Compañia Cervecera de Puerto Rico, Inc.

373 NLRB No. 47 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. Compañia Cervecera de Puerto Rico and Union Inde- pendiente de Trabajadores de Cerveceria India. Cases 12–CA–295428 and 12–CA–301300 April 30, 2024 DECISION AND ORDER BY CHAIRMAN MCFERRAN AND MEMBERS PROUTY AND WILCOX On August 1, 2023, Administrative Law Judge Kim- berly Sorg-Graves issued the attached decision. The Re- spondent filed exceptions and a supporting brief, the Gen- eral Counsel filed an answering brief, and the Respondent filed a reply 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 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 preponderance of all the relevant evidence convinces us that they are incorrect. Stand- ard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. 2 For the reasons stated by the judge, we adopt her finding that the Respondent violated Sec. 8(a)(5) and (1) of the Act when it placed Union President Abel Luciano on unpaid, 6-month leave without first notifying the Union and providing it an opportunity to bargain. We also adopt the judge’s finding that the Respondent violated Sec. 8(a)(3) and (1) by placing Luciano on an unpaid 6-month leave because he engaged in protected union activity. In doing so, we note that the judge properly applied Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in NLRB v. Transportation Management Corp., 462 U.S. 393 (1983), and citing Tschiggfrie Properties, Ltd., 368 NLRB No. 120 (2019), correctly stated that the General Counsel is not required to show a “causal nexus” between the employer’s animus and its adverse action. We note that after the judge issued her decision, the Board clarified in Intertape Polymer Corp., 372 NLRB No. 133, slip op. at 6, 13 (2023), that Tschiggfrie “did not alter the Board’s longstanding articulation of the General Counsel’s evidentiary burden under Wright Line” and that therefore “the General Counsel need not produce separate or additional evidence of particular- ized animus toward an employee's own protected activity or of a causal ‘nexus’ between the protected activity and the adverse action to meet her burden.” Having found that the Respondent violated Sec. 8(a)(5) by plac- ing Luciano on unpaid, 6-month leave, Chairman McFerran would find it unnecessary to pass on whether the Respondent also violated Sec. 8(a)(3) by its actions, as doing so would not materially affect the remedy. In addition, we affirm the judge’s finding that the Respondent violated Sec. 8(a)(5) and (1) by prematurely declaring a single-issue impasse and implementing its last, best, and final offer on Art. 27 of the successor collective-bargaining agreement. As the judge explained, the party as- serting impasse based on a single issue must establish that: (1) a good- faith impasse existed as to a particular issue; (2) the issue was critical; and (3) the impasse on this critical issue led to a breakdown in overall the judge’s rulings, findings,1 and conclusions,2 and to adopt the recommended Order as modified and set forth in full below.3 AMENDED REMEDY Having found that the Respondent engaged in certain unfair labor practices, we shall order it to cease and desist and to take certain affirmative action designed to effectu- ate the policies of the Act. Specifically, we amend the judge’s remedy in the following respects. Having found in agreement with the judge that the Re- spondent violated Section 8(a)(5) and (1) by placing Abel Luciano on unpaid, 6-month leave without first notifying the Union and providing it an opportunity to bargain, we amend the judge’s recommended remedy to add a limited bargaining order. This is in addition to the judge’s recom- mended affirmative bargaining order, which remedies the Respondent’s additional Section 8(a)(5) and (1) violation of prematurely declaring a single-issue impasse and im- plementing its last, best, and final offer on Article 27 of the successor collective-bargaining agreement.4 negotiations—in short, that there can be no progress on any aspect of the negotiations until the impasse relating to the critical issue is resolved. Thus, a failure to prove any one of these elements precludes a finding of a single-issue impasse. CalMat Co., 331 NLRB 1084, 1097 (2000). To begin, we note that no exceptions have been filed to the judge’s finding that the Respondent established the second factor: that Art. 27—Working Hours and Payment Method—was a critical issue to both parties. How- ever, we agree with the judge that the Respondent failed to establish the third factor: that the parties’ disagreements over the critical issue of Art. 27 led to a breakdown in overall negotiations. As the judge explained, the record clearly shows that the parties continued to bargain produc- tively and even reached agreement on several other articles of the suc- cessor collective-bargaining agreement after the Respondent declared impasse. We also affirm the judge’s finding that the Respondent failed to establish the first factor: that there was a good-faith impasse as to Art. 27. In addition to the reasons stated by the judge, we note that there was movement by both parties in their bargaining proposals for Art. 27 up until the Respondent declared impasse, indicating neither party was at the “end of their rope” on the issue, as is required for a finding of im- passe. Nexeo Solutions, LLC, 364 NLRB 570, 581 (2016) (quoting Lars- dale, Inc., 310 NLRB 1317, 1318 (1993)). Accordingly, we find, in agreement with the judge, that the Respondent failed to show there was a lawful single-issue impasse before unilaterally implementing its last, best, and final offer for Art. 27. In agreeing with her colleagues that the Respondent violated Sec. 8(a)(5) in this respect, Chairman McFerran re- lies solely on the judge’s analysis of factor 3 to find that the Respondent failed to establish that the alleged impasse as to Art. 27 led to an overall breakdown in negotiations. 3 We shall modify the judge’s recommended Order to conform to her unfair labor practice findings, the Board’s standard remedial language, and in accordance with our decisions in and Paragon Systems, Inc., 371 NLRB No. 104 (2022), and Excel Container, Inc., 325 NLRB 17 (1997). We shall substitute a new notice to conform to the Order as modified. 4 Both a limited and an affirmative bargaining order are necessary to fully remedy the Respondent’s separate 8(a)(5) and (1) violations. See, e.g., Arbah Hotel Corp. d/b/a Meadowlands View Hotel, 371 NLRB No. 126 (2022) (including both affirmative and limited bargaining orders); Badger Packing Corp., 370 NLRB No. 1 (2020) (same). The limited DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 We also amend the judge’s remedy to provide that the make-whole remedy for all unit employees impacted by the Respondent’s Article 27 schedule change shall be computed in accordance with Ogle Protection Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), rather than with F. W. Woolworth Co., 90 NLRB 289 (1950). The Ogle Protection formula applies where, as here, the Board is remedying “a violation of the Act which does not involve cessation of employment status or in- terim earnings that would in the course of time reduce backpay.” Ogle Protection Service, 183 NLRB at 683; see also Pepsi-America, Inc., 339 NLRB 986, 986 fn. 2 (2003). To the extent that the Respondent’s schedule change caused any loss of employment, the parties may address the appropriate computation of the remedy in compliance. Finally, having found in agreement with the judge that the Respondent violated Section 8(a)(3) and (1) by placing Abel Luciano on unpaid, 6-month leave because he en- gaged in protected union activity, we shall amend the rem- edy provided in the judge’s decision to require that the Re- spondent, to the extent it has not already done so, offer Abel Luciano full reinstatement to his former job, or, if that job no longer exists, to a substantially equivalent po- sition.5 ORDER The National Labor Relations Board orders that the Re- spondent, Compañia Cervecera de Puerto Rico, Maya- güez, Puerto Rico, its officers, agents, successors, and as- signs, shall 1. Cease and desist from (a) Imposing unpaid leave or otherwise discriminating against employees because of their support for and activi- ties on behalf of Union Independiente de Trabajadores de Cerveceria India (the Union). (b) Failing and refusing to bargain in good faith with the Union as the exclusive collective-bargaining repre- sentative of the employees in the bargaining unit. (c) Changing the terms and conditions of employment of its unit employees without first notifying the Union and giving it an opportunity to bargain. (d) Changing the terms and conditions of employment of its unit employees while engaged in collective bargaining order remedies the Respondent’s unilateral change by requir- ing it to notify and, on request, bargain with the Union before implement- ing any changes in wages, hours, and other terms and conditions of em- ployment. And the affirmative bargaining order remedies the Respond- ent’s premature declaration of impasse by requiring it, on request, to bar- gain with the Union concerning terms and conditions of employment and, if an understanding is reached, to embody the understanding in a signed agreement. Because the Respondent did not except to the judge’s recommended affirmative bargaining order, we find it unnecessary to provide bargaining without having reached agreement or a lawful overall impasse. (e) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Within 14 days from the date of this Order, and to the extent it has not already done so, offer Abel Luciano full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prej- udice to his seniority or any other rights or privileges pre- viously enjoyed. (b) Make Abel Luciano whole for any loss of earnings and other benefits, and for any other direct or foreseeable pecuniary harms, suffered as a result of the discrimination against him, in the manner set forth in the remedy section of the judge’s decision. (c) Compensate Abel Luciano for the adverse tax con- sequences, if any, of receiving a lump-sum backpay award, and file with the Regional Director for Region 12, 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 year(s). (d) File with the Regional Director for Region 12, 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 Abel Luciano’s corresponding W-2 form(s) re- flecting the backpay award. (e) Within 14 days from the date of this Order, remove from its files any reference to the unlawfully-imposed un- paid leave, and within 3 days thereafter, notify Abel Luci- ano in writing that this has been done and that the unlaw- fully-imposed unpaid leave will not be used against him in any way. (f) Preserve and, within 14 days of a request, or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place desig- nated by the Board or its agents, all payroll records, social security payment records, timecards, personnel records and reports, and all other records, including an electronic copy of such records if stored in electronic form, a justification for that remedy. See Scepter v. NLRB, 280 F.3d 1053, 1057 (D.C. Cir. 2002); Exxel/Atmos, Inc. v. NLRB, 147 F.3d 972, 978 (D.C. Cir. 1998), cert. denied 525 U.S. 1067 (1999); SKC Electric, Inc., 350 NLRB 857, 862 fn. 15 (2007); Heritage Container, Inc., 334 NLRB 455, 455 fn. 4 (2001). 5 While the judge included a reinstatement provision in her recom- mended Order and notice, she inadvertently failed to provide for Luci- ano’s reinstatement in her remedy. We correct this omission. COMPAÑIA CERVECERA DE PUERTO RICO 3 necessary to analyze the amount of backpay due under the terms of this Order. (g) Before implementing any changes in wages, hours, or other terms and conditions of employment of unit em- ployees, notify and, on request, bargain with the Union as the exclusive collective-bargaining representative of em- ployees in the following bargaining unit: All employees in the classifications of general labor (Group A), bottling operators, logistic operators, physi- cal plant maintenance, starters and substitutes (Group B), elaboration “brewing” operators, beer technicians, utility monitoring technicians, greasers and mechanics, electricians, and welders (Group C), and quality control analysts, water treatment plant operators, certified “ex- pert” electricians and electro mechanics (Group D); ex- cluding all executives, professionals, clerks, janitors, messengers[,] administrative personnel, guards, and su- pervisors as defined by the Act. (h) On request by the Union, rescind the changes in the terms and conditions of employment for its unit employ- ees that were unilaterally implemented on April 28, 2022, and August 15, 2022. (i) On request, bargain with the Union as the exclusive collective-bargaining representative of the employees in the above appropriate unit concerning terms and condi- tions of employment and, if an understanding is reached, embody the understanding in a signed agreement. (j) Make affected unit employees whole for any loss of earnings and other benefits suffered as a result of the un- lawful unilateral changes implemented on April 28, 2022, and August 15, 2022, in the manner set forth in the judge’s decision as amended in this decision. (k) Compensate affected unit employees for the adverse tax consequences, if any, of receiving lump-sum backpay awards, and file with the Regional Director for Region 12, within 21 days of the date the amount of backpay is fixed, either by agreement or Board Order, a report allocating the backpay awards to the appropriate calendar year for each employee and a copy of the corresponding W–2 forms re- flecting the backpay award. (l) File with the Regional Director for Region 12, within 21 days of the date the amount of backpay is fixed by agreement or Board order or such additional time as the 6 If the facility involved in these proceedings is open and staffed by a substantial complement of employees, the notice must be posted within 14 days after service by the Region. If the facility involved in these pro- ceedings is closed or not staffed by a substantial complement of employ- ees due to the Coronavirus Disease 2019 (COVID-19) pandemic, the no- tice must be posted within 14 days after the facilities reopen and a sub- stantial 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 Regional Director may allow for good cause shown, a copy of each backpay recipient’s corresponding W-2 form(s) reflecting the backpay award. (m) Post at its Mayagüez, Puerto Rico facility copies of the attached notice marked “Appendix A”6 in both English and in Spanish. Copies of the notice, on forms provided by the Regional Director for Region 12, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent and maintained for 60 consecu- tive 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 dis- tributed electronically, such as by email, posting on an in- tranet or an internet site, and/or other electronic means, if the Respondent customarily communicates with its em- ployees by such means. Reasonable steps shall be taken by the Respondent to ensure that the notices are not al- tered, 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 dupli- cate 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 April 28, 2022. (n) Within 21 days after service by the Region, file with the Regional Director for Region 12 a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to com- ply. Dated, Washington, D.C. April 30, 2024 ______________________________________ Lauren McFerran, Chairman ______________________________________ David M. Prouty, Member ________________________________________ Gwynne A. Wilcox, Member (SEAL) NATIONAL LABOR RELATIONS BOARD 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 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 Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we vi- olated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected ac- tivities. WE WILL NOT impose unpaid leave or otherwise dis- criminate against any of you for supporting Union Inde- pendiente de Trabajadores de Cerveceria India (the Un- ion) or any other labor organization. WE WILL NOT fail and refuse to bargain in good faith with the Union as the exclusive collective-bargaining rep- resentative of our employees in the bargaining unit. WE WILL NOT change your terms and conditions of em- ployment without first notifying the Union and giving it an opportunity to bargain. WE WILL NOT change your terms and conditions of em- ployment while engaged in collective bargaining without having reached agreement or a lawful overall impasse. 