Seven Seas Union Square, LLC and Key Food Stores Co-Operative, Inc, joint employers

368 NLRB No. 92 NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Ex- ecutive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes. Seven Seas Union Square, LLC and Key Food Stores Co-Operative, Inc., and 100 Greaves Lane Meat LLC and Key Food Stores Co-Operative, Inc., and HB 84 Food Corp. and Key Food Stores Co- Operative, Inc., and 1525 Albany Avenue Meat LLC and Key Food Stores Co-Operative, Inc. and Key Food CS2, LLC, d/b/a Food Universe and Key Food Stores Co-Operative, Inc., and Riverdale Grocers LLC and Key Food Stores Co- Operative, Inc. and Jar 259 Food Corp. and Key Food Stores Co-Operative, Inc., and Park Plaza Food Corp. and Key Food Stores Co-Operative, Inc. and Paramount Supermarkets Inc. and Key Food Stores Co-Operative, Inc., and United Food and Commercial Workers Union, Local 342, AFL–CIO. Cases 29–CA–164058, 29–CA–167245, 29–CA–167319, 29–CA–167327, 29–CA–167400, 29–CA–173762, and 29–CA–180296 1 We will refer to the eight non–Key Food Respondents plus Key Food CS2 collectively as the “individual-store Respondents.” 2 The non–Key Food Respondents have requested oral argument. The request is denied as the record, exceptions, and briefs adequately present the issues and positions of the parties. 3 The non–Key Food Respondents contend that the judge erred in considering the General Counsel’s post-hearing brief and failing to rule on their August 21, 2017 Motion to Strike that brief as untimely filed by 3 hours. We find in these circumstances that the judge’s consideration of the posthearing brief and his inadvertent failure to rule on the motion did not constitute prejudicial error. 4 The Respondents have excepted to some of the judge’s evidentiary rulings. It is well established that the Board will affirm an evidentiary ruling of an administrative law judge unless that ruling constitutes an abuse of discretion. See Aladdin Gaming, LLC, 345 NLRB 585, 587 (2005), petition for review denied sub nom. Local Joint Executive Board of Las Vegas v. NLRB, 515 F.3d 942 (9th Cir. 2008). After a careful review of the record, we find no abuse of discretion in any of the chal- lenged rulings. Respondents Seven Seas Union Square, LLC, 100 Greaves Lane Meat, LLC, HB 84 Food Corp., and 1525 Albany Avenue Meat LLC have excepted to the judge’s denial of their motions at hearing, after the General Counsel presented his case in chief, to dismiss the allegations against them for failure of proof. We have carefully reviewed the record, and we find that the General Counsel in each instance adduced sufficient evidence to establish a prima facie case. We thus find that the judge did not err in denying the motions to dismiss. 5 The Respondents have excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an adminis- trative law judge’s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Stand- ard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. In addition, the non–Key Food Respondents ar- gue that the judge’s rulings demonstrate bias against them. On careful examination of the judge’s decision and the entire record, we are satisfied that the Respondents’ contentions are without merit. October 16, 2019 DECISION AND ORDER BY CHAIRMAN RING AND MEMBERS MCFERRAN AND EMANUEL On February 9, 2018, Administrative Law Judge Benja- min W. Green issued the attached decision. Respondent Key Food Stores Co-operative, Inc. (Key Food) and Re- spondent Key Food CS2, LLC, d/b/a Food Universe (Key Food CS2) jointly filed exceptions and a supporting brief, and the remaining Respondents (the non–Key Food Re- spondents) jointly filed exceptions and a supporting brief.1 The General Counsel filed an answering brief, and the Re- spondents filed replies in the same combinations as in their exceptions. The General Counsel filed cross-exceptions and a supporting brief, and the non–Key Food Respond- ents 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 exceptions,2 cross-exceptions, and briefs3 and has decided to affirm the judge’s rulings,4 findings,5 and We adopt the judge’s finding, for the reasons he states, that the Re- spondents were “perfectly clear” successors and therefore violated Sec. 8(a)(5) and (1) by unilaterally implementing initial employment terms that differed from the predecessor employer’s terms and conditions of employment, including a buyout provision that resulted in the layoff of employees, without first bargaining with the Union to impasse. Accord- ingly, we need not pass on the judge’s additional finding that the Re- spondents were prohibited from unilaterally implementing their buyout proposal under the principles of McClatchy Newspapers, 321 NLRB 1386 (1996), enfd. 131 F.3d 1026 (D.C. Cir. 1997), cert. denied 524 U.S. 937 (1998). Chairman Ring notes that the judge’s “perfectly clear” suc- cessor analysis relied in part on Canteen Co., 317 NLRB 1052 (1995), enfd. 103 F.3d 1355 (7th Cir. 1997). He applies Canteen Co. as extant precedent but is open to reexamining it in an appropriate future case. The Respondents except to the judge’s finding that they unlawfully refused to bargain with the Union in violation of Sec. 8(a)(5) and (1), but they do not argue that the judge’s recommended affirmative bargaining order is improper if the Board affirms the judge’s 8(a)(5) finding. We thus find it unnecessary to provide a specific justification for that rem- edy. See Ridgewood Health Care Center, Inc. and Ridgewood Health Services, Inc., 367 NLRB No. 110, slip op. at 10–11 fn. 19 (2019). See also Scepter v. NLRB, 280 F.3d 1053, 1057 (D.C. Cir. 2002) (in the ab- sence of particular exceptions, the Board may issue an affirmative bar- gaining order without specifically stating the basis for the order). The General Counsel has cross-excepted to the judge’s failure to decide the complaint allegation that Respondent 1525 Albany Avenue Meat LLC unlawfully promulgated employee work rules. Having carefully re- viewed the record, we find that the evidence supports the complaint al- legation that the Respondent unlawfully promulgated four work rules (no-solicitation, political activity, loitering, and a catch-all disciplinary prohibition) in response to its employees’ union activity. See Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004); accord Boeing Co., 365 NLRB No. 154, slip op. at 7 (2017) (new framework for analyzing work rules did not disturb the unlawful promulgation prong of Lutheran Heritage). We note that the Respondents’ asserted defense to this alle- gation---that the General Counsel failed to prove the rules were imple- mented after the union activity---is contrary to the record evidence. In 2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD conclusions as modified and to adopt the recommended Order as modified and set forth in full below.6 In determining whether Respondent Key Food is a joint employer, in separate pairs, with each of the nine individ- ual-store Respondents, the judge applied the standard set forth in Hy-Brand Industrial Contractors, Ltd. and Brandt Construction Co., 365 NLRB No. 156 (2017) (Hy-Brand I), in which the Board overruled BFI Newby Island Recy- clery, 362 NLRB 1599 (2015) (Browning-Ferris), affd. in part and remanded in part 911 F.3d 1195 (D.C. Cir. 2018). After the judge issued his decision in this case, the Board vacated its decision in Hy-Brand I and declared the over- ruling of Browning-Ferris of no force or effect. See Hy- Brand Industrial Contractors, Ltd. and Brandt Construc- tion Co., 366 NLRB No. 26 (2018) (Hy-Brand II). Apply- ing Browning-Ferris, we agree with the judge’s finding that Respondent Key Food is a joint employer with each of the individual-store Respondents. As more fully described in the judge’s decision, Key Food is a co-operative that consists of corporate members, including the individual-store Respondents, that own su- permarkets. In a bankruptcy proceeding, Key Food suc- cessfully bid on and purchased supermarkets previously owned by The Great Atlantic & Pacific Tea Company (A&P), whose employees were represented by various lo- cals of the United Food and Commercial Workers Union (UFCW) and covered by collective-bargaining agree- ments. Pursuant to an Asset Purchase Agreement between Key Food and A&P, which was approved by the bank- ruptcy court, Key Food bound itself to engage in good- faith negotiations for modified collective-bargaining agreements at the newly purchased supermarkets. After its purchase, Key Food assigned ownership of the super- markets (i.e., sold them) to the individual-store Respond- ents. Pursuant to purchase agreements between Key Food and the individual-store Respondents, each individual- store Respondent agreed to be bound by any modified agreement “negotiated by Key Food.” Key Food’s obli- gation to bargain pursuant to the court-approved Asset Purchase Agreement, and the individual-store view of our finding of unlawful promulgation, we find it unnecessary to pass on the judge’s finding that the rule concerning political activity is unlawfully overbroad, because such finding would not affect the remedy. In addition, the General Counsel has cross-excepted to the judge’s failure to decide the complaint allegation that Respondent 1525 Albany Avenue Meat LLC violated Sec. 8(a)(5) and (1) of the Act by unilaterally prom- ulgating a new employee rule book in January 2016. We shall dismiss this allegation, as the General Counsel failed to establish that the rules at issue represented a change in existing terms and conditions of employ- ment. No exceptions were filed to the judge’s dismissal of the allegations that (a) Respondent HB84 Food Corp. violated Sec. 8(a)(3) and (1) of the Act by laying off Venus Nepay, Richard Maffia, and Khadisha Diaz; (b) Respondent Seven Seas Union Square, LLC violated Sec. 8(a)(3) and Respondents’ contractual surrender of bargaining author- ity to Key Food, is confirmed by the parties’ conduct. As the judge found, Key Food exercised near-absolute control over negotiations for a common collective-bargaining agreement, encompassing essential terms and conditions of employment, that would cover employees at all the newly purchased supermarkets and bind the individual- store Respondents. In agreeing with the judge that Key Food is a joint em- ployer with each of the individual-store Respondents, we also rely on the following evidence. First, the purchase agreements between Key Food and the individual-store Respondents bind the latter to make all offers of employ- ment agreed to on their behalf by Key Food, thus giving Key Food significant control over the scope and identity of each store’s initial work force. Second, Key Food re- ferred to itself as an “Employer” (along with individual- store owners whose purchase of supermarkets are not a part of this proceeding) in collective-bargaining agree- ments it reached with UFCW Locals 338, 1500, and 464, and Key Food was in fact the sole “Employer” signatory to those agreements. Third, the owners of Respondent Al- bany Avenue, after purchasing that store from Key Food, distributed to employees a handbook entitled “Key Food Rules & Regulations,” which referred only to Key Food and not to the individual store or its owners. Finally, Randy Abed, co-owner of Respondents Albany Avenue and Greaves Lane, testified that “he couldn’t do anything without the Key Food Cooperative” when the Union asked him directly if they could work out an agreement to end union handbilling at the Albany Avenue and Greaves Lane stores. Accordingly, as the judge found, Key Food exercised direct and immediate control over essential terms and con- ditions of employment of the individual-store Respond- ents’ employees. Applying Browning-Ferris, we find that this evidence plainly demonstrates that Key Food is a joint employer of those employees. (1) of the Act by refusing to hire Ricardo Nunez and Jerry Simpson and violated Sec. 8(a)(1) by surveillance or giving the impression of surveil- lance of employees’ protected activity; and (c) Respondent 1525 Albany Avenue Meat LLC violated Sec. 8(a)(1) by maintaining overly broad work rules concerning loitering and a catch-all disciplinary provision. No exceptions were filed to the judge’s findings that (a) Respondent 1525 Albany Avenue Meat LLC violated Sec. 8(a)(1) of the Act by main- taining an overly broad no-solicitation rule and (b) Respondent HB84 Food Corp. violated Sec. 8(a)(1) of the Act by interrogating Nelson Quiles. 6 We shall modify the judge’s recommended Order to reflect the vio- lations found, and to conform to the Board’s standard remedial language and the judge’s Feb. 9, 2018 modifications to his recommended Order. We shall substitute new notices to conform to the Order as modified. SEVEN SEAS UNION SQUARE, LLC 3 ORDER The National Labor Relations Board orders that A. Respondent HB 84 Food Corp., Howard Beach, New York, and Key Food Stores Co-operative, Inc., Staten Island, New York, joint employers, their officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Interrogating employees about their union activities. (b) Refusing to hire employees because of their union activities. (c) Causing a different employer to lay off employees because of their union activities. (d) Failing and refusing to bargain with United Food and Commercial Workers Union, Local 342, AFL–CIO (the Union) as the exclusive collective-bargaining repre- sentative of the employees in the bargaining unit at their Howard Beach, New York facility. (e) Unilaterally laying off unit employees or otherwise changing their terms and conditions of employment with- out first notifying the Union and giving it an opportunity to bargain. (f) Refusing to reinstate employees who are unlawfully laid off. (g) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) On request, bargain with the Union as the exclusive collective-bargaining representative of the employees in the following appropriate unit at their Howard Beach, New York facility concerning terms and conditions of em- ployment and, if an understanding is reached, embody the understanding in a signed agreement: all its employees in its stores herein, engaged in the cut- ting, wrapping and selling of all fresh and smoked meat, poultry, fish and such products customarily handled in the Meat Department at retail in its retail stores or super- markets, and such additional classifications previously recognized by the Employer. (b) Before laying off bargaining unit employees for economic reasons, or before implementing any changes in wages, hours, or other terms and conditions of employ- ment of unit employees, notify and, on request, bargain with the Union as the exclusive collective-bargaining rep- resentative of employees in the above-described bargain- ing unit. 7 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 National Labor Relations Board” shall read “Posted Pursuant to a Judgment of the (c) Make Nelson Quiles whole for any loss of earnings and other benefits suffered as a result of unlawfully caus- ing his layoff and unlawfully refusing to hire him, in the manner set forth in the remedy section of the decision. (d) Within 14 days from the date of this Order, offer Khadisha Diaz, Richard Maffia, and Venus Nepay full re- instatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without preju- dice to their seniority or any other rights or privileges pre- viously enjoyed. (e) Make Khadisha Diaz, Richard Maffia, and Venus Nepay whole for any loss of earnings and other benefits suffered as a result of their unlawful layoff, in the manner set forth in the remedy section of the decision. (f) Compensate Khadisha Diaz, Richard Maffia, Venus Nepay, and Nelson Quiles for the adverse tax conse- quences, if any, of receiving lump-sum backpay awards, and file with the Regional Director for Region 29, within 21 days of the date the amount of backpay is fixed, either by agreement or Board order, a report allocating the back- pay awards to the appropriate calendar years for each em- ployee. (g) Within 14 days from the date of this Order, remove from their files any reference to the unlawful layoff of Khadisha Diaz, Richard Maffia, and Venus Nepay, and within 3 days thereafter notify them in writing that this has been done and that the layoffs will not be used against them in any way. (h) Preserve and, within 14 days of a request, or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place desig- nated by the Board or its agents, all payroll records, social security payment records, timecards, personnel records and reports, and all other records, including an electronic copy of such records if stored in electronic form, neces- sary to analyze the amount of backpay due under the terms of this Order. (i) Within 14 days after service by the Region, post at their facilities in Howard Beach, New York, copies of the attached notice marked “Appendix A.”7 Copies of the no- tice, on forms provided by the Regional Director for Re- gion 29, after being signed by the Respondents’ author- ized representative, shall be posted by the Respondents and maintained for 60 consecutive days in conspicuous places, including all places where notices to employees are customarily posted. In addition to physical posting of pa- per notices, notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Respondents United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” 4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD customarily communicate with their employees by such means. Reasonable steps shall be taken by the Respond- ents to ensure that the notice is not altered, defaced, or covered by any other material. If the Respondents have gone out of business or closed the facilities involved in these proceedings, the Respondents shall duplicate and mail, at their own expense, a copy of the notice to all cur- rent employees and former employees employed by the Respondents at any time since September 6, 2015. (j) Within 21 days after service by the Region, file with the Regional Director for Region 29 a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondents have taken to comply. B. Respondent 100 Greaves Lane Meat LLC, Staten Is- land, New York, and Key Food Stores Co-operative, Inc., Staten Island, New York, joint employers, their officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Laying off employees because of their union activ- ities. (b) Failing and refusing to bargain with United Food and Commercial Workers Union, Local 342, AFL–CIO (the Union) as the exclusive collective-bargaining repre- sentative of the employees in the bargaining unit at their Staten Island, New York facility. (c) Unilaterally laying off unit employees or otherwise changing their terms and conditions of employment with- out first notifying the Union and giving it an opportunity to bargain. (d) Refusing to reinstate employees who are unlawfully laid off. (e) Unilaterally reducing the work days of unit employ- ees without first notifying the Union and giving it an op- portunity to bargain. (f) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) On request, bargain with the Union as the exclusive collective-bargaining representative of the employees in the following appropriate unit at their Staten Island, New York facility concerning terms and conditions of employ- ment and, if an understanding is reached, embody the un- derstanding in a signed agreement: all its employees in its stores herein, engaged in the cut- ting, wrapping and selling of all fresh and smoked meat, poultry, fish and such products customarily handled in the Meat Department at retail in its retail stores or supermarkets, and such additional classifications previ- ously recognized by the Employer. (b) Before laying off bargaining unit employees for economic reasons or reducing their work days, or before implementing any changes in wages, hours, or other terms and conditions of employment of unit employees, notify and, on request, bargain with the Union as the exclusive collective-bargaining representative of employees in the above-described bargaining unit. (c) Rescind the unlawful change in the work days of unit employees that was unilaterally implemented in No- vember 2015. (d) Within 14 days from the date of this Order, offer Debra Abruzzese, Gina Cammarano, Michael Fischetti, and Anthony Venditti full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed. (e) Make Debra Abruzzese, Gina Cammarano, Michael Fischetti, and Anthony Venditti whole for any loss of earnings and other benefits suffered as a result of their un- lawful layoffs, in the manner set forth in the remedy sec- tion of the decision. (f) Within 14 days from the date of this Order, remove from their files any reference to the unlawful layoffs of Debra Abruzzese, Gina Cammarano, Michael Fischetti, and Anthony Venditti, and within 3 days thereafter notify them in writing that this has been done and that the layoffs will not be used against them in any way. (g) Make whole unit employees for any loss of earnings and other benefits suffered as a result of the unlawful re- duction in their work days from 6 to 5, in the manner set forth in the remedy section of the decision. (h) Compensate Debra Abruzzese, Gina Cammarano, Michael Fischetti, Anthony Venditti, and all employees entitled to backpay because of the unlawful reduction in work days for the adverse tax consequences, if any, of re- ceiving a lump-sum backpay award, and file with the Re- gional Director for Region 29, within 21 days of the date the amount of backpay is fixed, either by agreement or Board order, a report allocating the backpay awards to the appropriate calendar years for each employee. (i) Preserve and, within 14 days of a request, or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place desig- nated by the Board or its agents, all payroll records, social security payment records, timecards, personnel records and reports, and all other records, including an electronic copy of such records if stored in electronic form, neces- sary to analyze the amount of backpay due under the terms of this Order. SEVEN SEAS UNION SQUARE, LLC 5 (j) Within 14 days after service by the Region, post at their facility in Staten Island, New York, copies of the at- tached notice marked “Appendix B.”8 Copies of the no- tice, on forms provided by the Regional Director for Re- gion 29, after being signed by the Respondents’ author- ized representative, shall be posted by the Respondents and maintained for 60 consecutive days in conspicuous places, including all places where notices to employees are customarily posted. In addition to physical posting of pa- per notices, notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Respondents custom- arily communicate with their employees by such means. Reasonable steps shall be taken by the Respondents to en- sure that the notice is not altered, defaced, or covered by any other material. If the Respondents have gone out of business or closed the facilities involved in these proceed- ings, the Respondents shall duplicate and mail, at their own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since November 28, 2015. (k) Within 21 days after service by the Region, file with the Regional Director for Region 29 a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondents have taken to comply. C. Respondent 1525 Albany Avenue Meat LLC, Brooklyn, New York, and Key Food Stores Co-operative, Inc., Staten Island, New York, joint employers, their of- ficers, agents, successors, and assigns, shall 1. Cease and desist from (a) Maintaining an overly broad rule that prohibits em- ployees from engaging in protected solicitation on non- working times and in non-working areas and requires em- ployees to report protected activities to management. (b) Promulgating rules in response to employees’ union activities. (c) Failing and refusing to meet and bargain with United Food and Commercial Workers Union, Local 342, AFL–CIO (the Union) as the exclusive collective-bargain- ing representative of the employees in the bargaining unit at their Brooklyn, New York facility. (d) Laying off or discharging employees because of their union activities. (e) Unilaterally laying off unit employees or otherwise changing their terms and conditions of employment with- out first notifying the Union and giving it an opportunity to bargain. 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 National Labor Relations Board” shall read “Posted Pursuant to a Judgment of the (f) Refusing to reinstate employees who are unlawfully laid off. (g) Demoting employees, reducing the work hours of employees, and/or reducing the wage rates of employees because of their union activities. (h) Unilaterally demoting, reducing the work hours, and/or reducing the wage rate of unit employees or other- wise changing their terms and conditions of employment without first notifying the Union and giving it an oppor- tunity to bargain. (i) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) On request, bargain with the Union as the exclusive collective-bargaining representative of the employees in the following appropriate unit at their Brooklyn, New York facility concerning terms and conditions of employ- ment and, if an understanding is reached, embody the un- derstanding in a signed agreement: all its employees in its stores herein, engaged in the cut- ting, wrapping and selling of all fresh and smoked meat, poultry, fish and such products customarily handled in the Meat Department at retail in its retail stores or super- markets, and such additional classifications previously recognized by the Employer. (b) Before laying off bargaining unit employees for economic reasons, demoting them, reducing their work hours and/or wage rates, or implementing any other- changes in their wages, hours, or other terms and condi- tions of employment, notify and, on request, bargain with the Union as the exclusive collective-bargaining repre- sentative of employees in the above-described bargaining unit. (c) Rescind the unlawful changes in the job classifica- tion, work hours and wage rates of unit employees that were unilaterally implemented in January 2016. (d) Rescind its rules concerning no solicitation, politi- cal activity, loitering, and a catch-all disciplinary provi- sion from the employee handbook entitled “Key Food Rules & Regulations.” Furnish employees with inserts for the current employee handbook that (1) advise that the un- lawful provisions have been rescinded, or (2) provide law- fully worded provisions on adhesive backing that will cover the unlawful provisions; or publish and distribute to employees revised employee handbooks that (1) do not United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” 6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD contain the unlawful provisions, or (2) provide lawfully worded provisions. (e) Within 14 days from the date of this Order, offer Jo- seph Batiste, Kalvin Harris, Robert Jenzen and Stephen Fiore full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed. (f) Make Joseph Batiste, Kalvin Harris, Robert Jenzen, and Stephen Fiore whole for any loss of earnings and other benefits suffered as a result of their unlawful layoffs or discharge, in the manner set forth in the remedy section of the decision. (g) Make Robert Jenzen whole for the unlawful reduc- tions in his work hours, in the manner set forth in the rem- edy section of the decision. (h) Make Stephen Fiore whole for his unlawful demo- tion, reduction of wage rate, and reduction of work hours, in the manner set forth in the remedy section of the deci- sion. (i) Compensate Joseph Batiste, Kalvin Harris, Robert Jenzen and Stephen Fiore for the adverse tax conse- quences, if any, of receiving lump-sum backpay awards, and file with the Regional Director for Region 29, within 21 days of the day the amount of backpay is fixed, either by agreement or Board order, a report allocating the back- pay awards to the appropriate calendar quarters for each employee. (j) Within 14 days from the date of this Order, remove from their files any reference to the unlawful layoffs, dis- charge, and reductions of wage rates and hours of Joseph Batiste, Kalvin Harris, Robert Jenzen and Stephen Fiore, and within 3 days thereafter notify them in writing that this has been done and that the unlawful layoffs and reductions of wage rates and hours will not be used against them in any way. (k) Preserve and, within 14 days of a request, or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place desig- nated by the Board or its agents, all payroll records, social security payment records, timecards, personnel records and reports, and all other records, including an electronic copy of such records if stored in electronic form, neces- sary to analyze the amount of backpay due under the terms of this Order. (l) Within 14 days after service by the Region, post at their facility in Brooklyn, New York, copies of the at- tached notice marked “Appendix C.”9 Copies of the no- tice, on forms provided by the Regional Director for 9 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 National Labor Relations Board” shall read “Posted Pursuant to a Judgment of the Region 29, after being signed by the Respondents’ author- ized representative, shall be posted by the Respondents and maintained for 60 consecutive days in conspicuous places, including all places where notices to employees are customarily posted. In addition to physical posting of pa- per notices, notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Respondents custom- arily communicate with their employees by such means. Reasonable steps shall be taken by the Respondents to en- sure that the notice is not altered, defaced, or covered by any other material. If the Respondents have gone out of business or closed the facilities involved in these proceed- ings, the Respondents shall duplicate and mail, at their own expense, a copy of the notice to all current employees and former employees employed by the Respondents at any time since November 28, 2015. (m) Within 21 days after service by the Region, file with the Regional Director for Region 29 a sworn certifi- cation of a responsible official on a form provided by the Region attesting to the steps that the Respondents have taken to comply. D. Respondent Seven Seas Union Square, LLC, New York, New York, and Key Food Stores Co-operative, Inc., Staten Island, New York, joint employers, their officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to meet and bargain with United Food and Commercial Workers Union, Local 342, AFL–CIO (the Union) as the exclusive collective-bargain- ing representative of the employees in the bargaining unit at their New York, New York facility. (b) Refusing to hire employees because of their union activity or because the Union engaged in activities on the employees’ behalf. (c) Unilaterally laying off unit employees or otherwise changing their terms and conditions of employment with- out first notifying the Union and giving it an opportunity to bargain. (d) Refusing to reinstate employees who are unilater- ally laid off. (e) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) On request, bargain with the Union as the exclusive collective-bargaining representative of the employees in the following appropriate unit at their New York, New United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” SEVEN SEAS UNION SQUARE, LLC 7 York facility concerning terms and conditions of employ- ment and, if an understanding is reached, embody the un- derstanding in a signed agreement: all store employees, including Meat Department Heads, Meat Department employees, Grocery employees, and part-time employees, except Store Managers, Assistant Managers, Guards, Watchmen and all executives and supervisory employees of stores which are located in the Counties of Bronx and Manhattan. (b) Before laying off bargaining unit employees for economic reasons, or before implementing any changes in wages, hours, or other terms and conditions of employ- ment of unit employees, notify and, on request, bargain with the Union as the exclusive collective-bargaining rep- resentative of employees in the above-described bargain- ing unit. (c) Within 14 days from the date of this Order, offer Jose Carlos Colon, Juana Diaz, Keesha Fields, Madeline Gomez, Dena Iturralde, Tamika Jones, Maria Ortega, Elena Pagan, and Rosa Silverio instatement to the posi- tions they held as employees of The Great Atlantic & Pa- cific Tea Company or, if such positions no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed. (d) Within 14 days from the date of this Order, of- fer Ayanna Jordan full reinstatement to her former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to her seniority or any other rights or privileges previously enjoyed. (e) Make Jose Carlos Colon, Juana Diaz, Keesha Fields, Madeline Gomez, Dena Itturalde, Tamika Jones, Maria Ortega, Elena Pagan, and Rosa Silverio whole for any loss of earnings and other benefits suffered as a result of the unlawful refusal to hire them, in the manner set forth in the remedy section of the decision. (f) Make Ayanna Jordan whole for any loss of earnings and other benefits suffered as a result of her unlawful layoff, in the manner set forth in the remedy section of the decision. (g) Compensate Jose Carlos Colon, Juana Diaz, Keesha Fields, Madeline Gomez, Dena Iturralde, Tamika Jones, Ayanna Jordan, Maria Ortega, Elena Pagan, and Rosa Sil- verio for the adverse tax consequences, if any, of receiving lump-sum backpay awards, and file with the Regional Di- rector for Region 29, within 21 days of the date the amount of backpay is fixed, either by agreement or Board order, a 10 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 National Labor Relations Board” shall read “Posted Pursuant to a Judgment of the report allocating the backpay awards to the appropriate calendar years for each employee. (h) Within 14 days from the date of this Order, remove from their files any reference to the unlawful refusal to hire Jose Carlos Colon, Juana Diaz, Keesha Fields, Made- line Gomez, Dena Iturralde, Tamika Jones, Maria Ortega, Elena Pagan, and Rosa Silverio and the unlawful layoff of Ayanna Jordan, and within 3 days thereafter, notify each of them in writing that this has been done and that the un- lawful layoff and refusals to hire will not be used against them in any way. (i) Preserve and, within 14 days of a request, or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place desig- nated by the Board or its agents, all payroll records, social security payment records, timecards, personnel records and reports, and all other records, including an electronic copy of such records if stored in electronic form, neces- sary to analyze the amount of backpay due under the terms of this Order. (j) Within 14 days after service by the Region, post at their facility in New York, New York, copies of the at- tached notice marked “Appendix D.”10 Copies of the no- tice, on forms provided by the Regional Director for Re- gion 29, after being signed by the Respondents’ author- ized representative, shall be posted by the Respondents and maintained for 60 consecutive days in conspicuous places, including all places where notices to employees are customarily posted. In addition to physical posting of pa- per notices, notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Respondents custom- arily communicate with their employees by such means. Reasonable steps shall be taken by the Respondents to en- sure that the notice is not altered, defaced, or covered by any other material. If the Respondents have gone out of business or closed the facilities involved in these proceed- ings, the Respondents shall duplicate and mail, at their own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since November 9, 2015. (k) Within 21 days after service by the Region, file with the Regional Director for Region 29 a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondents have taken to comply. E. Respondent Key Food CS2, LLC, d/b/a Food Uni- verse, Bayside, New York, and Key Food Stores Co- United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” 8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD operative, Inc., Staten Island, New York, joint employers, their officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to bargain with United Food and Commercial Workers Union, Local 342, AFL–CIO (the Union) as the exclusive collective-bargaining repre- sentative of the employees in the bargaining unit at their Bayside, New York, facility. (b) Unilaterally laying off unit employees or otherwise changing their terms and conditions of employment with- out first notifying the Union and giving it an opportunity to bargain. (c) Refusing to reinstate employees who are unilater- ally laid off. (d) Bypassing the Union and dealing directly with unit employees regarding their wages, hours and other terms and conditions of employment. (e) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) On request, bargain with the Union as the exclusive collective-bargaining representative of the employees in the following appropriate unit at their Bayside, New York facility concerning terms and conditions of employment and, if an understanding is reached, embody the under- standing in a signed agreement: all its employees in its stores herein, engaged in the cut- ting, wrapping and selling of all fresh and smoked meat, poultry, fish and such products customarily handled in the Meat Department at retail in its retail stores or super- markets, and such additional classifications previously recognized by the Employer. (b) Before laying off bargaining unit employees for economic reasons, or before implementing any changes in wages, hours, or other terms and conditions of employ- ment of unit employees, notify and, on request, bargain with the Union as the exclusive collective-bargaining rep- resentative of employees in the above-described bargain- ing unit. (c) Upon the Union’s request, rescind the severance agreement signed by Mariano Rosado. (d) Within 14 days from the date of this Order, offer Mariano Rosado full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent 11 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 National Labor Relations Board” shall read “Posted Pursuant to a Judgment of the position, without prejudice to his seniority or any other rights or privileges previously enjoyed. (e) Make Mariano Rosado whole for any loss of earn- ings and other benefits suffered as a result of his unlawful layoff, in the manner set forth in the remedy section of the decision. (f) Compensate Mariano Rosado for the adverse tax consequences, if any, of receiving a lump-sum backpay award, and file with the Regional Director for Region 29, within 21 days of the date the amount of backpay is fixed, either by agreement or Board order, a report allocating the backpay award to the appropriate calendar years. (g) Within 14 days from the date of this Order, remove from their files any reference to the unlawful layoff of Mariano Rosado, and within 3 days thereafter notify him in writing that this has been done and that the layoff will not be used against him in any way. (h) Preserve and, within 14 days of a request, or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place desig- nated by the Board or its agents, all payroll records, social security payment records, timecards, personnel records and reports, and all other records, including an electronic copy of such records if stored in electronic form, neces- sary to analyze the amount of backpay due under the terms of this Order. (i) Within 14 days after service by the Region, post at their facility in Bayside, New York, copies of the attached notice marked “Appendix E.”11 Copies of the notice, on forms provided by the Regional Director for Region 29, after being signed by the Respondents’ authorized repre- sentative, shall be posted by the Respondents and main- tained for 60 consecutive days in conspicuous places, in- cluding all places where notices to employees are custom- arily posted. In addition to physical posting of paper no- tices, notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Respondents customarily communicate with their employees by such means. Rea- sonable steps shall be taken by the Respondents to ensure that the notice is not altered, defaced, or covered by any other material. If the Respondents have gone out of busi- ness or closed the facilities involved in these proceedings, the Respondents shall duplicate and mail, at their own ex- pense, a copy of the notice to all current employees and former employees employed by the Respondents at any time since January 3, 2016. (j) Within 21 days after service by the Region, file with the Regional Director for Region 29 a sworn certification United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” SEVEN SEAS UNION SQUARE, LLC 9 of a responsible official on a form provided by the Region attesting to the steps that the Respondents have taken to comply. F. Respondent Riverdale Grocers LLC, Bronx, New York, and Key Food Stores Co-operative, Inc., Staten Is- land, New York, joint employers, their officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to bargain with United Food and Commercial Workers Union, Local 342, AFL–CIO (the Union) as the exclusive collective-bargaining repre- sentative of the employees in the bargaining unit at their Bronx, New York facility. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) On request, bargain with the Union as the exclusive collective-bargaining representative of the employees in the following appropriate unit at their Bronx, New York facility concerning terms and conditions of employment and, if an understanding is reached, embody the under- standing in a signed agreement: its employees who, in the Counties of New York and Bronx in the City and State of New York, are engaged in the cutting, wrapping and selling of all fresh and smoked meats, poultry, fish and such products custom- arily handled in the Meat Department, at retail in the Employer’s retail stores or supermarkets, and such addi- tional classifications previously recognized by the Em- ployer. (b) Within 14 days after service by the Region, post at their facility in Bronx, New York, copies of the attached notice marked “Appendix F.”12 Copies of the notice, on forms provided by the Regional Director for Region 29, after being signed by the Respondents’ authorized repre- sentative, shall be posted by the Respondents and main- tained for 60 consecutive days in conspicuous places, in- cluding all places where notices to employees are custom- arily posted. In addition to physical posting of paper no- tices, notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Respondents customarily communicate with their employees by such means. Rea- sonable steps shall be taken by the Respondents to ensure 12 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 National Labor Relations Board” shall read “Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” that the notice is not altered, defaced, or covered by any other material. If the Respondents have gone out of busi- ness or closed the facilities involved in these proceedings, the Respondents shall duplicate and mail, at their own ex- pense, a copy of the notice to all current employees and former employees employed by the Respondents at any time since July 16, 2016. (c) Within 21 days after service by the Region, file with the Regional Director for Region 29 a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondents have taken to comply. G. Respondent Jar 259 Food Corp., Glen Oaks, New York, and Key Food Stores Co-operative, Inc., Staten Is- land, New York, joint employers, their officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to bargain with United Food and Commercial Workers Union, Local 342, AFL–CIO (the Union) as the exclusive collective-bargaining repre- sentative of the employees in the bargaining unit at their Glen Oaks, New York facility. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) On request, bargain with the Union as the exclusive collective-bargaining representative of the employees in the following appropriate unit at their Glen Oaks, New York facility concerning terms and conditions of employ- ment and, if an understanding is reached, embody the un- derstanding in a signed agreement: all its employees in its stores herein, engaged in the cut- ting, wrapping and selling of all fresh and smoked meat, poultry, fish and such products customarily handled in the Meat Department at retail in its retail stores or super- markets, and such additional classifications previously recognized by the Employer. (b) Within 14 days after service by the Region, post at their facility in Glen Oaks, New York, copies of the at- tached notice marked “Appendix G.”13 Copies of the no- tice, on forms provided by the Regional Director for Re- gion 29, after being signed by the Respondents’ author- ized representative, shall be posted by the Respondents and maintained for 60 consecutive days in conspicuous 13 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 National Labor Relations Board” shall read “Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” 10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD places, including all places where notices to employees are customarily posted. In addition to physical posting of pa- per notices, notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Respondents custom- arily communicate with their employees by such means. Reasonable steps shall be taken by the Respondents to en- sure that the notice is not altered, defaced, or covered by any other material. If the Respondents have gone out of business or closed the facilities involved in these proceed- ings, the Respondents shall duplicate and mail, at their own expense, a copy of the notice to all current employees and former employees employed by the Respondents at any time since July 16, 2016. (c) Within 21 days after service by the Region, file with the Regional Director for Region 29 a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondents have taken to comply. H. Respondent Park Plaza Food Corp., Glen Head, New York, and Key Food Stores Co-operative, Inc., Staten Is- land, New York, joint employers, their officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to bargain with United Food and Commercial Workers Union, Local 342, AFL–CIO (the Union) as the exclusive collective-bargaining repre- sentative of the employees in the bargaining unit at their Glen Head, New York facility. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) On request, bargain with the Union as the exclusive collective-bargaining representative of the employees in the following appropriate unit at their Glen Head, New York facility concerning terms and conditions of employ- ment and, if an understanding is reached, embody the un- derstanding in a signed agreement: all its employees in its stores herein, engaged in the cut- ting, wrapping and selling of all fresh and smoked meat, poultry, fish and such products customarily handled in the Meat Department at retail in its retail stores or super- markets, and such additional classifications previously recognized by the Employer. 14 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 National Labor Relations Board” shall read “Posted Pursuant to a Judgment of the (b) Within 14 days after service by the Region, post at their facility in Glen Head, New York, copies of the at- tached notice marked “Appendix H.”14 Copies of the no- tice, on forms provided by the Regional Director for Re- gion 29, after being signed by the Respondents’ author- ized representative, shall be posted by the Respondents and maintained for 60 consecutive days in conspicuous places, including all places where notices to employees are customarily posted. In addition to physical posting of pa- per notices, notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Respondents custom- arily communicate with their employees by such means. Reasonable steps shall be taken by the Respondents to en- sure that the notice is not altered, defaced, or covered by any other material. If the Respondents have gone out of business or closed the facilities involved in these proceed- ings, the Respondents shall duplicate and mail, at their own expense, a copy of the notice to all current employees and former employees employed by the Respondents at any time since July 16, 2016. (c) Within 21 days after service by the Region, file with the Regional Director for Region 29 a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondents have taken to comply. I. Respondent Paramount Supermarkets Inc., Brooklyn and Queens, New York, and Key Food Stores Co-opera- tive, Inc., Staten Island, New York, joint employers, their officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to bargain with United Food and Commercial Workers Union, Local 342, AFL–CIO (the Union) as the exclusive collective-bargaining repre- sentative of the employees in the bargaining unit at their Queens, New York facility. (b) Failing and refusing to bargain with the Union as the exclusive collective-bargaining representative of the employees in the bargaining unit at their Brooklyn, New York facility. (c) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) On request, bargain with the Union as the exclusive collective-bargaining representative of the employees in the following appropriate unit at their Queens, New York facility concerning terms and conditions of employment United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” SEVEN SEAS UNION SQUARE, LLC 11 and, if an understanding is reached, embody the under- standing in a signed agreement: all its employees in its stores herein, engaged in the cut- ting, wrapping and selling of all fresh and smoked meat, poultry, fish and such products customarily handled in the Meat Department at retail in its retail stores or super- markets, and such additional classifications previously recognized by the Employer. (b) On request, bargain with the Union as the exclusive collective-bargaining representative of the employees in the following appropriate unit at their Brooklyn, New York facility concerning terms and conditions of employ- ment and, if an understanding is reached, embody the un- derstanding in a signed agreement: all Grocery Department and Meat Department employ- ees, including Meat Department Heads and part-time employees, and Pharmacy Department employees ex- cept all executives, supervisory employees and Phar- macy managers of stores which are located in the Coun- ties of Nassau, Suffolk, Kings, Queens and the stores lo- cated in the Borough of Richmond. (c) Within 14 days after service by the Region, post at their facilities in Brooklyn and Queens, New York, copies of the attached notice marked “Appendix I.”15 Copies of the notice, on forms provided by the Regional Director for Region 29, after being signed by the Respondents’ author- ized representative, shall be posted by the Respondents and maintained for 60 consecutive days in conspicuous places, including all places where notices to employees are customarily posted. In addition to physical posting of pa- per notices, notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Respondents custom- arily communicate with their employees by such means. Reasonable steps shall be taken by the Respondents to en- sure that the notice is not altered, defaced, or covered by any other material. If the Respondents have gone out of business or closed the facilities involved in these proceed- ings, the Respondent shall duplicate and mail, at their own expense, a copy of the notice to all current employees and former employees employed by the Respondents at any time since July 16, 2016. (d) Within 21 days after service by the Region, file with the Regional Director for Region 29 a sworn certification of a responsible official on a form provided by the Region 15 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 National Labor Relations Board” shall read “Posted Pursuant to a Judgment of the attesting to the steps that the Respondents have taken to comply. Dated, Washington, D.C. October 16, 2019 ______________________________________ John F. Ring, Chairman ______________________________________ Lauren McFerran, Member _____________________________________ William J. Emanuel, Member (SEAL) NATIONAL LABOR RELATIONS BOARD APPENDIX A NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we vi- olated 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 ac- tivities. WE WILL NOT interrogate you about your union activi- ties. WE WILL NOT refuse to hire you because of your union activities. WE WILL NOT cause a different employer to lay you off because of your union activities. WE WILL NOT fail and refuse to bargain with United Food and Commercial Workers Union, Local 342, AFL– CIO (the Union) as the exclusive collective-bargaining representative of our employees in the bargaining unit at our Howard Beach, New York facility. United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” 12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD WE WILL NOT unilaterally lay you off or otherwise change your terms and conditions of employment without first notifying the Union and giving it an opportunity to bargain. WE WILL NOT refuse to reinstate you after you are un- lawfully laid off. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights listed above. WE WILL, on request, bargain with the Union as the ex- clusive collective-bargaining representative of our em- ployees in the following appropriate unit at our Howard Beach, New York facility concerning terms and condi- tions of employment and, if an understanding is reached, embody the understanding in a signed agreement: all its employees in its stores herein, engaged in the cut- ting, wrapping and selling of all fresh and smoked meat, poultry, fish and such products customarily handled in the Meat Department at retail in its retail stores or super- markets, and such additional classifications previously recognized by the Employer. WE WILL, before laying you off for economic reasons, or before implementing any changes in wages, hours, or other terms and conditions of employment of unit employ- ees, notify and, on request, bargain with the Union as the exclusive collective-bargaining representative of our em- ployees in the above-described bargaining unit. WE WILL make Nelson Quiles whole for any loss of earnings and other benefits resulting from our unlawfully causing his layoff and unlawfully refusing to hire him, less any net interim earnings, plus interest, and WE WILL also make him whole for reasonable search-for-work and in- terim employment expenses, plus interest. WE WILL, within 14 days from the date of the Board’s Order, offer Khadisha Diaz, Richard Maffia, and Venus Nepay full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed. WE WILL make Khadisha Diaz, Richard Maffia, and Ve- nus Nepay whole for any loss of earnings and other bene- fits resulting from their unlawful layoff, less any net in- terim earnings, plus interest, and WE WILL also make such employees whole for reasonable search-for-work and in- terim employment expenses, plus interest. WE WILL compensate Khadisha Diaz, Richard Maffia, Venus Nepay, and Nelson Quiles for the adverse tax con- sequences, if any, of receiving lump-sum backpay awards, and WE WILL file with the Regional Director for Region 29, within 21 days of the date the amount of backpay is fixed, either by agreement or Board order, a report allocating the backpay awards to the appropriate calendar years for each employee. WE WILL, within 14 days from the date of the Board’s Order, remove from our files any reference to the unlawful layoff of Khadisha Diaz, Richard Maffia, and Venus Nepay, and WE WILL, within 3 days thereafter, notify them in writing that this has been done and that the layoffs will not be used against them in any way. HB84 FOOD CORP. AND KEY FOOD STORES CO- OPERATIVE, INC. The Board’s decision can be found at www.nlrb.gov/case/29-CA-164058 or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273-1940. APPENDIX B NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we vi- olated 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 ac- tivities. WE WILL NOT lay you off because of your union activi- ties. WE WILL NOT fail and refuse to bargain with United Food and Commercial Workers Union, Local 342, AFL– CIO (the Union) as the exclusive collective-bargaining SEVEN SEAS UNION SQUARE, LLC 13 representative of our employees in the bargaining unit at our Staten Island, New York facility. WE WILL NOT unilaterally lay you off or otherwise change your terms and conditions of employment without first notifying the Union and giving it an opportunity to bargain. WE WILL NOT refuse to reinstate you after you are un- lawfully laid off. WE WILL NOT unilaterally reduce your workdays or oth- erwise change your terms and conditions of employment without first notifying the Union and giving it an oppor- tunity to bargain. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights listed above. WE WILL, on request, bargain with the Union as the ex- clusive collective-bargaining representative of our em- ployees in the following appropriate unit at our Staten Is- land, New York facility concerning terms and conditions of employment and, if an understanding is reached, em- body the understanding in a signed agreement: all its employees in its stores herein, engaged in the cut- ting, wrapping and selling of all fresh and smoked meat, poultry, fish and such products customarily handled in the Meat Department at retail in its retail stores or super- markets, arid such additional classifications previously recognized by the Employer. WE WILL, before laying you off for economic reasons or reducing your workdays, or before implementing any changes in wages, hours, or other terms and conditions of employment of unit employees, notify and, on request, bargain with the Union as the exclusive collective-bar- gaining representative of our employees in the above-de- scribed bargaining unit. WE WILL rescind the unlawful change in your workdays that we unilaterally implemented in November 2015. WE WILL, within 14 days from the date of the Board’s Order, offer Debra Abruzzese, Gina Cammarano, Michael Fischetti, and Anthony Venditti full reinstatement to their former jobs or, if those jobs no longer exist, to substan- tially equivalent positions, without prejudice to their sen- iority or any other rights or privileges previously enjoyed. WE WILL make Debra Abruzzese, Gina Cammarano, Michael Fischetti, and Anthony Venditti whole for any loss of earnings and other benefits resulting from their un- lawful layoffs, less any net interim earnings, plus interest, and WE WILL also make such employees whole for reason- able search-for-work and interim employment expenses, plus interest. WE WILL, within 14 days from the date of the Board’s Order, remove from our files any reference to the unlawful layoffs of Debra Abruzzese, Gina Cammarano, Michael Fischetti, and Anthony Venditti, and WE WILL, within 3 days thereafter, notify them in writing that this has been done and that the layoffs will not be used against them in any way. WE WILL make whole unit employees for any loss of earnings and other benefits suffered as a result of our un- lawful reduction in their workdays from 6 to 5, plus inter- est. WE WILL compensate Debra Abruzzese, Gina Cam- marano, Michael Fischetti, Anthony Venditti, and all em- ployees entitled to backpay because of the unlawful reduc- tion in workdays for the adverse tax consequences, if any, of receiving a lump-sum backpay award, and file with the Regional Director for Region 29, within 21 days of the date the amount of backpay is fixed, either by agreement or Board order, a report allocating the backpay awards to the appropriate calendar years for each employee. 100 GREAVES LANE MEAT LLC AND KEY FOOD STORES CO-OPERATIVE, INC. The Board’s decision can be found at www.nlrb.gov/case/29-CA-164058 or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273-1940. APPENDIX C 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 vi- olated 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 14 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected ac- tivities. WE WILL NOT maintain an overly broad rule that prohib- its you from engaging in protected solicitation on non- working times and in nonworking areas and requires you to report protected activities to management. WE WILL NOT promulgate rules in response to your un- ion activities. WE WILL NOT fail and refuse to bargain with United Food and Commercial Workers Union, Local 342, AFL– CIO (the Union) as the exclusive collective-bargaining representative of our employees in the bargaining unit at our Brooklyn, New York facility. WE WILL NOT lay you off or discharge you because of your union activities. WE WILL NOT unilaterally lay you off or otherwise change your terms and conditions of employment without first notifying the Union and giving it an opportunity to bargain. WE WILL NOT refuse to reinstate you after you are un- lawfully laid off. WE WILL NOT demote you, reduce your work hours, and/or reduce your wage rates because of your union ac- tivities. WE WILL NOT unilaterally demote you, reduce your work hours, and/or reduce your wage rates or otherwise change your terms and conditions of employment without first notifying the Union and giving it an opportunity to bargain. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights listed above. WE WILL, on request, bargain with the Union as the ex- clusive collective-bargaining representative of our em- ployees in the following appropriate unit at our Brooklyn, New York facility concerning terms and conditions of em- ployment and, if an understanding is reached, embody the understanding in a signed agreement: all its employees in its stores herein, engaged in the cut- ting, wrapping and selling of all fresh and smoked meat, poultry, fish and such products customarily handled in the Meat Department at retail in its retail stores or super- markets, and such additional classifications previously recognized by the Employer. WE WILL, before laying you off for economic reasons, demoting you, reducing your work hours and/or wage rates, or implementing any changes in wages, hours, or other terms and conditions of employment of unit employees, notify and, on request, bargain with the Union as the exclusive collective-bargaining representative of our employees in the above-described bargaining unit. WE WILL rescind the unlawful changes in your job clas- sification, work hours, and wage rates that were unilater- ally implemented in January 2016. WE WILL rescind our rules concerning no solicitation, political activity, loitering, and a catch-all disciplinary provision from our employee handbook entitled “Key Food Rules & Regulations.” WE WILL furnish you with inserts for the current em- ployee handbook that (1) advise that the unlawful provi- sions have been rescinded, or (2) provide lawfully worded provisions on adhesive backing that will cover the unlaw- ful provisions; or WE WILL publish and distribute to em- ployees revised employee handbooks that (1) do not con- tain the unlawful provisions, or (2) provide lawfully worded provisions. WE WILL, within 14 days from the date of the Board’s Order, offer Joseph Batiste, Kalvin Harris, Robert Jenzen, and Stephen Fiore full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed. WE WILL make Joseph Batiste, Kalvin Harris, Robert Jenzen and Stephen Fiore whole for any loss of earnings and other benefits resulting from their unlawful layoff or discharge, less any net interim earnings, plus interest, and WE WILL also make such employees whole for reasonable search-for-work and interim employment expenses, plus interest. WE WILL make Robert Jenzen whole for the unlawful reductions in his work hours, plus interest. WE WILL make Stephen Fiore whole for his unlawful demotion, reduction of wage rate, and reduction of work hours, plus interest. WE WILL compensate Joseph Batiste, Kalvin Harris, Robert Jenzen, and Stephen Fiore for the adverse tax con- sequences, if any, of receiving lump-sum backpay awards, and WE WILL file with the Regional Director for Region 29, within 21 days of the date the amount of backpay is fixed, either by agreement or Board Order, a report allo- cating the backpay awards to the appropriate calendar years for each employee. WE WILL, within 14 days from the date of the Board’s Order, remove from our files any reference to the unlawful layoffs, discharge, and reductions of wage rates and hours of Joseph Batiste, Kalvin Harris, Robert Jenzen, and Ste- phen Fiore, and WE WILL, within 3 days thereafter, notify each of them in writing that this has been done and that SEVEN SEAS UNION SQUARE, LLC 15 the unlawful layoffs and reductions will not be used against them in any way. 1525 ALBANY AVENUE MEAT LLC AND KEY FOOD STORES CO-OPERATIVE, INC. The Board’s decision can be found at www.nlrb.gov/case/29-CA-164058 or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273-1940. APPENDIX D 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 vi- olated 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 ac- tivities. WE WILL NOT fail and refuse to bargain with United Food and Commercial Workers Union, Local 342, AFL– CIO (the Union) as the exclusive collective-bargaining representative of our employees in the bargaining unit at our New York, New York facility. WE WILL NOT refuse to hire you because of your union activity or because the Union engaged in activities on your behalf. WE WILL not unilaterally lay you off or otherwise change your terms and conditions of employment without first notifying the Union and giving it an opportunity to bargain. WE WILL NOT refuse to reinstate you after you are un- lawfully laid off. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights listed above. WE WILL, on request, bargain with the Union as the ex- clusive collective-bargaining representative of our em- ployees in the following appropriate unit at our New York, New York facility concerning terms and conditions of em- ployment and, if an understanding is reached, embody the understanding in a signed agreement: all store employees, including Meat Department Heads, Meat Department employees, Grocery employees, and part-time employees, except Store Managers, Assistant Managers, Guards, Watchmen and all executives and supervisory employees of stores which are located in the Counties of Bronx and Manhattan. WE WILL, before laying you off for economic reasons, or before implementing any changes in wages, hours, or other terms and conditions of employment of unit employ- ees, notify and, on request, bargain with the Union as the exclusive collective-bargaining representative of our em- ployees in the above-described bargaining unit. WE WILL, within 14 days from the date of the Board’s Order, offer Jose Carlos Colon, Juana Diaz, Keesha Fields, Madeline Gomez, Dena Iturralde, Tamika Jones, Maria Ortega, Elena Pagan, and Rosa Silverio in- statement to the positions they held as employees of The Great Atlantic & Pacific Tea Company or, if such posi- tions no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed. WE WILL, within 14 days from the date of the Board’s Order, offer Ayanna Jordan full reinstatement to her for- mer job or, if that job no longer exists, to a substantially equivalent position, without prejudice to her seniority or any other rights or privileges previously enjoyed. WE WILL make Jose Carlos Colon, Juana Diaz, Keesha Fields, Madeline Gomez, Dena Iturralde, Tamika Jones, Maria Ortega, Elena Pagan, and Rosa Silverio whole for any loss of earnings and other benefits resulting from our unlawful refusal to hire them, less any net interim earn- ings, plus interest, and WE WILL also make such employees whole for reasonable search-for-work and interim em- ployment expenses, plus interest. WE WILL make Ayanna Jordan whole for any loss of earnings and other benefits resulting from her unlawful layoff, less any net interim earnings, plus interest, and WE WILL also make her whole for reasonable search-for-work and interim employment expenses, plus interest. 16 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD WE WILL compensate Jose Carlos Colon, Juana Diaz, Keesha Fields, Madeline Gomez, Dena Iturralde, Tamika Jones, Ayanna Jordan, Maria Ortega, Elena Pagan, and Rosa Silverio for the adverse tax consequences, if any, of receiving lump-sum backpay awards, and WE WILL file with the Regional Director for Region 29, within 21 days of the date the amount of backpay is fixed, either by agree- ment or Board order, a report allocating the backpay awards to the appropriate calendar years for each em- ployee. WE WILL, within 14 days from the date of the Board’s Order, remove from our files any reference to the unlawful refusal to hire Jose Carlos Colon, Juana Diaz, Keesha Fields, Madeline Gomez, Dena Iturralde, Tamika Jones, Maria Ortega, Elena Pagan, and Rosa Silverio and the un- lawful layoff of Ayanna Jordan, and WE WILL, within 3 days thereafter, notify each of them in writing that this has been done and that the unlawful layoffs and reductions will not be used against them in any way. SEVEN SEAS UNION SQUARE, LLC AND KEY FOOD STORES CO-OPERATIVE, INC. The Board’s decision can be found at www.nlrb.gov/case/29-CA-164058 or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273-1940. APPENDIX E 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 vi- olated 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 ac- tivities. WE WILL NOT fail and refuse to bargain with United Food and Commercial Workers Union, Local 342, AFL– CIO (the Union) as the exclusive collective-bargaining representative of our employees in the bargaining unit at our Bayside, New York facility. WE WILL NOT unilaterally lay you off or otherwise change your terms and conditions of employment without first notifying the Union and giving it an opportunity to bargain. WE WILL NOT refuse to reinstate you after you are un- lawfully laid off. WE WILL NOT bypass the Union and deal directly with you regarding your wages, hours and other terms and con- ditions of employment. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights listed above. WE WILL, on request, bargain with the Union as the ex- clusive collective-bargaining representative of our em- ployees in the following appropriate unit at our Bayside, New York facility concerning terms and conditions of em- ployment and, if an understanding is reached, embody the understanding in a signed agreement: all its employees in its stores herein, engaged in the cut- ting, wrapping and selling of all fresh and smoked meat, poultry, fish and such products customarily handled in the Meat Department at retail in its retail stores or super- markets, and such additional classifications previously recognized by the Employer. WE WILL, before laying you off for economic reasons, or before implementing any changes in wages, hours, or other terms and conditions of employment of unit employ- ees, notify and, on request, bargain with the Union as the exclusive collective-bargaining representative of our em- ployees in the above-described bargaining unit. WE WILL, upon the Union’s request, rescind the sever- ance agreement signed by Mariano Rosado. WE WILL, within 14 days from the date of the Board’s Order, offer Mariano Rosado full reinstatement to his for- mer job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights or privileges previously enjoyed. WE WILL make Mariano Rosado whole for any loss of earnings and other benefits resulting from his unlawful layoff, less any net interim earnings, plus interest, and WE SEVEN SEAS UNION SQUARE, LLC 17 WILL also make him whole for reasonable search-for-work and interim employment expenses, plus interest. WE WILL compensate Mariano Rosado for the adverse tax consequences, if any, of receiving a lump-sum back- pay award, and WE WILL file with the Regional Director for Region 29, within 21 days of the date the amount of backpay is fixed, either by agreement or Board order, a report allocating the backpay awards to the appropriate calendar years. WE WILL, within 14 days from the date of the Board’s Order, remove from our files any reference to the unlawful layoff of Mariano Rosado, and WE WILL, within 3 days thereafter, notify him in writing that this has been done and that the layoff will not be used against him in any way. KEY FOOD CS2, LLC, D/B/A FOOD UNIVERSE AND KEY FOOD STORES CO-OPERATIVE, INC. The Board’s decision can be found at www.nlrb.gov/case/29-CA-164058 or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273-1940. APPENDIX F 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 vi- olated 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 ac- tivities. WE WILL NOT fail and refuse to bargain with United Food and Commercial Workers Union, Local 342, AFL– CIO (the Union) as the exclusive collective-bargaining representative of our employees in the bargaining unit at our Bronx, New York facility. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights listed above. WE WILL, on request, bargain with the Union as the ex- clusive collective-bargaining representative of the em- ployees in the following appropriate unit at our Bronx, New York facility concerning terms and conditions of em- ployment and, if an understanding is reached, embody the understanding in a signed agreement: its employees who, in the Counties of New York and Bronx in the City and State of New York, are engaged in the cutting, wrapping and selling of all fresh and smoked meats, poultry, fish and such products custom- arily handled in the Meat Department, at retail in the Employer’s retail stores or supermarkets, and such addi- tional classifications previously recognized by the Em- ployer. RIVERDALE GROCERS LLC AND KEY FOOD STORES CO-OPERATIVE, INC. The Board’s decision can be found at www.nlrb.gov/case/29-CA-164058 or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273-1940. APPENDIX G 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 vi- olated Federal labor law and has ordered us to post and obey this notice. 18 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 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 ac- tivities. WE WILL NOT fail and refuse to bargain with United Food and Commercial Workers Union, Local 342, AFL– CIO (the Union) as the exclusive collective-bargaining representative of our employees in the bargaining unit at our Glen Oaks, New York facility. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights listed above. WE WILL, on request, bargain with the Union as the ex- clusive collective-bargaining representative of the em- ployees in the following appropriate unit at our Glen Oaks, New York facility concerning terms and conditions of em- ployment and, if an understanding is reached, embody the understanding in a signed agreement: all its employees in its stores herein, engaged in the cut- ting, wrapping and selling of all fresh and smoked meat, poultry, fish and such products customarily handled in the Meat Department at retail in its retail stores or super- markets, and such additional classifications previously recognized by the Employer. JAR 259FOOD CORP. AND KEY FOOD STORES CO- OPERATIVE, INC., The Board’s decision can be found at www.nlrb.gov/case/29-CA-164058 or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273-1940. APPENDIX H 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 vi- olated 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 ac- tivities. WE WILL NOT fail and refuse to bargain with United Food and Commercial Workers Union, Local 342, AFL– CIO (the Union) as the exclusive collective-bargaining representative of our employees in the bargaining unit at our Glen Head, New York facility. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights listed above. WE WILL, on request, bargain with the Union as the ex- clusive collective-bargaining representative of the em- ployees in the following appropriate unit at our Glen Head, New York facility concerning terms and conditions of employment and, if an understanding is reached, em- body the understanding in a signed agreement: all its employees in its stores herein, engaged in the cut- ting, wrapping and selling of all fresh and smoked meat, poultry, fish and such products customarily handled in the Meat Department at retail in its retail stores or super- markets, and such additional classifications previously recognized by the Employer. PARK PLAZA FOOD CORP. AND KEY FOOD STORES CO-OPERATIVE, INC., The Board’s decision can be found at www.nlrb.gov/case/29-CA-164058 or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273-1940. SEVEN SEAS UNION SQUARE, LLC 19 APPENDIX I 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 vi- olated 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 ac- tivities. WE WILL NOT fail and refuse to bargain with United Food and Commercial Workers Union, Local 342, AFL– CIO (the Union) as the exclusive collective-bargaining representative of our employees in the bargaining unit at our Queens, New York facility. WE WILL NOT fail and refuse to bargain with the Union as the exclusive collective-bargaining representative of our employees in the bargaining unit at our Brooklyn, New York facility. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights listed above. WE WILL, on request, bargain with the Union as the ex- clusive collective-bargaining representative of the em- ployees in the following appropriate unit at our Queens, New York facility concerning terms and conditions of em- ployment and, if an understanding is reached, embody the understanding in a signed agreement: all its employees in its stores herein, engaged in the cut- ting, wrapping and selling of all fresh and smoked meat, poultry, fish and such products customarily handled in the Meat Department at retail in its retail stores or super- markets, and such additional classifications previously recognized by the Employer; WE WILL, on request, bargain with the Union as the ex- clusive collective-bargaining representative of the em- ployees in the following appropriate unit at our Brooklyn, New York facility concerning terms and conditions of em- ployment and, if an understanding is reached, embody the understanding in a signed agreement: all Grocery Department and Meat Department employ- ees, including Meat Department Heads and part-time employees, and Pharmacy Department employees ex- cept all executives, supervisory employees and Phar- macy managers of stores which are located in the Coun- ties of Nassau, Suffolk, Kings, Queens and the stores lo- cated in the Borough of Richmond. PARAMOUNT SUPERMARKETS INC. AND KEY FOOD STORES CO-OPERATIVE, INC., The Board’s decision can be found at www.nlrb.gov/case/29-CA-164058 or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273-1940. Noor I. Alam, Esq. and Lynda Tooker, Esq., for the General Counsel. Douglas P. Catalano, Esq. and Scott M. Wich, Esq., for the Re- spondents. Eric Milner Esq. and Martin L. Milner, Esq., for the Charging Party. DECISION BENJAMIN W. GREEN, Administrative Law Judge. This case was tried before me in Brooklyn, New York, on February 8, 10, 13, 16, 28, 29, March 1, 6, 8, 13, 20, 22, 23, 27, April 5, 6, 17, 26, and 27, 2017. The consolidated complaint issued on Septem- ber 28, 2016 and the Respondents filed an answer on October 12, 2016. Complaint Allegations Respondent Key Food Stores Co-Operative, Inc. (Key Food) is a cooperative that consists of corporate members that own su- permarkets. The complaint names nine co-operative member- owners as Respondents who allegedly committed unfair labor practices concerning ten locations. The following Respondent member-owners own supermarkets at the locations listed below: Key Food Member Owners Supermarket Location HB 84 Food Corp (HB) 82-35 153rd Street, Howard Beach, NY 100 Greaves Lane Meat LLC (Greaves Lane) 100 Greaves, Lane, Staten Is- land, NY 1525 Albany Avenue Meat LLC 1525 Albany Avenue, 20 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD (Albany Avenue) Brooklyn, NY Seven Seas Union Square, LLC (Seven Seas) 10 Union Square, New York, NY Key Food CS2, LLC, d/b/a Food Universe (CS2) 35-10 Francis Lewis Blvd, Bayside, NY Riverdale Grocers LLC (Riverdale) 566 1 Riverdale Avenue, Bronx, NY Jar 259 Food Corp. (Jar) 25901 Union Turnpike, Glen Oaks, NY Park Plaza Food Corp. (Park Plaza) 1-1 Park Plaza, Glen Head, NY Paramount Supermarkets Inc. (Paramount) 2424 Flatbush Avenue, Brooklyn Paramount 196-35 Horace Harding Boulevard, Queens The complaint alleges that Respondent Key Food and each Respondent member-owner, as pairs of joint employers, are lia- ble for certain unfair labor practices. Thus, Respondents Key Food and Seven Seas are alleged to be joint employers at the su- permarket located in Union Square, New York, while Respond- ents Key Food and Greaves Lane are alleged to be a separate pair of joint employers at the supermarket located on Greaves Lane.1 The complaint alleges that the Respondents purchased the su- permarkets from and were successors of The Great Atlantic & Pacific Tea Company (A&P). A&P employees were represented by a number of United Food and Commercial Workers Union (UFCW) locals, including the Charging Party Union, UFCW, Local 342, AFL–CIO (the Union or Local 342). The substantive allegations are as follows: All of the Respondents are alleged, since July 7, 2016, to have refused to meet and bargain with the Union as the representative of appropriate units of A&P employees. Respondent HB allegedly caused A&P to layoff meat manager Nelson Quiles and then refused to hire him in violation of Sec- tion 8(a)(3) and (1). Respondent HB is also alleged to have uni- laterally and discriminatorily laid off Richard Maffia, Venus Nepay, and Khadisha Diaz in violation of Section 8(a)(5), (3), and (1). Finally, Respondent HB, by Frank Almonte, allegedly violated section 8(a)(1) by interrogating employees regarding their union activities. Respondent Greaves Lane is alleged to have unilaterally laid off and refused to reinstate Gina Cammarano, Debra Abruzzese, Michael Fischetti, and Anthony Venditti in violation of Section 8(a)(5) and (1). The layoff of Venditti is also alleged as a viola- tion of Section 8(a)(3) and (1). Further, Respondent Greaves Lane is alleged to have unilaterally reduced the work days of all unit employees by changing their schedules from six to five days per week in violation of Section 8(a)(5) and (1). Respondent Albany Avenue is alleged to have unilaterally laid off and refused to reinstate Joseph Batiste, Kalvin Harris, Robert Jenzen and Stephen Fiore in violation of Section 8(a)(5) and (1). Before Fiore and Jenzen were laid off, Respondent Albany Ave- nue is alleged to have unilaterally reduced the work hours of 1 For convenience, herein, each pair of Respondents will be referred to by the corporate name of the member-owner, such as Respondent Seven Seas instead of Respondents Seven Seas and Key Food. Unless Fiore and Jenzen and demoted Fiore with a corresponding reduc- tion in his wage rate in violation of Section 8(a)(5) and (1). Fiore’s layoff, demotion, reduction of wage rate, and reduction of hours are alleged as violations of Section 8(a)(3) and (1) as well. Respondent Albany Avenue is also alleged to have issued an employee rule book with overly broad provisions regarding solicitation, politics, loitering, and a catch-all disciplinary provi- sion in violation of Section 8(a)(1). Respondent Seven Seas is alleged to have discriminatorily re- fused to hire the following employees in violation of Section 8(a)(3) and (1): Jose Carlos Colon, Juana Diaz, Keesha Fields, Madeline Gomez, Dena Iturralde, Tamika Jones, Lucy Maldo- nado, Ricardo Nunez, Maria Ortega, Elena Pagan, Rosa Silverio, Jerry Simpson, and Natalie Tirado.2 Respondent Seven Seas is also alleged to have unilaterally laid off and refused to reinstate Ayanna Jordan in violation of Section 8(a)(5) and (1). By Pat Conte, Respondent Seven Seas allegedly engaged in surveillance or created the impression of surveillance by using his phone as a camera during the hearing in this matter in violation of Section 8(a)(1). Respondent CS2 is alleged to have unilaterally laid off and re- fused to reinstate Mariano Rosado and dealt directly with em- ployees by asking Rosado to sign a severance agreement in vio- lation of Section 8(a)(5) and (1). Summary of Conclusions of Law For the reasons described at greater length below, I find and conclude that the Respondents are successors and joint employ- ers as alleged in the complaint, and violated the Act as follows: Section 8(a)(1): Respondent HB, by Frank Almonte, interro- gated employees regarding their union activities. Respondent Albany Avenue implemented overbroad work rules regarding solicitation and politics. Section 8(a)(3) and (1): Respondent HB caused A&P to layoff Quiles and then refused to hire him. Respondent Greaves Lane laid off Venditti. Respondent Albany Avenue laid off, de- moted, and reduced the hours of Fiore. Respondent Seven Seas refused to hire Colon, Diaz, Fields, Gomez, Iturralde, Jones, Or- tega, Pagan and Silverio. Section 8(a)(5) and (1): All of the Respondents failed and refused to resume bargaining with the Union in July 2016. Re- spondents HB, Greaves Lane, Albany Avenue and CS2 unilater- ally laid off the employees named in the complaint. Respondent Greaves Lane unilaterally reduced the number of weekly work days of unit employees from six to five. Respondent Albany Av- enue unilaterally reduced the work hours of Fiore and Jenzen, and unilaterally demoted Fiore with a corresponding reduction in his wage rate. Respondent CS2 unlawfully bypassed the Un- ion and dealt directly with employees by requesting that Mariano Rosado sign a severance agreement. stated otherwise, it will be understood that Respondent Seven Seas refers to Respondents Seven Seas and Key Food as alleged joint employers. 2 At trial, the General Counsel withdrew the allegation that Troy O’Neal was unlawfully refused employment. SEVEN SEAS UNION SQUARE, LLC 21 I do not find that the General Counsel established violations with regard to the following allegations: Respondent HB laid off Diaz, Maffia, and Nepay in violation of Section 8(a)(3) and (1). Respondent Seven Seas refused to hire Maldonado, Nunez, Simpson, and Tirado in violation of Section 8(a)(3) and (1). Re- spondent Seven Seas engaged in surveillance of employees’ pro- tected activities or created the impression that employees’ pro- tected activities were under surveillance in violation of Section of 8(a)(1). Respondent Albany Avenue rules regarding loitering and a catch-all disciplinary provision were overly broad in vio- lation of Section 8(a)(1). On the entire record, including my observation of the de- meanor of the witnesses, and after considering the posthearing briefs that were filed by the parties, I make these FINDINGS OF FACT I. JURISDICTION In their answer to the complaint, each of the Respondents ad- mitted jurisdiction as follows: Annually, Respondent Key Food purchased and received at its Staten Island, New York facility products, goods and materials valued in excess of $50,000 di- rectly from points outside of the State of New York. The Re- spondents Seven Seas, HB, Albany Avenue, CS2, JAR, Riverdale, Park Plaza and Paramount were projected to derive gross revenues in excess of $500,000, and purchased and re- ceived at their respective facilities products, goods and materials valued in excess of $5000 directly from points located outside the State of New York. At all material times, each of the Re- spondents has been an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES Respondent Key Food and the A&P Bankruptcies Respondent Key Food consists of about 110 corporate mem- bers that own about 240 supermarkets. [Tr. 2426.] The Respond- ent members-owners listed below are owned by the following individuals or Respondent Key Food itself [Jt. 6]:3 Respondent Member-Owners Individual Owners Seven Seas Paul and Pat Conte Greaves Lane Randy and Sam Abed Albany Avenue Randy and Sam Abed HB Frank and Gilbert Al- monte CS 2 Key Food Riverdale Jamie and Ruben Luna Jar Alvin and Jose Diaz Park Plaza Leonard Mandell Paramount Joseph Vederosa A&P was a large supermarket chain that operated stores in the New York area under various banners, including Food Empo- rium, Pathmark and Waldbaums. [Tr. 1694] [Jt. 1]. A&P and its banners had collective-bargaining agreements with a number 3 Respondent Key Food purchased two A&P stores through corpora- tions that are now members of the cooperative. Respondent CS2 is the of UFCW locals, including Locals 342, 338, 464A, and 1500. Local 342 largely represented “back wall” employees in the meat, seafood and/or deli departments. However, Local 342 also represented some wall-to-wall units consisting of all store em- ployees. The bargaining units at issue here are described in col- lective-bargaining agreements between A&P or its banners and the Union, which were entered into the record as follows: Some of the Union’s contracts (e.g., Food Emporium [GC 3] and A&P [GC 7]) contained a severance provision that provided for employees hired before a certain date to receive $800 per year in severance upon the closing of the store without a cap on the number of years. A&P went through bankruptcy proceedings in 2010 and 2015. The first bankruptcy in 2010 was a reorganization in which the Union agreed to modify and extend its collective-bargaining agreements with certain cost saving concessions. [Jt. 2] [GC 8] [Tr. 68–72]. Union Secretary Treasurer Lisa O’Leary estimated the monetary value of concessions to be about $70 million. Among these concessions, the bankruptcy order effectively re- duced severance for those employees who were entitled to $800 per year of service upon closure of a store to $400 per year of service. [Jt. 2] [Tr. 1709–1710]. The second bankruptcy in 2015, as described in greater detail below, was a liquidation in which A&P stores were put up for bid and purchase. The Union participated in this bankruptcy pro- cess. [Tr. 52, 192.] The Respondents stipulated that the stores they purchased through the second A&P bankruptcy continued to operate as supermarkets and that a majority of the employees who were employed in each of the A&P units listed above were hired to work in the Respondents’ stores. [Jt. 6.] By participating in a cooperative, individual member-owners realize cost savings through economies of scale in purchasing, sales, marketing, merchandising, and advertising. [Tr. 2427, member-owner of one of those stores. The other corporate store (CS3) is not involved in this proceeding. [Tr. 583.] Individuals Unit A&P Contract Seven Seas Wall-to-Wall The Food Emporium [GC 3] Greaves Lane Meat, Deli, Seafood Pathmark Stores, Inc. [GC 4] Albany Avenue Meat, Deli, Seafood Pathmark Stores, Inc. [GC 4] HB Meat, Deli, Seafood Pathmark Stores, Inc. [GC 4] CS 2 Meat and Sea- food Waldbaums Supermarkets, Inc. [GC 5] Riverdale Meat and Sea- food Food Emporium (Retail In- dustry Agreement New York Division) [GC 6] Jar Meat and Sea- food Waldbaums Supermarkets, Inc. [GC 5] Park Plaza Meat and Sea- food Waldbaums Supermarkets, Inc. [GC 5] Paramount (Queens) Meat and Sea- food Waldbaums Supermarkets, Inc. [GC 5] Paramount (Queens) Wall-to-Wall A&P [GC 7] 22 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2432.] Thus, Respondent Key Food sought to purchase as many A&P stores as possible in order to maximize market volume and economies of scale. [Tr. 2439–2400.] Respondent Key Food sent information to its member-owners about the A&P stores that were being sold and held a meeting with them to discuss the pro- cess of purchasing those stores in bankruptcy. Approximately 35 member-owners expressed interested in purchasing one or more A&P stores. [Tr. 2437–2438.] Respondent Key Food held an internal bidding process among its members to determine which members would obtain the purchasing rights for which stores. The more individual members were willing to pay the more likely it was that Respondent Key Food would make a suc- cessful bid on the stores in bankruptcy. [Tr. 2439.] Ultimately, Respondent Key Food successfully bid on 16 A&P stores, including the 10 referenced in the complaint. The internal process to determine which member-owners would pur- chase each particular store took several months and was not con- cluded until October (shortly before the stores transitioned from A&P to Key Food ownership). [Tr. 2444–2445, 2452–2453.] On July 19, 2015,4 Respondent Key Food and A&P entered into an Asset Purchase Agreement (APA) for the purchase of certain stores. [Jt. 3 p. 2.] The APA includes the following pro- visions: Section 2.4 Closing. The closing of the transactions contem- plated by this Agreement (the “Closing”) shall take place at the offices of Weil, Gotshal & Manges LLP located at 767 Fifth Avenue, New York, New York (or such other location as shall be mutu- ally agreed upon by Sellers and Buyer) commencing at 10:00 a.m. local time on a date (the “Closing Date”) that is the third (3rd) Business Day following the date upon which all of the conditions to the obligations of Sellers and Buyer to consum- mate the transactions contemplated hereby set forth in Article VII (other than conditions that by their nature are to be satisfied at the Closing itself, but subject to the satisfaction or waiver of those conditions) have been satisfied or waived, or on such other date as shall be mutually agreed upon by Sellers and Buyer prior thereto. For purposes of this Agreement and the transactions contemplated hereby, the Closing will be deemed to occur and be effective, and title to and risk of loss associated with the Acquired Assets, shall be deemed to occur at 12:01 am, New York City time, on the Closing Date. [Jt. 3, p. 17.] . . . ARTICLE VI OTHER COVENANTS . . . Section 6.3 Treatment of Affected Labor Agreements. With re- spect to Covered employees under an Affected Labor Agree- ment, Buyer shall either (a) agree to assume the Affected Labor Agreement without modification and thereafter comply with the obligations set forth in Section 6.4 with respect to Covered Employees under such assumed Affected Labor Agreement or (b) engage in good faith negotiations, in coordination with Sellers, toward reaching mutually satisfactory modifications to 4 Unless stated otherwise, all dates refer to 2015. the relevant Affected Labor Agreement with each of the Af- fected Unions and to enter into a Modified Labor Agreement with each of the Affected Unions. Buyer may, at any time prior to the Sale Hearing, agree to have an Affected Labor Agree- ment assigned to it without modification by providing notice of such agreement to Sellers and the applicable Affected Union. Upon the commencement of the Bankruptcy Cases, to the ex- tent Buyer is not assuming the Affected Labor Agreements, Buyer, in coordination with Sellers, shall propose a Modified Labor Agreement on a Store-by-Store basis to each Affected Union (each, a “Proposal”), which Proposal may be modified as a result of Buyer’s and/or Sellers’ good faith negotiations with the Affected Unions. Buyer agrees to cooperate with Sellers in providing each Affected Union with complete and reliable information to allow the Affected Unions to evaluate the Proposal. For all purposes under this Section 6.3, Buyer acknowledges the requirements of sections 1113 and 1114 of the Bankruptcy Code and agrees to use good faith reasonable best efforts to cooperate with Sellers in ensuring compliance with any applicable provisions thereof. Section 6.4 Covered Employees. (a) Obligations of Buyer. With respect to Covered Employ- ees who are represented by an Affected Union and are le- gally authorized to work in the capacity in which they were employed immediately prior to the Closing (“Af- fected Union Covered Employees”), at least ten (10) days prior to the Closing Date, Buyer shall make an offer of employment, which shall be effective as of the Closing Date and contingent upon the Closing, and shall be con- sistent with the terms and conditions required by the gov- erning Affected Labor Agreements or Modified Labor Agreements, to the extent applicable. With respect to any Affected Union Covered Employee who is on a long-term disability leave of absence as of the Closing Date, such offer shall be contingent upon such Affected Union Cov- ered Employee returning to active status within a period of six months following the Closing. Notwithstanding the foregoing, nothing herein shall be construed as to prevent Buyer from terminating the employment of any Covered Employee, consistent with applicable law and the govern- ing Affected Labor Agreements or the Modified Labor Agreements, as applicable, at any time following the Closing Date. Buyer shall have no obligation with respect to any Covered Employee, including making any offer of employment to any such Covered Employee, who, as of immediately prior to the Closing, is not represented by an Affected Union. [Jt. 3, p. 38–39.] The APA also provides in Article 7 as a condition of closing that the buyer and seller perform and comply with their cove- nants and agreements under the APA (e.g., the covenants in Ar- ticle 6). [Jt. 3, p. 42–43.] On July 20, A&P filed a motion in bankruptcy court for ap- proval of various purchase agreements, including the APA with Key Food. The APA was attached and submitted with this mo- tion as Exhibit E. [Jt. 1.] The motion states, with regard to SEVEN SEAS UNION SQUARE, LLC 23 A&P’s agreement with Key Food [Jt. 1, p. 12]: Treatment of Affected Labor Agreements. With respect to Covered Employees under an Affected Labor Agreement, the Stalking Horse Bidder shall either (a) agree to assume the Af- fected Labor Agreement without modification or (b) engage in good faith negotiations, in coordination with Sellers, toward reaching mutually satisfactory modifications to the relevant Affected Labor Agreement with each of the Affected Unions and to enter into a Modified Labor Agreement with each of the Affected Unions. Key Food Chief Financial Officer Sharon Konzelman testified that Key Food had until August 7 to drop stores from the pur- chase for environmental reasons or to vacate the entire transac- tion if financing could not be obtained. However, after August 7, Respondent Key Food was bound by the bid, which would be executed unless they were outbid by a competitor. Further, it was Respondent Key Food’s intention to hold each member- owner to its obligation to purchase the stores they successfully bid upon. [Tr. 2526–2527.] On September 30, the APA was amended. The amended APA revised 6.4(a) to require a buyer to make offers of employment to “substantially all” (as opposed to all) employees and, if no la- bor agreement was in effect, base those offers on the Respond- ents’ “last best offer” in negotiations with incumbent unions who represented A&P employees. Section 6.4(a), as amended, reads in its entirety as follows [Jt. 3, p. 87]: “At least ten (10) days prior to the Closing Date, Buyer shall make an offer of employment to substantially all Covered Em- ployees who are represented by an Affected Union and are le- gally authorized to work in the capacity in which they were employed immediately prior to the Closing (“Affected Union Covered Employees”). Such offer of employment shall be ef- fective as of the Closing Date and contingent upon the Closing, and shall be consistent with the terms and conditions required by the governing Affected Labor Agreements or Modified La- bor Agreements, if any, that may then be in effect. If no Af- fected Labor Agreements or Modified Labor Agreements are in effect, the offer of employment to Affected Union Covered Employees will be on terms as are reflected in Buyer’s last best offer (the “Employment Offer”). With respect to any Affected Union Covered Employee who is on a long-term disability leave of absence as of the ClosingDate, such offer shall be con- tingent upon such Affected Union Covered Employee return- ing to active status within a period of six (6) months following the Closing. Notwithstanding the foregoing, nothing herein shall be construed as to prevent Buyer from terminating the em- ployment of any Covered Employee, consistent with applica- ble Law and the governing Affected Labor Agreements or the Modified Labor Agreements, if any, that may then be in effect, or if no Affected Labor Agreements or Modified Labor Agree- ments are in effect, the Employment Offer. Buyer shall have no obligation with respect to any Covered Employee, including making any offer of employment to any such Covered 5 The General Counsel does not base its case on successorship clauses in collective-bargaining agreements. Rather, the failure to bargain alle- gations are based on statutory successorship under the Act. Employee, who, as of immediately prior to the Closing, is not represented by an Affected Union.” Once Respondent Key Food purchased the assets of the A&P stores, it entered into asset purchase agreements with the mem- ber-owners, which served to assign the stores to the member- owners for the purchase price. Respondent Key Food provided financing in the form of loans to member-owners of 70 percent of the purchase price. [Tr. 2453–545.] Each of the asset purchase agreements contained the following provisions [Jt. 9]: Section 5.4 Modified Labor Agreements. Member acknowl- edges that pursuant to Section 6.3 of the A&P Asset Purchase Agreement, Key Food is obligated to engage in good faith ne- gotiations, in coordination with A&P, toward reaching mutu- ally satisfactory modifications to the relevant Affected Labor Agreement with each of the Affected Unions and to enter into a modified Labor Agreement with each of the Affected Unions. Member hereby agrees to be bound by any such Modified La- bor Agreement that is negotiated by Key Food or make any offers of employee [sic] as required by the A&P Asset Pur- chase Agreement. Section 7.10 Member’s Representative. Member hereby irrev- ocably constitutes and appoints Key Food as its true, exclusive and lawful agent and attorney-in-fact to act in the name, place and stead of Member in connection with the transactions con- templated by the A&P Asset Purchase Agreement, in accord- ance with the terms and provisions of the A&P Asset Purchase Agreement, and to act on behalf of Member in any action, suit or proceeding involving the A&P Asset Purchase Agreement, to do or refrain from doing all such further acts and things, and to execute all such documents as Key Food shall deem neces- sary or appropriate in connection with the transactions contem- plated by the A&P Asset Purchase Agreement. Key Food will incur no liability to Member with respect to any action taken or suffered by any party in reliance upon any notice, direction, in- struction, consent, statement or other document believed by Key Food to be genuine and to have been signed by the proper person (and Key Food shall have no responsibility to determine the authenticity thereof), nor for any other action or inaction, except its own gross negligence, bad faith or willful miscon- duct. On October 21, United States Bankruptcy Judge Robert Drain entered an order approving the amended APA. [Jt. 3.] The order included statements to the effect that interested parties were no- tified and given an opportunity to object to the sale. In particular, paragraph Z of the order states as follows [Jt. 3, pp. 11–12]: No Breach of Union Obligations. The unions affected by the sale of the Acquired Assets did not file an objection to such sale and have waived their rights to assert against any of Buyer, the Debtors, the Debtors estates, or any other party any claims or other rights arising under the successorship provisions of any collective bargaining agreement or similar agreement in rela- tion to such sale.5 24 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Negotiations from July 28 to November 13 Respondent Key Food and the UFCW Locals that represented A&P employees began negotiating for modified collective-bar- gaining agreements on July 28. [Tr. 73] [GC 9]. UFCW Re- gional Director Tom Clark was present during the first bargain- ing session. [Tr. 74.] Additional bargaining sessions were held between the Respondents and one or more of the Locals on July 29, August 3, 26, September 17, 21, 23, 24, 25, October 12, 14, 19, 21, November 13 and 19. Notes of those bargaining sessions were entered into evidence. [GC 10, 13, 15, 49, 50, 51, 53, 73, 75, 76][R. 12–15, 17–19, 22–23, 30]. The Respondents’ Attorney Douglas P. Catalano acted as the lead negotiator for all the Respondents and Konzelman also at- tended all the bargaining sessions. Among the individual store owners, Pat Conte (Seven Seas) and Leonard Mandell (Park Plaza) were selected to be on the Respondents’ bargaining com- mittee because they had previous experience dealing with UFCW Locals. [Tr. 2077, 2244.] Bargaining sessions were also attended intermittently by other owners of the stores. From July to September, bargaining sessions were attended by representatives of multiple UFCW Locals, including Locals 342, 338, 464A, and 1500. In October, Local 342 began bargaining with the Respondents individually (largely without the other UFCW locals or the international). [Tr. 91.] Local 342 did not have a representative who attended every bargaining session or a single lead negotiator. [Tr. 1378.] Many A&P stores were be- ing sold or closed during the 2015 bankruptcy and union repre- sentatives were spread thin attempting to negotiate contracts and address concerns of A&P unit employees. [Tr. 1110–1112, 1114, 1378.] Union President Richard Abondolo acted as the lead negotiator for the Union when he was present at bargaining sessions, but Abondolo did not attend all of the negotiations. [Tr. 104.] When Abondolo was not present, bargaining sessions were led by O’Leary or Executive Director Lou Solicito. Union Di- rector of Contract Negotiations Louis LoIacono and Executive Director Stephan Boras also attended bargaining sessions. The Union had at least one administrative assistant present at each bargaining session to take notes. The union negotiators did not take their own notes. [Tr. 82, 100–102, 948–949.] On July 28, Catalano indicated that the Respondents wanted to reach agreement as soon as possible and that the substance of the agreement could impact how many stores were purchased. Catalano also said the failure to reach an agreement could result in Key Food not purchasing stores at all. Catalano emphasized that the Respondents wanted the agreement to include a 401(k) plan instead of a multi-employer pension plan, limits on health and welfare contributions, reduced wages for individuals making $15 per hour or more, involuntary buyouts of A&P employees not retained by the purchaser, and a long-term contract (prefera- bly 4 years). The parties discussed arbitration, union time, and a system of transferring employees between stores. Catalano as- serted that the A&P contracts were part of a “failed model” that resulted in A&P declaring bankruptcy twice in five years. The 6 Department heads are classified as “managers” (e.g., the department head of the meat department is the “meat manager”). However, neither party asserted that the department managers have supervisory or Locals rejected this assertion, claiming that other stores with contracts similar to A&P’s have been viable. The Locals insisted that A&P went bankrupt because of poor management. Never- theless, the Locals did not rule out any of the terms the Respond- ents were proposing and asked Catalano to put them in writing. The Locals also insisted that the Respondents reach an agree- ment with all of them before a contract with any of them would go into effect. [GC 29] [Tr. 73–78, 194–202, 206–211, 1737– 1740, 2079–2083]. On July 29, Catalano presented the Respondents’ first written proposal to representatives of Locals 342, 338, and 1500. [R. 3.] The proposal called for wage and leave reductions, a 12-month probationary period with the right to terminate or reclassify any full-time employee to part-time without cause, a framework for offering healthcare coverage or cash in the alternative, a mini- mum of 16 hours for part-time employees, arbitrations conducted by the American Arbitration Association (AAA), 401(k) plans with contributions and matching by the employers (rather than a traditional multi-employer pension plan), no requirement to em- ploy department heads (except for a meat manager if the store averaged a weekly volume of $500,000), and a buyout provision allowing employers to “buyout the service” of any employee for a specific sum depending on the employee’s years of service. 