Longs Drug Stores California

National Labor Relations Board - Board Decisions

Jul 28, 2006

347 N.L.R.B. 500 (N.L.R.B. 2006)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
347 NLRB No. 45
500
Longs Drug Stores California, Inc. and International
Brotherhood of Teamsters, Local 439.1
Longs Drug Stores California, Inc. and International
Brotherhood of Teamsters, Local 439. Cases 32–
CA–21550 and 32–RC–5259
June 28, 2006
DECISION, ORDER, AND CERTIFICATION OF
RESULTS OF ELECTION
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On April 13, 2005, Administrative Law Judge Burton
Litvack issued the attached decision. The Respondent
filed exceptions, a supporting brief, answering briefs, and
reply briefs. The General Counsel filed a limited cross-
exception, a supporting brief, and an answering brief.
The Charging Party filed exceptions and an answering
brief in opposition to the Respondent’s exceptions.
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, cross-exception, and briefs and
has decided to affirm the judge’s rulings, findings,2 and
conclusions only to the extent consistent with this Deci-
sion, Order, and Certification of Results of Election.
The judge found that the Respondent violated Section
8(a)(1) of the Act by maintaining overbroad confidential-
ity provisions in its employee handbooks and engaged in
objectionable conduct by maintaining these same provi-
sions, and by campaigning near the voting area during
the election. As discussed below, we find that the Re-
spondent’s confidentiality provisions are unlawful, but,
unlike the judge, we find that the Respondent did not
engage in objectionable conduct.
I. THE CONFIDENTIALITY PROVISIONS
During the organizational campaign period culminat-
ing in the Union’s July 7, 2004 loss in a Board election,
the Respondent concurrently maintained two employee
handbooks entitled “Mainland 2000” (2000 handbook)
and “Employee Handbook” (2003 handbook). The Re-
spondent’s 2000 handbook, under the heading “Correc-
tive Action/Employee Conduct,” states that “Unauthor-

1 We have amended the caption to reflect the disaffiliation of the In-
ternational Brotherhood of Teamsters from the AFL–CIO effective July
25, 2005.
2 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.
ized disclosure of confidential information regarding
customers, employees, or the business of the company”
is conduct subject to discipline, including discharge. A
provision directly following this general confidentiality
provision, under the heading “Privileges of a Team
Member,” states, “Your pay is confidential company
information and should not be discussed with fellow em-
ployees.”
Neither of the aforementioned provisions appears in
the 2003 handbook, which at relevant times was distrib-
uted to only five unit employees. However, the 2003
handbook, under the heading “Professional Behavior,”
states that the Respondent “expects compliance with the
following behaviors . . . . Maintain confidentiality, in-
cluding but not limited to, information regarding custom-
ers, employees and the company.” The handbook further
states that employees are “expected to adhere to the poli-
cies and procedures that protect customer and employee
confidential information, and thereby, comply with fed-
eral and state privacy laws,” and that the Respondent
trusts employees not to disclose “such information to
unauthorized persons, or organizations, or using it for
personal gain.”
Notwithstanding the limited circulation of the 2003
handbook, the provisions of the 2000 handbook remained
in effect throughout the critical preelection period in
2004. The Respondent’s human resources manager,
Larry Gilbert, testified that he was responsible for en-
forcing the provisions of the handbooks and that the pur-
pose of the provisions was to make employees aware of
prohibited conduct. Gilbert further testified that individ-
ual employee wage rates constitute confidential informa-
tion. Despite Gilbert’s testimony and the maintenance of
the confidentiality provisions in both handbooks, em-
ployees openly discussed wages without being disci-
plined. Also, there was a chart listing job classifications
and applicable wage rates posted in the employee break
room.
In determining whether an employer’s maintenance of
a work rule reasonably tends to chill employees in the
exercise of Section 7 rights, the Board will give the work
rule a reasonable reading and refrain from reading par-
ticular phrases in isolation. Lutheran Heritage Village-
Livonia, 343 NLRB 646 (2004). Under this standard, the
first inquiry is “whether the rule explicitly restricts activi-
ties protected by Section 7.” (Emphasis in original.) Id.
If so, the rule is unlawful; if not
the violation is dependent upon a showing of one of the
following: (1) employees would reasonably construe
the language to prohibit Section 7 activity; (2) the rule
was promulgated in response to union activity; or (3)
LONGS DRUG STORES CALIFORNIA 501
the rule has been applied to restrict the exercise of Sec-
tion 7 rights.
[Id. 647.]
As noted, the 2000 handbook contains a general con-
fidentiality provision and a particular confidentiality pro-
vision prohibiting the discussion of wages. The 2003
handbook contains a general confidentiality provision.
Since the complaint does not appear to challenge the
particular provision as independently unlawful,3 we do
not pass on whether that provision explicitly restricts
activities protected by Section 7. With respect to the
general provisions, which are alleged to be unlawful, we
believe that they must be read in the context of the par-
ticular provision and Gilbert’s specific affirmation that
the Respondent considered employee wage rates to be
confidential information. So read, we conclude that the
general provisions of the 2000 and 2003 handbooks,
which prohibit the disclosure of confidential information,
are unlawful.4
II. REMEDIAL ISSUES
As an initial matter, we find that the Respondent must
rescind the general provisions and the particular provi-
sion. Although the latter was not attacked as independ-
ently unlawful, we believe that a complete remedy for
the violations found should include the rescission of the
provision which supports finding the general provisions
unlawful.
Having found that the confidentiality provisions vio-
lated the Act, the judge ordered the Respondent to post
copies of the remedial notice only at the Lathrop, Cali-
fornia distribution facility where the election took place.
The Charging Party and the General Counsel except,
arguing that copies of the remedial notice should be
posted at the Respondent’s offices companywide. We
find merit in this exception.
The Board has “consistently held that, where an em-
ployer’s overbroad rule is maintained as a companywide
policy, we will generally order the employer to post an
appropriate notice at all of its facilities where the unlaw-

3 Prior to amendment at the hearing, the complaint alleged that the
Respondent maintained and distributed an employee handbook “that
contains a section entitled ‘Corrective Action/Employee Conduct’
which states, inter alia: . . . [L]isted below are examples of conduct that
may result in disciplinary action . . . Unauthorized disclosure of confi-
dential information regarding customers, employees, or the business of
the company.” The complaint did not mention the immediately fol-
lowing “Privileges of a Team Member” section, which, as noted above,
states that employee wage rates are confidential company information
and should not be discussed with fellow employees. Though the com-
plaint was verbally amended at the hearing, the amendment also did not
explicitly reference the “Privileges of a Team Member” section.
4 Member Schaumber does not pass on whether a different result
might be obtained absent the particular provision.
ful policy has been or is in effect.” Guardsmark, LLC,
344 NLRB 809, 812 (2005), citing, e.g., Albertson’s,
Inc., 300 NLRB 1013 fn. 2 (1990), enf. denied on other
grounds mem. NLRB v. Albertson’s, Inc., 17 F.3d 395
(9th Cir. 1994). Here, Gilbert testified that the hand-
books were distributed at all of the Respondent’s distri-
bution centers and that he assumed they were also dis-
tributed at all of the retail stores. In the absence of con-
trary testimony, we will modify the judge’s Order to pro-
vide for companywide posting of the remedial notice.
We will also modify the judge’s Order to conform with
that recently issued in Guardsmark, LLC, supra.5
III. THE RESPONDENT’S CONDUCT DOES NOT WARRANT
SETTING ASIDE THE ELECTION
On July 7, 2004, pursuant to a Stipulated Election
Agreement, an election was held in the warehouse em-
ployees’ unit sought by the Union. The tally of ballots
showed that out of 285 valid votes counted, there were
107 votes for and 175 votes against the Union; with no
challenged ballots. The judge recommended that the
election be set aside on the basis of the Union’s Objec-
tions 1 and 4. Objection 1 alleges that the Respondent,
through its agents, campaigned in the voting area. Ob-
jection 4 alleges that the Respondent maintained unlaw-
ful rules, specifically the general confidentiality provi-
sions discussed above. We find, contrary to the judge,
that the objections have no merit and we, therefore, over-
rule the objections for the following reasons.
A. Objection 1 —Campaigning by Lead Employees
The Respondent employed approximately 15 individu-
als classified as lead employees at the time of the elec-
tion. The lead employees assist supervisors and are re-
sponsible for crews of approximately six employees.
The lead employees have no authority to hire, fire, set
wage rates, discipline, or grant time off, but they are au-
thorized to give other employees work assignments, to