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, and to the extent we have not already done so, offer Abel Luciano full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights or privileges previously enjoyed. WE WILL make Abel Luciano whole for any loss of earnings and other benefits resulting from his unlawfully- imposed unpaid leave, less any net interim earnings, plus interest, and WE WILL also make him whole for any other direct or foreseeable pecuniary harms suffered as a result of the unlawfully-imposed UNPAID leave, including rea- sonable search-for-work and interim employment ex- penses, plus interest. WE WILL compensate Abel Luciano for the adverse tax consequences, if any, of receiving a lump-sum backpay award, and WE WILL file with the Regional Director for Region 12, 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 cal- endar year(s). WE WILL file the Regional Director for Region 12, 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 Abel Luciano’s corresponding W-2 form(s) re- flecting the backpay award. WE WILL, within 14 days from the date of the Board’s Order, remove from our files any reference to the unlaw- fully-imposed unpaid leave, and WE WILL , within 3 days thereafter, notify Abel Luciano in writing that this has been done and that the unlawfully-imposed unpaid leave will not be used against him in any way. WE WILL, before implementing any changes in wages, hours, or other terms and conditions of employment of unit employees, notify and, on request, bargain with the Union as the exclusive collective-bargaining representa- tive of our employees in the following bargaining unit: All employees in the classifications of general labor (Group A), bottling operators, logistic operators, physi- cal plant maintenance, starters and substitutes (Group B), elaboration “brewing” operators, beer technicians, utility monitoring technicians, greasers and mechanics, electricians, and welders (Group C), and quality control analysts, water treatment plant operators, certified “ex- pert” electricians and electro mechanics (Group D); ex- cluding all executives, professionals, clerks, janitors, messengers[,] administrative personnel, guards, and su- pervisors as defined by the Act. WE WILL, on request by the Union, rescind the changes in the terms and conditions of employment for our unit employees that were unilaterally implemented on April 28, 2022, and August 15, 2022. WE WILL, on request, bargain with the Union as the ex- clusive collective-bargaining representative of our em- ployees in the above appropriate unit concerning terms and conditions of employment and, if an understanding is reached, embody the understanding in a signed agreement. WE WILL make affected employees whole for any loss of earnings and other benefits suffered as a result of our unlawful unilateral changes, including the changes to your scheduled hours and days of work, plus interest. WE WILL compensate affected employees for the ad- verse tax consequences, if any, of receiving lump-sum backpay awards, and WE WILL file with the Regional Di- rector for Region 12, within 21 days of the date the amount of backpay is fixed, either by agreement or Board order, a report allocating the backpay awards to the appropriate calendar year for each employee and a copy of the corre- sponding W–2 forms reflecting the backpay award. COMPAÑIA CERVECERA DE PUERTO RICO 5 WE WILL file the Regional Director for Region 12, 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. COMPAÑIA CERVECERA DE PUERTO RICO. The Board’s decision can be found at https://www.nlrb.gov/case/12-CA-295428 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. Isis Ramos Melendez, Esq. and Hiranice M. Carrasquillo Diaz, Esq., for the General Counsel. Giovanna P. Moreno, Esq. and Rocio De Felix Davila, Esq., for Respondent. Nomar A. Torres, Esq., for the Charging Party. DECISION STATEMENT OF THE CASE KIMBERLY SORG-GRAVES, Administrative Law Judge. On May 15–17, 2023, I conducted a hearing in the above-captioned case in San Jaun, Puerto Rico, based on charges filed between May 2022 and August 2022, by the Union Independiente de Tra- bajadores de Cerveceria India (the Union) in Cases 12–CA– 295428 and 12–CA–301300, with Region 12 (the Region) of the National Labor Relations Board (the Board). The charges, as amended, allege that Compañía Cervecera de Puerto Rico, Inc. (the Respondent): 1) violated Section 8(a)(3) and (1) of the National Labor Re- lation Act (“the Act”) by placing its employee and the president of the Union, Abel Luciano (the “Union President”), in 6-month, unpaid union leave as a result of his participation in concerted activities, thereby discouraging such activities including mem- bership in a labor organization; 2) violated Section 8(a)(5) and (1) of the Act by placing the Union President on prolonged unpaid union leave without prior 1 Abbreviations used in this decision are as follows: “Tr.” for the Transcript, “Jt. Exh.” for joint exhibits, “GC Exh.” for the General Coun- sel’s exhibits, “GC Brief” for General Counsel’s posthearing brief, “R. Exh.” for Respondent’s exhibits, and “R. Brief” for Respondent’s posthearing brief. Specific citations to the transcript and exhibits are in- cluded where appropriate to aid review and are not necessarily exclusive or exhaustive. My findings and conclusions are not based solely on the notice to the Union and without affording the Union an oppor- tunity to bargain on the conduct or its effects, and without first bargaining with the Union to a good-faith impasse for a succes- sor collective-bargaining agreement (CBA); 3) violated Section 8(a)(5) and (1) of the Act by announcing it would implement and then unilaterally implementing its “best and final offer” with respect to the successor CBA’s Article 27 work-schedule provision, without first bargaining with the Un- ion toan overall good-faith impasse for a successor CBA, and thereby failing and refusing to bargain collectively and in good faith with the Union. A complaint in Case 12–CA–295428 issued on September 12, 2022, and Respondent filed its answer on October 3, 2022. A complaint in Case 12–CA–301300 issued on March 28, 2023, and Respondent filed its answer on April 11, 2023. On March 31, 2023, the Region ordered the two cases consolidated under Case 12–CA–295428. (GC Exh. 1(a)–(s).)1 Both parties timely filed posthearing briefs. On the entire record, including my assessment of witness de- meanor and the briefs filed by the parties and the General Coun- sel, I make the following FINDINGS OF FACT I. JURISDICTION AND LABOR ORGANIZATION STATUS Respondent is a Puerto Rico corporation engaged in the pro- duction and nonretail sale of beer and other beverages, with its principal office and place of business in Mayaguez, Puerto Rico. Respondent annually sells and ships from its facility in Ma- yaguez goods valued in excess of $50,000, directly to points out- side of the Commonwealth of Puerto Rico. Respondent admits, and I find, that it has been an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. And Respondent admits, and I find, that the Union is a labor organi- zation within the meaning of Section 2(5) of the Act. (GC Exh. 1(s); GC Exh. 1(l); Jt. Exh. 2(a)–(b)). II. ALLEGED UNFAIR LABOR PRACTICES AND ANALYSIS A. Background Respondent, a corporation with its principal place of business in Mayaguez, Puerto Rico, is engaged in the production and non- retail sale of beer and other beverages. (Tr. 59.) Maribel Montes has been general manager at Respondent since October 2017, having worked at the company for 31 years. (Tr. 202.2) Agnes Escalera Hernández (Escalera) has been human resources man- ager at Respondent since summer 2018. Escalera is involved in the “management . . . recruiting, selection, [and] training” of staff, and “manage[s]” the company’s “collective agreement pol- icies.” (Tr. 57–58.) Escalera participated in the bargaining of Re- spondent’s 2018 collective-bargaining agreement (the 2018 CBA) as well as in the still-ongoing successor contract record citations contained in this decision, but rather are based upon my consideration of the entire record for this case. 2 Starting at the bottom of Tr. 202, the transcript mistakenly refers to "Ms. Moreno" as direct-examining Montes, when in fact it appears to have been Ms. Melendez. This continues until the bottom of Tr. 209, at which time Melendez is again attributed. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 6 (successor CBA) negotiations. (Tr. 233–234.) The Union represents a bargaining unit of some 120 employ- ees (the bargaining unit) working at Respondent’s production fa- cility.3 (Tr. 63, 140; GC Exh. 1(g).) The Union has negotiated CBAs between Respondent and the bargaining unit for at least 30 years. (Tr. 203; R. Br. 32.) The Union President works for Respondent as a bottling operator. (Tr. 149.) The 2018 CBA4 was in effect from September 6, 2018, until September 5, 2021. (Tr. 204.) The parties’ negotiation rules stip- ulated that the 2018 CBA would be extended until December 7, 2021, if they did not reach an agreement prior to September 6, 2021. (Jt. Exh. 10(a)–(b).) The parties then executed a second extension through January 31, 2022. (Jt. Exh. 3(a)–(b).) The first successor CBA bargaining meeting between the parties occurred in July of 2021, and bargaining rules were agreed upon on Au- gust 5, 2021.5 (Jt. Exh. 10(a)–(b); Tr. 115–16.) As of the dates of the hearing, the parties still had not successfully finalized nor proposed a complete successor CBA, though bargaining com- mittee meetings have remained ongoing, with a meeting— though “not to negotiate per se”—apparently held as recently as March 23, 2023. (Tr. 63.) B. Alleged Retaliation and Prolonged Unpaid Union Leave Article 34 of the 2018 CBA stipulates that Respondent grants varying forms of leave to the Union’s leadership and their de- signees for the purpose of conducting official union business. (Jt. Exh. 2(a)–(b).) Article 34, Section 6 provides that Respondent employees’ taking of sporadic leave for union business is limited to 120 hours “per year of agreement,” for the Union’s board members, and “up to” 200 hours, per each contract year, for the president of the Union. (Jt. Exh. 2(a)–(b).) Section 6 further stip- ulates what should happen if “more time is needed” by a union leader for official union leave, in excess of those limitations. General Counsel and Respondent differ in their translation of the provision. The court interpreter’s English-language translation most-closely tracks with Respondent’s translation and reads: “Should there be a need for greater time, the employee shall requesta prolonged leave without pay, no less than six months” (emphasis added). (Tr. 50.) 3 The bargaining unit includes “All employees in the classification of general labor (Group A), bottling operators, logistic operators, physical plant maintenance, starters and substitutes (Group B), elaboration ‘brewing’ operators, beer technicians, utility monitoring technicians, greasers and mechanics, electricians, welders (Group C), and quality control analysts, water treatment plant operators, certified ‘expert’ elec- tricians and electro mechanics (Group D); excluding all executives, pro- fessionals, clerks, janitors, messengers[,] administrative personnel, guards, and supervisors as defined by the Act.” (GC Exh. 1(o); GC Exh. 1(s).) 4 The 2018 CBA was written in Spanish, as were many of the com- munications between the parties. The parties agreed to joint stipulations on English-language translations of documents, with limited exceptions to those translations laid out clearly in the record by Respondent. (Jt. Exh. 1.) The translation disagreements all involve whether the Spanish word “deberá,” as used in Article 34 of the CBA, should be translated as “should” (General Counsel’s translation) or “must” (Respondent’s trans- lation). See fn. 19. Respondent claims Section 6 gives the employer the authority to unilaterally impose 6-month, unpaid leave, while the Union and General Counsel maintain that Respondent has no clear right un- der the 2018 CBA. For reasons discussed below, I agree with General Counsel that Section 6 does not give Respondent the au- thority to unilaterally impose the prolonged leave. There is no dispute as to the translation of the following, final sentence of that section, which clarifies that the hour-limit does not apply to time spent in collective bargaining agreement meetings where both sides are present. (Jt. Exh. 2(a)–(b).) According to Escalera, Respondent’s HR manager,6 the ra- tionale for the hourly limit is that members of Union leadership “are regular employees of the company” such that every “ab- sence affects the . . . effectiveness of production,” as the Re- spondent “cannot hire someone for one day to cover an absence.” (Tr. 284.) Thus, the 6-month prolonged union leave provision was negotiated as “it allows [Respondent] to hire someone for those six months to cover” the absence of one of the union board members or the union president, if or when they exhaust their sporadic union leave allotment. (Tr. 285.) The circumstances surrounding the first charge in this consol- idated case arises from Respondent, on April 28, 2022, notifying the Union President in person and in writing that he had ex- hausted his 200 hours of sporadic leave and was being placed out on 6-month, unpaid union leave, effective from April 28 through October 28, 2022. (Jt. Exh. 8(a)–(b).) By April 28, 2022, the Union President had taken 203 hours of union leave during the September 2021–September 2022 con- tract year. (Jt. Exh, 8(a)–(b).) Despite that, Respondent’s letter advising the prolonged leave erroneously claimed the Union President had “been absent on official union business for a total of 231 hours” through April 27, 2022. (Jt. Exh, 8(a)–(b).) During the hearing, Escalera reviewed the letter’s attached timesheet and conceded that 203 hours was the correct number. (Tr. 90–91.) Of those 203 hours, at least 24 were specifically marked in Re- spondent’s list as relating to Board matters. (Jt. Exh, 8(a)–(b).) As I discuss below, the Union was during this period pursuing a Board charge over Respondent’s July 2021 unilateral work- schedule change—a charge that continued to progress through 5 Respondent asserts that bargaining rules were signed on July 22, 2021, but Escalera testified the rules were signed on August 5, 2021. (R. Brief 10; Tr. 115–16.)) 6 My findings of fact encompass the credible testimony, evidence presented, and logical inferences from the evidence. Double D Construc- tion Group, 339 NLRB 303, 303–305 (2003); Daikichi Sushi, 335 NLRB 622, 623 (2001) (citing Shen Automotive Dealership Group, 321 NLRB 586, 589 (1996)), enfd. 56 Fed.Appx. 516 (D.C. Cir. 2003). Credibility findings regarding any witness are not likely to be an all-or-nothing de- termination and I may believe that a witness testified credibly regarding one fact but not on another. Daikichi Sushi, 335 NLRB at 622. I find that Escalera often avoided directly answering the question posed in a way that she did not do when answering questions by the Counselors for Re- spondent. Her refusal to directly answer questions often prompted a se- ries of follow-up questions by General Counsel to which Escalera’s an- swers showed her bias in framing her responses in a manner favorable to Respondent instead of responding with straight forward factual re- sponses. Noting this tendency of Escalera in making my factual findings here, I considered her bias in assessing her testimony, especially where it conflicts with documentary evidence. COMPAÑIA CERVECERA DE PUERTO RICO 7 fall 2021 and early 2022, before being withdrawn as part of a non-Board agreement between Respondent and the Union in March 2022. (GC Exh. 2; Case12–CA–280072; Jt Exh. 11(a)– (b).) In her testimony, Escalera insisted Respondent did not force or “impose” the 6 months of leave upon the Union President: “[Extended union leave] has never been imposed at any time.” (Tr. 93.) Instead, Escalera testified to Respondent’s view that the prolonged union leave was a duty that “cannot be ignored” once the 200-hour sporadic union leave limit has been met, such that the Union President “had to use” the provided prolonged leave after taking more than 200 sporadic union leave hours during the 2021–2022 contract year. (Tr. 168–169.) That was not Respondent’s posture the prior year. During con- tract year 2020–2021, the union president likewise exceeded his 200 hours of sporadic union leave, but without Respondent ever imposing or indicating it could and would impose a 6-month pro- longed leave. (Tr. 91.) On April 23, 2021, Respondent sent the Union President a letter advising that he had already taken 192 hours in sporadic union leave during that 2020–2021 contract year. (Jt. Exh. 4(a)–(b).) On May 4, 2021, Respondent sent the Union President a second letter informing that he had, by that date, charged a total of 200 hours to sporadic union leave, and “should request a prolonged leave without pay of not less than six (6) months” if “you need more time” (emphasis added). (Jt. Exh. 5(a)–(b).) Despite that notice, the Union President subsequently used sporadic union leave during the 2020–2021 contract year on at least 5 additional occasions, for a total of 28 more hours,7 with- out taking any prolonged union leave or having any such leave imposed by Respondent. (Jt. Exhs. 5(a)–(b) and 8(a)–(b).) Though the Union President was allegedly repeatedly “told that [his hours] were exhausted,” the record shows Respondent nev- ertheless continued to approve his union leave, without any ad- verse consequences—including on those days when it advised him that he had already exceeded his sporadic leave allotment. (Tr. 101–102, 199; GC Br. 13–14; Jt. Exh. 8(a)–(b).) Roughly 1 month after the May 4, 2021 letter, the parties be- gan bargaining the successor agreement, in June 2021. (Tr. 115– 116; R. Br. 10.) Escalera testified that Respondent did not apply the prolonged union leave in 2021 because “we got started [with] the negotiation” and “in order to keep the good employer-em- ployee relations at that time, [the Union President] wasn’t writ- ten to use the prolonged Union leave.” (Tr. 170–171.) Review- ing a sworn statement that she gave to a Board agent on August 9, 2022 (in Case 12–CA–295428), Escalera conceded that she had not, at the time of that affidavit, provided any similar (or alternative) explanation as to why the Respondent treated the Union President’s excessive leave differently in 2021 versus 2022. (Tr. 191, 197–198.) The Union President was never issued any discipline for being 7 From June 3, 2021, through the end of the 2021 contract year on September 5, the record shows that the Union President took at least 28 additional hours in sporadic union leave, including: 8 hours on June 3; 4 hours on July 22; 4 hours on August 5; 8 hours on August 6; and 4 hours on August 11. (Jt. Exh. 8(a)–(b).) absent from work due to taking sporadic union leave, after ex- ceeding the 200-hour limit. (Tr. 300–301.) Still, Respondent em- phasizes that the Union President was subject to disciplinary ac- tions on other grounds. On August 26, 2021, the Union President was issued a suspension letter notifying him that he was subject to a disciplinary action,8 and was being suspended without pay from August 27, 2021, until September 26, 2021. (R. Exh. 6(a)– (b).) The letter further advised that, because of his overall disci- plinary record, an additional, future disciplinary violation could—under the then-active 2018 collective bargaining agree- ment— result in his termination. (R. Exh. 6(a)–(b); Tr. 