Albertson's Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Albertson's, Inc. and Local 455. United Food and Commercial Workers International Union, AFL- CIO.' Case 23 CA 6675 July 10, 1979 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBI:RS PENEL. IA) ANt) TRUESDAI.E On March 27, 1979, Administrative Law Judge Roger B. Holmes issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief', and the General Counsel filed a brief in support of the Administrative Law Judge's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings 2 and conclusions of the Administrative Law Judge, except as modified herein. We agree with the Administrative Law Judge's dis- missal of the complaint allegations that Respondent violated Section 8(a)(3) and ( I ) of the Act by its ter- mination of Ortiz. However, we do not agree with his finding of a violation of Section 8(a)(I) in that Re- spondent maintained an overly broad no-solicitation rule. No violation relating to Respondent's no-solicita- tion rule was alleged in the complaint, and no motion to amend the complaint was made. The existence of a no-solicitation rule was first introduced at the hearing by the General Counsel through the testimony of wit- ness Alvarez as background evidence for the purpose of demonstrating union animus in connection with the complaint allegations of the unlawful discharge of Ortiz. Neither copies of the rule nor the exact word- ing thereof was ever introduced into evidence. Thus, Respondent was never put on notice with respect to any violation of this nature. In these circumstances, we find that the matter was not fully litigated. Moreover, we note that in his brief to the Adminis- trative Law Judge counsel for the General Counsel I The name of the Union herein has been changed to reflect the new name resulting from the June 7, 1979, merger of Retail Clerks International Union and Amalgamated Meatcutters and Butcher Workmen of North America. 2 In sec. III, B,. par. 19, of the Decision, the Administrative L.aw Judge noted that alleged discriminatee Ortiz gave false testimony at the hearing herein and recommended that the Board refer this matter to the "appropri- ate governmental authorities." After careful consideration, we have decided to take no further action. specifically states that he was not seeking a finding with respect to the rule. This is unlike the situation in Alexander Dawson, Inc. d/h/a Alexander's Restaurant and Lounge,3 which was relied upon by the Adminis- trative Law Judge. In that case the General Counsel did not go so far as to affirmatively disclaim his intent to urge the finding of' a violation. Section 3(d) of the Act provides that the General Counsel "shall have final authority, on behalf of the Board, in respect of the investigation of charges and issuance of com- plaints under section 10, and in respect of the pros- ecution of such complaints before the Board ... ." Thus, where the General Counsel has clearly indi- cated his intention not to urge a particular violation, as in the instant case, the Board has no authority to amend the complaint or find a violation. Accordingly. we shall order that the complaint herein be dismissed. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board hereby orders that the complaint be, and it hereby is, dismissed in its entirety. '228 NI.RB 165 (1977). DECISION Ro(iE R B. Ho.Mt:S. Administrative l.aw Judge: The un- fair labor practice charge in this proceeding was filed on August 12. 1977. by Retail Clerks Union Local 455. char- tered by Retail Clerks International Association, Al. CIO, herein called the Union. The Regional Director for Region 23 of the National La- bor Relations Board, herein called the Board, who was act- ing on behalf of the General Counsel of the Board, issued on September 28, 1977, a complaint and notice of hearing against Albertson's. Inc., herein called Respondent. The General Counsel's complaint alleges that Respon- dent has engaged in unfair labor practices within the mean- ing of Section 8(a)(l) and (3) of the National Labor Rela- tions Act, as amended, herein called the Act. Specifically, the General Counsel makes two contentions with regard to the termination of John Ortiz on or about July 9, 1977. One allegation is that Respondent discharged Ortiz because Or- tiz engaged in union or other protected concerted activities, and thereby, the General Counsel alleges, Respondent vio- lated Section 8(a)(l) and (3) of the Act. A second conten- tion by the General Counsel is that Respondent discharged Ortiz, in part, because Ortiz refused on or about July 8, 1977, to sign a written warning for stocking mispriced mer- chandise unless Respondent also issued a written warning to Bill Garvin, an Anglo or Caucasian employee, for alleg- edly stocking mispriced merchandise a few days earlier. As to that allegation, the General Counsel contends that Re- spondent thereby violated Section 8(a)( I1) of the Act. Respondent filed an answer to the General Counsel's complaint and denied the commission of the alleged unfair 243 NLRB No. 60 362 AIBEIRTSON'S, IN('. labor practices. Thereafter, counsel for the General Counsel fled a pretrial motion requesting that paragraphs 8 and 9 of' the General Counsel's complaint be deemed to be admitted to be true based on the General Counsel's contention that Respondent's answer failed to comply with the require- ments set forth in Section 102.20 of the Board's Rules and Regulations. Respondent filed an opposition to the General Counsel's pretrial motion, and the General Counsel also filed a response to Respondent's opposition. Administrative Law Judge Charles W. Schneider issued an Order on January 20, 1978, in which he found that Re- spondent's answer was deficient in responding to the allega- tions contained in paragraphs 8 and 9 of the General Coun- sel's complaint. Administrative Law Judge Schneider granted Respondent an opportunity to amend its answer to paragraphs 8 and 9 of the General Counsel's complaint. and in the event that a proper answer was not filed, the allegations of those two paragraphs were deemed to be ad- mitted to be true. Thereafter, Respondent did not amend its answer to the General Counsel's complaint. Accordingly, the allegations in paragraphs 8 and 9 of the General Coun- sel's complaint are found to be true. They state: 8. On or about July 8, 1977, John M. Ortiz, in refus- ing to sign the written warning referred to above in paragraph 7, protested that he would not sign the warning unless Respondent issued a written warning to Bill Garvin, an Anglo or Caucasian employee, for, al- legedly, stocking mispriced merchandise a few days earlier. 