violate Section 8(a)(1) by virtue of Jackson’s ques-
tioning of Elias during their August 31 telephone call as
to why Elias felt the need to obtain her coworkers’ signa-
24 We thus view Jackson’s instruction as distinguishable from cases
involving an employer’s blanket prohibition on discussing ongoing
investigations of employee misconduct. See, e.g., SKD Jonesville
Division L.P., 340 NLRB 101, 103 (2003); Phoenix Transit System,
337 NLRB at 510; Keller Ford, 336 NLRB 722, 722 (2001), enfd.
mem. 69 Fed.Appx. 672 (6th Cir. 2003); and K Mart Corp., 297 NLRB
80, 80 fn. 2 (1989).

FRESH & EASY NEIGHBORHOOD MARKET, INC. 159
tures on the document showing the reproduced white-
board message. The Act generally prohibits employers
from questioning employees about their protected con-
certed activity, including why they chose to engage in
that activity.25 At the same time, the Board has recog-
nized that, as part of a full and fair investigation, it may
be appropriate for the employer to question employees
about facially valid claims of harassment and threats,
even if that conduct took place during the employees’
exercise of Section 7 rights.26 As with the instruction
preventing Elias from obtaining additional statements,
we find on the particular facts of this case that the Re-
spondent’s questioning of Elias was not unlawful.
The record establishes that the Respondent’s question-
ing of Elias was focused on and narrowly tailored to ena-
bling the Respondent to conduct a legitimate investiga-
tion into Elias’ complaint, as well as her coworkers’
complaints against her. As described, Elias’ coworkers
complained to management about Elias’ own conduct in
seeking her coworkers’ assistance in raising a sexual
harassment complaint to management. These matters
involved the same operative facts, timeline, actions, and
participants. It was therefore reasonable for Jackson to
investigate them together and to ask the questions she
legitimately believed important before reaching a conclu-
sion. Moreover, although Jackson’s question concerned
why Elias felt she had to obtain her coworkers’ signa-
tures, there is no evidence that Jackson was attempting to
delve into Elias’ motives or sentiments beyond the nar-
row facts surrounding the complaints at issue.27 Instead,
25 See, e.g., Belle of Sioux City, L.P., 333 NLRB 98, 105 (2001)
(emphasizing that, just as an employer may not question employees
about union activity, it may not question unrepresented employees
about their concerted efforts to change or mitigate terms and conditions
of employment).
26 For example, in Bridgestone Firestone South Carolina, 350 NLRB
526, 528–529 (2007), the Board found that the employer lawfully ques-
tioned a union supporter about alleged vulgar language and threatening
behavior when making of prounion remarks. Specifically, the Board
found:
The Respondent had a legitimate basis for investigating [the employ-
ee’s] misconduct, and its investigation was entirely consistent with its
policy. . .. Furthermore, the Respondent made reasonable efforts to
circumscribe its questioning to avoid unnecessarily prying into [the
employee’s] union views, and the limitations on its inquiry were clear-
ly communicated to [him].
To be sure, the Board has found that legitimate managerial concerns
regarding the prevention of harassment do not justify policies discour-
aging Sec. 7 activity “by subjecting employees to investigation and
possible discipline on the basis of the subjective reactions of others to
their protected activity.” Consolidated Diesel Co., 332 NLRB at 1020.
However, this does not preclude a legitimate investigation simply be-
cause some aspect of the conduct of one of the parties is protected
under Sec. 7.
27 In Bridgestone Firestone South Carolina, 350 NLRB at 528–529,
an employee became loud, angry, and used obscenities during a conver-
a reasonable employee viewing Jackson’s actions in con-
text would recognize that she was legitimately trying to
gain a full picture of the events as part of her investiga-
tion. Finally, in closing the investigation, Jackson as-
sured Elias that the Respondent was committed to pro-
tecting her against retaliation of any kind and told her to
report any future incidents of harassment or retaliation.
Such assurances are relevant to a determination of
whether an employer’s questioning of an employee about
her collective actions is lawful. See generally Bourne
Co. v. NLRB, 332 F.2d 47, 48 (2d Cir. 1964) (setting
forth relevant factors for determining if questioning is
coercive).
Based on the foregoing, we find that the Respondent’s
questioning of Elias did not, under the circumstances
presented here, violate Section 8(a)(1). We therefore
adopt the judge’s recommendation to dismiss the com-
plaint allegation.
AMENDED REMEDY
The judge found that the Respondent violated Section
8(a)(1) of the Act by maintaining in its employee hand-
book, New Hire CD, and on its intranet portal confiden-
tiality provisions prohibiting the discussion of wages,
hours, compensation, or working conditions of other em-
ployees. No party has excepted to this finding. The
standard affirmative remedy for maintenance of unlawful
work rules is immediate rescission of the offending rules;
this remedy ensures that employees may engage in pro-
tected activity without fear of being subjected to the un-
lawful rule. Guardsmark, LLC, 344 NLRB 809, 812
(2005), enfd. in relevant part 475 F.3d 369 (D.C. Cir.
2007). Pursuant to Guardsmark, the Respondent may
comply with the Order by rescinding the unlawful provi-
sions and republishing its employee handbook without
them. We recognize, however, that republishing the
handbook could be costly. Accordingly, the Respondent
may supply the employees either with handbook inserts
stating that the unlawful rules have been rescinded, or
with new and lawfully worded rules on adhesive backing
that will cover the unlawfully broad rules, until it repub-
sation with his coworkers about the union. In response to a complaint
from one of the coworkers about the employee’s conduct and consistent
with its policy against “profane, threatening or indecent language[,]”
the employer conducted an investigation into the employee’s alleged
misconduct, including questioning the employee about his comments.
The Board found that the employer’s questioning did not violate Sec.
8(a)(1) because it narrowly asked whether the employee made the
profane statements attributed to him by his coworkers and expressly
emphasized that the substance of the potentially protected discussion in
which the profanity was used was not at issue. The Board also found
that the employer appropriately circumscribed its questioning to avoid
prying into the employee’s union views and clearly communicated the
limitations on its inquiries.

160 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
lishes the handbook either without the unlawful provi-
sions or with lawfully-worded rules in their stead. Any
copies of the handbook that are printed with the unlawful
rules must include the inserts before being distributed to
employees. See Guardsmark, LLC, 344 NLRB at 812 fn.
8.
Further, the unlawful provisions have been or are in
effect at the Respondent’s facilities companywide.
“[W]e have consistently held that, where an employer’s
overbroad rule is maintained as a companywide policy,
we will generally order the employer to post an appropri-
ate notice at all of its facilities where the unlawful policy
has been or is in effect.” MasTec Advanced Technolo-
gies, 357 NLRB 103, 109 (2011) (quoting Guardsmark,
LLC, 344 NLRB at 812). As the D.C. Circuit observed,
“only a company-wide remedy extending as far as the
company-wide violation can remedy the damage.”
Guardsmark, LLC. v. NLRB, 475 F.3d 369, 381 (D.C.
Cir. 2007).
The judge further found that the Respondent violated
Section 8(a)(1) of the Act by failing to notify employees
of changes in its solicitation and distribution policy (also
in place nationwide) made in September 2009 and Janu-
ary 2011. The record reflects, however, that the Re-
spondent’s failure has been proven only with respect to
the Phoenix, Arizona facility involved in this proceed-
ing.28 Therefore, our remedy with respect to that viola-
tion is limited to the Phoenix facility.
We therefore amend the judge’s recommended remedy
and modify his recommended Order accordingly, and
shall substitute a new notice to conform to the Order as
modified.
ORDER
The Respondent, Fresh & Easy Neighborhood Market,
Inc., Phoenix, Arizona, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Maintaining provisions in the summary and com-
plete versions of “Confidential Information Version 1-
11,” provided to employees in the employee handbook,
New Hire CD, and on the intranet portal, prohibiting the
discussion of wages, hours, compensation, or working
conditions of other employees.
(b) Failing to notify employees at its Phoenix, Arizona
facility about the September 2009 and January 2011
changes to its solicitation and distribution policy.
28 The judge appears to have implicitly made this finding, stating that
“although Jackson testified that this new rule was to be read to the
employees at team huddles, this, apparently, was not done, at least at
the facility involved herein.” To the extent that the finding was not
made explicit, we do so here.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Rescind, nationwide, the portion of the confidenti-
ality rules described in paragraph 1(a) above.
(b) Furnish all current employees nationwide with in-
serts for their current employee handbooks that (1) ad-
vise that the unlawful confidentiality rules listed in para-
graph 1(a) above have been rescinded, or (2) provide
lawfully-worded rules on adhesive backing that will cov-
er the unlawful rules; or publish and distribute to all cur-
rent employees nationwide revised employee handbooks
that (1) do not contain the unlawful rules, or (2) provide
lawfully-worded rules. To the extent that these rules,
and any characterizations or summaries of the same, are
also found on the Respondent’s intranet portal or on its
New Hire CDs, revise that content so that it (1) does not
contain the unlawful rules, or (2) provide lawfully-
worded rules.
(c) Notify all employees at its Phoenix, Arizona facili-
ty that the solicitation and distribution policy described
in 1(b) above was changed in September 2009 and Janu-
ary 2011.
(d) Within 14 days after service by the Region, post at
its Phoenix, Arizona facility copies of the attached notice
marked “Appendix A” and within that same time period
post at all its other facilities, nationwide, copies of the
attached notice marked “Appendix B.”29 Copies of the
notices, on forms provided by the Regional Director for
Region 28, after being signed by the Respondent’s au-
thorized representative, shall be posted by the Respond-
ent and maintained for 60 consecutive days in conspicu-
ous places including all places where notices to employ-
ees are customarily posted. In addition to physical post-
ing of paper notices, notices shall be distributed electron-
ically, such as by email, posting on an intranet or internet
site, and/or other electronic means, if the Respondent
customarily communicates with its employees by such
means. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during
the pendency of these proceedings, the Respondent has
gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of Appendix A to all
29 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notices reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”

FRESH & EASY NEIGHBORHOOD MARKET, INC. 161
current employees and former employees employed by
the Respondent at that facility any time since March 13,
2011. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or
closed any facilities other than the one involved in these
proceedings, the Respondent shall duplicate and mail, at
its own expense, a copy of Appendix B to all current
employees and former employees employed by the Re-
spondent at such facilities any time since March 13,
2011.
(e) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has take to com-
ply.
3. IT IS FURTHER ORDERED that the complaint is dis-
missed insofar as it alleges violations of the Act not spe-
cifically found.

MEMBER MISCIMARRA, concurring in part and dissenting in
part.
In this case, the Board unanimously finds that the Re-
spondent acted lawfully when dealing with three em-
ployee complaints. The first employee, Margaret Elias,
complained about an offensive defaced whiteboard mes-
sage that she regarded (with ample justification) as po-
tential sex harassment. The second employee, Krista
Yates, complained that she was “bullied” by the first
employee, Elias, who insisted repeatedly that Yates sign
a piece of paper that reproduced what appeared on the
whiteboard.1 A third employee, Gary Hamner, com-
plained that Elias had said “fuck you” to him. The Re-
spondent conducted an investigation; it concluded that
Hamner defaced the whiteboard message, which caused
him to be disciplined; Hamner’s complaint against Elias
was found to be without merit; Elias was advised that the
whiteboard message had been inappropriate; and no ad-
verse action was taken against her.
The General Counsel pursued a two-part claim against
the Respondent, alleging (1) that Elias engaged in “pro-
tected” Section 7 activity2 by insisting that others sign
the piece of paper, and (2) that the Respondent’s investi-
gation violated Section 8(a)(1),3 which makes it unlawful
to “interfere with, restrain, or coerce” employees in the
exercise of protected activity. Specifically, the General
Counsel alleged, first, that an investigating supervisor
unlawfully asked Elias “why she felt” she needed the
paper signed by others, and second, the supervisor un-
1 Elias also had the written statement signed by a supervisor, Mi-
chael Anderson, and a co-employee, Victoria Giro.
2 National Labor Relations Act (“NLRA” or “Act”) Sec. 7, 29
U.S.C. § 157.
3 NLRA Sec. 8(a)(1), 29 U.S.C. § 158(a)(1).
lawfully asked Elias “not to obtain any further state-
ments” so that the supervisor “could conduct the investi-
gation . . . [and] complete it.”4
I respectfully dissent from the majority’s conclusion
that this case involves “protected concerted activity” by
Elias. In my view, as noted more fully below, (a) the
judge properly concluded that Elias failed to engage in
“concerted activity” when she insisted that co-employees
sign a statement that merely documented what appeared
on a whiteboard; and this conclusion is consistent with
the Board decisions in Meyers Industries5 and Section 7
of the Act; (b) the majority decision in Holling Press6—
which my colleagues overrule—correctly interpreted
Section 7’s additional threshold requirement that protect-
ed conduct be undertaken for the “purpose” of “mutual
aid or protection”; the judge correctly found that the
conduct of Elias was not undertaken for such a purpose;
and Holling Press utilized an analysis that was more re-
fined than my colleagues describe; and (c) my col-
leagues’ expansive reading of the Act’s protection, even
though well-intended, will produce adverse consequenc-
es in circumstances like those presented here, thereby
undermining the interests of employees in regard to sex
harassment complaints and other non-NLRA protection
that is available to employees.
My colleagues accurately describe most of the relevant
facts. As noted above, employee Elias wrote a message
on a whiteboard that was defaced in an offensive manner
(the word “TIPS” was changed to “TITS,” and “a peanut
or a worm was drawn” that appeared to be urinating). In
response, Elias reproduced the “words from the white-
board” on a sheet of paper, and Elias repeatedly insisted
that three individuals—a supervisor (Anderson)7 and two
4 There were no exceptions to the judge’s findings that the Respond-
ent violated Sec. 8(a)(1) by maintaining an overbroad and discriminato-
ry confidentiality rule in its employee handbook, on its companywide
intranet portal, and on its New Hire CDs, and by failing to notify em-
ployees at its Phoenix, Arizona facility of changes to its solicitation and
distribution rule. Accordingly, those findings are not before the Board
for review.
5 Meyers Industries, 268 NLRB 493 (1984) (Meyers I), remanded
sub nom. Prill v. NLRB, 755 F.2d 941 (D.C. Cir. 1985), cert. denied
474 U.S. 948 (1985), on remand Meyers Industries, 281 NLRB 882
(1986) (Meyers II), affd. sub nom. Prill v. NLRB, 835 F.2d 1481 (D.C.
Cir. 1987), cert. denied 487 U.S. 1205 (1988).
6 343 NLRB 301 (2004).
7 Anderson was a statutory supervisor and agent of the Respondent.
Elias’ insistence that Anderson sign the paper does not necessarily
defeat the possibility that Elias engaged in protected concerted activity
when demanding that co-employees Yates and Giro sign the document.
However, the record reveals that she treated Anderson, Yates and Giro
in virtually the same manner, which reinforces the judge’s conclusion
that Elias’ conduct—her insistence that Anderson, Yates and Giro sign
the paper—was not undertaken for the “purpose” of “mutual aid or
protection” within the meaning of Sec. 7.