299; R. Br. 7.) Respondent argues, therefore, that it would have been within its rights, in April 2022, to terminate the Union President outright, once he continued to take sporadic union leave beyond his 200-hour allotment, such that instead “plac[ing]” him on a prolonged union leave “actually protected his position,” com- pared to “implementing disciplinary action” in the form of ter- mination. (Tr. 224, 226.) Respondent also emphasizes that the Union President some- times did not follow the proper protocol for requesting union leave, which required filling out and submitting a form. (R. Exh. 3(a)–(b); Tr. 286.) During the hearing, the parties agreed to a joint stipulation that “On multiple occasions, at least 37, between 2020 and at least March of 2022, [the Union President] sent emails giving notification that he was taking Union time. In the majority of those cases, the email was sent the same day he was taking the Union time. On a few of them, he gave a one or two- day notice.” (Tr. 363–64.) Respondent maintains that the two (September and December 2021) extensions of the 2018 CBA did not effectuate an addi- tional contract year and so did not provide the Union President with any additional hours of sporadic union leave. Rather, Escalera testified to her belief that the extension of the bargain- ing agreement as to the Article 34 union leave was “limited” (Tr. 159), and that when the parties failed to sign a new contract by the initial December 7 and subsequent January 31 extension ex- piration dates, that the 200 hours of union leave reverted back to being “calculated from September 6 of [2021], until September the 5th of [2022],” as dictated under the 2018 CBA. (Tr. 161; R. Br 4.) HR Manager Escalera provided confusing and contradictory evidence on this point during the trial. During direct questioning by General Counsel, Escalera at first testified to her belief that everything in the collective bargaining agreement was extended via the first, September 2021 extension of the bargaining agree- ment. (Tr. 103.) Then, Escalera said, in response to a clarification question from the bench, that she understood the 3-month con- tract extension would have provided the Union President with an additional, renewed 200 hours beginning on September 7, 2021, the first day of the 3-month extension. (Tr. 105.) But after that question was translated a second time, Escalera said that she did 8 The disciplinary letter explains that the Union President was being disciplined for reporting to a work area on his scheduled day off, in ap- parent protest of Respondent’s unilateral July 2021 work-schedule change, and then refusing to leave the area when instructed while insist- ing that he worked the schedule provided for under the 2018 CBA. (R. Exh. 6(a)–(b).) DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 8 not believe it had been renewed in full under that extension. (Tr. 106.) Later, during examination by counsel for Respondent, Escalera called the extension “limited” with respect to the Article 34 union leave. (Tr. 159.) Shortly thereafter, counsel for Re- spondent asked Escalera to clarify her perspective on how the “three months extension affect[ed] the definition of contract year of Article 34.” Escalera answered prior to the translation of the question and then reiterated, via the Interpreter, “In no way.”9 Escalera ultimately testified she believed that the extensions temporarily created a 15-month contract year, running from Sep- tember 2020 through December 2021, but without allocating any proportional increase in sporadic union-leave hours. (Tr. 165.) That is the evident basis on which Escalera denied the Union President sporadic union leave on December 1, 2021, advising him that “[Y]our union leave is exhausted therefore your ab- sences cannot be adjudicated to it. We urge you once again to request the extended union leave provided by the agreement for these purposes so that your disciplinary file related to these un- justified absences does not affect you . . . .” (Jt. Exh. 6(a)–(b).) Notably, despite this apparent threat of disciplinary action, Escalera clarified that the Union President was never, at any time, issued a formal disciplinary notice for being absent from work due to taking sporadic union leave. (Tr. 301.) Matching Escalera’s conflicted testimony on the 2021 exten- sions of the 2018 CBA, Respondent asserts in its brief that the extensions were effective as to “all its parts,” except that it did not effectuate a new, full contract year for union leave purposes, and instead merely extended the September 6, 2020–September 5, 2021 contract year to create a 15-month year without any ad- ditional sporadic union leave. (R. Br. 4.) However, there is no contemporaneous evidence in the record to support that interpre- tation, save for Escalera’s at-times inconsistent testimony at trial. To the contrary, the only documentary evidence in the record suggests that the 2018 CBA was unconditionally extended in full on each occasion. The parties’ negotiation rules stipulated that “if an agreement is not reached before September 6, 2021, the current Collective Agreement is extended until December 7, 2021.” (Jt. Exh. 10(a)–(b).) And the parties’ December 2021 ex- tension agreement dictated that the 2018 CBA would be “ex- tend[ed] . . . in all its parts,” specifying no union leave limitation. (Jt. Exh. 3(a)–(b).) C. Respondent’s Unilateral Imposition of Work-Schedule Changes The second charge in this case arises from Respondent’s Au- gust 15, 2022 unilateral implementation of its last, best, and final offer as to the Article 27 work schedule provisions of the succes- sor CBA, the only provision of the successor CBA that has been implemented as of the dates of the hearing. Respondent defends the unilateral imposition as justifiable because of an alleged 9 Respondent counsel objected that the question had not been trans- lated before the witness answered in English. Because the witness had at different times asked for clarification to questions presented in English before they were translated and after they had been translated, it was clear that she understood that she could seek clarification if she did not understand a question before answering it and that she understood much of what was asked in English. Thus, I cautioned counsel that a change in response based upon her objection and insistence may raise a credibility single-issue “impasse” over that article’s work-schedule provi- sions. 1. July 2021: Respondent’s first unilateral work-schedule change Since the 2018 CBA negotiation, Respondent has grown in scale and increased its exports across the United States, such that it allegedly needs to operate 24 hours per-day, 7 days per-week to meet the demand from its local and export markets. (Tr. 245.) Escalera testified that Respondent has operated under a 24/7 pro- duction schedule “for some periods” since 2018, dependent upon “the local demand” and exports. (Tr. 348.) Apparently as part of its efforts to meet that increased output demand, shortly after initiating bargaining over the successor CBA, Respondent, on July 6, 2021, unilaterally implemented a new 48-hour workweek schedule of 6 consecutive workdays, fol- lowed by 2 days off, that was contrary to the provisions of the then still-active 2018 CBA. (GC Exh. 2.) The work-schedule change contravened Article 27 of the then-active 2018 CBA, which dictates a regular work schedule of 5 days and 40 hours per week, preserving two consecutive days off for all workers, and a Monday through Friday schedule for all employees re- cruited prior to June 17, 2015, who are not otherwise assigned a rotating shift. (GC Exh. 5(a)–(b).) Escalera testified that of the 120 Union employees, “half” were hired prior to June 17, 2015. (Tr. 140.) The 2018 CBA’s Article 27 gave Respondent some limited ability to establish an alternate workweek, subject to op- erational need, so long as it maintained the 5-days-on, 2-days-off pattern that was required for all employees. (GC Exh. 5(a)–(b).) In response to Respondent’s July 6, 2021, work-schedule change, the Union filed a July 16, 2021, Board charge against Respondent. (GC Exh. 2; Case 12–CA–280072.) The amended complaint in that case was withdrawn on March 10, 2022, sub- ject to Respondent’s performance of a non-Board agreement with the Union. (GC Exh. 4.) The March 9, 2022, non-Board agreement provided Respondent would make bonus back-pay- ments to employees affected by the unilateral change and pro- vide bonus compensation for certain affected employees moving forward, while keeping Respondent’s unilaterally modified work schedule in place through June 30, 2022. The agreement stipu- lated that Respondent’s unilateral changes would expire and Ar- ticle 27, Section 1, of the 2018 CBA would be reinstated on July 1, 2022 (unless the parties had by then reached some other agree- ment). (Jt. Exh. 11(a)–(b).) 10 Escalera was highly evasive during questioning about the uni- lateral July 2021 work schedule change and the resulting Board charge and non-Board settlement agreement. (Tr. 120–130.) In particular, she was reluctant to admit that the settlement agree- ment was due to Respondent making unilateral changes that vi- olated Article 27 of the 2018 CBA, even though she did confirm issue. Respondent counsel opted to let the record stand as is. (Tr. 163– 164.) 10 Note that Sec. 2(d) of the non-Board agreement’s English transla- tion contains an apparent transcription error and should instead read, “On July 1, 2022, the provisions in Article 27, Section 1 and Article 16, Sec- tion 5 of the expired Collective Bargaining Agreement . . . shall be rein- stated” (emphasis added). (Jt. Exh. 11(a)–(b).) COMPAÑIA CERVECERA DE PUERTO RICO 9 that Respondent implemented a new work schedule on July 6, 2021, and that it consisted of a new schedule of 6 consecutive days working, followed by 2 days off. (Tr. 121, 127.) Pursuant to the non-Board agreement, on July 1, 2022, Re- spondent reverted to the work schedule prescribed by Article 27 of the 2018 CBA, according to Escalera. (Tr. 129–130.) Soon afterwards, however, Respondent declared an impasse with re- spect to the successor CBA iteration of Article 27, unilaterally implementing its latest version of the work-schedule provision on August 15, 2022. (Tr. 135–136.) 2. June 2021–July 2022: The parties’ successor CBA negotiations Respondent and the Union began negotiating the successor CBA in approximately June 2021. (R. Br. 10; Jt. Exh. 10(a)–(b); Tr. 115–116.) Despite Respondent soon after making the above- described work-schedule changes and therefore not following Article 27 of the 2018 CBA in “all the employees’ areas” at that time, the parties proceeded with contract negotiations, setting bargaining rules on August 5, 2021. (Jt. Exh. 10(a)–(b); Tr. 115– 16, 188.) The bargaining rules included a provision that the “par- ties will negotiate the articles in numerical order of the Agree- ment and first sign all the articles on which there is no difference and then go on to negotiate those on which there is a difference.” The rules also stipulated that “All the pre-agreements agreed by the parties in the negotiation, including the articles initiated are subject to ratification by UNION members through assembly and the Board of Directors of [Respondent].” (Jt. Exh. 10(a)– (b).) In November 2021, the Union requested to negotiate Article 27, which would have been out of the numerical order dictated by the parties’ negotiation rules (Jt. Exh. 10(a)–(b)). The reason given by the Union for doing so, according to Escalera, was “[t]o move along the negotiation” as the “Union spokesperson indi- cated that there was an invisible barrier for the Union in negoti- ation.” (Tr. 248–249.) However, the record contradicts Escalera’s narrative that the spokesperson meant or that the Un- ion treated Article 27 as a barrier to negotiation progress on other articles versus the overall negative impact on negotiations from the Union’s standpoint caused by Respondent’s unremedied uni- lateral change to the work hours. Considering the circumstances at the time this statement was made, I do not credit Respondent’s assertion that the statement should be seen as evidence support- ing the notice that the parties were at issue impasse that resulted in overall impasse as discussed below. On November 11, 2021, emails show the parties’ joint consid- eration of portions of Article 27 alongside portions of Article 23. (Jt. Exh. 31(a)–(b).) At that time, the Union also, on November 12, 2021, the submitted Respondent’s November 11 partial pro- posal on Article 27 to an assembly of bargaining unit members, where it was rejected. (Jt. Exh. 19(a)–(b).) On November 15, 2021, Respondent emailed the Union coun- terproposals for sections of Article 27 and a section of Article 23. (Jt. Exh. 31(a)–(b).) On November 26, 2021, the Union 11 Contemporaneously, in March 2022, the parties signed the previ- ously referenced non-Board agreement, which dictated that the work- schedule would revert to the terms dictated by the 2018 CBA on July 1, responded with counterproposals on those provisions, to which the Respondent replied with further counterproposals on Decem- ber 3, 2021. (Jt. Exh. 31(a)–(b).) On December 10, 2021, a 10:54 a.m. email from Respondent to the Union shows that the two par- ties were considering Article 27 proposals alongside proposals for other articles. (Jt. Exh. 31(a)–(b).) Later that day, a 12:57 p.m. email from the Union to Respondent contained counterpro- posals for both Article 27 and Article 23. (Jt. Exh. 31(a)–(b).) Contract negotiations on Article 27 and other provisions con- tinued into 2022. The record shows a several-month gap without emailed communication between the parties on Article 27, though it is clear the parties were engaging on other fronts. 11 (Jt. Exh. 31(a)–(b).) On May 13, 2022, the Union sent Respondent a 10:04 a.m. email attaching its proposals and counterproposals as to seven different articles, including for Article 27. (Jt. Exh. 31(a)–(b).) On May 23, Respondent sent the Union additional counterproposals on several provisions, including Article 27. Additional counterproposals were sent on June 7, 2022. (Jt. Exh. 31(a)–(b).) On June 16, 2022, at 9:36 a.m., Respondent sent the Union its “Ninth Counterproposal” as to Article 27, following “our de- tailed discussions . . . on June 13, 2022.” At that time, Respond- ent continued to insist upon a schedule of 5 consecutive work- days, followed by 1 or 2 days off. Respondent did not modify its prior offer of $0.80-per-hour bonus pay on Saturdays and dou- ble-pay on Sundays. (Jt. Exh. 31(a)–(b).) The Union responded that same day, at 11:12 a.m. reiterating its preference for a work schedule of 6 consecutive workdays, followed by 2 days off. The Union proposed double pay on the 6th day, 2.25-times pay on Sundays, and triple-pay where a worker’s 6th consecutive day falls on a Sunday. (Jt. Exh. 31(a)–(b).) On June 20, 2022, Re- spondent replied with counterproposals for Articles 16 and 27. On June 21, 2022, Respondent submitted its “final proposal” on Article 27. (Jt. Exh. 17(a)–(b)). The proposal reflected Re- spondent’s continuing preference for a schedule of 5 consecutive workdays, followed by either 1 or 2 days off. For regular work performed on Saturdays, Respondent offered an hourly bonus of $1.50, along with double pay for regular work performed on Sundays. (Jt. Exh. 17(a)–(b).) Escalera claimed that Section 1 of the Respondent’s final proposal for Article 27 was “taken from what the Union presented in its proposal,” explaining that “95 percent of the Union’s proposal” was “the same as” how it was phrased in the prior 2018–2021 collective-bargaining agreement, though “Taking out the grandfather bit” (presumably referring to how Article 27, Section 1 in the 2018 CBA provided disparate treatment for employees recruited prior to June 17, 2015). (GC Exh. 5(a)–(b); Tr. 250–51.) However, the 2018 CBA’s Article 27 and Respondent’s implemented Article 27 are, in fact, quite different. For example, the 2018 CBA guarantees 2 consecutive days off for unit members, each week. And Section 1 of the 2018 article stipulates that a rotating-shift workweek may not start later than Wednesday. By contrast, Respondent’s “final” Article 27 stipulates that a rotating shift may begin any day of the week, with a pattern of: 5 days on, 2 days off; 5 days on, 2 days off; 2022. Around this same time, it was on April 28, 2022, that Respondent notified the that he was being placed out on 6-month, unpaid leave, ef- fective immediately. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 10 and 5 days on, 1 day off; after which time the schedule then re- peats. (Jt. Exh. 17(a)–(b); GC Exh. 5(a)–(b).) Notably, Respondent’s final proposal for Article 27 was sub- mitted 10 days prior to the July 1, 2022 deadline for Respondent to reinstate portions of the 2018 CBA’s Article 27, pursuant to the March 2022 non-Board settlement agreement. At that dead- line, Respondent did evidently comply with the non-Board agreement and restore the 2018 CBA work-schedule provisions on July 1, 2022. (Tr. 131–132.) On July 17, 2022, an assembly of 77 bargaining unit employ- ees rejected Respondent’s June 21 “final offer” on Article 27. The Union allegedly reported this outcome to Respondent during their July 18 bargaining session. (Jt. Exh. 19(a)–(b); Tr. 258.) On July 18, 2022, the Union made a counterproposal on Arti- cle 27, proposing Respondent hire two additional shifts to work 12-hour workdays, each, on Saturdays and Sundays. The Union proposed double-pay for those shifts’ employees’ scheduled work beyond 8 hours-per-day; so, a proposed total of 32 paid hours for the 24 hours set to be worked by a given employee for the two weekend shift days. The proposal otherwise provided for a regular work schedule of 8 hours per day, 5 days per week, except for employees working rotating shifts. (Jt. Exh. 31(a)– (b).) On July 22, 2022, Respondent sent a letter to the Union claim- ing an impasse on Article 27. (Jt. Exh. 19(a)–(b).) The letter noted the parties had held 41 total collective-bargaining meet- ings since July 15, 2021, with a number of counterproposals ex- changed over that period. Respondent further emphasized that the Union’s employee assembly rejected its last, best, and final offer on July 17. The letter acknowledged the Union’s ongoing concern that Respondent’s final proposal would require some employees to not have Saturdays or Sundays off for a period of 4 months, attempting to rebut that claim by suggesting it is enough that such employees will still technically have some weekend hours off “to enjoying being with his or her family” when they are not sleeping or working. Respondent also argued in the letter that a given employee would still have approxi- mately 44 days off on Saturday or Sunday over a given year, out of 104 potential weekend days off in total. (Jt. Exh. 19(a)–(b).) The letter further criticized the Union for it July 18 proposal that departed from its prior counterproposal by renewing a pre- viously abandoned proposal that the Respondent should hire new shifts of employees to work exclusively on Saturdays and Sun- days, in consecutive, 12-hour workdays. Most critically, Re- spondent claimed an “impasse on Article 27 Work Schedule and Payment Method,” and urged the Union to “reconsider your po- sition and accept the Company’s last, best and final offer on this article.” (Jt. Exh. 19(a)–(b)). Evidently, the Union did not di- rectly and immediately reply to Respondent’s July 22, 2022 let- ter to dispute the existence of an impasse on Article 27. (Tr. 260.) During testimony, Escalera acknowledged that there was “[p]ossibly” space for additional negotiations on several contract provisions, at the time of the July 22 impasse letter, as it was “[c]orrect” that there were, by that point, still no final offers from 12 Escalera testified that Art. 8, on disciplinary action, was later signed by the parties at some point between August 2022 and May 2023. (Tr. 271.) Escalera testified that Art. 19 was supposedly not a vital article for Respondent on Articles 8, 14, 16, 17, 21, 23, 35, 36, 37, and 39. (Tr. 134–135). 3. August 2022: Alleged impasse and Respondent’s unilateral implementation of its last, best, and final offer on Article 27 On August 4, 2022, at 11:08 a.m., the Union sent Respondent its latest counterproposal for Article 8. (Jt. Exh. 20(a)–(b).) At 11:59 a.m., the Union sent Respondent its latest counterproposal for Article 19. (Jt. Exh. 20(a)–(b).) At 12:59 p.m., Respondent sent the union its latest counteroffer for Article 8 and reaffirmed it would stick to its prior final proposal on Article 19 and not consider the Union’s latest proposed modifications.12 (Jt. Exh. 21(a)–(b).) One hour later, at 2 p.m., Respondent sent a letter to the Union informing that Respondent’s final offer on Article 27 would be unilaterally implemented on August 15, 2022. (Jt. Exh. 22.) In testimony, Escalera acknowledged that, on that same day, the parties were simultaneously exchanging communications re- garding other contract articles and provisions. (Tr. 136.) Escalera further acknowledged that Respondent did not declare an im- passe with respect to any other articles at that time. (Tr. 136– 137.) On August 5, 2022, Respondent formally communicated the upcoming unilateral work-schedule change to all employees. Re- spondent’s letter explicitly notified that the unilateral implemen- tation of Article 27 would mean “a change in the [work-sched- ule] itinerary” for some employees. (Jt. Exh. 29(a)–(b).) On August 13, 2022, the Union President emailed Respondent the Union’s response to the August 4 implementation notice. The Union alleged that Respondent was seeking to create an impasse with no legal basis, and accused the Respondent of bargaining in bad faith, breaking collective-bargaining rules with its unilateral implementation, and disregarding regulations in a way that cre- ates an unfair labor practice. The letter argued that because the Union had shown an active interest in moving collective bargain- ing forward, including by continuing to bargain over and accept proposals submitted by Respondent, the existence of an impasse was not credible. The letter also advised that the unilateral im- plementation was illegal and eroded the ability of the parties to reach an overall agreement. The Union President closed his letter with a request for Respondent to “reconsider” and resume bar- gaining “to have discussions free of all animosity.” (Jt. Exh. 23(a)–(b).) On August 15, 2022, Respondent implemented the work schedule outlined in its final offer on Article 27. Though Escalera at times testified that Article 27 was “vital” to both par- ties she also denied that Respondent implemented Article 27 only because it was critical to Respondent: “No, that was not the reason.” (Tr. 180, 334.) Instead, she insisted that it was only so- implemented due to the Union assembly’s rejection in July 2022. (Tr. 334.) However, at other times in testimony Escalera differ- entiated Article 27 from articles that were not similarly imple- mented by describing those others as not similarly vital. (Tr. 335.) Montes, Respondent’s general manager, testified that, as Respondent, but the record shows that Respondent declared an additional impasse on that article, on September 8, 2022, informing the Union that it would implement it unilaterally. (Tr. 335; GC Exh. 8(a).) COMPAÑIA CERVECERA DE PUERTO RICO 11 of the August 4 implementation notice, Respondent determined that the parties had only reached an impasse as to Article 27, be- cause they were still bargaining over other articles across the en- tirety of the successor CBA. (Tr. 206–207; Jt. Exh. 22(a)–(b).) 4. August 2022—May 2023: Continuing negotiations after “Impasse” By August 18, 2022, the parties had signed 20 articles for the successor CBA. At that time, Respondent identified eighteen ad- ditional articles on which it was awaiting a Union response. (Jt. Exh. 25(a)–(b).) Successor CBA negotiations evidently continued at that time, despite Respondent’s implementation of its final offer on Article 27. (Tr. 142.) On August 19, 2022, the Union advised Respond- ent that it had moved to sign several Respondent proposals in hope of encouraging Respondent to agree to the Union’s pro- posal on Article 17. (Jt. Exh. 26(a)–(b).) Respondent countered that same day with mutually signed proposals for Articles 7 and 26, a further counterproposal for Article 17, and an advisement that Respondent was sticking with its prior final offer for Article 19. (Jt. Exh. 27(a)–(b).) Escalera testified that the Respondent did not seek to unilater- ally implement any other articles in the same way as it did Article 27. (Tr. 136–137). A similar claim was made by Montes, who testified that Respondent has, since August 2022, not declared an impasse over any other article. (Tr. 208). Those claims are contradicted by the record. Respondent sent a September 8, 2022, 5:04 p.m., email to the Union attaching a final proposal as to Article 18 and declaring an impasse on that article. (GC Exh. 7(a).) The email further advised that Respondent would, as a re- sult, implement its final proposal as to Article 18 on October 1, 2022. Escalera later admitted that she had received the email as part of the bargaining committee. (Tr. 337–338.) That same day, Respondent sent a 5:10 p.m. email to the Union attaching a final proposal as to Article 19 and declaring an impasse on that article. (GC Exh. 8(a).) The email further advised that the Respondent would implement its final proposal as to Article 19 on October 1, 2022. Escalera testified that neither of the articles were ulti- mately implemented by the Respondent “at the time being.” (Tr. 366.) Escalera was not aware of any communications to the Un- ion notifying it that Respondent no longer intended to implement those two articles. (Tr. 367.) 5. The state of parties’ successor contract negotiations as of the May 2023 trial Overall, following Respondent’s implementation of Article 27, Escalera testified it was her experience that, “There were fewer dates available for negotiation”; “[The Union] did not re- ply to our proposals”; and “[T]he caucuses were . . . more pro- longed during the time for negotiation.” (Tr. 264.) Escalera fur- ther testified that, after August 15, 2022, the parties met “maybe 20” times more, while “[m]ore than 10” meetings were canceled by the Union. (Tr. 264). According to Escalera, “[T]he Union denied replying to our proposals and . . . did not offer dates for . . . negotiating.” (Tr. 269; Tr. 273–274.) In its posthearing brief, Respondent alleges its unilateral August 2022 Article 27 change “fatally hindered negotiations altogether and has created a de facto general impasse in the negotiations” as “demonstrated by the Union’s reiterated unwillingness to present counterproposals to the Company’s proposals in other articles.” (R. Br. 34.) This caused Respondent to file its own charge with the Board, on De- cember 16, 2022 (R. Exh. 4; Case 12–CB–309135), alleging that the Union had refused to bargain “since or about November 18, 2022” and further that the Union had sought to cause Respondent to discriminate in favor of the Union President as to enforcement of its union leave policy. (Tr. 264.) That charge was dismissed on February 23, 2023. (R. Exh. 5.) As of the May 15–18, 2023 hearing in this matter, parties still had not signed a successor CBA. Respondent has not presented the Union with its best, final offer for a complete successor CBA, nor has it even made final offers on several articles. (Tr. 142– 143; Tr. 179.). While the parties did continue to sign additional articles after Respondent’s unilateral implementation of Article 27, it is evident that several articles still have not been finalized. (Tr. 179.) Escalera testified that the parties have allegedly signed “[f]ive or more” but “no more than 10” additional articles, after Re- spondent’s implementation of Article 27. (Tr. 269.) Later, she said that, to the best of her recollection, only 4 of those 18 articles listed as unresolved in Respondent’s August 18, 2022 letter were subsequently signed. (Tr. 271; Jt. Exh. 25(a)–(b).) Escalera noted that Respondent still has not submitted final offers for Articles 16 and 23, describing Article 23 as important to Respondent, but Article 16 less so. (Tr. 184–185.) LEGAL ANALYSIS I. RESPONDENT’S IMPOSITION OF PROLONGED UNPAID UNION LEAVE A. Union President’s Forced Leave and Alleged Section 8(a)(3) and (1) Violation Section 8(a)(3) of the Act dictates that it “shall be an unfair labor practice for an employer” to by way of “discrimination in regard to hire or tenure of employment or any term or condition of employment” either “encourage or discourage membership in any labor organization.” 29 U.S.C. § 158. Where there is an al- leged violation of Section 8(a)(3) and (1), for which an em- ployer’s unlawful motivation must be established, the Board ap- plies the burden-shifting framework laid out in Wright Line, 251 NLRB 1083 (1980), enfd. on other grounds 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in NLRB v. Transportation Management Corp., 462 U.S. 393, 404 (1983). Under that analysis, “the General Counsel must demonstrate by a preponderance of the evidence that the employee's protected conduct was a motivating factor in an employer's adverse action. The General Counsel satisfies [her] initial burden by showing (1) the employee's protected activity; (2) the employer's knowledge of that activity; and (3) the employer's animus.” Alternative En- ergy Applications, Inc., 361 NLRB 1203, 1205 (2014). 1. The Union President’s protected activity Here, on the first element of General Counsel’s initial Wright Line burden, there is no dispute that the Union President engaged in protected activity, including by engaging in his role as presi- dent of the Union to oppose Respondent’s July 2021 unilateral work-schedule change, by exercising his right to sporadic union leave during the parties’ successor CBA negotiations, and by DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 12 engaging in negotiations for the non-Board settlement of Case 12–CA–280072 and a successor agreement. (R. Br. 12–13; GC Br. 29.) 2. Respondent’s knowledge of that activity Likewise, there is no dispute as to the second element of Gen- eral Counsel’s initial burden under Wright Line: The parties agree that the Union President’s use of sporadic union leave, which pertained to the above-discussed union activity, was known to the Respondent and was indeed directly related to Re- spondent’s imposition of 6-month, unpaid leave. (R. Br. 22–24; GC Br. 29.) 3. Respondent’s animus On the third element, the Board requires that the General Counsel’s provided evidence of animus “must support a finding that a causal relationship exists between the employee’s pro- tected activity and the employer’s adverse action against the em- ployee.” Tschiggfrie Properties, Ltd., 368 NLRB No. 120, slip op. at 1 (2019). But the General Counsel is not required to demonstrate a specific, particularized “causal nexus” between the employer’s animus and its adverse action. See, e.g., East End Bus Lines, Inc., 366 NLRB No. 180, slip op. at 1 fn. 7 (2018) (“[T]he Board has repeatedly clarified that the demonstration of a causal nexus is not an element of the General Counsel’s initial burden”); see also SSA Pacific, Inc., 366 NLRB No. 51 fn. 3 (2018) (emphasizing that the General Counsel is not required to make an additional, direct, showing of specific animus). Rather, unlawful motivation may be established by a range of back- ground circumstantial evidence, including, “among other things, (1) the timing of the employer's adverse action in relationship to the employee's protected activity, (2) the presence of other unfair labor practices, (3) statements and actions showing the employ- er's general and specific animus, (4) the disparate treatment of the discriminatees, (5) departure from past practice, and (6) evi- dence that an employer's proffered explanation for the adverse action is a pretext.” Kitsap Tenant Support Servs., 366 NLRB No. 98, slip op. at 11 (2018), enfd. 2019 U.S. App. LEXIS 13044 (D.C. Cir. 2019). As discussed below, I find that General Coun- sel has offered, and the record contains, evidence as to the pres- ence of several of these factors, thereby establishing the Re- spondent’s animus. (i) Timing of Respondent’s adverse action Timing of an employer’s adverse action, including its tem- poral proximity to concerted activity, can support an inference of animus. Lucky Cab Co., 360 NLRB 271, 274 (2014) (“the tim- ing of adverse action shortly after an employee has engaged in protected activity . . . may raise an inference of animus and un- lawful motive”), enfd. mem. 621 Fed. Appx. 9 (D.C. Cir. 2015); see also Davey Roofing, 341 NLRB 222, 223 (2004) (“It is well settled that the timing of an employer’s action in relation to known union activity can supply reliable and competent evi- dence of unlawful motivation”). 13 I do not credit Respondent’s contention, in its brief, that the Union President was “eventually disciplined due to his absenteeism” during the 2020–2021 contract year, citing testimony that Escalera gave at trial. (R. Br. 8; Tr. 94.) No evidence of any such disciplinary action exists Here, Respondent admits that it did not impose prolonged un- ion leave against the Union President during the 2020–2021 con- tract year when he reached the 200-hour limit in May 2021. (Tr. 91; Jt. Exhs. 4(a)–(b) and 5(a)–(b).) Nor did Respondent impose prolonged union leave or any other disciplinary action later that year, even though the Union President went at least 28 hours over the 200-hour limit. (Tr. 101–102, 199, 300–301; Jt. Exhs. 5(a)–(b) and 8(a)–(b).) Indeed, Respondent in 2021 continued to approve the Union President’s sporadic leave during that con- tract year, without imposing any adverse disciplinary conse- quences. 