9. On or about July 8, 1977, Respondent, by and through Grocery Third Man Williams, following John M. Ortiz' refusal to sign the warning as described above in paragraph 8, told Ortiz that the matter was forgotten and to return to work. The hearing was held before me on January 15, 1979, at Corpus Christi. Texas. The time for filing briefs was set for February 20, 1979, Briefs were received from the counsel for the General Counsel and the attorneys for Respondent. FINDINGS OF FACT I. JURISDICTION Respondent is a Delaware corporation with its principal office located in Boise, Idaho. Respondent is engaged in selling drugs and groceries at various retail facilities in Texas and in other States, including a store located in Cor- pus Christi, Texas. During the 12-month period preceding the issuance of the General Counsel's complaint, Respondent received to- tal gross revenue in excess of $500,000. During the same period of time, Respondent purchased goods valued in ex- cess of $50,000 from firms which shipped such goods from points outside the State of Texas directly to Respondent at points located within the State of Texas. Upon the foregoing facts, and the entire record herein. I find that Respondent has been, at all times material herein, an employer engaged in commerce and in a business affect- ing commerce within the meaning of Section 2(6) and (7) of the Act. 11. 111 1 ABOR O)R(iANIZAII(N INV()OI I) It was stipulated at the hearing that the Union has been, at all times material herein. a labor organization within the meaning of Section 2(5) of the Act. Based upon the forego- ing. and the entire record in this case. I find that fact to be so. 111. t11 All.(iEFI) UNFAIR ABOR PRA( ('IS A. 7The f"itnessev In alphabetical order by their last names, the following eight persons appeared as witnesses at the hearing in this proceeding: Frank .41are:, Jr., was employed as a night stocker bh Respondent for about 3 or 4 months. Alvarez Xwas termi- nated by Respondent around the first part of August 1977. Subsequently, an unfair labor practice charge was filed. on January 31. 1978, with regard to his termination, but the charge was withdrawn 3 days later, on February 3. 1978. At the time of the hearing, Alvarez was a student at Del Mar Tech in Corpus Christi. Gilbert Barrera has been an organizer for over 5 years for the Retail Clerks International Association. Barrera works out of the International Union's division office located in Dallas, Texas. That division office of the International Union covers a nine-state area. Eddie Franco was employed by Respondent for about 5 years until March or April 1978. During his employment he held various positions with Respondent, and at one time he was a candidate for the position of third man in the grocery department, which position was given to Nolte. Doug Leavitt was employed as an assistant to a real estate appraiser in Fort Worth, Texas, at the time of the hearing. From April 1976 through August 1977, Leavitt occupied the position of lobby manager at Respondent's Corpus Christi store. In August 1977 Leavitt was promoted to the position of assistant drug manager at Respondent's Victo- ria, Texas, store. Ile quit that position in September 1978 and assumed his present occupation. Weldon Stephen V'ol/e occupied the position of third man in the grocery department at Respondent's Corpus Christi store. Previously, Nolte had worked as a crew chief. and at the times material herein Nolte held that position. Among his duties as the crew chief was the supervision of the gro- cery stockers who worked on the night stocking crew. As a crew chief, Nolte was the supervisor of Ortiz. John Orti. was hired by Respondent in August 176 as a grocery stocker at the Corpus Christi store. Ortiz worked for Respondent until he was terminated on July 9. 1977. Ortiz is the alleged discriminatee in this case. Emtmett Williams was employed at the time of the hear- ing in this proceeding by another grocery store as assistant manager. Previously, Williams had been employed by Re- spondent. from February 1976 to November 1978. At the times material herein, Williams occupied the position of third man in the grocery department at Respondent's Cor- pus Christi store. Joseph Yeager has been the store director of Respon- dent's Corpus Christi store since February 1976. 3h3 I)t ('ISIONS OF NAIIONAI. I.ABOR RELATIONS BOARD B. (Credihilih' Resohltion. One of the issues, among others raised by the parties. involves the credibility of John Ortiz. As noted earlier, the General Counsel contends that Respondent's termination of Ortiz on July 9. 1977. violated Section 8(a)( I) and (3) of the Act. The versions of certain conversations and events to be related herein, as given by Ortiz in his testimony at the hearing, were disputed in certain significant respects by other witnesses. Thus, in making the findings of fact herein. it has been necessary to consider the credibility of the testi- mony given by Ortiz, as contrasted with the versions of events given by other witnesses. The attorneys for the parties have different viewpoints as to whether Ortiz gave false testimony at the hearing. Coun- sel for the General Counsel expressed his view, in part, in his brief, where he argued: It was also developed at the hearing that Ortiz had noted on his Albertson's employment application (R Ex. I) that he had quit his former place of employ- ment, Model Market, when in fact he had been dis- charged. Ortiz--albeit erroneously--believed that his prior employment had nothing to do with the instant unfair labor practice charge against Albertson's (TR 167). However, Ortiz did not engage in a course of covering up adverse information about events that oc- curred at Albertson's. Additionally, he admitted he had been discharged from Model Market (TR 158). Ortiz exhibited no intention of making a false state- ment about a material fact nor mislead the Adminis- trative Law Judge about a material fact. The attorneys for Respondent argued, in part, in their brief: Ortiz proved to be a completely unreliable witness. First, he misstated the reasons why he left his two pre- vious jobs on the Employer's job application. Then, he repeated the falsehoods on the witness stand, under oath. His perjured testimony is a flagrant violation of his sworn oath, and an insult to the Board's process. The Employer submits that Ortiz's credibility is com- pletely destroyed, and that his testimony therefore should be entirely discredited. The matter of whether Ortiz had quit his employment with his previous employer came up during the cross-ex- amination of Ortiz by one of the attorneys fbr Respondent. The "it" in the first question to follow has reference to the application for employment with Respondent which Ortiz had made on August 16, 1976: Q. O. K. Now, it says you quit 8 76 for a better job, is that correct? A. Right. Q. O. K. Now, what better job did you quit for? A. Albertson's. Q. O. K. And why did you consider the job at Albertson's better? A. Because it was a bigger store. Q. Even though you were a supervisor at this other store and Albertson's- A. Well. I could have been a manager at Model Market and wouldn't have made as much as a stocker for Albertson's. Q. Did you make more money at Albertson's than you did at Model Market? A. Yes. Q. So that was the reason why you quit? A. Right. 