Grass Valley Grocery Outlet

National Labor Relations Board - Board Decisions

Mar 28, 2003

338 N.L.R.B. 877 (N.L.R.B. 2003)

GRASS VALLEY GROCERY OUTLET 877
David G. Cubitt and Brenda Cubitt, a California
Partnership d/b/a Grass Valley Grocery Outlet
and United Food & Commercial Workers Un-
ion, Local 588, United Food & Commercial
Workers International Union, AFL–CIO. Cases
20–CA–30479–1 and 20–RC–17087
March 28, 2003
DECISION, ORDER, AND DIRECTION OF
THIRD ELECTION
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND WALSH
On October 30, 2002, Administrative Law Judge Ge-
rald A. Wacknov issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, the
General Counsel filed cross-exceptions and a supporting
brief, and the Respondent, the General Counsel, and the
Charging Party filed answering briefs. The Respondent
also filed reply briefs.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions and
to adopt the recommended Order as modified.2

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
No exceptions were filed to the judge’s dismissal of complaint alle-
gations that the Respondent sought to influence its employees’ votes in
the rerun election by granting them Christmas bonuses in various
amounts, providing them with a free bar tab at the annual Christmas
party, and by promising employee Cox a 50-cent an hour wage in-
crease.
We agree with the judge that the Respondent interrogated employee
Cox in violation of Sec. 8(a)(1) by the statement made to him by its
agent Dorn that “I hear that you’re voting for the union . . . I heard from
the boys, the boys that used to work there [that you are] a strong leader
in the union.” The statement, as properly found by the judge, consti-
tuted an unlawful effort to elicit from Cox whether he supported the
Union. See, e.g., Clinton Electronics Corp., 332 NLRB 479, 480
(2000). Further, under the Board’s test for determining the lawfulness
of interrogations, the statement was unlawful for the additional reasons
that Cox was not an open union supporter and, in fact, attempted to
conceal his union support as evidenced by his reply to Dorn’s statement
that he was a strong union leader: “I don’t know where you heard this
from, because I didn’t repeat it to nobody.” Rossmore House, 269
NLRB 1176 (1984), affd. sub nom. Hotel Employees Local 11 v. NLRB,
760 F.2d 1006 (9th Cir. 1985).
In cross-exceptions the General Counsel requests that the Board
should additionally find that Dorn’s statement constituted an impres-
sion of surveillance violation. Members Liebman and Walsh decline
this request. In their view, the General Counsel, in orally amending the
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, David G. Cubitt and Brenda
Cubitt, a California Partnership, d/b/a Grass Valley Gro-
cery Outlet, Grass Valley, California, its officers, agents,
successors, and assigns, shall take the action set forth in
the Order as modified.
1. Substitute the following for paragraph 1(b).
“(b) Engaging in surveillance of employees’ meetings
or discussions with union representatives in the parking
lot during nonwork time, or at other times and places
where such discussions may lawfully be conducted.”
2. Substitute the following for paragraph 2(a).
“(a) Within 14 days after service by the Region, post at
its facility in Grass Valley, California, copies of the at-
tached notice marked “Appendix.”16 Copies of the no-
tice, on forms provided by the Regional Director for Re-
gion 20, after being signed by the Respondent’s author-
ized representative, shall be posted by the Respondent
and maintained for 60 consecutive days in conspicuous
places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not al-
tered, 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 facil-
ity involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice to all current employees and former employees em-

complaint at trial, did not seek separate findings of unlawful interroga-
tion and impression of surveillance for the statement made by Dorn.
Rather, the amendment was phrased in alternative language and, con-
sistent with that language, Members Liebman and Walsh, having found
the statement constitutes unlawful interrogation, deem it unnecessary to
find an additional violation stemming from the same statement.
Chairman Battista notes that the General Counsel alleged that the con-
duct constituted interrogation “and/or” an impression of surveillance.
Thus, in the Chairman’s view, it is at least arguable that the General
Counsel was alleging, in the alternative, that the conduct constituted
two separate violations or at least one violation. However, even assum-
ing that this is what was intended, Chairman Battista concludes that
Dorn’s statement does not constitute an impression of surveillance
violation.
2 The General Counsel, in cross-exceptions, contends that the judge
erred in failing to specify in his recommended Order that the conduct
engaged in by the Respondent’s Doug Cubitt in the store parking lot
constituted unlawful surveillance. We find merit in the cross-
exception. The parking lot incident was alleged in the complaint as
unlawful surveillance, the judge’s factual findings support this viola-
tion, and indeed, the judge found that the Respondent violated Sec.
8(a)(1) “as alleged.” Therefore, we shall modify the judge’s recom-
mended order accordingly and issue a new notice to employees. We
shall also modify the recommended Order to conform to Excel Con-
tainer, Inc., 325 NLRB 17 (1997).
338 NLRB No. 128
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 878
ployed by the Respondent at any time since December
14, 2001.”
3. Substitute the attached notice for that of the admin-
istrative law judge.
IT IS FURTHER ORDERED that the election in Case 20–
RC–17087 shall be set aside and this case is remanded to
the Regional Director of Region 20 to conduct a third
election at a time and place to be determined by him.
[Direction of Third Election omitted from publication.]

