P.S.K. Supermarkets, Inc.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 349 NLRB No. 6 34 P.S.K. Supermarkets, Inc. and United Food and Commercial Workers, Local 342. Cases 29–CA– 26862, 29–CA–26983, and 29–CA–27186 January 22, 2007 DECISION AND ORDER BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN AND WALSH On August 23, 2006, Administrative Law Judge How- ard Edelman issued the attached decision. The General Counsel filed exceptions and a supporting brief, and the Respondent filed an answering brief. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and the record in light of the exceptions1 and briefs and has decided to affirm the judge’s rulings, findings, and conclusions as modified, and to adopt the recommended Order as modi- fied and set forth in full below. Contrary to the judge, we find that the Respondent vio- lated Section 8(a)(1) by posting an overly broad rule that interfered with employees’ right to wear union buttons, by directing employees to wear union buttons inside their 1 No exceptions were filed to the judge’s findings that the Respon- dent violated Sec. 8(a)(1) when: (1) Vice President Noah Katz coer- cively interrogated employee Luis Rodriguez in November 2004; (2) Manager Tony Rosado coercively interrogated Rodriguez in March 2005; (3) Katz solicited employees’ grievances in April 2005; (4) Man- agers Rosado and Sheryce Hodges asked employees to inform union organizers that they did not want representation; (5) Manager Hodges initiated two antiunion petitions and solicited employees to sign them; (6) Manager Kathy Mahoney snatched a union handbook and cards from Rodriguez; (7) Katz coercively interrogated a group of employ- ees; and (8) Katz unlawfully promised benefits to employees. Also, no exceptions were filed to the judge’s dismissal of an allegation that the Respondent violated Sec. 8(a)(1) by directing nonemployee union organizers to stop soliciting in the “shopping cart corral area.” Because, as stated above, we have found three instances of unlawful interrogation to which the Respondent did not except, we find it unnec- essary to pass on the General Counsel’s exception to the judge’s failure to find that Manager Mahoney unlawfully interrogated employee Rod- riguez on another occasion in March or April 2005. Also, having found that the Respondent, through Manager Hodges, violated Sec. 8(a)(1) by initiating two antiunion petitions, and by soliciting employees to sign them, we find it unnecessary to pass on the General Counsel’s excep- tion to the judge’s failure to find that Manager Mahoney participated in this violation. Any such findings of violations would be cumulative and would not affect the remedy. The General Counsel excepts to the judge’s findings that: (1) Rod- riguez placed incorrectly low price tags on merchandise; (2) the Gen- eral Counsel issued a complaint regarding Rodriguez’ termination; (3) Rodriguez declined a reinstatement offer; and (4) the Respondent pro- vided backpay to Rodriguez. Although the General Counsel excepts to these findings, he supports the judge’s finding that Rodriguez was credible. The Respondent does not urge that this latter finding be re- versed. Because these factual findings are not germane to any legal conclusion in this case, we find it unnecessary to pass on the General Counsel’s exceptions in this regard. uniforms only, by creating an impression of unlawful surveillance, and by directing employees not to be seen speaking with union agents. I. THE OVERLY BROAD RESTRICTION ON WEARING BUTTONS The Respondent operates a grocery store. It employs cashiers, clerks in the deli, bakery, meat, and produce departments, and stock clerks. These employees have significant contact with the store’s customers. The Re- spondent requires employees to wear company-issued uniforms. The parties stipulated that, on March 22, 2005,2 the Respondent posted a memo on a company bulletin board. In the memo, the Respondent prohibited employees from wearing buttons other than those issued by it. The memo said, in relevant part: At this time, we would like to remind you of a few dress code issues that we need to adhere to. The com- pany expects all associates to follow our dress code policy. . . . . No pins or buttons other than those issued by Food- town to promote our programs such as Fresh Friendly, and Rewards, etc. . . . . You may run the risk of being sent home for the day if you do not follow this policy. If the problem persists with the same associates, further disciplinary action could ensue. The memo remained posted on the bulletin board for approximately 10 days, until April 1. The complaint alleged that, “[o]n about March 22, 2005, Respondent, at its Brooklyn facility, posted an overly broad rule restricting employees from wearing Union paraphernalia” in violation of Section 8(a)(1). The judge failed to address this allegation, and the Gen- eral Counsel filed an exception. For the following rea- sons, we find that the Respondent violated Section 8(a)(1) by posting the March 22 memo. Absent special circumstances, Section 7 entitles em- ployees to wear union insignia, including union buttons, in the workplace. Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945); Nordstrom, Inc., 264 NLRB 698, 700 (1982). The burden is on the respondent to prove the existence of special circumstances that would justify a restriction. W San Diego, 348 NLRB 372, 372 (2006). 2 All dates are in 2005 unless noted otherwise. P.S.K. SUPERMARKETS 35 Special circumstances include situations where display of union insignia might “jeopardize employee safety, damage machinery or products, exacerbate employee dissension, or unreasonably interfere with a public image that the employer has established, as part of its business plan, through appearance rules for its employees.” Bell- Atlantic-Pennsylvania, 339 NLRB 1084, 1086 (2003), enfd. 99 Fed. Appx. 233 (D.C. Cir. 2004), citing Nord- strom, Inc., 264 NLRB at 700. The Board has consis- tently held that customer exposure to union insignia, standing alone, is not a special circumstance which per- mits an employer to prohibit display of such insignia. Meijer, Inc., 318 NLRB 50 (1995), enfd. 130 F.3d 1209 (6th Cir. 1997); Nordstrom, Inc., 264 NLRB at 700. Nor is the requirement that employees wear a uniform a spe- cial circumstance justifying a button prohibition. United Parcel Service, 312 NLRB 596, 596–598 (1993), enf. denied 41 F.3d 1068 (6th Cir. 1994). Finally, the fact that the prohibition applies to all buttons, not solely un- ion buttons, is not a special circumstance. Harrah’s Club, 143 NLRB 1356, 1356 (1963), enf. denied 337 F.2d 177 (9th Cir. 1964); Floridan Hotel of Tampa, 137 NLRB 1484 (1962), enfd. as modified 318 F.2d 545 (5th Cir. 1963). Here, we find that the Respondent has failed to satisfy its burden of proving that special circumstances justified its prohibition on the wearing of buttons. The Respon- dent appears to argue that its button prohibition was jus- tified because its employees have customer contact, they must wear uniforms, and the button prohibition is non- discriminatory. Based on the foregoing precedent, how- ever, these circumstances do not justify the Respondent’s complete ban on noncompany-issued buttons, which would encompass union buttons. Accordingly, we find that the Respondent violated Section 8(a)(1) by posting an overly broad prohibition against wearing buttons. II. DIRECTIVE TO WEAR PINS INSIDE UNIFORMS AND CREATION OF IMPRESSION OF SURVEILLANCE In about April 2005, Vice President Noah Katz held a meeting in the store’s office with several managers and employees, including employees Barbara Chalk and Luis Rodriguez. After the meeting, Manager Kathy Mahoney stopped Chalk and Rodriguez as they were returning to work. Mahoney told the two employees that they must wear union pins on the inside of their uniforms.3 She also told them not to sign union cards and that she was 3 The record does not contain any evidence that Rodriquez or Chalk was wearing any button when Mahoney uttered this statement. “always outside taking a smoke break and she can al- ways see somebody and who they’re talking with.”4 We find that Mahoney’s statements to Chalk and Rod- riguez violated Section 8(a)(1) in two respects.5 First, Manager Mahoney’s oral directive that these employees wear pins only on the inside of their uniforms is unlaw- fully overbroad. As with the March 22 memo, discussed above, Mahoney’s directive restricted Chalk’s and Rod- riguez’ Section 7 right to wear union buttons at work and was not justified by special circumstances. We also find that the directive was facially discriminatory because it restricted the wearing of only union buttons.6 Additionally, we find that the Respondent created an impression of unlawful surveillance when Mahoney told Chalk and Rodriguez not to sign union cards and that she was “always outside taking a smoke break and she can always see somebody and who they’re talking with.” As Board precedent makes clear, “[t]he idea behind finding ‘an impression of surveillance’ as a violation of Section 8(a)(1) of the Act is that employees should be free to participate in union organizing campaigns without the fear that members of management are peering over their shoulders, taking note of who is involved in union activi- ties, and in what particular ways.” Flexsteel Industries, 311 NLRB 257, 257 (1993). Here, Mahoney warned employees not to sign union cards and immediately thereafter stated that she can always observe employees’ outdoor conversations. In context, employees would reasonably interpret Mahoney’s comments as creating the impression that their union activities were under sur- veillance. Consequently, we find that Mahoney’s com- ments violated Section 8(a)(1).7 4 Witness Louis Rodriguez, whom the judge found “entirely credi- ble,” testified that Manager Mahoney uttered this statement and the additional statement, described below, in which Mahoney warned Rod- riguez and Chalk not to be seen speaking with anyone from the Union. Based on Rodriguez’ credited testimony, we find that Mahoney uttered these statements. 