162 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
co-employees (Yates and Giro)—sign the paper. Other
important facts were credited by the judge and are undis-
turbed by the Board:

• The paper was prepared by Elias because she
“could not take a picture of the defaced
whiteboard.” Thus, the paper—when signed
by others—merely contained the “words from
the whiteboard.”8
• The paper “was neither a petition nor a joint
complaint of everybody signing.” Elias testi-
fied that she prepared the paper because she
intended to “report” the incident, but she
“didn’t really have any expectations beyond
reporting it.”
• Elias was hostile and confrontational when
she insisted that her paper be signed by su-
pervisor Anderson and co-employees Yates
and Giro. The judge credited their testimony
that Elias was “very loud and angry” and
“aggravated,” and that Elias’ requests to Giro
were “very heated and uncomfortable.” In-
deed, as noted previously, co-employee Yates
submitted her own complaint against Elias the
next day “for ‘bullying’ [Yates] into signing
the statement.”
• Nobody signed the paper based on planned
future action. Supervisor Anderson signed
the statement “only to calm . . . down” Elias
and avoid “escalating” the situation. Giro re-
ported that she “felt intimidated into signing”
and signed only because the “very heated”
discussion “was taking place in front of cus-
tomers and she wanted to end it.” Yates saw
Elias “yelling and backing Anderson in to a
corner” about signing the statement, and
Yates was “freaked out” but signed “because
she felt that was the fastest way to end ‘the
escalating situation.’”
• As the judge found, “Respondent did not take
any action against Elias as a result of her ac-
tions,” and “at the conclusion of [Respond-
ent’s] investigation,” the co-employee
(Hamner) who defaced the whiteboard mes-
sage “was disciplined for his alteration of the
whiteboard, and was warned about any future
retaliation” against Elias.
8 The judge concluded, based on uniform testimony by multiple wit-
nesses, that after the paper was signed, Elias added a statement reading,
“Someone changed the Board to ‘TITS’ instead of TIPS and put a
worm pissing on my name. I take this as sexual harassment. This has
been on the Board since I got here at 2PM.”
I. SECTION 7’S REQUIREMENTS—GENERALLY
The threshold issue in this case—whether Elias en-
gaged in “protected concerted activity”—is a shorthand
reference to conduct protected under Section 7 of the
Act, but the Board’s analysis must be based on the lan-
guage enacted by Congress.9 In relevant part, Section 7
of the Act states:

Employees shall have the right to self-organization, to
form, join, or assist labor organizations, to bargain
collectively through representatives of their own choos-
ing, and to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or
protection.10

Section 7 is the cornerstone of the Act, and it unques-
tionably confers protection regarding a range of activi-
ties.11 However, the statutory language incorporates
“words of limitation.” Fibreboard Paper Products Corp.
v. NLRB, 379 U.S. 203, 220 (1964) (Stewart, J., concur-
ring). Section 7 enumerates three specific types of pro-
tection for employees: to engage in “self-organization,”
to “form, join, or assist labor organizations,” and to “bar-
gain collectively through representatives.”
Section 7 then enumerates a fourth category, encom-
passing “other concerted activities for the purpose of
collective bargaining or other mutual aid or protection.”
Statutory language must be construed as a whole, and
particular words or phrases are to be understood in rela-
tion to associated words and phrases.12 The language in
Section 7 plainly reflects the Act’s focus on “collective”
actions, “self-organization” and representation, and these
terms shed some light on the meaning of “mutual aid or
protection.”13 As the Supreme Court observed in Eastex,
Inc. v. NLRB,14 Section 7 was designed “to protect con-
certed activities for the somewhat broader purpose of
‘mutual aid or protection’ as well as for the narrower
9 As the Supreme Court stated in Griffin v. Oceanic Contractors,
Inc., 458 U.S. 564, 571 (1982): “There is, of course, no more persua-
sive evidence of the purpose of a statute than the words by which the
legislature undertook to give expression to its wishes” (citations omit-
ted).
10 29 U.S.C. § 157 (emphasis added).
11 See, e.g., Charles J. Morris, NLRB Protection in the Nonunion
Workplace: A Glimpse at A General Theory of Section 7 Conduct, 137
U. Penn. L. Rev. 1673, 1682 (1989) (hereinafter “Morris”) (Sec. 7
embodies the “substantive content” of the Act’s unfair labor practice
provisions).
12 2A Norman J. Singer, Statutes and Statutory Construction (Suth-
erland Statutory Construction) Sec. 47.16 (5th ed. 1992).
13 See, e.g., Mohave Electric Cooperative, Inc. v. NLRB, 206 F.3d
1183, 1191–1192 (D.C. Cir. 2000) (“[T]he canon of ejusdem generis
. . . counsels against our reading [a] general phrase to include conduct
wholly unlike that specified in the immediately preceding list . . .”).
14 437 U.S. 556 (1978) (emphasis added).

FRESH & EASY NEIGHBORHOOD MARKET, INC. 163
purposes of ‘self-organization’ and ‘collective bargain-
ing.’”
The Act’s provisions should be liberally construed, but
we must still interpret the Act in a manner consistent
with its terms. Section 7 protects employee activities
only if they are “concerted,” and only if motivated by the
“purpose” specified in the statutory language—i.e., the
purpose of “collective bargaining or other mutual aid or
protection.” This follows from the statute’s plain lan-
guage15 in addition to its legislative history.16
II. APPLYING SECTION 7 IN THIS CASE
A. Elias did not Engage in “Concerted Activity”
Under Section 7 and Relevant Board and
Court Decisions
The Board has an eventful history regarding what con-
stitutes “concerted” activity for purposes of Section 7.
Early cases readily distinguished between protected con-
duct involving multiple employees acting in “concert”17
15 In reference to Sec. 7, Professor Charles Morris described the
“commonly accepted meaning” of the words “concerted” and “mutual”
as follows:
Concerted derives its meaning from concert and is generally synony-
mous with the phrase in concert. Those three terms all convey a clear
meaning. In reverse order, they mean “together; jointly;” “agreement
of two or more individuals in a design or plan; combined action; ac-
cord or harmony;” and “contrived or arranged by agreement; planned
or devised together; done or performed together or in cooperation.”
The meaning of mutual is equally explicit: “possessed, experienced,
performed, etc., by each of two or more with respect to the other; . . .
held in common, shared . . . Mutual indicates an exchange of a feeling,
obligation, etc., between two or more people, or an interchange of
some kind between persons. . . .”
Morris, supra fn. 11, at 1679–1680 (footnotes omitted; emphasis in origi-
nal).
16 Sec. 7 of the Act was modeled after Sec. 7(a) of the National In-
dustrial Recovery Act (NIRA), described by the Board as having “the
purpose” of giving employees “the opportunity to associate freely with
[their] fellow workers for the betterment of working conditions” and
creating “rights in organizations of workers.” Meyers I, 268 NLRB at
493, quoting 79 Cong.Rec. H2332 (daily ed. Feb. 20, 1935) (statement
of Rep. Boland), reprinted in 2 Leg. Hist. of the National Labor Rela-
tions Act of 1935, at 2431–2432 (1935). The statutory phrase “con-
certed activities” was previously used in Sec. 2 of the Norris-LaGuardia
Act, which declares that “it is necessary that [the individual unor-
ganized worker] shall be free from the interference, restraint or coer-
cion of employers . . . in self-organization or in other concerted activi-
ties for the purpose of collective bargaining or other mutual aid or
protection.” 29 U.S.C. § 102. The primary purpose of the Norris-
LaGuardia Act “was to curtail injunctions . . . against what everyone
would recognize as organized activity, notably picketing in order to
promote unionization or union demands.” Ontario Knife Co. v. NLRB,
637 F.2d 840, 843 (2d Cir. 1980). Based on this legislative history, the
Board in Meyers I observed that Congress understood the concept of
concerted activity “in terms of individuals united in pursuit of a com-
mon goal.” 268 NLRB at 493 (emphasis added).
17 See, e.g., Root-Carlin, Inc., 92 NLRB 1313, 1314 (1951) (em-
ployees conversing about the need for a union were found to be en-
gaged in concerted activity).
and unprotected activities by an individual without coor-
dination, planning or authorization involving others.18 In
Alleluia Cushion Co.,19 however, the Board expanded
Section 7 by finding that a solitary employee’s actions
regarding statutory Occupational Safety and Health Act
(OSHA) protection could be “concerted” based on the
Board’s own determination that other employees had an
interest in what the person was doing.20 The Alleluia
Cushion approach—criticized as a theory of “presumed”
or “constructive concerted action”21 and a “per se”
standard of concerted activity22—was rejected by several
courts of appeals.23 In Meyers I, the Board overruled
Alleluia Cushion based on the following analysis, which
is instructive in the instant case:

[T]he per se standard of concerted activity, by which
the Board determines what ought to be of group con-
cern and then artificially presumes that it is of group
concern, is at odds with the Act. The Board and courts
always considered, first, whether the activity is con-
certed, and only then, whether it is protected. This ap-
proach is mandated by the statute itself, which requires
that an activity be both “concerted” and “protected.” A
Board finding that a particular form of individual ac-
tivity warrants group support is not a sufficient basis
for labeling that activity “concerted” within the mean-
ing of Section 7.24

18 See, e.g., Traylor-Pamco, 154 NLRB 380, 388 (1965) (two em-
ployees who ate lunch together, and apart from other employees, were
not engaged in concerted activity absent evidence “that their associa-
tion in refusing to eat in the tunnel [with others] was anything but acci-
dental”); Continental Mfg. Corp., 155 NLRB 255, 257–258, 261–262
(1965) (no protected concerted activity where a single employee, acting
alone, prepared and signed a letter complaining about working condi-
tions, even though the employee undisputedly worked with a co-
employee to investigate issues referenced in the complaint, the issues
involved other co-employees as well, and the letter stated that “the
majority of the other employees” had the same “problem” but were
“afraid to speak up”).
19 221 NLRB 999 (1975).
20 In Alleluia Cushion, the employee reported safety violations to a
state OSHA office and accompanied an OSHA inspector on a plant
tour, with no other involvement by other employees. Finding no group
action, the administrative law judge dismissed the complaint, but the
Board reversed, holding that a lone employee’s invocation of a statuto-
ry right designed for the benefit of all employees will be “deemed”
concerted “in the absence of any evidence that fellow employees disa-
vow such representation.” 221 NLRB at 1000.
21 Krispy Kreme Doughnut Corp. v. NLRB, 635 F.2d 304, 309 (4th
Cir. 1980).
22 Meyers I, 268 NLRB at 495.
23 Krispy Kreme Doughnut Corp. v. NLRB, 635 F.2d at 304; Ontario
Knife, 637 F.2d at 840; Pelton Casteel, Inc. v. NLRB, 627 F.2d 23 (7th
Cir. 1980); NLRB v. Bighorn Beverage, 614 F.2d 1238 (9th Cir. 1980);
NLRB v. Dawson Cabinet Co., 566 F.2d 1079 (8th Cir. 1977).
24 268 NLRB at 496 (emphasis in original and added; footnote omit-
ted).

164 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
In Meyers I, the Board adopted a more restrictive interpreta-
tion of Section 7, and held that “to find an employee’s activ-
ity to be ‘concerted,’ we shall require that it be engaged in
with or on the authority of other employees, and not solely
by and on behalf of the employee himself.”25 Conversely,
the Board held that “individual employee concern, even if
openly manifested by several employees on an individual
basis, is not sufficient evidence to prove concert of ac-
tion.”26
In Meyers II,27 the Board reaffirmed this standard and
elaborated on the analysis that controlled whether a sin-
gle employee’s conduct constitutes “concerted” activities
engaged in for the “purpose of . . . mutual aid or protec-
tion.”28 Three main points emerged from the Meyers II
decision.
First, the Board held that a single employee, though
not a “designated spokesman” by other employees, could
engage in “concerted” activity if he or she “bring[s] truly
group complaints to the attention of management.”29
However, such activity could be “concerted,” according
to the Board, only “[w]hen the record evidence demon-
strates group activities, whether ‘specifically authorized’
in a formal agency sense, or otherwise.”30 The Board
stated this question was a “factual one based on the total-
ity of the record evidence,”31 and relevant considerations
included, for example: (a) whether other employees au-
thorized or instructed the individual to speak for them;32
(b) whether other employees “were aware of and sup-
ported” the individual’s presentation to management;33
and (c) whether the individual previously discussed a
“common . . . complaint” with other employees who, in
turn, “refrained from making [their] own . . . com-
plaint.”34
Second, the Board in Meyers II held that a single em-
ployee could engage in “concerted” activity by speaking
with a co-employee for the purpose of “seek[ing] to ini-
tiate or to induce or to prepare for group action.”35
25 Id. (emphasis added).
26 Id. at 498 (emphasis in original and added).
27 281 NLRB 882 (1986), affd. sub nom. Prill v. NLRB, 835 F.2d
1481 (D.C. Cir. 1987), cert. denied 487 U.S. 1205 (1988).
28 Id. at 885. The Board decision in Meyers II resulted from a re-
mand by the Court of Appeals for the D.C. Circuit, although the court
did not pass on the merits of the standard adopted by the Board. Prill v.
NLRB, 755 F.2d 941, 957 (D.C. Cir. 1985), cert. denied 474 U.S. 948
(1985).
29 Id. at 886–887 (emphasis added).
30 Id. (emphasis added).
31 Id.
32 Id. at 886, describing Mannington Mills, 272 NLRB 176 (1984).
33 Id., describing Mannington Mills, supra fn. 32, and Allied Erecting
Co., 270 NLRB 277 (1984).
34 Id., describing Walter Brucker & Co., 273 NLRB 1306 (1984).
35 Id. at 887 (emphasis added).
Here, the Board quoted with approval the Third Circuit
decision in Mushroom Transportation Co. v. NLRB,36
where the court stated:

It is not questioned that a conversation may constitute a
concerted activity, although it involves only a speaker
and a listener, but to qualify as such, it must appear at
the very least it was engaged in with the object of initi-
ating or inducing or preparing for group action or that
it had some relation to group action in the interest of
the employees.37

The Third Circuit in Mushroom Transportation indicated
that the Act’s protection was unwarranted “when it appears
from the conversations themselves that no group action of
any kind is intended, contemplated, or even referred to.”38
Thus, the court concluded:

Activity which consists of mere talk must, in order to be
protected, be talk looking toward group action. If its
only purpose is to advise an individual as to what he
could or should do without involving fellow workers or
union representation to protect or improve his own sta-
tus or working position, it is an individual, not a con-
certed, activity, and, if it looks forward to no action at
all, it is more than likely to be mere “griping.”39

Third, the Board in Meyers II rejected the notion that
Section 7 protection might be triggered by “a single em-
ployee’s invocation of a statute enacted for the protection
of employees generally.”40 The Board distinguished
cases involving the Section 7 protection afforded an in-
dividual employee who seeks to enforce rights under a
collective-bargaining agreement.41 Employees can en-
gage in concerted activity associated with “appeals to
legislators” and “administrative and judicial forums,”42
and the Board in Meyers II recognized that, like rights
arising under a labor contract, statutory rights could be
just as appropriate for “joint employee action.”43 How-
36 330 F.2d 683 (3d Cir 1964).
37 Id. at 685 (emphasis added), quoted in Meyers II, 281 NLRB at
887, and in Vought Corp., 273 NLRB 1290, 1294 (1984), enfd. 788
F.2d 1378 (8th Cir. 1986).
38 Id.
39 Id. (emphasis added).
40 281 NLRB at 887.
41 It is well established that Sec. 7 protects an individual’s effort to
enforce collective-bargaining agreement provisions, which, obviously,
resulted from contract negotiations. The individual’s activity is there-
fore considered an extension of the concerted action that produced the
agreement. NLRB v. City Disposal Systems, 465 U.S. 822, 831–832
(1984); Interboro Contractors, Inc., 157 NLRB 1295, 1298 (1966),
enfd. 388 F.2d 495 (2d Cir. 1967).
42 Eastex, Inc. v. NLRB, 437 U.S. 556, 565, 566 (1978).
43 281 NLRB at 888.

