Target Corporation

National Labor Relations Board - Board Decisions

Apr 30, 2013

359 N.L.R.B. 953 (N.L.R.B. 2013)

TARGET CORP. 953

359 NLRB No. 103
Target Corporation and United Food & Commercial
Workers Local 1500. Cases 29–CA–030804, 29–
CA–030820, 29–CA–030880, and 29–RC–012058
April 30, 2013
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN PEARCE AND MEMBERS GRIFFIN
AND BLOCK
On May 18, 2012, Administrative Law Judge Steven
Davis issued the attached decision. The Respondent
filed exceptions and a supporting brief, the Acting Gen-
eral Counsel and Charging Party Union filed answering
briefs, and the Respondent filed reply briefs. The Acting
General Counsel filed limited exceptions, and the Re-
spondent filed an answering brief. The Charging Party
filed limited cross-exceptions and a supporting brief, the
Respondent filed an answering brief, and the Charging
Party and Acting General Counsel each filed a reply
brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings,
1
and conclusions
2
only to the extent consistent with
this Decision, Order, and Direction of Second Election

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
There are no exceptions to the judge’s finding that the Respondent
did not threaten employees with store closure during employee group
meetings.
The Respondent contends that the Board lacks a quorum because the
President’s recess appointments are constitutionally invalid. We reject
this argument. We recognize that the United States Court of Appeals
for the District of Columbia Circuit has concluded that the President’s
recess appointments were not valid. See Noel Canning v. NLRB, 705
F.3d 490 (D.C. Cir. 2013). However, as the court itself acknowledged,
its decision conflicts with rulings of at least three other courts of ap-
peals. See Evans v. Stephens, 387 F.3d 1220 (11th Cir. 2004), cert.
denied 544 U.S. 942 (2005); U.S. v. Woodley, 751 F.2d 1008 (9th Cir.
1985); U.S. v. Allocco, 305 F.2d 704 (2d Cir. 1962). This question
remains in litigation, and pending a definitive resolution, the Board is
charged to fulfill its responsibilities under the Act. See Belgrove Post
Acute Care Center, 359 NLRB 621, 621 fn. 1 (2013).
2 The judge found that the Respondent violated Sec. 8(a)(1) of the
Act by, inter alia, creating the impression that employee Sonia Wil-
liams’ union activities were under surveillance and threatening employ-
ee Tashawna Green with unspecified reprisals because she engaged in
union activity, and we adopt those findings. However, the judge inad-
vertently omitted conclusions of law corresponding to these two unfair
labor practice findings. The judge’s conclusions of law are hereby
amended accordingly.
and to adopt the judge’s recommended Order as modified
and set forth in full below.
3

For the reasons stated below, we reverse the judge’s
finding that the Respondent violated Section 8(a)(1) of
the Act by maintaining its parking lot policy. We adopt
the remainder of the judge’s unfair labor practice find-
ings for the reasons stated by the judge, except as modi-
fied below.
4

1. As more fully set forth in the judge’s decision, part
of the Respondent’s no-solicitation/no-distribution policy
prohibits solicitation during working time and in work
areas, and distribution of pamphlets or other literature
during working time or in work areas. There is no con-
tention that this part of the rule violates the Act. The
judge found, however, and we agree, that the following
additional prohibitions in the policy did violate the Act:

Certain activities are prohibited at all times on Target
premises. Soliciting, distributing literature, selling
merchandise or conducting monetary transactions,
whether through face-to-face encounters, telephone,
company mail or e-mail, are always off limits (even
during meal and break periods) if they are:
For personal profit
For commercial purposes

3 We shall modify the judge’s recommended Order to reflect the vio-
lations found and in accordance with the Board’s standard remedial
language and its decision in J. Picini Flooring, 356 NLRB No. 9
(2010). The judge recommended a broad order requiring the Respond-
ent to cease and desist from violating the Act as found or “in any other
manner.” We find that a broad order is not warranted under the cir-
cumstances of this case, and we shall substitute a narrow order, requir-
ing the Respondent to cease and desist from violating the Act as found
or “in any like or related manner.” See Hickmott Foods, 242 NLRB
1357 (1979).
4 In adopting the judge’s finding that the Respondent violated Sec.
8(a)(1) by maintaining its information security policies, we rely addi-
tionally on DirecTV U.S. DirecTV Holdings, LLC, 359 NLRB 545,
547–548 (2013) (finding unlawful a rule prohibiting disclosure of “em-
ployee records”); Flex Frac Logistics, LLC, 358 NLRB 1131, 1131
(2012) (finding unlawful a rule prohibiting disclosure of “personnel
information and documents”); and Hyundai America Shipping Agency,
357 NLRB 860, 871 (2011) (finding unlawful a rule prohibiting “[a]ny
unauthorized disclosure from an employee’s personnel file”). The
policies at issue here prohibited employees from disclosing “confiden-
tial information,” broadly characterized as confidential “all Target
information that is not public,” and listed as one example of confiden-
tial information “team member [i.e., employee] personnel records.”
Under the just-cited precedent as well as that cited by the judge, the
Respondent violated Sec. 8(a)(1) by maintaining these policies. Alt-
hough the judge erroneously stated that the information security poli-
cies prohibited disclosure of personnel “information” rather than “rec-
ords,” the error does not affect our decision.
In adopting the judge’s finding that the Respondent violated Sec.
8(a)(1) by creating an impression of surveillance of employees’ union
activities, we note that the Respondent’s exceptions turn solely on the
judge’s relevant credibility determinations.
954 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
For a charitable organization that isn’t part of the Tar-
get Community Relations program and isn’t designed
to enhance the company’s goodwill and business.

Generally speaking, an employer’s ban on solicitation
that is not limited to working time, or on distribution of
literature not limited to working time and working areas,
is presumptively invalid. Stoddard-Quirk Mfg. Co., 138
NLRB 615, 615–621 (1962).
5
Thus, unless the stated
purposes for which solicitation and distribution are
banned “at all times on Target premises” are carefully
crafted to exclude union and other activity protected un-
der Section 7 of the Act, the rule is unlawful. Phrasing
the issue in accordance with the applicable test, if em-
ployees would reasonably construe the rule to include
within its scope union solicitation and distribution, the
Respondent violated Section 8(a)(1) by maintaining it.
See Lutheran Heritage Village–Livonia, 343 NLRB 646,
647 (2004).
6

Here, the problematic phrase is “[f]or commercial pur-
poses.” The Respondent does not define this phrase or
furnish any illustrative examples that might clarify its
scope. Viewed in isolation, it could appear to designate
solicitation and distribution aimed at selling goods and
services. But the phrase does not exist in isolation. It
immediately follows language banning solicitation and
distribution “[f]or personal profit,” a narrower and more
precise phrase that employees would readily understand
to encompass solicitation and distribution aimed at sell-
ing goods and services. With the subject of selling goods
and services having been addressed, it would be entirely
reasonable for employees to conclude that “[f]or com-
mercial purposes” means something different, including
solicitation and distribution for other organizations, such
as unions. Whether the Respondent actually intended
this interpretation is beside the point, as employees
should not have to decide at their own peril what conduct
a rule covers. Flex Frac Logistics, supra, 358 NLRB
1131, 1132.
Moreover, the Respondent itself encouraged that very
interpretation during its preelection campaign. As the
judge details in his decision, the Respondent told em-

5 Retail stores may additionally prohibit employees from soliciting
on the selling floor even during nonworking time. Id. at 617 fn. 4.
6 An employer violates Sec. 8(a)(1) when it maintains a work rule
that reasonably tends to chill employees in the exercise of their Sec. 7
rights. If the allegedly unlawful rule explicitly restricts activity pro-
tected by Sec. 7, its maintenance is unlawful. If it does not, then
whether the Act has been violated depends on a showing of one of the
following: (1) employees would reasonably construe the language to
prohibit Sec. 7 activity; (2) the rule was promulgated in response to
Sec. 7 activity; or (3) the rule has been applied to restrict the exercise of
such activity. Lutheran Heritage Village–Livonia, above at 646–647.
ployees that the Union is a “business” that “sells mem-
berships.” Moreover, on several occasions, high-level
managers at the Respondent’s store told employees en-
gaged in union activity that there was “no soliciting on
the premises,” including the parking lot, and no distribu-
tion of literature, even in the breakroom. Although there
is no evidence that the managers expressly invoked the
no-solicitation/no-distribution rule, these authoritative
indications of the scope of the prohibition further support
our finding that employees would reasonably construe
the rule’s application to “commercial” activities to pro-
hibit protected Section 7 activity. See The Roomstore,
357 NLRB 1690, 1690 fn. 3 (2011).
7

2. The judge found certain language in the Respond-
ent’s parking lot policy unlawful. The policy in its en-
tirety states as follows:

Park in the area of the lot for team members. Always
lock your car. Use the “buddy system” or walk in pairs
when you leave at night. It’ll make leaving safer. Af-
ter the store closes, you may be asked to move your car
closer to the store for safety. If you see people you
don’t know loitering around the team member parking
area, notify Assets Protection or your leader on duty
immediately. (Target is not responsible if your car is
damaged or stolen while in the parking lot.)

The part of the policy the judge found unlawful is the
sentence stating: “If you see people you don’t know loi-
tering around the team member parking area, notify As-
sets Protection or your leader on duty immediately.” The
judge reasoned that because “it is possible that not all the
workers know each other,” and because some employees
may want to engage in union activity pre or postshift in
the parking lot, the parking lot policy violates the Act
“because it requires the workers to inform the Respond-
ent of anyone who might be engaged in union activities
in the lot.”
We disagree. The disputed provision of the parking lot
policy does not explicitly restrict Section 7 activity, and
there is no evidence that the rule was promulgated in
response to union activity or that it has been applied to
restrict the exercise of Section 7 rights. The judge ap-
pears to have found the provision unlawful under the
“reasonable construction” prong of the Lutheran Herit-
age Village test. 343 NLRB at 647. As the Board stated
in that decision, however, when (as here) a rule does not
refer to Section 7 activity, “we will not conclude that a

7 Our conclusion that in these circumstances employees subject to
this rule reasonably would conclude that the Respondent understood
union activity to constitute “commercial” activity does not suggest that
we agree with the Respondent’s characterization.
TARGET CORP. 955

reasonable employee would read the rule to apply to such
activity simply because the rule could be interpreted that
way.” Id. The Board must give the rule a reasonable
reading, must refrain from reading particular phrases in
isolation, and must not presume improper interference
with employee rights. Id. at 646. Here, the requirement
that employees report unknown loiterers is embedded in
a rule the overall purpose of which is (in the judge’s own
words) “to ensure the safety of the employees in the
store’s parking lot.” In our view, a reasonable employee
would realize the lawful purpose of the challenged provi-
sion from its context and infer that the Respondent’s
purpose in promulgating it was to ensure employee safe-
ty, “not to restrict Section 7 activity.” Id. at 648.
8

3. On May 10, 2011, the Union filed a representation
petition in Case 29–RC–012058. An election by secret
ballot was held on June 17, 2011. The tally of ballots
showed 85 for and 137 against the Union, with 6 nonde-
terminative challenged ballots. The Union filed timely
election objections, many of which mirror the unfair la-
bor practices we find here. We find that the results of the
election must be set aside. In so finding, we agree with
the judge’s apparent conclusion that the Respondent’s
maintenance of unlawful rules is sufficient by itself to set
aside the election. However, we additionally rely on the
other 8(a)(1) violations the Respondent committed dur-
ing the critical period—including a coercive interroga-
tion, a threat of unspecified reprisals, and the distribution
to employees of a leaflet that unlawfully implied a threat
to close the store if employees selected the Union—in
reaching our conclusion that the election must be set
aside and a second election directed.
AMENDED REMEDY
The standard affirmative remedy for maintenance of
unlawful work rules is immediate rescission of the of-
fending rules; this remedy ensures that employees may

8 Although we agree with the judge that it is possible that not all
Valley Stream store employees know each other, the Respondent’s
dress code requires employees to wear a red shirt, khaki pants, and an
employer-issued name tag. Except during cold weather, employees
would easily identify their coworkers on sight. Even during such
weather, employees likely would be identifiable by their khaki pants.
In finding the parking lot policy unlawful, the judge relied on the
Board’s finding unlawful, in Lutheran Heritage Village, a rule prohibit-
ing loitering on company property without permission. That rule was
materially different from the one at issue here. It prohibited employees
from “loitering” anywhere on company premises, without defining
what was thereby proscribed, and was devoid of any context that would
indicate a lawful purpose. A reasonable employee would construe that
rule to prohibit off-duty employees from engaging in Sec. 7 activity in
nonworking areas. In contrast, the rule at issue here merely requires the
reporting of unknown individuals seen loitering in the employee park-
ing area, and embeds that requirement in a context that clearly shows
the rule’s lawful purpose.
engage in protected activity without fear of being sub-
jected to the unlawful rule. Guardsmark, LLC, 344
NLRB 809, 812 (2005), enfd. in relevant part 475 F.3d
369 (D.C. Cir. 2007). Pursuant to Guardsmark, the Re-
spondent may comply with the Order by rescinding the
unlawful provisions and republishing its employee hand-
book without them. We recognize, however, that repub-
lishing the handbook could be costly. Accordingly, the
Respondent may supply the employees either with hand-
book inserts stating that the unlawful rules have been
rescinded, or with new and lawfully worded rules on
adhesive backing that will cover the unlawfully broad
rules, until it republishes the handbook either without the
unlawful provisions or with lawfully-worded rules in
their stead. Any copies of the handbook that are printed
with the unlawful rules must include the inserts before
being distributed to employees. See 2 Sisters Food
Group, 357 NLRB 1816, 1823 fn. 32 (2011); Guards-
mark, supra at 812 fn. 8.
Further, the unlawful rules have been or are in effect at
the Respondent’s facilities nationwide.
9
“[W]e have
consistently held that, where an employer’s overbroad
rule is maintained as a companywide policy, we will
generally order the employer to post an appropriate no-
tice at all of its facilities where the unlawful policy has
been or is in effect.” MasTec Advanced Technologies,
357 NLRB 103, 109 (2011) (quoting Guardsmark, supra,
344 NLRB at 812). As the D.C. Circuit observed, “only
a company-wide remedy extending as far as the compa-
ny-wide violation can remedy the damage.” Guards-
mark, LLC v. NLRB, 475 F.3d 369, 381 (D.C. Cir. 2007).
We amend the remedy and will modify the judge’s rec-
ommended Order accordingly.
ORDER
The Respondent, Target Corporation, Valley Stream,
New York, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Maintaining information security policies that pro-
hibit employees from discussing or otherwise disclosing
information regarding wages, benefits, and other terms
and conditions of employment.

