Macy's, Inc.

372 NLRB No. 42 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. Macy’s, Inc. and International Union of Operating Engineers, Stationary Engineers, Local 39. Case 20–CA–270047 January 17, 2023 DECISION AND ORDER BY CHAIRMAN MCFERRAN AND MEMBERS KAPLAN AND WILCOX On April 6, 2022, Administrative Law Judge John T. Giannopoulos issued the attached decision. The Re- spondent filed exceptions and a supporting brief, the General Counsel and the Charging Party each filed an answering brief, and the Respondent filed a reply brief to each answering brief. The Charging Party filed cross- exceptions and a supporting brief, and the Respondent filed an answering brief. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and the record in light of the exceptions, and briefs and has decided to affirm the judge’s rulings, findings,1 and conclusions and to adopt the recommended Order as modified and set forth in full below.2 1 The Respondent has excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an adminis- trative law judge’s credibility resolutions unless the clear preponder- ance of all the relevant evidence convinces us that they are incor- rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. 2 We shall modify the judge's recommended Order to conform to the violations found and to the Board's standard remedial language, and in accordance with our decisions in Paragon Systems, 371 NLRB No. 104 (2022); Cascades Containerboard Packaging-Niagara, 370 NLRB No. 76 (2021), as modified in 371 NLRB No. 25 (2021); and AdvoServ of New Jersey, Inc., 363 NLRB No. 143 (2016). Member Kaplan acknowledges and applies Paragon Systems as Board precedent, alt- hough he expressed disagreement there with the Board's approach and would have adhered to the position the Board adopted in Danbury Ambulance Service, Inc., 369 NLRB No. 68 (2020). In accordance with our decision in Thryv, Inc., 372 NLRB No. 22 (2022), we have also amended the make-whole remedy and modified the judge’s recommended order to provide that the Respondent shall also compensate the employees for any other direct or foreseeable pecuniary harms incurred as a result of the unlawful lockout, including reasonable search-for-work and interim employment expenses, if any, regardless of whether these expenses exceed interim earnings. Com- pensation for these harms shall be calculated separately from taxable net backpay, with interest at the rate prescribed in New Horizons, 283 NLRB 1173 (1987), compounded daily as prescribed in Kentucky River Medical Center, 356 NLRB 6 (2010). We shall substitute a new notice to conform to the Order as modified. ORDER The National Labor Relations Board orders that the Respondent, Macy’s, Inc., New York, New York, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Locking out its employees without providing them with a timely, clear, and complete offer that sets forth the conditions necessary to avoid the lockout. (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) Within 14 days from the date of this Order, offer those employees whom it unlawfully locked out on De- cember 7, 2020, who have not yet been reinstated, full reinstatement to their former positions or, if those posi- tions no longer exist, to substantially equivalent posi- tions, without prejudice to their seniority or other rights and privileges previously enjoyed, discharging if neces- sary employees hired in their place while they were locked out. (b) Make the locked-out employees whole for any loss of earnings and other benefits, and for any other direct or foreseeable pecuniary harms suffered as a result of the unlawful lockout, in the manner set forth in the remedy section of the judge’s decision as amended in this deci- sion. (c) Compensate all affected employees for the adverse tax consequences, if any, of receiving a lump-sum back- pay award, and file with the Regional Director for Re- gion 20, within 21 days of the date the amount of back- pay is fixed, either by agreement or Board order, a report allocating the backpay awards to the appropriate calendar years for each affected employee. (d) File with the Regional Director for Region 20, within 21 days of the date the amount of backpay is fixed by agreement or Board order or such additional time as the Regional Director may allow for good cause shown, a Unlike his colleagues, Member Kaplan would require the Respond- ent to compensate these employees for other pecuniary harms only insofar as the losses were directly caused by the unlawful lockout, or indirectly caused by the unlawful lockout where the causal link be- tween the loss and the unfair labor practice is sufficiently clear, con- sistent with his partial dissent in Thryv, Inc., supra. The Charging Party requests that the Board grant several extraordi- nary remedies, including multiple notice readings by upper-level man- agers involved in the lockout, notice posting on the Respondent’s pub- lic website, notice mailing to all of the Respondent’s employees who had worked at locations where employees were locked out, and notice posting for at least three years. We deny this request because the Board's traditional remedies are sufficient to effectuate the policies of the Act in this matter. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 copy of each backpay recipient’s W-2 form(s) reflecting the backpay award. (e) 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, so- cial security payment records, timecards, personnel rec- ords and reports, and all other records, including an elec- tronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this Order. (f) Post at its Northern California and Reno, Nevada facilities copies of the attached notice marked “Appen- dix.”3 Copies of the notice, on forms provided by the Regional Director for Region 20, after being signed by the Respondent's authorized representative, shall be post- ed by the Respondent 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 paper notices, the 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 Respondent to ensure that the notices are not altered, defaced, or covered by any other material. If the Respondent has gone out of business or closed the facili- ties involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the no- tice to all current employees and former employees em- ployed by the Respondent at any time since December 7, 2020. (g) Within 21 days after service by the Region, file with the Regional Director for Region 20 a sworn certifi- cation of a responsible official on a form provided by the 3 If the facilities involved in these proceedings are open and staffed by a substantial complement of employees, the notices must be posted within 14 days after service by the Region. If the facilities involved in these proceedings are closed or not staffed by a substantial complement of employees due to the Coronavirus Disease 2019 (COVID-19) pan- demic, the notices must be posted within 14 days after the facilities reopen and a substantial complement of employees have returned to work. If, while closed or not staffed by a substantial complement of employees due to the pandemic, the Respondent is communicating with its employees by electronic means, the notice must also be posted by such electronic means within 14 days after service by the Region. If the notice to be physically posted was posted electronically more than 60 days before physical posting of the notice, the notice shall state at the bottom that “This notice is the same notice previously [sent or posted] electronically on [date].” If this Order is enforced by a judg- ment of a United States court of appeals, the words in the notice read- ing “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.” Region attesting to the steps that the Respondent has taken to comply. Dated, Washington, D.C. January 17, 2023 ______________________________________ Lauren McFerran, Chairman ______________________________________ Marvin E. Kaplan, Member ________________________________________ Gwynne A. Wilcox, Member (SEAL) NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE TOEMPLOYEES 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 behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT lock you out without providing you with a timely, clear, and complete offer, that sets forth the conditions necessary to avoid the lockout. 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, within 14 days from the date of the Board’s Order, offer the employees whom we unlawfully locked out on December 7, 2020, who have not yet been rein- stated, full reinstatement to their former positions or, if those positions no longer exist, to substantially equiva- lent positions, without prejudice to their seniority or oth- er rights and privileges previously enjoyed, discharging if necessary employees hired in their place while they were locked out. MACY’S INC. 3 WE WILL make the locked-out employees whole for any loss of earnings and other benefits resulting from the unlawful lockout, less any net interim earnings, plus in- terest, and WE WILL also make them whole for any other direct or foreseeable pecuniary harms suffered as a result of the unlawful lockout, including reasonable search-for- work and interim employment expenses, plus interest. WE WILL compensate all affected employees for the adverse tax consequences, if any, of receiving a lump- sum backpay award, and WE WILL file with the Regional Director for Region 20, 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 for each affected employee. WE WILL file with the Regional Director for Region 20, within 21 days of the date the amount of backpay is fixed by agreement or Board order or such additional time as the Regional Director may allow for good cause shown, a copy of each backpay recipient’s corresponding W-2 form(s) reflecting the backpay award. MACY’S, INC. The Board’s decision can be found at www.nlrb.gov/case/20-CA-270047 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. Carmen Leon, Esq., for the General Counsel. Laura Pierson-Scheinberg, Esq., M. Christopher Moon, Esq., Yuki Cruse, Esq., and Daniel Schudroff, Esq. (Jackson Lew- is, PC), for the Respondent. Gary Provencher, Esq. (Weinberg, Roger & Rosenfeld), for the Charging Party. DECISION STATEMENT OF THE CASE JOHN T. GIANNOPOULOS, Administrative Law Judge.1 This 1 Transcript citations are denoted by “Tr.” with the appropriate page number. Citations to the General Counsel, Respondent, Charging Par- ty, and Administrative Law Judge exhibits are denoted by “GC,” “R,” “U” and “ALJ” respectively. Transcript and exhibit citations are in- tended as an aid only. Factual findings are based upon the entire record and may include parts of the record that are not specifically cited. case was tried before me over a 6-day period in June 2021. Because of the compelling circumstances created by Covid-19 pandemic, pursuant to the stipulation of the parties, the trial occurred via video conference. Based upon charges filed by the International Union of Operating Engineers, Stationary Engi- neers, Local 39 (Union or Local 39), the Government alleges that Macy’s Inc. (Respondent or Macy’s) violated Section 8(a)(1) and (3) of the Act by locking out employees represented by the Union at a time when Respondent did not have a bar- gaining proposal on the table for the Union to consider in order to avoid a lockout. Macy’s denies that its actions violated the law. Based upon the entire record, including my observation of witness demeanor, and after considering the briefs filed by the parties, I make the following findings of fact and conclusions of law.2 I. JURISDICTION AND LABOR ORGANIZATION Respondent is a Delaware corporation and operates depart- ment stores throughout the United States, selling a wide range of merchandise including apparel, accessories, cosmetics, home furnishings, and other consumer goods. In conducting its busi- ness operations, each year Respondent derives gross revenues in excess of $500,000; it purchases and receives at its San Francisco store goods and materials valued in excess of $5,000 directly from points located outside of the State of California. Respondent admits, and I find, that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. Respondent also admits, and I find, that the Union is a labor organization within the meaning of Section 2(5) of the Act. Accordingly, I find that this dispute affects commerce and the National Labor Relations Board (“NLRB” or the “Board”) has jurisdiction pursuant to Section 10(a) of the Act. II. FACTS A. General Background Rowland Hussay (“R.H.”) Macy was born on Nantucket Is- land in 1822. Mark D. Bauer, Department Stores on Sale: An Antitrust Quandary, 26 GA. ST. U. L. REV. 255, 265 (2010). He first worked on a whaling ship, but eventually left the ship, with a red star tattooed on his hand to show for it, and went to work in retail, the stock market, and real estate, before opening a small store in Manhattan in 1858. Id. Respondent traces its lineage back to this one small store, and the company’s tradi- tional red star logo mirrors the red star tattooed on R.H. Macy’s hand. Id. Today Respondent operates over 700 store locations in 43 states, the District of Columbia, Puerto Rico, and Guam, under the Macy’s, Bloomingdales, and Bluemercury brand names, generating billions of dollars in annual revenues.3 2 Testimony contrary to my findings has been specifically considered and discredited. Witness demeanor was the primary consideration used in making all credibility resolutions. 3 See https://sec.report/Document/0001564590-21-016119/ (Macy’s Form 10-K, filed with the Securities and Exchange Commission on March 29, 2021, for the fiscal year ending January 30, 2021). For purposes of background, the effects of the Covid-19 pandemic, and for financial information, I take administrative notice of forms 10-K, 8-K, DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 Nationwide, Macy’s employs over 75,000 full-time and part- time employees. Because of the seasonal nature of the retail business, the number of employees peak during the holiday season. Approximately 7% of the Respondent’s employees are represented by labor unions, and the company has about 60 contracts with various unions nationwide. (Tr. 631) . This case involves a strike called by Local 39, which repre- sents a unit of building engineers and craftsmen that work at approximately 40 different location in 28 different cities throughout the Northern California/San Francisco bay area, along with engineers working at two locations in Reno, Neva- da. These employees are responsible for maintaining and re- pairing the company’s retail stores, including their electrical and HVAC systems; they also perform carpentry, painting, and general repairs. (Tr. 553, 588, 632, 761–762; GC. 2; R. 49) The Union and Macy’s have had a collective-bargaining re- lationship involving this unit of employees for over 20 years. The most recent collective-bargaining agreement (CBA) be- tween the parties was signed in 2018 and effective from Sep- tember 1, 2018 through August 31, 2020, covering approxi- mately 60 to 70 unit employees. (Tr. 636; GC. 2) B. Respondent Closes its Stores and Lays Off Employees Due to Covid-19 In mid-March 2020, as the Covid-19 pandemic reached the United States, Respondent closed all of its stores nationwide. All employees were paid for two weeks, and on April 1, 2020 the majority of Respondent’s workforce across the country was furloughed. The furloughs included the Local 39 engineers covered by the CBA. In total, about sixty Local 39 engineers were laid off on April 1, 2020. A small crew of Local 39 engi- neers, comprising primarily of the chief engineers, remained employed during this time for purposes of maintaining the emp- ty buildings. (Tr. 634–636) As different states and localities began to ease the regula- tions imposed to slow the spread of Covid-19, Macy’s started reopening its stores and by the end of the second quarter of 2020, substantially all of Respondent’s stores across the coun- try had reopened. For the company’s Northern California and Reno based engineers, by mid-August 2020, 43 of the fur- loughed Local 39 engineers had been recalled to work. (Tr. 635–636) The pandemic had a significant financial impact on Macy’s in 2020. The below chart shows Respondent’s revenues and net income for fiscal years 2018 through 2021.4 2021 2020 2019 2018 * in millions Net Sales 24,460 17,346 24,560 24,971 and 10-Q filed by Macy’s Inc., with the Securities and Exchange Commission. Pacific Greyhound Lines, 4 NLRB 520, 522 fn. 2 (1937) (Board takes judicial notice of facts stated in company’s annual report filed with the Security and Exchange Commission); Fed. R. Evid. 201(b). All filings were last accessed on April 4, 2022. 