FRESH & EASY NEIGHBORHOOD MARKET, INC. 165
ever, the Board stated: “We merely find that invocation
of employee contract rights is a continuation of an ongo-
ing process of employee concerted activity, whereas em-
ployee invocation of statutory rights is not.”44 Of partic-
ular import in the instant case is the Board’s conclusion
in Meyers II regarding this issue:

[A]lthough it is our duty to construe the labor laws so
as to accommodate the purposes of other Federal laws
. . . , this is quite a different matter from taking it upon
ourselves to assist in the enforcement of other statutes.
The Board was not intended to be a forum in which to
rectify all the injustices of the workplace. In Meyers I,
the Board noted that although we may be outraged by a
respondent who may have imperiled public safety, we
are not empowered to correct all immorality or illegali-
ty arising under all Federal and state laws. . . .45

As a final matter, the Section 7 phrase, “concerted ac-
tivities,” contemplates more than the mere presence or
involvement of two employees. Thus, as noted above
(supra fn. 15), Professor Charles Morris has described
the “commonly accepted meaning” of the word “concert-
ed” as follows:

Concerted derives its meaning from concert and is
generally synonymous with the phrase in concert.
Those three terms all convey a clear meaning. In re-
verse order, they mean “together; jointly;” “agreement
of two or more individuals in a design or plan; com-
bined action; accord or harmony;” and “contrived or
arranged by agreement; planned or devised together;
done or performed together or in cooperation.”46

If one person is a witness to somebody else’s car crash,
and if they both have a shared interest in avoiding such
accidents, this does not mean they have engaged in “con-
certed” activity. Rather, our cases establish that “con-
certed” activity takes place, within the meaning of Sec-
tion 7, only if the conduct involves or contemplates a
joint endeavor to be “done or performed together or in
cooperation.”47 A conversation between two employees,
though it involves “a speaker and a listener,” constitutes
concerted activity only if “at the very least it was en-
gaged in with the object of initiating or inducing or pre-
paring for group action or that it had some relation to
44 Id. (emphasis added).
45 Id. (emphasis added), citing Meyers I, 268 NLRB at 499.
46 Morris, supra fn. 11, at 1679–1680 (footnotes omitted; emphasis
in original).
47 Id.
group action in the interest of the employees.”48 Thus,
activity involving two or more employees consisting of
“mere talk” must, in order to have Section 7 protection,
“be talk looking toward group action.”49
In the instant case, my colleagues—though acknowl-
edging Meyers II and its progeny as controlling law50—
reverse the judge’s finding that Elias, the employee,
failed to engage in “concerted” activity within the mean-
ing of Meyers II.51 Like the judge, however, I believe
the above principles warrant a conclusion that Elias was
not engaged in “concerted” activity when she engaged in
an angry confrontation (with a supervisor and two other
employees) about the paper she insisted that they sign.
As noted previously, the paper on which Elias sought
signatures merely contained the “words from the white-
board.” The paper “was neither a petition nor a joint
complaint of everybody signing,” nor can Elias’ actions
be reasonably regarded as “bringing truly group com-
plaints to the attention of management.”52 Rather than
engaging in conduct “with the object of initiating or in-
ducing or preparing for group action,”53 Elias testified
48 Mushroom Transportation, supra fn. 36, 330 F.2d at 685 (empha-
sis added), quoted in Meyers II, 281 NLRB at 887, and in Vought
Corp., 273 NLRB at 1294.
49 Id. (emphasis added).
50 Although Meyers II remains the governing standard, some recent
Board rulings seemingly revive the notion that an employee’s mere
discussion of certain subjects is protected on the basis that it is “inher-
ently” concerted, Hoodview Vending Co., 359 NLRB 355 (2012), or
might “spawn collective action,” Aroostook County Regional Ophthal-
mology Center, 317 NLRB 218, 220 (1995), enf. denied 81 F.3d 209
(D.C. Cir. 1996). The courts have not been receptive to the approach
taken by the Board in these cases. See, e.g., Aroostook County Region-
al Ophthalmology Center v. NLRB, 81 F.3d 209, 214 (D.C. Cir. 1996)
(“We neither understand nor endorse the Board’s ‘spawning’ theory,
which, on its face, appears limitless and nonsensical.”). See also
Trayco of South Carolina, Inc. v. NLRB, 927 F.2d 597 (4th Cir. 1991),
denying enf. 297 NLRB 630 (1990).
51 The majority supports its finding that Elias engaged in “concerted”
activity by citing Holling Press—which they overrule today—for the
proposition that an employee’s appeal to coworkers “to support her
sexual harassment claim” constituted concerted activity. As noted in
the text, numerous facts make it unreasonable to characterize Elias’
actions as seeking group “support” for her “complaint” to management.
Moreover, the instant case is materially different from Holling Press,
where an employee had a pending state agency sex harassment claim;
the employee joined by “union officials” met with the employer regard-
ing the claim; and the employee attempted to arrange for other employ-
ees to testify as witnesses in an upcoming agency hearing. Holling
Press, 343 NLRB at 301, 307–309. Thus, unlike the instant case, the
employee’s co-employee appeal in Holling Press clearly had the “ob-
ject” of “initiating or inducing or preparing for [future] group action”
(i.e., testimony by a co-employee in a future hearing). Mushroom
Transportation Co. v. NLRB, 330 F.2d at 685. By comparison, neither
Elias nor her co-employees in the instant case contemplated any future
action of any kind, nor did anyone contemplate any type of group con-
duct or coordination.
52 Meyers II, 281 NLRB at 886–887.
53 Mushroom Transportation, supra fn. 36, 330 F.2d at 685.

166 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
that—even in relation to her individual complaint—she
“didn’t really have any expectations beyond reporting it.”
The record is replete with indications that the two co-
employees, Yates and Giro, did not regard the paper as
having “some relation to group action.”54 Yates signed
the paper only to end an “escalating situation” that
caused her to be “freaked out,” and which prompted
Yates to submit her own complaint against Elias for
“bullying” Yates into signing the document. Giro like-
wise stated she “felt intimidated into signing” the paper,
and she did so only to end the “very heated” discussion
that “was taking place in front of customers.” These
facts render implausible any suggestion that Elias was
acting in “concert” with anyone else, and it is likewise
clear that co-employees Yates and Giro were not acting
in “concert” with Elias.55
Without question, neither Elias nor other employees
should have been subjected to an offensive, defaced
whiteboard message. But that begs the question of
whether Elias engaged in “concerted” activity when in-
sisting that her two co-employees sign a paper that had
an extremely limited purpose (i.e., to memorialize what
had appeared on the whiteboard), and that pertained only
to Elias’ individual complaint. As the Board stated in
Meyers II, our enforcement of the Act “is quite a differ-
ent matter from taking it upon ourselves to assist in the
enforcement of other statutes. The Board was not in-
tended to be a forum in which to rectify all the injustices
of the workplace.”56
54 Id.
55 I do not agree with the majority’s suggestion that my criticisms of
their analysis “represent a dispute with existing Board jurisprudence.”
Here, the majority cite a variety of cases that stand for a proposition
that I do not dispute: a finding of concertedness is not defeated merely
because solicited employees are uncomfortable with a solicitation, do
not share the solicitor’s cause, or choose not to join it. To be clear,
where an individual employee speaks to a coworker, and that speech
looks toward group action, the speaker’s activity is concerted regard-
less of how the solicitation is received. My central point is that Elias’
conduct—asking Yates and Giro to verify that she had correctly copied
what was on the whiteboard—did not look toward group action and
therefore was not concerted. My purpose in drawing attention to
Yates’s and Giro’s opposition is to underline how very remote the
conduct at issue here is from core Sec. 7 activity—i.e., action that is
undisputedly concerted because undertaken “jointly” or in “accord or
harmony” or “cooperation.” Morris, supra fn. 11, at 1679–1680; see
also Meyers II, 281 NLRB at 883 (“[I]t is protection for joint employee
action that lies at the heart of the Act.”). In analyzing an issue on the
border of concertedness, it is useful to remind ourselves how far from
the heartland we are.
56 Meyers II, 281 NLRB at 888 (citations omitted).
B. Holling Press Correctly Interprets Section 7’s
“Mutual Aid or Protection” Language, and Elias’ Ac-
tions Failed to Satisfy this Additional Requirement
For employee actions to be protected under Section 7,
they must not only be “concerted,” they must also be
undertaken for the “purpose” of “collective bargaining or
other mutual aid or protection.” I agree with my col-
leagues that employees can collectively pursue “mutual
aid or protection” in numerous ways. However, the in-
stant case does not involve such an endeavor. Moreover,
my colleagues embrace the broader proposition that
“when an individual employee effectively invokes statu-
tory protections benefitting employees—here, protec-
tions against sexual harassment in the workplace—that
employee’s efforts are for the purpose of ‘mutual aid or
protection.’”57
There are two problems with my colleagues’ sugges-
tion that such activities are inherently protected under the
Act. In Meyers II, the Board squarely held that invoking
“statutory protections” did not even necessarily establish
that the conduct involves “concerted” activity as defined
in Section 7. More importantly, my colleagues embrace
a standard that eliminates the statute’s “mutual aid or
protection” language.
By holding that any concerted activity regarding a sin-
gle person’s complaint inherently involves “mutual aid
and protection” if it implicates a non-NLRA statutory
right, my colleagues reinstate a “flip side” of Alleluia
Cushion that the Board properly rejected in Holling
Press.58 In Alleluia Cushion, the Board embraced a now-
discredited position that a single person’s conduct could
57 The Meyers II Board, in the context of explaining its rejection of
the Alleluia Cushion doctrine, remarked that “efforts to invoke the
protection of statutes benefiting employees are efforts engaged in for
the purpose of ‘mutual aid or protection.’” 281 NLRB at 887. Howev-
er, this statement appears in a decision that was wholly devoted to
articulating a proper understanding of “concerted activity.” It cannot
be fairly read as categorically holding that such efforts are invariably
for mutual aid or protection, without regard to the facts of a particular
case. Indeed, the Meyers II Board followed that statement with a brief
discussion of Eastex, Inc. v. NLRB, 437 U.S. 556 (1978), suggesting
that, in context, the Board had in mind employees’ “‘appeals to legisla-
tors to protect their interests as employees,’” 281 NLRB at 887 (quot-
ing Eastex, 437 U.S. at 566)—not an individual employee’s pursuit of a
sexual harassment complaint on behalf of her- or himself alone.
58 Holling Press, 343 NLRB at 303, citing Alleluia Cushion, 221
NLRB at 1000–1001. I join Member Johnson in finding that the major-
ity’s application of its “solidarity principle” is based on an unwarranted
extension of Judge Learned Hand’s definition of a sympathy strike in
NLRB v. Peter Cailler Kohler Swiss Chocolates Co., 130 F.2d 503,
505–506 (2d Cir. 1942), and in finding that it cannot survive scrutiny
because, as explained below, it presumes what must be proven, i.e., that
the conduct at issue was “for the purpose of . . . mutual aid or protec-
tion.”

FRESH & EASY NEIGHBORHOOD MARKET, INC. 167
be regarded as inherently “concerted.”59 In Holling
Press, the Board correctly concluded it was equally ob-
jectionable to “presume” that concerted conduct regard-
ing a single person’s complaint can inherently involve
“mutual aid and protection.”60
It bears emphasis that Section 7 states that concerted
activities are protected only if undertaken for the “pur-
pose” of “collective bargaining or other mutual aid or
protection.” The term “purpose” refers to intent. We
have nearly 80 years of precedent establishing that, in
cases that turn on a particular type of intent, motivation
must be proven.61 On its face, Section 7 contemplates a
“purpose” that must be shared in some way by the em-
ployees involved in the “mutual” aid or protection.62
The term “mutual” means “entertained, proffered, or
exerted by each with respect to the other of two or to
each of the others of a group.”63
The facts of the instant case do not reflect any evi-
dence that the interaction between Elias and other em-
ployees had the “purpose” (i.e., intent) of “mutual aid or
protection.” Although Elias insisted that co-employees
Yates and Giro sign the paper that reproduced the words
written in the defaced whiteboard message, the paper
“was neither a petition nor a joint complaint of every-
body signing.” Although Elias sought the signatures of
co-employees Yates and Giro, this pertained solely to
Elias’ individual pursuit of a complaint that she present-
59 For a discussion of Alleluia Cushion, which was overruled in
Meyers I, see the text accompanying fns. 19–26, supra.
60 343 NLRB at 303 (emphasis in original).
61 The most obvious examples are cases involving antiunion discrim-
ination alleged to violate Sec. 8(a)(3). In this context, we have decades
of case law indicating that alleged violations may not rest on the “argu-
able possibility” that unlawful intent existed, nor is it sufficient to rely
on “mere suspicion and conjecture” or “suspicion, surmise, implica-
tions, or plainly incredible evidence.” American Ship Bldg. Co. v.
NLRB, 380 U.S. 300, 312–313 (1965); NLRB v. Firestone Tire & Rub-
ber Co. (Foam Div.), 539 F.2d 1335, 1339 (4th Cir. 1976); Independent
Gravel Co. v. NLRB, 566 F.2d 1091, 1094 (8th Cir. 1977).
62 See, e.g., Continental Mfg. Corp., supra fn. 18, 155 NLRB at 257–
258, 261–262, when a single employee gave the employer a letter com-
plaining about working conditions and stating that “the majority of the
other employees” had the same “problem” but were “afraid to speak
up.” Even though the employee undisputedly worked with a co-
employee to investigate issues referenced in the letter, which involved
other co-employees as well, the Board found there was “no protected
concerted activity” because, among other things, the letter was prepared
and signed by the employee “acting alone” without any evidence that
“the letter was intended to enlist the support of other employees.” Id. at
257–258 (emphasis added).
63 Webster’s Third New International Dictionary of the English Lan-
guage (1981) 1493. See also Morris, supra fn. 11, at 1679–1680
(commonly accepted meaning of “mutual” is “possessed, experienced,
performed, etc., by each of two or more with respect to the other; . . .
held in common, shared . . . Mutual indicates an exchange of a feeling,
obligation, etc., between two or more people, or an interchange of some
kind between persons. . . .”).
ed on behalf of herself. Regarding her individual com-
plaint, Elias testified that she “didn’t really have any ex-
pectations beyond reporting it.” To say the least, nothing
suggests that Elias took action for the “purpose” of aid-
ing or protecting other employees. Nor is there any evi-
dence that any co-employees acted for the “purpose” of
giving mutual aid or support to Elias. Indeed, co-
employee Yates submitted her own complaint against
Elias for “bullying” Yates into signing the document.
Co-employee Giro likewise signed only to end an angry,
public confrontation that took place “in front of custom-
ers.”
In short, we are left here with a case in which nobody
acted for the “purpose” of extending “mutual aid or pro-
tection” to someone else. My colleagues find, nonethe-
less, that concerted activities took place for “mutual aid
or protection” because Elias, on behalf of herself, wanted
to complain about sex harassment. More generally, the
Board majority announces a broad holding that “an em-
ployee seeking the assistance or support of his or her
coworkers in raising a sexual harassment complaint is
acting for the purpose of mutual aid or protection.”
They state this holding “applies equally to cases where
. . . an employee seeks to raise that complaint directly to
the employer, or . . . to an outside entity.”
The broad holding announced by my colleagues dis-
penses with any inquiry about whether employee interac-
tion involving a complaint about sex harassment (or,
presumably, any other statutory employment right) in-
volves the “purpose” set forth in Section 7 as a prerequi-
site to the Act’s protection—i.e., whether the “purpose”
relates to “mutual aid or protection.” In my view, such a
proposition was properly rejected by the Board majority
in Holling Press, which my colleagues now overrule, and
which utilized an analysis that was more refined than my
colleagues describe.
In Holling Press, an employee, Catherine Fabozzi,
asked a co-employee (Garcia) to testify in an outside
proceeding in support of an individual sexual harassment
claim. Contrary to my colleagues’ description, nothing
in Holling Press created a “special exception for sexual
harassment claims” in Section 7. Rather, the Board held
that “concerted” employee activities—whether they re-
lated to sex harassment or other matters – were all sub-
ject to the same treatment under Section 7: the Act’s
protection is available if the evidence establishes, in ad-
dition, that the activity occurred for the “purpose” of
“collective bargaining or other mutual aid or protection.”
The Board majority in Holling Press conducted a fac-
tual inquiry consistent with Section 7’s structure and
language. The majority determined that the interaction
between Fabozzi and the co-employee was “concert-

168 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ed.”64 The majority then evaluated whether the record
supported an additional finding that the interaction in-
volved the “purpose” of “mutual aid or protection,” and
concluded it did not. This was a particularized finding
based on the evidence, as described by the Holling Press
majority:

[W]ith respect to mutual aid or protection, the record
reveals that from the outset, Fabozzi charted a course of
action with only one person in mind—Fabozzi herself.
To begin with, Fabozzi’s complaint was individual in
nature. . . . Thus, her apparent requests to coworkers to
help her out . . . were not made to accomplish a collec-
tive goal. Rather, their purpose was to advance her own
cause. . . . Further, there is no evidence that Fabozzi of-
fered or intended to help any employees as a quid pro
quo for their support of her personal claim. Her goal
was a purely individual one. In addition, there is no ev-
idence that any other employee had similar problems—
real or perceived—with a coworker or supervisor. In
particular, there is no evidence Garcia took offense to
[the alleged harasser’s] comment . . . or sought Faboz-
zi’s help. Nor did Garcia show any interest in assisting
with Fabozzi’s claim. Indeed, Fabozzi’s request that
Garcia become a witness was accompanied by the
threat that she could force Garcia to testify by “hitting”
her with a subpoena. Garcia’s evident lack of concern
regarding [the alleged harasser’s] comment, her lack
of interest in supporting Fabozzi, and Fabozzi’s ag-
gressive tactics with Garcia clearly establish the ab-
sence of any mutual purpose here. Thus, even though
Fabozzi’s exhortation to Garcia to testify on her behalf
constitutes concerted activity, it was not made to bene-
fit the group, but rather to advance Fabozzi’s personal
case.65