9 Dawn Major, the Respondent’s human resources director for the
East Coast Region, testified that store-level executives do not have
authority to set employment policies for a particular store. She also
stated that the corporate employee relations department developed the
employee handbook and that all employees receive a copy during new-
hire orientation. She explained that the Respondent does not issue new
handbooks each time a rule is revised because the handbooks apply to
“hundreds of thousands” of employees.
956 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(b) Maintaining a no-solicitation/no-distribution policy
that prohibits union solicitation and distribution at all
times on Target premises.
(c) Enforcing a no-solicitation policy that prohibits un-
ion solicitation at all times, including nonworking time.
(d) Telling employees that it would enforce it’s unlaw-
fully overbroad no-solicitation/no-distribution policy.
(e) Maintaining an “After Hours” policy that prohibits
off-duty employee access to the exterior and other non-
working areas of its premises.
(f) Maintaining a dress code policy that prohibits wear-
ing union buttons or other union insignia while at work.
(g) Threatening to close its Valley Stream store in the
event that the employees select the Union as their bar-
gaining representative.
(h) Creating the impression that it was conducting sur-
veillance of protected employee activities.
(i) Coercively interrogating employees about their un-
ion or other protected concerted activities.
(j) Threatening to discipline employees for their union
or other protected concerted activities.
(k) Threatening employees with unspecified reprisals
for their union or other protected concerted activities.
(l) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Rescind, nationwide, the information security, no-
solicitation/no-distribution, “After Hours” and dress code
rules.
(b) Furnish all current employees nationwide with in-
serts for their current employee handbooks that (1) ad-
vise that the unlawful rules listed above have been re-
scinded, or (2) provide lawfully-worded rules on adhe-
sive backing that will cover the unlawful rules; or pub-
lish and distribute to all current employees nationwide
revised employee handbooks that (1) do not contain the
unlawful rules, or (2) provide lawfully-worded rules.
(c) Within 14 days after service by the Region, post at
its Valley Stream, New York store copies of the attached
notice marked “Appendix A” and at all other stores na-
tionwide copies of the attached notice marked “Appendix
B.”
10
Copies of the notices, on forms provided by the
Regional Director for Region 29, after being signed by
the Respondent’s authorized representative, shall be
posted by the Respondent and maintained for 60 consec-

10 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notices 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.”
utive days in conspicuous places, including all places
where notices to employees are customarily posted. In
addition to physical posting of paper notices, notices
shall be distributed electronically, such as by email, post-
ing on an intranet or an internet site, and/or other elec-
tronic means, if the Respondent customarily communi-
cates with its employees by such means. Reasonable
steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other
material. If the Respondent has gone out of business or
closed the facility involved in these proceedings, the Re-
spondent shall duplicate and mail, at its own expense, a
copy of the notice marked “Appendix A” to all current
employees and former employees employed by the Re-
spondent at its Valley Stream store at any time since
March 1, 2011.
(d) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
[Direction of Second Election omitted from publica-
tion.]

APPENDIX A
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 vio-
lated Federal labor law and has ordered us to post and obey
this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT maintain or enforce the following rules
in our team member handbook:

Information security policies that prohibit you from
discussing or otherwise disclosing information regard-
ing wages, benefits and other terms and conditions of
employment.
A no-solicitation/no-distribution policy that prohibits
union solicitation and distribution at all times on Target
premises.
TARGET CORP. 957

An “After Hours” policy that prohibits you from ac-
cessing exterior and other nonworking areas of our
store premises during your off-duty hours.
A dress code that prohibits you from wearing union
buttons or other union insignia while at work.

WE WILL NOT tell you that we will enforce an unlawful
no-solicitation/no-distribution policy.
WE WILL NOT threaten to close the Valley Stream store
if you select the Union as your bargaining representative.
WE WILL NOT give you the impression that we are en-
gaging in surveillance of your union or other protected
concerted activities.
WE WILL NOT coercively interrogate you about your un-
ion or other protected concerted activities.
WE WILL NOT threaten you with discipline if you en-
gage in union or other protected concerted activities.
WE WILL NOT threaten you with unspecified reprisals if
you engage in union or other protected concerted activi-
ties.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
set forth above, which are guaranteed you by Section 7
of the National Labor Relations Act.
WE WILL rescind the information security, no-
solicitation/no-distribution, “After Hours” and dress code
rules.
WE WILL furnish all of you with inserts for your current
employee handbook that (1) advise you that the unlawful
rules listed above have been rescinded, or (2) provide
lawfully-worded rules on adhesive backing that will cov-
er the unlawful rules; or WE WILL publish and distribute
to all of you a revised employee handbook that (1) does
not contain the unlawful rules, or (2) provides lawfully-
worded rules.

TARGET CORPORATION

APPENDIX B
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 vio-
lated Federal labor law and has ordered us to post and obey
this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT maintain or enforce the following rules
in our team member handbook:

Information security policies that prohibit you from
discussing or otherwise disclosing information regard-
ing wages, benefits and other terms and conditions of
employment.
A no-solicitation/no-distribution policy that prohibits
union solicitation and distribution at all times on Target
premises.
An “After Hours” policy that prohibits you from ac-
cessing exterior and other nonworking areas of our
store premises during your off-duty hours.
A dress code that prohibits you from wearing union
buttons or other union insignia while at work.

WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
set forth above, which are guaranteed you by Section 7
of the Act.
WE WILL rescind the information security, no-
solicitation/no-distribution, “After Hours” and dress code
rules.
WE WILL furnish all of you with inserts for your current
employee handbook that (1) advise you that the unlawful
rules listed above have been rescinded, or (2) provide
lawfully-worded rules on adhesive backing that will cov-
er the unlawful rules; or WE WILL publish and distribute
to all of you a revised employee handbook that (1) does
not contain the unlawful rules, or (2) provides lawfully-
worded rules.

TARGET CORPORATION

Michael Berger and Lara Haddad, Esqs., for the Acting Gen-
eral Counsel.
Alan I. Model, Esq. (Littler Mendelson, P.C.), of Newark, New
Jersey, for the Respondent.
Jessica Drangel Ochs and Patricia McConnell, Esqs. (Meyer,
Suozzi, English & Klein, P.C.), of New York, New York,
for the Charging Party.
DECISION
STATEMENT OF THE CASE
STEVEN DAVIS, Administrative Law Judge. Based on charg-
es filed by United Food & Commercial Workers Local 1500
(the Union) in Case 29–CA–030804 on May 23, 2011, in Case
29–CA–030820 on June 8, 2011, and in Case 29–CA–030880
on July 8, 2011, a second order consolidating cases and amend-
ed consolidated complaint was issued on December 30, 2011,
958 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
against Target Corporation (Respondent, Employer, or Target).1
The complaint alleges, essentially, that in its team member
handbook revised in July 2009, the Respondent promulgated
and since then has maintained certain unlawful rules, as fol-
lows: (a) No-Distribution rule, (b) “Use Technology Appropri-
ately” policy, (c) “Communicating Confidential Information”
policy, and (d) “Unauthorized access to confidential infor-
mation” policy.
It is also alleged that in its team member handbook revised in
July 2009 and February 2011, the Respondent promulgated and
since then has maintained certain unlawful rules, as follows: (a)
“After Hours” rule, (b) no-solicitation/no-distribution policy,
(c) “Dress Code” policy, and (d) a parking lot policy.
The complaint also alleges that the Respondent threatened
employees with discipline for engaging in activities on behalf
of the Union; gave employees the impression that their activi-
ties on behalf of the Union were under surveillance; and en-
forced its no-solicitation policy by directing employees not to
solicit for the Union anywhere on the Respondent’s premises,
which includes nonwork areas.
The complaint also alleges that the Respondent threatened
employees with unspecified reprisals for their support for
and/or activities on behalf of the Union; distributed a leaflet to
its employees in which it threatened them that its Valley Stream
facility would close if they chose the Union as their collective-
bargaining representative; and in or about April and/or May,
2011, showed its employees a video which states that the Re-
spondent will enforce its solicitation and distribution policies.
The complaint further alleges that the Respondent enforced
its no-solicitation policy by directing employees not to solicit
for the Union on the Respondent’s property, and interrogated
employees regarding their union activities. Finally, the com-
plaint alleges that the Respondent threatened its employees that
if they chose the Union as their collective-bargaining repre-
sentative and there was a strike, the Valley Stream facility
would close.
The Respondent’s answer denied the material allegations of
the complaint.
On May 10, the Union filed a petition in which it sought to
represent a unit, essentially, of all full-time and regular part-
time employees. The parties entered into a Stipulated Election
Agreement pursuant to which an election was held on June 17.
The tally of ballots showed that of approximately 268 eligible
voters, 85 cast their ballots for the Union, 137 voted against the
Union, and there were 6 challenged ballots which did not affect
the outcome of the election.
On June 24, the Union filed objections to conduct affecting
the results of the election. On January 20, 2012, the Regional
Director for Region 29 issued a Report on Objections, order
consolidating cases and notice of hearing. The report stated that
certain objections were substantially identical to the complaint
allegations, and accordingly, ordered that the objections case
and the unfair labor practice case be consolidated for hearing.2
On February 1–3, 6–7, 10, and 13, 2012, a consolidated hear-
ing was held before me in Brooklyn, New York. On the evi-

1 All dates are in 2011, unless otherwise stated.
2 The Union withdrew certain objections that it had filed.
dence presented in this proceeding, and my observation of the
demeanor of the witnesses and after consideration of the briefs
filed by the General Counsel, Respondent, and the Union, I
make the following
Jurisdiction and Labor Organization Status
The Respondent, a domestic corporation with various retail
stores, including a retail store located at 500 West Sunrise
Highway, Valley Stream, New York, the only location involved
herein, is engaged in the operation of department stores. Dur-
ing the past year, the Respondent derived gross annual revenues
valued in excess of $500,000 from the operations of its stores
and, during the same time period, received at its Valley Stream
facility goods valued in excess of $50,000 directly from enter-
prises located outside New York State. The Respondent ad-
mits, and I find, that it has been an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act. The Respondent also admits, and I find, that the Union is
a labor organization within the meaning of Section 2(5) of the
Act.
Background
The Respondent, a major nationwide retail store, opened 50
years ago. None of its 1755 stores have been successfully orga-
nized by a union. As set forth above, the Union filed a petition
to represent the employees of the Valley Stream store, leading
to a campaign for and against union representation by the Un-
ion and the Respondent.
During the course of the campaign, both parties distributed
literature and conducted meetings in an effort to convince the
workers of the merits of their cause. In addition, the Respond-
ent showed videos to its workers.
Organizational Hierarchy and Operations
The Respondent’s headquarters is located in Minneapolis
where the human resource executives set the employment poli-
cies of the Valley Stream store. That store has about 268 unit
employees, called “team members” who are supervised by
“team leaders” who report to “executive team leaders.”
The store manager, Laura Pena, is called the “store team
leader.” Respondent’s aim is to provide the best possible expe-
rience for its customers, called “guests.” Pena stated that when
she arrived at the store in late September 2010, she found its
operations “scar . . . pretty much operationally broken.” Pena
testified that she did not want the Valley Stream store to be-
come Target’s first unionized store, but stated that she did not
become upset when she learned that the Union sought to organ-
ize it.
The store’s human resources department is headed by Execu-
tive Team Leader Karrien Stone who became employed at Val-
ley Stream in February 2011 to correct a “disheveled, disorient-
ed” human resources operation.
The store is situated in the Green Acres Mall area. It has two
parking lots. The employee entrance to the store is located di-
rectly in front of one of the parking lots. The store is open 24
hours a day, 7 days a week. However, it is only open to the
public for certain hours during the day. After the store closes
for the day, employees on the “overnight shift” perform such
tasks as stocking shelves and preparing and setting displays.
TARGET CORP. 959

I. FINDINGS OF FACTS CONCERNING THE ALLEGED THREATS,
CREATION OF THE IMPRESSION OF SURVEILLANCE, AND
INTERROGATION
A. The Alleged Unlawful Threats
1. Threat to discharge and the threat of
unspecified reprisals
Employee Tashawna Green, an active supporter of the Un-
ion, testified that in early March 2011 she spoke with employee
Matthew King in the store’s fitting room. King told her that a
union was needed in the store and Green agreed. At that point,
team leader and admitted Supervisor Deborah Joseph told them
“not to let them hear us mention anything about a union. You
could be terminated.” Green asked Joseph if she was serious,
and Joseph replied that she was, adding “they don’t want to
hear anything mentioned about a union.”
King testified that in early March 2011 he was working with
Green in the fitting room when Joseph gave him a work order.
King, stating that he was “just playing around,” said, “Oh, we
need a union. We need a union.” He stated that just then Jo-
seph walked by and was in a position to hear his comment. He
quoted Joseph as saying “don’t talk like that. You could get
written up for talking like that” or “talking about stuff like
that.” Although King first stated that Green did not say any-
thing to prompt Joseph’s comment, he also commented that he
and Green were speaking about a union, and his pretrial affida-
vit states that “Green and I were discussing unions in general. I
don’t recall our exact words.”
Joseph denied knowledge of the above incident and denied
the comments attributed to her by Green and King, specifically
denying telling them that they could be fired for speaking about
a union.
A newspaper article in “Newsday” bears a date of May 16
and pictures Green holding a “Target Change” poster. “Target
Change” is the Union’s slogan used in the campaign. The arti-
cle quoted Green as saying that “concerns she and her co-
workers have raised were not being addressed. We decided in
order for us to be heard, we need a union, otherwise they are
not listening.”
Green, who stated that she gave statements to the news me-
dia about the organizational campaign, testified that on May 17,
admitted Supervisor Nicole Barrett “pulled” her into the men’s
accessories department and told her that she saw an article in
which Green claimed that management was not listening to
what the workers had to say. Green stated that Barrett read the
article briefly while standing there. Barrett asked her “what
management” she was referring to. Green replied that it was
“management overall.” Green quoted Barrett as saying, “I’m
not here to tell [you] what to do; it’s [your] decision on how
[you] want to vote. Just be careful of what you do cause you
never know what could happen.”
2. The threats to close the store
a. The leaflet
The Respondent distributed the following leaflet to its em-
ployees before the election:

WILL THE STORE CLOSE IF THE UNION GETS IN?

There are no guarantees. Here are the FACTS:
Companies close stores for economic reasons.
Our store will stay open only so long as it meets Target’s eco-
nomic and operational needs. A UNION WILL NOT
CHANGE THESE FACTS.

The Union has a terrible record of store closings:
The International union has lost 89,000 members in 10 years
because MEMBERS LOST JOBS.
32 store closings announced by A & P February 11.
The local was happy that only 4 NY stores were closing.
We all owe our jobs to the closing of the Caldor store that
was in our building. It had the union. It closed.