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities

WE WILL NOT question you regarding your interest in
or activity on behalf of United Food and Commercial
Workers Union, Local 588, or any other labor organiza-
tion.
WE WILL NOT engage in surveillance of your meetings
or discussions with union representatives in the parking
lot during nonwork time or at times or places where such
meetings or discussions may lawfully be conducted.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the forego-
ing rights guaranteed under Section 7 of the Act.
GRASS VALLEY GROCERY OUTLET

Jonathan J. Seagle, Esq., for the General Counsel.
Michael P. Oates Esq. (Hunton & Williams),of Richmond,
Virginia, for the Respondent.
Bob Tiernan, Esq., of Lake Oswego, Oregon, for the Respon-
dent.
Timothy Sears, Esq. (Davis, Cowell & Bowe, LLP), of San
Francisco, California, for the Union.
DECISION
STATEMENT OF THE CASE
GERALD A. WACKNOV, Administrative Law Judge. Pursuant
to notice of hearing in this matter that was held before me in
Grass Valley, California, on July 2, 2002. The original charge
was filed by United Food & Commercial Workers Union, Local
588, United Food & Commercial Workers International Union
AFL–CIO (Union) on December 18, 2001. The Union filed a
first amended charge on March 15, 2002. Thereafter, on March
19, 2002, the Regional Director for Region 20 of the National
Labor Relations Board (Board) issued a complaint and notice of
hearing alleging violations by David G. Cubitt and Brenda
Cubitt, a California Partnership, d/b/a Grass Valley Grocery
Outlet (Respondent) of Section 8(a)(1) of the National Labor
Relations Act, as amended (Act). The Respondent, in its an-
swer to the complaint, duly filed, denies that it has violated the
Act as alleged.
Pursuant to a representation petition in Case 20–RC–17087
filed by the Union on February 28, 1995, and a Decision and
Direction of Election issued by the then Acting Regional Direc-
tor on April 14, 1995, an election was on June 12, 1995. The
Union filed timely election objections, and these objections,
along with certain challenged ballots, were consolidated for
purposes of hearing before an administrative law judge with a
previously issued complaint and notice of hearing issued by the
Region in Cases 20–CA–26685 and 20–CA–26812. The hear-
ing was held between April and December 1997, and the
administrative law judge issued his decision on December 31,
1998. Thereafter, on December 15, 2000, the Board issued its
decision in Grass Valley Grocery Outlet, 332 NLRB 1449, and,
finding inter alia that certain of the election objections were
meritorious, set aside the election and remanded the matter to
the Regional Director for the purpose of conducting a rerun
election. By letter dated November 29, 2001, the Regional
Director advised the parties that the second election would be
conducted on December 19, 2001. This election was conducted
as scheduled, and the tally of ballots reflects that 16 cast votes
for the Union, 20 cast votes against the union, and that the 3
challenged ballots were not determinative. The Union again
filed charges and election objections, and on April 26, 2002, the
Regional Director issued a report on objections in which he
consolidated the election objections with the aforementioned
previously issued unfair labor practice complaint for hearing
before an administrative law judge.
The parties were afforded a full opportunity to be heard, to
call, examine, and cross-examine witnesses, and to introduce
relevant evidence. Since the close of the hearing, a letter/brief
has been received from counsel for the General Counsel (Gen-
eral Counsel), and counsel for the Respondent and Union have
submitted briefs. On the entire record, and based upon my
observation of the witnesses and consideration of the briefs
submitted, I make the following.
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a California partnership with a place of
business located in Grass Valley, California, where it is en-
gaged in the operation of a retail grocery store. In the course
and conduct of its business operations the Respondent annually
derives gross revenues in excess of $50,000, and annually pur-
chases and receives at its Grass Valley, California facility
products, goods, and materials valued in excess of $50,000
GRASS VALLEY GROCERY OUTLET 879
which originate from points outside the State of California. It
is admitted and I find that the Respondent is and at all material
times has been an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
It is admitted and I find that at all material times the Union
has been a labor organization within the meaning of Section
2(5) of the Act.
III. ALLEGED UNFAIR LABOR PRACTICES AND ELECTION
OBJECTIONS
A. Issues
The principle issues in this proceeding are whether the Re-
spondent violated Section 8(a)(1) of the Act by unlawful inter-
rogation and/or creating the impression of surveillance, by
promising a raise to employees, and by granting a Christmas
bonus and other benefits to employees. The election objections
that remain in issue are identical to the aforementioned unfair
labor practice allegations.1
B. Facts and Analysis
By letter dated November 29, 2001, the parties were offi-
cially notified by the Regional Director that the rerun election
would be conducted on December 19, 2001. The Respondent’s
annual Christmas party was held on December 16, 2001. I
credit the testimony of David Cubitt, an owner of the Respon-
dent, that he scheduled the annual Christmas party sometime
during the first part of October, well before the time he learned
that there was to be a rerun election.2 And further, that when he
scheduled the party he advised the restaurant where the party
was to be held and that there would be an open bar for a 1-hour
period prior to the dinner. Moreover, I credit Cubitt’s testi-
mony that he decided upon the amount of the annual Christmas
bonus on November 21, 2001, prior to the time he learned that
there was to be a rerun election; thus, on November 21, Cubitt
sent the following note to his accountant:

It’s Christmas Bonus time again, and Brenda and I decided to
give each full time employee $125.00 and every part-timer
$50.00. As we did last year, please prepare the Separate
checks for the Christmas party (December 16th).

It is alleged in the complaint that the Respondent violated
Section 8(a)(1) of the Act by granting its employees “a $100
Christmas bonus.” The record evidence shows that the Re-
spondent had granted Christmas bonuses in various amounts
since 1995 when Cubitt became an owner of the Respondent,
and that the bonuses were always handed out at the annual

1 In its brief, the Union has withdrawn its election objection alleging
that the Excelsior list contained a relatively high number of incorrect
addresses and that this hindered the Union in making house calls to the
employees prior to the election.
2 I also credit the testimony of Respondent’s attorney, Bob Tiernan,
that he was in touch with regional office personnel following receipt of
the aforementioned Board decision and during the notice posting pe-
riod, that he was advised that it did not appear there would be a rerun
election because the Union was “unresponsive,” and that he passed this
information along to his client, David Cubitt.
Christmas party. In 2000, five department heads, who are in-
cluded in the unit, received a $100 bonus, 17 full-time employ-
ees received a $50 bonus, and 13 part-time employees received
a $25 bonus. In 2001, all full-time employees, including de-
partment heads, received $125, and all part-time employees
received $50. I credit Cubitt’s testimony that, although the
employees were given no reason for the increased bonus
amount, the reason for the increase in bonus was because 2001
was the best year that the Respondent had experienced.
While it is reasonable to assume that some employees may
have interpreted the relatively large increase in the bonus
amount as an inducement to vote against the Union in the elec-
tion which was to be held just 3 days after they received the
bonus, nevertheless the Respondent is required only to conduct
its business operations vis-à-vis its employees as it would have
done in the absence of a union election. See Comcast Cablevi-
sion of Philadelphia, 313 NLRB 220, 248 (1993). This, I find,
it did. Indeed, at the time the Respondent determined the
amounts of the Christmas bonus, some 10 months after the
Board’s determination that a rerun election was warranted, it
was the Respondent’s understanding that there would not be a
rerun election. I shall dismiss this allegation of the complaint
and I shall recommend that this election objection be dismissed.
The complaint alleges that the Respondent violated Section
8(a)(1) of the Act by providing its employees “with an unlim-
ited, free bar tab” at the Christmas party that was held at a local
restaurant. As noted above, the Respondent did purchase
drinks for the employees for a 1-hour period prior to the dinner.
The record evidence shows that at the Christmas party in 2000,
the Respondent passed out logo sweatshirts to each employee,
for which it paid about $22 each. At the Christmas party in
2001 it did not distribute any gifts; rather, as noted, it paid the
bar tab for 1 hour, before and after which the employees paid
for their own libations. David Cubitt, whom I credit, testified
that in fact the bill for the sweatshirts in 2000 exceeded the bar
tab in 2001 by a considerable amount. For the same reasons as
stated previously, I shall dismiss this allegation of the com-
plaint and I shall recommend that this election objection be
dismissed.
Michael Cox has been employed by the Respondent for 2
