Tesco PLC d/b/a Fresh & Easy Neighborhood Market

National Labor Relations Board - Administrative Judge Opinions

Oct 18, 2011

31-CA-029913 (N.L.R.B. Oct. 18, 2011)

JD(SF)-40-11
Los Angeles, CA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
TESCO PLC d/b/a FRESH & EASY
NEIGHBORHOOD MARKET, INC.
and Cases: 31-CA-29913
31-CA-30021
31-CA-30088
UNITED FOOD AND COMMERCIAL
WORKERS INTERNATIONAL UNION
John Rubin and Rudy Fong, Attys., for the General Counsel.
Molly Eastman, Atty. (Seyfarth Shaw, LLP), of
Chicago, Illinois, for the Respondent.
David Rosenfeld, Atty. (Weinberg, Roger, & Rosenfeld),
of Alameda, California, for the Charging Party.
DECISION
I. STATEMENT OF THE CASE
LANA PARKE, Administrative Law Judge. Pursuant to charges filed by United Food and
Commercial Workers International Union (Charging Party or the Union), the Regional Director of
Region 31 of the National Labor Relations Board (the Board) issued order consolidating cases,
consolidated complaint, and notice of hearing (the complaint) on April 29, 2011.1 The complaint
alleges that Tesco PLC d/b/a Fresh & Easy Neighborhood Market, Inc. (Respondent) violated
Section 8(a)(1) of the National Labor Relations Act (the Act).2 This matter was tried in Los
Angeles on August 1 and 2, 2011.

1 All dates herein are 2010 unless otherwise specified.
2 At the hearing, General Counsel amended the complaint to correct a misdate and
misspelling and to add the names of road supervisors Eduardo Dominguez and Eugene Estrada
as agents of Respondent within the meaning of Section 2(13) of the Act, which allegation was
admitted by Respondent. General Counsel also amended the complaint to omit the date of
“June 2010” from subparagraph 6(a) and to replace the words “On various dates in April, May,
June and July 2010” in subparagraph 6(c) with the words “In about April 2010.” General
Counsel further amended the requested remedy to seek a special corporate wide notice
posting.
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2
II. Issues
Did Respondent violate Section 8(a)(1) of the Act by the following conduct: 5
A. Creating an impression among its employees that their union activities were
under surveillance.
B. Interrogating an employee regarding the employee's union activities.
C. Orally promulgating, and thereafter maintaining, a rule prohibiting employees 10
from talking about the Union in the store, on the clock, or on the sales floor.
D. Orally promulgating, and thereafter maintaining, a rule prohibiting employees
from discussing their terms and conditions of employment with other employees.
E. Telling employees to distribute anti-union flyers to customers.
15
III. JURISDICTION
At all material times, Respondent, a corporation and a subsidiary of Tesco, PLC, with an
office and place of business at 4211 Eagle Rock Blvd., Los Angeles, California (the Eagle Rock
store) has been engaged in the operation of retail grocery stores in multiple states. During the 20
past calendar year, Respondent, in conducting its business operations at the Eagle Rock Store,
derived gross revenues in excess of $500,000, and purchased and received at the Store goods
valued in excess of $50,000 directly from points outside the State of California. Respondent
admits, and I find, that at all material times Respondent has been an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of the Act, and the Union has been a 25
labor organization within the meaning of Section 2(5) of the Act.