5 “The Respondent may comply with our Order by rescinding the
unlawful provisions and republishing its employee handbook without
them. We recognize, however, that republishing the handbook could
entail significant costs. 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 adhe-
sive backing which will cover the old and unlawfully broad rules, until
it republishes the handbook without the unlawful provisions. Thereaf-
ter, any copies of the handbook that are printed with the unlawful rules
must include the new inserts before being distributed to employees.”
Guardsmark, supra, 812 fn. 8. Consistent with Guardsmark, our Order
will additionally provide the Respondent with the option of immedi-
ately rescinding the unlawful provisions or modifying the existing
provisions to make clear that the discussion of wages and other terms
and conditions of employment is not prohibited.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD502
reassign employees from one job to another, and to direct
employees in their work.6
The Respondent’s labor relations consultant, John
Henderson, testified that during the election a Board
agent requested the Respondent to control the employees
near the voting line because the employees were loud and
“milling around.” The Respondent selected four of its
lead employees to maintain control pursuant to the Board
agent’s request. According to Henderson, the Respon-
dent asked the lead employees to “go back to the polling
place and to try and control the crowd and make sure that
people were orderly in line and[,] if they were done vot-
ing[,] to leave the area and go back to work.”
Employee Manuel Lopez credibly testified that while
he was waiting in line to vote, he heard one of the lead
employees tell other employees to “get in line, hurry up,
go to work, don’t be talking, comments like that.” Ac-
cording to Lopez, three lead employees,
were all together and just, how do I say it, not directly
at anybody, but you know telling each other [the Un-
ion] ain’t going to win, the [U]nion is going to lose. . . .
They make [sic] comments to each other about vote no
and stuff but never directly to no one, no individual, but
made sure people heard.
The judge found that the lead employees were the Re-
spondent’s nonsupervisory agents and that their state-
ments at the voting line, which he found disparaged the
Union and suggested that employees vote “no,” were
objectionable under Milchem, Inc., 170 NLRB 362
(1968). The Respondent excepts, arguing that the lead
employees were not its agents and that, even if they were
agents, the lead employees did not engage in Milchem
electioneering because they did not hold any conversa-
tions with employees waiting in line to vote.
In Milchem, supra at 362, the Board found that it is ob-
jectionable for parties to engage in “sustained conversa-
tion[s]” with voters while the voters are in the polling
place waiting to vote. Here, while the employees waiting
in line to vote may have overheard the statements made
by lead employees, those statements were not conversa-
tions with employees. In fact, according to Lopez (the
only witness among 285 voters who testified about hear-
ing these statements),7 the lead employees were speaking
to each other, not to the employees waiting to vote. See
Midway Hospital Medical Center, 330 NLRB 1420 fn. 1

6 Although our colleague relies on the fact that the employees “gen-
erally considered the leads to be their supervisors,” there are no excep-
tions to the judge’s finding that the lead employees were not supervi-
sors.
7 Lead employee Tapia, whose testimony is referenced by our col-
league, testified only about the number of employees waiting in line to
vote, not about overhearing the other leads’ statements.
(2000) (union observer’s loud declamations against the
employer were not objectionable because they were not
directed at the employees).8 Accordingly, we find, con-
trary to the judge, that whether or not the lead employees
were agents, the Respondent did not engage in objection-
able campaigning near the polling site.9
B. Objection 4—Maintenance of the Confidentiality
Provisions
In Dal-Tex Optical Co., 137 NLRB 1782, at 1786–
1787 (1962), the Board held that conduct in violation of
Section 8(a)(1) of the Act that occurs during the critical
period prior to an election is “a fortiori, conduct which
interferes with the exercise of a free and untrammeled
choice in an election.” There is an exception to Dal-Tex,
however, where the conduct is so minimal or isolated
that “it is virtually impossible to conclude that the mis-
conduct could have affected the election results.” Clark
Equipment Co., 278 NLRB 498, 505 (1986). Applying
Dal-Tex, the judge found that the Respondent’s violation
of Section 8(a)(1) by maintaining overbroad confidential-
ity provisions was a fortiori objectionable conduct that
interfered with the election results. The Respondent ex-
cepts, arguing that, even if the provisions violated Sec-
tion 8(a)(1), the conduct fits within the “virtually impos-
sible” exception to Dal-Tex. We agree.
The confidentiality provisions were not adopted in re-
sponse to the Union’s organizing campaign. While cop-
ies of the 2000 handbook were distributed widely, the
2003 handbook was only distributed to five unit employ-
ees. There is no evidence that the Respondent called
employees’ attention to the confidentiality provisions in
either handbook when it was distributed or during the
critical preelection period. There is also no evidence that
these provisions were ever enforced.10 To the contrary,

8 Unlike our dissenting colleague, we do not find that the evidence
warrants the inference that the lead employees were attempting to
communicate with employees by their comments inter se. Thus, the
cases cited by the dissent involving nonverbal attempts at direct com-
munication with employees are inapposite.
9 Chairman Battista therefore finds it unnecessary to pass on the is-
sue of whether the lead employees were the Respondent’s special
agents for the limited purpose of maintaining order in the relevant area.
Contrary to his dissenting colleague, Member Schaumber finds that the
Union did not meet its burden of proving that the lead employees were
the Respondent’s agents for the purpose of making the alleged state-
ments at the voting line. The Respondent simply directed the lead
employees to maintain order at the voting line, not to convey manage-
ment’s position concerning the Union or to encourage employees to
vote “no.” It is an elementary rule of law that the party asserting
agency status must prove that the act at issue was within the agent’s
authority. See Ferro Concrete Construction Co. v. U.S., 112 F.2d 488
(1st Cir. 1940), cert. denied 311 U.S. 697 (1940). The Union did not
meet its burden in this case.
10 Notwithstanding cases cited by the dissent where maintenance of
unlawfully overbroad rules were found objectionable, the Board held in
LONGS DRUG STORES CALIFORNIA 503
as stated above, there is affirmative evidence that em-
ployees openly discussed wages and other terms and
conditions of employment during the critical period, and
a chart listing job classifications and wage rates was
posted in the employee break room.11 Further, the Union
lost the election by a wide margin of 68 votes.12 Thus, it
is virtually impossible to conclude that the employee
handbook confidentiality provisions could have had an
effect on the results of the election.13
Accordingly, we overrule both objections and certify
the results of the election.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that the

Delta Brands, Inc., 344 NLRB 252, 253 (2005), that even accepting the
premise that mere maintenance of an overly broad rule violates the Act,
“it is not ‘axiomatic’ that such conduct warranted setting aside the
election.”
11 Our colleague would have us believe that employees ignored the
rule in regard to conversations among themselves, but would obey it in
regard to conversations with union officials. There is no record basis
for such an inference.
12 The one-sided election vote and evidence of open wage discus-
sions during the critical period distinguish this case from IRIS, Inc., 336
NLRB 1013 (2001), where the Board found that the maintenance of an
overbroad confidentiality rule in its employee handbook in violation of
Sec. 8(a)(1) did not fall within the “virtually impossible” exception to
Dal-Tex and therefore warranted setting aside the election which re-
sulted in a 43-43 vote. Freund Baking Co., 336 NLRB 847 (2001), is
also distinguishable. Even though the vote there was not close, the
handbook confidentiality provisions at issue were far more specific in
prohibiting discussion of employee wages, hours, and other terms and
conditions of employment. Further, employees were required to read
the handbook when distributed to them and to signify in writing that
they had done so. Finally, unlike the present case, there was no af-
firmative evidence of employees actively engaging in conduct prohib-
ited by the confidentiality provisions. Chairman Battista and Member
Schaumber did not participate in either IRIS or Freund Baking. They
express no view whether those cases were correctly decided, but they
agree that they are factually distinguishable.
13 Our colleague argues that even if the two instances of alleged ob-
jectionable conduct (the leadmen’s conversations and the maintenance
of the confidentiality rule) do not present independent grounds for
setting aside the election, together they interfered with employees’ free
choice such that the election result cannot stand. However, we have
determined that the leadmen’s conversations were not objectionable.
Thus, we reject the dissent’s argument that the cumulative effect of the
challenged conduct warrants setting aside the election. Two instances
of independently unobjectionable conduct do not rise to the level of
objectionable conduct, even when viewed together.
Chairman Battista and Member Schaumber express no view on the
appropriateness of the “virtually impossible” standard because they find
that, in any event, the standard has been met in this case. See the
Chairman’s and Member Schaumber’s position in Washington Fruit &
Produce Co., 343 NLRB 1215, 1223 (2004). For the same reason,
they do not pass on the judge’s finding that the totality of circumstances
test of objectionable conduct in Delta Brands, Inc., supra, a case which
did not involve unfair labor practice allegations, should not apply here.