6 During the July 29 bargaining session, Catalano admitted that the proposal would need to be supplemented in order to finalize complete agreements with all the Locals. However, the Re- spondents wanted an agreement on major items for the purpose of getting approval of the sale by the Bankruptcy Court. Union notes of the July 29 bargaining session state [GC 53]: RA: How much do you say we have time wise to get this done, days, weeks? Sharon: Days, we have to sell this to the members. RA: So narrow it down. Don’t fatten it up. There are some numbers we can say yes to. So let’s get down to the real #’s and points where we can sit down. You have 18 items on 1 sheet. It’s going to be a long time. It depends on you, your people, want to throw away. Some of this doesn’t even belong in here, it’s fluff, crap. Probationary periods. The Locals did not agree to the Respondents’ first proposal or that concessions were appropriate. According to union notes, Abondolo stated that meat department employees “are cheaper and 4 years behind” (presumably the result of concessions agreed to during the 2011 bankruptcy), and “[s]o we don’t understand why they would have to make the cuts when they’re already lower.” The Locals also expressed concern that agreeing to con- cessions for the A&P stores would undercut its more expensive contracts in the industry, including contracts with other Key Food stores. The parties discussed the fact that certain prospec- tive purchasers were owners of nonunion stores and hesitant to buy a store that is unionized. [GC 53] [Tr. 1881]. On August 3, the same parties met and the Locals presented a counter proposal. The Locals tentatively agreed to a 42-month managerial authority. Rather, department heads have historically been included in the A&P bargaining units. SEVEN SEAS UNION SQUARE, LLC 25 contract, a minimum full-time rate of $11 per hour, and a mini- mum of 16 hours per week of part-time employees. The Locals’ proposal also indicated that they were “seemingly ok” with re- classification of full-time employees to part-time at the same wage and with the same holidays and vacation. The Locals pro- posed employment for all A&P employees unless an employee decided not to take the offer of employment, which would trigger severance of an amount (not yet specified) more than what the employer was currently willing to offer as a buyout. The Locals’ proposal indicated that any reduction in pay would be opposed, but a reduction of the number of employees in the store could be discussed. The proposal indicated that stores would have a min- imum of three department managers (perishable, meat and assis- tant) with the addition of one department manager if store vol- ume exceeded $350,000 and the addition of two department managers if store volume exceeded $400,000. Local 342 wanted to keep its usual panel of arbitrators instead of using AAA. [GC 73] [R. 15–16] [Tr. 1968–1974, 1744–1759]. On August 26, the Locals presented the following written counter-proposal [GC 11]: 1-All current A&P employees shall be offer employment with the new employer, with a 30 day trial period. 2-Term of the contract 42 months 3-All stores must have a minimum of three department heads, meat perishable and grocery. All stores doing $400,000 a week in sales for a period of two months or more must have a mini- mum of 4-5 department heads depending on if they have a bak- ery department. 4-All current A&P departments who are not to be department heads in the new company will be offered full time employ- ment at a rate of pay equal to their rate of pay had they been a full time clerk for A&P. 5-All current full time clerks will be offered full time employ- ment at their current rate. 6-All Current Part time clerks shall be offered employment at their current rate of pay. 7-Six months after hired each Ft member shall receive a .50 cent an hour increase and every 6 months thereafter for the term of the contract. 8-Six months after hire, each Pt member shall receive a .35 cent an hour increase and every 6 months thereafter for the term of the contract. 9-All FT and all PT members shall retain their current holidays, sick and vacation time. 10-The Employer shall contribute $250.00 per month for each FT member and $75.00 for each PT member per month toward an established Annuity or 401K plan set up by the union. 11-The employer shall contribute on behalf of each FT member to an ACA approved FT health care plan the sum of $1100.00 per month for a family plan and $500.00 a month for a single plan, subject to a 5% increase each year of the contract. [¶] The employer shall offer an Opt-Out bonus to the members; upon proof of ACA acceptable coverage each FT will get a check $3500 each year that they Opt-out. [¶] The Employer shall con- tribute $60.00 per month to the Benefit/Health or Ancillary Fund of the union on behalf of each Pt member 12-All new hires shall have a 60 day trial period 13-All current Pt members are guaranteed a minimum of 20 hours a week 14-All current A&P members hired during the sale of the A&P shall receive 6 weeks severance pay and 3 months of COBRA should they fail to make their trial period (not self-terminated), be laid off or terminated due a store closing or lack of business during the term of the contract. 15-All Current members shall maintain their current Sunday rate during the term of the contract. 16-Minimum Hire rate for new FT. clerks is $11.00 hour, Min- imum hire rate for new Pt. clerks shall be 35 cents above the current minimum wage, however should the minimum wage be increased there shall always be a minimum of a .35 cent dif- ference in pay. All new Ft and Pt clerks after their trial period shall receive raises according to the above schedule in #s 6&7. 17-Grievance and arbitration procedure. Arbitrations shall be heard before a mutually acceptable panel of arbitrators or AAA as agreed upon by the employer and the Union. 18-Should the employer close for renovation current Ft and Current Pt members of each bargaining unit shall be given the right of first refusal before the employer hires any new employ- ees. 19-All other terms and conditions of the current A&P contract not listed this MOA shall remain in effect for the term of this contract. 20-The unions reserve the right to add or to modify these pro- posals. At this bargaining session, Abondolo objected to discretionary layoffs during a probationary period without some showing by the employer that the layoffs were justified by a lack of business. He also objected to a reduction in employees’ rate of pay. Local 1500 President Tony Spielman said “take 10% off the top” (ap- parently referring to a reduction in pay), but Abondolo con- firmed that Local 342 would not accept a pay cut. Abondolo also voiced some objection to the particular individuals who were looking to purchase the stores. According to the notes, Abondolo said, “[t]hese are the same guys who have had us ar- rested, gets physical with us, tells us to go fuck ourselves and now you want us to discount these people so they can spit on us. Those are the people you represent. They threaten the people in the stores, it’s just not going to happen.” In response to this and other objections to prospective nonunion owners, Catalano coun- tered that it was good to bring nonunion owners into the union fold. After caucuses, the Locals proposed that the Respondents simply adopt the A&P contracts for 1 year. Catalano declined. [GC 10.] On September 14, the Locals received an email forwarded to them from A&P, which contained a letter from Konzelman to A&P. [GC 12.] The letter stated in part, “[p]ursuant to Section 26 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 6.4 of the Asset purchase agreement dated July 19, 2015. . . . . I am writing to convey offers of employment to each current em- ployee of A&P or any of its subsidiaries represented by UFCW Local 1500, UFCW Local 1245, UFCW Local 342 and UFCW Local 338. . . . ” The letter also stated that “[t]he terms of em- ployment will be as set forth in Key Food’s September 8, 2015 written proposal to the UFCW Locals listed above (a copy of which is appended hereto as Exhibit B) or as may otherwise be agreed upon by Key Food and the respective union representa- tives.”7 On September 17, the Respondents held a bargaining session with Locals 338 and 1500. Local 342 was not present. Accord- ing to Catalano and Konzelman, the parties reached an agree- ment with Locals 338 and 1500, which was later revised on Sep- tember 22 at the request of Local 338 President John Durso. [R. 5, 6, 18, 20][Tr. 1773–1786, 1975, 2461–2465, 2468, 2562]. On September 21, the Respondents held their last bargain ses- sion with multiple locals, including Locals 342, 338 and 1500. According to union notes, Abondolo questioned the Respondents about discretionary buyouts without regard to seniority and with- out recall rights. Abondolo asked if the new owners knew which employees they were going to keep, and Catalano answered that the owners probably did not yet know. Ultimately, Abondolo rejected any proposal that included layoffs, a reduction in pay, or a reduction in paid time off. With regard to healthcare contri- butions, Abondolo proposed that the parties adopt the provision in the Union’s other Key Food contracts. [R. 21] [Tr. 1796– 1797, 1982–1985]. On September 22, Catalano sent the locals the following pro- posal (referred to on the record as the Durso proposal because it was “revised 9/22/15 per Durso email”) [R. 20]:8 1. Offer of employment will be made to all current union A&P employees without qualification or interview, subject to a pos- sible buy-out by Key Food before or after their employment commences, per the terms of #14. Offer voluntary first, if not enough volunteers, then involuntary, based on seniority. Any employee bought out involuntarily will have recall right at full rate of pay for 1 year. 2. Term of agreement is 42 months, commencing upon the date that the employees are hired and begin employment with the Key Food member. 3. A full-time employee is guaranteed an offer of 40 hours per week. 4. Wages: a. All employees who earn $21.00/hour or less shall be hired at the same rate of pay b. Any employee earning $21.01 $23.01 or more shall be offered a position at a rate 10% less than his or her current rate, but the new rate shall not be less than $21.00 $23.00/hr. Wage progression for FT employees hired from A & P: 6 months after contract $35/week 12 months after 1st increase; $35 per week 7 The Respondents’ proposal attached to the letter as Exhibit B was more favorable than the original proposal of July 29 and less favorable than the proposal as later revised on September 22. 12 months after 2nd increase: $35 per week 6 months later $2,000 bonus lump sum payment (sub- ject to FICA withholdings only) c. Minimum FT rate for new hires: $12.00/hour/ upon entry to union $0.50 per hour increase. On each anni- versary date of hire $35/week, until the end of the con- tract. d. New part time employees will be hired at minimum wage, and will receive a $0.50/hour increase after 30 days. Then on each anniversary date of hire $0.50/hour increase. e. Wage progression for part timers hired from A & P: $0.40 an hour after 6 months, then 1 year later $0.40/hour, 1 year later $0.40/hour, year later $0.40/hour, then a one- time $1000 bonus. (subject to FICA withholding only) 5. Probationary period: Each employee hired shall be on probation for the first 30 days of his/her employment, but the probationary pe- riod may be extended for an additional 30 days upon mu- tual agreement. Employee may be terminated at any time during the probationary period with or without cause, but full time employees hired from A & P, and who are ter- minated without cause prior to the end of the probation- ary period shall be provided with a payment of $6,000 $8,000 together with 3 months of continued medical cov- erage. 6. Health and Welfare: a. Only for 338, other locals to be negotiated: Part time: Those part time employees who perform 30 hours or more of service per week will be offered healthcare by the employer with a $400/month em- ployer contribution; and $20 per week employee contri- bution to the appropriate ACA compliant H&W plan. Full time: Employer contribution of $1,000 per em- ployee. Increases in these rates will be capped at 5% per year. b. If an A&P employee performing 30 hours of service or more is offered healthcare, but declines healthcare, and shows proof of ACA coverage elsewhere, a one- time opt-out payment of $3000 will be given. c. “Special part-timers” (local 1500, current A & P em- ployees, who currently receive union-provided H & W) will be offered ACA compliant H&W, with an em- ployer contribution of $400/month, and an employee contribution of $15/week d. New Hires eligible for coverage will be offered cov- erage on day 90 of employment; existing A&P employ- ees will get covered day one. e. PT benefit contributions of $70 for local 338 and $76 (approx.) for local 1500 (under 30 hours) 7. Minimum guaranteed part time hours per week will be 20 hours, subject to employee availability. 8 The September 22 revisions to the Respondent’s September 17 pro- posal are reflected by the strikethroughs in par. 4(b) changing $21.01 and $20 to $23.01 and $23, respectively, and changing $6000 to $8000 in par. 5. SEVEN SEAS UNION SQUARE, LLC 27 8. A mutually agreed upon arbitrator, or if no agreement, the American Arbitration Association shall be the forum for all ar- bitration proceedings. 9. 401-K or other defined contribution by the employer of $200/month will be made for all FT employees a. All Part-timers hired from A&P will receive $75 per month contributed to a 401K or other defined contribution plan. b. New hire employees will be eligible to participate in the plan after 1 year of employment. Existing A&P em- ployees will be eligible day one of employment. 10. Vacation, Sick Personal, Holiday and Sunday premium: grandfather benefits for A&P hires except for personal days which will be a maximum of 4; and sick days which will be a maximum of 8, for new employees see schedule attached 11. All stores must have a minimum of three department heads. Stores doing $325,000 per week in sales for a period of two months or more must have a minimum of 4 department heads. 12. Management has the right to reclassify an employee from FT to PT within a 12-month period subsequent to the expiration of the probationary period, for objective business or economic reasons which shall not be capricious or arbitrary. Upon re- classification employee will retain his or her wage rate and all PTO. 13. Lump Sum service buyout: Key Food has the right to offer a buy-out to any FT em- ployee currently employed by A&P, either prior to being hired by Key Food, or after the conclusion of the proba- tionary period if the FT employee is hired by Key Food, buyouts will be $750 per year of service A & P with a min- imum of $5,000 and maximum of $14,000. This buyout will be on a voluntary basis or in lieu of a layoff. 14. Any other terms and conditions of employment shall be negotiated on or before the new operation comments. There shall be no continuation of terms and conditions of employ- ment from those collective bargaining agreements currently in effect with A & P or any of its banners. 15. These proposals may be modified in whole or in part, and there is no agreement until there is a complete agreement be- tween the parties. 16. This agreement shall apply to the stores purchased by Key Food or its members from A&P. 17. If a Key Food member wishes to sell an A&P banner store within the shorter of (i) 42 months from the date of purchase and (ii) the term of the lease on the store, it will sell the store to (i) a purchaser other than the Co-op willing to recognize the unions representing the employers in that store and to proceed on the terms and conditions of employment under the collective bargaining agreements then in effect; or (ii) the Co-op. If the Co-op is the buyer, it will recognize the unions representing the employees in that the store and proceed upon the terms and conditions of employment under the collective bargaining agreements then in effect.” 9 O’Leary and Solicito led negotiations for the Union on October 12. O’Leary took over from Solicito as lead negotiator when she suspected that Catalano was preparing to declare impasse. 18. This agreement is subject to approval by all UFCW locals involved. On September 23, 24, and 25, the Respondents and Local 342 began negotiating on their own, largely without representatives from other Locals present. Local 342 was represented by Solic- ito. According to union notes, Catalano began the bargaining session by stating that, “from my frame work we are essentially done,” and presented the September 22 “Durso proposal” to the Union. Catalano indicated that an employee who received an involuntary buyout would retain recall rights to prevent owners of the stores from hiring relatives to replace the current employ- ees. Solicito took the position that the Respondents should retain all employees without a probationary period that allowed for sep- aration without cause and with buyouts that could only be imple- mented after six months. In this way, the Union wanted the Re- spondents to give employees a chance to work and see how many employees they really needed. The parties did not reach agree- ment or make any additional progress in negotiations on Septem- ber 23, 24, and 25. [GC 49–50][R. 12][Tr. 951–955, 978–980]. On October 12, the parties spent significant time rehashing their previous positions.9 O’Leary indicated that, regardless of any agreement the Respondents may have reached with Locals 338 and 1500, Local 342 would not accept involuntary buyouts, a probationary period for separating employees without cause, or a proposal (i.e., the September 22 proposal) with open items left to be resolved later. Union notes of the meeting indicate that O’Leary said, “we are not doing the buyout so please get that out of your head.” Catalano continued to push the concept of a pro- bationary period and buyout. He indicated that the buyout would be used as an alternative to arbitration. According to union notes, Catalano said, “I have no incentive to keep PPL that don’t work out. Instead of arbitration we give them money to leave.” Catalano testified that, on October 12, O’Leary agreed to work toward a partial contract with only those major items necessary to open the stores and finish the rest later. In support of this po- sition, Catalano referenced union notes which indicate that O’Leary said, “We need to get some agreement on how you open the stores up and we can do the rest of it later.” [R. 30 p. 4 of 13.] These notes also indicate that O’Leary said, “Let’s agree on the hire rates, the things that surround the members getting to work, getting jobs, hire substantially all and medical insurance and we can do a waiver for those who want to opt out [of insur- ance].” Further, Catalano made reference in his testimony to un- ion notes which indicate that O’Leary said, “What I’m saying to byou [sic] is to get an agreement so you can open up and we can finish the other portions later.” [GC 13 p. 12.] -- “Let’s talk about hiring, staff & Medical insurance (waiver for medical).” However, Union notes indicate O’Leary proposed that the “Key Food industry agreement” be used as a model for quickly resolving outstanding open items that were not in significant dis- puted (such as bereavement and jury duty) and produced such a contract.10 [GC 80.] Union notes indicate that O’Leary said, “342 cannot do a new agreement for 42 months and not know 10 The “Key Food industry agreement” did not refer to a single agree- ment, but a number of similar collective-bargaining agreements between Key Food stores and the Union. O’Leary produced at this bargaining session, as an example of a Key Food industry agreement, the collective- 28 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the rest of the CBA.” [R. 30 p. ] Union notes also reflect the following comments by O’Leary: [T]hat is another reason why I am saying we need to do this the right way and use the Key Food as a master. In an instance like that (closing store for a year) – those employers said when they open up they are taking whoever they take, some of those peo- ple may be working somewhere else by the time they open up, they already said they will just take the 342 contract they have now. We need to have some agreement on how you open the store up and we can do the rest of it later. Some of the stuff in your proposal will need to come out. [R. 30 p. 3.] . . . I have identified what we can do to have a transition agreement then we can continue to bargain a complete agreement to get to where we need to go. Let’s not talk about 42 months – lets talk about no months. Let’s agree on the hire rates, the things that surround the members getting to work, getting jobs, hire sub- stantially all and medical insurance and we can do a waiver for those who want to opt out. We are talking to 338 so if we can do the same thing for a cheaper rate than we can offer we can work something out with them or the international but I cannot get that done in a week. Maybe the 338 not sure yet. [R. 13 p. 13.] Catalano initially rejected the concept of using provisions from the Key Food industry agreement, but later indicated that certain non-economic provisions might be acceptable.11 [GC 13] [R. 19, 20, 30] [Tr. 90–100, 211, 1786, 1800–1801, 1805–1809, 1992, 2571, 2700–2720, 2810, 2883–2884]. On October 12, the Union provided the Respondents with the following written proposal [GC 14]: THIS AGREEMENT made between Key Food Co-op, here- inafter called the “Employer”, and the United Food and Com- mercial Workers Union Local 342, hereinafter called the “Union” WHEREAS, Key Food intends to assume control of A&P stores; and WHEREAS, Key Food intends to hire the employees cur- rently working at those stores. WHEREAS, Key Food has positions available necessary to employ all employees under Local 342’s jurisdiction. The em- ployees will be required to agree with the company’s offer which is governed by the current Local 342 Key Food Agree- ment. WHEREAS, those employees are currently represented by UFCW Local 342; bargaining agreement between the Union and Key Food Quick Pick #5330. [GC 80] [Tr. 233–235]. 11 I do not credit Catalano’s assertion that the Union, on October 12, indicated a willingness to accept a partial contract such as Respondent Key Food’s September 22 proposal on a long-term basis. According to both sets of union notes, O’Leary argued in favor of using the Key Food industry agreement before and after the isolated quotes that were refer- ence by Catalano. In fact, it is uncontested that Catalano ultimately con- ceded, as described in union notes, “[t]here are pieces in the Key Food agreement that we would agree to. Some of it can work, most of it can’t.” Employees eligible for any of the term and conditions of this agreement are those hired in any converted store at the time of the conversion of that store. Upon demand by Local 342 Key Food will recognize Local 342 as the sole bargaining agent of those employees for purposes of wages, benefits, and other terms and condi- tions of employment. Key Food and the Unions hereby agree to the following: 1. Key Food will offer former A&P employees cur- rently working at these stores employment. Key Food agrees to abide by the wages benefits, and terms and condi- tions between UFCW Local 342 and the Key Food industry agreement, and successive MOA’s dated 4/15/15, and will fold A&P employees under the new Local 342 Key Food successor agreements. 2. Key Food does not assume any liability as a succes- sor or assign or otherwise from the current “A&P” collec- tive bargaining agreement and is not responsible for adher- ence to or enforcement of any other provisions of that agreement, including but not limited to grievances, arbitra- tions or past practice pursuant to those agreements. 3. Employees in acquired stores will complete applica- tions, and will be hired by Key Food Employers who are specific owners of stores acquired by the Key Food Co-op. 4. All employees hired pursuant to Paragraph 3 above shall remain at their current A&P rate of pay. Key Food will consider these employees as new employees for pur- poses of any subsequent age or scale increases or premium pay in accordance with the Key Food/Local 342 industry agreement. In any event, notwithstanding what may be spelled out in Paragraph 1 or 4, no employee hired pursuant to this agreement shall receive a 30-day salary or hourly ad- justment if they have received one already in 2015 from A&P. The 36-month waiting period for paid time off enti- tlement will not apply to employees hired pursuant to Para- graph 3, who instead will retain their A&P entitlements. 5. For purposes of layoff, employees subject to this agreement will keep their original A&P Company hire date within the acquired group or store. Key Food agrees that they shall not be any layoff for any employees who accept employment, Full Time or Part Time, for a period not to exceed ten (10) months. After ten (10) months, Key Food may notify the Union to sit and discuss a layoff if necessary, and the Employer must be prepared to establish a need for layoff by allowing the Union to have professionals conduct an audit pertaining to the financial condition of the store and/or company. [R. 30 p. 9.] The last sentence of those notes show O’Leary saying, “Look at Key Food for a basis of an agreement.” [R. 30 p. 13.] Further, as discussed below, it is undisputed that on October 19 the Union con- tinued to request that the Respondents accept the Key Food industry agreement as the basis for a contract. Catalano’s own notes suggest that the Union was conditioning a 42-month contract on a complete agree- ment that used the Key Food industry agreement to fill in outstanding provisions. Catalano’s notes state “2- 42 mos → Key Food industry agreement but not wall to wall. . . . ” [GC 35] [R. 22–23]. SEVEN SEAS UNION SQUARE, LLC 29 a. The Employers who individually own any one of the Key Food Co-op banners and who have purchased one of the banners from Key Food Co-op or A&P, shall include any other supermarket businesses that they have as part of their financing of this store when they notify the Union of their desire to have a layoff. 6. Expect where explicit in this agreement for all other purposes employees subject to this agreement assume their Key Food hire date. 7. All employees hired under this agreement will be subject to a sixty (60) day probationary period from the date of their employment with Key Food. Since Key Food has agreed to hire all employees, subject to the conditions above, the probationary period shall be subject to the griev- ance procedure. In addition, all employees shall remain members of the union and there shall be no interruption of union service. 8. Employees hired pursuant to this agreement shall have vacation, sick leave, holidays, and personal days cal- culated according to their A&P experience toward eligibil- ity for those benefits. A. All employees hired from A&P shall continue to work under the A&P agreement according to vacation, sick leave, holidays and personal days until December 31, 2016. B. Effective January 1, 207, those members shall be restored all vacations, sick leave, holidays and personal days according to the Key Food Agreement. C. All employees hired from A&P shall continue to re- ceive their current wage rate that they are receiving now from A&P. Upon completion of the current A&P Agree- ment which expired December 31, 2016, the employees will then be eligible for their first wage increase in April 30, 2017. In addition, all A&P employees hired by Key Food who have had their first hour reduced to minimum wage, that hour shall be restored immediately upon being hired by the Key Food company. D. Acquired full-time employees will maintain their full-time status; Full-time and part time Acquired Employ- ees will maintain their current entitlements pursuant to the A&P agreement until December 31, 2016, at which time those employees will be eligible to receive their entitles pur- suant to their current Collective Bargaining Agreement be- tween Key Food industry agreement and Local 342. 9. Former employees of A&P actively employed who are hired by Key Food effective on the dates enumerated in Paragraph 5 will be granted credit for their continuous full- time service with A&P for purposes of satisfying the wait- ing period for eligibility for Local 342 benefit plans. 10. Key Food agrees to continue to use the vendors that are union vendors and are represented by Local 342 for a period of not less than one (1) year in an effort to avoid ad- ditional exposure of Local 342 members to layoffs. 11. The employer agrees that in the case of the wall-to- wall store that is a Food Emporium store, the Departments that are stated in the Local 338 Agreement will be mirrored for the purpose of establishing departments in all wall-to- wall stores. a. Anywhere a department is being removed or for any reason a Department Manager is being demoted for just cause, those Department Managers who receive a premium shall lose the premium and be paid the top clerk or butcher rate in those categories. b. The employer agrees that in wall to wall stores that it will continue to red circle rates of pay for all employees that remain employed and thereafter all new hires who are new to the industry or who have previously worked in Local 338 or Local 1500, they shall receive the rates currently un- der the Local 338 Agreement that is in effect in their indus- try contract for each classification except for those employ- ees in the Meat, Seafood and Deli Departments. Thereafter, all employees shall receive wage increases that will be ne- gotiated under the Key Food Industry Agreement which will cover all employees in all classifications going for- ward. c. In respect to above all new hires new to the industry hired after this agreement has been signed will receive the start rates in each of their Full Time class that are estab- lished in the Local 338 agreement. Thereafter, they shall follow the wage increase that shall be negotiated in the new Key Food industry contract. d. In the case of the wall-to-wall Food Emporium store, the Employer may after four (4) months of emplo8yment notify the Union of the need for a layoff. The employer may notify the Union of its need for a layoff in inverse order of seniority only of those employees no longer needed. The company shall not replace any Full Time employee with any part timers. The company shall pay severance to any employee that is laid off $800 per employee per each year of service. In addition, the company shall provide 6 months of medical coverage, or the money equal to 6 months of medical coverage in addition to the severance. 12. Either party desiring to modify or terminate this agreement at its expiration shall give written notice to the other party at least (60) days prior to April 30, ____. Throughout the negotiations, in response to the proposal to buyout employees, the Union requested that the Respondents identify A&P employees they did not intend to hire. [Tr. 1796.] On October 14, certain owners attended the bargaining session and took turns indicating the number of employees they intended to keep. Pat Conte indicated that Respondent Seven Seas would keep all employees at the Union Square store. The Abeds indi- cated that Respondent Greaves Lane would keep, among 12 em- ployees, the meat manager, deli manager, deli clerk, meat wrap- per, and three journeyman butchers). The Almontes indicated that Respondent HB would keep two full-time employees and two part-time employees without indicating the particular classi- fication. The owners did not identify the names of employees they intended to keep. [R. 13] [Tr. 980-983, 1266–1268, 1809– 1821, 2091, 2253–2254, 2306–2310, 2324, 2470, 2561]. On October 14, Catalano rejected the Union’s October 12 pro- posal. Catalano said Key Food would talk about anything in it, but that the proposal was generally “off the table.” The Union asked to bargain with the member-owners individually since they were going to be signing the agreements and managing the 30 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD stores. Catalano rejected this request. According to union notes, Lenny Mendell said, “they can’t bargain individually, they’re not allowed to.” [R. 13.] On October 15, the parties exchanged emails regarding a Un- ion request for information. O’Leary requested certain infor- mation, including each A&P store being purchased, the purchas- ing employer of each store, closing dates, any job advertisements for those stores, and the positions to be filled by current A&P employees. Konzelman responded and stated, in part, “I am be- ing advised not to publish the information requested until after the hearing scheduled for tomorrow, which we expect to be for- mally approved as purchaser for the 24 locations.” Konzelman also noted that the closing schedule was not finalized, but the Howard Beach and Horace Harding closings were preliminarily scheduled for October 21. O’Leary replied and emphasized the importance of receiving the requested information immediately. She noted, in part, that “we expect the current employees to be working on the 21st, and we need to know exactly what the em- ployer’s plan is as it affects the workers.” O’Leary requested the immediate resumption of negotiations and noted that the Union would have no information to provide workers regarding their status if an agreement is not reached in advance of October 21. [GC 81] [Tr. 2730]. On October 19, the parties met and the Union continued to propose that a Key Food industry agreement be used to obtain a complete agreement, while Key Food continued to reject this idea. According to Union notes, O’Leary asked, “in terms of working off the key food contract language, how do you feel about that?” Catalano’s notes indicate that he said, “the Key FD agreement doesn’t fit.” However, Catalano did not completely rule out using certain provisions from a Key Food industry agreement. [GC 75] [R. 20, 23][Tr. 219, 1822–1828, 2007, 2472, 2730–2740, 2559–2560, 2574–2575, 2730–2740]. Union notes of the October 19 bargaining session include the following exchange [GC 75] [Tr. 2007]: Lo: …. In terms of working off the key food contract language, how do you feel about that? Dc: The economic terms we aren’t interested in, the union se- curity clause, the bargaining clause. There are certain provi- sion you need in any CBA. Not everything is accepted or re- jected. Clearly there are certain things in the document that we would grasp on to. Lo: Ok – I’m getting a picture of a boiler plate for what you are ok with. There are only certain sections Dc: I wouldn’t use the term most. I have to go through each one, the question is, is it an economic issue. Lo: Pretty much to me it’s all economic. Even though it’s lan- guage…. In the same time some things are standard. A lot of language would reflect what is federal law. That kind of stuff……alright so let me see if can identify – do you have the key food agreement with you Dc: I won’t respond I will wright down what you say. Until I talk to my ppl Lo: The purpose of doing this is to make it quick and so we have an idea to have a total agreement. This doesn’t work for the wall to walls, the front end of course isn’t listed for classi- fication which means meat seafood and deli if we have it and the front is shared with another local. You can let me know if you have a problem with the Union recognition, classification is pretty standard. Union security is boiler plate matching up with the national labor relations act . . . .new employees, most of that is boiler plate. There is a lot of language having to do with 342 sends temp butchers off the bench to cover vacation, sick, personal comp and things like that. We have groups that are not employed that the employer use, not saying these guys to do that. I’m pointing out the language covering the temp really looks at our temp workers. Discrimination might not be a problem. Seniority is boiler plate, however I can see where you want to put something there that recognizes the employers buying more than 1 store, and having seniority amongst them for A&P seniority off layoff. The job guarantee and the re- placement language that is in the standard key food agreement, doesn’t really apply to these guys bec it speaks of ppl who are hired before 1995. Catalano’s October 19 bargaining notes have “Konzelman & DPC” underlined and, underneath, a list of items that appears to reflect the Respondent’s position on provisions in the Key Food industry agreement. [R. 22 p. 3] [GC 80]. Thus, for example, the Key Food industry agreement contains an article (Article 2) on employee classifications and the first entry of Catalano’s list states, “no job classifications.” Similarly, the Key Food industry agreement contains an article (Article 4) on referrals of new hires by the Union and the second entry on Catalano’s list states, “hire from any source/you can refer.” The order of the list appears to track the Key Food industry agreement and not the Respondent’s September 22 proposal. When asked about these notes, O’Leary confirmed that the parties were discussing proposals in the Key Food industry agreement. [Tr. 2881–2882.] Union notes of the October 19 bargaining session also con- tained the following exchange [GC 75]: Lo: Ra will speak if it is acceptable or not – our proposal was you take all the members as is. You are still working out buy- out language in the front stores there aren’t that many ppl in the back end. We aren’t having anyone to do the butchers job. Why are you frowning? Dc: Bc I don’t think anyone ever said that. Lo: We need to get it narrowed down. Will there be a seafood Dpt? Sharon: Not a fresh seafood dept. Break Dc: Our counter is to hire all full timers if seafood doesn’t open, and we put seafood aside. Then we higher all A&P full timer meat and deli, meat; higher them all at their rate and if they don’t make probation, 750 with max of 850 but probation will be 30 days. They come to store and show what they have and we still give buyout if they don’t make probation, 750, 850 max, no grievance without cause. The arbitration clause we would like to stay in this contract. SEVEN SEAS UNION SQUARE, LLC 31 When asked about the Respondent’s “counter,” Konzelman testified that it was the Respondents’ position until late in the bargaining session of October 21, after Catalano and Abondolo met on the side alone, to hire all non-seafood full-time employ- ees represented by Local 342 subject to a potential buyout during the probationary period. [Tr. 2575–2577.] On October 21, at the Union’s request, the bargaining session was attended by Federal Mediator Carlos Tate. [GC 15, 76][Tr. 100–113, 141–145, 213, 226, 310–315, 1003–1007, 1028, 1057, 1115–1116, 1268–1272, 1395, 1698–1699, 1837–1852, 2046, 2051–2054, 2103–2107, 2127–2130, 2137–2139, 2144–2145, 2150, 2190, 2327, 2384–2385, 2407–2408, 2473–2478, 2575– 2577, 2740–2751, 2849]. According to union notes, the October 21 bargaining session began where the October 19 ended (with Key Food restating their proposal on offering employment). The notes state [GC 15]: Doug: Offering employment where we said we would proba- bly not hire the Seafood Personnel, and let other FT in the store for 30 days – if they don’t make probation we would give them 750/year of service that they had with A&P max of 8,000. That persons services might be terminated with or without cause. Arbitration according to the proposal – mutually select arbitra- tor. The same notes later reflect a discussion regarding Respond- ent Key Food’s proposal, as follows: RA: You will take everybody with a 30 day probationary pe- riod Doug: And if mutually agreed upon an additional 30 days to 60. RA: Do we have a commitment that all PT are hired, not talk- ing about seafood in the back wall stores. Doug: Yes. RA: Subject to the probationary period Doug: Yes … Doug: During probation if they didn’t get retained at the end of the period the FT will get 8,000 and 3 months medical. … RA: The only issue we have is whatever number we agree on on how long the person will be out, let someone go then the next day hire someone $10 cheaper, how do we protect that? Doug: With 338, they would have recall rights for one year despite getting a buyout that is the protection. At about 2 p.m., the parties caucused for an extended period. Thereafter, Catalano, Abondolo, and Tate met alone in a separate conference room. It is uncontested that this was a brief conver- sation lasting 10 to 20 minutes. [Tr. 1003–1006, 1862–1863, 2046.] However, Catalano and Abondolo provided different ac- counts of the meeting. According to Abondolo, Tate approached him and said Cata- lano wanted to meet alone. Abondolo went with Tate to a sepa- rate room and Catalano was there. Catalano spoke first. Catalano talked about laying people off before they were hired and brought up severance for those people. Catalano allegedly referred to this as an “involuntary layoff.” Abondolo rejected the concept of laying people off before they were hired, telling Catalano the Union wanted employees to be retained for a year. However, Abondolo did agree to the layoff of seafood employ- ees by a store that did not intend to maintain a live seafood de- partment. Abondolo proposed that employees receive $800 per year of service with no cap on the number of years. Of this $800 per year, the Respondent would pay $400 per year if the other $400 per year was paid by A&P pursuant to the severance pro- vision in a collective-bargaining agreement (as modified by the 2011 bankruptcy order). Abondolo denied that he or Catalano discussed the payment of severance in four installments. Abondolo also adamantly denied he ever told Catalano they had an agreement on the contract as a whole or that the Union was accepting the Respondents’ contract proposal in its entirety. [Tr. 1003–1006, 1045–1047.] According to Catalano, Abondolo approached him and asked him to come into a conference room with an oval or octagon ta- ble and comfortable chairs with big backs. Catalano testified that Abondolo spoke first, describing the conversation as follows [Tr. 1841–1842]: And he said, “we have an agreement. We’ll agree to what you want,” in so many words. Do I remember the exact sentence? No, but we were talking about our proposal and he said, “we have an agreement. We’re good to go. I want to raise one thing with you, though.” “What is that?” It’s …. the buyout numbers. I said, “You don’t want,” exact words, I don’t know, but “you won’t want the 750 model that’s in our contracts per year of service with A&P and the minimum of 5,000 and the maximum of 14,000?” He said, “No, what I want to do is I want 800 without a cap,” because the 338 and 1500 and 464 had a cap, a minimum and a maximum. So he says, “I don’t want that. I have the ability to get my Members a severance payment from A&P under those provisions that we talked about yesterday, testified to yester- day, where you get if you close down $800 for each year of service if you’ve been employed by A&P since 1995; 1981 with Pathmark; 2004 I remember in another agreement. I can get them a severance payment there. And what I’d like you to do is if they don’t get a severance payment give them $800 for each year of service without a cap or $400 in the event that they’re getting severance from A&P.” I said, “Now I understand where you” – because I didn’t un- derstand that came up on occasion, even though on the 19th he said, “I agree to the $750,” and now he’s – I’m not saying that he’s changing it, but here’s what he’s suggesting. “Okay, we have an agreement pursuant to what you’re proposing, but I want that changed.” I said, “Fine, let me talk to my people. Sounds good to me. I’m okay with that. I’m glad.” Neither Catalano nor Abondolo took notes in the meeting and they did not have or make reference to the Respondents’ 32 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD September 22 proposal with them in this side-discussion. [Tr. 1862–1863, 2057.] When Catalano was asked at trial whether he recalled the ex- act words Abondolo used during the side-discussion on October 22 to indicate the parties had reached an agreement, he re- sponded, “Exact words, of course not. . . . [Abondolo] said in so many words, whether the exact phrasing is as follows: Doug, we’re done. We have a deal. We agree, but I want to talk to you about the $800 and the $400.” When Catalano was asked whether he had a specific recollection of Abondolo referring to the Respondent’s September 22 proposal in the side-discussion, Catalano responded, “no, in advance of the sidebar. . . . Early on. They showed up late. We met for half-an-hour. We’re saying in so many words consistently this is it. This is our model. This is what we want. This is what we’re insisting upon.” [Tr. 2056– 2057.] According to union notes, when Catalano and Abondolo re- turned from meeting separately, the bargaining session contin- ued as follows [GC 15]: Doug: you suggested off the record a different model – if you’ve been with A&P under 342 contract $800 for each year of service, A&P will pay 50% so we will pay $400 for each year of service without a maximum. There are some people who have 40 year people and if you agree it will be paid out in 4 monthly payments. This is for the Full Timers if we don’t hire them. If we do hire them and they don’t pass probation – 338 model is a little different. What we talked about if they don’t make the probation will get $750 with a max of $8,500. RA: I was concerned about getting into an understanding about part-timers. Doug: If we don’t hire the FT you asked whos going to do the work. I will be candid and either FT will be reduced to PT or a PT cutter or reduce the full time to PT on day one. I will prepare something. Tomorrow rather than meet I will prepare something send it to you with these kinds of concepts. Last night we did not do a PT severance. We got calls from 338 that we misunderstood. We agree this afternoon – Sharon: Because we said we are hiring all FT. we would offer 1–7 years 1 week at current rate of pay avg hours, 8–11 gets 2 weeks, 12-15 3 weeks, 16 or more get 4 weeks. Doug: That’s what they asked for and we said fine. We said we will hire all the PTers and we are with 338 and 1500 as well. RA: Only if they don’t make probation. Doug: People might be used to the Walbaums way which might not be the same way they are used to. RA: Do you know how much that costs? Doug: $350-$400 per week by 1 week, or 4 weeks. That’s what they asked for. We weren’t going to do anything but they asked for it and we said fine. RA: We will work through the language. Doug: I will put an MOA together and send it to you guys. We will send you something in the afternoon by this afternoon. RA: Okay. By that point we can put it to bed. When are the transitions taking place. Abondolo testified that in referring to “it” in “put it to bed,” he was referring to contract negotiations. However, Abondolo testified that Catalano misspoke in his comments to the larger group about what they had discussed separately in the side-dis- cussion. According to Abondolo, he told Catalano so and was not particularly hopeful that Catalano was going to prepare an MOA that was acceptable to the parties. Witnesses for the Respondents and Union also provided con- flicting testimony as to how the meeting ended. Catalano, Konzelman, Conte, Mandell, and Diaz testified that Abondolo walked over to where they were and shook their hands. Catalano testified that he had a particularly strong recollection of Abondolo shaking hands with nonunion owners whom he talked badly about during negotiations. The Respondents’ witnesses also testified that they went out for a congratulatory drink after the October 21 bargaining session. Abondolo, O’Leary, and Booras testified that there was no ceremonial or congratulatory handshaking at the end of the Oc- tober 21 meeting. O’Leary noted that it is common for parties to shake hands at the end of bargaining when they reach an agree- ment, but it is not a practice she enjoys and this did not occur on October 21. She testified, “I’m not a big handshaker type, you know, ceremonial person. But I realize, you know, especially men, . . . they like to do it. . . . there was no ceremonial shaking of hands, in that room, with all the parties there” and “I don’t recall anybody looking to shake hands with me that day either.” [Tr. 143.] Booras and O’Leary both noted that the Union made no arrangements for a ratification vote of the alleged deal be- cause there was no agreement. [Tr. 141–145, 1005, 1379–1380.] On October 22, Catalano sent the Union an email that stated, “Attached is a draft that is consistent with the 338 agreement but has not yet been reviewed by our client.” [GC 16][R. 1, 15]. The attachment was a Memorandum of Agreement (MOA). Catalano testified that this MOA reflected an agreement the parties reached on October 21. The MOA includes, in part, the follow- ing provisions [GC 16]: 2. OFFER OF EMPLOYMENT a. Upon the opening of its store, or stores, the Employer shall offer employment to current A&P employees before hiring an- yone else subject to the terms of this agreement. A minimum of 50% plus 1 employees will be hired by the Employer from A&P employees. b. The offer shall be made unconditionally without any review or interview. c. Notwithstanding the above, the Employer may offer a buy- out to any full-time employee currently employed by A&P, be- fore the opening of its store, or stores, or after the probationary period. In such instance, the Employer shall pay to the em- ployee $400 per each year of service with A&P. Payment shall be made of the aggregate amount in four (4) monthly install- ments. This buy-out may be voluntary, if offered by the Em- ployer, or in lieu of a layoff. (no payment of entitlements). Buyout in lieu of layoff for one year from date of hire. SEVEN SEAS UNION SQUARE, LLC 33 d. Future layoffs of employees not subject to the buy-out in 2(c) shall be by seniority (the last employee hired shall be the first employee laid off) within a classification. In case a buy- out results from a layoff or pursuant to 2(c) above, the affected employee shall have the right of recall based on seniority (the employee with the most seniority shall have the first right of recall) for a period of one year, and shall be entitled to receive the highest rate of pay he or she received prior to the layoff regardless of any payments received from a buy-out.12 3. PROBATIONARY PERIOD a. All full-time and part-time employees shall be on probation for the first thirty (30) days of his or her employment. This probationary period may be extended for an additional thirty (30) day period, but only upon mutual agreement. b. During the probationary period, the Employer may termi- nate a full-time or part-time employee with or without cause. However, a full-time employee formerly employed by A&P who is terminated without cause shall be paid $8,000.00 in sev- erance pay, and the Employer shall make sufficient contribu- tions in order to provide the employee with three (3) months of continued medical coverage after the termination. (no payment of entitlements) A part-time employee formerly employed by A&P who is terminated without cause shall be paid in accord- ance with the following schedule: Employment with A&P Weeks of Buy-out (based on avg. Hours of work in prior year) 1-7 years 1 weeks 8-11 years 2 weeks 12-15 years 3 weeks 16 years 4 weeks c. No person who passes probation shall be disciplined or dis- charged except for just cause. 5. WAGES a. All employees hired directly after being employed at A&P shall be hired at the same rate of pay as he or she received at A&P. … f. The Employer may reclassify a full-time employee to part- time status within a twelve (12) month period following the ex- piration of the probationary period but only for objective busi- ness or economic reasons, and not for any other reason includ- ing discipline, retaliation, or reasons deemed capricious or ar- bitrary. Upon reclassification, the employee shall retain his or her wage rate and all previously-allowed paid time off. … 9. GRIEVANCE AND ARBITRATION PROCEDURE a. Any complaint, dispute, or grievance arising between the parties concerning the interpretation or application of this Agreement shall be adjusted in the following manner: 12 This language indicates that an employee would not retain recall rights if he/she were separated during the probationary period. b. A representative of the Union shall meet with the Employer or its designee to discuss the grievance. If after such discussion the grievance is not settled, either party may submit the griev- ance to a mutually agreed upon arbitrator or if no agreement, the parties utilize the American Arbitration Association. The decision of the arbitrator shall be final and binding upon the parties and the employees and shall conclusively determine the matter submitted to the arbitrator. The cost of arbitration shall be borne equally by the parties. The grievance and arbitration procedure specified in this Agreement is the sole and exclusive remedy of the parties, and such procedure shall be in lieu of any and all other remedies at law, in equity or otherwise. No indi- vidual employee may initiate any arbitration proceeding. 10. DEPARTMENT HEADS a. All back wall Key Food stores shall have a minimum of one (1) full-time department head, unless it is a wall-to-wall store, wherein it must have three (3) department heads. b. All Key Food stores which are wall-to-wall stores with over $325,000.00 in sales per week during a two month period shall have a minimum of four (4) full-time department heads. 11. ADDITIONAL TERMS a. The parties may negotiate other terms and condi- tions of employment on or before Key Food be- gins its business at the former A&P locations. Other than the terms herein, the terms and condi- tions of employment between the Union and A&P shall not be applied to the Employer unless and until they are negotiated by the parties. 12. FINALITY OF AGREEMENT a. The parties understand that the Employer is cur- rently negotiating similar agreements with other UFCW locals, and agree that the successful nego- tiation of such agreements is essential before the agreements herein take effect. 14. Additional Terms The parties agree that there will be a union security clause, recognition clause, no lie detector clause, management rights clause, no discrimination clause, bulletin board clause, and no employment of minors clause. During the term of this Agreement, there shall be no lockout by Employer, and no-strike, picking or hand billing by the Union. Employees shall not be required to cross a picket line in the event of safety issues, and a clause will be agreed upon that permits the waiver of the no-strike clause in the event of a fail- ure by the Employer to make contributions. with all language in a these clauses to be agreed upon. Minimum of four (4) hours if called into work. Breaks – For FT – 2 15 minute breaks, 1 hour unpaid lunch. PT – 1 15 minute break for each 4 hours worked. 1 hour unpaid 34 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD lunch (for 8 hours), ½ hour unpaid lunch (for at least 5 ½ up less than 8 hours). Overtime – overtime over 8 hours in a day (OT over 10 hours for an employee working a 10 hour/day, 4 day per week sched- ule). Union Visitation – the union representative will advise the em- ployer of his presence upon arriving at the workplace. Funds – Employer will continue payment to funds for 13 weeks for illness or disability. The Union and Funds have the right to review the Employer’s records. Funeral Leave – FT – 3 working days. PT – same as FT (pro- rated) Immediate Family. Jury Duty – Involuntary Jury duty will be two weeks/year (Grand Jury 30 working days over the term of the agreement). Uniforms – the employer will furnish/launder uniforms if re- quired to be worn. Transfers – ok for employers w/ multiple stores covered by this Agreement. Subject to reasonable radius of home or last store location, reimbursement for additional fairs/tolls/gas. Shop Stewards – the Union may have one shop steward per store. 