Target’s record is different:
Almost doubling of stores and jobs in the same 10 years
where the UFCW International union lost over 89,000 mem-
bers!
No dues payments for the right to work.
Target has closed stores that did not perform economically.

Our future depends on:
Each of us, doing our job to the best of our abilities.
Our store’s economic health.

Would a union help?
Rigid union work rules and seniority systems could hurt.
They could help economically by negotiating wage and bene-
fit CUTS.
Who wants to pay dues for that kind of help?

WHEN WAS THE LAST TIME YOU HEARD OF A
UNION HELPING MEMBERS DO THEIR JOB . . . OR
BENEFITING A COMPANY’S ECONOMIC HEALTH?

VOTE NO
/s/ Laura Pena
PS Any leader can show you the union’s membership drop
and A & P store closings. [Emphasis in the original.]

The Respondent alleges that the above leaflet was distributed
as a response to one of the Union’s messages contained in a
flyer concerned with “myths and facts about union.” Accord-
ing to the Union’s flyer, one “myth” was that “companies close
due to unions.” The “fact” set forth in the flyer stated that
“companies close for economic reasons—and the vast majority
of companies that close are nonunion. Some companies, how-
ever, like to keep this myth alive. Half of employers illegally
threaten workers who form a union by saying the plant will
close. Studies have shown that, in fact, unions help decrease
employee turnover and can increase efficiency.”
b. The meetings with employees
The Respondent routinely holds frequent, two to three times
per day, informal “chat sessions” or “huddles” during which
supervisors speak to the workers concerning matters of interest
relating to the store. During the period prior to the election, the
Respondent utilized those sessions to speak to the workers
about the Union. The Respondent’s managers testified that
they were trained by its labor relations department as to what
they could and could not lawfully say to the workers about the
960 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
union campaign.
In response to the Union’s campaign, the Respondent de-
signed a program in which four distinct topics were presented
to its employees at meetings.
The large number of employees and the different shifts they
worked prevented all the workers from attending the meetings
at one time, so each of the four topics was presented at about 10
meetings of 10 to 15 employees each. Separate videos were
shown to the employees at the first three meetings. It was stipu-
lated that almost all the employees in the unit had been shown
the three videos. The meetings took place between April and
June 2011 before the election.
Present at the first three meetings were Store Manager Pena
and Pablo Eguez, the Respondent’s labor relations manager.
Respondent’s senior vice president for human resources, Derek
Jenkins, spoke at the fourth meeting. Pena and Jenkins stated
that they read from a script at each of the meetings and did not
vary from the script. However, when questions were asked by
employees at the end of each meeting, they did not read from a
script in answering the questions. Pena stated that the purpose
of the script was to ensure that she gave a “consistent” message
to all the workers. Workers testified variously that the manag-
ers read from a script at the meetings, or did not read from a
script.
Pena led the first meeting which was concerned with the
general topic of “unions.” A video entitled “Think Hard Pro-
tect Your Signature” was shown. Pena testified that the script
that she read portrayed the Union as a business. An actor in the
video stated that “a union is a business. And like any other
business, it has to bring in money to survive. But it doesn’t
have any products to sell. Instead, it sells memberships. The
more memberships it sells, the bigger the business.” That video
also contained the message that “you can rely on us to enforce
all solicitation, distribution, and harassment policies.”
Employee Charmain Brown testified that at one of the meet-
ings in May at which about five employees were present, Pena
told them that the meeting was called because an employee
mentioned that the union was “harassing” workers. Pena,
speaking from a script, told the assembled workers that the
union “took over” Wal-Mart and the union “shut down” that
store. Pena told the employees that her boyfriend was in a un-
ion, was injured and, although he was no longer employed, the
union continued to deduct dues from his pay. Pena concluded
by saying that she loved the store and did not want to see it
change or go any place, but “if the union comes in this store is
going to shut down.” Brown stated that an employee asked
why the store would close if the plans were that the store would
expand. Pena did not answer that question.
Pena denied telling the employees that the store would close
if the union successfully organized the employees.
The second meeting, which took place on about June 9, con-
cerned negotiations and collective-bargaining. A video was
shown entitled “Essentials: Collective Bargaining.”
Employee Averil Bracey was present at the meeting and tes-
tified that Pena used a flip chart to demonstrate “the figures if
the Union were to come in.” According to Bracey, Pena said
that the Union did not have the “nerve” to collect dues pay-
ments itself and instead relied on the Respondent to do its
“dirty work” by deducting dues from employees’ paychecks.
Bracey stated that Pena claimed that such extra work would
cost the Respondent “administration fees” of $3 million per
year “which is going to make the store close.”
Bracey challenged Pena, stating that since a sign advises the
store’s customers that it gives $3 million per week to charity,
the Respondent should take one of those weekly donations and
“take care of the union thing.” According to Bracey, Pena be-
came angry, slapped her hand on the table, and said, “Averil,
I’m not going to go through this with you all night long . . . it’s
plain to see how you’re voting. I can see you’re voting for the
union.” Pena then directed her assistants to leave and they left
with Pena.
Pena conceded that Bracey asked that the money the Re-
spondent gives to volunteer events should instead be given to
its employees. Pena stated that Bracey was loud, boisterous,
and “belligerently disrespectful,” interrupting her repeatedly
during the meeting, raising her voice in a mocking way, and
asking how the Respondent could give money to charity rather
than to its employees. Pena denied banging on the table, losing
her temper, or walking out. Human Resources Official Stone
denied that Pena or Eguez told the workers that the store may
close if the union came in. She denied that Pena lost her tem-
per, slammed a book on a table, or stormed out of the room in
response to Bracey’s comments.
Pena stated that she read from a script and showed employ-
ees a flipchart containing the cost to the Respondent if all em-
ployees received a $2-hour wage increase and were guaranteed
a 4-hour workweek, benefits the Union allegedly promised to
the workers if it won the election. However, she admitted
speaking about union dues at the meetings, but denied saying
that the Respondent would have to do the Union’s dirty work of
deducting dues from workers’ paychecks.
Pena denied telling the employees, at any meeting, that the
store would or may close, and indeed did not mention anything
about a store closing at all. Pena specifically denied telling the
workers that a $3-million expense would cause the store to
close, and Eguez denied that they mentioned that it would cost
$3 million to administer the dues deductions. Indeed, Pena
stated that she is in no position to decide if the store would
close.
At the third meeting, led by Pena and Eguez, a video was
shown, entitled “Essentials: Strikes.” Employee Betsy Ann
Wilson saw Pena read from a script.
The fourth meeting, called the “25th hour meeting,” was held
on about June 15. Pena introduced official Jenkins. She stated
that they both read from their scripts, rehearsing before the
meetings. They stated that they did not entertain employee
questions at the meeting.
According to employee Averil Bracey, Pena spoke from a
script and introduced Jenkins. Bracey stated that Jenkins, not
reading from a script, said that the Valley Stream facility was a
good store. He told the workers that sometimes when a union
organizes a store, it encourages the workers to strike, but Target
had 33,000 employees who could replace the 280 workers at
the store. He added that “in case of a strike I have no problem
closing the store because . . . sometimes . . . when they’re strik-
ing they’ll just close a store.” Pena then said that employees
TARGET CORP. 961

should “vote for yourself . . . vote no for the Union, because if
the union come[s] in then this will lead to closing the store.”
Jenkins stated that the Respondent’s labor relations depart-
ment wrote his speech but he retyped it, putting it into his “own
words.” He then returned it to the labor relations department
for its review and approval.
The script that Jenkins stated that he read from, reads as fol-
lows on this point:

One thing you need to think about very seriously is that we
have ALMOST 1800 STORES and 350,000 TEAM
MEMBERS. We would have no difficulty hiring
PERMANENT REPLACEMENTS for ECONOMIC
STRIKERS. Unions like to call a strike an “economic war.”
The 260 TMs [team members] here against 350,000 does not
feel like good odds to me. I repeat 260 against 350,000.
[Emphasis in original.]

Jenkins testified that his only mention of a store closing was
that he told the workers that the store closed once before when
it was owned by Caldor. His script, which he read, stated as
follows on this point:

YOUR STORE CLOSED ONCE BEFORE WHEN IT WAS
OWNED BY CALDOR. I know some of you were here and
remember that situation. At that time, it was RERPESENTED
BY THIS SAME UNION. It closed because the company
DID NOT PERFORM well enough economically to continue
operating. THE UNION DID NOT CHANGE THAT FACT
FOR CALDOR. [Emphasis in original.]

Jenkins testified that, in reading his script to the workers, he
emphasized the economic factors that cause businesses to close.
He was aware that employees had asked whether the store
would close, and he answered that this store would not close
but that there are reasons why a store could close. Employees
Pebrow and Smaine stated that Jenkins and Laura read from
scripts. Human Resources Official Stone stated that Jenkins
and Pena spoke from scripts, and she denied that either said the
store would close if the union came in or that the store would
close for any reason.
In addition, numerous employees, including Sonia Williams,
an active union supporter, Jennifer Pebrow, Eva Reaves, Betsy
Ann Wilson, Wesly Symby, and Antonia Smaine denied that
Pena or Jenkins said that the store would or may close due to
the Union during the meetings held with the workers at which
they were present.
Team Leader Lance King testified that at the first meeting he
did not see any scripts. He did not attend the next two meetings,
but at the fourth meeting, Pena and Jenkins spoke from scripts.
Neither said the store would close because of the Union. He
noted that Jenkins said that a store would close only for busi-
ness reasons—if it was not meeting sales goals or not making
money.
Pena, Eguez and Jenkins all denied telling the workers that
the store would or may close if the Union was selected as the
employees’ representative. Employer Official Karrien Stone
denied that Pena or Jenkins said that the store would or may
close.
B. The Creation of the Impression of Surveillance
Employee Sonia Williams, a union supporter, stated that on
about April 26 and 27, she distributed about 24 copies of a
Crain’s New York article to employees before her work shift
and while she was on her break. The article spoke about this
organizing campaign.3
Williams stated that on April 28 she was called in to Store
Manager Pena’s office. Also present was Human Resources
Supervisor Stone. Pena told Williams “Sonia, I know we’re in
the midst of a campaign, but it has been brought to my attention
that you are soliciting team members for the union.” Williams
replied, “[Y]ou know where I stand with the union and if I
speak to a team member, I’m speaking to them off the clock.”
Pena answered that “[W]e’re not supposed to do it in Target
premises” whereupon Williams asked, “[I]n the break room, on
my break time?” Pena replied “not on Target’s premises.” Wil-
liams asked “in the parking lot?” Pena said “No.” Williams
then asked whether she could solicit in the “adjoining parking
lot” and Pena said that she would have to research that, but did
not contact Williams with the answer. Pena concluded the
meeting by asking “[A]re we clear on that?” Williams said they
were.
Pena denied that she met with Williams in her office with
Stone on April 28, but admitted that she and Stone met with
Williams in response to her learning that she had been “solicit-
ing” employees while they were working. Also Pena had re-
ceived a report that several employees claimed that they were
being “bothered” by her—being asked by her to speak about
“something.” Pena stated that one of her leaders saw Williams
speak to an employee. Pena testified that she told Williams that
she could solicit other workers but not while either she or those
employees were on the clock. Pena denied telling Williams that
she could not solicit on Target’s property. Pena acknowledged
that Williams asked if she could solicit in the second parking
lot, and she replied that she was not certain, but she or Stone
would respond to that question.
Stone denied meeting with Pena and Williams on April 28,
and similarly denied any meeting in which Williams was told
not to solicit on Target’s property. She further denied prohibit-
ing any employee from soliciting when they were not on duty.
C. The Alleged Unlawful Interrogation
Aly Waddy is the Union’s director of special projects who
directed the campaign and coordinated the Union’s activities.
The Union’s campaign to organize the Respondent’s unit em-
ployees began in about March 2011.
Waddy testified that she had an appointment to pick up sev-
eral employees on June 9 at the store and drive them to an or-
ganizing meeting. She arrived at the facility just prior to 8 a.m.
She parked her car and employee Dennis Baker left the store
and entered her car. A few minutes later employees Devin
Jones and Raul Stewart left the store and were walking to their
car. Waddy left her car and walked toward Stewart’s car. They
began speaking at Stewart’s car when admitted Supervisor and
Executive Team Leader Michael Casolino, and store security
guard Ajay Bharat approached them.

3 The article is dated April 24, 2011.
962 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Casolino asked Jones and Stewart, “[W]hat are you guys do-
ing?” To Waddy, the two workers appeared frightened and
nervous. According to Waddy, Casolino, referring to all three
employees said, “[Y]ou guys can’t talk here.” Waddy asked
why not and Casolino said that “you are on Target’s property.”
Waddy protested that they were just having a conversation.
Casolino repeated, “[Y]ou can’t talk here.” Casolino repeated
that “you can’t talk there.” Waddy asked him if he is prohibit-
ing people from speaking there and Casolino said, “[Y]ou are
on Target’s property.” Waddy asked him to define which prop-
erty was Target’s, and Casolino replied, “[T]he store, the two
parking lots.”
Later in her testimony, Waddy said that Casolino told her
that they could not speak there “because you are talking about
the union.” At that time Waddy asked if they could speak
across the street, and Casolino replied, “[N]ot if you are talking
about the same thing. The whole mall would have a problem
with it.”4 Waddy answered that he could not “mandate” what
his employees speak about, and Casolino replied that “we can
do whatever we want, we’re a corporation.” Waddy said,
“[T]he whole mall? Really?” Casolino laughed and asked
them to leave, and Casolino then asked employee Stewart what
he was doing and Stewart walked away.
According to Waddy, Stewart then opened his car door and
started the engine. He then began to walk away from the area,
but then ran away leaving the engine running. After Stewart left
the area, Casolino asked Jones, “[W]hat are you doing?” and
Jones left the area. Then Casolino told Waddy “you have to
go.” She replied that Stewart’s car’s engine was still running.
She returned to her car and sat there, waiting. After about 10
minutes, Jones and Stewart returned and left in their car. They
did not attend the organizing committee meeting that day.
Waddy’s testimony is generally consistent with an incident
report she wrote on the day the incident occurred. Moreover,
she testified that she did not recall distributing any literature on
the store’s property prior to the election.
Casolino testified that during the election campaign he ob-
served Target’s employees and union representatives distrib-
uting literature in the store parking lot. On the day at issue, he
did a “random walk” through the parking lot. As he left the
building he noticed three employees who had just left work
being given flyers by Waddy at a car. Waddy testified, contra-
dicting Casolino, that neither she nor any other union agents
distributed literature at the store or in the parking lot.
Casolino stated that he approached Waddy alone and told her
that “there’s a no solicitation policy on Target property so you
can’t distribute this to any of our team member . . . you can’t
solicit on Target property. You know you don’t work for Tar-
get, you cannot be on our property soliciting, handing out any
kind of material or just giving anything to our team—you can’t
distribute anything.” Casolino and Waddy “argued back and
forth” and she asked where she could “go.” Casolino replied
that she could be anywhere not on Target property. According
to Casolino, Waddy became argumentative and he left the area.