'The subject matter was brought up once again during the cross-examination of Ortiz by the attorney for Respondent: Q. Well. when you left Model Market to come to Albertson's. you say you left because you thought it would be a better job at Albertson's? A. Right. Q. O. K. Why did you think it would be a better job? Just the money? A. It's a bigger company. Q. Who was your immediate supervisor at Model Market? A. I believe his name was Mr. Pittman. Q. Do you remember his first name? A. I believe it was LIoNd. Q. And did you tell him that you were quitting to go to Albertson's or did you just tell the top man you were quitting? A. I told him I was going to quit. Q. And what did they' say when you told them? Did they offer you more money or what? A. No. Q. They just said what, "Fine"? A. Yeah, they said O. K. They had another guy next to me that was going to take over. Q O. K. All right. Mr. Ortiz, you understand, I take it, that you are testifying here today under oath, is that right? A. Right. Q. O. K. Weren't you fired from Model Market? A. That's a misunderstanding. Q. Were you fired or were you not fired? A. I was fired. Q. All right. MR. LvIEN: Your Honor, at this time I would like to ask that the case be dismissed, and I would like to ask the General Counsel to institute perjury charges against this witness. Thereafter. arguments were made by each one of the at- torneys with regard to the pending motion. After hearing the arguments advanced by the parties, I denied Respon- dent's motion to dismiss the complaint at that time. I indi- cated that I would listen to any further cross-examination or redirect examination of Ortiz and that I would want to have the opportunity to study the record and listen to what- ever further arguments were advanced by the attorneys with regard to the pending matter. There was further cross-examination of Ortiz by the at- torney for Respondent: Q. (By Mr. Levien) Mr. Ortiz, weren't you dis- charged from Model Market for quote causing a big disturbance? 364 AI.BERTSON'S. INC( A. What do you mean disturbance? Q. Causing a big disturbance. Wasn't that the write- up on your personnel form? A. I don't know. Q. You don't know? A. What do ou mean by I don't ollow you. Q. Well. why were you fired? A. I don't know. He didn't give me a reason. Q. Hejust fired you? A. Right. Q. Wasn't it because you had a conflict with other personnel? A. Right. Q. And who was it that fired you? A. I believe it was the manager. Q. What was his name? A. Lloyd Pittman, I believe. Q. Lloyd Pittman. Do you know where he lives? A. No, I sure don't. Once again, the subject matter came up during cross- examination of Ortiz, when the following occurred: Q. All right. Mr. Ortiz, why did you tell us today, when I asked you several times, that you had quit Model Market instead of the fact that you were fired? A. I don't see what that has anything to do with this. Q. Because it didn't have anything to do with it it was O. K. not to tell the truth? A. That's got nothing to do with Albertson's. Q. So that's the reason? A. Right. Q. O.K. At the conclusion of the redirect examination of Ortiz by the counsel for the General Counsel, which did not cover the particular subject matter referred to above, the attorney for Respondent renewed his motion concerning instituting perjury charges. At that point I again indicated to the par- ties that I wanted to examine the transcript and listen to whatever arguments the attorneys had to make on the sub- ject. Now that I have had the opportunity to review the entire transcript and consider further the arguments ad- vanced by the attorneys for the parties, I conclude that Ortiz did give false testimony at this hearing concerning his termination by his previous employer. His stated reason for not telling the truth about that subject matter was: "I don't see what that has anything to do with this." No other expla- nation or excuse was offered by Ortiz. It would not be ap- propriate for me to ignore the foregoing or to fail to recom- mend to the Board that it refer this matter to the appropriate governmental authorities for their consider- ation as to what action to take. Insofar as this proceeding is concerned, I have decided not to credit and not to place reliance upon any of the testimony offered by Ortiz at the hearing in this case. Among other things brought out at the hearing, I have considered the fact that Alvarez was terminated by Respon- dent prior to the time of the hearing of this case. In addi- tion, the circumstances which led up to the termination of Alvarez have also been considered in evaluating the poten- tial bias of Alvarez against Respondent and against Nolte in particular. Prior to his termination Alvarez precipitated an argument with Nolte in the office. The argument took place about 4 or 5 a.m. Alvarez questioned Nolte with re- gard to a verbal reprimand which Nolte had given to a female checker for talking with Alvarez on the sales floor while Alvarez was working. During direct examination by the attorney or Respon- dent, Nolte described what took place during his confronta- tion with Alvarez: And after a few minutes I saw that the conversation wasn't going to get anywhere with either of us, and I just ignored it and just kept, continued working on my paper work. He grabbed my pencil out of my hand, broke it and threw it down. I stayed sitting there. I tried to ignore him as much as I could. I felt like it was not a situation for either one of us to be involved in. And he pushed me once on the left shoulder, and after he pushed me, when he saw that I didn't do anything to that. he hit me on the shoulder, at which time I got up and he backed up like he thought I was going to swing on him. I walked past him to the intercom and I paged Mr. Garvin to the office. Alvarez then said to Nolte, "You go ahead and call Billy Boy," and then Alvarez ran out of the office. Nolte reported the incident to Yeager, and Yeager terminated Alvarez. I have considered the fact that the testimony given by Alvarez was in significant conflict with the testimony given by Nolte. For example. Alvarez related a conversation which he said took place on the soap and detergent aisle on July 9, 1977, with regard to union activities and which im- mediately preceded the termination of Ortiz. In addition, Alvarez gave a different account of his altercation with Nolte which led to the termination of Alvarez. According to Alvarez, it was Nolte who had been "pushing me" and "spreading rumors around about me." Moreover, in contra- diction to the testimony given by Yeager, Alvarez stated that the Company's letter regarding union activities, which was introduced into evidence as General Counsel Exhibit 3, was distributed a few days prior to the termination of Ortiz. Over objection voiced by the attorney for Respondent, I received into evidence the pretrial affidavit given by Alvar- ez on August 18. 1977, before Field Examiner Robert Mar- key. The affidavit was offered by counsel for the General Counsel under the provisions of Rule 801(dXI), subpara- graph (b), of the Federal Rules of Evidence. The document was received as General Counsel Exhibit 4, and I have read that affidavit in connection with evaluating the credibility of Alvarez. I have also considered the fact the Franco gave a descrip- tion of a conversation on the detergent aisle regarding union activities. At one point Franco placed that conversa- tion as having occurred after the termination of Ortiz, but he corrected himself later during redirect examination to state that Ortiz was still an employee at the time. In resolving the credibility issues raised in this proceed- ing, the demeanor of each witness whi'e he was on the wit- ness stand has played a principal role in making such deter- minations. but consideration has also been given to the positions occupied by the various witnesses at the time of 365 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the hearing and their bias and interest in the outcome of the proceedings. The findings of fact to be made herein will be based primarily on the credited testimony of Yeager and Nolte, who were convincing in giving their testimony and who appeared to be relating the facts accurately and truth- fully. In addition, certain findings of fact will be based upon the testimony of Alvarez, except to the extent that his testi- mony is in conflict with that given by Yeager and Nolte. Certain findings will rest upon the testimony of Barrera and Franco, except to the extent that Franco's testimony con- flicts with that given by Nolte. I have also relied upon the testimony given by Leavitt and Williams. The credited tes- timony of the foregoing witnesses will be set forth herein. Of course, in making the findings of fact, consideration has been given to the documentary evidence which was intro- duced by the parties at the hearing. C. The Union Organizational Activities Respondent's Corpus Christi store is a retail drug and grocery store. It is open 24 hours a day. 7 days a week. In July 1977 the Corpus Christi store had about 180 employ- ees. Approximately 50 percent or more of those employees were Americans of Mexican heritage. The office in the Corpus Christi store is located upstairs from the main floor and at the back of the store. The office area is enclosed in glass partitions. The Union's organizing campaign began about June 13, 1977. among the employees at Respondent's Corpus Christi store. The employees at Respondent's Corpus Christi store were just one group among Respondent's stores in a three- state area which the Union was attempting to organize. Union Organizer Barrera identified the three States as being Texas, Oklahoma, and Louisiana. Barrera was involved in the organizing campaign at the Corpus Christi store for the initial 4 weeks of that cam- paign. In connection with his duties as a union organizer, Barrera prepared weekly reports concerning his "impres- sions of how the campaign was going." The four weekly reports prepared by Barrera were introduced into evidence as General Counsel Exhibit 2(a)-(d). Barrera said that he was assisted during the organizing campaign by employees Frank Alvarez and John Ortiz. About I week prior to the time that Ortiz was termi- nated, Alvarez got 18 or 19 persons to sign cards for the Union. Alvarez was the one who introduced Ortiz to Union Representative Barrera. D. Events Prior to July 8, 1977 Respondent took the position that Ortiz was discharged for insubordination. However Respondent also introduced four written reprimands which Ortiz had received between October 27, 1976, and June 21, 1977. (See Resp. Exhs. 2-5.) None of those reprimands was given for insubordination. Respondent has no policy on the number of written repri- mands received by an employee before that employee is discharged. With regard to this subject matter, the attorneys for the parties entered into the following two stipulations: MR. FLYNN: I believe that counsel for Respondent will stipulate that there are other employees presently employed at Albertson's and others who were not fired, that is, they quit, who received more written warnings in a shorter and longer period of time than Mr. Ortiz. MR. LVIEN: I believe that the General Counsel will stipulate that there have been other employees who have been discharged for insubordination with fewer warnings than Mr. Ortiz received. During cross-examination by the counsel fbr the General Counsel. Nolte acknowledged the occurrence of an incident involving an employee who was identified only by the name of Happy and who had urinated on the floor at the store. Nolte felt that he had been responsible for that occurrence, and Nolte did not report it to Yeager at that time. Lobby Manager Leavitt described an incident involving Ortiz which occurred on June 5, 1977. However, the inci- dent was not asserted as a basis for the termination of Ortiz. In fact, the evidence indicates that Leavitt condoned the actions and statements to him by Ortiz that afternoon. Lea- vitt ceased his preparation of termination papers for Ortiz and ceased his preparation of a written warning for Ortiz after Ortiz apologized for the incident. Leavitt did tell Ortiz that he was going to verbally notify the other supervisors about the incident, which Leavitt did. About 8 or 9 a.m. on June 28, 1977, Nolte was working on aisle 32. where the canned meats and soups are located. Montell Aldridge, who was the assistant grocery manager at that time, told Nolte to send home a stocker who had been called in to work earlier that night and who was scheduled to return to work at 3 o'clock that same after- noon. As Aldridge left the aisle. Ortiz spoke up and said that he felt that it was unfair for Aldridge to send the other em- ployee home early, because Ortiz had worked all night as well, and Ortiz was tired and wanted to go home and rest. Nolte was about 16 to 20 feet away from Ortiz at the time, but he heard Ortiz' comment. A