IV. FINDINGS OF FACT
Unless otherwise explained, findings of fact herein are based on party admissions, 30
stipulations, and uncontroverted testimony regarding events occurring during the period of time
relevant to these proceedings. On the entire record, including my observation of the demeanor
of the witnesses, and after considering the briefs filed by General Counsel, Charging Party, and
Respondent, I find the following events occurred in the circumstances described below during
the period relevant to these proceedings.35
A. The Eagle Rock Store
Respondent operates a chain of grocery stores in a multiple states; the Eagle Rock store
in Los Angeles is the focus of this case. During the relevant period, the Eagle Rock store was 40
entirely self-checkout, i.e., customers rather than store employees scanned, bagged, and paid
for their merchandise at eight electronic checkout stations. Customer associates (CAs) assisted
customers in checking out, approved purchases of alcoholic beverages, gathered shopping
carts, stocked product shelves and displays, and generally assured that customers had
successful shopping experiences. Typically two to four customer associates worked at the 45
same time. The customer associates reported to a team lead; generally one but sometimes two
team leads worked at the same time. The team leads, in turn, reported to a store manager. On
JD(SF)-40-11
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March 29 Pablo Artica (Artica) assumed management of the Eagle Rock store, a position he
retained until May 2011.3
At the Eagle Rock store, management daily gathered employees into groups called 5
“huddles” to dispense information about how the store was doing and to give work reminders.
Employees were permitted to talk among themselves as they worked about matters unrelated to
work so long as their productivity or customer service was not impeded.
Respondent’s occasional practice at the Eagle Rock store was to distribute sales 10
coupons to customers to promote repeat shopping. Sales coupons were generally kept at the
self checkout stations where they were to be given to customers who completed a purchase
with the object of encouraging the maximum number of shoppers to return to the store to utilize
the coupon. Respondent directed CAs to place the sales coupons in customer bags or hand
them directly to customers. Respondent did not want the coupon fliers to be unrestrictedly 15
available at checkout stations, as customers might take multiple copies, thereby reducing
customer outreach.
B. Union Organizing Drive at the Eagle Rock Store
20
Between March 13–25, 17 employees of the Eagle Rock Store signed a petition
(employees’ petition) that read:
I have made an informed choice and want the United Food and Commercial Workers
(UFCW) as my bargaining agent. The undersigned constitute a majority of all regular, 25
non-supervisory full-time and part-time employees at the Tesco Fresh & Easy store
located at 4211 Eagle Rock Blvd. Los Angeles, California 90065…we hereby call on
Tesco Fresh & Easy to immediately recognize our union.
On March 26, union representatives, Brian Iwakiri and Keven Solsman, and two of 30
Respondent’s employees, Michael Acuna (Acuna) and Angel Salas (Salas), drove to
Respondent’s home office in El Segundo, California, where they met with Hugh Cousins
(Cousins), Respondent’s chief human resources officer. Salas gave Cousins the employees’
petition, saying the Eagle Rock store employees wanted to be recognized by the Union.
Cousins said the company preferred to go to an election. 35
C. Alleged Promulgation of Unlawful Rules
In April, according to the testimony of Salas, during a huddle with 4 or 5 employees in
the break room, Artica, who appeared to be reading from an email,4 told the group they could 40
not talk about the Union on the clock; they could only talk about it in the break room on their
breaks or outside of the store when off the clock. Salas recalled little else of the meeting. No
other witness testified to Artica having made such or similar statements to employees at that or
at any other time, and no employee testified that he/she had been restricted from talking about
the Union during work, which employees apparently freely did. Artica denied ever telling any 45
employees they could not talk about the Union while working.
In late June-early July at work, Acuna asked a team leader why Artica had not
addressed the attendance problems of an employee named Ricardo. The team leader told

3 Artica was a supervisor and/or an agent of the Respondent within the meaning of Sections
2 (11) and (13) of the Act.