4 Later in her testimony, Waddy stated that Casolino mentioned that
whether they could speak in that area “depends on what they’re speak-
ing about.”
She remained at the lot for a period of time and then left, and
the employees with her entered their car and left also.
Casolino stated that security guard Bharat was present at the
time but did not know if he was present when he spoke to
Waddy. Casolino denied directing any of his remarks toward
any employee, specifically denying that he asked employees
what they were doing or telling them that they could not talk at
that location. He also denied that an employee’s car’s engine
was running or that anyone ran from the area. Casolino further
denied mentioning anything to Waddy about the mall.
Guard Bharat testified that on June 9 between 8 and 9 a.m.
while standing at the employee entrance to the store, he ob-
served Waddy hand a “pamphlet” to the store’s cart attendant in
the parking lot. Bharat stated that he called Casolino to accom-
pany him to the parking lot. He and Casolino approached Wad-
dy. Bharat told her that the Respondent’s no-solicitation policy
prohibits solicitation of employees while they were working,
and he asked her to leave the property. He said that no mention
was made of union solicitation or soliciting at the mall. Bharat
stated that Casolino did not speak to Waddy.
Bharat stated that about three other employees were in the lot
at that time, whom he later learned had just finished their shifts.
He did not hear Casolino say anything to Waddy or the three
overnight employees, and did not see a car’s engine running or
anyone running from the lot, stating that if he witnessed such
activity he would have called the police.
Store Manager Pena testified that on June 9, upon her arrival
at the store, she saw Waddy distributing literature to two em-
ployees in the parking lot. She asked Casolino to tell her to
stop “soliciting” in the lot. She did not definitely recall, but she
may have also asked Bharat to accompany Casolino. Neverthe-
less, two supervisory people went to the lot at her request—
Casolino and an asset protection person.
II. ANALYSIS AND DISCUSSION CONCERNING THE ALLEGED
THREATS, CREATION OF THE IMPRESSION OF
SURVEILLANCE, AND INTERROGATION
A. The Threats to Close
1. The leaflet
The complaint alleges that the leaflet distributed to employ-
ees during the campaign unlawfully threatened that the Re-
spondent would close its store if the Union successfully orga-
nized its employees.
As set forth above, the leaflet stated that the store would re-
main open only as long as it was economically feasible to do
so. However, the leaflet emphasized that the Union “has a terri-
ble record of store closings” as if it was responsible for a
store’s shutting its doors. Specifically, the leaflet stressed that
there were 32 closings of A & P stores which were represented
by the Union, and that the Union lost 89,000 members in 10
years because the Union’s members lost their jobs.
It is well settled in Board law that an employer is free to pre-
dict the economic consequences it foresees from unionization,
so long as the prediction is “carefully phrased on the basis of
objective fact to convey [its] belief as to demonstrably probable
consequences beyond [its] control . . . If there is any implica-
tion that an employer may or may not take action solely on his
TARGET CORP. 963

own initiative for reasons unrelated to economic necessities and
known only to him, the statement is no longer a reasonable
prediction based on available facts but a threat of retaliation . . .
without the protection of the First Amendment.” NLRB v. Gis-
sel Packing Co., 395 U.S. 575 (1969). Absent the necessary
objective facts, employer predictions of adverse consequences
arising from unionization are not protected by Section 8(c),
rather they constitute threats that violate Section 8(a)(1).
Homer Bronson Co., 349 NLRB 512 (2007).
In Quamco, Inc., 325 NLRB 222, 223 (1997), the Board
found that the employer created a “UAW WALL OF SHAME”
in which it listed the names of UAW-represented companies
that had closed, and with the respondent’s name followed by a
question mark. The Board found that, although the display was
factually accurate as to the union-represented plants that closed,
the display “clearly implies that the closings were the fault of
the UAW.” The Board found that the employer offered no
explanation of the basis for its assertion that the UAW was to
blame for the closings of the other plants, or any objective facts
as the basis for a belief that, for reasons beyond its control,
selection of that union might cause this employer’s plant to
close.
The Board noted that, as here, there is no evidence that the
employees had been told that the future of the respondent’s
store was in doubt or that the respondent had any economic
reasons for considering closing the plant.
Rather, here, the Respondent asserts that the Union first
raised the question whether the store would close if the Union
successfully organized it, and the leaflet was the Respondent’s
answer to that question. That may be true, but in answering the
question the leaflet states no objective facts to warrant such a
possibility.
Similarly, in Bronson, above, the Board found that the em-
ployer’s chart showing that over the last 15 years, 13 compa-
nies, which had been represented by the union that sought to
organize it, closed. The Board held that the employer presented
no objective facts to support the “respondent’s clear implication
that the . . . plant closing was caused solely by the fact that the
‘strike happy’ UAW represented those employees.” In finding
that the employer threatened plant closure, the Board found an
“inevitable linkage between unionization and job loss, and that
the employees could reasonably infer that a vote for the union
will threaten the employees’ future employment.”
While it is true that the leaflet mentions that stores close for
economic reasons, that message constituted only a small part of
the leaflet, with the major emphasis being on the Union’s being
an important factor in the closing of a large number of stores.
I accordingly find and conclude that the leaflet constituted a
threat to close the Respondent’s Valley Stream store, and as
such violated Section 8(a)(1) of the Act.
2. The remarks made at the meetings
As set forth above, employees Bracey and Brown testified
that at meetings conducted by Respondent’s officials the work-
ers were told that if the Union was selected as the employees’
representative the store would close.
Making a finding concerning what employees hear at a meet-
ing is especially difficult. Of the more than 200 employees
who heard the officials’ speeches, only 2 testified that they
heard the threats. Significantly, other employees present at the
meetings at which the threats were allegedly made denied hear-
ing those threats. It is clear that if the Respondent was intent
on making such threats it would have repeated the threats at all
the meetings held with employees.
The Respondent’s officials stated that they spoke from
scripts and did not deviate from those scripts. Witness testimo-
ny, however, was unclear on this point. Certain employees
testified that they saw them speaking from scripts, and others
said that they did not speak from scripts. A review of the
scripts, which are in evidence, establishes that no threats were
made as testified by the employees.
As to Brown’s testimony, she conceded that Pena read from
a script during that meeting, but the script does not contain a
threat to close. Brown’s testimony concerning the threat would
have been more credible if there was evidence that the store
expected to expand. That would have supported Brown’s tes-
timony that Pena was asked why the store would close if it had
plans to expand. However, no evidence was adduced that there
were plans to expand the store.
As to Bracey’s quotation of Pena that if the Respondent had
to undertake to check off dues, the added expense of $3 million
would cause the store to close does not make sense. First, there
is no requirement that an employer agree to a dues-checkoff
clause. Second, the amount at issue seems unusually large.
Finally, I cannot credit Bracey’s testimony that Jenkins told
the workers that if there was a strike, the store would close, or
that if the union was voted in, the store would close. What he
actually said, which is confirmed in the script he read, was that
employees could be permanently replaced in the event of an
economic strike.
I accordingly cannot find that Pena or Jenkins threatened
employees with store closure during the group meetings they
held with the workers as testified by Bracey and Brown, above.
B. The Threats of Discharge
As set forth above, employees Green and King testified
about their conversation concerning the Union in early March
2011, which I find was overheard by Supervisor Joseph. I find,
as testified by Green and King, that Joseph told them that they
should not be speaking about a union or they could be dis-
charged.
I credit Green and King essentially because their testimony
was mutually corroborative. They both identified the area in
which they were situated at the time of their conversation, and
that Supervisor Joseph was in the area.
The Respondent correctly notes that there was some discrep-
ancy between the testimony of the two employees. Thus, King
did not recall Green asking if Joseph was serious in threatening
them, and that King did not hear Joseph use the word “union”
during their conversation. Nevertheless, Joseph’s remark clear-
ly contemplated that she was rebuking the two because they
spoke about the Union.
It is also true, as Respondent argues that Green’s credibility
suffered somewhat in denying that she spoke with another em-
ployee about the Union although she testified that she spoke to
King about the need for a union. Further, she denied distrib-
964 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
uting union literature in the parking lot although other witness-
es saw her engaging in such activities. However, such infirmi-
ties in her testimony do not lead me to discredit it as to the
alleged threats.
I accordingly find and conclude that the Respondent unlaw-
fully threatened Green and King with discharge because they
spoke about a union.
C. The Threat of Unspecified Reprisals
I also credit Green’s testimony that Supervisor Nicole Bar-
rett told her that she should be careful in what she does because
“you never know what could happen.” Barrett did not testify. I
credit Green because the undisputed documentary evidence
supports a finding that this incident occurred. Thus, Barrett’s
comment occurred 1 day after the Newsday article appeared in
which Green criticized the Respondent for not addressing cer-
tain concerns that she and her coworkers had. As set forth
above, Barrett asked her “which management” she was refer-
ring to and warned her to “be careful . . . cause you never know
what could happen.” Green’s quotation in the article lends sup-
port to her testimony that she was warned about such conduct.
Inasmuch as Barrett did not testify, the statement attributed to
her was undenied.
I find, as alleged, that Barrett’s comment to Green constitut-
ed a threat of unspecified reprisals.
D. The Creation of the Impression of Surveillance
Regarding the allegation that the Respondent created the im-
pression that it was engaging in surveillance of employees’
union activities, I credit employee Sonia Williams’ testimony
that only 1 or 2 days after she distributed about 2 dozen copies
of a newspaper article concerning this campaign, she was called
into Manager Pena’s office and told that it was “brought to my
attention that you are soliciting team members for the union.”
The Board’s test for determining whether an employer has
created an unlawful impression of surveillance is whether under
all the relevant circumstances reasonable employees would
assume from the statement in question that their union or pro-
tected activities had been placed under surveillance. Stevens
Creek Chrysler Jeep Dodge, 353 NLRB 1294, 1295–1296
(2009); Bridgestone Firestone South Carolina, 350 NLRB 526,
527 (2007).
When an employer tells employees that it is aware of their
union activities but fails to tell them the source of that infor-
mation, Section 8(a)(1) is violated because employees are left
to speculate as to how the employer obtained the information,
causing them reasonably to conclude that the information was
obtained through employer monitoring. Stevens Creek Chrys-
ler, above at 1296; Conley Trucking, 349 NLRB 308, 315
(2007).
Here, Pena advised Williams that she was aware that Wil-
liams was soliciting employees for a union. I find that such a
statement would cause Williams to reasonably conclude that
Pena received that information by surveilling her union activi-
ties. Inasmuch as Pena did not tell Williams how she received
that information, the violation has been proven.
Although Pena testified that she received such information
from other employees and a supervisor, such information was
not conveyed to Williams, who could reasonably believe that
Pena was watching her. I accordingly find that the Respondent
violated Section 8(a)(1) of the Act by creating the impression in
Williams that her union activity was under surveillance.
E. The Alleged Interrogation
As set forth above, it is alleged that Manager Casolino inter-
rogated two employees, Jones and Stewart, in the parking lot
while they were speaking to Union Agent Waddy. The evi-
dence establishes that Casolino walked up to the group and
asked the two workers what they were doing.
I credit Waddy’s account of the meeting. She gave clear,
precise testimony of what happened at that time. The incident
report which she completed that day is consistent with her tes-
timony.
In contrast, the Respondent’s witnesses gave different ver-
sions of the incident, none of them consistent with each other.
Thus, Casolino testified that he approached Waddy alone as he
was doing a “random walk” through the parking lot and he,
alone, spoke to Waddy. Pena testified that she saw Waddy
hand out leaflets and asked Casolino to tell her to stop soliciting
in the lot. Security guard Bharat testified that he asked Casolino
to accompany him to approach Waddy and that he (Bharat),
alone, spoke to Waddy.
Waddy’s testimony is the only consistent account of the in-
cident. In Rossmore House, 269 NLRB 1176 (1984), the Board
set out its rules concerning evaluation of allegations of interro-
gation, as follows.
Under Board law, it is well established that interrogations of
employees are not per se unlawful, but must be evaluated under
the standard of whether under all the circumstances the interro-
gation reasonably tended to restrain, coerce, or interfere with
rights guaranteed by the Act. In making that determination, the
Board considers such factors as the background, the nature of
the information sought, the identity of the questioner, the place
and method of interrogation, and whether or not the employee
being questioned is an open and active union supporter.
Here, Executive Team Leader Casolino pointedly asked the
two employees what they were doing in the parking lot. The
question was unnecessary because he knew what they were
doing there because he testified that they had just finished their
overnight shifts. They were obviously in the parking lot prepar-
ing to leave the area, but his questioning them in the presence
of Waddy, who he knew was a union agent, was designed to
elicit what they were doing with Waddy at the time. That was
clearly an attempt to inquire as to their union activities.
There was no evidence that the employees questioned were
open or active union supporters. I find that the questioning by
Casolino tended to restrain, coerce, or interfere with their right
to engage in union activities. I accordingly find that Casolino’s
questioning of the two employees constituted unlawful interro-
gation.
III. FINDINGS OF FACT CONCERNING THE ALLEGED UNLAWFUL
HANDBOOK RULES
A. Paragraphs 7 and 8 of the Complaint and the
Handbook Provisions
The complaint alleges that the Respondent has “promulgated
TARGET CORP. 965

and since then has maintained” in its team member handbook
revised in July 2009,5 and in its handbook revised in February
2011,6 certain unlawful rules concerning solicitation, distribu-
tion of literature, release of confidential information, discussion
of confidential information, reporting of unauthorized or mis-
use of confidential information, and threats of discipline for
violating its policy on confidential information.
The 2009 handbook was given to employees on their hire
during their orientation session. The employees signed a re-
ceipt that they received and read the handbook. The 2011
handbook was made available to employees after the election,
but not distributed to the then-employed workers. Instead, they
were told that it was available on their request. The 2009 hand-
book was not rescinded upon the issuance of the 2011 version.
It was stipulated that the 2009 handbook was the only hand-
book applicable to employees from July 2009 to at least the last
week of June 2011.
1. The Respondent’s information security policies
Under the broad heading of “Information Security,” the Re-
spondent’s handbook sets forth certain policies concerning
employee access to, and use of confidential information. Some
of those policies have been alleged as unlawful, as follows.
a. The “Use Technology Appropriately” policy
Paragraph 7(b) of the complaint alleges as unlawful, the fol-
lowing:

A “Use Technology Appropriately” policy prohibiting its em-
ployees from releasing confidential guest, team member, or
company information.