5 There is no allegation concerning the instruction not to sign union cards. 6 Chairman Battista agrees with his colleagues that Manager Ma- honey’s directive was facially discriminatory and that it therefore vio- lated Sec. 8(a)(1). He need not and does not address whether the direc- tive was also unlawfully overbroad. 7 Contrary to the judge’s finding, the fact that the union activity on the Respondent’s premises had been open and easily observable is not dispositive. Mahoney did not say that she had observed open union activity in the normal course of her duties. Instead, she told Chalk and Rodriguez not to sign union cards and implied that she would be ob- serving the people with whom employees spoke. In our view, an em- ployee would reasonably fear that Mahoney would spy on their future union activities, open or not. The General Counsel excepts to the judge’s failure to find that the Respondent created an impression of unlawful surveillance in violation of Sec. 8(a)(1) when Manager Mahoney told employee Rodriguez that “she was watching [him] through the glass” and “not to be seen speak- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 36 III. ORAL DIRECTIVE TO NOT BE SEEN SPEAKING WITH UNION AGENTS In March or April, employee Rodriguez spoke with Union Agent Khris Diaz in front of the Respondent’s store. Diaz gave Rodriguez a union handbook and some union cards. When Rodriguez returned to the deli de- partment, Manager Mahoney stopped him and told him not to be seen speaking with anyone from the Union. We find that the Respondent’s directive to Rodriguez not to be seen speaking with anyone from the Union in- terfered with, restrained, and coerced him in the exercise of Section 7 activity. See Airport 2000 Concessions, LLC, 346 NLRB 958 (2006) (employer violated Sec. 8(a)(1) by directing employees not to speak with union organizers). ORDER The National Labor Relations Board adopts the rec- ommended Order of the administrative law judge as modified and set forth in full below and orders that the Respondent, P.S.K. Supermarkets, Inc., Brooklyn, New York, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Coercively interrogating its employees concerning their union activities. (b) Initiating an antiunion petition or soliciting its em- ployees to sign such a petition. (c) Soliciting grievances from employees and impli- edly promising to remedy them. (d) Confiscating union handbooks, union cards, or other union materials. (e) Promising benefits, including a 401(k) plan and medical benefits, to induce its employees to refrain from joining and supporting a union. (f) Posting or otherwise maintaining an overly broad rule that prohibits employees from wearing union buttons. (g) Directing employees to wear union buttons on the inside of their uniforms. (h) Directing employees not to be seen speaking with union agents. (i) Creating an impression that it has placed or will place its employees’ union activities under surveillance. (j) 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 action necessary to effectuate the policies of the Act. ing with anyone from the Union,” and when Manager Rosado told Rodriguez that he had observed Rodriguez on a video monitor speaking with a union agent and that he should not be seen doing so. We find it unnecessary to pass on these allegations as the findings sought by the General Counsel would be cumulative and would not affect the remedy. (a) Within 14 days after service by the Region, post at its facility in Brooklyn, New York, copies of the attached notice marked “Appendix.”8 Copies of the notice, on forms provided by the Regional Director for Region 29, after being signed by the Respondent’s authorized repre- sentative, shall be posted by the Respondent and main- tained for 60 consecutive days in conspicuous places, including all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Re- spondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall du- plicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since November 2004. (b) 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. IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges violations of the Act not specifically found. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board had 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 coercively interrogate our employees concerning their union activities. WE WILL NOT initiate an antiunion petition or solicit you to sign such a petition. 