4 Salas inferred the email had issued from Respondent’s district manager.
JD(SF)-40-11
4
Acuna it was not his business. On July 5, Artica approached Acuna at work and asked him why
he had inquired about another employee’s discipline. Artica told Acuna it was none of his
business to talk about another employee’s discipline if the employee did not want to share the
information. Artica warned Acuna he would be disciplined if he did not stop.5 5
D. Alleged Impression of Surveillance and Interrogation
In May, union representatives scheduled a meeting with Respondent’s employees to be
held a few miles from the Eagle Rock store on May 19, in which employee safety and training 10
issues were to be discussed.6 Artica was aware of the meeting.7 Sometime before the
meeting, as employee Jose Montiel-Rangel (Montiel-Rangel) walked with Artica to retrieve
Montiel-Rangel’s bicycle from a storage facility at the store, Artica asked Montiel-Rangel if he
was going to the “meeting.” When Montiel-Rangel feigned ignorance, Artica said, “You know,
the meeting that you guys are having today, you know, your safety meeting.” 15
Montiel-Rangel again disclaimed knowledge of any meeting, and Artica asked if he was
going to take notes for him at the meeting. Montiel-Rangel asked who had squealed about the
meeting, and Artica said, “It’s amazing what you can find on the internet.”8
20
E. Alleged Direction to Distribute Antiunion Flyers
Beginning in November, union organizers and employees distributed leaflets (two-sided
English and Spanish) near the front entrance of the Eagle Rock store to customers and workers
(union leaflet). The leaflets read, in pertinent part:25
Tell Fresh & Easy: Let Your Workers Freely Choose a Union
Despite repeated requests from workers, Fresh & Easy has never recognized a union of
their workers—instead choosing to fight their employees as they try to form a union.
Administrative Law Judges in two states have found that Fresh & Easy broke the law by 30
committing unfair labor practices…

5 Artica did not recall having that specific conversation although he recalled telling several
people that individual employees’ discipline is their own business. He denied telling any
employee he/she could not talk about discipline. I found Acuna to be a reliable witness, and I
accept his testimony.
6 The May meeting was one of a series in which the Union discussed with employees proper
lifting techniques, ergonomics, and avoidance of employee injuries.
7 An otherwise uninvolved employee told Artica of the meeting. Artica testified he was
interested in the meeting because he wanted to know how to improve safety at the Eagle Rock
store.
8 Michael Acuna (Acuna) testified to an earlier, very similar May 19 interaction among Artica,
Montiel-Rangel, and Acuna, in which Artica asked the two employees if they could "make
notations and suggestions as far as the safety meeting" they were going to have and bring it in
to him. Montiel-Rangel did not corroborate Acuna’s testimony of this conversation. It is difficult
to reconcile Acuna and Montiel-Rangel’s testimony, particularly as Montiel-Rangel was
surprised by Artica’s knowledge of the meeting, which he could not have been if the earlier
discussion described by Acuna had taken place. I find it unnecessary to resolve the
inconsistencies, as Acuna’s account, even if accepted, would only add to the existing allegation
and not create a different one.
JD(SF)-40-11
5
All Fresh & Easy employees deserve the right to form a union, if they choose, free from
intimidation and fear.
Some customers became contentious during distribution of the leaflets, and some customers 5
complained to store management about the leafleting.
Sometime in December, Respondent prepared a flyer for distribution to customers that
contained a $5 store coupon (Respondent’s coupon flyer) and read in pertinent part:
10
 Sorry for any inconvenience union protesters may have caused you.
 The protesters are not our employees and have been hired by the [Union].
 The [Union] wants fresh & easy to unionize. We’ve told the [Union] this is a
decision only our employees can make. They have not made this choice.
 We offer good pay as well as comprehensive, affordable benefits to all our 15
employees.
 We take pride in being a great place to work
Respondent instructed its CAs to distribute Respondent’s coupon flyers to customers. 9
Employee Carlos Juarez (Juarez) observed various CAs putting copies of the coupon flyer in 20
customer’s bags or personally handing it to them.
On January 10, 2011, Artica noticed that Juarez was either not giving out the flyers or
was just placing them in people’s bags. Artica approached Juarez as he was helping a
customer at checkout and asked, “Aren’t you going to pass those [coupon flyers] out to the25
customers,” adding that Juarez was supposed to do so.
