Fresh & Easy Neighborhood Market, Inc., (2014)

Docket Number:28-CA-064411

OTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes.

Fresh & Easy Neighborhood Market, Inc. and Margaret Elias. Case 28–CA–064411

August 11 2014



This case raises the issue of whether an employee was engaged in “concerted activity” for the purpose of “mutual aid or protection” within the meaning of Section 7 of the National Labor Relations Act when she sought assistance from her coworkers in raising a sexual harassment complaint to her employer. The judge found that she was not, and the Acting General Counsel excepts.1 We find that the employee was indeed engaged in concerted activity for the purpose of mutual aid or protection. We also agree with the Acting General Counsel that, to the extent the Board’s divided decision in Holling Press, Inc., 343 NLRB 301 (2004), would require a finding that the employee’s activity was not for mutual aid or protection, that case—which lies far outside the mainstream of Board precedent—should be overruled. Nevertheless, in the particular circumstances of this case, we agree with the judge that the employer did not violate Section 8(a)(1) when it questioned the employee about why she

1 On April 23, 2012, Administrative Law Judge Joel P. Biblowitz issued the attached decision. The Acting General Counsel filed exceptions and a supporting brief. The Respondent filed an answering brief, and the Acting General Counsel filed a reply brief.

The National Labor Relations Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings, and conclusions only to the extent consistent with this Decision and Order. We shall modify the judge’s recommended Order to reflect the violations found and in accordance with the Board’s standard remedial language, and consistent with our decision in J. Picini Flooring, 356 NLRB No. 9 (2010). We shall also substitute new notices to conform to the Order as modified and with Durham School Services, 360 NLRB No. 85 (2014).

The judge found that the Respondent violated Sec. 8(a)(1) of the Act by maintaining an overbroad and discriminatory confidentiality rule in its employee handbook, on its company-wide intranet portal, and on its New Hire CDs, and by failing to notify its employees at the Phoenix, Arizona facility of changes to its solicitation and distribution rule. In the absence of exceptions, we adopt the judge’s findings in this regard. As discussed in the Amended Remedy section of this decision, we shall amend the remedy and modify the recommended Order to require notice posting by the Respondent at all of its facilities nationwide with respect to its maintenance of the unlawful confidentiality policy. In addition, in the absence of exceptions, we adopt the judge’s dismissal of the allegations that the Respondent violated Sec. 8(a)(1) by maintaining an overly broad and discriminatory solicitation policy, by creating an impression of surveillance, and by threatening employees with unspecified reprisals.

obtained witness statements from her coworkers and instructed her not to obtain additional statements.


On August 24, 2011,2 employee Margaret Elias, a cashier at the Respondent’s grocery store, asked supervisor Bruce Churley if she could participate in training related to the sale of alcohol, known as “TIPS.” Churley told her to write a note to him on a whiteboard in the breakroom, which Elias did on August 25. Her message read, in relevant part: “Bruce . . . Could you please sign me up for TIPS training on 9/10/11?”

On August 26, Elias saw that the word “TIPS” had been changed to “TITS” and that a picture of a worm or peanut urinating on her name had been added to her original whiteboard message. Elias asked Michael Anderson, her team leader, about filing a sexual harassment complaint and showed him the whiteboard. When Anderson asked why she would want to do so, Elias left the breakroom, angry at his reaction. Afterward, Anderson telephoned Churley and, when informed of Elias’ plan to file a sexual harassment complaint, Churley told Anderson to take a photograph of the altered whiteboard message and erase it.

