Costco

National Labor Relations Board - Board Decisions

Feb 2, 2018

366 NLRB No. 9 (N.L.R.B. 2018)

366 NLRB No. 9
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive 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.
Costco Wholesale Corporation and Teamsters Local
592, International Brotherhood of Teamsters.
Case 05–CA–169958
February 2, 2018
DECISION AND ORDER
BY CHAIRMAN KAPLAN AND MEMBERS PEARCE
AND MCFERRAN
On February 24, 2017, Administrative Law Judge
Donna N. Dawson issued the attached decision. The
Respondent filed exceptions and a supporting brief, the
General Counsel filed an answering brief, and the Re-
spondent filed a reply brief. In addition, the General
Counsel filed a cross-exception and a supporting brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions1 and briefs and has decided to
affirm the judge’s rulings,2 findings,3 and conclusions
and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Costco Wholesale Corpora-

1 There are no exceptions to the judge’s dismissal of the allegation
that the Respondent denied employee Justin Daniels the right to union
representation at an investigatory interview.
2 In affirming the judge’s grant of the General Counsel’s motion to
amend the complaint, we find that both the new allegation and the
timely filed charge involve the same legal theory and arise under the
same factual circumstances and series of events, thereby satisfying the
requirements of Redd-I, Inc., 290 NLRB 1115, 1118 (1988). With
regard to the legal theory, we find that the new allegation—that an
employee was directed not to speak with anyone about an incident of
purported misconduct under investigation—and the complaint’s
Weingarten allegation both implicate an attempt to prevent an employ-
ee from exercising the statutory right to speak with and receive assis-
tance from other employees about a disciplinary matter.
3 In adopting the judge’s finding that the Respondent violated Sec.
8(a)(1) by directing employee Justin Daniels not to speak to anyone
about an incident of purported misconduct under investigation, we do
not rely on the cases, cited by the judge, involving the promulgation of
unlawful work rules, as the violation here involves an unlawful instruc-
tion to refrain from discussing a disciplinary matter and not the prom-
ulgation of a work rule. See generally Dish Network LLC, 365 NLRB
No. 47, slip op. at 3 fn. 8 (2017) (instruction to one employee not to
discuss investigation was unlawful, but was not the promulgation of an
unlawful rule); Food Services of America, Inc., 360 NLRB 1012, 1016
fn. 11 (2014) (single statement instructing employee not to talk to an-
other employee not a promulgation of an unlawful rule but rather an
implicit threat of retaliation for engaging in protected concerted discus-
sions), vacated pursuant to settlement by 365 NLRB No. 85 (2017).
tion, Glen Allen, VA, its officers, agents, successors, and
assigns, shall take the action set forth in the Order.
Dated, Washington, D.C. February 2, 2018
______________________________________
Marvin E. Kaplan, Chairman
______________________________________
Mark Gaston Pearce, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
Joseph E. McGlew-Castaneda, Esq. and Thomas J. Murphy,
Esq., for the General Counsel.
Paul Galligan, Esq., for the Respondent.
James R. Smith, for the Charging Party.
DECISION
STATEMENT OF THE CASE
DONNA N. DAWSON, Administrative Law Judge. This case
was tried in Richmond, Virginia, on October 11, 2016. The
Charging Party Union filed the charge on February 18, 2016,1
and the General Counsel issued the complaint on June 6, 2016.
The complaint alleged that Respondent violated Section 8(a)
(1) of the Act by denying an employee the right to representa-
tion during an investigatory interview. At trial, the General
Counsel’s motion to amend the complaint was granted to in-
clude the allegation that Respondent also violated Section 8(a)
(1) of the Act when Respondent instructed the employee not to
discuss the incident under investigation with anyone.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent (Costco), a corporation, has been engaged in the
sale and distribution of merchandise and services at its ware-
house facility in Glen Allen, Virginia,2 where during calendar
year 2016, it derived gross revenues in excess of $500,000.