4 Macy’s ends its fiscal year on the Saturday closest to January 31. Net In- come 1,430 (3,944) 564 1,098 As the chart shows, net sales for fiscal year 2020 dropped by over $7 billion in comparison to the previous two years and the company had a net loss of $3.9 billion for 2020. By the first quarter of 2021, Macy’s had returned to profitability, with a net income of $103 million for the quarter.5 Respondent’s finan- cial results continued to improve throughout 2021, with the company having net sales of $24.46 billion and a net income of $1.43 billion in fiscal year 2021.6 C. Bargaining for a Successor Agreement The parties started bargaining for a successor agreement in July 2020.7 Because of the pandemic, the bargaining sessions occurred via videoconference. (Tr. 37, 638–639) Rose Ashmore, Macy’s director of labor strategies, served as lead negotiator for the company. Ashmore has held this posi- tion for over 20 years and is responsible for negotiating collec- tive-bargaining agreements nationwide; she is also involved with grievance processing, arbitrations, and other associated labor relations matters. Eddie Ramirez, the Business Repre- sentative for Local 39, was the lead negotiator for the Union at the start of negotiations. He was replaced as lead negotiator by Jay Vega in mid-August; although Ramirez remained on the bargaining team. Vega is a district representative for the Un- ion, overseeing the San Francisco office. He also supervises the Union’s various business representatives in the district. (Tr. 31–32, 54, 631, 638–639) Between July and August the parties held about 12 bargain- ing sessions. The primary issues preventing an agreement were economic. Specifically, the Union sought wage increases to bring salaries closer in line with those paid to building engi- neers working in San Francisco area commercial buildings who were covered by a collective-bargaining agreement between the Union and a multiemployer association representing the build- ing owners. Macy’s thought the Union’s wage demands were unreasonable. Ashmore believed that the commercial building engineers had greater job duties than their counterparts at Ma- cy’s. Plus, the building owners could pass any increased costs onto their tenants, whereas Macy’s had to absorb these costs. (Tr. 640–644; U. 1) On August 31, Macy’s presented the Union with its Last, Best, and Final Offer (Final Offer) which called for a three year contract, with employees receiving a 2.5% wage increase each year, starting on September 1. It also provided for increased pension fund contributions each year as follows: 4.3% ($8.70) 5 See https://www.sec.gov/ix?doc=/Archives/edgar/data/794367/0001564590 21031943/m-10q_20210501.htm (See Macy’s Form 10-Q filed with the SEC on June 7, 2021, for the quarter ending May 1, 2021) 6 See https://www.sec.gov/Archives/edgar/data/794367/00015645902200577 1/m-ex991_6.htm (Exhibit 99.1 to Macy’s Form 8(k) filed with the SEC on February 22, 2022). 7 All dates are in 2020 unless otherwise noted. MACY’S INC. 5 in 2020; 3.4% ($9.00) in 2021; and 3.0% ($9.27) in 2022. Fi- nally, in the Final Offer, Macy’s proposed a nearly $20,000 investment in company health care contributions, across all plans, for the 2020-2021 plan year, provided the Union with- drew its Health and Welfare proposal and the contract was ratified. On September 2, the Union presented the Final Offer to its membership for a vote; it was overwhelmingly rejected by the bargaining unit. That same day the Local 39 engineers decided to go on strike starting September 4. (Tr. 38–41, 642; GC. 3) D. The Union’s Strike The Union went on strike on September 4 and conducted picketing at the San Francisco Macy’s store, which is located directly across the street from the city’s iconic Union Square (referred to as the “Union Square store”). Union Square is a 2.6-acre public plaza located in the heart of downtown San Francisco’s shopping district. (Tr. 120) See Cuviello v. City of San Francisco, 940 F.Supp. 2d 1071, 1077 (N.D. Cal. 2013) (noting that Union Square is a 2.6 acre public plaza). The Macy’s Union Square store takes up about 3/4 of a city block. The store has nine floors of retail sales space, which includes a basement level. Along with a sales floor, the top floor includes a restaurant. On the north side of the block is the store’s main entrance, which is located on Geary Street, directly across the street from Union Square. There are three public entrances on O’Farrell Street, which runs along the south side of the block. There is also an employee entrance on O’Farrell Street and a driveway which is used by trucks making deliver- ies to the store. Stockton Street runs on along the east end of the block, and has one public entrance to the store. On the west end of the block is Powell Street, which runs north to south. The buildings along Powell Street do not belong to Macy’s, but house other commercial establishments. Even though striking engineers worked at multiple stores throughout Northern Cali- fornia and Nevada, during the strike picketing only occurred at the Union Square store. (Tr. 43, 316; R. 1, 9, 44, 45; ALJ. 2) As for the picketing, it consisted of individuals patrolling the various store entrances, and also included the use of inflatables, bull horns, noise makers (such as airhorns, sirens, gongs, or whistles), and musical instruments. At times a drum set was stationed in front of the main entrance on Geary Street, with a full-time drummer. At one point, a marching band even made an appearance. (Tr. 201, 210–212; R. 3, 4, 8, 10, 17) The picketing occurred every day from September 4 through December 4, seven days a week. It started when the store opened and ended when the store closed.8 On different days members of other labor unions, the area labor-council, and the general public, also joined the picket line in a show of solidari- ty. (Tr. 13, 43–44, R. 17) E. Respondent’s Claims that Strikers Engaged in Misconduct and Sabotage Macy’s asserts that the striking employees engaged in vari- 8 Originally the store’s hours were from 10:00 a.m. until 6:00 p.m. (Tr. 43–44) At some point the hours changed and the store was open from 11:00 a.m. until 7:00 p.m.. (Tr. 43, 131–132, 457) ous acts of misconduct and sabotage. In its brief, Respondent points to this conduct, in part, to support its claim that the em- ployee lockout was lawful, asserting the company “legitimately feared the Union would engage in unabated misconduct without a contract in place;” it points to the following twelve specific allegations of misconduct and/or sabotage. (Macy’s Br., at 23) 1. Allegations that union members used homophobic slurs and insulting comments Respondent contends that, during the picketing, union mem- bers “directed homophobic and insulting comments at two Ma- cy’s employees: Gilbert Saavedra and David Plew.” (Macy’s Br., at 21) Both Saavedra and Plew testified about these claims at the hearing. a. Testimony of Gilbert Saavedra Gilbert Saavedra works at the Macy’s Union Square store as the “customer experience manager of beauty,” having worked for Macy’s since February 2019. Saavedra described his posi- tion as “manag[ing] the managers” in the beauty department, which consists of the fragrance, skin care, and cosmetic lines sold at the store. The beauty/cosmetics department starts in the part of the store facing the corner of O’Farrell and Stockton Street, and runs most of the length of the store on the O’Farrell street side. (Tr. 112–113; R. 1) Saavedra testified that during the first three weeks of the strike Macy’s instructed all managers, including himself, to station themselves at the Geary Street entrance, because that is where the majority of the picketing was occurring. The manag- ers were scheduled to go to the entrance once a day, in one hour increments, and stand inside the store to open the doors so cus- tomers would have a clear path to enter and exit the store. Dur- ing his shifts at the Geary Street entrance, Saavedra testified that he watched the picketing through the glass doors and that at any one time he would observe about 15 picketers. (Tr. 118– 120, 154–155) Because the beauty/cosmetics department directly faces O’Farrell Street, Saavedra testified that during his workday he would primarily be near the O’Farrell side fragrance door and would also open doors for customers at this entrance. Accord- ing to Saavedra, he was standing at this door around the end of the first week of picketing, when he opened the door for a cus- tomer and one of the picketers called out saying “there’s the faggot manager.” (Tr. 139–140) Saavedra testified that similar statements were made to him multiple times, on a daily basis, during the first three weeks of the picketing as he was opening doors for customers. Saavedra did not recognize any of the people who called him names, saying that he just heard what was said and did not look right at the name callers. (Tr. 139– 142, 160–161) During cross-examination, in an attempt to discredit Saa- vedra’s testimony, the General Counsel produced a pre-hearing affidavit Saavedra provided in support of a charge filed by Macy’s with the NLRB alleging picket line misconduct. In this affidavit, which is dated March 22, 2021, Saavedra does not say anything about the picketers making derogatory statements or engaging in name calling, nor does he use the word “harass- ment.” To counter this testimony, Respondent claimed that Saavedra was only offered as a witness regarding the allegation DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 6 that the picketers were making excessive noise, and Saavedra said that nobody asked him about the name calling. That being said, the charge in question includes an allegation that union members/agents were “harassing employees with derogatory homophobic slurs and actions.” (GC. 13) Also, Saavedra pro- vided his affidavit well after the lockout occurred, and the affi- davit’s jurat specifically states that Saavedra will “immediately notify the Board agent” if he remembered anything else im- portant or wished to make any changes to the document. Saa- vedra did not notify the Board agent or make any changes to his affidavit. (Tr. 146–151) During cross-examination, Saavedra also admitted that some of the people on the picket line were not union members, nor did he recognize them as working for Macy’s. (Tr. 151–153) Finally, Saavedra said that he never reported the name calling to Macy’s management, and did not ask to be exempted from his duties monitoring the doors. (Tr. 161) b. Testimony of David Plew David Plew works as a lead visual security officer (VSO) for Macy’s; Plew has worked for the company since August 2019. VSOs wear black pants and red polo shirts that say “Macy’s Security.” At the time of the picketing, Plew worked at the Union Square store five days a week during business hours and was assigned to the entrance doors. Plew said that he was re- sponsible for handling the flow of traffic and trying to keep the doors open for customers who were making their way past the picketers as they came in and out of the store. (Tr. 356–357, 473–475, 489, 526–527; R. 9) During the strike, Plew testified that he interacted with the picketers a lot and said that he lodged various complaints with the company about them. According to Plew, the first incident he had with the picketers involved an interaction that happened the morning of September 3, while Plew was located at the “fragrance store door.” (478–480) Although the picketing did not start until September 4, Plew was consistent in his testimo- ny that this, and other incidents, occurred on September 3. Plew said that he was helping a customer exit the door, when one of the picketers started “wailing” at him; Plew looked over at the picketer, who then said “you’re a fag.” (Tr. 478) Plew testified that he immediately turned around and went back in- side the building and texted his supervisor who then removed him from working at that specific door. During his direct tes- timony, Plew identified the picketer who made the comment as Local 39 engineer Greg Johnson. (Tr. 475–480) Later that same day, Plew said he was back at the “fragrance door” when somebody was outside holding a bullhorn on his crotch and gyrating towards him. Plew testified that he be- lieved the person with the bullhorn was Greg Johnson. Plew also testified that, starting on September 3, Johnson began call- ing him “doorstop,” and that this nickname caught on with the other picketers who also started calling Plew doorstop. Ac- cording to Plew, when he would arrive at work in the morning the picketers would say “good morning, doorstop.” And when he would leave the building or go out for a break they would say “hi doorstop, have a nice lunch, doorstop.” Then, one day when Plew was carrying a bag, he testified that someone said to him “nice purse, doorstop.” In all, Plew estimated that up to 25 different picketers called him doorstop, and that it became an ongoing nickname that was used for him by the picketers throughout the strike. (Tr. 482–483, 523) Plew further testified that, at one point on September 3, he was stationed at the Geary street entrance looking outside, when one of the picketers started blowing kisses at him in an exaggerated fashion. Plew identified this person as Local 39 engineer Diego Zarco. Plew also said that Zarco was “stalking” him at the doors, meaning that when Plew was standing inside the store, at the Geary Street doors, Zarco would stand outside the doors, opposite Plew, and smile at him. Plew said this hap- pened on a regular basis, “ending with one time when he actu- ally was flipping me off right at the door.” (Tr. 494) (Tr. 480– 481, 492–501; R. 11) Regarding his identifying Zarco as one of the people in- volved in these incidents, at the hearing Plew was shown two pictures of someone whose face was obscured by a picket sign, and without hesitation he identified the person in the pictures as Zarco. However, Plew ultimately admitted that, at the time of the incident, he did not know Zarco. He also admitted that Zarco does not work at the Union Square store, and someone else, at some later time, had told him that the person in the pic- tures was Zarco. When asked who told him this, Plew testified that he could not say exactly, but that he learned this “through the whole process of what we were doing as managers.” He later said that he learned about Zarco’s identity “through the staffing that I was working with.” Nobody who actually knew Zarco identified him as the person in the photographs, or the person who was involved in the incidents Plew described. (Tr. 494–495, 509–512; R. 11, 43) Regarding his identifying Johnson as the person making de- rogatory statements and gestures, Plew said that Johnson works as an engineer at the Union Square store, that Plew would see him at the store about once a week, and that he knew Johnson even before the strike started. However, according to Respond- ent’s records, Johnson was not assigned to the Union Square store. Instead, he was assigned to the Oakridge, Monterey, Salinas/Northridge, and Capitola stores. Also, when asked during cross-examination if he knew Johnson’s identity at the time of the incident, Plew said that he did not, but that he knew Johnson’s identity by December 2020. He then testified that he could not recall if he knew Johnson by December, before once again saying that he did, in fact, know Johnson’s identity in December. (Tr. 478, 523–528; R. 49) In a declaration provided to the California State Superior Court regarding these incidents, Plew identified someone else as holding the bullhorn, saying that Johnson was the person who yelled “you’re a fag, and blew kisses at me” but that “[a]nother picketer . . . placed his bullhorn in front of his groin area and motioned up and down with the horn while looking at me.” (Tr. 525, 530–531) Plew tried to explain this incon- sistency by saying he was not “paying attention to everything else that was going on,” and that there was “confusion” and “lot going on that day.” (Tr. 528–529) Nevertheless, Plew insisted that Johnson was the person gyrating with the bullhorn. (Tr. 528, 531) MACY’S INC. 7 2. Allegations that Union members attacked customers and employees with assaultive noise devices and a picket sign. a. Incidents involving Amanda Nalua’i Amanda Nalua’i worked at the Union Square store as an as- set protection manager, supervising the VSO staff. Nalua’i has worked at various Macy’s stores in asset protection for over 14 years and at Union Square since August 2019. During the time of the picketing, Nalua’i reported directly to Kevin Uhe. At the time of the strike, Uhe was the director of operations and asset protection for the Union Square store. Uhe had been in this role for one year, and has worked for Macy’s since 2005. (Tr. 175–176, 397–399) Nalua’i testified that the first day she observed picketing was on September 3. As with Plew, Nalua’i was consistent in her testimony that various events happened on September 3, even though the picketing did not start until the next day. According to Nalua’i, she came to work on September 3 and saw some of the engineers positioned outside the O’Farrell Street doors. A colleague told Nalua’i the engineers were picketing at each of the customer doors, so Nalua’i went to the camera room, where the asset protection team monitors both the outdoor and indoor security cameras. (Tr. 402) Macy’s has security cameras posted outside each of the en- trances to the Union Square store. They also have security cameras inside the store, which move 360 degrees. These cam- eras record video only and were operating throughout the dura- tion of the picketing. The company has a security room where the cameras broadcast a live video feed and where tapes of the videos are maintained; the videos can be searched by date and time. When Nalua’i went to the security room and looked at the cameras on September 3, she testified that she saw various people she had worked with over the years, along with other people that she did not know, picketing. (Tr. 197–200, 246, 282–284, 290, 403) Nalua’i testified that at one point on September 3 she exited the Geary street doors and found herself immediately surround- ed by picketers. Nalua’i said that she could not move forward and was trapped against the glass door with her arms pinned to her sides because of the picketers. According to Nalua’i, the picketers were inches away, and in some cases they brushed up against her, while blowing bullhorns directly into her face and ears. Eventually, Nalua’i testified that she was able move one of her hands backwards at an awkward angle to grab onto the door and inch her way back into the building. In a pre-hearing affidavit, Nalua’i gave a less intense description of what oc- curred, and did not mention the picketers either brushing up against her or blowing bullhorns directly into her face and ears. (GC. 35 #01213) Nalua’i said that she reported this incident to Uhe. Nalua’i reviewed the security camera footage for the day but did not see the incident on the security video. She did not file a police report regarding this incident. (Tr. 420–421, 452, 462–463) Nalua’i also testified that on September 3, while she was at the Stockton Street entrance to speak with one of the VSOs, one of the picketers used a megaphone and started yelling “the fat one’s back. Here comes the fat one. Look she’s too fat to fit through the doorway.” (Tr. 