Two other aspects of the Board majority ruling in Hol-
ling Press are contrary to my colleagues’ discussion of
that case.
First, the Holling Press majority—rather than asserting
a philosophical preference—based its decision on the fact
that Section 7 requires separate inquiries into whether
activities were “concerted” (governed by Meyers I and II,
described above), and whether the activities had the req-
uisite “purpose” involving “mutual aid or protection.”
The majority noted that Section 7 requires “concert plus
mutual aid or protection,” and it rejected (as contrary to
Meyers I and II) the notion that “where activity is found
64 Unlike the instant case, the interaction clearly contemplated future
group activity (the co-employee’s testimony in Fabozzi’s upcoming
proceeding), so the interaction was “concerted” within the meaning of
Sec. 7. See fn. 51, supra.
65 343 NLRB at 302 (emphasis added).
to be concerted, the purpose of that activity must, in ef-
fect, be presumed to be for mutual aid or protection.”66
The Holling Press majority properly rejected the notion
that “when one employee asks for the assistance of an-
other, there is always mutual aid or protection.”67 Refer-
ring to then-Member Liebman’s dissenting views, the
majority explained:

In the instant case, we have the element of concert, but
not the element of mutual aid or protection. In our
view, our dissenting colleague is simply presuming
from the concerted nature of Fabozzi’s request to Gar-
cia . . . that Fabozzi’s complaint was for the purpose of
mutual aid or protection. This is contrary to the teach-
ing of Meyers I and II, discussed above, which explain
that the concepts of concertedness and mutual aid or
protection are analytically distinct and must be ana-
lyzed separately. . . . As explained above, Fabozzi’s
purpose in filing the charge was to benefit herself
alone. The mere fact that Fabozzi subsequently enlist-
ed Garcia to assist her with her complaint does not
somehow expand the scope of the original complaint
beyond its intended purpose of benefiting Fabozzi
alone. . . .68

Second, the Board majority in Holling Press empha-
sized—as did the Board in Meyers I and II—that it was
not finding that all employee conduct regarding sex har-
assment claims was unprotected under Section 7. Like-
wise, the majority clearly indicated that an individual’s
right to freedom from sex harassment and other work-
place discrimination—even if outside the scope of Sec-
tion 7—was clearly worthy of the protection afforded by
other employment statutes. Thus, the Holling Press ma-
jority stated:

In fact, we do not “treat sexual harassment at work as
merely an individual concern.” Such conduct can be,
and often is, of concern to many persons in the work-
place. Where the victims and their supporters protest
that conduct, the protest can fall within the ambit of
Section 7. However, where one employee is the al-
leged victim, that lone employee’s protest is not con-
certed. And, even if the victim seeks support from an-
other employee, and that seeking of support is concert-
ed activity, the “mutual aid or protection” element may
be missing. The bare possibility that the second em-
ployee may one day suffer similar treatment, and may
66 Id. at 303.
67 Id. (emphasis added).
68 Id. (emphasis added; footnote omitted).

FRESH & EASY NEIGHBORHOOD MARKET, INC. 169
herself seek help, is far too speculative a basis on which
to rest a finding of mutual aid or protection.69

The above discussion reveals that, unlike the broad holding
announced by my colleagues, the Board majority in Holling
Press did not categorically exclude individual sex harass-
ment complaints and other statutory employment claims
from the scope of Section 7. Rather, the Board majority in
Holling Press conducted an individualized review of the
record, based on the language and structure of Section 7,
which supported a finding that the employee’s conduct was
“concerted,” but not for the “purpose” of mutual aid or pro-
tection.
For the reasons expressed previously, I believe the
record here warrants a conclusion that Elias’ conduct was
not “concerted” nor did it occur for the “purpose” of mu-
tual aid or protection. For these reasons alone, I would
dismiss the complaint allegations that the Respondent
violated Section 8(a)(1) in the course of investigating
Elias’ complaint.
C. Expanding Section 7 Will Undermine Employee
Interests Regarding Sex Harassment Claims and
Other Types of Statutory Protection
As a final matter, I respectfully disagree with my col-
leagues’ statement that their holding “furthers the im-
portant federal policy of preventing sexual harassment in
the workplace.” I believe it is likely to have the opposite
result, which is demonstrated by the allegations asserted
against the Respondent, although they are properly being
dismissed after years of Board litigation.70 My col-
leagues’ effort to expand the Act’s protection is well-
intentioned, but I respectfully submit there are two im-
portant shortcomings in their analysis.71
69 Id. at 303–304 (emphasis added; footnote omitted).
70 Contrary to the majority’s suggestion, my concerns regarding
“process restrictions” are not allayed by the Board’s finding in this case
that the Respondent lawfully conducted an investigation into Elias’
conduct. My colleagues find Respondent’s conduct lawful based on
“the particular circumstances” and “particular facts” of this case. One
cannot determine what other questions, during a different investigation,
will constitute unlawful interference, restraint or coercion. Thus, in
dismissing the allegations in this case, the majority leaves intact the
chilling prospect of impending investigations, prolonged litigation, and
potential liability in future similar cases. Such prospects necessarily
restrict an employer’s range of motion in responding to employee com-
plaints and conducting investigations, regardless of whether the em-
ployer is subsequently found, on the particular facts and circumstances
of its case, to have acted lawfully under the NLRA.
71 For the reasons stated by Member Johnson and those set forth be-
low, I agree with Member Johnson that where employee and employer
are engaged in parallel investigations—i.e., simultaneously gathering
evidence of potential violations of other employment statutes—the
burden of proof should be on the General Counsel to show that an
employee is not interfering with the employer’s investigation.
First, I believe the majority does not adequately exam-
ine the enormous array of federal, state and local statuto-
ry rights and obligations that confront employers, em-
ployees and unions in workplaces throughout the coun-
try. These non-NLRA statutes confer extremely im-
portant protection on employees in a work force that,
increasingly, is becoming more diverse. My colleagues
properly recognize that all women—indeed, all employ-
ees regardless of sex—have a right to work without be-
ing subjected to unlawful sex harassment or sex discrim-
ination. However, there are other equally important
types of statutory protection. Just to name a few, these
include: (i) minimum wage and overtime requirements,
which spawn additional issues about breaks and meal
periods; (ii) occupational safety and health requirements,
which address potentially life-threatening hazards and
accidents in the workplace; (iii) workers’ compensation
issues and claims arising from work-related injuries; (iv)
unemployment insurance issues and claims that can arise
from layoffs, work force reductions and major business
changes; (v) complex benefits and tax issues that arise
from questions regarding how employees are compen-
sated; and (vi) additional legal protection against dis-
crimination or retaliation based on race, national origin,
color, religion, age, disability, veteran status, family
leave, citizenship, benefits eligibility, and (in certain ju-
risdictions) sexual orientation, height, weight, marital
status, and a near-innumerable variety of other protected
characteristics.
The broad holding announced by my colleagues—
though couched in terms pertaining to a “sexual harass-
ment complaint”—appears to have limitless application
to every one of these other types of statutory claims. In
fact, the General Counsel’s more expansive argument, as
my colleagues note, is that “when an individual employ-
ee effectively invokes statutory protections benefitting
employees . . . that employee’s efforts are for the purpose
of ‘mutual aid or protection.’” Even under preexisting
law, which interpreted Section 7 consistent with its
terms, there are many circumstances where the Act has
conferred protection on two or more employees who,
seeking to enforce statutory rights, engage in “concerted”
activities with evidence of a shared “purpose” to afford
“mutual aid or protection.”72 Now, my colleagues ap-
pear to create Section 7 coverage for every individual
72 See, e.g., National Licorice Co. v. NLRB, 309 U.S. 350 (1940);
Eastex v. NLRB, 437 U.S. at 565; BE & K Construction Co. v. NLRB,
536 U.S. 516 (2002). The Board has also addressed the extent to which
employees have a protected right under Sec. 7, and whether employers
violate Sec. 8(a)(1) of the Act, regarding various types of “class action”
waivers. See, e.g., D. R. Horton, 357 NLRB 2277 (2012), enf. denied
737 F.3d 344 (5th Cir. 2013). Nothing in this opinion should be re-
garded as passing on the merits of such cases.

170 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
employee—regarding every individual complaint impli-
cating any individual non-NLRA right—as soon as the
individual seeks the involvement of anyone else who is a
statutory employee. Such coverage appears to be unaf-
fected by whether or not the object(s) of the appeal are
willing or unwilling to help, whether or not they believe
they have a shared interest in the matter, whether (as
occurred in the instant case) they file their own com-
plaint against the person who is seeking assistance, and
whether or not the individual complaint has merit. I
hope these assessments are incorrect. However, I am
concerned that the majority’s holding may be the source
of an unprecedented expansion in Section 7 coverage that
nobody can presently anticipate. I respectfully submit
that such an expansion in Section 7’s coverage would be
dramatically at odds with our statute, its legislative histo-
ry, and its underlying policies and purposes, which Con-
gress intentionally limited to “concerted” activities by
multiple employees who take “collective” action for the
“purpose” of “mutual” aid or protection.
My second concern relates to the unintended conse-
quence of my colleagues’ holding: rather than advancing
the policies associated with statutory requirements like
the prohibition against sex harassment, expanding Sec-
tion 7’s coverage will predictably undermine the many
important non-NLRA statutes and regulations that afford
individual protection to employees. The NLRA focuses
primarily on the process by which employees can decide
whether to have union representation and engage in col-
lective bargaining.73 By comparison, other employment
statutes primarily require a desired outcome: they man-
date safe workplaces with freedom from unlawful dis-
crimination or harassment where employees are treated
in compliance with other applicable laws. Every em-
ployee affected by my colleagues’ holding already en-
joys non-NLRA statutory protection with existing en-
forcement machinery under the substantive statute(s)
implicated in an employee’s individual complaint.
73 The NLRA focuses on the process governing union representation
elections, but employees are responsible for making their own decision
regarding representation. See, e.g., NLRA Sec. 9(a), 29 U.S.C. §
159(a) (providing for representatives “designated or selected for the
purposes of collective bargaining by the majority of the employees in a
unit appropriate for such purposes”); Sec. 7, 29 U.S.C. § 157 (protect-
ing the right of employees to “engage in” and “refrain from” activities
protected under the Act). Likewise, employers and unions are respon-
sible for whatever substantive terms result from negotiations, and the
Act prohibits the Board from imposing substantive contract terms on
any party. See, e.g., NLRA Sec. 8(d), 29 U.S.C. § 158(d) (providing
that the duty to bargain “does not compel either party to agree to a
proposal or require the making of a concession”); H. K. Porter Co. v.
NLRB, 397 U.S. 99, 102 (1970) (the Board lacks the authority to im-
pose substantive contract terms on any party).
By making Section 7 applicable to every situation
where one employee appeals to another regarding an
individual complaint involving sex harassment or other
statutory rights, numerous “process” restrictions under
the NLRA become applicable:

• Unlawful Interrogation. The NLRA broadly
prohibits the questioning of employees re-
garding “protected” activities.74 Under my
colleagues’ holding, the employer, though ob-
ligated to conduct an investigation and take
remedial action under substantive laws like
Title VII of the Civil Rights Act of 1964,75 is
prohibited under the NLRA from questioning
employees—including the person who pre-
sented the complaint—about the “protected”
activity.
• Unlawful Surveillance. The NLRA prohibits
employer surveillance of “protected” activi-
ties, as well as comments or actions that cre-
ate the impression of surveillance.76 Yet,
employee complaints often involve disputes
over what occurred or was communicated by
or between employees. Under my colleagues’
holding, fact-gathering regarding such dis-
putes will become difficult or impossible, be-
cause the NLRA renders unlawful most video
or audio surveillance, email system searches,
and similar investigative efforts regarding
“protected” conduct.
• The Right to “Refrain From” Protected Ac-
tivity. If particular conduct is “protected,”
Section 7 affirmatively protects the right of
employees to “engage in” the conduct and to
“refrain from” engaging in the conduct.
Thus, if an employee’s individual complaint
involves “protected” conduct, the complain-
ing employee or co-employee witnesses may
invoke an NLRA-protected “right” to “refrain
from” answering questions and providing rel-
evant information, even if the relevant claim
involves a sexual assault associated with a sex
harassment complaint, for example, or a
74 My colleagues note, correctly, that the Act “generally prohibits
employers from questioning employees about their protected concerted
activity, including why they chose to engage in that activity.”
75 As the majority acknowledges, under Title VII of the Civil Rights
Act of 1964, “an employer is responsible for acts of sexual harassment
in the workplace where the employer . . . knows or should have known
of the conduct, unless it can show that it took immediate and appropri-
ate corrective action.” 29 CFR § 1604.11(d) (EEOC regulation).
76 See, e.g., Automotive Plastic Technologies, Inc., 313 NLRB 462,
466–467 (1993); Avondale Industries, 329 NLRB 1064, 1068 fn. 16
(1999).

FRESH & EASY NEIGHBORHOOD MARKET, INC. 171
work-related injury or fatality implicated in
an OSHA complaint.
• Difficulty Knowing Which Individual Com-
plaints Are “Protected.” Under my col-
leagues’ holding, Section 7 will cover all in-
dividual complaints that implicate statutory
rights, but only if there is “concerted” activity
by two or more employees. Yet, because the
NLRA prohibits interrogation about “concert-
ed” activity, employers cannot lawfully make
inquiries sufficient to determine which indi-
vidual complaints are covered by Section 7,
and which are not.
• Large Number of Individual Complaints Af-
fected. Co-employees predictably will be the
most frequent source of information about
employment-related complaints, and their in-
volvement may occur in numerous ways and
at different times. Therefore, under my col-
leagues’ holding, nearly every investigation
involving individual complaints will present
difficult questions about whether or when the
NLRA process-based restrictions are trig-
gered.
• Inability to Establish Standard Complaint-
Handling Procedures. Conventional cases
involving “protected” activity often give rise
to difficult questions about whether the em-
ployer has knowledge of the activity. Yet, as
noted above, the Act prohibits employers
from making inquires about “protected” activ-
ity, so employers cannot readily ascertain
whether or when the NLRA applies to indi-
vidual complaints, even if they exclusively
invoke non-NLRA rights. Therefore, under
my colleagues’ holding, employers will be
unable to adopt a standard process for han-
dling and investigating individual complaints
unless they treat every individual complaint
as being “protected” under the NLRA.

