                                                                  F I L E D
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                  NOV 10 1998
                                PUBLISH
                                         PATRICK FISHER
             UNITED STATES COURT OF APPEALS   Clerk
                      TENTH CIRCUIT



ALBERTSON’S, INCORPORATED,

      Petitioner,

v.

NATIONAL LABOR RELATIONS
BOARD,

      Respondent,                                   No. 97-9509


UNITED FOOD AND COMMER-
CIAL WORKERS UNION, LOCAL
394,

      Intervenor.




                Appeal from the National Labor Relations Board
                             (No. 18-CA-13715)


Brian Michael Mumaugh (Monique A. Tuttle with him on the briefs), of Holland
& Hart LLP, Denver, Colorado, for the Petitioner.

Ana L. Avendano, Attorney (Margaret Gaines Neigus, Supervisory Attorney, and
Anne Marie Lofaso, Attorney, with her on the brief), of the National Labor
Relations Board, Washington, D.C., for Respondent.
Robert D. Metcalf, Kathryn M. Engdahl, and Connie L. Howard, of Garber &
Metcalf, P.A., Minneapolis, Minnesota, on the brief for Intervenor.



Before SEYMOUR, Chief Judge, MCWILLIAMS, Senior Circuit Judge, and
MURPHY, Circuit Judge.


SEYMOUR, Chief Judge.




                                     -2-
      The National Labor Relations Board (NLRB) brought unfair labor practice

charges against Albertson’s, Inc. (Albertson’s) under section 8(a)(1) of the

National Labor Relations Act (NLRA), 29 U.S.C. § 158(a)(1). The NLRB’s

complaint alleged that Albertson’s engaged in disparate enforcement of its no-

solicitation policy against the union representing Albertson’s employees, thereby

assisting employees in filing a decertification petition, and engaged in

surveillance of employees’ union activities by confiscating and photocopying pro-

union materials. After a hearing, an administrative law judge (ALJ) issued a

decision and recommended order finding that Albertson’s had committed unfair

labor practices. The NLRB adopted the ALJ’s findings of fact, conclusions of

law, and recommended order. Albertson’s appeals, contending that the NLRB’s

section 8(a)(1) holdings are contrary to law and not supported by substantial

evidence, and that the NLRB improperly held the decertification petition tainted

by the alleged unfair labor practices. The NLRB has cross-petitioned for

enforcement of its order. We affirm and enforce the NLRB’s order.



                                          I.

      Albertson’s operates a grocery store in Rapid City, South Dakota, where it

engages in the retail sale of groceries and employs approximately 100 people. At

all times relevant to this litigation, Albertson’s had the following “no-


                                         -3-
solicitation” policy:

            Non-employees may not solicit, distribute literature or use
      sound devices on Company premises at any time.

             Employees who are working should not be disturbed,
      interrupted or disrupted by solicitations or the distribution of
      literature. Unauthorized presence of any employee in the non-selling
      areas of the store or in other non-public areas of our facility for any
      purpose is strictly prohibited unless the employee is on duty,
      preparing to come on duty, or preparing to leave after having been on
      duty.

             No employee may engage in solicitation of any kind during
      working time, or while the person(s) he or she is soliciting is on
      working time. Further, no employee may distribute literature during
      working time or in working areas (note: working time does not
      include authorized periods of off-duty times – e.g., meal time, break
      time, etc.).

Rec., vol. 2, General Counsel’s Ex. 2.

      According to the findings of the ALJ, 1 certain Albertson’s employees in the

spring of 1994 undertook a union organizing campaign. Employee David Dahl

spoke with fellow employees about the union and distributed election

authorization cards. In March 1994, store director Dan Yeazel informed Dahl that



      1
       In stating the facts, we defer to the NLRB’s reasonable findings because
the NLRB “is empowered to draw permissible inferences from credible
testimony.” NLRB v. L&B Cooling, Inc., 757 F.2d 236, 241 (10th Cir. 1985). As
a general rule, we will not disturb the NLRB’s assessment of the credibility of
witnesses who testify before it. See International Guards Union of America,
Local 69 v. NLRB, 789 F.2d 1465, 1467 (10th Cir. 1986) (citing NLRB v.
Montgomery Ward & Co., 429 F.2d 1127 (10th Cir. 1970)).


                                         -4-
he was displeased about Dahl’s union organizing activities. When Dahl asked

Yeazel’s permission to speak with employees in the break room while they were

off the clock, Yeazel refused and suggested that Dahl’s pro-union efforts

threatened his status with the company. Albertson’s later reduced Dahl’s hours,

resulting in the union’s filing of charges with the NLRB and an eventual private

settlement agreement.

      In June 1994, the union won a representation election and bargained over

the course of the next year with Albertson’s over the terms and conditions of a

collective bargaining agreement. During this time, store cashier Diane Pesek, a

local union supporter, became a member of the union negotiating committee and

attended bargaining sessions. Sometime in 1994, shortly after the election, Pesek

attempted to circulate a petition concerning year-round school in Rapid City.

Grocery manager John Binger told Pesek that such solicitation on the sales floor

or while Pesek was on the clock violated company policy.

      In July 1995, cashiers Gary Wehner and Carmel Lefor became dissatisfied

with the union’s inability to negotiate a collective bargaining agreement and

discussed circulating a decertification petition. Wehner approached Yeazel for

information on how to go about decertifying the union and Yeazel gave him the

telephone number of the NLRB’s regional office. Wehner also spoke with

Christopher Yost, Albertson’s labor relations representative, who apprized him of


                                        -5-
the company policy regarding solicitation. Wehner and two others subsequently

circulated a decertification petition over a four-day period between July 18 and

July 21 and secured 43 signatures, several of which were those of supervisors.

Wehner and his colleagues solicited signatures while they were themselves on the

clock and solicited others who were on the clock.

      It is also clear that several Albertson’s supervisors witnessed and

participated in on-the-clock solicitation for the decertification petition. On one

occasion, supervisor Randy Stewart witnessed but did not prohibit Wehner from

attempting to solicit Pesek’s signature as she stood in line as a customer to buy

groceries during a busy period at the store. 2 Pesek testified that the solicitation

occurred between 4:30 and 5:00 P.M. and that Stewart was working at a check

stand, an indication that the store was busy. On another occasion, Wehner

solicited the signature of employee Jerray Bachman in the presence of supervisor

Dave Motorude, who also did nothing to stop Wehner. Other supervisors signed

the petition while they were working and discussed the petition with other

employees who were working. For example, employee Nancy Anderson solicited

the signature of liquor store manager Kirk Murphy at approximately 10:00 or

11:00 A.M. while he was waiting on customers. Anderson took over Murphy’s

check stand while he went to ask managers Yeazel and Stewart whether he was


      2
          Pesek was on maternity leave at the time.

                                          -6-
allowed to sign the petition. They informed him that he was permitted to sign and

suggested that he should take his break and do so.

      On September 15, 1995, shortly following her return from maternity leave,

Pesek spoke to union president Tom Johnson about Wehner’s decertification

efforts. Later, at approximately six o’clock in the evening (an undisputedly busy

time at the store), Johnson brought a pro-union petition attached to a clipboard to

the check stand where Pesek was working and handed it to her while she was

waiting for a customer to sign a check. Pesek then passed the petition to two

other employees and asked them to sign it. These events transpired in a period of

approximately twenty seconds. Supervisor Connie Mehrer witnessed this

exchange and directed supervisor Sally Weaver to find out what was on the

clipboard. Although Pesek specifically told Weaver that she was circulating a

petition, Weaver confiscated the petition, carried it away, photocopied it, and

placed it in the company’s safe. When Pesek asked Weaver to return the petition,

Weaver informed her that Yeazel had said she could not have it until she got off

work and that she was not to have it on the sales floor or at any time she was on

the clock.

      Based on these facts, the NLRB found that Albertson’s had violated section

8(a)(1) of the NLRA by disparately enforcing its no-solicitation policy and by

engaging in surveillance of the employees’ union activities. The NLRB


                                         -7-
subsequently ordered Albertson’s to cease and desist from these unfair labor

practices and to post copies of an appropriate remedial notice. 3



                                         II.

      Albertson’s contends the NLRB’s decision that it violated section 8(a)(1) of

the NLRA by disparately enforcing its no-solicitation policy and engaging in

unlawful surveillance is not supported by substantial evidence. While our review

of the NLRB’s legal determinations is de novo, see Medite of New Mexico, Inc.

v. NLRB, 72 F.3d 780, 785 (10th Cir. 1995), we uphold the NLRB’s factual

findings if they are supported by substantial evidence in the record as a whole. 29

U.S.C. § 160(e) (1994); see also NLRB v. L & B Cooling, Inc., 757 F.2d 236, 241

(10th Cir. 1985) (citing Universal Camera Corp. v. NLRB, 340 U.S. 474 (1951)).

“‘Substantial evidence’ is evidence that a reasonable mind might accept as

adequate to support a conclusion.” NLRB v. Oklahoma Fixture Co., 79 F.3d

1030, 1033 (10th Cir. 1996) (citing Intermountain Rural Elec. Ass’n v. NLRB,


      3
       As we discuss infra, Albertson’s places great significance on the status of
the decertification petition, claiming that it was dismissed as part of the NLRB’s
determination that Albertson’s committed unfair labor practices. However,
neither the NLRB’s order nor the record before this court contains any reference
to dismissal of the decertification petition. We therefore assume for the sake of
responding to the assertions set forth in Albertson’s brief that any dismissal or
suspension of the petition occurred in accordance with the NRLB’s authority to
regulate representation elections under section 9 of the NLRA. See 29 U.S.C. §
159 (1994).

                                         -8-
984 F.2d 1562, 1566 (10th Cir. 1993)).

      Section 7 of the NLRA protects employees’ right “to self-organization, to

form, join or assist labor organizations, to bargain collectively through

representatives of their own choosing, and to engage in other concerted activities

for the purpose of collective bargaining or other mutual aid or protection.” 29

U.S.C. § 157 (1994). Employers violate section 8(a)(1) of the NLRA if they

“interfere with, restrain, or coerce employees in the exercise of [these] rights.” 29

U.S.C. § 158(a)(1) (1994). Although it is well established that employers may

legitimately prohibit solicitation in working areas during work time, see Republic

Aviation Corp. v. NLRB, 324 U.S. 793, 798-99 (1945), an otherwise valid rule

may violate the NLRA if it is enforced in a discriminatory manner, see Midwest

Stock Exch., Inc. v. NLRB, 635 F.2d 1255, 1270 (7th Cir. 1980). Disparate

enforcement in favor of an anti-union solicitation amounts to unlawful assistance

by the employer in violation of section 8(a)(1) by giving the impression that the

employer is “in effect outwardly encouraging and endorsing” the permitted

solicitations. Cf. Waste Stream Management, Inc., 315 N.L.R.B. 1099, 1122

(1994).

      Albertson’s contends the NLRB’s finding of disparate enforcement lacks

the support of substantial evidence because the evidence in the record demands

the conclusion that Albertson’s allowed both pro- and anti-union solicitations at


                                         -9-
the workplace and during work time and prohibited employee Pesek from

engaging in pro-union solicitation only because it disrupted customer service at a

busy hour. We find no merit in this assertion. First, as we have previously noted,

we will not disturb the NLRB’s determinations of witness credibility or lack

thereof except in rare circumstances. See Osteopathic Hosp. Founders Ass’n v.

NLRB, 618 F.2d 633, 638 (10th Cir. 1980) (“[I]t is not within our province to

upset a credibility determination of a hearing officer absent extraordinary

circumstances.”). In this case, the NLRB adopted the ALJ’s credibility

assessments, as do we. See Ready Mixed Concrete Co. v. NLRB, 81 F.3d 1546,

1551 (10th Cir. 1996); NLRB v. Whitlow Corp., 666 F.2d 1294, 1299-1300 (10th

Cir. 1981); Rocky Mountain Natural Gas Co. v. NLRB, 326 F.2d 949, 952 (10th

Cir. 1964) (citing Universal Camera Corp. v. NLRB, 340 U.S. 474 (1951) (“The

probative force that should be given an examiner’s report reaches its highest

significance when an issue turns upon credibility.”).

      The ALJ found that Albertson’s engaged in disparate enforcement of its no-

solicitation policy beginning on July 18, 1995, when it allowed employee Wehner

and others to solicit support for a decertification petition on work time even

though it had prohibited another employee from doing the same in support of a

pro-union petition in 1994, and even though it later prohibited employee Pesek




                                        -10-
from soliciting union support in September 1995. 4 Although Albertson’s contends

that management interfered with employee Pesek’s solicitation effort only because

she was disrupting customer service, the ALJ specifically found that employee

Pesek’s activities had not in fact disrupted customer service; that at least one of

employee Wehner’s solicitations in favor of the decertification petition also took

place during a busy period at the store -- so busy, in fact, that a supervisor was

working at one of the check stands; 5 and that liquor store manager Murphy

discussed the decertification petition with employee Anderson while he was on

the clock waiting on customers. Moreover, the ALJ found that the employer made

no reference to customer disruption in strictly enforcing the no-solicitation policy

against employee Dahl in 1994, and that a supervisor admonished Pesek for

allegedly disrupting customer service, and told Pesek not to circulate her petition

during any work time, even though management allowed Wehner to circulate his

decertification petition freely while he was on the clock. The record contains

testimony to support each of these findings. We therefore decline to disturb the

ALJ’s determinations as to which witnesses provided credible testimony and


      4
       In addition, the record contains evidence that Albertson’s refused to allow
Pesek to circulate a petition concerning year-round schools during work time
without regard to disruption of customer service.
      5
       The ALJ found employee Wehner “to be a totally unreliable witness” and
discredited his assertions that he neither disrupted work nor solicited for the
decertification petition on company time. Rec., vol. 3, ALJ Order at 13, n.13.

                                        -11-
which did not. 6

      Albertson’s remaining arguments against the NLRB’s decision are similarly

unavailing. Albertson’s contends the NLRB erroneously relied on events that

were too remote in time from the circulation of the July 1995 decertification

petition in determining that Albertson’s engaged in disparate enforcement of its

no-solicitation policy. In doing so, however, Albertson’s mischaracterizes the

nature of the disparate enforcement claim. Albertson’s apparently believes that a

finding of disparate enforcement requires a finding that the employees’ decisions

to sign the decertification petition was in some way influenced by the employer’s

unfair labor practices. Such is not the case.

      An employer violates section 8(a)(1) merely by enforcing a no-solicitation

policy in a discriminatory manner, regardless of whether the employees take

action based on the company’s discrimination. See Lucile Salter Packard


      6
        On this and other points, Albertson’s offers alternative ways in which the
testimony proffered to the ALJ might have been viewed. That there might be
other ways of construing the evidence does not indicate that the manner in which
the ALJ chose to view it was unreasonable. Contrary to Albertson’s repeated
assertions that the NLRB presented no evidence of disparate enforcement or
surveillance, the NLRB in fact presented the testimony of several witnesses on
both issues. The ALJ decided to credit these witnesses over Albertson’s
witnesses, which he was fully entitled to do given that he is the one who heard
their testimony and observed their demeanor on the witness stand. See Medite of
New Mexico, Inc., 72 F.3d at 785 (quoting NLRB v. Walton Mfg. Co., 369 U.S.
404, 405 (1962)) (reviewing court “may not ‘displace the Board’s choice between
two fairly conflicting views, even though the court would justifiably have made a
different choice had the matter been before it de novo.’”).

                                        -12-
Children’s Hosp. v. NLRB, 97 F.3d 583, 589 (D.C. Cir. 1996) (finding violation

of section 8(a)(1) where company regularly allowed non-union solicitations while

prohibiting union solicitations); Midwest Stock Exch., Inc., 635 F.2d at 1270

(same). The NLRB relied on Albertson’s refusal to allow pro-union solicitations

in 1994 and again in September 1995 as evidence of the company’s discrimination

in favor of anti-union activities and not as evidence that the company created an

atmosphere that led employees to sign the decertification petition. It defies logic

to suggest, as Albertson’s does, that the NLRB must look only to company

prohibitions of pro-union solicitations occurring at the very moment it is

permitting anti-union solicitations in order to assess whether the company is

engaging in disparate enforcement. The NLRB must necessarily look at the

company’s practices over a period of time in order to determine discriminatory

enforcement. As such, the NLRB’s reliance on this evidence was entirely proper.

See Lucile Salter Packard Children’s Hosp., 97 F.3d at 589 (finding 8(a)(1)

violation after determining company regularly, and over a period of time, allowed

non-union solicitations while prohibiting union solicitations); Montgomery Ward

& Co. v. NLRB, 692 F.2d 1115, 1123 (7th Cir. 1982) (concluding company

engaged in disparate enforcement of no-solicitation policy based on other

incidents where company allowed non-union solicitations).

      Albertson’s also contends the NLRB should not have relied on the events of


                                        -13-
1994 in assessing the disparate enforcement claim because Albertson’s settled a

section 8(a)(1) charge involving employee Dahl based on those events.

Albertson’s asserts that consideration of evidence relating to a settled charge

where the company made no admissions of wrongdoing effectively discourages

settlement. Once again, Albertson’s analysis misses the mark. The settlement

agreement entered into by Albertson’s involving alleged threats and reprisals

against employee Dahl was based on offenses entirely separate from those alleged

here. Indeed, the only testimony relating to those events that is relevant to the

case at hand is the fact that Albertson’s strictly enforced its no-solicitation policy

when Dahl requested to engage in union solicitation, an action that was not

unlawful at the time because no discriminatory enforcement was then alleged.

The NLRB appropriately relied on testimony concerning Dahl’s request as

evidence of an occasion of strict enforcement which does indicate discrimination

when viewed in the light of Albertson’s later willingness to tolerate Wehner’s

anti-union solicitations on company time. See, e.g., NLRB v. Southeastern

Stages, Inc., 423 F.2d 878, 880 & n.2 (5th Cir. 1970) (presettlement conduct may

be used as background evidence in support of a different violation).

      Finally, Albertson’s argues the ALJ ignored evidence that Albertson’s

routinely allowed Union President Johnson to speak with and solicit employees

during work time and that had the ALJ considered this evidence he could not have


                                          -14-
found disparate enforcement of the no-solicitation policy. While it is true that

Albertson’s apparently allowed Mr. Johnson considerable leeway in visiting

employees at the store during work time, it is undisputed that Mr. Johnson was

not himself an employee of Albertson’s. Albertson’s treatment of Mr. Johnson

thus does not demonstrate that Albertson’s did not engage in disparate

enforcement of its no-solicitation policy as between employees of the store. We

might be inclined to agree with Albertson’s had it demonstrated that Dahl and

Pesek were prohibited from soliciting in favor of the union only because their

actions were disrupting work. However, testimony in the record plausibly

supports the ALJ’s conclusion that the company was not motivated solely (if at

all) by concern for customer service. We therefore cannot say that the ALJ’s

view of the facts as indicating the company treated employees who engaged in

anti-union solicitations differently from those who engaged in pro-union and

other kinds of solicitations was unreasonable or insupportable. We affirm the

NLRB’s determination that Albertson’s violated section 8(a)(1) by engaging in

disparate enforcement of the no-solicitation policy.

      We next turn to Albertson’s claim that there is not substantial evidence to

support the NLRB’s determination that Albertson’s engaged in surveillance of

union activities in violation of section 8(a)(1). An employer “may observe public

union activity, particularly where such activity occurs on company premises,” but



                                        -15-
an employer violates section 8(a)(1) where company officials “do something ‘out

of the ordinary’” to keep union activities under watch. NLRB v. Southern

Maryland Hosp. Ctr., 916 F.2d 932, 938 (4th Cir. 1990) (quoting Metal Indus.,

Inc., 251 N.L.R.B. 1523 (1980)). Here, the NLRB adopted the ALJ’s finding that

Albertson’s engaged in surveillance by “allowing the open circulation of the

decertification petition in work areas on work time and then subsequently asking

Pesek, who was doing the same thing, what she was circulating, and then

confiscating and copying it.” Rec., vol. 3, ALJ Order at 17.

      Albertson’s cites several cases for the proposition that a company does not

engage in surveillance when an employee conducts solicitations in plain view on

the company’s premises. See, e.g., Aplt. Br. at 42 (citing Irving Tanning Co., 273

NLRB 6 (1984)). In this case, however, Albertson’s management did not merely

“observe” and order a halt to Pesek’s activities, but also confiscated her petition

and copied it. It is irrelevant that management later offered to return the petition

because it does not change the fact that management held the petition for a period

of several hours and made a copy of it. See, e.g., NLRB v. Intertherm, Inc., 596

F.2d 267, 273 (8th Cir. 1979) (finding unlawful surveillance where supervisor

merely took and looked at union authorization card without confiscating it).

Based on our review of the record, we are persuaded the ALJ’s conclusion that

such actions could tend to inhibit employees in the exercise of their protected



                                        -16-
rights, see Montgomery Ward, 692 F.2d at 1128, was reasonable and supported

by substantial evidence.

      We turn finally to Albertson’s assertion that the NLRB erroneously

concluded the July 1995 decertification petition was “tainted” by unfair labor

practices, thereby leading it to dismiss the petition. 7 The NLRB responds that it

did not find the petition tainted, that no such finding was required in order to find

Albertson’s had committed unfair labor practices, and that this court should not

review the disposition of the petition at this time. We agree with the NLRB.

      The NLRB’s decision does not include any finding that the decertification

petition was tainted by Albertson’s unfair labor practices, nor does it order the

dismissal of the decertification petition based on any alleged taint. Albertson’s


      7
       Albertson’s expends considerable effort arguing that the NLRB cannot
block an election without first applying the multi-factored Master Slack test, and
finding the decertification petition was tainted. But the numerous cases
Albertson’s cites for this proposition are inapposite. See, e.g., Williams Enter. v.
NLRB, 956 F.2d 1226 (D.C. Cir. 1996); Master Slack Corp., 271 NLRB 78, 84
(1984). The Master Slack line of cases is applied when an employer withdraws
recognition from or refuses to bargain with a certified union based on a
decertification petition, not when the NLRB declines to hold an election because
of unfair labor practices. The Master Slack test comes in to determine whether
the employer’s unfair labor practices tainted the decertification petition, or
whether the employer acted in good faith and should be allowed to rely on it in
refusing to bargain with the union. See, e.g., NLRB v. D & D Enter., Inc., 125
F.3d 200, 209 (4th Cir. 1997); Columbia Portland Cement Co. v. NLRB, 979 F.2d
460, 462-464 (6th Cir. 1992); Louisiana-Pacific Corp. v. NLRB, 858 F.2d 576,
579 (9th Cir. 1988). We have uncovered no case, and Albertson’s cites none,
applying the Master Slack “taint” analysis to a mere finding of disparate
enforcement.

                                        -17-
claims the NLRB in fact later suspended or dismissed the petition for a

decertification election according to its “blocking procedure.” 8 See generally,

John P. Luddington, Annotation, Unremedied Unfair Labor Practice Charge to

NLRB Election as Ground for Postponing Election (“Blocking Charge”

Procedure), 18 A.L.R. F ED . 420 (1974). We note that courts have approved the

blocking procedure as properly within the NLRB’s statutory authority to conduct

representation elections and have held that a “blocking” decision falls under the

NLRB’s authority to oversee representation proceedings. See, e.g., Bishop v.


      8
         According to the NLRB’s Casehandling Manual:
         The agency has a general policy of holding in abeyance any
       representation case . . . or union deauthorization . . . case where
       pending unfair labor practice charges filed by a party to the
       [representation or union deauthorization] cases are based upon
       conduct of a nature which would have a tendency to interfere with
       the free choice of the employees in an election, were one to be
       conducted on the petition.
NLRB Casehandling Manual ¶ 11730 (last modified Aug. 19, 1998)
<http://www.nlrb.gov/chm2.html>.
       Although not formally authorized by statute or regulation, the NLRB has
followed this procedure since 1937. See Bishop v. NLRB, 502 F.2d 1024, 1028
(5th Cir. 1974) (citing U.S. Coal & Coke, 3 NLRB 398 (1937)). It does so on the
theory that since unfair labor practices may prevent a fair election, which would
require the election to be set aside, it is best simply to suspend action on a
representation question during the pendency of an unfair labor practice charge and
for as long as the violation remains unremedied. See id. at 1028-29; 1 T HE
D EVELOPING L ABOR L AW 392-93 (Patrick Hardin, et al., eds., 3d ed. 1992). The
employees who support decertification may circulate another petition once “the
union has had an opportunity to operate free from the employer’s unfair labor
practices.” Bishop, 502 F.2d at 1029; see also Luddington,18 A.L.R. F ED . at 443
(noting that once an employer fully complies with an NLRB order, new
decertification proceedings are not blocked).

                                        -18-
NLRB, 502 F.2d 1024, 1028-29 (5th Cir. 1974); Furr’s Inc. v. NLRB, 350 F.2d

84, 86 (10th Cir. 1965); Pacemaker v. NLRB, 260 F.2d 880, 882 (7th Cir. 1958);

Spark’s Nugget, Inc. v. Scott, 583 F. Supp 78, 80 & n.5 (D. Nev. 1984). It is thus

unreviewable absent “a plain violation of an unambiguous and mandatory

provision of a statute.” Leedom v. Kyne, 358 U.S. 184 (1958); see also Bishop,

502 F.2d at 1027 (noting that committing such decisions to the NLRB’s discretion

comports with Congress’s determination that “the NLRB, and not the courts, is to

be the umpire in representation disputes.”)

      Because we uphold the Board’s finding of unfair labor practices, we are not

in a position to “unblock” the decertification election if, in fact, it was blocked.

Cf. Bishop, 502 F.2d at 1029. The NLRB’s decision whether to hold an election

based on the decertification petition is discretionary. Even so, we suggest that

any harm to employees seeking decertification resulting from the blocking of the

petition is slight in that employees are free to file a new petition so long as it is

circulated and signed in an environment free of unfair labor practices.



                                          III.

      We AFFIRM the NLRB’s decision finding that Albertson’s engaged in

unfair labor practices and ENFORCE the NLRB’s order.




                                          -19-