Respondent, Longs Drug Stores California, Inc., Lathrop,
California, its officers, agents, successors, and assigns,
shall
1. Case and desist from
(a) Maintaining in effect confidentiality provisions in
its “Mainland 2000” employee handbook and in its 2003
employee handbook, which may be understood as pro-
hibiting employees from discussing their wages and
other terms and conditions of employment with other
employees and third parties, including union representa-
tives.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Rescind the language consisting of (1) “Unauthor-
ized disclosure of confidential information regarding
customers, employees, or the business of the company”
on page 13, under the heading “Corrective Ac-
tion/Employee Conduct,” in the “Mainland 2000” hand-
book, (2) “Your pay is confidential company information
and should not be discussed with fellow employees,” on
page 14, under the heading “Privileges of a Team Mem-
ber,” in the “Mainland 2000” handbook, and (3) “Main-
tain confidentiality, including but not limited to, informa-
tion regarding customers, employees and the company”
on page 8, under the heading “Professional Behavior,” in
the 2003 handbook; or, alternatively, modify the lan-
guage of the provisions to make clear that a discussion of
wages and other terms and conditions of employment is
not prohibited.
(b) Furnish all current employees with inserts for the
“Mainland 2000” handbook and the 2003 handbook that
(1) advise that the unlawful provisions above have been
rescinded, or (2) provide the language of lawful provi-
sions; or publish and distribute to all current employees a
revised “Mainland 2000” handbook and a 2003 hand-
book that (1) do not contain the unlawful provisions, or
(2) provide the language of lawful provisions.
(c) Within 14 days after service by Region 32, post at
its facilities nationwide copies of the attached notice
marked “Appendix.”14 Copies of the notice, on forms
provided by the Regional Director for Region 32, after
being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent and maintained
for 60 consecutive days in conspicuous places including

14 If this Order is enforced by a judgment of the United States court
of appeals, the words in the notice reading “Posted by Order of the
National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD504
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respon-
dent 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 the notice to all cur-
rent employees and former employees employed by the
Respondent at any time since May 24, 2004.
(d) 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 taken to
comply.
CERTIFICATION OF RESULTS OF ELECTION
IT IS CERTIFIED that a majority of the valid ballots have
not been cast for International Brotherhood of Teamsters,
Local 439, and that it is not the exclusive representative
of these bargaining unit employees.
MEMBER LIEBMAN, dissenting in part.
Contrary to the majority’s view, the election here
should be set aside, based on two instances of objection-
able conduct by the Employer:
(1) electioneering by lead employees who, as Employer
agents assigned to keep order in the voting line, made
repeated statements, over the course of 20 minutes, dis-
paraging the Union; and
(2) maintenance of overbroad confidentiality rules in its
employee handbooks, which we all agree violated Sec-
tion 8(a)(1) of the Act,1 because they prohibited talking
about wages with co-workers and with outsiders.
Given Board precedent, the majority errs in finding the elec-
tioneering unobjectionable and in concluding that it is “vir-
tually impossible” that the confidentiality rules could have
affected the election results. Taken together, at least, the
electioneering and the confidentiality rules are sufficient
grounds to overturn the election.

1 I join my colleagues in finding that the general confidentiality pro-
visions in the Respondent’s 2000 and 2003 handbooks violated Sec.
8(a)(1) and that the remedy should be modified. In finding the provi-
sions unlawful, the majority relies on Lutheran Heritage Village-
Livonia, 343 NLRB646, 649–652 (2004). Member Walsh and I dis-
sented in part in that case finding that certain of the employer’s rules
were unlawful. In the present case, I find that under either the majority
or dissenting view in Lutheran Heritage, supra, the Respondent’s gen-
eral confidentiality provisions are unlawful.
1. Electioneering by lead employees
Relying on Milchem, Inc., 170 NLRB 362 (1968), the
majority finds that “whether or not the lead employees
were agents, the Respondent did not engage in objection-
able campaigning near the polling site.” In fact, how-
ever, the agency status of the lead employees is clear,
and their conduct was objectionable under Board prece-
dent, whether or not it fits neatly into the Milchem box.
a. Facts
In response to the Board agent’s request to control the
voters, the Employer sent four lead employees (leads) to
keep order in the voting line and to instruct employees to
return to work after voting. The employees generally
considered the leads to be their supervisors. Three leads
made comments about voting “no” and predicting the
Union’s defeat as they stood near the voting line for
about 20 minutes. Although the leads directed these
statements to each other and not to employees in line, the
leads made the comments continually in voices audible
throughout the line of voters.
b. Agency
The agency rules applicable here are well established.
See Tyson Fresh Meats, Inc., 343 NLRB 1335, 1337–
1338 (2004) (holding that union stewards had actual au-
thority to represent the union in the workplace and ap-
parent authority to speak to employees waiting to vote).2
By expressly asking the leads to keep order in the vot-
ing line and to direct employees to return to work after
voting, the Employer vested the leads with actual author-
ity to do so. In turn, the leads had apparent authority to
speak for the Employer as they carried out those duties.
Here, the employees would reasonably believe that the
leads were speaking and acting for the Employer as its
agents, because the employees generally considered the
leads to be their supervisors. The leads made comments

2 Agency can be established by actual authority or apparent author-
ity. Actual authority exists when a principal manifests to his agent the
power to act on the principal’s behalf. Such a manifestation may be
express or implied. See, e.g., Tyson Fresh Meats, Inc., supra, 343
NLRB 1339, quoting Communications Workers Local 9431 (Pacific
Bell), 304 NLRB 446 fn. 4 (1991).
Apparent authority results from a manifestation by a principal to a
third party that another is his agent. “Under this concept, an individual
will be held responsible for actions of his agent when he knows or
‘should know’ that his conduct in relation to the agent is likely to cause
third parties to believe that the agent has authority to act for him.” Id.
Finally, a “principal is responsible for its agents’ conduct if such ac-
tion is done in furtherance of the principal’s interest and is within the
general scope of authority attributed to the agent . . . [I]t is enough if
the principal empowered the agent to represent the principal within the
general area in which the agent has acted.” Id., quoting Bio-Medical
Applications of Puerto Rico, Inc., 269 NLRB 827, 828 (1984).
LONGS DRUG STORES CALIFORNIA 505
opposing the Union in the election, in furtherance of the
Employer’s interest. The comments were also within the
general area of the leads’ actual authority because they
were made while keeping order in the voting line. The
Employer is therefore responsible for the conduct of the
leads.
c. Objectionable nature of the conduct
Because the lead employees did not engage in conver-
sation with employees waiting in line to vote, the major-
ity finds the Board’s decision in Milchem, supra, inappli-
cable and concludes that the leads’ conduct was not ob-
jectionable. But the majority interprets the rule of Mil-
chem too narrowly.
There—in order to prevent the “potential for distrac-
tion, last minute electioneering or pressure, and unfair
advantage from prolonged conversations between repre-
sentatives of any party to the election and voters waiting
to cast ballots”—the Board held that “sustained conver-
sation[s] with prospective voters waiting to cast their
ballots, regardless of the content of the remarks ex-
changed” were objectionable. 170 NLRB at 362.
The Board has applied Milchem in situations analo-
gous to this case, where no actual conversations oc-
curred, but where employer agents nevertheless effec-
tively communicated an antiunion message to waiting
voters. See Fieldcrest Cannon, Inc., 318 NLRB 470, 567
(1995), enfd. in relevant part 97 F.3d 65 (4th Cir. 1996)
(supervisor “effectively communicated” with employees
in voting line by showing them poster listing union’s
history of strikes).3
Here, the leads’ conduct implicates the rationale for
the Milchem rule (distraction, pressure, unfair advantage)
and amounts to effective communication with employ-
ees. Obviously, the leads intended employees to hear
their antiunion remarks, as employees did.4 Indeed, there

