TD Barton Food LLC d/b/a C-Town Supermarket

436 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 358 NLRB No. 56 TD Barton Foods LLC d/b/a C-Town Supermarket and United Food and Commercial Workers Un- ion, Local 328, AFL–CIO, CLC. Cases 01–CA– 061241, 01–CA–063902, and 01–CA–067404 June 13, 2012 DECISION AND ORDER MEMBERS HAYES, GRIFFIN, AND BLOCK On March 7, 2012, Administrative Law Judge Robert A. Ringler issued the attached decision. The Acting General Counsel filed a limited exception, a supporting brief, and a brief supporting the judge’s decision. 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 exception and briefs and has decided to affirm the judge’s rulings, findings, and conclusions1 and to adopt the judge’s recommended Order as modified below.2 AMENDED CONCLUSIONS OF LAW Substitute the following as Conclusion of Law 12 and renumber the subsequent conclusion accordingly. “12. The Respondent violated Section 8(a)(1) and (5) of the Act by unilaterally reducing the work hours of unit employees without prior notice to and bargaining with the Union during the period between August 2011 and the sale of its supermarket in November 2011.” AMENDED REMEDY In addition to the remedies provided for in the judge’s decision, we shall order the Respondent to make unit employees whole for any losses suffered as a result of unilaterally reducing their work hours. The make-whole remedy shall be computed in accordance with Ogle Pro- 1 The Respondent filed no exceptions to the judge’s decision. The Acting General Counsel filed only a limited exception, based on the judge’s failure to include provisions in the conclusions of law, remedy, recommended Order and notice addressing the uncontested finding that the Respondent violated Sec. 8(a)(5) by unilaterally reducing the work hours of unit employees. We shall make the requested changes. In all other respects, absent exceptions, we adopt pro forma the judge’s dis- position of the complaint’s allegations. Members Griffin and Block note that, although the Acting General Counsel raised the issue of the continued viability of Bethlehem Steel Co., 136 NLRB 1500 (1962), before the judge, no exception was filed based on the judge’s reliance on that precedent. Accordingly, the merits of Bethlehem Steel and its progeny is not an issue before the Board in this case. 2 In accordance with his dissenting view in Kadouri International Foods, Inc., 356 NLRB No. 148, slip op. at 1 fn. 1 (2011), Member Hayes would delete that portion of the judge’s recommended effects bargaining remedy requiring that the minimum backpay due employees should not be less than 2 weeks’ pay, without regard to actual losses incurred, and would limit the remedy only to those employees who were adversely affected by the Respondent’s unlawful action. tection Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), with interest at the rate prescribed in New Horizons, 283 NLRB 1173 (1987), compounded daily as prescribed in Kentucky River Medical Center, 356 NLRB 6 (2010), enf. denied on other grounds sub nom. Jackson Hospital Corp. v. NLRB, 647 F.3d 1137 (D.C. Cir. 2011). ORDER The National Labor Relations Board adopts the rec- ommended Order of the administrative law judge as modified below, and orders that the Respondent, TD Bar- ton Foods LLC d/b/a C-Town Supermarket, Pawtucket, Rhode Island, its officers, agents, successors, and as- signs, shall take the action set forth in the Order as modi- fied. 1. Substitute the following for 1(h), and reletter the subsequent paragraph. “(h) Failing and refusing to bargain in good faith with the Union by reducing the work hours of unit employees, without first affording the Union notice and a reasonable opportunity to bargain over their reduced work hours.” 2. Substitute the following for 2(c), and reletter the subsequent paragraphs. “(c) Make whole the unit employees for any losses suf- fered as a result of unilaterally reducing their work hours, in the manner set forth above in the remedy section of this decision.” 3. Substitute the attached notice for that of the admin- istrative law judge. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we 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 do anything that interferes with these rights. Specifically, WE WILL NOT fail and refuse to bargain collectively with the Union by failing to recognize it as the exclusive collective-bargaining representative of employees in the C-TOWN SUPERMARKET 437 following appropriate unit: all employees performing work covered under the 2008–2011 collective-bargaining agreement between TD Barton Foods LLC d/b/a C-Town Supermarket and the Union. WE WILL NOT refuse to provide the Union with request- ed information that is relevant and necessary to the per- formance of its duties as the exclusive representative of the unit. WE WILL NOT fail to bargain in good faith with the Un- ion concerning the effects on the unit of our decision to sell the supermarket. WE WILL NOT fail to bargain in good faith with the Un- ion by laying off unit employees, without first affording it notice and a reasonable opportunity to bargain about their layoffs. WE WILL NOT fail to bargain in good faith with the Un- ion by reducing the work hours of unit employees, with- out first affording it notice and a reasonable opportunity to bargain over their reduced work hours. WE WILL NOT discriminate against employees in regard to layoff, in order to discourage their membership and activities on behalf of the Union or any other labor or- ganization. WE WILL NOT refuse to bargain collectively with the Union by failing to remit dues and initiation fees re- quired by the collective-bargaining agreement, or by lay- ing off unit employees out of order, in violation of the collective-bargaining agreement’s layoff and seniority procedures. 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. WE WILL give the Union the information sought in its June 24 and November 10, 2011 letters. WE WILL, upon request, bargain in good faith with the Union about the effects on unit employees of our deci- sion to sell the supermarket and lay off unit employees. WE WILL pay to the unit employees their normal wages, with interest, for the period of time described in the “Remedy” section of the administrative law judge’s deci- sion, as adopted by the Board. WE WILL make the unit employees whole, with interest, for any losses suffered as a result of unilaterally reducing their work hours. WE WILL make Juan Gomez, Nelson L. Gomez, Miguel Orellana, Julio V. Sierra, Geraldo Nolasco Maldonado, Carlos David Santos, Maria Ramirez, Gillermina Ve- nancia Ramos, and Isabel Gomes whole, with interest, for any loss of pay caused by of their unlawful layoffs. WE WILL remit to the Union dues and initiation fees re- quired by the collective-bargaining agreement, with in- terest on these sums, for the period running from April 30 to July 31, 2011. TD BARTON FOODS LLC D/B/A C-TOWN SUPERMARKET Elizabeth Vorro, Esq., for the Acting General Counsel. Christopher Bijesse, Esq. (Law Office of Christopher