1 day off /w pay per year for training. Thus, the MOA contains certain “additional terms” that were not previously included in its September 22 proposal, including clauses regarding no-strikes/lockout, breaks, overtime, union visitation, funeral leave, jury duty, uniforms, funeral leave, and transfers. While similar provisions are contained in the Key Food industry agreement, the MOA provisions were not identi- cal or cut-and-pasted from the industry agreement. [GC 80.] For example, contrary to the Key Food industry agreement, the MOA adds a requirement that a union representative advise the em- ployer of his presence upon arriving at the workplace, commits only to “payments to funds for 13 weeks for illness or disability,” limits jury duty to 2 weeks per year (verse 30 days), adds re- strictions on transfers, and eliminates 2 days leave for stewards to attend training/meetings. [GC 80] [R. 20]. The MOA also provides that certain additional clauses on union security, recog- nition, no lie detector, management rights, no discrimination, bulletin board, and no employment of minors clauses would be included in the final collective-bargaining agreement (presuma- bly, after additional negotiations regarding those subjects). On October 26, Respondent HB assumed ownership of the store in Howard Beach and Respondent Paramount took owner- ship of the store in Flushing, New York. These were the first two A&P stores to transition to Key Food. [Jt. 6]. On November 2, Abondolo’s clerical assistant, Janel D’Ammassa, sent Catalano a revised MOA that was prepared by O’Leary. D’Ammassa’s email indicated that it was “sent on be- half of President Richard Abondolo” and included the following comments [GC 17]:13 The attached document represents the reflection of my notes during our discussions. I don’t believe that we are at all at a 13 The email was written by D’Ammassa, not Abondolo. [Tr. 1042] [GC 17]. difference. I am willing to sit with you any time to discuss the terms and conditions for the rest of the agreement. Until then, it is my position that we are covered by the Key Food Industry Agreement for the following reasons. As you know, your em- ployer is doing what they want and not following the rules. I expected this from the beginning, but I’m not very excited about it. I have complete faith in you that you will get it recti- fied so that we can move on. But not to have temporary provi- sions in place would be insane. I hope you could sign off on that and understand. …. **Note: Doug, leave the grievance and arb language alone. I left Kennedy out in good faith. I’m not agreeing to AAA at all. I put 2 in, you can put 2. But with these guys you’ll probably lose anyways, they’ll follow no rules. Contrary to Catalano’s October 22 MOA, the Union’s pro- posal provided for all former A&P employees to be hired except seafood department employees (if the store was closing the sea- food department), all employees who were laid off without cause (including those severed during probation) would have recall rights for one year, the reclassification of newly hired full-time employees to part-time status would only be allowed in lieu of a layoff, a panel of arbitrators instead of arbitration through AAA, additional minimum department heads, and additional provi- sions from the Key Food industry agreement wherever the MOA did not specifically address the subject. [GC 17.] On November 13, the Respondents provided the Union with a redlined MOA reflecting language the Union struck from and added to the October 22 MOA [GC 19]: 2. OFFER OF EMPLOYMENT a. Upon the opening of its store, or stores, the Employer shall offer employment to current A&P employees before hir- ing anyone else subject to the terms of this agreement. A min- imum of 50% plus 1 employees will be hired by the Employer from A&P employees. All employees in UFCW Local 342 shall be offered work, except in the case where the employer is closing down Seafood Departments in which no cutting, wrap- ping or processing of fish is involved. The employer shall pay the Seafood employees a severance as stated below. In addi- tion, if the employer decides to open a Seafood Department any time during one (1) year from the date of purchasing the store, the employer shall call back the Seafood employees to be rein- stated in their former job at their former rate of pay that they received from A&P. … i. c. Nothwithstanding the above, the Employer may offer a buy-out to any full-time employee cur- rently employed by A&P, before the opening of its store, or stores, or after the probationary period. In such instance, the Employer shall pay to the employee $400 per each year of service with A&P. Payment shall be made of the aggregate amount in four (4) SEVEN SEAS UNION SQUARE, LLC 35 monthly installements. This buy-out may be volun- tary, if offered by the Employer, or in lieu of a layoff. (no payment of entitlements). Buyout in lieu of layoff for one year from date of hire. This shall be paid to those employees who are entitled to severance under the A&P Agreement. ii. In addition, the employer shall pay $800 per year for each year of service with A&P for employees who are not entitled severance under the A&P Agreement. iii. d. Future layoffs of employees not subject to the buy-out in 2(c) The employer agrees that all layoffs after thirty (30) day probationary period shall be by seniority (the last employee hired shall be the first employee laid off) within a classification. In case a buy-out results from a layoff or pursuant to 2(c) above, the affected employee shall have the right of recall based on seniority (the em- ployee with the most seniority shall have the first right of recall) for a period of one year, and shall be entitled to receive the highest rate of pay he or she received prior to the layoff regardless of any the classification. All em- ployees who have been laid off and paid severance shall also be entitled to three (3) months of medical coverage, which shall be provided by the employer bb either contin- uation of current medical coverage, or providing adequate moneys to cover the COBRA payments received from a buy-out. 5. WAGES … g. The Employer may reclassify a newly hired full-time em- ployee to part-time status only in lieu of a layoffwithin a twelve (12) month period following the expiration of the probationary period but only for objective business or economic reasons, and not for any other reason including discipline, retaliation, or rea- sons deemed capricious or arbitrary. Upon reclassification, the employee shall retain his or her wage rate and all previously- allowed paid time off. . . . 9. GRIEVANCE AND ARBITRATION PROCEDURE . . . b. A representative of the Union shall meet with the Employer or its designee to discuss the grievance. If after such discussion the grievance is not settled, either party may submit the griev- ance to a mutually agreed upon arbitrator or if no agreement, the parties utilize the American Arbitration Association panel of arbitrators. Each party shall pick two (2) arbitrators. The Union’s picks are as follows: Elliot Shriftman and Ron Betso. The decision of the arbitrator shall be final and binding upon the parties and the employees and shall conclusively determine the matter submitted to the arbitrator. The cost of arbitration shall be borne equally by the parties. The grievance and arbi- tration procedure specified in this Agreement is the sole and exclusive remedy of the parties, and such procedure shall be in lieu of any and all other remedies at law, in equity or otherwise. No individual employee may initiate any arbitration proceed- ing. 10. DEPARTMENT HEADS a. All back wall Key Food stores shall have a minimum of one two (1) (2) full-time department head, and a minimum of three (3) department heads where a Seafood Department is present, unless it is a wall-to-wall store, wherein it must have three four (3) (4) department heads. b. All Key Food stores which are wall-to-wall stores with over $325,000.00 in sales per week during a two month period shall have a minimum of four (4) full-time department heads. 11. ADDITIONAL TERMS a. The parties may negotiate other terms and conditions of employment on or before Key Food begins its business at the former A&P locations. Other than the terms herein, Employer agrees to follow the terms and conditions of employment be- tween the Union and A&P shall not be applied to the Employer unless and until they are negotiated by the parties the Key Food Industry Agreement unless otherwise spelled out in this agree- ment, or unless negotiated otherwise. 13. FINALITY OF AGREEMENT b. The parties understand that the Employer is currently ne- gotiating similar agreements with other UFCW locals, and agree that the successful negotiation of such agreements is es- sential before the agreements herein take effect. 15. Additional Terms The parties agree that there will be a union security clause, recognition clause, no lie detector clause, managent rights clause, no discrimination clause, bulletin board clause, and no employment of minors clause. During the term of this Agreement, there shall be no lockout by Employer, and no-strike, picking or hand billing by the Union. Employees shall not be required to cross a picket line in the event of safety issues, and a clause will be agreed upon that permits the waiver of the no-strike clause in the event of a failure by the Em- ployer to make contributions. with all language in a these clauses to be agreed upon. All of the following articles will be covered by the Key Food industry Agreement, in addition to any others not stated here. Only those that have been signed off on in this agreement will change from what is stated in the Key Food In- dustry Agreement. Minimum of four (4) hours if called into work. Strike Lan- guage – Strike Language in the Key Food Industry Agreement. …. The Union is willing to sit and discuss any terms and conditions other than those signed off on in this agreement where both parties have agreed. In addition, it will remain the Union’s po- sition that until then, the Employer shall be covered by the Key Food Industry Agreement and this document. On November 13, the Respondents did not offer any counter proposal to the Union’s proposal of November 2. Union notes _ 36 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD of the November 13 bargaining session include the following [GC 18]: DC: How would you like to precede Lisa, the proposal you sent is not acceptable. What we had sent to you, I thought we had a done deal. These proposals are substantially different from the 3 contracts. We already have. Therefore, we are not inclined and won’t do something different, so it wasn’t reduced to writ- ing and it wasn’t ratified. I had heard something that we said was inaccurate which was we would take everyone from day 1 until 30 days, which I never said and would not have said. Doesn’t mean I won’t hire part timers or full timers, and they will or will not pass probation. Things like hiring two meat managers we never agreed to that, I don’t see how it made its way into this agreement and I don’t see how we can do any- thing differently and won’t. There are things you put in here that 1st hour is not minimum wage 1 or 2 little things in here that are helpful however the substance of change and including that this is going to be the Key Food, Pick Quick, Mandell, and Dan’s Supreme contract is not acceptable and I said it to RA over the phone. We think we came up with a fair proposal that worked for everyone. The staffing in those stores was extraor- dinarily high and l think in fact Local 342 concedes it, 338 con- cedes it, 1500 concedes it. Therefore, we had to come up with a fair way of making sure these stores would work going for- ward. The A&P way for sure didn’t work. Throughout negotiations, the Respondents asserted that the A&P stores they were attempting to purchase had excess payroll and, in particular, too many full-time employees. [Tr. 1033– 1034.] In response, Abondolo conceded that the Union Square store being purchased by Respondent Seven Seas was “heavy” in that it had a lot of full-time employees. [Tr. 232, 1084–1086, 1744–1749.] Adverse Employment Actions Taken Against Individual Employees, Respondent Albany Avenue’s Rules, and the Alleged Interrogation by Frank Almonte As discussed in greater detail below, the Respondents allegedly took the following unlawful adverse employment actions 5 against the listed employees: Respondent Adverse Action Employee Date of Action HB Caused Layoff by A&P Nelson Quiles October 23 HB Refused to Hire Nelson Quiles October 26 Seven Seas Refusal-to-hire Natalie Tirado November 9 Seven Seas Refusal-to-hire Madeline Gomez November 9 Seven Seas Refusal-to-hire Rosa Silverio November 9 Seven Seas Refusal-to-hire Elena Pagan November 9 Seven Seas Refusal-to-hire Tamika Jones November 9 Seven Seas Refusal-to-hire Keesha Fields November 9 Seven Seas Refusal-to-hire Juana Diaz November 9 Seven Seas Refusal-to-hire Jose Carlos Colon November 9 Seven Seas Refusal-to-hire Jerry Simpson November 9 Seven Seas Refusal-to-hire Ricardo Nunez November 9 Seven Seas Refusal-to-hire Dena Iturralde November 10 Seven Seas Refusal-to-hire Maria Ortega November 10 Seven Seas Refusal-to-hire Lucy Maldonado November 10 HB Layoff Venus Nepay November 10 HB Layoff Richard Maffia November 11 HB Layoff Khadisha Diaz November 12 Greaves Lane Reduced work days All unit employees November 25 Greaves Lane Layoff Gina Cammarano November 28 Greaves Lane Layoff Debra Abruzzese November 28 Albany Avenue Layoff Joseph Batiste November 28 Albany Avenue Layoff Kalvin Harris November 28 Greaves Lane Layoff Michael Fischetti November 30 Greaves Lane Layoff Anthony Venditti November 30 Seven Seas Layoff Ayanna Jordan December 26 SEVEN SEAS UNION SQUARE, LLC 37 This section of the decision also describes the alleged unlawful interrogation of Quiles by Frank Almonte on September 6 and the promulgation of alleged unlawful rules by Respondent Albany Avenue in January 2016. Respondent HB Respondent HB purchased the Wauldbaums in Howard Beach on October 26.14 Prior to the sale, the meat department consisted of meat manager Nelson Quiles, “first man” butcher Robert Haenlein, full-time meat wrapper Venus Nepay, and part-time meat wrapper Khadisha Diaz. Richard Maffia worked in the Howard Beach meat department as first man from 1996 to 2014. However, Maffia left Howard Beach in 2014 and transferred to a Waldbaums in New Utrecht Avenue in Brooklyn to become the meat manager. The New Utrecht store closed as a result of the 2015 A&P Bankruptcy. [Jt. 6] [Tr. 116, 1405–1409, 1424–1426, 1856–1857, 2162]. On about September 5, apparently unrelated to negotiations that were taking place with the Respondents, a job action was undertaken by Locals 338, 342, and 1500 at a Key Food super- market on Cross Bay Boulevard, Queens, New York. Frank Al- monte is an owner of the Cross Bay store and the employees of Cross Bay are not unionized. The store held a block party to celebrate the anniversary of its first year in business. UFCW Locals engaged in a demonstration during the block party in or- der to protest the store’s failure to maintain compensation at area standards. Local representatives erected an inflatable rat, hand- billed, and talked to people both individually and with a micro- phone. The Locals also had a videographer record the job action. [GC 61] [Tr. 106, 1340–1344, 1347, 1431–1432, 1440, 1506, 1596–1600]. The Cross Bay job action was attended by Quiles. The Un- ion’s video of the Cross Bay job action shows that Frank Al- monte was in a position to see Quiles while he was being inter- viewed by a union representative. [GC 60, 61, 68] [Tr. 1432]. Quiles passed away on September 27, 2016 (prior to the trial in this case). [GC 59.] The General Counsel sought to enter into evidence an affidavit that was provided by Quiles during the Re- gional investigation. In his affidavit, Quiles described what al- legedly happened on September 6, the day after the Cross Bay job action [GC 60]: The following morning, the owner of the Cross Bay Key Foods, Frank Almonte, and his cousin, (whose name I don’t recall, but it may have been Armando). They came at around 7:50 am to Waldbaums. I got a call from the girl in the deli 14 This store was referred to on the record as the Howard Beach or Lindenwood store. saying that someone was here to see me. I said “for me?” She said, “yeah, they are asking for Nelson.” I came out from the meat department to see who it was. Frank and his cousin came to the back and we were talking in the back part of the store, right between the deli and the meat department. (There is a dou- ble swinging door leading to the processing room which is vis- ible through some glass windows between the deli and the showcase area). When I came out, I asked, “who are you.” He said, “I am Frank Almonte, the owner of Key Foods.” I replied, “I am Nelson.” And we shook hands. Frank Almonte asked me, “do you think that was a nice thing that you did?” I assumed he was talking about the leafleting the day before. I said to him, “business is business.” He repeated three or four times, loudly and boister- ously, “do you think that was a nice thing to do.” I felt slightly threatened. I didn’t know if they were going to come at me front ways or sideways. I just repeated “business is business.” He said who sent you. I said, “the Union.” I said “Local 342. “He and his cousin kept saying, “who in the Union?” I said, ‘the Union, Local 342” Finally I said, “I have meat to cut, have a nice day.” And I walked away from him, politely, and went back to the meat department. I don’t know how long they stayed there after. HB Deli employee Angela Querrard testified that, the day af- ter the Cross Bay block party, Frank Almonte and his cousin An- thony Almonte came to the Howard Beach store.15 Querrard saw Frank and Anthony Almonte approach Quiles and talk to him. The record contains an email dated September 6, 2015, 9:06 am, from Union Representative Liz Fontanez to Stephen Booras and Margaret Monier, which states as follows [GC 62]: Nelson Quiles from Walbaums Howard beach called me that the store got a visit from the owner of Keyfood on Crossbay. He told him that it wasn’t right what was done yesterday Nel- son told well business is business and you need to do the right thing. He walked away and started talking to the other depart- ments. 15 At some point, Anthony Almonte replaced Gilbert Almonte as a 50 percent owner of Respondent HB. Albany Avenue Reduced work days Robert Jenzen Late-December CS2 Layoff Mariano Rosado January 4, 2016 Albany Avenue Reduced work hours Robert Jenzen Mid-January, 2016 Albany Avenue Demoted Stephen Fiore January 16, 2016 Albany Avenue Reduced wage rate Stephen Fiore January 16, 2016 Albany Avenue Reduced work days/hours Stephen Fiore January 16, 2016 Albany Avenue Layoff Robert Jenzen January 30, 2016 Albany Avenue Layoff Stephen Fiore January 30, 2016 38 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD On October 23, Quiles was laid off. In his affidavit, Quiles described the events of that day as follows [GC 60]: On about Friday, October 24, 2015,16 Gilberto Almonte, Franky Almonte, and another person who I didn’t know went downstairs with the store manager Davis Britt. They were there for several hours and everyone was told to stay out. Around 2:30pm or 2:45pm that day, I saw Britt mulling around in the back of the store, near the entrance of the meat department. I asked him if everything was ok, because he had a long face. He said everything was fine. After about 10-15 minutes, while I was talking to my fellow coworker, Robert Haegland, a temporary butcher working in the meat department, Davis Britt came up to us and told Haegland that he needed to speak to me privately. Britt says to me, “your position with the company is no longer available’ I said, “meat manager?” He said, yeah. I said, “what about meat cutter?” He said, “no, you are done.” I shook hands with him and said ok. As he was walking away, said, “can I empty my locker out. He said, do as you have to. On my way out Ishowed him what I had taken of my personal belongings in a small box. The Respondents called Gilbert Almonte to testify regarding Quiles but did not call Frank Almonte or Britt. Gilbert Almonte testified that he, Frank Almonte, and Key Food Retail Operations Manager Kathryn Berliner did meet with Britt in the basement of the Howard Beach store after having re- ceived a list of the employees who were employed by A&P at Howard Beach. At this meeting, the Almontes asked Britt about the work habits of employees and, based on information they re- ceived from Britt, determined which employees to keep.17 Ac- cording to Gilbert, Maffia and Quiles were both on this list of Howard Beach meat managers. Britt told them Maffia had been transferred and no longer worked there. Britt also allegedly said that Maffia’s cuts of meat were better than those of Quiles and the meat department did more sales when Maffia was at the Howard Beach store. According to Gilbert, based on this repre- sentation, the Almontes decided they wanted Maffia to be the meat manager instead of Quiles. A couple of days before they took over the store, Gilbert asked the Union to make Maffia available in place of Quiles. However, Local 342 said they could not do that because Maffia was working somewhere else. Gilbert denied that the Almontes ever told Britt to lay off or fire Quiles.18 [Tr. 2173–2174, 2177, 2226.] After Quiles was laid off, first man butcher Robert Haenlein 16 October 24 was a Saturday and October 23 was a Friday. On Oc- tober 23, Business Representative Liz Fontanez sent Booras an email, which stated that Quiles “just called” Fontanez and told her Britt said Key Food would not be hiring him. [GC 63.] 17 At this or a previous meeting, the Almontes told Britt they would retain him as store manager once the store was purchased by Respondent HB. [Tr. 1653] 18 I accepted the Quiles affidavit into evidence over the Respondents’ hearsay objection under Rule 807 of the Federal Rules of Evidence (the residual exception). I note that Quiles was unavailable because he is de- ceased and the record contains admissible non-hearsay corroborative ev- idence that he and the Almontes were where the affidavit places them on relevant dates. Further, and more importantly, the Respondents made no attempt to dispute statements in Quiles’ affidavit even though I admitted began performing the meat manager work that Quiles previously performed. Haenlein testified that nobody asked him to assume those responsibilities, but he did so because the work had to get done. Haenlein was never formally promoted to meat manager and never received an increase in pay. [Tr. 1330–1331, 1338– 1339.] The record does not demonstrate that the Almontes were aware that Haenlein assumed the responsibilities of meat man- ager after Quiles was laid off. On October 26, Respondent HB purchased and assumed the operation of the Howard Beach store. Respondent HB hired all the employees previously employed at the store by A&P but did not hire Quiles. Gilbert testified that Quiles was not hired be- cause he was laid off before Respondent HB purchased the store. [Jt. 6] [Tr. 832]. Haenlein testified that Respondent HB hired two Spanish speaking butchers when the store transitioned to Key Food and within a week of Quiles’ layoff. [Tr. 1434.] Union Representa- tive Liz Fontanez identified them as Elias and Daniel (previously represented by the Union at a C-Town supermarket). Fontanez was aware that Daniel and Elias went to work for Respondent HB because Daniel called and told her. Daniel also told Fon- tanez he was being paid in cash. Payroll records indicate that Elias Castillo and Daniel Monegro began receiving paychecks from Respondent HB on March 11, 2016. [Jt. 14] [Tr. 1529– 1530]. However, Gilbert Almont and HB bookkeeper Marilyn Diaz testified that Castillo and Monegro were hired in about No- vember.19 [Tr. 1660, 1664, 2215.] In late-October, O’Leary called Catalano and told him the Al- montes committed an unfair labor practice by laying off Quiles after they saw him at the job action at Cross Bay. Catalano asked O’Leary not to file an unfair labor practice charge until he had an opportunity to speak with his clients. Catalano subsequently advised O’Leary that the Almontes had requested Maffia by name to be the meat manager and did not want Quiles back. However, Catalano said Quiles could work at the Diaz store in Glen Oaks. The Union and employees ulti- mately agreed to this arrangement. [Tr. 154–156, 2175, 2696– 2699.] On Monday, November 9, at the Union’s direction, Maffia re- ported to work at the Howard Beach store. Maffia testified that he worked the whole day and a time card confirmed he worked one day for 8.03 hours. Payroll records also indicate that a check in the amount of 237.48 ($29.50 per hour) dated November 20 for 8.05 hours of work was issued to “Richard Massia.” Gilbert the affidavit into evidence. In particular, the Respondents did not call Frank Almonte to deny statements attributed to him on September 6. Un- der these circumstances, the factual statements in the affidavit of Quiles, now deceased and unable to testify, have guarantees of trustworthiness equivalent to other hearsay exceptions in Rules 803 and 804. Accord- ingly, admitting the affidavit into evidence will best serve the interests of justice and I confirm my decision to do so. 19 At trial, I sustained a hearsay objection to testimony by Fontanez that Monegro told her he was being paid in cash. However, Fontanez’s testimony that Castillo and Monegro were hired and paid in cash is cor- roborated by the testimony of Gilbert and Diaz in the sense that it would explain why they were hired in November and did not appear on the pay- roll until March 11. Accordingly, I reverse my trial ruling and give some weight to the testimony of Fontanez as corroborated hearsay. SEVEN SEAS UNION SQUARE, LLC 39 Almonte did not recall a Richard other than Richard Maffia hav- ing worked in the meat department and he confirmed that $29.50 would be a meat department wage.20 Maffia further testified that Britt and Gilbert told him he would be off on Tuesdays, so he did not report for work on Tuesday, November 10. [GC 43] [Tr. 1407–1408, 2217]. Gilbert Almonte testified that Maffia arrived for his first day (November 9) dressed for work as a butcher, but left before start- ing and never came back. Gilbert recalled that someone (perhaps one of the meat department employees) told him Local 342 was pulling meat department employees out of work. Gilbert de- scribed that day as hectic and having some calls with his lawyer. Gilbert did not explain why Maffia’s time card indicated that he worked eight hours his first day. Further, a position statement submitted by Catalano to the Region during the investigation of this matter stated, “Richard Maffia was hired by HB Food Corp. for one day” and “was thereafter terminated by HB Food Corp. . . . . ” [GC 78] I find that Maffia did work his first day, Monday, November 9, and did not work on Tuesday.21 [Tr. 2207, 2175– 2177, 2217, 2227.] On November 10, Respondent HB laid off part-time meat wrapper Venus Nepay. Gilbert Almonte told Nepay she was be- ing laid off because she was “having a lot of problems.” Nepay testified that she had no history of discipline, but Gilbert told her about a week before her layoff that she was not wrapping the meat packages tight enough. Gilbert testified that one of the rea- sons he laid off Nepay was because she was not wrapping the packages of meat in a manner that was taught and clear. Gilbert further testified that other reasons for the layoff of Nepay was her high wage rate and her failure to follow through on things she was asked to do. [Tr. 93–96, 2178–2179, 2183.] On November 11, according to Maffia, he reported to work. Assistant Manager Danny Ryan asked him what he was doing there, and Maffia said he was off yesterday and back to work today. Ryan made a call and then told Maffia, “we don’t need you anymore.” Maffia told Ryan he thought it was odd to be requested by name and then laid off 2 days later. On his way out of the store, Maffia saw Gilbert Almonte. Gilbert said to Maffia, “sorry we just don’t need you anymore.”22 [Tr. 1409–1410.] On November 12, Respondent HB laid off part-time meat wrapper Khadisha Diaz. Gilbert Almonte told Diaz they were making some changes in the store and were not going to need her any more. Diaz testified that her mother worked for Local 342 and that Britt knew she was her mother. According to Diaz, her mother came to the store before it was purchased by Respondent HB and had a working relationship with Britt (who remained em- ployed after the sale). [Tr. 1579–1583.] 20 Accordingly, given that the payroll records are consistent with Maf- fia’s time card, it is reasonable to concluded that Massia actually refers to Maffia, and Maffia was paid for the day he worked. 21 It is entirely possible that meat department employees did not work Tuesday, November 10, and Gilbert was advised that they were pulled out of work by the Union. Gilbert may have conflated Monday (when Maffia showed up for work) and Tuesday (when Maffia did not work), thereby believing that Maffia actually showed up and left on Monday. 22 I credit Maffia’s version of events. Although Gilbert Almonte tes- tified that he did not think Maffia returned to work after showing up the first day, his recollection was vague, uncertain and inconsistent with Quiles worked one day in Glen Oaks, but was told not to come back thereafter because it was a temporary 1-day assignment. [Tr. 2394, 2695–2700, 2830, 2835.] At the bargaining session held on November 13, O’Leary ob- jected to Maffia and Quiles being laid off after one day of work. O’Leary reminded Catalano he promised to resolve their termi- nations by placing Maffia and Quiles at Howard Beach and Glen Oaks, respectively. Catalano first said he did not remember, but then admitted he did make such a promise. According to O’Leary, Catalano also said, “you had a demonstration in front of the Almontes’ other store, and—and put a rat up there; and do you think that’s right?” Catalano claimed that Quiles and Maffia did not show up for the positions, and O’Leary told him “that’s ridiculous; that’s not what happened.” Catalano did not offer to find the employees other employment and, therefore, O’Leary said the Union would file an unfair labor practice charge. [GC 18] [Tr. 150–157] Union notes of the November 13 bargaining session include the following [GC 18]: LO: So this just one example of what happens after you guys do what you did, there is a long list and we will deal with it. We sent him because that’s would you told us would take care of that part of the problem and we said good then we won’t file any charges the other guy will be placed in another store, you said that is a good resolution. We sent Richard Mafia and they told him to you out they don’t know why, the other guy we got which was resolve the other problem, that guy has also been let go. So no one kept their word about anything. I’m just going to put that on the table and you can discuss it when we have a break but that is where we are with that. In addition to that, the agreement was ppl were going to work for a period of time and have the opportunity and be able to work, that is not what hap- pened; listen to what I am saying. No matter what anyone thinks they can do or has the right to do or has alleged reasons why they are doing those things, absolutely no one from either A&P or Key Food called the Union first and said went ahead and did things that they weren’t supposed to do. I don’t need to discuss that right now, it will go to litigation. You can try to fix it, we can try to get an agreement or we can send ppl to litigate. As ppl are getting laid off we have nothing to tell them. I have nothing DC: Do you give anyone advance notice when you put a rat out in front of a store?? LO: That has nothing to do with what we are here to discuss.... payroll records showing that Maffia worked on November 9. Mean- while, Maffia was clear and detailed in his testimony, which was con- sistent with payroll records that established he worked on November 9. The incident was also more likely to be prominent in Maffia’s mind than in the mind of Gilbert (who was dealing with, in his words, a hectic sit- uation). [Tr. 2208] Further, as noted above, Catalano’s position state- ment to the Region indicates that Maffia was discharged after 1 day. This statement not only works as an admission that Maffia worked “one day,” but also that his employment was affirmatively severed by Respondent HB for cause (i.e., Maffia was “discharged” for not working the previous day instead of abandoning his job). 40 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD At a bargaining session on November 19, according to Solic- itor, the Union again objected to meat cutters being let go at the Glen Oaks and Howard Beach stores without any notice or dis- cussion with the Union. Solicito testified that Catalano said the owners did not want to take the employees back because the Un- ion put up picket lines. [Tr. 957–958.] Union notes of this bar- gaining session include the following [GC 51]: DC: The proposal had been for anyone you don’t want gets $400 that was RA’s proposal. The contract with A&P is 50+1 ($800.) - 50% from A&P and 50 from you. It will be difficult to get Almonte and Diaz into the barn after what happened this week although we have every interest to get Almonte into the tent_ LM: I don’t want it, I am handling these guys and they will hop on the table. It’s been a big problem for us. DC: To control them has been difficult; l don’t think he will pay severance. I didn’t know about Maffia, does he have a job somewhere else? LM: The co-op will pay severance. DC: How many were let go? LS: about 10 ppl DC: From which stores? LS: Almonte and Diaz’s store—almost 10 ppl some part timers mixed in with 22 meat cutters, 613 Glen Oaks, and meat man- ager. DC: But he was Iet go from Lindenwood first LS: Yes but then he was let go from Glen Oaks, 3 full timers. Meat managers reduce to 30 hours and the wrapper DC: I don’t know about that I can’t tell Alvin ..... We can have a new hire rate LM: They can’t go in and find a friend for $19 an hour. We are looking to save money LS: Let’s say in store 613 where they got rid of Nelson, if Jack gets let go, why doesn’t Nelson come back? DC: They can’t have those guys come back to the store DA: Why not DC: Bc with what Almonte and Diaz went through they won’t take them back. They don’t have to take them back either. They can walk in and say this is how it was constructed… Catalano testified that, on November 19, a discussion of sev- erance led to a discussion of Maffia and Quiles. According to Catalano, Abondolo asked, “Will you bring them back?” Cata- lano claims he responded, “Based on what they did? But you know what, I’ll ask.” Catalano testified in talking about “what they did,” he was referring to “illegal acts” engaged in by indi- viduals involved in the union handbilling. [Tr. 1886–1889.] Catalano further testified that he spoke to Abondolo by phone in late-November or early-December and offered to “take back” Maffia and Quiles, but Abondolo said to “forget it” because he (Abondolo) would get them jobs somewhere else. [Tr. 1887, 2020–2024.] Abondolo denied that Catalano ever offered any- body’s job back. [Tr. 1066.] In support of this denial, O’Leary testified that Quiles, in late-December, was being referred by the Union for temporary work assignments off the Union’s shapers list. Quiles did not have enough seniority, among the hundreds of A&P employees who lost their jobs as a result of the bank- ruptcy, to obtain permanent work off the Union’s permanent re- ferral list. O’Leary estimated that about 350 butchers were on the referral list for permanent work in November. According to O’Leary, Abondolo would not have told Catalano he would get Quiles or Maffia a job somewhere else because that was not pos- sible. O’Leary also testified that it was the Union’s practice to communicate any and all offers of employment (for example, re- instatement offers to settle arbitrations) that are made to an em- ployee and never to reject an offer of employment without talk- ing to the employee. O’Leary stated that to do so could expose the Union to an unfair labor practice charge. [Tr. 2684–2695, 2699–2700] [GC 79]. On December 23, Catalano submitted a position statement to Region 29 which included the following [GC 78] [R. 28]: Additionally, Richard Maffia was hired by HB Food Corp, for one day, was thereafter terminated by HB Food Corp., and he, along with Nelson Quiles, were subsequently offered employ- ment by F113 Food Corp, through the auspices of Local 342. Mr. Abondolo of Local 342 specifically stated that they would either not return to HB Food Corp., or in the case of Mr. Quiles, not be hired by HB Food Corp. In short, Local 342 precluded their employment at HB Food Corp., thereby debunking any claim that their employment or prospective employment was somehow prevented by HB Food Corp, or that they were the subject of an anti-union animus. In fact, all employees hired by Key Food or the named entitles from A&P are in the same col- lective bargaining unit that they had been in when employed by A&P. Finally, to eliminate any doubt as to the fact that HB Food Corp. had offered employment to Nelson Quiles and/or Richard Maffia to be its Meat Manager, HB Food Corp, uncon- ditionally, in this letter, offers employment to either one of them to be Its Meat Manager. In a conversation that occurred after this position statement was submitted, Board attorney Noor Alam advised Catalano that the Region could not convey offers of employment to discrimi- natees. The evidence does not indicate that Respondent HB communicated the offer of employment directly to Maffia or Quiles. Likewise, the record does not indicate that the Region communicated the offer of employment to the Union. [Tr. 2020– 2024.] Respondent Seven Seas Respondent Seven Seas is owned by Paul and Pat Conte. Pat Conte currently owns seven supermarkets, which are unionized. The Contes have had bargaining relationships with Local 342 at various supermarkets since the 1970s. [Tr. 378, 2234–2238.] The Contes purchased three stores through the A&P bank- ruptcy, including the Union Square Food Emporium. A&P and the Union had a collective-bargaining agreement at the Union Square store covering a wall-to-wall bargaining unit. [Tr. 2239– 2242.] SEVEN SEAS UNION SQUARE, LLC 41 The A&P contracts contained provisions for full-time employ- ees in a store that was closing to transfer into a different store on the basis of seniority. Some full-time employees transferred to Union Square. As a result, according to Pat Conte, Union Square had a large number of senior, highly paid, full-time employees. [Tr. 382–385, 656–660, 1081, 1271–1277, 1617]. Sharon Gowon was the store manager of the Union Square Food Emporium before the sale of that store to Respondent Seven Seas. Gowon came to work at Union Square as store man- ager in about February 2015 and was retained when Respondent Seven Seas took over. [Tr. 409, 620.] The store manager is the highest managerial position in the supermarket with authority to schedule, discipline, and fire employees. [Tr. 381.] The parties stipulated, and I find that Gowon was a supervisor of Respondent Seven Seas within the meaning of Section 2(11) of the Act. Gowon was not called by any party as a witness in this case.23 [Tr. 406.] Prior to coming to Union Square, Gowon was the store man- ager for a Food Emporium on 87th Street and Madison Avenue and, before that, the assistant manager of a Food Emporium on Sixth Avenue (both located in Manhattan, New York). Gowon may have worked at a different store between the time she left 87th Street and came to work at Union Square, but the record is not entirely clear. [Tr. 1215.] The evidence does not establish exactly how long Gowon worked at 87th Street or Sixth Avenue. [Tr. 619–620, 1188–1190.] Union representative Margaret Monier was primarily respon- sible for administering the Local 342 contract at the Union Square Food Emporium. According to Monier, she represented Union Square employees from “about 2009 to when they closed.” [Tr. 1187.] Monier was also responsible for the 87th Street and Sixth Avenue stores when Gowon worked at those lo- cations. [Tr. 1188–1190.] On November 7, LoIacono called Pat Conte and said “he knew that the store was very heavy and if we wanted to not hire any- body to make up a list and to send it to him.” According to Pat, this “was music to my ears because I know the store was very over staffed.” [Tr. 2260.] LoIacono did not deny the conversa- tion. On November 8, Pat Conte sent LoIacono a list of 17 employees (below) Respondent Seven Seas would not be hiring [R. 2] [GC 70, 72]: Last Name First Name Department Job Title Callender Cesar Deli Deli Clerk Colon Jose Carlos Meat Journeyman B Delossantos Francisco Produce Produce Clerk Diaz Juana Grocery Scanning Admin/Coordinator Fields Keesha Bakery Bakery Manager/Dir/Dept Head Gomez Madeline Deli Deli Clerk Henderson Sophie Front End Front-End/Customer Service Clerk Iturralde Dena Front End Cashier/Checker Jones Tamika Floral Floral Manager/Dept Head Maldonado Lucy Seafood Seafood Manager/Dept Head Nunez Ricardo Grocery Dairy Manager O’Neal Troy Grocery Night Stock/Packout Clerk Ortega Maria Deli Deli Clerk Pagan Elena Front End Cashier/Checker Silverio Rosa Bakery Bakery Clerk Simpson Jerry Produce Produce Clerk Tirado Natalie Store Bakery Bakery Clerk Respondent Seven Seas ultimately hired the remaining A&P employees, which largely included employees who held the same job titles as the alleged refusal-to-hire discriminatees. For example, the Respondent hired part-time bakery clerk Wanda Barreto, but did not hire part-time bakery clerk and alleged discriminatee Silverio. [GC 70; Tr. 1610.] Alleged discriminatees Iturralde and Diaz appear 23 On the record, Respondents’ counsel stipulated that Gowon was a supervisor while employed by Respondent Seven Seas, but represented that Gowon left Seven Seas sometime after November 2015 and was not a supervisor thereafter. [Tr. 406.] The record did not otherwise confirm Gowon’s departure or indicate when she left. 42 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD to have been the only full-time employees who held their job titles at A&P, but Respondent Seven Seas hired part-time employees in those job classifications.24 The record does not indicate whether Respondent Seven Seas replaced bakery manager Fields, but a number of bakery clerks were retained. The record does not indicate whether Respondent Seven Seas replaced floral manager Jones or retained any employees in the same department as Jones (if she worked in the floral department with other employees). [GC 70, 72.] On November 9, Respondent Seven Seas formally purchased and took over the operation of the Union Square store. [Jt. 6.] On November 9 or 10, Respondent Seven Seas notified those A&P employees who were not going to be retained. On December 26, Respondent Seven Seas laid off part-time scanning employee Ayanna Jordan without notifying or offering to bargain with the Union. [Tr. 170, 966, 1013, 1035–1036, 1456, 1629.] Pat Conte was initially called as a witness by the General Counsel and questioned pursuant to Rule 611(c) of the Federal Rules of Evidence. Pat testified as follows with regard to the decision not to hire certain employees [Tr. 386]: Q Okay. So you asked Sharon, though, to decide which of the employees would be hired and who wouldn’t; is that correct? A Yeah. Well, what we did ask her is which employees held promise and which seemed to be lackluster in their perfor- mance. Q Okay. And so she made a list of you -- for you of these lack- luster employees? A She didn’t make a list. She told us who she thought would not work out so well probably, and who was an excellent worker. Q Okay. So -- and you relied on her representations? A In most cases. Later in the hearing, on direct examination by the Respond- ents’ counsel, Pat Conte testified that he talked with two other former Food Emporium employees—Director of Security Mac McBrien and Produce Clerk Santos Garcia—about which em- ployees were most productive. According to Pat, McBrien was particularly well situated to know who was a good worker be- cause McBrien watched security cameras all day. However, on cross examination, Pat admitted that he did not mention McBrien or Garcia in the affidavit he provided during the Regional inves- tigation. Rather, his affidavit states, “someone from Seven Seas then asked Sharon Gowon who she recommended we hire out of the previous employees. Ms. Gowon thus provided a list of em- ployees she believed were good and which were lackluster in their performance.” [Tr. 2260–2264, 2286–2287.] On cross-ex- amination, Pat confirmed that Gowon “did give her opinion at times.” [Tr. 2287.] Monier and Diaz testified that they received more complaints from employees and had more difficulty resolving those com- plaints after Gowon replaced the prior Union Square store man- ager, Kevin Smith. The most common problems the Union ad- dressed with Gowon were scheduling and, to a lesser extent, safety issues. Monier called Gowon and also came to the store on a weekly basis to address such concerns. On her trips to the 24 Spreadsheets of the A&P-Union Square employee roster list Ayanna Jordan as a deli clerk, but Diaz credibly testified without contradiction that Jordan was an assistant in the scanning department. [Tr. 629–630, 641–643.] store, Monier sometimes walked around with the stewards and asked employees whether they had additional issues she needed to know about. Monier and the stewards spoke to Gowon about these concerns, but with little success resolving them. Accord- ingly, Monier often called Human Resources. Monier testified that she was more successful resolving issues with Human Re- sources than with Gowon. [Tr. 1193–1198, 1207.] Protected Activity of Employees not Hired by Respondent Seven Seas and Evidence of Antiunion Animus Tamika Jones, Union Steward - Jones was hired by Food Emporium on September 6, 1990 and transferred to the Union Square store on December 28, 1999. [Tr. 407–408.] Jones was the primary steward at Union Square from 2002 until the store transitioned to Key Food. According to Jones, scheduling issues were the most common complaints from employees and she re- ceived such complaints at least five times per week. She at- tempted to resolve those issues with Gowon, and sometimes did (but sometimes did not). When Jones could not resolve an issue with Gowon, she called Monier. If Monier came to the store in person, Jones accompanied Monier when she spoke to employ- ees and Gowon. Jones estimated that these rounds took two or three hours. [Tr. 409–413, 442.] Dena Iturralde, Assistant Union Steward - Iturralde was a self-checkout cashier and the formal assistant steward who as- sumed the position when Jones was absent. Iturralde called Monier when employees had a problem, which occurred about two or three times per week. If Monier came to the store, like Jones, Iturralde accompanied her when she spoke to employees and Gowon. [Tr. 458–464.] Juana Diaz, Informal Assistant Union Steward – Diaz was a scanning administrator and assisted Jones in more of an unof- ficial capacity than Iturralde. [Tr. 618–619.] Diaz was the shop steward at the 87th Street store from about 1995 or 1996 until that store closed in December 2014. Diaz and other employees of the 87th Street store were transferred to Union Square. Diaz testified that employees who transferred with her from 87th Street often came to her with employment concerns instead of going to Jones or Iturralde. Diaz overlapped at 87th street with Gowon, who was the store manager for about a year before that store closed. [Tr. 618–620, 625–627, 635–638, 1192–1193.] Diaz testified that she talked to Gowon about employee sched- uling issues about seven or eight times per week and safety issues about one time per week. Diaz felt that Gowon was reluctant to change the schedule once it was prepared. According to Diaz, she had a particularly lengthy conflict with Gowon over the transfer of Gowon’s niece (then an employee at 87th Street) to a night shift position at a different store. Gowon wanted an em- ployee with more seniority than her niece to be transferred out of 87th Street, but Diaz objected. This was raised as an issue over SEVEN SEAS UNION SQUARE, LLC 43 the course of a couple of weeks until Gowon’s niece was ulti- mately transferred instead of the more senior employee. [Tr. 6216–6223, 625–627.] When Diaz transferred to Union Square, the Union Square store manager was Smith. Diaz had fewer problems with Smith than with Gowon when she replaced him. Gowon often asked Diaz why she was talking about employee complaints since she (Diaz) was not a steward. Diaz explained that employees from the 87th Street still came to her with issues, and Gowon did re- luctantly speak to Diaz about these matters. [Tr. 619–620, 629, 635–638.] In addition to acting as a de facto steward, Diaz objected when her own schedule was changed shortly after Gowon arrived at the Union Square store. Diaz was moved from a 7 am to 3:30 pm shift Monday through Friday plus five hours at time and a half pay on Sunday to an 8 am to 4:30 pm shift with a day off during the week, work on Saturday, and no Sunday hours at time and a half. Diaz called Monier and they spoke with Gowon about the matter together. Monier also spoke to Sean Grigals in Hu- man Resources. Gowon claimed there was no scanning work to be done on Sunday, but Diaz was allowed to work on a cash reg- ister every other Sunday. Thereafter, Diaz learned that a less senior part-time scanner, Ayana Jordan, was doing scanning work on Sundays. Diaz complained, but Gowon refused to change her schedule. [Tr. 638–643, 1200–1207.] Maria Ortega – Ortega was the Union Square café manager. [Tr. 518.] Although she was never a Union steward, Spanish speaking employees sometimes talked to Ortega about work- place complaints. Ortega would notify a steward or the Union of employee complaints, and sometimes translated for Spanish speaking employee in conversations with Gowon. [Tr. 528–529, 568.] Monier sometimes called Ortega at work and these calls were publicly announced over the speaker system so Ortega could pick up the line in an office. Ortega transferred some of Mon- ier’s calls to Gowon. [Tr. 529–530.] Ortega attended Union meetings and distributed Union mate- rials she obtained at those meetings in the Union Square store during her lunch break. Ortega testified that she distributed these materials openly and that Gowon was in a position to see her doing so (as well as the Union logo on the literature). Ortega also testified that she told Gowon on at least one occasion, when she was waiting in the café’ for the stewards, that she and the stewards were going to a Union meeting. [Tr. 521–525, 557– 563.] Ortega had certain workplace complaints of her own that she brought to the Union’s attention and the Union, in turn, raised with Gowon. In the winter before the sale of the Union Square store, Ortega repeatedly complained for nearly a month that the café where she worked was cold because it was next to a door that was broken and remained open. Gowon did not have the door fixed and Ortega notified Monier. Monier came to the store and spoke to Gowon, who closed the broken door that day. How- ever, the door was kept open thereafter and Monier reported the matter to Human Resources. According to Monier, the door was not permanently shut until she complained to Human Resources. [Tr. 530–534.] In about August or September, Ortega was removed from the Sunday schedule and replaced by part-time employees. Previ- ously, she worked every Sunday. Ortega and stewards com- plained to Gowon about this several times. Gowon sometimes said she did not need Ortega on Sundays and sometimes simply walked away without saying anything. Monier came to the store to address the matter, but Gowon refused to schedule Ortega to work Sundays. [Tr. 421–422, 464–468, 519, 533–541.] On about November 6, Gowon told Ortega to clean the walls of the café’ because the store had been sold. Ortega said she could not clean the walls because she was constantly waiting on customers. Gowon walked away, but Ortega followed her and called Iturralde over (who was nearby). Ortega asked Gowon to schedule her for four hours on Sunday to clean the walls. Gowon said Sunday is not for cleaning. Iturralde asked Gowon why she did not want to schedule Ortega to work on Sundays, but Gowon just laughed and walked away. [Tr. 541–544, 557–563.] Jose Carlos Colon – Colon was a butcher in the meat depart- ment at Union Square. Jones spoke to Gowon about Colon being scheduled for “split shifts” or different hours on different days of the week. Monier also spoke to Gowon about Colon being assigned a later shift than he was entitled to on the basis of his seniority. The evidence does not indicate exactly when these is- sues arose, but they occurred at Union Square when Gowon was General Manager (i.e. 2015). [Tr. 420–421, 629–633, 1229– 1230.] Keesha Fields – Fields worked in the 87th Street Store as the bakery manager for about five or six years and Gowon was the store manager there for about the last six months. Fields trans- ferred to the Union Square store a few months before Gowon did. In April or May, Fields requested leave to have wrist sur- gery. According to Fields, Gowon “was giving me a hard time about that.” Gowon said she had the same problem and it did not require an operation. Gowon also asked Fields who was going to run the department while she was on leave. Fields told Jones about her leave request and Monier spoke to Gowon. Gowon refused to give Fields the time off she needed and Monier con- tacted Human Resources. Human Resources agreed to give Fields the time off. Fields took about one and a half weeks off for the surgery. [Tr. 419–420, 490–493, 1208–1209.] According to Fields, after she returned from the operation, Gowon began treating her differently. Fields testified that Gowon had a problem if she came in five minutes late or had difficulty getting product out on the floor on time. Fields admit- ted that she was a little slower getting food out on the floor fol- lowing her operation. [Tr. 493–495, 503–504.] Madeline Gomez – Gomez worked in the 87th Street floral department before she was transferred to Union Square and as- signed to the deli in about December 2014. Monier testified that, initially, Gomez was allowed to make sandwiches or hot food and was not required to use the deli slicer. However, according to Monier, Gowon required Gomez to operate the slicer when she (Gowon) came to the Union Square store. Monier told Gowon that Gomez did not know how to use the deli slicer, but Gowon just said, “there’s nothing I can do about it. This is her job that she has to do.” Monier contacted a manager in Human Resources and he agreed to train Gomez on the slicer for as long as she needed in order to get comfortable working with it. [Tr. 1217–1223.] 