13 (GC Br. 13–14; Jt. Exh. 8(a)–(b).) During the 2021–2022 contract year, by contrast, Respondent reversed course, asserting it did have the ability to unilaterally impose prolonged leave on the Union President in April 2022, after months of protected conduct from the Union and its presi- dent that included: continuing negotiation over the successor CBA; union opposition to Respondent’s July 2021 unilateral change to the bargaining unit’s work schedule; and negotiation of the resulting March 2022 non-Board settlement agreement over Respondent’s unilateral work-schedule change. I find that the temporal proximity of the April 2022 adverse action and the March 2022 settlement agreement—which pro- vided that the Union would withdraw its charge over the July 2021 unilateral work-schedule change but required Respondent to pay compensation and limited the time during which the change could stay in effect—is especially supportive of an infer- ence of animus in this case. The record contains no evidence that Respondent ever gave the Union or its President any indication that it might change its policy and unilaterally impose a 6-month unpaid leave. Instead, Respondent imposed the leave without warning on April 28, 2022, just weeks after the March settlement and withdrawn charge, and as soon as the Union President ex- ceeded the 200-hour limit. By April 28, 2022, the Union Presi- dent had taken just 203 hours in sporadic leave, at least 24 hours of which the record shows to be related to Board matters. (Jt. Exh. 8(a)–(b); Tr. 90–91; GC Exh. 2; Case 12–CA–280072; Jt. Exh. 11(a)–(b).)) As the General Counsel suggests in its brief, Respondent’s move to swiftly impose prolonged leave just weeks after the March 2022 settlement, without any prior warn- ing that it had the willingness—let alone ability—to do so, has the appearance of Respondent “only chang[ing] its practice” once the parties’ extension of the 2018 CBA expired and after the parties’ executed their non-Board agreement. (GC Brief 30– 31.) I therefore find that this factor supports a finding of em- ployer animus. (ii) The presence of other unfair labor practices and actions showing general animus The Board has established that evidence of an employer’s an- imus may be provided by a “background” of other unfair labor practices. Amptech, Inc., 342 NLRB 1131, 1134 (2004) (finding that employer’s commission of prior and subsequent unfair labor practices evidenced its animus), enfd. 165 Fed. Appx. 435 (6th Cir. 2006); see also Novartis Nutrition Corp., 331 NLRB 1519, elsewhere in the record, and Escalera later clarified, in response to a question from the bench, that Respondent never took any sort of disci- plinary action against the Union President in response to his union leave absences that exceeded the CBA’s 200-hour allowance. (Tr. 300–301.) COMPAÑIA CERVECERA DE PUERTO RICO 13 1520 (2000) (emphasizing a “background of unfair labor prac- tices” as “showing that the Respondent bore animus towards pro- union employees”), enfd. 23 Fed. Appx. 1, 2001 (D.C. Cir. 2001). Background evidence, from outside of the 6-month Sec- tion 10(b) statutory period, “can, by itself, show animus suffi- cient for the General Counsel to sustain her initial Wright Line burden.” Volvo Group North America, LLC, 372 NLRB No. 44, slip op. at 1 fn. 2 (2023) (compiling cases to support that propo- sition). Where a respondent has entered into a prior settlement agreement, the Board has established that such respondent’s “presettlement conduct may properly be considered as back- ground evidence to establish the motive for [respondent’s] post- settlement conduct.” Host Int’l, Inc., 290 NLRB 442, 442 (1988). Here, Respondent does not deny, and Respondent’s HR Man- ager Escalera admitted at trial, that Respondent in July 2021 uni- laterally imposed changes to bargaining unit member’s work schedule, in violation of Article 27 of the 2018 CBA. (R. Br. 13; Tr. 121, 127, 188; GC Exh. 5(a)–(b).) Employee shifts and work schedules are mandatory subjects of bargaining. Indian River Memorial Hospital, 340 NLRB 467, 468 (2003) (“The [r]espondent’s work schedule change involves a mandatory sub- ject of bargaining”). And it is well-established that an employer commits an unfair labor practice and “violates Section 8(a)(5) if it unilaterally changes a term or condition of employment for bargaining unit employees without giving their bargaining rep- resentative advance notice and an opportunity to bargain about the change.” Omni Hotels Mgmt. Corp., 371 NLRB No. 53, slip op. at 3 (2002); NLRB v. Katz, 369 U.S. 736, 743 (1962). While the July 2021 unilateral change occurred outside of the 10(b) period and Respondent apparently complied with the re- quirements of the non-Board settlement, it may nevertheless pro- vide background evidence of animus under Board law. See, e.g., Wilmington Fabricators, Inc., 332 NLRB 57, 58, fn. 6 (2000) (finding that “background evidence [of animus], which the [r]espondent does not factually dispute, may be used to establish the [r]espondent's union animus,” even if it was not alleged in the complaint as an unfair labor practice and occurred more than 6 months prior to the first charge in the case). Therefore, I find that Respondent’s unilateral work-schedule change in July 2021 may here be considered as background evidence, and that it like- wise supports a finding of employer animus, especially since no resolution of employee work schedule for a successor CBA had been reached. General Counsel, in its brief, points to Respondent’s Decem- ber 1, 2021 letter denying the Union President’s requested union leave as evidence of employer animus. (GC Br. 30.) In that letter, Respondent wrote, “[Y]our union leave is exhausted therefore your absences cannot be adjudicated to it. We urge you once again to request the extended union leave provided by the agree- ment for these purposes so that your disciplinary file related to these unjustified absences does not affect you . . . .” (Jt. Exh. 6(a)–(b).) General Counsel argues that this constituted “nothing more than intimidation” because General Counsel maintains that 14 This finding is not essential to my overall finding of employer an- imus but provides further evidence to that effect. 15 See, e.g., Respondent HR Manager Escalera’s testimony that “[Ex- tended union leave] has never been imposed at any time” (emphasis a new contract year had begun by that point, renewing the Union President’s 200-hour allocation. (GC Br. 16–17, 30.) Respond- ent asserts, citing only uncorroborated and inconsistent testi- mony from Escalera, that there was some form of “stipulation” between the parties that prevented the 200-hour union-leave limit from being renewed in either of the 2021 extensions of the 2018 CBA. (R. Br. 4.) However, the only contemporaneous evi- dence in the record as to the extensions contradicts that assertion. The parties’ negotiation rules stipulated an unconditional exten- sion of the CBA “if an agreement is not reached before Septem- ber 6, 2021.” (Jt. Exh. 10(a)–(b).) And the subsequent December 2021 extension agreement indicates that the 2018 CBA was be- ing extended in full, specifying no limitation on the renewal of union leave. (Jt. Exh. 3(a)–(b).) Therefore, because Respondent failed to produce any evidence that contradicts the documentary record, save Escalera’s inconsistent testimony, I find that the rec- ord suggests the 2018 CBA extensions did extend the Union President’s union leave allocation, such that this exchange and threat of discipline does further evidence Respondent’s ani- mus.14 (iii) Departure from past practice As discussed above, there is no dispute that Respondent, with- out warning, required the Union President to take 6 months of unpaid leave in April 2022, contra its practice in the preceding contract year of issuing multiple warnings, but never taking re- lated disciplinary action nor imposing (or even claiming it could impose) any prolonged leave. (Jt. Exhs. 4(a)–(b), 5(a)–(b), 8(a)– (b); Tr. 91, 101–102, 199.) During the 2020–2021 contract year, Respondent did not im- pose any prolonged leave, deny any of request for union leave, nor did it impose other related disciplinary action against the Un- ion President for exceeding the 200-hour sporadic union leave limit. (Tr. 93, 101–102, 199, 300–301; Jt. Exhs. 5(a)–(b) and 8(a)–(b).) In fact, both record evidence and testimony at trial from Escalera suggest that Respondent may not have believed that it could forcibly mandate such prolonged leave under Article 34 prior to April 2022.15 Respondent’s communications to the Union President always “urge[d]” that he take prolonged leave “[i]f you need more time,” but never—until the April 28, 2022 letter—signaled any indication that Respondent could, let alone would, otherwise force him to take a 6-month unpaid leave.16 To the contrary, the record shows that Respondent continued to ap- prove the Union President’s sporadic union leave, without any adverse consequences, including on days where it advised him that he had already exceeded his sporadic leave allotment. (Jt. Exh. 8(a)–(b).) By contrast, during the 2021–2022 contract year, the record shows that Respondent did not, as in the year before, ever inform the Union President that he was approaching his 200-hour limit, nor did Respondent issue him any warning that he had exceeded the limit, inform him that future sporadic leave would not be granted, or suggest that he should consider taking prolonged un- ion leave if necessary. Instead, as soon as the Union President added). (Tr. 93.) See also Escalera’s assertion that “[Prolonged leave] was not imposed, as I have said previously.” (Tr. 86.) 16 See, e.g., Escalera’s December 1, 2021 letter expressing, “We urge you once again to request the extended union leave.” (Jt. Exh. 6(a)–(b).) DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 14 logged 203 hours in sporadic union leave, Respondent summar- ily notified the Union President that, effective that same day, he was being placed on leave for 6 months without pay. (Jt. Exh. 8(a)–(b).) As noted above, there is no dispute that this departure from the prior year’s practice came after an intervening year in which the Union President engaged in protected activity, including en- gaging in collective bargaining for the successor CBA and nego- tiating a non-Board settlement agreement with Respondent re- solving the charge filed by the Union alleging Respondent’s July 2021 unilateral work-schedule change unlawfully that violated the terms of the 2018 CBA. Respondent argues in its brief, as it did at trial, that the April 2022 imposition of unpaid leave was justifiable because the 2018 CBA “specifically allows” Respondent to “place the Union Pres- ident on an extended leave.” (R. Br. 22, 23–24; Tr. 223.) That contradicts Escalera’s testimony that Respondent could not and did not ever “impose” prolonged leave, as well as Respondent’s actual documented prior-year practice of “urg[ing]” prolonged leave but never, until April 2022, suggesting it could and would unilaterally force the 6-month leave. (Jt. Exh. 6(a)–(b); Tr. 93.) The record does not contain the Union President or his prede- cessors’ prior-year tabulations of sporadic union leave, which would provide more insight as to how common it was, in other years, for union leaders to exceed the 200-hour limit. At the same time, Respondent failed to introduce any evidence into the record to support its alleged interpretation of the 2018 CBA as giving it the authority to automatically impose prolonged leave, nor to counter General Counsel’s assertion that “There is no evidence that Respondent’s past practice has ever been to compel employ- ees to use the extended Union leave.” (GC Br. 14.) Respondent also does not address the 2020–2021 and 2021–2022 discrep- ancy in its own brief, but at trial Escalera testified that Respond- ent did not apply the prolonged leave in 2021 because “we got started [with] the negotiation” and “in order to keep the good employer-employee relations at that time, [the Union President] wasn’t written to use the prolonged Union leave.” (Tr. 170–171.) Irrespective of the reason, the record is clear that Respondent, in April 2022, clearly departed from its prior practice—unilaterally changing its claimed authority under Article 34 of the expired agreement. Considering the change followed and was in re- sponse to the Union President’s union activity, I find that change adds further support to a finding of employer animus. Overall, for the foregoing reasons, I find that General Counsel has adequately established animus by Respondent, and that Gen- eral Counsel therefore established a prima facie case under Wright Line, shifting the burden to Respondent. 4. Respondent’s Wright Line Burden Where the General Counsel successfully makes its initial Wright Line case, the burden shifts to the respondent employer to establish an affirmative defense by “demonstrat[ing] that the same action would have taken place even in the absence of the 17 Here, I rely upon the court Interpreter’s translation. (Tr. 50.) 18 Again, I rely upon the Interpreter’s translation for this first clause. (Tr. 50.) The parties’ joint stipulation translated the same clause as “If more time is needed . . .” which conveys the same conditional effect. (Jt. Exh. 1.) protected conduct.” American Gardens Mgmt. Co., 338 NLRB 644, 645 (2002). Critically, a respondent’s burden “‘is not to identify legitimate grounds for which it could impose discipline, but to persuade that it would have disciplined the employee even absent his or her protected activity.’” Curaleaf Ariz., 372 NLRB No. 16, slip op. at 4–5 (2022) (quoting Wendt Corporation, 369 NLRB No. 135, slip op. at 3 (2020) (emphasis in original), enfd. in part and remanded on other grounds, 26 F.4th 1002 (D.C. Cir. 2022)). The employer’s “burden may not be satisfied by prof- fered reasons that are found to be pretextual, i.e. false reasons or reasons not in fact relied upon for the discharge,” and “a finding of pretext defeats an employer’s attempts to meet its rebuttal bur- den.” Lucky Cab Co., 360 NLRB 271, 275–276 (2014), enfd. mem. 621 Fed. Appx. 9 (D.C. Cir. 2015). The Board has estab- lished that an employer’s shifting and inconsistent reasons for taking an adverse action are suggestive of pretext and evidence of discriminatory motive. See, e.g., Healthy Minds, Inc., 371 NLRB No. 6, slip op. at 6 (2021) (quoting Naomi Knitting Plant, 328 NLRB 1279, 1283 (1999) (“[T]he Board has long held that shifting reasons constitute evidence of discriminatory motiva- tion”)). Here, Respondent’s burden is to demonstrate that it would have placed the Union President on 6-month, unpaid leave in the absence of his union activity during the second half of 2021 and the first half of 2022. Respondent’s principal defense rests upon its claimed ability to unilaterally activate prolonged union leave under Article 34 of the 2018 CBA. Respondent argues that the “shall” phrasing of Article 34, Section 6, required the Union President to take the prolonged leave. Respondent further asserts that the language of the 2018 CBA “specifically allow[ed]” it to therefore “place the Union President on an extended leave,” once he refused to do so. (R. Br. 22–23.) The plain language of Article 34, Section 6, of the 2018 CBA is straightforward: “Should there be a need for greater time, the employee shall request a prolonged leave without pay, no less than six months”17 (emphasis added). (Tr. 50; Jt. Exh. 2(a)–(b).) The plain language does not, on its face, nor in context, provide Respondent with any clear authority to unilaterally activate or impose prolonged leave. To the contrary, the “employee shall request” phrasing clearly conveys that it is the role of the em- ployee to activate union leave, if it is activated at all. Respondent cites Supreme Court precedent in its argument that “shall” is “mandatory and creates an obligation.” (R. Br. 24.) But Re- spondent ignores that the Union President is afforded clear dis- cretion by the preceding conditional clause—“Should there be a need for greater time”18—which makes clear that the leave is not automatically activated; rather, the Union President has a choice to not take more sporadic union leave once the 200-hour limit is met.19 On April 28, 2022, Respondent contravened the plain lan- guage of the 2018 CBA when it denied the Union President any choice in whether prolonged union leave was activated. By the 19 The conditional nature of the Union’s obligation persists even if “deberá” is translated to mean “must,” as Respondent suggests is more accurate. Therefore, I find that the parties’ translation dispute does not materially impact this analysis, despite Respondent’s framing and argu- ments to the contrary. (R. Br. 21–22.) COMPAÑIA CERVECERA DE PUERTO RICO 15 time that Respondent notified the Union President that he had exceeded the 200-hour limit, Respondent had already unilater- ally imposed and activated the 6-month, unpaid leave, which was outside its contractual rights. Contrary to the terms of the 2018 agreement, the Union President was given no choice in whether to take prolonged leave or not, which precluded him from pursu- ing alternatives that could have included using vacation time or regular time off work to conduct his union business while also maintaining his regular work schedule. Respondent provides two explanations for its differing treat- ment of the Union President in 2021 compared to 2022, neither of which satisfies its Wright Line burden. First, Respondent em- phasizes the Union President’s continuing “pattern of ignoring [Respondent’s] policies regarding attendance” is “crucial factual background” for “the activation of the prolonged leave without his ‘request.’” (R. Br. 23–24.)20 But the record shows that Re- spondent continued to approve the Union President’s excessive sporadic union leave, without any adverse consequences, includ- ing on days where it advised him that he had already exceeded his sporadic leave allotment. And, as discussed above, there is no record evidence that Respondent ever, prior to April 2022, believed that it could forcibly impose prolonged union leave un- der the terms of the 2018 agreement. (Jt. Exh. 8(a)–(b); Tr. 300– 301.) Even if Respondent could have had justification to take disci- plinary action against or terminate the Union President on other grounds, as it claims,21 which is not necessarily established in the record, it does not follow that Respondent was empowered to forcibly impose the prolonged union leave as it did here. That is because Respondent’s burden “‘is not to identify legitimate grounds for which it could impose discipline, but to persuade that it would have disciplined the employee even absent his or her protected activity.’” Curaleaf Arizona, 372 NLRB No. 16, slip op. at 4–5 (2022) (quoting Wendt Corp., 369 NLRB No. 135, slip op. at 3 (2020) (emphasis in original), enfd. in part and remanded on other grounds, 26 F.4th 1002 (D.C. Cir. 2022)). Respondent’s second argument for its disparate Article 34 conduct in 2022 is that it showed restraint in 2021 because the parties were starting contract negotiations soon. Escalera testi- fied that Respondent did not apply the prolonged leave in 2021 because “we got started [with] the negotiation” and “in order to keep the good employer-employee relations at that time, [the Un- ion President] wasn’t written to use the prolonged Union leave.” (Tr. 170–171.) However, Escalera also conceded in her testi- mony that she failed to give any similar, corroborative explana- tion to the Board agent who initially questioned her about the imposed leave in August 2022. (Tr. 191, 197–198.) Even if that was the genuine reason that Respondent did not attempt to re- quire the Union President to take prolonged leave in 2021, it would not satisfy Respondent’s burden to prove it would have taken the same adverse action in the absence of the Union 20 I do not credit Respondent’s emphasis that it filed a Board charge to that effect on December 16, 2022. (R. Exh. 4; Case 12–CB–309135). Because that charge, which was dismissed on February 23, 2023, alleged conduct “[s]ince or about November 18, 2022”: some 7 months after Re- spondent imposed the prolonged leave. (R. Exh. 4.) 