438–439) Nalua’i said she rec- ognized the person with the megaphone as someone who worked at one of the other Macy’s locations. (Tr. 439–440, 467) On November 7, Nalua’i claimed that during the picketing she was hit with a picket sign being held by Union business agent Jay Vega. According to Nalua’i, she was outside the Geary Street doors repositioning stanchions which had been erected by Macy’s. She adjusted one of the stanchions and said that Vega was “coming around” with a picket sign resting over his right shoulder. As Vega got closer, Nalua’i said that he moved the picket sign from his right shoulder over to his left shoulder, bringing the sign forward with both hands and then moving it over to his other shoulder. When Vega passed Nalua’i, and as he was moving the sign from one shoulder to another, Nalua’i testified that his picket sign struck her shoul- der. After the sign hit her, Nalua’i said that she told Vega “you can’t hit me, that’s assault,” but Vega did not respond to her. Nalua’i claims that the picket sign hit her with enough force that it partially knocked her backwards, and she had to ice her shoulder later that day. However, she did not see a doctor. For his part, Vega denied ever hitting anybody with a picket sign, or that anyone claimed he had done so. (Tr. 431–433, 436, 466– 467, 796–797) Although Nalua’i characterized what occurred as an assault, she did not report the incident to the police or file a police re- port. Instead, Nalua’i testified that she reported it to the off- duty police offer at the store but nothing came of it.9 Nobody was ever given a citation or arrested regarding this event. Also, Nalua’i testified that she never checked the security camera video to see if this incident was captured by the cameras.10 (434–435, 464, 467–468) b. The Union’s use of noise devices The Union used a variety of noisemakers throughout the 9 Macy’s hires uniformed off-duty police officers to work inside the Union Square store to deter shoplifting, address issues involving dis- ruptive customers, to help the Macy’s security staff make apprehen- sions, and if necessary arrest individuals who commit crimes inside the store. (Tr. 441, 442–443, 470) 10 Regarding this incident, while I believe that Nalua’i’s shoulder made contact with a picket sign, I do not credit her version of events, nor do I find that anyone purposefully hit her. Nalua’i was generally overly dramatic throughout her testimony, she never checked the secu- rity cameras for video of the incident, no videos from that day were introduced into evidence even though cameras are pointed right at the Gary Street entrance, and Vega credibly denied ever hitting anyone with a sign. Instead, I believe Nalua’i walked into a group of picketers who were patrolling in front of the store and her shoulder incidentally contacted one of the picket signs as she was repositioning the stan- chions. As for the September 3 incident, the evidence shows the pick- eting did not start until September 4. And while Nalua’i may have gone outside one day and felt surrounded by picketers, the evidence shows that throughout the strike both the picketers and Respondent were trying to assert control of the area in front of the customer doors. The picketers believed they had the legal right to conduct picketing activity in this area, while Respondent was trying to clear the picketers from this area to limit their interactions with customers. Nalua’i feeling surrounded by the picketers, or being subjected to the horns they used, was simply the attendant consequence of both sides trying to maintain what they believed was their legal right to be in this area. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 8 picketing, including horns, whistles, sirens, drums, and a metal gong. Because of the noise, Macy’s purchased earplugs and distributed them to employees working on the first floor. (Tr. 215–216, 426–427, 522; R. 3, 4, 5, 8, 10, 13, 41) i. Use of air horns at the Geary Street entrance At the Geary Street entrance the Union used a type of home- made airhorn unit consisting of a compressed air tank on wheels; a wooden frame holding four large airhorns was con- structed on top of tank. At least one of the airhorns could be removed from the frame and was attached to a long air hose. This portable horn allowed a picketer to walk around, or stand at the Geary Street entrance, honking the airhorn while it was connected to the compressed air tank that was stationed near the street. Sometimes the Union used the airhorns as a stand- alone unit, with the compressor and frame stationed somewhere on the sidewalk, and sometimes they would remove the porta- ble horn and walk around honking it. (Tr. 207; R. 5, R. 41) Multiple witnesses testified about the Union honking the air- horn constantly during the picketing. Amanda Nalua’i testified that she saw several picketers blowing horns in the faces of customers at the Geary Street entrance and said that she suf- fered from headaches, dizziness, and nausea because of the noise. David Plew testified that, after customers walked through the doors, picketers would use their signs to keep the doors open so they could honk the horn into the store. (Tr. 425–426, 464, 491) Kevin Uhe testified that picketers used the removable horn to honk whenever a customer opened the door, surprising the customer and allowing the sound to echo throughout the build- ing. Uhe said that he witnessed noisemakers and horns being blown directly into customer faces as they entered and exited the store and also testified that picketers blew the air horn at him as he walked out the Geary Street entrance on several oc- casions, making him feel dizzy or off balance. (Tr. 195, 206– 207, 221) According to Uhe, he tried to address the noise issue with picketers numerous times, but they would respond by either blowing the horn in his face, saying “fuck you” or telling Uhe that they “don’t have to fucking listen to you.”11 (Tr. 220–221) After being exposed to the noise, Uhe said that his ears were ringing, he had migraines, and had difficulty sleeping or con- centrating. (Tr. 222) Gilbert Saavedra testified that picketers used the removable airhorn while he opened doors for customers, and the noise would echo throughout the department. Saavedra also said that he observed picketers holding the horn and angling it at cus- tomers, who were less than a foot away, as they were walking through the doors. According to Saavedra, the horn was di- rected at him several times as he tried to let customers into the store. Even though he wore ear plugs, Saavedra said they did not completely block out the noise as the horn was blasted near 11 Uhe also testified that, when he asked picketers to not move the stanchions, or to follow Covid-19 protocols, they responded by saying “fuck off,” or “fuck you,” or calling him a “fucking clown.” In all, Uhe said that he was told to “fuck off” nine times during the strike. Howev- er, he could only identify one person who told him to “fuck off.” (Tr. 189, 205, 300, 351–352; R. 5) his head. (Tr. 128–135) Saavedra described the picketing as very intense and the noise very loud and consistent during the first three weeks of the picketing, with the picketers standing in front of the Geary Street doors and blowing the airhorn daily. However, towards the end of September/early October, Saavedra said the atmos- phere started to calm down and the picketing was more orderly. The employer erected stanchions in front of the various en- trances and the picketers were patrolling in circles. While the picketers were still making noise, and honking the airhorns, Saavedra said that they were no longer putting the horn into the doors when they opened. (Tr. 120, 125, 131, 155, 157–159) ii. Video of a picketer blowing a whistle Kevin Uhe testified about an incident saying it involved a picketer blowing a whistle “directly into a child’s ear.” (Tr. 196) This incident was captured on a Macy’s security camera at the Stockton Street entrance. The incident was reported to Uhe by a company asset protection manager and Uhe then watched the security video. Uhe did not recognize the person blowing the whistle, but said the person had been picketing outside the store on multiple occasions. (Tr. 199–200) The Macy’s security video was introduced into evidence. It shows three picketers standing/walking around on the sidewalk outside the Stockton Street entrance. The video is dated Sep- tember 5, 2020 and time-stamped at 5:16 p.m. Two of the picketers are standing/walking near the street, holding picket signs; one of them also has a megaphone. Another picketer is walking near the store entrance and is wearing a green hat, T- shirt with the union logo, and is also holding a picket sign. At one point the picketer with the green hat stops about one or two feet from the door, looks around, and puts on a pair of ear phones/ear muffs. He then takes a whistle out from his pocket, removes his face mask, and puts the whistle in his mouth. At the same time, it appears that one of the other picketers is speaking into the megaphone. As the picketer with the mega- phone stops speaking, the one with the green hat blows a short blast of his whistle in the direction of a boy who is skateboard- ing by. Based upon the grid-pattern in the sidewalk, the skate- boarder was about 2 to 3 feet away from the picketer when he blew the whistle.12 The boy, who was with a friend that was also skateboarding, stops, turns around, points to his ear and appears to say “what the fuck.” He then unscrews the top off of a water bottle and starts throwing water on the picketer while 12 I take administrative notice of the City and County of San Francis- co Department of Public Works Order No. 172,596, Sec. III(A)(2) which states that the standard sidewalk scoring pattern for downtown sidewalks shall be a three-foot square grid pattern. See https://sfpublicworks.org/sites/default/files/4078- Order%20No.%20172%2C596%20- %20Downtown%20Streetscape.pdf. (last accessed on April 4, 2022). Newcomb v. Brennan, 558 F.2d 825, 829 (7th Cir.1977) (“matters of public record such as . . . city ordinances fall within the category of ‘common knowledge’ and are therefore proper subjects for judicial notice.”); Cota v. Maxwell-Jolly, 688 F.Supp. 2d 980, 998 (N.D. Cal. 2010) (“Court may properly take judicial notice of the documents ap- pearing on a governmental website.”). I have also reviewed the side- walk scoring patterns in photographs and videos to confirm various other distance estimates in this matter. MACY’S INC. 9 also apparently saying “fuck you bitch.” The picketer tries to avoid the water, points at the boy and says something. At this point a Macy’s asset protection manager has walked out of the Stockton Street door and can be seen saying something to the picketer, who is speaking back to him. The boy with the water bottle can be seen pointing to his ear while his friend seems to be saying something to both the picketer and the Macy’s man- ager. The Macy’s manager goes back into the store, and the boy once again starts throwing water at the picketer while say- ing something to him. Having used up most of the water in his bottle, the boy walks past the picketer and out of the view of the camera, to presumably throw the water bottle away. As he walks back into the camera view, the picketer and the boy can be seen speaking/disagreeing with each other. The boy starts walking down the street, holding his skateboard in one hand, while is friend starts skateboarding behind him. As he gets about 6 to 10 feet away from the picketer, the boy picks up a picket sign that was leaning up against the building. He walks down the street some more and then starts smashing the picket sign on the sidewalk. Meanwhile, the picketer puts the whistle back into his mouth and starts blowing it again. The other two picketers stood and watched the entire incident, which lasted just over a minute. (R. 13) 3. Allegations that Union members blocked ingress and egress of customers and delivery trucks. a. Blocking deliver trucks The Union Square store has a driveway entrance on O’Farrell Street for delivery trucks. The entrance has a roll-up steel garage door that is closed unless a delivery is being made. Behind the garage door, just inside the entrance, is a yellow barrier gate arm and a guardhouse where a Macy’s VSO is stationed. As a delivery truck pulls up, the guards rolls-up the garage door and then lifts the gate arm. After entering, trucks follow the driveway down one level to a loading dock in the basement of the store. The driveway leading into the loading dock intersects a public sidewalk. Macy’s has a security sur- veillance camera pointed at the entrance. (Tr. 241–246, 353– 354; R. 1, R. 9, R. 45, p.1; ALJ. 2) Kevin Uhe testified that that picketers would picket at the loading dock entrance. According to Uhe, when delivery trucks stopped to wait for the garage door to open, picketers would walk down the street from the customer entrances and stand in front of the garage door picketing. Uhe said this caused deliv- eries to be delayed and that sometimes delivery drivers turned around and left. (Tr. 241, 247–248) For example, Uhe testified that between September 7 and September 9, deliveries for the Cheesecake Factory, a restau- rant that leases space from Macy’s, did not occur because the delivery drivers turned around. Also, he said that there were instances where UPS drivers did not service the store on partic- ular dates. Uhe said that certain food and freight deliveries had to be rescheduled from afternoon to early mornings to avoid the picketers According to Uhe, this impacted operations as it created a backlog of items that needed to be shipped out, and at times the Cheesecake Factory ran low on some items or did not have a full takeout menu. In all, Uhe estimated that between 15–20 deliveries did not occur because of the picketing. (Tr. 247–250, 323–324, 470–471) Uhe ultimately admitted that the UPS drivers are unionized and they refused to cross the picket line set up by Local 32, which interrupted deliveries. Eventually Macy’s had to have these deliveries made by UPS managers. And, even though Respondent claims that deliveries were missed because picket- ers were “blocking the receiving dock” (Macy’s Br., at 14), no security camera footage from the cameras at the dock entrance was introduced into evidence even though Uhe admitted the cameras were working and that he reviewed footage from these cameras. (Tr. 246, 355–356) The lack of security camera video showing anybody actually blocking the driveway, along with Uhe’s admission that unionized UPS drivers refused to cross the picket line established by Local 39, leads me to find that the various deliveries that did not occur were because the delivery drivers refused to cross the picket line, as opposed to them being physically blocked from entering the driveway by the picketers. b. Blocking ingress and egress at the customer doors Relying upon the testimonies of Gilbert Saavedra, Amanda Nalua’i, and Kevin Uhe, Respondent asserts that the picketers blocked customer ingress the egress during the picketing. (Ma- cy’s Br., at 12–13) During his testimony Saavedra was asked to describe instances of picketers obstructing a customer’s abil- ity to enter the store in early September. According to Saa- vedra, he witnessed picketers on O’Farrell Street standing right in front of the doors in the first few weeks of the strike. Saa- vedra said that if he was not present to open the doors, custom- ers would have to try and push past the picketers. Saavedra testified that things calmed down in October; by then the com- pany had placed stanchions at the doors which provided some distance between the picketers and the doors. (Tr. 124–125) Nalua’i testified that, on September 3, at the Geary Street en- trance, before the store opened the picketers were walking a circle holding picket signs. However, once the store opened, she said that one specific picketer, who she did not know, con- tinuously rushed the door to block customers from entering and exiting the building. She also said that several other picketers stood stationary, blocking the Geary Street entrance, sometimes standing less than a foot away from the doors. At the other entrances on September 3, Nalua’i said that she observed pick- eters standing stationary, about 5 feet away from the entrances. However, when the doors would swing open for a customer to enter or exit, these picketers would get much closer to the doorway. Nalua’i further testified that that throughout the strike she observed picketers standing directly in front of the doors and blocking the doorway when customers were trying to enter and exit the building. Nalua’i identified several specific individuals who she said blocked the entrances to the store on September 3 and November 7. (Tr. 403–407, 411, 417–418, 462) Uhe testified about a video Respondent introduced into evi- dence, saying it accurately reflected how the picketers were marching in front of the Geary Street entrance. The Geary Street entrance is concave, and consists of four sets of large glass double doors, with a large glass window on each end of the entrance. On the ground, in front of the entrance area, is a DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 10 large decorative oval. The middle of the oval delineates where the public right of way starts/ends. From the middle of the oval to the doors is Macy’s property, and from the center of the oval to the street is part of the public sidewalk. A review of the evidence shows that the oval is about 36–40 feet long, and from the center of the Geary Street entrance to the middle of the oval is between 8 to 10 feet. (Tr. 184, 537–539, 542–543, 546; R. 44, R. 45, p. 6). Regarding the video of the picketers, Uhe testified that it shows them “walking the loop, blocking all the customer doors.” (Tr. 184) However, while the video does show picket- ers patrolling in an oval loop in front of the Geary Street en- trance, it does not show anyone actually standing stationary blocking doors. (R. 17) It shows picketers patrolling