During the same time period, Respondent purchased and re-
ceived at its facility, products, goods and materials valued in
excess of $5000 directly from points located outside the State
of Virginia. Respondent admits, and I find, that it is an em-
ployer engaged in commerce within the meaning of Section

1 All dates are in 2016 unless otherwise indicated.
2 This store is also referred to by the parties as the West Henrico fa-
cility.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
2(2), (6), and (7) of the Act.
Respondent further admits, and I find, that the Union Local
592 is a labor organization within the meaning of Section 2(5)
of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent operates its Costco warehouse store with ap-
proximately 240 employees. At all relevant times, Marc Cibel-
lis served as the store’s general manager over 3 assistant store
managers, and various department managers and supervisors.
The following of Respondent’s employees (the Unit) consti-
tute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act:
The employees of Respondent in classifications set forth in
Appendix A of the collective-bargaining agreement between
the Respondent and the Eastern Area Teamsters and who are
employed in warehouse operations of Respondent located [in]
Maryland, New Jersey, New York, and Virginia.
At all material times, Respondent has recognized the Eastern
Area Teamsters, which includes the Charging Party, as the
exclusive collective-bargaining representative of the Unit. This
recognition has been embodied in successive collective-
bargaining agreements, the most recent of which was effective
March 15, 2013, through February 1, 2016. The Union admin-
isters the agreement at Respondent’s facility. There are two
shop stewards at the facility, Raymond Daniels (Raymond) and
John Coleman.
B. The February 4 Incident and Subsequent
Investigative Interviews
In July 2015, employee Justin Daniels (Justin) began work-
ing for Costco as a tire installer in the tire center.3 His immedi-
ate supervisor, Wes Hooker, managed the tire center, along
with several subordinate supervisors, including Justin Moore
(Moore). Justin’s father happens to be shop steward Raymond,
who also works at the same facility as a forklift operator and
packer.
On February 4, Justin engaged in a verbal altercation with
several of the tire center employees. On February 6, Hooker
informed Cibellis about the altercation.
Cibellis began investigating the incident by interviewing the
employees involved, including Justin. On about February 8, he
summoned Justin to his office, with Associate Store Manager
Eddie Johnson as a witness, and asked for his (Justin’s) version
of what transpired on February 4. At Cibellis’ request, Justin
also made a written statement. Cibellis admitted that he also
instructed Justin not to “have any conversations with anyone
else pertaining to this incident.” (Tr. 111.) It is undisputed that
Justin did not ask for a union representative to be present with
him before or during this meeting.4

3 He installed, rotated, and repaired tires.
4 I credited Cibellis’ testimony, corroborated by Justin’s February 8
interview statement, that this interview took place on February 8 (Mon-
day). Justin recalled on the stand, and in his Board affidavit, that it
On about the same date, Cibellis interviewed and received
statements from tire center installer Matt Mercantante, Supervi-
sor Moore and Tire Center Manager Hooker.5 Apparently,
Moore accused Justin of making “racially charged and discrim-
inatory comments” during the February 4 incident in the tire
center. (Tr. 95–97.) On about February 10, Cibellis told Justin
that he needed to meet with him at 11a.m. on February 11 to
ask some follow-up questions.6 Justin agreed to do so. On the
evening before the meeting, Justin told Raymond that Cibellis
wanted to question him about the February 4 incident. In re-
sponse, Raymond advised his son that “he had the right to have
[union] representation in the meeting.” (Tr. 65.)
On the morning of February 11, at about 10:45 a.m., Justin
approached his father and asked him if he would be attending
the meeting with him. Raymond responded that the “rules”
required that Justin first request a union representative before
he would be called into the meeting. Justin testified that on his
way to meet Cibellis, he ran into him on the stairwell leading
up to his office. He further testified that during that encounter,
he asked Cibellis for a union representative to be present during
their meeting, but was denied one. More specifically, he testi-
fied that after they greeted each other, “I asked him for a union
rep, and he told me that the meeting—it’s not going to be long.