21 Respondent argues that, instead of placing the Union President on leave in April 2022, it could have terminated the Union President due to President’s protected activity. Respondent was not without recourse in this situation. If Re- spondent did not want to continue its practice from the prior year of continuing to approve paid union leave, beyond the 200-hour limit, it clearly had options beyond what it ultimately did, which was to arbitrarily and unilaterally claim and exercise authority that it does not have under the plain language of the 2018 CBA. For example, Respondent could have potentially denied the Un- ion President’s leave requests, told the Union President to take vacation time, or told him that to continue taking unauthorized sporadic leave in excess of the agreed allotment would result in the assignment of attendance points. Despite that range of op- tions, Respondent instead took the extreme measure of placing him on a mandatory unpaid leave for 6 months. 5. Conclusion For the foregoing reasons, I find that General Counsel sus- tained its Wright Line burden, while Respondent has failed to establish that it would have taken the same adverse action in the absence of the Union President’s protected conduct. Therefore, I find that Respondent violated Section 8(a)(3) and (1) by forcing the Union President to take 6-months of unpaid leave in response to his protected union activity. B. Union President’s Imposed Leave and Alleged 8(a)(1) and (5) Violation 1. Legal Standard Section 8(a)(5) of the Act dictates that it “shall be an unfair labor practice for an employer” to “refuse to bargain collectively with the representatives of his employees, subject to the provi- sion of section 159(a) of this title.” 29 U.S.C. § 158(a)(5). An employer “violates Section 8(a)(5) if it unilaterally changes a term or condition of employment for bargaining unit employees without giving their bargaining representative advance notice and an opportunity to bargain about the change.” Omni Hotels Mgmt. Corp., 371 NLRB No. 53, slip op. at 3 (2002); NLRB v. Katz, 369 U.S. 736, 743 (1962). Under Board law, that require- ment persists after the expiration of a collective-bargaining agreement, at which time “an employer must maintain the status quo of all mandatory subjects of bargaining until the parties ei- ther agree on a new contract or reach a good-faith impasse in negotiations.” Richfield Hospitality, Inc., 368 NLRB No. 44, slip op. at 3 (2019). While “the status quo is ascertained by looking to the substantive terms of the expired contract . . . the obligation to maintain the status quo arises out of the Act, not the parties’ contract,” as “‘terms imposed by law.’” Nexstar Broad., Inc., 369 NLRB No. 61, slip op. at 3 (2020) (quoting Litton Financial Printing Div. v. NLRB, 501 U.S. 190, 206 (1991)). 2. Respondent’s imposition of unpaid leave was a unilateral his prior disciplinary record, arguing that its restraint “actually pro- tected” his employment. (R. Br. 22–23, 25; R. Exh. 6(a)–(b).) Respond- ent emphasizes that it disciplined the Union President in August 2021 for reporting to a work area during a shift when he was not scheduled to work—which he apparently did to protest Respondent’s unilateral July 2021 work-schedule change. See fn. 8. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 16 change Here, for the reasons discussed in the preceding section, I find that the plain language of Article 34, Section 6, does not provide Respondent with any clear authority to unilaterally activate or impose prolonged union leave on the Union President. Rather, the contractual language assigns to the impacted employee, alone, the exclusive ability to “request” the activation of pro- longed union leave, subject to the condition that “[s]hould there be a need” to do so. (Tr. 50; Jt. Exh. 2(a)–(b).) There is no record evidence that Respondent believed it had the authority to impose prolonged union leave prior to doing so on April 28, 2022, nor has Respondent attempted to an assert any past practice to that effect. To the contrary, HR Manager Escalera testified that Respondent could not and did not ever “impose” prolonged leave. (Tr. 93.) That is supported by docu- mentary evidence which shows that Respondent’s 2020–2021 practice was to “urge” prolonged leave, but never, prior to April 2022, suggest that it could and would unilaterally impose the 6- month union leave. (Jt. Exh. 6(a)–(b).) During the 2020–2021 contract year, Respondent did not impose prolonged union leave against the Union President when he reached the 200-hour limit in May 2021. (Tr. 91; Jt. Exhs. 4(a)–(b) and 5(a)–(b).) Nor did Respondent impose prolonged union leave or any other discipli- nary action against the Union President later that year, even though he went at least 28 hours over the 200-hour limit. (Tr. 101–102, 199, 300–301; Jt. Exhs. 5(a)–(b) and 8(a)–(b).) In- stead, Respondent continued to approve the Union President’s excess sporadic leave that contract year, without simply denying the leave or imposing any other adverse disciplinary conse- quences. (Jt. Exh. 8(a)–(b); Tr. 300–301.) Respondent’s pattern of continuing to approve the Union President’s requested union leave even after exhausting the 200 hours was the status quo at the time that the second extension of the 2018 CBA expired on January 31, 2022, which was the status quo that Respondent had an obligation to maintain on this man- datory subject of bargaining, until a new contract was agreed to or the parties had reached a good-faith impasse on a successor agreement. Nexstar Broad., Inc., above. Nevertheless, on April 28, 2022, Respondent for the first time asserted, in contravention of the 2018 CBA’s plain language, that it did have the ability to unilaterally impose 6 months of prolonged leave. (Jt. Exhs. 3(a)– (b), 5(a)–(b), 8(a)–(b).) By doing so without giving the Union notice or opportunity to bargain, Respondent unilaterally changed the status quo by imposing 6-month, unpaid leave on the Union President, as soon as he exceeded 200-hour union leave limit, albeit by three hours. (Jt. Exhs. 4(a)–(b), 8(a)–(b).) 3. Respondent’s “Sound Arguable Basis” defense does not ap- ply Invoking the Board’s “sound arguable basis” standard, Re- spondent argues that the language of the 2018 CBA “indubitably demonstrates” that it “had the contractual right to place” the Un- ion President on leave, because Respondent had “more than sound arguable basis” to believe “the contract’s language sanc- tioned its action.” (R. Br. 22.) The Board has held that “[w]here an employer has a ‘sound arguable basis’ for its interpretation of a contract and is not ‘motivated by union animus or . . . acting in bad faith,’ the Board ordinarily will not find a violation.” Bath Iron Works, 345 NLRB 499, 502 (2005) (quoting NCR Corp., 271 NLRB 1212, 1213 (1984)). However, that defense does not apply in this case. The “sound arguable basis” standard does not apply to alleged unilateral changes to employment terms made after the expiration of a bar- gaining agreement, as is the case here. Nexstar Broad., Inc., 369 NLRB No. 61, slip op. at 2, fn. 5 (2020) (explaining that “the sound arguable basis standard . . . applies only where the issue is whether the employer modified an existing collective-bargaining agreement,” and not where an employer unilaterally changes terms of employment after an agreement’s expiration), enfd. 4 F.4th 801 (9th Cir. 2021); see also Mondelez Global, LLC, 369 NLRB No. 46, slip op. at 3 (2020) (the sound arguable basis standard “is inapplicable where . . . the allegation is that the em- ployer has unilaterally changed a term and condition of employ- ment after the collective-bargaining agreement has expired”), enfd. 5 F. 4th 759 (7th Cir. 2021). Therefore, I find that the “sound arguable basis” standard does not here preclude a finding that Respondent violated Section 8(a)(5) and (1) of the Act. 4. Conclusion For the foregoing reasons, I find that Respondent’s imposition of 6 months of unpaid union leave upon the Union President was a unilateral change to a term and condition of employment, made without advance notice to the Union nor opportunity to bargain to a good-faith overall impasse, such that Respondent’s unilat- eral imposition of the 6-month leave violated Section 8(a)(5) and (1) of the Act. II. RESPONDENT’S UNILATERAL IMPLEMENTATION OF WORK- SCHEDULE CHANGES Pursuant to Section 8(a)(5), the Board has established that “when parties are engaged in negotiations for a collective-bar- gaining agreement, the employer must refrain from implement- ing any changes in terms and conditions of employment until an agreement or overall impasse has been reached on bargaining for the agreement as a whole.” Hilton Anchorage, 370 NLRB No. 83, slip op. at 2, fn. 3 (2021). Otherwise, the employer violates Section 8(a)(5) and (1) of the Act. NLRB v. Katz, 369 U.S. 736, 743 (1962) (“We hold that an employer's unilateral change in conditions of employment under negotiation is similarly a viola- tion of § 8 (a)(5)”). The Board has made clear that employee shifts and work schedules are mandatory subjects of bargaining. See, e.g., Indian River Memorial Hospital, 340 NLRB 467, 468 (2003) (“The [r]espondent’s work schedule change involves a mandatory subject of bargaining”); see also United Cerebral Palsy, 347 NLRB 603, 607 (2006) (“issues affecting employee schedules constitute mandatory subjects of bargaining”). As dis- cussed in the preceding section, during contract negotiations that continue past the expiration of a collective-bargaining agree- ment, “an employer must maintain the status quo of all manda- tory subjects of bargaining until the parties either agree on a new contract or reach a good-faith impasse in negotiations.” Richfield Hospitality, Inc., 368 NLRB No. 44, slip op. at 3 (2019). Generally, “the Board requires the existence of an overall im- passe in bargaining before an employer may unilaterally imple- ment some or all of the terms encompassed by its final offer”; but an “overall impasse may be reached based on a deadlock over COMPAÑIA CERVECERA DE PUERTO RICO 17 a single issue.” Atlantic Queens Bus Corp., 362 NLRB 604, 604 (2015). In such case, the party asserting the single-issue impasse has the burden to prove three elements: “[A] that a good-faith impasse existed as to a particular issue; [B] that the issue was critical in the sense that it was of ‘overriding importance’ in the bargaining; and [C] that the impasse as to the single issue ‘led to a breakdown in overall negotiations—in short, that there can be no progress on any aspect of the negotiations until the impasse relating to the critical issue is resolved.’” Atlantic Queens Bus Corp., 362 NLRB 604, 604 (2015) (quoting CalMat Co., 331 NLRB 1084, 1097 (2000)); see also Troy Grove Inc., 372 NLRB No. 94, slip op. at 5 (2023) (approving judge’s application of the three-element single-issue impasse test). Overall, “An impasse finding is warranted where there is ‘no realistic possibility that continuation of discussions . . . would have been fruitful.’" Phil- lips 66, 369 NLRB No. 13, slip op. at 7 (2020) (quoting Truserv Corp. v. NLRB, 254 F.3d 1105, 1114, 347 U.S. App. D.C. 61 (D.C. Cir. 2001) (internal quotations and citation omitted)). Here, there is no dispute that Respondent unilaterally imple- mented a change to working hours, and that working hours are a mandatory subject of bargaining. (R. Br. 16, 28.) That unilateral change therefore constituted a prima facie violation of Section 8(a)(5) unless, as Respondent contends, there was a good-faith single-issue impasse on Article 27 that produced an overall im- passe.22 For the reasons stated below, I find that Respondent vi- olated Section 8(a)(5) and (1) with its unilateral implementation of Article 27 work-schedule changes, because I find that Re- spondent failed to prove that there was a good-faith impasse and further failed to prove that the alleged impasse on Article 27 caused a breakdown in overall negotiations. A. Did a good-faith impasse exist on Article 27? When evaluating whether a good-faith impasse exists, the Board considers “the totality of the circumstances, including ‘[t]he bargaining history, the good faith of the parties in negoti- ations, the length of the negotiations, the importance of the issue or issues as to which there is disagreement, [and] the contempo- raneous understanding of the parties as to the state of negotia- tions.” Dish Network Corps., 366 NLRB No. 119, slip op. at 3 (2018) (quoting Taft Broad. Co., 163 NLRB 475 (1967)). Under such an analysis, “One or two factors . . . may be sufficient to demonstrate the absence of impasse.” Altura Communs. Sols., LLC, 369 NLRB No. 85, slip op. at 2, fn. 4 (2020) (explaining how Taft Broad. Co.’s “five non-exhaustive factors” should be applied to determine if a good-faith impasse existed) (quoting American Security Programs, Inc., 368 NLRB No. 151, slip op. at 13 (2019), enfd. 842 Fed. Appx. 648 (D.C. Cir. 2021)), enfd. 848 Fed. Appx. 344 (9th Cir. 2021). Here, I find that two of these factors strongly suggest the absence of a good-faith impasse. 22 Respondent, in brief, asserts that General Counsel failed to establish a prima facie case by virtue of allegedly failing to present “evidence re- garding the impact of” Respondent’s unilateral implementation of its “fi- nal” Article 27 offer. (R. Br 37–38.) However, the record contains Re- spondent’s August 5, 2022 communication to employees, announcing the upcoming unilateral work-schedule change and explaining that the unilateral implementation of Art. 27 would mean “a change in the [work- 1. Respondent did not bargain in good faith. Good-faith bargaining is evaluated through consideration “of the totality of a party’s conduct.” Philips 66, 369 NLRB No. 13, slip op. at 6 (2020). That evaluation includes conduct “both at and away from the bargaining table.” Hilton Anchorage, 370 NLRB No. 83, slip op. at 2 (2021). Conduct that the Board has found to be indicative of bad-faith bargaining includes “delaying tactics, unreasonable bargaining demands, unilateral changes in mandatory subjects of bargaining, efforts to bypass the union, failure to designate an agent with sufficient bargaining authority, withdrawal of already agreed-upon provisions, and arbitrary scheduling of meetings.” Atlanta Hilton and Tower, 271 NLRB 1600, 1603 (1984). By contrast, a party’s steadfast insistence on a position is “not of itself a refusal to bargain in good faith”; ra- ther, a party “may stand firm on a position if he reasonably be- lieves that it is fair and proper or that he has sufficient bargaining strength to force the other party to agree.” Ibid. While the Board is “prohibited from sitting in judgment on a party’s substantive bargaining proposals,” the Board has acknowledged that a spe- cific bargaining proposal’s content “may become relevant in de- termining whether a party was making a sincere effort to reach an agreement or whether it was intent on frustrating the very pos- sibility of reaching an agreement.” Phillips 66, above at 4, fn. 9 (2020). Where parties negotiate in good faith, over months of negoti- ations, and make “modest progress in narrow respects where possible” but “each side [stands] firm on its proposals regarding critical issues,” “[t]he Board and courts have consistently found valid impasse.” Phillips 66, above at 4, 8 (finding a valid impasse where parties engaged in good faith, because the parties’ respec- tive positions were well-known and firmly adhered to, such that the “parties’ protracted lack of progress . . . supports a finding of impasse,” despite each side making “several limited concessions during negotiations”). On the other hand, “Generally, a lawful impasse cannot be reached in the presence of unremedied unfair labor practices.” White Oak Coal Co., 295 NLRB 567, 568 (1989) (“The Board has long held that an employer may not ‘par- lay an impasse’ resulting from its own misconduct”) (quoting Wayne’s Dairy, 223 NLRB 260, 265 (1976)); see also Brown v. Pro Football, 518 U.S. 231, 238–239 (1996) (For an employer to implement a unilateral change after bargaining to alleged im- passe, “[t]he collective-bargaining proceeding itself must be free of any unfair labor practice, such as an employer’s failure to bar- gain in good faith”). Here, Respondent asserts that it “bargained in good faith . . . throughout.” (R. Br. 33.) But I find that the record contains am- ple evidence to support a finding that Respondent acted in bad faith from the very start of the successor CBA negotiations. The parties began the successor CBA negotiation process in June 2021. (R. Br. 10; Jt. Exh. 10(a)–(b); Tr. 115–16.) Within weeks, schedule] itinerary” for some employees. (Jt. Exh. 29(a)–(b).) It is also clear in the record that Respondent’s implemented “final” offer on Art. 27 removed a grandfather clause that under the 2018 CBA exempted em- ployees hired prior to June 17, 2015, from certain work-schedule require- ments. (Tr. 250–51.) The record suggests that impacted at least half of the bargaining unit’s 120 employees, as Escalera testified that of the 120 Union employees, “half” were hired prior to June 17. (Tr. 140.) DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 18 by July 6, 2021, Respondent unilaterally implemented a work- schedule change imposing a 6-days-on, 2-days-off, 48-hour workweek that HR Manager Escalera admitted at trial was not in alignment with Art. 27 of the then still-active 2018 CBA. (Tr. 188; GC Exhs. 2, 5(a)–(b).) This work-schedule change ulti- mately resulted in the Union filing a charge with the Board that was later withdrawn subject to Respondent’s compliance with a non-Board settlement agreement. (GC Exhs. 2, 4; Case 12–CA– 280072.) Respondent has made no effort to explain or justify its July 2021 unilateral change to a mandatory subject of bargaining. I find that the mid-bargaining, unilateral change—impacting the very same work-schedule topic and CBA article upon which Re- spondent subsequently alleged an impasse—is indicative of bad- faith bargaining. See, e.g., Hilton Anchorage, 370 NLRB No. 83, slip op. at 2 (2021) (finding employer conduct indicated bad- faith bargaining where employer’s unilateral change to the status quo shortly after bargaining began “moved the baseline for ne- gotiations,” “undermined the [u]nion’s bargaining position,” and “created friction at the bargaining table,” “demonstrat[ing] an in- tent to frustrate agreement on a new collective-bargaining con- tract”), enfd. 2022 U.S. App. LEXIS 21099 (9th Cir., July 29, 2022). There is further evidence of away-from-the-table bad faith in Respondent’s treatment of the Union President during successor CBA negotiations, as I discuss above in section (I). My above findings that Respondent, during successor CBA negotiations, violated Section 8(a)(3) and (1) and 8(a)(5) and (1) by forcing the Union President to take 6 months of unpaid leave further ev- idence bad-faith bargaining. Respondent’s brief asserts bad faith conduct on the part of the Union. But its only cited examples of supposed Union “bad faith” came after Respondent’s unilateral implementation of Ar- ticle 27. (R. Br.32–34.) I do not credit that argument as the Board has been clear that “an employer may not ‘parlay an impasse’ resulting from its own misconduct.” White Oak Coal Co., 295 NLRB 567, 568 (1989) (quoting Wayne’s Dairy, 223 NLRB 260, 265 (1976)). 