That same day, Elias hand copied the whiteboard picture and the altered message to a piece of paper.3 She asked Anderson and two coworkers, Krista Yates and Victoria Giro, to sign the document. All three did so. Regarding the substance of Elias’ conversations with those employees, the credited evidence establishes the following:4 Before Anderson signed, Elias told him that she wanted to depict what was on the whiteboard and to file a sexual harassment complaint in connection with that content. Likewise, before Yates signed, Elias indicated to her that she wanted to file a complaint.5 When Giro signed the document, she knew Elias was upset by the whiteboard alteration and, at some point during their conversation about the document, Elias mentioned wanting to file a complaint.6 Giro, who testified that she personally found the whiteboard alteration inappropriate,

2 All dates are 2011 unless otherwise stated.

3 Employees at Elias’ level were not permitted to carry or use cameras at the facility.

4 The judge generally credited the testimony of Anderson, Yates, and Giro.

5 Yates testified that when Elias raised the whiteboard alteration to her, Elias indicated that she wanted to file a complaint, but Yates could not recall if Elias specifically stated that she wanted to file a sexual harassment complaint.

6 As the hearing transcript reflects, Giro testified that Elias did inform Giro of her desire to file a complaint about the whiteboard incident, and the judge credited Giro’s testimony generally. The judge’s finding that Elias never told Giro that she wanted to file a complaint is clearly erroneous.


suggested that Elias report the matter to Churley so he could review the breakroom cameras, find out who altered Elias’ message, and take appropriate corrective action. As found by the judge, during these conversations Elias was loud and angry.

At the time that Anderson, Yates, and Giro signed Elias’ document, only the hand- drawn picture and the altered whiteboard message appeared on the paper. At some later point, Elias added the following statement: “Someone changed the board to ‘TITS’ instead of TIPS and [sic] and put a worm pissing on my name. I take this as sexual harassement [sic]. This has been on the [b]oard since I got here at 2PM.” Elias testified that although she did not intend that statement to be a joint complaint, “I was offended and I believe that the other girls were offended too. And it just seemed that if we were to file a harassment charge that it wouldn’t happen again.” Elias also testified that she felt the altered message was “sexual-based harassment” for her and the two other women who were working that night.7

Later on August 26, Churley returned to the store and saw the photograph of the altered whiteboard that Anderson had taken. Churley then reviewed the breakroom’s video footage and identified Gary Hamner as the employee who altered Elias’ whiteboard message. Churley emailed Employee Relations Manager Monyia Jackson to report the incident. He also spoke to Anderson, Giro, and Yates about Elias’ request that they sign her handwritten reproduction of the altered whiteboard message. The three stated that they believed they were only witnessing that Elias’ reproduction was correct, that they did not want to help her bring a sexual harassment complaint, and that they felt forced to sign the document. Nonetheless, Giro testified that she would not have liked the whiteboard alteration if it had happened to her and thought that management should have been notified in some way so that disciplinary action could be taken. In fact, Giro testified that, the day after she signed Elias’ document, she went to Churley and told him that she thought the whiteboard alteration was inappropriate and that she hoped he would “take care of it.”

In the following days, Yates made a formal complaint against Elias for “bullying” her into signing the statement showing the reproduced whiteboard message and accused Elias of altering the statement after Yates signed it.

7 Although the judge discredited Elias’ testimony regarding her demeanor while soliciting her coworkers to sign the reproduced whiteboard message, he did not discredit her testimony as to her reasons for seeking to raise the sexual harassment complaint to the Respondent. We may thus properly rely on Elias’ testimony on this point. See River Ranch Fresh Foods, LLC, 351 NLRB 115, 117, 117 fn. 15 (2007).

In addition, Hamner complained that Elias cursed at him upon his arrival to work on August 26.

Employee Relations Manager Jackson then began an investigation into the whiteboard incident and the complaints against Elias. After interviewing Anderson, Yates, and Hamner, Jackson telephoned Elias on August

31.8 Jackson spoke to Elias about her sexual harassment complaint, as well as her coworkers’ complaints against her. When Jackson questioned Elias about why she felt that she had to obtain her coworkers’ signatures on the statement, Elias responded that it was for her own protection. Jackson also instructed Elias not to obtain any further statements so that Jackson could conduct her investigation into the incident. She told Elias, however, that Elias could talk to other employees and ask them to be witnesses for her. Elias was never threatened with and did not receive discipline for her actions. Upon completing...

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