years. He is a janitor/porter, and is included in the bargaining
unit. About a week before the election Cox had a conversation
with Blain Dorn concerning the union. Dorn was in the process
of being trained to operate his own store, and it was stipulated
that he is an agent of the Respondent. Dorn came up to him
and said, according to Cox, “I hear that you’re voting for the
union.” Cox asked how he found this out. Dorn replied, “I
heard from the boys, the boys that used to work there,” that
Cox was a “strong leader in the union.” Cox replied that he
didn’t know where Dorn heard this because he had not made
such a statement to anybody.3
I credit Cox and find that the statement by Dorn constituted,
in effect, unlawful interrogation regarding Cox’ union activity.
Thus, Dorn’s remarks may be reasonably understood to consti-
tute an attempt to elicit from Cox the nature and extent of his
3 Dorn was not called as a witness by the Respondent; therefore
Cox’ testimony stands unrebutted.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 880
support for the Union. By such conduct the Respondent has
violated Section 8(a)(1) of the Act as alleged.4
Cox testified that the day before the election he had a con-
versation in the warehouse with Doug Cubitt, the owners’ son
and assistant manager of the store, to whom Cox reported.5 No
one else was present. Cubit said good morning, how are you
doing, and then said, according to Cox, “by the way . . . if you
vote no on the union, I’ll personally make sure that you will get
a fifty-cent raise.” Cox said okay. On the next day, the day of
the election, he told one other employee about this conversation
with Doug Cubitt. However the record does not reflect whether
or not that employee had voted prior to learning of the conver-
sation.6
Cox testified that he understood that only Doug Cubitt’s fa-
ther had the authority to grant a raise. Cox did not get a 50-cent
raise after the election. Rather, in January 2002, each of the
employees received a 25-cent-per-hour raise. This raise is not
alleged as violative of the Act.
Doug Cubitt denied that the foregoing conversation oc-
curred. Rather, according to Cubitt, Cox happened to ask him
for a raise as he frequently did about once a month, and Cubitt
said that the company couldn’t really be giving raises at this
time because of the upcoming election.
It seems clear that the Respondent believed that Cox was a
“strong leader in the union.” Under the circumstances, it is
unlikely that the Respondent would approach Cox with such an
offer, as Cox could be expected to report this to the Union.
Further, it would seem rather incongruous to select a union
leader as the recipient of a raise in order to cause him to vote
against the Union. Moreover, there are no other allegations of
similar unlawful conduct involving other employees. On the
other hand, I am mindful of Board precedent to the effect that
due deference should be given to current employees who testify
adversely to their employer.7 On balance, weighing these two
competing concerns, I conclude that the General Counsel has
not sustained his burden of proof, and accordingly I shall dis-
miss this allegation of the complaint.
Michael Gentry is a union representative. Gentry testified
that on about December 14, 2001, at about 3:30 p.m., he and
another union representative, Mark Berns, were in the parking
lot in front of the store. They observed four individuals head-
ing toward their cars in the parking lot, and asked them if they
were employed by the store. They acknowledged that they
were employees. Gentry and Berns introduced themselves as