Bijesse), for the Respondent. Betsy Ehrenberg, Esq. (Pyle Rome Ehrenberg PC), for the Charging Party. DECISION STATEMENT OF THE CASE ROBERT A. RINGLER, Administrative Law Judge. On De- cember 13, 2011, this case was heard in Cranston, Rhode Is- land. On July 14, 2011, the original charge in this proceeding was filed by the United Food and Commercial Workers Union, Local 328, AFL–CIO, CLC (the Union) against TD Barton Foods LLC d/b/a C-Town Supermarket (TD Barton or the Re- spondent).1 The Union represented a bargaining unit of service employees (the unit), who were employed by TD Barton at its Pawtucket, Rhode Island supermarket, prior to the store being placed under a receivership and liquidated. On December 12, 2011,2 a second amended complaint is- sued, which alleged, inter alia, that TD Barton violated Section 8(a)(1), (3), and (5), and 8(d), of the National Labor Relations Act (the Act) by: advising unit employees that they were no longer unionized; unilaterally laying off unit employees and reducing their weekly work hours; laying off employees due to their union activities; failing to recognize the Union or meet to negotiate a successor agreement; failing to abide by the collec- tive-bargaining agreement by violating its dues deduction, sen- iority and layoff provisions; failing to furnish relevant infor- mation to the Union; and failing to notify the Union regarding the sale of its business or bargain over the effects. In its an- swer, TD Barton denied any unlawful action.3 On the entire record, including my observation of the de- meanor of the witnesses, and after considering the parties’ briefs,4 I make the following FINDINGS OF FACT I. JURISDICTION At all material times, TD Barton, a corporation, with an of- fice and place of business in Pawtucket, Rhode Island operated a supermarket. Annually, in conducting such operations, it derived gross revenues exceeding $500,000, and purchased and received at the supermarket goods valued in excess of $5000 directly from points located outside of Rhode Island. As a result, it admits, and I find, that it was an employer engaged in 1 I find that the underlying charges, and connected amendments, were properly filed and served. 2 All dates herein are in 2011, unless otherwise indicated. 3 The answer was filed and admitted at the hearing. See (GC Exh. 1(z)). 4 The Union did not file a posthearing brief. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 438 commerce within the meaning of Section 2(2), (6), and (7) of the Act. It further admits, and I find, that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. Background The majority of the controlling facts herein are undisputed. On September 6, 2007, the Union was certified by the National Labor Relations Board (the Board) to represent the unit. At that time, the supermarket was owned by JD Food Corp. The parties consequently negotiated a collective-bargaining agree- ment covering the unit, which ran from August 1, 2008 to July 31, 2011 (the 08-11 CBA). (GC Exh. 2.) In 2009, TD Barton, which was owned by Toribio Diaz, pur- chased the supermarket from JD Food Corp. Following the sale, TD Barton agreed to recognize the Union and assume the 08-11 CBA in its entirety. (GC Exh. 3.) In 2010, however, TD Barton began experiencing financial difficulties, which prompt- ed the sale of the supermarket and instant litigation. B. TD Barton’s Termination Letter On April 13, TD Barton alerted the Union that it was “termi- nating the Agreement effective 1st August, 2011.” (GC Exh. 4.) Diaz testified that he erroneously believed that, upon the expiration of the 08-11 CBA, he was free to oust the Union, and unilaterally convert the supermarket into a union-free shop. C. Union Efforts to Begin Negotiations On April 20, the Union requested TD Barton to commence bargaining over a successor agreement. (GC Exh. 5.) Union Executive Assistant Timothy Melia and Organizer Carlos Gon- zalez credibly testified that, after TD Barton failed to respond to their several followup phone calls, they eventually reached Diaz and coaxed him to attend a short meeting at their offices in June. Melia stated that, at this meeting, Diaz remained un- willing to negotiate or schedule future sessions, and adamantly asserted that his union obligations would cease, after the 08-11 CBA expired on July 31. D. First Information Request On June 24, the Union requested the following information:  An up-to-date seniority roster . . . ;  Current addresses and social security number of all employees . . .;  Date of employment; Current rates of pay; Cur- rent classification;  Regularly scheduled hours of work. . . .5 (GC Exh. 6.) In this letter, the Union again sought to com- mence bargaining. TD Barton failed to respond. E. The Union’s July Supermarket Visit In early July, Melia visited the supermarket. He credibly tes- tified that he encountered Alberto Durand, store manager, and asked him when negotiations would begin. He related that 5 This letter also sought financial information, which was not en- compassed by the complaint, and, thus, not part of the proceeding. Durand told him to call Diaz, who then failed to return multiple messages. He stated that Durand said that the supermarket was struggling, and implied that it could be sold. He added that employees also reported seeing potential buyers, who seemed to be touring the store. He indicated, however, that TD Barton never directly advised the Union that it was selling the super- market. Juan Gomez, a unit employee, credibly testified that, in July, prior to the expiration of the 08-11 CBA, Store Manager Du- rand told him that “at the end of the contract, there will be no more contracts with the Union.” (Tr. 179.) He recalled Du- rand lamenting that the supermarket was very difficult to sell because it was unionized. F. Second Information Request and Effects Bargaining Demand Melia stated that, in light of the liquidation rumors, he opted to seek confirmation from TD Barton. On November 10, he requested the following information: All documents that relate to any change in the ownership of TD Barton . . . effective at any time from January 1, 2011 . . . [including] all contracts, agreements . . . and documents that set forth all terms and conditions of sale, including but not limited to: a) the buyer’s liability, if any, for legal and/or fi- nancial obligations of the seller and; b) the employment status as of the effective date of the sale of any and all persons employed by the seller within the six months preceding the effec- tive date of the transfer of ownership. [T]he Union hereby demands to bargain concerning the effects and impact on employees’ terms and con- ditions of employment of any contemplated or pend- ing change in ownership of C-Town Supermarket. (GC Exh. 7.) Melia added that he also sought this information in order to assess the Union’s rights under section 2 of the 08- 11 CBA (i.e., the successorship clause), which provided: This Agreement shall be binding upon the Company . . . and its successors . . . and no provision . . . shall be nullified . . . as a result of any consolidation, sale, transfer, assignment. . . . The Company agrees that it will not conclude . . . the above described transactions unless an agreement has been entered into [that] . . . this Agreement shall . . . be binding on . . . [the] business organization continuing the business. It is the intent . . . shall remain in effect . . . regardless of any change of any kind in . . . ownership. (GC Exh. 2 at 1.) TD Barton ignored the information and ef- fects bargaining request. G. Reduced Hours and Layoffs 1. Reduced hours Melia testified that, in May or June, unit employees contact- ed the Union and complained about their work hours being cut. Diaz admitted to cutting work hours, beginning in April, and explained that he proportionally cut everyone’s schedule by 5 C-TOWN SUPERMARKET 439 to 10 hours per week, as a consequence of declining sales. It is undisputed that TD Barton never advised the Union before unilaterally cutting hours. 