8 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted by Order of the Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” P.S.K. SUPERMARKETS 37 WE WILL NOT solicit your grievances or impliedly promise to remedy those grievances. WE WILL NOT confiscate union handbooks, union cards, or other union materials. WE WILL NOT promise benefits, including a 401(k) plan and medical benefits, to induce you to refrain from joining and supporting a union. WE WILL NOT post or otherwise maintain an overly broad rule that prohibits you from wearing union buttons. WE WILL NOT direct you to wear union buttons on the inside of your uniforms. WE WILL NOT direct you not to be seen speaking with union agents. WE WILL NOT create an impression that we have placed or will place your union activities under surveillance. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. P.S.K. SUPERMARKETS, INC. Tabitha Tyle, Esq., for the General Counsel. Steven Glassman, Esq. (Grotta, Glassman & Hoffman), for the Respondent. Ira Wincott, Esq., for the Union DECISION STATEMENT OF THE CASE HOWARD EDELMAN, Administrative Law Judge. This case was tried in Brooklyn, New York, on January 17 and 18, 2006. A consolidated complaint issued on October 27, 2005, alleging various 8(a)(1) violations against P.S.K. Supermarkets, Inc. (the Respondent). In addition, the complaint was amended dur- ing the trial, alleging that Respondent circulated an antiunion petition indicating “that employees could not support the Un- ion,” and thereafter “solicited employees signatures” in March and June 2005. Respondent filed timely answers to the allegations in the complaints. Respondent admitted commerce allegations, the status of the Union, the status of supervisors within the mean- ing of Section 2(11) of the Act, but denied the status of an al- leged agent within the meaning of Section 2(13) of the Act. Respondent also denied all alleging Section 8(a)(1). I. FINDINGS OF FACT At all material times, Respondent, a domestic corporation with a supermarket located at 1420 Fulton Street, Brooklyn, New York (Bed Stuy facility), is engaged in the operation of retail supermarkets. During the past year, which period is repre- sentative of its annual operations generally, Respondent, in the course and conduct of its operations described above, derived gross annual revenues in excess of $500,000. During the past year, which period is representative of its annual operations generally, Respondent, in the course and conduct of its business operations described above, purchased and received at its New York facilities, products and goods valued in excess of $5000 directly from suppliers outside the State of New York. It is admitted that at all material times, Respondent has been an employer engaged in commerce within the meaning of Sec- tion 2(2), (6), and (7) of the Act. It is also admitted that Local 338, Retail, Wholesale and De- partment Store Union/United Food and Commercial Workers Union, AFL–CIO (Local 338), and United Food and Commer- cial Workers Union, Local 342 (Local 343), are labor organiza- tions within the meaning of Section 2(5) of the Act. It is also admitted that at all times material, the following indi- viduals have held positions set forth opposite their names and have been agents of Respondent, acting on its behalf, and are supervisors thereof within the meaning of Section 2(11) of the Act. Noah Katz Vice President Tony Rosado Store Manager Kathy Mahoney Front-end Manager Shane Tranquada Deli Manager II. CREDIBILITY RESOLUTIONS I find General Counsel’s main witness, Luis Rodriguez, a former employee, entirely credible. His testimony covered all of the allegations set forth in the complaint, except those unfair labor practices concerning the activities of the outside union organizers. Rodriguez’ demeanor was excellent. He was ex- tremely responsive both on direct and cross-examination. His testimony was very detailed to all questions put to him on direct and cross-examination. His cross-examination was generally consistent with his direct-examination. Examples of such testi- mony will be set forth below. Counsel for Respondent contends that Rodriguez was preju- diced against Respondent because he had been terminated for “stealing” during the course of the union campaign. Respondent witnesses testified that the so-called “stealing” was that he put price tags in the isles that were lower in price than they should have been. There is no evidence that he had made such mistake before or any mistake during his employment. Moreover, an unfair labor practice charge was filed with the Board, a com- plaint issued alleging that his discharge was in violation of Section 8(a)(1) and (3) of the Act. The unfair labor practice was settled with Respondent offering reinstatement, which was declined, and Rodriguez given backpay. Therefore, I find that Rodriguez was a neutral and extremely credible witness. In Detroit Newspapers, 342 NLRB 223, 235 (2004), the judge found Ellis to be a credible witness and stated that “his direct testimony was clear and straightforward and consistent with the affidavit he gave. . . . Cross-examination did nothing to shake his story or raise any doubts as to his veracity.” See also Dalton Roofing Service, 344 NLRB 870 (2005). The Board affirmed the judge that Aguilar was a credible witness even though his recollection was not always clear. On cross- examination and in response to consistent prodding by Counsel, Aguilar was generally consistent with his direct examination. See also, Richard Mellow Electrical Contractors Corp., 327 NLRB 1112, 1125 (1999). On the other hand, the evidence, as set forth below estab- lishes conclusively that the admitted 2(11) supervisors were working along with Noah Katz, Respondent’s vice president in DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 38 a coordinated antiunion campaign to keep the Brooklyn facility nonunion. All of Respondent’s witnesses essentially denied the allegations described in the complaint. I find their testimony is essentially incredible, as set forth below. Accordingly, I find Respondent’s witnesses are not credible. On November 15, 2004, Local 338 filed an RC petition seek- ing to represent employees at the Bed Stuy store. Respondent contended that the Bed Stuy store employees constituted an accretion to the preexisting multistore bargaining unit and that the agreement covered the Bed Stuy store employees, including the 2(11) supervisors, set forth above. A hearing was held. The parties stipulated at the hearing that the voting unit classifica- tion included department managers, assistant managers, cash- iers, stock clerks, and bookkeepers. Thus, Rosado, Mahoney, Tranquada, and Hodges, the admitted 2(11) supervisors, were included in the voting unit. The Regional Director in a Decision and Direction of Election, rejected the Respondent’s argument and found that the single-store unit in the above classifications was appropriate and directed that an election be held. On March 21, 2005, Local 338 withdrew its RC petition, and thereafter ceased further organizational activities. Respondent’s facility is located in a plaza called Restoration Plaza. The main entrances of the various retail stores are inside the plaza area. The lease between Respondent’s Bed Stuy facil- ity and the RDC Commercial Center Inc., the lessor, states that Respondent’s facility includes the store building and the shop- ping cart corral area. It is admitted that potential customers and other individuals simply use the shopping cart corral area as a shortcut between Herkimer Street and Fulton Street. I find that the shopping cart corral area is part of Respondent’s total leased premises. In this decision, I have included Respondent’s Exhibit 2, which is an evacuation plan that I find to be an accurate over- view of Respondent’s facility in context with the Plaza. One can see the various shelf areas where food products can be se- lected by the customer and the cashier tables where customers pay for their goods. The cashiers’ tables are exposed to win- dows which look out on the shopping cart corral area. There is a fence parallel to the cashier windows, which is the shopping cart corral area. There is an opening in the gate so that custom- ers can take out their goods. Respondent admits that that there is no objection to noncustomers using the shopping cart corral as a shortcut between Herkimer and Fulton Street. Counsel for the General Counsel contends that Rosado, the store manager, told the above-union organizers that they could not solicit anywhere in the Plaza. In this connection Rosado, was called as a witness for Respondent. Rosado credibly testified that he observed on numerous oc- casions that Local 342 Organizers Augustus Whitt and Khristo- pher Diaz were in the shopping cart corral area soliciting em- ployees for Local 342, and that he asked them to leave the area, which they did. Although I find Rosado not to be a credible witness as to his other testimony, I do credit his testimony in this area because it is the most logical and only convenient area in which to organize. There is no evidence that Respondent permitted other or- ganizations to use its property for commercial or nonprofit organizations. If such were the facts in the instant case the Board would apply a “disparate treatment analysis.” See Great Scot, Inc., 309 NLRB 548, 549 (1992), and Price Chopper, 325 NLRB 186 (1997). Accordingly, I find that the Union was not entitled to organ- ize in and around the shopping cart corral area. I further find that Respondent’s policy of permitting noncustomer individuals to use the shopping cart corral area as a shortcut between Her- kimer and Fulton Streets is irrelevant. General Counsel contends that Respondent engaged in unlawful surveillance of union activities. The evidence estab- lishes that the only areas where the Local 342 representatives spoke or met with employees, were inside Respondent’s store, where Rodriguez spoke to a female union organizer, and in and around the shopping cart corral area. Respondent was easily able to observe the Union’s outside activities by simply looking out the