The handbook provides on (GC Exh. 8) page 54:

Use technology appropriately
Communication technology such as e-mail and the Internet
makes us more efficient and better equipped to serve our
guests. Be sure to use this technology wisely and appropriate-
ly to avoid increasing our risk of a security breach.

If you enjoy blogging or using online social networking sites
such as Facebook and YouTube, (otherwise known as Con-
sumer Generated Media, or CGM) please note there are
guidelines to follow if you plan to mention Target or your
employment with Target in these online vehicles:

Don’t release confidential guest, team member or company
information, including any video footage.
Clearly distinguish yourself from Target, so as not to appear
as an official Target spokesperson.
Do not harass or make any threats to guests or team members.
For complete guideline or more information, please see your
HR partner.

Paragraph 7(c) of the complaint alleges as unlawful, the fol-
lowing:

A “Communicating Confidential Information” policy which:
(1) prohibits its employees from sharing confidential infor-

5 GC Exh. 8.
6 GC Exh. 9.
mation with other employs;
(2) directs its employees to talk to their supervisors if they are
unsure regarding sharing confidential information; and
(3) prohibits its employees from having discussions regarding
confidential information in the break room, at home or in
open areas and public places.

The handbook provides on (GC Exh. 8) page 53:

Communicating confidential information
You also need to protect confidential information when you
communicate it. Here are some examples of rules you need to
follow:

Make sure someone needs to know. You should never
share confidential information with another team member un-
less they have a need to know the information to do their job.
If you need to share confidential information with someone
outside the company, confirm there is proper authorization to
do so. If you are unsure, talk to your supervisor.
Develop a healthy suspicion. Don’t let anyone trick you into
disclosing confidential information., Be suspicious if asked to
ignore identification procedures.
Watch what you say. Don’t have conversations regarding
confidential information in the Breakroom or in any other
open area. Never discuss confidential information at home or
in public areas.

Paragraph 7(d) of the complaint alleges as unlawful, the fol-
lowing:

An Unauthorized access to confidential information policy
which:
(1) directs its employees to report unauthorized access to con-
fidential information or misuse of confidential information to
Respondent; and
(2) threatens its employees with corrective action, including
termination and criminal prosecution, for a violation of the
policy on confidential information.

The handbook provides on (GC Exh. 8) page 53, as follows:

Unauthorized access to confidential information
If you believe there may have been unauthorized access to
confidential information or that confidential information may
have been misused, it is your responsibility to report that in-
formation by contacting your supervisor (who should send an
e-mail to Integrity@Target.com or calling the Employee Re-
lations and Integrity Hotline at 800-541-6838.

We’re serious about the appropriate use, storage and commu-
nication of confidential information. A violation of Target
policies regarding confidential information will result in cor-
rective action, up to and including termination. You also may
be subjected to legal action, including criminal prosecution.
The company also reserves the right to take any other action it
believes is appropriate.

The term “confidential information” is not defined in the
handbook. However, certain examples of “confidential infor-
mation” are given in the handbook, pages 51–52, as follows:

Confidential information
966 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
All Target information that is not public must be treated as
confidential. Here are some examples of confidential infor-
mation:

Non-public company information, including:
Financial information (for example, store sales)
Strategic plans (for example, pricing and capabilities)
Marketing plans (for example, circular prices prior to public
distribution)
Guest information, including guest credit information
Team member personnel records
Protected health information obtained through our pharmacy
operations or medical plans

Annual evaluations of employees by their supervisors are
done in April or May. The performance of the employee during
the past year is discussed with the worker who is told at that
time the amount of any wage increase he will be given. Store
Manager Pena stated that no directions are given to the supervi-
sors concerning what they should tell the workers they could
discuss with others about the review process, but it is her un-
derstanding that most employees speak with their coworkers
about their wage increases.
In fact, employees testified that they spoke freely and openly
with their coworkers about the exact amount of their raise, and
how much they believed they deserved.
Employees testified that they knew of no restrictions con-
cerning employees speaking to each other about their wages or
benefits, and there was no evidence that any worker was disci-
plined for having such discussions.
Employees were not told by their supervisors that they
should keep the amount of their raises confidential, or that they
should not speak with other workers about their raises. On the
other hand, employees were not told that they could discuss
their wages with their coworkers.
Indeed, Dawn Major, the human resources director for the
Respondent’s east coast region stated that the term “confiden-
tial information” does not include wages, benefits and other
terms of employment, noting that employees are permitted to
speak about those items. For example, she stated that it is the
Employer’s policy to encourage the discussion of wages and
benefits at work between the workers and their supervisors.
Such opportunities include chat sessions and group meetings at
which employees are asked how they feel about their job, and
during which, wages and benefits may be discussed. Further,
Major testified that the Respondent conducts surveys in which
it asks its employees how they feel about their pay and benefits.
Individual discussions with the workers concerning their pay
are also held.
In this regard, it is important to note that the Respondent en-
courages its employees to speak with supervisory personnel,
not with other workers, concerning their wages and terms of
employment.
However Major testified that employee personnel records,
including the wages and benefits of the workers, and also their
personal health information, medical records, credit card, and
debt records are confidential information to the extent that if an
employee asked a supervisor for another worker’s “infor-
mation” such a disclosure would be prohibited. Major stated
that, although that application of the policy is not included in
the handbook, it is enforced to prohibit one employee’s learn-
ing about the wages and benefits of another through disclosure
by a supervisor. Nevertheless, employees may speak about their
wages and benefits with their supervisors, who encourage such
conversations.
2. The “After Hours” policy
Paragraph 8(a) of the complaint alleges as unlawful, the fol-
lowing:

An “After-Hours” rule prohibiting its employees from return-
ing to Respondent’s premises, which includes non-work are-
as, during their off hours.

The handbook provides on (GC Exh. 8) pages 20 and (GC
Exh. 9) 25, as follows:

After hours
Team members must leave the premises after hours. You
should only be on company property during your scheduled
work hours or for other authorized company business.

The evidence establishes that employees visit the Valley
Stream store regularly when they are not scheduled to work, in
order to shop, to meet friends who are about to finish their
shifts, to check on a matter in the human resources department,
to use a computer there which is set aside for employee use, or
for company sponsored activities. Employee Betsy Ann Wil-
son is unaware of any policy that prohibits workers from enter-
ing the store when they are not scheduled to work.
Team Leader Lance King stated that he was not aware of any
policy stating when he could or could not enter the property
when he was off duty, nor was he aware of any rule which stat-
ed that he could not be in the parking lot after his work hours.
On the other hand, no management person told him that he
could return to the Target facility after his work hours.
Employee Green stated that, although she has shopped in the
store when she was off duty, she is not permitted to enter the
breakroom while off duty. Nevertheless, she has been in the
breakroom before and after her shift. She also admitted entering
the store on her days off to pick up her paycheck or check her
schedule. She conceded not being told that she could not enter
the store when she was not working. She stated that she was
never advised that off duty employees are permitted in the
breakroom.
Human Resources Official Stone testified that she never told
the workers that they were permitted to return to the premises
after their shift. Employees also testified that no one told them
that they could return to the store when they were not scheduled
to work that day, or when their shift was completed.
Dawn Major, the human resources director for the Respond-
ent’s east coast region, who is responsible for 433 stores, testi-
fied that the “after hours” policy is not enforced in any of the
Employer’s stores, adding that employees are frequently in the
stores when they are not working, in order to pick up a
paycheck, check their schedule, see their friends, or to shop for
merchandise. She did not know if employees were told that
they were permitted to be in the store after their regular work
hours.
There was no evidence that any employee has been disci-
TARGET CORP. 967

plined for being in the store when they are off duty or not
scheduled to work.
Human Resources Official Stone testified that between April
1 and June 17, 2011, 8125 unit employees used their employee
discount benefit to make a purchase of merchandise at the store
either before they clocked into work for their shift, after their
shift was over, or on a day when they were not scheduled to
work.
3. The “No-Solicitation/No-Distribution Rule”
Paragraph 7(a) of the complaint alleges as unlawful, the fol-
lowing:

A no-distribution rule that prohibits its employees from dis-
tributing any literature at any time on Respondent’s premises,
which includes non-work areas.

The handbook provides, on (GC Exh. 8) pages 27–28:

Don’t distribute flyers, pamphlets or other information to
team members.
While you or the team members you’re talking to are on work
time or in work areas, you must not pass out or distribute any
pamphlets or other literature. Also, you must never pass out
any literature and/or products, sell merchandise or exchange
money on Target premises if these activities are for personal
profit, commercial purposes or any charitable organization
that is not part of our Community Relations program.7

Paragraph 8(b) of the complaint alleges as unlawful the fol-
lowing:

A No Solicitation/No Distribution Policy prohibiting solicita-
tion or distribution of literature by its employees, at all times
on Respondent’s premises, which includes nonwork areas.

The handbook provides on (GC Exh. 8) pages 44–55, as fol-
lows:

No Solicitation/No Distribution Policy
Please follow and help enforce the Target No Solicitation/No
Distribution Policy, which states: Target wants to make sure
all team members can work free of distraction and uncomfort-
able pressure that can be created by solicitation and distribu-
tion. That’s why Target maintains a No Solicitation/No Dis-
tribution Policy for all team members and others with author-
ized access to Target property.

The policy is simple: during working time (yours or your fel-
low team members) and in work areas, you cannot “solicit”
team members. “Soliciting” includes things like asking co-
workers to join organizations or pools, to buy memberships or
subscriptions, or to make pledges or gifts to charities.

“Working time” does not include meal and break periods, or
any other time when a team member is not expected to be en-
gaged in work activities. The “No Distribution” part of the
policy requires that team members do not distribute literature
during working time, in work areas, or through Target com-

7 “Target Premises” is defined under “Common Terms” on p. 61 of
the handbook as “all the buildings, grounds, vehicles and parking areas
Target uses to conduct its business.”
munication channels, including e-mail.

Certain activities are prohibited at all times on Target premis-
es. Soliciting, distributing literature, selling merchandise or
conducting monetary transactions, whether through face-to-
face encounters, telephone, company mail or e-mail, are al-
ways off limits (even during meal and break periods) if they
are:

For personal profit
For commercial purposes
For a charitable organization that isn’t part of the Target
Community Relations program and isn’t designed to enhance
the company’s goodwill and business.

Because Target supports the United Way, Target Volunteers
and non-profit grant partners, some of these organizations
may be eligible to distribute information or conduct annual
drives without violating the No Solicitation/No Distribution
Policy; however, Employees relations must approve the activ-
ity.

On the day before the election, more than 10 union organiz-
ers and about 3 off-duty employees walked through the store
wearing “Target Change” T-shirts, including employee Wil-
liams who stated that none of the Union’s demonstrators gave
any literature to the workers present that day.
Employee Antonia Smaine stated that she saw employee
Green, at the end of her shift, change from her work shirt into a
“Target Change” T-shirt and then walk around the store wear-
ing that shirt.
Human Resources Executive Team Leader Karrien Stone
testified that from April to June 2011, she saw two employees
wearing a Target Change shirt—one which was worn back-
wards under the worker’s vest while he was working. She did
not say anything to the worker wearing the shirt. She noted that
no one asked her for permission to wear union paraphernalia at
work, and she did not tell any worker that they could not wear
such union garb.
Employee Sonia Williams testified that she gave out union
cards and literature in the breakroom on several occasions to
employees who were on their break. She also gave cards to
employees in the Target parking lot and left union literature in
the bathroom. Union organizers distributed flyers in the lot.
Manager Casolino stated that prior to the election he saw un-
ion literature in the breakroom and bathrooms.
Employee Bracey stated that Pena and Supervisor Kevin ap-
proached her and employee Tashawna Green when they were
distributing leaflets and speaking to employees about the union
in the parking lot near the employee entrance. The two manag-
ers told them “no soliciting. You have to leave. Oh, no you
can’t talk to them.” Pena denied speaking with Bracey or any
other employee in the parking lot regarding soliciting others.
Supervisor of Asset Protection Jason Jones testified that dur-
ing his tenure at the store from January 2011 to January 2012,
neither he nor the other guards prohibited any employee from
distributing literature in the store or in the parking lot. He ob-
served “literature” in the breakroom and at the employee en-
trance to the store.
Jones affirmed that Target property, for the purpose of his
968 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
enforcement of the no-solicitation/no-distribution polices in-
cludes the Target building itself, its property up to the gate on
Sunrise Highway, the parking lot, and the adjacent parking lot
across the road near Sunrise Highway.
Manager Casolino stated that nonemployee solicitors such as
the Girl Scouts, people selling candy for school events have
been evicted from the store’s premises.
Tashawna Green testified that on June 9, she stood outside
the employee entrance to the store speaking to another employ-
ee. She asked the worker how he felt about “everything that has
been going on.” The coworker asked Green about union dues
and union procedures. She replied that she does not pay union
dues. At that point, admitted Supervisor Karrien Stone ap-
proached her with store security guard Kyle Bennetier. Ac-
cording to Green, Stone said, “[Y]ou are soliciting on Target’s
property and they do not tolerate (allow that) soliciting on Tar-
get’s property.” Green then left the area and walked to the mall
entrance.
Stone testified that she was walking past the Target employ-
ee entrance when one or two employees complained to her that
Green was “blocking” them, “bothering” them, and preventing
them from entering the building. Stone asked Bennetier to ac-
company her. As Stone approached Green she did not notice
that Green was with any other employees.
Stone then told Green that she could not stand in front of the
entrance because she was blocking employees from entering.
Stone described Green as being so close to the entrance door
that when Stone opened the door, she hit Green’s back. Stone
denied telling Green that she could not solicit on the property,
and suggested that she could stand at the cart corral nearby.
As set forth above, employee Sonia Williams testified that
she was asked to report to Pena’s office, where she was told
“Sonya, I know we’re in the midst of a campaign, but it has
been brought to my attention that you are soliciting team mem-
bers for the union.”
Williams replied, “[Y]ou know where I stand with the union
and if I speak to a team member, I’m speaking to them off the
clock.” Pena answered, “[W]e’re not supposed to do it in Tar-
get premises” whereupon Williams asked, “[I]n the break room,
on my break time?” Pena replied, “[N]ot on Target’s premis-
es.” Williams asked “in the parking lot?” Pena said, “[N]o.”
Williams then asked whether she could solicit in the “adjoining
parking lot” and Pena said that she would have to research that,
but did not contact Williams with the answer. Pena concluded
the meeting by asking “are we clear on that?” Williams agreed.
Pena denied that she met with Williams in her office with
Stone on April 28, but admitted that she and Stone met with
Williams in response to her learning that she had been “solicit-
ing” employees while they were working. Also, Pena had re-
ceived a report that several employees claimed that they were
being “bothered” by her—being asked by her to speak about
“something.” Pena stated that one of her leaders saw Williams
speak to an employee. Pena testified that she told Williams that
she could solicit other workers but not while either she or those
employees were on the clock. Pena denied telling Williams that
she could not solicit on Target’s property. Pena acknowledged
that Williams asked if she could solicit in the second parking
lot, and she replied that she was not certain, but she or Stone
would respond to that question.
Stone denied meeting with Pena and Williams on April 28,
and similarly denied any meeting in which Williams was told
not to solicit on Target’s property. She further denied prohibit-
ing any employee from soliciting when they were not on duty.
I credit Williams’ testimony that Pena said that she could not
solicit on Target’s premises. This prompted an admitted re-
sponse from Pena that she would check to see if solicitation
could take place in the Respondent’s second parking lot. Clear-
ly, the emphasis of the conversation was on the location of the
solicitation, not the worktime of the conversants.
Thus, Williams credibly testified that, in response to Pena’s
telling her that she could not solicit anywhere on Target prem-
ises, she asked whether such activity could take place in the
breakroom or one of the parking lots. Corroborating Williams,
Pena admitted that Williams asked if solicitation could take
place in the second parking lot and Pena replied that she did not
know but would find out.
4. The “Dress Code” policy
Paragraph 8(c) of the complaint alleges, as unlawful, a “dress
code” policy prohibiting its employees while at work from
wearing any buttons or logos on their clothing unless approved
by a team leader.