2. Layoffs The 08–11 CBA contained a detailed layoff procedure. Arti- cle 21 provided: Section 1 A. Seniority shall be defined as an employee’s length of continuous service with the Com- pany in any bargaining unit position from the first date of employment. . . . The prin- ciple of seniority shall apply . . . in all mat- ters, including layoffs. . . . Section 2—Layoffs and Recalls A. Layoffs and recalls shall be governed by inverse seniority. B. In the event of a layoff, the junior employee within a classification will be laid off using their overall Company seniority. When it is determined that the layoff shall come from C. a specific department within the store, the person with the least storewide seniority in that department shall be the person laid off regardless of their time in said department. D. When it becomes necessary to layoff, a full-time employee may bump a junior part- time employee. First, within the depart- ment, and then in total store. . . . H. When the Company determines that . . . layoffs are necessary, the Company and the Union shall meet to discuss the application of the Agreement set forth in this Article prior to any . . . layoff. . . . (GC Exh. 2.) The 08–11 CBA also afforded stewards “top seniority in layoffs.” (Id.) Melia testified that, in June, the supermarket began laying off employees. The following chart, which describes weekly work hours, demonstrates the timing of these layoffs, and shows that several, less senior, employees maintained employ- ment (i.e., Bonilla, Vasquez, and Fernandez), even after sever- al, highly senior, employees were separated (i.e., Juan and Nel- son L. Gomez, Ramos, and Orellana): (GC Exhs. 14–42.) It is undisputed that TD Barton failed to confer with the Union before conducting layoffs. Polanco, store manager, credibly testified that, with his in- put, Diaz determined the scope and timing of these layoffs. He added that some employees approached him and requested a layoff, in order to become eligible for unemployment benefits. He denied that layoffs were prompted by union activities, alt- hough he failed to explain why Orellana, the steward and most senior employee, as well as Union Activists Juan and Nelson L. Gomez, were laid off before several less senior workers. He acknowledged that Orellana and the Gomez brothers were ac- tive union supporters, who often complained to the Union about workplace issues. He recollected that their complaints often involved allegations of supervisors performing bargaining unit work. Employee Name Seniority Dates in Inverse Order Wk. end. 5/20 Wk. end. 6/30 Wk. end. 7/21 Wk. end. 8/25 Wk. end. 9/29 Wk. end. 10/27 Wk. end. 11/3 Wk. end. 11/25 Nayla Almeida 09/18/10 28.75 0 0 0 0 0 0 0 Jalizsha Bonilla 09/3/10 24.75 24.08 0 0 0 0 21.73 20.13 Melissa Ruiz 03/12/10 10.05 0 0 0 0 0 0 0 Julio V. Sierra 01/22/10 29.76 35.65 34.82 38.15 27.41 3.93 0 0 Felix Rodriguez 01/8/10 31.42 0 0 0 0 0 0 0 Nelly Latour 12/12/08 28.16 0 27.76 31.65 0 0 0 0 Maria Ramirez 10/17/08 6.7 40 39.78 0 26.65 28.84 28.15 0 Jose Garcia 09/26/08 35.08 35.12 39.25 0 0 0 0 0 Carlos D. Santos 08/1/08 33.89 30.58 40 0 33.39 23.88 7.15 0 Gerardo M. Nolasco 01/18/08 35.44 31.80 46.79 48 35.28 27.74 12.73 0 Alexis Vasquez 11/30/07 35.50 36.23 40 39.07 31.55 28.08 27.65 21.72 Alfonso R. Fernandez 10/19/07 35.87 40 0 35.73 26.93 40 40 37.31 Isabel Gomes 10/12/07 28.90 37.74 28.73 40 28.78 29.28 29.32 0 Mireya Serrano 07/27/07 34 0 0 0 0 0 0 0 Carlos Peguero 07/13/07 0 0 0 0 0 0 0 0 Francis M. Torres 06/02/06 27.67 31.95 19.58 24.02 30.32 30.03 29.93 28.37 Juan Gomez 10/26/05 36.62 36.30 38.67 40.90 30.85 5.13 0 0 Nelson L. Gomez 05/20/05 35.27 40 36.91 37.32 29.67 5.12 0 0 Gillermina V. Ramos 11/22/02 26.67 33.40 32 34 40.73 34.28 34.47 0 Miguel Orellana (steward) 01/23/09 0 36.32 37.35 45.95 37.07 10.13 0 0 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 440 Diaz indicated that ongoing financial problems prompted the layoffs. He did not dispute that the Union was never offered the chance to negotiate over this matter. H. Failure to Remit Union Dues The 08–11 CBA contained a detailed dues deduction proce- dure. Article 3 provided: Section 1 The Company agrees to deduct weekly Union dues and initiation fees, including arrears, from the wages of . . . members of the Union . . . who . . . sign an au- thorization card for such deductions. The Company shall remit each month to the Union, . . . initiation fees, membership dues, and arrears. . . . (GC Exh. 2 at 3.) Melia testified that the entire unit authorized TD Barton to deduct and remit their dues. He added that TD Barton failed to remit such monies since April 30. See also (GC Exh. 8).6 Gonzalez credibly testified that he visited the supermarket in August to inquire about the dues delinquency. He stated that, at that time, he met Aida, the bookkeeper, who stated that: Diaz told her that there was no longer a Union contract . . . and therefore she didn’t need to take any dues or remit any monies to the local office.7 (Tr. 54.) I. August Telephone Conversation Gonzalez credibly testified that, in August, he phoned Diaz about his failure to schedule negotiations, dues delinquency, rumored business sale, and other matters. He recounted this exchange: GONZALEZ: I heard that you are no longer taking dues out from the members and I want to know why. DIAZ: There’s no Union contract. The Union contract expired July 31st. I don’t have to do that. The Union is no longer in place. GONZALEZ: I think that you’re wrong. The contract is now expired. But, that doesn’t mean there’s no Union contract. There’s a Union contract in place and you need to bargain in good faith. And plus, you agreed that you were going to do that. DIAZ: Well. I don’t have to do that. We can’t take the contract anymore. There’s no Union. I can’t, I’m trying to sell the business. I have seven buyers, but, because of the Union, I can’t sell. GONZALEZ: What do you mean about that? 6 The Union’s records demonstrate that, from April 30 through Oc- tober 29, TD Barton owed dues totaling $4132.35 (i.e., $153.05 in weekly dues times 27 weeks of delinquency). See (GC Exhs. 8–9). 