44 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD According to Monier, Gomez complained about several other safety issues at Union Square, such as exposed wiring and a problem with the slicer’s safety switch. Monier estimated that Gomez called her about four times in 2015. Monier came to the store each time and had Gomez show the problems to her, the stewards, and Gowon. Monier testified that Gowon’s body lan- guage indicated she was not happy in that she would tap her foot, fold her arms and/or storm off without saying anything. On these occasions, Gowon also asked Gomez, “why didn’t you just speak to me about it? Why do you have to call Margaret? I’ll take care of it.” [Tr. 1217–1223.] Jones testified that she too spoke to Gowon about Gomez be- cause Gomez was not always assigned to work two Sundays per month. [Tr. 416–419.] Lucy Maldonado – Maldonado was the seafood manager at Union Square. In about early-2015, Maldonado called Monier and said her vacation time was incorrect. Monier called Gowon, who said she would look into it. Monier followed up with Gowon, but Gowon said she still did not have any information. Monier then contacted human resources. Maldonado was subse- quently injured at work and went out on workers compensation. Monier did not know how or whether Maldonado’s vacation is- sue was resolved. [Tr. 1228–1229.] Ricardo Nunez – Nunez was the dairy manager at Union Square and also worked with Gowon at the Sixth Avenue store. In about May 2010, at the Sixth Avenue store when Gowon was the assistant manager, Nunez complained to Monier that he was not being paid correctly. Monier testified that Gowon handled most of the personnel matters at the Sixth Avenue A&P store even though she was the assistant manager. Monier asked Gowon to correct Nunez’s pay. Gowon told Monier she would do it, but did not. Monier contacted Human Resources and Hu- man Resources corrected the error. Nunez received retroactive pay in the amount of $1,335.83. [GC 54, 70, 72] [Tr. 1225– 1227]. Elena Pagan – Monier testified that Pagan was a deli clerk who was bumped from full-time to a part-time position and then complained she was not receiving the minimum number of hours for a part-time employee. According to Monier, this occurred a few weeks after Gowon arrived at the store. Monier talked to Gowon about Pagan not receiving the minimum hours, but could not resolve the issue. Monier then contacted Human Resources and was able to resolve it. Monier testified that the Union also grieved the reduction of some employees from full-time to part- time, but did not recall whether Pagan was covered by that griev- ance. [Tr. 1223–1225, 1270, 1294.] Rosa Silverio – Silverio worked in the Union Square bakery. Juana Diaz testified that she talked to Gowon every week about Silverio’s scheduling. According to Diaz, Gowon often sched- uled a less senior employee named Erma for hours “before” Sil- verio.25 Further, in about the summer of 2015, Gowon refused to authorize Silverio to take a day off to have her home inspected. Jones had a meeting with Gowon about this issue and Diaz was present. Gowon initially objected to the presence of two shop 25 It is not entirely clear to me what Diaz meant by Gowon putting Erma “before” Silverio. The General Counsel represented in its brief that Gowon assigned Erma an earlier shift. stewards (Jones and Diaz), but ultimately allowed Diaz to stay as a Spanish speaking interpreter for Silverio. The parties appar- ently resolved the issue since, according to Diaz, Silverio took the time off. [Tr. 631–632, 644–646, 1207.] Jerry Simpson – According to Monier, Simpson complained that part-time employees were being scheduled for hours he should have received as a full-time employee. Monier testified that she thought Simpson raised these complaints in 2014 (before Gowon arrived at Union Square), but later testified that it could have occurred in 2015. [Tr. 1235.] Natalie Tirado – Tirado was a cashier at the 87th Street Store who had an accommodation to sit down while performing her job because she had bad knees. Gowon was the store manager at 87th Street. When the 87th Street store closed, Tirado was transferred to Union Square. However, Gowon designated Tirado for transfer to the Union Square bakery department, where she was not able to sit. Monier asked Gowon why Tirado was not transferred to a cashier position at Union Square, but Gowon merely said, “that is where I placed her.” Monier talked to Smith (then the store manager of Union Square) and Human Resources. Smith said he had other spots available where Tirado could work while seated, and moved her to a cashier position. [Tr. 1213–1216.] Additional Evidence Presented by the General Counsel in Support of a Finding of Antiunion Animus Monier testified that Gowon often appeared angry when she was told of employee complaints. According to Monier, Gowon also asked employees why they did not come talk to her directly instead of contacting the Union. In response, Monier told Gowon that employees would not need to call the Union if she fixed things in the first place. [Tr. 1191–1192.] In about September, after A&P declared bankruptcy, Monier went to the Union Square store to see if employees had any ques- tions. On Monier’s way out of the store after the visit, Gowon asked her, “why are you even here you know … [t]hey don’t have a union anymore. … [Y]ou don’t have to come see them anymore.” Monier said, “yes, they do have a union.” [Tr. 1190.] In about October or early-November, before Respondent Seven Seas purchased the Union Square store, Iturralde heard Gowon say “the union is full of shit.” Iturralde asked Gowon why she said that, and Gowon responded, “well, you don’t see them here for you guys now, so, they’re full of crap.” [Tr. 468– 469.] Respondents Albany Avenue and Greaves Lane Respondents Albany Avenue and Greaves Lane are owned by Sam and Randy Abed. Respondent Albany Avenue purchased and assumed the operation of the Pathmark on Albany Avenue in Brooklyn, New York on November 16. Respondent Greaves Lane purchased and assumed the operation of the Pathmark on Greaves Lane and Amboy Road in Staten Island, New York on November 24. [Jt. 6.] Respondents Albany Avenue and Greaves Lane hired all the former Pathmark employees at their current rate of pay. [Tr. 599–600, 604–605.] SEVEN SEAS UNION SQUARE, LLC 45 Robert Jenzen was the deli manager at Albany Avenue when the store transitioned to Key Food. He earned $23.19 per hour and worked 7 am to 3:30 pm Monday through Friday as well as 5 hours on Sunday from 7 am to 12 pm. Stephen Fiore was the meat manager at Albany Avenue when the store transitioned to Key Food. He earned $31.33 per hour and worked the same schedule as Jenzen. O’Neil Lyons was a butcher at Albany Avenue when the store transitioned to Key Food. Randy Abed testified that, after Respondent Greaves Lane as- sumed the operation, payroll had to be cut because the store was not doing the business they anticipated. Accordingly, shortly af- ter Thanksgiving, Respondent Greaves Lane reduced employ- ees’ days of work from six to five. [Tr. 605.] In about the middle of the first week, Greaves Lane store man- ager Steve Rabino told meat cutter and Union shop steward Mi- chael Fischetti that unit employees were going to be given an extra day off. [Tr. 709–711.] Anthony Venditti, a Greaves Lane meat cutter and assistant steward, learned about the extra day off from meat manager Dominic Deverso. Venditti approached Rabino and asked whether there were any other changes he needed to know about. Rabino said he would check with the new owners. [Tr. 739– 741.] On November 28, Respondent Albany Avenue laid off butcher Joseph Batiste and apprentice meat cutter Kalvin Harris without notifying or offering to bargain with the Union. [Tr. 171, 596–599, 967, 1014, 1456.] On November 28, Respondent Greaves Lane laid off deli man- ager Gina Cammarano and seafood Manager Debra Abruzzese without notifying or offering to bargain with the Union. Abruzz- ese reported her layoff to Venditti (Abruzzese’s fiancé), and Venditti asked Rabino why Abruzzese had been laid off. Rabino just said he was told to lay off Abruzzese and Cammarano. Venditti asked Rabino what was going on, but Rabino shrugged. [Tr. 170, 966, 1014, 1366–1367, 1456–1457, 2359.] On about November 29, the Union engaged in handbilling in front of the Greaves Lane store from about 10 am to 2 or 3 pm. Venditti was the acting shop steward that day because Fischetti was on leave. Monier was present for the handbilling. During Venditti’s 15-minute break at about noon, he went outside to hand out leaflets and speak to customers. According to Venditti, the leaflets indicated that the new owners laid employees off out of order of seniority and changed employees’ working condi- tions. Monier testified that she saw owner Randy Abed watching the handbillers nearly the entire day either from inside the store looking out the front windows or from outside the store. Accord- ing to Monier, when Venditti was outside, Randy was clearly watching him. Monier also testified that Randy was “videoing, taking pictures.” Monier thought Venditti stood out among the handbillers because he is a “big guy, very tall,” was wearing a white meat cutter’s coat, and several customers were speaking to him. [Tr. 746–748, 1239–1246]. On about this first day of handbilling, Abondolo called Sam 26 The Union handbilled at Albany Avenue or Greaves Lane on a regular basis through Christmas, and then continued more sporadically. [Tr. 601–604, 60–610, 1248–1250.] Abed and asked him to fix the situation by signing a transition agreement. Sam told Abondolo he was not allowed to do any- thing without Key Food. According to Abondolo, Sam said he had signed an agreement that would result in him losing money if he signed a contract with the Union independently of Key Food and the other stores. Abondolo told Sam the Union demonstra- tion outside the store was happening because Respondent Greaves Lane laid off the deli and seafood manager. Sam replied that he could not afford to retain those employees because their wage rates were too high. Sam said he was thinking of laying off six or seven other employees, including Fischetti and Venditti. Abondolo offered to take the picket line down if no- body else was laid off and the Abeds would sit down and talk with the Union about working something out. Sam said, “okay.” Sam then went outside and told Monier that Abondolo had agreed to take the line down. Monier called Abondolo and he instructed her to stop handbilling. [ Tr. 604, 1008–1012.] On about the next day, November 30, Respondent Greaves Lane laid off Venditti and Fischetti. When Venditti arrived for work, he was called in to speak with Sam and Randy Abed. Randy asked Venditti if he had spoken to Abondolo. Abondolo said he had no reason to speak to him. Randy said, going for- ward, they would only negotiate with Abondolo and nobody else. Venditti did not understand the comment and did not respond. The Abeds then told Venditti they were letting him go because the store was not doing enough business. Venditti noted that the store had only been open a week and asked how they could tell if the store was going to do business. The Abeds simply reiter- ated that the store was not doing enough business. [Tr. 746– 747.] Randy Abed testified that Venditti and Fischetti were selected for layoff because they were the least senior employees. How- ever, Greaves Lane Butcher Justin Conti testified that he and butcher Vaughn Young had less seniority with the store than Venditti and Fischetti. A roster that was provided to the Abeds before they purchased the store confirms that Venditti and Fisch- etti were not least senior among butchers. According to this ros- ter, Coughlin was hired on July 17, 2000 and Young was hired on May 26, 2000. Young did not become a full-time employee until August 14, 2006. Venditti was hired as a full-time butcher on July 10, 1995 and Fischetti was hired as a full-time butcher on September 19, 1994. [GC 72] [Tr. 2613]. About a week or two after Venditti and Fischetti were laid off, the Union resumed handbilling at Greaves Lane.26 [Tr. 1248.] On about the day handbilling resumed, according to Greaves Lane assistant seafood Manager Chris Coughlin, Sam Abed threatened to fire him if he went outside to join the Union. Coughlin said “okay” and never went outside to join the Union. [Tr. 2635.] Conti also testified that Sam Abed threatened to fire him if he engaged in handbilling. According to Conti, on December 1, Sam came into the meat locker where he was working with deli first person Monserrate Reyes and butcher Antonio Giuffre.27 Abed said he knew the Union was asking them to stand outside 27 Conti did not identify the last name of Munsee (spelled phonetically in the transcript), but a list of A&P employees at the Greaves Lane store includes a deli clerk named Monserrate Reyes. Conti identified Tony’s 46 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD on their lunch breaks, but anyone who went outside would not be allowed back in the store. Giuffre and Conti both told Abed he could not tell them what to do during their lunch break and that he was putting them in a difficult position of choosing be- tween the Union and their jobs. Abed told them it was not a hard decision at all; you can go out and have no job or you can refuse to stand on the line with the Union and continue having a job. About 20 minutes later, Sam came back and told them to work straight through lunch, which they did. Toward the end of the day, Sam told Giuffre and Conti they would be fired if they joined the union demonstration at the end of their shifts. Again, Giuffre and Conti told Sam he could not tell them what to do on their own time. After his shift ended, Conti removed his hat (which he always wears at work), rearranged his hair, changed his shirt and put on sunglasses in an attempt to disguise himself. He then joined the handbilling. Giuffre also engaged in the hand- billing. Conti testified that Sam came outside several times and looked at him but did not give any indication that he (Sam) rec- ognized Conti as an employee. Conti also testified that Randy videotaped him and Giuffre outside. Conti continued to partici- pate every day the Union handbilled over the next 2 weeks. [Tr. 2614–2616.] Sam Abed testified that he had no knowledge of employees’ union activities and did not lay off employees on that basis. [Tr. 2325–2331.] Otherwise, Sam did not deny specific events and statements that were testified to by Fischetti, Venditti, Coughlin, Conti and/or Monier. Randy Abed was not called as a witness by the Respondents. Conti also testified to separations and hiring in the Greaves Lane meat department after Venditti and Fischetti were laid off. According to Conti, meat manager Dominick D’Aversa was fired a few weeks later and was replaced the same day by an in- dividual named Phil who previously worked at a different Path- mark store. Young resigned and was replaced by a cutter named Gene who previously worked at a different Pathmark store. As noted above, Giuffre was transferred from Greaves Lane to Al- bany Avenue around Christmas. In about April 2016, Phil was fired and a meat cutter named Musa was hired. When Phil was fired, Conti was promoted to the meat manager job without an increase in pay. Conti testified that Musa worked six days per week from 10 to 12 hours per day without overtime. Meanwhile Conti was removed from the Sunday schedule. Sam told Conti he was removed from the Sunday schedule because they did not pay Musa the overtime rate. In about late-April 2016, Greaves Lane hired a meat supervisor. In about June 2016, Conti re- signed because he was transferred to the night shift and had a child care conflict. Sam Abed testified that he believed the October 22 MOA was in effect and the MOA provided that employees who were laid off would have recall rights. [GC 16] [Tr. 2328]. Neither Venditti nor Fischetti were recalled to work by Greaves Lane. [Tr. 2619–224.] In about late-December, the Respondents transferred Giuffre and meat wrapper Sharon Luciano from the Greaves Lane store to the Albany Avenue store. Albany Avenue payroll records last name as “Dufay” (spelled phonetically in the transcript). The list of A&P employees includes a meat cutter named Antonio Giuffre. show that Luciano received her first paycheck on December 24 and Giuffre received his first pay check on December 31. Mean- while, according to Fiore, Lyons was temporarily transferred from Albany Avenue to Greaves Lane between late-December and January 2016. Albany Avenue schedules show that Lyons was on the schedule for the period ending December 26, 2017, off the schedule the next 2 weeks, and back on the schedule for the week ending January 23, 2016. [Jt. 7.] Fiore noted that Lyons was sent to Greaves Lane in Staten Island even though he lived in Brooklyn and Giuffre was sent to Brooklyn even though he lived in Staten Island. [Tr. 1138–1142.] After Christmas, Randy Abed told Jenzen his hours were be- ing reduced. Randy offered Jenzen the option of not working Sundays or having his schedule changed from 40 to 35 hours during the week. Jenzen decided to stop working Sundays. Nev- ertheless, two weeks later, Jenzen’s weekly hours were reduced from 40 to 35 hours as well. Respondent Albany Avenue did not notify or offer to bargain with the Union before cutting Jenzen’s hours on these two occasions. [Tr. 1370, 1566–1567.] In about early-January 2016, after handbilling had begun at Albany Avenue, Sam Abed approached Fiore and told him he cannot leaflet on company time “or else that’s going to be a prob- lem for you.” Fiore testified that he participated in union hand- billing at Albany Avenue about six times during his half-hour lunch breaks and after work. In about the same time-period, Fiore also engaged in handbilling at the Greaves Lane store on his day off. Fiore testified that, on this occasion, Sam walked into the Greaves Lane store about 10 feet from where he was handbilling. While handbilling at the Albany Avenue store, Fiore wore a cardboard placard that said Local 342 and told cus- tomers the store was a nonunion shop that did not have a union contract. Fiore testified that Randy Abed was outside the Albany Avenue store with a megaphone at least 1 day during the union handbilling. Randy said through the megaphone that the Union was lying and the store was a union shop. According to Fiore, at the Albany Avenue store, Randy stood about 50 feet from him and could see him handbilling with an unobstructed view. [Tr. 1145–1149.] Sam and Randy did not deny these facts. Union handbills distributed at the Albany Avenue and Greaves Lane stores requested that customers not shop at the stores because unfair labor practice charges were found to have merit and a trial would be conducted regarding the case. [GC 34] [Tr. 1161–1164, 1277–1284]. In about January 2016, Respondent Albany Avenue distrib- uted to employees a document called “Key Food Rules & Regu- lations” and a Key Food application. Albany Avenue store man- ager Mike Carlos told employees they had to sign the Rules & Regulations and fill out the application or they would not have a job. [Tr. 1154–1155.] These Rules & Regulations contained the following provisions [GC 25]: SOLICITATION Solicitation is defined as the selling of merchandise or services, charitable contributions petitions of any nature, illegal gam- bling items, etc. Employees may not directly or indirectly SEVEN SEAS UNION SQUARE, LLC 47 solicit other associates for any purpose during scheduled work hours while on company property, Non-Employees are not au- thorized on company premises at any time for the purpose of soliciting KeyFood. Employees who are approached by a non- associate soliciting on company property should immediately report this to store management. POLITICS: YOUR COMPANY ENCOURAGES YOUR PARTICIPATION IN THE POLITICAL PROCESS. HOWEVER, SUCH ACTIVITY SHOULD BE RESTRICTED TO YOUR OWN TIME AND BE CONDUCTED AWAY FROM COMPANY PROPERTY. NO POLITICAL OR LEGISLATIVE PETITIONS SHALL BE CIRCULATED ON COMPANY PROPERTY There is to be no loitering in any specific department at any time. (example: no loitering in the deli department company time or off company time. no loitering in any department on your day off.) IT IS IMPOSSIBLE TO COVER EVERY SINGLE ACT OR MATTER: HOWEVER, ALL EMPLOYEES ARE EXPECTED TO CONDUCT THEMSELVES PROPERLY AT ALL TIME. IMPROPER CONDUCT OR MATTERS, EVEN THOUGH NOT SPECIFICALLY MENTIONED HEREIN, WILL SUBJECT THE EMPLOYEE TO DISCIPLINE. On about January 16, 2016, Sam Abed told Fiore he was being demoted from meat manager to butcher and would have his hours reduced from 40 to 35 hours with no Sundays because he (Fiore) was making too much money. Sam did not deny this. Fiore thought his pay would be reduced from $31.33 to the “A Butcher” rate of $29.55, but his pay was reduced to $25 per hour instead. When Fiore realized his pay was being reduced to $25 instead of $29.55 per hour, he asked Carlos about his pay and Carlos referred him to Sam. Fiore texted and left voice mail messages for Sam but received no response. [Tr. 1155–1158.] Fiore testified that, when he was demoted, Lyons was trans- ferred back from Greaves Lane to replace him as the meat man- ager. According to Fiore, when he returned to Albany Avenue, Lyons was earning $20 or $25 per hour (not Fiore’s meat man- ager rate of $31.33).28 Albany Avenue schedules confirm that Lyons returned to the store and was on the schedule for the week ending January 23, 2016. The schedules also show that Lyons, upon his returned, was scheduled to work more than 40 hours per week while Fiore was scheduled to work 35 hours. [Jt. 7–8] [Tr. 1155–1158]. Fiore testified that he never received any sort of written or verbal discipline or reprimand while employed by Respondent Albany Avenue. [Tr. 1152–1153.] Sam Abed testified that Fiore 28 Albany Avenue payroll records do not contain hours worked. How- ever, the schedule for the week ending January 30, 2016 indicates that Lyons was scheduled to work “40+4” hours and his gross pay the next pay date was $1,129.90, including payment of $150.06 at the “Sunday 1.5 rate.” If Lyons worked 4 hours of overtime at time and a half on Sunday, his hourly rate calculates to $25.06. If you remove Lyon’s over- time pay and assume the remainder reflected his pay for 40 hours of work during the week, his hourly rate calculates to $24.49. [Jt. 8.] was written up several times and demoted but could not find all those disciplinary records.29 [Tr. 802.] On January 30, 2016, Respondent Albany Avenue laid off Fiore and Jenzen without notifying and offering to bargain with the Union. Randy Abed told Jenzen the store could no longer afford to pay him. At trial, Fiore testified that Randy told him his services were no longer needed without providing a reason. In an affidavit Fiore provided to the Region, Fiore indicated that Randy said, “the meat department was not working out the way that they wanted it to and that he was going to have to let me go.” [Tr. 171, 967, 1014, 1369, 1167.] Schedules and payroll records indicate that Respondent Al- bany Avenue added another meat department employee named Anthony Remo in February 2016.30 Like Lyons and unlike Fiore, Remo was scheduled to work more than 40 hours per week. [Jt. 7–8.] Albany Avenue payroll records indicate that gross pay for the meat department actually went up after Fiore was laid off. On the pay dates of January 21, 2016 and January 28, 2016, gross pay for the meat department employees was $4,324.86 and $4,360.16, respectively. On the pay dates of February 11, 2016 and February 18, 2016, gross pay for meat department employ- ees was $4,488.98 and $5,153.08, respectively. [Jt. 8.] The Abeds called the police every day the Union handbilled at one of their stores. At some point, the Abeds prepared their own handbills and handed them out to customers. [Tr. 604, 608– 610, 1248] [GC 33–35, 56]. Respondent CS2 CS2 (owned by Respondent Key Food) purchased and as- sumed the operation of the Waldbaums supermarket on Francis Lewis Boulevard in Bayside, New York on November 2. Full-time butcher Mariano Rosado was among the Waldbaums employees that CS2 hired when the store transi- tioned to Key Food. On about January 3, 2016, store manager Larry Johnson gave Rosado a severance agreement and told him he had seven days to sign in or he would lose his severance. [Tr. 1325–1326.] Rosado consulted Fontanez, who advised Rosado not to sign the severance agreement. Rosado signed the sever- ance agreement anyway and received an $8000 severance pay- ment. [Tr. 1333.] CS2 never notified the Union directly that em- ployees would be presented with severance agreements and did not provide the Union with a copy of the severance agreement. [Tr. 170–171, 966–967, 1013–1014, 1366–1369, 1456–1458.] By email to Catalano on January 26, 2016, O’Leary objected to Key Food stores dealing directly with employees by issuing sev- erance agreements to Rosado and one other employee. Catalano responded the same day, indicating that he would “determine the facts,…” [GC 23.] The record does not indicate that any of the named employees 29 While questioning Sam Abed, the General Counsel indicated that two disciplinary records regarding Fiore were produced by the Respond- ents in response to a subpoena. However, no disciplinary records regard- ing Fiore were entered into evidence. 30 Weekly schedules refer to “Tony R” and payroll records show the addition of “Anthony Remo.” 48 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD at issue in this case, other than Rosado, received severance from the Respondents. [Tr. 427, 470, 580, 653, 715, 748, 1159, 1496, 1572.] End of Negotiations On November 19, during a bargaining session, the parties largely reaffirmed their positions. Catalano indicated he could accept a severance provision for part-timers but stated (as he had before) that the stores intended to keep the part-time employees. Catalano also indicated that he could accept a provision regard- ing full-pay for the first hour of work each week. The Union reiterated its position on severance that the new Key Food em- ployers would make up the difference of any shortfall if A&P did not pay severance, noting that employees hired by A&P after certain dates were not entitled to severance. Thus, A&P would pay $400 per year and the Respondents would pay $400 per year for employees hired before the severance cutoff date, while the Respondents would pay the full $800 per year (with no A&P severance) for employees hired after the severance cutoff date. The Union also indicated that all laid off employees should be reinstated. [GC 51.] O’Leary testified that, after the November 19 bargaining ses- sion, Catalano called her and said negotiations were suspended because the picket lines went up. [Tr. 158–161.] On November 22, by text, Solicito asked Catalano to schedule another bargaining session the next day. Catalano responded, “No I have a hearing but pull the pickets.” Solicito asked whether Catalano was refusing to meet because of the picket lines, and Catalano responded “No we can meet after Thanksgiv- ing—are you thinking that my guys will give in because of your threats? No chance.…” Catalano also asked Solicito to “put in writing your proposals….” [GC 52.] On November 24, the Union emailed the Respondents a re- vised “Transition Agreement Proposal,” which modified the “Offer of Employment” provision to read as follows [GC 20]: a. The employer agrees to offer a buy out to any full time employee who was employed by A&P prior to being hired by the employer, who is terminated for any reason during the probationary period and/or for just cause any- time thereafter. In such instance the employer shall pay to the employee S800 per week for each year of service with A&P if that employee did not receive severance from A&P. For employees who received A&P severance, the employer shall pay those employees S400.00 for each year of service with A&P. This includes employees the employer let go or submitted to be let go by A&P prior to the acquisition. b. Layoffs shall be by seniority (the last employee hired shall be the first employee laid off) within classification. In case a buy-out results from a layoff, the affected em- ployee shall have the right of recall) for a period of one year, and shall be entitled toreceive the highest rate of pay he or she received prior to the layoff regardless of any payments received from a buy-out as described paragraph 31 In the October 22 MOA, the Respondents indicated that part-time employees who average 30 hours per week would be offered healthcare coverage. “a” above. For purposes of layoff, A&P employees sub- ject to this agreement will keep their original A&P Com- pany hire date within the acquired group or store. The Union’s November 24 proposal also modified the proba- tionary period proposal to provide that employees terminated during probation would receive the buyout described in para- graph (a) of the Offer of Employment, eliminated a provision for buyouts to be paid to part-time employees, added a provision that restricted the use of part-time cutters, added a provision requir- ing newly hired meat employees to be paid at least $10 per hour, altered the healthcare provision, reduced contributions to the re- tirement annuity fund for each full-time employee from $200 to $140, added provisions for contributions to a Legal Fund and a Safety Education and Cultural Fund, added a provision restrict- ing the use of part-time cutters, reduced the number of depart- ment heads to one department head for each department, reduced the duration of the contract to 36 months, and incorporated by reference “additional terms” from the Key Food industry agree- ment. On November 25, Konzelman responded by email to the Un- ion’s November 24 proposal provision by provision. With re- gard to the “Offer of Employment” provision, Konzelman stated that the “language is ambiguous,” but otherwise agreed to the concept of $800 severance for each year of service with Key Food paying $800 for employees who did not receive severance from A&P and $400 for employees who did receive severance from A&P. The union buyout language referred to any former A&P employee “who is terminated for any reason during the probationary period and/or for just cause anytime thereafter,” whereas Konzelmen countered that payments would “only be provided to those employees who were not hired by our Mem- bers.” Nevertheless, Konzelman accepted the Union’s proba- tionary period proposal, which applied the buyout provision to employees terminated during the probationary period. Konzel- man countered that part-time cutters needed to work at least 32 hours per week on average to receive healthcare coverage,31 a $10-per-month contribution to the Safety Educational and Cul- tural Fund, a $5 contribution to the Legal Fund, arbitration with AAA unless an arbitrator is otherwise agreed upon, a minimum of only one department head for back-wall stores (even if Local 342 represents multiple departments), expanding the allowable use of part-time cutters, a contract duration of 42-months, a no- strike clause that prohibits “hand billing, informational picket- ing, or depictions during the length of the CBA,” and a union security clause that did not require the termination of an em- ployee upon termination of union membership. In addition, Konzelman indicated that references “to the A&P or Key Food industry agreements should be deleted, and certain of those [ad- ditional terms] listed need to be discussed.” Konzelman agreed to the Union’s proposals with regard to hours, wages, paid time off, Annuity Fund, breaks, overtime, union visitation, four hours minimum overtime, funds, funeral leave, jury duty and shop stewards. [GC 21.] SEVEN SEAS UNION SQUARE, LLC 49 On November 27, Abondolo responded by email to Konzel- man as follows [GC 21]: There is very little we are willing to change, you were able to achieve most of your ask there are certain things that we will need regardless The most important of all is the list of people we have for sev- erance we need to get that agreed on before we talk about changes if an at all A list of people with the amounts will be sent today and you could let us know that its agreeable or if there is any problems Our understanding is that all that were in the store working that your people fired will receive severance of 800 per year of ser- vice or 400 per year of service with the AP depending on their status where they fall in our formula with no cap, and the em- ployee will be required to sign an acceptable release that’s what we understand is the proposal In letters dated December 1, 2015, O’Leary wrote directly to the member-owners and demanded bargaining independent of Respondent Key Food. [GC 22.] Catalano responded that O’Leary had no right to bypass him and contact individual own- ers directly. [Tr. 175] [GC 23]. Nevertheless, in December, Solicito and LoIacono met with Paul and Pat Conte. According to LoIacono, Paul Conte com- plained that Sunday overtime was very expensive. The Union indicated it would not bargain away the benefits of current employees but would discuss new hires. Paul said there is nothing to work out because Local 342 employees “don’t co- operate like other stores” in that they will not work off the books. Paul then abruptly said he had a doctor’s appointment and ended the meeting. [Tr. 1454–1456.] After the Respondents took over the operation of their respec- tive stores, certain stores attempted to forward dues and welfare fund contributions pursuant to the provisions in the MOA. The Union and the welfare fund rejected this money on the grounds that it did not have contracts with the Respondents. As a result of the rejected contributions, employees at the Respondents stores lost medical coverage through the Union’s welfare fund. [Tr. 1179–1181, 1908, 2108–2111, 2332–2333, 2482, 2779– 2781.] According to O’Leary, in about February 2016, she called Catalano and asked for bargaining dates. O’Leary testified that Catalano refused to agree to dates because the parties “had a deal.” [Tr. 180.] Catalano denies that the Union contacted him for bargaining dates from Thanksgiving to June 2016. [Tr. 2055.] On June 27, 2016, O’Leary sent Konzelman and Catalano an email indicating the Union was available for bargaining on cer- tain dates in July 2016. O’Leary followed up with emails on June 30, July 1, 5 and 6, 2016, but received no response. On July 7, 2016, O’Leary sent an email to Catalano confirming, as fol- lows, a phone conversation earlier that morning [GC 24]: I send this email to memorialize our phone conversation this morning, wherein you advised me that your legal position, on behalf of Key Food, is that there is a contract with Local 342 already and thus there is no need to bargain. You stated that Local 342 had a Complaint issued and so you were going to litigate it. Local 342 will respond accordingly to the employer’s refusal to bargain. Please be advised that Local 342’s demand to bargain is continuing, as our position is there is no contract, there is no impasse, and that Key Food has the obligation to bargain with Local 342 in good faith to reach a mutual agreement. Local 342 suggests that the employer re- think its position, and meet to bargain with FMCS facilitat- ing/assisting with the bargaining. Thank you for taking my call this morning, and should Key Food wish to bargain in the fu- ture please contact me for dates. ANALYSIS AND CONCLUSIONS I. SECTION 8(A)(5) AND (1) ALLEGATIONS Unilateral Layoffs The General Counsel contends that the Respondents unilater- ally laid off 13 employees without notifying and offering to bar- gain with the Union over those layoff decisions in violation of Section 8(a)(5) and (1) of the Act. It is well settled that the decision to lay off employees is a mandatory subject of bargaining. N.K. Parker Transport, 332 NLRB 547, 551 (2000); Winchell Co., 315 NLRB 526, 530 (1994); Holmes & Narver, 309 NLRB 146, (1992); NLRB v. Ad- vertisers Mfg. Co., 823 F2d 1086, 1090 (7th Cir. 1987) (“Laying off workers works is a dramatic change in their working condi- tions” and thus “[l]ayoffs are not a management prerogative [but] a mandatory subject of collective bargaining”). Where a layoff occurs solely for economic reasons, the union has the right to bargain over the layoff decision itself and not just the effects of that decision. Lapeer Foundry & Machine, 289 NLRB 952, 953–954 (1988). The Respondents raise a number of defenses to the allegation that they failed to notify and bargain with the Union regarding layoffs. First, the Respondents contend that the parties agreed to a contract which entitled them to unilaterally lay off employees at their discretion as long as the severed employees were paid a monetary buyout. That is, the Union allegedly entered into a collective-bargaining agreement that, through the buyout provi- sion, waived its right to bargain over future layoffs. Second, re- gardless of the existence of a contract, the Respondents contend that they were entitled to unilaterally set initial terms and condi- tions of employment, including the buyout provision. Third, the Respondents contend that they did, in fact, engage in bargaining over the layoffs. For reasons discussed below, I reject the Re- spondents defenses and find that the Respondents violated Sec- tion 8(a)(5) and (1) of the Act by unilaterally laying off employ- ees. The Existence of a Collective-Bargaining Agreement The party relying on a contract has the burden of proving its existence. H. Koch & Sons, 220 NLRB 1103, 1109 (1975). This burden requires proof by objective evidence that negotiations manifested a “meeting of the minds” as to all substantive issues and materials terms. Crittenton Hospital, 343 NLRB 717, 718 (2004). As discussed below, I find that the Respondents failed to es- tablish by a preponderance of the evidence the existence of a contract containing a union waiver of its right to bargain over layoffs. However, I initially note that the Respondents’ burden of establishing a waiver is one of “clear and unmistakable” 50 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD evidence rather than a “preponderance of the evidence.” Na- tional labor policy favors bargaining and “disfavors waivers of statutory rights by unions.” Chesapeake & Potomac Telephone Co. v. NLRB, 687 F.2d 633, 636 (2nd Cir. 1982) cited with ap- proval in Metropolitan Edison Co. v. NLRB, 460 U.S. 693 (1983). See also Suffolk Child Development Center, Inc., 277 NLRB 1345, 1349 (1985); Harte & Co., 278 NLRB 947, 950 (1986). Accordingly, “before a waiver of a duty to bargain can be found, there must be clear and unmistakable evidence of the parties’ intent to waive this right” and “such evidence is gleaned from an examination of all the surrounding circumstances in- cluding but not limited to bargaining history, the actual contract language, and the completeness of the collective-bargaining agreement.” Columbus Electric Co., 270 NLRB 686 (1984). Thus, the party relying on a bargaining waiver must not only prove by clear and unmistakable evidence that the contract lan- guage confirms such an intent but must also establish by clear and unmistakable evidence that the contract containing such lan- guage was actually agreed upon and in effect. Often, the exist- ence of a contract is not in question, but here it is. The Respondents contend that Abondolo agreed to their con- tract proposal during a side-discussion with Catalano on October 21 and that the October 22 MOA reflected this agreement. The MOA consisted of the September 22 proposal and additional pro- visions that appear to be derived from, but were not identical to, certain clauses in the Key Food industry agreement. The MOA also indicated that certain additional terms would be included in the final collective-bargaining agreement, presumably after ad- ditional negotiations. Therefore, the Respondent effectively claims that there was a verbal modification of its September 22 proposal between the date of that proposal and October 21 such as to include additional provisions and reserve other provisions for bargaining at a later date. However, this assertion is at odds with Catalano’s testimony that he understood Abondolo, during their side-discussion on October 21, to have accepted the Re- spondents’ September 22 proposal with the exception of a single modification to the buyout provision. Catalano’s notes of the October 19 bargaining session do in- dicate that the parties verbally reviewed the Respondents’ pro- posal of September 22 and the Key Food Industry agreement. Catalano entertained the idea of using certain non-economic pro- visions of the Key Food industry agreement to supplement the September 22 proposal, but rejected the Union’s proposal to use the entire industry agreement unless the parties specifically agreed to something different. O’Leary entertained the idea of using portions of the Key Food industry agreement to supple- ment the Respondents’ September 22 proposal, but did not agree to the entire September 22 proposal or to forgo certain provisions of the Key Food industry agreement that addressed subjects not contained in the September 22 proposal. Likewise, the evidence does not establish that the parties agreed to include in a contract certain provisions from the Key Food industry agreement as modified by the MOA (e.g., Jury duty leave reduced from 30 32 It is noteworthy that the Respondent ended the October 19 bargain- ing session by offering to hire all A&P employees other than seafood employees in stores where the seafood department was being eliminated, and Catalano began the October 21 bargaining session by confirming that days to two weeks or the elimination of two days of leave for stewards to attend trainings/meetings). I also credit O’Leary’s testimony that the Union, at all times, refused to accept a partial agreement with additional provisions to be negotiated at a later date. Thus, the Respondents did not establish that the October 22 MOA accurately reflected an agreement between the parties. Indeed, the Respondents failed to establish that Abondolo ac- cepted any contract proposal during his side-discussion with Cat- alano. Catalano did not recall Abondolo’s exact words, and the exact words are important. Over the course of his testimony, Catalano described the side-discussion in different ways, attrib- uting to Abondolo such statements as “we agree, but I want to talk to you about the $800 and the $400”; “we have an agree- ment”; “we’ll agree to what you want”; “we’re good to go”; “I want to raise one thing with you”; “we’re done”; “we have a deal”; “we’re good”; “we agree to what you’re asking for”; “we agree to what you are proposing”; and “I agree to your proposal.” Catalano’s testimony in this regard does not make clear whether Abondolo was referring to a contract proposal or to the Respond- ents’ concept of a buyout provision with a modification to the amount of money an employee would receive if he/she were bought out. It is undisputed that Catalano and Abondolo only discussed the buyout provision and no other provisions during their brief side-discussion. Neither Catalano nor Abondolo took notes and they did not exchange or refer to any contract pro- posals. When Catalano and Abondolo returned to the larger group, Catalano did not indicate that the parties had reached an overall contract. He merely referenced Abondolo’s modified proposal on the buyout provision and indicated that he would at- tempt to draft an MOA in lieu of an additional bargaining ses- sion. Even if I were only to consider the testimony of Catalano, I would not conclude that Abondolo clearly communicated any- thing more than the Union’s willingness to accept the Respond- ents’ concept of discretionary layoffs (as opposed to an ac- ceptance of the Respondents’ entire contract proposal) in ex- change for an increase in the amount of payment (i.e., $800 per year of service without a cap in the years). Moreover, Abondolo adamantly and credibly denied that he agreed to the Respond- ents’ contract proposal, including a provision which would allow the Respondents not to hire some A&P employees and the use of AAA for arbitration.32 The interaction between the parties when Catalano and Abondolo returned from their side-discussion suggests they be- lieved they had reached agreement on a buyout provision and were hopeful that this breakthrough on what had been a promi- nent dispute between the parties would allow them to conclude negotiations. However, the parties did not indicate a mutual un- derstanding that all the terms had been agreed upon or that re- duction of the contract to writing was simply a ministerial for- mality. After speaking to Abondolo separately, Catalano came back to the larger group and indicated that Abondolo “suggested off the record a different model” for computing the buyout. As reflected in Union notes, Catalano said, “tomorrow rather than proposal. This was a significant concession long sought by the Union and it would have been a dramatic reversal for Abondolo to propose a buyout that allowed Respondents not to hire A&P employees immediately after the Respondents finally conceded the point. SEVEN SEAS UNION SQUARE, LLC 51 meet I will prepare something send it to you with these kinds of concepts,” and Abondolo said “we will work through the lan- guage.” As noted above, Catalano did not say he and Abondolo discussed or agreed upon a full contract of all outstanding provi- sions. Sam Abed testified that Abondolo told him “everything was going to be worked out” and Diaz testified that Abondolo told him “I think we have a deal.” These are not statements in- dicating certainty about the current existence of an agreement. Although I do credit the testimony of Respondent’s witnesses that Abondolo shook their hands, I also credit the testimony of O’Leary and Booras that there was not a prominent or ceremo- nial shaking of hands among all the participants such as to sug- gest a mutual understanding that negotiations had been con- cluded. The parties’ subsequent exchange of written proposals con- clusively demonstrated that they were not in agreement. The Union’s November 2 response to the Respondents October 22 MOA demanded, among other things, that all A&P employees be hired except seafood department employees if the store was closing the seafood department (as the Respondents’ offered on October 21), at least two department heads, and a complete agreement that used provisions of the Key Food industry agree- ment unless otherwise addressed in a memorandum of under- standing executed by the parties. The Union’s positions in these respects were consistent with the positions it took throughout ne- gotiations. It is important to consider the side-discussion in the context of negotiations as a whole and the ambiguity of evidence in support of the existence of a contract versus the clarity of evidence to the contrary. While a collective bargaining agreement can be con- cluded verbally, the technical rules of contract—offer and ac- ceptance—need not be applied in a formalistic way in the context of collective-bargaining. The parties held 14 bargaining sessions over about four months, exchanging written proposals and keep- ing notes in the process. As of October 21, the status of negoti- ations and the positions of the parties were, at best, ambiguous. On October 19, the parties reviewed the September 22 proposal and Key Food industry agreement but did not agree to what ex- tent those documents should be used and incorporated into a con- tract. Abondolo and Catalano did not have or make reference to the September 22 proposal or Key Food industry agreement dur- ing their side-discussion. Ultimately, thereafter, the written ex- change between the parties made clear that they were not in agreement. In this context, it hardly seems proper that a lengthy well-documented bargaining process resulting in the alleged ex- istence of a multi-year agreement that purports to cover hundreds of employees and waive the rights of those employees to bargain over a subject as important as layoffs should be determined by seizing upon a brief ambiguous “off the record” discussion (so described by Catalano) as opposed to the clear and unambiguous writings of the parties. The Respondents contend that, even if the parties did not reach agreement on October 21, they reached agreement on November 24. I do not agree. The Union emailed the Respondent a 33 The Respondents contest that Respondent Key Food and the other Respondents are joint employers. However, as discussed below, I reject the Respondents’ position in this regard. proposal on November 24 and it contains language that, accord- ing to the Respondents, adopted its buyout provision. However, by November 24, there were several open items other than buy- outs. On November 25, Konzelman sent the Union an email that responded to each provision of the Union’s November 24 offer and listed several items that were still in dispute. The disputed items included differences in the health and welfare plan, contri- butions to funds, use of AAA for arbitration, the number of de- partment heads, the number and hours of part-time cutters, and the inclusion of provisions from the Key Food industry agree- ment. There being a number of open disputed items, a contract was not yet complete and the Respondents were not entitled to implement individual provisions, including a buyout provision that would have allowed for unilateral discretionary layoffs. Unilateral Implementation of the MOA in the Absence of a Collective-Bargaining Agreement Regardless of the existence of a contract, the Respondents contend that they were entitled to implement the MOA, includ- ing the buyout provision, as the initial terms of employment for newly hired A&P employees. In this regard, the Respondents claim they were not “perfectly clear” successors under NLRB v. Burns Intern. Security Services, 406 U.S. 272 (1972). The Re- spondents also contend that the APA, as approved by the order of Judge Drain in bankruptcy court, entitled them to implement their “last best offer.” As discussed below, I do not agree. Perfectly Clear Succession A successor employer has a duty to recognize and bargain with an incumbent union where there exists a continuity of the enterprise and a continuity of the work force. With regard to the second element, continuity of the work force, the Union will be presumed to have majority support once the successor hires a “substantial and representative complement” or “full comple- ment” of unit employees and a majority of those unit employees were employees of the predecessor. NLRB v. Burns International Security Services, Inc., 406 U.S. 272 (1972); Fall River Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27 (1987). Here, the Re- spondents admit they did not significantly change the nature of the enterprise and that a majority of the employees they hired were former unit employees of A&P. Accordingly, the Respond- ents were successors of A&P.33 Ordinarily, a successor may set the initial terms of employ- ment of unit employees and bargain from that baseline once suc- cessorship status is established. NLRB v. Burns International Security Services, Inc., 406 U.S. 272 (1972). However, this is not the case when succession is “perfectly clear.” In Burns, 406 U.S. at 294–295, the Supreme Court stated: Although a successor employer is ordinarily free to set initial terms on which it will hire the employees of a predecessor, there will be instances in which it is perfectly clear that the new employer plans to retain all of the employees in the unit and in which it will be appropriate to have him initially consult with the employees’ bargaining representative before he fixes terms. In other situations, however, it may not be clear until the 52 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD successor employer has hired his full complement of employ- ees that he has a duty to bargain with a union, since it will not be evident until then that the bargaining representative repre- sents a majority of the employees in the unit as required by s 9(a) of the Act, 29 U.S.C § 159(a). Despite the Supreme Court’s reference to a successor’s intent to hire “all of the employees in the unit,” the Board’s interpreta- tion of Burns “does not require that all employees had to be hired.” Rather, enough employees must be hired to make it evi- dent that the Union’s majority support will continue. Fremont Ford, 289 NLRB 1290, 1296 (1988), citing Spitzer Akron, Inc., 219 NLRB 20, 22 (1975), enfd. 540 F.2d 841 (6th Cir. 1976) cert. denied 429 U.S. 1040 (1977). Further, the successor’s ob- ligation to bargain commences when the successor makes it “per- fectly clear” that it planned to retain all or substantially all of the predecessor’s employees. C.M.E., Inc., 225 NLRB 514, 514–515 (1976). In “perfectly clear” successor cases, communications with the employees’ union are regarded “as communications with the employees through their representative.” Marriott Man- agement Services, 318 NLRB 144 (1995). See also Elf Atochem North America, Inc., 339 NLRB 796, 796 (2003); Banknote Corp. of America, 315 NLRB 1041, 1043 (1994). A successor can communicate its clear intent to hire the predecessor’s em- ployees and trigger the obligation to bargain before the successor actually hires employees. See Creative Vision Resources, LLC, 364 NLRB No. 91 (2016); Elf Atochem North America, Inc., 339 NLRB 796, 796 (2003); DuPont Dow, 332 NLRB 1071, 1075 (2000); Helnick Corp, 301 NLRB 128, fn. 1 (1991); Spitzer Ak- ron, 219 NLRB 20, 23 (1975). Succession is not “perfectly clear” where a purchaser an- nounces a clear intent to set its own initial terms and, therefore, the duty to bargain with an incumbent union will turn on whether a majority of the predecessor’s employees accept employment under those terms. In such circumstances, the potential succes- sor may unilaterally establish the initial terms of employment in accordance with its stated intent. Spruce Up Corp., 209 NLRB 194, 195 (1974). Here, there is little question that the Respondent purchasers of A&P stores were “perfectly clear” successors before the APA was amended on September 30. The original APA, signed July 19, required purchasers to offer employment to all employees under the terms of the applicable A&P collective-bargaining agreements unless modified agreements could be negotiated with the incumbent unions. Thus, “it was abundantly clear from the outset