Juarez told Artica he could not do it. When Artica asked if Juarez was refusing to pass
out Respondent’s coupon flyers, Juarez said Artica could not force him to do something against
his will. Artica asked again if Juarez was refusing to pass out the flyers. Juarez said, “Pablo, 30
you’ve got to respect my rights,” saying the Union could be his religion. Artica asked Juarez a
third and a fourth time if he were refusing to pass out Respondent’s coupon flyers. In response
to the fourth enquiry, Juarez said, “Yes, I am refusing to pass all of those flyers out because
they’re lying to customers.” Ortiz walked away.10
35
In early January 2011, Artica directed Montiel-Rangel, who was working at the checkout
stations, to ensure that every customer received a coupon flyer. For the next 20 minutes or so,
Montiel-Rangel placed a flyer in a shopping bag of each customer upon checkout. Artica
approached Montiel-Rangel, saying he had not seen Montiel-Rangel hand Respondent’s
coupon flyers to customers. Montiel-Rangel said he was placing Respondent’s coupon flyers in 40
shopping bags. Artica told Montiel-Rangel to physically hand Respondent’s coupon flyers to
customers. Montiel-Rangel demurred, saying that as a union supporter, he was not thrilled
about having to hand the flyers to customers, but if it was part of his duties, he would do so.
Thereafter, Montiel-Rangel handed coupon flyers directly to customers.

9 Respondent also assigned employees involved in its customer ambassador program to
distribute Respondent’s coupon flyers at the Eagle Rock and other Fresh & Easy stores where
the Union leafleted. The customer ambassador program, in pertinent part, provided program
employees with the opportunity to meet and greet customers outside Fresh & Easy stores and
share with them information about various public relations matters including the company’s
position regarding unionization.
10 This account reflects the testimony of Juarez, which Artica essentially corroborated.
JD(SF)-40-11
6
V. Discussion
A. Interrogation and Creating the Impression of Surveillance 5
The complaint alleges that in June, Store Manager Artica interrogated employees about
their union activities and created an impression that their union activities were under
surveillance by Respondent.
10
On May 10, Artica asked an employee, Montiel-Rangel, if he were going to the union
meeting scheduled for later that day, disclosing his knowledge of its purpose and asking the
employee to take notes for him. The General Counsel argues that by Artica’s conduct,
Respondent interrogated Montiel-Rangel about his union activities. The General Counsel also
argues that Artica’s questions created the impression that he was keeping employees’ union 15
activities under surveillance.
Respondent contends that Artica learned of the May 19 union meeting through an
employee’s voluntary, uncoerced disclosure and that his later exchange with employees had the
legitimate purpose of seeking information about potential safety problems, which the union 20
meeting was expected to address.
Supervisory questioning of employees about union activity is not a per se violation of
Section 8(a)(1) of the Act. The test is whether, under all the circumstances, the interrogation
reasonably tends to restrain, coerce, or interfere with statutory rights. To support a finding of 25
illegality, the words themselves, or the context in which they are used, must suggest an element
of coercion or interference. Rossmore House, 269 NLRB 1176, 1177–1178 (1984), affd. 760
F.2d 1006 (9th Cir. 1985). If the questioning meets that test, it may also be found to have
created the impression of surveillance. See Stevens Creek Chrysler Jeep Dodge, Inc., 357
NLRB No. 57, slip op. 10 (2011) (interrogation and creation of the impression of surveillance 30
when, following a union meeting, employer asked employees who paid for pizza at the meeting).
Determining if Artica’s statements constituted interrogation and/or created an unlawful
impression of surveillance requires an objective test of whether, under the circumstances,
Artica’s conduct was such as would tend to interfere with, restrain, or coerce employees in the 35
exercise of the rights guaranteed under Section 7 of the Act. See Broadway, 267 NLRB 385,
400 (1983) (citing United States Steel Corp. v. NLRB, 682 F.2d 98 (3d Cir. 1982)); Fresh & Easy
Neighborhood Market Inc., 356 NLRB No. 90 fn. 2 (2011), citing Double D Construction Group,
Inc., 339 NLRB 303, 303–304 (2003) (“The test of whether a statement is unlawful is whether
the words could reasonably be construed as coercive, whether or not that is the only reasonable 40
construction.”).