4 The complaint was amended at the hearing to allege that the same
conduct also constitutes an impression of surveillance. It appears un-
necessary to resolve this issue, as the conduct is violative of the Act in
any event.
5 It was stipulated at the hearing that Doug Cubitt is an agent of the
Respondent.
6 Cox testified that about 2 months prior to the election he had a
conversation with David Cubitt concerning a wage increase. Cox asked
what his chances were of getting a raise, and Cubitt replied, “Michael,
to be honest with you . . . you’re not worth a raise right now, you ha-
ven’t proved to me that . . . you’re not that good of a worker.”
7 Molded Acoustical Products, 280 NLRB 1394, 1398 (1986), enfd.
815 F.2d 934 (3d Cir. 1987), cert. denied 484 U.S. 925 (1987); K-Mart
Corp., 268 NLRB 246, 250 (1983).
union representatives, and asked them if they were off the
clock. They all said yes. Gentry asked if they could talk to
them about the union organizing program. They all said yes,
and indicated that they would like to hear the Union’s side of
the story. Gentry and Berns began giving them information
about the Union, when, according to Gentry, about 3 or 4 min-
utes into the conversation an individual exited from the store
and approached them. He said he was there to observe their
meeting. Both Gentry and Berns identified themselves as union
representatives, and asked the person’s name. He identified
himself as Doug Cubitt, and said he was the assistant manager
of the store. No one else was with Cubitt. Gentry told Cubitt
that all the employees were off the clock, that the representa-
tives were holding a “union meeting,” and that as a member of
management Cubitt was not invited or permitted to attend the
meeting. Cubitt crossed his arms and stood there, and said,
“this is company property8 and I’m here to observe the meeting
and I’m not leaving.”9
Gentry testified that the interruption of the discussion by Cu-
bitt had a noticeable effect on the employees: their demeanor
and body language changed, and they became “a little nerv-
ous.” While Cubitt remained standing there with his arms
crossed staring at the employees, Gentry asked the employees if
they minded continuing the discussion across the street. The
employees did not consent, and said, “no, we’re going to
leave.” Then they all got in their cars and drove off. Cubitt
was there for 1 or 2 minutes.
Douglas Cubitt is grocery manager for the Respondent. Cu-
bitt testified that he observed the union representatives ap-
proaching some four or six employees who were leaving the
store after their morning shift ended at 1:30 p.m. He and the
store manager, Zachary Mallette, were told by David Cubitt to
go outside and tell the union representatives that they were on
private property and would have to leave the parking lot. They
approached the group and asked the union representatives,
“Can we help you?” They said, “No, you can’t help us, we’re
talking to the employees.” Cubit said, “This is private property,
if you’d like to talk to them we’d ask you to leave the prop-
erty.” One of the representatives said, “We’ll take them across
the street, would that be okay.” Cubitt said that would be fine.
He denied that he told the union representatives that he and
Mallette were there to observe their meeting.
Store Manager Mallette testified similarly to Cubitt. Cubit,
according to Mallette, did all or most of the talking. Mallette
acknowledged that the two union representatives were engaged
in a conversation with several of the employees, that he and
Cubitt intervened in that conversation, and that as a result of
this intervention the conversation or meeting broke up and the
employees left.
8 The Respondent’s Grass Valley, California grocery store, is located
in a shopping mall together with about five other adjoining business,
and the parking lot is a common parking lot open to the public.
9 Berns also testified regarding the incident, and his testimony is
consistent with that of Gentry. Berns testified that prior to being inter-
rupted by Cubitt, he and Gentry were telling the employees about the
duties and responsibilities of union business representatives, and the
names of other employers that had contracts with the Union.
GRASS VALLEY GROCERY OUTLET 881
I credit the account of the incident given by Union Represen-
tatives Gentry and Berns. However, it appears that the different
scenarios depicted by the General Counsel’s witnesses (Gentry
and Berns) and the Respondent’s witnesses (Doug Cubitt and
Mallette), respectively, do not materially affect the conclusion
herein that the Respondent has violated the Act. Thus, the re-
cord evidence shows that either at about 1:30 or 3:30 p.m. on
December 14, 2001, two union representatives were conversing
with four off-duty employees in the shopping center parking lot
adjoining some five businesses including the Respondent’s
grocery store, when one (or two) managers of the Respondent
approached the group and either stood there for the purpose of
listening to the conversation or stood there until the union rep-
resentatives left the parking lot. I credit the testimony of Gen-
try and find that the conduct of Cubitt inhibited and disrupted
the discussion that the union representatives were having with
the employees, thus, causing the employees to depart and pre-
cluding the union representatives from continuing the discus-
sion and perhaps conveying information to the employees that
would affect their vote in the upcoming election. It is clear,
and there is no contrary evidence,10 that the union representa-
tives had the right to be in the shopping center parking lot11 and
had the right to converse with employees privately; and that the
employees, in consenting to speak with the union representa-
tives, were engaged in activity protected by the Act. Obviously
the meeting was taking place in a public area in plain view of
bystanders, and, as noted by the Respondent in its brief, there is
no requirement that the Respondent refrain from observing the
group.12 However, here the Respondent’s manager(s) did not
simply observe the group from a reasonable distance, but rather
approached the group for the very purpose of disrupting the
discussion. I find that by such conduct the Respondent has
violated Section 8(a)(1) of the Act as alleged.13
I further find that the unlawful conduct of the Respondent
found herein, including the unlawful interrogation of Cox,14 is
clearly encompassed within the election objections filed by the
Union, and that under the circumstances, particularly given the
fact that the Respondent prevailed in the election by only four
votes, the conduct of the Respondent is sufficient to warrant
setting the election aside. Thus, it may not reasonably be con-
cluded that the Respondent’s conduct was de minimus and
could not have affected the results of the election. See Bon
Appetit Management Co., 334 NLRB 1042 (2001); Westside