These NLRA “process” restrictions play a vital role
when employees engage in conventional types of “pro-
tected concerted activity” that have long been protected
under Section 7. However, the same “process” re-
strictions—if expansively applied to nearly every indi-
vidual complaint implicating non-NLRA statutory
rights—will clearly detract from the legal protection af-
forded to employees under such statutes.
This problem is illustrated by the instant case. Be-
cause Elias’ conduct was alleged to be “protected” (an
allegation that my colleagues now embrace), the Re-
spondent has participated in years of litigation based on
two questions that were asked during the investigation
into Elias’ individual sex harassment complaint. Moreo-
ver, my colleagues find Respondent’s conduct lawful
only based on “the particular circumstances” and “partic-
ular facts” of this case, so one cannot determine what
other questions, during a different investigation, will
constitute unlawful interference, restraint or coercion
regarding “protected” rights in violation of Section
8(a)(1).
Although my colleagues’ reasoning leads to the correct
outcome, it bears emphasis that their extensive analysis
arises from a single person’s individual complaint, based
on Elias’ limited interaction with two employees (neither
of whom wanted to help her), in relation to two questions
asked during one interview conducted on a single day by
a single employer regarding a single statutory issue (al-
leged sex harassment). My colleagues’ holding appears
to expand Section 7’s coverage to all individual com-
plaints whenever one employee attempts to involve an-
other statutory employee regarding all types of potential
employment rights, and all employers covered by the
Act, affecting innumerable interviews and questions
asked in workplaces every day throughout the country.
An employer is the only party on the scene, in real
time, who can give employees what is required by the
numerous employment statutes that focus on “out-
come”—i.e., a legally compliant workplace. When an
employer receives an “individual” complaint that impli-
cates a non-NLRA statute, employers already have a
legal obligation to protect employee interests by doing
what the non-NLRA statute requires: to ascertain the
applicable legal requirements, conduct an immediate
investigation, reconcile conflicting evidence, and take
strict, prompt remedial action if required. Regarding
Elias’ individual sex harassment complaint, the Re-
spondent promptly accomplished all of the steps de-
scribed above. However, based on an expansive inter-
pretation of Section 7—which my colleagues now em-
brace—two questions asked during the Elias interview
resulted in years of Board litigation.
I fully support the Act’s aggressive enforcement where
the evidence proves that two or more employees are en-
gaged in “concerted” activities for “purpose of . . . mutu-
al aid or protection.” Absent such evidence, however, it
undermines the policies and purposes of other important
federal, state and local statutes to broadly apply the
NLRA’s “process” restrictions on top of the non-NLRA
substantive and procedural requirements implicated in a
single employee’s individual complaint. Employers will
need to focus on limiting and narrowly tailoring their
investigations and discussions with employees, rather
than focusing on the substantive legal issues relating to
172 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
individual complaints. Employers will need to antici-
pate—consistent with the Respondent’s experience—that
one or two questions may result in years of Board litiga-
tion, separate from the complex non-NLRA laws and
procedures that actually govern the employee complaint.
Extensive research is not needed to conclude that these
problems will delay or obstruct investigations and inhibit
the vigor with which they can be carried out. Necessari-
ly, these problems will operate to the detriment of em-
ployees.
In this respect, I believe the majority’s holding is in-
consistent with the Board’s statutory duty to accommo-
date and avoid undermining federal statutes other than
the NLRA. As the Supreme Court stated more than 70
years ago:

[T]he Board has not been commissioned to effectuate
the policies of the [Act] so single-mindedly that it may
wholly ignore other and equally important Congres-
sional objectives. Frequently the entire scope of Con-
gressional purpose calls for careful accommodation of
one statutory scheme to another, and it is not too much
to demand of an administrative body that it undertake
this accommodation without excessive emphasis upon
its immediate task.77

All Board members agree there is no room in the mod-
ern workplace for unlawful sex harassment and other
types of unlawful conduct. However, we enforce a sin-
gle statute that, on its face, does not afford protection to
“individual” action. Moreover, as noted above, the ma-
jority’s expansion of Section 7—though well-intended—
will impair employee rights and hinder the ability of em-
ployers to comply with statutes that require prompt,
77 Southern Steamship Co. v. NLRB, 316 U.S. 31, 47 (1942) (empha-
sis added). See also Hoffman Plastic Compounds, Inc. v. NLRB, 535
U.S. 137, 147 (2002) (“[W]here the Board’s chosen remedy trenches
upon a federal statute or policy outside the Board’s competence to
administer, the Board’s remedy may be required to yield.”); Can-Am
Plumbing, Inc. v. NLRB, 321 F.3d 145, 153 (D.C. Cir. 2003) (“[T]he
Board . . . is obligated to defer to other tribunals where its jurisdiction
under the Act collides with a statute over which it has no expertise.”);
New York Shipping Assn. v. Federal Maritime Comm., 854 F.2d 1338,
1367 (D.C. Cir. 1988), cert. denied 488 U.S. 1041 (1989) (“[T]he agen-
cy must fully enforce the requirements of its own statute, but must do
so, insofar as possible, in a manner that minimizes the impact of its
actions on the policies of the other statute.”); Electrical Workers Local
48 (Kingston Constructors), 332 NLRB 1492, 1501 (2000), supple-
mented 333 NLRB 963 (2001), enfd. 345 F.3d 1049 (9th Cir. 2003)
(Board cannot adopt interpretation “announcing, in effect, that the
NLRA trumps all other Federal statutes”). Cf. Meyers II, 281 NLRB at
888 (“Although it is our duty to construe the labor laws so as to ac-
commodate the purposes of other Federal laws . . . this is quite a differ-
ent matter from taking it upon ourselves to assist in the enforcement of
other statutes” [citations omitted].).
thorough investigations and meaningful corrective ac-
tions.
For these reasons, I concur in the majority’s determi-
nation that the Respondent’s actions during its interview
with Elias were lawful and did not violate Section
8(a)(1). However, I dissent from the majority’s decision
to overrule Holling Press, and I dissent from their find-
ing that the activities at issue here were “concerted” and
took place for the “purpose” of “mutual aid or protec-
tion.”

MEMBER JOHNSON, concurring in part and dissenting in
part.
In this case, we are five Board Members divided by a
common language.1 All of us seemingly agree that the
language of Section 7 of the Act states that, in order for
us to find the unrepresented employee activity at issue
here was protected by that provision, the General Coun-
sel must prove that it was both “concerted” and for the
purpose of “mutual aid and protection.” All of us seem-
ingly agree that these are discrete and independent ele-
ments of proof, and that the principles of Meyers Indus-
tries I and II2 should still govern in determining whether
the General Counsel has met his evidentiary burden.
That, however, is where consensus ends and where sig-
nificant differences begin as to the application of the
common language in this and future cases.3
1 Apologies to George Bernard Shaw.
2 268 NLRB 493 (1984) (Meyers I), remanded sub nom. Prill v.
NLRB, 755 F.2d 941 (D.C. Cir. 1985), cert. denied 474 U.S. 948
(1985), on remand, Meyers Industries, 281 NLRB 882 (1986) (Meyers
II), affd. sub nom. Prill v. NLRB, 835 F.2d 1481 (D.C. Cir. 1987), cert.
denied 487 U.S. 1205 (1988).
3 We are unanimous in finding that the Respondent did not violate
Sec. 8(a)(1) of the Act when it questioned employee Margaret Elias
about why she obtained witness statements from her coworkers and
instructed her not to obtain additional statements from her coworkers.
Inasmuch as I agree with the majority that Elias had engaged in pro-
tected concerted activity, I agree with finding that neither the questions
asked nor the instructions not to obtain additional statements would
reasonably tend to interfere with that activity. However, I do not join
in the majority’s analysis to the extent that it suggests employers are
narrowly limited in their ability to conduct statutorily mandated inves-
tigations of facially valid sexual harassment complaints, or to determine
what corrective or preventive actions must be taken to avoid derivative
liability, see Faragher v. City of Boca Raton, 524 U.S. 775 (1998), and
I do not reach or pass on the merits of Hyundai America Shipping
Agency, 357 NLRB 860, 874 (2011). I also do not join the majority's
allocation of the burden of proof in this case, although the majority
reaches the right result. Here, where other statutes indisputably give
the employer the primary responsibility to take action to prevent sexual
harassment, see 42 U.S.C. § 2000e-2(a)(1); 29 CFR § 1604.11(f), the
majority impermissibly interferes with Congressional will by requiring
the employer to justify itself in any statement or comment that might
interfere with an employee like Elias’ “parallel investigation” of his or
her claim. Southern Steamship Co. v. NLRB, 316 U.S. 31 (1942).

FRESH & EASY NEIGHBORHOOD MARKET, INC. 173
I write separately here to state certain points of agree-
ment and disagreement with my colleagues as to whether
Margaret Elias engaged in “concerted activity” for “mu-
tual aid or protection” when she requested help from her
coworkers to report to management a sexually offensive
message visible to other employees in the breakroom. I
concur with the majority that the General Counsel has
proved both elements required for finding her conduct
protected, but I do so based on affirmative proof of actu-
al concert and mutual purpose. I concur in the majori-
ty’s overruling of Holling Press, Inc., 343 NLRB 301
(2004), but only to the limited extent that it held the “mu-
tual aid or protection” element of protected concerted
activity was not proved under the facts in that case and
this, where other employees have been exposed to the
same conduct that is the basis for an individual’s sexual
harassment complaint. I join Member Miscimarra in
dissenting from the majority’s overbroad holding that an
employee seeking the assistance or support of his or her
coworkers in raising a sexual harassment complaint is
always acting for the purpose of mutual aid or protection.
As comprehensively and persuasively stated in that dis-
sent, this holding cannot be reconciled with the princi-
ples of Meyers Industries that the majority claims to ap-
ply here. It also expands the protections of the Act to a
point where it undercuts and hinders the ability of em-
ployers to fulfill their obligation to protect the rights of
its employees under numerous other federal and state
labor and employment statutes.
In my view, the fact that Elias solicited coworkers to
corroborate evidence of an offensive whiteboard display
was sufficient to establish under Meyers and Mushroom
Transportation4 both that her solicitation was “concert-
More troubling still, even though the majority recognizes in other
contexts that it is the employer who has the power to levy discipline or
discharge, e.g., Santa Fe Tortilla Co., 360 NLRB 1139, 1139 fn. 7
(2014) (“Of course, it is the employer who wields the ax in the work-
place.”), the majority's unfortunate rationale hamstrings the employer in
trying to effectively investigate and stop harassment by limiting indi-
vidual employees’ own potentially disruptive “parallel investigations,”
just as Elias embarked on in this case. The Board here also departs
(without any rationale) from its earlier recognition that employers have
a bonafide interest in controlling the investigation of an internal har-
assment complaint. See Consolidated Diesel Co., 332 NLRB 1019,
1020 (2002), enfd. 263 F.3d 345 (4th Cir. 2001). In my view, in the
circumstances when both employee and employer are simultaneously
gathering and assessing evidence of potential violations of other em-
ployment statutes, it should be the General Counsel who must show
that the employee is not interfering with the employer's investigation, in
order for the employee’s Sec. 7 rights to prevail over the employer’s
rights and obligations under more directly controlling laws. The Board
is interfering with Congressional intent under other statutes by impos-
ing the burden on the employer. See dissent, post, at 12–13.
4 Mushroom Transportation Co. v. NLRB, 330 F.2d 683 (3d Cir
1964).
ed” and for the purpose of “mutual aid and protection.”
It was concerted because she sought to induce group ac-
tion.5 Admittedly, she was ham-handed and overbearing
in her efforts to induce group action, alienating those
whom she solicited, but this does not disqualify her ac-
tivity as a threshold concerted communication looking to
group support. Further, her solicitation was for the pur-
pose of “mutual aid and protection,” because she intend-
ed to bring to management’s attention conduct that was
personally directed at her but visible and objectively of-
fensive to other female employees. I find irrelevant the
fact that Elias did not intend any action other than report-
ing her own hostile work environment claim to manage-
ment.
The flaw in the majority opinion in Holling Press, and
the reason that it should be overruled in part here, is that
it too narrowly construed the circumstances in which an
individual sexual harassment complaint, either to man-
agement or an outside authority, could be found to be for
the purpose of “mutual aid and protection.” That is, the
majority too readily perceived such complaints to be
purely personal, particularly if coworkers spurned the
complainant’s solicitation of their support.6 Thus, con-
trary to the Holling Press majority and dissenting Mem-
ber Miscimarra, I believe that in certain instances the
purpose of aiding or protecting other employees may be
proved by an individual’s claim of sexual harassment
5 In this respect, I agree with my colleagues in the majority that the
concerted nature of Elias’ conduct is not materially different from the
solicitation conduct of employee Fabozzi which the Holling Press
majority found was concerted. 343 NLRB at 302. Here, a request for a
witness statement concerning potentially unlawful conduct that affected
a group of employees is an attempt to initiate group action. Unlike
Member Miscimarra, I find it irrelevant that the complainant did not at
the time intend to file a lawsuit; I would not find the conduct less con-
certed because the employee chose to resort to the employer's internal
processes, in obedience to the employer's guidance of how employees
should pursue grievances. To hold otherwise would frustrate Congress’
goal to surface and remedy sexual harassment issues as soon as possi-
ble.
6 The Board has long recognized “it would come very near to nulli-
fying the rights of organization and collective bargaining guaranteed by
Section 7 of the Act” if protection is denied because of “lack of frui-
tion.” Salon/Spa At Boro, Inc., 356 NLRB 444, 454 (2010) (quoting
Mushroom Transportation Co., above at 685. Thus, the Board in Hol-
ling Press should not have considered “[coworker] Garcia’s evident
lack of concern regarding Leon’s comment, her lack of interest in sup-
porting Fabozzi, and Fabozzi’s aggressive tactics” in finding that
Fabozzi’s request to Garcia to testify before the state agency in support
of her sexual harassment complaint against Leon was a “purely indi-
vidual one” and was not for “mutual aid or purpose.” Holling Press,
343 NLRB at 302. That is not to say that Fabozzi’s aggressive tactics
or Garcia’s lack of interest and support are irrelevant. They are–but to
the question of whether Fabozzi’s conduct was removed from the pro-
tections of the Act, not whether Fabozzi’s conduct was for “mutual aid
or protection.”

174 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
conditions to which others are exposed, even if no other
employee joins in pressing that claim.
In Holling Press, there was nothing speculative about
the fact that solicited coworker Garcia was exposed to
the same kind of offensive conduct as Fabozzi, even if
Garcia was not bothered by Leon’s comments. Fabozzi
asked Garcia for help after Garcia told her about Leon’s
“tight white pants” comment. In asking Garcia to testify,
it is clear that Fabozzi thought Leon’s separate comments
to Garcia would support her sexual harassment claim
against Leon by showing a pattern of conduct. See, e.g.,
Jackson v. Quanex Corp., 191 F.3d 647, 661 (6th Cir.
1999) (remarks that are generally demeaning to woman
even when not demeaning any one woman in particular
are considered probative in hostile working environment
claim).
The mutual or common hostile working environment
implications are even more apparent in this case. Be-
cause the Respondent did not permit employees to carry
or use cameras at the facility, Elias hand copied an offen-
sive message written by a coworker on the whiteboard in
the employees’ breakroom. There is disagreement as to
what reasons Elias conveyed to her coworkers for asking
them to sign her reproduction. At a minimum, however,
no one disputes that Elias requested help from her
coworkers to corroborate her reproduction of the offen-
sive “TITS” message written on the whiteboard. See,
e.g., Abeita v. TransAmerica Mailings, Inc., 159 F.3d
246, 251–252 (6th Cir. 1998) (employee comments that
land adjacent to a Hooters restaurant should be called
“Hootersville,” “Titsville,” or “Twin Peaks” relevant to
hostile working environment claim). In these situations,
the legal history and framework of the statutory right to
work in “an environment free from discriminatory intim-
idation, ridicule, and insult”7 strongly support finding
that Fabozzi and Elias’ actions in pursuing individual
sexual harassment claims that implicate a common hos-
tile working environment are for the purpose of “mutual
aid or protection” and are protected under the Act.
Essentially, Holling Press unfortunately overlooked
the fact that some kinds of alleged violations of other
statutes affect employees as a group. I will not compre-
hensively cover them here: but a uniform pay practice
affecting a group of employees in the same way, a safety
hazard affecting employees in the same way, or a dis-
criminatory practice affecting employees in the same
way are classic examples. Another classic example is the
employee (or supervisor) who engages in potential har-
assment that affects a group of other employees, running
afoul of Title VII. The quintessential example of that is
7 Meritor Savings Bank, 477 U.S. 57, 65 (1986).
posed by this case: an employee essentially created a
derogatory, demeaning and gender-specific offensive
display on a whiteboard. Even though the display direct-
ly targeted a single female employee, it existed for all
female (and male) employees to see. Elias, who was the
direct target, complained, and tried to enlist other em-
ployees to her cause by verifying what was written. One
of the other female employees (Giro), in fact, testified
that she agreed the display was “inappropriate” and that
management should be notified about it so that it could
be addressed. Those facts should be enough to determine
that Elias’ request—though it was to support her personal
internal complaint—was also for the purpose of mutual
aid and protection, i.e., of all female employees who
were exposed to the conduct. The objective determina-
tion of whether a complaint is made for the purpose of
mutual aid or protection thus derives from the objective
facts of the underlying conduct at issue, not from the
fortuity that only one person complained about it (the
Holling Press analysis) or from a subjectively-based pre-
sumption that “every request for co-employee help is
made in solidarity” (the majority's analysis).8 In terms of
Member Miscimarra’s “car crash” analogy, therefore, I
believe the other female employees were more than mere
witnesses. The car also “crashed” directly into them,
because they were also exposed to the offensive lan-
guage. On the other hand, the flaw in my colleagues’
opinion overruling Holling Press is that it so broadly
construes the circumstances in which an individual sexu-
al harassment complaint will be found to be for the pur-
pose of “mutual aid and protection” as to vitiate the re-
quirement of proof for this independent element of the
statutory test. The majority’s holding that an employee
seeking the assistance or support of his or her coworkers
in raising a sexual harassment complaint is always acting
for the purpose of mutual aid or protection is, in effect,
an irrebuttable presumption. If this is intended to be an
irrebuttable presumption particular to claims of sexual
harassment, then the majority here commits the same
special exception error that it correctly contends was
committed by the Holling Press majority. However, as
Member Miscimarra also notes in his opinion, I do not
think my colleagues’ rationale can be so cabined, nor do
8 In Holling Press, more than one employee had been affected by the
supervisor’s gender-specific potentially offensive conduct. This, in-
deed, surfaced during the first employee’s (Fabozzi’s) request for assis-
tance, when the second employee (Garcia) brought up the supervisor’s
comments directed toward her—specifically, that he was was wearing
his “tight white pants” for Garcia. Therefore, I would have found that
Fabozzi’s request for Garcia’s testimony was protected in that case,
rather than being solely for Fabozzi’s individual benefit, as the Holling
Press majority held. 343 NLRB at 302.