in a tight formation, moving in an oval loop. It appears the picketers followed the outline of decorative oval in front of the entrance area while marching. (R. 17, R. 45, p. 5) Uhe further testified that, in front of the O’Farrell Street en- trances, the picketers stood in a cluster of five to seven people, in the middle of the doors, so customers could not easily enter the store without coming into “close, intimate contact” with the picketers. And on the Stockton Street entrance, he said the picketers would lean against the awning posts, from edge to edge, blocking the entrance. (Tr. 222) At some point after September, Macy’s placed stanchions with retractable belts at each entrance to allow enough room for customers to come and go outside of each door. How success- ful the stanchions were at controlling the entrances was subject to different testimony. Saavedra said the stanchions provided distance between the picketers and the doors and that after the stanchions were placed at the doors, things calmed down. Uhe and Nalua’i, on the other hand, testified the stanchions did not help, saying the picketers would move them or retract the belts between each station. (Tr. 124, 187–189, 223–224, 429–430) Eventually, in mid-November, Macy’s hired a private securi- ty guard service. The security guards were positioned outside the Geary Street entrance and were instructed to remind picket- ers of Covid-19 protocols, and to maintain room for customers to enter and exit the store. In a pre-hearing affidavit, Nalua’i said that after the security guards were hired, to her knowledge there were no more issues with stanchions being moved. (Tr. 224, 429; GC. 35 #01218) No video from the Union Square store’s security cameras was entered into evidence to corroborate the testimony about picketers blocking customers, despite the fact that there are security cameras covering all the entrances. The only videos in evidence, which were introduced by Respondent, show custom- ers entering or exiting the store without any problems, notwith- standing the presence of picketers on the sidewalk. (R. 10, 13, 18) Given the fact that picketing occurred every day for three months, there is no doubt there were individualized instances of picketers standing in front of doors, or momentarily standing in front of customers who were entering or exiting the store. However, the lack of security video footage leads me to find that these instances were one-off occurrences that happened primarily during the first few weeks of picketing. I credit Saa- vedra’s testimony that things calmed down by October, after the stanchions were placed at the doors. Also, given the size of the doors, and the number of different store entrances, while a customer may have been momentarily inconvenienced, at times, by having to walk around a picketer, the record evidence does not support a finding that customers were unable to enter or exit the store because of the picketers. c. Blocking curbside pickup Kevin Uhe testified that picketers disrupted Respondent’s customer curbside pickup by parking their vehicles in the curbside pickup area, which was located outside the middle O’Farrell Street customer entrance. During the Covid-19 pan- demic, Uhe said that curbside pickup became a much bigger part of the company’s service. (Tr. 250–251; R. 1; R. 45 p. 3) According to Uhe, every day during the picketing, picketers parked their cars in the spots designated for curbside pickup. Uhe claimed that this resulted in several orders being cancelled because Respondent could not deliver the orders to customers. (Tr. 251) Uhe said that he initially asked picketers to park elsewhere, but they did not listen. He then called the City of San Francis- co parking services and asked them to enforce the parking regu- lations. According to Uhe, he called the City of San Francisco parking services every single day, but said that sometimes it would take them up to 90 minutes to respond. Uhe also said that, when they did show up, picketers would move their cars after being threatened with a ticket, and after 45 minutes would once again park in the curbside pickup location. (Tr. 251–252) Although Uhe testified that parking officers threatened to ticket vehicles, there is no evidence in the record of anyone being ticketed. The curbside parking area was located on O’Farrell Street, and was not on Respondent’s property. It is unclear from the record whether the City of San Francisco had designated this area as a general loading zone, a commercial loading zone, or if the public could park in this area at certain times, notwithstanding Macy’s having designated this location for curbside pickup. 4. Allegations that Union members ignored Covid-19 safety guidelines Respondent asserts that picketers ignored the mask-wearing and social distancing guidelines established by both Macy’s and governmental authorities. (Macy’s Br., at 16) Kevin Uhe testified that when the picketers were patrolling or picketing they were not keeping a six foot distance from each other, they did not wear masks consistently, and sometimes customers were forced to walk past the picketers at a very close distance. He also testified that the picketers did not observe Covid-19 protocols when they interacted with him. Amanda Nalua’i also testified that there were times when picketers were either not wearing their face masks, or not wearing them properly, while picketing. Despite Uhe’s claim that Covid-19 protocol viola- tions occurred hundreds of times there is no evidence that Re- spondent reported these violations to the San Francisco De- partment of Public Health, which was responsible for enforcing these regulations and had a unit that conducted inspection and enforcement activity. (Tr. 194–195, 297–299, 413–414; GC. 21, p. 25) MACY’S INC. 11 5. Allegation that union members intentionally did not return fleet vehicles as directed Relying upon the testimony of Alan Westenberger, Re- spondent claims that Local 39 engineers purposely ignored written directives to leave their fleet vehicles at specified areas when the strike started. (Macy’s Br., at 11) Westenberger is Macy’s Senior Director of Store Environment, overseeing maintenance, equipment, and construction for approximately 200 stores. Local 39 engineers work in about 40 of these stores. (Tr. 535, 588–589) Westenberger testified that Macy’s owns a fleet of vehicles that Local 39 engineers use during work hours to go between stores when needed. About ten engineers had access to these cars as part of their normal duties. Westenberger further testi- fied about a memorandum he instructed a subordinate to send to the Local 39 engineers. (Tr. 561–565; R. 14) The memo- randum is undated and is titled “L-39 Asset Collection.” It reads as follows: Good Morning Thanks you for getting on this call this morning. We know that this is a very challenging time, labor negotia- tions are going on right now and we are hopeful that an agreement is made and a new contract goes into place. With the potential work disruption or strike we need to make sure we put procedures in place to insure it is business as usu- al. In the event that a work disruption event occurs, we would like to take the following actions an announcement is made.to all our supporting colleagues Colleagues to turn in all your keys, phones, and laptops to: store manager we want this to be as organized as possible so we can centralize and bring these items in so we can distribute them back when work resumes. Please have all fleet vehicles placed at the following location, Downtown Sacramento, Concord, Pleasanton, Modesto; Keys should also be giving to Store Manager Thank you for your partnership. Again we hope that there is no labor disruption or strike. According to Westenberger, the company has a messaging application that allows Macy’s to send out messages to certain specific groups of employees. Westenberger said that he be- lieved this messages was placed on the messaging application to be sent to the Local 39 engineers. However, Westenberger did not draft the memorandum nor did he personally send it to employees. Instead, he testified that he saw the document when it was in a “draft stage” and was “informed that it was distributed and received by the colleagues . . . by my team.” (Tr. 554) Westenberger said that the company has a communi- cations team that actually does the distribution. However, he never explained who specifically is on this team, who told him the message had been distributed, or which employees it was sent to. There is no direct or credited evidence in the record that this message was actually sent to, or received by, the Local 39 engineers. And, it appears the message introduced into evi- dence was still in a draft form based upon the grammatical and punctuation errors in the document. (Tr. 554–557) According to Westenberger, some Local 39 engineers re- turned their car keys, but three of them did not. Westenberger testified that six engineers left their cars at the proper locations, but four engineers did not do so. This resulted in the company having to send out a vendor to pick up the four cars and drive them to a central storage location. According to Westenberger, the total cost to do so was $2,000. He also said that one vehicle was impounded and the tow company charged about $600 to release the car. Westenberger did not investigate this incident himself, but learned about what occurred from Hal Goldberg and Deborah Parker, who were members of his executive team. (Tr. 557–558, 562–563, 595–596) 6. Allegations that union members clogged a floor drain at the Union Square store Kevin Uhe testified that on September 6, water was over- flowing from the fifth floor down to other floors because a floor drain in the fifth floor alterations room that was packed full of paper towels. Uhe said the alterations room is located in a stock room behind a locked door just off of the men’s depart- ment sales floor. The drain is in the back of the alterations room near some boiler equipment and piping. (Tr. 256–259; R. 6) Uhe concluded that the plugged drain was caused by a Local 39 engineer. He based his conclusion on the fact the clog hap- pened in a restricted area, behind a locked door, and said no- body was working in the alterations department that day. Also, Uhe testified that the floor drain is located near equipment the engineers would routinely use and test. According to Uhe, if the engineers were not on strike, addressing this issue would be within the purview of their responsibilities. During cross- examination, Uhe acknowledged that he provided two pre- hearing affidavits to the NLRB and that neither affidavit in- cluded anything about a flood in the fifth floor alterations room. (Tr. 259–261, 317–319, 357–358) 7. Allegation that Macy’s reasonably believed union members intentionally shoved refuse down a drainpipe causing sewage to backup at the Everbowl restaurant On O’Farrell Street, directly east of the loading dock drive- way and about 10 to 15 feet away from the employee entrance, Macy’s leases space to a small restaurant. At the time of the strike the restaurant was named Everbowl; previously the space housed a yogurt shop named Pinkberry. Because of the pan- demic, the Everbowl restaurant was closed at the time of the picketing, and had been closed since April 2020. (Tr. 264, 323, 330–331, 374–375,772; ALJ. 2) a. Sewer backup occurs at the Everbowl Kevin Uhe testified that on September 23 he received a call that water was running out of the Everbowl restaurant. Uhe DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 12 said he was getting ready to leave the store for the day when he received a call about the backup. He went directly to O’Farrell Street and saw raw sewage running across the sidewalk. Uhe opened the door to the Everbowl and additional liquid, sludge, and debris came running out; there was also a terrible smell. Uhe initiated an emergency work order for a plumber and a restoration company to respond in order to identify and address the issue. (Tr. 264, 266, 371; R. 19) Between the Macy’s employee entrance and the Everbowl restaurant are two square sewer vents. These vents, which are about a foot apart, are located 10 to 12 feet west of the Ever- bowl’s front door and about four feet away from the curb. The vents are supposed to have square metal grate covers, to cover the four inch vent pipes which lead to the sewer. (Tr. 267, 272, 285–286, 369; ALJ 2, R. 45, R. 19) Uhe testified that a plumber arrived and used a 500-foot snake to clear the backup. According to Uhe, the plumber iden- tified the issue causing the backup as being a T-shirt and water bottle in one of the vent pipes. A series of pictures were intro- duced into evidence, showing the sewage in the restaurant and on the sidewalk, the cleanup efforts, a plumbers snake, a plumbers snake having retrieved some type of yellow netting or cloth, one of the vent pipes, one of the vent pipes being snaked, a plastic bottle, a T-shirt, and a trash bag along with a small unidentifiable object.13 (Tr. 265–270, 365; R. 19) In his testimony, Uhe identified the pipe that was plugged as one of the two sewer vents outside the Everbowl, saying that “[d]own this pipe is where the T-shirt and the water bottle was found that caused the backup.” (Tr. 267) Uhe was not present when the plumber actually pulled the items out of the pipe. Instead, Uhe testified that he greeted the plumber, but then went back into the store to work. After the plumber had fin- ished, he said the plumber called him to come outside and he saw various items placed on the sidewalk next to the open vent pipe; the plumber told him “this was what was down the drain that caused the backup.” (370–372) (Tr. 267–269) Uhe said that he was not sure where the plumber actually in- serted the snake to clean the backup. Nonetheless, he testified that the items in question came out of the vent pipe on O’Farrell Street just outside of the Everbowl restaurant. (Tr. 367–369; R. 19) Based upon Uhe’s testimony, along with the pictures intro- duced into evidence, the plumber retrieved a plastic bottle, a T- shirt, a trash bag, a clump of yellow netting/webbing or cloth, and another small yet unidentifiable item from the sewer that evening. Uhe estimated that the cost of the damage was “sev- eral thousand dollars for . . . the food and utensils, [and] plates.” (Tr. 270) That being said, he did not explain why or how these items were in the restaurant since it had been closed since April 2020. (Tr. 267–270, 323; R. 10 pp. 4, 10, 18, 21) b. Uhe’s pretrial declaration and affidavits Regarding this incident, Uhe provided a declaration that was filed with the California State Superior Court on October 7. In that declaration he states: 13 Although Uhe testified about all the pictures, it does not appear that he actually took the photographs. (Tr. 369) At around 8 p.m., the plumber was able to dislodge a knotted up T-shirt and a large plastic water bottle, which came out from a drain pipe opening on Geary Street, just five feet from where Defendant had been picketing every day. The plumber deduced that the items must have been deliberately put in the drain pipe on Geary Street because the only other plausible explanation would be to flush the items down the toilet from inside the restaurant. (Tr. 388–389) This exact same declaration was included as an attachment to an affidavit that Uhe provided the NLRB. (Tr. 390–391) In another affidavit that Uhe gave to the NLRB, dated November 24, regarding this incident he stated that: Macy’s had sewage backing up into the store. We called the plumber, who used a 500-foot snake through the drain and pulled out a T-shirt and water bottle that came out on the other end at a drainpipe on Geary, within feet of where the picketers picket. The plumber deduced that the only way the items could have caused the backup is if they were shoved down the drainpipe on Geary. (Tr. 395) c. Video of picketers on September 22 Uhe said that on September 24 he reviewed the security vid- eo for the entire day of September 22, the day before the back- up occurred, to try and identify who was responsible for what happened. A 6 minute and 40 second video clip from Septem- ber 22 was introduced into evidence. The video is from the security camera located next to the freight delivery driveway on O’Farrell Street. It shows the delivery entrance, the employee entrance, the sidewalk in front of the Everbowl restaurant, part of the sidewalk as it proceeds towards Stockton Street, and part of O’Farrell Street. Uhe testified that the clip is from sometime between 6:30 p.m. and 7:00 p.m. (Tr. 246, 273–274, 280–281, 287, 374; R. 18; ALJ. 2) The video starts just as the picketers are beginning to pack up for the day. Two picketers are standing near the curb just outside the employee entrance while a group of three picketers are standing about 30-40 feet away towards Stockton Street. A pickup truck pulls up, parks at the curb across from the em- ployee entrance, and another two picketers get out. On the sidewalk across from the employee entrance is a large inflatable character, which looks to be somewhere between 8 to 10 feet tall and is tied to a street sign for stability. Next to the inflata- ble is a garbage can on rollers, with picket sign handles sticking upwards from the top of the can. The two sewer vents on the O’Farrell Street sidewalk are not visible; the garbage can is obstructing the view of one vent, while the inflatable character is obstructing the view of the other. The four picketers continue packing everything up, de- flating the blowup character, loading it into a carrying case, and placing the picket signs along with other items into the truck bed. After the blowup character is deflated and put in its carry- ing case, one of the picketers puts the case into the garbage can. At this point both street vents become visible; the vent closest to the Everbowl is missing a grate cover. Two of the picketers put a few other items into the garbage can and appear to be talking with their colleagues who are outside the view of the MACY’S INC. 13 