that the Respondent planned to retain the unit employees.” Nexeo Solutions, LLC, 364 NLRB No. 44, slip. op. at 7 (2016) (in purchase agreement, perfectly clear successor committed to offering employment to all of the predecessor’s employees). Further, the only way the Respondents could avoid offering em- ployment to employees upon the existing terms (i.e., the A&P contracts) was to reach a modified agreement with the union rep- resentative of those employees. Thus, consistent with the situa- tion anticipated in Burns, it was “perfectly clear that the Re- spondent plan[ned] to retain all of the employees in the unit” and 34 The record does not indicate that the Union learned about the Sep- tember 30 amendment to the APA before the APA was approved on Oc- tober 21. “initially consult with the employees’ bargaining representative before’ modifying terms.” Burns, 406 U.S. at 294–295. The Respondents nevertheless contend that their status as “perfectly clear” successors changed when Section 6.4 of the APA was amended since the amended APA only required a pur- chaser to offer employment to “substantially all” employees on terms that, absent an agreement to the contrary, were reflected in the purchasers’ “last best offer.” “However, where the offer of different terms was subsequent to the expression of intent to re- tain the predecessor’s employees, the Board has regarded the ex- pression of intent as controlling and has found that the new em- ployer was obligated to bargain with the union before fixing ini- tial terms.” Spitzer Akron, Inc., 219 NLRB 20 (1975), enfd. 540 F.2d 841 (C.A. 6, 1976). See also Nexeo Solutions, LLC, 364 NLRB No. 44, slip. op. at 7 (2016); Canteen Co., 317 NLRB 1052, 1053–1054 (1995); Fremont Ford, 289 NLRB 1290, 1296–1297 (1988); Starco Farmers Mkt., 237 NLRB 373 (1978); Ivo H. Denham and Geraldine A. Denham, 218 NLRB 30 (1975); Bachrodt Chevrolet Co., 205 NLRB 784 (1973), enfd. 515 F.2d 512 (7th Cir., 1975), cert denied 423 U.S. 927 (1975). In particular, the Board has held that an employer cannot set in- itial terms where “employees were lulled into believing that em- ployment conditions would be comparable to those in force un- der the predecessor and were thus deprived of the opportunity to reshape their personal affairs or seek employment elsewhere.” Nexeo Solutions, LLC, 364 NLRB No. 44, slip. op. at 9 (2016). Between July 27 and October 21 (when Judge Drain approved the APA as amended on September 30), the employees worked for the predecessor with the understanding that they would be retained by the Respondents under their old terms of employ- ment unless their bargaining representative agreed to something different.34 As admitted by the Respondents in its brief, the in- cumbent unions effectively had veto power over any change in terms and conditions of employment before the amended APA was approved. The employees had no way of knowing that, at the eleventh hour in negotiations, the rules would suddenly change and they would be subject to the unilateral imposition of a proposal that provided for their unilateral layoff at the discre- tion of the Respondents without the Union’s consent. Therefore, employees could not make arrangements in advance to “reshape their personal affairs and seek employment elsewhere.” Id. Such a result is not consistent with the dictates of Spruce Up. Further, even after the APA was amended, it was still perfectly clear that the Respondents were going to hire a majority of em- ployees and retain the obligation to bargain with the Union. Sec- tion 6.4, as amended, still required the purchaser to offer em- ployment to “substantially all” employees. See C.M.E., Inc., 225 NLRB 514, 514–515 (1976) (“substantially all” employees in- terpreted by the Board as a majority of the full complement). The September 30 amendment also failed to modify Section 6.3, which continued to require a purchaser to assume the old A&P agreement or negotiate a modified agreement with the Union. This necessarily presumes and it was “perfectly clear” that the Union would have majority support and represent the SEVEN SEAS UNION SQUARE, LLC 53 successors’ employees. Nexeo Solutions, LLC, 364 NLRB No. 44, slip. op. at 9 (July 18, 2016) (“Imposing an initial bargaining obligation in these circumstances, where the Union’s majority status in the new work force is essentially guaranteed, imple- ments the express mandates of Section 8(a)(5) and 9(a) of the Act and is entirely consistent with the rationale of Burns and Spruce up”). The Respondents mistake the rational of Burns and Spruce Up in contending that they were entitled to unilaterally implement initial terms because they announced at the start of bargaining a desire to modify the A&P contracts and engaged in negotiations to do so. Those cases establish that, when succession is not in doubt, the law requires successors to engage in such negotiations and refrain from setting initial terms without reaching a good- faith impasse.35 Finally, I reject the Respondent’s reliance on Nexeo for the proposition that the APA did not trigger succession because em- ployees were not notified of it. In Nexeo, employees of a prede- cessor were notified that a purchaser entered into a purchase agreement to retain all employees at the same wage levels and substantially comparable levels of benefits. The Board deter- mined that the purchaser was a “perfectly clear” successor as of the date employees received notice of this agreement (i.e., two days of after it was signed). Here, the APA was filed in bank- ruptcy court on July 20 with a motion for approval of the sale of stores by A&P to Respondent Key Food. The Union participated in the bankruptcy process and was placed on notice of the con- tents of the APA. Indeed, Judge Drain’s order specifically speaks to the adequacy of notice of the sale that was provided to interested parties, including affected unions. And as noted above, in “perfectly clear” successor cases, communications with the employees’ union are regarded “as communications with the employees through their representative.” Marriott Man- agement Services, 318 NLRB 144 (1995). Accordingly, I con- clude that employees through the Union received notice of the APA on July 20 and that the Respondents were “perfectly clear” successors as of that date. Implementation of the Buyout Provision if Succession were not Perfectly Clear Even if I were not to find the Respondents to be “perfectly clear” successors, I would rule that the Respondents unlawfully implemented its buyout proposal as a basis for unilaterally laying off unit employees. In this regard, I find the rules regarding im- plementation upon impasse to be instructive. As a general rule, an employer may implement its last best offer in negotiations as a device to exert pressure on a union to break a temporary good- faith impasse in negotiations. McLatchy Newspapers Inc., 321 NLRB 1386, 1388 (1996) (McLatchy II) However, the parties 35 I do not adopt the General Counsel’s contention that the Respond- ents were prohibited from setting initial terms because they did not an- nounce, on some earlier date, the actual terms which were ultimately im- plemented. Case law does not establish that a successor is required to announce specific terms contemporaneously with an expression of intent to hire a majority of the predecessor’s employees as opposed to a more general indication of its intent to set new terms at the time of hiring. Banknote Corp. of America, 315 NLRB 1041, 1043 (1994) (employer not perfectly clear successor where it notified unions of intent to establish “remain obligated to continue their bargaining relationship and attempt to negotiate an agreement” without using implementa- tion-upon-impasse as “a device to allow any party to continue to act unilaterally or to engaging in the disparagement of the bar- gaining process.” Id. at 1390. In McLatchy II, a case in which the employer implemented merit pay increases upon impasse, the Board stated as follows: Specifically, were we to allow the Respondent to implement without agreement these proposals, such that the Employer could thereafter unilaterally exert unlimited managerial discre- tion over future pay increases, i.e., without explicit standards or criteria, the fundamental concern is whether such application of economic force could reasonably be viewed “as a device to [destroy], rather than [further], the bargaining process.” As ex- plained below, we find that if the Respondent was granted carte blanche authority over wage increases (without limitation as to time, standards, criteria, or the Guild’s agreement), it would be so inherently destructive of the fundamental principles of col- lective bargaining that it could not be sanctioned as part of a doctrine created to break impasse and restore active collective bargaining. Were we to allow the Respondent here to implement its merit wage increase proposal and thereafter expect the parties to re- sume negotiations for a new collective-bargaining agreement, it is apparent that during the subsequent negotiations the Guild would be unable to bargain knowledgeably and thus have any impact on the present determination of unit employee wage rates. The Guild also would be unable to explain to its repre- sented employees how any intervening changes in wages were formulated, given the Respondent’s retention of discretion over all aspects of these increases. Further, the Respondent’s imple- mentation of this proposal would not create any fixed, objective status quo as to the level of wage rates, because the Respond- ent’s proposal for a standardless practice of granting raises would allow recurring, unpredictable alterations of wages rates and would allow the Respondent to initially set and repeatedly change the standards, criteria, and timing of these increases. The frequency, extent, and basis for these wage changes would be governed only by the Respondent’s exercise of its discre- tion. The Respondent’s ongoing ability to exercise its eco- nomic force in setting wage increases and the Guild’s ongoing exclusion from negotiating them would not only directly im- pact on a key term and condition of employment and a primary basis for negotiations, but it would simultaneously disparage the Guild by showing, despite its resistance to this proposal, its incapacity to act as the employees’ representative in setting terms and conditions of employment. initial terms and, “[s]ubsequently, specific anticipated changes were communicated to the [u]nions and to three of the prospective employees at their interviews). See also Ridgewell’s Inc., 334 NLRB 37 (2001). The Respondents properly advised the Union of terms they were willing to offer as those terms developed throughout negotiations. However, the Respondents were not entitled to implement those terms unilaterally, in advance of an agreement or impasse, because succession was perfectly clear. 54 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Nothing in our decision precludes an employer from attempt- ing to negotiate to agreement on retaining discretion over wage increases. And, absent success in achieving such an agreement, nothing in our decision precludes an employer from making merit wage determinations if definable objective procedures and criteria have been negotiated to agreement or to impasse. An employer’s decision whether to reduce its workforce and who to layoff are key terms and conditions of employment. For the laid off employees, severance of the employment relationship terminates all other terms and conditions of employment. Fur- ther, although McLatchy II established an exception to the im- plementation-upon-impasse rule, the rational is applicable to the instant successor situation. As discussed above, the Burns and Spruce Up line of cases ordinarily allow a potential successor to set initial terms in advance of bargaining in order to determine how many of the predecessor’s employees will accept those terms and whether the incumbent union will retain majority sup- port once a full complement of employees are hired. However, the bargaining process would be fundamentally undermined if initial terms set unilaterally by the potential successor during a brief period when successorship was in doubt had the effect of excluding the incumbent union from bargaining over key discre- tionary mandatory decisions after successorship was confirmed and a bargaining obligation attached. This is the result the Board sought to avoid in McLatchy II. The unilateral implementation of a discretionary buyout pro- vision would not create a fixed, objective status quo as a predict- able baseline for bargaining over future decisions. The Union would be unable to explain to employees when a reduction in force would occur, how many employees would be laid off, and who would be selected for layoff. The MOA does not, for ex- ample, indicate that the Respondents’ right to lay off a specific number of employees would be triggered in a department once payroll exceeded a certain percentage of the department’s reve- nues or that the selection of employees for layoff would be based on A&P seniority or some other objective criteria. Rather, the MOA renders to the Respondents at their sole discretion the right to unilaterally lay off any employee under any economic circum- stances in unlimited number for the year following the hire of A&P employees. I cannot recommend such a result to the Board, given the reasoning of McLatchy II, even though that case arose in the context of impasse and this case arises in the context of successorship. The Bankruptcy Order of Judge Drain The bankruptcy order of Judge Drain does not alter, here, the prohibition against unilaterally laying off employees. Federal labor law and the bankruptcy order approving the APA should be interpreted to the extent possible in a manner that is consistent and does not unnecessarily negate the statutory rights of employees under the Act. On October 21, when the amended APA was approved by Judge Drain, the parties were engaged in bargaining. The APA as amended does nothing more than reflect the reality that good-faith bargaining sometimes re- sults in impasse rather than agreement. The amended APA, in Section 6.4, speaks of “good-faith negotiations” and the offer of employment upon a “last best offer.” These are common terms with legal consequence in labor law. “Good-faith negotiations” require an employer to refrain from unilaterally implementing a “last best offer” until the parties reach a good-faith impasse. The phrase “last best offer” or “last, best and final offer” signals im- passe in that the employer is effectively saying, “this is the best we can do, we will not offer anything better at this time, so if you do not accept our last best offer the parties are at impasse.” See e.g., GATX Logistics, Inc., 325 NLRB 413 (1998). Thus, under the approved APA, the Respondents would be entitled to imple- ment their last best offer upon reaching a good-faith impasse in negotiations for a modified agreement, but not before. If the par- ties to the sale or the bankruptcy court wanted to negate the re- quirement that a last best offer only be implemented upon good- faith impasse, they should have used terminology that does not logically incorporate such a requirement. Here, since the Re- spondents have not contended that the parties reached impasse, the Respondents were not entitled to implement their last best offer, including the buyout provision. The procedure and timing of the sale, as described in the APA, does not require a finding that the bankruptcy court contemplated the unilateral implementation of a last best offer prior to impasse. Section 6.4(a) of the APA states that, “at least (10) days prior to the Closing Date, Buyer shall make an offer of employment to substantially all Covered Employees who are represented by an Affected Union….” and the offer of employment will be based on the Buyer’s last best offer if no Affected Labor Agreements or Modified Labor Agreements are in effect. The “Closing Date” is defined in Section 2.4 of the APA as “the third (3rd) Business Day following the date upon which all of the conditions to the obligations of Sellers and Buyers to consummate the transaction contemplated hereby set forth in Article VII… have been satis- fied or waived or on such other date as shall be mutually agreed upon by the Sellers and Buyer prior thereto.” Article 7 of the APA provides as a condition of closing that the buyer and seller perform and comply with their covenants and agreements under the APA, including the covenant in Section 6.3 that the buyer “engage in good faith negotiations, in coordination with Sellers, toward reaching mutually satisfactory modifications to the rele- vant Affected Labor Agreement with each of the Affected Un- ions….” Thus, the APA effectively makes the successful nego- tiation of a modified agreement or good-faith impasse a covenant and condition that must be satisfied prior to the closing date and any offers of employment. The bankruptcy order should also be read in a manner that is consistent with McLatchy II (discussed above). Even if the par- ties did reach impasse, the Respondents would not be entitled to utilize the temporary cessation of negotiations as a vehicle to avoid bargaining over future discretionary changes. Indeed, the bankruptcy order would not logically provide for implementa- tion of the buyout provision even if the order were not read to require impasse as a condition of implementing its last best offer. At most, the APA contemplated a singular event and temporary condition whereby the Respondents would be entitled to open stores on the basis of changed terms. The amended APA does not indicate that such a singular suspension of the rules against unilateral implementation, upon impasse or otherwise, could be used as a device for a purchaser to take discretionary unilateral action on mandatory subjects of bargaining in the future after the SEVEN SEAS UNION SQUARE, LLC 55 stores opened and the Respondents’ bargaining obligations re- sumed. Bargaining over Layoffs Irrespective of the buyout proposal in the MOA, the Respond- ents contend that they satisfied their bargaining obligation. I dis- agree. On October 14, the owners of each Respondent identified how many unit employees they intended to keep and how many they did not want to hire. Some of the Respondents identified the specific employees by position (not name) they wanted to retain from A&P. However, the next day, when O’Leary attempted to confirm the positions of employees the stores intended to fill with former A&P employees, Konzelman refused to provide that information. Further, the Respondents did, in fact, hire all of the employees who were subsequently laid off despite any earlier indications to the contrary on October 14. Thus, the Union had no reason to believe the jobs of those employees were in imme- diate jeopardy. Once the Respondents hired employees, the Re- spondents were required to notify and offer to bargain with the Union over any subsequent layoffs. Conclusion with Regard to Unilateral Layoffs Based on the foregoing, I find that the following Respondents violated Section 8(a)(5) and (1) of the Act by laying off the em- ployees listed below:36 Unilateral Changes other than Layoffs In addition to unilateral layoffs, the complaint alleges that em- ployees had their pay unilaterally reduced when (1) Respondent Greaves Lane changed the schedules of all unit employees from six to five days, (2) Respondent Albany Avenue reduced the work hours of Steven Jenzen and Stephen Fiore, and (3) Re- spondent Albany Avenue demoted Stephen Fiore and reduced his hourly wage rate. Respondents Greaves Lane and Albany Avenue do not deny that these changes were implemented without notifying the Un- ion and offering the Union an opportunity to bargain over them. Shortly after Thanksgiving, Respondent Greaves Lane reduced employees’ days of work from 6 to 5. In about late-December 36 As discussed in the fact section of this brief (supra fn. 22), I find that Maffia was laid off or discharged and did not abandon his job. (after Christmas), Respondent Albany Avenue offered Jenzen the option of not working Sundays or changing his hours from 40 to 35 hours per week. Jenzen opted not to work Sundays. Nevertheless, about 2 weeks later, Jenzen’s weekly hours were reduced to 35 as well. On about January 16, 2016, Respondent Albany Avenue demoted Fiore from meat manager to butcher, reduced his wage rate from $31.33 to $25 per hour, and reduced his weekly hours from 40 to 35. A reduction in the wages and hours of all or individual unit employees is a mandatory subject of bargaining. Carpenters Lo- cal 1031, 321 NLRB 30 (1996) (overruling cases holding that changes to the terms of employment of only one employee are not mandatory decisions and finding that changing hours is a vi- olation of the Act); Ivy Steel & Wire, Inc., 346 NLRB 404, 418– 419 (2006) (unilateral reduction of employee’s wage from $12.35/hour to $11.15/hour violated Section 8(a)(5) and (1) of the Act); Sheraton Hotel Waterbury, 312 NLRB 304 (1993) (elimination of shift that effected two employees was a manda- tory subject of bargaining); Kentucky Fried Chicken, 341 NLRB 69 (2004) (job assignment change from one unit employee to an- other that reduced overtime work was a mandatory subject of bargaining). Respondents Greaves Lane and Albany Avenue contend only that financial data they obtained before the purchase misrepre- sented the revenue of the A&P stores and made it necessary to reduce payroll in order to improve the store’s long-term financial viability. Thus, citing Ford Motor Co. v. NLRB, 441 U.S. 488, 498 (197), the Respondents contend that changes in the reduction of hours and “the volume of business to be performed strike at the core of entrepreneurial contract and do not require decisional bargaining.” However, Ford Motor Co. dealt with in-plant food prices an employer charged employees and the Board’s decision held that such prices are “not among those ‘managerial deci- sions, which lie at the core of the entrepreneurial control.’” Id. quoting Fibreboard Paper Prods. Corp. v. NLRB, 379 U.S. 203, 223 (1964). Thus, Ford Motor Co. is not factually parallel and in no way suggests that a change in pay is a core managerial de- cision within the entrepreneurial control of an employer. In fact, the Board and courts have long recognized that “wages and hours are the heart and core of the employer-employee relationship….” Southern States Equipment Corp., 124 NLRB 833, 839 (1959) quoting International Woodworkers of America, Local Unions 6-7 & 6-122, AFL–CIO v. NLRB., 263 F.2d 483 (D.C. Cir. 1959). The Respondents did not assert that changes to employee pay were caused by the type of “compelling economic considerations that the Board has long recognized as excusing bargaining en- tirely….” RBE Electronics, 320 NLRB 80, 82 (1995); Bottom Line Enterprises, 302 NLRB 373 (1991); Eugene Iovine, Inc., 353 NLRB. 400 (2008). The Board imposes a “heavy burden” of establishing that “extraordinary events which are an unfore- seen occurrence, having a major economic effect requiring the company to take immediate action.” RBE Electronics, 320 NLRB at 81. Thus, “absent a dire financial emergency, the Board has held that economic events such as a loss of significant accounts or contracts, operation at a competitive disadvantage, Venus Nepay HB November 10 Richard Maffia HB November 11 Khadisha Diaz HB November 12 Joseph Battista Albany Avenue November 28 Kalvin Harris Albany Avenue November 28 Gina Cammarano Greaves Lane November 28 Debra Abruzzese Greaves Lane November 28 Michael Fischetti Greaves Lane November 30 Anthony Venditti Greaves Lane November 30 Ayanna Jordan Seven Seas December 26 Mariano Rosado CS2 January 4, 2016 Stephen Fiore Albany Avenue January 30, 2016 Robert Jenzen Albany Avenue January 30, 2016 56 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD or supply shortages do not justify unilateral action.” Id. Here, the Respondents’ sales were lower than expected when they as- sumed their respective operations. However, the Respondents did not provide evidence at trial regarding their overall financial conditions or to what extent these shortfalls in anticipated sales could be tolerated and for how long. Accordingly, the Respond- ents did not establish that their circumstances were dire or threat- ened the solvency of their businesses without immediate unilat- eral action. Respondent CS2 Direct Dealing with Employees by Offering Mariano Rosado a Severance Agreement The General Counsel contends that Respondent CS2 dealt di- rectly with employee Mariano Rosado by asking him to sign a severance agreement without notifying the Union and offering to bargain over it. It is uncontested that Respondent CS2 did, in fact, request that Rosado sign a severance agreement without ad- vising the Union in advance or giving the Union a copy of the proposed severance agreement. Thereafter, the Union objected to the conduct of Respondent CS2 in this regard. Accordingly, Respondent CS2 violated Section 8(a)(5) and (1) of the Act by bypassing the Union and dealing directly with employees. Hotel Bel-Air, 361 NLRB 898 (2014). Refusal by all the Respondents to Resume Bargaining in July 2016 In late-June 2016, the Union contacted the Respondents to es- tablish bargaining dates. The Respondents did not then and do not now contend that the parties were at impasse. Rather, the Respondents have taken the position that additional bargaining was unnecessary because the parties had reached a collective- bargaining agreement. However, as detailed above, I have found that the parties did not reach an agreement. Accordingly, the Respondents retained an obligation to meet and bargain with the Union to the conclusion of a contract or good-faith impasse. I note also that the October 22 MOA provided that a “union secu- rity clause, recognition clause, no lie detector clause, manage- ment rights clause, no discrimination clause, bulletin board clause, and no employment of minors clause” would be included in the contract and these provisions still needed to be negotiated. Accordingly, even if the MOA did reflect an agreement between the parties, such an agreement contemplated additional negotia- tions. The Respondents refused to engage in such negotiations. As a defense to the refusal to bargain allegation, the Respond- ents contend that the Union abandoned the units in early-Decem- ber. An incumbent union’s disclaimer of its desire to represent the bargaining unit must be “unequivocal” and consistent with “surrounding circumstances.” Hartz Mountain Corp., 260 NLRB 323, 325 (1982) quoting Retail Associates, Inc., 120 NLRB 388, 391 (1958). The Union did not expressly or im- pliedly, and certainly did not unequivocally, abandon and dis- claim interest in representing the units. Indeed, the Union ex- pressly requested bargaining dates, which the Respondent re- jected. At the bargaining table, the Union objected once the Re- spondents began laying off employees. The Union attempted to 37 The complaint alleged that, on September 6, Frank Almonte threat- ened employees with unspecified reprisals because they engaged in Un- ion activity. In its brief, the General Counsel contends that the arrange for the placement of Quiles and Maffia at the Respond- ents’ stores and advised the Respondents that Board charges would be filed to contest alleged unlawful layoffs. The Union also engaged in handbilling at the stores to protest layoffs and other changes in terms and conditions of employment. The Un- ion filed the instant unfair labor practice charges to contest the Respondents conduct, including allegations that the Respondents were refusing to bargain in good-faith. Accordingly, I find that the Union did not abandon the bargaining units and the Respond- ents retained an obligation to bargain with the Union. The Re- spondents failed to do so in violation of Section 8(a)(5) and (1) of the Act. II. SECTION 8(A)(3) AND (1) ALLEGATIONS AND INDEPENDENT 8(A)(1) ALLEGATIONS Respondent HB Nelson Quiles—Interrogation, Layoff and Refusal to Hire The Board has held companies liable for violating the act when they coercively act upon the employee of a different com- pany. A. M. Steigerwald Co., 236 NLRB 1512, 1515 (1978) (“the specific language of the Act clearly manifests a legislative purpose to extend the statutory protection of Section 8(a)(1) be- yond the immediate employer-employee relationship”). On Sep- tember 5, Quiles participated in a union demonstration of the Cross Bay store, which is owned by Frank Almonte. A video recording showed Frank in a position to see Quiles at the union demonstration talking to a union representative. The next day, September 6, Frank came to the store and repeatedly asked Quiles in an accusatory manner whether it was a nice thing for him to do the previous day and who in the Union sent him to the demonstration. The General Counsel contends that Frank Almonte’s ques- tioning of Quiles on September 6 constituted unlawful interroga- tion, and I agree.37 The manner, phrasing and repetition of the questioning—“do you think it was right?”—conveyed the impli- cation that Frank Almonte did not think it was right for Quiles to be participating in the union job action. In fact, Quiles indicated that he felt threatened by the questioning. It is true that Respond- ent HB was not Quiles’ employer at the time and the record is not entirely clear whether Quiles knew the Almontes would be purchasing the Howard Beach store. However, Quiles did indi- cate that it was all over the news through September and October that Waldbaums was being purchased by Key Food, and Frank Almonte introduced himself to Quiles on September 6 as an owner of Key Food. Further, Quiles was laid off after the Al- montes, on the same day, spoke to Britt. Under the circum- stances, a reasonable employee would interpret the questioning by Frank Almonte on September 6 as a precursor to his layoff. Taken in context, the questioning by Frank Almonte was coer- cive and would tend to have a suppressing effect on employees’ union activities. The complaint further alleges that Respondent HB caused A&P to layoff Quiles and then refused to hire him. A company may be “found to have violated 8(a)(3) with respect to statements by Almonte constitute unlawful interrogation instead of an unlawful threat. SEVEN SEAS UNION SQUARE, LLC 57 employees not its own, when it urged or caused employer B to discharge specific individuals who were engaged in union activ- ity.” Airborne Freight Co., 338 NLRB 597, 604 (2002) citing Holly Manor Nursing Home, 235 NLRB 426, 428 fn. 4 (1978), Central Transport, Inc., 244 NLRB 656, 658–659 (1979), and Georgia-Pacific Corp., 221 NLRB 982, 986 (1975). Although the Almontes did not formally assume the Howard Beach oper- ation until October 26, the evidence shows that they caused A&P to lay off Quiles on October 23. Frank Almonte’s interrogation of Quiles’ is strong evidence that Respondent HB was hostile toward him because of his union activity. The parties’ discus- sions at the bargaining table tend to confirm that Respondent HB was hostile toward employees, particularly Quiles, who partici- pated in the Union job actions. During a bargaining session on November 13, when O’Leary raised the issue of Maffia and Quiles, Catalano indicated that the Union was wrong to demon- strate at Cross Bay. Further, during a bargaining session on No- vember 19, when Solicito raised the issue of reinstating Quiles, Catalano indicated that Respondent HB did not want to take em- ployees back because the Union put up picket lines. These com- ments reflect Respondent HB’s hostility toward Quiles and a de- sire not to employ him because he took part in a Union job action the company found to be offensive. On October 23, the Almontes admittedly told Britt they pre- ferred Maffia instead of Quiles as the meat manager. Later that day, Britt told Quiles he was being laid off. Although Gilbert Almonte denied telling Britt to lay Quiles off, Frank Almonte was not called by the Respondents to corroborate this claim. Likewise, the Respondents did not call Britt to deny he was di- rected to lay Quiles off or to explain why he would lay off a long- standing employee on his own initiative two days before the store transitioned to Key Food. Under the circumstances, given the totality of the evidence, I find that Respondent HB directed Britt to lay off Quiles as a way to avoid hiring him on this basis of his union activity.38 I also find that Respondent HB refused to hire Quiles because of his union activity. In support of a discriminatory refusal to hire allegation, the General Counsel may satisfy its initial burden by showing that the Respondent was hiring, the applicant had relevant experience for the position, and antiunion animus con- tributed to the decision not to hire the applicant. Upon such a showing by the General Counsel, the burden shifts to the em- ployer to show it would not have hired the applicant even in the absence of his union activity. FES, 331 NLRB 9 (2000) (allo- cating the Wright Line burdens in a refusal-to-hire case). Here, the Almontes admit they intended to hire a meat man- ager when they took over the operation on October 26. Quiles had experience in the position and Gilbert Almonte did not tes- tify that Quiles was unqualified for the job. Gilbert merely tes- tified that they preferred Maffia over Quiles as a meat manager. Further, Gilbert offered no credible or logical explanation for re- fusing to hire Quiles. Although the Almontes may have 38 Respondent HB did not present a Wright Line defense since Gilbert Almonte denied that Respondent HB had anything to do with Quiles’ severance from A&P (a denial I do not credit). 39 Likewise, in Hagar Management Corp., 313 NLRB 438, 442 (1993), the Board adopted a judge’s finding that certain employees were preferred Maffia over Quiles as meat manager, they were told by Britt and the Union that Maffia was not available because he worked at a different store. Gilbert’s testimony that they did not hire Quiles because Quiles had been laid off before the opening is not credible or compelling since, as noted above, the evidence strongly suggests that the Almontes directed Britt to lay Quiles off in the first place. The pretextual nature of Respondent HB’s ostensible reasons for not hiring Quiles adds considerably to other evidence (described above) that Respondent HB sought to avoid employing him because of his union activity. In sum, the General Counsel presented sufficient evidence that Quiles’ un- ion activity contributed to Respondent HB’s decision not to hire him, and Respondent HB failed to prove it would not have hired Quiles regardless of that activity. Richard Maffia—Layoff I have already found that the Respondent violated Section 8(a)(5) and (1) by unilaterally laying off Maffia on November 11. In so holding, I refused to credit Gilbert Almonte’s testi- mony that Maffia arrived for work his first day but left at the Union’s direction without beginning his employment. Rather, I credited the testimony of Maffia in finding that he worked a full day on November 9, was absent on November 10, and was laid off on November 11. However, I reject the General Counsel’s theory in support of a Section 8(a)(3) and (1) violation that Re- spondent HB laid off Maffia as part of an effort to avoid paying certain former A&P employees high Union wages. See Hagar Management corp., 313 NLRB 438, 442 (1993); Sierra Realty Corp., 317 NLRB 832, 833 (1995) enf. denied 82 F.3d 494 (DC Cir. 1996); Vantage Petroleum Corp., 247 NLRB 1492 (1980) In Sierra Realty Corp., 317 NLRB 832, 833 (1995), a refusal to hire case, the Board determined that “refusing to hire employ- ees in order to avoid their union wage scale is the plainest form of 8(a)(3) discrimination and is in no way lawfully distinguisha- ble from a refusal to hire employees in order to avoid a succes- sorship obligation.” The Board went on to say that, “[c]ollec- tively, such conduct constitutes discrimination against employ- ees’ ‘union affiliation’….” Id. The Board in Sierra Realty Corp. sought to distinguish Vantage Petroleum Corp., 247 NLRB 1492 (1980), which stands for the proposition that an employer may, for valid economic reasons, refuse to hire employees who evince through their union a desire to retain the wages they possessed in a contract with a predecessor employer. In Sierra Realty, the Board held that “Vantage Petroleum Corp. . . is inapposite” where there is no evidence that employees “would have declined an offer of employment . . . at the Respondent’s lower wage rates.” 317 NLRB at 834–835.39 In such a circumstance, the employer may be found to have refused to hire employees simply because they were covered by the wage scale in a union contract (perhaps mistakenly assuming that employees would not accept lesser wage rates) and not because the wage demands of employ- ees were being rejected for valid economic reasons (i.e., the new employer could hire other employees at a lower rate).40 laid off in order to avoid the burden of paying them wages pursuant to a union contract. 40 The DC circuit found Vantage Petroleum controlling and refused to enforce the Board’s Sierra Realty decision on the grounds that the em- ployer did, in fact, have reason to believe that the predecessor’s 58 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD These cases demonstrate that an employer may not select em- ployees for hire or lay them off simply because they are paid pursuant to a collective-bargaining agreement. However, an em- ployer is not forbidden, absent some contractual restriction, from selecting employees for hire or layoff on the basis of their re- spective wage rates once their bargaining representative declines to modify its wage demands.41 Vantage Petroleum Corp., 247 NLRB 1492 (1980). In such a circumstance, the employer is not making a decision based on union affiliation, but an economic decision based on cost. Here, the Union was quite clear from the start of bargaining that former A&P employees would not accept wage cuts. The parties bargained over the issue at length and the Respondents ultimately agreed to pay former A&P employees the wages they received under the old A&P contracts. Although the parties did not reach agreement on a contract as a whole, the Respondents (including HB) largely hired former A&P employ- ees at their existing wage rates. Accordingly, Respondent HB was not forbidden from making layoff decisions based on the relative contractual wages of unit employees. Regardless, the record did not establish that Maffia was laid off because of his contractual wage rate. Respondent HB specif- ically requested Maffia, who had been working as a meat man- ager at union scale in the Waldbaums on New Utrecht Avenue. Catalano arranged with O’Leary for Maffia to be transferred to Howard Beach at his contractual hourly rate. Respondent HB hired Maffia and he worked for one day at that pay rate without incident. Respondent HB did hire new butchers Castillo and Monegro and the record contains some evidence that these butchers were initially paid cash under the table at a much lower non-contractual rate of $9 per hour. However, Castillo and Monegro were hired when the store opened, on October 26, be- fore Maffia was hired on November 9.42 Thus, the hiring of Cas- tillo and Monegro did not hinder Respondent HB from hiring Maffia and the evidence does not indicate that Respondent HB suddenly decided, two days later, that Maffia was making too much money.43 Further, the evidence did not establish that employees would be unwilling to accept lower wages. See Sierra Realty Corp. v. NLRB, 82 F.3d at 497. 41 Collective-bargaining agreements often contain provisions that re- quire layoffs to be conducted by seniority rather than other criteria such as wage rates. 42 Haenlein had the best and most specific recollection as to when Castillo and Monegro were hired. 43 Rather, the evidence strongly suggests that Maffia was laid off (or discharged) because he was suspected of engaging in a work stoppage called by the Union. Maffia came to work for Respondent HB on No- vember 9 and worked a full day without incident. He was absent on November 10 and was laid off on the morning of November 11. Gilbert Almonte believed that Maffia left without working on November 10 be- cause the Union told him to do so. Catalano submitted a position state- ment to the Region that stated, “Richard Maffia was hired by HB Food Corp. for one day” and “was thereafter terminated by HB Food Corp. ….” Since nothing happened from the time Maffia worked uneventfully on November 9 to the time he was laid off before work on November 11, except Maffia’s absence from work on November 10 (which Gilbert at- tributes to a work stoppage called by the Union), it follows that Maffia was discharged because he was suspected of participating in a Union work stoppage. This conclusion is further supported by Catalano’s com- ments at subsequent bargaining sessions which suggested that the Maffia was replaced by employees who were not paid at union scale. Accordingly, the General Counsel did not establish that Maffia was laid off because he was earning a contractual wage or that his layoff was otherwise based upon his union affiliation. Venus Nepay—Layoff I have already found, above, that the Respondent violated Sec- tion 8(a)(5) and (1) by laying off Venus Nepay on November 10. However, I reject the General Counsel’s contention that Nepay was laid off in violation of Section 8(a)(3) and (1). The General Counsel asserts that Respondent HB laid off Nepay to avoid paying her union wages. Indeed, Gilbert Al- monte testified that one of the reasons he laid off Nepay was be- cause her “salary was very high.” However, for reasons previ- ously stated, I do not believe it would have been unlawful for Respondent HB to select employees for layoff based upon their respective contractual wage rates. Vantage Petroleum Corp., 247 NLRB 1492 (1980); Sierra Realty Corp. v. NLRB, 82 F.3d 494 (DC Cir. 1996). Thus, for example, it would not have been unlawful for Respondent HB, in an effort to save money, to lay off Nepay instead of Khadisha Diaz because Nepay was a full- time meat wrapper earning a contractual rate of $25.50 per hour and Diaz was a part-time meat wrapper earning a contractual rate of $9.75 per hour. Their wage rates were determined by the same union contract and there is no basis for differentiating between them by union affiliation. Regardless, there is little evidence that Respondent HB preferred Diaz over Nepay on the basis of their respective wages since Diaz was laid off just 2 days after Nepay. Further, the General Counsel has not pointed to evidence that either Nepay or Diaz were replaced by meat wrappers who were paid less or were not paid union scale. Accordingly, the General Counsel did not establish that Nepay was laid off because of her union wage or affiliation. Khadisha Diaz—Layoff I have already found, above, that Respondent HB violated Section 8(a)(5) and (1) by laying off Khadisha Diaz on Respondents were hostile toward employees who participated in union job actions. It is unclear to me why participation in a union work stop- page would not constitute protected activity and a layoff or discharge on that basis would not be a violation of Sec. 8(a)(3) and (1). Industrial Hard Chrome, Ltd., 352 NLRB 298 (2008); Kapiolani Hosp., 231 NLRB 34, 42–43 (1977); Nanticoke Homes, Inc., 261 NLRB 736, 749 (1982). Notably, whether Maffia actually engaged in a work stoppage is irrele- vant since it is unlawful to sever an employee who is suspected of en- gaging in a protected work stoppage even if that suspicion turns out to be incorrect and the employee did not actually engaged in any protected activity. White Electrical Construction Co., 345 NLRB 1095 (2005) (employer “violated Section 8(a)(1) by discharging [employee]… in the mistaken belief that he had engaged in a work stoppage,…”). See also Wallingford’s Favorite Chicken, LLC, 359 NLRB No. 16 (2012) (not re- ported in Board volumes); Hamilton Avnet Electronics, 240 NLRB 781, 791 (1979); Metropolitan Orthopedic Assn., 237 NLRB 427 (1978); Cello-Foil Products, Inc., 171 NLRB 1189, 1193 (1968). However, the General Counsel has not contended that Maffia was laid off because he engaged in a union work stoppage and none of the parties briefed such a theory. Accordingly, I will not make a finding to that effect and will leave it to the General Counsel to decide whether to take exceptions and brief the issue to the Board. SEVEN SEAS UNION SQUARE, LLC 59 November 12. However, I reject the allegation that Diaz was laid off in violation of Section 8(a)(3) and (1). Diaz testified that her mother was a Union representative who came to the store and worked with Britt in that capacity. The record does not indicate when Diaz’s mother came to the store or how often and does not indicate that her relationship with Britt was poor. The record is also lacking in evidence that Britt or A&P maintained any antiunion animus. Although the record contains evidence that the Almontes were hostile toward em- ployees for engaging in a job action at Cross Bay and a suspected subsequent work stoppage, the record does not show that the Al- montes were broadly hostile toward employees who did not par- ticipate in union activities specifically directed at one of their stores. Respondent HB purchased a unionized A&P store and hired all the unit employees. Under the circumstances, I do not believe the General Counsel made out a prima facie case that Respondent HB laid off Diaz because her mother held a position with the Union. The General Counsel asserts that Respondent HB laid off Diaz to avoid paying her a contractual wage, but this theory is una- vailing for the reasons previously addressed above in the sections regarding Maffia and Nepay. Respondents Greaves Lane and Albany Avenue The General Counsel alleges that Respondent Greaves Lane laid off Anthony Venditti on November 30 and Respondent Al- bany Avenue laid off Stephen Fiore on January 30, 2016 because of their union activities. The complaint also alleges that Re- spondent Albany Avenue violated Section 8(a)(3) and (1) by de- moting, reduced the wage rate, and reducing the work hours of Fiore shortly before he was laid off. I have already found, above, these adverse employment actions to be violation of Section 8(a)(5) and (1). As discussed below, I find the Section 8(a)(3) and (1) allegations to have merit as well. Layoff of Anthony Venditti by Respondent Greaves Lane The General Counsel made out a prima facie case that Re- spondent Greaves Lane laid off Venditti because of his union ac- tivity. Under Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert denied 455 U.S. 989 (1982), “the General Counsel must prove that antiunion animus was a sub- stantial or motivating factor in the employment action. If the General Counsel makes the required initial showing, the burden then shifts to the employer to prove by a preponderance of the evidence that it would have taken the same action even in the absence of employee union activity.” Baptistas Bakery, Inc., 352 NLRB 547, 588, fn. 6 (2008). Respondent Greaves Lane was aware of Venditti’s union ac- tivities. The Greaves Lane supermarket transitioned to a Key Food on November 24. Venditti was the assistant Union stew- ard. During the first week, after Respondent Greaves Lane re- duced unit employees’ weekly days of work from 6 to 5, Venditti asked the store manager whether any additional changes would 44 Although Respondent Greaves Lane may have been aware of Conti’s handbilling and retained him thereafter, I do not find that suffi- cient to negate the General Counsel’s prima facie case. An employer may not be in a situation to deplete its work force by severing all em- ployee handbillers. The record established by a preponderance of the be implemented. Venditti also questioned the store manager about the layoffs of Abruzzese and Cammaretti. On November 29, Venditti participated in Union handbilling at the Greaves Lane store. This was the first day the Union engaged in hand- billing at either store owned by the Abeds. According to Venditti, the handbills contained an objection to changes in em- ployees’ terms and conditions of employment (the same concern that Venditti had inquired about). Monier testified that Randy Abed watched Venditti while he was outside handbilling and took pictures of the handbillers. The Respondents did not call Randy Abed as a witness to deny this testimony. Thus, the evi- dence established that Venditti was a union steward who was known by Respondent Greaves Lane to have engaged in Union activities, including handbilling. The evidence also established that Venditti’s layoff was, at least in part, based on substantial antiunion considerations. The timing strongly supports a finding of antiunion motivation as Venditti was laid off 2 days after he questioned the store manager about changes and one day after he participated in the Union’s first day of handbilling at either Abed store. Further, Greaves Lane employees Coughlin and Conti testified that Sam Abed later threatened to discharge them if they went outside to join the Union. Respondent Greaves Lane, therefore, demonstrated an express hostility toward individuals who participated in hand- billing and an intention to sever them on that basis.44 I also find it noteworthy and supportive of a prima facie case that Sam Abed referenced Abondolo and negotiations with the Union when Venditti was being laid off. Sam asked Venditti whether he had spoken to Abondolo and stated that they would only deal with Abondolo going forward. The fact that Respond- ent Greaves Lane raised the Union while Venditti was being laid off tends to suggest some connection between the two. Further, in his capacity as steward, Venditti had questioned the store man- ager about reductions in the schedule and the layoff of employ- ees. Although the comment by Sam was somewhat ambiguous, it suggests hostility toward Venditti as someone who was at- tempting to address Union concerns with management instead of leaving those matters to Abondolo.45 After Respondent Greaves Lane laid off Venditti, a number of butchers were transferred to and hired by the store. Meanwhile, Respondent Greaves Lane did not attempt to recall Venditti even though the Respondents have taken the position that the MOA was in effect and the MOA provides recall rights within one year of a layoff. Respondent Greaves Lane contends that the store was at- tempting to cut payroll and would have laid Venditti off, a highly paid butcher, regardless of his union activity. I reject this Wright Line defense. First, Greaves Lane asserts that meat department employees were laid off so the department’s payroll would be approximately 10 percent of department sales, but did not at- tempt to establish, through appropriate records, that payroll was actually reduced in line with revenues. Second, Respondent evidence that Venditti was laid off, at least in part, because of his union activities. 45 Sam Abed had a conversation with Abondolo the previous day in which Sam agreed to discuss a resolution of any outstanding issues with the Union and Abondolo agreed to stop handbilling. 60 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Greaves Lane failed to credibly articulate a lawful reason for se- lecting Venditti for layoff. Randy Abed testified that Venditti was laid off because he had less seniority in the store than other employees, but butchers Conti and Young both had less seniority in the store than Venditti. Third, as noted above, Respondent Greaves Lane hired new butchers instead of recalling Venditti despite a provision for recall rights in the MOA. Accordingly, based on the foregoing, Respondent HB failed to establish a Wright Line defense that Venditti would have been laid off re- gardless of his union activities. Respondent Greaves Lane nevertheless contends that Venditti’s handbilling was not protected because the handbills asked customers not to shop at the store. However, it is well settled that employees engage in protected activity by urging a boycott in support of an unresolved labor dispute. Medina Super Duper, 286 NLRB 728, 729 (1987) (employees engaged in pro- tected activity in handing out leaflets which “ask that you please do not shop medina super duper while employees are on strike”). See also Rudy’s Farm Co., 245 NLRB 43 (1979); Roundy’s Inc., 356 NLRB 126, 130 (2010). The Union was in the process of contesting conduct it deemed unlawful and employees were pro- tected in urging customers not to shop at Respondent HB’s stores as a way to compel a resolution of that matter. Demotion, Reduction of Wage Rate, Reduction of Hours, and Lay Off of Fiore by Respondent Albany Avenue The General Counsel has established a prima facie case that Respondent Albany Avenue demoted, reduced the wage rate, re- duced the hours, and laid off Fiore on the basis of his union ac- tivities. Beginning in about early-January 2016, Fiore engaged in handbilling in front of both Abed stores and the Abeds were in a position to see him doing so. The record contains evidence that Sam Abed threatened to discharge employees who engaged in handbilling. On about January 16, 2016, not long after Fiore began handbilling, Respondent Albany Avenue demoted him from meat manager to butcher, reduced his pay from $31.33 to $25, and reduced his hours from 40 to 35 hours with no Sundays. At the time, Sam Abed told Fiore he was making too much money. Fiore complained to store manager Mike Carlos that $25 did not reflect the contractual “A Butcher” rate. Fiore also sent texts and left voice mail messages to Sam regarding the same concern. Such attempts to assert rights under a collective-bar- gaining agreement are protected by the Act.46 NLRB v. City Dis- posal Systems, 465 U.S. 822 (1984); K-Mechanical Services, 299 NLRB 114, 117–118 (1990). Meanwhile, Fiore was replaced as a meat manager by Lyons, who seems to have accepted the non- contractual rate of about $25 per hour without complaint.47 On January 30, 2016, shortly after he complained about his change in wage rate and not long after he engaged in handbilling, Fiore 46 The Respondents had not adopted the A&P contracts and the MOA was not in effect, but the terms and conditions of employment (including wage rates) carried over from the Pathmark contract as a matter of stat- ute. See Cadillac Asphalt Paving Co., 349 NLRB 6 (2007). Fiore was entitled to request that Respondent Albany Avenue abide by those terms. 