I find Artica’s May 19 statements to employees would reasonably and objectively have
had a coercive effect. There is no evidence that knowledge of the union safety meeting was
commonplace or inconsequential; indeed Montiel-Rangel’s surprised, disclaiming reaction to 45
Artica’s questions evinces the contrary. In those circumstances, Artica’s benign or even
constructive purpose in inquiring about the union meeting is irrelevant. His probing must
objectively have tended to interfere with, restrain, or coerce employees in the exercise of their
Section 7 rights and have thereby violated Section 8(a)(1) of the Act.
50
JD(SF)-40-11
7
B. Promulgation and maintenance of unlawful rules
The complaint alleges that Respondent unlawfully promulgated and maintained a rule
prohibiting employees from talking about the Union in the store, on the clock, or on the sales 5
floor. The evidence proffered to support that allegation is Salas’ testimony that Artica told
employee participants in a huddle that employees could only talk about the Union in the break
room on their breaks or outside of the store when off the clock.
Salas did not demonstrate a general recall of what Artica said in the April meeting 10
beyond the specific statements he testified to. Moreover, Salas did not set the statements he
did recall in any context, certainly not one sufficient for me to determine whether Salas’
testimony showed a clear recollection of what Artica said or whether it reflected inferences he
perhaps unwarrantedly drew. General Counsel asserts that Respondent was found in Fresh &
Easy Neighborhood Market Inc., 356 NLRB No. 90 slip op. at 6, 7 (2011), to have committed an 15
identical violation at the Spring Valley, California store. The evidence in that case established
that in 2009, Paula Agwu, Respondent’s corporate human relations manager, told an employee
of the Spring Valley store that she could not hand out paperwork or brochures while on the clock
or on the sales floor, but essentially conceded that employees could at those times discuss
union matters. While Agwu’s acknowledgment of employees’ rights to discuss the Union during 20
work time did not, in the Board’s view, cure a previous violation, it weakens any inference Salas
may have drawn that Artica was articulating restrictions from an upper managerial email at the
huddle and casts further doubt on his testimony in this regard. In these circumstances, I cannot
rely on Salas’ testimony of the statements.
25
The General Counsel bears the burden of proving that Respondent committed allegedly
unlawful conduct. As I cannot rely on Salas’ testimony, the General Counsel has not met its
burden. I shall, therefore, dismiss complaint subparagraph 6(c).
The complaint also alleges at subparagraph (d) that Respondent unlawfully promulgated 30
and maintained a rule prohibiting employees from discussing their terms and conditions of
employment with other employees. The evidence adduced in support of the allegation shows
that on July 5, Artica told employee Acuna not to talk about other employees’ discipline on pain
of incurring his own discipline.
35
Section 7 of the Act gives employees the right to engage in union activities or other
concerted activities for the purpose of collective bargaining or other mutual aid or protection.
Section 8(a)(1) of the Act prohibits interference with, restraint, or coercion of employees in the
exercise of those rights.
40
The Board considers that an employer's maintenance of a work rule violates Section
8(a)(1) if employees would reasonably construe the language of the rule to restrict the exercise
of Section 7 rights, applying a standard articulated in Lutheran Heritage Village-Livonia, 343
NLRB 646, 646–647 (2004), and restated in The NLS Group, 352 NLRB 744–745 (2008):
45
If the rule explicitly restricts Section 7 activity, it is unlawful. If the rule does not explicitly
restrict Section 7 activity, it is nonetheless unlawful if (1) employees would reasonably
construe the language of the rule to prohibit Section 7 activity; (2) the rule was
promulgated in response to union activity; or (3) the rule has been applied to restrict the
exercise of Section 7 rights. In applying these principles, the Board refrains from reading 50
particular phrases in isolation, and it does not presume improper interference with
employee rights.
