Thе National Labor Relations Board (NLRB) brought unfair labor practice charges against Albertson’s, Inc. (Albert-son’s) under section 8(a)(1) of the National Labor Relations Act (NLRA), 29 U.S.C. § 158(a)(1). The NLRB’s complaint alleged that Albertson’s engaged in disparate enforcement of its no-solicitation policy against the union representing Albertson’s employees, thereby assisting employees in filing a decertification petition, and engaged in surveillance of employees’ union activities by confiscating and photocopying pro-union materials. After a hearing, an administrative law judge (ALJ) issued a decision and recom
I.
Albertson’s operates a grocery store in Rapid City, South Dakota, where it engages in the retail sale of groceries and employs approximately 100 people. At all times relevant to this litigation, Albertson’s had the following “no-solicitation” policy:
Non-employees may not solicit, distribute literature or use sound devices on Company premises at any time.
Employees who are working should not be disturbed, interrupted or disrupted by solicitations or the distribution of literature. Unauthorized presence of any employee in the non-selling areas of the store or in other non-public areas of our facility for any purpose is strictly prohibited unless the employee is on duty, preparing to come on duty, or preparing to leave after having been on duty.
No employee may engage in solicitation of any kind during working time, or while the person(s) he or she is soliciting is on working timе. Further, no employee may distribute literature during working time or in working areas (note: working time does not include authorized periods of off-duty times — e.g., meal time, break time, etc.).
Rec., vol. 2, General Counsel’s Ex. 2.
According to the findings of the ALJ, 1 certain Albertson’s employees in the spring of 1994 undertook a union organizing campaign. Employee David Dahl spoke with fellow employees about the union and distributed election authorization cards. In March 1994, store director Dan Yeazel informed Dahl that he was displeased about Dahl’s union organizing activities. When Dahl asked Yeazel’s permission to speak with employees in the break room while they were off the clock, Yeazel refused and suggested that Dahl’s pro-union efforts threatened his status with the company. Albertson’s later reduced Dahl’s hours, resulting in the union’s filing of charges with the NLRB and an eventual private settlement agreement.
In June 1994, the union won a representation election and bargained over the course of the next year with Albertson’s over the terms and conditions of a collective bargaining аgreement. During this time, store cashier Diane Pesek, a local union supporter, became a member of the union negotiating committee and attended bargaining sessions. Sometime in 1994, shortly after the election, Pesek attempted to circulate a petition concerning year-round school in Rapid City. Grocery manager John Binger told Pesek that such solicitation on the sales floor or while Pesek was on the clock violated company policy.
In July 1995, cashiers Gary Wehner and Carmel Lefor became dissatisfied with the union’s inability to negotiate a collective bargaining agreement and discussed circulating a decertification petition. Wehner approached Yeazel for information on how to go about decertifying the union and Yeazel gave him the telephone number of the NLRB’s regional office. Wehner also spoke with Christopher Yost, Albertson’s labor relations representative, who apprized him of the company policy regarding solicitation. Wehner and two others subsequently circulated a de-certification petition over a four-day period between July 18 and July 21 and secured 43 signatures, several of which were those of supervisors. Wehner and his colleagues solicited signatures while they were themselves on the clock and solicited others who were on the clock.
On September 15, 1995, shortly following her return from maternity leave, Pesek spoke to union president Tom Johnson about Wehner’s decertification efforts. Later, at approximately six o’clock in the evening (an undisputedly busy time at the store), Johnson brought a pro-union petition attached to a clipboard to the check stand where Pesek was working and handed it to her while she was waiting for a customer to sign a check. Pesek then passed the petition to two other employees and asked them to sign it. These events transpired in a period of approximately twenty seconds. Supervisor Connie Mehrer witnessed this exchange and directed supervisor Sally Weaver to find out what was on the clipboard. Although Pesek specifically told Weaver that she was circulating a petition, Weaver confiscated the petition, carried it away, photocopied it, and placed it in the company’s safe. When Pesek asked Weaver to return thе petition, Weaver informed her that Yeazel had said she could not have it until she got off work and that she was not to have it on the sales floor or at any time she was on the clock.