He just got a quick question or two that he needs to ask me
about the statement, and he was going to let me be on my way.”
(Tr. 28.) Cibellis, on the other hand, not only denied seeing
Justin on the staircase before the interview, but also denied that
Justin requested a union representative at any time before or
during the interview. (Tr. 97–98.)7
Cibellis and Justin met alone in Cibellis’ office, and Cibellis
informed Justin that Moore had accused him (Justin) of making
a racist comment on February 4. Cibellis denied making any
racist remarks. After Cibellis questioned him about the com-
ment several times, Justin requested that Cibellis bring in his

happened on February 10 (Wednesday) because he was off on Mon-
days. But when presented with his statement, he testified that, “I can’t
remember…if it was the 8th now. We’re in October.” (Tr. 42–43.)
Unbelievably, he later claimed for the first time that he did not think
that he put the date on his statement, but wrote the rest of it. Neverthe-
less, I find that his statement, dated February 8, more accurately reflects
the date of the interview since there is no way to determine (without an
expert) that he did not date it or that someone else did. I gave no
weight to a document shown to refresh Justin’s memory about working
on the 8th since it was not introduced into the record. (Tr. 42–49, 53,
55, 91, 93.)
5 Cibellis interviewed the other tire installer involved in the incident
on February 9.
6 I discredited Cibellis’ testimony that he summoned Justin to meet
for the second interview on the morning of February 11, and that he
was off work on February 10; he offered no evidence to substantiate
this. It is more believable that he did so on February 10, or perhaps on
February 9, as Raymond corroborated Justin’s testimony that Justin told
him “[o]n one night at home” that he would be meeting with Cibellis
the next morning. Justin did not tell Raymond about his first interview
with Cibellis, nor did he tell Raymond when he was told to meet Cibel-
lis on February 11. (Tr. 66, 97–99.)
7 For reasons discussed further in this decision, I fully discredit Jus-
tin’s version of how and when he requested a representative before the
February 11 interview.
COSTCO WHOLESALE CORP. 3
accusers so that he could question them.8 At some point, Justin
took out a copy of his union handbook, which consisted of the
union contract. He testified that he told Cibellis that he was
“going to do some research and look into that,” and that Cibel-
lis responded, “well, okay, I’m not worried about that…it’s
discrimination.” Cibellis testified that he explained that wit-
nesses in investigations did not get to confront and/or question
each other. According to Cibellis, Justin became agitated,
showed him the union contract, and said that he (Cibellis) was
discriminating against him (Justin) by not allowing him to talk
to the other employees involved. Cibellis testified that Justin
left Cibellis’ office. Although Justin did not mention that he
asked to confront his coworkers, I find that Cibellis’ testimony
that he did so, along with Cibellis’ version of what Justin said
about the union contract, was more logical and believable. This
was in contrast to Justin’s vague, disjointed testimony. The
meeting was brief, and only lasted about 10 minutes. There is
no dispute that Justin never requested or mentioned union rep-
resentation in this meeting. (Tr. 99–100.)
After the meeting, Justin saw Raymond, and told him that he
asked for union representation for the meeting, but was denied.9
Both Justin and Raymond testified that Raymond immediately
called Union President Smith, and reported that Justin’s request
for a shop steward to be present during an investigatory meet-
ing had been rejected. Both testified that Smith told them to
meet with him at the union office to file a grievance. However,
Justin recalled that they went to see Smith the next day, while
Raymond recalled that they went the same afternoon. Smith
initially testified that he did not recall when they visited him,
but when asked again, believed that they came the same day of
the incident. (Tr. 80–83.)
On either February 11 or 12, Justin and Raymond met with
Smith in the union office and told him what had occurred dur-
ing the second interview with Cibellis. However, there is some
disagreement, or rather confusion, about the particulars of this
meeting. Justin and Raymond recalled that Smith’s assistant or
secretary typed up Justin’s statement, and both believed or
assumed that a grievance would be filed that day. (Tr. 33, 70–
71.) Smith recalled that during the meeting, Justin explained
that he got called into Cibellis’ office, and asked to have a shop
steward present, but was denied one. He said that Justin also
told him that he had the contract with him, and that Cibellis told
him that “we don’t go by that book.” (Tr. 78–79.) Smith was
sure that he did not have Justin sign or write up a statement, or
have a secretary do so. He testified that after they left his of-
fice, he “got with [the Union’s] attorney, and filed a labor
charge on that and another incident that had occurred…[a] la-
bor charge on that, on him not getting his Weingarten rights
and on another incident that had occurred, which there were
two totally separate incidents.” Smith was not certain that his
attorney filed the charge on the same day, but believed that one

8 Justin testified that Cibellis asked him if he had called one of his
coworkers a “white boy,” and that Cibellis asked several times if he
made the comment. Cibellis testified that he read Moore’s statement to
Justin, and asked him about it. (Tr. 99–100.)
9 There is no evidence that Justin told Raymond that he had asked
for a representative before the meeting, on the stairs.
was filed “probably that week.” (79–83.)
The charge in this case was signed by the Union’s attorney,
Jonathan Axelrod, and dated on February 12, but not filed until
February 18. It states in relevant part the following:
On February 11, 2016, Costco Manager Marc Cibellis called
employee Justin Daniels into his office to question him about
potential misconduct. Employee Justin reasonably believed
that he might be disciplined and requested the assistance of a
Union steward. Manager Cibellis refused the request and
continued to interrogate Employee Justin. At the conclusion
of the meeting, Manager Cibellis told Employee Justin that he
would let him know whether discipline would be imposed.
(GC Exh. 1(A).) During the Board investigation of this charge,
neither Justin nor Raymond mentioned the meeting in Smith’s
office, but the date on which the charge was signed by Axelrod
confirms that they must have met on or before February 12.10
More concerning is the fact that neither Justin nor Raymond
mentioned in their Board affidavits that Justin requested a un-
ion representative on the stairwell. In fact, in his affidavit,
Justin swore that he requested one during the February 11
meeting with Cibellis. (Tr. 57–58.)
Respondent suspended Justin pending termination on Febru-
ary 13, and terminated him on February 18 for making racist,
threatening and/or harassing statements. On or after February
18, the Union also filed a grievance, but only on Justin’s termi-
nation. About 2 weeks after Justin’s discharge, Smith and Jus-
tin met with Cibellis and other Costco managers to discuss the
termination grievance. During this meeting, Justin and Smith
also confirmed that a charge had been filed alleging that Re-
spondent had denied Justin union presentation.11
III. DISCUSSION AND ANALYSIS
A. Credibility Determinations12
The main controversy in this case is whether or not Justin re-
quested a union shop steward to represent him in the second
meeting with Cibellis on February 11. After reviewing all of
the evidence, I must conclude that the General Counsel failed to
show that he did.
I find that Justin’s testimony that he requested a union repre-

10 There was no explanation provided as to why the Union waited
until the date that Justin was terminated to file the charge. But since
there was no evidence that Axelrod falsified the date on which he com-
pleted and signed the charge, I credit testimony that Justin and Ray-
mond met with Smith on February 11 or 12. (GC Exh. 1-A.)
11 I credit testimony that Smith and Justin mentioned the Board
charge during this particular meeting since Respondent referenced the
exchange in its position statement. (Tr. 110, 119–121.)
12 A credibility determination may rely on a variety of factors, in-
cluding the context of the witness’ testimony, the witness’ demeanor,
the weight of the respective evidence, established or admitted facts,
inherent probabilities and reasonable inferences that may be drawn
from the record as a whole. Double D Construction Group, 339 NLRB
303, 305 (2003); Daikichi Sushi, 335 NLRB 622, 623 (2001) (citing
Shen Automotive Dealership Group, 321 NLRB 586, 589 (1996)), enfd.
56 Fed. Appx. 516 (D.C. Cir. 2003). Credibility findings need not be
all-or-nothing propositions—indeed, nothing is more common in all
kinds of judicial decisions than to believe some, but not all, of a witness’
testimony. Daikichi Sushi, 335 NLRB at 622. Such is the case here.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
sentative when he met Cibellis on the stairs prior to the Febru-
ary 11 meeting is simply not credible based on the various in-
consistencies in his testimony and other statements. First, in
his Board affidavit taken on March 2, less than a month after
that meeting, Justin swore under oath that on February 10, he
met Cibellis in his office, and asked for a union representative
in his office. Neither he nor his father mentioned in their affi-
davits that Justin made such a request on the staircase before
the actual meeting. When confronted with his affidavit state-
ment, Justin equivocally, and with hesitation, testified that,
“[y]eah, I’m – that’s the way I might have wrote it, but I know
for sure I asked him on the staircase.” I credit the Board affi-
davit over his trial testimony on this critical point since it was
provided shortly after the second meeting, and he had no plau-
sible explanation as to why his statement changed since that
time. This is not the same as failing to remember a specific
date of a meeting which took place several months or a year
ago. Moreover, there is absolutely no evidence that he men-
tioned the stairwell request for a union representative to Smith
or his father. Raymond never mentioned this in his testimony,
and I believe that had he known, he would have done so. The
charge in this case, which alleges that Justin requested the as-
sistance of a union steward after he was called into Cibellis’
office, further diminishes Justin’s credibility about his version
of events on February 11. (GC Exh. 1-A.)
In summary, it is beyond belief that had Justin asked for a
representative on the steps or in the stairwell before the inter-
view, he would have failed to mention this crucial, unique de-
tail to Raymond, Smith or the Board investigator. Therefore, I
find that at some time after the February 11 interview and after
his meeting with Smith, Justin fabricated his story about re-
questing a union representative on the staircase. Since he did
not do so before or during his February 11 interview, I must
conclude that he never requested union representation.
The General Counsel asks that I discredit Cibellis’ testimony
because Respondent’s counsel violated the sequestration order
by reviewing Justin’s Board affidavit with Cibellis outside of
the hearing room. (Tr. 35–36.) Respondent’s counsel did in
fact agree to exclude Cibellis, its company representative, from
the hearing room pursuant to the order. I find, however, that
Cibellis’ testimony in this case was not tainted by this action.
As determined, it was Justin’s own testimony, along with other
inconsistencies in the record, which caused me to disbelieve his
claim. Further, Cibellis probably would have been permitted to
remain throughout the entire trial as a party representative.
Greyhound Lines, 319 NLRB 554 (1995). Therefore, no mate-
rial harm was caused.
Next, I discount the General Counsel’s contention that Cibel-
lis’ credibility as a witness should be vitiated by his testimony
that Justin’s charge was never discussed during the termination
grievance meeting. After reading an excerpt from Respond-
ent’s position statement, Cibellis admitted that the Board
charge was briefly discussed at that meeting. However, this
particular inconsistency in Cibellis’ testimony does not alter the
outcome of this case, nor does my finding that Cibellis did not
summon Justin on the morning of February 11.
B. Respondent Did Not Violate the Act by Denying Justin
Union Representation
Applicable in this case is the Supreme Court’s decision in
NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975), which holds
that an employer violates Section 8(a) (1) of the Act when it
denies an employee’s request for union representation at an
investigatory interview that he or she reasonably believes may
result in his or her discipline. See also Kohl’s Food Co., 249
NLRB 75 (1980); Lennox Industries, Inc., 244 NLRB 607
(1979); Baton Rouge Water Works Co., 246 NLRB 995 (1979).
In determining whether an employee’s belief is reasonable, the
Court set forth an objective standard, considering all of the
surrounding circumstances. Weingarten at 257. Once an em-
ployee requests that a union representative be present during an
investigatory interview, the employer may grant the request,
discontinue the interview or offer the employee the choice to
either continue the interview without a representative or not
having the interview at all. Weingarten at 258–259; YRC Inc.,
360 NLRB 744, 745 (2014); Consolidated Freightways Corp.,
264 NLRB 541, 542 (1982); General Motors Co., 251 NLRB
850, 857 (1980), enfd. in relevant part 674 F.2d 576 (6th Cir.
1982); USPS, 241 NLRB 141 (1979).
In the instant case, the General Counsel avers that Justin re-
quested union representation prior to entering his second inves-
tigatory interview, while Respondent avers that he did not.
There is no dispute that Justin was aware of the right to do so.
There is also no dispute that Cibellis conducted two investiga-
tive interviews with Justin, in order to determine his culpability
in an altercation with coworkers on February 4. Since Justin
did not ask for a union representative at any time prior to or
during the February 11 investigatory interview, there was no
duty for Cibellis to have discontinued the interview or to have
initiated a request for a shop steward to represent Justin. Con-
sequently, I find that Justin never asserted his Weingarten
rights, and that Respondent did not violate the Act in this re-
gard. Therefore, this allegation is dismissed.
C. Respondent Violated Section 8(a)(1) of the Act When Cibel-
lis told Justin Not to Have Any Conversations With Anyone
Regarding the February 4, 2016 Incident
1. Motion to amend granted
During the trial, the General Counsel requested that the
complaint in this case be amended to add an allegation that
Respondent violated Section 8(a)(1) of the Act when in the first
interview with Justin, Cibellis told him not to talk to anyone
else about the February 4 incident. Respondent primarily ar-
gued that the amendment was untimely. Section 102.17 of the
Board’s Rules and Regulations authorize an administrative law
judge to grant motions to amend complaints. The judge may do
so “upon [terms that] may seem just” during or after the hear-
ing. See also Folsom Ready Mix, Inc., 338 NLRB 1172, at fn. 1
(2003). This provision allows the judge “wide discretion” to
grant or deny a motion to amend; however, in exercising that
discretion, the judge should consider: “1) whether there was
surprise or lack of notice, 2) whether there was a valid excuse
for the delay in moving to amend, and 3) whether the matter
was fully litigated.” Rogan Bros. Sanitation, Inc., 362 NLRB
COSTCO WHOLESALE CORP. 5
No. 61, slip op. at 3 fn. 8 (2015), enfd. 651 Fed Appx. 34 (2d
Cir. 2016); Stagehands Referral Service, 347 NLRB 1167,
1171 (2006).
Here, the General Counsel moved to amend the complaint
immediately after Cibellis admitted under oath that he told
Justin not to have any conversations “pertaining to” the Febru-
ary 4 incident. (Tr. 111.) The General Counsel explained that
the reasons for the delay in moving to amend included “newly
discovered evidence provided in response to a trial subpoena
deuces tecum” received only a couple of days before trial,
along with Cibellis’ admission on the stand. (GC. Br.) I con-
cluded that the motion to amend met the standards set forth in
Rogan Bros. Sanitation, Inc. and Stagehands Referral Services,
above. There was no surprise or lack of notice regarding the
new evidence since it was contained in the information fur-
nished by Respondent, and the General Counsel’s reasons for
delay were valid. Further, given an opportunity to fully litigate
and provide additional evidence, Respondent’s counsel chose
not to do so. Respondent argued in its brief that the General
Counsel failed to question Justin about this statement. Howev-
er, I find there was no need to do so in light of Cibellis’ admis-
sion.
I also found that the allegation regarding Cibellis’ instruction
to Justin is sufficiently related to the timely Weingarten allega-
tion to allow it to be added to the complaint. The decision in
Redd-I, Inc., 290 NLRB 1115, 1116 (1988), provides that a
complaint may be amended to allege conduct outside the 10(b)
period if the conduct occurred within 6 months of a timely filed
charge, and is “closely related” to the allegations of the charge.
Also see Fry’s Food Stores, 361 NLRB 1216, 1217 (2014),
citing Redd-I, Inc., above. In evaluating whether the timely and
alleged untimely allegations are “closely related,” the Board:
(1) considers whether the allegations involve the same legal
theory; (2) considers whether the allegations arise from the
same factual circumstances or sequence of events; and 3) “may
look” at whether the respondent would raise the same or similar
defenses to both allegations. Nickels Bakery of Indiana, 296
NLRB 927–928 (1989); Earthgrains Co., 351 NLRB 733, 734
(2007).
In Earthgrains Co., above at 736–737, the Board permitted
an amendment alleging that the respondent “coerced employees
to sign false statements to impede a Board investigation” and
ultimately support a motion to dismiss the timely claims alleg-
ing instances of interference with Section 7 rights. In doing so,
the Board determined that the two allegations arose out of the
same facts or sequence of events, “in that the alleged coerced
statement concerned the very conduct that gave rise to the time-
ly 8(a) (1) allegations that the Respondent attempted to have
dismissed by using the statement.” Id. “[E]ven assuming that
the Respondent would raise dissimilar defenses to the timely
allegations . . . and the untimely amendment . . . ,” the Board
concluded that the facts sufficiently satisfied the Redd-I “close-
ly related” test. Id. at fn. 18, citing The Carney Hospital, 350
NLRB 627 fn. 8 (2007) (the third prong of the Redd-I test is not
mandatory).
Here, I find that the timely and untimely alleged prohibited
conduct arose out of the investigation of the same underlying
incident. First, the timely and untimely allegations involve the
same legal theory. Both involve alleged interference with,
restraint of and coercion of an employee’s Section 7 rights in
violation of Section 8(a) (1) of the Act. The Supreme Court in
Weingarten recognized that an employee has an “individual
right [under Section 7 of the Act] to engage in concerted activi-
ty by seeking the assistance of his statutory representative.” It
also found that it is a “serious violation” of that right when an
employee seeks such assistance and is denied. Weingarten, 420
U.S. 251 at 256–257. Similarly, Section 7 of the Act permits
discussions about pending disciplinary investigations since they
are “vital to employees’ ability to aid one another in addressing
employment terms and conditions with their employer.” Ban-
ner Estrella Medical Center, 362 NLRB No. 137, slip op. at 2.
An employer violates that right under Section 7 and 8(a) (1) of
the Act when it prohibits such discussions without showing that
“its need for confidentiality with respect to that specific inves-
tigation outweighs employees’ Section 7 rights.” Boeing Co.,
362 NLRB No. 195, slip op. at 1. Here, the General Counsel
had to show that Justin requested, but was denied a union rep-
resentative during the second of two investigative meetings.
Concerning the otherwise untimely allegation, the General
Counsel had to show that Justin instructed him not to discuss
the incident under investigation, which I find would reasonably
be construed to include subsequent interviews. Both of them
“portend” Cibellis’ alleged unlawful conduct (retraining Cibel-
lis’ Section 7 rights) during the same investigative process of
the same verbal altercation on February 4. See Davis Elect.
Constructors, Inc., 291 NLRB 115, 116–117 (1988) (the allega-
tions involved similar conduct during the same time period with
a similar object as required under the Redd-I test).
As stated, the allegations arose from the same factual cir-
cumstances and sequence of events. Next, Respondent chose
not to offer evidence in defense of the second allegation, but
did argue in its brief that certain Board law is inapplicable be-
cause Costco did not have any formal rule prohibiting “em-
ployees” from discussing investigations. That particular de-
fense will be addressed below. Since there is no requirement
that defenses to the timely and untimely allegations be the same
or similar, the amendment here is valid. The Carney Hospital,
above at 627 fn. 8.13
2. Cibellis’ instruction violated the Act
It remains undisputed that Cibellis told Justin not to discuss
the February 4 altercation with anyone else. Therefore, I find
that Cibellis’ prohibition interfered with Justin’s Section 7
rights in violation of Section 8(a)(1) of the Act.
As previously stated, an employer violates that right under
Section 7 and 8(a) (1) of the Act when it prohibits such discus-
sions without showing that “its need for confidentiality with
respect to that specific investigation outweighs employees’
Section 7 rights.” Boeing Co., above at 1. Here, Respondent
did not offer any evidence to support a claim of confidentiality,
or as the Board requires in such instances, evidence that wit-
nesses needed protection, evidence might be destroyed, testi-

13 I also rejected Respondent’s argument that the amended claim
should be dismissed because Region 5 failed to discover Cibellis’ in-
struction to Justin during its investigation of the charge in this case.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
mony was in “danger of being fabricated” and “there was a
need to prevent a cover up.” Hyundai America Shipping Agen-
cy, 357 NLRB 860, 874 (2011).14
Respondent argues in its brief that the facts in this case are
inapposite to those in Banner Health System. Respondent fur-
ther argues that the Board’s ruling that the employer violated
the Act by maintaining and applying an unlawful policy of
requesting “employees” not to discuss ongoing investigations,
is inapplicable here because Respondent had no written or for-
mal policy that it communicated to its employees. Rather, only
one employee, Justin, received an oral instruction not to discuss
his altercation with anyone. I disagree with and reject Re-
spondent’s interpretation. Board law does not require that a
rule or policy be set forth in writing or presented in some man-
ner to multiple employees for it to be unlawful. See In Re
Lucky Cab Co., 360 NLRB 271, 272 (2014) (Board found the
employer’s human resource manager violated the Act by “oral-
ly promulgating and enforcing” an unlawful rule prohibiting an
employee from discussing her discharge with others).
CONCLUSIONS OF LAW
The Respondent has not violated Section 8(a)(1) of the Act
by failing to grant Justin’s request for a union representative to
accompany him in the February 11 investigatory interview.
Therefore, this allegation is dismissed.
By instructing employee Justin Daniels not to discuss the
February 4 incident and investigatory interview with anyone
else, Respondent violated Section 8(a)(1) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I shall order it to cease and desist therefrom
and to take certain affirmative action designed to effectuate the
policies of the Act.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended15
ORDER
The Respondent, Costco Wholesale Corporation, Glen Allen,
Virginia, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Instructing employees not to discuss disciplinary investi-
gations or other terms and conditions of employment with oth-
ers.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days after service by the Region, post at its

14 Cibellis’ explicit instruction would reasonably tend to chill em-
ployees in the exercise of their Section 7 rights, in violation of the Act.
See Lafayette Park Hotel, 326 NLRB 824, 825 (1998).
15 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
Glen Allen, Virginia facility copies of the attached notice
marked “Appendix.”16 Copies of the notice, on forms provided
by the Regional Director for Region 5, after being signed by the
Respondent’s authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employees
are customarily posted. In addition to physical posting of paper
notices, the notices shall be distributed electronically, such as
by email, posting on an intranet or an internet site, and/or other
electronic means, if the Respondent customarily communicates
with its employees by such means. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Respondent
has gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its
own expense, a copy of the notice to all current employees and
former employees employed by the Respondent at any time
since February 8, 2016.
(b) Within 21 days after service by the Region, file with the
Regional Director for Region 5 sworn certification of a respon-
sible official on a form provided by the Region attesting to the
steps that the Respondent has taken to comply.
Dated, Washington, D.C. February 24, 2017
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 no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT instruct employees to not discuss disciplinary
investigations or other terms and conditions of employment
with others.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
COSTCO WHOLESALE CORP.
The Administrative Law Judge’s decision can be found at

16 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
COSTCO WHOLESALE CORP. 7
www.nlrb.gov/case/05–CA–169958 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations Board,
1015 Half Street, S.E., Washington, D.C. 20570, or by calling
(202) 273–1940.