7 I denied TD Barton’s objection that this testimony was inadmissi- ble hearsay. See Fed.R.Evid. 801(d)(2) (agent’s admissions are not hearsay). DIAZ: With the Union, no buyer wants to take this place. . . . We are not doing [well] . . . . We are suffering. We don’t have any money. So I need to cut people’s hours. GONZALEZ: You know, if you’re going to cut hours, you need to bargain. . . . You . . . have to respect seniority and you have to bargain over the hours being cut. You can’t just random[ly] cut hours. . . . (Tr. 55–59.) Diaz did not dispute Gonzalez’s account. J. September Meeting In late September, Gonzalez and Melia met with Diaz at the Union’s offices. Gonzalez credibly recalled Diaz reiterating that the business was failing, being marketed to potential buy- ers, and that he was not obligated to negotiate because, “there was no contract.” He stated that Diaz, nevertheless, committed to meet with the Union again on October 13, but, subsequently cancelled the meeting.8 K. Loss of Supermarket Diaz lost the supermarket in November, after TD Barton de- faulted on its financial obligations. See (R. Exhs. 1–3). At that time, the supermarket was placed under a receivership, and its assets were liquidated and redistributed. III. ANALYSIS A. Section 8(a)(1) Allegation9 This 8(a)(1) allegation, which alleges that, on October 21, Polanco told employees that there was no longer a union at the supermarket, lacks merit. The Board has held that informing “employees that there was no union when . . . there was, un- dermined the Union’s representative role,” and violates Section 8(a)(1). See Spectrum Health, 353 NLRB 996, 1005 (2009) (two-member decision), adopted 355 NLRB 594 (2010), citing Windsor Convalescent Center, 351 NLRB 975, 987–988 (2007), enfd. in relevant part 570 F.3d 354 (D.C. Cir. 2009). In the instant case, however, although Durand stated in July that there would be no Union after the 08-11 CBA’s expiration,10 there is no evidence that Polanco made such a comment on October 21. I find, as a result, that TD Barton did not violate the Act, in the manner alleged. B. Section 8(a)(5) Allegations Section 8(a)(5) provides that it is an unfair labor practice for an employer “to refuse to bargain collectively with the repre- sentatives of its employees.” 29 U.S.C. § 158(a)(5). Section 8(d) defines “bargain[ing] collectively” as “meet[ing] and con- fer[ring] in good faith with respect to wages, hours, and other terms and conditions of employment, or the negotiation of an agreement or any question arising thereunder.” 29 U.S.C. § 158(d). 8 Diaz stated that he cancelled the meeting because his mother was ill, and, thereafter, considered rescheduling to be a moot point after he lost the supermarket in November. 9 This allegation is listed under pars. 10 and 28 of the complaint. 10 Counsel for the Acting General Counsel did not seek to amend the complaint to encompass such testimony. C-TOWN SUPERMARKET 441 1. Information requests11 TD Barton violated Section 8(a)(5) by neglecting the Un- ion’s June 24 and November 10 information requests. An em- ployer must, upon request, provide a union with information, which is necessary and relevant to its representational role. NLRB v. Acme Industrial Co., 385 U.S. 432 (1967). Relevancy is defined by a broad discovery standard, and it is only neces- sary to show that requested information has potential utility. Id. An employer must, for example, provide information con- nected to collective bargaining or contract administration. NLRB v. Truitt Mfg. Co., 351 U.S. 149, 152–153 (1956); Southern California Gas Co., 344 NLRB 231, 235 (2005). i. June 24 Request TD Barton violated the Act by disregarding the Union’s June 24 request. This request, which coincided with the expiration of the 08-11 CBA, requested unit information (i.e., seniority dates, wage data, schedules, etc.), which would have aided the Union’s anticipated negotiations. TD Barton, accordingly, violated the Act by not providing this information.12 A-1 Door & Building Solutions, 356 NLRB 499 (2011). ii. November 10 Request TD Barton violated the Act by similarly ignoring the No- vember 10 request. This request, which concerned the rumored sale of the supermarket, would have, inter alia, aided the Un- ion’s ability: to conduct effects bargaining; evaluate whether the purchaser was a successor; and enforce its rights under section 2 of the 08-11 CBA. I find, therefore, that TD Barton violated the Act by failing to provide this information. See Piggly Wiggly Midwest, 357 NLRB 2344 (2012) (requiring the provision of sales and franchise agreements); Compact Video Services, 319 NLRB 131, 142–143 (1995), enfd. 121 F.3d 478 (9th Cir. 1997) (sales agreement is producible). 2. Effects bargaining13 TD Barton violated the Act by failing to: notify the Union about the sale of the supermarket; or engage in effects bargain- ing. An employer’s refusal to conduct effects bargaining over a decision to close its operations is unlawful. See, e.g., Champi- on International Corp., 339 NLRB 672 (2003). Effects bar- gaining “must be conducted in a meaningful manner and at a meaningful time.” First National Maintenance Corp. v. NLRB, 452 U.S. 666, 682 (1981). TD Barton failed to respond to the Union’s combined No- vember 10 information request and effects bargaining demand. I find, as a result, that it violated Section 8(a)(5), by denying the Union an opportunity to conduct effects bargaining over its decision to sell the supermarket. Although TD Barton asserted that the supermarket’s finan- cial collapse and receivership excused its bargaining obligation, its position is invalid. An employer’s financial inability to 11 These allegations are listed under pars. 17–21 and 30 of the com- plaint. 12 TD Barton has not disputed the request’s validity, or its failure to comply. 13 These allegations are listed under pars. 25, 26, and 30 of the com- plaint. agree to a union’s anticipated effects bargaining proposal does not eliminate its obligation to engage in effects bargaining. See, e.g., Burgmeyer Bros., Inc., 254 NLRB 1027, 1028 (1981) (debtor-in-possession under the Bankruptcy Act, which be- lieves it might be financially unable to meet any union de- mands, still retains its effects bargaining obligation). 3. Unilateral reduction of unit employees’ hours of work14 TD Barton violated the Act, when it unilaterally reduced unit employees’ hours of work. An employer must provide ade- quate notice to the union and bargain concerning changes to unit employees’ work schedules. See, e.g., Sheraton Hotel Waterbury, 312 NLRB 304, 307 (1993); General Electric Co., 137 NLRB 1684, 1686 (1962). Between August and the No- vember sale of the supermarket, TD Barton unilaterally reduced several unit employees’ weekly work schedules. These reduc- tions were implemented without notifying the Union. This conduct, accordingly, violated Section 8(a)(5). 