2. Parties did not consider there to be an impasse. The record evidence as to the parties’ contemporaneous un- derstanding of the state of negotiations, a second impasse factor, also weighs against a finding of good-faith impasse over Article 27. Taft Broad. Co., above at 478. On July 22, 2022, Respondent first claimed an impasse on Article 27, emphasizing that a July 17 Union employee assembly had rejected Respondent’s June 21, 2022 “final offer” on the article.23 (Jt. Exh. 19(a)–(b).) Re- spondent followed up with an August 4, 2022 letter informing that its final offer on Article 27 would be unilaterally imple- mented on August 15, 2022, due to the alleged impasse. (Jt. Exh. 22.) 23 Throughout its posthearing brief, Respondent puts heavy emphasis on the Union assembly’s rejection of its final offer on Art. 27, but such a vote is not dispositive of an impasse under Board law. (R. Br. 2, 12, 16, 32–34.) Rather, the Board has been clear that the existence of a good- faith impasse “turns on the factors” laid out in Taft Broad. Co., “not on the mere fact of a negative ratification vote.” Ead Motors E. Air Devices, The record is clear that the Union did not agree: On August 13, the Union President sent a letter to Respondent expressly stating the Union’s view that there was no impasse nor any legal basis for unilateral implementation of Respondent’s final coun- teroffer. The Union President closed his letter with a request for Respondent to “reconsider” and resume bargaining “to have dis- cussions free of all animosity.” (Jt. Exh. 23(a)–(b).) The Board has been clear that a union’s stated intention to continue bargain- ing in response to an employer’s declaration of impasse is indic- ative of a lack of impasse. Ead Motors E. Air Devices, 346 NLRB 1060, 1064 (2006) (“Although not determinative, these statements [indicating intent to continue bargaining] further sup- port a finding of no impasse”). Testimony at trial from Respondent HR Manager Escalera and General Manager Montes likewise undermines Respondent’s ar- gument that it believed that there was a good-faith impasse. Dur- ing testimony, Escalera acknowledged that there was “[p]ossi- bly” space for additional negotiations on several contract provi- sions, at the time of the July 22 impasse letter, because it was “[c]orrect” that there were, by that point, still no final offers on 10 other articles. (Tr. 134–135). Montes testified that it was Re- spondent’s view there was, as of August 4, only an impasse over Article 27, because the parties were still actively bargaining on other articles. (Tr. 206–207; Jt. Exh. 22(a)–(b).) Overall, these statements do not indicate that Respondent believed the parties were “at the end of their rope” in negotiations, as the Board has required is necessary for an impasse finding. Stein Indus., 365 NLRB No. 31, slip op. at 5, fn. 11 (2017) (quoting PRC Record- ing Co., 280 NLRB 615, 635 (1986), enfd. 836 F.2d 289 (7th Cir. 1987)). Respondent accurately notes the presence of several Taft Broad. Co. factors in this case, including: (i) the parties’ many years of negotiating agreements together; and (ii) the overall length of negotiations and its “preparation of over 10 proposals on Article 27.” And Respondent also makes a case as to (iii) the “importance” of Article 27 to Respondent’s operational capacity. (R. Br. 32–33.) But the presence of those factors do not counter- balance the weight of the evidence as to Respondent’s bad-faith conduct and the fact that the parties did not clearly believe there was an impasse. Because “[o]ne or two factors” from Taft Broad. Co. “may be sufficient to demonstrate the absence of impasse,” I find that Re- spondent has not met its burden to prove existence of a good- faith impasse. See, e.g., Columbus Elec. Coop., Inc., 372 NLRB No. 89, slip op. at 1, fn. 1 (2023) (approving the judge’s finding that respondent’s unilateral change violated Sec. 8(a)(5) and (1) because the “totality of the [r]espondent’s conduct demonstrated overall bad-faith bargaining” such that the parties “did not reach a valid bargaining impasse”). My finding that Respondent failed to establish this element therefore precludes an overall finding that a single-issue impasse existed over Article 27.24 346 NLRB 1060, 1064 (2006) (“[T]he fact that there is a ratification vote does not itself show that the parties are at impasse”). 24 Because I find Respondent failed to establish this required element of a single-issue impasse, I therefore find that there was no overall im- passe at the time of the August 2022 unilateral change. Nevertheless, I continue my analysis to evaluate whether Respondent met its burden of proof as to the subsequent two required elements. COMPAÑIA CERVECERA DE PUERTO RICO 19 B. Was Article 27 of “overriding importance”? The second element of Respondent’s single-issue impasse burden is to show that the issue at alleged impasse was of such “overriding importance that it justifies an overall finding of im- passe on all of the bargaining issues.” CalMat Co., 331 NLRB 1084, 1097 (2000). Here, there is no dispute, and the record shows, that Article 27’s work schedule and pay provisions were highly important to both parties. The General Counsel acknowledges in its brief that “Article 27 was significant to the Union.” (GC Br. 40.) Likewise, Respondent asserts, “Both parties believed Article 27 was vital for the negotiations.” (R. Br. 11.) And Escalera in testimony ar- ticulated that Respondent’s local and export demand growth un- derpinned its goal of achieving the framework for a 24–7 pro- duction schedule. (Tr. 245.) The article’s import to the parties is also evidenced by the Union’s November 2021 request to nego- tiate Article 27 out of sequential order, which was counter to the parties’ set negotiation rules. (Jt. Exh. 10(a)–(b).) Respondent argues that “working hours are at the core of any employment relationship” such that “Article 27 is one of over- riding importance in the negotiation,” and that there was eco- nomic necessity behind “the Company’s need to implement measures to . . . make possible a 24/7 production operation.” (R. Br. 32–33.) But Escalera testified that Respondent had “for some periods” found a way to operate on a 24–7 basis since 2018, which undermines that argument. (Tr. 348.) Respondent’s bur- den is further undermined by other testimony from Escalera, who called Article 27 “vital” to both parties but denied that Respond- ent unilaterally implemented Article 27 for that reason, stating, “No, that was not the reason.” Instead, Escalera insisted Re- spondent unilaterally implemented the article due to the Union’s rejection of Respondent’s “final” offer on the article. (Tr. 334.) While the record is decidedly mixed on this element, I find that Respondent has sufficiently met its burden to establish this element. However, this finding is not dispositive, as I find that Respondent failed to establish its third required element in addi- tion to the first element discussed above. C. Did an “impasse” on Article 27 cause a breakdown in over- all negotiations? The third element an employer must establish for proving a single-issue impasse is that “the impasse over the single issue ‘led to a breakdown in overall negotiations—in short, that there can be no progress on any aspect of the negotiations until the impasse relating to the critical issue is resolved.’” Atlantic Queens Bus Corp., 362 NLRB 604, 604 (2015) (quoting CalMat Co., 331 NLRB 1084, 1097 (2000)). I find that Respondent like- wise failed to meet its burden on this element, as the record shows that the “impasse” alleged by Respondent did not lead to a breakdown in overall negotiations. To prove this “overall breakdown” element, Respondent em- phasizes that a spokesperson for the Union in November 2021 25 The available record shows that the Union was willing to bargain in the days after the unilateral implementation. For example, on August 19, 2022, just days after Respondent’s unilateral work-schedule change, the Union advised Respondent that it had moved to sign several of Re- spondent’s proposals in hope of encouraging agreement as to the Union’s “indicated that [Article 27] was an invisible barrier for the Un- ion,” according to Escalera. (Tr. 248–249.) Respondent’s appar- ent implication being that the statement shows that the Union viewed lack of progress on Article 27 as a barrier to progress on the rest of the successor agreement. However, that alleged state- ment by the Union was made 8 months before Respondent de- clared an impasse on Article 27, and the record is clear that the parties at that time continued to exchange counterproposals on Article 27 while making apparent progress negotiating other ar- ticles. (Jt. Exh. 31(a)–(b).) The record further shows that Respondent specifically did not, even at the time of declaring an impasse, view the alleged im- passe on Article 27 as a barrier to progress on other bargaining issues. Montes testified that it was Respondent’s contemporane- ous view, at the time of the August 4 implementation announce- ment, that there was no impasse on any other provision of the contract because negotiations remained ongoing on those topics. (Tr. 206–207.) To that point, on the morning of August 4, 2022, just hours before Respondent announced the unilateral imple- mentation of its “final” Article 27 offer, and days after Respond- ent declared an “impasse,” the parties were exchanging emailed counterproposals on Articles 8 and 19. (Jt. Exhs. 20(a)–(b) and 21(a)–(b).) Article 8, which outlines disciplinary action proto- cols, was later signed by the parties, according to Escalera. (Tr. 271.) At trial, Escalera testified that there was “[p]ossibly” space for additional negotiations on several other contract provisions at the time of the declared Article 27 “impasse,” because Re- spondent still had not made final offers on at least ten articles. (Tr. 134–135.) In its posthearing brief, Respondent alleges its unilateral Au- gust 2022 Article 27 change “fatally hindered negotiations alto- gether and has created a de facto general impasse in the negotia- tions” as “demonstrated by the Union’s reiterated unwillingness to present counterproposals to the Company’s proposals in other articles. (R. Br. 34.) Those claims are contradicted by the record evidence of what transpired right after Respondent’s August 2022 unilateral implementation.25 But more importantly, the claims are irrelevant to proving this element and reflect a misun- derstanding of Respondent’s burden under a CalMat Co. single- issue impasse analysis. Under the Board’s three-part test, the proper consideration for this element is whether the alleged sin- gle-issue impasse causes “a complete breakdown in the entire negotiations,” not whether an employer’s subsequent, allegedly unlawful unilateral implementation chills negotiations that fol- low. CalMat Co., above at 1097; see also White Oak Coal Co., 295 NLRB 567, 568 (1989) (“The Board has long held that an employer may not ‘parlay an impasse’ resulting from its own misconduct”) (citing Wayne’s Dairy, 223 NLRB 260, 265 (1976)). Here, because the record shows that the parties continued to exchange and make progress on other articles during the alleged Article 27 impasse period, I find that there was no “breakdown” proposal on Art. 17. (Jt. Exh. 26(a)–(b).) Later that same day, Respond- ent countered with mutually signed proposals for Arts. 7 and 26, a further counterproposal for Art. 17, and an advisement that Respondent was sticking with its final offer for Art. 19. (Jt. Exh. 27(a)–(b).) DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 20 in overall negotiations, and therefore that there was no overall impasse that justified Respondent’s unilateral work-schedule change in August 2022. I therefore find that Respondent has failed to carry its burden to prove the existence of a single-issue impasse over Article 27, such that, absent a valid impasse, Respondent’s unilateral imple- mentation of the article was not privileged and instead violated Section 8(a)(5) and (1) of the Act. D. Respondent’s “Scope of Rights” Defense Does Not Apply Respondent alternatively defends its August 2022 unilateral implementation as “within the scope of rights reserved to man- agement by the parties’ collective bargaining agreement,” citing MV Transp., Inc., 368 NLRB No. 66, slip op. at 1 (2019). (R. Br. 38.) In that case, the Board adopted the “contract coverage” standard for determining whether an employer’s unilateral action is consistent with a preexisting collective-bargaining agreement. Under that standard, the Board considers the plain language of a CBA and determines if the employer’s action was “within the compass or scope of contractual language,” such as “if an agree- ment contains a provision that broadly grants the employer the right to implement new rules and policies and to revise existing ones.” MV Transp., Inc., above at 2. The “contract coverage” standard is not a blanket defense for employers, and “if the agree- ment does not [so] cover the employer’s disputed act, and that act has materially, substantially and significantly changed a term or condition of employment . . . the employer will have violated Section 8(a)(5) and (1) unless it demonstrates the union clearly and unmistakably waived its right to bargain over the change or that its unilateral action was privileged for some other reason.” Ibid. Critically, the Board has been clear that the contract coverage standard does not apply to changes made after a CBA expires, unless “the agreement contained language explicitly providing that the relevant provision would survive contract expiration”; that is because “an employer has a duty to maintain the status quo” under an expired agreement. Nexstar Broad., Inc., 369 NLRB No. 61, slip op. at 2–3 (2020), enfd. 4 F.4th 801 (9th Cir. 2021). Here, Article 27 of the 2018 CBA does facially give Respond- ent some limited flexibility to implement and modify work- schedules in case of operational necessity,26 but the 2018 CBA language clearly stipulates that any alternate workweek imple- mented by Respondent must nevertheless maintain the 5-days- on, 2-days-off pattern that was required for all employees under that agreement. (GC Exh. 5(a)–(b).) In this case, Respondent im- plemented a 5-2, 5-2, 5-1 pattern that is inconsistent with the conditions of the 2018 CBA. (Jt. Exh. 17(a)–(b).) Either way, Respondent is unable to invoke a contract coverage defense in this case. The 2018 CBA was expired at the time of the unilateral change, and the agreement does not “explicitly” state that Re- spondent’s work schedule-alteration right survives its expiration, as the Board requires under Nexstar Broad., Inc., above. (GC Exh. 5(a)–(b).) Applying current Board law on “contract cover- age,” I find that Respondent’s asserted “contract coverage” 26 Art. 27, Sec. 2, reads, “In case of operational need, THE COMPANY MAY establish an alternate work week of eight (8) hours a defense does not apply to Respondent’s August 2022 unilateral work-schedule change. E. Conclusion Based on the foregoing, I find that on August 15, 2022, Re- spondent implemented unilateral changes to unit employees’ work schedule, without first bargaining to a good-faith overall impasse, in violation of Section 8(a)(5) and (1). CONCLUSIONS OF LAW 1. Respondent, Compañía Cervecera de Puerto Rico, Inc., Mayaguez, Puerto Rico, is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Union Independiente de Trabajadores de Cerveceria India is a labor organization within the meaning of Section 2(5) of the Act. 3. The following employees constitute an appropriate unit for purposes of collective bargaining within the meaning of Section 9(b) of the Act: “All employees in the classification of general labor (Group A), bottling operators, logistic operators, physical plant mainte- nance, starters and substitutes (Group B), elaboration ‘brew- ing’ operators, beer technicians, utility monitoring technicians, greasers and mechanics, electricians, welders (Group C), and quality control analysts, water treatment plant operators, certi- fied ‘expert’ electricians and electro mechanics (Group D); ex- cluding all executives, professionals, clerks, janitors, messen- gers[,] administrative personnel, guards, and supervisors as de- fined by the Act.” (GC Exh. 1(o); GC Exh. 1(s).) 