JD(SF)-40-11
8
The Board has answered in the affirmative the question of whether employees have a
Section 7 right to discuss discipline or disciplinary investigations involving fellow employees.
See Desert Palace, Inc., d/b/a Caesar's Palace, 336 NLRB 271 (2001);11 see also Verizon 5
Wireless, 349 NLRB 640, 658–659 (2007), (prohibiting employee discussion of workplace
concerns relating to discipline abridges Section 7 rights). Artica’s all-encompassing embargo on
employees talking about other employees’ discipline explicitly interferes with that right and
violates Section 8(a)(1).
10
C. Directing Employees to Distribute Antiunion Flyers to Customers
The complaint alleges that Respondent violated Section 8(a)(1) when Artica told
employees to distribute antiunion flyers to customers. The flyer in question, Respondent’s
coupon flyer, was directed to customers and distributed in response to customer complaints 15
about lawful prounion activism outside the store. The flyer apologized for customer
inconvenience, disclaimed employee involvement in the activism, asserted Respondent’s
position that employees had not chosen the Union to represent them,12 and touted
Respondent’s good pay and affordable benefits.
20
The Board has held that an employer may not compel employees to express opposition
to union representation:
[A]n employee has a Section 7 right to choose, free from any employer coercion, the
degree to which he or she will participate in the debate concerning representation. This 25
includes whether to oppose the union independently of the employer's own efforts, or to
oppose representation by, for example, wearing an employer's campaign paraphernalia
or, alternatively, by appearing in an employer's campaign videotape...A direct
solicitation pressures employees into making an observable choice, and thereby coerces
them in the exercise of their Section 7 rights.1330

11 Although the Board found in Caesar's Palace that an on-going drug investigation justified
the employer’s conduct, the Board emphasized employees’ right to discuss discipline.
12 Given Respondent’s refusal to accede to the Union’s majority-supported petition for
recognition, insisting instead that employees demonstrate union choice through a Board-
conducted election, this assertion was overly simplistic although not explicitly inaccurate.
13 The Smithfield Packing Company, Inc., Tar Heel Division, 344 NLRB 1, 3–4 (2004)
(requiring employee to stamp “Vote No” on hogs), quoting from Allegheny Ludlum Corp., 333
NLRB 734, 741 (2001) (solicitation of employees to participate in an antiunion videotape lawful
only upon certain assurances), and citing Fieldcrest Cannon, Inc., 318 NLRB 470, 496 (1995),
enfd. in relevant part 97 F.3d 65, 72, 74 (4th Cir. 1996) (directing an employee to wear a “Vote
No” T-shirt); R. L. White Co., 262 NLRB 575, 576–577 (1982) (distributing and coercively
encouraging employees to wear pro-employer T-shirts); Florida Steel Corp., 224 NLRB 587,
588-589 (1976), enfd. mem. 552 F.2d 368 (5th Cir. 1977) (requiring employees to pose for
photographs holding “vote no” signs). The Board found these employers' actions pressured
employees into making an observable choice concerning their participation in an election
campaign.
JD(SF)-40-11
9
The Board also prohibits employers from requiring indirect participation in disseminating an
antiunion message. See Clinton Food 4 Less, 288 NLRB 597 (1988) (the Board adopted the
administrative law judge's decision that an employer who required an employee upon pain of
discipline to distribute to each customer checking out at her register a copy of the employer’s 5
handbill opposing the Union, thereby conveying its antiunion message, violates Section 8(a)(1)
of the Act).