4. Layoffs of unit employees15 i. Unilateral layoffs TD Barton violated Section 8(a)(5), when it unilaterally laid off several unit employees between October 19 and November 10. The complaint, which was amended at the hearing, alleged that it unilaterally laid off the following 16 employees between October 19 and November 10: Juan Gomez; Nelson L. Gomez;16 Miguel Orellana; Julio V. Sierra;17 Geraldo N. Mal- donado;18 Carlos D. Santos;19 Melissa Ruiz; Maria Ramirez; Gillermina V. Ramos;20 Nayla Almeida; Jose M. Garcia; Nellie Y. Latour; Carlos Peguero; Felix Rodriguez; Mireya Serrano; and Isabel Gomes.21 The Board has held that, absent an “eco- nomic exigency,” an employer must provide adequate notice to the union and bargain with it concerning both a layoff decision and its effects. See Tri Tech Services, 340 NLRB 894, 894– 895 (2003); Lapeer Foundry & Machine, Inc., 289 NLRB 952, 954–955 (1988). TD Barton’s personnel records reveal that, between October 19 and November 10, it laid off the following nine unit em- ployees: Juan Gomez; Nelson L. Gomez; Orellana; Sierra; Maldonado; Santos; Ramirez; Ramos; and Gomes. Diaz acknowledged that mass layoffs occurred at the end of his own- ership tenure, and did not aver that any of the above-listed nine employees were separated for misconduct or other cause. It is 14 This allegation is listed under pars. 22 and 30 of the complaint. 15 This allegation is listed under pars. 11, 24, 26, 27, and 30 of the complaint. 16 His name is incorrectly identified in par. 11 of the complaint as Nelson Gomez. 17 His name is incorrectly identified in par. 24 of the complaint as Julio Velez. 18 His name is incorrectly identified in par. 24 of the complaint as Geraldo Nolaco. 19 His name is incorrectly identified in par. 24 of the complaint as Carlos Santos. 20 Her name is incorrectly identified in par. 24 of the complaint as Guillermina Ramos. 21 Par. 24 of the complaint was amended at the hearing to include Almeida, Garcia, Latour, Peguero, Rodriguez, Serrano. and Gomes. (Tr. 194–195.). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 442 also undisputed that TD Barton conducted its layoffs, without first notifying the Union or bargaining. I find, as a result, that its unilateral layoff of the latter nine unit employees violated Section 8(a)(5).22 TD Barton’s personnel records do not reveal, however, that it separated the following seven unit employees between October 19 and November 10: Peguero; Ruiz; Almeida; Serrano; Rodri- guez; Garcia; and Latour. These layoffs preceded the com- plaint allegation, and occurred between May 17 and September 22. I find, as a result, that these layoffs were not encompassed by the complaint. Accordingly, I do not find that these layoffs were unlawful.23 ii. Layoffs in violation of procedures in 08-11 CBA TD Barton violated the Act by laying off Juan Gomez, Nel- son L. Gomez, and Orellana, in contravention of the 08-11 CBA’s express seniority provisions. An employer violates Section 8(a)(5), when during the term of a contract, it unilater- ally implements changes in the unit’s terms and conditions of employment, without affording the union notice and an oppor- tunity to bargain. NLRB v. Katz, 369 U.S. 736 (1962). The obligation to refrain from unilaterally changing terms and con- ditions of employment continues after contract expiration and until good-faith bargaining results in impasse. Georgia-Pacific, 305 NLRB 112 (1991). The 08-11 CBA mandates that layoffs occur in inverse seniority order, and afforded Orellana, the steward, the highest seniority rank. In spite of such language, several less senior employees remained employed, even after Juan Gomez, Nelson L. Gomez, and Orellana were laid off. Their premature layoffs, therefore, violated the 08-11 CBA, and were taken without conferring with the Union, obtaining its consent, or reaching an impasse. There is also no evidence of waiver. TD Barton, thus, violated Section 8(a)(5) by conduct- ing the layoffs in this manner. 22 The receivership was not an economic exigency, which excused its bargaining duty regarding the layoffs. Diaz conceded that his financial difficulties began as early as 2010. An economic exigency, which justifies a refusal to bargain must be “an unforeseen occurrence having a major economic effect . . . that requires . . . immediate action.” An- gelica Healthcare Services Group, 284 NLRB 844, 853 (1987). In short, TD Barton failed to show that its financial difficulties and receiv- ership were unforeseen events, which excused its bargaining obligation. See Leiferman Enterprises, 352 NLRB 152, 154–155 (2008) (signifi- cant drop in sales and receivership were not unforeseen); Toma Metals, Inc., 342 NLRB 787 (2004) (50-percent decline in sales over 6 months was a chronic condition, which did not excuse unilateral layoffs). 23 With the exception of Ruiz, counsel for the Acting General Coun- sel conceded this matter in her posthearing brief, although she did not formally withdraw these allegations. See (GC Br. at 13, fn. 49 (stating that “[t]he Consolidated Complaint was amended at the hearing to include [Serrano, Almeida, Garcia, Latour, Peguero, Rodriguez and Gomes]. . . . (Tr. 194.) However, it appears that, with one exception, those individuals were not laid off involuntarily in Respondent’s reduc- tion in force. The sole exception is . . . Gomes, who was laid off on November 17 and should be included in the Consolidated Complaint. [Emphasis added.]”) Concerning Ruiz, who was laid off around June 3, and not raised by counsel, an analogous argument favoring dismissal is persuasive. 5. Failure to deduct and remit union dues24 i. Discontinuation of dues deductions and remittances during term of 08-11 CBA TD Barton violated Section 8(a)(5) and (d) by discontinuing dues deductions and remittances during the term of the 08-11 CBA. “[A]n employer violates Section 8(a)(5) . . . as elucidat- ed in Section 8(d) . . ., by modifying a term of a collective- bargaining agreement without the consent of the other party while the contract is in effect.”25 Bonnell/Tredegar Industries, 313 NLRB 789, 790 (1994), enfd. 46 F.3d 339 (4th Cir. 1995). TD Barton ceased remitting dues and initiation fees to the Un- ion from April 30 through July 31, i.e., during the duration of the 08-11 CBA. This action violated article 3 of the 08-11 CBA, and, as a result, violated the Act. ii. Discontinuation of dues deduction after expiration of 08-11 CBA Counsel for the Acting General Counsel asserts that TD Bar- ton’s unilateral cessation of dues checkoff after July 31 was similarly unlawful. She contends that, as a policy matter, em- ployers should be required to continue postexpiration checkoff procedures, in the same manner that they are required to main- tain wages, benefits, and other mandatory terms and conditions of employment, until a new agreement is reached or a good- faith impasse accrues. She concedes, however, that her posi- tion is contrary to longstanding Board precedent. See Bethle- hem Steel Co., 136 NLRB 1500 (1962). Although she offers various reasons why such precedent is specious, the Board’s most recent decision addressing this matter effectively reaf- firmed the precedent, in the absence of a three-member majori- ty to overrule it. See Hacienda Resort Hotel & Casino (Haci- enda III), 355 NLRB 742 (2010). Accordingly, in agreement with TD Barton, I find that its unilateral decision to cease dues checkoff after July 31 was lawful. Moreover, “[i]t is for the Board, not the judge, to de- termine whether that precedent should be varied.” Waco, Inc., 273 NLRB 746 fn. 14 (1984), citing Iowa Beef Packers, 144 NLRB 615, 616 (1963). 