3 This case is also analogous to Pearson Education, Inc., 336 NLRB
979, 979–980 (2001), enfd. 373 F.3d 127 (D.C. Cir. 2004). There,
applying the factors identified in Boston Insulated Wire & Cable Co.,
259 NLRB 1118 (1982), the Board found that the employer had en-
gaged in objectionable electioneering by hanging a campaign poster in
a location employees had to pass in order to vote, which was the
equivalent of a no-electioneering area, despite the lack of a formal
designation. Here, the leads were agents of the Employer. They made
their audible comments near the semi-open polling place (created by
stacking boxes to form an enclosure with two entrances), continually
for 20 minutes as different voters filed past.
4 Midway Hospital Medical Center, Inc., 330 NLRB 1420 (2000),
cited by the majority, is distinguishable. There, the Board found that a
union observer’s loud complaints after being directed to leave the poll-
ing area—which were made to a union representative, management
officials, and a Board agent in the polling area—were not objection-
able, because the observer could not “reasonably be viewed as attempt-
ing to communicate with” employees. Id. at 1420 fn. 1. Here, the cir-
cumstances, including the content of the remarks made, strongly sup-
is testimony (from employee Bernie Tapia) that there
may have been 50 employees in line to vote at the time,
more than the margin of the Union’s defeat in the elec-
tion. Another employee (Manuel Lopez) testified that
there were 20–30 employees in line. Even accepting the
lower figure, the leads’ conduct, at least considered in
conjunction with the possible effect of the Employer’s
confidentiality rules (discussed next) was sufficient
grounds to set aside the election.
2. The Employer’s unlawful confidentiality rules
As the majority acknowledges, conduct found to vio-
late Section 8(a)(1) is “a fortiori” conduct that warrants
setting aside an election, unless the Board finds it “virtu-
ally impossible” to conclude that the conduct could have
affected the results of the election.5 Until the recent de-
cision in Delta Brands, it was settled that an employer’s
mere maintenance of an unlawful rule is objectionable
conduct sufficient to set aside an election, whether or not
the rule was also found to have violated Section 8(a)(1).6
The majority now goes farther, refusing to set aside an
election even where an 8(a)(1) violation is found.
The majority observes that while the Employer’s
handbooks were widely distributed, there is no evidence
that the Employer called employees’ attention to the con-
fidentiality provisions or that the provisions were en-
forced. Indeed, says the majority, employees engaged in
conduct that would seem to violate the rules. In any
case, the Union lost the election “by a wide margin of 68
votes.” Whatever weight these facts may have, they do
not satisfy the “virtually impossible” standard that con-
trols here, given the determination that the confidentiality
provisions were not merely objectionable, but unlawful.
The facts in this case are similar to Freund Baking Co.,
336 NLRB 847 (2001). There, the Board set aside an
election, based on an overbroad confidentiality rule pub-
lished in a handbook. There was no evidence that the
rule was enforced or that the rule caused employees not
to discuss wages or other terms or conditions of em-
ployment. Id. at 847 fn. 5. The tally was 3 for and 30
against the petitioner. Noting that the margin of victory
was substantial, the Board found that because the over-
broad rule in the handbook was distributed to the entire

port the inference that the leads were attempting to communicate with
employees.
5 Dal-Tex Optical Co., 137 NLRB 1782, 1786 (1962); Clark Equip-
ment Co., 278 NLRB 498, 505 (1986).
6 Compare Delta Brands, Inc., 344 NLRB 252(2005) (refusing to set
aside election, based on failure of proof that maintenance of rule af-
fected election result) with Pacific Beach Hotel, 342 NLRB 372, 375
(2004) (setting aside election for maintenance of overbroad rule); Iris
U.S.A., Inc., 336 NLRB 1013, 1013 fn. 3 (2001) (same); St. Joseph’s
Hospital, 262 NLRB 1385 (1982) (same); and Mervyn’s, 240 NLRB
54, 61 fn. 16 (1979) (same). I dissented in Delta Brands.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD506
unit and employees could have reasonably construed the
provision as prohibiting them from discussing terms and
conditions of employment with coworkers or union rep-
resentatives, it may have directly accounted for the un-
ion’s margin of defeat. Id. Here, there is an even
stronger case than in Freund Baking to set aside the elec-
tion, because the Union’s margin of defeat was propor-
tionately smaller,7 and the confidentiality rules at issue
also violated Section 8(a)(1), triggering a more stringent
standard.
Even if mere maintenance of the rule is insufficient to
set aside the election, the record here does not virtually
negate the possibility that employees were affected by
the rule—the controlling standard. While the wages for
job classifications (not individual employees) were
posted in the break room and employees spoke among
themselves about wages, there is no evidence that em-
ployees felt free to discuss their wages with those outside
the company such as union representatives. Nor is there
evidence that the Employer ever disavowed the rules or
clarified that the rules did not prohibit employees from
discussing their terms and conditions of work with union
representatives. See Pacific Beach Hotel, supra, 342
NLRB at 347. To the contrary, a manager testified that
individual employees’ wages were confidential informa-
tion.
The judge was correct in finding that the Employer’s
confidentiality rules may have inhibited employees from
exercising their right to discuss their terms and condi-
tions of employment with others, including union repre-
sentatives. Out of the 285 unit employees who voted, it
is possible—not “virtually impossible”—that at least 35
employees (a number sufficient to change the election
outcome) would have voted for the Union, if not for the
overbroad rules deterring them from speaking freely with
union representatives.
3. Conclusion
Whether or not the two instances of objectionable con-
duct here present independent grounds for setting aside
the election, certainly together they interfered with em-
ployees’ free choice to a degree that the election result
cannot stand. Accordingly, I dissent.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

7 The majority distinguishes Iris U.S.A., supra, in part because the
election results were closer than the results here, but this distinction is
insignificant in light of Freund Baking, supra.
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 publish or maintain in effect confidenti-
ality provisions in our personnel handbooks which may
be understood by our employees to prohibit them from
discussing their wages and other terms and conditions of
employment with their fellow employees or third parties,
including union representatives.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of
their rights guaranteed to them by Section 7 of the Act.
WE WILL rescind the language consisting of (1) “Unau-
thorized disclosure of confidential information regarding
customers, employees, or the business of the company”
on page 13, under the heading “Corrective Ac-
tion/Employee Conduct,” in the “Mainland 2000” hand-
book, (2) “Your pay is confidential company information
and should not be discussed with fellow employees,” on
page 14, under the heading “Privileges of a Team Mem-
ber,” in the “Mainland 2000” handbook, and (3) “Main-
tain confidentiality, including but not limited to, informa-
tion regarding customers, employees and the company”
on page 8, under the heading “Professional Behavior,” in
the 2003 handbook; or, alternatively, WE WILL modify
the language of the provisions to make clear that a dis-
cussion of wages and other terms and conditions of em-
ployment is not prohibited.
WE WILL furnish all of you with inserts for the
“Mainland 2000” handbook and the 2003 handbook that
(1) advise you that the unlawful provisions above have
been rescinded, or (2) provide the language of the lawful
provisions; or WE WILL publish and distribute to all of
you a revised “Mainland 2000” handbook and 2003
handbook that (1) do not contain the unlawful provisions,
or (2) provide the language of the lawful provisions.
LONGS DRUG STORES CALIFORNIA, INC.
Virginia L. Jordan, Esq., for the General Counsel.
David Faustman, Esq. (Grotta, Glassman & Hoffman, P.C.), of
San Francisco, California, appearing on behalf of the Re-
spondent.
LONGS DRUG STORES CALIFORNIA 507
David A. Rosenfeld, Esq. and Caren P. Sencer, Esq. (Weinberg,
Roger & Rosenfeld), of Oakland, California, appearing on
behalf of the Union.
DECISION
STATEMENT OF THE CASE
BURTON LITVACK, Administrative Law Judge. On May 24,
2004,1 International Brotherhood of Teamsters, Local 439,
AFL–CIO (the Union), filed a petition for a representation elec-
tion in Case 32–CA–5259. Pursuant to a Stipulated Election
Agreement, agreed upon by the Union and Longs Drug Stores
California, Inc. (the Respondent), and approved by the Re-
gional Director for Region 32 of the National Labor Relations
Board (the Board), on June 10, 2004, an election by secret bal-
lot was conducted on July 7,2 and on July 14, the Union filed
timely objections to the conduct of the election. Thereafter, on
August 2, 2004, the Regional Director issued a report and rec-
ommendations on objections, finding and concluding that cer-
tain of the Union’s objections to the election raised material
issues of fact and law, which should be resolved at a hearing. A
week later, on August 9, 2004, the Union filed the unfair labor
practice charge in Case 32–CA–21550. After an investigation,
on October 22, 2004, the Regional Director for Region 32 is-
sued a complaint, alleging that Longs Drug Stores California,
Inc., had engaged in, and continues to engage in, unfair labor
practices within the meaning of Section 8(a)(1) of the National
Labor Relations Act (the Act). Subsequently, on October 26,
2004, inasmuch as one of the Union’s objections and the allega-
tion of the complaint constituted “a single, overall contro-
versy,” the Regional Director issued an order consolidating the
above-captioned matters for hearing. Respondent timely filed
an answer to the complaint, essentially denying the commission
of the alleged unfair labor practices. As scheduled, the merits of
the complaint allegations and the Union’s objections3 came to
trial before the above-named administrative law judge on Janu-
ary 10, 2005, in Oakland, California. At the trial,4 all parties
were afforded the opportunity to examine and to cross-examine
witnesses, to offer into the record all relevant documentary
evidence, to argue their respective legal positions, and to file
posthearing briefs. All parties filed the latter documents, which
have been carefully scrutinized and considered. Accordingly,
based upon the entire record herein, including the post-hearing
briefs and my resolution of the credibility of the witnesses, I
make the following