10 See Food for Less, 318 NLRB 646, 649 (1995), enfd. in pertinent
part 95 F.3d 733 (8th Cir. 1996): The burden is on the Respondent to
establish the existence of a property interest which entitles it to exclude
individuals from the property; here, the Respondent did not attempt to
present any such evidence.
11 See Indio Grocery Outlet, 323 NLRB 1138, 1141 (1997), enfd.
sub nom. NLRB v. Calkins, 187 F.3d 1080 (9th Cir. 1999).
12 Roadway Package Systems, 302 NLRB 961 (1991); see also Basic
Metal & Salvage Co., 322 NLRB 462, 464 (1996).
13 Basic Metal, supra; Carry Cos. of Illinois, 311 NLRB 1058 fn. 2,
1072–1073 (1993). The case cited by the Respondent in its brief, Ea-
gle-Picher Industries, 331 NLRB 169, 182 (2000), is inapposite.
14 Had the unlawful interrogation of Cox been the only act of elec-
tion interference, I would find this to be de minimus and would not
recommend a rerun election. However, I would nevertheless find that
the parking lot incident alone is sufficient to set aside the election.
Hospital, 218 NLRB 96 (1975). Accordingly, I shall recom-
mend that a third election be conducted.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. The Respondent has violated Section 8(a)(1) of the Act as
set forth herein.
4. The Union’s election objections should be sustained as set
forth, and the Respondent’s objectionable conduct is sufficient
to warrant the conducting of a rerun election.
REMEDY
Having found that the Respondent has violated and is violat-
ing Section 8(a)(1) of the Act, I recommend that it be required
to cease and desist therefrom and from in any other like or re-
lated manner interfering with, restraining, or coercing its em-
ployees in the exercise of their rights under Section 7 of the
Act. I shall also recommend the posting of an appropriate no-
tice, attached hereto as “Appendix.”
Further, having found that certain of the Union’s election ob-
jections are meritorious and that the Respondent’s objection-
able conduct is sufficient to warrant setting aside the election, I
shall recommend that the results of the previous election be set
aside and that the representation case be remanded to the Re-
gional Director for the purpose of conducting a rerun election.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended15
ORDER
The Respondent, David G. Cubitt and Brenda Cubitt, a Cali-
fornia Partnership, d/b/a Grass Valley Grocery Outlet, Grass
Valley, California, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Interrogating employees regarding their interest in or ac-
tivity on behalf of the Union.
(b) Disrupting or interfering with meetings or discussions be-
tween union representatives and employees in the parking lot
during nonwork time, or at other times and places where such
discussions may lawfully be conducted.
(c) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action which is necessary
to effectuate the policies of the Act.
(a) Within 14 days after service by the Region, post at its fa-
cility copies of the attached notice marked “Appendix.”16 Cop-
15 If no exceptions are filed as provided by Sec. 102.46 of the
Board's Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
16 If this Order is enforced by a judgment of the United States court
of appeals, the wording in the notice reading, “Posted by Order of the
National Labor Relations Board,” shall read, “Posted Pursuant to a
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 882
ies of the notice, on forms provided by the Regional Director
for Region 20, after being duly signed by Respondent’s repre-
sentative, shall be posted immediately upon receipt thereof, and
shall remain posted by Respondent for 60 consecutive days
thereafter, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the notices are
not altered, defaced, or covered by any other material.

Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board.”
(b) Within 21 days after service by the Regional Office, file
with the Regional Director for Region 20 a sworn certification
of a responsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to comply.
Further, it is recommended that Case 20–RC–17087 be re-
manded to the Regional Director for Region 20 for the purpose
of conducting a rerun election.