camera. At one point, the picketer who was driving the truck comes back into the camera angle; he puts a backpack into the cab of the truck and starts talking with two of the other picket- ers on the sidewalk. While he is talking, the driver of the truck takes a step backwards and steps into the open/uncovered sewer vent. He stumbles, steps back away from the vent, looks down, and makes a motion with his hand towards the open vent. One of the picketers then walks up towards Stockton Street and talks with the three other picketers who are just standing around. Soon after, all four start walking towards the pickup truck holding their picket signs. As they are walking down the sidewalk to join their colleagues, one of the picketers is using the handle of his picket sign as a type of cane, holding the top of the sign with one hand and striking the butt of the handle on the sidewalk with each step. As he approaches the open vent, he plunks the handle of his sign down the vent. The handle drop down the open vent until it is stopped by the base of the sign. He leaves it there for about two seconds, then lifts the sign up and joins the others who are loading their signs into the bed of the truck. After they put their picket sings into the truck bed, the other picketers seem to notice, gather around, and look at, the open vent. One of them takes a cell phone out of his backpack, leans over, and uses the flashlight on his phone to look down the vent. He looks down the vent for about 10 seconds, as three of the other picketers gather around and intermittently look at the open vent over his shoulder. The driver of the truck, who had earlier stepped into the opening, also leans in to look at the vent for a few seconds. The picketer with the cell phone then stands up and puts his phone away. The picketers seem to talk for another 10 seconds, while the driver gets into the pickup. The picketers then turn their attention away from the open vent and mill around chatting with each other while the pickup truck drives away. The remaining picketers then go their separate ways. Three walk towards Stockton Street, with one of them pushing the garbage can. Two of the picketers walk towards Powell Street and the video ends. The video does not show anybody putting anything into the sewer vents. Uhe testified that he reviewed the security video for the en- tire day of September 22, going back to around 5:00 or 6:00 a.m., well before the picketers arrived. Uhe said that he did not see anybody put anything down the sewer vents on the video he reviewed. Uhe also said that, based on the video he examined, he did not know whether both sewer vents were covered by grates at 6:00 a.m. that morning. Uhe also testified that the video he reviewed showed a homeless person looking down the open sewer vent at about 10:00 p.m. Uhe admitted that the homeless are frequently around the Macy’s store, including in front of the employee entrance on O’Farrell Street. (Tr. 285– 286, 334–335, 374) d. Other incidents involving the space occupied by the Everbowl During his testimony, Uhe denied that, in the past, there had been any other sewer backups and/or plumbing overflow issues involving the Everbowl restaurant. However, the General Counsel introduced into evidence a printout from Respondent’s work-order tracking system revealing multiple sewer backups and/or plumbing overflow issues in the restaurant space used by the Everbowl going back to at least August 2018; this contin- ued even after the picketing had ended. The printout also shows instances when the grates were missing from the vent covers. Specifically, the printout shows that: on August 22, 2018, a work order was placed to “snake [the] drain outside Pinkberry.” On July 16, 2020 a work order was placed stating that the main sewer line was backed up and black water was inside the Everbowl restaurant. On July 17, 2020 a work order was placed saying that a clogged plumbing pipe was causing overflowing black water in the Everbowl. On November 12, 2020 a work order notes that a drain cover near the Everbowl restaurant was missing and needed to be replaced. On April 8, 2021, a work order marked “Urgent” said that there were 2 plate covers outside of the employee door that were missing and needed covers. On April 7, 2021 a work order was placed showing “sewage coming up from the floor drain” in the Ever- bowl. And on April 13, 2021 a work order notes that two drains in the Everbowl overflowed and sewage black water was coming up from the drains. The printout also shows various other sewer line backups, clogged drains, or flooding, occurring in other parts of the store, unrelated to the Everbowl restaurant, including sewer problems occurring on Geary Street.14 Finally, the printout states that on August 25, 2020, Macy’s had issues with the main sewer line on O’Farrell Street and needed to “jet the line.” (Tr. 323–328; GC. 28) e. Uhe blames the Local 39 engineers for the sewer backup During his testimony, Uhe attributed the sewer backup at the Everbowl to the Local 39 picketers on O’Farrell Street, saying that he believed the picketers put something down the drain on September 22. According to Uhe, as part of their job duties, the Local 39 engineers deal with sewage backups, and have a “working knowledge of all pipes and all branches inside the store.” (Tr. 269) Uhe said that the picketers were picketing directly over the sewer vents, “with their feet actually touching them,” and that the day before the backup, one of the picketers used “his stick to push -- put down the hole. They take pictures of it, and then the next day, it floods.” (Tr. 288) After the Everbowl incident, Macy’s contacted store management throughout Northern California asking them to notify Westen- berger’s team of any incidents, concerns, or maintenance is- sues. (Tr. 284–285, 287, 566–567) 8. Allegation that union members tampered with a sump-pump. Alan Westenberger testified that on October 9, Macy’s re- ceived a report from store managers about a significant amount of water in the basement of the store located in Walnut Creek, California; a vendor was dispatched. According to Westen- berger, the vendor provided feedback saying that, in their opin- ion, the sump pump was tampered with and not working properly because a foreign object was placed in the float as- sembly.15 Westenberger said that the vendor repaired the 14 See work orders for: 8/20/18; 8/23/18; 7/26/19; 7/31/19; 8/1/19; 8/21/19; 10/11/19; 8/25/20; and 2/21/21. 15 Regarding the hearsay nature of the testimony involving the al- leged acts of sabotage, and what third parties reported to Westenberger DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 14 pump, but ten days later the same issue occurred. (Tr. 567– 571) The sump-pump in question is located in the subbasement of the Walnut Creek store. To access the subbasement, someone has to walk across the sales floor and through doors that lead to the “back-of-house” which is an area where the stock and stor- age rooms are located. A set of stairs in one of the storage rooms leads to the subbasement and the sump pump. Westen- berger attributed the sump pump problems to the Local 39 en- gineers, even though they were on strike at the time. Westen- berger said he blamed the engineers because the sump pump is difficult to access, the engineers knew where it was located, and knew how it operates because they maintained the pump as part of their general duties. (Tr. 571–572, 575–576; R. 22) Westenberger was not involved with the investigation of the incident, he was only copied on the vendor’s findings. The Walnut Creek store has security cameras and there was video footage for the days in questions. However, no video from the store was introduced into evidence. While Westenberger claimed that, to his knowledge, there was no video footage of this incident, nobody who actually reviewed the security video testified in this matter about what the video did or did not show. And, Westenberger said that he did not ask anyone if security cameras showed who might have been responsible for the inci- dent. (Tr. 609–610) 9. Allegation that union members tampered with the irrigation system at the Sunrise store Macy’s operates a store at the Sunrise Mall, just outside Sac- ramento, California, referred to as the Sunrise store, which employs Local 39 engineers. In October, while the engineers were on strike, water damage occurred in the store’s “top-of table” department; this department sells plates and dinnerware. (Tr. 579–580, 582, 588, 590; GC. 2, p. 25; R. 23) According to Westenberger, the exterior of the building has an irrigation system and the flood occurred because a valve for this system was left open. This caused water to accumulate and seep through the outside wall and onto the selling floor. West- enberger said the valve was supposed to be shut because the company had removed all the landscaping and vegetation from the area. (Tr. 579–580, 612, 584) Westenberger did not personally investigate this incident. Moreover, when asked if he knew whether anybody conducted an investigation, he said “that would fall under asset protec- tion,” but he did not identify anybody in particular who actually investigated the matter. Nor did Westenberger explain how he determined the cause of the flood. Westenberger also did not know if anybody from the asset protection team looked at any of the security camera footage, or whether there were, in fact, security cameras in the area. (Tr. 612–613) Regarding the valve, Westenberger said that a special tool was needed to open and close the valve, and that the Local 39 engineers had access to this special tool when they were work- ing. That being said, Westenberger testified that he has never and Uhe, Respondent’s stated that the testimony was not being offered to show that the incidents actually occurred. Instead the testimony was offered to show what was being reported to Macy’s officials. (Tr. 216– 217, 568) seen this special tool, did not know what it looked like, and he could not describe the tool. When asked where the valve for the outdoor irrigation system was located, Westenberger said that he could not recall if the valve was located inside or out- side of the store (Tr. 580–581, 612–613) A report from a remediation company was introduced into evidence. Westenberger said that he received a copy of the report, but he could not recall exactly when. Although West- enberger testified that the flood happened on October 20, the report is dated October 19, and says that the scope of work was for “Emergency Water Damage Services.” The report states that it will take the restoration company three days to complete the job. On the first day the restoration company contained the water damage, applied antimicrobial decontamination agents, sanitized the floors and walls, detached the carpet base, and set up drying equipment consisting of air movers and dehumidifi- ers. The next day the report says that the company will inspect for moisture, and on the last day conduct a final decontamina- tion. Six photographs are attached to the report showing water damage to carpeting near the walls and at the base of the walls, containment work performed by the company, a moisture read- ing showing wet drywall at the base of a wall, and the air mov- ers and dehumidifiers set up by the company. A separate pho- tograph, which does not appear to be part of the actual report, shows water damage to carpet between a wall and some dish- ware on display. (Tr. 579, 585–586, 612; R. 23) Westenberger testified that he attributed this damage to the Local 39 engineers because of “motive” and “familiarity . . . with the system and equipment.” (Tr. 584) Even though he did not conduct an investigation, and could not identify a specific person who did, Westenberger said that the irrigation system was inactive as the landscaping and vegetation had been re- moved, there was no reason for the system to be turned on and left to run, and that the water was turned on with the intent that there would be subsequent damage to the building. (Tr. 584, 612) 10. Allegation that union members cut bathroom sink wires at the Union Square store Kevin Uhe testified that on November 7, he was called be- cause the sinks in the sixth floor men’s bathroom, located in the children’s department, were not working. Uhe said he put his hands under the motion activated faucets and they did not work. He closed he bathrooms for the weekend and a vendor came to the store to address the issue. (Tr. 288–289) Uhe described the bathroom configuration, saying that below the sinks are large wooden access panels with pressure plates used to access the plumping, pipes, and wiring for the sinks. Uhe said the vendors determined that the wires behind the ac- cess panel for the motion activated faucets had been cut. (Tr. 289) Uhe attributed what occurred to the Local 39 engineers say- ing that they had a “working knowledge of how to access the wires underneath,” and how to remove the access panels with- out being detected. (Tr. 290) Uhe said that it took him “about 15 minutes to try and get” the access panel “back together, because it’s very sensitive in how you put it back on.” (Tr. 289) MACY’S INC. 15 Even though there are security cameras throughout the store, including at the entrance doors, there was no footage entered into evidence showing any of the Local 39 engineers entering into the store, using the escalator, walking into the children’s department, or using the bathroom. Uhe admitted that any such videos, if they existed, would have been available to him. (Tr. 291) 11. Allegation that union members changed locks to the engi- neer’s office Alan Westenberger testified that when the Local 39 engi- neers returned to work on December 7, they went back to work at the Southland store for one hour, before being told that they had to leave because there was no agreement in place for them to return to work. The Southland store is located at a mall in Hayward, California. (Tr. 590, 597; GC. 2, p. 25) According to Westenberger, in that one hour, the locks to the engineers’ office were replaced, and the company could not access the office; Macy’s had to replace the locks. Again, Westenberger did not actually investigate this incident, but said he was relying upon what was reported to him by his executive team: Hal Goldberg and Deborah Parker. Westenberger did not know if there were security cameras in the engineering depart- ment, and did not recall asking anybody to see if security cam- eras captured what occurred. (Tr. 590, 596–597, 614) Regarding this incident, in a January 25, 2021 position statement submitted during the underlying investigation, Re- spondent stated that five union engineers came to the Southland store on December 7, and were greeted by the store manager who then called Deborah Parker to confirm that the engineers were permitted to report back to work. During this time, the engineers clocked in and were in the store for 40 minutes until the store manager instructed them to leave. In the position statement, Respondent further states that “[t]hree days later, Parker arrived at the Southland Store to access the facilities office,” but that she could not do so because the door handle unit had been replaced. Parker “also noticed that the door han- dle unit to a second door to access a supply room had also been replaced.” (GC. 35 #01192–01193) According to Westenberger, this was not the first time there was an issue involving locks. Westenberger testified that, in the days leading up to the strike, the lock cores were removed and the pins changed for the lock on the door to the engineers’ office at the Valley Fair store in near Santa Clara, California. Westenberger said that, at least two days before the strike, store management accessed the office without any problems, but the following week they were unable to open the door with a mas- ter key. Westenberger said that Macy’s had to call a vendor who replaced the lockset. Westenberger did not personally investigate this incident, did not know who conducted the in- vestigation, and did not recall asking anyone to check to the store’s security cameras. He attributed this incident to the three Local 39 engineers who used the office. (Tr. 559–561, 608– 610) 12. Allegation that union members intentionally damaged property Respondent asserts that during the picketing, union members intentionally damaged a large concrete planter on the sidewalk outside the Union Square store, and sabotaged the sliding glass doors at the Geary Street entrance. (Macy’s Br., at 10) a. The concrete planter On the sidewalk around the Macy’s Union Square store are a number of square concrete planters belonging to the company; the planters are 3 feet high. Westenberger testified that Macy reconfigured the placement of these planters in 2018, and dur- ing this process it purchased some new planters which cost approximately $5,000 each. (Tr. 264, 551; R. 3, R. 44) One of these planters, which is painted gray, is located on the curb, just a few feet to the east of the Geary Street entrance. (R. 44; R. 45 p.6; R. 7) Macy’s claims that the picketers inten- tionally damaged this planter, “causing permanent damage to it at an estimated cost of $5,000.” (Macy’s Br., at 10) Respondent introduced into evidence a picture taken by Uhe displaying the top and two sides of the planter, which shows some cosmetic damage. Uhe said that he took the picture on November 13. (Tr. 263) Specifically, the picture shows that some of the paint and concrete, appearing to be less than an eighth of an inch, has flaked or chipped off the planter. The damage is most prevalent on one side. Based upon the plant- er’s placement in relationship to the curb and street, it appears that the west side of the planter, which is directly perpendicular to the street/curb, has the most damage. The corresponding side of the planter shown in the picture is the north side, which abuts the street/curb. (Tr. 263; R. 7, R. 44) From the picture, it appears that something was swinging against the planter in a wide ark, leaving scrape marks and causing