customer was about 12 feet away from Ortiz. Nolte said that he did not say anything to Ortiz at that particular time, "because I didn't feel like the sales floor was the place nor the time to get involved into a discussion of this nature." The next day, June 29, 1977, Nolte spoke to Yeager re- garding the incident with Ortiz. Yeager inquired when Ortiz was scheduled to return to work. Nolte checked the sched- ule and advised that Ortiz was scheduled to return at 3 o'clock that afternoon. Shortly after 3 p.m., Yeager, Grocery Manager Grant, and Nolte met in the office. Nolte was asked to repeat what had happened. Nolte did so and also told Yeager and Grant about other incidents involving Ortiz where Ortiz had not followed instructions. Ortiz was called into the meeting. Yeager spoke to Ortiz about his attitude toward his job, the Company, his super- visors, and his job performance. Ortiz inquired as to who could criticize the judgments and performance of Nolte and Aldridge. Yeager responded that it was up to their superiors to judge the job that Nolte and Aldridge were doing, but that was not the issue. Instead. the issue was Ortiz' perform- ance. 366 ALBERTSON'S INC. Yeager gave Ortiz a verbal warning at that time. Nolte testified: "He told Mr. Ortiz that if he had any more prob- lems with backtalk to myself and to Mr. Aldridge, that if he was belligerent, that he would be terminated, that his job was on the line." E. The Events on Julv 8, 1977 About 5 a.m. on July 8, 1977. the grocery stockers were stocking aisle 16, where the canned juices and canned vege- tables are located. Earlier that night Nolte had instructed all the stockers that if there were any mispriced items, they should set those items to the side of the aisle. and they would come back and change the prices when they had finished stocking. Nolte had come across two cases of the same item which were mispriced. He recalled that they were 46-ounce cans ofjuice. Nolte set those two cases to the side of the aisle up against the shelving, and then he contin- ued with other work. Nolte instructed some stockers to go to other aisles. and he instructed Ortiz to finish stocking the aisle on which he was working and then go burn some trash. Later, when Nolte returned to the aisle to check on the work of the stockers, he noticed that the two cases which he had set aside to have the price corrected had been placed on the shelves. Nolte observed that it was the location where Ortiz had been stocking. According to Nolte. the stocking of mispriced items hap- pens "quite often." However. Nolte said that the stockers were trained to compare the price on the merchandise they were stocking with the price of merchandise which was al- ready on the shelf and with the price shown on the shelf tags for that item. When Ortiz returned from burning the trash. Nolte saw him in the center aisle and asked Ortiz if he had stocked the item. Ortiz said "Yes." Nolte asked Ortiz if he had stocked the other cases, and he again responded "Yes." Nolte in- structed Ortiz to pull the items off of the shelves and correct the prices and then finish burning the trash. Nolte then went upstairs to the office and prepared a written reprimand for Ortiz. He next called Ortiz into the office and showed him the reprimand. Ortiz wanted to know why Nolte had not written up Bill Garvin for stock- ing a mispriced item 2 or 3 days earlier. Nolte testified dur- ing direct examination by the attorney for Respondent: "When I explained to him why I hadn't written up Mr. Garvin, he got angry with me and started yelling, and somewhere in that time a shouting match, so to speak, be- gan between us." At the hearing Nolte explained that Garvin had been stocking an item, and about halfway through the case. Gar- vin caught the mistake. Garvin pulled the items from the shelf and corrected them. Nolte said that he and the stock- ers were aware of that because Garvin had called down the aisle for a "Magic Marker" in order to change the price of the merchandise. In the office Ortiz told Nolte that he wanted to talk with Aldridge. Nolte told him that they were both aware of the fact that Aldridge was at home, since Aldridge had worked until midnight. Nolte told Ortiz that he would call Wil- liams, who was the third man in the grocery department at that time. When Williams arrived in the office Ortiz told him that Nolte had not written up Garvin, and if Nolte expected Ortiz to sign the written reprimand, then Nolte needed to reprimand Garvin. Nolte recalled asking Ortiz to lower his voice during the course of the conversation, but Ortiz did not do so. Nolte described Ortiz as shouting at him and using profanity. During cross-examination by the counsel for the General Counsel, Nolte acknowledged that it was quite likely that Nolte used profanity also. After Williams read the warning notice he conclude that there was no point in writing up Ortiz for that incident, because Williams felt there was no way to prove that Ortiz was not going to return and change the price of the items. In addition. at the hearing Williams further pointed to Or- tiz' "violent behavior that was demonstrated to me at that time ..... Therefore, Williams decided to tear up the rep- rimand, and Williams told Ortiz to go back to work and to forget about it. After Ortiz left the office Nolte informed Williams about the meeting which had taken place the previous week among Ortiz, Yeager, Grant, and Nolte. Nolte told Wil- liams that Yeager had told Ortiz that if Ortiz gave them any more trouble or backtalk, Ortiz would be terminated. Wil- liams told Nolte that he would talk with Yeager regarding it. Before leaving the store during the morning of July 8. 1977, Nolte went to Yeager's office. However. Nolte ob- served that Yeager's door was shut and that there was a salesman in his office. Nolte did not want to interrupt them, so he did not speak with Yeager at that time. When Yeager arrived at the store in the morning of July 8. 1977, Williams reported to Yeager regarding the incident with Ortiz which had occurred earlier that day. As a result of what Williams told Yeager. Yeager wanted to verify the matter with Nolte. Ilowever. Yeager discovered that Nolte had left the store by that point in time. Therefore. Yeager did not speak with Nolte until the next morning, Saturday, July 9. 1977. F. The( Etvents on Jilu' 9, 977 Yeager came into Respondent's store around 6:30 a.m. on July 9. 1977. Yeager spoke with Nolte about 6:30 or 7 o'clock that morning. They talked near the check stand area. Yeager asked Nolte about the incident involving Ortiz which had occurred the day before. After talking with Nolte, Yeager told Nolte to go hack to work, and when Yeager could get upstairs, he would call Nolte upstairs. Ac- cording to Yeager. after he had talked with Nolte. "I de- cided to go ahead and terminate John." During the examination of Yeager by the counsel for the General Counsel pursuant to Rule 61 I(c) of the Federal Rules of Evidence. the following took place with regard to Yeager's decision to terminate Ortiz: Q. Did you make that decision at around 6:30 or 7 that morning? A. I guess I more or less verified the decision in my mind at that time. Subsequently. during the cross-examination of Yeager by the counsel for the General Counsel, the following took place: 367 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q. Now, when you made the decision to terminate Mr. Ortiz, about what time was it? A. Well. on the morning of the 9th I came in, I guess, about, probably about 6:30 when I talked to Steve up front is when I confirmed the decision. From what I had heard from Emmett Williams the day before, all I wanted to do was talk to Steve and confirm what he had told me. Between approximately 6:30 and 8:30 that morning, Yeager helped with counting the money in the cash regis- ters. Nolte denied that he had any conversation with Ortiz, Alvarez, or Franco on aisle 29 that day with regard to union activity. About 8:30 a.m. on July 9, 1977, Yeager had a conversa- tion with Ortiz. at which time Ortiz was terminated. Also present in Respondent's office were Steve Nolte and Em- mett Williams. Yeager asked Ortiz if Ortiz remembered their meeting about 10 days earlier when they had talked about the insub- ordinate attitude of Ortiz. Ortiz indicated that he did re- member it. At first Ortiz denied that there had been a conflict on the previous morning with Nolte, but then Ortiz did admit it. Yeager told Ortiz that "he was being terminated for insub- ordination." At that point Ortiz said something about dis- crimination and that Yeager should reprimand Billy Garvin because Garvin had stocked a case improperly. Yeager re- plied that Ortiz was not being fired for making a mistake. Yeager said again that Ortiz was being fired fbr insubordi- nation, just as they had discussed before. Following the meeting in Yeager's office in which Ortiz was terminated, Ortiz went to the outer office to sign his timecard. Nolte testified, "As I was going through the outer office, Mr. Ortiz shouted at me that he was going to kick my ." Nolte said that Ortiz made the foregoing comment in the presence of Williams, a secretary, and an- other person who was not identified. Nolte then proceeded to the supply room door where Ortiz directed a further comment at him. Nolte testified: Yes. I had the door to the supply room open. I was getting out some signs to hang for an ad, and he came out to the area where I was. He was standing, I guess, two to three, maybe four feet away from me. And he repeated his earlier threat that he was going to kick my ass, and he said that I had not heard the last of him. that he was going to come back and get me. G. Company Knowledge of Union Activity After the Termination of Ortiz Prior to the termination of Ortiz, Yeager did not know anything about the activities of Ortiz, or any other individ- ual, on behalf of the Union. It was 2 days after the termina- tion of Ortiz that Yeager learned that Frank Alvarez had been trying to get employees to sign union cards in the breakroom. A seminar for the managers of certain stores of Respon- dent was held in San Antonio, Texas, sometime after the termination of Ortiz. Yeager explained that there were ap- proximately 35 to 40 stores in Albertson's Southco chain in July 1977. These stores were located in four or five States. The corporate office for Albertson's Southco is located in Orlando, Florida. Yeager identified Bobby Fowler as being the executive vice president of Albertson's Southco. According to Yeager, he recalled seeing three letters from the corporate offices addressed to employees. Yeager re- called that copies of one of those letters were distributed to employees at Respondent's Corpus Christi store sometime in the third or fourth week of July 1977. Yeager was shown a copy of General Counsel Exhibit 3, and Yeager stated that he did not know whether a copy of that particular letter was distributed to the employees at the Corpus Chri- sti store. Respondent did not hold any meetings with employees regarding the Union during the summer of 1977. According to Nolte, his first knowledge of any union ac- tivity among the employees was acquired about I a.m. on July 10, 1977. At that time Nolte observed Alvarez and two other stockers in the breakroom at the store. During their conversation. Alvarez told Nolte that Ortiz had been a member of the Union. During their discussion of the bene- fits of the Union, Alvarez also told Nolte "that they were going to get me." During that discussion and on other occasions. Nolte ac- knowledged that he had told employees the following with regard to the Union: "1 personally do not care for it. I had been a member of it and it didn't do anything for me." Following the termination of Ortiz, Ortiz returned to the store on several different occasions. Nolte observed Ortiz about I a.m. or 2 a.m. on several occasions engaging in discussions with the stockers during their breaktimes. Nolte said that he participated in the discussion on one or two of those occasions. Nolte did not ask Ortiz to leave the store, because "ille wasn't disturbing anybody who was on working time." While Ortiz was employed by Respondent, Williams had no knowledge that Ortiz was involved with any union or with organizing employees to form a union. Williams said that it was a day or two after the termination of Ortiz when he first heard of any union talk. While Ortiz was employed by Respondent, Leavitt had no knowledge of Ortiz' union activities. H. Alleged Prejudice A.gainst Americans of Mexican Heritage In connection with the allegations of paragraph 8 of the General Counsel's complaint, the counsel for the General Counsel questioned Franco with regard to employees speaking Spanish while at the store: Q. Were there any rules in the store, Mr. Franco. about employees speaking Spanish? A. No, not really, but I had heard that some em- ployees, you know, it was not allowed if you-well, if you would carry a conversation on with somebody else in Spanish and there was somebody else that didn't understand, you know, it would be common courtesy to speak English so they could understand. But other than that, if you were two guys, you know, speaking Spanish and nobody else was there. I don't remember anybody ever saying to me personally not to speak Spanish. 