The above cases appear to pose a threshold question that must be answered before it
can be determined whether Respondent’s conduct in requiring employees to disseminate its 10
coupon flyers was unlawful. That question is whether the coupon flyer can reasonably be
viewed as an antiunion communication or as a component of the company’s campaign against
union representation. In Allegheny Ludlum, at 745, the Board restricted its holding to campaign
materials that “reasonably tend[ed] to indicate the employee's position on union representation.”
The Board “perceive[d] no basis for finding that the inclusion of employees' images in a 15
videotape that [did] not convey a message about the employees' views concerning union
representation, without more, would violate Section 8(a)(1).” Ibid. All cases cited above involve
employer-required dissemination of an employer’s antiunion or union oppositional position. The
Respondent’s coupon flyer must, therefore, be reviewed with an eye for the explicit or implicit
expression of any antiunion or union oppositional stance.20
General Counsel did not address this question directly, arguing, rather, that it is
irrelevant whether Respondent’s coupon flyer was explicitly antiunion. The pivotal
consideration, in General Counsel’s view, is that the coupon flyer constituted campaign
literature generally because it “reference[d] the Union's organizing campaign, apologize[d] to 25
the public. . . boast[ed] about Respondent's business practices . . . [and] was a counter to the
Union's flyer.” By instructing Juarez and Montiel-Rangel to hand out its coupon flyer to
customers, General Counsel asserts, Respondent coerced them to act as its agents, thereby
denying them their right to freely exercise Section 7 rights.
30
Respondent argues that its coupon flyer articulated neither a pro nor antiunion view. As
the coupon flyer was neutral as to unionization, Respondent urges, employee distribution of it
could not convey any employee’s view of unionization or enable Respondent to assess his/her
sympathies.
35
I am persuaded that Respondent’s coupon flyer could in no way be viewed as antiunion
campaign material. At most, the flyer was a self serving attempt to conciliate irate customers by
justifying the company’s lawful refusal to recognize the Union without an election and burnishing
its image as a community asset. In neither tactic did Respondent malign or even refer
negatively to the Union or to employee unionization. The mere fact that Respondent’s coupon 40
flyer was a byproduct of the union organizational drive, cannot convert the flyer into antiunion
campaign material.
As Respondent’s coupon flyer did not express a position on unionization, it could not
have conveyed the union view, pro or con, of any distributing employee. Requiring employees 45
to distribute the Respondent’s coupon flyers to customers did not, therefore force employees
into making an observable choice concerning their participation in an election campaign or
“contravene employees’ Section 7 right to choose whether to express an opinion [about
unionization] or remain silent.” Allegheny Ludlum, at 744–745. I shall, therefore, dismiss that
allegation of the complaint.50
JD(SF)-40-11
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VI. CONCLUSIONS OF LAW
A. The Respondent is an employer engaged in commerce and in a business affecting 5
commerce within the meaning of Section 2(6) and (7) of the Act.
B. The Union is a labor organization within the meaning of Section 2(5) of the Act.
C. The Respondent violated Section 8(a)(1) of the Act by the following:
1. Creating an impression among its employees that their union activities were under
surveillance. 10
2. Interrogating an employee regarding the employee's union activities.
3. Orally promulgating, and thereafter maintaining, a rule prohibiting employees from
discussing their discipline, a term and condition of employment, with other
employees.
D. The unfair labor practices set forth above affect commerce within the meaning of Section 15
8(a)(1) and Section 2(6) and (7) of the Act.
REMEDY
Having found Respondent has engaged in certain unfair labor practices, I find it must be 20
ordered to cease and desist and to take certain affirmative action designed to effectuate the
policies of the Act. The Respondent will be ordered to post appropriate notices in the manner
set forth hereafter.