damage to the middle/left portion of the west side of the container. On this same side, it also appears that something was striking against the planter, causing damage to the top left side. There are corresponding scrape marks on the adjoining (north) side, again showing that something was swinging at a wide angle against the planter. Also, the picture shows that some of the paint and concrete has flaked off the top and the corners of both sides of the planter; again it appears to be less than an eighth of an inch of concrete and paint has chipped off. Uhe testified that this damaged was caused by the picketers, saying that they “hung their metal gong that they would strike with a hammer at the beginning of the–of the picketing. They would hang it there and as they hit it, it rubbed up against and banged up against the concrete, damaging it.” (Tr. 263) Uhe said that the swing marks delineate “where the gong would actually swing as they hit it.” (Tr. 263) According to Uhe, he asked the picketers to “not hit the gong and don’t do it against the property,” but he was ignored. (Tr. 263) A video showing this planter, and the picketers’ gong, was also introduced into evidence. Uhe testified that he shot the video on November 3. The video shows a picketer striking a gong, consisting of a thick square piece of metal. However, the gong is not hanging against the planter. Instead, the gong has its own separate stand. The video shows the gong, and the stand, placed in the street about 10 to 15 feet away from the planter. The video also shows that the west side of the planter is undamaged. Based on the video, the damage could not have been a result of the gong being hung against the planter since the beginning of the picketing on September 4, as there is no DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 16 damage to the planter in the video. Instead, if Uhe’s testimony as to the dates of the video and the picture are correct, the dam- age to the planter must have occurred sometime between No- vember 3 and November 13. There were no videos or photo- graphs showing a swinging gong attached to the planter. The only picture or video of a swinging gong in evidence is the one which shows the gong attached to its own separate stand; it is unclear how the gong in the video could have caused this dam- age. (Tr. 201, 203–204, 262–263; R. 4) Finally, regarding Respondent assertion that the planter suf- fered permanent damage at an estimated cost of $5,000, this dollar amount is what Westenberger testified the price was for a new planter was in 2018. There is no evidence in the record showing that the planter in question needed to be replaced, as opposed to being repaired and repainted. b. Sliding glass doors Relying upon the testimony of Kevin Uhe and David Plew, Respondent claims that picketers “sabotaged the sliding glass doors at the Geary Street entrance” by throwing small rocks into the doorway to jam the doors, requiring three of the doors to be replaced. (Macy’s Br., at 10) Plew testified that in Octo- ber he complained about picketers “throwing rocks in the doors to jam the doors.” (Tr. 486) However, Plew admitted that he never actually saw any of the picketers throw rocks at the doors. Instead, Plew said that he saw rocks near the doors which would wedge underneath the doors and keep them open. (Tr. 486–488). Uhe testified that he received reports the picketers “were throwing rocks to hold the doors open so that they could . . . point their noisemakers into the store.” (Tr. 292) Uhe said that three doors had to be rehung in mid-November because they were out of alignment and would not close properly. (Tr. 292– 293) Uhe described the rocks in question as being small, like peb- bles, saying they would get between the door and the closing plate preventing the door from coming together and causing the door to hinge open. Uhe testified that he viewed the doors, and they would not close properly because they dragged on the ground. According to Uhe, three doors in total had to be re- hung, two doors on O’Farrell Street, and one “set” on Geary Street. (Tr. 293–294) Uhe also testified that he did not actually see any of the picketers throwing rocks at the doors and was relying solely upon what was reported to him. In fact, no witness testified that they actually saw any of the picketers throwing rocks at, or into, a doorway. Nor is there any security camera footage of this occurring. (Tr. 293–294) During cross-examination, Uhe confirmed that as early as November 3, Macy’s hung pieces of plywood on the doors, to protect the glass in anticipation of potential unrest arising from the presidential election. During this time period Macy’s cov- ered all of the doors and windows around the store with ply- wood. When asked whether placing heavy plywood on a door could pull the door off its tracks, Uhe answered that he did not know. (Tr. 377–378) The workorder printout for the Union Square store shows that that even before the strike began, and at times unrelated to the strike, the Geary, Stockton, and O’Farrell Street doors had to be repaired on multiple occasions, including on the following dates: 8/1/2018, 8/7/2018, 8/30/2018, 9/8/2018, 10/5/2018, 10/16/2018, 11/11/2018, 11/14/2018, 11/29/2018, 1/14/2019, 1/28/2019, 2/1/2019, 2/16/2019, 2/22/2019, 2/28/2019, 3/1/2019, 3/7/2019, 4/23/2019, 4/25/2019, 5/27/2019, 6/25/2019, 7/3/2019, 7/4/2019, 7/14/2019, 8/15/2019, 9/17/2019, 10/21/2019, 10/22/2019, 12/2/2019, 12/4/2019, 12/6/2019, 12/26/2019, 12/29/2019, 1/1/2020, 1/9/2020, 2/26/2020, 10/22/2020, 1/19/2021, 1/20/2021, 2/22/2021. The workorder printout further shows that repairs were made be- cause one or more of the doors were: out of alignment, not opening, off level, dragging and could not close properly, drag- ging and could not lock properly, dragging on the marble en- trance, or dragging on the ground. (GC. 28) F. Macy’s tries to get a State court restraining order/injunction against the picketing On October 7 Macy’s filed an ex parte application for a tem- porary restraining order (TRO) in California State Superior Court regarding the picketing at the Union Square store. The Superior Court judge denied the application the next day, find- ing the company had not made every reasonable effort to settle the dispute through negotiations as required by California stat- ute. (GC. 21, R. 47) On October 26 Macy’s and the Union held a mediation ses- sion, which was unsuccessful. Macy’s renewed its application for a TRO on November 19, this time narrowing the relief it was seeking. The next day Macy’s also filed a motion for a preliminary injunction, along with a motion for leave to file a first amended complaint alleging, among other things, causes of action against the Union for nuisance, trespass, false imprison- ment, assault, battery, and intentional interference with pro- spective economic relations. The motion for a preliminary injunction was set for hearing on December 18. (GC. 21) On November 25, a hearing was held on Macy’s application for a TRO. The Superior Court denied the request, without prejudice to Macy’s seeking the same relief during the Decem- ber 18 preliminary injunction hearing. Regarding the merits of the case, although the judge said he was not making any specif- ic findings, he further stated that he was not convinced that substantial and irreparable injury would follow absent an im- mediate restraining order and therefore was not persuaded, on the pleadings presented, that Macy’s had established a need for a temporary restraining order. The judge further noted that, based upon the filings, there was very little, if any, showing of irreparable harm, as over 80 days had passed since the strike started. Because of extant California law, and the prolonged nature of the dispute, the judge believed it was best to take a cautious approach and hold a full evidentiary hearing on De- cember 18 before making a final ruling. A status conference was scheduled on December 4, at 1:30 p.m. (GC. 21) G. Bargaining During the Strike During the strike, Rose Ashmore said that she had a number of discussions with Vega about the status of bargaining. These happened via telephone every few weeks and generally evolved around the Final Offer and whether there was any desire to MACY’S INC. 17 continue negotiations. Sometime in September 2020, during one of these conversations, Ashmore told Vega that the Final Offer would not be available forever and that at some point it would expire. In reply, Vega told Ashmore that the member- ship never votes on the same deal twice. (Tr. 659–661) On October 8, Ashford had another telephone conversation with Vega. During this call, she told him that that the Final Offer would expire in one week. Vega asked Ashmore to send this message to him in writing. On October 12, Ashmore sent Vega an email with a subject line that read “Macy’s Last Best and Final Offer.” The body of the email contained a letter dat- ed October 8, which was also included as an attachment. The letter confirms the terms of the August 31 Final Offer, and says that the company’s position has remained unchanged. The letter then complains about the “behaviors” that have occurred over the previous few weeks, saying it had negatively impacted the business and customer experience and has “has become costly to our business and disruptive to our colleagues.”16 The letter states that Macy’s will hold “the offer currently on the table for one week, until Thursday, October 15, 2020, at which time the offer will expire.” Ashmore ends the letter by saying that Macy’s remains “focused on ensuring our people and our organization continue on the path to recovery and encourage our colleagues to strongly consider this current offer before it is rescinded.” (GC. 4) (Tr. 47–48, 662–665) After their October 8 phone call, Ashmore did not hear back from the Union until Vega called Ashmore on November 9 to ask if Macy’s was going to put together another offer to present to the Union. Ashmore said no. She then asked Vega if he wanted to return to the bargaining table and resume bargaining. Vega told Ashmore that he would have to get back with her. (Tr. 665–667) On November 25, the day before Thanksgiving, Vega sent Ashmore an email containing a contract proposal on wages and pensions. The Union proposed to accept the dollar amount of the total wage and pension increases contained in the Final Offer, with the caveat that the Union would determine how to allocate the respective increases. For example, in the Final Offer Respondent proposed a $1.22 per hour wage increase and a $0.30 per hour pension increase starting on September 1, 2021. This amounted to a total economic package of $1.52 per hour. Under Local 39’s proposal, the Union would determine how much of the $1.52 increase would be allocated to wages and how much would go to pensions. The Union proposed that it would make this determination for each of the three years in the contract and then report the specific dollar amounts to Re- spondent within one week after the contract’s ratification. In his email to Ashmore, Vega said that if the Union’s new pro- posal was acceptable, the Union would recommend to its mem- bers that they ratify the agreement. (Tr. 54–57, 668; GC. 6) Ashmore, who lives and works in New York City, did not 16 Ashmore testified that she remembered also sending the email with the letter to Vega on October 8. (Tr. 664–665, 719) However, Respondent was not unable to find this email, which was covered by the trial subpoena issued by the General Counsel. (720–722) I do not credit Ashmore’s testimony that she also sent Vega an email with the letter on October 8, but instead find that she emailed it to Vega for the first time on October 12. receive the email until late in the afternoon. She responded to Vega via text message the same day acknowledging receipt of the email. In her text, Ashmore told Vega that Respondent’s offices were closed, that she would not be able to connect with her team to discuss the Union’s offer until after the Thanksgiv- ing holiday, and she would touch base with Vega accordingly. She then wished Vega a nice Thanksgiving. (Tr. 632, 669–671; R. 39) On December 4, Ashmore sent Vega an email responding to the Union’s November 25 contract offer. The email, whose subject line says, “Company Response to the Union Counter Proposal,” reads as follows: On August 31, we provided you with our last and best offer. The Union rejected that offer and we were at an impasse. Af- ter several discussions, we were surprised that the Union waited approximately 3 months to make a new offer (which we note we received during a hearing regarding the Union’s unlawful conduct during picketing, which includes assault, abuse, blocking of ingress and egress, the use of homophobic and racial slurs, and property damage). This offer is no better than the last one in economic terms and does not advance negotiations. It does nothing to make any effort to settle the underlying dispute and therefore it is reject- ed. It is unfortunate that after we have made every reasonable effort to settle both the underlying labor dispute and the dis- pute regarding the Union’s picketing tactics; we are in no dif- ferent position than the impasse after August. Hence, we will not bargain against ourselves, which is what the Union is ask- ing us to do with the last offer therefore we consider the labor dispute to be at an impasse. Ashmore testified that the Union’s proposal came as a surprise, as the parties had not held a bargaining session since August 31. According to Ashmore, Respondent rejected the Union’s proposal because it gave the Union discretion to determine the specific wage and pension rates. Ashmore said that Macy’s did not function or budget this way, and giving the Union this dis- cretion would potentially skew the hourly wage rates or pension contributions thereby precluding the company from efficiently planning its budget. (Tr. 58–60, 672–673; GC. 7) Vega replied to Ashmore’s December 4 email that same day. In his email Vega expressed surprise and disappointment at the company’s response. He also referenced the State court pro- ceedings that were initiated by Macy’s in an attempt to enjoin the Union’s picketing. Vega said that the Union believed its last proposal was sensible because it did not cost Macy’s more money than the actual dollar amounts that were proposed in the Final Offer. Vega expressed his belief that Macy’s wanted to continue the dispute but said that the Local 39 engineers did not. Therefore, Vega ended his email by stating that the Union was making “an unconditional offer to return our members to work immediately,” and was awaiting Ashmore’s response. (GC. 8) (Tr. 60–61, 674) Ashmore replied to Vega later that evening by email. Ash- more wrote that the company appreciated the unconditional offer by the engineers to return work, but in order to fully eval- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 18 uate the offer she needed to discuss it “with all necessary part- ners.” She told Vega to “please do not have the members re- port to work yet,” and said that she would “connect with” Vega by the end of the business day (Pacific Time) on Monday, De- cember 7. (GC. 9) About 10 minutes later, Vega replied by email, asking “[d]oes this mean you are locking them out till Monday?” (GC. 10) Ashmore replied on December 5, saying that the company planned to respond to the Union’s “offer to have your members return to work” by the close of business on Monday. She further stated that Vega’s “unexpected offer,” which came on “a Friday afternoon after a contentious strike of over three months, implicates several administrative, logistical, and economic issues that need to be fully evaluated on our end with the input of several company employees. For that reason, we have asked you for the courtesy of giving us until the close of business Monday to assess.” (GC. 11) After sending the December 4 email, the Union and its members took down their picket lines and stopped picketing. (Tr. 63–66, 676–677) Vega replied on Sunday, December 6 saying “[u]nfortunately, we cannot accommodate your request. Unless you are locking them out, they will [be] showing up to work Monday morning.” (GC. 12) Ashmore replied to Vega by email as follows: Again, as I indicated in my prior email, we plan to respond by close of business Monday to your offer to have your members return to work. As I’m sure you can appreciate, your unex- pected offer, coming on a Friday afternoon after a contentious strike of over three months, implicates several administrative, logistical, and economic issues that need to be fully evaluated on our end with the input of several company employees. For that reason, the team should not return to work on Mon- day. This is not a lockout but we won’t be ready for them. They have been out for 90+ days, and to think you can just flip a switch and have them back is not possible. If they show up they will be turned away so please show your members the courtesy of communicating with them. Ashmore’s email to Vega was sent at 12:32 p.m. (Pacific Time) (Tr. 66–69, 680–681; GC. 13) H. Macy’s Locks Out Returning Employees On December 7 the Local 39 engineers started returning to work. Ashmore testified that there is evidence of engineers “coming through the door” and clocking-in. However, no time cards or documentary evidence was introduced into evidence showing which engineers reported to work. While it is unclear from the record exactly how many engineers worked on De- cember 7, it is undisputed that at least some of them reported to work on both December 7 and December 8. (Tr. 681–682; GC. 16) Ashmore testified that all of the engineers who came to work on December 7 reported to the same location, the Southland store, even though not all of them were assigned to this loca- tion. Specifically, Ashmore testified that some of the engineers who reported to the Southland store on December 7 included: Ryan Tello, Tim Foster, and Jim Lybrand. (Tr. 682–684, 741) Ashmore’s testimony was contradicted by Jim Lybrand, who was the Chief Engineer at the Union Square