FRESH & EASY NEIGHBORHOOD MARKET, INC. 175
I think they intend it to be, which makes their holding all
the more concerning.
The problem with the majority’s approach is that it
both defies common sense and also lacks any limiting
boundary. As to the first problem, the “solidarity princi-
ple” is a useful conceptual notion when two or more in-
dividuals actually act together to attempt to accomplish
the same thing. However, the majority’s belief here is
that the mere request from one worker to another, to im-
prove that first worker’s individual terms of employment,
in some manner automatically invokes an implicit offer
of reciprocity. See majority opinion, supra (“. . . [noting]
the lesson of the cases embracing the solidarity principle:
that the “mutual aid or protection” element is satisfied by
the implicit promise of future reciprocation, when one
employee answers another’s call for assistance, even if
that promise is rarely (or never) called upon”) (empha-
sis added). The majority labels this the “solidarity prin-
ciple,” and relies on it to show that Elias’ request was for
“mutual aid or assistance” under Section 7.
That makes no sense, considering real life experience
and human nature. For example, if one employee asks
another for a soda, it is highly unlikely, assuming the
second employee goes ahead and provides the soda, that
the automatic motivation was an unspoken notion that
there would be a soda or something else provided in re-
turn some day, in some other circumstances. There are
half a dozen other reasons that might motivate such an
act that have nothing to do with reciprocal expectations,
including sheer altruism, convenience, and the excuse to
get up and take a break from work. When a much more
substantial kind of assistance is requested (such as the
witness affirmation here), and granted, it is then even
more tenuous to ascribe an unspoken motivation of in-
choate reciprocity to the employee(s) providing the assis-
tance. This is especially so when considering the aggre-
gate group of employees who aid other employees in
some way with potential lawsuits. It is extremely statis-
tically unlikely that each one of the assistors would have
a lawsuit of his or her own in mind when providing the
assistance.9
Indeed, that is why our main corpus of law governing
significant joint endeavors—contract law—looks to ob-
9 The majority here completely misses the point in dismissing Hol-
ling Press merely by citing statistics showing that many sexual harass-
ment claims occur. The point made by the Holling Press opinion is that
sexual harassment is a comparatively extremely rare slice of the mil-
lions of interactions that occur each day among people in the American
workplace. Therefore, there is no empirical basis for the solidarity
interest's fundamental assumption of “today I will help you with your
sexual harassment complaint, because I know that some day I will have
one of my own.” The majority does not even attempt to prove the
empirical basis behind such an assumption.
jective evidence of actual motive in the first place.
Simply stated, the law recognizes the superiority of ob-
jective manifestations of intent for determining what the
joint endeavor actually was, rather than looking to some
subjective, unspoken assumption of one of the parties.
Worse here, the majority does not even look to a party’s
subjective assumption about the purpose of the request
for assistance, but simply uses its own assumption about
how employees should behave.
Even looking to the particular and serious issue of sex-
ual harassment claims, the majority’s factual presump-
tion is empirically unsupportable. Here, an employee
seeking the assistance or support of his or her coworkers
in raising a sexual harassment complaint is not always
acting for the purpose of mutual aid or protection. Cer-
tainly, there are many instances, as demonstrated by the
facts of this case and Holling Press, where an individu-
al’s sexual harassment claim involves conduct that af-
fects the working conditions of more than the complain-
ant. That is more likely to be the case with hostile work
environment claims than with quid pro quo harassment
claims, but it is possible in either situation. However, it
is just as certain that interactions amounting to sexual
harassment can be purely on a one-to-one basis and thus
that neither the protest nor the outcome are of presump-
tive significance to the working conditions of any em-
ployee other than the claimant. A classic example of this
is a harassment claim arising in the aftermath of a volun-
tary but failed office romance, where one former partner
now harasses the other.10 This is a particularly personal
one-on-one conflict, and the claim of harassment, wheth-
er to management or to a third-party authority, cannot by
itself justify a factual presumption that the claimant acts
for a purpose that bears an identifiable relationship to
“legitimate employee concerns about employment mat-
ters” in general11 or that the “employee action inures to
the benefit of all.”12
As a policy-based presumption, the majority’s holding
fares even worse. First, it is founded on misapplication
of the solidarity doctrine articulated in Judge Learned
Hand’s definition of a sympathy strike:

10 See, e.g., Gerald v. University of Puerto Rico, 707 F.3d 7 (1st Cir.
2013), and Green v. Administrators of Tulane Educational Fund, 284
F.3d 642 (5th Cir. 2002). Legal claims arising from or related to work-
place romance occur frequently: two examples recently appeared in two
separate Daily Labor Report articles on the same day. See “Employer
May Be Liable For Firing Orchestrated By Jilted Co-Worker” and
“Coach Lacks Bias Claims For Reporting Director’s Affair” Daily
Labor Report, No. 102, May 28, 2014.
11 Kysor/Cadillac, 309 NLRB 237, 238 fn. 3 (1992); Eastex, Inc. v.
NLRB, 437 U.S. 556, 567–568 (1978).
12 Meyers II, supra, 281 NLRB at 887.

176 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
When all the other workmen in a shop make common
cause with a fellow workman over his separate griev-
ance, and go out on strike in his support, they engage in
a ‘concerted activity’ for ‘mutual aid or protection,’
although the aggrieved workman is the only one of
them who has any immediate stake in the outcome. The
rest know that by their action each of them assures
himself, in case his turn ever comes, of the support of
the one whom they are all then helping; and the solidar-
ity so established is ‘mutual aid’ in the most literal
sense, as nobody doubts.13

As the italicized phrases clearly demonstrate, the req-
uisite proof of a goal of mutual aid and protection under
the Peter Cailler solidarity doctrine is demonstrated by
those who in fact join the individual grievant, not by the
mere grievance itself or the grievant’s solicitation of
support for it.14 My colleagues stand the solidarity doc-
trine on its head by reasoning that, whenever an employ-
ee solicits coworker support in raising a claim of protec-
tion under an individual employment rights statute, they
will presume a solidarity-based mutual purpose without
requiring any affirmative showing of it. Of course, em-
ployees can act in solidarity, but this requires some kind
of positive and affirmative action, not merely being the
passive listener to a request for action.15 The majority’s
13 NLRB v. Peter Cailler Kohler Swiss Chocolates, 130 F.2d 503,
505–506 (2d Cir. 1942) (emphasis added).
14 The Supreme Court’s decision in NLRB v. J. Weingarten, Inc., 420
U.S. 251 (1975), is similarly focused on the common role of a union
representative, rather than on the individual requesting representation
during an employer’s investigation, as proof of the mutual aid and
protection element. As the Court there stated:
The action of an employee in seeking to have the assistance
of his union representative at a confrontation with his employer
clearly falls within the literal wording of s 7 that ‘(e)mployees
shall have the right . . . to engage in . . . concerted activities for
the purpose of . . . mutual aid or protection.’ Mobil Oil Corp. v.
NLRB, 482 F.2d 842, 847 (CA7 1973). This is true even though
the employee alone may have an immediate stake in the outcome;
he seeks ‘aid or protection’ against a perceived threat to his em-
ployment security. The union representative whose participation
he seeks is, however, safeguarding not only the particular em-
ployee's interest, but also the interests of the entire bargaining
unit by exercising vigilance to make certain that the employer
does not initiate or continue a practice of imposing punishment
unjustly. The representative's presence is an assurance to other
employees in the bargaining unit that they, too, can obtain his aid
and protection if called upon to attend a like interview. Concerted
activity for mutual aid or protection is therefore as present here as
it was held to be in NLRB v. Peter Cailler Kohler Swiss Choco-
lates Co., 130 F.2d 503, 505–506 (CA2 1942), cited with approv-
al by this Court in Houston Contractors Assn. v. NLRB, 386 U.S.
664, 668–689, 87 S.Ct. 1278, 1280–1281, 18 L.Ed.2d 389 (1967).
420 U.S. 251, at 260–261.
15 To draw a historical analogy, the transformative Solidarity Move-
ment of the 1980s led by Lech Walesa would have foundered if its only
result was a few hundred Gdansk shipyard workers listening to a
presumption finds no support in the precedent they cite,
and, as Member Miscimarra correctly states in dissent, is
essentially the “flip-side” of the Alleluia Cushion16 doc-
trine that courts of appeals sharply criticized and the
Board correctly overruled in the Meyers cases.
The majority’s “solidarity principle” ignores this time-
honored Meyers framework and replaces it with a whole-
sale legal fiction. The legal fiction turns out to rest upon
the majority’s own subjective assumptions about worker
“solidarity.” Thus, this fiction even departs from the
very precedent the majority cites, precedent which focus-
es on “mutual aid or assistance” from an objective per-
spective. The majority’s approach impermissibly departs
from the text and framework of the Act to engraft an
automatic presumption of Section 7 protection for any
employee request or demand for assistance with his or
her own individual employment issue.
Of course, this brings us to the second problem with
the “solidarity” as the majority defines it: it sweeps in
way too much. No limiting principle can be discerned in
the majority's approach. Any time an employee asks for
assistance from another employee with any kind of em-
ployment-related problem, this is now Section 7 activity.
Drawing from the above-discussed example, if we take
the solidarity principle at face value, then one employee
asking another to go get a soda is obviously concerted
activity for the purpose of mutual aid or assistance, and
thus protected Section 7 activity. Every request for assis-
tance, no matter how trivial or how important—and no
matter how individual-specific—will now receive statu-
tory protection when the request relates in some way to a
condition of work.17 And, as Member Miscimarra de-
scribes in detail, once Section 7 protection has been ex-
tended to such employee overtures, an extensive regula-
tory framework will descend over an employer’s ability
to respond to them.
I fully concur in Member Miscimarra’s policy-based
criticism of the majority’s presumption in Section II,C of
his opinion. The presumption expands Section 7 cover-
age of individual employee actions far beyond what is
permissible under the statutory language and manifest
Congressional intent. Just as impermissibly, the majori-
ty’s extension of Section 7 coverage conflicts with, if not
overrides, all the other statutory frameworks that Con-
speech. It was not the fact of listening that overthrew communism; it
was the fact of action.
16 Alleluia Cushion Co., 221 NLRB 999 (1975).
17 The Supreme Court has affirmed that even such relatively trivial
matters as sodas and soda prices can be terms and conditions of em-
ployment, so my “soda hypothetical” is not far-fetched. See Ford
Motor Co. (Chicago Stamping Plant) v. NLRB, 441 U.S. 488 (1979)
(“in-plant-supplied food and beverages” and their prices are terms and
conditions of employment).

FRESH & EASY NEIGHBORHOOD MARKET, INC. 177
gress consciously created to require employers to act
where there might be violations of those statutes. In this
particular case involving allegations of sexual harass-
ment, Congress requires employers to conduct reasona-
bly prompt and thorough investigations of sexual har-
assment, to take action to stop actual sexual harassment
and even to prevent incipient sexual harassment.18 In-
deed, most employers, responding to this framework, act
extremely aggressively to prevent anything that could
come close to sexual harassment as defined under the
law. This, of course, is one bonafide reason why em-
ployers try to regulate workplace civility. All of the
foregoing is the framework that Congress intended to
create to best protect employees under Title VII, and the
majority’s blunderbuss approach interferes with those
goals. There is no sign, and certainly no justification
provided by the majority, that Congress intended to im-
pose the majority’s new universe of restrictions on an
employer trying to investigate and/or remedy violations
under Title VII or any other statute. As I have recently
stated in another context, Section 7 of the Act does not
confer authority on the Board to act as an “überagency”
without due regard for and proper accommodation of the
enforcement processes established by these other laws
and agencies.19 Indeed, if searching for some logical
policy presumption in this case, it would be best to begin
and end with the presumption that Congress and the var-
ious states, having populated the field with these laws in
spite of the Act’s existence, perceived Section 7’s sub-
stantive rights and the Board’s processes as inapplicable
to, or at least ill-suited to, effectuating the protections
intended by their enactment. Thus, in yet another respect,
the Board majority’s new rule encroaches on Congres-
sional prerogatives, and deserves no deference from the
courts.
I concur in the result, and with a partial overruling of
Holling Press. In other respects, I respectfully dissent, as
described above.
APPENDIX A
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
violated Federal labor law and has ordered us to post and
obey this notice.
18 The majority’s approach also undermines state law here. Some
states seek to prevent harassment independently of the federal re-
strictions. See, e.g. Cal. Gov’t Code sec 12940(h)– (k).
19 Plaza Auto Center, Inc., 360 NLRB 972, 987 (2014) (Member
Johnson dissenting).
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT maintain provisions in the summary and
complete versions of “Confidential Information Version
1-11,” provided to employees in the employee handbook,
New Hire CD, and on the intranet portal, prohibiting the
discussion of wages, hours, compensation, or working
conditions of other employees.
WE WILL NOT fail to notify you about the September
2009 and January 2011 changes to our solicitation and
distribution policy.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
set forth above, which are guaranteed you by Section 7
of the Act.
WE WILL rescind the portions of the summary and
complete versions of “Confidential Information Version
1-11,” provided to employees in the employee handbook,
New Hire CD, and on the intranet portal, prohibiting the
discussion of wages, hours, compensation, or working
conditions of other employees.
WE WILL furnish all of you with inserts for your em-
ployee handbook that (1) advise you that the unlawful
rules listed above have been rescinded, or (2) provide
lawfully-worded rules on adhesive backing that will cov-
er the unlawful rules; or WE WILL publish and distribute
to all current employees nationwide revised employee
handbooks that (1) do not contain the unlawful rules, or
(2) provide lawfully-worded rules.
WE WILL revise the unlawful rules listed above and any
characterizations or summaries of those rules found on
our intranet portal and on our New Hire CDs so that they
(1) do not contain the unlawful rules, or (2) provide law-
fully-worded rules.
WE WILL notify you that the solicitation and distribu-
tion policy described above was changed in September
2009 and January 2011.

FRESH & EASY NEIGHBORHOOD MARKET, INC.

The Board’s decision can be found at
http://www.nlrb.gov/case/28–CA–064411 or by using the
QR code below. Alternatively, you can obtain a copy of
the decision from the Executive Secretary, National La-

178 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
bor Relations Board, 1099 14th Street, N.W., Washing-
ton, D.C. 20570, or by calling (202) 273-1940.
APPENDIX B
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
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT maintain provisions in the summary and
complete versions of “Confidential Information Version
1-11,” provided to employees in the employee handbook,
New Hire CD, and on the intranet portal, prohibiting the
discussion of wages, hours, compensation, or working
conditions of other employees.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
set forth above, which are guaranteed you by Section 7
of the Act.
WE WILL rescind the portions of the summary and
complete versions of “Confidential Information Version
1-11,” provided to employees in the employee handbook,
New Hire CD, and on the intranet portal, prohibiting the
discussion of wages, hours, compensation, or working
conditions of other employees.
WE WILL furnish all of you with inserts for your em-
ployee handbook that (1) advise you that the unlawful
rules listed above have been rescinded, or (2) provide
lawfully-worded rules on adhesive backing that will cov-
er the unlawful rules; or WE WILL publish and distribute
to all current employees nationwide revised employee
handbooks that (1) do not contain the unlawful rules, or
(2) provide lawfully-worded rules.
WE WILL revise the unlawful rules listed above and any
characterizations or summaries of those rules found on
our intranet portal and on our New Hire CDs so that they
(1) do not contain the unlawful rules, or (2) provide law-
fully-worded rules.

FRESH & EASY NEIGHBORHOOD MARKET, INC.

The Board’s decision can be found at
http://www.nlrb.gov/case/28–CA–064411 or by using the
QR code below. Alternatively, you can obtain a copy of
the decision from the Executive Secretary, National La-
bor Relations Board, 1099 14th Street, N.W., Washing-
ton, D.C. 20570, or by calling (202) 273-1940.

William Mabry, Esq., for the General Counsel.
Joshua Ditelberg, Esq. (Seyfarth Shaw, LLP), for the Respond-
ent.
DECISION
STATEMENT OF THE CASE
JOEL P. BIBLOWITZ, Administrative Law Judge. This case
was heard by me on February 23, 2012, in Phoenix, Arizona.
The complaint, which issued on November 30, 2011,1 and was
based upon an unfair labor practice charge and an amended
charge filed on September 13 and November 23 by Margaret
Elias, an individual, alleges that since about March 13, the Re-
spondent has maintained in its employee handbook, and on its
intranet, overly broad and discriminatory rules regarding solici-
tation and confidential information. The complaint also alleges
that on about August 31 the Respondent, by Monyia Jackson,
its employee relations manager, and an admitted supervisor and
agent of the Respondent, promulgated and maintained an overly
broad and discriminatory rule prohibiting employees from ob-
taining statements from their coworkers regarding allegations
of sexual harassment; created an impression among its employ-
ees that their concerted activities were under surveillance by the
Respondent; threatened employees with unspecified reprisals
because they engaged in concerted activities; and interrogated
its employees about their concerted activities and the concerted
activities of other employees, all in violation of Section 8(a)(1)
of National Labor Relations Act (the Act).
I. JURISDICTION
The Respondent admits, and I find, that it has been an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
II. THE FACTS
There are two distinct allegations here. It is initially alleged
that the Respondent maintains overly broad and discriminatory
rules regarding solicitations and confidentiality. The Respond-
1 Unless indicated otherwise, all dates referred to here relate to the
year 2011.

FRESH & EASY NEIGHBORHOOD MARKET, INC. 179
ent defends that the confidentiality and solicitation provisions
have not been in effect since 2009 and 2011. The other allega-
tion relates to alleged protected concerted activities by Elias
and whether the Respondent attempted to unlawfully restrict
these activities.
It is alleged that the following rules, maintained in its em-
ployee handbook,2 are overly broad and discriminatory:

(1) Knowing When Solicitation is OK [at p. 13]

We like to avoid workplace disruptions and conflicts among
team members. So we prohibit solicitation of team members
during working time for any purpose.

We also prohibit the distribution of literature during working
time or on Company premises for any purpose3 . . . . And
keep in mind that violations of this policy could lead to disci-
plinary action.

(2) Confidentiality at fresh & easy [at page 19]

KEEP CONFIDENTIAL INFORMATION SECRET!

OUR CUSTOMERS, CONTRACTORS, AND VENDORS
PUT A LOT OF TRUST IN US. And we trust our team
members to keep information they may learn private. When
you work at fresh & easy, you may find out private infor-
mation about our company, other people, or other companies.
If you learn confidential information on the job, you can use it
for fresh & easy business purposes—and for no other reason.

WHAT IS CONFIDENTIAL INFORMATION?

Basically, it’s any information that isn’t generally available to
the public. Check our Complete Confidentiality Policies and
Procedures for a full definition.

It is also alleged that since at least on or about March 13, 2011,
the Respondent has maintained on its intranet at its facilities
across the United States, the following overly broad and dis-
criminatory rule regarding confidential information:

What is it?

Just so we’re all on the same page, here’s the Fresh & Easy
definition of “confidential information.” Confidential infor-
mation is information generally not known outside of the
company and is about Fresh & Easy, its business, or its busi-
ness or technical information. Here are some examples:
. . . .

• Information about our team members;
. . . .

When in doubt, you should treat information that meets this
general definition as confidential.

Bruce Churley, manager of the facility, and Michael Ander-
son, team leader at the facility, are admitted supervisors and
agents of the Respondent. Each of the witnesses at the hearing
testified about these provisions, as well as whether they were
2 The front page of the handbook states: “summary of policies.”
3 This rule was found to violate Sec. 8(a)(1) of the Act in Fresh &
Easy Neighborhood Market, 356 NLRB 546 (2011). The confidentiality
provision, also alleged here as unlawful, was not involved in that case.
aware of any change. Churley, who has been employed by the
Respondent since October 2009, testified that he has never been
given a copy of the Respondent’s employee handbook. If an
employee wished to access the Respondent’s rules, they can log
on to one of the computers at work and access the rules on the
intranet, on what is called the portal. When there is a change in
the rules, employees are usually notified of the change via
“team huddles,” where a manager meets with his team to dis-
cuss the rule changes. He testified that he does not recall team
huddles regarding the Respondent’s confidentiality or no distri-
bution rules. Anderson, who has been employed by the Re-
spondent since October 2010, testified that the rules set forth in
the employee handbook are really summaries of the Respond-
ent’s policies, whereas the full and complete policies are set
forth on the portal through the Respondent’s intranet. He has
seen the rules in the employee handbook, but he doesn’t know
if the policies set forth there have changed: “I know you can go
to the portal and get more information. . . .” When he is in-
formed of policy changes, he usually notifies the employees of
the changes in a huddle, but he has not been notified of any
policy changes and does not recall any huddles regarding
changes of policy in the employee handbook. When employees
are hired, they are given new hire CDs, which provide the em-
ployees with summaries of its policies, and these new employ-
ees are told that they should consult the Respondent’s portal for
the complete policies.
Victoria Giro, who was employed by the Respondent from
April 2010 to December, testified that she is not familiar with
the employee handbook because she accessed the information
from the portal. Employees can learn of policy changes through
huddles, or through the portal or, if they have a question about
policies, they can ask their manager. She has never had a hud-
dle concerning the Respondent’s no-distribution rule or its con-
fidentiality rule. Krista Yates, who has been employed by the
Respondent for 2-1/2 years, testified that the employees are
notified of changes in policy through printouts, or more com-
monly, “updates are online.” She does not remember receiving
notification of changes in the Respondent’s distribution rule, or
confidentiality rule, or of having a huddle about a change in
these rules. She also testified that the full and complete list of
the Respondent’s rules, and any changes in these rules, are on
the portal, which can be accessed at any time at any of the Re-
spondent’s stores.
Elias testified that she was given a copy of the employee
handbook in January containing the rules alleged above as un-
lawful. Since that time she has not been notified that there has
been a change in the distribution/solicitation policy or in the
confidentiality policy, nor has she participated in a huddle
where she was informed of changes in its policies. She under-
stood that a full listing of the Respondent’s policies was availa-
ble online, although, “I don’t know how to get to them on the
portal.” As to whether she knew that if she had a question, or
needed a clarification, about a policy, she could call the Re-
spondent’s HR hotline, she testified that she tried calling a few
times, but could never get through to them. Jackson, a/k/a
“MJ,” testified that new employees are given the Respondent’s
New Employee CD, which contains the employee handbook
summary of policies, and they are told by their manager that if

180 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
they want to access the complete and current rules, they do that
through the portal on the Respondent’s intranet. In addition,
employees with questions about the Respondent’s policies can
contact the Employee Relations Manager Jackson, directly, or
call the HR service center; both telephone numbers should be
listed in the breakroom. She testified further that the solicitation
policy and the privacy policy were changed in 2009, and the
confidentiality policy was changed in January 2011. She identi-
fied exhibits that effected the changes in these policies, includ-
ing a memo, “District Message” from HR entitled: “Solicitation
and Distribution—Policy Clarification,” dated September 2,
2009, stating:

We would like to inform our team members on the recent up-
dates we have made to our Solicitation and Distribution Poli-
cy. Key changes that are important for you to know include

We have changed the language to clarify our policy and how
we apply it. It is important for you to note that distribution of
any material is prohibited during working time.

Fresh&easy also prohibits the distribution of literature at any
time in any work area for any purpose.

Working time includes that of the employee doing the solicit-
ing and distributing and the employee to whom the soliciting
and distributing is directed.

Working time does not include meal periods, break periods,
or any other unspecified periods during the workday when
employees are properly not engaged in performing work
tasks.

To all Store Managers: Please ensure that the updated policies
(attached) are posted on your notice board and the key mes-
sages covered in your Team Huddles. Additionally, please let
your teams know that the Complete policy has been updated
for their review online on the fresh&easy intranet.

Once again, as with any policy or process, it is important that
you consult with your area Employee Relations Manager and
your District Manager. They are here to support you and pro-
vide you with builds to help manage issues and concerns fair-
ly and consistently.

Please ensure that your teams follow the process of signing
the below acknowledgement that they re aware of the policy
change and have been briefed.

Thank you gain for providing your team the information they
need to do their job!

Jackson testified that the store managers were to read this to
employees during huddles. She also identified a memo dated
January 2011 entitled “Solicitation and Distribution Policy” as
the Respondent’s policy currently in effect. It states, inter alia:

We like to avoid workplace disruptions and conflicts among
team members. So we prohibit solicitation (solicitation can be
any written or verbal request asking for donations, help or
support for any cause) for any purpose in any selling areas of
the facility during business hours or in working areas when
associates are on working time. “Working time” refers to the
time of the workday when you are expected to be performing
your job duties. If you’re a fresh&easy team member, don’t
solicit when you are supposed to be working and don’t solicit
someone else who is supposed to be working.

We also prohibit the distribution of literature during working
time or at any time in a work area for any purpose.

“Working time” refers to that portion of any work day during
which the employee soliciting or distributing and/or the em-
ployee being solicited/receiving distributions is supposed to
be performing any actual job duties. It does not include other,
duty-free periods of time, such as lunch or break periods, or
before or after both employees’ work.

“Working areas” refers to areas of fresh&easy property where
employees normally perform work, or where work is in fact
being performed. It does not include, e.g.,employee break
rooms.

We also do not allow anyone who is not a fresh&easy team
member to solicit or distribute literature on any property that
we own, lease or use. And keep in mind that violations of this
policy could lead to discipline- they could even cost you your
job.

She testified that this was to advise the managers of the policy
change and was available on the Respondent’s portal as of Sep-
tember 2009. Jackson also identified a “Summary Version Con-
fidential Information” and a “Complete Version Confidential
Information,” which were sent to all of its managers. Each one
states it is “Version 1-11” and refers to the Respondent’s Con-
fidential Information Policy stating, basically, that it is infor-
mation not generally known or accessible to the public and
includes all information obtained by employees while at work
and that the Respondent “expects” this information to be kept
confidential. It also states:

What is confidential information?

Basically, it’s any information that isn’t generally available to
the public. (It does not include sharing information about your
own wages, hours, compensation, or working conditions with
others if you decide to do so.) Check out the Complete Con-
fidential Information Policies and Procedures for a full defini-
tion.

Jackson testified that these confidentiality rules have been in
effect since January 2011. On cross-examination, she testified
that although managers are supposed to post these changes on
the bulletin board and to have team huddles and to distribute
these new rules to all employees, the Respondent does not re-
quire its managers to record these team huddles and the distri-
bution of these rules to all employees.
The other allegation here relates principally to Elias, who has
been employed by the Respondent for over 1-1/2 years as a
customer assistant; Churley is her supervisor. On about August
24, she asked Churley if she could participate in TIPS training,
which is related to the sale of alcoholic beverages in the store,
and he told her to write a note on the whiteboard in the employ-
ee breakroom to remind him of her request. As per his request,
she wrote a note on the whiteboard referring to the TIPS train-
ing that they had discussed. When she went to the employee
FRESH & EASY NEIGHBORHOOD MARKET, INC. 181
breakroom on the following day, she saw that her note on the
whiteboard had been altered in that the word “TIPS” had been
changed to “TITS,” and a peanut or a worm was drawn on the
board. She testified that she tried not to let it bother her, but
soon changed her mind and told Anderson that she wanted to
file a harassment claim, but “he didn’t say anything.” Because
electronic equip-ment is not allowed, she could not take a pic-
ture of the altered whiteboard, so she copied on a piece of paper
what was on the board and made a “statement.” She testified
that she added on this document; “Someone changed the Board
to “TITS” instead of TIPS and put a worm pissing on my name.
I take this as sexual harassment. This has been on the Board
since I got here at 2PM.”4 She then asked Anderson to sign the
statement: “He just signed it. He didn’t even read it, He didn’t
even ask me. He just signed it.” She testified that she did not
threaten or attempt to intimidate him into signing the statement.
Yates was standing next to Anderson and she asked Yates if she
wanted to sign as a witness: “I said you don’t have to . . . . if
you want to, you could, just to what you observed on the board.
And so, she signed it.” She testified that she did not threaten or
scream at Yates. Later that day she saw Giro and she explained
the situation to Giro in the same tone of voice and she signed it.
Neither Anderson, Yates, nor Giro said that they did not want
to sign the statement; “they just asked what it was.” She also
testified that the sole purpose of it was to be a witness state-
ment; it was neither a petition nor a joint complaint of every-
body signing, and she did not make any change to the statement
after they signed it. On August 26, Churley told her that the
situation had been reported to Jackson. On cross-examination,
Elias was asked if she expected that Jackson would conduct an
investigation:

A. Well, at first, I understood that there was going to
be an investigation. I honestly don’t know the procedures
. . .
Q. What was your expectation?
A. My expectation was to report it.
Q. Did you expect that there would then be an investi-
gation?
A. I didn’t really have any expectations beyond report-
ing it.
Q. Did you want there to be an investigation?
A. I didn’t want people to write things like that on the
board.
Q. Did you want there to be an investigation?
A. I don’t know, I don’t know. . . that wasn’t my pur-
pose, no. My purpose was to report it.
Q. What did you expect would happen after it was re-
ported.
A. That management would do what they were sup-
posed to do.
Q. Which would be to conduct an investigation, cor-
rect?
A. If that’s what they do, I don’t know. I’m not versed
on it.
4 Anderson, Yates, and Giro testified that when Elias asked them to
sign her statement, only the words from the whiteboard were on the
statement, not any comment of hers.

Churley testified that on August 26, he had a discussion with
Elias about her request to participate in the options training
program, where the company trains people who have shown the
ability to lead and are motivated to become team leaders. Chur-
ley told her that he didn’t feel that she was ready for the pro-
gram, and that she had some skills that needed further devel-
opment. Elias became “very angry, yelling,” saying that she felt
that she deserved to be in the program and that his predecessor
had promised her the position; Giro testified that she overheard
Elias yelling at Churley about the options program. Later that
day, Churley received a call from Anderson saying that Elias
wanted to file a sexual harassment complaint because of the
alteration of her note on the whiteboard, and Churley told him
to take a picture of the altered note. When he returned to the
store he met with Elias and again told her that he was not ready
to put her in the options program, and she started yelling again
and said that she was too upset to work and wanted to go home,
and he told her to go home. He saw the picture of the white-
board, which stated: “Bruce, Could you please add 4 hours for
city meeting. Could you please sign me up for TITS 9/10/11?
Maggie Thank You.” There was a picture drawn next to her
name which resembles something urinating. As there is a video
camera in the breakroom, Churley then viewed the video and
saw that it was employee Gary Hamner who altered the mes-
sage on the board, and he reported this to Jackson, and told her
that Elias was upset about the situation. He then met with An-
derson who told him that Elias obtained statements from him
and others at the store, and that she was “very insistent that they
sign.” Anderson said that he signed her statement as well, but
he felt forced to do so. Churley also spoke to Yates and Giro,
who both said that they didn’t want to sign Elias’ statement, but
they felt forced to do so, and signed so that the situation would
calm down. About a week later, Jackson called the store and
told Churley that she wanted to speak to Elias, and he gave
Elias the phone and told her that Jackson wanted to speak to
her. On August 27, Churley sent an email to Jeff Lang, the
district manager, and Jackson, discussing the incident. He stat-
ed that Anderson, Yates, and Giro were “confronted” by Elias,
who “demanded” that they sign the witness statement involving
the whiteboard alteration, and that Yates and Giro felt intimi-
dated into signing something that they did not wish to be a part
of. The email continued that later that evening Elias approached
him and wanted to continue discussing the options program,
and he repeated that he was not ready to include her in the pro-
gram. She began raising her voice until he was finally able to
end the conversation by telling her that she could go home.
Anderson testified that on about August 26, Elias asked him
to come into the breakroom to see what somebody had written
over her message on the whiteboard and said that she wanted to
file a sexual harassment charge and wanted the HR telephone
number. Anderson replied, “What for? I don’t know where this
is coming from” and Elias asked, “What’s wrong with you?”
and “stormed out of the room angrily.” Anderson then called
Churley, told him of what occurred and that Elias wanted to file
a sexual harassment complaint, and Churley told him to take a
picture of the message on the whiteboard. Later that evening,
Elias approached him with a drawing that she made of the
whiteboard, and asked him to sign it. The document contained