6. Failure to recognize the Union26 TD Barton violated Section 8(a)(5) and 8(d), by withdrawing recognition of the Union on October 12 and by continuously failing to comply with its requests to meet and negotiate a suc- cessor contract. Section 8(a)(5) requires an employer to bar- gain with a union, which represents a majority of its employees. Levitz Furniture Co. of the Pacific, 333 NLRB 717 (2001). In general, an employer, who withdraws recognition from an in- cumbent union violates the Act. Id. An employer’s bargaining obligation continues after the expiration of a contract, unless the union is shown to have lost majority support. Id. The Act 24 These allegations are listed under pars. 16, 26, 27, and 30 of the complaint. 25 Sec. 8(d) provides, in relevant part, that “the duty to bargain col- lectively shall also mean that no party to such contract shall [unilateral- ly] terminate or modify such contract.” 29 U.S.C. § 158(d). 26 This allegation is listed under pars. 13–15, 23, 26, and 30 of the complaint. C-TOWN SUPERMARKET 443 similarly requires the parties to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment or the negotiation of an agreement. Regency Service Carts, Inc., 345 NLRB 671, 671 (2005). Thus, an employer’s wholesale refusal to meet and confer with a union in order to negotiate a successor contract violates the Act. Id. TD Barton continuously ignored the Union’s repeated over- tures to schedule bargaining sessions. It ceased dues deduc- tions during the term of the 08-11 CBA, failed to fulfill legiti- mate information requests and made several unilateral changes. Diaz also openly stated that he would cease recognizing the Union after the 08-11 CBA expired. I find, as a result, that, by engaging in such conduct, it effectively and unlawfully with- drew recognition of the Union. C. The 8(a)(3) Allegations27 TD Barton violated Section 8(a)(3), when it laid off Juan Gomez, Nelson L. Gomez, and Orellana. The framework for analyzing alleged 8(a)(3) violations is Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). Under Wright Line, the General Counsel must make a prima facie showing that the employee’s protected conduct motivated the adverse action. The General Counsel must show, either by direct or circumstantial evidence, that: the employee engaged in protected conduct; the employer knew or suspected that he engaged in such conduct: the employer har- bored animus against such conduct; and the employer took the personnel action at issue because of such animus. Under the Wright Line framework, if the General Counsel makes a prima facie showing, it meets its initial burden to per- suade, by a preponderance of the evidence, that protected activ- ity was a motivating factor in the employer’s action. Once this is established, the burden of persuasion shifts to the employer to show that it would have taken the same adverse action, even absent the protected activity. NLRB v. Transportation Man- agement Corp., 462 U.S. 393, 399, 403 (1983); Manno Elec- tric, 321 NLRB 278, 280 fn. 12 (1996), enfd. 127 F.3d 34 (5th Cir. 1997) (per curiam). To meet this burden, “an employer cannot simply present a legitimate reason for its action but must persuade by a preponderance of the evidence that the same action would have taken place even in the absence of the pro- tected conduct.” Serrano Painting, 332 NLRB 1363, 1366 (2000). If the employer’s proffered defenses are found to be a pretext, i.e., the reasons given for its actions are either false or not, in fact, relied on, the employer fails by definition to show that it would have taken the same action for those reasons, and there is no need to perform the second part of the Wright Line analysis. On the other hand, further analysis is required if the defense is one of “dual motivation,” that is, the employer de- fends that, even if an invalid reason might have played some part in the employer’s motivation, it would have taken the same action against the employee for permissible reasons. Palace Sports & Entertainment, Inc. v. NLRB, 411 F.3d 212, 223 (D.C. Cir. 2005). 27 This allegation is listed under pars. 11, 12, and 29 of the com- plaint. 1. Prima facie case i. Union activity Juan and Nelson L. Gomez and Orellana, each engaged in union activity. Orellana was a steward, and Juan and Nelson L. Gomez were active union supporters, who filed grievances and lodged complaints seeking to enforce the 08-11 CBA. TD Bar- ton conceded such activity. ii. Knowledge TD Barton was aware of their union activities. Polanco, a former supervisor, confirmed that he was aware of such activi- ties. iii. Animus and causation There is ample evidence of union animus and causation. Such animus included TD Barton’s refusal to recognize the Union, ongoing refusal to bargain a successor agreement, uni- lateral cessation of dues deductions, unilateral layoffs, failure to negotiate over the effects of its closure decision, and Diaz’ repeated statements that he was unable to sell the supermarket because of the Union. Animus also included Supervisor Du- rand’s commentary that: TD Barton would not recognize the Union after the 08-11 CBA expired; and the Union was respon- sible for Diaz’ inability to sell the supermarket. I find that such animus prompted the layoffs at issue. iv. Prima facie case under Wright Line I find, therefore, that counsel for the Acting General Counsel has proven that: Juan and Nelson L. Gomez and Orellana en- gaged in union activities; TD Barton was aware of such activi- ties; and union animus triggered their layoffs. Thus, I find that she has met her initial burden of persuasion under Wright Line. I will now assess TD Barton’s asserted layoff rationale. 2. Pretextual discharge reasons Although TD Barton explained that the layoffs were caused by a sharp business decline, I find that this explanation is pre- textual. Although it is undisputed that the supermarket’s busi- ness dropped and layoffs were warranted, TD Barton inexplica- bly abandoned its contractual layoff procedure in order to prematurely target union supporters Juan and Nelson L. Gomez and Orellana. The 08-11 CBA clearly required layoffs to pro- ceed in inverse seniority order, which would have preserved the continued employment of Juan and Nelson L. Gomez, who possessed a high level of seniority, and Orellana, who pos- sessed super-seniority,28 for several additional weeks. When Orellana was laid off, besides Juan and Nelson L. Gomez, there were nine unit employees with lesser seniority and no obvious union activity, who remained employed.29 Similarly, when Juan and Nelson L. Gomez were laid off, besides Orellana, there were eight unit employees with lesser seniority and no 28 The Board has held that super seniority clauses, which are limited to layoffs, are lawful. See Dairylea Cooperative, Inc., 219 NLRB 656, 658 (1975), enfd. sub nom. NLRB v. Teamsters Local 338, 531 F.2d 1162 (2d Cir. 1976). 