store and had worked at this location for 21 years. Lybrand testified that he returned to work on December 7 at the Union Square store in San Francisco, along with his entire crew. (Tr. 770–772) On Monday December 7, in the late afternoon/early evening, Ashmore sent Vega an email regarding the Union’s uncondi- tional offer to return to work. The email reads as follows: We have carefully evaluated your offer to have bargaining unit members return to work. We are not willing to reinstate bargaining unit employees until there is an agreement in place; this decision is being made in support of our bargaining position. We are available for bargaining sessions on Thursday 12/10 , Friday, 12/11, Thursday 12/17, and Friday 12/18, from 9:00AM-11:00AM PST. (GC. 14) On December 8, Vega replied to Ashmore saying that the Un- ion was available for bargaining on all the dates proposed by the company except for December 18. Ashmore replied to Vega later that day confirming the parties would meet for bar- gaining on Thursday, December 10. In her email, Ashmore further states as follows: On a separate note, many of the Union employees reported to work on Monday even when I asked you to not have them re- port to work. Additionally, today they reported to work again and were turned away because as we explained yesterday, Macy’s has carefully evaluated your offer to have bargaining unit members return to work. We are not willing to reinstate bargaining unit employees until there is an agreement in place; this decision is being made in support of our bargaining position. The Company understands the Local 39 members are available and we will consider them available. We want to be clear that they are not permitted to clock in and report to work and will be denied access to non-public areas until an Agreement is reached. (underline in the original) Ashmore ended her email by asking that Vega communicate her message to Local 39 members. (GC. 16) I. Testimony from Macy’s Officials About the Reason for the Lockout Alan Westenberger testified that he was part of the decision to lockout the Local 39 engineers, saying there was a meeting on this issue that included himself, Ashmore, Chanell Bracey- Davis, Bill Erbacher and one of Respondent’s outside attor- neys. Bracey-Davis is Ashmore’s supervisor and Westenberger reports to Erbacher. (Tr. 615, 729–730) According to Westenberger, he participated in only one dis- cussion regarding this issue. Specifically, Westenberger testi- fied as follows: [T]he lock out topic was that first week in December when we had Local 39 reporting back to our store and subsequent to the MACY’S INC. 19 -- you know, them being back for one hour and they had al- ready changed locks on us. So it was subsequent to that. I don’t recall any other meetings on the -- the lock out topic prior to that. Westenberger said the meeting occurred to make a “quick decision” on what the right course of action was for the compa- ny at that moment. (Tr. 615) When asked why Macy’s refused to reinstate the Local 39 engineers, Westenberger testified that there were two reasons. First, Westenberger said it was done in the hope that Macy’s “could get the Union back to . . . the bar- gaining table and . . . ultimately get a fair and reasonable con- tract for both parties.” (Tr. 591) The second reason was be- cause: we had significant concerns about the -- the misconduct and -- and the sabotage that occurred in that three-month period while they were striking. There was a concern that if -- if they were -- if they came back into the buildings without a con- tract, that at a moment’s notice, they could either walk out and -- and leave us in a very vulnerable spot in terms of operating our business or they could have access to building operating systems and equipment that could cause additional disruption to our business and associated cost. (Tr. 591) Westenberger noted that it was the holiday season, which is the company’s most important time of year, and it could be detri- mental to business if they had to shut down a store, or have a business disruption, during this time. (Tr. 591–592) Rose Ashmore testified that she was involved in the final de- cision to lock out Local 39 engineers, and that she consulted with Macy’s attorney, Westenberger, Bracey-Davis, Erbacher, and John Bienes.17 Ashmore said that there was no one single decisionmaker and that the decision to lockout the employees was a group decision. (Tr. 729–730) Ashmore testified that there were several reasons why the company refused to reinstate the Local 39 engineers, and locked them out instead. First, Ashmore said it was for eco- nomic leverage, to get the Union back to the bargaining table. Next, Ashmore testified that it was because of the information she received about the misconduct that was occurring on the picket line. Finally, Ashmore said “the other piece was, you know, disruption during fourth quarter during December is not something that we wanted to endure. We just came out of the shutdown, so having them back without a contract could allow them to walk out at any time.” (Tr. 699–700) According to Ashmore, she reviewed written statements from Uhe and other employees about the strikers’ conduct on the picket line, which primarily complained about noise, and relied upon these documents in connection with her decision regarding the lockout. Ashmore said she reviewed these state- ments “within the three months of the strike when they were sent to me.” (Tr. 698) According to Ashmore, the employee statements were sent to her by Respondent’s attorneys, after Ashmore had asked for them. (Tr. 697–699; R. 27) 17 The identity and job title of John Bienes is not discussed in the record. J. Bargaining After the Lockout On December 10, the parties met for bargaining by vide- oconference. Among those present were Jay Vega for the Un- ion and Rose Ashmore for Respondent. Just before the bar- gaining started, Ashmore emailed the Union a new bargaining proposal. Macy’s proposed a three year contract with wage increases of 1.75% each year, starting on September 1, 2020. This was a decrease from the August 31 Final Offer which provided for a 2.75% yearly increase. As for pension and health care contributions, Macy’s December 10 offer on these two subjects were identical to what was outlined in the Final Offer. (Tr. 74–77, 702; GC. 17, GC. 3) Ashmore testified that she thought it was important to com- municate this new offer during a bargaining session because Macy’s wanted to explain to the Union why the wage increase proposal was lower than what was contained in the Final Offer and the changed circumstances in the company’s business over the preceding few months. According to Ashmore, she dis- cussed this with the Union during the bargaining. (Tr. 703– 704) After receiving Respondent’s proposal, the Union presented Macy’s with its own counter offer during the meeting. Regard- ing wages and benefits, the Union’s proposal was substantially the same as the one it made on November 25. The Union agreed to accept the total dollar amount of the wage and pen- sion increases in the August 31 Final Offer, with the under- standing that the Union would determine how much of the in- crease would be allocated to wages and pensions. However, in its December 10 proposal, the Union offered to cap the wage rates for each year to correspond with the rage rates proposed by Respondent in the August 31 Final Offer. No agreement was reached. (Tr. 78–79; GC. 18, GC. 3) The parties met again on December 11. Macy’s presented a new proposal to the Union, which was the same as the proposal it made the previous day, except that it included an additional 13-cent increase in wages for 2022, and an additional 3-cent raise in pension contributions for the same year. Even with the raises proposed for 2022, Macy’s new proposal for wages and pensions was still less than what the company had originally proposed in the August 31 Final Offer. (Tr. 79–82, 705; GC. 19, GC. 3) The Union presented an additional proposal to Macy’s on December 11, offering to delete the Utility and Apprentice engineer classifications listed in the contract. The Union also proposed to delete the section of the contract which, in part, required Macy’s to contribute $555 per engineer to a training fund which provided training to engineers who wished to im- prove their skills. The parties were unable to reach an agree- ment.18 As of the time of the hearing the parties had still not reached an agreement on a new contract, and Respondent’s lockout of the engineers continued. (Tr. 80–83, 705; GC. 20, GC. 2) 18 Ashmore testified that the parties also met on December 17, but there is no evidence in the record as to what was discussed during this meeting. (Tr. 705) DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 20 III. ANALYSIS A. Macy’s Locked Out Employees Without Any Open Bargaining Proposals on the Table While an employer can lockout employees for the sole pur- pose of bringing economic pressure to support its legitimate bargaining position, for a “lockout to be lawful, the union must be informed on a timely basis of the employer’s demands so that the union can evaluate whether to accept them and prevent the lockout.” Alden Leeds, Inc., 357 NLRB 84, 93 (2011), enfd. 812 F.3d 159 (DC. Cir. 2018); see also Dayton Newspa- pers, 339 NLRB 650, 656 (2003), enfd. in relevant part 402 F.3d 651 (6th Cir. 2005). An employer violates Section 8(a)(3) and (1) of the Act by locking out employees, while at the same time never clearly and fully informing them of the conditions that must be met in order to be reinstated. Id. That is what happened here. As per Ashmore’s October 8 letter, Respondent’s Final Offer expired on October 15. (GC. 4) And there is no evidence that, at any time before the lock- out, Respondent had presented the Union with any new contract offers or bargaining proposals. When Vega contacted Ashmore on November 9 to ask if Macy’s had another contract offer to present to the Union, Ashmore told him “no, we do not.” (Tr. 666) And, when Respondent received the Union’s November 25 wage proposal, it was rejected without Macy’s presenting the Union with any type of counter offer. At the time Macy’s locked out the Local 39 engineers on December 7, neither the Union nor the strikers knew Respond- ent’s bargaining position. All they knew was that Macy’s was refusing to allow the engineers to return to work until there was a contract in place. However, because the Final Offer had ex- pired, and Macy’s had not presented any other bargaining pro- posals to the Union, at the time of the lockout, neither the Un- ion nor the employees were “clearly and fully informed of the conditions they must meet to be reinstated,” Dayton Newspa- pers, 339 NLRB at 656, nor did they have “a clear statement of the conditions that employees must accept to avert the lockout.” Alden Leeds, Inc., 357 NLRB at 95. Respondent’s failure to inform employees and the Union in a clear and timely manner of its demands was not cured when Macy’s presented the Union with its new wage proposal on December 10. “[I]t is well established that a ‘lockout unlawful at its inception retains its initial taint of illegality until it is ter- minated and the affected employees are made whole.’” Alden Leeds, Inc., 357 NLRB at 84 fn. 3 (quoting Movers & Ware- housemen’s Assn. of Washington, D.C., 224 NLRB 356, 357 (1976), enfd. 550 F.2d 962 (4th Cir. 1977), cert. denied 434 U.S. 826 (1977). Here, the lockout was unlawful at its inception, on December 7, and the Macy’s has not carried its burden “to show that its failure to restore the status quo ante had no adverse impact on the collective bargaining.” Id. No such evidence was present- ed by Respondent at the hearing. And, the limited evidence in the record regarding subsequent barging shows that the oppo- site might be true; the failure to reinstate Local 39 engineers to work on December 7 may have weakened the Union’s position at the bargaining table. Without unit member back at their jobs, when it made its first counter-proposal on December 10, the Union offered to cap wage rates at the levels Respondent had originally proposed in its August 31 Final Offer. And the next day, the Union proposed to delete two engineer classifications from the contract, and further delete a section from the agree- ment that required Macy’s to contribute over $500 per engineer to a training fund. Regardless, neither the Union nor the Gen- eral Counsel has the burden to prove what impact the compa- ny’s unlawful actions had on bargaining. The burden belongs to the Respondent and they failed to meet this burden. B. Claims by Macy’s that the Union Engaged in Misconduct and Sabotage Macy’s asserts that it was permitted to lock out all of the Lo- cal 39 engineers because it had good-faith concerns about union misconduct and sabotage. Respondent argues that employees could not return to work without a contract in place during the holiday season, because they would have “the same motive and even greater opportunity to engage in more acts of sabotage.” (Macy’s Br., at 39) However, none of the cases cited by Ma- cy’s stands for the proposition that an employer can lockout employees without informing them of the reason for the lockout or what specific contract terms employees need to adopt in order to be reinstated. Moreover, the fact that Macy’s never told the Union, or the engineers themselves, that employees were being locked out because of the company’s concerns about misconduct, sabotage, or the upcoming holiday season, supports a finding that the lockout was not motivated by these reasons, but instead that it was designed to bring economic pressure on the Union so that it would agree to the company’s wage proposal. Highland Superstores, Inc., 314 NLRB 146, 148 (1994) (judge relies on company letters to the union and memorandum to employees to derive the true motive behind the lockout and discounts the alternate reason advanced by the employer which surfaced for the first time at trial). Here, after the Union’s unconditional return to work offer on December 4, Ashmore emailed Vega saying she needed to dis- cuss the issue with “all necessary partners,” asked that the en- gineers not report to work, and said she would connect with Vega by the end of business on December 7. (GC. 9) When Vega asked whether Macy’s was locking out the engineers, Ashmore replied to him on December 5 saying that the compa- ny planned to reply to the Union by the close of business on December 7, as the offer to return to work “implicates several administrative, logistical, and economic issues that need to be fully evaluated on our end with the input of several company employees.” (GC. 11) When Vega replied saying the engi- neers would report to work on Monday unless Macy’s was “locking them out,” Ashmore replied on December 6 writing “[t]his is not a lockout but we won’t be ready for them,” and again saying that the engineers’ offer to return to work “impli- cates several administrative, logistical, and economic issues that need to be fully evaluated with the input of several compa- ny employees.” (GC. 13) On Monday December 7, after the Local 39 engineers started reporting to work, Ashmore emailed Vega saying that Macy’s was not willing to reinstate them without a contract in place, and that this decision was being made in support of the company’s “bargaining position.” (GC. 14) On December 8, Ashmore again emailed Vega saying that MACY’S INC. 21 Macy’s was not willing to reinstate the engineers until a con- tract was in place and reconfirming that this decision was “be- ing made in support of our bargaining position.” (GC. 16) At no time during any of these communications did Macy’s tell the Union, or employees, that the engineers were being locked out because of the company’s concerns about misconduct, sabo- tage, or that something might occur during the holiday season. Similarly, when the parties met for bargaining on December 10 and 11, there is no evidence that Macy’s told the Union that these concerns were part of the reason for the lockout. Instead, Macy’s presented the Union with a new wage proposal, which contained wage rates that were lower than the August 31 Final Offer. And, Ashmore testified that she thought it was im- portant that this new proposal on wages be communicated to the Union during a bargaining session because Respondent wanted to explain the company’s business position and how conditions had changed in the intervening months, with busi- ness not going in the direction the company had expected. I also note that in an initial position statement submitted by Respondent during the underlying investigation, Macy’s did not mention that misconduct, sabotage, or the holiday shopping season played any role in its decision to lockout the Local 39 engineers. (GC. 35; Tr. 756–757) It was only after the investi- gating agent brought the Board’s holdings in Alden Leeds, Inc., 357 NLRB 84 (2011) and Dayton Newspapers, 339 NLRB 650 (2003) to the company’s attention that Macy’s submitted a supplemental position statement saying that the issues of al- leged misconduct and sabotage played a role in its lockout de- cision.19 The supplemental position statement does not mention the holiday shopping season. (GC. 35; R. 50) In these circumstances, I do not credit the testimony of Re- spondent’s witnesses that issues of sabotage, misconduct, or the holiday shopping season were reasons for the lockout. Instead, I find that these were post-hoc excuses, developed to bolster Respondent’s defense in an attempt to justify why the lock out occurred at a time when the company did not have any bargain- ing proposals on the table. Highland Superstores, Inc., 314 NLRB 146, 148 (1994). I further believe this conclusion is bolstered by Westen- berger’s testimony about what occurred. Westenberger testi- fied that the decision to lockout the Local 39 engineers oc- curred during a discussion that took place “subsequent” to the engineers reporting back to work on December 7, saying that the engineers were “back for one hour and they had already changed the