front cashier windows (see R. Exh. 2, the overhead view), or taking smoke breaks in and around the shopping cart corral area. In Hoschton Garment Co., 279 NLRB 565, 567 (1986), the Board has held that organizers and employees who choose to engage openly in union activities in and around the employers premises cannot contend that the employer is engaged in unlawful surveillance. In footnote 5 on page 567, a line of cases is cited to support this decision. In Tarrant Mfg. Co., 196 NLRB 794, 799 (1972), the Board adopted the administrative P.S.K. SUPERMARKETS 39 law judge’s decision which stated, “The notion that it is unlaw- ful for a representative of management to station himself on management’s property to observe what is taking place at the plant gate is too absurd to warrant comment.” Accordingly, I conclude that Respondent has not engaged in unlawful surveillance, or created the impression of unlawful surveillance. It is alleged that Respondent applied an overly broad rule re- stricting employees from displaying union pins on their uni- form. Rodriguez testified that Kathy Mahoney, a 2(11) supervisor, told a unit employee, Barbara Chalk and himself that they would have to wear union pins on the inside of their white uni- form coat. Chalk did not testify. Rodriguez testified that he always wore a long white robe with a name tag, but he did not wear a union pin. Katz testified Respondent has a dress code because of its de- sire to convey a neat and clean image to the public. Katz also testified that on an annual basis, Respondent posts in all of its stores a dress code reminder to all employees. This posting states in pertinent part: Part of Quality and Freshness comes from shoppers seeing their food handled and prepared by Associates in a clean neat uniform that includes the company’s logo and/or slo- gan. Therefore, as we have been doing in the past, all asso- ciates will be supplied with the appropriate garments based on the standards below. We appreciate your help setting and raising these standards and making Foodtown a great place for our customers to shop. You are the one’s that make Foodtown the ‘Fresh and Friendly Marketplace.’ We could not do it without you. Cashiers are required to wear a blue smock which must be buttoned. Cashiers are also required to wear a name badge which is pinned on the smock above the “Fresh and Friendly” logo. The name badge and “Fresh and Friendly” logo must be visible at all times to the customers. PSK is reasonable in its application of the dress code policy. Mahoney testified that she did ask a cashier, Barbara Chalk, on one occasion to remove her union pin because it was cover- ing her name badge and the “Fresh and Friendly” logo. Chalk did not testify. Based on the above, I conclude that there is insufficient evi- dence to establish discrimination in connection with wearing union pins or other union insignia. During the course of this trial, the General Counsel moved to amend the complaint paragraph 7 to read as follows: “In or about November 4, 2004, a more precise date being presently unknown, Respondent, by Noah Katz, at the Brooklyn facility interrogated employees regarding their support for Local 338.” The amendment was granted. The Decision and Direction of Election, pursuant to a stipu- lation between Respondent and Local 338, found the appropri- ate unit as follows: All full-time and regular part-time employees, including cash- iers, stock clerks, assistant managers, bookkeepers, depart- ment managers and department clerks, employed by the Em- ployer at its 1420 Fulton Street, Brooklyn, New York, facility, but excluding confidential employees, guards and supervisors as defined in the Act. As set forth above, Respondent admits that Noah Katz, Respon- dent’s vice president; Tony Rosado, store manager; Kathy Ma- honey, front-end manager, and Shane Tranquada, deli manager, are supervisors within the meaning of Section 2(11) of the Act. Respondent denies that Sheryce Hodges, customer relations manager, is not a supervisor or agent as defined in Section 2(13) of the Act. Respondent contends that Rosado, Mahoney, Tranquada, and Hodges are unit employees, as set forth above, in the Decision and Direction of Election. Respondent further contends that conduct by such unit su- pervisors is not attributable to Respondent. The Board has long held that conduct by a supervisor who has been included in the bargaining unit by the parties generally is not attributable to his employer, absent evidence that the employer encouraged, authorized, or ratified the supervisor’s conduct. See Montgomery Ward & Co., 115 NLRB 645, 647 (1956), enfd. 242 F.2d 497 (2d Cir. 1957), cert. denied 355 U.S. 829 (1957); AT & K Enterprises, 264 NLRB 1278 (1982); and Bennington Iron Works, 267 NLRB 1285 (1983). Rodriguez, a credible witness, as described above, testified that on or about late November 2004, Katz introduced himself to Rodriguez. At this time Rodriguez was working in the deli department. Present with Katz was Shane Tranquada, an admit- ted 2(11) supervisor, who Respondent contends is a bargaining unit employee. Katz asked Rodriguez whether he had spoken to anyone from Local 338 and asked if he had signed a union card. Rodriguez admitted that he signed a Local 338 card. Both Katz and Tranquada denied such conversation took place. As set forth above, I find Respondent’s witnesses are not credible witnesses. Under Rossmore House, 269 NLRB 1176 (1984), affd. 760 F.2d 1006 (9th Cir. 1985), the test for determining whether an interrogation violates the Act is not a per se one, but rather, whether, under the totality of the circumstances, the interroga- tion restrains, coerces, or interferes with rights under the Act. Some of the areas one must look to are the background, the nature of information sought, the identity of the questioner, and the place and method of interrogation. Sunnyvale Medical Clinic, 277 NLRB 1217 (1985). In Marriott Corp., 310 NLRB 1152, 1157 (1993), a similar interrogation, as the one in issue, took place which was found to be a violation of Section 8(a)(1). The interrogator was a high level official of Marriott Corp., the individual questioned was alone, and the interrogator failed to give any assurances that no reprisals would be taken. Accordingly, I find that Katz’ interrogation was a violation of Section 8(a)(1) of the Act. Moreover, Tranquada’s presence with Katz establishes that she was acting as an agent of Re- spondent, rather then a bargaining unit supervisor. Rodriguez testified that sometime in or about March 2005 at the customer service desk waiting to get his paycheck, Store Manager Rosado asked him if he had spoken to any Local 338 representative and whether he had signed a Local 338 card. Rosado then stated that he would have taken what Noah was DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 40 offering as against what Local 338 was offering. As set forth below, I find Rosado was acting as an agent for Respondent, and find such conduct to be an unlawful interrogation, in viola- tion of Section 8(a)(1). Rossmore House, supra. Shortly thereafter, sometime in April, Rodriguez credibly testified that Katz addressed the employees in the deli depart- ment. He came over and asked us how everyone was doing. He told us that if anyone needed to get in contact with him, or had any problem, he was available day or night. Several days later he then posted up cards with his website, cell phone, and fax machine number at various locations throughout the store. Rodriquez credibly testified that prior to the Local 342 organiz- ing campaign, such cards never existed. I find such conduct to be an unlawful solicitation of grievances in violation of Section 8(a)(1) of the Act. Desert Toyota, 346 NLRB 118, 126 (2005). Shortly after the unlawful solicitation of grievances de- scribed above, Rosado and Sheryce Hodges, customer rela- tions manager, and an alleged agent, approached Rodriguez and asked him if he would get together with a group of em- ployees and tell the Local 342 union organizers outside the store that they didn’t want a union to represent them. Rodri- guez declined. I have concluded that Rosado was a supervisor and agent of Respondent, and Hodges, who accompanied him was by such action, an agent of Respondent. I find the activi- ties of Rosado and Hodges constitute an unlawful solicitation of employees to abandon their union activities and oppose the Union in violation of Section 8(a)(1). See Progressive Elec- tric, Inc., 344 NLRB 426, 427 (2005), citing Dentech Corp., 294 NLRB 929 (l989), and Eastern States Optical Co., 275 NLRB 371, 372 (1985), which states: “It is unlawful for an employer to collectively initiate or solicit a petition or letter opposing unionization.” Shortly after the above solicitation, Hodges admitted during Respondent’s direct case that she and Kathy Mahoney prepared an antiunion petition which stated, “We, the workers . . . do not want to be members of Local 342 or any other union.” Hodges thereafter approached the employees, asked them to sign the petition, and accumulated 100 employee signatures. Thereafter she turned over this petition to one of the admitted statutory supervisors. She could not recall the specific individual. I find Hodges’ testimony to be an admission, and an unlawful solici- tation, in violation of Section 8(a)(1) of the Act. See Progres- sive Electric, supra. Either before or after the unlawful solicitation described im- mediately above, Hodges admittedly engaged in the same con- duct with another petition. For the same reasons described above, I find such conduct to be an unlawful solicitation in violation of Section 8(a)(1) of the Act. See Progressive Elec- tric, supra. Shortly after the unlawful solicitations, described above, Rodriguez credibly testified that he was talking to Union Or- ganizer Diaz outside the store, by the shopping cart corral, in front of the cashier windows. Diaz gave him a union handbook and five union cards. The handbook contained a list of benefits that the Union would seek if the parties entered into collective- bargaining negotiations. When he returned to work Mahoney asked for the handbook and before he could answer, she then snatched the handbook containing five blank union cards from him. In this connection General Counsel asked: Q. Did you give her the handbook? A. Yeah, yes and no. Q. Can you explain what you mean by “yes and no”? A. Before I actually could respond, she took the book from my hands and walked into the office. I find that by taking the union handbook and the union cards, Mahoney confiscated union materials in order to dissuade their support from the Union. I find such conduct is a violation of Section 8(a)(1) of the Act. See Phillips Fibers Corp., 307 NLRB 145, 148, 149 (1992). Several days after Mahoney had taken the union handbook from Rodriguez, Katz called a number of employees to meet with him in his office. Present with him were Rosado and Ma- honey. Rodriguez credibly testified that Katz asked the em- ployees whether any of the employees had spoken with, or signed a card for the Local 342. As set forth above, I find such conduct constitutes unlawful interrogation in violation of Sec- tion 8(a)(1) of the Act. Rossmore House, supra. Katz then took out the union handbook taken from Rodri- guez by Mahoney and began comparing what he would be will- ing to give against the Local 342’s proposals. He urged the employees not to join the Union, because it would slow down the process of giving a 401(k) plan and medical benefits. I find by such conduct Respondent promised a 401(k) plan and medi- cal benefits. I find that the promise of such benefits were an inducement to refrain from supporting the Union and a viola- tion of Section 8(a)(1) of the Act. Stanadyne Automotive Corp., 345 NLRB 85, 93 (2005). “Under settled Board policy, a grant or promise of benefits during the critical preelection period will be considered unlawful unless the employer comes forward with an explana- tion, other than the pending election, or the timing of such ac- tion.” Honolulu Sporting Goods Co., 239 NLRB 1277, 1280 (1979) (citing The Singer Co., 199 NLRB 1195 (1972), enfd. mem. 620 F.2d 310 (9th Cir. 1980), cert. denied 449 U.S. 1034 (1980). “Similarly, an employer cannot time the an- nouncement of the benefit in order to discourage union sup- port, and the Board may separately scrutinize the timing of the benefit announcement to determine its lawfulness.” Mercy Hospital Mercy Southwest Hospital, 338 NLRB 545 (2002). “The standard for determining whether the timing of benefit announcement during the critical period is unlawful is essen- tially the same as the standard for determining whether the grant of benefit itself violates the Act.” Id. Thus, the Board will infer that an announcement or grant of benefits during the critical period is coercive. However, an employer may dem- onstrate a legitimate business reason to rebut an inference of unlawfulness as to the grant of the benefit and/or the timing of its announcement. Southgate Village, Inc., 319 NLRB 916 (1995). Considering the entire course of conduct between Respon- dent and the unit employees, I find that Respondent encour- aged, authorized, and ratified the unit supervisors so as to lead employees reasonably to belief that the supervisors were acting P.S.K. SUPERMARKETS 41 for and on behalf of management. Montgomery Ward, supra. Accordingly, I conclude that the actions of the statutory super- visors, described above, were attributable to Respondent. As set forth above, Local 338 represented the employees of Respondent’s eight supermarkets for a period of 30 years.1 The decision, set forth above, found that the Bed Stuy store was not an accretion to Respondent’s eight retail stores. Shortly after the decision issued, Local 338 withdrew its pe- tition for election and ceased further organizational activities. Therefore, I find the Bed Stuy employees were not represented by any labor organization. Based on these facts, I also find the admitted 2(11) supervi- sors to be agents of Respondent and their actions attributable to Respondent. 1 The deli department employees were represented by Local 342. CONCLUSIONS OF LAW 1. The Respondent, P.S.K. Supermarkets, Inc., is an em- ployer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Local 338, Retail Wholesale and Department Store Un- ion/United Food and Commercial Workers Union, AFL–CIO, CLC and United Food and Commercial Workers Union, Local 342, are labor organizations within the meaning of Section 2(5) of the Act. 3. Respondent violated Section 8(a)(1) of the Act described below in the Order. REMEDY With respect to the 8(a)(1) violations, I shall recommend an Order requiring Respondent to cease and desist the conduct described below. [Recommended Order omitted from publication.]