29 They were Bonilla, Fernandez, Gomes, Maldonado, Ramirez, Ra- mos, Santos, Torres, and Vasquez. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 444 obvious union activity, who remained employed.30 TD Barton conspicuously failed to explain why it abandoned the contrac- tual layoff procedure, in order to prematurely eradicate the Union’s primary adherents. Thus, I find that its explanation was pretextual. Based on my above analysis of TD Barton’s layoff rationale, as well as my consideration of the many factors that led me to find animus, and knowledge, I conclude that its proffered rea- son was a mere pretext and that antiunion animus motivated its actions. Accordingly, no further analysis of its defenses is necessary for, as the Board stated in Rood Trucking Co., 342 NLRB 895, 898 (2004): A finding of pretext defeats any attempt by the Respondent to show that it would have discharged the discriminatees absent their union activities. This is because where “the evidence es- tablishes that the reasons given for the Respondent’s actions are pretextual—that is, either false or not in fact relied upon— the Respondent fails by definition to show that it would have taken the same action for those reasons, absent the protected conduct, and thus there is no need to perform the second part of the Wright Line analysis.” Golden State Foods Corp., 340 NLRB 382, 385 (2003). . . . CONCLUSIONS OF LAW 1. TD Barton was an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. All employees performing work covered under the 2008– 2011 collective-bargaining agreement between TD Barton and the Union constituted an appropriate unit for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. At all material times, the Union was the exclusive collec- tive-bargaining representative of TD Barton’s employees in the above unit within the meaning of Section 9(a) of the Act. 5. TD Barton violated Section 8(a)(3) and (1) of the Act, by prematurely laying off Juan Gomez, Nelson L. Gomez, and Miguel Orellana because of their union or other protected con- certed activities. 6. TD Barton violated Section 8(a)(5) and (1) of the Act by failing and refusing to provide relevant information to the Un- ion, which was requested in its June 24 and November 10, 2011 letters. 7. TD Barton violated Section 8(a)(5) and (1) of the Act by, since on or about November 1, 2011, failing to notify the Union about its sale of the supermarket and neglecting to bargain with it over the effects on unit employees. 8. TD Barton violated Section 8(a)(5) and (1) of the Act by laying off the following nine unit employees between October 19 and November 10, 2011, without affording the Union ade- quate notice or an opportunity to bargain about such layoffs: Juan Gomez; Nelson L. Gomez; Miguel Orellana; Julio V. Sier- ra; Geraldo Nolasco Maldonado; Carlos David Santos; Maria Ramirez; Gillermina Venancia Ramos; and Isabel Gomes. 30 They were Bonilla, Fernandez, Gomes, Maldonado, Ramirez, San- tos, Torres, and Vasquez. 9. TD Barton violated Section 8(a)(5) and (1) of the Act by failing to abide by the terms of the 2008–2011 collective- bargaining agreement by laying off Juan Gomez, Nelson L. Gomez, and Miguel Orellana in violation of the contract’s layoff and seniority procedures. 10. TD Barton violated Section 8(a)(5) and (1), and 8(d), of the Act by failing to abide by the terms of the 2008–2011 col- lective-bargaining agreement by ceasing to remit dues and ini- tiation fees to the Union from April 30 through July 31, 2011. 11. TD Barton violated Section 8(a)(5) and (1), and 8(d), of the Act, by withdrawing its recognition of the Union as the unit’s exclusive collective-bargaining representative on October 12, and by continuously failing to comply with to repeated requests to negotiate a successor contract. 12. The unfair labor practices set forth above affect com- merce within the meaning of Section 2(6) and (7) of the Act. REMEDY Having found that TD Barton has engaged in certain unfair labor practices, I find that it must be ordered to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. TD Barton shall provide to the Union the information re- quested in its June 24 and November 10, 2011 letters. It shall also remit to the Union, with interest, dues and other fees, as required under the 2008–2011 collective-bargaining agreement for the period extending from April 30 through July 31, 2011. See King Manor Care Center, 308 NLRB 884, 887 (1992). In order to remedy its unilateral and discriminatory layoffs, TD shall make the nine unit employees whole for any loss of earnings31 they may have suffered by reason of their unlawful layoffs, in accordance with F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as computed in New Horizons, 283 NLRB 1173 (1987), compounded daily as prescribed in Ken- tucky River Medical Center, 356 NLRB 6 (2010), enf. denied on other grounds sub. nom. Jackson Hospital Corp. v. NLRB, 647 F.3d 1137 (D.C. Cir. 2011). In order to remedy its unlawful failure to bargain with the Union over the effects of its decision to close the supermarket, TD Barton shall be ordered to bargain with the Union, on re- quest, about the effects of this decision. As a result of its un- lawful conduct, however, unit employees have been denied an opportunity to bargain, when TD Barton might still have re- quired their services and a balance in bargaining power poten- tially existed. Meaningful bargaining cannot be assured until some measure of economic strength is restored to the Union. A bargaining order alone, therefore, cannot serve as an adequate remedy for the unfair labor practices committed. Accordingly, it is necessary, in order to ensure that meaning- ful bargaining occurs and to effectuate the policies of the Act, to accompany the bargaining order with a limited backpay re- quirement designed both to make whole the unit employees for losses suffered as a result of the violations and to recreate in 31 Reinstatement and the Board’s traditional expunction remedies are not, however, warranted, given that the supermarket has been sold. The nine affected employees are also eligible to receive a Transmarine remedy, which will be discussed, concerning TD Barton’s failure to engage in effects bargaining over the supermarket’s sale. C-TOWN SUPERMARKET 445 some practicable manner a situation in which the parties’ bar- gaining position is not entirely devoid of economic conse- quences for TD Barton. I shall do so by ordering TD Barton to pay backpay to the unit employees in a manner similar to that required in Transmarine Navigation Corp., 170 NLRB 389 (1968), as clarified in Melody Toyota, 325 NLRB 846 (1998). TD Barton shall, as a result, pay its unit employees