47 As discussed in previous section of this decision, it is unlawful for an employer to discriminate against an employee because (regardless of any protected communication regarding the issue) he/she is or was earn- ing a contractual wage rate. See Hagar Management Corp., 313 NLRB was laid off. Based upon the foregoing, I find that Fiore’s hand- billing was a motivating factor in Respondent Albany Avenue’s decision to demote him, reduce his wage rate, and reduce his hours. Further, I find that Fiore’s handbilling and his reluctance to work for a non-contractual wage rate were motiving factors in the decision to lay him off. Respondent Albany Avenue contends that the store was at- tempting to cut payroll and would have demoted Fiore, reduced his wage rate, reduced his hours, and laid him off regardless of his union activities. I reject this Wright Line defense. Sam Abed testified that Fiore was “written up” many times and vaguely tes- tified that Fiore was laid off for “business reasons.” However, the record contains no written discipline and Sam did not de- scribe Fiore’s alleged misconduct. Further, the evidence does not indicate that Respondent Albany Avenue actually reduced meat department personnel and payroll when Fiore was demoted and subsequently laid off. Rather, Respondent Albany Avenue transferred Lyons back from Greaves Lane to replace Fiore as meat manager (when Fiore was demoted) and hired Anthony Remo (after Fiore was laid off). Respondent Albany Avenue scheduled Lyons to work more than 40 hours per week when he replaced Fiore, while Fiore had his weekly hours reduced to 35. Payroll records actually indicate that meat department gross pay increased from January to February 2016, after Fiore was laid off. Accordingly, the Respondent Albany Avenue failed to es- tablish a Wright Line defense that it would have taken adverse employments actions against Fiore regardless of his union activ- ities and affiliation. In fact, the pretextual nature of Respondent Albany Avenue’s explanations tend to strengthen the assertion that those adverse actions were discriminatory. As with Venditti, the Respondents contend that Fiore engaged in handbilling that lost the protection of the Act because the leaf- lets urged customers not to shop at the store. I reject this defense for the reasons stated above and find that Fiore’s handbilling was protected by the Act. Medina Super Duper, 286 NLRB 728, 729 (1987); Rudy’s Farm Co., 245 NLRB 43 (1979); Roundy’s Inc., 356 NLRB 126, 130 (2010). Respondent Albany Avenue Rules In about January 2016, Respondent Albany Avenue distrib- uted and required employees to sign a document called Rules & Regulations as a condition of employment. The General Counsel contends that Respondent Albany Avenue violated Section 8(a)(1) of the Act because the following provisions in the Rules & Regulations are overbroad and would restrict employees from engaging in union or other protected concerted activities: SOLICITATION Solicitation is defined as the selling of merchandise or services, charitable contributions petitions of any nature, illegal 438, 442 (1993). It is noteworthy that Sam Abed told Conti he was being removed from the Sunday schedule at Greaves Lane in favor of another employee, Musa, because Musa did not insist upon being paid overtime. Conti also testified that he was ultimately “promoted” to the meat man- ager position at Greaves Lane without an increase in his wage rate. These events indicate that Respondent HB favored employees (unlike Fiore) who did not insist upon and receive their proper pay (as reflected in the Pathmark contract). SEVEN SEAS UNION SQUARE, LLC 61 gambling items, etc. Employees may not directly or indirectly solicit other associates for any purpose during scheduled work hours while on company property, Non-Employees are not au- thorized on company premises at any time for the purpose of soliciting KeyFood. Employees who are approached by a non- associate soliciting on company property should immediately report this to store management. POLITICS: YOUR COMPANY ENCOURAGES YOUR PARTICIPATION IN THE POLITICAL PROCESS. HOWEVER, SUCH ACTIVITY SHOULD BE RESTRICTED TO YOUR OWN TIME AND BE CONDUCTED AWAY FROM COMPANY PROPERTY. NO POLITICAL OR LEGISLATIVE PETITIONS SHALL BE CIRCULATED ON COMPANY PROPERTY THERE IS TO BE NO LOITERING IN ANY SPECIFIC DEPARTMENT AT ANY TIME. (EXAMPLE: NO LOITERING IN THE DELI DEPARTMENT COMPANY TIME OR OFF COMPANY TIME. NO LOITERING IN ANY DEPARTMENT ON YOUR DAY OFF.) IT IS IMPOSSIBLE TO COVER EVERY SINGLE ACT OR MATTER: HOWEVER, ALL EMPLOYEES ARE EXPECTED TO CONDUCT THEMSELVES PROPERLY AT ALL TIME. IMPROPER CONDUCT OR MATTERS, EVEN THOUGH NOT SPECIFICALLY MENTIONED HEREIN, WILL SUBJECT THE EMPLOYEE TO DISCIPLINE. In Lutheran Heritage Village-Livonia, 343 NLRB 646, 646– 647 (2004), the Board stated as follows: [O]ur inquiry into whether the maintenance of a challenged rule is unlawful begins with the issue of whether the rule ex- plicitly restricts activities protected by Section 7. If it does, we will find the rule unlawful. If the rule does not explicitly restrict activity protected by Section 7, the violation is dependent upon a showing of one of the following: (1) employees would rea- sonably construe the language to prohibit Section 7 activity; (2) the rule was promulgated in response to union activity; or (3) the rule has been applied to restrict the exercise of Section 7 rights. Recently, in The Boeing Co., 365 NLRB No. 154 (2017), the Board overturned Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004), to the extent it required the finding of a vio- lation where employees would “reasonably construe” the lan- guage of a challenged rule to prohibit Section 7 activity. 365 NLRB No. 154 at *4. Instead, the Board will now balance the following two factors in determining whether a neutral policy violates the Act: (1) the nature and extent of the potential impact on NLRA rights and (2) legitimate justifications associated with the rule. In so ruling, the Board took particular issue with the decision in William Beumont Hospital, 363 NLRB No. 162 (2016), where “a Board majority found that it violated federal law for a hospital to state that nurses and doctors should foster ‘harmonious interactions and relationships,’….” 365 NLRB No. 154 at *4. The Board also determined that the new standard should be applied retroactively. 365 NLRB No. 154 at *18. The Board, in The Boeing Co. case, delineated three catego- ries of employment policies under this new standard: • Category 1 will include rules that the Board designates as lawful to maintain, either because (i) the rule, when reasonably interpreted, does not prohibit or interfere with the exercise of NLRA rights; or (ii) the potential adverse impact on protected rights is outweighed by justifications associated with the rule. Examples of Category 1 rules are the no-camera requirement in this case, the “harmonious interactions and relationships” rule that was at issue in William Beaumont Hospital, and other rules requiring employees to abide by basic standards of civil- ity. • Category 2 will include rules that warrant individualized scrutiny in each case as to whether the rule would prohibit or interfere with NLRA rights, and if so, whether any adverse im- pact on NLRA-protected conduct is outweighed by legitimate justifications. • Category 3 will include rules that the Board will designate as unlawful to maintain because they would prohibit or limit NLRA-protected conduct, and the adverse impact on NLRA rights is not outweighed by justifications associated with the rule. An example of a Category 3 rule would be a rule that pro- hibits employees from discussing wages or benefits with one another. Id. at *3–4. I suspect that no-solicitation rules, with applicable case law which is long-standing and well-settled, will be categorized by the Board in group 3 under the new standard. No-solicitation rules are similar to rules that prohibit employees from discussing wages or benefits with one another. No-solicitation rules are generally presumed overbroad and invalid if they would exclude union solicitation during non-working times or in non-working areas. St. John’s Hospital, 222 NLRB 1150 (1976); Brunswick Corp., 282 NLRB 794, 795 (1987). Thus, although employers can ban solicitation in working areas during working time, such bans cannot extend to working areas during nonworking time. Food Services of America, Inc., 360 NLRB 1012, 1018 (2014). Respondent Albany Avenue’s policy was overbroad in prohibit- ing employees from soliciting other employees for any purpose on “company property” without excluding non-working areas as locations where solicitation may occur. Further, the rule was overbroad in restricting employees from soliciting other employ- ees during “scheduled work hours” without clearly conveying that solicitation may still occur during lunch breaks and rest pe- riods. Laidlaw Transit, Inc., 315 NLB 79, 82 (1994); Hyundai America Shipping Agency, 357 NLRB 860 (2011). The Board, with court approval, has drawn a distinction between restrictions during “working hours,” which are presumptively overbroad, and “working time,” which are not. “Working time” is time spent working, excluding breaks, while “working hours” is the period, including breaks, from the beginning to the end of a shift. Hyundai America Shipping Agency, Inc. v. NLRB., 805 F.3d 309, 315 (D.C. Cir. 2015); Our Way, Inc., 268 NLRB 394, 395 (1983). The no-solicitation rule is also unlawful to the extent it re- quires “employees who are approached by a non-associate 62 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD soliciting on company property should immediately report this to store management,” since this would require employees “to inform the Respondent of their union and other protected activ- ity.” Verizon Wireless, 365 NLRB No. 38 (2017) citing Casino San Pablo, 361 NLRB 1350, 1353 fn. 6 (2014). Accordingly, Respondent Albany Avenue violated Section 8(a)(1) of the Act by distributing and maintaining the Rules & Regulations which included an overbroad no-solicitation policy. While it is less clear to me in what group the Board would place the sweeping rule against participation in the political pro- cess on company property, including the circulation of legisla- tive or political petitions, I find the rule to be unlawful under the new standard. The Supreme Court has held that employees are protected by the Act when they seek to “improve their lot as em- ployees through channels outside the immediate employee-em- ployer relationship….” Eastex, Inc. v. NLRB, 437 U.S. 556, 565 (1978) (upholding Section 7 protection for distribution of litera- ture urging employees to vote for candidates supporting a federal minimum wage increase). For example, the Board has found that employees are engaged in protected activity when they appeal to legislators or government agencies regarding their working con- ditions. Riverboat Services of Indiana, Inc., 345 NLRB 1286, 1294–1297 (2005); Misericordia Hospital Center, 246 NLRB 351, 356 (1979) enfd. 623 F.2d 808 (2d Cir. 1980); Frances House, Inc., 322 NLRB 516, 522–523 (1996). The language of Respondent Albany Avenue’s rule on “Politics” certainly incor- porates and prohibits such protective activity. Further, the Re- spondent Albany Avenue has articulated no reason for the pro- hibition, including an explanation as to why employees cannot engaged in protected political activity on non-working time and in nonworking areas. Thus, scrutinizing this particular rule un- der category 2, I find it unlawful. I do not find the rule against loitering to be unlawful. I suspect that loitering rules will be judged by the Board under category 2 of The Boeing Co. standard. Employers have a legitimate inter- est in preventing employees from spending time standing around not working and potentially distracting other employees. On the other hand, as the General Counsel correctly asserts, the Board has long held illegal and overbroad an employer’s restriction of access by off-duty employees to external (e.g., parking lots) and other non-working areas. Palms Hotel & Casino, 344 NLRB 1363 (2005) citing Tri-County Medical Center, 222 NLRB 1089 (1976). See also Tecumseh Packaging Sols., Inc., 352 NLRB 694 (2008); The Continental Group, Inc., 357 NLRB 409 (2011) affg. decision at 353 NLRB 348 (2008). Here, the loitering rule limits loitering to specific departments, which seems to refer to interior working areas. I am mindful that the Respondent Albany Avenue promulgated these rules after the Union started handbill- ing outside the stores, but the loitering rule does not prohibit such conduct that is not in “any specific department.” Accordingly, I find the rule on loitering to be lawful. Finally, I do not find the catch-all disciplinary prohibition against “improper conduct” to be unlawful under the new stand- ard. It is necessarily vague since it is a warning to employees against assuming that conduct is appropriate simply because it was not anticipated and described as inappropriate in the Rules & Regulations. This is a useful warning for employees as it likely describes the reality of any workplace, be it a union or nonunion setting. The desire of an employer to have employees engage in proper conduct also appears similar to a reasonable desire that employees maintain “harmonious interactions and relation- ships.” Accordingly, I find the catch-all disciplinary provision to be a category 1 rule under The Boeing Co. standard and lawful to maintain. Respondent Seven Seas Refusals-to-Hire The General Counsel contends that Respondent Seven Seas refused to hire the following A&P employees because of their union activities or activities the Union engaged in on their behalf: Last Name First Name Department Job Title Colon Jose Carlos Meat Journeyman B Diaz Juana Grocery Scanning Admin/Coordinator Fields Keesha Bakery Bakery Manager/Dir/Dept Head Gomez Madeline Deli Deli Clerk Iturralde Dena Front End Cashier/Checker Jones Tamika Floral Floral Manager/Dept Head Maldonado Lucy Seafood Seafood Manager/Dept Head Nunez Ricardo Grocery Dairy Manager Ortega Maria Deli Deli Clerk Pagan Elena Front End Cashier/Checker Silverio Rosa Bakery Bakery Clerk SEVEN SEAS UNION SQUARE, LLC 63 In addition to these alleged discriminatees, Respondent Seven Seas did not hire producer clerk Francisco Delossantos, night stock/payout clerk Troy O’Neal, front-end/customer service clerk Sophie Henderson, and deli clerk Cesar Callendar. The rec- ord contains no evidence that Delossantos, O’Neal, Henderson and Callendar engaged in any union activity. However, the rec- ord also contains no affirmative evidence that Respondent Seven Seas hired any employees who engaged in union activities. Respondent Seven Seas is owned by brothers Paul and Pat Conte, who own other unionized supermarkets. The Contes pur- chased the Food Emporium supermarket in Union Square with the understanding that it would remain unionized. Respondent Seven Seas was not seeking to avoid successorship or its cor- responding bargaining obligation. Abondolo admitted saying during negotiations that he knew the Union Square store was “heavy” in the sense that it had a large number of full-time em- ployees. Further, it is undisputed that, on November 7, LoIacono called Pat Conte and “said that he knew that the store was very heavy and if we wanted to not hire anybody to make up a list and to send it to him.” Therefore, the General Counsel does not claim that layoffs were economically unjustified or that the Contes har- bored rabid antiunion animus. Rather, the General Counsel largely attributes the discriminatory motivation in these refusal- to-hire cases to Gowon and contends that Respondent Seven Seas violated the Act by relying on Gowon to recommend which employees not to employ. A hiring decision that is based upon the tainted recommendation of an individual who harbors anti- union animus will be found to be discriminatory. Bruce Packing Co., Inc., 357 NLRB 1084, 1086 (2011); KRI Constructors, 290 NLRB 802, 812 (1988). Gowon did express hostility toward union intervention on be- half of employees when she asked employees why they con- tacted the Union instead of her. Monier and the stewards testi- fied that scheduling issues were the most prevalent among em- ployee complaints. According to steward Juana Diaz, Gowon did not like to change the schedule once she made it. Monier and the stewards testified that Gowon would sometimes storm off af- ter being confronted with a union complaint. The record also reflects that Gowon angrily asked Monier, after A&P declared bankruptcy, why she (Monier) even came to the store anymore now that the employees did not have a Union. This remark sug- gests that Gowon perceived the A&P bankruptcy as a mechanism for ridding the store of the Union and excluding the Union from employee concerns and complaints. Indeed, the record does not contain evidence that Respondent Seven Seas hired any employ- ees who were the subject of union complaints. On the other hand, it must be recognized that Gowon was tol- erant of certain union activity and Respondent Seven Seas re- fused to hire certain employees who were not shown to have raised complaints to the Union’s attention. Ortega handed out materials she received at union meetings in the supermarket, and Gowon did not attempt to stop her. When Monier came to the store, union stewards spent considerable time walking around the store with her and talking to employees about any concern they may have even though the contract did not provide for such un- ion time. Diaz was not officially selected as steward, but acted in that capacity on an informal basis. Gowon often asked Diaz why she was coming to her with employee issues since Diaz was not a steward, but Gowon did reluctantly discuss these issues with Diaz. As alluded to above, the Board addressed the standard for a discriminatory refusal-to-hire as follows in FES, 331 NLRB 9 (2000): To establish a discriminatory refusal to hire, the General Coun- sel must, under the allocation of burdens set forth i, enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), first show the following at the hearing on the merits: (1) that the respondent was hiring, or had concrete plans to hire, at the time of the alleged unlawful conduct; (2) that the applicants had ex- perience or training relevant to the announced or generally known requirements of the positions for hire, or in the alterna- tive, that the employer has not adhered uniformly to such re- quirements, or that the requirements were themselves pre- textual or were applied as a pretext for discrimination; and (3) that antiunion animus contributed to the decision not to hire the applicants. Once this is established, the burden will shift to the respondent to show that it would not have hired the applicants even in the absence of their union activity or affiliation. If the respondent asserts that the applicants were not qualified for the positions it was filling, it is the respondent’s burden to show, at the hearing on the merits, that they did not possess the specific qualifications the position required or that others (who were hired) had superior qualifications, and that it would not have hired them for that reason even in the absence of their union support or activity. In sum, the issue of whether the alleged dis- criminatees would have been hired but for the discrimination against them must be litigated at the hearing on the merits. With regard to the element that the General Counsel must es- tablish concrete plans to hire, the Board added: The General Counsel may establish a discriminatory refusal to hire even when no hiring takes place if he can show that the employer had concrete plans to hire and then decided not to hire because applicants for the job were known union members or supporters. See, e.g., V.R.D. Decorating, 322 NLRB 546, 551–552 (1996) (employer held to have discriminatorily re- fused to hire applicants where employer advertised for experi- enced commercial/industrial painters, received applications from known union members or supporters with experience in commercial and industrial painting, and delayed filling the ad- vertised jobs in order to avoid making job offers to the union applicants). Id. at fn. 7 The Board in FES differentiated a refusal-to-hire from a Simpson Jerry Produce Produce Clerk Tirado Natalie Store Bakery Bakery Clerk 64 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD refusal-to-consider-for-hire violation, describing the latter as fol- lows: To establish a discriminatory refusal to consider, pursuant to Wright Line, supra, the General Counsel bears the burden of showing the following at the hearing on the merits: (1) that the respondent excluded applicants from a hiring process; and (2) that antiunion animus contributed to the decision not to con- sider the applicants for employment. Once this is established, the burden will shift to the respondent to show that it would not have considered the applicants even in the absence of their un- ion activity or affiliation. Id. at 15. The difference between a refusal-to-hire and refusal-to-con- sider-for-hire violation is that, in the former case, the employer has a job available that the alleged discriminatee is qualified to perform. Where a refusal-to-hire violation is found, the discrim- inatee is entitled to instatement and backpay. Id. at 12. Where a refusal-to-consider-for-hire violation is found, the discriminatee is only entitled to nondiscriminatory consideration for future openings. Id. at 15. Conte indicated during the October 14 bargaining session that Respondent Seven Seas intended to retain all of the A&P em- ployees (including the alleged discriminatees). Thus, the Re- spondent had concrete plans to hire. Even after Conte notified the Union on November 8 that certain employees would not be hired, Respondent Seven Seas retained nearly 100 A&P employ- ees. Respondent Seven Seas largely hired A&P employees in job titles previously held by the alleged discriminatees, which the discriminatees were qualified to perform. The record contains no evidence that the job responsibilities of A&P employees changed in any meaningful way when the store transitioned to Key Food. It appears that A&P cashier/checker Iturralde and scanning administrator Diaz were the only full-time employees in their position. However, they were both qualified to perform the work of part-timer employees who were hired into the same positions. Bakery manager Keesha Fields was not hired and the record does not contain evidence that a bakery manager was hired to replace her, but it is reasonable to assume that Fields could have performed the work of bakery clerks who were hired.48 The remaining question is whether anti-union animus contrib- uted to the decision of Respondent Seven Seas not to hire the alleged discriminatees. The evidence indicates that Gowon did not want employees to go to the Union with workplace com- plaints and harbored antiunion animus associated with the 48 Floral Manager Tameka Jones was not hired and the record does not indicate that she was replaced. The record also does not necessarily indicate that she could have performed the job of another employee who was hired by Respondent Seven Seas. Accordingly, it is arguable that the allegations regarding Jones is more aptly classified as a refusal-to- consider-for-hire than a refusal-to-hire, with a corresponding difference in the remedy. However, this can be addressed in a compliance proceed- ing, if necessary. 49 The Respondents assert in their brief that evidence of union activity by many of the alleged discriminatees is based exclusively on hearsay. I reject this assertion. Monier and the stewards testified that they raised Union’s intervention on employees’ behalf. It is also supportive of a prima facie case that Respondent Seven Seas was not shown to have hired any employee who was the subject of union com- plaints. Therefore, the General Counsel’s prima facie case with regard to the alleged discriminatees turns largely on the promi- nence of union activity in question and whether it is reasonable to believe that, by a preponderance of the evidence, Respondent Seven Seas refused to hire some or all of them on that basis.49 The General Counsel did not Establish a Prima Facie Case with Regard to Lucy Maldonado, Ricardo Nunez, Jerry Simpson, and Natalie Tirado The General Counsel did not establish a prima facie case that the Respondent Seven Seas refused to hire Simpson because of union activity. Simpson raised a scheduling complaint to the Union’s attention and Monier brought that complaint to the at- tention of management. However, Monier’s best recollection was that this occurred before Gowon was transferred to Union Square. Therefore, the General Counsel failed to establish that Gowon was aware of any activity the Union engaged in on behalf of Simpson and recommended he not be hired on that basis. The General Counsel did not establish a prima facie case that Respondent Seven Seas’ refused to hire Nunez because of union activity. Nunez raised a single payroll issue to the Union’s at- tention when he worked at the Six Avenue store with Gowon (then Assistant Manager of that store) in 2010. According to Monier, Gowon was not opposed to making the payroll adjust- ment that Nunez requested and said she would handle it (even though she never did). Accordingly, Monier contacted human resources and human resources made the change. This event oc- curred five years before Respondent Seven Seas refused to hire Nunez and does not appear to have been contentious. The Un- ion’s activity on behalf of Nunez was minimal, isolated, and ex- tremely remote in time. Evidence that Gowon was tolerant of certain union activity and that Respondent Seven Seas did not hire certain employees who engaged in no union activity (and were not the subject of Union activity on their behalf) also un- dermines a claim that Gowon was hostile toward any employee who was associated with the Union and exclusively concerned with removing such employees from the work force. Accord- ingly, the General Counsel has not established a preliminary case by a preponderance of the evidence that Respondent Seven Seas refused to hire Nunez, in whole or in part, on the basis of union activity. The General Counsel failed to establish a prima facie case that Respondent Seven Seas refused to hire Lucy Maldonado because of union activity. In about early-2015, Monier advised Gowon certain employee complaints to Gowon’s attention. Although some of these employees did not testify, the General Counsel’s evidence is not hearsay. Monier and the stewards have personal knowledge of and tes- tified to the union activity they engaged in during discussions with a su- pervisor on behalf of alleged discriminatees. It is unlawful for an em- ployer to discriminate against an employee because a union representa- tive raised a contractual issue on behalf of an employee even if the em- ployee does not testify and the employer has no knowledge of the em- ployees’ protected discussions with the Union (which gave rise to the Union’s complaints). SEVEN SEAS UNION SQUARE, LLC 65 that Maldonado’s vacation time was incorrect and Monier said she would look into it. Monier followed up once with Gowon, but Gowon had not addressed the issue. Although Monier did contact human resources, Maldonado went out on workers com- pensation leave and Monier did not recall how or whether Mal- donado’s vacation issue was resolved. The event was less re- mote in time than the issue raised on behalf of Nunez, but the record failed to demonstrate that human resources actually con- tacted Gowon or did anything about it. The Union’s activity on behalf of Maldonado was minimal, isolated, and lacking in any evidence of contentiousness with Gowon. Evidence that Gowon was tolerant of certain union activity and that Respondent Seven Seas did not hire certain employees who engaged in no union activity (and were not the subject of union activity on their be- half) also undermines a claim that Gowon was hostile toward any employee who was associated with the Union and exclusively concerned with removing such employees from the work force. Under the circumstances, the General Counsel has not estab- lished a preliminary case by a preponderance of the evidence that Respondent Seven Seas refused to hire Maldonado, in whole or in part, on the basis of union activity. The General Counsel failed to establish a prima facie case that Respondent Seven Seas refused to hire Natalie Tirado because of union activity. When the 87th Street store closed, Monier complained to Gowon about transferring Tirado to the Union Square bakery department instead of a cashier’s position. Mon- ier noted that Tirado had an accommodation to sit while working as a casher, but could not sit while working in the bakery. Gowon summarily rejected Monier’s request without explana- tion. Therefore, Monier arranged with Smith (then the store manager of Union Square) to have Tirado moved to a cashier position and work while seated. Although we do not know ex- actly when this occurred, it was an isolated incident that probably occurred before 2015. Further, although Gowon seems to have been abrupt and largely unresponsive when Monier asked why Tirado was not transferred to a cashier position, there is no evi- dence that Gowon had any further involvement in the matter or that she was adversely affected by it in any way. Evidence that Gowon was tolerant of certain union activity and that Respond- ent Seven Seas did not hire certain employees who engaged in no union activity (and were not the subject of union activity en- gaged in on their behalf) also undermines a claim that Gowon was hostile toward any employee associated with the Union and exclusively concerned with removing such employees from the workforce. Under the circumstances, I do not believe the Gen- eral Counsel has established a preliminary case by a preponder- ance of the evidence that Respondent Seven Seas refused to hire Tirado on the basis of union activity. The General Counsel Established a Prima Facie Case with Regard to Jose Carlos Colon, Juana Diaz, Keesha Fields, Madeline Gomez, Dena Itturalde, Tamika Jones, Maria Ortega, Elena Pagan, and Rosa Silverio The General Counsel established a prima facie case that Re- spondent Seven Seas refused to hire Keesha Fields because of union activity. Fields requested time off for surgery in about April or May and Gowon actively opposed the request because she wanted Fields at work to run the bakery. In this situation, the Union did not just go to human resources in order to imple- ment a request that Gowon did not oppose. Rather, the Union went over Gowon’s head to successfully reverse a decision Gowon made. Indeed, scheduling was the primary issue of con- tention the Union had with Gowon when it came to matters of contract administration and the issue involving Fields was con- tentious. Gowon expressed hostility toward employees who so- licited union intervention and the activity was not particularly remote in time from the relevant hiring decisions in November. The absence of any evidence that Respondent Seven Seas hired employees who engaged in or were the subject of union activity also supports a prima facie case. Under the circumstances, the General Counsel established a preliminary case by a preponder- ance of the evidence that union activity contributed to Respond- ent Seven Seas’ refusal to hire Fields. The General Counsel established a prima facie case that Seven Seas’ refused to hire Madeline Gomez because of union activity. The evidence indicated that union activity on behalf of Gomez was quite prominent with regard to safety and scheduling com- plaints. When Gomez first came to the Union Square store, Monier complained to Gowon that Gomez was concerned about using the slicer without adequate training. Gowon abruptly re- jected this complaint, but Monier was able to go over Gowon’s head and obtain a commitment from human resources to train Gomez on the slicer before she would be required to work with it. Monier also came to the store in response to other safety is- sues raised by Gomez, including exposed wiring and a problem with the slicer’s safety switch. According to Monier, she came to the store regarding safety complaints raised by Gomez about four times in 2015. On these occasions, Gowon seemed upset and said to Gomez, “why didn’t you just speak to me about it? Why do you have to call Margaret? I’ll take care of it.” These comments suggest antiunion animus specifically directed at Gomez. The absence of evidence that Respondent Seven Seas hired employees who engaged in or were the subject of union activity also supports a prima facie case. Under the circum- stances, the General Counsel established a preliminary case by a preponderance of the evidence that union activity contributed to Respondent Seven Seas’ refusal to hire Gomez. The General Counsel established a prima facie case that Re- spondent Seven Seas refused to hire Elena Pagan because of un- ion activity. Gowon rejected a union assertion that Pagan (a full- time employee who had been reduced to part-time) was not re- ceiving the minimum hours for a part-time employee. Schedul- ing was the Union’s primary issue of contention with Gowon and a constant source of friction. The Union filed a grievance re- garding the transition of certain employees from full-time to part-time. Monier went over Gowon’s head to human resources with regard to Pagan’s scheduling issue and was able to have the matter resolved in a manner contrary to Gowon’s wishes. Gowon was hostile toward employees who were the subject of such union intervention. The absence of evidence that Respond- ent Seven Seas hired employees who engaged in or were the sub- ject of union activity also supports a prima facie case. Under the circumstances, the General Counsel established a preliminary case by a preponderance of the evidence that union activity con- tributed to Respondent Seven Seas’ refusal to hire Pagan. 66 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The General Counsel established a prima facie case that Re- spondent Seven Seas refused to hire Rosa Silverio because of union activity. Diaz talked to Gowon about a chronic seniority related scheduling problem Silverio complained about on an on- going and regular basis. Scheduling was the Union’s primary issue of contention with Gowon and a constant source of friction. Further, not long before the closing, stewards met with Gowon because she refused to give Silverio a day off to have her home inspected. Accordingly, the Union’s activity on behalf of Sil- verio was quite prominent and Gowon was hostile toward em- ployees who were the subject of such union intervention. The absence of evidence that Respondent Seven Seas hired employ- ees who engaged in or were the subject of union activity also supports a prima facie case. Under the circumstances, the Gen- eral Counsel established a preliminary case by a preponderance of the evidence that union activity contributed to Respondent Seven Seas’ refusal to hire Silverio. The General Counsel established a prima facie case that Seven Seas’ refused to hire Jose Carlos Colon because of union activity. Jones and Monier talked to Gowon about a chronic problem Co- lon had with scheduling “split shifts” and late shifts. Scheduling was the Union’s primary issue of contention with Gowon and a constant source of friction. Accordingly, the Union’s activity on behalf of Colon was quite prominent and Gowon was hostile to- ward employees who were the subject of such union interven- tion. Further, although the evidence does not indicate exactly when these issues arose, they occurred at Union Square when Gowon was General Manager (i.e., not too long before the tran- sitioned to Key Food). The absence of evidence that Respondent Seven Seas hired employees who engaged in or were the subject of union activity also supports a prima facie case. Under the cir- cumstances, the General Counsel established a preliminary case by a preponderance of the evidence that union activity contrib- uted to Respondent Seven Seas’ refusal to hire Colon. Among non-steward employees, the General Counsel estab- lished its strongest prima facie case in connection with the re- fusal to hire Maria Ortega because of union activity. Ortega was known by Gowon to have attended union meetings with the stewards and to have handed out union literature at the store. Monier sometimes called the store to speak with Ortega regard- ing these matters and Ortega transferred some of Monier’s call to Gowon. Ortega also translated for employees when they wanted to raise workplace issues with Gowon. In addition, Or- tega was, herself, the subject of certain union complaints. Dur- ing the winter before the sale of the store, the Union and Ortega repeatedly complained to Gowon about the door being left open and the cold temperature in the café’ where Ortega worked. The Union and Ortega also repeatedly complained to Gowon about Ortega not being assigned to work Sundays while less senior part-time café’ employees received Sunday overtime. This cul- minated in a contentious interaction between Gowon and Ortega on November 6 (just 2 days before the Union was notified that Ortega would not be hired). Ortega’s protected activities were prominent, regular, numerous and close in time to the decision by Respondent Seven Seas not to employ her. The absence of evidence that Respondent Seven Seas hired employees who en- gaged in or were the subject of union activity also supports a prima facie case. Under the circumstances, the General Counsel established a preliminary case by a preponderance of the evi- dence that union activity contributed to Respondent Seven Seas’ refusal to hire Ortega. The General Counsel established a prima facie case that Re- spondent Seven Seas refused to hire stewards Tamika Jones, Dena Itturalde, and Juana Diaz because of union activity. Alt- hough Diaz acted as a steward in an informal capacity, she effec- tively functioned as a steward and arguably had the most conten- tious relationship with Gowon. The stewards raised employee complaints to Gowon’s attention and participated in meetings between Gowon and Monier. Diaz also regularly complained to Gowon about being passed over for Sunday overtime herself in favor of a less senior part-time employee. Among employees in the Union Square store, these stewards engaged in union activity that was the most prominent, regular and numerous, and Gowon demonstrated anti-union animus toward such activity. The ab- sence of evidence that Respondent Seven Seas hired employees who engaged in or were the subject of union activity also sup- ports a prima facie case. Under the circumstances, the General Counsel established a preliminary case by a preponderance of the evidence that union activity contributed to Respondent Seven Seas’ refusal to hire Jones, Iturralde and Diaz. The General Counsel Failed to establish that Respondent Seven Seas violated the Act by Refusing to Hire Highly Paid A&P Employees As an alternative theory, the General Counsel contends that Respondent Seven Seas violated Section 8(a)(3) and (1) by re- fusing to hire highly paid A&P employees. The record in this case does indicate that Paul Conte, at a meeting with the Union in December, expressed unhappiness with Local 342 employees who do not cooperate by working under the table. This statement would go a long way toward establishing a discriminatory re- fusal-to-hire violation if the record contained evidence that Re- spondent Seven Seas hired employees off the street or retained unit employees who were willing to work for lower wage rates than those defined in the old Food Emporium contract. How- ever, the record contains no such evidence and the General Counsel does not contend that Respondent Seven Seas discrimi- nated against employees on that basis. Rather, citing Sierra Re- alty Corp., 317 NLRB 832, 833 (1995), the General Counsel contends that Respondent Seven Seas violated the Act by select- ing lower paid employees for hire among former A&P employ- ees who were all paid (and continue to be paid) pursuant to the terms of the same collective-bargaining agreement. As noted above in previous sections of this decision, I disagree with the General Counsel’s interpretation of the law. Throughout negotiations, the Union maintained its position that A&P employees should retain their current wages upon be- ing hired by Key Food stores. The Union admitted during nego- tiations that the Union Square store had a large number of highly paid full-time employees and asked the Contes which employees they did not want to hire. Under these circumstances, Respond- ent Seven Seas was not prohibited by Section 8(a)(3) and (1) of the Act from selecting employees for hire on the basis of their respective wage rates as this would constitute a valid economic decision instead of a decision based on union affiliation. SEVEN SEAS UNION SQUARE, LLC 67 Vantage Petroleum Corp., 247 NLRB 1492 (1980); Sierra Re- alty Corp., 82 F.3d 494 (DC Cir. 1996). Respondent Seven Seas’ Wright Line Defense Respondent Seven Seas did not make out a Wright Line de- fense that Colon, Diaz, Fields, Gomez, Iturralde, Jones, Ortega, Pagan, and Silverio would not have been hired regardless of un- ion activity. The Conte brothers were admittedly unfamiliar with the workforce before they took over the Union Square store. Therefore, they relied on the recommendations of Gowon. Pat Conte testified to that effect upon questioning by the General Counsel and this testimony was consistent with the affidavit he provided during the Regional investigation. I do not credit Pat’s testimony, late in the trial, that he relied primarily on the recom- mendations of Union Square Director of Security Mac McBrien. Conte did not mention McBrien in his affidavit and his response to earlier questioning by the General Counsel. Further, even af- ter he testified about McBrien, Pat again admitted that Gowon was involved in the hiring decisions. Respondent Seven Seas did not call Gowon to offer any con- trary explanation of her hiring recommendations. Respondents’ counsel represented during the trial that Gowon was no longer employed by Respondent Seven Seas, but the record does not contain evidence of the same and, in any event, Gowon’s sever- ance does not explain her failure to testify. Even if she were reluctant to testify, the parties have subpoena power. More im- portantly, even if her failure to testify were explained, the ab- sence of such testimony does not absolve the Respondent Seven Seas of its burden of establishing a Wright Line defense that em- ployees would not have been hired regardless of union activity.50 Surveillance and/or Creating the Impression of Surveillance The General Counsel alleges that Respondent Seven Seas, by Pat Conte, engaged in surveillance or created the impression of surveillance by using his phone as a camera during the hearing of this case. I reject this contention. Ortega testified that, during a break in the trial, Pat held his phone in front of him as if to take a “selfie.” The record contains no evidence that Pat pointed the “camera” at an employee or witness in such a manner as to give the subject the impression that he/she was being photographed or recorded. Pat did take a selfie, but no employee or witness appeared in the picture. He also credibly testified that it was not his intention to take a picture of Ortega or anyone else. Accord- ingly, I will dismiss the allegation that Respondent Seven Seas engaged in surveillance of employees’ protected activity or cre- ated the impression that such activity was under surveillance. III. INSTATEMENT/REINSTATEMENT The complaint alleges that Respondent HB failed to reinstate employees who were unlawfully laid off. Catalano testified that he told Abondolo that Respondent HB would take Quiles or Maf- fia back as meat manager, and confirmed this offer in a letter to the Region. Otherwise, the Respondents have not offered in- statement or reinstatement to any employees at issue in this case. 50 Interestingly, as noted above, the General Counsel attributes the Respondents hiring decisions in part to employees’ wage rates, which in my opinion would constitute a valid non-discriminatory basis for such decisions. However, Respondent Seven Seas did not assert and Pat I do not find that Quiles and Maffia received valid offers of in- statement or reinstatement, respectively. The Board has found “that offers of reinstatement conveyed to employees through the medium of their bargaining representa- tive are valid offers of reinstatement.” Lipman Bros., Inc., 164 NLRB 850, 851 (1967), citing Art Metalcraft Plating Co., Inc., 133 NLRB 706, 707 (1961), enfd. 303 F.2d 478 (3rd Cir. 1962). However, an offer of reinstatement to be valid must be “firm, clear, specific, and unconditional.” Krist Oil Co., Inc., 328 NLRB 825, 827 (1999). Here, Catalano testified that, during a telephone call with Abondolo, he asked whether the Union wanted employees back, but Abondolo refused the offer. Rather, Abondolo allegedly said he would get them jobs himself. It was not clear from Catalano’s testimony that the Union received spe- cific jobs offers for specific stores on behalf of Quiles and/or Maffia. Further, although Abondolo was quite open in his testi- mony about his failure to recall a number of events, he did demonstrate a spontaneous and adamant recollection of certain facts. Thus, when Abondolo was asked whether Catalano of- fered to reinstate Quiles and/or Maffia, Abondolo was credible in his denial that Catalano ever offered anyone his/her job back. Indeed, Catalano implied that there may have been some ambi- guity with regard to the offers of reinstatement when he indicated in a position statement to the Region, “to eliminate any doubt as to the fact that HB Food Corp. had offered employment to Nel- son Quiles and/or Richard Maffia to be its Meat Manager, HB Food Corp, unconditionally, in this letter, offers employment to either one of them to be Its Meat Manager.” [Emphasis added] Finally, the General Counsel presented compelling evidence that it was contrary to the Union’s practice and particularly impracti- cal in November (when so many former A&P employees had been laid off) for the Union to deny a job offer on behalf of a union member and misrepresent that the Union would be able to find that member a job. Based on the forgoing, I do not find that Respondent HB made a clear, specific and valid offer of instate- ment or reinstatement to Quiles or Maffia. It is true that, in Catalano’s December 23 position statement to the Region, Respondent HB made a clear and specific offer to employ at least one of the employees, Quiles or Maffia, to the position of meat manager. However, the Board imposes on an employer who has unlawfully discharged employees the obliga- tion to remedy its unlawful action “by seeking out the employees and offering reinstatement.” Hickory’s Best, Inc., 267 NLRB 1274, 1275 (1983), quoting Southern Greyhound Lines, 169 NLRB 627, 628 (1968). Accordingly, the Board has held that an employer may not extinguish an employee’s backpay and rein- statement rights by communicating an offer of reinstatement to the General Counsel, particularly where, as here, the government has expressly disavowed any intention to communicate that offer to the employee in question. Hickory’s Best, Inc., 267 NLRB at 1275. IV. THE RESPONDENTS’ JOINT EMPLOYER STATUS The complaint alleges that Respondent Key Food is a joint Conte did not testify that employees’ respective wages had anything to do with hiring decisions. Accordingly, it is not a basis for a Wright Line defense. 68 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD employer with each co-operative member-owner that is named as a Respondent. In Hy-Brand Industrial Contractor’s, LTD., 365 NLRB No. 156 (2017), the Board overruled the joint em- ployer standard in Browning-Ferris Industries of California, Inc., 362 NLRB 1599 (2015), and any allowance therein for the finding of joint employer status based on a putative employer’s limited, routine, indirect or reserved (but unexercised) control over employees’ terms and conditions of employment. 365 NLRB at *1. Rather, in Hy-Brand, the Board stated that each joint employer must be shown to have exercised “direct and im- mediate” control over employees’ terms and conditions of em- ployment. The Board also determined that its retraction of the Browning-Ferris standard would not result in manifest injustice if it is applied retroactively. 365 NLRB at *31. I find, under the Hy-Brand standard, that the Respondents are joint employers as alleged in the complaint in that they jointly exercised direct and immediate control over employees’ terms and conditions of em- ployment.The context of this case involves a bankruptcy pro- ceeding in which Respondent Key Food orchestrated the pur- chase of A&P stores with the overriding object of purchasing as many stores as possible. To that end, Respondent Key Food pro- vided members with information and organized an internal bid- ding process to allocate A&P stores to Key Food members. Re- spondent Key Food purchased stores itself through two newly formed corporate member-owners and financed the purchase of stores by loaning other member-owners 70 percent of the pur- chase price. Respondent Key Food entered into the APA with A&P and obtained its approval by the bankruptcy court. The approved APA dictates to what extent the successor Key Food stores would be required to retain former A&P employees and the old A&P collective-bargaining agreements. To the extent the APA did not require Key Food stores to assume the A&P collec- tive-bargaining agreements, the APA required Key Food pur- chasers to negotiate in good-faith for modified collective-bar- gaining agreements and/or implement a last best offer. Indeed, the APA, negotiations referenced therein, and the Respondents’ unilateral implementation of terms and conditions of employ- ment are directly at issue in this unfair labor practice case. Respondent Key Food and its member-owners banded to- gether in order to negotiate common collective-bargaining agree- ments that would cover all of the stores that were purchased through the A&P liquidation. Respondent Key Food retained Catalano as the lead labor lawyer to negotiate these contracts on its behalf and on behalf of other member-owners. Catalano was retained and paid by Respondent Key Food. However, the money for Catalano’s legal services apparently came from a fee Respondent Key Food charged the member-owners who pur- chased A&P stores. Respondent Key Food and its member-own- ers refused, for the most part, to negotiate independently with the Union even though the Union requested separate negotiations with the member-owner of each store. In fact, Catalano vigor- ously objected to attempts by the Union to reach out directly to owners in order to engage in individual bargaining. Negotiations were handled primary by Catalano and Konzelman, often with- out individual owners present. Although the Respondents claim that Respondent Key Food had no involvement in the personnel decisions of stores it did not own itself, the record belies this assertion. The Union’s objection to layoffs and offers of employment (or lack thereof) were fielded and addressed by Catalano and Konzelman. It was Catalano who addressed O’Leary’s complaints regarding Quiles and Maffia, and who attempted to resolve those matters with the Union. When the Union, on October 15, requested the specific positions that would be filled at each store by A&P employees, it was Konzelman who responded and declined to provide that information. And from investigation to trial, it has been Cata- lano who represented all the Respondents in connection with these unfair labor practice charges. This is truly a case in which Respondent Key Food and the Respondent member-owners acted directly, immediately and jointly through common representatives for purposes of address- ing the terms and conditions of employment of unit employees. The Respondents nevertheless contend that individual Re- spondent member-owners were not statutory employers because they did not employ any employees. However, in its answer to the complaint, each of the Respondents admitted that, “at all ma- terial times,” they have been employers within the meaning of Section 2(2) of the Act. Accordingly, whether Respondents were employers was not an issue to be litigated and will not be enter- tained as a defense at this stage in the case. I note, however, that the Respondent member-owners were clearly employers when the vast majority of the unfair labor practices took place. Frank Almonte made coercive statements on about September 6, 2015, before the Howard Beach Waldbaums transitioned to Key Food, but the Board has held companies liable for violating the act when they coercively act upon the employee of a different company. A. M. Steigerwald Co., 236 NLRB 1512, 1515 (1978) (“the specific language of the Act clearly manifests a legislative purpose to extend the statutory protection of Section 8(a)(1) beyond the immediate employer- employee relationship”). REMEDY Having found that the Respondents have engaged in certain unfair labor practices, I find that they must be ordered to cease and desist therefrom and to take certain affirmative action de- signed to effectuate the policies of the Act. The remedies of instatement and backpay are appropriate for discriminatory refusals-to-hire, and I will order Respondents Seven Seas and HB to provide those remedies to the extent pos- sible. Obviously, Quiles is deceased and not subject to instate- ment. FES, 331 NLRB 9 (2000). The standard remedies for unilateral economic layoffs, like discriminatory layoffs or discharges, are reinstatement and full backpay, and I will order Respondents who engaged in such un- lawful conduct to provide these remedies. Print Fulfillment Servs. LLC, 361 NLRB 1243, *6–7 (2014); Eugene Iovine, 353 NLRB 400, 409 (2008). Further, to the extent the Respondents unlawfully changed the wage rates and hours before laying em- ployees off, backpay calculations for the layoffs shall be based on the wage rates and hours that employees received before those terms of employment were unlawfully altered. Thus, backpay resulting from the layoffs of Gina Cammarano, Debra Abruzz- ese, Michael Fischetti and Anthony Venditti will be based on their weekly hours worked before Respondent Greaves Lane un- lawfully reduced the work days of all employees on about SEVEN SEAS UNION SQUARE, LLC 69 November 25. Backpay resulting from the layoff of Robert Jen- zen will be based on his work hours before Respondent Albany Avenue unlawfully reduced his work days in about late-Decem- ber and further reduced his hours in mid-January 2016. Backpay resulting from the layoff of Stephen Fiore will be based on his wage rate and work hours before he was unlawfully demoted with a corresponding reduction in pay rate and his weekly work hours were reduced on about January 16, 2016. Respondents Greaves Lane and Albany Avenue will be order to rescind unlawful changes in the work days, work hours, and pay rates of employees. Further, Respondent Albany Avenue will make Fiore whole by paying him the difference in his pay before about January 16, 2016, (when his wage rate and hours were reduced) and his pay thereafter until he was laid off. Re- spondent Albany Avenue will make Jenzen whole by paying him the difference in his pay before about late-December, when his work hours were first reduced, and his pay thereafter until he was laid off. Respondent Greaves Lane will make whole employees by paying them the difference between their pay before about November 25, when their work days were reduced. Backpay for the unlawful refusals-to-hire and layoffs shall be calculated in accordance with F.W. Woolworth Co., 90 NLRB 289 (1950), with interest as described in New Horizons, 283 NLRB 1173 (1987), compounded daily as required 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). In accordance with King Soopers, Inc., 364 NLRB No. 93 (2016), the applicable Respondents shall com- pensate employees who were unlawfully denied employment or laid off for search-for-work and interim employment expenses regardless of whether those expenses exceed their interim earn- ings. Search-for-work and interim employment expenses shall be calculated separately from taxable net backpay, with interest at the rate prescribed in New Horizons, supra., compounded daily as prescribed in Kentucky River Medical Center, supra. Backpay for reductions of pay resulting from the reduction of hours or wage rate shall be calculated in accordance with Ogle Protection Service, 183 NLRB 682 (1970) instead of F.W. Wool- worth Co., 90 NLRB 289 (1950), with daily compounded inter- est. See Community Health Services, Inc., 361 NLRB 333 (2014) (that interim earnings should not be deducted in applying the Ogle Protection Service backpay formula, when the employ- ment of employees is not severed, falls within the bounds of the Board’s broad remedial discretion). In accordance with Don Chavas, LLC d/b/a Tortillas Don Chavas, 361 NLRB 101 (2014), backpay computations shall compensate employees for any adverse tax consequences of re- ceiving lump sum backpay awards, and, in accordance with Ad- voServ of New Jersey, Inc., 363 NLRB No. 143 (2016), the Re- spondent shall, within 21 days of the date the amount of backpay is fixed either by agreement or Board order, file with the Re- gional Director for Region 29 a report allocating backpay to the appropriate calendar year for each employee. The Regional 51 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and recommended Or- der shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all purposes. Director will then assume responsibility for transmission of the report to the Social Security Administration at the appropriate time and in the appropriate manner. All of the Respondents will be ordered to resume bargaining with the Union for a collective-bargaining agreement. Having found that Respondent CS2 unlawfully bypassed the Union and dealt directly with Mariano Rosado regarding a sev- erance agreement, I will require the Respondent to rescind that severance agreement upon request by the Union. Presumably, bargaining on severance and a severance agreement would be part of overall negotiations for a contract, but the parties may negotiate the issue of Rosado’s severance separately as long as such bargaining is conducted in good-faith and comports with applicable law. ORDER51 1. The Respondents shall CEASE AND DESIST from engag- ing in the following conduct: A. Respondent HB, a joint employer, which consists of Key Food Stores Co-Operative, Inc. (Key Food) of Staten Island, New York and HB 84 Food Corp. of Howard Beach, New York, its offers, agents, successors, and assigns, shall cease and desist from (1) Interrogating employees about union activities. (2) Refusing to hire employees because of their union activi- ties. (3) Causing a different employer to lay off employees because of their union activities. (4) Failing and refusing to meet and bargain with the Union as the exclusive representative of the bargaining unit set forth in the collective-bargaining agreement between the Union and Waldbaums Supermarket, Inc., which was entered into the rec- ord of this case as General Counsel’s Exhibit 5. (5) Unilaterally laying off unit employees without notifying and giving the Union, United Food and Commercial Workers Union, Local 342, AFL–CIO (the Union) an opportunity to bar- gain. (6) Refusing to reinstate employees who are unlawfully laid off. (7) 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. B. Respondent Greaves Lane, a joint employer, which con- sists of Key Food of Staten Island, New York and 100 Greaves Lane Meat LLC of Staten Island, New York, its offers, agents, successors, and assigns, shall cease and desist from (1) Laying off employees because of their union activities. (2) Failing and refusing to meet and bargain with the Union as the exclusive representative of the bargaining unit set forth in the collective-bargaining agreement between the Union and Pathmark Stores, Inc., which was entered into the record of this case as General Counsel’s Exhibit 4. 