368 AI.HBERSON'S. INC. But I had heard that other people were told. but I don't know for a fact bh' whom. Q. Were you ever told by any supervisors not to speak Spanish or to tell others not to speak Spanish? A. No. Q. (By Mr. Flynn) Mr. Franco. do you remember having a conversation with Mr. Emmett Williams about someone speaking Spanish? A. Well, yes, one time I can recall when I was work- ing in Receiving. he told me to tell one of' the food vendors not to speak Spanish in the store when they were bringing in merchandise or while theN were in the store. Q. And do you know. Mr. Franco,. what Mr. Yea- ger's position was about employees speaking Spanish to each other in the store? A. No. I couldn't say for a fact. He never told me anything. whether to or not to speak Spanish. Q. Did you notice any different treatment between the Mexican-Americans and the Anglos by Mr. Nolte while you were employed at Albertson's? A. Well, not necessarily. I would say overall he treated most of the stockers pretty heavy. I would say a little bit too rough. Well. the majority of the night stockers are Mexican- Americans, so I don't know whether I could say' es or no on that in that regard. Q. Did Mr. Nolte argue with stockers frequently back and forth? A. Yes. During the redirect examination of Franco by the coun- sel for the General Counsel. the following occurred: Q. (By Mr. Flynn) Mr. Franco. did you ever men- tion anything to Mr. Nolte about the fact that his wife was Mexican-American while you were employed at the store? A. Yes, I did. Q. And how would that come up? A. Well, I remember one time he made a. he made some comments at the Mexican-American guys. and at one point there he made a comment at me about me being Mexican-American. and Q. I don't mean to interrupt you. but what kind of comment? A. Well, more or less something like. I guess. I re- member him calling me a stupid Mexican one time. and I turned around and looked at him and I said. "You ought to know, you are married to one." And he did not like that. Nolte denied that he was prejudiced against Americans of Mexican heritage or that he practiced discrimination against such persons. Nolte's wife is an American of Mvlexi- can heritage. Bill Garvin is not an American of Mexican heritage. I. Respolnent'st No-Solicitalioni Rulle During the course of the hearing. Respondent's rule against solicitation on Respondent's premises was brought up se'veral times. During examination o Store Director Yeager by the attorney tior Respondent. the tllowinmg took place: Q. What is the store's polie with regard to solicita- tionl A. On the premises? Q. On the premises. A. When it takes Ip 1an emploee's time. we lon't allow it. whether it be solicitation or just isitir in general. Q. [)oes the subject matter of the solicitation pla, a role in what action ou are going to take? A. No. If they are talking about a movie show or whatever. we don't have time to do things like that. and if it's an employee that's on the wai to work and the, stop and visit with someone who is alread'y work- ing. the! are still wasting one another's time. Q. How is that polic, explained to the emnploxees or hoA is that polic5 made clear to the emploecs? A. You mean do we tell them that the,' Q. That there is no solicitation on companx time. A. Well, there are signs up around the store here and there. I)uring cross-examination of Yeager by the counsel for the General Counsel. the following occurred: Q. Now. you testified about the solicitation rule at the Companx. What do these signs say? You said there are some signs all over the store. A. Theo are not all over the store. Then are in the work areas. They are up in the break room. The' are on the front doors to the store, next to the ront doors. To the effect of no solicitation for any reason on these premises by anyone for any reason. Q. A any time' A. At any time. I at sure. Once again the subject matter came up. during the redi- rect examination of Yeager hb the attorney for Respondent. At that point the tollowi ng took place: Q. Bx Mr. Appel) Mr. Yeager. are employees enti- tled to solicit on behalf of a charity during their break time? A. No. Q. During their employees are not entitled to so- licit during break time? A. Not on the premises, no. We don't even take up flowers, money for flowers and things like that. With regard to the signs posted at the store concerning solicitation, Nolte testified as follows during his direct ex- amination by the attorne flor Respondent: Q. Are ou familiar with the signs in the store that have been referred to previously as solicitation signs? A. Yes. Q. O. K. To your recollection what do those signs say? A. Solicitation of an purpose by any individual on these premises is I can't think of the word the, have. I can't think of' the exact woral. I'his is hasicall\ what it's saying is not permitted due to. to protect our le- gitimate business interest. 369 L 1 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q. And where are those signs located? A. There is one by the safe. It's in the window fac- ing outside of the store. There are some, if I remember correctly, there are some as you go in through the two front doors, there's some inside the glass there where you can see them. And there's another one at the head of the stairs where, you know, when you go up to the office and the restroom and break area. Q. How long have you been with Albertson's? A. Four and a half years. Q. And based on that experience, to your knowl- edge where does this solicitation rule that these signs speak to apply? A. Engaging customers or employees on the sales floor or on the parking lot. Q. So do they apply in the bathroom or in the break room? A. I don't believe so, my own personal. J. Conclusions Based particularly upon the credited testimony of Yeager and Nolte, I conclude that the evidence shows that Ortiz was discharged by Respondent for insubordination. The credited versions of the incidents involving Ortiz on June 29, 1977, and July 8, 1977, reveal that it was the con- duct and behavior of Ortiz on those occasions which re- sulted in his termination by Respondent on July 9, 1977. Yeager's testimony was convincing that it was the insubor- dination of Ortiz which was the true reason for the termina- tion of Ortiz and that insubordination was not a pretext. Moreover, the testimony of Yeager, Nolte, and Williams also shows a lack of company knowledge of any participa- tion by Ortiz in union activities prior to the time of his termination. There s no question that Ortiz protested to both Yeager and Nolte about the fact that a written warning was not issued to Bill Garvin for stocking mispriced merchandise. However, Nolte gave both to Ortiz and at the hearing a convincing reason why a written warning was not given to Garvin. I conclude that a preponderance of the evidence does not establish