1 Unless otherwise noted, all events herein occurred during 2004.
2 The tally of ballots showed that, of 285 valid votes counted, 107
votes were cast in favor of representation by the Union, and 175 votes
were cast against the participating labor organization.
3 On December 27, 2004, the Regional Director issued a document,
entitled “Clarification Regarding Objections Noticed for Hearing,” in
which he set forth the issues for each of the Union’s objections set for
trial.
4 During the trial, counsel for the General Counsel was granted per-
mission to amend par. 5 of the complaint, which essentially conformed
the allegations to the evidence, and counsel for the Union withdrew
three of the Union’s objections to the election.
FINDINGS OF FACT
I. JURISDICTION
At all times material, Respondent, a State of Maryland cor-
poration, with offices and places of business throughout the
State of California and the western United States, including its
warehouse and distribution facilities in Lathrop, California, has
been engaged in retail pharmacy and general retail sales. Dur-
ing the 12-month period preceding the issuance of the com-
plaint, in the normal course and conduct of its business opera-
tions, Respondent derived gross revenues in excess of $500,000
and purchased and received in California goods and products,
valued in excess of $50,000, directly from suppliers located
outside the State of California. Respondent admits that it is
now, and has been at all times material herein, an employer
engaged in commerce within the meaning of Section 2 (2), (6),
and (7) of the Act.
II. LABOR ORGANIZATION
Respondent admits that the Union is now, and has been at
all times material, a labor organization within the meaning of
Section 2(5) of the Act.
III. UNFAIR LABOR PRACTICE ISSUES
The General Counsel contends that Respondent engaged in
acts and conduct, violative of Section 8(a)(1) of the Act, by, at
all times material herein, maintaining facially overbroad confi-
dentiality provisions, which impinge upon its employees’ Sec-
tion 7 rights, in its employee handbooks, which were distrib-
uted to its employees. Respondent denied that said confidential-
ity provisions were facially unlawful.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
The record establishes that Respondent is a publicly-traded
corporation, which owns and operates 450 retail drug stores in
six western States, including California, and that it maintains
three warehouse and distribution centers, including the distribu-
tion facility, at issue herein, located in Lathrop, California,
from which goods and products are shipped to approximately
300 of its retail outlets. The Lathrop distribution facility con-
sists of two buildings, an open 470,000 square foot building
and a smaller building, located 2 miles away, in which seasonal
items are stored. At all times material herein, approximately
350 employees worked in the larger building, and 10 to 12
employees worked in the smaller building. The record further
establishes, and Respondent admits, that at all times material
herein, it has maintained and distributed to its employees copies
of its employee handbooks,5 which set forth terms and condi-
tions of employment applicable to employees at its retail stores

5 There are, apparently, two employee handbooks, GC Exhs. 3 and 4,
with the latter published with the intent to replace all other handbooks
published prior to November 2003. However, the parties stipulated that,
during the critical period prior to the election, May 24 through July 7,
2004, both handbooks remained in effect for, and were distributed to,
bargaining unit employees at the Lathrop distribution facility, with GC
Exh. 4 having been distributed to no more than five employees.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD508
and at its distribution centers6 and which are given to each new
employee during his or her employment orientation period.7
The General Counsel alleges that the confidentiality provisions,
found in Respondent’s employee handbooks, are violative of
Section 8(a)(1) of the Act. Thus, as set forth on pages 12 and 13
of General Counsel’s Exhibit 3, Respondent’s “Mainland 2000”
handbook, under the heading “Corrective Action/Employee
Conduct,” the following acts . . . may result in disciplinary
action, up to and including termination. . . . Unauthorized dis-
closure of confidential information regarding customers, em-
ployees, or the business of the company,” and, as set forth on
page 8 of General Counsel’s Exhibit 4, Respondent’s Novem-
ber 2003 “Employee Handbook, under the heading, “Profes-
sional Behavior,” Respondent “. . . expect[s] compliance with
the following behaviors. . . . Maintain confidentiality, including
but not limited to, information regarding customers, employees,
and the company.” With regard to the confidentiality rule, set
forth in the November 2003 revised employee handbook, on
page 11 of said handbook, employees are admonished that they
are “expected to adhere to the policies and practices that protect
. . . employee confidential information,” thereby complying
with “federal and state privacy laws,” and that the company
trusts them not to disclose “such information to unauthorized
persons, or organizations, or using it for personal gain.”
While denying being aware that a confidentiality provision
existed in Respondent’s employee handbooks (Honestly . . . . I
wasn’t aware that it was even in there), Larry Gilbert testified
that, in his capacity as Respondent’s human resources manager,
he was responsible for enforcing the work rules contained in
the handbooks and that the purpose of the work rules was to
make employees aware of prohibited conduct. He further testi-
fied that he was aware employees sometimes violated said pro-
visions; that he would investigate on such occasions and take
corrective action, up to and including discharge, if necessary;
and that he knew employees were adhering to a rule when no
violations of said provision were reported.8 Specifically regard-
ing the confidentiality provisions, while the record establishes
that employees openly discussed wages during the critical pe-
riod prior to the election, a chart, listing job classifications, and
applicable wage rates is posted in the employees’ area in both
buildings, and Respondent shares labor cost information with
competitors for surveys and while Gilbert was not aware of any

6 According to Larry Gilbert, Respondent’s human resources man-
ager at its Lathrop distribution, while most of the terms and conditions
of employment, set forth in the handbooks, applied to employees at the
retail stores and at the distribution centers, some applied only to em-
ployees at the retail stores and some applied only to the employees at
the distribution centers.
7 According to Gilbert, the employee handbooks were included in
each new employee’s “new hire orientation packet.” He added that the
orientation process is a “laborious” one, consuming 3 or 4 hours, with
explanation of the handbook provisions being one aspect of it. “Em-
ployees are given the handbook and what we retain is one sheet of
paper that says I have received the employee handbook. We don’t go
through [it] with them.” However, “. . . they were . . . encouraged . . . to
read it in their time at home . . . .”
8 Bernie Tapia, a lead person for Respondent in its inventory control
department, testified that employees were expected to abide by the
warehouse rules and faced discipline for violating them.
violations of said provisions, he testified that individual em-
ployees’ wage rates constitute confidential information, which
he would never divulge, and that he maintained, in the person-
nel office, much material, including social security numbers,
home addresses, workers compensation claims, time off re-
cords, and employee work-related complaints, which Respon-
dent considers confidential.
The Board’s touchstone for determining the legality of work
rules, such as Respondent’s confidentiality provisions, is found
in Lafayette Park Hotel, 326 NLRB 824, 825 (1998)—“In de-
termining whether the maintenance of rules . . . violates Section
8(a)(1), the appropriate inquiry is whether the rules would rea-
sonably tend to chill employees in the exercise of their Section
7 rights. Where the rules are likely to have a chilling effect on
Section 7 rights, the Board may conclude that their mainte-
nance is an unfair labor practice, even absent evidence of en-
forcement.” Recently, in Lutheran Heritage Village—Lavonia,
343 NLRB 646 (2004), the Board elaborated, stating that it
must give alleged unlawful work rules “reasonable” readings
and that, an inquiry into the legality of a work rule “. . .begins
with the issue of whether the rule explicitly restricts activities
protected by Section 7 of the Act.” If not, concluding that a
provision violates Section 8(a)(1) of the Act “. . . is dependent
upon a showing of one of the following: (1) employees would
reasonably construe the language to prohibit Section 7 activity;
(2) the rule was promulgated in response to union activity; and
(3) the rule has been applied to restrict the exercise of Section 7
rights.” With regard to Respondent’s confidentiality rule, I
note, at the outset, that, in most circumstances, the concept of
employees’ communications with their fellow employees and
with third parties, such as union representatives, regarding their
terms and conditions of employment is a right clearly privi-
leged by Section 7 of the Act. KinderCare Learning Centers,
299 NLRB 1171, 1171–1172 (1990).9 Herein, noting that Re-
spondent’s confidentiality provision prohibits disclosure of
confidential information, pertaining to employees, counsel for
the General Counsel argues that said rules “. . . can by reasona-
bly understood by employees as restricting their right to discuss
with each other and with outsiders their terms and conditions of
employment and, therefore, are unlawful on that basis.” In sev-
eral recent decisions, including Iris U.S.A., Inc., 336 NLRB
1013 (2001); University Medical Center, 335 NLRB 1318
(2001); and Flamingo Hotel-Laughlin, 330 NLRB 287 (1999),
the Board had occasion to consider the language of confidenti-
ality provisions, which were similar to those of Respondent.
Thus, in Iris U.S.A., Inc., the respondent’s confidentiality pro-
vision instructed employees that “all of the information,
whether about IRIS . . . or employees is strictly confidential;”
in University Medical Center, the respondent’s rule prohibited
“release or disclosure of confidential information concerning
patients or employees;” and, in Flamingo Hotel-Laughlin, the
respondent’s rule prohibited employees from revealing confi-

9 This statutory right is not an unfettered one. Thus, for example,
employees’ communications with others may not be so disloyal as to
constitute “a disparagement or vilification of the employer’s product or
reputation.” Sahara Dotsun, 278 NLRB 1044, 1046 (1986).
LONGS DRUG STORES CALIFORNIA 509
dential information about “fellow employees.” As explained by
former Chairman Hurtgen concurring in IRIS U.S.A., Inc., supra
at 1014, and by the Board in University Medical Center, supra,
at 1322, the language of such a rule “. . . is unlawfully broad
because it could reasonably be construed by employees to pro-
hibit them from discussing information concerning terms and
conditions of employment. . . which they might reasonably
perceive as being within the scope of the broadly-stated cate-
gory of ‘confidential information’ about employees” with other
employees or with union representatives. From the foregoing,
what is manifestly certain is that the Board’s concern is with
the utter ambiguity of such confidentiality provisions and the
stifling effect of their incertitude upon employees’ Section 7
activities and that, in order to overcome a presumption of inva-
lidity, an employer must make it clear to employees that the
thrust of an inexplicitly-worded confidentiality rule is not to
prohibit discussion of their terms and conditions of employ-
ment. See Vanguard Tours, 300 NLRB 250, 264 (1990).
I agree with counsel for the General Counsel that Respon-
dent’s provisions patently demonstrate the vice of overbroad
confidentiality rules. Thus, while Respondent’s confidentiality
provisions do not expressly prohibit employees from discussing
their terms and conditions of employment, neither provision
defines the ambiguous term “confidential information,” leaving
said language susceptible of interpretation that such includes
information pertaining to the employees’ terms and conditions
of employment. Moreover, as noted by former Chairman Hurt-
gen, the nondisclosure prohibition seemingly extends to any-
one, including fellow employees and third parties, including
union representatives. Finally, the language on page 11 of Gen-
eral Counsel’s Exhibit 4, which suggests that employees, who
disclose confidential information, do so in violation of federal
and state privacy laws, enforces the seriousness, which Re-
spondent attaches to the nondisclosure of undefined confiden-
tial information, and might well inhibit employees in the exer-
cise of their Section 7 right to discuss their terms and condi-
tions of employment with each other and union representatives.
While, in defense, counsel for Respondent points out that em-
ployees openly discussed wages and working conditions during
the preelection period without being disciplined and that job
classifications and accompanying wage rates are posted in the
facility, such lack of enforcement may only demonstrate Re-
spondent’s fear of interfering with the laboratory conditions
prior to the representation election, and there is no evidence
that any employees disclosed information about their working
conditions to the Union’s representatives. In the latter regard, as
Larry Gilbert10 pointed out, inasmuch as no violations of the
confidentiality provisions were ever reported to him, one may
presume that each was effective in curbing disclosure of em-
ployees’ terms and conditions of employment to outside enti-
ties. Based upon the foregoing, I agree with the General Coun-

10 I believe Gilbert may well have dissembled in asserting he was
unaware of the existence of the confidentiality provisions of the em-
ployee handbooks. In this regard, he was responsible for enforcing the
work rules and for imposing discipline for violations. Moreover, he
conducted orientation sessions for new employees and was cognizant of
what types of employee information was considered confidential by
Respondent.
sel and counsel for the Union11 and find that Respondent’s
confidentiality rules are violative of Section 8(a)(1) of the Act.
IRIS U.S.A., Inc., supra; University Medical Center, supra.
The Union’s Objections to the Election
Two of the Union’s objections to conduct, by Respondent,
which allegedly affected the results of the July 7, 2004 repre-
sentation election, remain at issue. Initially, I consider the ob-
jection, which alleges “the Employer maintained unlawful
rules,” and note that the Regional Director, in his December 27
“clarification” document, stated that the rules, which he set for
hearing, are those alleged as violating Section 8(a)(1) of the Act
in the instant complaint—Respondent’s confidentiality rules. I
have found above that, in fact, Respondent published and main-
tained confidentiality provisions in its employee handbooks,
which were distributed to employees during the critical period
preceding the representation election; that said rules were fa-
cially overbroad, susceptible of being interpreted as prohibiting
employees from disclosing and discussing their terms and con-
ditions of employment; and that, therefore, as did the respon-
dent in IRIS U.S.A., Inc., supra, Respondent engaged in serious
unfair labor practices in violation of Section 8(a)(1) of the Act.
In this regard, the usual test for the validity of an objection is
whether the asserted conduct “. . . had a reasonable tendency to
effect the outcome of the election” (Delta Brands, Inc., 344
NLRB 252 (2005)), and “it is well settled that conduct in viola-
tion of Section 8(a)(1) of the Act that occurs during the critical
period prior to an election is ‘a fortiori, conduct which inter-
feres with the exercise of a free and untrammeled choice in an
election.”‘ IRIS U.S. A., Inc., supra; Dal-Tex Optical Co., 137
NLRB 1782, 1786 (1962).12 Nevertheless, counsel for Respon-
dent points to the Board’s decision in Delta Brands, Inc. and
asserts that decision is “dispositive” of the issues presented by
this objection. I disagree. Thus, in Delta Brands, Inc., a case
involving objections to an election with no accompanying al-
leged unfair labor practices, the issue, before the Board, was
whether an employer’s mere maintenance of an alleged over-
broad no-solicitation rule during the critical period before a
representation election was sufficient to overturn the results of
the election. The Board held that, assuming the rule was fa-
cially overbroad, absent a showing that any employee was af-
fected by its existence, the rule was enforced during the critical

11 Counsel for the Union argue that Respondent’s confidentiality
provisions are also unlawful because they may prevent employees from
disclosing information pertaining to the financial condition of the com-
pany to union agents. In this regard, counsel argues that such informa-
tion, including plans for layoffs and plant or store closures, would aid
the Union in its organizing efforts. Counsel further argues that, insofar
as the rules may be construed as precluding disclosure of information
pertaining to vendor and supply lists, shipping plans, and sale plans,
which information would be necessary for possible peaceful boycotts,
Respondent’s confidentiality provisions are overbroad. Given my find-
ing herein, I need not rule on counsels’ theories and suggest that they
may be best put before the Board for its consideration.
12 The Board has traditionally recognized a limited exception to this
rule—where the conduct “. . . is so minimal or so isolated that ‘it is
virtually impossible to conclude that the misconduct could have af-
fected the election results.”’ IRIS U.S.A., Inc., supra at 1013; Clark
Equipment Co., 278 NLRB 498, 505 (1986).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD510
period, or there was any mention of it during the critical period,
“. . . the mere maintenance of [such a] rule will not be the basis
for overturning an election where [the petitioning labor organi-
zation] was in a position to advise employees of their rights.”
Id. at 253. Contrary to counsel, the lack of an accompanying
unfair labor practice allegation in Delta Brands, Inc. is a critical
distinction inasmuch as “. . . conduct which may interfere with
the ‘laboratory conditions’ for an election is considerably more
restrictive than the test [for] conduct which amounts to interfer-
ence, restraint, or coercion which violates Section 8(a)(1).”
Dal-Tex Optical Co., supra. Moreover, Respondent’s confiden-
tiality rule applied to the entire bargaining unit and, as such was
published in the employee handbooks, which were distributed
to employees during orientation and which employees were
expected to read, was widely disseminated to all employees.
Finally, as in IRIS U.S.A., Inc., the ambiguity of Respondent’s
rule, accompanied by the language in the 2003 employee hand-
book, which warns that employees, who fail to adhere to the
confidential information prohibition, act in contravention of
federal and state law, may well have inhibited employees from
exercising their Section 7 right to discuss their terms and condi-
tions of employment with others, including union representa-
tives. Accordingly, based upon the foregoing, while it is true
there is no record evidence of enforcement of the rule during
the critical period and while I understand the import of Delta
Brands, Inc., I adhere to traditional Board law and find that the
Union’s objection, which involves the identical conduct as
Respondent’s serious unfair labor practice, is meritorious. IRIS
U.S.A., Inc., supra.13
Turning to the Union’s next objection, concerning alleged
campaigning activities by certain lead personnel, acting as su-
pervisors or agents of Respondent, directed at employees as
they waited to vote in the election, the record establishes that
Respondent employed approximately 300 workers at its
Lathrop distribution facility at the time of the election, includ-

13 Counsel for the Union argue that, in addition to Respondent’s con-
fidentiality provisions, its “unlawful rules” objection also encompassed
Respondent’s rules, prohibiting solicitations, and that the latter work
rules are likewise overbroad and, therefore, unlawful. Contrary to coun-
sel, while the Union may well have included Respondent’s solicitation
rules in its “unlawful rules” objection, the Regional Director did not
include them within the objections set for hearing in the instant matters;
nor did the Regional Director allege Respondent’s solicitation rules as
unlawful in the instant complaint. In these circumstances, especially
noting that the Regional Director specifically clarified the “particular
matters,” pertaining to the objections, which were to be set for trial
before the above-named administrative law judge, I have no authoriza-
tion to consider the merits of the Union’s assertion that Respondent’s
solicitation prohibition also constitutes objectionable conduct. More-
over, assuming that I do posses such authority, I would not find merit to
counsel’s contention. Thus, while the solicitation rules, in both GC
Exhs. 3 and 4, state, “If you observe solicitation on company property
at any time, report it to your manager immediately” and while each
may arguably be unlawful, there is no record evidence either that em-
ployees were aware of the rules, which are contained in multipage
documents, or that employees were ever disciplined for soliciting for
the Union. In these circumstances, an objection, based solely on the
presumed facial illegality of the solicitation provision, would not be
meritorious. Delta Brands, Inc., supra.
ing 10 to 12 supervisors and 15 individuals classified as lead
employees; that the lead employees, who assist the supervisors
and are responsible for crews of approximately 6 employees,
are hourly employees; and that the lead employees, who have
no authority to hire, fire, set wage rates, discipline, or grant
time off, are authorized to give other employees work assign-
ments, to reassign employees from one job to another, and to
direct them in their work; and that the lead employees exercise
some degree of discretion in assigning work to employees.
With regard to the authority of lead persons to assign and direct
the work of employees on their crews, Bernie Tapia testified
that, while, on a daily basis, employees, who are on his work
crew, know their job functions and what work they should be
performing, when he selects an employee for a change of job
assignment, he takes into account the employee’s work skills
and experience and the nature of the work. Tapia further testi-
fied that he is authorized to handle “minor” disciplinary prob-
lems, which he defined as those not requiring written discipli-
nary action, and employees know he is the person, whom they
should approach, with any work problems. Finally, in these
regards, Manuel Lopez, who, at the time of the election,
worked as an inventory control employee for Respondent, testi-
fied that Bernie Tapia was the lead person in his department;
that Tapia held a meeting with the inventory control employees
at the start of each work shift in order to give them their work
assignments; and that “most of the employees” considered the
leads to be their supervisors.
With regard to the merits of the allegation, John Henderson,
who is employed by Cruz and Associates, a labor relations
consulting company, and who worked for Respondent as a
labor relations consultant during the preelection campaign,
testified that, during the election voting hours on July 7,14 he,
Larry Gilbert, other management representatives for Respon-
dent, and other employees of Cruz and Associates, were sta-
tioned in a conference room of the main distribution facility
building, waiting for the voting to conclude,15 and that, some-
time after 9 that morning, Mike Moore, the facility manager,
received a “walkie-talkie” call16 from a supervisor in the build-
ing. The sound was audible throughout the room, and “the call
was that the Board agent had sent an employee looking for a
supervisor to ask that there be some control exerted over the
employees outside the polling area.”17 Upon the conclusion of
the call, “we had a discussion . . . in the conference room and
decided that we could ask some of the lead workers to go . . .
and control the crowd that was waiting to vote because they

14 The election hours were 9 until 11 a.m. and 8 until 10 p.m. in the
main distribution facility and 11:45 a.m. until 12:45 p.m. in the smaller
building
15 According to Henderson, “We had been told by the attorney han-
dling the case not to be anywhere near the election.”
16 All facility managers were equipped with NEXTEL cellular tele-
phones.
17 Moving 12 feet high stacks of boxes to create an enclosed 20
square foot voting area with two entrances, Henderson testified, created
the polling area. He added that the polling enclosure was not a private
area. Thus, “. . . it was open to the back of the warehouse,” and “. . .
you could easily hear inside what was going on outside and visa versa.”
LONGS DRUG STORES CALIFORNIA 511
were not supervisors. . . .”18 Henderson added that four lead
personnel, Bernie Tapia, Randy Delatta, Marvin Andrews, and
Mario Bustamante, were selected to comply with the Board
agent’s request, and Moore telephoned the supervisor, to whom
he had previously spoken, and told him “. . . to ask the four lead
workers . . . to go back to the polling place and to try and con-
trol the crowd and make sure that people were orderly in line
and, if they were done voting, to leave the area and go back to
work.” Henderson further testified that, upon conclusion of the
morning voting period in the main facility, he spoke to lead
persons Tapia and Andrews, and “they told me that they went
back to the polling area. There were a large number of employ-
ees milling around. It was quite loud. They [told those who had
yet to vote] to get in line. If they had voted, please go back to
work and to keep the noise down . . . .” According to Hender-
son, the two lead workers also told him they were with the em-
ployees, who were waiting to vote, for no more than 15 to 20
minutes between 9:15 and 9:45 a.m. As to what occurred that
morning when the lead personnel19 enforced management’s
instructions, Manuel Lopez testified that he was in the voting
line, which stretched from an entrance to the voting area back
into the work area of the distribution facility, for “roughly 20
minutes,” that Tapia, Bustamante, and Delatta were standing
near the line the entire time he was in the area, and that Delatta
“. . . was telling [the employees] get in line, hurry up, go to
work, don’t be talking, comments like that.” Also, according to
Lopez, the three lead persons “. . . were all together and . . . not
directly at anybody . . . telling each other they ain’t going to
win, the union is going to lose. . . . They made comments to
each other about vote no . . . but never directly to [any] individ-
ual but made sure people heard.”20 Asked by me if he was de-
scribing a single incident, Lopez replied that the three leads
made these comments “continually with different people as
they were coming through.” Bernie Tapia contradicted Lopez,
stating that, upon being instructed by the production supervisor
to walk over to the line of workers, who were waiting to vote,
and make sure those, who voted, returned to work, he went to
the voting area, and “I just made sure that everyone standing in
line kept walking forward till they got to the point of voting.
When they got out, I just watched as they walked away.” Tapia
stated he remained in the voting area “probably about an hour”
until the completion of the voting period at 11 a.m. but denied
directly telling any employee to vote no. Further, while admit-
ting there were times the four or five lead personnel talked
among themselves while in the voting area, he was certain that
their talk was about work and not the election.
Having carefully considered the credibility of each, I credit
Manuel Lopez’ version of what occurred over that of Bernie
Tapia. Thus, Lopez impressed me as testifying in a veracious
manner and appeared to be significantly more candid than