4. By forcing a 6 month, unpaid union leave upon Abel Luci- ano for engaging in union activity, Respondent engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 5. By forcing a 6 month, unpaid union leave upon Abel Luci- ano, in contravention of the terms and conditions of the parties’ expired 2018 CBA, Respondent made a unilateral change to terms and conditions of employment that was an unfair labor practice within the meaning of Section 8(a)(5) and (1) of the Act. 6. By unilaterally implementing bargaining unit work-sched- ule changes in August 2022, prior to reaching a valid impasse on an overall successor contract with the Union, Respondent failed and refused to bargain collectively and in good faith with the ex- clusive collective-bargaining representative of its employees within the meaning of Section 8(d) of the Act, in violation of Section 8(a)(5) and (1) of the Act. 7. The Respondent’s above-described unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. REMEDY Having found Respondent engaged in certain unfair labor practices, I shall order it to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. Specifically, having found Respondent violated Section 8(a)(3) and (1) by placing Abel Luciano on 6-month unpaid day, forty (40) hours a week, five (5) consecutive days from Tuesday to Saturday.” (GC Exh. 5(a)–(b).) COMPAÑIA CERVECERA DE PUERTO RICO 21 union leave because of his participation in concerted activities, I order Respondent to remove any reference to April 28, 2022 no- tification of prolonged leave from the file of Abel Luciano, and to communicate to Luciano in writing that the removal has been completed and that the unlawful actions will not be used against him in any way. I order Respondent to make Abel Luciano whole for any loss of earnings and other benefits suffered between April 28, 2022, and October 28, 2022, because of Respondent’s unlawful action against him. Backpay shall be calculated as outlined in F.W. Woolworth Co., 90 NLRB 289 (1950), with interest at the rate prescribed in New Horizons, 283 NLRB 1173 (1987), com- pounded daily as prescribed in Kentucky River Medical Center, 356 NLRB 6 (2010); see Crushin’ It LLC, 372 NLRB No. 100, slip op. at 5 (2023). Respondent shall further compensate Luci- ano for the adverse tax consequences, if any, of receiving a lump- sum backpay award, and file with the Regional Director for Re- gion 12, within 21 days of the date that the amount of backpay is fixed, either by agreement or Board order, a report allocating the backpay award to the proper calendar year. And Respondent shall file with the Regional Director for Region 12 a copy of Lu- ciano’s corresponding W-2 form reflecting the backpay award. Thryv, Inc., 372 NLRB No. 22, slip op. at 14 (2022). Under Thryv, Inc., make-whole relief further requires that the Respondent shall compensate Luciano “for all direct or foresee- able pecuniary harms suffered as a result of the [R]espondent’s unfair labor practice.” Thryv, Inc., above at 13. That shall include “reasonable search-for-work and interim employment expenses, if any, regardless of whether the expenses exceed interim earn- ings.” Tracy Toyota, 372 NLRB No. 101, slip op. at 7 (2023); see also King Soopers, Inc., 364 NLRB 1153, 1160–1161 (2016), enfd. in relevant part 859 F.3d 23 (D.C. Cir. 2017). Any such relief “must be specifically calculated and requires the General Counsel to present evidence in compliance demonstrating the amount of pecuniary harm, the direct or foreseeable nature of that harm, and why that harm is due to the respondent’s unfair labor practice,” at which time Respondent will have the chance to present evidence to the contrary. Thryv, Inc., above at 6. Any such expenses “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).” Terex, 366 NLRB No. 162, slip op. at 1, fn. 3 (2018); see also Crushin’ It LLC, above. Having found Respondent violated Section 8(a)(5) and (1) by failing and refusing to bargain in good faith with the exclusive collective-bargaining representative of its employees by unilat- erally implementing an alternate employee work schedule prior to reaching impasse with the Union, I order Respondent to re- scind its unlawful August 15, 2022 unilateral work-schedule change to bring its work schedule in compliance with the parties’ expired 2018 CBA. I further order Respondent to resume bar- gaining at the Union’s request, if it is not already doing so, until an agreement is reached or until the parties reach an overall good-faith impasse. Respondent shall also provide make-whole relief to all unit employees who may have suffered losses because of the unlaw- ful changes, which shall be determined in compliance proceedings. For any unit employees who experienced employ- ment cessation because of the unlawful changes, “backpay shall be computed in accordance with F.W. Woolworth, [above], with interest as prescribed in New Horizons, [above], compounded daily as prescribed in Kentucky River Medical Center, [above].” Weyerhaeuser NR Co., above. For unit employees who experi- enced losses but no employment cessation, “backpay shall be computed in the manner set forth in Ogle Protection Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), with in- terest as prescribed in New Horizons, [above], compounded daily as prescribed in Kentucky River Medical Center, [above].” Weyerhaeuser NR Co., above. Make-whole relief requires that the Respondent shall compen- sate impacted employees “for all direct or foreseeable pecuniary harms suffered as a result of the [R]espondent’s unfair labor practice.” Thryv, Inc., above. That shall include “reasonable search-for-work and interim employment expenses, if any, re- gardless of whether the expenses exceed interim earnings.” Tracy Toyota, above. Such expenses “shall be calculated sepa- rately from taxable net backpay, with interest as prescribed in New Horizons, [above], compounded daily as prescribed in Ken- tucky River Medical Center, [above].” Weyerhaeuser NR Co., above. Respondent shall further compensate employees affected by any violations for the adverse tax consequences, if any, of re- ceiving a lump-sum backpay award, and file with the Regional Director for Region 12, 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 proper calendar year for each affected employee. Additionally, Respondent shall file with the Regional Director for Region 12 a copy of affected employees’ corresponding W-2 form reflecting the backpay award. Thryv, Inc., above at 14. General Counsel has further requested, as an additional rem- edy, that Respondent be required to, in writing, “apologize to [the Union President] for any hardship or distress” that was “caused by placing him on unpaid union leave,” while providing assurances of “respect[ing] the rights of employees to bargain collectively with through the Union and to engage in union ac- tivities.” (GC Br. 44.) General Counsel does not cite, nor have I found any authority for such a remedy, and so I decline to rec- ommend it here. ORDER Respondent, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to bargain in good faith with the Un- ion as the exclusive collective bargaining representative of their employees in the following appropriate unit (the “Unit”): “All employees in the classification of general labor (Group A), bottling operators, logistic operators, physical plant mainte- nance, starters and substitutes (Group B), elaboration ‘brew- ing’ operators, beer technicians, utility monitoring technicians, greasers and mechanics, electricians, welders (Group C), and quality control analysts, water treatment plant operators, certi- fied ‘expert’ electricians and electro mechanics (Group D); ex- cluding all executives, professionals, clerks, janitors, DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 22 messengers[,] administrative personnel, guards, and supervi- sors as defined by the Act.” (GC Exh. 1(o); GC Exh. 1(s).) (b) Failing and refusing to bargain by announcing the unilat- erally implementation of work-schedule changes prior to reach- ing a good-faith impasse on an overall successor contract with the Union. (c) Interfering with employees’ protected union activities by taking adverse action against employees because they engage in protected concerted activities. (d) Changing unit employees’ terms and conditions of em- ployment without first notifying the Union and giving it an op- portunity to bargain to a good-faith impasse over such proposed changes, including by forcibly imposing prolonged unpaid union leave in contravention of the parties’ expired 2018 CBA and past practice. (e) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectu- ate the policies of the Act (a) On request, bargain with the Union as the exclusive rep- resentative of the employees in the Unit concerning terms and condition of employment, and, if an understanding is reached, embody the understanding in signed agreement. (b) On request by the Union, rescind the changes in the terms and conditions of employment for its unit employees that were unilaterally implemented on August 15, 2022, specifically the work-schedule changes that contravened Article 27 of the par- ties’ expired 2018 CBA. (c) Restore the terms and conditions of employment that ex- isted immediately prior to August 15, 2022, until a successor col- lective-bargaining agreement is reached or until the parties reach an overall good-faith impasse. (d) Bargain collectively in good faith with the Union, con- cerning rates of pay, wages, hours of work, and other terms and conditions of employment, until a signed successor collective- bargaining agreement or good-faith impasse is reached. (e) Make unit employees whole, with interest, for any loss of earnings and other benefits that they suffered as a result of the illegal, unilateral implementation of the contract proposal for Ar- ticle 27 on or about August 15, 2022, and thereafter. (f) Make unit employees whole for any other direct or fore- seeable pecuniary harms suffered as a result of the unlawful Au- gust 15, 2022 unilateral work-schedule change. (g) Within 14 days from the date of the Board’s Order, rescind and remove from our files any reference to the unlawful 6-month unpaid leave imposed upon Abel Luciano and, within three days after, notify him in writing that this has been done, and that the 6-month unpaid leave will not be used against him in any way. (h) To the extent not already done, reinstate Abel Luciano to work in his regular position, without prejudice to his seniority or other rights and privileges he previously enjoyed. 27 If the Mayaguez facility is “open and staffed by a substantial com- plement of employees, the notices must be posted and read within 14 days after service by the Region.” If closed or not staffed by a substantial complement of employees due to the pandemic, and “the Respondent is communicating with its employees by electronic means, the notices must (i) Make Abel Luciano whole for any loss of earnings and other benefits, plus interest, and for any other direct and foresee- able pecuniary harms suffered as a result of the unlawful impo- sition of 6-month unpaid leave, plus interest. (j) Compensate affected employees for the adverse tax conse- quences, if any, of receiving lump-sum backpay awards. (k) File with the Regional Director for Region 12, within 21 days of the date the amount of backpay is fixed by agreement or Board order or such time as the Regional Director may allow for good cause shown, a report allocating the backpay awards to the appropriate calendar year(s) for each employee. (l) File with the Regional Director for Region 12, 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, copies of each backpay recipient’s corresponding W-2 form(s) reflecting the backpay award. (m) Post at its Mayaguez, Puerto Rico facility copies of the attached notice marked “Appendix,”27 in both English and Span- ish. Copies of the notice, on forms provided by the Regional Di- rector for Region 12, after being signed by Respondent’s author- ized representative, shall be posted by Respondent and main- tained 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 dis- tributed electronically, such as by email, posting on an intranet or internet site, and/or by other electronic means, if the Respond- ent customarily communicates with its employees by such means. Respondent shall take reasonable steps to ensure that the notices are not altered, defaced, or covered by any other material. If Respondent has gone out of business or closed a facility in- volved in this proceeding, Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by Respondent at that facility at any time since April 28, 2021. (n) Within 21 days after service by the Region, file with the Regional Director for Region 12 a sworn certification of a re- sponsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. Dated, Washington, D.C., August 1, 2023 APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we 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 also be posted by such electronic means within 14 days after service by the Region.” Troy Grove Inc., above at 8. If the notice is posted electron- ically more than 60 days before its physical posting, the physical notice shall read at the bottom that “This notice is the same notice previously [sent or posted] electronically on [date].” Ibid. COMPAÑIA CERVECERA DE PUERTO RICO 23 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 announce to our employees in the below unit who are represented for the purpose of collective bargaining by Union Independiente de Trabajadores Cerveceria India (the Un- ion), that we are implementing contract proposals concerning rates of pay, wages, hours of work, or other terms and conditions of employment without first reaching a complete collective-bar- gaining agreement with the Union or bargaining with the Union to an overall good-faith impasse in negotiations for a complete collective-bargaining agreement: All employees in the classifications of general labor (Group A), bottling operators, logistic operators, physical plant mainte- nance, starters and substitutes (Group B), elaboration “brew- ing” operators, beer technicians, utility monitoring technicians, greasers and mechanics, electricians, and welders (Group C), and quality control analysts, water treatment plant operators, certified “expert” electricians and electro mechanics (Group D); excluding all executives, professionals, clerks, janitors, messengers administrative personnel guards, and supervisors as defined by the Act. WE WILL NOT implement contract proposals concerning rates of pay, wages, hours of work, or other terms and conditions of employment of our employees in the above unit without first reaching a complete collective-bargaining agreement with the Union or bargaining with the Union to an overall good-faith im- passe in negotiations for a complete successor collective-bar- gaining agreement. WE WILL NOT place you on unpaid union leave in the absence of a request from the employee, or make other changes to the rates of pay, wages, hours, and other terms and conditions of em- ployment of our employees in the above unit, without first giving the Union adequate notice and an opportunity to bargain with us about this conduct and the effects of this conduct, and without first reaching a complete collective-bargaining agreement with the Union or bargaining with the Union to an overall good-faith impasse in negotiations for a collective-bargaining agreement. WE WILL NOT place you on unpaid union leave that you did not request, or otherwise discriminate against you for engaging in activities on behalf of the Union. WE WILL NOT in any like or related manner interfere with, re- strain, or coerce you in the exercise of your above-stated rights that are guaranteed under Section 7 of the National Labor Rela- tions Act. WE WILL bargain collectively in good faith with the Union as the exclusive collective-bargaining representative of our em- ployees in the above unit, concerning rates of pay, wages, hours of work, and other terms and conditions of employment, and if an understanding is reached, we will embody the understanding in a signed collective-bargaining agreement. WE WILL rescind the work-schedule changes we made on Au- gust 15, 2022, pursuant to our contract proposal for Article 27— Working Hours and Payment Method—and WE WILL restore the terms and conditions of employment that existed immediately prior to August 15, 2022, until a successor collective-bargaining agreement is reached or until the parties reach an overall good- faith impasse. WE WILL make whole our employees in the above unit, with interest, for any loss of earnings and other benefits that they suf- fered as a result of the illegal, unilateral implementation of our contract proposal for Article 27—Working Hours and Payment Method—on or about August 15, 2022, and thereafter, and WE WILL also make them whole for other direct or foreseeable pecu- niary harms suffered as a result of the unlawful unilateral work- schedule change. WE WILL, within 14 days from the date of the Board’s Order, rescind and remove from our files any reference to the 6 month unpaid union leave that we unlawfully imposed upon our em- ployee Abel Luciano on or about April 28, 2022, and within three days after, notify him in writing that this has been done, and that the 6-month unpaid union leave will not be used against him in any way. WE WILL, to the extent we have not already done so, reinstate Abel Luciano to work in his regular position, without prejudice to his seniority or other rights and privileges he previously en- joyed. WE WILL make whole Abel Luciano for any loss of earnings and other benefits he lost because we improperly placed him on 6-month unpaid leave, plus interest, and WE WILL also make him whole for any other direct and foreseeable pecuniary harms suf- fered as a result of our improper imposition of 6-month unpaid leave, plus interest. WE WILL compensate affected employees for the adverse tax consequences, if any, of receiving lump-sum backpay awards, and WE WILL file with the Regional Director for Region 12, within 21 days of the date the amount of backpay is fixed by agreement or Board order or such time as the Regional Director may allow for good cause shown, a report allocating the backpay awards to the appropriate calendar year(s) for each employee. WE WILL file with the Regional Director for Region 12, 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, copies of each backpay recip- ient’s corresponding W-2 form(s) reflecting the backpay award. COMPAÑÍA CERVECERA DE PUERTO RICO, INC. The Board’s decision can be found at https://www.nlrb.gov/case/12-CA-295428 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. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 24