Based on these facts, the NLRB found that Albertson’s had violated section 8(a)(1) of the NLRA by disparately enforcing its no-solicitation policy and by engaging in surveillance of the employees’ union activities. The NLRB subsequently ordered Albertson’s to cease and desist from these unfair labor practices and to post copies of an appropriate remedial notice. 3
II.
Albertson’s contends the NLRB’s decision that it violated section 8(a)(1) of the NLRA by disparately enforcing its no-solicitation policy and engaging in unlawful surveillance is not supported by substantial evidence. While our review of the NLRB’s legal determinations is
de novo, see Medite of New Mexico, Inc. v. NLRB,
Section 7 of the NLRA protects employees’ right “to self-organization, to form, join or assist labor organizations, to bargain collectively through representatives
Albertson’s contends the NLRB’s finding of disparate enforcement lacks the support of substantial evidence because the evidence in the record demands the conclusion that Al-bertson’s allowed both pro- and anti-union solicitations at the workplace and during work time and prohibited employee Pesek from engaging in pro-union solicitation only because it disrupted customer service at a busy hour. We find no merit in this assertion. First, as we have previously noted, we will not disturb the NLRB’s determinations of witness credibility or lack thereof except in rаre circumstances.
See Osteopathic Hosp. Founders Ass’n v. NLRB,
The ALJ found that Albertson’s engaged in disparate enforcement of its no-solicitation policy beginning on July 18, 1995, when it allowed employee Wehner and others to solicit support for a decertification petition on work time even though it had prohibited another employee from doing the same in support of a pro-union petition in 1994, and even though it later prohibited employee Pe-sek from soliciting union support in September 1995. 4 Although Albertson’s contends that management interfered with employee Pesek’s solicitation effort only because she was disrupting customer service, the ALJ specifically found that employee Pesek’s activities hаd not in fact disrupted customer service; that at least one of employee Weh-ner’s solicitations in favor of the decertification petition also took place during a busy period at the store' — so busy, in fact, that a supervisor was working at one of the check stands; 5 and that liquor store manager Murphy discussed the decertification petition with employee Anderson while he was on the clock waiting on customers. Moreover, the ALJ found that the employer made no reference to customer disruption in strictly enforcing the no-solicitation policy against employee Dahl in 1994, and that a supervisor admonished Pesek for allegedly disrupting customer service, and told Pesek not to circulate her petition during any work time, even though management allowed Wehner to circulate his decertification petition freely while he was on the clock. The record contains testimony to support each of these findings. We therefore decline to disturb the ALJ’s determinаtions as to which witnesses provided credible testimony and which did not. 6
An employer violates section 8(a)(1) merely by enforcing a no-solicitation policy in a discriminatory manner, regardless of whether the employees take action based on the company’s discrimination.
See Lucile Salter Packard Children’s Hosp. v. NLRB,
Abertson’s also contends the NLRB should not have relied on the events of 1994 in assessing the disparate enforcement claim because Abertson’s settled a section 8(a)(1) charge involving employee Dahl based on those events. Abertson’s asserts that consideration of evidence relating to a settled charge where the company made no admissions of wrongdoing effectively discourages settlement. Once again, Abertson’s analysis misses the mark. The settlement agreement entered into by Abertson’s involving alleged threats and reprisals against employee Dahl was based on offenses entirely separate from those alleged here. Indeed, the only testimony relating to those events that is relevant to the case at hand is the fact that Albert-son’s strictly enforced its no-solicitation policy when Dahl requested to engage in union solicitation, an action that was not unlawful at the time because no discriminatory enforcement was then alleged. The NLRB appropriately relied on testimony concerning Dahl’s request as evidence of an occasion of strict enforcement which does indicate discrimination when viewed in the light of A-bertson’s later willingness to tolerate Weh-ner’s anti-union solicitations on company time.