182 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
only the two sentences that Elias had initially written on the
board, with the alteration and the picture next to it. There was
nothing else on the paper when she showed it to him. He testi-
fied that he told her that he didn’t need to sign the statement
because he would not lie about what was on the board, but Elias
was very angry and loud, and told him that he had to sign the
document, and he signed it with the hope that if he did so she
would calm down and not cause a scene in the store. On about
August 30, Jackson called him and said that she wanted a
statement from him, Yates, and Hamner.
Giro, who was employed by the Respondent from April 2010
to December, testified that Elias was upset about the alteration
on the whiteboard, and Giro told her that although she hadn’t
noticed the wording, she agreed that it was inappropriate, but “I
don’t think it would have been a big deal if it happened to me,
but no, I wouldn’t have liked it. But I did feel like management
should’ve been notified so that they could see who did that and
take necessary . . . disciplinary action.” Elias asked her to sign a
paper that duplicated what was written on the whiteboard, but
she never told Giro that she wanted to file a complaint about it.
She testified that, although Elias did not “force” or “threaten”
her to sign the statement, the discussion with Elias was “very
heated” and “uncomfortable,” and she signed because the dis-
cussion was taking place in front of the customers and “I want-
ed to get out of there.” Her purpose in signing the statement
was to be a witness as to what was on the whiteboard; she did
not view it as a complaint or a petition to the Company. On the
following day she told Churley that although the change on the
whiteboard was inappropriate, she felt intimidated into signing
the statement, and that Elias should have given him an oppor-
tunity to handle the situation, rather than making it into such a
“big issue.”
Yates testified that on about August 26, Elias asked her to
sign a statement stating only what was on the whiteboard. Be-
fore Elias asked her to sign the statement, she saw Elias asking
Anderson to sign: “He was backed into a corner and she was in
his face.” She was “kind of yelling” and “agitated.” Shortly
thereafter, Elias asked her to sign the statement, and she said
that she was not comfortable being a witness to it, and did not
want to sign it. Elias returned later and again asked her to sign,
but, again, Yates said that she did not feel comfortable signing
it. She eventually signed the statement because: “I was kind of
freaked out. She’d been in my face, she was getting more ag-
gravated, more hostile. I felt bullied . . . I figured the fastest
way to diffuse the escalating situation was to sign and deal with
it later.” On the following day she called the Respondent’s
“hotline” to the HR department, filed a complaint against Elias
for “bullying” her into signing the statement, and told Jackson
about her confrontation with Elias the prior day and, at Jack-
son’s request, she prepared an affidavit setting forth what oc-
curred between she and Elias. A few days later, Churley asked
her if there was anything that she wanted to talk to him about
and she said that there was. He asked her about the document
that she signed for Elias and whether there was space on that
document for Elias to write something else, and Yates said that
there was.
As stated above, on about August 31, Churley handed Elias a
phone and said that Jackson wanted to speak to her; he told her
to take the phone into the breakroom. She testified that Jackson
began the conversation by asking if she knew Hamner, and she
said she did, that she works with him. Jackson said that Hamner
had filed a complaint against her alleging that on August 26,
upon arriving at work, she said, “F—k you” to him. Elias said
that it was a lie, that she would not use profanity to anyone, and
Jackson said that his claim was under investigation. Elias then
said that she should view the videotape and she could see that
she never said it, and Jackson said, “Don’t tell me how to do
my job, and I would not be able to see what words were said.”
Elias told her that, at least, she could see that she did not say
anything to Hamner. Jackson then told her that she was wrong
in getting statements from employees, that it violated company
policy, and Elias responded that she didn’t get statements, that
she just asked the employees to sign what was on the white-
board. Jackson then asked Elias to prepare two statements for
her: one in response to the complaint that she cursed at
Hamner, and the other in regard to her complaint. She only
submitted one affidavit, a statement that she submitted that is
contained in a September 3 email to Jackson, relating solely to
her complaint. On October 13, she received an email from
Jackson on the subject of: “sexual based harassment
8/26/2011,” stating:

We are reporting on our investigation of the allegations you
raised in your August 26 complaint regarding the white com-
munications board. Our investigation has included reviewing
the information provided by you, conducting employee inter-
views, and reviewing other available information.

Based upon our investigation, we have concluded that inap-
propriate conduct did occur. As a result, we have taken cor-
rective action that we expect will prevent any further inappro-
priate conduct. If our expectation proves wrong, it is especial-
ly important that you notify us of that immediately. As in this
case, we will investigate any additional concerns in a prompt
and thorough manner.

The Company is committed to protecting you from retaliation
as a result of your report and our investigation. We have in-
formed the person in question and others that any retaliation is
absolutely prohibited. Please call immediately if you feel that
you are being subjected to retaliation in any form.

Jackson testified that she was copied on the August 27 email
from Churley to Lang reciting the events of the prior day, in-
cluding the incidents where Elias got Anderson, Yates, and
Giro to sign her statement. She learned from Churley, that
Yates, Anderson, and Hamner would all be working on August
30, which would be the first time that they would be available
for interviews. On August 29, she received a complaint from
Yates regarding Elias’ actions toward her when she requested
that Yates sign her statement. She initially interviewed Yates,
who told her that Elias was yelling and screaming at her to sign
the statement, even though she did not want to participate in it,
and she said there was room on the paper for Elias to add some-
thing if she wished to do so. Jackson’s investigation did not
find that Elias threatened Yates. Jackson then interviewed An-
derson who told her that Elias demanded that he sign the paper,
and he did so only because she was getting louder in her de-
FRESH & EASY NEIGHBORHOOD MARKET, INC. 183
mands and he was concerned that the situation would escalate
further. She also spoke to Hamner, whose complaint was found
to be without merit, and who was disciplined for altering the
words on the board. Giro was on vacation and was unavailable.
She next spoke to Elias, first about Hamner’s complaint, and
then about hers. She asked Elias why she felt that she had to
obtain the signatures of the employees to her statement and she
said that it was for her own protection. Jackson then testified:

I asked her not to obtain any further statements so that I could
conduct the investigation. And I told her that she could talk to
the employees and ask them to be witnesses for her, but in re-
lation to this investigation, to allow me to complete it.

As to the reason for this request, she testified: “Because she
made the employees uncomfortable.” She did not tell Elias that
she had violated any company policy, she did not restrict her
right to bring harassment complaints in the future, and Elias
was not disciplined, or threatened with discipline, for any of her
actions involving the altered whiteboard.
III. ANALYSIS
It is initially alleged that the Respondent’s solicitation rule
(also referred to as the distribution rule), as well as its confiden-
tiality rule, are overly broad, discriminatory, and violate Sec-
tion 8(a)(1) of the Act. The Respondent defends that even if
they did violate the Act (and the Board has found that the prior
solicitation rule did violate Section 8(a)(1) of the Act, and that
the revision of the rule was not adequately disseminated to the
employees) these rules have been rescinded and new (and law-
ful) rules have been instituted in their place in September 2009
and January 2011. Jackson identified the memo to district man-
agers dated September 2, 2009, that was to be read to employ-
ees in team huddles, as well as the Respondent’s new Solicita-
tion and Distribution Policy, as set forth in a memo dated Janu-
ary 2011 that was available to all employees on the Respond-
ent’s portal. I found Jackson to be a credible and believable
witness, and credit her testimony that the September 2009
memo was to be read to the employees, and the new solicitation
rule was posted on the Respondent’s portal. I also find that by
defining “working time” the Respondent corrected the problem
with its prior rule, and that this new rule is a lawful one. How-
ever, although Jackson testified that this new rule was to be
read to the employees at team huddles, this, apparently, was not
done, at least at the facility involved here. There was no testi-
mony that any of the employees, Churley or Anderson was
specifically made aware of the changes in these rules in 2009
and 2011, and they all testified that they could not recall any
team huddle where the employees were notified of the change
in the solicitation rule. Although I have credited Jackson’s tes-
timony that the rule has been changed, and that the new rule
does not violate the Act, I find that the Respondent’s failure to
notify its employees of the change violated Section 8(a)(1) of
the Act.
I also credit Jackson’s testimony that the Respondent
changed its confidentiality rule in January 2011. Although the
witnesses also testified that they do not recall any team huddles
where they were told about this change, I need not decide that
because I find that the Respondent’s rule change did not fully
correct the problem with the rule. While prohibiting sharing of
information not generally available to the public, it excepts
“sharing information about your own wages, hours, compensa-
tion, or working conditions with others if you decide to do so.”
While, initially, appearing to be a satisfactory change, and one
that would allow employees to fully participate in protected
concerted activities, a fuller review reveals a significant short-
coming. For employees to be able to truly discuss terms and
conditions of employment, they must be able to fully discuss
not only their terms and conditions of employment, but the
terms of employment of their fellow employees, even those
who don’t wish to personally discuss it, and Respondent’s re-
vised rule appears to prohibit this full discussion, while allow-
ing the employees to discuss their terms of employment. I
therefore find that this rule could inhibit employees in the exer-
cise of their Section 7 rights, and therefore violates Section
8(a)(1) of the Act. Labinal, Inc., 340 NLRB 203, 210 (2003);
NLS Group, 352 NLRB 744, 755 (2008).
The remaining allegations relate to the whiteboard alteration
on August 26, and the resulting telephone conversation between
Jackson and Elias on August 31. It is alleged that in that con-
versation, Jackson orally promulgated and maintained an overly
broad and discriminatory rule prohibiting employees from ob-
taining statements from coworkers regarding sexual harassment
allegations; created an impression among its employees that
their concerted activities were under surveillance by the Re-
spondent; threatened employees with unspecified reprisals be-
cause they engaged in concerted activities with other employ-
ees; and interrogated its employees about their concerted activi-
ties and those of their fellow employees. There is a major cred-
ibility conflict between Elias, and Anderson, Yates, and Giro.
Elias testified that they did not need any encouragement to sign
her statement; they signed it without complaint and, for Ander-
son, without even reading it. The testimony of Anderson, Yates,
and Giro is substantially different. Anderson testified that Elias
was very loud and angry when he initially refused to sign, and
he signed the statement only to calm her down and prevent the
situation in the store from escalating. Giro likewise testified
that Elias’ requests to her were very heated and uncomfortable,
and she also signed because their discussion was taking place in
front of customers and she wanted to end it. Yates testified that
she saw Elias yelling and backing Anderson into a corner when
she asked him to sign the statement, and that she was “in his
face.” She was getting aggravated and hostile when she asked
Yates to sign, and was in her face as well. Yates was “freaked
out” and signed because she felt that was the fastest way to end
“the escalating situation.” This is not a difficult determination.
Anderson, Giro, and Yates all appeared to be testifying in a
honest and truthful manner and had no reason to lie about the
situation. In addition, their testimony is supported by the credi-
ble testimony of Churley and Giro that when he told Elias that
he didn’t feel that she was ready for the options training pro-
gram, she became angry and yelled at him. Clearly, Elias was
an easily excitable person when something unpleasant oc-
curred, or when others did not accede to her requests, and her
reaction to Anderson, Giro, and Yates was very similar to her
earlier reaction that day to Churley. In addition, I found that, at
times, Elias was evasive in her testimony in response to ques-
184 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tions from counsel for the Respondent and, finally, I find it
highly unlikely that Anderson, an admitted supervisor, would
sign her statement without reading it. Further, based upon their
testimony, I find that when they signed her statement, it set
forth solely the wording on the whiteboard on August 26 and
that after obtaining their signatures Elias added additional
comments to the statement. I therefore discredit Elias in this
regard, and credit the testimony of Anderson, Giro, and Yates
rather than her testimony.
On August 31, Jackson called Elias while she was at the
store. Prior to this call, she saw the email from Churley to Lang
discussing what occurred when Elias asked Anderson, Giro,
and Yates to sign her statement, she received a complaint from
Yates about the incident with her, and she interviewed Ander-
son, Yates, and Hamner; Giro was on vacation. Jackson testi-
fied that she told Elias not to obtain any further statements so
that she, Jackson, could conduct the investigation, although she
could talk to the employees about the incident and ask them to
be witnesses for her, but to allow her to complete the investiga-
tion. She said this because Elias made the employees uncom-
fortable. Elias testified that Jackson told her that she was wrong
in obtaining statements from employees, that it violated com-
pany policy, and asked her to prepare two statements for her:
one regarding Hamner’s complaint about her, and the other
regarding her complaint. Without much difficulty, I credit Jack-
son’s testimony as it comports with the evidence here and is
more reasonable and believable than Elias’ testimony. At the
conclusion of her investigation Jackson determined that inap-
propriate action did occur (for which Hamner was disciplined)
and if there was any further inappropriate conduct or retalia-
tion, Elias was to report it immediately to the Company.
In my view, Jackson’s request to Elias not to take any further
statements from employees was a reasonable one, and not an
unlawful one. Obviously, a bare statement to an employee not
to take statements from fellow employees in support of her/his
position on a work-related issue, could violate Section 8(a)(1)
of the Act. However, I cannot look at the statement in isolation;
I must look at the surrounding facts as well. “In determining
whether an employer’s statement violates Section 8(a)(1), the
Board considers the totality of the relevant circumstances.”
Saginaw Control & Engineering, Inc., 339 NLRB 541 (2003).5
As obnoxious and puerile as the alteration on the whiteboard
was, it appears that the other employees either didn’t notice the
change or didn’t take offense at it. Elias’ outrage at the altera-
tion was personal and was not shared by the other employees.
When she asked Anderson, Giro, and Yates to sign her state-
ment, none of them wished to do so and each of them signed
only because Elias was loud and angry, and to calm her down
and prevent a further commotion in the store. Not only was
Elias’ attempt to get Anderson, Giro, and Yates to sign her
statement annoying to them, it was disruptive to the store’s
operation. In Five Star Transportation, Inc., 349 NLRB 42, 43
(2007), citing Meyers Industries (Meyers I), 268 NLRB 493
(1984), and Salisbury Hotel, 283 NLRB 685 (1987), the Board
5 See Caesar’s Palace, 336 NLRB 271 (2001), and Phoenix Transit
System, 337 NLRB 510 (2002), cited in the Respondent and the Gen-
eral Counsel’s briefs.
stated that concerted activities within the meaning of the Act
encompasses conduct “engaged in with or on the authority of
other employees, and not solely by and on behalf of the em-
ployee himself.” In Holling Press, Inc., 343 NLRB 301, 302
(2004), the Board stated: “In order for employee conduct to fall
within the ambit of Section 7, it must be both concerted and
engaged in for the purpose of ‘mutual aid or protection.’” Fur-
ther, in language that could apply to the facts here, the Board
stated that the charging party’s “goal was a purely individual
one. In addition, there is no evidence that any other employee
had similar problems—real or perceived—with a coworker or a
supervisor.” I find that Elias was not engaged in concerted ac-
tivities for the purpose of the employees’ mutual aid and pro-
tection at that time. The Respondent already had a copy of her
statement and further statements would not add anything to the
investigation. I therefore find that Jackson’s request to Elias not
to take any further statements from employees so that she
(Jackson) could conduct the investigation was not meant to
deprive her of her right to engage in concerted activities, as
Jackson told her that she could speak to employees about the
subject. Rather, it was an attempt to prevent further disruptions
at the store. I note that the Respondent did not take any action
against Elias as a result of her actions here. In fact, at the con-
clusion of Jackson’s investigation, it was found that Hamner’s
complaint had no merit, and he was disciplined for his altera-
tion of the whiteboard, and was warned about any future retal-
iation. I therefore recommend that this allegation paragraph
4(d)(1) be dismissed.
The remaining allegations also relate to Jackson’s telephone
conversation with Elias on August 31. Stated simply, I can find
no merit to any of these allegations and recommend that they
(pars. 4(d)(2), (3), and (4)) be dismissed as well.
CONCLUSIONS OF LAW
1. The Respondent has been an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
2. The Respondent violated Section 8(1)(1) of the Act by
maintaining an overly broad and discriminatory confidentiality
rule in its employee handbook, on its portal, and on its New
Employee CDs.
3. The Respondent violated Section 8(a)(1) of the Act by
failing to properly notify all of its employees of the change in
its solicitation/distribution rule since about 2009.
4. The Respondent did not violate the Act as further alleged
in the complaint.
THE REMEDY
Having found that the confidentiality provision contained in
the employee handbook and the portal violates the Act, I rec-
ommend that the Respondent be ordered to rescind this provi-
sion and to notify all employees electronically that this provi-
sion has been rescinded and will no longer be a part of the em-
ployee handbook, the new employee CD, or the Respondent’s
portal. Although I have found that the Respondent changed its
solicitation and distribution policy to a lawful policy, I have
also found that the employees were not adequately informed of
this change. I therefore recommend that the Respondent be

FRESH & EASY NEIGHBORHOOD MARKET, INC. 185
ordered to notify all of its employees, electronically, of the
change and to specifically note the change on its portal. I also
recommend that Respondent be ordered to post the Board no-
tice at each of its store locations.
[Recommended Order omitted from publication.]