General Counsel and Charging Party seek a broad notice, asserting that Respondent is 25
a repeat violator of the Act. As the General Counsel points out, two prior Board decisions
involving Respondent have recently issued: Fresh & Easy Neighborhood Market, Inc, 356
NLRB No. 85 (2011), finding that during the Union's organizing drive at Respondent’s Las
Vegas stores Fresh & Easy, Respondent unlawfully: (1) interrogated employees; (2) created the
impression of surveillance; and (3) promulgated and maintained an unlawfully overbroad no-30
distribution rule; Fresh & Easy Neighborhood Market, 356 NLRB No. 90 (2011), finding that
Respondent at its Spring Valley, California store, unlawfully (1) promulgated and maintained a
rule prohibiting employees from talking about the Union while working, (2) prohibited employees
from talking about their discipline with other employees while working, and (3) invited
employees to quit their employment as a response to their protected activities. Given corporate 35
oversight of the labor relations of individual stores and the repetition of conduct already found
unlawful by the Board, I find a broad notice is appropriate. See Hickmott Foods, 242 NLRB 1357
(1979) (broad order warranted when a respondent is shown to have a proclivity to violate the
Act).
40
General Counsel and Charging Party also seek corporate-wide notice posting because
of corporate-wide involvement in the distribution of Respondent’s coupon flyer. Charging Party
seeks the additional remedy of requiring Respondent to pass out the Board’s notice to
customers. As I have not found that Respondent violated the Act by requiring employees to
distribute its coupon flyer to customers, I find no basis for ordering corporate-wide posting or 45
distribution of the Board’s notice to customers.
General Counsel seeks the additional remedy of notice reading to employees. The
unlawful conduct found in this case does not constitute such serious, persistent, and
widespread unfair labor practices as to require the notice to be read aloud. 50
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11
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended14
ORDER 5
Respondent, Tesco PLC d/b/a Fresh & Easy Neighborhood Market, Inc., Los Angeles,
California, its officers, agents, successors, and assigns, shall
1. Cease and desist from engaging in the following conduct: 10
(a) Creating an impression among its employees that their union activities were under
surveillance.
(b) Interrogating an employee regarding the employee's union activities.
(c) Orally promulgating, and thereafter maintaining, a rule prohibiting employees from
discussing their discipline, a term and condition of employment, with other 15
employees.
(d) In any other 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 necessary to effectuate the policies of the Act.20
(a) Within 14 days after service by the Region, post at its facilities in Los Angeles,
California, copies of the attached notice marked “Appendix.”15 Copies of the notice,
on forms provided by the Regional Director for Region 31after being signed by the
Respondent's authorized representative, shall be posted by the Respondent 25
immediately upon receipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to ensure that the notices are
not altered, defaced, or covered by any other material. In addition to physical posting
of paper notices, the notices shall be distributed electronically, such as by email, 30
posting on an intranet or an internet site, and/or other electronic means, if the
Respondent customarily communicates with its employees by such means.16 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 current employees 35
and former employees employed by Respondent at any time since May 2011.

14 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.
15 If this Order is enforced by a Judgment of the United States Court of Appeals, the words
in the notice reading “POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD”
shall read “POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF
APPEALS ENFORCING AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD.”
16 The question of whether Respondent electronically communicates with employees is left
to the compliance stage of these proceedings.
JD(SF)-40-11
12
(b) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the
steps that Respondent has taken to comply.
5
Dated: Washington, D.C. October 18, 2011
Lana H. Parke
Administrative Law Judge
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 violated Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT do anything that interferes with these rights. More particularly,
WE WILL NOT create an impression that the activities of our employees in support of any union
are under surveillance.
WE WILL NOT question employees about their union activities or the union activities of other
employees.
WE WILL NOT make and/or maintain any rule preventing employees from discussing their
terms and conditions of employment, including discipline, with other employees.
WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise
of the rights stated above.
TESCO PLC d/b/a FRESH & EASY
NEIGHBORHOOD MARKET, INC.
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
11150 West Olympic Boulevard, Suite 700, Los Angeles, CA 90064-1824
(310) 235-7352, Hours: 8:30 a.m. to 5 p.m.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST NOT BE
ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR
COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (310) 235-7424.