See, e.g., NLRB v. Southeastern Stages, Inc.,
Finally, Abertson’s argues the ALJ ignored evidence that Abertson’s routinely allowed Union President Johnson to speak
We next turn to Albertson’s claim thаt there is not substantial evidence to support the NLRB’s determination that Al-bertson’s engaged in surveillance of union activities in violation of section 8(a)(1). An employer “may observe public union activity, particularly where such activity occurs on company premises,” but an employer violates section 8(a)(1) where company officials “do something ‘out of the ordinary’” to keep union activities under watch.
NLRB v. Southern Maryland Hosp. Ctr.,
Albertson’s cites several cases for the proposition that a company does not engage in surveillance when an employee conducts solicitations in plain view on the company’s premises.
See, e.g.,
Aplt.Br. at 42 (citing
Irving Tanning Co.,
We turn finally to Albertson’s assertion that the NLRB erroneously concluded the July 1995 decertification petition was “tainted” by unfair labor practices, thereby leading it to dismiss the petition.
7
The
The NLRB’s decision does not include any finding that the decertification petition was tainted by Albertson’s unfair labor practices, nor does it order the dismissal of the decertification petition based on any alleged taint. Albertson’s claims the NLRB in fact later suspended or dismissed the petition for a decertification election according to its “blocking procedure.”
8
See generally,
John P. Luddington, Annotation,
Unremedied Unfair Labor Practice Charge to NLRB Election as Ground for Postponing Election (“Blocking Charge” Procedure),
18 AL.R.Fed. 420 (1974). We note that courts have approved the blocking procedure as properly within the NLRB’s statutory authority to conduct representation elections and have held that a “blocking” decision falls under the NLRB’s authority to oversee representation proceedings.
See, e.g., Bishop v. NLRB,
Because we uphold the Board’s finding of unfair labor practices, we are not in a position to “unblock” the decertification election if, in fact, it was blocked.
Cf. Bishop,
III.
We AFFIRM the NLRB’s decision finding that Albertson’s engaged in unfair labor practices and ENFORCE the NLRB’s order.
Notes
. In stating the facts, we defer to the NLRB’s reasonable findings because the NLRB "is empowered to draw permissible inferences from credible testimony.”
NLRB v. L & B Cooling, Inc.,
. Pesek was on maternity leave at the time.
. As we discuss infra, Albertson’s places great significanсe on the status of the decertification petition, claiming that it was dismissed as part of the NLRB’s determination that Albertson’s committed unfair labor practices. However, neither the NLRB’s order nor the record before this court contains any reference to dismissal of the decertification petition. We therefore assume for the sake of responding to the assertions set forth in Albertson’s brief that any dismissal or suspension of the petition occurred in accordance with the NRLB’s authority to rеgulate representation elections under section 9 of the NLRA. See 29 U.S.C. § 159 (1994).
. In addition, the record contains evidence that Albertson’s refused to allow Pesek to circulate a petition concerning year-round schools during work time without regard to disruption of customer service.
. The ALJ found employee Wehner "to be a totally unreliable witness” and discredited his assertions that he neither disrupted work nor solicited for the decertification petition on company time. Rec., vol. 3, ALJ Order at 13, n. 13.
.On this and othеr points, Albertson’s offers alternative ways in which the testimony proffered to the ALJ might have been viewed. That there might be other ways of construing the
. Albertson’s expends considerable effort arguing that the NLRB cannot block an election without first applying the multi-factored
Master Slack
test, and finding the decertification petitiоn was tainted. But the numerous cases Albertson’s cites for this proposition are inapposite.
See, e.g., Williams Enter. v. NLRB, 956
F.2d 1226 (D.C.Cir.1992);
Master Slack Corp.,
. According to the NLRB’s Casehandling Manual:
The agency has a general policy of holding in abeyance any representation case ... or union deauthorization ... case where pending unfair labor practice charges filed by a party to the [representation or union deauthоrization] cases are based upon conduct of a nature which would have a tendency to interfere with the free choice of the employees in an election, were one to be conducted on the petition.
NLRB Casehandling Manual ¶ 11730 (last modified Aug. 19, 1998) <http:// www.nlrb.gov/chm2.html>.
Although not formally authorized by statute or regulation, the NLRB has followed this procedure since 1937.
See Bishop v. NLRB,