locks on us.” (Tr. 615) However, in its January 25, 2021 position statement Macy’s stated that, after the Local 39 engineers were instructed to leave work on December 7, “[t]hree days later” a Macy’s official arrived at the Southland store and could not access the facilities office because the entire door handle unit had been replaced. (GC. 35, #01192–01193) Thus, by its own admission, Macy’s did not learn about this 19 Both position statements contain a references to Case Number 20- CA-270110. During the hearing, Macy’s acknowledged that the posi- tion statements were mislabeled and both documents were admitted into evidence as Respondent’s position statements submitted during the investigation of Cases 20-CA-270047 and 20-CA-269858. (Tr. 757– 758) incident until December 10, well after the lockout happened. Also, I find Ashmore’s testimony, saying that all of the Lo- cal 39 engineers who reported to work on December 7 showed up at the Southland store, was not accurate as it was contradict- ed by Jim Lybrand. Ashmore was not in California on Decem- ber 7, and it is unclear where, or from whom, she received her purported information. Lybrand, on the other hand, had per- sonal knowledge regarding what store he and his crew reported to on December 7, as he was there, working alongside his crew at the Union Square store. Ashmore’s testimony that all the engineers reported to the Southland store was simply another attempt to bolster Respondent’s post-hoc defense that alleged sabotage at the Southland store, after the engineers had reported back to work, played a role in the company’s lockout decision, notwithstanding the fact Respondent did not learn about this incident until December 10. While I have discredited Respondent’s claims that issues of alleged misconduct, sabotage, or the holiday shopping season, played a role in the company’s decision to lockout employees, I also believe that the evidence does not support a finding that Respondent’s concerns about these issues were held in good faith. Other than the claims involving name calling and noise making, Respondent’s evidence that Local 39 engineers en- gaged in acts of misconduct or sabotage during the strike was based primarily upon hearsay, conjecture, and unknown, non- existent, or inconclusive investigations.20 Despite the fact Ma- cy’s has multiple security cameras both inside, and outside, their stores, and numerous retail and security employees were working in the stores during the strike, outside of the name calling and noise making allegations, virtually no credited evi- dence was presented that any of the Local 39 engineers pur- posefully committed any of the acts in question. And, in some instances, there was no evidence presented that any of the engi- neers were even in the vicinity when the incidents occurred. For example, regarding the October 20 flood at the Sunrise store. There is no evidence that Local 39 engineers were any- where near the store when the incident happened, or that they were otherwise involved with what occurred. While Westen- berger testified that, during the course of their work, the engi- neers had access to some type of special tool needed to open and close the valve in question, the Local 39 engineers had not been working in the Sunrise store since the strike started on September 4. There was no picketing or handbilling at the Sunrise store, nor is there evidence that any of the engineers had even visited the store since the strike started. Moreover, Westenberger admitted that he has never seen the purported special tool that he claimed was used to open the water valve, he could not describe the tool, did not know where the valve was located, did not investigate the incident, and did know who, if anybody, actually investigated the matter. It appears that someone turned the sprinklers on at the Sunrise mall and did not turn them off. Clearly Westenberger wanted to blame the Local 39 engineers for the incident. But wishful thinking is not the equivalent of having a good faith belief. And this same 20 Respondent has cited no cases where the Board has countenanced the lockout of an entire bargaining unit based upon instances of name calling and/or noise making. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 22 wishful thinking seems to apply to the other incidents of pur- ported sabotage as well. Regarding the sump-pump issue at the Walnut Creek store in early October, again there was no evidence showing who actu- ally tampered with sump-pump, or that any of the Local 39 engineers had even visited the store since the strike started. As with the Sunrise store, there was no picketing or handbilling at the Walnut Creek store, and although Westenberger testified about the incident, he was not involved in the investigation of the matter. It is hard to believe that a striking engineer could walk into the store, cross the sales floor, go through the doors to reach the back of the house, walk downstairs, tamper with the sump pump, walk out from the storage rooms, cross the sales floor again, and exit the store, without any of the security cameras capturing this person on video, or without a sales asso- ciate, security personnel, or anybody else, seeing the perpetra- tor walking around the store and accessing non-public areas. Concerning the backup that occurred in the alterations room on September 6, while the Union was picketing the Union Square store at the time, there was no evidence that any of the Local 39 engineers entered the store that day, or the previous two days, let alone that one of them walked across the men’s department sales floor to access the alterations room to put paper towels down the drain. The same is true regarding the November 7 incident involving the men’s sixth floor bathroom faucet in the children’s department. As for the fact that some of the entrance doors needing to be repaired, which the company blamed on the Union throwing rocks at the door jams during the picketing, none of Respond- ent’s witnesses testified that they actually saw the Local 39 engineers throw rocks at the doors, nor is there any security video footage confirming these claims. And, Respondent’s own work orders show that, at times unrelated to the picketing, the entrance doors at the Union Street store experienced similar issues and needed to be repaired on multiple occasions. There was much evidence introduced into the record from Respondent about the Everbowl restaurant flooding that oc- curred on September 23, including a nearly seven minute secu- rity video from the previous day. However, none of this evi- dence supports a finding that any of the picketers were respon- sible for the backup. In fact, Respondent’s work orders show that the space occupied by the Everbowl had a history of sewer backups and flooding. And, just a month earlier, before the picketing had started, Respondent had to “jet the line” because of problems with the main sewer line on O’Farrell Street. The work orders also show that, on various other occasions, the vent grates on the sidewalk outside the restaurant needed to be re- placed as they were missing and the vent pipes were left uncov- ered. While the security video does show a group of picketers looking down the open vent on September 22, as one of them shines a flashlight down the pipe, the video does not show this group putting anything down the vent pipe that would cause flooding. And, Uhe testified that he watched the entire security video for that day and did not see anyone put anything down the vent pipe. What the picketers were doing, or looking at, is rank speculation. Uhe testified that he placed the blame for the incident on the O’Farrell Street picketers shown in the September 22 video, and said that the items causing the Everbowl flooding (a plastic bottle and T-shirt) were found down one of the O’Farrell Street vent pipes. However, in at least two pre-hearing affidavits that Uhe signed, he said that the items causing the backup came out from a drain pipe opening on Geary Street instead. Respondent made this same representation in a brief filed with the Califor- nia State Superior Court on October 7, saying the items came out of a drain pipe on Geary Street. (R. 47, p. 4) According to Uhe, the plumber used a 500 foot snake to dis- lodge the items that were causing the backup. There would simply be no reason for a plumber to use a 500 foot snake if the clog occurred in the open vent pipe on O’Farrell Street, as this vent pipe is only about 20 feet away from the Everbowl restau- rant. However, Geary Street is over 275 feet away from O’Farrell Street (R. 44), and depending upon the location of the drain pipe opening on Geary Street, and the depth of the sewer, it is certainly conceivable that someone starting a plumbing snake in the vent outside the Everbowl restaurant on O’Farrell Street, would have to clean out hundreds of feet of pipe in order to dislodge the T-shirt and plastic bottle from the drain pipe opening on Geary Street. While the facts show that a sewer backup occurred on September 23, to place the blame on the picketers that were on O’Farrell Street the previous day, as Uhe did, is simply conjecture. Finally, while the Board in CII Carbon, 331 NLRB 1157 (2000) found that an employer with a multi-location bargaining unit had a legitimate and substantial business justification for locking out only those employees who worked at a specific location where an act of sabotage occurred, Respondent has cited no cases that allow for an employer to lockout the entire bargaining unit, across all locations. Here, the bargaining unit consists of employees who work at almost 40 different stores/locations, some as far away as Fresno, Sacramento, and Reno, Nevada. Many of these employees did not work at, and were not associated with, any of the stores where Respondent claims that misconduct and/or sabotage occurred, and there is no evidence that many of these employees even participated in, or were present at, the Union Square picketing. In these cir- cumstances, even if the lockout was based on legitimate cases of misconduct, I find that Macy’s has provided no business justification as to why such a broad and far-reaching lockout, affecting employees who had no connection to the stores where the alleged misconduct occurred, or the Union Square picket- ing, would be legitimate and necessary. In conclusion, I find that Respondent’s motive for the De- cember 7 lockout was to gain economic leverage so the Union would accept the company’s new wage proposal when it was finally submitted on December 10. Because the lockout oc- curred at a time when the Respondent did not have any open contract proposals on the bargaining table, Macy’s failed to inform the Union and employees in a clear and timely manner of its demands so as to give them a fair opportunity to evaluate whether to accept the company’s proposal and avoid a lockout. Accordingly, Respondent’s actions violated Section 8(a)(3) and (1) of the Act. Alden Leeds, Inc., 357 NLRB 93 (2011) enfd. 812 F.3d 159 (DC. Cir. 2018); Dayton Newspapers, 339 NLRB 650 (2003), enfd. in relevant part 402 F.3d 651 (6th Cir. 2005). MACY’S INC. 23 CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The International Union of Operating Engineers, Station- ary Engineers, Local 39, is a labor organization within the meaning of Section 2(5) of the Act. 3. By locking out its employees on December 7, 2020, with- out providing them with a timely, clear, or complete offer, which sets forth the conditions necessary to avoid the lockout, Respondent has violated Section 8(a)(3) and (1) of the Act. The above unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has engaged in certain un- fair labor practices, I shall order it to cease and desist therefrom and to take certain affirmative actions designed to effectuate the policies of the Act. Having found that Respondent unlawfully locked out is em- ployees on December 7, 2020, I shall recommend that Re- spondent offer reinstatement to all employees who were unlaw- fully locked out and make them whole for any losses of pay and benefits that they may have suffered by reason of the lockout. This shall include compensation for any adverse tax conse- quences of receiving a lump–sum backpay award in accord- ance, with Don Chavas, LLC d/b/a Tortillas Don Chavas, 361 NLRB 101 (2014), and their search–for–work and interim em- ployment expenses, regardless of whether those expenses ex- ceed interim earnings. King Soopers, Inc., 364 NLRB 1153 (2016). Backpay, search–for–work, and interim employment expenses, shall be computed in accordance with F. W. Wool- worth Co., 90 NLRB 289 (1950), with interest at the rate pre- scribed in New Horizons, 283 NLRB 1173 (1987), compounded daily as prescribed in Kentucky River Medical Center, 356 NLRB 6 (2010). In accordance with AdvoServ of New Jersey, Inc., 363 NLRB No. 143 (2016), Respondent shall also file with the Regional Director for Region 20, within 21 days of the date the amount of backpay is fixed, either by agreement or Board Order, a re- port allocating the backpay awards to the appropriate calendar years. The Regional Director will then assume responsibility for transmission of the report to the Social Security Administra- tion. In addition, pursuant to Cascades Containerboard Pack- aging–Niagara, 370 NLRB No. 76 (2021), Respondent must file with the Regional Director for Region 20, within 21 days of the date the amount of backpay is fixed either by agreement or Board Order or such additional time as the Regional Director may allow for good cause shown, a copy of corresponding W-2 forms for the locked out employees reflecting the backpay award. On these findings of fact and conclusions of law, and on the entire record, I issue the following recommended21 21 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and recom- mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt- ed by the Board and all objections to them shall be deemed waived for all purposes. ORDER Respondent Macy’s Inc., its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Locking out its employees without providing them with a timely, clear, and complete offer, which sets forth the condi- tions necessary to avoid the lockout. (b) In any like or related manner interfering with, restrain- ing, or coercing employees in the exercise of the rights guaran- teed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effec- tuate the policies of the Act. (a) Within 14 days from the date of this Order, offer each and every employee whom it unlawfully locked out on Decem- ber 7, 2020, full and immediate reinstatement to their former positions or, if those positions no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges previously enjoyed, discharging, if necessary, employees hired from other sources to make room for them, and make them whole for any loss of earnings or benefits to be calculated in the manner set forth in the remedy section of this decision. (b) 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 rec- ords, timecards, personnel records and reports, and all other records, including electronic copies of such records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this Order. (c) Within 14 days after service by the Region, post at all locations in Northern California and Reno, Nevada, copies of the attached notice marked “Appendix.”22 Copies of the notice, on forms provided by the Regional Director for Region 20, after being signed by the Respondent’s authorized representa- tive, shall be posted by the Respondent 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 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 Respondent to ensure that the notices are not altered, defaced, or covered by any other material. If the Respondent has gone out of business or closed the facility involved in these proceedings, the Respondent 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 December 7, 2020. (d) Within 21 days after service by the Region, file with the Regional Director for Region 20 a sworn certification of a re- sponsible official on a form provided by the Region attesting to 22 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted by Order of the Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 24 the steps that the Respondent has taken to comply. Dated, Washington, D.C. April 6, 2022 APPENDIX NOTICE TOEMPLOYEES 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 no- tice. 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 lock out our employees without providing them with a timely, clear, and complete offer, which sets forth the conditions necessary to avoid the lockout. WE WILL NOT in any like or related manner interfere with, re- strain, or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL within 14 days from the date of this Order, offer our employees, whom we unlawfully locked out on December 7, 2020, reinstatement to their former jobs or, if these positions are no longer available, to substantially equivalent positions, without prejudice to their seniority or any other rights or privi- leges previously enjoyed. WE WILL make whole the employees whom we unlawfully locked out on December 7, 2020 for any loss of earnings and other benefits, less any net interim earnings, plus interest, and WE WILL also make them whole for reasonable search-for-work and interim employment expenses, plus interest. WE WILL compensate the employees whom we unlawfully locked out on December 7, 2020 for the adverse tax conse- quences, if any, of receiving a lump-sum backpay award, and we will file with the Regional Director for Region 20, 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. WE WILL file with the Regional Director for Region 20, with- in 21 days of the date the amount of backpay is fixed either by agreement or Board Order or such additional time as the Re- gional Director may allow for good cause shown, a copy of the corresponding W-2 form(s) reflecting the backpay awarded to the employees in question. MACY’S INC. The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/20-CA-270047 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.