The handbook on (GC Exh. 8) page 21, states in relevant
part:

Dress Code.
Don’t wear:
Any buttons or logos on your clothing (unless approved by
your team leader).

The handbook also prohibits the wearing of various items of
clothing including jeans, tank tops, halter tops, flip flops, open-
toed shoes, beat up tennis shoes, lycra pants, and sheer or re-
vealing clothing.
Employees must wear a red shirt and, preferably, khaki col-
ored pants. The shirts that they wear are not provided by Tar-
get. Therefore, the workers wear shirts with the manufacturer’s
logo imprinted thereon, such as “Polo,” “Tommy Hilfiger,”
“Nike,” “Ralph Lauren,” sports themes, team logos, and others.
The logos are usually woven into the shirt and do not extend
above the shirt’s surface. In addition, employees wear pins and
buttons including seasonal items such as a tiny Christmas tree,
an angel, and insignia and pins advertising their support of
people with AIDS or breast cancer.
Employee Team Leader Lance King stated that he was not
prohibited from wearing shirts with logos or buttons. However,
he was not told that he could wear such logos on his shirts.
Manager Casolino stated that he has seen employees wear
small logos on their shirts such as a “Nike” emblem, and small
pins and badges, noting that as long as they are wearing red and
khaki, they can wear those items.
Employee Bracey testified that she heard supervisors tell
employees that they could not wear any logo on their uniforms,
and that if they wore such ornamentation they had to turn it
inside out so that it was not visible, or cover it with their identi-
fication badge. There was no evidence that any employee was
disciplined for wearing a shirt with a logo.
TARGET CORP. 969

Employee Sonia Williams testified that, about 1 or 2 weeks
before the election, she and other employees were off-duty and
not working. They stood outside the store wearing the “Target
Change” T-shirt. They then entered the store and spoke with
Pena who told them “as long as you don’t wear it with your
uniform.” She also told them that they could wear those shirts
outside the store but not inside the store.
During the campaign, employees wore, while working, a red,
rubber bracelet with a union logo. Pena conceded seeing em-
ployees wearing the union bracelet and the Target Change shirt
in the store during their off hours, and denied telling Williams
or any other worker that they could not wear union garments
with logos. She conceded that no one asked for permission to
wear union items.
On the other hand, employees were not told that they were
permitted to wear union buttons or logos at work. Similarly,
Human Resources Official Stone testified that she did not tell
any workers that they were permitted to wear union logos or
buttons at work.
Human Resource Director Major testified that the dress code
is not strictly enforced at the store. She stated that upon her
visits to the store she heard from her team that “there’s flexibil-
ity in our dress code guidelines.” Specifically, she noted that
the Respondent permits employees to wear pins supporting
breast cancer awareness, and other similar causes “that are
important to them” as long as the pin is not too large, or offen-
sive or vulgar, and does not interfere with the employee’s name
badge or with the person being identified as a team member.
Major said that the Respondent permits logos, such as “Ralph
Lauren” or other designer emblems on shirts as long as the logo
is not offensive and the shirt is red.
Major was unaware of any instance in any store in which an
employee was told not to wear a union logo, or was disciplined
for wearing one. She stated that she was not aware that any
employee requested permission to wear union items in the
store, although she is aware that certain union items have been
worn. She further stated that she did not know whether em-
ployees were told that they were permitted to wear union but-
tons or other union logos.
5. The “Parking Lot” policy
Paragraph 8(d) of the complaint alleges, as unlawful, “a
parking policy directing its employees to report anyone they do
not know that is loitering in Respondent’s parking lot.”
The handbook on (GC Exh. 8) page 21 states, in relevant
part:

Parking
Park in the area of the lot for team members.
Always lock your car.
Use the “buddy system” or walk in pairs when you leave at
night. It’ll make leaving safer.
After the store closes, you may be asked to move your car
closer to the store for safety.
If you see people you don’t know loitering around the team
member parking area, notify Assets Protection or your leader
on duty immediately.
(Target is not responsible if your car is damaged or stolen
while in the parking lot.)

Supervisor of Asset Protection Jason Jones stated that during
his tenure at the store, there was a fire in a dumpster, bomb
threats, disputes among customers in the lot concerning parking
spots, vehicle crashes, breakins of cars, and propane tanks be-
ing left in the lot. He did not know whether any of these inci-
dents were caused by employees. Manager Casolino stated that
there have been stabbings and beatings, however, he never
heard that any store employees were involved in those inci-
dents.
The Respondent’s official, Major, conceded that with about
200 employees, some workers may not know each other, par-
ticularly since they work during various shifts, and some work
overnight and some during the day.
Supervisor of Asset Protection Jason Jones stated that off-
duty employees are permitted in the parking lot at all times, and
that there are no restrictions regarding whether an off-duty
employee can enter the store.
Casolino stated that if the store was closed and employees
are not scheduled to work, they cannot be in the store. He not-
ed that employees are permitted in the store parking lot at any
time.
IV. ANALYSIS AND DISCUSSION CONCERNING THE ALLEGED
UNLAWFUL HANDBOOK RULES
The Board’s standard in evaluating work rules is set forth in
Lutheran Heritage Village-Livonia, 343 NLRB 646, 646
(2004):

The Board has held that an employer violates Section
8(a)(1) when it maintains a work rule that reasonably tends
to chill employees in the exercise of their Section 7 rights.
Lafayette Park Hotel, 326 NLRB 824, 825 (1998). In de-
termining whether a challenged rule is unlawful, the Board
must, however, give the rule a reasonable reading. It must
refrain from reading particular phrases in isolation, and it
must not presume improper interference with employee
rights. Id. at 825, 827. Consistent with the foregoing, our
inquiry into whether the maintenance of a challenged rule
is unlawful begins with the issue of whether the rule ex-
plicitly restricts activities protected by Section 7. If it does,
we will find the rule unlawful.
If the rule does not explicitly restrict activity protected
by Section 7, the violation is dependent upon a showing of
one of the following: (1) employees would reasonably
construe the language to prohibit Section 7 activity; (2) the
rule was promulgated in response to union activity; or (3)
the rule has been applied to restrict the exercise of Section
7 rights.

The complaint alleges that the Respondent has promulgated
and since then has maintained in its 2009 team member hand-
book, and in its 2011 handbook certain unlawful rules concern-
ing solicitation, distribution of literature, release of confidential
information, discussion of confidential information, reporting
of unauthorized or misuse of confidential information, an after-
hours policy, a dress code policy, a parking lot policy, and
threats of discipline for violating its policy on confidential in-
formation.
The 2009 handbook was given to employees at their hire
970 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
during their orientation session for which employees signed a
receipt. The 2011 handbook was made available to employees
after the election, but not distributed to the then-employed
workers. Instead, they were told that it was available on their
request. The 2009 handbook was not rescinded on the issuance
of the 2011 version.
It was stipulated that the 2009 handbook was the only hand-
book applicable to employees from July 2009 to at least the last
week of June 2011.
A. The Information Security Policies
The complaint alleges that the information security rules
broadly prohibit employees from releasing confidential guest,
team member, or company information, sharing confidential
information with other employees, directs them to ask their
supervisors if they are unsure regarding sharing confidential
information, and prohibits its employees from speaking about
confidential information in the breakroom, at home, or in open
areas and public places, directs its employees to report unau-
thorized access or misuse of such information to the Respond-
ent and threatens them with discipline and criminal prosecution
if they violate that policy.
The General Counsel alleges that these prohibitions neces-
sarily restrict employees from sharing with other workers in-
formation regarding their wages, hours, and other terms and
conditions of employment.
“Confidential information” is defined in the handbook as in-
cluding all Target information that is not public, including em-
ployee “personnel records.” The Respondent argues that “per-
sonnel records” do not include such information as employee
wages and benefits. However, the term “confidential infor-
mation” is broadly defined as any information that is not public.
Clearly, employees’ wages and benefits are not made public.
Accordingly, they constitute confidential information which is
subject to the handbook’s rules on maintaining their confidenti-
ality.
As such, according to the rule, employees are prohibited
from sharing such information as to their wages and benefits
with other workers. The handbook provides that employees are
prohibited from releasing confidential information and sharing
such information with another worker “unless they have a need
to know the information to do their job,” and they cannot dis-
cuss confidential information at home or in public areas.
It is without dispute that employees have a Section 7 right to
discuss their wages, hours and working conditions with their
colleagues. In Cintas Corp., 344 NLRB 943, 943, 946 (2005),
enfd. 482 F.3d 463, 467 (D.C. Cir. 2007), the Board found that
an employer violated the Act by broadly stating that it “recog-
nizes and protects the confidentiality of any information con-
cerning” its employees and that unauthorized release of confi-
dential information could subject the employee to disciplinary
action. The Board found that prohibiting the release of “any
information” regarding its employees “could be reasonably
construed by employees to restrict discussion of wages and
other terms and conditions of employment with their fellow
employees and with the union.”
Applying the Respondent’s rule above, I find that the Infor-
mation Security rules explicitly restrict activities protected by
Section 7 of the Act. The discussion of an employee’s wages,
hours and working conditions is protected by the Act. By pro-
hibiting their discussion, the Respondent explicitly restricted
that right. In addition, I find that employees would reasonably
construe the language to prohibit Section 7 activity. I further
find that Respondent’s ambiguous rule prohibits the dissemina-
tion of “personnel information and documents” and because
Respondent does not clarify the term, Respondent’s rule rea-
sonably tends to chill protected activity.
By including the wording “personnel information” in the list-
ing of confidential documents, Respondent leaves to employees
the task of determining what entails “personnel information”
and requires them to speculate as to what kind of information
disclosure may trigger their discipline. Accordingly, I find that
the rule is overly broad and has language that employees may
reasonably construe as restricting the exercise of their Section 7
rights.
The cases cited by the Respondent, Lafayette Park Hotel,
326 NLRB 824, 825 (1989), and Super K-Mart, 330 NLRB 263
(1999), are easily distinguishable. In both cases, the employers
prohibited exclusively company documents from disclosure—
“hotel-private information” and “company business and docu-
ments.” The Board found that an employee could not reasona-
bly construe the prohibition to include discussions about wages,
hours, and working conditions, since neither prohibition specif-
ically implicated employee information. The court in Cintas
specifically noted that the employer’s rule “did not by its terms
include employee wages or working conditions and made no
reference to employee information.” 482 F.3d at 470.
Here, in contrast, the handbook specifically prohibits the dis-
closure of employee-related information—“confidential . . .
team member information” and defines confidential infor-
mation as anything that is not public, including “team member
personnel records.” Certainly, wages and benefits are not pub-
lic information, and accordingly, an employee would reasona-
bly construe the rule as prohibiting discussion of employee
related wages, hours, and terms and conditions of employment.
The Respondent argues that it is only “personnel records”
and not personnel “information” that is prohibited from disclo-
sure. I do not see the distinction. By definition, personnel rec-
ords must necessarily include personnel information.
In IRIS U.S.A., Inc., 336 NLRB 1013 (2001), the Board dealt
with confidentiality language that was similar to that found in
the instant case. Specifically, in IRIS, the employer prohibited
disclosure of confidential information including financial in-
formation, leases, licenses, agreements, sales figures, business
plans, and proprietary information. As with the confidentiality
language in the instant case, it was apparent that the employer
sought to prevent the disclosure of information that might give
unfair advantage to competitors or adversely affect its ability to
compete in its industry. But, as here, the employer also includ-
ed “personnel records” as confidential and limited their disclo-
sure only to the named employee and senior management. In
determining whether the employer’s confidentiality rule was
lawful, the judge noted that “personnel records” contain various
kinds of information about employees; including their wages.
The Board found that the employer violated Section 8(a)(1) by
maintaining that confidentiality provision. 336 NLRB at 1014
TARGET CORP. 971

fn. 1.
I accordingly find and conclude that employees would rea-
sonably construe the language of the rule to prohibit Section 7
activity, speaking to their coworkers about their wages and
terms and conditions of employment. I accordingly find and
conclude that the maintenance of the “information security
policies” would reasonably tend to chill employees in the exer-
cise of their Section 7 rights.
I further find that, inasmuch as the rule directs its employees
to report unauthorized access to confidential information or
misuse of confidential information to the Respondent, and
threatens its employees with corrective action, including termi-
nation and criminal prosecution, for a violation of the policy on
confidential information, such part of the rule violates the Act
by threatening employees for violating an unlawful rule.
The Respondent cites Security Walls, LLC, 356 NLRB 596
(2011), for the proposition that a confidentiality provision pre-
cluding the copying or disclosing of information in, among
other documents, the payroll or personnel records of employees
was lawful. It must be noted, however, that in finding no viola-
tion in the provision, the Board observed that no exceptions
were taken to the judge’s decision. 356 NLRB 596, 596 fn. 1.
B. The No-Solicitation/No-Distribution Policy
The allegedly improper handbook rule provides that employ-
ees are prohibited at all times on Target premises from solicit-
ing and distributing literature if these activities are for personal
profit, commercial purposes, or any charitable organization that
is not part of the Respondent’s community relations program.
The handbook defines “Target premises” as including all
buildings, grounds, and parking areas Target uses to conduct its
business.
The General Counsel argues, and I agree, that the above rule
broadly prohibits the distribution of literature anywhere on
Target property if such an activity is for “commercial purpos-
es.”
An employer may lawfully impose some restrictions on em-
ployees’ statutory rights to engage in union solicitation and
distribution. Such restrictions, however, must be clearly lim-
ited in scope so as not to interfere with employees’ right to
solicit their coworkers on their own time or to distribute litera-
ture on their own time in nonwork areas. Republic Aviation
Corp. v. NLRB, 324 U.S. 793 (1945); Our Way, Inc., 268
NLRB 394 (1983); Stoddard-Quirk Mfg. Co., 138 NLRB 615,
621 (1962). On its face, the Respondent’s rule prohibits solici-
tation and distribution on its premises at any time on its premis-
es. Such a rule violates the principles in Republic Aviation
which establishes that employees have the right to distribute
items on their own time in nonwork areas.
The rule prohibits such distribution if it is for a “commercial
purpose.” The General Counsel argues, and I find, that there is
ample evidence in the record to support a finding that the Re-
spondent regarded the Union as a “business” and communicat-
ed that understanding to its employees. Thus, at the first meet-
ing at which the video “Think Hard Protect Your Signature”
was shown to the employees, Store Manager Pena testified that
the script that she read to the employees portrayed the Union as
a business, and an actor in the video states that “a union is a
business. And like any other business, it has to bring in money
to survive. But it doesn’t have any products to sell. Instead, it
sells memberships. The more memberships it sells, the bigger
the business.” The Respondent’s flyer, signed by Pena, states
that “like any other failing business the union needs to increase
revenue to stay in business. Taking dues from new members is
the only way for them to get more money.”
Williams stated that Pena told her three or four times that
there was “no soliciting on the premises.” Williams further
testified that when she gave out flyers in the breakroom during
her break, her supervisor, Peta Chen, told her “you can’t dis-
tribute those in here. No soliciting.” Williams protested that
she was on her break, and Chen replied, “I don’t care; you can’t
pass anything out in the break room or on the premises.”
Bracey also handed out a flyer in the breakroom and Chen told
her “[Y]ou can’t do that in the breakroom. Stop handing out
stuff in the break room.” Bracey also stated that when she was
in the parking lot with other employees and union agents, Pena
approached and said, “[N]o soliciting. Not even in the parking
lot. Get away from here. You can’t be there.”8
I further find that the Respondent enforced its unlawful rule
when, on June 9, Respondent’s official, Stone, told employee
Green that she could not solicit on Target’s property. At the
time, Green was outside the employee entrance and was off
duty. Green credibly testified that she spoke to one other em-
ployee outside the store about the Union. At the time, Green
was a known union advocate. It would make no sense for Green
to bother or block employees from entering, as Stone testified,
when she was attempting to interest them in the Union. Nor
would it make sense for Green to stand in a place where she
would be subjected to being hit by the door.
I also credit Williams’ testimony that Pena said that she
could not solicit on Target’s premises. This prompted an ad-
mitted response from Pena that she would check to see if solici-
tation could take place in the Respondent’s second parking lot.
Clearly, the emphasis of the conversation was on the location of
the solicitation, not the worktime of the conversants.
Thus, Williams credibly testified that, in response to Pena’s
telling her that she could not solicit anywhere on Target prem-
ises, she asked whether such activity could take place in the
breakroom or one of the parking lots. Corroborating Williams,
Pena admitted that Williams asked if solicitation could take
place in the second parking lot and Pena replied that she did not
know but would find out. I accordingly find and conclude that
Pena’s advice to Williams that solicitation was not permitted on
the Respondent’s property violated the Act.
The Respondent’s reliance on Register-Guard, 351 NLRB
1110 (2007), is misplaced. In that case, the Board held that
employees do not have a statutory right to use the employer’s e-
mail system for Section 7 purposes. The Board stated that “an
employer may draw a line between charitable solicitations,
between solicitations of a personal nature—and solicitations for
the commercial sale of a product—and between business-

8 Bracey conceded that her pretrial affidavit did not mention that she
was prevented from distributing literature in the breakroom. She testi-
fied that the Board agent did not ask her whether she was prohibited
from doing so.
972 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
related use and non-business related use.” Id. at 1118. There-
fore, an employer’s policy prohibiting the use of a system for
“nonjob related” purposes would not by itself violate Section
8(a)(1) of the Act. Register-Guard involved the disparate en-
forcement, not the maintenance, of an allegedly unlawful rule.
The Respondent argues that if an employer may permissibly
disparately enforce such a rule it may also validly maintain
such a rule.
However, in Register-Guard the Board noted that employees
had the full right to engage in oral solicitation and distribution
pursuant to Republic Aviation. As set forth above, here they
did not have that right. The question in Register-Guard, not
present here, was whether the employer could prohibit employ-
ees’ use of company equipment to engage in modern forms of
communication.
In addition, there is no evidence that the rule here was actu-
ally communicated to employees in such a way as to convey
intent clearly to permit solicitation in nonworking areas when
employees were not actively at work. Accordingly, the rule at
issue here is overly broad and discriminatory on its face.
Under the standard set forth in Lutheran Heritage, I find that
the rule explicitly restricts activity protected by Section 7 of the
Act. The distribution of union literature is protected by Section
7, and the rule impermissibly prohibits such distribution at all
times on its premises. In addition, I find that employees would
reasonably construe the rule to prohibit Section 7 activity.
Thus, by labeling the Union a “business” engaged in “sell[ing]
memberships,” employees would reasonably believe that the
rule prohibits the “commercial purpose” of selling member-
ships in the union by the solicitation of membership and the
distribution of literature on its premises. Accordingly, I find
and conclude that this rule violates Section 8(a)(1) of the Act.
I further find that employees would reasonably construe the
language of the rule to prohibit Section 7 activity. I accordingly
find and conclude that the maintenance of the rule would rea-
sonably tend to chill employees in the exercise of their Section
7 rights.
I further find that by showing its employees a video in which
it was stated that “you can rely on us to enforce all solicitation,
distribution, and harassment policies” the Respondent affirmed
its intent to unlawfully enforce the impermissible no-
solicitation/no-distribution rules alleged in the complaint.
C. The “After Hours” Policy
The handbook rule provides that “team members must leave
the premises after hours. You should only be on company
property during your scheduled work hours or for other author-
ized company business.”
In TeleTech Holdings, Inc., 333 NLRB 402 (2001), the
Board found that a rule prohibiting “unauthorized presence on
the premises while off duty” violated the Act. It stated that “a
no-access rule for off-duty employees is valid only if it limits
their access solely with respect to the interior of the plant prem-
ises and other working areas; it is clearly disseminated to all
employees; and it applies to off-duty employees seeking access
to the plant for any purpose and not just those employees en-
gaging in union activity. In addition, a rule denying off-duty
employees access to parking lots, gates, and other outside non-
working areas is invalid unless sufficiently justified by business
reasons.” Tri-County Medical Center, 222 NLRB 1089 (1976).
Similarly, in Lafayette Park Hotel, above at 828, the Board
found that a rule requiring employees to leave the premises
immediately after the completion of their shift, and not return
until their next scheduled shift, violated the Act.
The Respondent’s rule broadly prohibits employees from
bein on its premises, which has been defined as its building,
grounds and parking lots, during their nonscheduled work hours
or for other authorized company business. It does not limit
access to the interior of the store as required by TeleTech,
above.
There was testimony that there have been various incidents,
including crimes, committed in the parking lot, but there was
no evidence that any employees were involved in such inci-
dents. Accordingly, the Respondent has not established any
business reason for excluding employees from being in its park-
ing lot during their off hours.
There was evidence that large numbers of employees rou-
tinely return to the store after their work hours to shop, to en-
gage in company functions, to pick up a pay check or visit the
human resources department. However, those instances where
employees return to the store after their work hours are con-
sistent with the rule that permits them to be on the premises for
“authorized company business.”
The rule clearly would prohibit employee visits to the store’s
parking lot to solicit coworkers for membership in the Union,
or to distribute literature in its behalf. Indeed, there was evi-
dence that employees who were not on work time engaged in
such solicitation and distribution in the parking lot.
The Respondent argues that the rule has not been enforced,
citing testimony that employees have engaged in solicitation
and distribution in the parking lot while off duty. However,
although employees have engaged in such activities, neverthe-
less, the rule has been maintained. I find that employees would
reasonably construe the language of the rule to prohibit Section
7 activity. I accordingly find and conclude that the maintenance
of the “after hours” would reasonably tend to chill employees
in the exercise of their Section 7 rights.
The Respondent cites its “visitors” rule as evidence that its
“after hours” rule is lawful. The “visitors” rule provides, in
part, that “if you are not scheduled to work, please do not visit
the non-public areas of the store except for authorized company
business such as picking up your paycheck.”
I find that, inasmuch as the “visitors” rule permits off-duty
employees to return to the nonpublic parts of the store for au-
thorized company business, it is essentially the same rule as the
“after hours” rule. However, although the “visitors” rule per-
mits visits to the nonpublic areas of the store, it is silent as to
the public areas, including the parking lot. In contrast, the “af-
ter-hours” rule requires employees to leave the “premises” after
their work shift, and permits access to the premises only during
authorized company business. Thus, as stated above, the “after
hours” rule prohibits employees from being in the parking lot at
times other than their working hours or when they are engaged
in authorized company business. Such a rule restricts the right
of employees to engage in union activities in the parking lot
while they are off duty.
TARGET CORP. 973

I find that employees would reasonably construe the lan-
guage of the rule to prohibit Section 7 activity. I accordingly
find and conclude that the maintenance of the rule would rea-
sonably tend to chill employees in the exercise of their Section
7 rights.
D. The “Parking Lot” Policy
I agree with the Respondent that the parking lot policy is
clearly intended to ensure the safety of the employees in the
store’s parking lot. The rule provides, inter alia, that employees
should lock their car, and use the “buddy system.”
However, it also provides that if the employee sees people he
does not know “loitering” around the parking lot, the worker
should notify a security guard or a supervisor immediately.
Although the rule is not primarily intended to limit employee
access to the Respondent’s nonwork areas, it has that effect and
it has been maintained. In Lutheran Heritage, above at fn. 16,
the Board found that the respondent’s “loitering rule” violated
the Act since “employees could reasonably interpret the rule to
prohibit them from lingering on the respondent’s premises after
the end of a shift in order to engage in Sec. 7 activities, such as
the discussion of workplace concerns.”
Here, although the rule does not specifically prohibit “em-
ployees” from loitering, it provides broadly that the worker
should report anyone who he does not know who he sees loiter-
ing in the lot. As set forth above, the fact that there are over 200
employees working in the store with round the clock shifts, it is
possible that not all the workers know each other. According to
the rule, an employee is required to report anyone, even a fel-
low worker who he does not know, who is loitering in the park-
ing lot.
I further find that the requirement that employees report to
the asset protection department or to their supervisor anyone
who they do not know who is loitering in the parking lot, vio-
lates the Act because it requires the workers to inform the Re-
spondent of anyone who might be engaging in union activities
in the lot.
E. The “Dress Code” Policy
The Respondent’s dress code policy prohibits its employees
from wearing various items of clothing and “any buttons or
logos on your clothing (unless approved by your team leader).”
In Republic Aviation, above, the Supreme Court held that
employees have a protected right to wear union buttons at
work. This right has been extended to articles of clothing. Med-
co Health Solutions of Las Vegas, 357 NLRB 170, 179 (2011).
This right is balanced against the employer’s right to maintain
order, productivity and discipline. The Board has struck this
balance by permitting employers to prohibit employees from
wearing union insignia where “special circumstances” exist.
324 U.S. at 797–798. See Sam’s Club, 349 NLRB 1007, 1010
(2007). “The Board has found special circumstances justifying
the proscription of union insignia when its display may jeopard-
ize employee safety, damage machinery or products, exacerbate
employee dissention, or unreasonably interfere with a public
image which the employer has established as part of its busi-
ness plan, through appearance rules for its employees.” United
Parcel Service, 312 NLRB 596, 597 (1993). A rule based on
special circumstances must be narrowly drawn to restrict the
wearing of union insignia only in areas or under circumstances
which justify the rule. Sunland Construction Co., 307 NLRB
1036 (1992). Customer exposure to insignia is not, by itself, a
special circumstance, nor is the requirement that an employee
wear a uniform. United Parcel Service, above.
The Respondent argues in its brief that because its estab-
lished brand is “red and khaki” which permits the employee to
be identified as a team member, any button or logo which de-
tracts from that identification unreasonably interferes with its
carefully crafted public image and business plan of “red and
khaki.” In Stabilus, Inc., 355 NLRB 836 (2010), the Board
stated that “an employer cannot avoid the “special circumstanc-
es” test simply by requiring its employees to wear uniforms or
other designated clothing, thereby precluding the wearing of
clothing bearing union insignia. The same would apply here.
The ban on wearing union insignia is complete and not limited
to areas which would justify the rule. For example, the rule also
applies to the overnight employees who work when the store is
closed to the public.
I find that the prohibition of all buttons or logos does not un-
reasonably interfere with the Respondent’s public image, par-
ticularly since the Respondent has permitted employees to wear
pins and buttons of all kinds, including health-related and holi-
day appropriate pins. There has been no showing that the wear-
ing of any insignia would interfere with the Respondent’s “red
and khaki brand.”
In its brief, the Respondent asserts that it has demonstrated
the ‘special circumstances’ permitting the prohibition of but-
tons or logos because “the display of any button or logo, not
just limited to union support, unreasonably interferes with Tar-
get’s carefully crafted public image and business plan of ‘red
and khaki.’” Nevertheless, there is ample evidence that em-
ployees routinely wear pins showing their support for health-
related causes, or in celebration of holidays, on their uniforms.
The wearing of union insignia is protected by Section 7, and
the Respondent’s rule impermissibly prohibits the wearing of
any buttons or logos at all times on its premises. Under the
standard set forth in Lutheran Heritage, I find that employees
would reasonably construe the language of the rule to prohibit
Section 7 activity. I accordingly find and conclude that the
maintenance of the rule would reasonably tend to chill employ-
ees in the exercise of their Section 7 rights. I accordingly find
that this rule violates Section 8(a)(1) of the Act.
The fact that employees, according to the rule, had to obtain
their supervisor’s approval, is contrary to the freedom accorded
to workers pursuant to Republic Aviation, above. As the Board
pointed out in Brunswick Corp., 282 NLRB 794, 795 (1987),
any rule that requires employees to secure permission from
their employer as a precondition to engaging in protected con-
certed activity on an employee’s free time and in nonwork are-
as is unlawful.
F. The Respondent’s Defenses to the Handbook Rules
In its brief, the Respondent argues that the handbook rules
were not known to the employees, and it is “highly unlikely
that employees have ever seen these policies in writing” and
thus it was as if they “did not exist.” I cannot agree. Each
974 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
employee signed an “orientation completion form” upon the
completion of the orientation program which stated that the
worker “received and read” the handbook. Further, the hand-
book states that the employee should use it “as a guide to find
out about your training, pay, schedule and time off, as well as
company policies, guidelines and expectations.” In addition,
Supervisors and Officials Bharat, Casolino, Jones, Major, and
Pena all testified that the no-solicitation/no-distribution rules
were in effect, and stated their understanding of those rules.
The Respondent first argues that the rules set forth in the
handbooks are lawful. It contends, further, that even if the
rules are unlawful, they have not been enforced. In answer to
the complaint’s allegations that the mere maintenance of the
rules, even without evidence that they were enforced, violates
the Act, the Respondent asserts that maintenance of an unlaw-
ful rule does not constitute a violation of the Act.
I do not agree. As set forth above, the rules discussed above
are invalid because they reasonably tend to chill employees in
the exercise of their Section 7 rights, and employees would
reasonably construe their language to prohibit Section 7 activi-
ty. Lutheran Heritage, above.
The Respondent further argues that the rules were not en-
forced, or were loosely enforced, blaming its “poor leadership”
at the store. The Respondent’s officials and supervisors testi-
fied that the handbook rules were “loosely enforced” or not
enforced at all. For example, executive team leader Stone stat-
ed that her job is to enforce the Employer’s policies, however
she noted that the handbook served as a “loose guide” or “tem-
plate” to the Employer’s policies. Similarly, executive team
leader Michael Casolino stated that it is his job to “loosely en-
force” the handbook’s guidelines, which are not followed “line
by line.”
However, Casolino conceded that he was not instructed in
writing or orally by Pena to loosely enforce the guidelines, or
not to enforce the dress code, and he was not aware of any
changes to the handbook’s policies as written. He similarly did
not issue anything in writing to the workers advising that the
handbook’s rules were only loosely enforced.
The Respondent’s human resources official, Dawn Major,
denied that some policies are not enforced. She stated that the
administration looks at each situation to determine the facts and
the course of action required on a case-by-case basis, stating
that the guidelines are just guidelines. Major was not aware of
any of the rules in the handbook being changed or rescinded
prior to the election. Pena testified that the Respondent’s head-
quarters did not tell her not to follow the handbook’s policies,
adding that “we just don’t enforce every single policy maybe as
well as we should have.”
The Respondent argues that the rules were not enforced, re-
lying on testimony in which employees solicited other workers
to join the Union, distributed union literature, freely discussed
their wages with each other, returned to the facility when they
were not on duty in order to shop and perform other activities,
and wore pins, shirts with logos, and union bracelets in appar-
ent violation of the dress code. The Respondent argues that this
evidence excuses it from a finding of violation for maintaining
unlawful rules.9
Despite such testimony of “loose enforcement” of the rules,
there was evidence that the rules were, indeed, enforced. Thus,
at one of the Employer meetings, an actor in the video shown to
employees stated that “you can rely on us to enforce all solicita-
tion, distribution, and harassment policies.” Further, handbook,
page 44, asks employees to “please follow and help enforce the
Target No Solicitation/No Distribution Policy.” In addition,
asset protection supervisor Jones stated that it is his job to en-
force the Employer’s no-solicitation/no-distribution polices in
the Target building itself, its property and parking lots.
Further, as set forth above, I have credited employees Green
and Williams’ testimony that they were told that they could not
solicit on Target’s property. Accordingly, I find that the rules
against solicitation and distribution were, in fact, enforced.
However, even if the rules were not enforced, the Respond-
ent remains responsible for their maintenance. A rule is unlaw-
ful even if not enforced. Radisson Place Minneapolis, 307
NLRB 94, 94 (1992). The D.C. Circuit in Cintas, above, dealt
with the arguments that the Respondent raises, finding that
even though there was no evidence that any employee actually
interpreted the rules to prohibit their lawful discussion of Sec-
tion 7 matters, “no such evidence is required to support the
Board’s conclusion that the rule is overly broad and thus un-
lawful. The Board is merely required to determine whether
employees would reasonably construe the [disputed] language
to prohibit Section 7 activity.” The court also answered the
employer’s argument that it never applied the rules in the man-
ner asserted by the union. It stated that “the mere maintenance
of a rule likely to chill Section 7 activity, whether explicitly or
through reasonable interpretation, can amount to an unfair labor
practice ‘even absent evidence of enforcement.’ If the Board
concludes that employees would reasonably construe the com-
pany’s confidentiality language to restrict discussion of their
wages and other terms and conditions of employment with each
other, the Board is under no obligation to consider whether the
disputed restriction has ever been enforced against employees
exercising their Section 7 rights.” 482 F.3d at 467–468.
There is no evidence that any employee has been disciplined
for acting in contravention of these rules. However, there is
also no evidence that the rules have been rescinded, that store
management has been given permission to loosely enforce or
not enforce those rules, or that the workers have been told that
they are not bound by those rules. Accordingly, the rules re-
main in effect and have been maintained. As alleged in the
complaint, the maintenance of the rules violates the Act even if
they have not been enforced.
V. THE REPRESENTATION CASE
A. The Objections to the Election
1. Relevant principles
When an objection is filed asserting that the “laboratory con-
ditions” of an election were violated by a party to an election,