that either Yeager or Nolte was motivated to dis- criminate against Ortiz because of his protest regarding Garvin. Instead, I conclude, as indicated above, that the true reason for the termination of Ortiz was insubordina- tion. As previously set forth herein in the findings of fact, tes- timony was elicited by the attorney fbr Respondent, as well as by the counsel for the General Counsel, with regard to Respondent's policy concerning solicitations on its prem- ises. The exact wording of Respondent's no-solicitation rule was not revealed. However, according to Yeager, signs were posted at the store in the breakroom, as well as in the work areas and next to the front doors. Yeager testified that the wording on Respondent's signs was "to the effect of no so- licitation for ny reason on these premises by anyone for any reason." I conclude that Respondent's no-solicitation rule is too broad insofar as it applies to employees of Respondent who may engage in solicitations on behalf of a labor organiza- tion during the employees' nonworking time in nonsales or nonpublic areas of Respondent's store. See McBride' of ,aylor Road, 229 NLRB 795 (1977); Malrriot Corporation (Children's Inn), 223 NLRB 978 (1976): and Mervn's, 240 NLRB No. 2 (1979). I am not unmindful of the fact that the evidence in this case reveals that Respondent's no-solicitation rule has not been enforced in certain cases. For example, Alvarez was observed talking about the Union with other employees in the breakroom, but Nolte did not stop Alvarez from doing so. In addition, following the termination of Ortiz, he re- turned to Respondent's store on several occasions and spoke to certain employees in the early morning hours dur- ing their breaktime. Although Nolte observed Ortiz doing so, Nolte did not enforce Respondent's no-solicitation rule. In these circumstances, I conclude that Respondent has not uniformly enforced its rule against solicitation, but Respon- dent has continued to maintain its no-solicitation rule. It is Respondent's continued maintenance of its overly broad no-solicitation rule which I conclude has interfered with, restrained, and coerced employees in the exercise of their rights under Section 7 of the Act. I conclude, therefore, that Respondent has thereby violated Section 8(a)(1) of the Act. There is no allegation in the General Counsel's complaint which pertains to the maintenance of Respondent's no-so- licitation rule. Instead, counsel for the General Counsel urges that Respondent's no-solicitation rule is one of the "surrounding facts" which must be considered in this case. Notwithstanding the absence of a specific allegation in the General Counsel's complaint, I conclude that the evi- dence brought out on this record by Respondent and by the General Counsel with regard to Respondent's no-solicita- tion rule warrants a finding of a violation of Section 8(a)(1) of the Act and that the matter has been "fully litigated." See the Board's Decision in Ale-xander Dawson, Inc. d/l/a Alexander's Restaurant and Lounge, 228 NLRB 165 (1977), enfd. 586 F.2d 1300 (9th Cir. 1978). In that case the Board found a violation of Section 8(a)(1) of the Act based upon evidence that the respondent therein had engaged in sur- veillance of its employees' union activities, although the counsel for the General Counsel in that case had not urged that such a violation be fbund and, instead, had merely presented the evidence as "background" evidence. The Board stated in its Decision at 165-166: We agree with the Administrative Law Judge that the record clearly establishes that Martin directed the surveillance of these employees because of their union activities. Moreover, in our opinion. this incident is sufficiently related to the subject matter of the com- plaint to justify a specific finding of a violation of Sec- tion 8(a)(1) of the Act. In this regard, we note that Respondent's surveillance over its employees' union activities is part and parcel of its persistent antiunion campaign which included the unlawful interrogation of prospective employees, the grant of wage benefits to undercut union support, and the outright refusal to hire individuals whose background indicated potential union adherence. We also note that Respondent's con- duct in surveilling these employees was fully litigated at the hearing and that Respondent had ample oppor- 370 A.BERTSON'S. INC. tunity to offer, and in fact did offer, evidence on this point. Accordingly, we shall find this violation of the Act and provide an appropriate remedy. See (rown Zellerhbach ('orporaion, 225 NLRB 911 (1976). and cases cited therein at footnote 6. In its Decision in S. Joseph Hospital East. Inc., 236 NLRB 1450 (1978), the Board found an additional viola- tion of Section 8(a)(1) and (3) of the Act in that case, even though the matter was not specifically alleged in the Gen- eral Counsel's complaint. (See fn. 5.) The Board concluded that the matter had been "fully litigated." The Board held: "In these circumstances, it is within the Board's authority to remedy the violation to effectuate the purposes of the Act." In view of the examination of the witnesses with regard to Respondent's no-solicitation rule by both the attorney for Respondent and the counsel for the General Counsel. I conclude that the matter has been "fully litigated" on this record. In these circumstances, I find that it is appropriate to make a finding of an unfair labor practice based upon a matter which was "fully litigated" by both parties at the hearing in this proceeding. CONCI.USIONS O() LAW I. Respondent is an employer engaged in commerce within the meaning of Section 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 maintaining a no-solicitation rule which prohibits employees of Respondent from engaging in solicitation on behalf of a labor organization during the employees' non- working time in nonsales or nonpublic areas of Respon- dent's store, Respondent has interfered with, restrained. and coerced employees in the exercise of their rights guar- anteed in Section 7 of the Act, and Respondent has thereby engaged in unfair labor practices within the meaning of Section 8(a)(l I ) of the Act. 4. The unfair labor practices set forth above affect com- merce within the meaning of Section 2(6) and (7) of the Act. Ti Ri)N Since I have found that Respondent has engaged in un- fair labor practices within the meaning of Section 8(a)( I) of the Act, I shall recommend to the Board that Respondent be ordered to cease and desist from engaging in those unfair labor practices. I shall also recommend to the Board that Respondent take certain affirmative action in order to effectuate the policies of the Act. (Recommended Order omitted from publication.l 371