18 The lead employees were eligible voters, whose names were on
the Excelsior list.
19 According to lead person, Bernie Tapia, each of the four or five
lead workers, who was in the voting area, wore a T-shirt, with “Vote
No” across the front. John Henderson testified that Respondent placed
the T-shirts in the employee break room on the day of the election.
20 Lopez stated that the lead persons’ words were audible “all
through the line.”
Tapia. Further, the latter failed to specifically deny the essence
of Lopez’ testimony—that, while positioning themselves near
the line of employees, who were waiting to vote, lead person-
nel, including him, in voices audible to the employees, made
disparaging comments about the Union and suggested employ-
ees should vote “no.” Finally, Tapia and John Henderson con-
tradicted each other as to the amount of time the former spent
near the line of employees, who were waiting to vote in the
election, with Tapia saying he remained there until the close of
the morning voting period at 11 a.m. and Henderson saying
Tapia told him they left the voting area by 9:45 a.m. In these
circumstances, I find that, on the morning of the election, acting
pursuant to instructions from managers, lead personnel, includ-
ing Bernie Tapia, Randy Delatta, and Mario Bustamante, stood
near the line of employees, who were waiting to vote, and,
while maintaining discipline, in voices audible to the employ-
ees, continually disparaged the Union and urged employees to
vote “no.”
Counsel for the Union argue that Respondent’s lead persons
are supervisors within the meaning of Section 2(11) of the Act
and, if not, were acting as its agents, within the meaning of
Section 2(13) of the Act, when maintaining order on the voting
line during the time of the election. Contrary to counsel for the
Union and in agreement with counsel for Respondent, I do not
believe the lead personnel are supervisors. Thus, while it is true
that said individuals are authorized to assign work and, utilizing
a degree of discretion, to change the work assignments of other
employees and that “an individual is a supervisor under Section
2(11) of the Act if that person exercises any of the supervisory
authority set forth therein with independent judgment,” on a
daily basis, Respondent’s employees normally know their work
assignments and the jobs they are to perform. Moreover, the
fact that lead personnel select the employees, whose work as-
signments will be changed, appears to be demonstrative of
nothing more than “. . . the knowledge expected of experienced
persons regarding which employees can best perform particular
tasks.” Hexacomb Corp., 313 NLRB 983, 984 (1994); Quadrex
Environmental Co., 308 NLRB 101 at 101 (1992). However, I
agree with counsel for the Union that the lead workers acted as
Respondent’s agents while they acted to maintain order on the
line of employees waiting to vote in the representation election.
In this regard, “the burden of proving an agency relationship is
on the party asserting its existence.” Tyson Fresh Meats, Inc.,
343 NLRB 1335, 1337 (2004). An alleged agent may have
actual authority or apparent authority. The former “. . . refers to
the power of an agent to act on his principal’s behalf when that
power is created by the principal’s manifestation to him. Said
manifestation of authority may be either express or implied.”
Id; Communications Workers Local 9431 (Pacific Bell), 304
NLRB 446 at fn. 4 (1991). On the other hand, apparent author-
ity exists when there has been some ‘manifestation’ by the
employer to employees that creates a reasonable basis for the
employees to believe that the employer has authorized the al-
leged agent to perform the acts in question.” Teddi of Califor-
nia, 338 NLRB 1032, 1037 (2003). Further, with respect to the
principal’s liability for the actions of its agent, such responsibil-
ity is established “. . . if such action is done in furtherance of
the principal’s interest and is within the general scope of au-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD512
thority attributed to the agent . . . it is enough if the principal
empowered the agent to represent the principal within the gen-
eral area in which the agent has acted.” Tyson Fresh Meats,
supra; Bio-Medical Applications of Puerto Rico, Inc., 269
NLRB 827, 828 (1984).
Herein, the record evidence is that Respondent’s lead per-
sonnel assign work, reassign work to employees, and resolve
minor disciplinary problems and that Respondent specifically
authorized four lead persons to maintain order and decorum on
the line of employees, who were waiting to vote in the repre-
sentation election. These factors convince me that Respondent
gave its lead personnel actual authority to represent its interests
in the voting area on the morning of the election and that, while
there is no affirmative evidence that Respondent specifically
authorized said individuals to utter the comments which are
attributed to them, speaking about the Union fell within the
range of their authority. This is so, for “it is enough if the prin-
cipal actually empowered the agent to represent him in the
general area within which the agent acted.” Tyson Fresh Meats,
supra at 4, quoting Teamsters Local 886 (Lee Way Motor
Freight), 229 NLRB 832 at fn. 5 (1977). Moreover, under the
concept of apparent authority, I think that Respondent created a
perception that its lead personnel represented its interests when
they conversed in the presence of the employees, who were
waiting in line to vote. Thus, Respondent’s lead personnel held
daily meetings with employees in order to give to them their
work assignments, resolved minor grievances, changed em-
ployees’ work assignments, and were considered by employees
to be supervisors. Moreover, the lead personnel were in the
voting area maintaining order among the employees, who were
in line to vote. In these circumstances, I believe that Respon-
dent “. . . either intended employees to believe that the [lead
persons] were acting for [Respondent] when they spoke to em-
ployees in the voting line or that [Respondent] should have
realized that the employees waiting in line to vote would have
perceived the [lead persons] as [Respondent’s] agents.” Tyson
Fresh Meats, supra. Accordingly, I find that Respondent was
responsible for the actions of its lead personnel, who were in
the voting area during the morning election period at its distri-
bution facility.21
Having determined that Respondent was responsible for the
acts and conduct of its lead personnel, who were in the voting
area, the question remains whether they engaged in objection-

21 Counsel for Respondent contends that it acted at the behest of the
Board agent when it sent its lead personnel to the voting area in order to
maintain decorum on the voting line. In my view, while the Board
agent was ultimately responsible for maintaining order on the voting
line, when it acted in compliance with the Board agent’s wishes and
appointed its lead personnel to monitor the employees, who waited to
vote, Respondent alone bore responsibility for their acts and conduct.
Also, contrary to counsel for Respondent, I believe that the lead per-
sons herein were no less agents of Respondent than were the shop
stewards, in Tyson Fresh Meats, supra, agents of the union. Thus, while
there are obvious fact differences, Respondent admitted it gave a range
of actual authority to the lead personnel to maintain order on the voting
line. Moreover, by utilizing the lead workers, who assign work, change
work assignments, and resolve minor employee problems, to maintain
order on the voting line, Respondent clearly created the perception that
the leads represented its interests in doing so.
able conduct. In Michem, Inc., 170 NLRB 362 (1968), the
Board promulgated a strict rule, concluding that sustained con-
versations between supervisors or agents of one of the parties to
a representation election and employees, who are waiting to
cast ballots, constituted objectionable conduct. The Board held
“. . . that the potential for distraction, last minute electioneering
or pressure, and unfair advantage from prolonged conversations
between representatives of any party to the election and voters
waiting to cast ballots is of sufficient concern to warrant a strict
rule against such conduct, without inquiry into the nature of the
conversations.” Herein, Respondent’s lead personnel, while
standing together close to the voting line for as long as an hour,
made disparaging comments about the Union and suggested
that employees cast “no” votes. While, concededly, none of the
leads directly engaged any employee in such conversation, as
they spoke in loud enough voices to make certain their com-
ments were audible to all in the voting line, their obstructive
intent was patently obvious. Therefore, in my view, the vice,
which the Milchem rule was intended to prevent, was blatantly
flaunted by Respondent’s lead personnel and the Union’s ob-
jection clearly must be found meritorious. Tyson Fresh Meats,
supra.
In the foregoing circumstances, having found each of the
Union’s existing objections to have merit, I conclude that Re-
spondent’s acts and conduct were sufficiently serious to have
destroyed the laboratory conditions, which are required for the
unfettered selection of a bargaining representative. Accord-
ingly, I remand Case 32–RC–5259 to the Regional Director for
Region 32 for the purpose of conducting a new election at such
time as he deems circumstances permit the free choice of a
bargaining representative.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. By, at all times material, publishing and maintaining in
effect confidentiality provisions in its personnel handbooks,
which, by their terms, may be understood as prohibiting em-
ployees from discussing their wages and other terms and condi-
tions of employment with fellow employees and third parties,
such as union representatives, Respondent engaged in acts and
conduct violative of Section 8(a)(1) of the Act.
4. The above unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2(6) and (7)
of the Act.
THE REMEDY
I have found that Respondent engaged in serious unfair la-
bor practices within the meaning of Section 8(a)(1) of the Act.
Therefore, I shall recommend that Respondent be ordered to
cease and desist therefrom and to take certain affirmative ac-
tions designed to effectuate the purposes and policies of the
Act, including the posting of a notice, delineating for its em-
ployees its acts of misconduct.
[Recommended Order omitted from publication.]