9 The Union’s request that I reconsider my ruling permitting the Re-
spondent to adduce evidence that employees engaged in union activities
in apparent contravention of the rules, including my receipt in evidence
of union campaign literature, is denied.
TARGET CORP. 975

the decisional standard is whether “the conduct reasonably
tends to interfere with the employees’ free and uncoerced
choice in the election. Baja’s Place, Inc., 268 NLRB 868, 868
(1984). As the objecting party, the union has the burden of
proving interference with the election. See Jensen Pre-Cast,
290 NLRB 547 (1988). The test, an objective one, is whether
the employer’s conduct has the tendency to interfere with the
employees’ freedom of choice. See Taylor Wharton Division,
336 NLRB 157, 158 (2001).
2. Conclusions as to the representation case
The Report on Objections directed that the following objec-
tions, set forth in Objections 1(a) through (e); 1(g), 5, 8, 9, 10,
12, and 13 be merged with the complaint. They include the
Respondent’s access policy; the dress code policy; the no-
distribution/no-solicitation policy; the information security
policy and the social media policy which prohibit the discus-
sion by employees of their terms and conditions of employment
with others; the rule which requires employees to report
coworkers’ union activity; threats of unspecified reprisals; crea-
tion of the impression of surveillance; the announcement and
enforcement of an overly broad no-solicitation policy; interro-
gation of employees; and threats to close the store.
In Dal-Tex Optical Co., 137 NLRB 1782, 1786–1787
(1962), the Board held that 8(a)(1) conduct occurring during
the critical period is “a fortiori, conduct which interferes with
the exercise of a free and untrammeled choice in an election.”
However, the Board noted that an exception to that rule does
not require the setting aside of an election where the “conduct
is so minimal or isolated that it is virtually impossible to con-
clude that the misconduct could have affected the election re-
sults.”
The Respondent, citing Longs Drug Stores California, 347
NLRB 500, 501 (2006), and Delta Brands, Inc., 344 NLRB
252, 253 (2005), argues that the election should not be set aside
even if the handbook’s confidentiality rules are found to be
unfair labor practices.
In Longs, above, the Board held that the maintenance of a
handbook provision that considered employee wage rates to be
confidential information which must not be disclosed, violated
Section 8(a)(1) of the Act. The Board nevertheless did not find
that the election’s results should be overturned. In refusing to
overrule the election results, the Board stated that the confiden-
tiality provisions were not adopted in response to the union’s’
organizing campaign, the handbook at issue was only distribut-
ed to five unit employees, there was no evidence that the em-
ployer called employees’ attention to other confidentiality pro-
visions in the handbook, and there was no evidence that those
provisions were ever enforced. Rather, there was evidence that
employees openly discussed wages and other terms and condi-
tions of employment during the critical period, and the election
was lost by a wide margin. The Board concluded that it was
impossible to conclude that the confidentiality provisions could
have had an effect on the results of the election.
Similarly, in Delta Brands and Safeway, Inc., 338 NLRB 525
(2002), the Board held that the mere maintenance of an invalid
rule was not sufficient to overturn the election results.
However, in Jurys Boston Hotel, 356 NLRB 927 (2011), a
representation case, the Board held that “the mere maintenance
of an overbroad rule can affect the election results because
employees could reasonably construe the provision as a di-
rective from their employer that they refrain from engaging in
permissible Section 7 activity.” Pacific Beach Hotel, 342
NLRB 372, 373–374 (2004) (setting aside election, based on a
handbook policy prohibiting solicitation on company property),
citing Freund Baking, 336 NLRB 847 fn. 5 (2001). The Board
noted, in Jurys Boston, that, neither in Delta Brands or in Safe-
way, did the Board hold that objecting parties in all cases must
prove than an objectively overbroad rule was enforced or that it
actually deterred employees from engaging in Section 7 activi-
ty.” S.T.A.R., Inc., 347 NLRB 82, 84 fn. 7 (2006).
In Jurys Boston, the Board found that three of the Employ-
er’s handbook rules—no-solicitation or distribution on hotel
property, the prohibition against being in an unauthorized area
and/or loitering inside or around the hotel without permission,
and the rule prohibiting the wearing of emblems, badges, and
buttons—were objectionable since they reasonably tended to
interfere with employee free choice. The Board held that those
rules had a reasonable tendency to chill or otherwise interfere
with the prounion campaign activities of employees during the
election period, and could reasonably be construed by employ-
ees as precluding them from communicating with each other
about the Union and their wages, hours, and other terms and
conditions of employment at their workplace, “the one place
where [employees] clearly share common interests and where
they traditionally seek to persuade fellow workers in matters
affecting their union organizational life and other matters relat-
ed to their status as employees.” Eastex, Inc. v. NLRB, 437
U.S. 556, 574 (1978), quoting Gale Products, 142 NLRB 1246,
1249 (1963).
In answer to the Respondent’s argument that in Jurys Bos-
ton, above, the union lost the election by only one vote, and that
here the Union lost the election by a wide margin, the Board
noted in Freund Baking, fn. 5, above, that although the margin
of victory in that case was substantial, “the objectionable con-
duct affected all the employees in the unit because the employ-
er required each employee to receive and review a handbook. In
these circumstances, we find that the employer’s objectionable
conduct may have directly accounted for the petitioner’s mar-
gin of defeat. In any event, the Board has consistently held that
whether an election should be invalidated based on alleged
misconduct does not turn on election results but rather upon an
analysis of the character and circumstances of the alleged ob-
jectionable conduct.”
As set forth above, in the video shown to employees, the
Employer stated that it would enforce its no-solicitation/no-
distribution rules, and such rules were enforced against em-
ployees Green and Williams. Even assuming that the handbook
rules were not enforced, nevertheless, they were maintained,
they were not rescinded, and employees, who certified that they
received and read the handbook, were not told that they were
not bound by them.
In addition, the objectionable conduct was disseminated to
the entire bargaining unit by the distribution to all employees
upon their hire the handbook containing the unlawful rules, the
advice in the handbook that they “follow and help enforce the
976 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Target No Solicitation/No Distribution Policy,” and by the
video that they were shown which warned employees that “you
can rely on us to enforce all solicitation, distribution, and har-
assment policies.”
Inasmuch as I have found that all the objectionable conduct
set forth above constitute unfair labor practices, I recommend
that those objections be sustained. Dal-Tex Optical Co., above
1786–1787, I will therefore recommend that the election held
on June 17 be set aside, and that the representation proceeding
be remanded to the Regional Director for the purpose of con-
ducting a second election.
CONCLUSIONS OF LAW
1. By, in its team member handbook, revised in July 2009,
promulgating and since then maintaining the following rules,
the Respondent has violated Section 8(a)(1) of the Act:
(a) In its team member handbook, revised in July, 2009, by
promulgating and since then maintaining, the following rules:

i. A no-distribution rule that prohibits its employees
from distributing any literature at any time on Respond-
ent’s premises, which includes non-work areas;
ii. A “Use technology Appropriately” policy prohibit-
ing its employees from releasing confidential guest, team
member, or company information;
ii. A. “Communicating Confidential Information” poli-
cy which prohibits its employees from sharing confidential
information with other employees; directs its employees to
talk to their supervisors if they are unsure regarding shar-
ing confidential information; and prohibits its employees
from having discussions regarding confidential infor-
mation in the breakroom, at home or in open areas and
public places.

(b) An “Unauthorized access to confidential information”
policy which directs its employees to report unauthorized ac-
cess to confidential information or misuse of confidential in-
formation to the Respondent; and threatens its employees with
corrective action, including termination and criminal prosecu-
tion, for a violation of the policy on confidential information.
2. By, in its team member handbook, revised in July 2009
and February 2011, promulgating and since then maintaining
the following rules, the Respondent has violated Section 8(a)(1)
of the Act:
(a.)An “After Hours” rule prohibiting its employees from re-
turning to its premises, which includes nonwork areas, during
their off hours.
(b) A “No-Solicitation/No-Distribution” policy prohibiting
solicitation or distribution of literature by its employees, at all
times on Respondent’s premises, which includes nonwork are-
as.
(c) A “Dress Code” policy prohibiting its employees while at
work from wearing any buttons or logos on their clothing un-
less approved by a team leader.
(d) A “Parking Lot” policy directing its employees to report
anyone they do not know who is loitering in Respondent’s
parking lot.
3. By threatening employees with discipline for engaging in
activities on behalf of the Union, the Respondent has violated
Section 8(a)(1) of the Act.
4. By distributing a leaflet to its employees in which it
threatened its employees that its Valley Stream facility would
close if employees chose the Union as their collective-
bargaining representative, the Respondent has violated Section
8(a)(1) of the Act.
5. By showing its employees a video which states that Re-
spondent will enforce its solicitation and distribution policies,
the Respondent has violated Section 8(a)(1) of the Act.
6. By enforcing its no-solicitation policy by directing its em-
ployees not to solicit for the Union on Respondent’s property,
the Respondent has violated Section 8(a)(1) of the Act.
7. By interrogating its employees regarding their activities on
behalf of the Union, the Respondent has violated Section
8(a)(1) of the Act.
8. The Respondent has not violated the Act, as set forth in
paragraphs 14(a) and (b) of the complaint, by threatening its
employees that the Valley Stream store would close if they
chose the Union as their collective-bargaining representative.
9. The Respondent has not violated the Act, as set forth in
paragraph 18 of the complaint, by threatening its employees
that if they chose the Union as their collective-bargaining rep-
resentative and there was a strike, Respondent’s Valley Stream
facility would close.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
Inasmuch as I have found the Respondent has maintained un-
lawful rules in its handbook, I shall recommend that it be or-
dered to rescind those rules, remove them from the team mem-
ber handbook, and advise its employees in writing that these
rules are no longer being maintained or enforced.
[Recommended Order omitted from publication.]