70 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD (3) Unilaterally laying off unit employees without notifying and giving the Union an opportunity to bargain. (4) Refusing to reinstate employees who are unlawfully laid off. (5) Unilaterally reducing the workdays of unit employees without notifying and giving the Union an opportunity to bar- gain. (6) 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. C. Respondent Albany Avenue, a joint employer, which con- sists of Key Food of Staten Island, New York and 1525 Albany Avenue Meat LLC of Brooklyn, New York, its offers, agents, successors, and assigns, shall cease and desist from (1) Maintaining overly broad rules that prohibit employees from engaging in protected solicitation and political activities on non-working times and in nonworking areas, and require em- ployees to report protected activities to management. (2) Laying off or discharging employees because of their un- ion activities. (3) Failing and refusing to meet and bargain with the Union as the exclusive representative of the bargaining unit set forth in the collective-bargaining agreement between the Union and Pathmark Stores, Inc., which was entered into the record of this case as General Counsel’s Exhibit 4. (4) Unilaterally laying off unit employees without notifying and giving the Union an opportunity to bargain. (5) Refusing to reinstate employees who are unlawfully laid off. (6) Demoting employees, reducing the work hours of employ- ees, and/or reducing the wage rates of employees because of their union activities. (7) Unilaterally demoting, reducing the work hours, and/or reducing the wage rate of unit employees without notifying and giving the Union an opportunity to bargain. (8) 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. D. Respondent Seven Seas, a joint employer, which consists of Key Food of Staten Island, New York and Seven Seas Union Square, LLC of Manhattan, New York, its offers, agents, succes- sors, and assigns, shall cease and desist from (1) Refusing to hire employees because of their union activity or because the Union engaged in activities on the employees’ behalf. (2) Failing and refusing to meet and bargain with the Union as the exclusive representative of the bargaining unit set forth in the collective-bargaining agreement between the Union and Food Emporium, which was entered into the record of this case as GC Exh. 3. (3) Unilaterally laying off unit employees without notifying and giving the Union an opportunity to bargain. (4) Refusing to reinstate employees who are unlawfully laid off. (5) 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. E. Respondent CS2, a joint employer, which consists of Key Food of Staten Island, New York and Key Food CS2, LLC, d/b/a Food Universe of Bayside, New York, its offers, agents, succes- sors, and assigns, shall cease and desist from (1) Failing and refusing to meet and bargain with the Union as the exclusive representative of the bargaining unit set forth in the collective-bargaining agreement between the Union and Waldbaums Supermarket, Inc., which was entered into the rec- ord of this case as GC Exh. 5. (2) Unilaterally laying off unit employees without notifying and giving the Union an opportunity to bargain. (3) Refusing to reinstate employees who are unilaterally laid off. (4) Bypassing the Union and dealing directly with unit em- ployees regarding their wages, hours and other terms and condi- tions of employment. (5) 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 F. Respondent Riverdale, a joint employer, which consists of Key Food of Staten Island, New York and Riverdale Grocers LLC of the Bronx, New York, its offers, agents, successors, and assigns, shall cease and desist from (1) Failing and refusing to meet and bargain with the Union as the exclusive representative of the bargaining unit set forth in the collective-bargaining agreement between the Union and Food Emporium (Retail Industry Agreement New York Divi- sion), which was entered into the record of this case as GC Exh. 6. (2) 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 G. Respondent Glen Oaks, a joint employer, which consists of Key Food of Staten Island, New York and Jar 259 Food Corp. of Glen Oaks, New York, its offers, agents, successors, and as- signs, shall cease and desist from (1) Failing and refusing to meet and bargain with the Union as the exclusive representative of the bargaining unit set forth in the collective-bargaining agreement between the Union and Waldbaums Supermarket, Inc., which was entered into the rec- ord of this case as GC Exh. 5. (2) 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 H. Respondent Park Plaza, a joint employer, which consists of Key Food of Staten Island, New York and Park Plaza Food Corp. of Glen Head, New York, its offers, agents, successors, and assigns, shall cease and desist from (1) Failing and refusing to meet and bargain with the Union as the exclusive representative of the bargaining unit set forth in the collective-bargaining agreement between the Union and Waldbaums Supermarket, Inc., which was entered into the rec- ord of this case as GC Exh. 5. (2) 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 I. Respondent Paramount, a joint employer, which consists of Key Food of Staten Island, New York and Paramount Supermar- kets, Inc. of Queens, New York, and Brooklyn, New York, its SEVEN SEAS UNION SQUARE, LLC 71 offers, agents, successors, and assigns, shall cease and desist from (1) Failing and refusing to meet and bargain with the Union as the exclusive representative of the bargaining unit at its Queens, New York facility as set forth in the collective-bargain- ing agreement between the Union and Waldbaums Supermarket, Inc., which was entered into the record of this case as GC Exh. 5. (2) Failing and refusing to meet and bargain with the Union as the exclusive representative of the bargaining unit at its Brooklyn, New York facility as set forth in the collective-bar- gaining agreement between the Union and Great Atlantic & Pa- cific Tea Company, Inc., which was entered into the record of this case as GC Exh. 7. (3) 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. The Respondents shall take the following AFFIRMATIVE ACTION necessary to effectuate the policies of the Act. A. Respondent HB shall (1) To reach a collective-bargaining agreement, meet and bar- gain with the Union as the exclusive collective-bargaining rep- resentative of employees in the bargaining unit set forth in the collective-bargaining agreement between the Union and Waldbaums Supermarket, Inc., which was entered into the rec- ord of this case as General Counsel’s Exhibit 5. (2) Before laying off bargaining unit employees for economic reasons, notify and, upon request, bargain with the Union as the exclusive collective-bargaining representative of employees in the bargaining unit described above in paragraph 2(A)(1) of this Order. (3) Within 14 days from the date of this Order, offer Khadisha Diaz, Richard Maffia, and Venus Nepay full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed. (4) Make Khadisha Diaz, Richard Maffia, and Venus Nepay whole for any loss of earnings and other benefits suffered as a result of their unlawful layoffs in the manner set forth in the rem- edy section of this decision. (5) Compensate Khadisha Diaz, Richard Maffia, and Venus Nepay for search-for-work and interim employment expenses re- gardless of whether those expenses exceed their interim earn- ings. (6) Compensate Khadisha Diaz, Richard Maffia, and Venus Nepay for the adverse tax consequences, if any, of receiving lump-sum backpay awards, and file a report with the Social Se- curity Administration allocating the backpay awards to the ap- propriate calendar quarters for each employee. (7) Preserve and, within 14 days of a request, or such addi- tional time as the Regional Director may allow for good cause shown, provide at a reasonable place designated by the Board or its agents, all payroll records, social security payment records, timecards, personnel records and reports, and all other records, 52 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 National Labor Relations Board” shall read “Posted Pursuant to a Judgment of the including an electronic copy of such records if stored in elec- tronic form, necessary to analyze the amount of backpay due un- der the terms of this Order. (8) Within 14 days after service by the Region, post at its fa- cility copies of the attached notice marked “Appendix A.”52 Copies of the notice, on forms provided by the Regional Director for Region 29, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places, in- cluding all places where notices to employees are customarily posted. In addition to physical posting of paper notices, notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Respondent customarily communicates with its employees by such means. Reasonable steps shall be taken by the Respond- ent to ensure that the notices are not altered, defaced, or covered by any other material. If the Respondent has gone out of business or closed the facility involved in these proceedings, the Respond- ent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since September 1, 2015. (9) Within 21 days after service by the Region, file with the Regional Director for Region 29 a sworn certification of a re- sponsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. B. Respondent Greaves Lane shall (1) To reach a collective-bargaining agreement, meet and bar- gain with the Union as the exclusive collective-bargaining rep- resentative of employees in the bargaining unit set forth in the collective-bargaining agreement between the Union and Path- mark Stores, Inc., which was entered into the record of this case as GC Exh. 4. (2) Before laying off bargaining unit employees for economic reasons or reducing their work days, notify and, upon request, bargain with the Union as the exclusive collective-bargaining representative of employees in the bargaining unit described above in paragraph 2(B)(1) of this Order. (3) Rescind the unlawful change in the work days of unit em- ployees. (4) Within 14 days from the date of this Order, offer Debra Abruzzese, Gina Cammarano, Michael Fischetti, and Anthony Venditti full reinstatement to their former positions, or, if those positions no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privi- leges previously enjoyed. (5) Make Debra Abruzzese, Gina Cammarano, Michael Fischetti, and Anthony Venditti whole for any loss of wages or benefits suffered as a result of their unlawful layoffs in the man- ner set forth in the remedy section of this decision. (6) Compensate Debra Abruzzese, Gina Cammarano, Mi- chael Fischetti, and Anthony Venditti for search-for-work and interim employment expenses regardless of whether those ex- penses exceed their interim earnings. (7) Make whole unit employees for any loss of earnings and United States Court of Appeals Enforcing an Order of the National La- bor Relations Board.” 72 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD other benefits suffered as a result of the unlawful reduction of their work days from 6 days to 5 days per week, with a corre- sponding reduction in pay, in the manner set forth in the remedy section of this decision. (8) Compensate all employees entitled to backpay for the ad- verse tax consequences, if any, of receiving lump-sum backpay awards, and file a report with the Social Security Administration allocating the backpay awards to the appropriate calendar quar- ters for each employee. (9) Preserve and, within 14 days of a request, or such addi- tional time as the Regional Director may allow for good cause shown, provide at a reasonable place designated by the Board or its agents, all payroll records, social security payment records, timecards, personnel records and reports, and all other records, including an electronic copy of such records if stored in elec- tronic form, necessary to analyze the amount of backpay due un- der the terms of this Order. (10) Within 14 days after service by the Region, post at its facility copies of the attached notice marked “Appendix B.”53 Copies of the notice, on forms provided by the Regional Director for Region 29, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places, in- cluding all places where notices to employees are customarily posted. In addition to physical posting of paper notices, notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Respondent customarily communicates with its employees by such means. Reasonable steps shall be taken by the Respond- ent to ensure that the notices are not altered, defaced, or covered by any other material. If the Respondent has gone out of business or closed the facility involved in these proceedings, the Respond- ent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since November 1, 2015. (11) Within 21 days after service by the Region, file with the Regional Director for Region 29 a sworn certification of a re- sponsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. C. Respondent Albany Avenue shall (1) To reach a collective-bargaining agreement, meet and bar- gain with the Union as the exclusive collective-bargaining rep- resentative of employees in the bargaining unit set forth in the collective-bargaining agreement between the Union and Path- mark Stores, Inc., which was entered into the record of this case as (GC Exh. 4). (2) Before laying off bargaining unit employees for economic reasons or reducing their workdays, work hours or wage rates, notify and, upon request, bargain with the Union as the exclusive collective-bargaining representative of employees in the bar- gaining unit described above in paragraph 2(C)(1) of this Order. 53 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 National Labor Relations Board” shall read “Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National La- bor Relations Board.” (3) Rescind the unlawful changes in the workdays, work hours and wage rates of unit employees. (4) Notify all employees in writing that overly broad rules on solicitation and politics contained in the “Key Food Rules & Regulations” are rescinded, void, of no effect and will not be en- forced. Further, notify all employees in writing that Respondent Albany Avenue will not prohibit employees from engaging in solicitation and political activity in a manner protected by the Act, and will not require employees to report such activity to management. (5) Within 14 days from the date of this Order, offer Joseph Batiste, Kalvin Harris, Robert Jenzen and Stephen Fiore full re- instatement to their former positions, or, if those positions no longer exist, to substantially equivalent positions, without preju- dice to their seniority or any other rights or privileges previously enjoyed. (6) Make Joseph Batiste, Kalvin Harris, Robert Jenzen and Stephen Fiore whole for any loss of wages or benefits suffered as a result of their unlawful layoffs or discharge in the manner set forth in the remedy section of this decision. (7) Compensate Joseph Batiste, Kalvin Harris, Robert Jenzen and Stephen Fiore for search-for-work and interim employment expenses following their layoffs regardless of whether those ex- penses exceed their interim earnings. (8) Make Robert Jenzen whole for the unlawful reductions in his work days and work hours in the manner set forth in the rem- edy section of this decision. (9) Make Stephen Fiore whole for the unlawful demotion, re- duction of wage rate, and reduction of work hours in the manner set forth in the remedy section of this decision. (10) Compensate all employees entitled to backpay for the adverse tax consequences, if any, of receiving lump-sum back- pay awards, and file a report with the Social Security Admin- istration allocating the backpay awards to the appropriate calen- dar quarters for each employee. (11) Preserve and, within 14 days of a request, or such addi- tional time as the Regional Director may allow for good cause shown, provide at a reasonable place designated by the Board or its agents, all payroll records, social security payment records, timecards, personnel records and reports, and all other records, including an electronic copy of such records if stored in elec- tronic form, necessary to analyze the amount of backpay due un- der the terms of this Order. (12) Within 14 days after service by the Region, post at its facility copies of the attached notice marked “Appendix C.”54 Copies of the notice, on forms provided by the Regional Director for Region 29, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places, in- cluding all places where notices to employees are customarily posted. In addition to physical posting of paper notices, notices shall be distributed electronically, such as by email, posting on 54 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 National Labor Relations Board” shall read “Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National La- bor Relations Board.” SEVEN SEAS UNION SQUARE, LLC 73 an intranet or an internet site, and/or other electronic means, if the Respondent customarily communicates with its employees by such means. Reasonable steps shall be taken by the Respond- ent to ensure that the notices are not altered, defaced, or covered by any other material. If the Respondent has gone out of business or closed the facility involved in these proceedings, the Respond- ent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since November 1, 2015. (13) Within 21 days after service by the Region, file with the Regional Director for Region 29 a sworn certification of a re- sponsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. D. Respondents Seven Seas shall (1) To reach a collective-bargaining agreement, meet and bar- gain with the Union as the exclusive collective-bargaining rep- resentative of employees in the bargaining unit set forth in the collective-bargaining agreement between the Union and The Food Emporium, which was entered into the record of this case as GC Exh. 3. (2) Before laying off bargaining unit employees for economic reasons, notify and, upon request, bargain with the Union as the exclusive collective-bargaining representative of employees in the bargaining unit described above in paragraph 2(D)(1) of this Order. (3) Within 14 days from the date of this Order, offer Jose Car- los Colon, Juana Diaz, Keesha Fields, Madeline Gomez, Dena Iturralde, Tamika Jones, Maria Ortega, Elena Pagan, and Rosa Silverio instatement to the positions they held as employees of The Great Atlantic & Pacific Tea Company, or, if such positions no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges pre- viously enjoyed. (4) Within 14 days from the date of this Order, offer Ayanna Jordan full reinstatement to her former position, or, if that posi- tion no longer exist, to a substantially equivalent position, with- out prejudice to their seniority or any other rights or privileges previously enjoyed. (5) Make Jose Carlos Colon, Juana Diaz, Keesha Fields, Madeline Gomez, Dena Itturalde, Tamika Jones, Maria Ortega, Elena Pagan, and Rosa Silverio whole for any loss of wages or benefits suffered as a result of the unlawful refusal to hire them in the manner set forth in the remedy section of this decision. (6) Make Ayanna Jordan whole for any loss of wages or ben- efits suffered as a result of her unlawful layoff in the manner set forth in the remedy section of this decision. (7) Compensate Jose Carlos Colon, Juana Diaz, Keesha Fields, Madeline Gomez, Dena Iturralde, Tamika Jones, Ayanna Jordan, Maria Ortega, Elena Pagan, and Rosa Silverio for search- for-work and interim employment expenses following their layoffs regardless of whether those expenses exceed their interim earnings. (8) Compensate all employees entitled to backpay for the ad- verse tax consequences, if any, of receiving lump-sum backpay 55 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 National Labor Relations Board” shall read “Posted Pursuant to a Judgment of the awards, and file a report with the Social Security Administration allocating the backpay awards to the appropriate calendar quar- ters for each employee. (9) Preserve and, within 14 days of a request, or such addi- tional time as the Regional Director may allow for good cause shown, provide at a reasonable place designated by the Board or its agents, all payroll records, social security payment records, timecards, personnel records and reports, and all other records, including an electronic copy of such records if stored in elec- tronic form, necessary to analyze the amount of backpay due un- der the terms of this Order. (10) Within 14 days after service by the Region, post at its facility copies of the attached notice marked “Appendix D.”55 Copies of the notice, on forms provided by the Regional Director for Region 29, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places, in- cluding all places where notices to employees are customarily posted. In addition to physical posting of paper notices, notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Respondent customarily communicates with its employees by such means. Reasonable steps shall be taken by the Respond- ent to ensure that the notices are not altered, defaced, or covered by any other material. If the Respondent has gone out of business or closed the facility involved in these proceedings, the Respond- ent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since November 1, 2015. (11) Within 21 days after service by the Region, file with the Regional Director for Region 29 a sworn certification of a re- sponsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. E. Respondent CS2 shall (1) To reach a collective-bargaining agreement, meet and bar- gain with the Union as the exclusive collective-bargaining rep- resentative of employees in the bargaining unit set forth in the collective-bargaining agreement between the Union and Waldbaums Supermarket, Inc., which was entered into the rec- ord of this case as (GC Exh. 5). (2) Before laying off bargaining unit employees for economic reasons, notify and, upon request, bargain with the Union as the exclusive collective-bargaining representative of employees in the bargaining unit described above in paragraph 2(E)(1) of this Order. (3) Upon the Union’s request, rescind the severance agree- ment signed by Mariano Rosado. (4) Within 14 days from the date of this Order, offer Mariano Rosado full reinstatement to his former job or, if that job no longer exist, to a substantially equivalent position, without prej- udice to his seniority or any other rights or privileges previously enjoyed. United States Court of Appeals Enforcing an Order of the National La- bor Relations Board.” 74 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD (5) Make Mariano Rosado whole for any loss of earnings and other benefits suffered as a result of his unlawful layoffs in the manner set forth in the remedy section of this decision. (6) Compensate Mariano Rosado for search-for-work and in- terim employment expenses regardless of whether those ex- penses exceed their interim earnings. (7) Compensate Mariano Rosado for the adverse tax conse- quences, if any, of receiving a lump-sum backpay award, and file a report with the Social Security Administration allocating the backpay award to the appropriate calendar quarters for the em- ployee. (8) Preserve and, within 14 days of a request, or such addi- tional time as the Regional Director may allow for good cause shown, provide at a reasonable place designated by the Board or its agents, all payroll records, social security payment records, timecards, personnel records and reports, and all other records, including an electronic copy of such records if stored in elec- tronic form, necessary to analyze the amount of backpay due un- der the terms of this Order. (9) Within 14 days after service by the Region, post at its fa- cility copies of the attached notice marked “Appendix E.”56 Copies of the notice, on forms provided by the Regional Director for Region 29, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places, in- cluding all places where notices to employees are customarily posted. In addition to physical posting of paper notices, notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Respondent customarily communicates with its employees by such means. Reasonable steps shall be taken by the Respond- ent to ensure that the notices are not altered, defaced, or covered by any other material. If the Respondent has gone out of business or closed the facility involved in these proceedings, the Respond- ent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since January 1, 2016. (10) Within 21 days after service by the Region, file with the Regional Director for Region 29 a sworn certification of a re- sponsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. F. Respondent Riverdale shall (1) To reach a collective-bargaining agreement, meet and bar- gain with the Union as the exclusive collective-bargaining rep- resentative of employees in the bargaining unit set forth in the collective-bargaining agreement between the Union and Food Emporium (Retail Industry Agreement New York Division), which was entered into the record of this case as GC Exh. 6. (2) Within 14 days after service by the Region, post at its fa- cility copies of the attached notice marked “Appendix 56 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 National Labor Relations Board” shall read “Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National La- bor Relations Board.” 57 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 National Labor Relations Board” shall read “Posted Pursuant to a Judgment of the F.”57 Copies of the notice, on forms provided by the Regional Director for Region 29, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places, in- cluding all places where notices to employees are customarily posted. In addition to physical posting of paper notices, notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Respondent customarily communicates with its employees by such means. Reasonable steps shall be taken by the Respond- ent to ensure that the notices are not altered, defaced, or covered by any other material. If the Respondent has gone out of business or closed the facility involved in these proceedings, the Respond- ent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since July 1, 2016. (3) Within 21 days after service by the Region, file with the Regional Director for Region 29 a sworn certification of a re- sponsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. (G) Respondent Glen Oaks shall (1) To reach a collective-bargaining agreement, meet and bar- gain with the Union as the exclusive collective-bargaining rep- resentative of employees in the bargaining unit set forth in the collective-bargaining agreement between the Union and Waldbaums Supermarket, Inc., which was entered into the rec- ord of this case as General Counsel’s Exhibit 5. (2) Within 14 days after service by the Region, post at its fa- cility copies of the attached notice marked “Appendix G.”58 Copies of the notice, on forms provided by the Regional Director for Region 29, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places, in- cluding all places where notices to employees are customarily posted. In addition to physical posting of paper notices, notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Respondent customarily communicates with its employees by such means. Reasonable steps shall be taken by the Respond- ent to ensure that the notices are not altered, defaced, or covered by any other material. If the Respondent has gone out of business or closed the facility involved in these proceedings, the Respond- ent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since July 1, 2016. (3) Within 21 days after service by the Region, file with the Regional Director for Region 29 a sworn certification of a re- sponsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. H. Respondent Park Plaza shall United States Court of Appeals Enforcing an Order of the National La- bor Relations Board.” 58 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 National Labor Relations Board” shall read “Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National La- bor Relations Board.” SEVEN SEAS UNION SQUARE, LLC 75 (1) To reach a collective-bargaining agreement, meet and bar- gain with the Union as the exclusive collective-bargaining rep- resentative of employees in the bargaining unit set forth in the collective-bargaining agreement between the Union and Waldbaums Supermarket, Inc., which was entered into the rec- ord of this case as (GC Exh. 5). (2) Within 14 days after service by the Region, post at its fa- cility copies of the attached notice marked “Appendix H.”59 Copies of the notice, on forms provided by the Regional Director for Region 29, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places, in- cluding all places where notices to employees are customarily posted. In addition to physical posting of paper notices, notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Respondent customarily communicates with its employees by such means. Reasonable steps shall be taken by the Respond- ent to ensure that the notices are not altered, defaced, or covered by any other material. If the Respondent has gone out of business or closed the facility involved in these proceedings, the Respond- ent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since July 1, 2016. (3) Within 21 days after service by the Region, file with the Regional Director for Region 29 a sworn certification of a re- sponsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. I. Respondent Paramount shall (1) To reach a collective-bargaining agreement, meet and bar- gain with the Union as the exclusive collective-bargaining rep- resentative of employees in the bargaining unit at its Queens, New York facility as set forth in the collective-bargaining agree- ment between the Union and Waldbaums Supermarket, Inc., which was entered into the record of this case as (GC Exh. 5). (2) To reach a collective-bargaining agreement, bargain with the Union as the exclusive collective-bargaining representative of employees in the bargaining unit at its Brooklyn, New York facility as set forth in the collective-bargaining agreement be- tween the Union and Great Atlantic & Pacific Tea Company, Inc., which was entered into the record of this case as GC Exh. 7. (3) Within 14 days after service by the Region, post at its fa- cilities copies of the attached notice marked “Appendix I.”60 Copies of the notice, on forms provided by the Regional Director for Region 29, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places, in- cluding all places where notices to employees are customarily posted. In addition to physical posting of paper notices, notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if 59 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 National Labor Relations Board” shall read “Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National La- bor Relations Board.” the Respondent customarily communicates with its employees by such means. Reasonable steps shall be taken by the Respond- ent to ensure that the notices are not altered, defaced, or covered by any other material. If the Respondent has gone out of business or closed one or both of the facilities involved in these proceed- ings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employ- ees employed by the Respondent at any time since July 1, 2016. (4) Within 21 days after service by the Region, file with the Regional Director for Region 29 a sworn certification of a re- sponsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. Dated, Washington, D.C. February 9, 2018 APPENDIX A NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated 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 be- half Act together with other employees for your benefit and protection Choose not to engage in any of these protected activi- ties. WE WILL NOT coercively question you about your union activ- ities. WE WILL NOT refuse to hire you, lay you off, cause a different employer to lay you off or otherwise discriminate against you because you have engaged in union activities. WE WILL NOT lay you off or otherwise unilaterally change your wages, hours and other terms and conditions of employment without notifying and, upon request, bargaining with the United Food and Commercial Workers Union, Local 342, AFL–CIO (the Union) regarding the decision. WE WILL NOT fail and refuse to reinstate you if you have been unlawfully laid off. WE WILL NOT fail and refuse to meet and bargain with the Un- ion for a collective-bargaining agreement. WE WILL NOT in any like or related manner interfere with, re- strain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL offer dates to meet and bargain with the Union for a collective-bargaining agreement. WE WILL, within 14 days from the date of this Order, offer full 60 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 National Labor Relations Board” shall read “Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National La- bor Relations Board.” 76 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD reinstatement to Khadisha Diaz, Richard Maffia, and Venus Nepay to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their sen- iority or any other rights or privileges previously enjoyed. WE WILL make Khadisha Diaz, Richard Maffia, Venus Nepay, and Nelson Quiles whole for any loss of earnings and other ben- efits resulting from their layoffs, less any net interim earnings, plus interest, and WE WILL also make such employees whole for reasonable search-for-work and interim employment expenses, plus interest. WE WILL compensate Khadisha Diaz, Richard Maffia, Venus Nepay, and Nelson Quiles for the adverse tax consequences, if any, of receiving lump-sum backpay awards, and WE WILL file with the Regional Director for Region 29, within 21 days of the date the amount of backpay is fixed, either by agreement or Board order, a report allocating the backpay awards to the appro- priate calendar years for each employee. WE WILL, within 14 days from the date of the Board’s Order, remove from our files any reference to the unlawful layoff of Khadisha Diaz, Richard Maffia, and Venus Nepay, and WE WILL, within 3 days thereafter, notify them in writing that this has been done and that the layoffs will not be used against them in any way. KEY FOOD STORES CO-OPERATIVE, INC. AND HB 84 FOOD CORP.,JOINT EMPLOYERS The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/29–CA–164058 or by using the QR code be- low. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273–1940. APPENDIX B NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated 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 be- half Act together with other employees for your benefit and protection Choose not to engage in any of these protected activi- ties. WE WILL NOT lay you off or otherwise discriminate against you because you have engaged in union activities. WE WILL NOT lay you off, reduce your work days or otherwise unilaterally change your wages, hours and other terms and con- ditions of employment without notifying and, upon request, bar- gaining with the United Food and Commercial Workers Union, Local 342, AFL–CIO (the Union) regarding the decision. WE WILL NOT fail and refuse to reinstate you if you have been unlawfully laid off. WE WILL NOT fail and refuse to meet and bargain with the Un- ion for a collective-bargaining agreement. WE WILL NOT in any like or related manner interfere with, re- strain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL offer dates to meet and bargain with the Union for a collective-bargaining agreement. WE WILL rescind the reduction of your work days from six to five days per week. WE WILL, within 14 days from the date of this Order, offer full reinstatement to Debra Abruzzese, Gina Cammarano, Michael Fischetti, and Anthony Venditti to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, with- out prejudice to their seniority or any other rights or privileges previously enjoyed. WE WILL make Debra Abruzzese, Gina Cammarano, Michael Fischetti, and Anthony Venditti whole for any loss of earnings and other benefits resulting from their layoffs, less any net in- terim earnings, plus interest, and WE WILL also make such em- ployees whole for reasonable search-for-work and interim em- ployment expenses, plus interest. WE WILL make whole all unit employees for any loss of earn- ings and other benefits resulting from the reduction of their work days. WE WILL compensate any employee receiving a backpay award for the adverse tax consequences, if any, of receiving lump-sum backpay awards, and WE WILL file with the Regional Director for Region 29, within 21 days of the date the amount of backpay is fixed, either by agreement or Board order, a report allocating the backpay awards to the appropriate calendar years for each employee. WE WILL, within 14 days from the date of the Board’s Order, remove from our files any reference to the unlawful layoffs of Debra Abruzzese, Gina Cammarano, Michael Fischetti, and An- thony Venditti, and WE WILL, within 3 days thereafter, notify them in writing that this has been done and that the layoffs will not be used against them in any way. KEY FOOD STORES CO-OPERATIVE, INC. AND GREAVES LANE MEAT LLC,JOINT EMPLOYERS The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/29–CA–164058 or by using the QR code be- low. Alternatively, you can obtain a copy of the decision from SEVEN SEAS UNION SQUARE, LLC 77 the Executive Secretary, National Labor Relations Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273–1940. APPENDIX C NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your be- half Act together with other employees for your benefit and protection Choose not to engage in any of these protected activi- ties. WE WILL NOT lay you off, discharge you, reduce your days of work, reduce your hours of work, reduce your wage rate or oth- erwise discriminate against you because you have engaged in un- ion activities. WE WILL NOT lay you off, reduce your days of work, reduce your hours of work, reduce your wage rate or otherwise unilat- erally change your wages, hours and other terms and conditions of employment without notifying and, upon request, bargaining with the United Food and Commercial Workers Union, Local 342, AFL–CIO (the Union) regarding the decision. WE WILL NOT fail and refuse to reinstate you if you have been unlawfully laid off. WE WILL NOT fail and refuse to meet and bargain with the Un- ion for a collective-bargaining agreement. WE WILL NOT in any like or related manner interfere with, re- strain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL, within 14 days from the date of this Order, offer full reinstatement to Joseph Batiste, Kalvin Harris, Robert Jenzen and Stephen Fiore to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously en- joyed. WE WILL offer dates to meet and bargain with the Union for a collective-bargaining agreement. WE WILL rescind unilateral and/or discriminatory reductions in the work days, work hours and wage rates of unit employees. WE WILL make Joseph Batiste, Kalvin Harris, Robert Jenzen and Stephen Fiore whole for any loss of earnings and other ben- efits resulting from their layoffs, less any net interim earnings, plus interest, and WE WILL also make such employees whole for reasonable search-for-work and interim employment expenses, plus interest. WE WILL make Robert Jenzen and Stephen Fiore whole for any loss of earnings and other benefits resulting from the reductions of their work days, work hours and/or wage rates. WE WILL compensate Joseph Batiste, Kalvin Harris, Robert Jenzen and Stephen Fiore for the adverse tax consequences, if any, of receiving lump-sum backpay awards, and WE WILL file with the Regional Director for Region 29, within 21 days of the date the amount of backpay is fixed, either by agreement or Board order, a report allocating the backpay awards to the appro- priate calendar years for each employee. WE WILL, within 14 days from the date of the Board’s Order, remove from our files any reference to the unlawful demotion of Stephen Fiore and the unlawful layoffs of Joseph Batiste, Kalvin Harris, Robert Jenzen and Stephen Fiore, and WE WILL, within 3 days thereafter, notify them in writing that this has been done and that these adverse employment actions will not be used against them in any way. KEY FOOD STORES CO-OPERATIVE, INC. AND 1525 ALBANY AVENUE MEAT LLC,JOINT EMPLOYERS The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/29–CA–164058 or by using the QR code be- low. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273–1940. APPENDIX D NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your be- half 78 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Act together with other employees for your benefit and protection Choose not to engage in any of these protected activi- ties. WE WILL NOT refuse to hire you or otherwise discriminate against you because you have engaged in union activities. WE WILL NOT lay you off or otherwise unilaterally change your wages, hours and other terms and conditions of employment without notifying and, upon request, bargaining with the United Food and Commercial Workers Union, Local 342, AFL–CIO (the Union) regarding the decision. WE WILL NOT fail and refuse to reinstate you if you have been unlawfully laid off. WE WILL NOT fail and refuse to meet and bargain with the Un- ion for a collective-bargaining agreement. WE WILL NOT in any like or related manner interfere with, re- strain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL offer dates to meet and bargain with the Union for a collective-bargaining agreement. WE WILL, within 14 days from the date of this Order, offer instatement to Jose Carlos Colon, Juana Diaz, Keesha Fields, Madeline Gomez, Dena Itturalde, Tamika Jones, Maria Ortega, Elena Pagan, and Rosa Silverio to their former jobs with The Great Atlantic & Pacific Tea Company or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously en- joyed. WE WILL, within 14 days from the date of this Order, offer reinstatement to Ayanna Jordan to her former job or, if that job no longer exist, to a substantially equivalent position, without prejudice to her seniority or any other rights or privileges previ- ously enjoyed. WE WILL make Jose Carlos Colon, Juana Diaz, Keesha Fields, Madeline Gomez, Dena Itturalde, Tamika Jones, Ayanna Jordan, Maria Ortega, Elena Pagan, and Rosa Silverio whole for any loss of earnings and other benefits resulting from our refusal to hire or lay them off, less any net interim earnings, plus interest, and WE WILL also make such employees whole for reasonable search- for-work and interim employment expenses, plus interest. WE WILL compensate Jose Carlos Colon, Juana Diaz, Keesha Fields, Madeline Gomez, Dena Itturalde, Tamika Jones, Ayanna Jordan, Maria Ortega, Elena Pagan, and Rosa Silverio for the ad- verse tax consequences, if any, of receiving lump-sum backpay awards, and WE WILL file with the Regional Director for Region 29, within 21 days of the date the amount of backpay is fixed, either by agreement or Board order, a report allocating the back- pay awards to the appropriate calendar years for each employee. WE WILL, within 14 days from the date of the Board’s Order, remove from our files any reference to the unlawful refusal to hire or layoff of Jose Carlos Colon, Juana Diaz, Keesha Fields, Madeline Gomez, Dena Iturralde, Tamika Jones, Ayanna Jordan, Maria Ortega, Elena Pagan, and Rosa Silverio, and WE WILL, within 3 days thereafter, notify them in writing that this has been done and that the refusals-to-hire and layoffs will not be used against them in any way. KEY FOOD STORES CO-OPERATIVE, INC. AND SEVEN SEAS UNION SQUARE, LLC,JOINT EMPLOYERS The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/29–CA–164058 or by using the QR code be- low. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273–1940. APPENDIX E NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your be- half Act together with other employees for your benefit and protection Choose not to engage in any of these protected activi- ties. WE WILL NOT lay you off or otherwise unilaterally change your wages, hours and other terms and conditions of employment without notifying and, upon request, bargaining with the United Food and Commercial Workers Union, Local 342, AFL–CIO (the Union) regarding the decision. WE WILL NOT fail and refuse to reinstate you if you have been unlawfully laid off. WE WILL NOT fail and refuse to meet and bargain with the Un- ion for a collective-bargaining agreement. WE WILL NOT bypass the Union, your exclusive bargaining representative, and deal directly with you regarding your wages, hours, and other terms and conditions of employment, including severance and the signing of a severance agreement. WE WILL NOT in any like or related manner interfere with, re- strain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. SEVEN SEAS UNION SQUARE, LLC 79 WE WILL offer dates to meet and bargain with the Union for a collective-bargaining agreement. WE WILL upon request by the Union, rescind the severance agreement of Mariano Rosado. WE WILL, within 14 days from the date of this Order, offer full reinstatement to Mariano Rosado to his former job or, if that job no longer exist, to a substantially equivalent position, without prejudice to his seniority or any other rights or privileges previ- ously enjoyed. WE WILL make Mariano Rosado whole for any loss of earnings and other benefits resulting from their layoffs, less any net in- terim earnings, plus interest, and WE WILL also make him whole for reasonable search-for-work and interim employment ex- penses, plus interest. WE WILL compensate Mariano Rosado for the adverse tax con- sequences, if any, of receiving a lump-sum backpay award, and WE WILL file with the Regional Director for Region 29, within 21 days of the date the amount of backpay is fixed, either by agree- ment or Board order, a report allocating the backpay award to the appropriate calendar years for the employee. WE WILL, within 14 days from the date of the Board’s Order, remove from our files any reference to the unlawful layoff of Mariano Rosado, and WE WILL, within 3 days thereafter, notify him in writing that this has been done and that the layoffs will not be used against him in any way. KEY FOOD STORES CO-OPERATIVE, INC. AND KEY FOOD CS2, LLC D/B/A FOOD UNIVERSE, JOINT EMPLOYERS The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/29–CA–164058 or by using the QR code be- low. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273–1940. APPENDIX F NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your be- half Act together with other employees for your benefit and protection Choose not to engage in any of these protected activi- ties. WE WILL NOT fail and refuse to meet and bargain with the United Food and Commercial Workers Union, Local 342, AFL– CIO (the Union) for a collective-bargaining agreement. WE WILL NOT in any like or related manner interfere with, re- strain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL offer dates to meet and bargain with the Union for a collective-bargaining agreement. KEY FOOD STORES CO-OPERATIVE, INC. AND RIVERDALE GROCERS LLC,JOINT EMPLOYERS The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/29–CA–164058 or by using the QR code be- low. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273–1940. APPENDIX G NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your be- half Act together with other employees for your benefit and protection Choose not to engage in any of these protected activi- ties. WE WILL NOT fail and refuse to meet and bargain with the United Food and Commercial Workers Union, Local 342, AFL– CIO (the Union) for a collective-bargaining agreement. WE WILL NOT in any like or related manner interfere with, 80 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL offer dates to meet and bargain with the Union for a collective-bargaining agreement. KEY FOOD STORES CO-OPERATIVE, INC. AND JAR 259 FOOD CORP.,JOINT EMPLOYERS The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/29–CA–164058 or by using the QR code be- low. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273–1940. APPENDIX H NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your be- half Act together with other employees for your benefit and protection Choose not to engage in any of these protected activi- ties. WE WILL NOT fail and refuse to meet and bargain with the United Food and Commercial Workers Union, Local 342, AFL– CIO (the Union) for a collective-bargaining agreement. WE WILL NOT in any like or related manner interfere with, re- strain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL offer dates to meet and bargain with the Union for a collective-bargaining agreement. KEY FOOD STORES CO-OPERATIVE, INC. AND PARK PLAZA FOOD CORP.,JOINT EMPLOYERS The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/29–CA–164058 or by using the QR code be- low. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273–1940. APPENDIX I NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your be- half Act together with other employees for your benefit and protection Choose not to engage in any of these protected activi- ties. WE WILL NOT fail and refuse to meet and bargain with the United Food and Commercial Workers Union, Local 342, AFL– CIO (the Union) for a collective-bargaining agreement. WE WILL NOT in any like or related manner interfere with, re- strain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL offer dates to meet and bargain with the Union for a collective-bargaining agreement. KEY FOOD STORES CO-OPERATIVE, INC. AND PARAMOUNT SUPERMARKETS, INC.,JOINT EMPLOYERS The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/29–CA–164058 or by using the QR code be- low. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273–1940.