backpay at the rate of their normal wages when last in its employ from 5 days after the date of the Board’s decision and order, until the occurrence of the earliest of the following conditions: (1) the date TD Barton bargains to agreement with the Union on those subjects pertaining to the effects of its decision to cease operat- ing the supermarket on the unit employees; (2) a bona fide im- passe in bargaining; (3) the Union’s failure to request bargain- ing within 5 business days after receipt of the Board’s decision and order, or to commence negotiations within 5 business days after receipt of TD Barton’s notice of its desire to bargain with the Union; or (4) the Union’s subsequent failure to bargain in good faith. In no event, however, shall the sum paid to these employees exceed the amount they would have earned as wages from the date on which TD Barton ceased its operations to the time they secured equivalent employment elsewhere, or the date on which TD Barton shall have offered to bargain in good faith, whichever occurs sooner. However, in no event shall this sum be less than the employees would have earned for a 2- week period at the rate of their normal wages when last in the Respondent’s employ. Backpay shall be based on earnings which the unit employees would normally have received during the applicable period, less any net interim earnings, and shall be computed in accordance with F. W. Woolworth Co., supra, plus interest as computed in New Horizons for the Retarded, supra, compounded daily as prescribed in Kentucky River Medical Center, supra, enf. denied on other grounds sub. nom. Jackson Hospital Corp. v. NLRB, supra. If feasible, given that the supermarket had been sold, TD Barton is further ordered to distribute appropriate remedial notices electronically via email, intranet, internet, or other ap- propriate electronic means to its bargaining unit employees, in addition to the mailing of paper notices in English and Spanish. See J. Picini Flooring, 356 NLRB 11 (2010). On these findings of fact and conclusions of law, and on the entire record, I issue the following recommended32 ORDER The Respondent, TD Barton Foods LLC d/b/a C-Town Su- permarket, Pawtucket, Rhode Island, its officers, agents, suc- cessors, and assigns, shall 1. Cease and desist from (a) Discriminating against employees in regard to layoff, in order to discourage their membership and activities on behalf of the Union, or any other labor organization. (b) Refusing to provide the Union with requested infor- mation that is relevant and necessary to its performance of its 32 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and recom- mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt- ed by the Board and all objections to them shall be deemed waived for all purposes. duties as collective-bargaining representative of employees in the following appropriate unit: all employees performing work covered under the 2008–2011 collective-bargaining agreement between TD Barton and the Union. (c) Failing and refusing to bargain in good faith with the Un- ion as the exclusive collective-bargaining representative of its unit employees, by laying off unit employees, without first affording the Union notice and a reasonable opportunity to bargain over their layoffs. (d) Failing and refusing to bargain in good faith with the Un- ion concerning the effects on employees represented by the Union of its decision to sell the supermarket. (e) Failing and refusing to bargain collectively with the Un- ion by failing to remit dues and initiation fees for April 30 though July 31, 2011, as required under the 2008–2011 collec- tive–bargaining agreement. (f) Failing and refusing to bargain collectively with the Un- ion by laying off unit employees Juan Gomez, Nelson L. Gomez, and Miguel Orellana, in violation of the layoff and seniority procedures set forth under the 2008–2011 collective- bargaining agreement. (g) Failing to recognize the Union as the exclusive collec- tive-bargaining representative of the unit by, inter alia, ignoring its repeated requests to meet and negotiate a successor contract. (h) In any like or related manner interfering with, restraining, 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 effec- tuate the policies of the Act. (a) Promptly provide the Union with the relevant information requested in its June 24 and November 10, 2011 letters. (b) On request, bargain collectively in good faith with the Union regarding the effects on unit employees of its decision to sell the supermarket and to terminate its employees, and, if an understanding is reached, embody it in a signed document. (c) Make whole all nine bargaining unit employees laid off between October 19 and November 10, 2011, for any loss of pay they may have suffered as a result of their unlawful layoffs, in the manner set forth above in the remedy section of this deci- sion. (d) Remit to the Union dues and initiation fees that were not forwarded to it, as required under the 2008–2011 collective- bargaining agreement, with interest to the Union on such sums, as described in the remedy section of this decision. (e) Pay the former employees in the unit their normal wages when in TD Barton’s employ from 5 days after the date of this decision until the occurrence of the earliest of the following conditions: (1) the date TD Barton bargains to agreement with the Unions on those subjects pertaining to the effects of the sale of its supermarket; (2) the date a bona fide impasse in bargain- ing occurs; (3) the Union’s failure to request bargaining within 5 business days after receipt of this Decision, or to commence negotiations within 5-business days after receipt of TD Bar- ton’s notice of desire to bargain with the Union; (4) the Union’s subsequent failure to bargain in good faith; but in no event shall the sum paid to any of the employees exceed the amount he or she would have earned as wages from the date on which TD Barton ceased its operations to the time they secured equivalent DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 446 employment elsewhere, or the date on which the Respondent shall have offered to bargain in good faith, whichever occurs sooner. However, in no event, shall this sum be less than these employees would have earned for a 2-week period at the rate of their normal wages when last in TD Barton’s employ, with interest, as set forth in the remedy portion of this decision. (f) Preserve and, within 14 days of a request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, per- sonnel records and reports, and all other records necessary to analyze the amount of any backpay which may be due under the terms of this Order. (g) Within 14 days after service by the Region, Respondent shall duplicate and mail, and, if feasible, electronically distrib- ute, at its own expense, a copy of the notice in English and Spanish, to all former employees employed by it at its Paw- tucket, Rhode Island supermarket at any time since April 20, 2011. (h) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply.