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

National Labor Relations Board - Board Decisions

Oct 16, 2019

368 NLRB No. 92 (N.L.R.B. 2019)

368 NLRB No. 92
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Seven Seas Union Square, LLC and Key Food Stores
Co-Operative, Inc., and 100 Greaves Lane Meat
LLC and Key Food Stores Co-Operative, Inc.,
and HB 84 Food Corp. and Key Food Stores Co-
Operative, Inc., and 1525 Albany Avenue Meat
LLC and Key Food Stores Co-Operative, Inc.
and Key Food CS2, LLC, d/b/a Food Universe
and Key Food Stores Co-Operative, Inc., and
Riverdale Grocers LLC and Key Food Stores Co-
Operative, Inc. and Jar 259 Food Corp. and Key
Food Stores Co-Operative, Inc., and Park Plaza
Food Corp. and Key Food Stores Co-Operative,
Inc. and Paramount Supermarkets Inc. and Key
Food Stores Co-Operative, Inc., and United Food
and Commercial Workers Union, Local 342,
AFL–CIO. Cases 29–CA–164058, 29–CA–167245,
29–CA–167319, 29–CA–167327, 29–CA–167400,
29–CA–173762, and 29–CA–180296

1 We will refer to the eight non–Key Food Respondents plus Key
Food CS2 collectively as the “individual-store Respondents.”
2 The non–Key Food Respondents have requested oral argument. The
request is denied as the record, exceptions, and briefs adequately present
the issues and positions of the parties.
3 The non–Key Food Respondents contend that the judge erred in
considering the General Counsel’s post-hearing brief and failing to rule
on their August 21, 2017 Motion to Strike that brief as untimely filed by
3 hours. We find in these circumstances that the judge’s consideration
of the posthearing brief and his inadvertent failure to rule on the motion
did not constitute prejudicial error.
4 The Respondents have excepted to some of the judge’s evidentiary
rulings. It is well established that the Board will affirm an evidentiary
ruling of an administrative law judge unless that ruling constitutes an
abuse of discretion. See Aladdin Gaming, LLC, 345 NLRB 585, 587
(2005), petition for review denied sub nom. Local Joint Executive Board
of Las Vegas v. NLRB, 515 F.3d 942 (9th Cir. 2008). After a careful
review of the record, we find no abuse of discretion in any of the chal-
lenged rulings.
Respondents Seven Seas Union Square, LLC, 100 Greaves Lane
Meat, LLC, HB 84 Food Corp., and 1525 Albany Avenue Meat LLC
have excepted to the judge’s denial of their motions at hearing, after the
General Counsel presented his case in chief, to dismiss the allegations
against them for failure of proof. We have carefully reviewed the record,
and we find that the General Counsel in each instance adduced sufficient
evidence to establish a prima facie case. We thus find that the judge did
not err in denying the motions to dismiss.
5 The Respondents have excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponderance
of all the relevant evidence convinces us that they are incorrect. Stand-
ard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d
Cir. 1951). We have carefully examined the record and find no basis for
reversing the findings. In addition, the non–Key Food Respondents ar-
gue that the judge’s rulings demonstrate bias against them. On careful
examination of the judge’s decision and the entire record, we are satisfied
that the Respondents’ contentions are without merit.
October 16, 2019
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS MCFERRAN
AND EMANUEL
On February 9, 2018, Administrative Law Judge Benja-
min W. Green issued the attached decision. Respondent
Key Food Stores Co-operative, Inc. (Key Food) and Re-
spondent Key Food CS2, LLC, d/b/a Food Universe (Key
Food CS2) jointly filed exceptions and a supporting brief,
and the remaining Respondents (the non–Key Food Re-
spondents) jointly filed exceptions and a supporting brief.1
The General Counsel filed an answering brief, and the Re-
spondents filed replies in the same combinations as in their
exceptions. The General Counsel filed cross-exceptions
and a supporting brief, and the non–Key Food Respond-
ents filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record in
light of the exceptions,2 cross-exceptions, and briefs3 and
has decided to affirm the judge’s rulings,4 findings,5 and
We adopt the judge’s finding, for the reasons he states, that the Re-
spondents were “perfectly clear” successors and therefore violated Sec.
8(a)(5) and (1) by unilaterally implementing initial employment terms
that differed from the predecessor employer’s terms and conditions of
employment, including a buyout provision that resulted in the layoff of
employees, without first bargaining with the Union to impasse. Accord-
ingly, we need not pass on the judge’s additional finding that the Re-
spondents were prohibited from unilaterally implementing their buyout
proposal under the principles of McClatchy Newspapers, 321 NLRB
1386 (1996), enfd. 131 F.3d 1026 (D.C. Cir. 1997), cert. denied 524 U.S.
937 (1998). Chairman Ring notes that the judge’s “perfectly clear” suc-
cessor analysis relied in part on Canteen Co., 317 NLRB 1052 (1995),
enfd. 103 F.3d 1355 (7th Cir. 1997). He applies Canteen Co. as extant
precedent but is open to reexamining it in an appropriate future case.
The Respondents except to the judge’s finding that they unlawfully
refused to bargain with the Union in violation of Sec. 8(a)(5) and (1), but
they do not argue that the judge’s recommended affirmative bargaining
order is improper if the Board affirms the judge’s 8(a)(5) finding. We
thus find it unnecessary to provide a specific justification for that rem-
edy. See Ridgewood Health Care Center, Inc. and Ridgewood Health
Services, Inc., 367 NLRB No. 110, slip op. at 10–11 fn. 19 (2019). See
also Scepter v. NLRB, 280 F.3d 1053, 1057 (D.C. Cir. 2002) (in the ab-
sence of particular exceptions, the Board may issue an affirmative bar-
gaining order without specifically stating the basis for the order). The
General Counsel has cross-excepted to the judge’s failure to decide the
complaint allegation that Respondent 1525 Albany Avenue Meat LLC
unlawfully promulgated employee work rules. Having carefully re-
viewed the record, we find that the evidence supports the complaint al-
legation that the Respondent unlawfully promulgated four work rules
(no-solicitation, political activity, loitering, and a catch-all disciplinary
prohibition) in response to its employees’ union activity. See Lutheran
Heritage Village-Livonia, 343 NLRB 646 (2004); accord Boeing Co.,
365 NLRB No. 154, slip op. at 7 (2017) (new framework for analyzing
work rules did not disturb the unlawful promulgation prong of Lutheran
Heritage). We note that the Respondents’ asserted defense to this alle-
gation---that the General Counsel failed to prove the rules were imple-
mented after the union activity---is contrary to the record evidence. In
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
conclusions as modified and to adopt the recommended
Order as modified and set forth in full below.6
In determining whether Respondent Key Food is a joint
employer, in separate pairs, with each of the nine individ-
ual-store Respondents, the judge applied the standard set
forth in Hy-Brand Industrial Contractors, Ltd. and Brandt
Construction Co., 365 NLRB No. 156 (2017) (Hy-Brand
I), in which the Board overruled BFI Newby Island Recy-
clery, 362 NLRB 1599 (2015) (Browning-Ferris), affd. in
part and remanded in part 911 F.3d 1195 (D.C. Cir. 2018).
After the judge issued his decision in this case, the Board
vacated its decision in Hy-Brand I and declared the over-
ruling of Browning-Ferris of no force or effect. See Hy-
Brand Industrial Contractors, Ltd. and Brandt Construc-
tion Co., 366 NLRB No. 26 (2018) (Hy-Brand II). Apply-
ing Browning-Ferris, we agree with the judge’s finding
that Respondent Key Food is a joint employer with each
of the individual-store Respondents.
As more fully described in the judge’s decision, Key
Food is a co-operative that consists of corporate members,
including the individual-store Respondents, that own su-
permarkets. In a bankruptcy proceeding, Key Food suc-
cessfully bid on and purchased supermarkets previously
owned by The Great Atlantic & Pacific Tea Company
(A&P), whose employees were represented by various lo-
cals of the United Food and Commercial Workers Union
(UFCW) and covered by collective-bargaining agree-
ments. Pursuant to an Asset Purchase Agreement between
Key Food and A&P, which was approved by the bank-
ruptcy court, Key Food bound itself to engage in good-
faith negotiations for modified collective-bargaining
agreements at the newly purchased supermarkets. After
its purchase, Key Food assigned ownership of the super-
markets (i.e., sold them) to the individual-store Respond-
ents. Pursuant to purchase agreements between Key Food
and the individual-store Respondents, each individual-
store Respondent agreed to be bound by any modified
agreement “negotiated by Key Food.” Key Food’s obli-
gation to bargain pursuant to the court-approved Asset
Purchase Agreement, and the individual-store

view of our finding of unlawful promulgation, we find it unnecessary to
pass on the judge’s finding that the rule concerning political activity is
unlawfully overbroad, because such finding would not affect the remedy.
In addition, the General Counsel has cross-excepted to the judge’s failure
to decide the complaint allegation that Respondent 1525 Albany Avenue
Meat LLC violated Sec. 8(a)(5) and (1) of the Act by unilaterally prom-
ulgating a new employee rule book in January 2016. We shall dismiss
this allegation, as the General Counsel failed to establish that the rules at
issue represented a change in existing terms and conditions of employ-
ment.
No exceptions were filed to the judge’s dismissal of the allegations
that (a) Respondent HB84 Food Corp. violated Sec. 8(a)(3) and (1) of
the Act by laying off Venus Nepay, Richard Maffia, and Khadisha Diaz;
(b) Respondent Seven Seas Union Square, LLC violated Sec. 8(a)(3) and
Respondents’ contractual surrender of bargaining author-
ity to Key Food, is confirmed by the parties’ conduct. As
the judge found, Key Food exercised near-absolute control
over negotiations for a common collective-bargaining
agreement, encompassing essential terms and conditions
of employment, that would cover employees at all the
newly purchased supermarkets and bind the individual-
store Respondents.
In agreeing with the judge that Key Food is a joint em-
ployer with each of the individual-store Respondents, we
also rely on the following evidence. First, the purchase
agreements between Key Food and the individual-store
Respondents bind the latter to make all offers of employ-
ment agreed to on their behalf by Key Food, thus giving
Key Food significant control over the scope and identity
of each store’s initial work force. Second, Key Food re-
ferred to itself as an “Employer” (along with individual-
store owners whose purchase of supermarkets are not a
part of this proceeding) in collective-bargaining agree-
ments it reached with UFCW Locals 338, 1500, and 464,
and Key Food was in fact the sole “Employer” signatory
to those agreements. Third, the owners of Respondent Al-
bany Avenue, after purchasing that store from Key Food,
distributed to employees a handbook entitled “Key Food
Rules & Regulations,” which referred only to Key Food
and not to the individual store or its owners. Finally,
Randy Abed, co-owner of Respondents Albany Avenue
and Greaves Lane, testified that “he couldn’t do anything
without the Key Food Cooperative” when the Union asked
him directly if they could work out an agreement to end
union handbilling at the Albany Avenue and Greaves Lane
stores.
Accordingly, as the judge found, Key Food exercised
direct and immediate control over essential terms and con-
ditions of employment of the individual-store Respond-
ents’ employees. Applying Browning-Ferris, we find that
this evidence plainly demonstrates that Key Food is a joint
employer of those employees.
(1) of the Act by refusing to hire Ricardo Nunez and Jerry Simpson and
violated Sec. 8(a)(1) by surveillance or giving the impression of surveil-
lance of employees’ protected activity; and (c) Respondent 1525 Albany
Avenue Meat LLC violated Sec. 8(a)(1) by maintaining overly broad
work rules concerning loitering and a catch-all disciplinary provision.
No exceptions were filed to the judge’s findings that (a) Respondent
1525 Albany Avenue Meat LLC violated Sec. 8(a)(1) of the Act by main-
taining an overly broad no-solicitation rule and (b) Respondent HB84
Food Corp. violated Sec. 8(a)(1) of the Act by interrogating Nelson
Quiles.
6 We shall modify the judge’s recommended Order to reflect the vio-
lations found, and to conform to the Board’s standard remedial language
and the judge’s Feb. 9, 2018 modifications to his recommended Order.
We shall substitute new notices to conform to the Order as modified.
SEVEN SEAS UNION SQUARE, LLC 3
ORDER
The National Labor Relations Board orders that
A. Respondent HB 84 Food Corp., Howard Beach,
New York, and Key Food Stores Co-operative, Inc.,
Staten Island, New York, joint employers, their officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Interrogating employees about their union activities.
(b) Refusing to hire employees because of their union
activities.
(c) Causing a different employer to lay off employees
because of their union activities.
(d) Failing and refusing to bargain with United Food
and Commercial Workers Union, Local 342, AFL–CIO
(the Union) as the exclusive collective-bargaining repre-
sentative of the employees in the bargaining unit at their
Howard Beach, New York facility.
(e) Unilaterally laying off unit employees or otherwise
changing their terms and conditions of employment with-
out first notifying the Union and giving it an opportunity
to bargain.
(f) Refusing to reinstate employees who are unlawfully
laid off.
(g) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain with the Union as the exclusive
collective-bargaining representative of the employees in
the following appropriate unit at their Howard Beach,
New York facility concerning terms and conditions of em-
ployment and, if an understanding is reached, embody the
understanding in a signed agreement:
all its employees in its stores herein, engaged in the cut-
ting, wrapping and selling of all fresh and smoked meat,
poultry, fish and such products customarily handled in
the Meat Department at retail in its retail stores or super-
markets, and such additional classifications previously
recognized by the Employer.
(b) Before laying off bargaining unit employees for
economic reasons, or before implementing any changes in
wages, hours, or other terms and conditions of employ-
ment of unit employees, notify and, on request, bargain
with the Union as the exclusive collective-bargaining rep-
resentative of employees in the above-described bargain-
ing unit.

7 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the National
Labor Relations Board” shall read “Posted Pursuant to a Judgment of the
(c) Make Nelson Quiles whole for any loss of earnings
and other benefits suffered as a result of unlawfully caus-
ing his layoff and unlawfully refusing to hire him, in the
manner set forth in the remedy section of the decision.
(d) Within 14 days from the date of this Order, offer
Khadisha Diaz, Richard Maffia, and Venus Nepay full re-
instatement to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions, without preju-
dice to their seniority or any other rights or privileges pre-
viously enjoyed.
(e) Make Khadisha Diaz, Richard Maffia, and Venus
Nepay whole for any loss of earnings and other benefits
suffered as a result of their unlawful layoff, in the manner
set forth in the remedy section of the decision.
(f) Compensate Khadisha Diaz, Richard Maffia, Venus
Nepay, and Nelson Quiles for the adverse tax conse-
quences, if any, of receiving lump-sum backpay awards,
and file with the Regional Director for Region 29, within
21 days of the date the amount of backpay is fixed, either
by agreement or Board order, a report allocating the back-
pay awards to the appropriate calendar years for each em-
ployee.
(g) Within 14 days from the date of this Order, remove
from their files any reference to the unlawful layoff of
Khadisha Diaz, Richard Maffia, and Venus Nepay, and
within 3 days thereafter notify them in writing that this has
been done and that the layoffs will not be used against
them in any way.
(h) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, social
security payment records, timecards, personnel records
and reports, and all other records, including an electronic
copy of such records if stored in electronic form, neces-
sary to analyze the amount of backpay due under the terms
of this Order.
(i) Within 14 days after service by the Region, post at
their facilities in Howard Beach, New York, copies of the
attached notice marked “Appendix A.”7 Copies of the no-
tice, on forms provided by the Regional Director for Re-
gion 29, after being signed by the Respondents’ author-
ized representative, shall be posted by the Respondents
and maintained for 60 consecutive days in conspicuous
places, including all places where notices to employees are
customarily posted. In addition to physical posting of pa-
per notices, notices shall be distributed electronically,
such as by email, posting on an intranet or an internet site,
and/or other electronic means, if the Respondents
United States Court of Appeals Enforcing an Order of the National Labor
Relations Board.”
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
customarily communicate with their employees by such
means. Reasonable steps shall be taken by the Respond-
ents to ensure that the notice is not altered, defaced, or
covered by any other material. If the Respondents have
gone out of business or closed the facilities involved in
these proceedings, the Respondents shall duplicate and
mail, at their own expense, a copy of the notice to all cur-
rent employees and former employees employed by the
Respondents at any time since September 6, 2015.
(j) Within 21 days after service by the Region, file with
the Regional Director for Region 29 a sworn certification
of a responsible official on a form provided by the Region
attesting to the steps that the Respondents have taken to
comply.
B. Respondent 100 Greaves Lane Meat LLC, Staten Is-
land, New York, and Key Food Stores Co-operative, Inc.,
Staten Island, New York, joint employers, their officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Laying off employees because of their union activ-
ities.
(b) Failing and refusing to bargain with United Food
and Commercial Workers Union, Local 342, AFL–CIO
(the Union) as the exclusive collective-bargaining repre-
sentative of the employees in the bargaining unit at their
Staten Island, New York facility.
(c) Unilaterally laying off unit employees or otherwise
changing their terms and conditions of employment with-
out first notifying the Union and giving it an opportunity
to bargain.
(d) Refusing to reinstate employees who are unlawfully
laid off.
(e) Unilaterally reducing the work days of unit employ-
ees without first notifying the Union and giving it an op-
portunity to bargain.
(f) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain with the Union as the exclusive
collective-bargaining representative of the employees in
the following appropriate unit at their Staten Island, New
York facility concerning terms and conditions of employ-
ment and, if an understanding is reached, embody the un-
derstanding in a signed agreement:
all its employees in its stores herein, engaged in the cut-
ting, wrapping and selling of all fresh and smoked meat,
poultry, fish and such products customarily handled in
the Meat Department at retail in its retail stores or
supermarkets, and such additional classifications previ-
ously recognized by the Employer.
(b) Before laying off bargaining unit employees for
economic reasons or reducing their work days, or before
implementing any changes in wages, hours, or other terms
and conditions of employment of unit employees, notify
and, on request, bargain with the Union as the exclusive
collective-bargaining representative of employees in the
above-described bargaining unit.
(c) Rescind the unlawful change in the work days of
unit employees that was unilaterally implemented in No-
vember 2015.
(d) Within 14 days from the date of this Order, offer
Debra Abruzzese, Gina Cammarano, Michael Fischetti,
and Anthony Venditti full reinstatement to their former
jobs or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their seniority
or any other rights or privileges previously enjoyed.
(e) Make Debra Abruzzese, Gina Cammarano, Michael
Fischetti, and Anthony Venditti whole for any loss of
earnings and other benefits suffered as a result of their un-
lawful layoffs, in the manner set forth in the remedy sec-
tion of the decision.
(f) Within 14 days from the date of this Order, remove
from their files any reference to the unlawful layoffs of
Debra Abruzzese, Gina Cammarano, Michael Fischetti,
and Anthony Venditti, and within 3 days thereafter notify
them in writing that this has been done and that the layoffs
will not be used against them in any way.
(g) Make whole unit employees for any loss of earnings
and other benefits suffered as a result of the unlawful re-
duction in their work days from 6 to 5, in the manner set
forth in the remedy section of the decision.
(h) Compensate Debra Abruzzese, Gina Cammarano,
Michael Fischetti, Anthony Venditti, and all employees
entitled to backpay because of the unlawful reduction in
work days for the adverse tax consequences, if any, of re-
ceiving a lump-sum backpay award, and file with the Re-
gional Director for Region 29, within 21 days of the date
the amount of backpay is fixed, either by agreement or
Board order, a report allocating the backpay awards to the
appropriate calendar years for each employee.
(i) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, social
security payment records, timecards, personnel records
and reports, and all other records, including an electronic
copy of such records if stored in electronic form, neces-
sary to analyze the amount of backpay due under the terms
of this Order.
SEVEN SEAS UNION SQUARE, LLC 5
(j) Within 14 days after service by the Region, post at
their facility in Staten Island, New York, copies of the at-
tached notice marked “Appendix B.”8 Copies of the no-
tice, on forms provided by the Regional Director for Re-
gion 29, after being signed by the Respondents’ author-
ized representative, shall be posted by the Respondents
and maintained for 60 consecutive days in conspicuous
places, including all places where notices to employees are
customarily posted. In addition to physical posting of pa-
per notices, notices shall be distributed electronically,
such as by email, posting on an intranet or an internet site,
and/or other electronic means, if the Respondents custom-
arily communicate with their employees by such means.
Reasonable steps shall be taken by the Respondents to en-
sure that the notice is not altered, defaced, or covered by
any other material. If the Respondents have gone out of
business or closed the facilities involved in these proceed-
ings, the Respondents shall duplicate and mail, at their
own expense, a copy of the notice to all current employees
and former employees employed by the Respondent at any
time since November 28, 2015.
(k) Within 21 days after service by the Region, file with
the Regional Director for Region 29 a sworn certification
of a responsible official on a form provided by the Region
attesting to the steps that the Respondents have taken to
comply.
C. Respondent 1525 Albany Avenue Meat LLC,
Brooklyn, New York, and Key Food Stores Co-operative,
Inc., Staten Island, New York, joint employers, their of-
ficers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Maintaining an overly broad rule that prohibits em-
ployees from engaging in protected solicitation on non-
working times and in non-working areas and requires em-
ployees to report protected activities to management.
(b) Promulgating rules in response to employees’ union
activities.
(c) Failing and refusing to meet and bargain with
United Food and Commercial Workers Union, Local 342,
AFL–CIO (the Union) as the exclusive collective-bargain-
ing representative of the employees in the bargaining unit
at their Brooklyn, New York facility.
(d) Laying off or discharging employees because of
their union activities.
(e) Unilaterally laying off unit employees or otherwise
changing their terms and conditions of employment with-
out first notifying the Union and giving it an opportunity
to bargain.

8 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the National
Labor Relations Board” shall read “Posted Pursuant to a Judgment of the
(f) Refusing to reinstate employees who are unlawfully
laid off.
(g) Demoting employees, reducing the work hours of
employees, and/or reducing the wage rates of employees
because of their union activities.
(h) Unilaterally demoting, reducing the work hours,
and/or reducing the wage rate of unit employees or other-
wise changing their terms and conditions of employment
without first notifying the Union and giving it an oppor-
tunity to bargain.
(i) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain with the Union as the exclusive
collective-bargaining representative of the employees in
the following appropriate unit at their Brooklyn, New
York facility concerning terms and conditions of employ-
ment and, if an understanding is reached, embody the un-
derstanding in a signed agreement:
all its employees in its stores herein, engaged in the cut-
ting, wrapping and selling of all fresh and smoked meat,
poultry, fish and such products customarily handled in
the Meat Department at retail in its retail stores or super-
markets, and such additional classifications previously
recognized by the Employer.
(b) Before laying off bargaining unit employees for
economic reasons, demoting them, reducing their work
hours and/or wage rates, or implementing any other-
changes in their wages, hours, or other terms and condi-
tions of employment, notify and, on request, bargain with
the Union as the exclusive collective-bargaining repre-
sentative of employees in the above-described bargaining
unit.
(c) Rescind the unlawful changes in the job classifica-
tion, work hours and wage rates of unit employees that
were unilaterally implemented in January 2016.
(d) Rescind its rules concerning no solicitation, politi-
cal activity, loitering, and a catch-all disciplinary provi-
sion from the employee handbook entitled “Key Food
Rules & Regulations.” Furnish employees with inserts for
the current employee handbook that (1) advise that the un-
lawful provisions have been rescinded, or (2) provide law-
fully worded provisions on adhesive backing that will
cover the unlawful provisions; or publish and distribute to
employees revised employee handbooks that (1) do not
United States Court of Appeals Enforcing an Order of the National Labor
Relations Board.”
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
contain the unlawful provisions, or (2) provide lawfully
worded provisions.
(e) Within 14 days from the date of this Order, offer Jo-
seph Batiste, Kalvin Harris, Robert Jenzen and Stephen
Fiore full reinstatement to their former jobs or, if those
jobs no longer exist, to substantially equivalent positions,
without prejudice to their seniority or any other rights or
privileges previously enjoyed.
(f) Make Joseph Batiste, Kalvin Harris, Robert Jenzen,
and Stephen Fiore whole for any loss of earnings and other
benefits suffered as a result of their unlawful layoffs or
discharge, in the manner set forth in the remedy section of
the decision.
(g) Make Robert Jenzen whole for the unlawful reduc-
tions in his work hours, in the manner set forth in the rem-
edy section of the decision.
(h) Make Stephen Fiore whole for his unlawful demo-
tion, reduction of wage rate, and reduction of work hours,
in the manner set forth in the remedy section of the deci-
sion.
(i) Compensate Joseph Batiste, Kalvin Harris, Robert
Jenzen and Stephen Fiore for the adverse tax conse-
quences, if any, of receiving lump-sum backpay awards,
and file with the Regional Director for Region 29, within
21 days of the day the amount of backpay is fixed, either
by agreement or Board order, a report allocating the back-
pay awards to the appropriate calendar quarters for each
employee.
(j) Within 14 days from the date of this Order, remove
from their files any reference to the unlawful layoffs, dis-
charge, and reductions of wage rates and hours of Joseph
Batiste, Kalvin Harris, Robert Jenzen and Stephen Fiore,
and within 3 days thereafter notify them in writing that this
has been done and that the unlawful layoffs and reductions
of wage rates and hours will not be used against them in
any way.
(k) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, social
security payment records, timecards, personnel records
and reports, and all other records, including an electronic
copy of such records if stored in electronic form, neces-
sary to analyze the amount of backpay due under the terms
of this Order.
(l) Within 14 days after service by the Region, post at
their facility in Brooklyn, New York, copies of the at-
tached notice marked “Appendix C.”9 Copies of the no-
tice, on forms provided by the Regional Director for

9 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the National
Labor Relations Board” shall read “Posted Pursuant to a Judgment of the
Region 29, after being signed by the Respondents’ author-
ized representative, shall be posted by the Respondents
and maintained for 60 consecutive days in conspicuous
places, including all places where notices to employees are
customarily posted. In addition to physical posting of pa-
per notices, notices shall be distributed electronically,
such as by email, posting on an intranet or an internet site,
and/or other electronic means, if the Respondents custom-
arily communicate with their employees by such means.
Reasonable steps shall be taken by the Respondents to en-
sure that the notice is not altered, defaced, or covered by
any other material. If the Respondents have gone out of
business or closed the facilities involved in these proceed-
ings, the Respondents shall duplicate and mail, at their
own expense, a copy of the notice to all current employees
and former employees employed by the Respondents at
any time since November 28, 2015.
(m) Within 21 days after service by the Region, file
with the Regional Director for Region 29 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondents have
taken to comply.
D. Respondent Seven Seas Union Square, LLC, New
York, New York, and Key Food Stores Co-operative, Inc.,
Staten Island, New York, joint employers, their officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to meet and bargain with
United Food and Commercial Workers Union, Local 342,
AFL–CIO (the Union) as the exclusive collective-bargain-
ing representative of the employees in the bargaining unit
at their New York, New York facility.
(b) Refusing to hire employees because of their union
activity or because the Union engaged in activities on the
employees’ behalf.
(c) Unilaterally laying off unit employees or otherwise
changing their terms and conditions of employment with-
out first notifying the Union and giving it an opportunity
to bargain.
(d) Refusing to reinstate employees who are unilater-
ally laid off.
(e) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain with the Union as the exclusive
collective-bargaining representative of the employees in
the following appropriate unit at their New York, New
United States Court of Appeals Enforcing an Order of the National Labor
Relations Board.”
SEVEN SEAS UNION SQUARE, LLC 7
York facility concerning terms and conditions of employ-
ment and, if an understanding is reached, embody the un-
derstanding in a signed agreement:
all store employees, including Meat Department Heads,
Meat Department employees, Grocery employees, and
part-time employees, except Store Managers, Assistant
Managers, Guards, Watchmen and all executives and
supervisory employees of stores which are located in the
Counties of Bronx and Manhattan.
(b) Before laying off bargaining unit employees for
economic reasons, or before implementing any changes in
wages, hours, or other terms and conditions of employ-
ment of unit employees, notify and, on request, bargain
with the Union as the exclusive collective-bargaining rep-
resentative of employees in the above-described bargain-
ing unit.
(c) Within 14 days from the date of this Order, offer
Jose Carlos Colon, Juana Diaz, Keesha Fields, Madeline
Gomez, Dena Iturralde, Tamika Jones, Maria Ortega,
Elena Pagan, and Rosa Silverio instatement to the posi-
tions they held as employees of The Great Atlantic & Pa-
cific Tea Company or, if such positions no longer exist, to
substantially equivalent positions, without prejudice to
their seniority or any other rights or privileges previously
enjoyed.
(d) Within 14 days from the date of this Order, of-
fer Ayanna Jordan full reinstatement to her former job or,
if that job no longer exists, to a substantially equivalent
position, without prejudice to her seniority or any other
rights or privileges previously enjoyed.
(e) Make Jose Carlos Colon, Juana Diaz, Keesha
Fields, Madeline Gomez, Dena Itturalde, Tamika Jones,
Maria Ortega, Elena Pagan, and Rosa Silverio whole for
any loss of earnings and other benefits suffered as a result
of the unlawful refusal to hire them, in the manner set forth
in the remedy section of the decision.
(f) Make Ayanna Jordan whole for any loss of earnings
and other benefits suffered as a result of her unlawful
layoff, in the manner set forth in the remedy section of the
decision.
(g) Compensate Jose Carlos Colon, Juana Diaz, Keesha
Fields, Madeline Gomez, Dena Iturralde, Tamika Jones,
Ayanna Jordan, Maria Ortega, Elena Pagan, and Rosa Sil-
verio for the adverse tax consequences, if any, of receiving
lump-sum backpay awards, and file with the Regional Di-
rector for Region 29, within 21 days of the date the amount
of backpay is fixed, either by agreement or Board order, a

10 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the National
Labor Relations Board” shall read “Posted Pursuant to a Judgment of the
report allocating the backpay awards to the appropriate
calendar years for each employee.
(h) Within 14 days from the date of this Order, remove
from their files any reference to the unlawful refusal to
hire Jose Carlos Colon, Juana Diaz, Keesha Fields, Made-
line Gomez, Dena Iturralde, Tamika Jones, Maria Ortega,
Elena Pagan, and Rosa Silverio and the unlawful layoff of
Ayanna Jordan, and within 3 days thereafter, notify each
of them in writing that this has been done and that the un-
lawful layoff and refusals to hire will not be used against
them in any way.
(i) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, social
security payment records, timecards, personnel records
and reports, and all other records, including an electronic
copy of such records if stored in electronic form, neces-
sary to analyze the amount of backpay due under the terms
of this Order.
(j) Within 14 days after service by the Region, post at
their facility in New York, New York, copies of the at-
tached notice marked “Appendix D.”10 Copies of the no-
tice, on forms provided by the Regional Director for Re-
gion 29, after being signed by the Respondents’ author-
ized representative, shall be posted by the Respondents
and maintained for 60 consecutive days in conspicuous
places, including all places where notices to employees are
customarily posted. In addition to physical posting of pa-
per notices, notices shall be distributed electronically,
such as by email, posting on an intranet or an internet site,
and/or other electronic means, if the Respondents custom-
arily communicate with their employees by such means.
Reasonable steps shall be taken by the Respondents to en-
sure that the notice is not altered, defaced, or covered by
any other material. If the Respondents have gone out of
business or closed the facilities involved in these proceed-
ings, the Respondents shall duplicate and mail, at their
own expense, a copy of the notice to all current employees
and former employees employed by the Respondent at any
time since November 9, 2015.
(k) Within 21 days after service by the Region, file with
the Regional Director for Region 29 a sworn certification
of a responsible official on a form provided by the Region
attesting to the steps that the Respondents have taken to
comply.
E. Respondent Key Food CS2, LLC, d/b/a Food Uni-
verse, Bayside, New York, and Key Food Stores Co-
United States Court of Appeals Enforcing an Order of the National Labor
Relations Board.”
8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
operative, Inc., Staten Island, New York, joint employers,
their officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain with United Food
and Commercial Workers Union, Local 342, AFL–CIO
(the Union) as the exclusive collective-bargaining repre-
sentative of the employees in the bargaining unit at their
Bayside, New York, facility.
(b) Unilaterally laying off unit employees or otherwise
changing their terms and conditions of employment with-
out first notifying the Union and giving it an opportunity
to bargain.
(c) Refusing to reinstate employees who are unilater-
ally laid off.
(d) Bypassing the Union and dealing directly with unit
employees regarding their wages, hours and other terms
and conditions of employment.
(e) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain with the Union as the exclusive
collective-bargaining representative of the employees in
the following appropriate unit at their Bayside, New York
facility concerning terms and conditions of employment
and, if an understanding is reached, embody the under-
standing in a signed agreement:
all its employees in its stores herein, engaged in the cut-
ting, wrapping and selling of all fresh and smoked meat,
poultry, fish and such products customarily handled in
the Meat Department at retail in its retail stores or super-
markets, and such additional classifications previously
recognized by the Employer.
(b) Before laying off bargaining unit employees for
economic reasons, or before implementing any changes in
wages, hours, or other terms and conditions of employ-
ment of unit employees, notify and, on request, bargain
with the Union as the exclusive collective-bargaining rep-
resentative of employees in the above-described bargain-
ing unit.
(c) Upon the Union’s request, rescind the severance
agreement signed by Mariano Rosado.
(d) Within 14 days from the date of this Order, offer
Mariano Rosado full reinstatement to his former job or, if
that job no longer exists, to a substantially equivalent

11 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the National
Labor Relations Board” shall read “Posted Pursuant to a Judgment of the
position, without prejudice to his seniority or any other
rights or privileges previously enjoyed.
(e) Make Mariano Rosado whole for any loss of earn-
ings and other benefits suffered as a result of his unlawful
layoff, in the manner set forth in the remedy section of the
decision.
(f) Compensate Mariano Rosado for the adverse tax
consequences, if any, of receiving a lump-sum backpay
award, and file with the Regional Director for Region 29,
within 21 days of the date the amount of backpay is fixed,
either by agreement or Board order, a report allocating the
backpay award to the appropriate calendar years.
(g) Within 14 days from the date of this Order, remove
from their files any reference to the unlawful layoff of
Mariano Rosado, and within 3 days thereafter notify him
in writing that this has been done and that the layoff will
not be used against him in any way.
(h) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, social
security payment records, timecards, personnel records
and reports, and all other records, including an electronic
copy of such records if stored in electronic form, neces-
sary to analyze the amount of backpay due under the terms
of this Order.
(i) Within 14 days after service by the Region, post at
their facility in Bayside, New York, copies of the attached
notice marked “Appendix E.”11 Copies of the notice, on
forms provided by the Regional Director for Region 29,
after being signed by the Respondents’ authorized repre-
sentative, shall be posted by the Respondents and main-
tained for 60 consecutive days in conspicuous places, in-
cluding all places where notices to employees are custom-
arily posted. In addition to physical posting of paper no-
tices, notices shall be distributed electronically, such as by
email, posting on an intranet or an internet site, and/or
other electronic means, if the Respondents customarily
communicate with their employees by such means. Rea-
sonable steps shall be taken by the Respondents to ensure
that the notice is not altered, defaced, or covered by any
other material. If the Respondents have gone out of busi-
ness or closed the facilities involved in these proceedings,
the Respondents shall duplicate and mail, at their own ex-
pense, a copy of the notice to all current employees and
former employees employed by the Respondents at any
time since January 3, 2016.
(j) Within 21 days after service by the Region, file with
the Regional Director for Region 29 a sworn certification
United States Court of Appeals Enforcing an Order of the National Labor
Relations Board.”
SEVEN SEAS UNION SQUARE, LLC 9
of a responsible official on a form provided by the Region
attesting to the steps that the Respondents have taken to
comply.
F. Respondent Riverdale Grocers LLC, Bronx, New
York, and Key Food Stores Co-operative, Inc., Staten Is-
land, New York, joint employers, their officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain with United Food
and Commercial Workers Union, Local 342, AFL–CIO
(the Union) as the exclusive collective-bargaining repre-
sentative of the employees in the bargaining unit at their
Bronx, New York facility.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain with the Union as the exclusive
collective-bargaining representative of the employees in
the following appropriate unit at their Bronx, New York
facility concerning terms and conditions of employment
and, if an understanding is reached, embody the under-
standing in a signed agreement:
its employees who, in the Counties of New York and
Bronx in the City and State of New York, are engaged
in the cutting, wrapping and selling of all fresh and
smoked meats, poultry, fish and such products custom-
arily handled in the Meat Department, at retail in the
Employer’s retail stores or supermarkets, and such addi-
tional classifications previously recognized by the Em-
ployer.
(b) Within 14 days after service by the Region, post at
their facility in Bronx, New York, copies of the attached
notice marked “Appendix F.”12 Copies of the notice, on
forms provided by the Regional Director for Region 29,
after being signed by the Respondents’ authorized repre-
sentative, shall be posted by the Respondents and main-
tained for 60 consecutive days in conspicuous places, in-
cluding all places where notices to employees are custom-
arily posted. In addition to physical posting of paper no-
tices, notices shall be distributed electronically, such as by
email, posting on an intranet or an internet site, and/or
other electronic means, if the Respondents customarily
communicate with their employees by such means. Rea-
sonable steps shall be taken by the Respondents to ensure

12 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the National
Labor Relations Board” shall read “Posted Pursuant to a Judgment of the
United States Court of Appeals Enforcing an Order of the National Labor
Relations Board.”
that the notice is not altered, defaced, or covered by any
other material. If the Respondents have gone out of busi-
ness or closed the facilities involved in these proceedings,
the Respondents shall duplicate and mail, at their own ex-
pense, a copy of the notice to all current employees and
former employees employed by the Respondents at any
time since July 16, 2016.
(c) Within 21 days after service by the Region, file with
the Regional Director for Region 29 a sworn certification
of a responsible official on a form provided by the Region
attesting to the steps that the Respondents have taken to
comply.
G. Respondent Jar 259 Food Corp., Glen Oaks, New
York, and Key Food Stores Co-operative, Inc., Staten Is-
land, New York, joint employers, their officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain with United Food
and Commercial Workers Union, Local 342, AFL–CIO
(the Union) as the exclusive collective-bargaining repre-
sentative of the employees in the bargaining unit at their
Glen Oaks, New York facility.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain with the Union as the exclusive
collective-bargaining representative of the employees in
the following appropriate unit at their Glen Oaks, New
York facility concerning terms and conditions of employ-
ment and, if an understanding is reached, embody the un-
derstanding in a signed agreement:
all its employees in its stores herein, engaged in the cut-
ting, wrapping and selling of all fresh and smoked meat,
poultry, fish and such products customarily handled in
the Meat Department at retail in its retail stores or super-
markets, and such additional classifications previously
recognized by the Employer.
(b) Within 14 days after service by the Region, post at
their facility in Glen Oaks, New York, copies of the at-
tached notice marked “Appendix G.”13 Copies of the no-
tice, on forms provided by the Regional Director for Re-
gion 29, after being signed by the Respondents’ author-
ized representative, shall be posted by the Respondents
and maintained for 60 consecutive days in conspicuous
13 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the National
Labor Relations Board” shall read “Posted Pursuant to a Judgment of the
United States Court of Appeals Enforcing an Order of the National Labor
Relations Board.”
10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
places, including all places where notices to employees are
customarily posted. In addition to physical posting of pa-
per notices, notices shall be distributed electronically,
such as by email, posting on an intranet or an internet site,
and/or other electronic means, if the Respondents custom-
arily communicate with their employees by such means.
Reasonable steps shall be taken by the Respondents to en-
sure that the notice is not altered, defaced, or covered by
any other material. If the Respondents have gone out of
business or closed the facilities involved in these proceed-
ings, the Respondents shall duplicate and mail, at their
own expense, a copy of the notice to all current employees
and former employees employed by the Respondents at
any time since July 16, 2016.
(c) Within 21 days after service by the Region, file with
the Regional Director for Region 29 a sworn certification
of a responsible official on a form provided by the Region
attesting to the steps that the Respondents have taken to
comply.
H. Respondent Park Plaza Food Corp., Glen Head, New
York, and Key Food Stores Co-operative, Inc., Staten Is-
land, New York, joint employers, their officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain with United Food
and Commercial Workers Union, Local 342, AFL–CIO
(the Union) as the exclusive collective-bargaining repre-
sentative of the employees in the bargaining unit at their
Glen Head, New York facility.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain with the Union as the exclusive
collective-bargaining representative of the employees in
the following appropriate unit at their Glen Head, New
York facility concerning terms and conditions of employ-
ment and, if an understanding is reached, embody the un-
derstanding in a signed agreement:
all its employees in its stores herein, engaged in the cut-
ting, wrapping and selling of all fresh and smoked meat,
poultry, fish and such products customarily handled in
the Meat Department at retail in its retail stores or super-
markets, and such additional classifications previously
recognized by the Employer.

14 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the National
Labor Relations Board” shall read “Posted Pursuant to a Judgment of the
(b) Within 14 days after service by the Region, post at
their facility in Glen Head, New York, copies of the at-
tached notice marked “Appendix H.”14 Copies of the no-
tice, on forms provided by the Regional Director for Re-
gion 29, after being signed by the Respondents’ author-
ized representative, shall be posted by the Respondents
and maintained for 60 consecutive days in conspicuous
places, including all places where notices to employees are
customarily posted. In addition to physical posting of pa-
per notices, notices shall be distributed electronically,
such as by email, posting on an intranet or an internet site,
and/or other electronic means, if the Respondents custom-
arily communicate with their employees by such means.
Reasonable steps shall be taken by the Respondents to en-
sure that the notice is not altered, defaced, or covered by
any other material. If the Respondents have gone out of
business or closed the facilities involved in these proceed-
ings, the Respondents shall duplicate and mail, at their
own expense, a copy of the notice to all current employees
and former employees employed by the Respondents at
any time since July 16, 2016.
(c) Within 21 days after service by the Region, file with
the Regional Director for Region 29 a sworn certification
of a responsible official on a form provided by the Region
attesting to the steps that the Respondents have taken to
comply.
I. Respondent Paramount Supermarkets Inc., Brooklyn
and Queens, New York, and Key Food Stores Co-opera-
tive, Inc., Staten Island, New York, joint employers, their
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain with United Food
and Commercial Workers Union, Local 342, AFL–CIO
(the Union) as the exclusive collective-bargaining repre-
sentative of the employees in the bargaining unit at their
Queens, New York facility.
(b) Failing and refusing to bargain with the Union as
the exclusive collective-bargaining representative of the
employees in the bargaining unit at their Brooklyn, New
York facility.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain with the Union as the exclusive
collective-bargaining representative of the employees in
the following appropriate unit at their Queens, New York
facility concerning terms and conditions of employment
United States Court of Appeals Enforcing an Order of the National Labor
Relations Board.”
SEVEN SEAS UNION SQUARE, LLC 11
and, if an understanding is reached, embody the under-
standing in a signed agreement:
all its employees in its stores herein, engaged in the cut-
ting, wrapping and selling of all fresh and smoked meat,
poultry, fish and such products customarily handled in
the Meat Department at retail in its retail stores or super-
markets, and such additional classifications previously
recognized by the Employer.
(b) On request, bargain with the Union as the exclusive
collective-bargaining representative of the employees in
the following appropriate unit at their Brooklyn, New
York facility concerning terms and conditions of employ-
ment and, if an understanding is reached, embody the un-
derstanding in a signed agreement:
all Grocery Department and Meat Department employ-
ees, including Meat Department Heads and part-time
employees, and Pharmacy Department employees ex-
cept all executives, supervisory employees and Phar-
macy managers of stores which are located in the Coun-
ties of Nassau, Suffolk, Kings, Queens and the stores lo-
cated in the Borough of Richmond.
(c) Within 14 days after service by the Region, post at
their facilities in Brooklyn and Queens, New York, copies
of the attached notice marked “Appendix I.”15 Copies of
the notice, on forms provided by the Regional Director for
Region 29, after being signed by the Respondents’ author-
ized representative, shall be posted by the Respondents
and maintained for 60 consecutive days in conspicuous
places, including all places where notices to employees are
customarily posted. In addition to physical posting of pa-
per notices, notices shall be distributed electronically,
such as by email, posting on an intranet or an internet site,
and/or other electronic means, if the Respondents custom-
arily communicate with their employees by such means.
Reasonable steps shall be taken by the Respondents to en-
sure that the notice is not altered, defaced, or covered by
any other material. If the Respondents have gone out of
business or closed the facilities involved in these proceed-
ings, the Respondent shall duplicate and mail, at their own
expense, a copy of the notice to all current employees and
former employees employed by the Respondents at any
time since July 16, 2016.
(d) Within 21 days after service by the Region, file with
the Regional Director for Region 29 a sworn certification
of a responsible official on a form provided by the Region

15 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the National
Labor Relations Board” shall read “Posted Pursuant to a Judgment of the
attesting to the steps that the Respondents have taken to
comply.
Dated, Washington, D.C. October 16, 2019
______________________________________
John F. Ring, Chairman
______________________________________
Lauren McFerran, Member
_____________________________________
William J. Emanuel, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX A
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vi-
olated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your
behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected ac-
tivities.
WE WILL NOT interrogate you about your union activi-
ties.
WE WILL NOT refuse to hire you because of your union
activities.
WE WILL NOT cause a different employer to lay you off
because of your union activities.
WE WILL NOT fail and refuse to bargain with United
Food and Commercial Workers Union, Local 342, AFL–
CIO (the Union) as the exclusive collective-bargaining
representative of our employees in the bargaining unit at
our Howard Beach, New York facility.
United States Court of Appeals Enforcing an Order of the National Labor
Relations Board.”
12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
WE WILL NOT unilaterally lay you off or otherwise
change your terms and conditions of employment without
first notifying the Union and giving it an opportunity to
bargain.
WE WILL NOT refuse to reinstate you after you are un-
lawfully laid off.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL, on request, bargain with the Union as the ex-
clusive collective-bargaining representative of our em-
ployees in the following appropriate unit at our Howard
Beach, New York facility concerning terms and condi-
tions of employment and, if an understanding is reached,
embody the understanding in a signed agreement:
all its employees in its stores herein, engaged in the cut-
ting, wrapping and selling of all fresh and smoked meat,
poultry, fish and such products customarily handled in
the Meat Department at retail in its retail stores or super-
markets, and such additional classifications previously
recognized by the Employer.
WE WILL, before laying you off for economic reasons,
or before implementing any changes in wages, hours, or
other terms and conditions of employment of unit employ-
ees, notify and, on request, bargain with the Union as the
exclusive collective-bargaining representative of our em-
ployees in the above-described bargaining unit.
WE WILL make Nelson Quiles whole for any loss of
earnings and other benefits resulting from our unlawfully
causing his layoff and unlawfully refusing to hire him, less
any net interim earnings, plus interest, and WE WILL also
make him whole for reasonable search-for-work and in-
terim employment expenses, plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, offer Khadisha Diaz, Richard Maffia, and Venus
Nepay full reinstatement to their former jobs or, if those
jobs no longer exist, to substantially equivalent positions,
without prejudice to their seniority or any other rights or
privileges previously enjoyed.
WE WILL make Khadisha Diaz, Richard Maffia, and Ve-
nus Nepay whole for any loss of earnings and other bene-
fits resulting from their unlawful layoff, less any net in-
terim earnings, plus interest, and WE WILL also make such
employees whole for reasonable search-for-work and in-
terim employment expenses, plus interest.
WE WILL compensate Khadisha Diaz, Richard Maffia,
Venus Nepay, and Nelson Quiles for the adverse tax con-
sequences, if any, of receiving lump-sum backpay awards,
and WE WILL file with the Regional Director for Region
29, within 21 days of the date the amount of backpay is
fixed, either by agreement or Board order, a report
allocating the backpay awards to the appropriate calendar
years for each employee.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlawful
layoff of Khadisha Diaz, Richard Maffia, and Venus
Nepay, and WE WILL, within 3 days thereafter, notify them
in writing that this has been done and that the layoffs will
not be used against them in any way.
HB 84 FOOD CORP. AND KEY FOOD STORES CO-
OPERATIVE, INC.
The Board’s decision can be found at
www.nlrb.gov/case/29-CA-164058 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street, S.E., Washington, D.C.
20570, or by calling (202) 273-1940.
APPENDIX B
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vi-
olated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your
behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected ac-
tivities.
WE WILL NOT lay you off because of your union activi-
ties.
WE WILL NOT fail and refuse to bargain with United
Food and Commercial Workers Union, Local 342, AFL–
CIO (the Union) as the exclusive collective-bargaining
SEVEN SEAS UNION SQUARE, LLC 13
representative of our employees in the bargaining unit at
our Staten Island, New York facility.
WE WILL NOT unilaterally lay you off or otherwise
change your terms and conditions of employment without
first notifying the Union and giving it an opportunity to
bargain.
WE WILL NOT refuse to reinstate you after you are un-
lawfully laid off.
WE WILL NOT unilaterally reduce your workdays or oth-
erwise change your terms and conditions of employment
without first notifying the Union and giving it an oppor-
tunity to bargain.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL, on request, bargain with the Union as the ex-
clusive collective-bargaining representative of our em-
ployees in the following appropriate unit at our Staten Is-
land, New York facility concerning terms and conditions
of employment and, if an understanding is reached, em-
body the understanding in a signed agreement:
all its employees in its stores herein, engaged in the cut-
ting, wrapping and selling of all fresh and smoked meat,
poultry, fish and such products customarily handled in
the Meat Department at retail in its retail stores or super-
markets, arid such additional classifications previously
recognized by the Employer.
WE WILL, before laying you off for economic reasons or
reducing your workdays, or before implementing any
changes in wages, hours, or other terms and conditions of
employment of unit employees, notify and, on request,
bargain with the Union as the exclusive collective-bar-
gaining representative of our employees in the above-de-
scribed bargaining unit.
WE WILL rescind the unlawful change in your workdays
that we unilaterally implemented in November 2015.
WE WILL, within 14 days from the date of the Board’s
Order, offer Debra Abruzzese, Gina Cammarano, Michael
Fischetti, and Anthony Venditti full reinstatement to their
former jobs or, if those jobs no longer exist, to substan-
tially equivalent positions, without prejudice to their sen-
iority or any other rights or privileges previously enjoyed.
WE WILL make Debra Abruzzese, Gina Cammarano,
Michael Fischetti, and Anthony Venditti whole for any
loss of earnings and other benefits resulting from their un-
lawful layoffs, less any net interim earnings, plus interest,
and WE WILL also make such employees whole for reason-
able search-for-work and interim employment expenses,
plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlawful
layoffs of Debra Abruzzese, Gina Cammarano, Michael
Fischetti, and Anthony Venditti, and WE WILL, within 3
days thereafter, notify them in writing that this has been
done and that the layoffs will not be used against them in
any way.
WE WILL make whole unit employees for any loss of
earnings and other benefits suffered as a result of our un-
lawful reduction in their workdays from 6 to 5, plus inter-
est.
WE WILL compensate Debra Abruzzese, Gina Cam-
marano, Michael Fischetti, Anthony Venditti, and all em-
ployees entitled to backpay because of the unlawful reduc-
tion in workdays for the adverse tax consequences, if any,
of receiving a lump-sum backpay award, and file with the
Regional Director for Region 29, within 21 days of the
date the amount of backpay is fixed, either by agreement
or Board order, a report allocating the backpay awards to
the appropriate calendar years for each employee.
100 GREAVES LANE MEAT LLC AND KEY FOOD
STORES CO-OPERATIVE, INC.
The Board’s decision can be found at
www.nlrb.gov/case/29-CA-164058 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street, S.E., Washington, D.C.
20570, or by calling (202) 273-1940.
APPENDIX C
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vi-
olated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your
behalf
14 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected ac-
tivities.
WE WILL NOT maintain an overly broad rule that prohib-
its you from engaging in protected solicitation on non-
working times and in nonworking areas and requires you
to report protected activities to management.
WE WILL NOT promulgate rules in response to your un-
ion activities.
WE WILL NOT fail and refuse to bargain with United
Food and Commercial Workers Union, Local 342, AFL–
CIO (the Union) as the exclusive collective-bargaining
representative of our employees in the bargaining unit at
our Brooklyn, New York facility.
WE WILL NOT lay you off or discharge you because of
your union activities.
WE WILL NOT unilaterally lay you off or otherwise
change your terms and conditions of employment without
first notifying the Union and giving it an opportunity to
bargain.
WE WILL NOT refuse to reinstate you after you are un-
lawfully laid off.
WE WILL NOT demote you, reduce your work hours,
and/or reduce your wage rates because of your union ac-
tivities.
WE WILL NOT unilaterally demote you, reduce your
work hours, and/or reduce your wage rates or otherwise
change your terms and conditions of employment without
first notifying the Union and giving it an opportunity to
bargain.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL, on request, bargain with the Union as the ex-
clusive collective-bargaining representative of our em-
ployees in the following appropriate unit at our Brooklyn,
New York facility concerning terms and conditions of em-
ployment and, if an understanding is reached, embody the
understanding in a signed agreement:
all its employees in its stores herein, engaged in the cut-
ting, wrapping and selling of all fresh and smoked meat,
poultry, fish and such products customarily handled in
the Meat Department at retail in its retail stores or super-
markets, and such additional classifications previously
recognized by the Employer.
WE WILL, before laying you off for economic reasons,
demoting you, reducing your work hours and/or wage
rates, or implementing any changes in wages, hours, or
other terms and conditions of employment of unit
employees, notify and, on request, bargain with the Union
as the exclusive collective-bargaining representative of
our employees in the above-described bargaining unit.
WE WILL rescind the unlawful changes in your job clas-
sification, work hours, and wage rates that were unilater-
ally implemented in January 2016.
WE WILL rescind our rules concerning no solicitation,
political activity, loitering, and a catch-all disciplinary
provision from our employee handbook entitled “Key
Food Rules & Regulations.”
WE WILL furnish you with inserts for the current em-
ployee handbook that (1) advise that the unlawful provi-
sions have been rescinded, or (2) provide lawfully worded
provisions on adhesive backing that will cover the unlaw-
ful provisions; or WE WILL publish and distribute to em-
ployees revised employee handbooks that (1) do not con-
tain the unlawful provisions, or (2) provide lawfully
worded provisions.
WE WILL, within 14 days from the date of the Board’s
Order, offer Joseph Batiste, Kalvin Harris, Robert Jenzen,
and Stephen Fiore full reinstatement to their former jobs
or, if those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any other
rights or privileges previously enjoyed.
WE WILL make Joseph Batiste, Kalvin Harris, Robert
Jenzen and Stephen Fiore whole for any loss of earnings
and other benefits resulting from their unlawful layoff or
discharge, less any net interim earnings, plus interest, and
WE WILL also make such employees whole for reasonable
search-for-work and interim employment expenses, plus
interest.
WE WILL make Robert Jenzen whole for the unlawful
reductions in his work hours, plus interest.
WE WILL make Stephen Fiore whole for his unlawful
demotion, reduction of wage rate, and reduction of work
hours, plus interest.
WE WILL compensate Joseph Batiste, Kalvin Harris,
Robert Jenzen, and Stephen Fiore for the adverse tax con-
sequences, if any, of receiving lump-sum backpay awards,
and WE WILL file with the Regional Director for Region
29, within 21 days of the date the amount of backpay is
fixed, either by agreement or Board Order, a report allo-
cating the backpay awards to the appropriate calendar
years for each employee.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlawful
layoffs, discharge, and reductions of wage rates and hours
of Joseph Batiste, Kalvin Harris, Robert Jenzen, and Ste-
phen Fiore, and WE WILL, within 3 days thereafter, notify
each of them in writing that this has been done and that
SEVEN SEAS UNION SQUARE, LLC 15
the unlawful layoffs and reductions will not be used
against them in any way.
1525 ALBANY AVENUE MEAT LLC AND KEY
FOOD STORES CO-OPERATIVE, INC.
The Board’s decision can be found at
www.nlrb.gov/case/29-CA-164058 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street, S.E., Washington, D.C.
20570, or by calling (202) 273-1940.
APPENDIX D
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vi-
olated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your
behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected ac-
tivities.
WE WILL NOT fail and refuse to bargain with United
Food and Commercial Workers Union, Local 342, AFL–
CIO (the Union) as the exclusive collective-bargaining
representative of our employees in the bargaining unit at
our New York, New York facility.
WE WILL NOT refuse to hire you because of your union
activity or because the Union engaged in activities on your
behalf.
WE WILL not unilaterally lay you off or otherwise
change your terms and conditions of employment without
first notifying the Union and giving it an opportunity to
bargain.
WE WILL NOT refuse to reinstate you after you are un-
lawfully laid off.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL, on request, bargain with the Union as the ex-
clusive collective-bargaining representative of our em-
ployees in the following appropriate unit at our New York,
New York facility concerning terms and conditions of em-
ployment and, if an understanding is reached, embody the
understanding in a signed agreement:
all store employees, including Meat Department Heads,
Meat Department employees, Grocery employees, and
part-time employees, except Store Managers, Assistant
Managers, Guards, Watchmen and all executives and
supervisory employees of stores which are located in the
Counties of Bronx and Manhattan.
WE WILL, before laying you off for economic reasons,
or before implementing any changes in wages, hours, or
other terms and conditions of employment of unit employ-
ees, notify and, on request, bargain with the Union as the
exclusive collective-bargaining representative of our em-
ployees in the above-described bargaining unit.
WE WILL, within 14 days from the date of the
Board’s Order, offer Jose Carlos Colon, Juana Diaz,
Keesha Fields, Madeline Gomez, Dena Iturralde, Tamika
Jones, Maria Ortega, Elena Pagan, and Rosa Silverio in-
statement to the positions they held as employees of The
Great Atlantic & Pacific Tea Company or, if such posi-
tions no longer exist, to substantially equivalent positions,
without prejudice to their seniority or any other rights or
privileges previously enjoyed.
WE WILL, within 14 days from the date of the Board’s
Order, offer Ayanna Jordan full reinstatement to her for-
mer job or, if that job no longer exists, to a substantially
equivalent position, without prejudice to her seniority or
any other rights or privileges previously enjoyed.
WE WILL make Jose Carlos Colon, Juana Diaz, Keesha
Fields, Madeline Gomez, Dena Iturralde, Tamika Jones,
Maria Ortega, Elena Pagan, and Rosa Silverio whole for
any loss of earnings and other benefits resulting from our
unlawful refusal to hire them, less any net interim earn-
ings, plus interest, and WE WILL also make such employees
whole for reasonable search-for-work and interim em-
ployment expenses, plus interest.
WE WILL make Ayanna Jordan whole for any loss of
earnings and other benefits resulting from her unlawful
layoff, less any net interim earnings, plus interest, and WE
WILL also make her whole for reasonable search-for-work
and interim employment expenses, plus interest.
16 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
WE WILL compensate Jose Carlos Colon, Juana Diaz,
Keesha Fields, Madeline Gomez, Dena Iturralde, Tamika
Jones, Ayanna Jordan, Maria Ortega, Elena Pagan, and
Rosa Silverio for the adverse tax consequences, if any, of
receiving lump-sum backpay awards, and WE WILL file
with the Regional Director for Region 29, within 21 days
of the date the amount of backpay is fixed, either by agree-
ment or Board order, a report allocating the backpay
awards to the appropriate calendar years for each em-
ployee.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlawful
refusal to hire Jose Carlos Colon, Juana Diaz, Keesha
Fields, Madeline Gomez, Dena Iturralde, Tamika Jones,
Maria Ortega, Elena Pagan, and Rosa Silverio and the un-
lawful layoff of Ayanna Jordan, and WE WILL, within 3
days thereafter, notify each of them in writing that this has
been done and that the unlawful layoffs and reductions
will not be used against them in any way.
SEVEN SEAS UNION SQUARE, LLC AND KEY
FOOD STORES CO-OPERATIVE, INC.
The Board’s decision can be found at
www.nlrb.gov/case/29-CA-164058 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street, S.E., Washington, D.C.
20570, or by calling (202) 273-1940.
APPENDIX E
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vi-
olated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your
behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected ac-
tivities.
WE WILL NOT fail and refuse to bargain with United
Food and Commercial Workers Union, Local 342, AFL–
CIO (the Union) as the exclusive collective-bargaining
representative of our employees in the bargaining unit at
our Bayside, New York facility.
WE WILL NOT unilaterally lay you off or otherwise
change your terms and conditions of employment without
first notifying the Union and giving it an opportunity to
bargain.
WE WILL NOT refuse to reinstate you after you are un-
lawfully laid off.
WE WILL NOT bypass the Union and deal directly with
you regarding your wages, hours and other terms and con-
ditions of employment.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL, on request, bargain with the Union as the ex-
clusive collective-bargaining representative of our em-
ployees in the following appropriate unit at our Bayside,
New York facility concerning terms and conditions of em-
ployment and, if an understanding is reached, embody the
understanding in a signed agreement:
all its employees in its stores herein, engaged in the cut-
ting, wrapping and selling of all fresh and smoked meat,
poultry, fish and such products customarily handled in
the Meat Department at retail in its retail stores or super-
markets, and such additional classifications previously
recognized by the Employer.
WE WILL, before laying you off for economic reasons,
or before implementing any changes in wages, hours, or
other terms and conditions of employment of unit employ-
ees, notify and, on request, bargain with the Union as the
exclusive collective-bargaining representative of our em-
ployees in the above-described bargaining unit.
WE WILL, upon the Union’s request, rescind the sever-
ance agreement signed by Mariano Rosado.
WE WILL, within 14 days from the date of the Board’s
Order, offer Mariano Rosado full reinstatement to his for-
mer job or, if that job no longer exists, to a substantially
equivalent position, without prejudice to his seniority or
any other rights or privileges previously enjoyed.
WE WILL make Mariano Rosado whole for any loss of
earnings and other benefits resulting from his unlawful
layoff, less any net interim earnings, plus interest, and WE
SEVEN SEAS UNION SQUARE, LLC 17
WILL also make him whole for reasonable search-for-work
and interim employment expenses, plus interest.
WE WILL compensate Mariano Rosado for the adverse
tax consequences, if any, of receiving a lump-sum back-
pay award, and WE WILL file with the Regional Director
for Region 29, within 21 days of the date the amount of
backpay is fixed, either by agreement or Board order, a
report allocating the backpay awards to the appropriate
calendar years.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlawful
layoff of Mariano Rosado, and WE WILL, within 3 days
thereafter, notify him in writing that this has been done
and that the layoff will not be used against him in any way.
KEY FOOD CS2, LLC, D/B/A FOOD UNIVERSE
AND KEY FOOD STORES CO-OPERATIVE, INC.
The Board’s decision can be found at
www.nlrb.gov/case/29-CA-164058 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street, S.E., Washington, D.C.
20570, or by calling (202) 273-1940.
APPENDIX F
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vi-
olated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your
behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected ac-
tivities.
WE WILL NOT fail and refuse to bargain with United
Food and Commercial Workers Union, Local 342, AFL–
CIO (the Union) as the exclusive collective-bargaining
representative of our employees in the bargaining unit at
our Bronx, New York facility.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL, on request, bargain with the Union as the ex-
clusive collective-bargaining representative of the em-
ployees in the following appropriate unit at our Bronx,
New York facility concerning terms and conditions of em-
ployment and, if an understanding is reached, embody the
understanding in a signed agreement:
its employees who, in the Counties of New York and
Bronx in the City and State of New York, are engaged
in the cutting, wrapping and selling of all fresh and
smoked meats, poultry, fish and such products custom-
arily handled in the Meat Department, at retail in the
Employer’s retail stores or supermarkets, and such addi-
tional classifications previously recognized by the Em-
ployer.
RIVERDALE GROCERS LLC AND KEY FOOD
STORES CO-OPERATIVE, INC.
The Board’s decision can be found at
www.nlrb.gov/case/29-CA-164058 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street, S.E., Washington, D.C.
20570, or by calling (202) 273-1940.
APPENDIX G
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vi-
olated Federal labor law and has ordered us to post and
obey this notice.
18 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your
behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected ac-
tivities.
WE WILL NOT fail and refuse to bargain with United
Food and Commercial Workers Union, Local 342, AFL–
CIO (the Union) as the exclusive collective-bargaining
representative of our employees in the bargaining unit at
our Glen Oaks, New York facility.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL, on request, bargain with the Union as the ex-
clusive collective-bargaining representative of the em-
ployees in the following appropriate unit at our Glen Oaks,
New York facility concerning terms and conditions of em-
ployment and, if an understanding is reached, embody the
understanding in a signed agreement:
all its employees in its stores herein, engaged in the cut-
ting, wrapping and selling of all fresh and smoked meat,
poultry, fish and such products customarily handled in
the Meat Department at retail in its retail stores or super-
markets, and such additional classifications previously
recognized by the Employer.
JAR 259FOOD CORP. AND KEY FOOD STORES CO-
OPERATIVE, INC.,
The Board’s decision can be found at
www.nlrb.gov/case/29-CA-164058 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street, S.E., Washington, D.C.
20570, or by calling (202) 273-1940.
APPENDIX H
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vi-
olated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your
behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected ac-
tivities.
WE WILL NOT fail and refuse to bargain with United
Food and Commercial Workers Union, Local 342, AFL–
CIO (the Union) as the exclusive collective-bargaining
representative of our employees in the bargaining unit at
our Glen Head, New York facility.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL, on request, bargain with the Union as the ex-
clusive collective-bargaining representative of the em-
ployees in the following appropriate unit at our Glen
Head, New York facility concerning terms and conditions
of employment and, if an understanding is reached, em-
body the understanding in a signed agreement:
all its employees in its stores herein, engaged in the cut-
ting, wrapping and selling of all fresh and smoked meat,
poultry, fish and such products customarily handled in
the Meat Department at retail in its retail stores or super-
markets, and such additional classifications previously
recognized by the Employer.
PARK PLAZA FOOD CORP. AND KEY FOOD
STORES CO-OPERATIVE, INC.,
The Board’s decision can be found at
www.nlrb.gov/case/29-CA-164058 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street, S.E., Washington, D.C.
20570, or by calling (202) 273-1940.
SEVEN SEAS UNION SQUARE, LLC 19
APPENDIX I
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vi-
olated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your
behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected ac-
tivities.
WE WILL NOT fail and refuse to bargain with United
Food and Commercial Workers Union, Local 342, AFL–
CIO (the Union) as the exclusive collective-bargaining
representative of our employees in the bargaining unit at
our Queens, New York facility.
WE WILL NOT fail and refuse to bargain with the Union
as the exclusive collective-bargaining representative of
our employees in the bargaining unit at our Brooklyn,
New York facility.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL, on request, bargain with the Union as the ex-
clusive collective-bargaining representative of the em-
ployees in the following appropriate unit at our Queens,
New York facility concerning terms and conditions of em-
ployment and, if an understanding is reached, embody the
understanding in a signed agreement:
all its employees in its stores herein, engaged in the cut-
ting, wrapping and selling of all fresh and smoked meat,
poultry, fish and such products customarily handled in
the Meat Department at retail in its retail stores or super-
markets, and such additional classifications previously
recognized by the Employer;
WE WILL, on request, bargain with the Union as the ex-
clusive collective-bargaining representative of the em-
ployees in the following appropriate unit at our Brooklyn,
New York facility concerning terms and conditions of em-
ployment and, if an understanding is reached, embody the
understanding in a signed agreement:
all Grocery Department and Meat Department employ-
ees, including Meat Department Heads and part-time
employees, and Pharmacy Department employees ex-
cept all executives, supervisory employees and Phar-
macy managers of stores which are located in the Coun-
ties of Nassau, Suffolk, Kings, Queens and the stores lo-
cated in the Borough of Richmond.
PARAMOUNT SUPERMARKETS INC. AND KEY
FOOD STORES CO-OPERATIVE, INC.,
The Board’s decision can be found at
www.nlrb.gov/case/29-CA-164058 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street, S.E., Washington, D.C.
20570, or by calling (202) 273-1940.
Noor I. Alam, Esq. and Lynda Tooker, Esq., for the General
Counsel.
Douglas P. Catalano, Esq. and Scott M. Wich, Esq., for the Re-
spondents.
Eric Milner Esq. and Martin L. Milner, Esq., for the Charging
Party.
DECISION
BENJAMIN W. GREEN, Administrative Law Judge. This case
was tried before me in Brooklyn, New York, on February 8, 10,
13, 16, 28, 29, March 1, 6, 8, 13, 20, 22, 23, 27, April 5, 6, 17,
26, and 27, 2017. The consolidated complaint issued on Septem-
ber 28, 2016 and the Respondents filed an answer on October 12,
2016.
Complaint Allegations
Respondent Key Food Stores Co-Operative, Inc. (Key Food)
is a cooperative that consists of corporate members that own su-
permarkets. The complaint names nine co-operative member-
owners as Respondents who allegedly committed unfair labor
practices concerning ten locations. The following Respondent
member-owners own supermarkets at the locations listed below:
Key Food Member Owners Supermarket Location
HB 84 Food Corp (HB) 82-35 153rd Street, Howard
Beach, NY
100 Greaves Lane Meat LLC
(Greaves Lane)
100 Greaves, Lane, Staten Is-
land, NY
1525 Albany Avenue Meat LLC 1525 Albany Avenue,
20 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(Albany Avenue) Brooklyn, NY
Seven Seas Union Square, LLC
(Seven Seas)
10 Union Square, New York,
NY
Key Food CS2, LLC, d/b/a Food
Universe (CS2)
35-10 Francis Lewis Blvd,
Bayside, NY
Riverdale Grocers LLC
(Riverdale)
566 1 Riverdale Avenue,
Bronx, NY
Jar 259 Food Corp. (Jar) 25901 Union Turnpike, Glen
Oaks, NY
Park Plaza Food Corp. (Park
Plaza)
1-1 Park Plaza, Glen Head,
NY
Paramount Supermarkets Inc.
(Paramount)
2424 Flatbush Avenue,
Brooklyn
Paramount 196-35 Horace Harding
Boulevard, Queens
The complaint alleges that Respondent Key Food and each
Respondent member-owner, as pairs of joint employers, are lia-
ble for certain unfair labor practices. Thus, Respondents Key
Food and Seven Seas are alleged to be joint employers at the su-
permarket located in Union Square, New York, while Respond-
ents Key Food and Greaves Lane are alleged to be a separate pair
of joint employers at the supermarket located on Greaves Lane.1
The complaint alleges that the Respondents purchased the su-
permarkets from and were successors of The Great Atlantic &
Pacific Tea Company (A&P). A&P employees were represented
by a number of United Food and Commercial Workers Union
(UFCW) locals, including the Charging Party Union, UFCW,
Local 342, AFL–CIO (the Union or Local 342).
The substantive allegations are as follows:
All of the Respondents are alleged, since July 7, 2016, to have
refused to meet and bargain with the Union as the representative
of appropriate units of A&P employees.
Respondent HB allegedly caused A&P to layoff meat manager
Nelson Quiles and then refused to hire him in violation of Sec-
tion 8(a)(3) and (1). Respondent HB is also alleged to have uni-
laterally and discriminatorily laid off Richard Maffia, Venus
Nepay, and Khadisha Diaz in violation of Section 8(a)(5), (3),
and (1). Finally, Respondent HB, by Frank Almonte, allegedly
violated section 8(a)(1) by interrogating employees regarding
their union activities.
Respondent Greaves Lane is alleged to have unilaterally laid
off and refused to reinstate Gina Cammarano, Debra Abruzzese,
Michael Fischetti, and Anthony Venditti in violation of Section
8(a)(5) and (1). The layoff of Venditti is also alleged as a viola-
tion of Section 8(a)(3) and (1). Further, Respondent Greaves
Lane is alleged to have unilaterally reduced the work days of all
unit employees by changing their schedules from six to five days
per week in violation of Section 8(a)(5) and (1).
Respondent Albany Avenue is alleged to have unilaterally laid
off and refused to reinstate Joseph Batiste, Kalvin Harris, Robert
Jenzen and Stephen Fiore in violation of Section 8(a)(5) and (1).
Before Fiore and Jenzen were laid off, Respondent Albany Ave-
nue is alleged to have unilaterally reduced the work hours of

1 For convenience, herein, each pair of Respondents will be referred
to by the corporate name of the member-owner, such as Respondent
Seven Seas instead of Respondents Seven Seas and Key Food. Unless
Fiore and Jenzen and demoted Fiore with a corresponding reduc-
tion in his wage rate in violation of Section 8(a)(5) and (1).
Fiore’s layoff, demotion, reduction of wage rate, and reduction
of hours are alleged as violations of Section 8(a)(3) and (1) as
well. Respondent Albany Avenue is also alleged to have issued
an employee rule book with overly broad provisions regarding
solicitation, politics, loitering, and a catch-all disciplinary provi-
sion in violation of Section 8(a)(1).
Respondent Seven Seas is alleged to have discriminatorily re-
fused to hire the following employees in violation of Section
8(a)(3) and (1): Jose Carlos Colon, Juana Diaz, Keesha Fields,
Madeline Gomez, Dena Iturralde, Tamika Jones, Lucy Maldo-
nado, Ricardo Nunez, Maria Ortega, Elena Pagan, Rosa Silverio,
Jerry Simpson, and Natalie Tirado.2 Respondent Seven Seas is
also alleged to have unilaterally laid off and refused to reinstate
Ayanna Jordan in violation of Section 8(a)(5) and (1). By Pat
Conte, Respondent Seven Seas allegedly engaged in surveillance
or created the impression of surveillance by using his phone as a
camera during the hearing in this matter in violation of Section
8(a)(1).
Respondent CS2 is alleged to have unilaterally laid off and re-
fused to reinstate Mariano Rosado and dealt directly with em-
ployees by asking Rosado to sign a severance agreement in vio-
lation of Section 8(a)(5) and (1).
Summary of Conclusions of Law
For the reasons described at greater length below, I find and
conclude that the Respondents are successors and joint employ-
ers as alleged in the complaint, and violated the Act as follows:
Section 8(a)(1): Respondent HB, by Frank Almonte, interro-
gated employees regarding their union activities. Respondent
Albany Avenue implemented overbroad work rules regarding
solicitation and politics.
Section 8(a)(3) and (1): Respondent HB caused A&P to
layoff Quiles and then refused to hire him. Respondent Greaves
Lane laid off Venditti. Respondent Albany Avenue laid off, de-
moted, and reduced the hours of Fiore. Respondent Seven Seas
refused to hire Colon, Diaz, Fields, Gomez, Iturralde, Jones, Or-
tega, Pagan and Silverio.
Section 8(a)(5) and (1): All of the Respondents failed and
refused to resume bargaining with the Union in July 2016. Re-
spondents HB, Greaves Lane, Albany Avenue and CS2 unilater-
ally laid off the employees named in the complaint. Respondent
Greaves Lane unilaterally reduced the number of weekly work
days of unit employees from six to five. Respondent Albany Av-
enue unilaterally reduced the work hours of Fiore and Jenzen,
and unilaterally demoted Fiore with a corresponding reduction
in his wage rate. Respondent CS2 unlawfully bypassed the Un-
ion and dealt directly with employees by requesting that Mariano
Rosado sign a severance agreement.
stated otherwise, it will be understood that Respondent Seven Seas refers
to Respondents Seven Seas and Key Food as alleged joint employers.
2 At trial, the General Counsel withdrew the allegation that Troy
O’Neal was unlawfully refused employment.
SEVEN SEAS UNION SQUARE, LLC 21
I do not find that the General Counsel established violations
with regard to the following allegations: Respondent HB laid off
Diaz, Maffia, and Nepay in violation of Section 8(a)(3) and (1).
Respondent Seven Seas refused to hire Maldonado, Nunez,
Simpson, and Tirado in violation of Section 8(a)(3) and (1). Re-
spondent Seven Seas engaged in surveillance of employees’ pro-
tected activities or created the impression that employees’ pro-
tected activities were under surveillance in violation of Section
of 8(a)(1). Respondent Albany Avenue rules regarding loitering
and a catch-all disciplinary provision were overly broad in vio-
lation of Section 8(a)(1).
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the posthearing
briefs that were filed by the parties, I make these
FINDINGS OF FACT
I. JURISDICTION
In their answer to the complaint, each of the Respondents ad-
mitted jurisdiction as follows: Annually, Respondent Key Food
purchased and received at its Staten Island, New York facility
products, goods and materials valued in excess of $50,000 di-
rectly from points outside of the State of New York. The Re-
spondents Seven Seas, HB, Albany Avenue, CS2, JAR,
Riverdale, Park Plaza and Paramount were projected to derive
gross revenues in excess of $500,000, and purchased and re-
ceived at their respective facilities products, goods and materials
valued in excess of $5000 directly from points located outside
the State of New York. At all material times, each of the Re-
spondents has been an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
Respondent Key Food and the A&P Bankruptcies
Respondent Key Food consists of about 110 corporate mem-
bers that own about 240 supermarkets. [Tr. 2426.] The Respond-
ent members-owners listed below are owned by the following
individuals or Respondent Key Food itself [Jt. 6]:3
Respondent Member-Owners Individual Owners
Seven Seas Paul and Pat Conte
Greaves Lane Randy and Sam Abed
Albany Avenue Randy and Sam Abed
HB Frank and Gilbert Al-
monte
CS 2 Key Food
Riverdale Jamie and Ruben Luna
Jar Alvin and Jose Diaz
Park Plaza Leonard Mandell
Paramount Joseph Vederosa
A&P was a large supermarket chain that operated stores in the
New York area under various banners, including Food Empo-
rium, Pathmark and Waldbaums. [Tr. 1694] [Jt. 1]. A&P and
its banners had collective-bargaining agreements with a number

3 Respondent Key Food purchased two A&P stores through corpora-
tions that are now members of the cooperative. Respondent CS2 is the
of UFCW locals, including Locals 342, 338, 464A, and 1500.
Local 342 largely represented “back wall” employees in the
meat, seafood and/or deli departments. However, Local 342 also
represented some wall-to-wall units consisting of all store em-
ployees. The bargaining units at issue here are described in col-
lective-bargaining agreements between A&P or its banners and
the Union, which were entered into the record as follows:
Some of the Union’s contracts (e.g., Food Emporium [GC 3]
and A&P [GC 7]) contained a severance provision that provided
for employees hired before a certain date to receive $800 per year
in severance upon the closing of the store without a cap on the
number of years.
A&P went through bankruptcy proceedings in 2010 and 2015.
The first bankruptcy in 2010 was a reorganization in which the
Union agreed to modify and extend its collective-bargaining
agreements with certain cost saving concessions. [Jt. 2] [GC 8]
[Tr. 68–72]. Union Secretary Treasurer Lisa O’Leary estimated
the monetary value of concessions to be about $70 million.
Among these concessions, the bankruptcy order effectively re-
duced severance for those employees who were entitled to $800
per year of service upon closure of a store to $400 per year of
service. [Jt. 2] [Tr. 1709–1710].
The second bankruptcy in 2015, as described in greater detail
below, was a liquidation in which A&P stores were put up for
bid and purchase. The Union participated in this bankruptcy pro-
cess. [Tr. 52, 192.] The Respondents stipulated that the stores
they purchased through the second A&P bankruptcy continued
to operate as supermarkets and that a majority of the employees
who were employed in each of the A&P units listed above were
hired to work in the Respondents’ stores. [Jt. 6.]
By participating in a cooperative, individual member-owners
realize cost savings through economies of scale in purchasing,
sales, marketing, merchandising, and advertising. [Tr. 2427,
member-owner of one of those stores. The other corporate store (CS3)
is not involved in this proceeding. [Tr. 583.]
Individuals Unit A&P Contract
Seven Seas Wall-to-Wall The Food Emporium [GC 3]
Greaves Lane Meat, Deli,
Seafood
Pathmark Stores, Inc. [GC 4]
Albany Avenue Meat, Deli,
Seafood
Pathmark Stores, Inc. [GC 4]
HB Meat, Deli,
Seafood
Pathmark Stores, Inc. [GC 4]
CS 2 Meat and Sea-
food
Waldbaums Supermarkets,
Inc. [GC 5]
Riverdale Meat and Sea-
food
Food Emporium (Retail In-
dustry Agreement New York
Division) [GC 6]
Jar Meat and Sea-
food
Waldbaums Supermarkets,
Inc. [GC 5]
Park Plaza Meat and Sea-
food
Waldbaums Supermarkets,
Inc. [GC 5]
Paramount
(Queens)
Meat and Sea-
food
Waldbaums Supermarkets,
Inc. [GC 5]
Paramount
(Queens)
Wall-to-Wall A&P [GC 7]
22 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2432.] Thus, Respondent Key Food sought to purchase as many
A&P stores as possible in order to maximize market volume and
economies of scale. [Tr. 2439–2400.] Respondent Key Food
sent information to its member-owners about the A&P stores that
were being sold and held a meeting with them to discuss the pro-
cess of purchasing those stores in bankruptcy. Approximately
35 member-owners expressed interested in purchasing one or
more A&P stores. [Tr. 2437–2438.] Respondent Key Food held
an internal bidding process among its members to determine
which members would obtain the purchasing rights for which
stores. The more individual members were willing to pay the
more likely it was that Respondent Key Food would make a suc-
cessful bid on the stores in bankruptcy. [Tr. 2439.]
Ultimately, Respondent Key Food successfully bid on 16
A&P stores, including the 10 referenced in the complaint. The
internal process to determine which member-owners would pur-
chase each particular store took several months and was not con-
cluded until October (shortly before the stores transitioned from
A&P to Key Food ownership). [Tr. 2444–2445, 2452–2453.]
On July 19, 2015,4 Respondent Key Food and A&P entered
into an Asset Purchase Agreement (APA) for the purchase of
certain stores. [Jt. 3 p. 2.] The APA includes the following pro-
visions:
Section 2.4 Closing. The closing of the transactions contem-
plated by this
Agreement (the “Closing”) shall take place at the offices of
Weil, Gotshal & Manges LLP located at 767 Fifth Avenue,
New York, New York (or such other location as shall be mutu-
ally agreed upon by Sellers and Buyer) commencing at 10:00
a.m. local time on a date (the “Closing Date”) that is the third
(3rd) Business Day following the date upon which all of the
conditions to the obligations of Sellers and Buyer to consum-
mate the transactions contemplated hereby set forth in Article
VII (other than conditions that by their nature are to be satisfied
at the Closing itself, but subject to the satisfaction or waiver of
those conditions) have been satisfied or waived, or on such
other date as shall be mutually agreed upon by Sellers and
Buyer prior thereto. For purposes of this Agreement and the
transactions contemplated hereby, the Closing will be deemed
to occur and be effective, and title to and risk of loss associated
with the Acquired Assets, shall be deemed to occur at 12:01
am, New York City time, on the Closing Date. [Jt. 3, p. 17.]
. . .
ARTICLE VI
OTHER COVENANTS
. . .
Section 6.3 Treatment of Affected Labor Agreements. With re-
spect to Covered employees under an Affected Labor Agree-
ment, Buyer shall either (a) agree to assume the Affected Labor
Agreement without modification and thereafter comply with
the obligations set forth in Section 6.4 with respect to Covered
Employees under such assumed Affected Labor Agreement or
(b) engage in good faith negotiations, in coordination with
Sellers, toward reaching mutually satisfactory modifications to

4 Unless stated otherwise, all dates refer to 2015.
the relevant Affected Labor Agreement with each of the Af-
fected Unions and to enter into a Modified Labor Agreement
with each of the Affected Unions. Buyer may, at any time prior
to the Sale Hearing, agree to have an Affected Labor Agree-
ment assigned to it without modification by providing notice of
such agreement to Sellers and the applicable Affected Union.
Upon the commencement of the Bankruptcy Cases, to the ex-
tent Buyer is not assuming the Affected Labor Agreements,
Buyer, in coordination with Sellers, shall propose a Modified
Labor Agreement on a Store-by-Store basis to each Affected
Union (each, a “Proposal”), which Proposal may be modified
as a result of Buyer’s and/or Sellers’ good faith negotiations
with the Affected Unions. Buyer agrees to cooperate with
Sellers in providing each Affected Union with complete and
reliable information to allow the Affected Unions to evaluate
the Proposal. For all purposes under this Section 6.3, Buyer
acknowledges the requirements of sections 1113 and 1114 of
the Bankruptcy Code and agrees to use good faith reasonable
best efforts to cooperate with Sellers in ensuring compliance
with any applicable provisions thereof.
Section 6.4 Covered Employees.
(a) Obligations of Buyer. With respect to Covered Employ-
ees who are represented by an Affected Union and are le-
gally authorized to work in the capacity in which they
were employed immediately prior to the Closing (“Af-
fected Union Covered Employees”), at least ten (10) days
prior to the Closing Date, Buyer shall make an offer of
employment, which shall be effective as of the Closing
Date and contingent upon the Closing, and shall be con-
sistent with the terms and conditions required by the gov-
erning Affected Labor Agreements or Modified Labor
Agreements, to the extent applicable. With respect to any
Affected Union Covered Employee who is on a long-term
disability leave of absence as of the Closing Date, such
offer shall be contingent upon such Affected Union Cov-
ered Employee returning to active status within a period
of six months following the Closing. Notwithstanding the
foregoing, nothing herein shall be construed as to prevent
Buyer from terminating the employment of any Covered
Employee, consistent with applicable law and the govern-
ing Affected Labor Agreements or the Modified Labor
Agreements, as applicable, at any time following the
Closing Date. Buyer shall have no obligation with respect
to any Covered Employee, including making any offer of
employment to any such Covered Employee, who, as of
immediately prior to the Closing, is not represented by an
Affected Union. [Jt. 3, p. 38–39.]
The APA also provides in Article 7 as a condition of closing
that the buyer and seller perform and comply with their cove-
nants and agreements under the APA (e.g., the covenants in Ar-
ticle 6). [Jt. 3, p. 42–43.]
On July 20, A&P filed a motion in bankruptcy court for ap-
proval of various purchase agreements, including the APA with
Key Food. The APA was attached and submitted with this mo-
tion as Exhibit E. [Jt. 1.] The motion states, with regard to
SEVEN SEAS UNION SQUARE, LLC 23
A&P’s agreement with Key Food [Jt. 1, p. 12]:
Treatment of Affected Labor Agreements. With respect to
Covered Employees under an Affected Labor Agreement, the
Stalking Horse Bidder shall either (a) agree to assume the Af-
fected Labor Agreement without modification or (b) engage in
good faith negotiations, in coordination with Sellers, toward
reaching mutually satisfactory modifications to the relevant
Affected Labor Agreement with each of the Affected Unions
and to enter into a Modified Labor Agreement with each of the
Affected Unions.
Key Food Chief Financial Officer Sharon Konzelman testified
that Key Food had until August 7 to drop stores from the pur-
chase for environmental reasons or to vacate the entire transac-
tion if financing could not be obtained. However, after August
7, Respondent Key Food was bound by the bid, which would be
executed unless they were outbid by a competitor. Further, it
was Respondent Key Food’s intention to hold each member-
owner to its obligation to purchase the stores they successfully
bid upon. [Tr. 2526–2527.]
On September 30, the APA was amended. The amended APA
revised 6.4(a) to require a buyer to make offers of employment
to “substantially all” (as opposed to all) employees and, if no la-
bor agreement was in effect, base those offers on the Respond-
ents’ “last best offer” in negotiations with incumbent unions who
represented A&P employees. Section 6.4(a), as amended, reads
in its entirety as follows [Jt. 3, p. 87]:
“At least ten (10) days prior to the Closing Date, Buyer shall
make an offer of employment to substantially all Covered Em-
ployees who are represented by an Affected Union and are le-
gally authorized to work in the capacity in which they were
employed immediately prior to the Closing (“Affected Union
Covered Employees”). Such offer of employment shall be ef-
fective as of the Closing Date and contingent upon the Closing,
and shall be consistent with the terms and conditions required
by the governing Affected Labor Agreements or Modified La-
bor Agreements, if any, that may then be in effect. If no Af-
fected Labor Agreements or Modified Labor Agreements are
in effect, the offer of employment to Affected Union Covered
Employees will be on terms as are reflected in Buyer’s last best
offer (the “Employment Offer”). With respect to any Affected
Union Covered Employee who is on a long-term disability
leave of absence as of the Closing Date, such offer shall be con-
tingent upon such Affected Union Covered Employee return-
ing to active status within a period of six (6) months following
the Closing. Notwithstanding the foregoing, nothing herein
shall be construed as to prevent Buyer from terminating the em-
ployment of any Covered Employee, consistent with applica-
ble Law and the governing Affected Labor Agreements or the
Modified Labor Agreements, if any, that may then be in effect,
or if no Affected Labor Agreements or Modified Labor Agree-
ments are in effect, the Employment Offer. Buyer shall have no
obligation with respect to any Covered Employee, including
making any offer of employment to any such Covered

5 The General Counsel does not base its case on successorship clauses
in collective-bargaining agreements. Rather, the failure to bargain alle-
gations are based on statutory successorship under the Act.
Employee, who, as of immediately prior to the Closing, is not
represented by an Affected Union.”
Once Respondent Key Food purchased the assets of the A&P
stores, it entered into asset purchase agreements with the mem-
ber-owners, which served to assign the stores to the member-
owners for the purchase price. Respondent Key Food provided
financing in the form of loans to member-owners of 70 percent
of the purchase price. [Tr. 2453–545.] Each of the asset purchase
agreements contained the following provisions [Jt. 9]:
Section 5.4 Modified Labor Agreements. Member acknowl-
edges that pursuant to Section 6.3 of the A&P Asset Purchase
Agreement, Key Food is obligated to engage in good faith ne-
gotiations, in coordination with A&P, toward reaching mutu-
ally satisfactory modifications to the relevant Affected Labor
Agreement with each of the Affected Unions and to enter into
a modified Labor Agreement with each of the Affected Unions.
Member hereby agrees to be bound by any such Modified La-
bor Agreement that is negotiated by Key Food or make any
offers of employee [sic] as required by the A&P Asset Pur-
chase Agreement.
Section 7.10 Member’s Representative. Member hereby irrev-
ocably constitutes and appoints Key Food as its true, exclusive
and lawful agent and attorney-in-fact to act in the name, place
and stead of Member in connection with the transactions con-
templated by the A&P Asset Purchase Agreement, in accord-
ance with the terms and provisions of the A&P Asset Purchase
Agreement, and to act on behalf of Member in any action, suit
or proceeding involving the A&P Asset Purchase Agreement,
to do or refrain from doing all such further acts and things, and
to execute all such documents as Key Food shall deem neces-
sary or appropriate in connection with the transactions contem-
plated by the A&P Asset Purchase Agreement. Key Food will
incur no liability to Member with respect to any action taken or
suffered by any party in reliance upon any notice, direction, in-
struction, consent, statement or other document believed by
Key Food to be genuine and to have been signed by the proper
person (and Key Food shall have no responsibility to determine
the authenticity thereof), nor for any other action or inaction,
except its own gross negligence, bad faith or willful miscon-
duct.
On October 21, United States Bankruptcy Judge Robert Drain
entered an order approving the amended APA. [Jt. 3.] The order
included statements to the effect that interested parties were no-
tified and given an opportunity to object to the sale. In particular,
paragraph Z of the order states as follows [Jt. 3, pp. 11–12]:
No Breach of Union Obligations. The unions affected by the
sale of the Acquired Assets did not file an objection to such sale
and have waived their rights to assert against any of Buyer, the
Debtors, the Debtors estates, or any other party any claims or
other rights arising under the successorship provisions of any
collective bargaining agreement or similar agreement in rela-
tion to such sale.5
24 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Negotiations from July 28 to November 13
Respondent Key Food and the UFCW Locals that represented
A&P employees began negotiating for modified collective-bar-
gaining agreements on July 28. [Tr. 73] [GC 9]. UFCW Re-
gional Director Tom Clark was present during the first bargain-
ing session. [Tr. 74.] Additional bargaining sessions were held
between the Respondents and one or more of the Locals on July
29, August 3, 26, September 17, 21, 23, 24, 25, October 12, 14,
19, 21, November 13 and 19. Notes of those bargaining sessions
were entered into evidence. [GC 10, 13, 15, 49, 50, 51, 53, 73,
75, 76][R. 12–15, 17–19, 22–23, 30].
The Respondents’ Attorney Douglas P. Catalano acted as the
lead negotiator for all the Respondents and Konzelman also at-
tended all the bargaining sessions. Among the individual store
owners, Pat Conte (Seven Seas) and Leonard Mandell (Park
Plaza) were selected to be on the Respondents’ bargaining com-
mittee because they had previous experience dealing with
UFCW Locals. [Tr. 2077, 2244.] Bargaining sessions were also
attended intermittently by other owners of the stores.
From July to September, bargaining sessions were attended by
representatives of multiple UFCW Locals, including Locals 342,
338, 464A, and 1500. In October, Local 342 began bargaining
with the Respondents individually (largely without the other
UFCW locals or the international). [Tr. 91.] Local 342 did not
have a representative who attended every bargaining session or
a single lead negotiator. [Tr. 1378.] Many A&P stores were be-
ing sold or closed during the 2015 bankruptcy and union repre-
sentatives were spread thin attempting to negotiate contracts and
address concerns of A&P unit employees. [Tr. 1110–1112,
1114, 1378.] Union President Richard Abondolo acted as the
lead negotiator for the Union when he was present at bargaining
sessions, but Abondolo did not attend all of the negotiations. [Tr.
104.] When Abondolo was not present, bargaining sessions were
led by O’Leary or Executive Director Lou Solicito. Union Di-
rector of Contract Negotiations Louis LoIacono and Executive
Director Stephan Boras also attended bargaining sessions. The
Union had at least one administrative assistant present at each
bargaining session to take notes. The union negotiators did not
take their own notes. [Tr. 82, 100–102, 948–949.]
On July 28, Catalano indicated that the Respondents wanted
to reach agreement as soon as possible and that the substance of
the agreement could impact how many stores were purchased.
Catalano also said the failure to reach an agreement could result
in Key Food not purchasing stores at all. Catalano emphasized
that the Respondents wanted the agreement to include a 401(k)
plan instead of a multi-employer pension plan, limits on health
and welfare contributions, reduced wages for individuals making
$15 per hour or more, involuntary buyouts of A&P employees
not retained by the purchaser, and a long-term contract (prefera-
bly 4 years). The parties discussed arbitration, union time, and a
system of transferring employees between stores. Catalano as-
serted that the A&P contracts were part of a “failed model” that
resulted in A&P declaring bankruptcy twice in five years. The

6 Department heads are classified as “managers” (e.g., the department
head of the meat department is the “meat manager”). However, neither
party asserted that the department managers have supervisory or
Locals rejected this assertion, claiming that other stores with
contracts similar to A&P’s have been viable. The Locals insisted
that A&P went bankrupt because of poor management. Never-
theless, the Locals did not rule out any of the terms the Respond-
ents were proposing and asked Catalano to put them in writing.
The Locals also insisted that the Respondents reach an agree-
ment with all of them before a contract with any of them would
go into effect. [GC 29] [Tr. 73–78, 194–202, 206–211, 1737–
1740, 2079–2083].
On July 29, Catalano presented the Respondents’ first written
proposal to representatives of Locals 342, 338, and 1500. [R. 3.]
The proposal called for wage and leave reductions, a 12-month
probationary period with the right to terminate or reclassify any
full-time employee to part-time without cause, a framework for
offering healthcare coverage or cash in the alternative, a mini-
mum of 16 hours for part-time employees, arbitrations conducted
by the American Arbitration Association (AAA), 401(k) plans
with contributions and matching by the employers (rather than a
traditional multi-employer pension plan), no requirement to em-
ploy department heads (except for a meat manager if the store
averaged a weekly volume of $500,000), and a buyout provision
allowing employers to “buyout the service” of any employee for
a specific sum depending on the employee’s years of service. 6
During the July 29 bargaining session, Catalano admitted that
the proposal would need to be supplemented in order to finalize
complete agreements with all the Locals. However, the Re-
spondents wanted an agreement on major items for the purpose
of getting approval of the sale by the Bankruptcy Court. Union
notes of the July 29 bargaining session state [GC 53]:
RA: How much do you say we have time wise to get this done,
days, weeks?
Sharon: Days, we have to sell this to the members.
RA: So narrow it down. Don’t fatten it up. There are some
numbers we can say yes to. So let’s get down to the real #’s
and points where we can sit down. You have 18 items on 1
sheet. It’s going to be a long time. It depends on you, your
people, want to throw away. Some of this doesn’t even belong
in here, it’s fluff, crap. Probationary periods.
The Locals did not agree to the Respondents’ first proposal or
that concessions were appropriate. According to union notes,
Abondolo stated that meat department employees “are cheaper
and 4 years behind” (presumably the result of concessions agreed
to during the 2011 bankruptcy), and “[s]o we don’t understand
why they would have to make the cuts when they’re already
lower.” The Locals also expressed concern that agreeing to con-
cessions for the A&P stores would undercut its more expensive
contracts in the industry, including contracts with other Key
Food stores. The parties discussed the fact that certain prospec-
tive purchasers were owners of nonunion stores and hesitant to
buy a store that is unionized. [GC 53] [Tr. 1881].
On August 3, the same parties met and the Locals presented a
counter proposal. The Locals tentatively agreed to a 42-month
managerial authority. Rather, department heads have historically been
included in the A&P bargaining units.
SEVEN SEAS UNION SQUARE, LLC 25
contract, a minimum full-time rate of $11 per hour, and a mini-
mum of 16 hours per week of part-time employees. The Locals’
proposal also indicated that they were “seemingly ok” with re-
classification of full-time employees to part-time at the same
wage and with the same holidays and vacation. The Locals pro-
posed employment for all A&P employees unless an employee
decided not to take the offer of employment, which would trigger
severance of an amount (not yet specified) more than what the
employer was currently willing to offer as a buyout. The Locals’
proposal indicated that any reduction in pay would be opposed,
but a reduction of the number of employees in the store could be
discussed. The proposal indicated that stores would have a min-
imum of three department managers (perishable, meat and assis-
tant) with the addition of one department manager if store vol-
ume exceeded $350,000 and the addition of two department
managers if store volume exceeded $400,000. Local 342 wanted
to keep its usual panel of arbitrators instead of using AAA. [GC
73] [R. 15–16] [Tr. 1968–1974, 1744–1759].
On August 26, the Locals presented the following written
counter-proposal [GC 11]:
1-All current A&P employees shall be offer employment with
the new employer, with a 30 day trial period.
2-Term of the contract 42 months
3-All stores must have a minimum of three department heads,
meat perishable and grocery. All stores doing $400,000 a week
in sales for a period of two months or more must have a mini-
mum of 4-5 department heads depending on if they have a bak-
ery department.
4-All current A&P departments who are not to be department
heads in the new company will be offered full time employ-
ment at a rate of pay equal to their rate of pay had they been a
full time clerk for A&P.
5-All current full time clerks will be offered full time employ-
ment at their current rate.
6-All Current Part time clerks shall be offered employment at
their current rate of pay.
7-Six months after hired each Ft member shall receive a .50
cent an hour increase and every 6 months thereafter for the term
of the contract.
8-Six months after hire, each Pt member shall receive a .35 cent
an hour increase and every 6 months thereafter for the term of
the contract.
9-All FT and all PT members shall retain their current holidays,
sick and vacation time.
10-The Employer shall contribute $250.00 per month for each
FT member and $75.00 for each PT member per month toward
an established Annuity or 401K plan set up by the union.
11-The employer shall contribute on behalf of each FT member
to an ACA approved FT health care plan the sum of $1100.00
per month for a family plan and $500.00 a month for a single
plan, subject to a 5% increase each year of the contract. [¶] The
employer shall offer an Opt-Out bonus to the members; upon
proof of ACA acceptable coverage each FT will get a check
$3500 each year that they Opt-out. [¶] The Employer shall con-
tribute $60.00 per month to the Benefit/Health or Ancillary
Fund of the union on behalf of each Pt member
12-All new hires shall have a 60 day trial period
13-All current Pt members are guaranteed a minimum of 20
hours a week
14-All current A&P members hired during the sale of the A&P
shall receive 6 weeks severance pay and 3 months of COBRA
should they fail to make their trial period (not self-terminated),
be laid off or terminated due a store closing or lack of business
during the term of the contract.
15-All Current members shall maintain their current Sunday
rate during the term of the contract.
16-Minimum Hire rate for new FT. clerks is $11.00 hour, Min-
imum hire rate for new Pt. clerks shall be 35 cents above the
current minimum wage, however should the minimum wage
be increased there shall always be a minimum of a .35 cent dif-
ference in pay. All new Ft and Pt clerks after their trial period
shall receive raises according to the above schedule in #s 6&7.
17-Grievance and arbitration procedure. Arbitrations shall be
heard before a mutually acceptable panel of arbitrators or AAA
as agreed upon by the employer and the Union.
18-Should the employer close for renovation current Ft and
Current Pt members of each bargaining unit shall be given the
right of first refusal before the employer hires any new employ-
ees.
19-All other terms and conditions of the current A&P contract
not listed this MOA shall remain in effect for the term of this
contract.
20-The unions reserve the right to add or to modify these pro-
posals.
At this bargaining session, Abondolo objected to discretionary
layoffs during a probationary period without some showing by
the employer that the layoffs were justified by a lack of business.
He also objected to a reduction in employees’ rate of pay. Local
1500 President Tony Spielman said “take 10% off the top” (ap-
parently referring to a reduction in pay), but Abondolo con-
firmed that Local 342 would not accept a pay cut. Abondolo also
voiced some objection to the particular individuals who were
looking to purchase the stores. According to the notes,
Abondolo said, “[t]hese are the same guys who have had us ar-
rested, gets physical with us, tells us to go fuck ourselves and
now you want us to discount these people so they can spit on us.
Those are the people you represent. They threaten the people in
the stores, it’s just not going to happen.” In response to this and
other objections to prospective nonunion owners, Catalano coun-
tered that it was good to bring nonunion owners into the union
fold. After caucuses, the Locals proposed that the Respondents
simply adopt the A&P contracts for 1 year. Catalano declined.
[GC 10.]
On September 14, the Locals received an email forwarded to
them from A&P, which contained a letter from Konzelman to
A&P. [GC 12.] The letter stated in part, “[p]ursuant to Section
26 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6.4 of the Asset purchase agreement dated July 19, 2015. . . . . I
am writing to convey offers of employment to each current em-
ployee of A&P or any of its subsidiaries represented by UFCW
Local 1500, UFCW Local 1245, UFCW Local 342 and UFCW
Local 338. . . . ” The letter also stated that “[t]he terms of em-
ployment will be as set forth in Key Food’s September 8, 2015
written proposal to the UFCW Locals listed above (a copy of
which is appended hereto as Exhibit B) or as may otherwise be
agreed upon by Key Food and the respective union representa-
tives.”7
On September 17, the Respondents held a bargaining session
with Locals 338 and 1500. Local 342 was not present. Accord-
ing to Catalano and Konzelman, the parties reached an agree-
ment with Locals 338 and 1500, which was later revised on Sep-
tember 22 at the request of Local 338 President John Durso. [R.
5, 6, 18, 20][Tr. 1773–1786, 1975, 2461–2465, 2468, 2562].
On September 21, the Respondents held their last bargain ses-
sion with multiple locals, including Locals 342, 338 and 1500.
According to union notes, Abondolo questioned the Respondents
about discretionary buyouts without regard to seniority and with-
out recall rights. Abondolo asked if the new owners knew which
employees they were going to keep, and Catalano answered that
the owners probably did not yet know. Ultimately, Abondolo
rejected any proposal that included layoffs, a reduction in pay,
or a reduction in paid time off. With regard to healthcare contri-
butions, Abondolo proposed that the parties adopt the provision
in the Union’s other Key Food contracts. [R. 21] [Tr. 1796–
1797, 1982–1985].
On September 22, Catalano sent the locals the following pro-
posal (referred to on the record as the Durso proposal because it
was “revised 9/22/15 per Durso email”) [R. 20]:8
1. Offer of employment will be made to all current union A&P
employees without qualification or interview, subject to a pos-
sible buy-out by Key Food before or after their employment
commences, per the terms of #14. Offer voluntary first, if not
enough volunteers, then involuntary, based on seniority. Any
employee bought out involuntarily will have recall right at full
rate of pay for 1 year.
2. Term of agreement is 42 months, commencing upon the date
that the employees are hired and begin employment with the
Key Food member.
3. A full-time employee is guaranteed an offer of 40 hours per
week.
4. Wages:
a. All employees who earn $21.00/hour or less shall be
hired at the same rate of pay
b. Any employee earning $21.01 $23.01 or more shall
be offered a position at a rate 10% less than his or her
current rate, but the new rate shall not be less than
$21.00 $23.00/hr. Wage progression for FT employees
hired from A & P:
6 months after contract $35/week
12 months after 1st increase; $35 per week

7 The Respondents’ proposal attached to the letter as Exhibit B was
more favorable than the original proposal of July 29 and less favorable
than the proposal as later revised on September 22.
12 months after 2nd increase: $35 per week
6 months later $2,000 bonus lump sum payment (sub-
ject to FICA withholdings only)
c. Minimum FT rate for new hires: $12.00/hour/ upon
entry to union $0.50 per hour increase. On each anni-
versary date of hire $35/week, until the end of the con-
tract.
d. New part time employees will be hired at minimum
wage, and will receive a $0.50/hour increase after 30 days.
Then on each anniversary date of hire $0.50/hour increase.
e. Wage progression for part timers hired from A & P:
$0.40 an hour after 6 months, then 1 year later $0.40/hour,
1 year later $0.40/hour, year later $0.40/hour, then a one-
time $1000 bonus. (subject to FICA withholding only)
5. Probationary period:
Each employee hired shall be on probation for the first
30 days of his/her employment, but the probationary pe-
riod may be extended for an additional 30 days upon mu-
tual agreement. Employee may be terminated at any time
during the probationary period with or without cause, but
full time employees hired from A & P, and who are ter-
minated without cause prior to the end of the probation-
ary period shall be provided with a payment of $6,000
$8,000 together with 3 months of continued medical cov-
erage.
6. Health and Welfare:
a. Only for 338, other locals to be negotiated:
Part time: Those part time employees who perform 30
hours or more of service per week will be offered
healthcare by the employer with a $400/month em-
ployer contribution; and $20 per week employee contri-
bution to the appropriate ACA compliant H&W plan.
Full time: Employer contribution of $1,000 per em-
ployee.
Increases in these rates will be capped at 5% per year.
b. If an A&P employee performing 30 hours of service
or more is offered healthcare, but declines healthcare,
and shows proof of ACA coverage elsewhere, a one-
time opt-out payment of $3000 will be given.
c. “Special part-timers” (local 1500, current A & P em-
ployees, who currently receive union-provided H & W)
will be offered ACA compliant H&W, with an em-
ployer contribution of $400/month, and an employee
contribution of $15/week
d. New Hires eligible for coverage will be offered cov-
erage on day 90 of employment; existing A&P employ-
ees will get covered day one.
e. PT benefit contributions of $70 for local 338 and $76
(approx.) for local 1500 (under 30 hours)
7. Minimum guaranteed part time hours per week will be 20
hours, subject to employee availability.
8 The September 22 revisions to the Respondent’s September 17 pro-
posal are reflected by the strikethroughs in par. 4(b) changing $21.01 and
$20 to $23.01 and $23, respectively, and changing $6000 to $8000 in
par. 5.
SEVEN SEAS UNION SQUARE, LLC 27
8. A mutually agreed upon arbitrator, or if no agreement, the
American Arbitration Association shall be the forum for all ar-
bitration proceedings.
9. 401-K or other defined contribution by the employer of
$200/month will be made for all FT employees
a. All Part-timers hired from A&P will receive $75 per
month contributed to a 401K or other defined contribution
plan.
b. New hire employees will be eligible to participate in
the plan after 1 year of employment. Existing A&P em-
ployees will be eligible day one of employment.
10. Vacation, Sick Personal, Holiday and Sunday premium:
grandfather benefits for A&P hires except for personal days
which will be a maximum of 4; and sick days which will be a
maximum of 8, for new employees see schedule attached
11. All stores must have a minimum of three department heads.
Stores doing $325,000 per week in sales for a period of two
months or more must have a minimum of 4 department heads.
12. Management has the right to reclassify an employee from
FT to PT within a 12-month period subsequent to the expiration
of the probationary period, for objective business or economic
reasons which shall not be capricious or arbitrary. Upon re-
classification employee will retain his or her wage rate and all
PTO.
13. Lump Sum service buyout:
Key Food has the right to offer a buy-out to any FT em-
ployee currently employed by A&P, either prior to being
hired by Key Food, or after the conclusion of the proba-
tionary period if the FT employee is hired by Key Food,
buyouts will be $750 per year of service A & P with a min-
imum of $5,000 and maximum of $14,000. This buyout
will be on a voluntary basis or in lieu of a layoff.
14. Any other terms and conditions of employment shall be
negotiated on or before the new operation comments. There
shall be no continuation of terms and conditions of employ-
ment from those collective bargaining agreements currently in
effect with A & P or any of its banners.
15. These proposals may be modified in whole or in part, and
there is no agreement until there is a complete agreement be-
tween the parties.
16. This agreement shall apply to the stores purchased by Key
Food or its members from A&P.
17. If a Key Food member wishes to sell an A&P banner store
within the shorter of (i) 42 months from the date of purchase
and (ii) the term of the lease on the store, it will sell the store to
(i) a purchaser other than the Co-op willing to recognize the
unions representing the employers in that store and to proceed
on the terms and conditions of employment under the collective
bargaining agreements then in effect; or (ii) the Co-op. If the
Co-op is the buyer, it will recognize the unions representing the
employees in that the store and proceed upon the terms and
conditions of employment under the collective bargaining
agreements then in effect.”

9 O’Leary and Solicito led negotiations for the Union on October 12.
O’Leary took over from Solicito as lead negotiator when she suspected
that Catalano was preparing to declare impasse.
18. This agreement is subject to approval by all UFCW locals
involved.
On September 23, 24, and 25, the Respondents and Local 342
began negotiating on their own, largely without representatives
from other Locals present. Local 342 was represented by Solic-
ito. According to union notes, Catalano began the bargaining
session by stating that, “from my frame work we are essentially
done,” and presented the September 22 “Durso proposal” to the
Union. Catalano indicated that an employee who received an
involuntary buyout would retain recall rights to prevent owners
of the stores from hiring relatives to replace the current employ-
ees. Solicito took the position that the Respondents should retain
all employees without a probationary period that allowed for sep-
aration without cause and with buyouts that could only be imple-
mented after six months. In this way, the Union wanted the Re-
spondents to give employees a chance to work and see how many
employees they really needed. The parties did not reach agree-
ment or make any additional progress in negotiations on Septem-
ber 23, 24, and 25. [GC 49–50][R. 12][Tr. 951–955, 978–980].
On October 12, the parties spent significant time rehashing
their previous positions.9 O’Leary indicated that, regardless of
any agreement the Respondents may have reached with Locals
338 and 1500, Local 342 would not accept involuntary buyouts,
a probationary period for separating employees without cause, or
a proposal (i.e., the September 22 proposal) with open items left
to be resolved later. Union notes of the meeting indicate that
O’Leary said, “we are not doing the buyout so please get that out
of your head.” Catalano continued to push the concept of a pro-
bationary period and buyout. He indicated that the buyout would
be used as an alternative to arbitration. According to union
notes, Catalano said, “I have no incentive to keep PPL that don’t
work out. Instead of arbitration we give them money to leave.”
Catalano testified that, on October 12, O’Leary agreed to work
toward a partial contract with only those major items necessary
to open the stores and finish the rest later. In support of this po-
sition, Catalano referenced union notes which indicate that
O’Leary said, “We need to get some agreement on how you open
the stores up and we can do the rest of it later.” [R. 30 p. 4 of
13.] These notes also indicate that O’Leary said, “Let’s agree on
the hire rates, the things that surround the members getting to
work, getting jobs, hire substantially all and medical insurance
and we can do a waiver for those who want to opt out [of insur-
ance].” Further, Catalano made reference in his testimony to un-
ion notes which indicate that O’Leary said, “What I’m saying to
byou [sic] is to get an agreement so you can open up and we can
finish the other portions later.” [GC 13 p. 12.] -- “Let’s talk
about hiring, staff & Medical insurance (waiver for medical).”
However, Union notes indicate O’Leary proposed that the
“Key Food industry agreement” be used as a model for quickly
resolving outstanding open items that were not in significant dis-
puted (such as bereavement and jury duty) and produced such a
contract.10 [GC 80.] Union notes indicate that O’Leary said,
“342 cannot do a new agreement for 42 months and not know
10 The “Key Food industry agreement” did not refer to a single agree-
ment, but a number of similar collective-bargaining agreements between
Key Food stores and the Union. O’Leary produced at this bargaining
session, as an example of a Key Food industry agreement, the collective-
28 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the rest of the CBA.” [R. 30 p. ] Union notes also reflect the
following comments by O’Leary:
[T]hat is another reason why I am saying we need to do this the
right way and use the Key Food as a master. In an instance like
that (closing store for a year) – those employers said when they
open up they are taking whoever they take, some of those peo-
ple may be working somewhere else by the time they open up,
they already said they will just take the 342 contract they have
now. We need to have some agreement on how you open the
store up and we can do the rest of it later. Some of the stuff in
your proposal will need to come out. [R. 30 p. 3.]
. . .
I have identified what we can do to have a transition agreement
then we can continue to bargain a complete agreement to get to
where we need to go. Let’s not talk about 42 months – lets talk
about no months. Let’s agree on the hire rates, the things that
surround the members getting to work, getting jobs, hire sub-
stantially all and medical insurance and we can do a waiver for
those who want to opt out. We are talking to 338 so if we can
do the same thing for a cheaper rate than we can offer we can
work something out with them or the international but I cannot
get that done in a week. Maybe the 338 not sure yet. [R. 13 p.
13.]
Catalano initially rejected the concept of using provisions
from the Key Food industry agreement, but later indicated that
certain non-economic provisions might be acceptable.11 [GC 13]
[R. 19, 20, 30] [Tr. 90–100, 211, 1786, 1800–1801, 1805–1809,
1992, 2571, 2700–2720, 2810, 2883–2884].
On October 12, the Union provided the Respondents with the
following written proposal [GC 14]:
THIS AGREEMENT made between Key Food Co-op, here-
inafter called the “Employer”, and the United Food and Com-
mercial Workers Union Local 342, hereinafter called the
“Union”
WHEREAS, Key Food intends to assume control of A&P
stores; and
WHEREAS, Key Food intends to hire the employees cur-
rently working at those stores.
WHEREAS, Key Food has positions available necessary to
employ all employees under Local 342’s jurisdiction. The em-
ployees will be required to agree with the company’s offer
which is governed by the current Local 342 Key Food Agree-
ment.
WHEREAS, those employees are currently represented by
UFCW Local 342;

bargaining agreement between the Union and Key Food Quick Pick
#5330. [GC 80] [Tr. 233–235].
11 I do not credit Catalano’s assertion that the Union, on October 12,
indicated a willingness to accept a partial contract such as Respondent
Key Food’s September 22 proposal on a long-term basis. According to
both sets of union notes, O’Leary argued in favor of using the Key Food
industry agreement before and after the isolated quotes that were refer-
ence by Catalano. In fact, it is uncontested that Catalano ultimately con-
ceded, as described in union notes, “[t]here are pieces in the Key Food
agreement that we would agree to. Some of it can work, most of it can’t.”
Employees eligible for any of the term and conditions
of this agreement are those hired in any converted store at
the time of the conversion of that store.
Upon demand by Local 342 Key Food will recognize
Local 342 as the sole bargaining agent of those employees
for purposes of wages, benefits, and other terms and condi-
tions of employment. Key Food and the Unions hereby
agree to the following:
1. Key Food will offer former A&P employees cur-
rently working at these stores employment. Key Food
agrees to abide by the wages benefits, and terms and condi-
tions between UFCW Local 342 and the Key Food industry
agreement, and successive MOA’s dated 4/15/15, and will
fold A&P employees under the new Local 342 Key Food
successor agreements.
2. Key Food does not assume any liability as a succes-
sor or assign or otherwise from the current “A&P” collec-
tive bargaining agreement and is not responsible for adher-
ence to or enforcement of any other provisions of that
agreement, including but not limited to grievances, arbitra-
tions or past practice pursuant to those agreements.
3. Employees in acquired stores will complete applica-
tions, and will be hired by Key Food Employers who are
specific owners of stores acquired by the Key Food Co-op.
4. All employees hired pursuant to Paragraph 3 above
shall remain at their current A&P rate of pay. Key Food
will consider these employees as new employees for pur-
poses of any subsequent age or scale increases or premium
pay in accordance with the Key Food/Local 342 industry
agreement. In any event, notwithstanding what may be
spelled out in Paragraph 1 or 4, no employee hired pursuant
to this agreement shall receive a 30-day salary or hourly ad-
justment if they have received one already in 2015 from
A&P. The 36-month waiting period for paid time off enti-
tlement will not apply to employees hired pursuant to Para-
graph 3, who instead will retain their A&P entitlements.
5. For purposes of layoff, employees subject to this
agreement will keep their original A&P Company hire date
within the acquired group or store. Key Food agrees that
they shall not be any layoff for any employees who accept
employment, Full Time or Part Time, for a period not to
exceed ten (10) months. After ten (10) months, Key Food
may notify the Union to sit and discuss a layoff if necessary,
and the Employer must be prepared to establish a need for
layoff by allowing the Union to have professionals conduct
an audit pertaining to the financial condition of the store
and/or company.
[R. 30 p. 9.] The last sentence of those notes show O’Leary saying,
“Look at Key Food for a basis of an agreement.” [R. 30 p. 13.] Further,
as discussed below, it is undisputed that on October 19 the Union con-
tinued to request that the Respondents accept the Key Food industry
agreement as the basis for a contract. Catalano’s own notes suggest that
the Union was conditioning a 42-month contract on a complete agree-
ment that used the Key Food industry agreement to fill in outstanding
provisions. Catalano’s notes state “2- 42 mos → Key Food industry
agreement but not wall to wall. . . . ” [GC 35] [R. 22–23].
SEVEN SEAS UNION SQUARE, LLC 29
a. The Employers who individually own any one of the
Key Food Co-op banners and who have purchased one of
the banners from Key Food Co-op or A&P, shall include
any other supermarket businesses that they have as part of
their financing of this store when they notify the Union of
their desire to have a layoff.
6. Expect where explicit in this agreement for all other
purposes employees subject to this agreement assume their
Key Food hire date.
7. All employees hired under this agreement will be
subject to a sixty (60) day probationary period from the date
of their employment with Key Food. Since Key Food has
agreed to hire all employees, subject to the conditions
above, the probationary period shall be subject to the griev-
ance procedure. In addition, all employees shall remain
members of the union and there shall be no interruption of
union service.
8. Employees hired pursuant to this agreement shall
have vacation, sick leave, holidays, and personal days cal-
culated according to their A&P experience toward eligibil-
ity for those benefits.
A. All employees hired from A&P shall continue to
work under the A&P agreement according to vacation, sick
leave, holidays and personal days until December 31, 2016.
B. Effective January 1, 207, those members shall be
restored all vacations, sick leave, holidays and personal
days according to the Key Food Agreement.
C. All employees hired from A&P shall continue to re-
ceive their current wage rate that they are receiving now
from A&P. Upon completion of the current A&P Agree-
ment which expired December 31, 2016, the employees will
then be eligible for their first wage increase in April 30,
2017. In addition, all A&P employees hired by Key Food
who have had their first hour reduced to minimum wage,
that hour shall be restored immediately upon being hired by
the Key Food company.
D. Acquired full-time employees will maintain their
full-time status; Full-time and part time Acquired Employ-
ees will maintain their current entitlements pursuant to the
A&P agreement until December 31, 2016, at which time
those employees will be eligible to receive their entitles pur-
suant to their current Collective Bargaining Agreement be-
tween Key Food industry agreement and Local 342.
9. Former employees of A&P actively employed who
are hired by Key Food effective on the dates enumerated in
Paragraph 5 will be granted credit for their continuous full-
time service with A&P for purposes of satisfying the wait-
ing period for eligibility for Local 342 benefit plans.
10. Key Food agrees to continue to use the vendors that
are union vendors and are represented by Local 342 for a
period of not less than one (1) year in an effort to avoid ad-
ditional exposure of Local 342 members to layoffs.
11. The employer agrees that in the case of the wall-to-
wall store that is a Food Emporium store, the Departments
that are stated in the Local 338 Agreement will be mirrored
for the purpose of establishing departments in all wall-to-
wall stores.
a. Anywhere a department is being removed or for any
reason a Department Manager is being demoted for just
cause, those Department Managers who receive a premium
shall lose the premium and be paid the top clerk or butcher
rate in those categories.
b. The employer agrees that in wall to wall stores that
it will continue to red circle rates of pay for all employees
that remain employed and thereafter all new hires who are
new to the industry or who have previously worked in Local
338 or Local 1500, they shall receive the rates currently un-
der the Local 338 Agreement that is in effect in their indus-
try contract for each classification except for those employ-
ees in the Meat, Seafood and Deli Departments. Thereafter,
all employees shall receive wage increases that will be ne-
gotiated under the Key Food Industry Agreement which
will cover all employees in all classifications going for-
ward.
c. In respect to above all new hires new to the industry
hired after this agreement has been signed will receive the
start rates in each of their Full Time class that are estab-
lished in the Local 338 agreement. Thereafter, they shall
follow the wage increase that shall be negotiated in the new
Key Food industry contract.
d. In the case of the wall-to-wall Food Emporium store,
the Employer may after four (4) months of emplo8yment
notify the Union of the need for a layoff. The employer
may notify the Union of its need for a layoff in inverse order
of seniority only of those employees no longer needed. The
company shall not replace any Full Time employee with
any part timers. The company shall pay severance to any
employee that is laid off $800 per employee per each year
of service. In addition, the company shall provide 6 months
of medical coverage, or the money equal to 6 months of
medical coverage in addition to the severance.
12. Either party desiring to modify or terminate this
agreement at its expiration shall give written notice to the
other party at least (60) days prior to April 30, ____.
Throughout the negotiations, in response to the proposal to
buyout employees, the Union requested that the Respondents
identify A&P employees they did not intend to hire. [Tr. 1796.]
On October 14, certain owners attended the bargaining session
and took turns indicating the number of employees they intended
to keep. Pat Conte indicated that Respondent Seven Seas would
keep all employees at the Union Square store. The Abeds indi-
cated that Respondent Greaves Lane would keep, among 12 em-
ployees, the meat manager, deli manager, deli clerk, meat wrap-
per, and three journeyman butchers). The Almontes indicated
that Respondent HB would keep two full-time employees and
two part-time employees without indicating the particular classi-
fication. The owners did not identify the names of employees
they intended to keep. [R. 13] [Tr. 980-983, 1266–1268, 1809–
1821, 2091, 2253–2254, 2306–2310, 2324, 2470, 2561].
On October 14, Catalano rejected the Union’s October 12 pro-
posal. Catalano said Key Food would talk about anything in it,
but that the proposal was generally “off the table.” The Union
asked to bargain with the member-owners individually since
they were going to be signing the agreements and managing the
30 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
stores. Catalano rejected this request. According to union notes,
Lenny Mendell said, “they can’t bargain individually, they’re not
allowed to.” [R. 13.]
On October 15, the parties exchanged emails regarding a Un-
ion request for information. O’Leary requested certain infor-
mation, including each A&P store being purchased, the purchas-
ing employer of each store, closing dates, any job advertisements
for those stores, and the positions to be filled by current A&P
employees. Konzelman responded and stated, in part, “I am be-
ing advised not to publish the information requested until after
the hearing scheduled for tomorrow, which we expect to be for-
mally approved as purchaser for the 24 locations.” Konzelman
also noted that the closing schedule was not finalized, but the
Howard Beach and Horace Harding closings were preliminarily
scheduled for October 21. O’Leary replied and emphasized the
importance of receiving the requested information immediately.
She noted, in part, that “we expect the current employees to be
working on the 21st, and we need to know exactly what the em-
ployer’s plan is as it affects the workers.” O’Leary requested the
immediate resumption of negotiations and noted that the Union
would have no information to provide workers regarding their
status if an agreement is not reached in advance of October 21.
[GC 81] [Tr. 2730].
On October 19, the parties met and the Union continued to
propose that a Key Food industry agreement be used to obtain a
complete agreement, while Key Food continued to reject this
idea. According to Union notes, O’Leary asked, “in terms of
working off the key food contract language, how do you feel
about that?” Catalano’s notes indicate that he said, “the Key FD
agreement doesn’t fit.” However, Catalano did not completely
rule out using certain provisions from a Key Food industry
agreement. [GC 75] [R. 20, 23][Tr. 219, 1822–1828, 2007,
2472, 2730–2740, 2559–2560, 2574–2575, 2730–2740].
Union notes of the October 19 bargaining session include the
following exchange [GC 75] [Tr. 2007]:
Lo: …. In terms of working off the key food contract language,
how do you feel about that?
Dc: The economic terms we aren’t interested in, the union se-
curity clause, the bargaining clause. There are certain provi-
sion you need in any CBA. Not everything is accepted or re-
jected. Clearly there are certain things in the document that we
would grasp on to.
Lo: Ok – I’m getting a picture of a boiler plate for what you
are ok with. There are only certain sections
Dc: I wouldn’t use the term most. I have to go through each
one, the question is, is it an economic issue.
Lo: Pretty much to me it’s all economic. Even though it’s lan-
guage…. In the same time some things are standard. A lot of
language would reflect what is federal law. That kind of
stuff……alright so let me see if can identify – do you have the
key food agreement with you
Dc: I won’t respond I will wright down what you say. Until I
talk to my ppl
Lo: The purpose of doing this is to make it quick and so we
have an idea to have a total agreement. This doesn’t work for
the wall to walls, the front end of course isn’t listed for classi-
fication which means meat seafood and deli if we have it and
the front is shared with another local. You can let me know if
you have a problem with the Union recognition, classification
is pretty standard. Union security is boiler plate matching up
with the national labor relations act . . . .new employees, most
of that is boiler plate. There is a lot of language having to do
with 342 sends temp butchers off the bench to cover vacation,
sick, personal comp and things like that. We have groups that
are not employed that the employer use, not saying these guys
to do that. I’m pointing out the language covering the temp
really looks at our temp workers. Discrimination might not be
a problem. Seniority is boiler plate, however I can see where
you want to put something there that recognizes the employers
buying more than 1 store, and having seniority amongst them
for A&P seniority off layoff. The job guarantee and the re-
placement language that is in the standard key food agreement,
doesn’t really apply to these guys bec it speaks of ppl who are
hired before 1995.
Catalano’s October 19 bargaining notes have “Konzelman &
DPC” underlined and, underneath, a list of items that appears to
reflect the Respondent’s position on provisions in the Key Food
industry agreement. [R. 22 p. 3] [GC 80]. Thus, for example,
the Key Food industry agreement contains an article (Article 2)
on employee classifications and the first entry of Catalano’s list
states, “no job classifications.” Similarly, the Key Food industry
agreement contains an article (Article 4) on referrals of new hires
by the Union and the second entry on Catalano’s list states, “hire
from any source/you can refer.” The order of the list appears to
track the Key Food industry agreement and not the Respondent’s
September 22 proposal. When asked about these notes, O’Leary
confirmed that the parties were discussing proposals in the Key
Food industry agreement. [Tr. 2881–2882.]
Union notes of the October 19 bargaining session also con-
tained the following exchange [GC 75]:
Lo: Ra will speak if it is acceptable or not – our proposal was
you take all the members as is. You are still working out buy-
out language in the front stores there aren’t that many ppl in the
back end. We aren’t having anyone to do the butchers job.
Why are you frowning?
Dc: Bc I don’t think anyone ever said that.
Lo: We need to get it narrowed down. Will there be a seafood
Dpt?
Sharon: Not a fresh seafood dept.
Break
Dc: Our counter is to hire all full timers if seafood doesn’t
open, and we put seafood aside. Then we higher all A&P full
timer meat and deli, meat; higher them all at their rate and if
they don’t make probation, 750 with max of 850 but probation
will be 30 days. They come to store and show what they have
and we still give buyout if they don’t make probation, 750, 850
max, no grievance without cause. The arbitration clause we
would like to stay in this contract.
SEVEN SEAS UNION SQUARE, LLC 31
When asked about the Respondent’s “counter,” Konzelman
testified that it was the Respondents’ position until late in the
bargaining session of October 21, after Catalano and Abondolo
met on the side alone, to hire all non-seafood full-time employ-
ees represented by Local 342 subject to a potential buyout during
the probationary period. [Tr. 2575–2577.]
On October 21, at the Union’s request, the bargaining session
was attended by Federal Mediator Carlos Tate. [GC 15, 76][Tr.
100–113, 141–145, 213, 226, 310–315, 1003–1007, 1028, 1057,
1115–1116, 1268–1272, 1395, 1698–1699, 1837–1852, 2046,
2051–2054, 2103–2107, 2127–2130, 2137–2139, 2144–2145,
2150, 2190, 2327, 2384–2385, 2407–2408, 2473–2478, 2575–
2577, 2740–2751, 2849]. According to union notes, the October
21 bargaining session began where the October 19 ended (with
Key Food restating their proposal on offering employment). The
notes state [GC 15]:
Doug: Offering employment where we said we would proba-
bly not hire the Seafood Personnel, and let other FT in the store
for 30 days – if they don’t make probation we would give them
750/year of service that they had with A&P max of 8,000. That
persons services might be terminated with or without cause.
Arbitration according to the proposal – mutually select arbitra-
tor.
The same notes later reflect a discussion regarding Respond-
ent Key Food’s proposal, as follows:
RA: You will take everybody with a 30 day probationary pe-
riod
Doug: And if mutually agreed upon an additional 30 days to
60.
RA: Do we have a commitment that all PT are hired, not talk-
ing about seafood in the back wall stores.
Doug: Yes.
RA: Subject to the probationary period
Doug: Yes
…
Doug: During probation if they didn’t get retained at the end
of the period the FT will get 8,000 and 3 months medical.
…
RA: The only issue we have is whatever number we agree on
on how long the person will be out, let someone go then the
next day hire someone $10 cheaper, how do we protect that?
Doug: With 338, they would have recall rights for one year
despite getting a buyout that is the protection.
At about 2 p.m., the parties caucused for an extended period.
Thereafter, Catalano, Abondolo, and Tate met alone in a separate
conference room. It is uncontested that this was a brief conver-
sation lasting 10 to 20 minutes. [Tr. 1003–1006, 1862–1863,
2046.] However, Catalano and Abondolo provided different ac-
counts of the meeting.
According to Abondolo, Tate approached him and said Cata-
lano wanted to meet alone. Abondolo went with Tate to a sepa-
rate room and Catalano was there. Catalano spoke first.
Catalano talked about laying people off before they were hired
and brought up severance for those people. Catalano allegedly
referred to this as an “involuntary layoff.” Abondolo rejected
the concept of laying people off before they were hired, telling
Catalano the Union wanted employees to be retained for a year.
However, Abondolo did agree to the layoff of seafood employ-
ees by a store that did not intend to maintain a live seafood de-
partment. Abondolo proposed that employees receive $800 per
year of service with no cap on the number of years. Of this $800
per year, the Respondent would pay $400 per year if the other
$400 per year was paid by A&P pursuant to the severance pro-
vision in a collective-bargaining agreement (as modified by the
2011 bankruptcy order). Abondolo denied that he or Catalano
discussed the payment of severance in four installments.
Abondolo also adamantly denied he ever told Catalano they had
an agreement on the contract as a whole or that the Union was
accepting the Respondents’ contract proposal in its entirety. [Tr.
1003–1006, 1045–1047.]
According to Catalano, Abondolo approached him and asked
him to come into a conference room with an oval or octagon ta-
ble and comfortable chairs with big backs. Catalano testified that
Abondolo spoke first, describing the conversation as follows [Tr.
1841–1842]:
And he said, “we have an agreement. We’ll agree to what you
want,” in so many words. Do I remember the exact sentence?
No, but we were talking about our proposal and he said, “we
have an agreement. We’re good to go. I want to raise one thing
with you, though.”
“What is that?”
It’s …. the buyout numbers. I said, “You don’t want,” exact
words, I don’t know, but “you won’t want the 750 model that’s
in our contracts per year of service with A&P and the minimum
of 5,000 and the maximum of 14,000?”
He said, “No, what I want to do is I want 800 without a cap,”
because the 338 and 1500 and 464 had a cap, a minimum and
a maximum. So he says, “I don’t want that. I have the ability to
get my Members a severance payment from A&P under those
provisions that we talked about yesterday, testified to yester-
day, where you get if you close down $800 for each year of
service if you’ve been employed by A&P since 1995; 1981
with Pathmark; 2004 I remember in another agreement. I can
get them a severance payment there. And what I’d like you to
do is if they don’t get a severance payment give them $800 for
each year of service without a cap or $400 in the event that
they’re getting severance from A&P.”
I said, “Now I understand where you” – because I didn’t un-
derstand that came up on occasion, even though on the 19th he
said, “I agree to the $750,” and now he’s – I’m not saying that
he’s changing it, but here’s what he’s suggesting. “Okay, we
have an agreement pursuant to what you’re proposing, but I
want that changed.” I said, “Fine, let me talk to my people.
Sounds good to me. I’m okay with that. I’m glad.”
Neither Catalano nor Abondolo took notes in the meeting and
they did not have or make reference to the Respondents’
32 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
September 22 proposal with them in this side-discussion. [Tr.
1862–1863, 2057.]
When Catalano was asked at trial whether he recalled the ex-
act words Abondolo used during the side-discussion on October
22 to indicate the parties had reached an agreement, he re-
sponded, “Exact words, of course not. . . . [Abondolo] said in so
many words, whether the exact phrasing is as follows: Doug,
we’re done. We have a deal. We agree, but I want to talk to you
about the $800 and the $400.” When Catalano was asked
whether he had a specific recollection of Abondolo referring to
the Respondent’s September 22 proposal in the side-discussion,
Catalano responded, “no, in advance of the sidebar. . . . Early on.
They showed up late. We met for half-an-hour. We’re saying in
so many words consistently this is it. This is our model. This is
what we want. This is what we’re insisting upon.” [Tr. 2056–
2057.]
According to union notes, when Catalano and Abondolo re-
turned from meeting separately, the bargaining session contin-
ued as follows [GC 15]:
Doug: you suggested off the record a different model – if
you’ve been with A&P under 342 contract $800 for each year
of service, A&P will pay 50% so we will pay $400 for each
year of service without a maximum. There are some people
who have 40 year people and if you agree it will be paid out in
4 monthly payments. This is for the Full Timers if we don’t
hire them. If we do hire them and they don’t pass probation –
338 model is a little different. What we talked about if they
don’t make the probation will get $750 with a max of $8,500.
RA: I was concerned about getting into an understanding about
part-timers.
Doug: If we don’t hire the FT you asked whos going to do the
work. I will be candid and either FT will be reduced to PT or
a PT cutter or reduce the full time to PT on day one. I will
prepare something. Tomorrow rather than meet I will prepare
something send it to you with these kinds of concepts. Last
night we did not do a PT severance. We got calls from 338 that
we misunderstood. We agree this afternoon –
Sharon: Because we said we are hiring all FT. we would offer
1–7 years 1 week at current rate of pay avg hours, 8–11 gets 2
weeks, 12-15 3 weeks, 16 or more get 4 weeks.
Doug: That’s what they asked for and we said fine. We said
we will hire all the PTers and we are with 338 and 1500 as well.
RA: Only if they don’t make probation.
Doug: People might be used to the Walbaums way which
might not be the same way they are used to.
RA: Do you know how much that costs?
Doug: $350-$400 per week by 1 week, or 4 weeks. That’s
what they asked for. We weren’t going to do anything but they
asked for it and we said fine.
RA: We will work through the language.
Doug: I will put an MOA together and send it to you guys. We
will send you something in the afternoon by this afternoon.
RA: Okay. By that point we can put it to bed. When are the
transitions taking place.
Abondolo testified that in referring to “it” in “put it to bed,”
he was referring to contract negotiations. However, Abondolo
testified that Catalano misspoke in his comments to the larger
group about what they had discussed separately in the side-dis-
cussion. According to Abondolo, he told Catalano so and was
not particularly hopeful that Catalano was going to prepare an
MOA that was acceptable to the parties.
Witnesses for the Respondents and Union also provided con-
flicting testimony as to how the meeting ended. Catalano,
Konzelman, Conte, Mandell, and Diaz testified that Abondolo
walked over to where they were and shook their hands. Catalano
testified that he had a particularly strong recollection of
Abondolo shaking hands with nonunion owners whom he talked
badly about during negotiations. The Respondents’ witnesses
also testified that they went out for a congratulatory drink after
the October 21 bargaining session.
Abondolo, O’Leary, and Booras testified that there was no
ceremonial or congratulatory handshaking at the end of the Oc-
tober 21 meeting. O’Leary noted that it is common for parties to
shake hands at the end of bargaining when they reach an agree-
ment, but it is not a practice she enjoys and this did not occur on
October 21. She testified, “I’m not a big handshaker type, you
know, ceremonial person. But I realize, you know, especially
men, . . . they like to do it. . . . there was no ceremonial shaking
of hands, in that room, with all the parties there” and “I don’t
recall anybody looking to shake hands with me that day either.”
[Tr. 143.] Booras and O’Leary both noted that the Union made
no arrangements for a ratification vote of the alleged deal be-
cause there was no agreement. [Tr. 141–145, 1005, 1379–1380.]
On October 22, Catalano sent the Union an email that stated,
“Attached is a draft that is consistent with the 338 agreement but
has not yet been reviewed by our client.” [GC 16][R. 1, 15]. The
attachment was a Memorandum of Agreement (MOA). Catalano
testified that this MOA reflected an agreement the parties
reached on October 21. The MOA includes, in part, the follow-
ing provisions [GC 16]:
2. OFFER OF EMPLOYMENT
a. Upon the opening of its store, or stores, the Employer shall
offer employment to current A&P employees before hiring an-
yone else subject to the terms of this agreement. A minimum
of 50% plus 1 employees will be hired by the Employer from
A&P employees.
b. The offer shall be made unconditionally without any review
or interview.
c. Notwithstanding the above, the Employer may offer a buy-
out to any full-time employee currently employed by A&P, be-
fore the opening of its store, or stores, or after the probationary
period. In such instance, the Employer shall pay to the em-
ployee $400 per each year of service with A&P. Payment shall
be made of the aggregate amount in four (4) monthly install-
ments. This buy-out may be voluntary, if offered by the Em-
ployer, or in lieu of a layoff. (no payment of entitlements).
Buyout in lieu of layoff for one year from date of hire.
SEVEN SEAS UNION SQUARE, LLC 33
d. Future layoffs of employees not subject to the buy-out in
2(c) shall be by seniority (the last employee hired shall be the
first employee laid off) within a classification. In case a buy-
out results from a layoff or pursuant to 2(c) above, the affected
employee shall have the right of recall based on seniority (the
employee with the most seniority shall have the first right of
recall) for a period of one year, and shall be entitled to receive
the highest rate of pay he or she received prior to the layoff
regardless of any payments received from a buy-out.12
3. PROBATIONARY PERIOD
a. All full-time and part-time employees shall be on probation
for the first thirty (30) days of his or her employment. This
probationary period may be extended for an additional thirty
(30) day period, but only upon mutual agreement.
b. During the probationary period, the Employer may termi-
nate a full-time or part-time employee with or without cause.
However, a full-time employee formerly employed by A&P
who is terminated without cause shall be paid $8,000.00 in sev-
erance pay, and the Employer shall make sufficient contribu-
tions in order to provide the employee with three (3) months of
continued medical coverage after the termination. (no payment
of entitlements) A part-time employee formerly employed by
A&P who is terminated without cause shall be paid in accord-
ance with the following schedule:
Employment
with A&P
Weeks of Buy-out
(based on avg. Hours
of work in prior year)
1-7 years 1 weeks
8-11 years 2 weeks
12-15 years 3 weeks
16 years 4 weeks
c. No person who passes probation shall be disciplined or dis-
charged except for just cause.
5. WAGES
a. All employees hired directly after being employed at A&P
shall be hired at the same rate of pay as he or she received at
A&P.
…
f. The Employer may reclassify a full-time employee to part-
time status within a twelve (12) month period following the ex-
piration of the probationary period but only for objective busi-
ness or economic reasons, and not for any other reason includ-
ing discipline, retaliation, or reasons deemed capricious or ar-
bitrary. Upon reclassification, the employee shall retain his or
her wage rate and all previously-allowed paid time off.
…
9. GRIEVANCE AND ARBITRATION PROCEDURE
a. Any complaint, dispute, or grievance arising between the
parties concerning the interpretation or application of this
Agreement shall be adjusted in the following manner:

12 This language indicates that an employee would not retain recall
rights if he/she were separated during the probationary period.
b. A representative of the Union shall meet with the Employer
or its designee to discuss the grievance. If after such discussion
the grievance is not settled, either party may submit the griev-
ance to a mutually agreed upon arbitrator or if no agreement,
the parties utilize the American Arbitration Association. The
decision of the arbitrator shall be final and binding upon the
parties and the employees and shall conclusively determine the
matter submitted to the arbitrator. The cost of arbitration shall
be borne equally by the parties. The grievance and arbitration
procedure specified in this Agreement is the sole and exclusive
remedy of the parties, and such procedure shall be in lieu of any
and all other remedies at law, in equity or otherwise. No indi-
vidual employee may initiate any arbitration proceeding.
10. DEPARTMENT HEADS
a. All back wall Key Food stores shall have a minimum of one
(1) full-time department head, unless it is a wall-to-wall store,
wherein it must have three (3) department heads.
b. All Key Food stores which are wall-to-wall stores with over
$325,000.00 in sales per week during a two month period shall
have a minimum of four (4) full-time department heads.
11. ADDITIONAL TERMS
a. The parties may negotiate other terms and condi-
tions of employment on or before Key Food be-
gins its business at the former A&P locations.
Other than the terms herein, the terms and condi-
tions of employment between the Union and
A&P shall not be applied to the Employer unless
and until they are negotiated by the parties.
12. FINALITY OF AGREEMENT
a. The parties understand that the Employer is cur-
rently negotiating similar agreements with other
UFCW locals, and agree that the successful nego-
tiation of such agreements is essential before the
agreements herein take effect.
14. Additional Terms
The parties agree that there will be a union security clause,
recognition clause, no lie detector clause, management rights
clause, no discrimination clause, bulletin board clause, and no
employment of minors clause.
During the term of this Agreement, there shall be no lockout by
Employer, and no-strike, picking or hand billing by the Union.
Employees shall not be required to cross a picket line in the
event of safety issues, and a clause will be agreed upon that
permits the waiver of the no-strike clause in the event of a fail-
ure by the Employer to make contributions. with all language
in a these clauses to be agreed upon.
Minimum of four (4) hours if called into work.
Breaks – For FT – 2 15 minute breaks, 1 hour unpaid lunch.
PT – 1 15 minute break for each 4 hours worked. 1 hour unpaid
34 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
lunch (for 8 hours), ½ hour unpaid lunch (for at least 5 ½ up
less than 8 hours).
Overtime – overtime over 8 hours in a day (OT over 10 hours
for an employee working a 10 hour/day, 4 day per week sched-
ule).
Union Visitation – the union representative will advise the em-
ployer of his presence upon arriving at the workplace.
Funds – Employer will continue payment to funds for 13 weeks
for illness or disability. The Union and Funds have the right to
review the Employer’s records.
Funeral Leave – FT – 3 working days. PT – same as FT (pro-
rated) Immediate Family.
Jury Duty – Involuntary Jury duty will be two weeks/year
(Grand Jury 30 working days over the term of the agreement).
Uniforms – the employer will furnish/launder uniforms if re-
quired to be worn. Transfers – ok for employers w/ multiple
stores covered by this Agreement. Subject to reasonable radius
of home or last store location, reimbursement for additional
fairs/tolls/gas.
Shop Stewards – the Union may have one shop steward per
store. 1 day off /w pay per year for training.
Thus, the MOA contains certain “additional terms” that were
not previously included in its September 22 proposal, including
clauses regarding no-strikes/lockout, breaks, overtime, union
visitation, funeral leave, jury duty, uniforms, funeral leave, and
transfers. While similar provisions are contained in the Key
Food industry agreement, the MOA provisions were not identi-
cal or cut-and-pasted from the industry agreement. [GC 80.] For
example, contrary to the Key Food industry agreement, the MOA
adds a requirement that a union representative advise the em-
ployer of his presence upon arriving at the workplace, commits
only to “payments to funds for 13 weeks for illness or disability,”
limits jury duty to 2 weeks per year (verse 30 days), adds re-
strictions on transfers, and eliminates 2 days leave for stewards
to attend training/meetings. [GC 80] [R. 20]. The MOA also
provides that certain additional clauses on union security, recog-
nition, no lie detector, management rights, no discrimination,
bulletin board, and no employment of minors clauses would be
included in the final collective-bargaining agreement (presuma-
bly, after additional negotiations regarding those subjects).
On October 26, Respondent HB assumed ownership of the
store in Howard Beach and Respondent Paramount took owner-
ship of the store in Flushing, New York. These were the first
two A&P stores to transition to Key Food. [Jt. 6].
On November 2, Abondolo’s clerical assistant, Janel
D’Ammassa, sent Catalano a revised MOA that was prepared by
O’Leary. D’Ammassa’s email indicated that it was “sent on be-
half of President Richard Abondolo” and included the following
comments [GC 17]:13
The attached document represents the reflection of my notes
during our discussions. I don’t believe that we are at all at a

13 The email was written by D’Ammassa, not Abondolo. [Tr. 1042]
[GC 17].
difference. I am willing to sit with you any time to discuss the
terms and conditions for the rest of the agreement. Until then,
it is my position that we are covered by the Key Food Industry
Agreement for the following reasons. As you know, your em-
ployer is doing what they want and not following the rules. I
expected this from the beginning, but I’m not very excited
about it. I have complete faith in you that you will get it recti-
fied so that we can move on. But not to have temporary provi-
sions in place would be insane. I hope you could sign off on
that and understand.
….
**Note: Doug, leave the grievance and arb language alone. I
left Kennedy out in good faith. I’m not agreeing to AAA at all.
I put 2 in, you can put 2. But with these guys you’ll probably
lose anyways, they’ll follow no rules.
Contrary to Catalano’s October 22 MOA, the Union’s pro-
posal provided for all former A&P employees to be hired except
seafood department employees (if the store was closing the sea-
food department), all employees who were laid off without cause
(including those severed during probation) would have recall
rights for one year, the reclassification of newly hired full-time
employees to part-time status would only be allowed in lieu of a
layoff, a panel of arbitrators instead of arbitration through AAA,
additional minimum department heads, and additional provi-
sions from the Key Food industry agreement wherever the MOA
did not specifically address the subject. [GC 17.]
On November 13, the Respondents provided the Union with a
redlined MOA reflecting language the Union struck from and
added to the October 22 MOA [GC 19]:
2. OFFER OF EMPLOYMENT
a. Upon the opening of its store, or stores, the Employer
shall offer employment to current A&P employees before hir-
ing anyone else subject to the terms of this agreement. A min-
imum of 50% plus 1 employees will be hired by the Employer
from A&P employees. All employees in UFCW Local 342
shall be offered work, except in the case where the employer is
closing down Seafood Departments in which no cutting, wrap-
ping or processing of fish is involved. The employer shall pay
the Seafood employees a severance as stated below. In addi-
tion, if the employer decides to open a Seafood Department any
time during one (1) year from the date of purchasing the store,
the employer shall call back the Seafood employees to be rein-
stated in their former job at their former rate of pay that they
received from A&P.
…
i. c. Nothwithstanding the above, the Employer
may offer a buy-out to any full-time employee cur-
rently employed by A&P, before the opening of its
store, or stores, or after the probationary period. In
such instance, the Employer shall pay to the employee
$400 per each year of service with A&P. Payment
shall be made of the aggregate amount in four (4)
SEVEN SEAS UNION SQUARE, LLC 35
monthly installements. This buy-out may be volun-
tary, if offered by the Employer, or in lieu of a layoff.
(no payment of entitlements). Buyout in lieu of layoff
for one year from date of hire. This shall be paid to
those employees who are entitled to severance under
the A&P Agreement.
ii. In addition, the employer shall pay $800 per year for
each year of service with A&P for employees who are
not entitled severance under the A&P Agreement.
iii. d. Future layoffs of employees not subject to the
buy-out in 2(c) The employer agrees that all layoffs after
thirty (30) day probationary period shall be by seniority
(the last employee hired shall be the first employee laid
off) within a classification. In case a buy-out results from
a layoff or pursuant to 2(c) above, the affected employee
shall have the right of recall based on seniority (the em-
ployee with the most seniority shall have the first right of
recall) for a period of one year, and shall be entitled to
receive the highest rate of pay he or she received prior to
the layoff regardless of any the classification. All em-
ployees who have been laid off and paid severance shall
also be entitled to three (3) months of medical coverage,
which shall be provided by the employer bb either contin-
uation of current medical coverage, or providing adequate
moneys to cover the COBRA payments received from a
buy-out.
5. WAGES
…
g. The Employer may reclassify a newly hired full-time em-
ployee to part-time status only in lieu of a layoff within a twelve
(12) month period following the expiration of the probationary
period but only for objective business or economic reasons, and
not for any other reason including discipline, retaliation, or rea-
sons deemed capricious or arbitrary. Upon reclassification, the
employee shall retain his or her wage rate and all previously-
allowed paid time off.
. . .
9. GRIEVANCE AND ARBITRATION PROCEDURE
. . .
b. A representative of the Union shall meet with the Employer
or its designee to discuss the grievance. If after such discussion
the grievance is not settled, either party may submit the griev-
ance to a mutually agreed upon arbitrator or if no agreement,
the parties utilize the American Arbitration Association panel
of arbitrators. Each party shall pick two (2) arbitrators. The
Union’s picks are as follows: Elliot Shriftman and Ron Betso.
The decision of the arbitrator shall be final and binding upon
the parties and the employees and shall conclusively determine
the matter submitted to the arbitrator. The cost of arbitration
shall be borne equally by the parties. The grievance and arbi-
tration procedure specified in this Agreement is the sole and
exclusive remedy of the parties, and such procedure shall be in
lieu of any and all other remedies at law, in equity or otherwise.
No individual employee may initiate any arbitration proceed-
ing.
10. DEPARTMENT HEADS
a. All back wall Key Food stores shall have a minimum of one
two (1) (2) full-time department head, and a minimum of three
(3) department heads where a Seafood Department is present,
unless it is a wall-to-wall store, wherein it must have three four
(3) (4) department heads.
b. All Key Food stores which are wall-to-wall stores with
over $325,000.00 in sales per week during a two month period
shall have a minimum of four (4) full-time department heads.
11. ADDITIONAL TERMS
a. The parties may negotiate other terms and conditions of
employment on or before Key Food begins its business at the
former A&P locations. Other than the terms herein, Employer
agrees to follow the terms and conditions of employment be-
tween the Union and A&P shall not be applied to the Employer
unless and until they are negotiated by the parties the Key Food
Industry Agreement unless otherwise spelled out in this agree-
ment, or unless negotiated otherwise.
13. FINALITY OF AGREEMENT
b. The parties understand that the Employer is currently ne-
gotiating similar agreements with other UFCW locals, and
agree that the successful negotiation of such agreements is es-
sential before the agreements herein take effect.
15. Additional Terms
The parties agree that there will be a union security clause,
recognition clause, no lie detector clause, managent rights
clause, no discrimination clause, bulletin board clause, and no
employment of minors clause.
During the term of this Agreement, there shall be no lockout by
Employer, and no-strike, picking or hand billing by the Union.
Employees shall not be required to cross a picket line in the event
of safety issues, and a clause will be agreed upon that permits the
waiver of the no-strike clause in the event of a failure by the Em-
ployer to make contributions. with all language in a these clauses
to be agreed upon. All of the following articles will be covered
by the Key Food industry Agreement, in addition to any others
not stated here. Only those that have been signed off on in this
agreement will change from what is stated in the Key Food In-
dustry Agreement.
Minimum of four (4) hours if called into work. Strike Lan-
guage – Strike Language in the Key Food Industry Agreement.
….
The Union is willing to sit and discuss any terms and conditions
other than those signed off on in this agreement where both
parties have agreed. In addition, it will remain the Union’s po-
sition that until then, the Employer shall be covered by the Key
Food Industry Agreement and this document.
On November 13, the Respondents did not offer any counter
proposal to the Union’s proposal of November 2. Union notes
_
36 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
of the November 13 bargaining session include the following
[GC 18]:
DC: How would you like to precede Lisa, the proposal you sent
is not acceptable. What we had sent to you, I thought we had a
done deal. These proposals are substantially different from the
3 contracts. We already have. Therefore, we are not inclined
and won’t do something different, so it wasn’t reduced to writ-
ing and it wasn’t ratified. I had heard something that we said
was inaccurate which was we would take everyone from day 1
until 30 days, which I never said and would not have said.
Doesn’t mean I won’t hire part timers or full timers, and they
will or will not pass probation. Things like hiring two meat
managers we never agreed to that, I don’t see how it made its
way into this agreement and I don’t see how we can do any-
thing differently and won’t. There are things you put in here
that 1st hour is not minimum wage 1 or 2 little things in here
that are helpful however the substance of change and including
that this is going to be the Key Food, Pick Quick, Mandell, and
Dan’s Supreme contract is not acceptable and I said it to RA
over the phone. We think we came up with a fair proposal that
worked for everyone. The staffing in those stores was extraor-
dinarily high and l think in fact Local 342 concedes it, 338 con-
cedes it, 1500 concedes it. Therefore, we had to come up with
a fair way of making sure these stores would work going for-
ward. The A&P way for sure didn’t work.
Throughout negotiations, the Respondents asserted that the
A&P stores they were attempting to purchase had excess payroll
and, in particular, too many full-time employees. [Tr. 1033–
1034.] In response, Abondolo conceded that the Union Square
store being purchased by Respondent Seven Seas was “heavy”
in that it had a lot of full-time employees. [Tr. 232, 1084–1086,
1744–1749.]
Adverse Employment Actions Taken Against Individual Employees, Respondent Albany Avenue’s
Rules, and the Alleged Interrogation by Frank Almonte
As discussed in greater detail below, the Respondents allegedly took the following unlawful adverse employment actions
5 against the listed employees:
Respondent Adverse Action Employee Date of Action
HB Caused Layoff by A&P Nelson Quiles October 23
HB Refused to Hire Nelson Quiles October 26
Seven Seas Refusal-to-hire Natalie Tirado November 9
Seven Seas Refusal-to-hire Madeline Gomez November 9
Seven Seas Refusal-to-hire Rosa Silverio November 9
Seven Seas Refusal-to-hire Elena Pagan November 9
Seven Seas Refusal-to-hire Tamika Jones November 9
Seven Seas Refusal-to-hire Keesha Fields November 9
Seven Seas Refusal-to-hire Juana Diaz November 9
Seven Seas Refusal-to-hire Jose Carlos Colon November 9
Seven Seas Refusal-to-hire Jerry Simpson November 9
Seven Seas Refusal-to-hire Ricardo Nunez November 9
Seven Seas Refusal-to-hire Dena Iturralde November 10
Seven Seas Refusal-to-hire Maria Ortega November 10
Seven Seas Refusal-to-hire Lucy Maldonado November 10
HB Layoff Venus Nepay November 10
HB Layoff Richard Maffia November 11
HB Layoff Khadisha Diaz November 12
Greaves Lane Reduced work days All unit employees November 25
Greaves Lane Layoff Gina Cammarano November 28
Greaves Lane Layoff Debra Abruzzese November 28
Albany Avenue Layoff Joseph Batiste November 28
Albany Avenue Layoff Kalvin Harris November 28
Greaves Lane Layoff Michael Fischetti November 30
Greaves Lane Layoff Anthony Venditti November 30
Seven Seas Layoff Ayanna Jordan December 26
SEVEN SEAS UNION SQUARE, LLC 37
This section of the decision also describes the alleged unlawful interrogation of Quiles by Frank Almonte on September 6 and the
promulgation of alleged unlawful rules by Respondent Albany Avenue in January 2016.
Respondent HB
Respondent HB purchased the Wauldbaums in Howard Beach
on October 26.14 Prior to the sale, the meat department consisted
of meat manager Nelson Quiles, “first man” butcher Robert
Haenlein, full-time meat wrapper Venus Nepay, and part-time
meat wrapper Khadisha Diaz. Richard Maffia worked in the
Howard Beach meat department as first man from 1996 to 2014.
However, Maffia left Howard Beach in 2014 and transferred to
a Waldbaums in New Utrecht Avenue in Brooklyn to become the
meat manager. The New Utrecht store closed as a result of the
2015 A&P Bankruptcy. [Jt. 6] [Tr. 116, 1405–1409, 1424–1426,
1856–1857, 2162].
On about September 5, apparently unrelated to negotiations
that were taking place with the Respondents, a job action was
undertaken by Locals 338, 342, and 1500 at a Key Food super-
market on Cross Bay Boulevard, Queens, New York. Frank Al-
monte is an owner of the Cross Bay store and the employees of
Cross Bay are not unionized. The store held a block party to
celebrate the anniversary of its first year in business. UFCW
Locals engaged in a demonstration during the block party in or-
der to protest the store’s failure to maintain compensation at area
standards. Local representatives erected an inflatable rat, hand-
billed, and talked to people both individually and with a micro-
phone. The Locals also had a videographer record the job action.
[GC 61] [Tr. 106, 1340–1344, 1347, 1431–1432, 1440, 1506,
1596–1600].
The Cross Bay job action was attended by Quiles. The Un-
ion’s video of the Cross Bay job action shows that Frank Al-
monte was in a position to see Quiles while he was being inter-
viewed by a union representative. [GC 60, 61, 68] [Tr. 1432].
Quiles passed away on September 27, 2016 (prior to the trial
in this case). [GC 59.] The General Counsel sought to enter into
evidence an affidavit that was provided by Quiles during the Re-
gional investigation. In his affidavit, Quiles described what al-
legedly happened on September 6, the day after the Cross Bay
job action [GC 60]:
The following morning, the owner of the Cross Bay Key
Foods, Frank Almonte, and his cousin, (whose name I don’t
recall, but it may have been Armando). They came at around
7:50 am to Waldbaums. I got a call from the girl in the deli

14 This store was referred to on the record as the Howard Beach or
Lindenwood store.
saying that someone was here to see me. I said “for me?” She
said, “yeah, they are asking for Nelson.” I came out from the
meat department to see who it was. Frank and his cousin came
to the back and we were talking in the back part of the store,
right between the deli and the meat department. (There is a dou-
ble swinging door leading to the processing room which is vis-
ible through some glass windows between the deli and the
showcase area).
When I came out, I asked, “who are you.” He said, “I am Frank
Almonte, the owner of Key Foods.” I replied, “I am Nelson.”
And we shook hands. Frank Almonte asked me, “do you think
that was a nice thing that you did?” I assumed he was talking
about the leafleting the day before. I said to him, “business is
business.” He repeated three or four times, loudly and boister-
ously, “do you think that was a nice thing to do.” I felt slightly
threatened. I didn’t know if they were going to come at me front
ways or sideways. I just repeated “business is business.” He
said who sent you. I said, “the Union.” I said “Local 342. “He
and his cousin kept saying, “who in the Union?” I said, ‘the
Union, Local 342” Finally I said, “I have meat to cut, have a
nice day.” And I walked away from him, politely, and went
back to the meat department. I don’t know how long they
stayed there after.
HB Deli employee Angela Querrard testified that, the day af-
ter the Cross Bay block party, Frank Almonte and his cousin An-
thony Almonte came to the Howard Beach store.15 Querrard saw
Frank and Anthony Almonte approach Quiles and talk to him.
The record contains an email dated September 6, 2015, 9:06 am,
from Union Representative Liz Fontanez to Stephen Booras and
Margaret Monier, which states as follows [GC 62]:
Nelson Quiles from Walbaums Howard beach called me that
the store got a visit from the owner of Keyfood on Crossbay.
He told him that it wasn’t right what was done yesterday Nel-
son told well business is business and you need to do the right
thing. He walked away and started talking to the other depart-
ments.
15 At some point, Anthony Almonte replaced Gilbert Almonte as a 50
percent owner of Respondent HB.
Albany Avenue Reduced work days Robert Jenzen Late-December
CS2 Layoff Mariano Rosado January 4, 2016
Albany Avenue Reduced work hours Robert Jenzen Mid-January, 2016
Albany Avenue Demoted Stephen Fiore January 16, 2016
Albany Avenue Reduced wage rate Stephen Fiore January 16, 2016
Albany Avenue Reduced work days/hours Stephen Fiore January 16, 2016
Albany Avenue Layoff Robert Jenzen January 30, 2016
Albany Avenue Layoff Stephen Fiore January 30, 2016
38 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
On October 23, Quiles was laid off. In his affidavit, Quiles
described the events of that day as follows [GC 60]:
On about Friday, October 24, 2015,16 Gilberto Almonte,
Franky Almonte, and another person who I didn’t know went
downstairs with the store manager Davis Britt. They were there
for several hours and everyone was told to stay out. Around
2:30pm or 2:45pm that day, I saw Britt mulling around in the
back of the store, near the entrance of the meat department. I
asked him if everything was ok, because he had a long face. He
said everything was fine.
After about 10-15 minutes, while I was talking to my fellow
coworker, Robert Haegland, a temporary butcher working in
the meat department, Davis Britt came up to us and told
Haegland that he needed to speak to me privately. Britt says to
me, “your position with the company is no longer available’ I
said, “meat manager?” He said, yeah. I said, “what about meat
cutter?” He said, “no, you are done.” I shook hands with him
and said ok. As he was walking away, said, “can I empty my
locker out. He said, do as you have to. On my way out I showed
him what I had taken of my personal belongings in a small box.
The Respondents called Gilbert Almonte to testify regarding
Quiles but did not call Frank Almonte or Britt.
Gilbert Almonte testified that he, Frank Almonte, and Key
Food Retail Operations Manager Kathryn Berliner did meet with
Britt in the basement of the Howard Beach store after having re-
ceived a list of the employees who were employed by A&P at
Howard Beach. At this meeting, the Almontes asked Britt about
the work habits of employees and, based on information they re-
ceived from Britt, determined which employees to keep.17 Ac-
cording to Gilbert, Maffia and Quiles were both on this list of
Howard Beach meat managers. Britt told them Maffia had been
transferred and no longer worked there. Britt also allegedly said
that Maffia’s cuts of meat were better than those of Quiles and
the meat department did more sales when Maffia was at the
Howard Beach store. According to Gilbert, based on this repre-
sentation, the Almontes decided they wanted Maffia to be the
meat manager instead of Quiles. A couple of days before they
took over the store, Gilbert asked the Union to make Maffia
available in place of Quiles. However, Local 342 said they could
not do that because Maffia was working somewhere else. Gilbert
denied that the Almontes ever told Britt to lay off or fire Quiles.18
[Tr. 2173–2174, 2177, 2226.]
After Quiles was laid off, first man butcher Robert Haenlein

16 October 24 was a Saturday and October 23 was a Friday. On Oc-
tober 23, Business Representative Liz Fontanez sent Booras an email,
which stated that Quiles “just called” Fontanez and told her Britt said
Key Food would not be hiring him. [GC 63.]
17 At this or a previous meeting, the Almontes told Britt they would
retain him as store manager once the store was purchased by Respondent
HB. [Tr. 1653]
18 I accepted the Quiles affidavit into evidence over the Respondents’
hearsay objection under Rule 807 of the Federal Rules of Evidence (the
residual exception). I note that Quiles was unavailable because he is de-
ceased and the record contains admissible non-hearsay corroborative ev-
idence that he and the Almontes were where the affidavit places them on
relevant dates. Further, and more importantly, the Respondents made no
attempt to dispute statements in Quiles’ affidavit even though I admitted
began performing the meat manager work that Quiles previously
performed. Haenlein testified that nobody asked him to assume
those responsibilities, but he did so because the work had to get
done. Haenlein was never formally promoted to meat manager
and never received an increase in pay. [Tr. 1330–1331, 1338–
1339.] The record does not demonstrate that the Almontes were
aware that Haenlein assumed the responsibilities of meat man-
ager after Quiles was laid off.
On October 26, Respondent HB purchased and assumed the
operation of the Howard Beach store. Respondent HB hired all
the employees previously employed at the store by A&P but did
not hire Quiles. Gilbert testified that Quiles was not hired be-
cause he was laid off before Respondent HB purchased the store.
[Jt. 6] [Tr. 832].
Haenlein testified that Respondent HB hired two Spanish
speaking butchers when the store transitioned to Key Food and
within a week of Quiles’ layoff. [Tr. 1434.] Union Representa-
tive Liz Fontanez identified them as Elias and Daniel (previously
represented by the Union at a C-Town supermarket). Fontanez
was aware that Daniel and Elias went to work for Respondent
HB because Daniel called and told her. Daniel also told Fon-
tanez he was being paid in cash. Payroll records indicate that
Elias Castillo and Daniel Monegro began receiving paychecks
from Respondent HB on March 11, 2016. [Jt. 14] [Tr. 1529–
1530]. However, Gilbert Almont and HB bookkeeper Marilyn
Diaz testified that Castillo and Monegro were hired in about No-
vember.19 [Tr. 1660, 1664, 2215.]
In late-October, O’Leary called Catalano and told him the Al-
montes committed an unfair labor practice by laying off Quiles
after they saw him at the job action at Cross Bay. Catalano asked
O’Leary not to file an unfair labor practice charge until he had
an opportunity to speak with his clients.
Catalano subsequently advised O’Leary that the Almontes had
requested Maffia by name to be the meat manager and did not
want Quiles back. However, Catalano said Quiles could work at
the Diaz store in Glen Oaks. The Union and employees ulti-
mately agreed to this arrangement. [Tr. 154–156, 2175, 2696–
2699.]
On Monday, November 9, at the Union’s direction, Maffia re-
ported to work at the Howard Beach store. Maffia testified that
he worked the whole day and a time card confirmed he worked
one day for 8.03 hours. Payroll records also indicate that a check
in the amount of 237.48 ($29.50 per hour) dated November 20
for 8.05 hours of work was issued to “Richard Massia.” Gilbert
the affidavit into evidence. In particular, the Respondents did not call
Frank Almonte to deny statements attributed to him on September 6. Un-
der these circumstances, the factual statements in the affidavit of Quiles,
now deceased and unable to testify, have guarantees of trustworthiness
equivalent to other hearsay exceptions in Rules 803 and 804. Accord-
ingly, admitting the affidavit into evidence will best serve the interests
of justice and I confirm my decision to do so.
19 At trial, I sustained a hearsay objection to testimony by Fontanez
that Monegro told her he was being paid in cash. However, Fontanez’s
testimony that Castillo and Monegro were hired and paid in cash is cor-
roborated by the testimony of Gilbert and Diaz in the sense that it would
explain why they were hired in November and did not appear on the pay-
roll until March 11. Accordingly, I reverse my trial ruling and give some
weight to the testimony of Fontanez as corroborated hearsay.
SEVEN SEAS UNION SQUARE, LLC 39
Almonte did not recall a Richard other than Richard Maffia hav-
ing worked in the meat department and he confirmed that $29.50
would be a meat department wage.20 Maffia further testified that
Britt and Gilbert told him he would be off on Tuesdays, so he did
not report for work on Tuesday, November 10. [GC 43] [Tr.
1407–1408, 2217].
Gilbert Almonte testified that Maffia arrived for his first day
(November 9) dressed for work as a butcher, but left before start-
ing and never came back. Gilbert recalled that someone (perhaps
one of the meat department employees) told him Local 342 was
pulling meat department employees out of work. Gilbert de-
scribed that day as hectic and having some calls with his lawyer.
Gilbert did not explain why Maffia’s time card indicated that he
worked eight hours his first day. Further, a position statement
submitted by Catalano to the Region during the investigation of
this matter stated, “Richard Maffia was hired by HB Food Corp.
for one day” and “was thereafter terminated by HB Food Corp. .
. . . ” [GC 78] I find that Maffia did work his first day, Monday,
November 9, and did not work on Tuesday.21 [Tr. 2207, 2175–
2177, 2217, 2227.]
On November 10, Respondent HB laid off part-time meat
wrapper Venus Nepay. Gilbert Almonte told Nepay she was be-
ing laid off because she was “having a lot of problems.” Nepay
testified that she had no history of discipline, but Gilbert told her
about a week before her layoff that she was not wrapping the
meat packages tight enough. Gilbert testified that one of the rea-
sons he laid off Nepay was because she was not wrapping the
packages of meat in a manner that was taught and clear. Gilbert
further testified that other reasons for the layoff of Nepay was
her high wage rate and her failure to follow through on things
she was asked to do. [Tr. 93–96, 2178–2179, 2183.]
On November 11, according to Maffia, he reported to work.
Assistant Manager Danny Ryan asked him what he was doing
there, and Maffia said he was off yesterday and back to work
today. Ryan made a call and then told Maffia, “we don’t need
you anymore.” Maffia told Ryan he thought it was odd to be
requested by name and then laid off 2 days later. On his way out
of the store, Maffia saw Gilbert Almonte. Gilbert said to Maffia,
“sorry we just don’t need you anymore.”22 [Tr. 1409–1410.]
On November 12, Respondent HB laid off part-time meat
wrapper Khadisha Diaz. Gilbert Almonte told Diaz they were
making some changes in the store and were not going to need her
any more. Diaz testified that her mother worked for Local 342
and that Britt knew she was her mother. According to Diaz, her
mother came to the store before it was purchased by Respondent
HB and had a working relationship with Britt (who remained em-
ployed after the sale). [Tr. 1579–1583.]

20 Accordingly, given that the payroll records are consistent with Maf-
fia’s time card, it is reasonable to concluded that Massia actually refers
to Maffia, and Maffia was paid for the day he worked.
21 It is entirely possible that meat department employees did not work
Tuesday, November 10, and Gilbert was advised that they were pulled
out of work by the Union. Gilbert may have conflated Monday (when
Maffia showed up for work) and Tuesday (when Maffia did not work),
thereby believing that Maffia actually showed up and left on Monday.
22 I credit Maffia’s version of events. Although Gilbert Almonte tes-
tified that he did not think Maffia returned to work after showing up the
first day, his recollection was vague, uncertain and inconsistent with
Quiles worked one day in Glen Oaks, but was told not to come
back thereafter because it was a temporary 1-day assignment.
[Tr. 2394, 2695–2700, 2830, 2835.]
At the bargaining session held on November 13, O’Leary ob-
jected to Maffia and Quiles being laid off after one day of work.
O’Leary reminded Catalano he promised to resolve their termi-
nations by placing Maffia and Quiles at Howard Beach and Glen
Oaks, respectively. Catalano first said he did not remember, but
then admitted he did make such a promise. According to
O’Leary, Catalano also said, “you had a demonstration in front
of the Almontes’ other store, and—and put a rat up there; and do
you think that’s right?” Catalano claimed that Quiles and Maffia
did not show up for the positions, and O’Leary told him “that’s
ridiculous; that’s not what happened.” Catalano did not offer to
find the employees other employment and, therefore, O’Leary
said the Union would file an unfair labor practice charge. [GC
18] [Tr. 150–157]
Union notes of the November 13 bargaining session include
the following [GC 18]:
LO: So this just one example of what happens after you guys
do what you did, there is a long list and we will deal with it.
We sent him because that’s would you told us would take care
of that part of the problem and we said good then we won’t file
any charges the other guy will be placed in another store, you
said that is a good resolution. We sent Richard Mafia and they
told him to you out they don’t know why, the other guy we got
which was resolve the other problem, that guy has also been let
go. So no one kept their word about anything. I’m just going
to put that on the table and you can discuss it when we have a
break but that is where we are with that. In addition to that, the
agreement was ppl were going to work for a period of time and
have the opportunity and be able to work, that is not what hap-
pened; listen to what I am saying. No matter what anyone
thinks they can do or has the right to do or has alleged reasons
why they are doing those things, absolutely no one from either
A&P or Key Food called the Union first and said went ahead
and did things that they weren’t supposed to do. I don’t need to
discuss that right now, it will go to litigation. You can try to fix
it, we can try to get an agreement or we can send ppl to litigate.
As ppl are getting laid off we have nothing to tell them. I have
nothing
DC: Do you give anyone advance notice when you put a rat
out in front of a store??
LO: That has nothing to do with what we are here to discuss....
payroll records showing that Maffia worked on November 9. Mean-
while, Maffia was clear and detailed in his testimony, which was con-
sistent with payroll records that established he worked on November 9.
The incident was also more likely to be prominent in Maffia’s mind than
in the mind of Gilbert (who was dealing with, in his words, a hectic sit-
uation). [Tr. 2208] Further, as noted above, Catalano’s position state-
ment to the Region indicates that Maffia was discharged after 1 day. This
statement not only works as an admission that Maffia worked “one day,”
but also that his employment was affirmatively severed by Respondent
HB for cause (i.e., Maffia was “discharged” for not working the previous
day instead of abandoning his job).
40 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
At a bargaining session on November 19, according to Solic-
itor, the Union again objected to meat cutters being let go at the
Glen Oaks and Howard Beach stores without any notice or dis-
cussion with the Union. Solicito testified that Catalano said the
owners did not want to take the employees back because the Un-
ion put up picket lines. [Tr. 957–958.] Union notes of this bar-
gaining session include the following [GC 51]:
DC: The proposal had been for anyone you don’t want gets
$400 that was RA’s proposal. The contract with A&P is 50+1
($800.) - 50% from A&P and 50 from you. It will be difficult
to get Almonte and Diaz into the barn after what happened this
week although we have every interest to get Almonte into the
tent_
LM: I don’t want it, I am handling these guys and they will hop
on the table. It’s been a big problem for us.
DC: To control them has been difficult; l don’t think he will
pay severance. I didn’t know about Maffia, does he have a job
somewhere else?
LM: The co-op will pay severance.
DC: How many were let go?
LS: about 10 ppl
DC: From which stores?
LS: Almonte and Diaz’s store—almost 10 ppl some part timers
mixed in with 22 meat cutters, 613 Glen Oaks, and meat man-
ager.
DC: But he was Iet go from Lindenwood first
LS: Yes but then he was let go from Glen Oaks, 3 full timers.
Meat managers reduce to 30 hours and the wrapper
DC: I don’t know about that I can’t tell Alvin ..... We can have
a new hire rate
LM: They can’t go in and find a friend for $19 an hour. We are
looking to save money
LS: Let’s say in store 613 where they got rid of Nelson, if Jack
gets let go, why doesn’t Nelson come back?
DC: They can’t have those guys come back to the store
DA: Why not
DC: Bc with what Almonte and Diaz went through they won’t
take them back. They don’t have to take them back either. They
can walk in and say this is how it was constructed…
Catalano testified that, on November 19, a discussion of sev-
erance led to a discussion of Maffia and Quiles. According to
Catalano, Abondolo asked, “Will you bring them back?” Cata-
lano claims he responded, “Based on what they did? But you
know what, I’ll ask.” Catalano testified in talking about “what
they did,” he was referring to “illegal acts” engaged in by indi-
viduals involved in the union handbilling. [Tr. 1886–1889.]
Catalano further testified that he spoke to Abondolo by phone
in late-November or early-December and offered to “take back”
Maffia and Quiles, but Abondolo said to “forget it” because he
(Abondolo) would get them jobs somewhere else. [Tr. 1887,
2020–2024.] Abondolo denied that Catalano ever offered any-
body’s job back. [Tr. 1066.] In support of this denial, O’Leary
testified that Quiles, in late-December, was being referred by the
Union for temporary work assignments off the Union’s shapers
list. Quiles did not have enough seniority, among the hundreds
of A&P employees who lost their jobs as a result of the bank-
ruptcy, to obtain permanent work off the Union’s permanent re-
ferral list. O’Leary estimated that about 350 butchers were on
the referral list for permanent work in November. According to
O’Leary, Abondolo would not have told Catalano he would get
Quiles or Maffia a job somewhere else because that was not pos-
sible. O’Leary also testified that it was the Union’s practice to
communicate any and all offers of employment (for example, re-
instatement offers to settle arbitrations) that are made to an em-
ployee and never to reject an offer of employment without talk-
ing to the employee. O’Leary stated that to do so could expose
the Union to an unfair labor practice charge. [Tr. 2684–2695,
2699–2700] [GC 79].
On December 23, Catalano submitted a position statement to
Region 29 which included the following [GC 78] [R. 28]:
Additionally, Richard Maffia was hired by HB Food Corp, for
one day, was thereafter terminated by HB Food Corp., and he,
along with Nelson Quiles, were subsequently offered employ-
ment by F113 Food Corp, through the auspices of Local 342.
Mr. Abondolo of Local 342 specifically stated that they would
either not return to HB Food Corp., or in the case of Mr. Quiles,
not be hired by HB Food Corp. In short, Local 342 precluded
their employment at HB Food Corp., thereby debunking any
claim that their employment or prospective employment was
somehow prevented by HB Food Corp, or that they were the
subject of an anti-union animus. In fact, all employees hired by
Key Food or the named entitles from A&P are in the same col-
lective bargaining unit that they had been in when employed by
A&P. Finally, to eliminate any doubt as to the fact that HB
Food Corp. had offered employment to Nelson Quiles and/or
Richard Maffia to be its Meat Manager, HB Food Corp, uncon-
ditionally, in this letter, offers employment to either one of
them to be Its Meat Manager.
In a conversation that occurred after this position statement
was submitted, Board attorney Noor Alam advised Catalano that
the Region could not convey offers of employment to discrimi-
natees. The evidence does not indicate that Respondent HB
communicated the offer of employment directly to Maffia or
Quiles. Likewise, the record does not indicate that the Region
communicated the offer of employment to the Union. [Tr. 2020–
2024.]
Respondent Seven Seas
Respondent Seven Seas is owned by Paul and Pat Conte. Pat
Conte currently owns seven supermarkets, which are unionized.
The Contes have had bargaining relationships with Local 342 at
various supermarkets since the 1970s. [Tr. 378, 2234–2238.]
The Contes purchased three stores through the A&P bank-
ruptcy, including the Union Square Food Emporium. A&P and
the Union had a collective-bargaining agreement at the Union
Square store covering a wall-to-wall bargaining unit. [Tr. 2239–
2242.]
SEVEN SEAS UNION SQUARE, LLC 41
The A&P contracts contained provisions for full-time employ-
ees in a store that was closing to transfer into a different store on
the basis of seniority. Some full-time employees transferred to
Union Square. As a result, according to Pat Conte, Union Square
had a large number of senior, highly paid, full-time employees.
[Tr. 382–385, 656–660, 1081, 1271–1277, 1617].
Sharon Gowon was the store manager of the Union Square
Food Emporium before the sale of that store to Respondent
Seven Seas. Gowon came to work at Union Square as store man-
ager in about February 2015 and was retained when Respondent
Seven Seas took over. [Tr. 409, 620.] The store manager is the
highest managerial position in the supermarket with authority to
schedule, discipline, and fire employees. [Tr. 381.] The parties
stipulated, and I find that Gowon was a supervisor of Respondent
Seven Seas within the meaning of Section 2(11) of the Act.
Gowon was not called by any party as a witness in this case.23
[Tr. 406.]
Prior to coming to Union Square, Gowon was the store man-
ager for a Food Emporium on 87th Street and Madison Avenue
and, before that, the assistant manager of a Food Emporium on
Sixth Avenue (both located in Manhattan, New York). Gowon
may have worked at a different store between the time she left
87th Street and came to work at Union Square, but the record is
not entirely clear. [Tr. 1215.] The evidence does not establish
exactly how long Gowon worked at 87th Street or Sixth Avenue.
[Tr. 619–620, 1188–1190.]
Union representative Margaret Monier was primarily respon-
sible for administering the Local 342 contract at the Union
Square Food Emporium. According to Monier, she represented
Union Square employees from “about 2009 to when they
closed.” [Tr. 1187.] Monier was also responsible for the 87th
Street and Sixth Avenue stores when Gowon worked at those lo-
cations. [Tr. 1188–1190.]
On November 7, LoIacono called Pat Conte and said “he knew
that the store was very heavy and if we wanted to not hire any-
body to make up a list and to send it to him.” According to Pat,
this “was music to my ears because I know the store was very
over staffed.” [Tr. 2260.] LoIacono did not deny the conversa-
tion.
On November 8, Pat Conte sent LoIacono a list of 17 employees (below) Respondent Seven Seas would not be hiring [R. 2] [GC
70, 72]:
Last Name First Name Department Job Title
Callender Cesar Deli Deli Clerk
Colon Jose Carlos Meat Journeyman B
Delossantos Francisco Produce Produce Clerk
Diaz Juana Grocery Scanning Admin/Coordinator
Fields Keesha Bakery Bakery Manager/Dir/Dept Head
Gomez Madeline Deli Deli Clerk
Henderson Sophie Front End Front-End/Customer Service Clerk
Iturralde Dena Front End Cashier/Checker
Jones Tamika Floral Floral Manager/Dept Head
Maldonado Lucy Seafood Seafood Manager/Dept Head
Nunez Ricardo Grocery Dairy Manager
O’Neal Troy Grocery Night Stock/Packout Clerk
Ortega Maria Deli Deli Clerk
Pagan Elena Front End Cashier/Checker
Silverio Rosa Bakery Bakery Clerk
Simpson Jerry Produce Produce Clerk
Tirado Natalie Store Bakery Bakery Clerk
Respondent Seven Seas ultimately hired the remaining A&P employees, which largely included employees who held the same job
titles as the alleged refusal-to-hire discriminatees. For example, the Respondent hired part-time bakery clerk Wanda Barreto, but did
not hire part-time bakery clerk and alleged discriminatee Silverio. [GC 70; Tr. 1610.] Alleged discriminatees Iturralde and Diaz appear

23 On the record, Respondents’ counsel stipulated that Gowon was a
supervisor while employed by Respondent Seven Seas, but represented
that Gowon left Seven Seas sometime after November 2015 and was not
a supervisor thereafter. [Tr. 406.] The record did not otherwise confirm
Gowon’s departure or indicate when she left.
42 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
to have been the only full-time employees who held their job titles at A&P, but Respondent Seven Seas hired part-time employees in
those job classifications.24 The record does not indicate whether Respondent Seven Seas replaced bakery manager Fields, but a number
of bakery clerks were retained. The record does not indicate whether Respondent Seven Seas replaced floral manager Jones or retained
any employees in the same department as Jones (if she worked in the floral department with other employees). [GC 70, 72.]
On November 9, Respondent Seven Seas formally purchased
and took over the operation of the Union Square store. [Jt. 6.]
On November 9 or 10, Respondent Seven Seas notified those
A&P employees who were not going to be retained.
On December 26, Respondent Seven Seas laid off part-time
scanning employee Ayanna Jordan without notifying or offering
to bargain with the Union. [Tr. 170, 966, 1013, 1035–1036,
1456, 1629.]
Pat Conte was initially called as a witness by the General
Counsel and questioned pursuant to Rule 611(c) of the Federal
Rules of Evidence. Pat testified as follows with regard to the
decision not to hire certain employees [Tr. 386]:
Q Okay. So you asked Sharon, though, to decide which of the
employees would be hired and who wouldn’t; is that correct?
A Yeah. Well, what we did ask her is which employees held
promise and which seemed to be lackluster in their perfor-
mance.
Q Okay. And so she made a list of you -- for you of these lack-
luster employees?
A She didn’t make a list. She told us who she thought would
not work out so well probably, and who was an excellent
worker.
Q Okay. So -- and you relied on her representations?
A In most cases.
Later in the hearing, on direct examination by the Respond-
ents’ counsel, Pat Conte testified that he talked with two other
former Food Emporium employees—Director of Security Mac
McBrien and Produce Clerk Santos Garcia—about which em-
ployees were most productive. According to Pat, McBrien was
particularly well situated to know who was a good worker be-
cause McBrien watched security cameras all day. However, on
cross examination, Pat admitted that he did not mention McBrien
or Garcia in the affidavit he provided during the Regional inves-
tigation. Rather, his affidavit states, “someone from Seven Seas
then asked Sharon Gowon who she recommended we hire out of
the previous employees. Ms. Gowon thus provided a list of em-
ployees she believed were good and which were lackluster in
their performance.” [Tr. 2260–2264, 2286–2287.] On cross-ex-
amination, Pat confirmed that Gowon “did give her opinion at
times.” [Tr. 2287.]
Monier and Diaz testified that they received more complaints
from employees and had more difficulty resolving those com-
plaints after Gowon replaced the prior Union Square store man-
ager, Kevin Smith. The most common problems the Union ad-
dressed with Gowon were scheduling and, to a lesser extent,
safety issues. Monier called Gowon and also came to the store
on a weekly basis to address such concerns. On her trips to the

24 Spreadsheets of the A&P-Union Square employee roster list Ayanna Jordan as a deli clerk, but Diaz credibly testified without contradiction that
Jordan was an assistant in the scanning department. [Tr. 629–630, 641–643.]
store, Monier sometimes walked around with the stewards and
asked employees whether they had additional issues she needed
to know about. Monier and the stewards spoke to Gowon about
these concerns, but with little success resolving them. Accord-
ingly, Monier often called Human Resources. Monier testified
that she was more successful resolving issues with Human Re-
sources than with Gowon. [Tr. 1193–1198, 1207.]
Protected Activity of Employees not Hired by Respondent
Seven Seas and Evidence of Antiunion Animus
Tamika Jones, Union Steward - Jones was hired by Food
Emporium on September 6, 1990 and transferred to the Union
Square store on December 28, 1999. [Tr. 407–408.] Jones was
the primary steward at Union Square from 2002 until the store
transitioned to Key Food. According to Jones, scheduling issues
were the most common complaints from employees and she re-
ceived such complaints at least five times per week. She at-
tempted to resolve those issues with Gowon, and sometimes did
(but sometimes did not). When Jones could not resolve an issue
with Gowon, she called Monier. If Monier came to the store in
person, Jones accompanied Monier when she spoke to employ-
ees and Gowon. Jones estimated that these rounds took two or
three hours. [Tr. 409–413, 442.]
Dena Iturralde, Assistant Union Steward - Iturralde was a
self-checkout cashier and the formal assistant steward who as-
sumed the position when Jones was absent. Iturralde called
Monier when employees had a problem, which occurred about
two or three times per week. If Monier came to the store, like
Jones, Iturralde accompanied her when she spoke to employees
and Gowon. [Tr. 458–464.]
Juana Diaz, Informal Assistant Union Steward – Diaz was
a scanning administrator and assisted Jones in more of an unof-
ficial capacity than Iturralde. [Tr. 618–619.] Diaz was the shop
steward at the 87th Street store from about 1995 or 1996 until
that store closed in December 2014. Diaz and other employees
of the 87th Street store were transferred to Union Square. Diaz
testified that employees who transferred with her from 87th
Street often came to her with employment concerns instead of
going to Jones or Iturralde. Diaz overlapped at 87th street with
Gowon, who was the store manager for about a year before that
store closed. [Tr. 618–620, 625–627, 635–638, 1192–1193.]
Diaz testified that she talked to Gowon about employee sched-
uling issues about seven or eight times per week and safety issues
about one time per week. Diaz felt that Gowon was reluctant to
change the schedule once it was prepared. According to Diaz,
she had a particularly lengthy conflict with Gowon over the
transfer of Gowon’s niece (then an employee at 87th Street) to a
night shift position at a different store. Gowon wanted an em-
ployee with more seniority than her niece to be transferred out of
87th Street, but Diaz objected. This was raised as an issue over
SEVEN SEAS UNION SQUARE, LLC 43
the course of a couple of weeks until Gowon’s niece was ulti-
mately transferred instead of the more senior employee. [Tr.
6216–6223, 625–627.]
When Diaz transferred to Union Square, the Union Square
store manager was Smith. Diaz had fewer problems with Smith
than with Gowon when she replaced him. Gowon often asked
Diaz why she was talking about employee complaints since she
(Diaz) was not a steward. Diaz explained that employees from
the 87th Street still came to her with issues, and Gowon did re-
luctantly speak to Diaz about these matters. [Tr. 619–620, 629,
635–638.]
In addition to acting as a de facto steward, Diaz objected when
her own schedule was changed shortly after Gowon arrived at
the Union Square store. Diaz was moved from a 7 am to 3:30
pm shift Monday through Friday plus five hours at time and a
half pay on Sunday to an 8 am to 4:30 pm shift with a day off
during the week, work on Saturday, and no Sunday hours at time
and a half. Diaz called Monier and they spoke with Gowon about
the matter together. Monier also spoke to Sean Grigals in Hu-
man Resources. Gowon claimed there was no scanning work to
be done on Sunday, but Diaz was allowed to work on a cash reg-
ister every other Sunday. Thereafter, Diaz learned that a less
senior part-time scanner, Ayana Jordan, was doing scanning
work on Sundays. Diaz complained, but Gowon refused to
change her schedule. [Tr. 638–643, 1200–1207.]
Maria Ortega – Ortega was the Union Square café manager.
[Tr. 518.] Although she was never a Union steward, Spanish
speaking employees sometimes talked to Ortega about work-
place complaints. Ortega would notify a steward or the Union
of employee complaints, and sometimes translated for Spanish
speaking employee in conversations with Gowon. [Tr. 528–529,
568.]
Monier sometimes called Ortega at work and these calls were
publicly announced over the speaker system so Ortega could
pick up the line in an office. Ortega transferred some of Mon-
ier’s calls to Gowon. [Tr. 529–530.]
Ortega attended Union meetings and distributed Union mate-
rials she obtained at those meetings in the Union Square store
during her lunch break. Ortega testified that she distributed these
materials openly and that Gowon was in a position to see her
doing so (as well as the Union logo on the literature). Ortega
also testified that she told Gowon on at least one occasion, when
she was waiting in the café’ for the stewards, that she and the
stewards were going to a Union meeting. [Tr. 521–525, 557–
563.]
Ortega had certain workplace complaints of her own that she
brought to the Union’s attention and the Union, in turn, raised
with Gowon. In the winter before the sale of the Union Square
store, Ortega repeatedly complained for nearly a month that the
café where she worked was cold because it was next to a door
that was broken and remained open. Gowon did not have the
door fixed and Ortega notified Monier. Monier came to the store
and spoke to Gowon, who closed the broken door that day. How-
ever, the door was kept open thereafter and Monier reported the
matter to Human Resources. According to Monier, the door was
not permanently shut until she complained to Human Resources.
[Tr. 530–534.]
In about August or September, Ortega was removed from the
Sunday schedule and replaced by part-time employees. Previ-
ously, she worked every Sunday. Ortega and stewards com-
plained to Gowon about this several times. Gowon sometimes
said she did not need Ortega on Sundays and sometimes simply
walked away without saying anything. Monier came to the store
to address the matter, but Gowon refused to schedule Ortega to
work Sundays. [Tr. 421–422, 464–468, 519, 533–541.]
On about November 6, Gowon told Ortega to clean the walls
of the café’ because the store had been sold. Ortega said she
could not clean the walls because she was constantly waiting on
customers. Gowon walked away, but Ortega followed her and
called Iturralde over (who was nearby). Ortega asked Gowon to
schedule her for four hours on Sunday to clean the walls. Gowon
said Sunday is not for cleaning. Iturralde asked Gowon why she
did not want to schedule Ortega to work on Sundays, but Gowon
just laughed and walked away. [Tr. 541–544, 557–563.]
Jose Carlos Colon – Colon was a butcher in the meat depart-
ment at Union Square. Jones spoke to Gowon about Colon being
scheduled for “split shifts” or different hours on different days
of the week. Monier also spoke to Gowon about Colon being
assigned a later shift than he was entitled to on the basis of his
seniority. The evidence does not indicate exactly when these is-
sues arose, but they occurred at Union Square when Gowon was
General Manager (i.e. 2015). [Tr. 420–421, 629–633, 1229–
1230.]
Keesha Fields – Fields worked in the 87th Street Store as the
bakery manager for about five or six years and Gowon was the
store manager there for about the last six months. Fields trans-
ferred to the Union Square store a few months before Gowon
did. In April or May, Fields requested leave to have wrist sur-
gery. According to Fields, Gowon “was giving me a hard time
about that.” Gowon said she had the same problem and it did not
require an operation. Gowon also asked Fields who was going
to run the department while she was on leave. Fields told Jones
about her leave request and Monier spoke to Gowon. Gowon
refused to give Fields the time off she needed and Monier con-
tacted Human Resources. Human Resources agreed to give
Fields the time off. Fields took about one and a half weeks off
for the surgery. [Tr. 419–420, 490–493, 1208–1209.]
According to Fields, after she returned from the operation,
Gowon began treating her differently. Fields testified that
Gowon had a problem if she came in five minutes late or had
difficulty getting product out on the floor on time. Fields admit-
ted that she was a little slower getting food out on the floor fol-
lowing her operation. [Tr. 493–495, 503–504.]
Madeline Gomez – Gomez worked in the 87th Street floral
department before she was transferred to Union Square and as-
signed to the deli in about December 2014. Monier testified that,
initially, Gomez was allowed to make sandwiches or hot food
and was not required to use the deli slicer. However, according
to Monier, Gowon required Gomez to operate the slicer when
she (Gowon) came to the Union Square store. Monier told
Gowon that Gomez did not know how to use the deli slicer, but
Gowon just said, “there’s nothing I can do about it. This is her
job that she has to do.” Monier contacted a manager in Human
Resources and he agreed to train Gomez on the slicer for as long
as she needed in order to get comfortable working with it. [Tr.
1217–1223.]
44 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
According to Monier, Gomez complained about several other
safety issues at Union Square, such as exposed wiring and a
problem with the slicer’s safety switch. Monier estimated that
Gomez called her about four times in 2015. Monier came to the
store each time and had Gomez show the problems to her, the
stewards, and Gowon. Monier testified that Gowon’s body lan-
guage indicated she was not happy in that she would tap her foot,
fold her arms and/or storm off without saying anything. On these
occasions, Gowon also asked Gomez, “why didn’t you just speak
to me about it? Why do you have to call Margaret? I’ll take care
of it.” [Tr. 1217–1223.]
Jones testified that she too spoke to Gowon about Gomez be-
cause Gomez was not always assigned to work two Sundays per
month. [Tr. 416–419.]
Lucy Maldonado – Maldonado was the seafood manager at
Union Square. In about early-2015, Maldonado called Monier
and said her vacation time was incorrect. Monier called Gowon,
who said she would look into it. Monier followed up with
Gowon, but Gowon said she still did not have any information.
Monier then contacted human resources. Maldonado was subse-
quently injured at work and went out on workers compensation.
Monier did not know how or whether Maldonado’s vacation is-
sue was resolved. [Tr. 1228–1229.]
Ricardo Nunez – Nunez was the dairy manager at Union
Square and also worked with Gowon at the Sixth Avenue store.
In about May 2010, at the Sixth Avenue store when Gowon was
the assistant manager, Nunez complained to Monier that he was
not being paid correctly. Monier testified that Gowon handled
most of the personnel matters at the Sixth Avenue A&P store
even though she was the assistant manager. Monier asked
Gowon to correct Nunez’s pay. Gowon told Monier she would
do it, but did not. Monier contacted Human Resources and Hu-
man Resources corrected the error. Nunez received retroactive
pay in the amount of $1,335.83. [GC 54, 70, 72] [Tr. 1225–
1227].
Elena Pagan – Monier testified that Pagan was a deli clerk
who was bumped from full-time to a part-time position and then
complained she was not receiving the minimum number of hours
for a part-time employee. According to Monier, this occurred a
few weeks after Gowon arrived at the store. Monier talked to
Gowon about Pagan not receiving the minimum hours, but could
not resolve the issue. Monier then contacted Human Resources
and was able to resolve it. Monier testified that the Union also
grieved the reduction of some employees from full-time to part-
time, but did not recall whether Pagan was covered by that griev-
ance. [Tr. 1223–1225, 1270, 1294.]
Rosa Silverio – Silverio worked in the Union Square bakery.
Juana Diaz testified that she talked to Gowon every week about
Silverio’s scheduling. According to Diaz, Gowon often sched-
uled a less senior employee named Erma for hours “before” Sil-
verio.25 Further, in about the summer of 2015, Gowon refused
to authorize Silverio to take a day off to have her home inspected.
Jones had a meeting with Gowon about this issue and Diaz was
present. Gowon initially objected to the presence of two shop

25 It is not entirely clear to me what Diaz meant by Gowon putting
Erma “before” Silverio. The General Counsel represented in its brief
that Gowon assigned Erma an earlier shift.
stewards (Jones and Diaz), but ultimately allowed Diaz to stay
as a Spanish speaking interpreter for Silverio. The parties appar-
ently resolved the issue since, according to Diaz, Silverio took
the time off. [Tr. 631–632, 644–646, 1207.]
Jerry Simpson – According to Monier, Simpson complained
that part-time employees were being scheduled for hours he
should have received as a full-time employee. Monier testified
that she thought Simpson raised these complaints in 2014 (before
Gowon arrived at Union Square), but later testified that it could
have occurred in 2015. [Tr. 1235.]
Natalie Tirado – Tirado was a cashier at the 87th Street Store
who had an accommodation to sit down while performing her
job because she had bad knees. Gowon was the store manager
at 87th Street. When the 87th Street store closed, Tirado was
transferred to Union Square. However, Gowon designated
Tirado for transfer to the Union Square bakery department,
where she was not able to sit. Monier asked Gowon why Tirado
was not transferred to a cashier position at Union Square, but
Gowon merely said, “that is where I placed her.” Monier talked
to Smith (then the store manager of Union Square) and Human
Resources. Smith said he had other spots available where Tirado
could work while seated, and moved her to a cashier position.
[Tr. 1213–1216.]
Additional Evidence Presented by the General Counsel in
Support of a Finding of Antiunion Animus
Monier testified that Gowon often appeared angry when she
was told of employee complaints. According to Monier, Gowon
also asked employees why they did not come talk to her directly
instead of contacting the Union. In response, Monier told
Gowon that employees would not need to call the Union if she
fixed things in the first place. [Tr. 1191–1192.]
In about September, after A&P declared bankruptcy, Monier
went to the Union Square store to see if employees had any ques-
tions. On Monier’s way out of the store after the visit, Gowon
asked her, “why are you even here you know … [t]hey don’t
have a union anymore. … [Y]ou don’t have to come see them
anymore.” Monier said, “yes, they do have a union.” [Tr. 1190.]
In about October or early-November, before Respondent
Seven Seas purchased the Union Square store, Iturralde heard
Gowon say “the union is full of shit.” Iturralde asked Gowon
why she said that, and Gowon responded, “well, you don’t see
them here for you guys now, so, they’re full of crap.” [Tr. 468–
469.]
Respondents Albany Avenue and Greaves Lane
Respondents Albany Avenue and Greaves Lane are owned by
Sam and Randy Abed. Respondent Albany Avenue purchased
and assumed the operation of the Pathmark on Albany Avenue
in Brooklyn, New York on November 16. Respondent Greaves
Lane purchased and assumed the operation of the Pathmark on
Greaves Lane and Amboy Road in Staten Island, New York on
November 24. [Jt. 6.] Respondents Albany Avenue and Greaves
Lane hired all the former Pathmark employees at their current
rate of pay. [Tr. 599–600, 604–605.]
SEVEN SEAS UNION SQUARE, LLC 45
Robert Jenzen was the deli manager at Albany Avenue when
the store transitioned to Key Food. He earned $23.19 per hour
and worked 7 am to 3:30 pm Monday through Friday as well as
5 hours on Sunday from 7 am to 12 pm.
Stephen Fiore was the meat manager at Albany Avenue when
the store transitioned to Key Food. He earned $31.33 per hour
and worked the same schedule as Jenzen.
O’Neil Lyons was a butcher at Albany Avenue when the store
transitioned to Key Food.
Randy Abed testified that, after Respondent Greaves Lane as-
sumed the operation, payroll had to be cut because the store was
not doing the business they anticipated. Accordingly, shortly af-
ter Thanksgiving, Respondent Greaves Lane reduced employ-
ees’ days of work from six to five. [Tr. 605.]
In about the middle of the first week, Greaves Lane store man-
ager Steve Rabino told meat cutter and Union shop steward Mi-
chael Fischetti that unit employees were going to be given an
extra day off. [Tr. 709–711.]
Anthony Venditti, a Greaves Lane meat cutter and assistant
steward, learned about the extra day off from meat manager
Dominic Deverso. Venditti approached Rabino and asked
whether there were any other changes he needed to know about.
Rabino said he would check with the new owners. [Tr. 739–
741.]
On November 28, Respondent Albany Avenue laid off
butcher Joseph Batiste and apprentice meat cutter Kalvin Harris
without notifying or offering to bargain with the Union. [Tr.
171, 596–599, 967, 1014, 1456.]
On November 28, Respondent Greaves Lane laid off deli man-
ager Gina Cammarano and seafood Manager Debra Abruzzese
without notifying or offering to bargain with the Union. Abruzz-
ese reported her layoff to Venditti (Abruzzese’s fiancé), and
Venditti asked Rabino why Abruzzese had been laid off. Rabino
just said he was told to lay off Abruzzese and Cammarano.
Venditti asked Rabino what was going on, but Rabino shrugged.
[Tr. 170, 966, 1014, 1366–1367, 1456–1457, 2359.]
On about November 29, the Union engaged in handbilling in
front of the Greaves Lane store from about 10 am to 2 or 3 pm.
Venditti was the acting shop steward that day because Fischetti
was on leave. Monier was present for the handbilling. During
Venditti’s 15-minute break at about noon, he went outside to
hand out leaflets and speak to customers. According to Venditti,
the leaflets indicated that the new owners laid employees off out
of order of seniority and changed employees’ working condi-
tions. Monier testified that she saw owner Randy Abed watching
the handbillers nearly the entire day either from inside the store
looking out the front windows or from outside the store. Accord-
ing to Monier, when Venditti was outside, Randy was clearly
watching him. Monier also testified that Randy was “videoing,
taking pictures.” Monier thought Venditti stood out among the
handbillers because he is a “big guy, very tall,” was wearing a
white meat cutter’s coat, and several customers were speaking to
him. [Tr. 746–748, 1239–1246].
On about this first day of handbilling, Abondolo called Sam

26 The Union handbilled at Albany Avenue or Greaves Lane on a
regular basis through Christmas, and then continued more sporadically.
[Tr. 601–604, 60–610, 1248–1250.]
Abed and asked him to fix the situation by signing a transition
agreement. Sam told Abondolo he was not allowed to do any-
thing without Key Food. According to Abondolo, Sam said he
had signed an agreement that would result in him losing money
if he signed a contract with the Union independently of Key Food
and the other stores. Abondolo told Sam the Union demonstra-
tion outside the store was happening because Respondent
Greaves Lane laid off the deli and seafood manager. Sam replied
that he could not afford to retain those employees because their
wage rates were too high. Sam said he was thinking of laying
off six or seven other employees, including Fischetti and
Venditti. Abondolo offered to take the picket line down if no-
body else was laid off and the Abeds would sit down and talk
with the Union about working something out. Sam said, “okay.”
Sam then went outside and told Monier that Abondolo had
agreed to take the line down. Monier called Abondolo and he
instructed her to stop handbilling. [ Tr. 604, 1008–1012.]
On about the next day, November 30, Respondent Greaves
Lane laid off Venditti and Fischetti. When Venditti arrived for
work, he was called in to speak with Sam and Randy Abed.
Randy asked Venditti if he had spoken to Abondolo. Abondolo
said he had no reason to speak to him. Randy said, going for-
ward, they would only negotiate with Abondolo and nobody else.
Venditti did not understand the comment and did not respond.
The Abeds then told Venditti they were letting him go because
the store was not doing enough business. Venditti noted that the
store had only been open a week and asked how they could tell
if the store was going to do business. The Abeds simply reiter-
ated that the store was not doing enough business. [Tr. 746–
747.]
Randy Abed testified that Venditti and Fischetti were selected
for layoff because they were the least senior employees. How-
ever, Greaves Lane Butcher Justin Conti testified that he and
butcher Vaughn Young had less seniority with the store than
Venditti and Fischetti. A roster that was provided to the Abeds
before they purchased the store confirms that Venditti and Fisch-
etti were not least senior among butchers. According to this ros-
ter, Coughlin was hired on July 17, 2000 and Young was hired
on May 26, 2000. Young did not become a full-time employee
until August 14, 2006. Venditti was hired as a full-time butcher
on July 10, 1995 and Fischetti was hired as a full-time butcher
on September 19, 1994. [GC 72] [Tr. 2613].
About a week or two after Venditti and Fischetti were laid off,
the Union resumed handbilling at Greaves Lane.26 [Tr. 1248.]
On about the day handbilling resumed, according to Greaves
Lane assistant seafood Manager Chris Coughlin, Sam Abed
threatened to fire him if he went outside to join the Union.
Coughlin said “okay” and never went outside to join the Union.
[Tr. 2635.]
Conti also testified that Sam Abed threatened to fire him if he
engaged in handbilling. According to Conti, on December 1,
Sam came into the meat locker where he was working with deli
first person Monserrate Reyes and butcher Antonio Giuffre.27
Abed said he knew the Union was asking them to stand outside
27 Conti did not identify the last name of Munsee (spelled phonetically
in the transcript), but a list of A&P employees at the Greaves Lane store
includes a deli clerk named Monserrate Reyes. Conti identified Tony’s
46 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
on their lunch breaks, but anyone who went outside would not
be allowed back in the store. Giuffre and Conti both told Abed
he could not tell them what to do during their lunch break and
that he was putting them in a difficult position of choosing be-
tween the Union and their jobs. Abed told them it was not a hard
decision at all; you can go out and have no job or you can refuse
to stand on the line with the Union and continue having a job.
About 20 minutes later, Sam came back and told them to work
straight through lunch, which they did. Toward the end of the
day, Sam told Giuffre and Conti they would be fired if they
joined the union demonstration at the end of their shifts. Again,
Giuffre and Conti told Sam he could not tell them what to do on
their own time. After his shift ended, Conti removed his hat
(which he always wears at work), rearranged his hair, changed
his shirt and put on sunglasses in an attempt to disguise himself.
He then joined the handbilling. Giuffre also engaged in the hand-
billing. Conti testified that Sam came outside several times and
looked at him but did not give any indication that he (Sam) rec-
ognized Conti as an employee. Conti also testified that Randy
videotaped him and Giuffre outside. Conti continued to partici-
pate every day the Union handbilled over the next 2 weeks. [Tr.
2614–2616.]
Sam Abed testified that he had no knowledge of employees’
union activities and did not lay off employees on that basis. [Tr.
2325–2331.] Otherwise, Sam did not deny specific events and
statements that were testified to by Fischetti, Venditti, Coughlin,
Conti and/or Monier. Randy Abed was not called as a witness
by the Respondents.
Conti also testified to separations and hiring in the Greaves
Lane meat department after Venditti and Fischetti were laid off.
According to Conti, meat manager Dominick D’Aversa was
fired a few weeks later and was replaced the same day by an in-
dividual named Phil who previously worked at a different Path-
mark store. Young resigned and was replaced by a cutter named
Gene who previously worked at a different Pathmark store. As
noted above, Giuffre was transferred from Greaves Lane to Al-
bany Avenue around Christmas. In about April 2016, Phil was
fired and a meat cutter named Musa was hired. When Phil was
fired, Conti was promoted to the meat manager job without an
increase in pay. Conti testified that Musa worked six days per
week from 10 to 12 hours per day without overtime. Meanwhile
Conti was removed from the Sunday schedule. Sam told Conti
he was removed from the Sunday schedule because they did not
pay Musa the overtime rate. In about late-April 2016, Greaves
Lane hired a meat supervisor. In about June 2016, Conti re-
signed because he was transferred to the night shift and had a
child care conflict.
Sam Abed testified that he believed the October 22 MOA was
in effect and the MOA provided that employees who were laid
off would have recall rights. [GC 16] [Tr. 2328]. Neither
Venditti nor Fischetti were recalled to work by Greaves Lane.
[Tr. 2619–224.]
In about late-December, the Respondents transferred Giuffre
and meat wrapper Sharon Luciano from the Greaves Lane store
to the Albany Avenue store. Albany Avenue payroll records

last name as “Dufay” (spelled phonetically in the transcript). The list of
A&P employees includes a meat cutter named Antonio Giuffre.
show that Luciano received her first paycheck on December 24
and Giuffre received his first pay check on December 31. Mean-
while, according to Fiore, Lyons was temporarily transferred
from Albany Avenue to Greaves Lane between late-December
and January 2016. Albany Avenue schedules show that Lyons
was on the schedule for the period ending December 26, 2017,
off the schedule the next 2 weeks, and back on the schedule for
the week ending January 23, 2016. [Jt. 7.] Fiore noted that Lyons
was sent to Greaves Lane in Staten Island even though he lived
in Brooklyn and Giuffre was sent to Brooklyn even though he
lived in Staten Island. [Tr. 1138–1142.]
After Christmas, Randy Abed told Jenzen his hours were be-
ing reduced. Randy offered Jenzen the option of not working
Sundays or having his schedule changed from 40 to 35 hours
during the week. Jenzen decided to stop working Sundays. Nev-
ertheless, two weeks later, Jenzen’s weekly hours were reduced
from 40 to 35 hours as well. Respondent Albany Avenue did not
notify or offer to bargain with the Union before cutting Jenzen’s
hours on these two occasions. [Tr. 1370, 1566–1567.]
In about early-January 2016, after handbilling had begun at
Albany Avenue, Sam Abed approached Fiore and told him he
cannot leaflet on company time “or else that’s going to be a prob-
lem for you.” Fiore testified that he participated in union hand-
billing at Albany Avenue about six times during his half-hour
lunch breaks and after work. In about the same time-period,
Fiore also engaged in handbilling at the Greaves Lane store on
his day off. Fiore testified that, on this occasion, Sam walked
into the Greaves Lane store about 10 feet from where he was
handbilling. While handbilling at the Albany Avenue store,
Fiore wore a cardboard placard that said Local 342 and told cus-
tomers the store was a nonunion shop that did not have a union
contract. Fiore testified that Randy Abed was outside the Albany
Avenue store with a megaphone at least 1 day during the union
handbilling. Randy said through the megaphone that the Union
was lying and the store was a union shop. According to Fiore, at
the Albany Avenue store, Randy stood about 50 feet from him
and could see him handbilling with an unobstructed view. [Tr.
1145–1149.] Sam and Randy did not deny these facts.
Union handbills distributed at the Albany Avenue and
Greaves Lane stores requested that customers not shop at the
stores because unfair labor practice charges were found to have
merit and a trial would be conducted regarding the case. [GC
34] [Tr. 1161–1164, 1277–1284].
In about January 2016, Respondent Albany Avenue distrib-
uted to employees a document called “Key Food Rules & Regu-
lations” and a Key Food application. Albany Avenue store man-
ager Mike Carlos told employees they had to sign the Rules &
Regulations and fill out the application or they would not have a
job. [Tr. 1154–1155.] These Rules & Regulations contained the
following provisions [GC 25]:
SOLICITATION
Solicitation is defined as the selling of merchandise or services,
charitable contributions petitions of any nature, illegal gam-
bling items, etc. Employees may not directly or indirectly
SEVEN SEAS UNION SQUARE, LLC 47
solicit other associates for any purpose during scheduled work
hours while on company property, Non-Employees are not au-
thorized on company premises at any time for the purpose of
soliciting Key Food. Employees who are approached by a non-
associate soliciting on company property should immediately
report this to store management.
POLITICS:
YOUR COMPANY ENCOURAGES YOUR
PARTICIPATION IN THE POLITICAL PROCESS.
HOWEVER, SUCH ACTIVITY SHOULD BE
RESTRICTED TO YOUR OWN TIME AND BE
CONDUCTED AWAY FROM COMPANY PROPERTY.
NO POLITICAL OR LEGISLATIVE PETITIONS SHALL
BE CIRCULATED ON COMPANY PROPERTY
There is to be no loitering in any specific department at any
time. (example: no loitering in the deli department company
time or off company time. no loitering in any department on
your day off.)
IT IS IMPOSSIBLE TO COVER EVERY SINGLE ACT OR
MATTER: HOWEVER, ALL EMPLOYEES ARE
EXPECTED TO CONDUCT THEMSELVES PROPERLY
AT ALL TIME. IMPROPER CONDUCT OR MATTERS,
EVEN THOUGH NOT SPECIFICALLY MENTIONED
HEREIN, WILL SUBJECT THE EMPLOYEE TO
DISCIPLINE.
On about January 16, 2016, Sam Abed told Fiore he was being
demoted from meat manager to butcher and would have his
hours reduced from 40 to 35 hours with no Sundays because he
(Fiore) was making too much money. Sam did not deny this.
Fiore thought his pay would be reduced from $31.33 to the “A
Butcher” rate of $29.55, but his pay was reduced to $25 per hour
instead. When Fiore realized his pay was being reduced to $25
instead of $29.55 per hour, he asked Carlos about his pay and
Carlos referred him to Sam. Fiore texted and left voice mail
messages for Sam but received no response. [Tr. 1155–1158.]
Fiore testified that, when he was demoted, Lyons was trans-
ferred back from Greaves Lane to replace him as the meat man-
ager. According to Fiore, when he returned to Albany Avenue,
Lyons was earning $20 or $25 per hour (not Fiore’s meat man-
ager rate of $31.33).28 Albany Avenue schedules confirm that
Lyons returned to the store and was on the schedule for the week
ending January 23, 2016. The schedules also show that Lyons,
upon his returned, was scheduled to work more than 40 hours per
week while Fiore was scheduled to work 35 hours. [Jt. 7–8] [Tr.
1155–1158].
Fiore testified that he never received any sort of written or
verbal discipline or reprimand while employed by Respondent
Albany Avenue. [Tr. 1152–1153.] Sam Abed testified that Fiore

28 Albany Avenue payroll records do not contain hours worked. How-
ever, the schedule for the week ending January 30, 2016 indicates that
Lyons was scheduled to work “40+4” hours and his gross pay the next
pay date was $1,129.90, including payment of $150.06 at the “Sunday
1.5 rate.” If Lyons worked 4 hours of overtime at time and a half on
Sunday, his hourly rate calculates to $25.06. If you remove Lyon’s over-
time pay and assume the remainder reflected his pay for 40 hours of work
during the week, his hourly rate calculates to $24.49. [Jt. 8.]
was written up several times and demoted but could not find all
those disciplinary records.29 [Tr. 802.]
On January 30, 2016, Respondent Albany Avenue laid off
Fiore and Jenzen without notifying and offering to bargain with
the Union. Randy Abed told Jenzen the store could no longer
afford to pay him. At trial, Fiore testified that Randy told him
his services were no longer needed without providing a reason.
In an affidavit Fiore provided to the Region, Fiore indicated that
Randy said, “the meat department was not working out the way
that they wanted it to and that he was going to have to let me go.”
[Tr. 171, 967, 1014, 1369, 1167.]
Schedules and payroll records indicate that Respondent Al-
bany Avenue added another meat department employee named
Anthony Remo in February 2016.30 Like Lyons and unlike
Fiore, Remo was scheduled to work more than 40 hours per
week. [Jt. 7–8.]
Albany Avenue payroll records indicate that gross pay for the
meat department actually went up after Fiore was laid off. On
the pay dates of January 21, 2016 and January 28, 2016, gross
pay for the meat department employees was $4,324.86 and
$4,360.16, respectively. On the pay dates of February 11, 2016
and February 18, 2016, gross pay for meat department employ-
ees was $4,488.98 and $5,153.08, respectively. [Jt. 8.]
The Abeds called the police every day the Union handbilled
at one of their stores. At some point, the Abeds prepared their
own handbills and handed them out to customers. [Tr. 604, 608–
610, 1248] [GC 33–35, 56].
Respondent CS2
CS2 (owned by Respondent Key Food) purchased and as-
sumed the operation of the Waldbaums supermarket on Francis
Lewis Boulevard in Bayside, New York on November 2.
Full-time butcher Mariano Rosado was among the
Waldbaums employees that CS2 hired when the store transi-
tioned to Key Food. On about January 3, 2016, store manager
Larry Johnson gave Rosado a severance agreement and told him
he had seven days to sign in or he would lose his severance. [Tr.
1325–1326.] Rosado consulted Fontanez, who advised Rosado
not to sign the severance agreement. Rosado signed the sever-
ance agreement anyway and received an $8000 severance pay-
ment. [Tr. 1333.] CS2 never notified the Union directly that em-
ployees would be presented with severance agreements and did
not provide the Union with a copy of the severance agreement.
[Tr. 170–171, 966–967, 1013–1014, 1366–1369, 1456–1458.]
By email to Catalano on January 26, 2016, O’Leary objected to
Key Food stores dealing directly with employees by issuing sev-
erance agreements to Rosado and one other employee. Catalano
responded the same day, indicating that he would “determine the
facts,…” [GC 23.]
The record does not indicate that any of the named employees
29 While questioning Sam Abed, the General Counsel indicated that
two disciplinary records regarding Fiore were produced by the Respond-
ents in response to a subpoena. However, no disciplinary records regard-
ing Fiore were entered into evidence.
30 Weekly schedules refer to “Tony R” and payroll records show the
addition of “Anthony Remo.”
48 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
at issue in this case, other than Rosado, received severance from
the Respondents. [Tr. 427, 470, 580, 653, 715, 748, 1159, 1496,
1572.]
End of Negotiations
On November 19, during a bargaining session, the parties
largely reaffirmed their positions. Catalano indicated he could
accept a severance provision for part-timers but stated (as he had
before) that the stores intended to keep the part-time employees.
Catalano also indicated that he could accept a provision regard-
ing full-pay for the first hour of work each week. The Union
reiterated its position on severance that the new Key Food em-
ployers would make up the difference of any shortfall if A&P
did not pay severance, noting that employees hired by A&P after
certain dates were not entitled to severance. Thus, A&P would
pay $400 per year and the Respondents would pay $400 per year
for employees hired before the severance cutoff date, while the
Respondents would pay the full $800 per year (with no A&P
severance) for employees hired after the severance cutoff date.
The Union also indicated that all laid off employees should be
reinstated. [GC 51.]
O’Leary testified that, after the November 19 bargaining ses-
sion, Catalano called her and said negotiations were suspended
because the picket lines went up. [Tr. 158–161.]
On November 22, by text, Solicito asked Catalano to schedule
another bargaining session the next day. Catalano responded,
“No I have a hearing but pull the pickets.” Solicito asked
whether Catalano was refusing to meet because of the picket
lines, and Catalano responded “No we can meet after Thanksgiv-
ing—are you thinking that my guys will give in because of your
threats? No chance.…” Catalano also asked Solicito to “put in
writing your proposals….” [GC 52.]
On November 24, the Union emailed the Respondents a re-
vised “Transition Agreement Proposal,” which modified the
“Offer of Employment” provision to read as follows [GC 20]:
a. The employer agrees to offer a buy out to any full time
employee who was employed by A&P prior to being
hired by the employer, who is terminated for any reason
during the probationary period and/or for just cause any-
time thereafter. In such instance the employer shall pay to
the employee S800 per week for each year of service with
A&P if that employee did not receive severance from
A&P. For employees who received A&P severance, the
employer shall pay those employees S400.00 for each
year of service with A&P. This includes employees the
employer let go or submitted to be let go by A&P prior to
the acquisition.
b. Layoffs shall be by seniority (the last employee hired shall
be the first employee laid off) within classification. In
case a buy-out results from a layoff, the affected em-
ployee shall have the right of recall) for a period of one
year, and shall be entitled to receive the highest rate of pay
he or she received prior to the layoff regardless of any
payments received from a buy-out as described paragraph

31 In the October 22 MOA, the Respondents indicated that part-time
employees who average 30 hours per week would be offered healthcare
coverage.
“a” above. For purposes of layoff, A&P employees sub-
ject to this agreement will keep their original A&P Com-
pany hire date within the acquired group or store.
The Union’s November 24 proposal also modified the proba-
tionary period proposal to provide that employees terminated
during probation would receive the buyout described in para-
graph (a) of the Offer of Employment, eliminated a provision for
buyouts to be paid to part-time employees, added a provision that
restricted the use of part-time cutters, added a provision requir-
ing newly hired meat employees to be paid at least $10 per hour,
altered the healthcare provision, reduced contributions to the re-
tirement annuity fund for each full-time employee from $200 to
$140, added provisions for contributions to a Legal Fund and a
Safety Education and Cultural Fund, added a provision restrict-
ing the use of part-time cutters, reduced the number of depart-
ment heads to one department head for each department, reduced
the duration of the contract to 36 months, and incorporated by
reference “additional terms” from the Key Food industry agree-
ment.
On November 25, Konzelman responded by email to the Un-
ion’s November 24 proposal provision by provision. With re-
gard to the “Offer of Employment” provision, Konzelman stated
that the “language is ambiguous,” but otherwise agreed to the
concept of $800 severance for each year of service with Key
Food paying $800 for employees who did not receive severance
from A&P and $400 for employees who did receive severance
from A&P. The union buyout language referred to any former
A&P employee “who is terminated for any reason during the
probationary period and/or for just cause anytime thereafter,”
whereas Konzelmen countered that payments would “only be
provided to those employees who were not hired by our Mem-
bers.” Nevertheless, Konzelman accepted the Union’s proba-
tionary period proposal, which applied the buyout provision to
employees terminated during the probationary period. Konzel-
man countered that part-time cutters needed to work at least 32
hours per week on average to receive healthcare coverage,31 a
$10-per-month contribution to the Safety Educational and Cul-
tural Fund, a $5 contribution to the Legal Fund, arbitration with
AAA unless an arbitrator is otherwise agreed upon, a minimum
of only one department head for back-wall stores (even if Local
342 represents multiple departments), expanding the allowable
use of part-time cutters, a contract duration of 42-months, a no-
strike clause that prohibits “hand billing, informational picket-
ing, or depictions during the length of the CBA,” and a union
security clause that did not require the termination of an em-
ployee upon termination of union membership. In addition,
Konzelman indicated that references “to the A&P or Key Food
industry agreements should be deleted, and certain of those [ad-
ditional terms] listed need to be discussed.” Konzelman agreed
to the Union’s proposals with regard to hours, wages, paid time
off, Annuity Fund, breaks, overtime, union visitation, four hours
minimum overtime, funds, funeral leave, jury duty and shop
stewards. [GC 21.]
SEVEN SEAS UNION SQUARE, LLC 49
On November 27, Abondolo responded by email to Konzel-
man as follows [GC 21]:
There is very little we are willing to change, you were able to
achieve most of your ask there are certain things that we will
need regardless
The most important of all is the list of people we have for sev-
erance we need to get that agreed on before we talk about
changes if an at all
A list of people with the amounts will be sent today and you
could let us know that its agreeable or if there is any problems
Our understanding is that all that were in the store working that
your people fired will receive severance of 800 per year of ser-
vice or 400 per year of service with the AP depending on their
status where they fall in our formula with no cap, and the em-
ployee will be required to sign an acceptable release that’s what
we understand is the proposal
In letters dated December 1, 2015, O’Leary wrote directly to
the member-owners and demanded bargaining independent of
Respondent Key Food. [GC 22.] Catalano responded that
O’Leary had no right to bypass him and contact individual own-
ers directly. [Tr. 175] [GC 23].
Nevertheless, in December, Solicito and LoIacono met with
Paul and Pat Conte. According to LoIacono, Paul Conte com-
plained that Sunday overtime was very expensive.
The Union indicated it would not bargain away the benefits of
current employees but would discuss new hires. Paul said there
is nothing to work out because Local 342 employees “don’t co-
operate like other stores” in that they will not work off the books.
Paul then abruptly said he had a doctor’s appointment and ended
the meeting. [Tr. 1454–1456.]
After the Respondents took over the operation of their respec-
tive stores, certain stores attempted to forward dues and welfare
fund contributions pursuant to the provisions in the MOA. The
Union and the welfare fund rejected this money on the grounds
that it did not have contracts with the Respondents. As a result
of the rejected contributions, employees at the Respondents
stores lost medical coverage through the Union’s welfare fund.
[Tr. 1179–1181, 1908, 2108–2111, 2332–2333, 2482, 2779–
2781.]
According to O’Leary, in about February 2016, she called
Catalano and asked for bargaining dates. O’Leary testified that
Catalano refused to agree to dates because the parties “had a
deal.” [Tr. 180.] Catalano denies that the Union contacted him
for bargaining dates from Thanksgiving to June 2016. [Tr.
2055.]
On June 27, 2016, O’Leary sent Konzelman and Catalano an
email indicating the Union was available for bargaining on cer-
tain dates in July 2016. O’Leary followed up with emails on
June 30, July 1, 5 and 6, 2016, but received no response. On July
7, 2016, O’Leary sent an email to Catalano confirming, as fol-
lows, a phone conversation earlier that morning [GC 24]:
I send this email to memorialize our phone conversation this
morning, wherein you advised me that your legal position, on
behalf of Key Food, is that there is a contract with Local 342
already and thus there is no need to bargain. You stated that
Local 342 had a Complaint issued and so you were going to
litigate it. Local 342 will respond accordingly to the
employer’s refusal to bargain. Please be advised that Local
342’s demand to bargain is continuing, as our position is there
is no contract, there is no impasse, and that Key Food has the
obligation to bargain with Local 342 in good faith to reach a
mutual agreement. Local 342 suggests that the employer re-
think its position, and meet to bargain with FMCS facilitat-
ing/assisting with the bargaining. Thank you for taking my call
this morning, and should Key Food wish to bargain in the fu-
ture please contact me for dates.
ANALYSIS AND CONCLUSIONS
I. SECTION 8(A)(5) AND (1) ALLEGATIONS
Unilateral Layoffs
The General Counsel contends that the Respondents unilater-
ally laid off 13 employees without notifying and offering to bar-
gain with the Union over those layoff decisions in violation of
Section 8(a)(5) and (1) of the Act.
It is well settled that the decision to lay off employees is a
mandatory subject of bargaining. N.K. Parker Transport, 332
NLRB 547, 551 (2000); Winchell Co., 315 NLRB 526, 530
(1994); Holmes & Narver, 309 NLRB 146, (1992); NLRB v. Ad-
vertisers Mfg. Co., 823 F2d 1086, 1090 (7th Cir. 1987) (“Laying
off workers works is a dramatic change in their working condi-
tions” and thus “[l]ayoffs are not a management prerogative [but]
a mandatory subject of collective bargaining”). Where a layoff
occurs solely for economic reasons, the union has the right to
bargain over the layoff decision itself and not just the effects of
that decision. Lapeer Foundry & Machine, 289 NLRB 952,
953–954 (1988).
The Respondents raise a number of defenses to the allegation
that they failed to notify and bargain with the Union regarding
layoffs. First, the Respondents contend that the parties agreed to
a contract which entitled them to unilaterally lay off employees
at their discretion as long as the severed employees were paid a
monetary buyout. That is, the Union allegedly entered into a
collective-bargaining agreement that, through the buyout provi-
sion, waived its right to bargain over future layoffs. Second, re-
gardless of the existence of a contract, the Respondents contend
that they were entitled to unilaterally set initial terms and condi-
tions of employment, including the buyout provision. Third, the
Respondents contend that they did, in fact, engage in bargaining
over the layoffs. For reasons discussed below, I reject the Re-
spondents defenses and find that the Respondents violated Sec-
tion 8(a)(5) and (1) of the Act by unilaterally laying off employ-
ees.
The Existence of a Collective-Bargaining Agreement
The party relying on a contract has the burden of proving its
existence. H. Koch & Sons, 220 NLRB 1103, 1109 (1975). This
burden requires proof by objective evidence that negotiations
manifested a “meeting of the minds” as to all substantive issues
and materials terms. Crittenton Hospital, 343 NLRB 717, 718
(2004).
As discussed below, I find that the Respondents failed to es-
tablish by a preponderance of the evidence the existence of a
contract containing a union waiver of its right to bargain over
layoffs. However, I initially note that the Respondents’ burden
of establishing a waiver is one of “clear and unmistakable”
50 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
evidence rather than a “preponderance of the evidence.” Na-
tional labor policy favors bargaining and “disfavors waivers of
statutory rights by unions.” Chesapeake & Potomac Telephone
Co. v. NLRB, 687 F.2d 633, 636 (2nd Cir. 1982) cited with ap-
proval in Metropolitan Edison Co. v. NLRB, 460 U.S. 693
(1983). See also Suffolk Child Development Center, Inc., 277
NLRB 1345, 1349 (1985); Harte & Co., 278 NLRB 947, 950
(1986). Accordingly, “before a waiver of a duty to bargain can
be found, there must be clear and unmistakable evidence of the
parties’ intent to waive this right” and “such evidence is gleaned
from an examination of all the surrounding circumstances in-
cluding but not limited to bargaining history, the actual contract
language, and the completeness of the collective-bargaining
agreement.” Columbus Electric Co., 270 NLRB 686 (1984).
Thus, the party relying on a bargaining waiver must not only
prove by clear and unmistakable evidence that the contract lan-
guage confirms such an intent but must also establish by clear
and unmistakable evidence that the contract containing such lan-
guage was actually agreed upon and in effect. Often, the exist-
ence of a contract is not in question, but here it is.
The Respondents contend that Abondolo agreed to their con-
tract proposal during a side-discussion with Catalano on October
21 and that the October 22 MOA reflected this agreement. The
MOA consisted of the September 22 proposal and additional pro-
visions that appear to be derived from, but were not identical to,
certain clauses in the Key Food industry agreement. The MOA
also indicated that certain additional terms would be included in
the final collective-bargaining agreement, presumably after ad-
ditional negotiations. Therefore, the Respondent effectively
claims that there was a verbal modification of its September 22
proposal between the date of that proposal and October 21 such
as to include additional provisions and reserve other provisions
for bargaining at a later date. However, this assertion is at odds
with Catalano’s testimony that he understood Abondolo, during
their side-discussion on October 21, to have accepted the Re-
spondents’ September 22 proposal with the exception of a single
modification to the buyout provision.
Catalano’s notes of the October 19 bargaining session do in-
dicate that the parties verbally reviewed the Respondents’ pro-
posal of September 22 and the Key Food Industry agreement.
Catalano entertained the idea of using certain non-economic pro-
visions of the Key Food industry agreement to supplement the
September 22 proposal, but rejected the Union’s proposal to use
the entire industry agreement unless the parties specifically
agreed to something different. O’Leary entertained the idea of
using portions of the Key Food industry agreement to supple-
ment the Respondents’ September 22 proposal, but did not agree
to the entire September 22 proposal or to forgo certain provisions
of the Key Food industry agreement that addressed subjects not
contained in the September 22 proposal. Likewise, the evidence
does not establish that the parties agreed to include in a contract
certain provisions from the Key Food industry agreement as
modified by the MOA (e.g., Jury duty leave reduced from 30

32 It is noteworthy that the Respondent ended the October 19 bargain-
ing session by offering to hire all A&P employees other than seafood
employees in stores where the seafood department was being eliminated,
and Catalano began the October 21 bargaining session by confirming that
days to two weeks or the elimination of two days of leave for
stewards to attend trainings/meetings). I also credit O’Leary’s
testimony that the Union, at all times, refused to accept a partial
agreement with additional provisions to be negotiated at a later
date. Thus, the Respondents did not establish that the October
22 MOA accurately reflected an agreement between the parties.
Indeed, the Respondents failed to establish that Abondolo ac-
cepted any contract proposal during his side-discussion with Cat-
alano. Catalano did not recall Abondolo’s exact words, and the
exact words are important. Over the course of his testimony,
Catalano described the side-discussion in different ways, attrib-
uting to Abondolo such statements as “we agree, but I want to
talk to you about the $800 and the $400”; “we have an agree-
ment”; “we’ll agree to what you want”; “we’re good to go”; “I
want to raise one thing with you”; “we’re done”; “we have a
deal”; “we’re good”; “we agree to what you’re asking for”; “we
agree to what you are proposing”; and “I agree to your proposal.”
Catalano’s testimony in this regard does not make clear whether
Abondolo was referring to a contract proposal or to the Respond-
ents’ concept of a buyout provision with a modification to the
amount of money an employee would receive if he/she were
bought out. It is undisputed that Catalano and Abondolo only
discussed the buyout provision and no other provisions during
their brief side-discussion. Neither Catalano nor Abondolo took
notes and they did not exchange or refer to any contract pro-
posals. When Catalano and Abondolo returned to the larger
group, Catalano did not indicate that the parties had reached an
overall contract. He merely referenced Abondolo’s modified
proposal on the buyout provision and indicated that he would at-
tempt to draft an MOA in lieu of an additional bargaining ses-
sion. Even if I were only to consider the testimony of Catalano,
I would not conclude that Abondolo clearly communicated any-
thing more than the Union’s willingness to accept the Respond-
ents’ concept of discretionary layoffs (as opposed to an ac-
ceptance of the Respondents’ entire contract proposal) in ex-
change for an increase in the amount of payment (i.e., $800 per
year of service without a cap in the years). Moreover, Abondolo
adamantly and credibly denied that he agreed to the Respond-
ents’ contract proposal, including a provision which would allow
the Respondents not to hire some A&P employees and the use of
AAA for arbitration.32
The interaction between the parties when Catalano and
Abondolo returned from their side-discussion suggests they be-
lieved they had reached agreement on a buyout provision and
were hopeful that this breakthrough on what had been a promi-
nent dispute between the parties would allow them to conclude
negotiations. However, the parties did not indicate a mutual un-
derstanding that all the terms had been agreed upon or that re-
duction of the contract to writing was simply a ministerial for-
mality. After speaking to Abondolo separately, Catalano came
back to the larger group and indicated that Abondolo “suggested
off the record a different model” for computing the buyout. As
reflected in Union notes, Catalano said, “tomorrow rather than
proposal. This was a significant concession long sought by the Union and
it would have been a dramatic reversal for Abondolo to propose a buyout
that allowed Respondents not to hire A&P employees immediately after
the Respondents finally conceded the point.
SEVEN SEAS UNION SQUARE, LLC 51
meet I will prepare something send it to you with these kinds of
concepts,” and Abondolo said “we will work through the lan-
guage.” As noted above, Catalano did not say he and Abondolo
discussed or agreed upon a full contract of all outstanding provi-
sions. Sam Abed testified that Abondolo told him “everything
was going to be worked out” and Diaz testified that Abondolo
told him “I think we have a deal.” These are not statements in-
dicating certainty about the current existence of an agreement.
Although I do credit the testimony of Respondent’s witnesses
that Abondolo shook their hands, I also credit the testimony of
O’Leary and Booras that there was not a prominent or ceremo-
nial shaking of hands among all the participants such as to sug-
gest a mutual understanding that negotiations had been con-
cluded.
The parties’ subsequent exchange of written proposals con-
clusively demonstrated that they were not in agreement. The
Union’s November 2 response to the Respondents October 22
MOA demanded, among other things, that all A&P employees
be hired except seafood department employees if the store was
closing the seafood department (as the Respondents’ offered on
October 21), at least two department heads, and a complete
agreement that used provisions of the Key Food industry agree-
ment unless otherwise addressed in a memorandum of under-
standing executed by the parties. The Union’s positions in these
respects were consistent with the positions it took throughout ne-
gotiations.
It is important to consider the side-discussion in the context of
negotiations as a whole and the ambiguity of evidence in support
of the existence of a contract versus the clarity of evidence to the
contrary. While a collective bargaining agreement can be con-
cluded verbally, the technical rules of contract—offer and ac-
ceptance—need not be applied in a formalistic way in the context
of collective-bargaining. The parties held 14 bargaining sessions
over about four months, exchanging written proposals and keep-
ing notes in the process. As of October 21, the status of negoti-
ations and the positions of the parties were, at best, ambiguous.
On October 19, the parties reviewed the September 22 proposal
and Key Food industry agreement but did not agree to what ex-
tent those documents should be used and incorporated into a con-
tract. Abondolo and Catalano did not have or make reference to
the September 22 proposal or Key Food industry agreement dur-
ing their side-discussion. Ultimately, thereafter, the written ex-
change between the parties made clear that they were not in
agreement. In this context, it hardly seems proper that a lengthy
well-documented bargaining process resulting in the alleged ex-
istence of a multi-year agreement that purports to cover hundreds
of employees and waive the rights of those employees to bargain
over a subject as important as layoffs should be determined by
seizing upon a brief ambiguous “off the record” discussion (so
described by Catalano) as opposed to the clear and unambiguous
writings of the parties.
The Respondents contend that, even if the parties did not reach
agreement on October 21, they reached agreement on November
24. I do not agree. The Union emailed the Respondent a

33 The Respondents contest that Respondent Key Food and the other
Respondents are joint employers. However, as discussed below, I reject
the Respondents’ position in this regard.
proposal on November 24 and it contains language that, accord-
ing to the Respondents, adopted its buyout provision. However,
by November 24, there were several open items other than buy-
outs. On November 25, Konzelman sent the Union an email that
responded to each provision of the Union’s November 24 offer
and listed several items that were still in dispute. The disputed
items included differences in the health and welfare plan, contri-
butions to funds, use of AAA for arbitration, the number of de-
partment heads, the number and hours of part-time cutters, and
the inclusion of provisions from the Key Food industry agree-
ment. There being a number of open disputed items, a contract
was not yet complete and the Respondents were not entitled to
implement individual provisions, including a buyout provision
that would have allowed for unilateral discretionary layoffs.
Unilateral Implementation of the MOA in the Absence of a
Collective-Bargaining Agreement
Regardless of the existence of a contract, the Respondents
contend that they were entitled to implement the MOA, includ-
ing the buyout provision, as the initial terms of employment for
newly hired A&P employees. In this regard, the Respondents
claim they were not “perfectly clear” successors under NLRB v.
Burns Intern. Security Services, 406 U.S. 272 (1972). The Re-
spondents also contend that the APA, as approved by the order
of Judge Drain in bankruptcy court, entitled them to implement
their “last best offer.” As discussed below, I do not agree.
Perfectly Clear Succession
A successor employer has a duty to recognize and bargain
with an incumbent union where there exists a continuity of the
enterprise and a continuity of the work force. With regard to the
second element, continuity of the work force, the Union will be
presumed to have majority support once the successor hires a
“substantial and representative complement” or “full comple-
ment” of unit employees and a majority of those unit employees
were employees of the predecessor. NLRB v. Burns International
Security Services, Inc., 406 U.S. 272 (1972); Fall River Dyeing
& Finishing Corp. v. NLRB, 482 U.S. 27 (1987). Here, the Re-
spondents admit they did not significantly change the nature of
the enterprise and that a majority of the employees they hired
were former unit employees of A&P. Accordingly, the Respond-
ents were successors of A&P.33
Ordinarily, a successor may set the initial terms of employ-
ment of unit employees and bargain from that baseline once suc-
cessorship status is established. NLRB v. Burns International
Security Services, Inc., 406 U.S. 272 (1972). However, this is
not the case when succession is “perfectly clear.” In Burns, 406
U.S. at 294–295, the Supreme Court stated:
Although a successor employer is ordinarily free to set initial
terms on which it will hire the employees of a predecessor,
there will be instances in which it is perfectly clear that the new
employer plans to retain all of the employees in the unit and in
which it will be appropriate to have him initially consult with
the employees’ bargaining representative before he fixes terms.
In other situations, however, it may not be clear until the
52 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
successor employer has hired his full complement of employ-
ees that he has a duty to bargain with a union, since it will not
be evident until then that the bargaining representative repre-
sents a majority of the employees in the unit as required by s
9(a) of the Act, 29 U.S.C § 159(a).
Despite the Supreme Court’s reference to a successor’s intent
to hire “all of the employees in the unit,” the Board’s interpreta-
tion of Burns “does not require that all employees had to be
hired.” Rather, enough employees must be hired to make it evi-
dent that the Union’s majority support will continue. Fremont
Ford, 289 NLRB 1290, 1296 (1988), citing Spitzer Akron, Inc.,
219 NLRB 20, 22 (1975), enfd. 540 F.2d 841 (6th Cir. 1976)
cert. denied 429 U.S. 1040 (1977). Further, the successor’s ob-
ligation to bargain commences when the successor makes it “per-
fectly clear” that it planned to retain all or substantially all of the
predecessor’s employees. C.M.E., Inc., 225 NLRB 514, 514–515
(1976). In “perfectly clear” successor cases, communications
with the employees’ union are regarded “as communications
with the employees through their representative.” Marriott Man-
agement Services, 318 NLRB 144 (1995). See also Elf Atochem
North America, Inc., 339 NLRB 796, 796 (2003); Banknote
Corp. of America, 315 NLRB 1041, 1043 (1994). A successor
can communicate its clear intent to hire the predecessor’s em-
ployees and trigger the obligation to bargain before the successor
actually hires employees. See Creative Vision Resources, LLC,
364 NLRB No. 91 (2016); Elf Atochem North America, Inc., 339
NLRB 796, 796 (2003); DuPont Dow, 332 NLRB 1071, 1075
(2000); Helnick Corp, 301 NLRB 128, fn. 1 (1991); Spitzer Ak-
ron, 219 NLRB 20, 23 (1975).
Succession is not “perfectly clear” where a purchaser an-
nounces a clear intent to set its own initial terms and, therefore,
the duty to bargain with an incumbent union will turn on whether
a majority of the predecessor’s employees accept employment
under those terms. In such circumstances, the potential succes-
sor may unilaterally establish the initial terms of employment in
accordance with its stated intent. Spruce Up Corp., 209 NLRB
194, 195 (1974).
Here, there is little question that the Respondent purchasers of
A&P stores were “perfectly clear” successors before the APA
was amended on September 30. The original APA, signed July
19, required purchasers to offer employment to all employees
under the terms of the applicable A&P collective-bargaining
agreements unless modified agreements could be negotiated with
the incumbent unions. Thus, “it was abundantly clear from the
outset that the Respondent planned to retain the unit employees.”
Nexeo Solutions, LLC, 364 NLRB No. 44, slip. op. at 7 (2016)
(in purchase agreement, perfectly clear successor committed to
offering employment to all of the predecessor’s employees).
Further, the only way the Respondents could avoid offering em-
ployment to employees upon the existing terms (i.e., the A&P
contracts) was to reach a modified agreement with the union rep-
resentative of those employees. Thus, consistent with the situa-
tion anticipated in Burns, it was “perfectly clear that the Re-
spondent plan[ned] to retain all of the employees in the unit” and

34 The record does not indicate that the Union learned about the Sep-
tember 30 amendment to the APA before the APA was approved on Oc-
tober 21.
“initially consult with the employees’ bargaining representative
before’ modifying terms.” Burns, 406 U.S. at 294–295.
The Respondents nevertheless contend that their status as
“perfectly clear” successors changed when Section 6.4 of the
APA was amended since the amended APA only required a pur-
chaser to offer employment to “substantially all” employees on
terms that, absent an agreement to the contrary, were reflected in
the purchasers’ “last best offer.” “However, where the offer of
different terms was subsequent to the expression of intent to re-
tain the predecessor’s employees, the Board has regarded the ex-
pression of intent as controlling and has found that the new em-
ployer was obligated to bargain with the union before fixing ini-
tial terms.” Spitzer Akron, Inc., 219 NLRB 20 (1975), enfd. 540
F.2d 841 (C.A. 6, 1976). See also Nexeo Solutions, LLC, 364
NLRB No. 44, slip. op. at 7 (2016); Canteen Co., 317 NLRB
1052, 1053–1054 (1995); Fremont Ford, 289 NLRB 1290,
1296–1297 (1988); Starco Farmers Mkt., 237 NLRB 373
(1978); Ivo H. Denham and Geraldine A. Denham, 218 NLRB
30 (1975); Bachrodt Chevrolet Co., 205 NLRB 784 (1973), enfd.
515 F.2d 512 (7th Cir., 1975), cert denied 423 U.S. 927 (1975).
In particular, the Board has held that an employer cannot set in-
itial terms where “employees were lulled into believing that em-
ployment conditions would be comparable to those in force un-
der the predecessor and were thus deprived of the opportunity to
reshape their personal affairs or seek employment elsewhere.”
Nexeo Solutions, LLC, 364 NLRB No. 44, slip. op. at 9 (2016).
Between July 27 and October 21 (when Judge Drain approved
the APA as amended on September 30), the employees worked
for the predecessor with the understanding that they would be
retained by the Respondents under their old terms of employ-
ment unless their bargaining representative agreed to something
different.34 As admitted by the Respondents in its brief, the in-
cumbent unions effectively had veto power over any change in
terms and conditions of employment before the amended APA
was approved. The employees had no way of knowing that, at
the eleventh hour in negotiations, the rules would suddenly
change and they would be subject to the unilateral imposition of
a proposal that provided for their unilateral layoff at the discre-
tion of the Respondents without the Union’s consent. Therefore,
employees could not make arrangements in advance to “reshape
their personal affairs and seek employment elsewhere.” Id. Such
a result is not consistent with the dictates of Spruce Up.
Further, even after the APA was amended, it was still perfectly
clear that the Respondents were going to hire a majority of em-
ployees and retain the obligation to bargain with the Union. Sec-
tion 6.4, as amended, still required the purchaser to offer em-
ployment to “substantially all” employees. See C.M.E., Inc., 225
NLRB 514, 514–515 (1976) (“substantially all” employees in-
terpreted by the Board as a majority of the full complement).
The September 30 amendment also failed to modify Section 6.3,
which continued to require a purchaser to assume the old A&P
agreement or negotiate a modified agreement with the Union.
This necessarily presumes and it was “perfectly clear” that the
Union would have majority support and represent the
SEVEN SEAS UNION SQUARE, LLC 53
successors’ employees. Nexeo Solutions, LLC, 364 NLRB No.
44, slip. op. at 9 (July 18, 2016) (“Imposing an initial bargaining
obligation in these circumstances, where the Union’s majority
status in the new work force is essentially guaranteed, imple-
ments the express mandates of Section 8(a)(5) and 9(a) of the
Act and is entirely consistent with the rationale of Burns and
Spruce up”).
The Respondents mistake the rational of Burns and Spruce Up
in contending that they were entitled to unilaterally implement
initial terms because they announced at the start of bargaining a
desire to modify the A&P contracts and engaged in negotiations
to do so. Those cases establish that, when succession is not in
doubt, the law requires successors to engage in such negotiations
and refrain from setting initial terms without reaching a good-
faith impasse.35
Finally, I reject the Respondent’s reliance on Nexeo for the
proposition that the APA did not trigger succession because em-
ployees were not notified of it. In Nexeo, employees of a prede-
cessor were notified that a purchaser entered into a purchase
agreement to retain all employees at the same wage levels and
substantially comparable levels of benefits. The Board deter-
mined that the purchaser was a “perfectly clear” successor as of
the date employees received notice of this agreement (i.e., two
days of after it was signed). Here, the APA was filed in bank-
ruptcy court on July 20 with a motion for approval of the sale of
stores by A&P to Respondent Key Food. The Union participated
in the bankruptcy process and was placed on notice of the con-
tents of the APA. Indeed, Judge Drain’s order specifically
speaks to the adequacy of notice of the sale that was provided to
interested parties, including affected unions. And as noted
above, in “perfectly clear” successor cases, communications
with the employees’ union are regarded “as communications
with the employees through their representative.” Marriott Man-
agement Services, 318 NLRB 144 (1995). Accordingly, I con-
clude that employees through the Union received notice of the
APA on July 20 and that the Respondents were “perfectly clear”
successors as of that date.
Implementation of the Buyout Provision if Succession were
not Perfectly Clear
Even if I were not to find the Respondents to be “perfectly
clear” successors, I would rule that the Respondents unlawfully
implemented its buyout proposal as a basis for unilaterally laying
off unit employees. In this regard, I find the rules regarding im-
plementation upon impasse to be instructive. As a general rule,
an employer may implement its last best offer in negotiations as
a device to exert pressure on a union to break a temporary good-
faith impasse in negotiations. McLatchy Newspapers Inc., 321
NLRB 1386, 1388 (1996) (McLatchy II) However, the parties

35 I do not adopt the General Counsel’s contention that the Respond-
ents were prohibited from setting initial terms because they did not an-
nounce, on some earlier date, the actual terms which were ultimately im-
plemented. Case law does not establish that a successor is required to
announce specific terms contemporaneously with an expression of intent
to hire a majority of the predecessor’s employees as opposed to a more
general indication of its intent to set new terms at the time of hiring.
Banknote Corp. of America, 315 NLRB 1041, 1043 (1994) (employer
not perfectly clear successor where it notified unions of intent to establish
“remain obligated to continue their bargaining relationship and
attempt to negotiate an agreement” without using implementa-
tion-upon-impasse as “a device to allow any party to continue to
act unilaterally or to engaging in the disparagement of the bar-
gaining process.” Id. at 1390. In McLatchy II, a case in which
the employer implemented merit pay increases upon impasse, the
Board stated as follows:
Specifically, were we to allow the Respondent to implement
without agreement these proposals, such that the Employer
could thereafter unilaterally exert unlimited managerial discre-
tion over future pay increases, i.e., without explicit standards or
criteria, the fundamental concern is whether such application
of economic force could reasonably be viewed “as a device to
[destroy], rather than [further], the bargaining process.” As ex-
plained below, we find that if the Respondent was granted carte
blanche authority over wage increases (without limitation as to
time, standards, criteria, or the Guild’s agreement), it would be
so inherently destructive of the fundamental principles of col-
lective bargaining that it could not be sanctioned as part of a
doctrine created to break impasse and restore active collective
bargaining.
Were we to allow the Respondent here to implement its merit
wage increase proposal and thereafter expect the parties to re-
sume negotiations for a new collective-bargaining agreement,
it is apparent that during the subsequent negotiations the Guild
would be unable to bargain knowledgeably and thus have any
impact on the present determination of unit employee wage
rates. The Guild also would be unable to explain to its repre-
sented employees how any intervening changes in wages were
formulated, given the Respondent’s retention of discretion over
all aspects of these increases. Further, the Respondent’s imple-
mentation of this proposal would not create any fixed, objective
status quo as to the level of wage rates, because the Respond-
ent’s proposal for a standardless practice of granting raises
would allow recurring, unpredictable alterations of wages rates
and would allow the Respondent to initially set and repeatedly
change the standards, criteria, and timing of these increases.
The frequency, extent, and basis for these wage changes would
be governed only by the Respondent’s exercise of its discre-
tion. The Respondent’s ongoing ability to exercise its eco-
nomic force in setting wage increases and the Guild’s ongoing
exclusion from negotiating them would not only directly im-
pact on a key term and condition of employment and a primary
basis for negotiations, but it would simultaneously disparage
the Guild by showing, despite its resistance to this proposal, its
incapacity to act as the employees’ representative in setting
terms and conditions of employment.
initial terms and, “[s]ubsequently, specific anticipated changes were
communicated to the [u]nions and to three of the prospective employees
at their interviews). See also Ridgewell’s Inc., 334 NLRB 37 (2001).
The Respondents properly advised the Union of terms they were willing
to offer as those terms developed throughout negotiations. However, the
Respondents were not entitled to implement those terms unilaterally, in
advance of an agreement or impasse, because succession was perfectly
clear.
54 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Nothing in our decision precludes an employer from attempt-
ing to negotiate to agreement on retaining discretion over wage
increases. And, absent success in achieving such an agreement,
nothing in our decision precludes an employer from making
merit wage determinations if definable objective procedures
and criteria have been negotiated to agreement or to impasse.
An employer’s decision whether to reduce its workforce and
who to layoff are key terms and conditions of employment. For
the laid off employees, severance of the employment relationship
terminates all other terms and conditions of employment. Fur-
ther, although McLatchy II established an exception to the im-
plementation-upon-impasse rule, the rational is applicable to the
instant successor situation. As discussed above, the Burns and
Spruce Up line of cases ordinarily allow a potential successor to
set initial terms in advance of bargaining in order to determine
how many of the predecessor’s employees will accept those
terms and whether the incumbent union will retain majority sup-
port once a full complement of employees are hired. However,
the bargaining process would be fundamentally undermined if
initial terms set unilaterally by the potential successor during a
brief period when successorship was in doubt had the effect of
excluding the incumbent union from bargaining over key discre-
tionary mandatory decisions after successorship was confirmed
and a bargaining obligation attached. This is the result the Board
sought to avoid in McLatchy II.
The unilateral implementation of a discretionary buyout pro-
vision would not create a fixed, objective status quo as a predict-
able baseline for bargaining over future decisions. The Union
would be unable to explain to employees when a reduction in
force would occur, how many employees would be laid off, and
who would be selected for layoff. The MOA does not, for ex-
ample, indicate that the Respondents’ right to lay off a specific
number of employees would be triggered in a department once
payroll exceeded a certain percentage of the department’s reve-
nues or that the selection of employees for layoff would be based
on A&P seniority or some other objective criteria. Rather, the
MOA renders to the Respondents at their sole discretion the right
to unilaterally lay off any employee under any economic circum-
stances in unlimited number for the year following the hire of
A&P employees. I cannot recommend such a result to the Board,
given the reasoning of McLatchy II, even though that case arose
in the context of impasse and this case arises in the context of
successorship.
The Bankruptcy Order of Judge Drain
The bankruptcy order of Judge Drain does not alter, here, the
prohibition against unilaterally laying off employees.
Federal labor law and the bankruptcy order approving the
APA should be interpreted to the extent possible in a manner that
is consistent and does not unnecessarily negate the statutory
rights of employees under the Act. On October 21, when the
amended APA was approved by Judge Drain, the parties were
engaged in bargaining. The APA as amended does nothing more
than reflect the reality that good-faith bargaining sometimes re-
sults in impasse rather than agreement. The amended APA, in
Section 6.4, speaks of “good-faith negotiations” and the offer of
employment upon a “last best offer.” These are common terms
with legal consequence in labor law. “Good-faith negotiations”
require an employer to refrain from unilaterally implementing a
“last best offer” until the parties reach a good-faith impasse. The
phrase “last best offer” or “last, best and final offer” signals im-
passe in that the employer is effectively saying, “this is the best
we can do, we will not offer anything better at this time, so if you
do not accept our last best offer the parties are at impasse.” See
e.g., GATX Logistics, Inc., 325 NLRB 413 (1998). Thus, under
the approved APA, the Respondents would be entitled to imple-
ment their last best offer upon reaching a good-faith impasse in
negotiations for a modified agreement, but not before. If the par-
ties to the sale or the bankruptcy court wanted to negate the re-
quirement that a last best offer only be implemented upon good-
faith impasse, they should have used terminology that does not
logically incorporate such a requirement. Here, since the Re-
spondents have not contended that the parties reached impasse,
the Respondents were not entitled to implement their last best
offer, including the buyout provision.
The procedure and timing of the sale, as described in the APA,
does not require a finding that the bankruptcy court contemplated
the unilateral implementation of a last best offer prior to impasse.
Section 6.4(a) of the APA states that, “at least (10) days prior to
the Closing Date, Buyer shall make an offer of employment to
substantially all Covered Employees who are represented by an
Affected Union….” and the offer of employment will be based
on the Buyer’s last best offer if no Affected Labor Agreements
or Modified Labor Agreements are in effect. The “Closing Date”
is defined in Section 2.4 of the APA as “the third (3rd) Business
Day following the date upon which all of the conditions to the
obligations of Sellers and Buyers to consummate the transaction
contemplated hereby set forth in Article VII… have been satis-
fied or waived or on such other date as shall be mutually agreed
upon by the Sellers and Buyer prior thereto.” Article 7 of the
APA provides as a condition of closing that the buyer and seller
perform and comply with their covenants and agreements under
the APA, including the covenant in Section 6.3 that the buyer
“engage in good faith negotiations, in coordination with Sellers,
toward reaching mutually satisfactory modifications to the rele-
vant Affected Labor Agreement with each of the Affected Un-
ions….” Thus, the APA effectively makes the successful nego-
tiation of a modified agreement or good-faith impasse a covenant
and condition that must be satisfied prior to the closing date and
any offers of employment.
The bankruptcy order should also be read in a manner that is
consistent with McLatchy II (discussed above). Even if the par-
ties did reach impasse, the Respondents would not be entitled to
utilize the temporary cessation of negotiations as a vehicle to
avoid bargaining over future discretionary changes. Indeed, the
bankruptcy order would not logically provide for implementa-
tion of the buyout provision even if the order were not read to
require impasse as a condition of implementing its last best offer.
At most, the APA contemplated a singular event and temporary
condition whereby the Respondents would be entitled to open
stores on the basis of changed terms. The amended APA does
not indicate that such a singular suspension of the rules against
unilateral implementation, upon impasse or otherwise, could be
used as a device for a purchaser to take discretionary unilateral
action on mandatory subjects of bargaining in the future after the
SEVEN SEAS UNION SQUARE, LLC 55
stores opened and the Respondents’ bargaining obligations re-
sumed.
Bargaining over Layoffs
Irrespective of the buyout proposal in the MOA, the Respond-
ents contend that they satisfied their bargaining obligation. I dis-
agree.
On October 14, the owners of each Respondent identified how
many unit employees they intended to keep and how many they
did not want to hire. Some of the Respondents identified the
specific employees by position (not name) they wanted to retain
from A&P. However, the next day, when O’Leary attempted to
confirm the positions of employees the stores intended to fill
with former A&P employees, Konzelman refused to provide that
information. Further, the Respondents did, in fact, hire all of the
employees who were subsequently laid off despite any earlier
indications to the contrary on October 14. Thus, the Union had
no reason to believe the jobs of those employees were in imme-
diate jeopardy. Once the Respondents hired employees, the Re-
spondents were required to notify and offer to bargain with the
Union over any subsequent layoffs.
Conclusion with Regard to Unilateral Layoffs
Based on the foregoing, I find that the following Respondents
violated Section 8(a)(5) and (1) of the Act by laying off the em-
ployees listed below:36
Unilateral Changes other than Layoffs
In addition to unilateral layoffs, the complaint alleges that em-
ployees had their pay unilaterally reduced when (1) Respondent
Greaves Lane changed the schedules of all unit employees from
six to five days, (2) Respondent Albany Avenue reduced the
work hours of Steven Jenzen and Stephen Fiore, and (3) Re-
spondent Albany Avenue demoted Stephen Fiore and reduced
his hourly wage rate.
Respondents Greaves Lane and Albany Avenue do not deny
that these changes were implemented without notifying the Un-
ion and offering the Union an opportunity to bargain over them.
Shortly after Thanksgiving, Respondent Greaves Lane reduced
employees’ days of work from 6 to 5. In about late-December

36 As discussed in the fact section of this brief (supra fn. 22), I find
that Maffia was laid off or discharged and did not abandon his job.
(after Christmas), Respondent Albany Avenue offered Jenzen
the option of not working Sundays or changing his hours from
40 to 35 hours per week. Jenzen opted not to work Sundays.
Nevertheless, about 2 weeks later, Jenzen’s weekly hours were
reduced to 35 as well. On about January 16, 2016, Respondent
Albany Avenue demoted Fiore from meat manager to butcher,
reduced his wage rate from $31.33 to $25 per hour, and reduced
his weekly hours from 40 to 35.
A reduction in the wages and hours of all or individual unit
employees is a mandatory subject of bargaining. Carpenters Lo-
cal 1031, 321 NLRB 30 (1996) (overruling cases holding that
changes to the terms of employment of only one employee are
not mandatory decisions and finding that changing hours is a vi-
olation of the Act); Ivy Steel & Wire, Inc., 346 NLRB 404, 418–
419 (2006) (unilateral reduction of employee’s wage from
$12.35/hour to $11.15/hour violated Section 8(a)(5) and (1) of
the Act); Sheraton Hotel Waterbury, 312 NLRB 304 (1993)
(elimination of shift that effected two employees was a manda-
tory subject of bargaining); Kentucky Fried Chicken, 341 NLRB
69 (2004) (job assignment change from one unit employee to an-
other that reduced overtime work was a mandatory subject of
bargaining).
Respondents Greaves Lane and Albany Avenue contend only
that financial data they obtained before the purchase misrepre-
sented the revenue of the A&P stores and made it necessary to
reduce payroll in order to improve the store’s long-term financial
viability. Thus, citing Ford Motor Co. v. NLRB, 441 U.S. 488,
498 (197), the Respondents contend that changes in the reduction
of hours and “the volume of business to be performed strike at
the core of entrepreneurial contract and do not require decisional
bargaining.” However, Ford Motor Co. dealt with in-plant food
prices an employer charged employees and the Board’s decision
held that such prices are “not among those ‘managerial deci-
sions, which lie at the core of the entrepreneurial control.’” Id.
quoting Fibreboard Paper Prods. Corp. v. NLRB, 379 U.S. 203,
223 (1964). Thus, Ford Motor Co. is not factually parallel and
in no way suggests that a change in pay is a core managerial de-
cision within the entrepreneurial control of an employer. In fact,
the Board and courts have long recognized that “wages and hours
are the heart and core of the employer-employee relationship….”
Southern States Equipment Corp., 124 NLRB 833, 839 (1959)
quoting International Woodworkers of America, Local Unions
6-7 & 6-122, AFL–CIO v. NLRB., 263 F.2d 483 (D.C. Cir. 1959).
The Respondents did not assert that changes to employee pay
were caused by the type of “compelling economic considerations
that the Board has long recognized as excusing bargaining en-
tirely….” RBE Electronics, 320 NLRB 80, 82 (1995); Bottom
Line Enterprises, 302 NLRB 373 (1991); Eugene Iovine, Inc.,
353 NLRB. 400 (2008). The Board imposes a “heavy burden”
of establishing that “extraordinary events which are an unfore-
seen occurrence, having a major economic effect requiring the
company to take immediate action.” RBE Electronics, 320
NLRB at 81. Thus, “absent a dire financial emergency, the
Board has held that economic events such as a loss of significant
accounts or contracts, operation at a competitive disadvantage,
Venus Nepay HB November 10
Richard Maffia HB November 11
Khadisha Diaz HB November 12
Joseph Battista Albany Avenue November 28
Kalvin Harris Albany Avenue November 28
Gina Cammarano Greaves Lane November 28
Debra Abruzzese Greaves Lane November 28
Michael Fischetti Greaves Lane November 30
Anthony Venditti Greaves Lane November 30
Ayanna Jordan Seven Seas December 26
Mariano Rosado CS2 January 4, 2016
Stephen Fiore Albany Avenue January 30, 2016
Robert Jenzen Albany Avenue January 30, 2016
56 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
or supply shortages do not justify unilateral action.” Id. Here, the
Respondents’ sales were lower than expected when they as-
sumed their respective operations. However, the Respondents
did not provide evidence at trial regarding their overall financial
conditions or to what extent these shortfalls in anticipated sales
could be tolerated and for how long. Accordingly, the Respond-
ents did not establish that their circumstances were dire or threat-
ened the solvency of their businesses without immediate unilat-
eral action.
Respondent CS2 Direct Dealing with Employees by Offering
Mariano Rosado a Severance Agreement
The General Counsel contends that Respondent CS2 dealt di-
rectly with employee Mariano Rosado by asking him to sign a
severance agreement without notifying the Union and offering to
bargain over it. It is uncontested that Respondent CS2 did, in
fact, request that Rosado sign a severance agreement without ad-
vising the Union in advance or giving the Union a copy of the
proposed severance agreement. Thereafter, the Union objected
to the conduct of Respondent CS2 in this regard. Accordingly,
Respondent CS2 violated Section 8(a)(5) and (1) of the Act by
bypassing the Union and dealing directly with employees. Hotel
Bel-Air, 361 NLRB 898 (2014).
Refusal by all the Respondents to Resume Bargaining
in July 2016
In late-June 2016, the Union contacted the Respondents to es-
tablish bargaining dates. The Respondents did not then and do
not now contend that the parties were at impasse. Rather, the
Respondents have taken the position that additional bargaining
was unnecessary because the parties had reached a collective-
bargaining agreement. However, as detailed above, I have found
that the parties did not reach an agreement. Accordingly, the
Respondents retained an obligation to meet and bargain with the
Union to the conclusion of a contract or good-faith impasse. I
note also that the October 22 MOA provided that a “union secu-
rity clause, recognition clause, no lie detector clause, manage-
ment rights clause, no discrimination clause, bulletin board
clause, and no employment of minors clause” would be included
in the contract and these provisions still needed to be negotiated.
Accordingly, even if the MOA did reflect an agreement between
the parties, such an agreement contemplated additional negotia-
tions. The Respondents refused to engage in such negotiations.
As a defense to the refusal to bargain allegation, the Respond-
ents contend that the Union abandoned the units in early-Decem-
ber. An incumbent union’s disclaimer of its desire to represent
the bargaining unit must be “unequivocal” and consistent with
“surrounding circumstances.” Hartz Mountain Corp., 260
NLRB 323, 325 (1982) quoting Retail Associates, Inc., 120
NLRB 388, 391 (1958). The Union did not expressly or im-
pliedly, and certainly did not unequivocally, abandon and dis-
claim interest in representing the units. Indeed, the Union ex-
pressly requested bargaining dates, which the Respondent re-
jected. At the bargaining table, the Union objected once the Re-
spondents began laying off employees. The Union attempted to

37 The complaint alleged that, on September 6, Frank Almonte threat-
ened employees with unspecified reprisals because they engaged in Un-
ion activity. In its brief, the General Counsel contends that the
arrange for the placement of Quiles and Maffia at the Respond-
ents’ stores and advised the Respondents that Board charges
would be filed to contest alleged unlawful layoffs. The Union
also engaged in handbilling at the stores to protest layoffs and
other changes in terms and conditions of employment. The Un-
ion filed the instant unfair labor practice charges to contest the
Respondents conduct, including allegations that the Respondents
were refusing to bargain in good-faith. Accordingly, I find that
the Union did not abandon the bargaining units and the Respond-
ents retained an obligation to bargain with the Union. The Re-
spondents failed to do so in violation of Section 8(a)(5) and (1)
of the Act.
II. SECTION 8(A)(3) AND (1) ALLEGATIONS AND INDEPENDENT
8(A)(1) ALLEGATIONS
Respondent HB
Nelson Quiles—Interrogation, Layoff and Refusal to Hire
The Board has held companies liable for violating the act
when they coercively act upon the employee of a different com-
pany. A. M. Steigerwald Co., 236 NLRB 1512, 1515 (1978)
(“the specific language of the Act clearly manifests a legislative
purpose to extend the statutory protection of Section 8(a)(1) be-
yond the immediate employer-employee relationship”). On Sep-
tember 5, Quiles participated in a union demonstration of the
Cross Bay store, which is owned by Frank Almonte. A video
recording showed Frank in a position to see Quiles at the union
demonstration talking to a union representative. The next day,
September 6, Frank came to the store and repeatedly asked
Quiles in an accusatory manner whether it was a nice thing for
him to do the previous day and who in the Union sent him to the
demonstration.
The General Counsel contends that Frank Almonte’s ques-
tioning of Quiles on September 6 constituted unlawful interroga-
tion, and I agree.37 The manner, phrasing and repetition of the
questioning—“do you think it was right?”—conveyed the impli-
cation that Frank Almonte did not think it was right for Quiles to
be participating in the union job action. In fact, Quiles indicated
that he felt threatened by the questioning. It is true that Respond-
ent HB was not Quiles’ employer at the time and the record is
not entirely clear whether Quiles knew the Almontes would be
purchasing the Howard Beach store. However, Quiles did indi-
cate that it was all over the news through September and October
that Waldbaums was being purchased by Key Food, and Frank
Almonte introduced himself to Quiles on September 6 as an
owner of Key Food. Further, Quiles was laid off after the Al-
montes, on the same day, spoke to Britt. Under the circum-
stances, a reasonable employee would interpret the questioning
by Frank Almonte on September 6 as a precursor to his layoff.
Taken in context, the questioning by Frank Almonte was coer-
cive and would tend to have a suppressing effect on employees’
union activities.
The complaint further alleges that Respondent HB caused
A&P to layoff Quiles and then refused to hire him. A company
may be “found to have violated 8(a)(3) with respect to
statements by Almonte constitute unlawful interrogation instead of an
unlawful threat.
SEVEN SEAS UNION SQUARE, LLC 57
employees not its own, when it urged or caused employer B to
discharge specific individuals who were engaged in union activ-
ity.” Airborne Freight Co., 338 NLRB 597, 604 (2002) citing
Holly Manor Nursing Home, 235 NLRB 426, 428 fn. 4 (1978),
Central Transport, Inc., 244 NLRB 656, 658–659 (1979), and
Georgia-Pacific Corp., 221 NLRB 982, 986 (1975). Although
the Almontes did not formally assume the Howard Beach oper-
ation until October 26, the evidence shows that they caused A&P
to lay off Quiles on October 23. Frank Almonte’s interrogation
of Quiles’ is strong evidence that Respondent HB was hostile
toward him because of his union activity. The parties’ discus-
sions at the bargaining table tend to confirm that Respondent HB
was hostile toward employees, particularly Quiles, who partici-
pated in the Union job actions. During a bargaining session on
November 13, when O’Leary raised the issue of Maffia and
Quiles, Catalano indicated that the Union was wrong to demon-
strate at Cross Bay. Further, during a bargaining session on No-
vember 19, when Solicito raised the issue of reinstating Quiles,
Catalano indicated that Respondent HB did not want to take em-
ployees back because the Union put up picket lines. These com-
ments reflect Respondent HB’s hostility toward Quiles and a de-
sire not to employ him because he took part in a Union job action
the company found to be offensive.
On October 23, the Almontes admittedly told Britt they pre-
ferred Maffia instead of Quiles as the meat manager. Later that
day, Britt told Quiles he was being laid off. Although Gilbert
Almonte denied telling Britt to lay Quiles off, Frank Almonte
was not called by the Respondents to corroborate this claim.
Likewise, the Respondents did not call Britt to deny he was di-
rected to lay Quiles off or to explain why he would lay off a long-
standing employee on his own initiative two days before the
store transitioned to Key Food.
Under the circumstances, given the totality of the evidence, I
find that Respondent HB directed Britt to lay off Quiles as a way
to avoid hiring him on this basis of his union activity.38
I also find that Respondent HB refused to hire Quiles because
of his union activity. In support of a discriminatory refusal to
hire allegation, the General Counsel may satisfy its initial burden
by showing that the Respondent was hiring, the applicant had
relevant experience for the position, and antiunion animus con-
tributed to the decision not to hire the applicant. Upon such a
showing by the General Counsel, the burden shifts to the em-
ployer to show it would not have hired the applicant even in the
absence of his union activity. FES, 331 NLRB 9 (2000) (allo-
cating the Wright Line burdens in a refusal-to-hire case).
Here, the Almontes admit they intended to hire a meat man-
ager when they took over the operation on October 26. Quiles
had experience in the position and Gilbert Almonte did not tes-
tify that Quiles was unqualified for the job. Gilbert merely tes-
tified that they preferred Maffia over Quiles as a meat manager.
Further, Gilbert offered no credible or logical explanation for re-
fusing to hire Quiles. Although the Almontes may have

38 Respondent HB did not present a Wright Line defense since Gilbert
Almonte denied that Respondent HB had anything to do with Quiles’
severance from A&P (a denial I do not credit).
39 Likewise, in Hagar Management Corp., 313 NLRB 438, 442
(1993), the Board adopted a judge’s finding that certain employees were
preferred Maffia over Quiles as meat manager, they were told by
Britt and the Union that Maffia was not available because he
worked at a different store. Gilbert’s testimony that they did not
hire Quiles because Quiles had been laid off before the opening
is not credible or compelling since, as noted above, the evidence
strongly suggests that the Almontes directed Britt to lay Quiles
off in the first place. The pretextual nature of Respondent HB’s
ostensible reasons for not hiring Quiles adds considerably to
other evidence (described above) that Respondent HB sought to
avoid employing him because of his union activity. In sum, the
General Counsel presented sufficient evidence that Quiles’ un-
ion activity contributed to Respondent HB’s decision not to hire
him, and Respondent HB failed to prove it would not have hired
Quiles regardless of that activity.
Richard Maffia—Layoff
I have already found that the Respondent violated Section
8(a)(5) and (1) by unilaterally laying off Maffia on November
11. In so holding, I refused to credit Gilbert Almonte’s testi-
mony that Maffia arrived for work his first day but left at the
Union’s direction without beginning his employment. Rather, I
credited the testimony of Maffia in finding that he worked a full
day on November 9, was absent on November 10, and was laid
off on November 11. However, I reject the General Counsel’s
theory in support of a Section 8(a)(3) and (1) violation that Re-
spondent HB laid off Maffia as part of an effort to avoid paying
certain former A&P employees high Union wages. See Hagar
Management corp., 313 NLRB 438, 442 (1993); Sierra Realty
Corp., 317 NLRB 832, 833 (1995) enf. denied 82 F.3d 494 (DC
Cir. 1996); Vantage Petroleum Corp., 247 NLRB 1492 (1980)
In Sierra Realty Corp., 317 NLRB 832, 833 (1995), a refusal
to hire case, the Board determined that “refusing to hire employ-
ees in order to avoid their union wage scale is the plainest form
of 8(a)(3) discrimination and is in no way lawfully distinguisha-
ble from a refusal to hire employees in order to avoid a succes-
sorship obligation.” The Board went on to say that, “[c]ollec-
tively, such conduct constitutes discrimination against employ-
ees’ ‘union affiliation’….” Id. The Board in Sierra Realty Corp.
sought to distinguish Vantage Petroleum Corp., 247 NLRB 1492
(1980), which stands for the proposition that an employer may,
for valid economic reasons, refuse to hire employees who evince
through their union a desire to retain the wages they possessed
in a contract with a predecessor employer. In Sierra Realty, the
Board held that “Vantage Petroleum Corp. . . is inapposite”
where there is no evidence that employees “would have declined
an offer of employment . . . at the Respondent’s lower wage
rates.” 317 NLRB at 834–835.39 In such a circumstance, the
employer may be found to have refused to hire employees simply
because they were covered by the wage scale in a union contract
(perhaps mistakenly assuming that employees would not accept
lesser wage rates) and not because the wage demands of employ-
ees were being rejected for valid economic reasons (i.e., the new
employer could hire other employees at a lower rate).40
laid off in order to avoid the burden of paying them wages pursuant to a
union contract.
40 The DC circuit found Vantage Petroleum controlling and refused
to enforce the Board’s Sierra Realty decision on the grounds that the em-
ployer did, in fact, have reason to believe that the predecessor’s
58 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
These cases demonstrate that an employer may not select em-
ployees for hire or lay them off simply because they are paid
pursuant to a collective-bargaining agreement. However, an em-
ployer is not forbidden, absent some contractual restriction, from
selecting employees for hire or layoff on the basis of their re-
spective wage rates once their bargaining representative declines
to modify its wage demands.41 Vantage Petroleum Corp., 247
NLRB 1492 (1980). In such a circumstance, the employer is not
making a decision based on union affiliation, but an economic
decision based on cost. Here, the Union was quite clear from the
start of bargaining that former A&P employees would not accept
wage cuts. The parties bargained over the issue at length and the
Respondents ultimately agreed to pay former A&P employees
the wages they received under the old A&P contracts. Although
the parties did not reach agreement on a contract as a whole, the
Respondents (including HB) largely hired former A&P employ-
ees at their existing wage rates. Accordingly, Respondent HB
was not forbidden from making layoff decisions based on the
relative contractual wages of unit employees.
Regardless, the record did not establish that Maffia was laid
off because of his contractual wage rate. Respondent HB specif-
ically requested Maffia, who had been working as a meat man-
ager at union scale in the Waldbaums on New Utrecht Avenue.
Catalano arranged with O’Leary for Maffia to be transferred to
Howard Beach at his contractual hourly rate. Respondent HB
hired Maffia and he worked for one day at that pay rate without
incident. Respondent HB did hire new butchers Castillo and
Monegro and the record contains some evidence that these
butchers were initially paid cash under the table at a much lower
non-contractual rate of $9 per hour. However, Castillo and
Monegro were hired when the store opened, on October 26, be-
fore Maffia was hired on November 9.42 Thus, the hiring of Cas-
tillo and Monegro did not hinder Respondent HB from hiring
Maffia and the evidence does not indicate that Respondent HB
suddenly decided, two days later, that Maffia was making too
much money.43 Further, the evidence did not establish that

employees would be unwilling to accept lower wages. See Sierra Realty
Corp. v. NLRB, 82 F.3d at 497.
41 Collective-bargaining agreements often contain provisions that re-
quire layoffs to be conducted by seniority rather than other criteria such
as wage rates.
42 Haenlein had the best and most specific recollection as to when
Castillo and Monegro were hired.
43 Rather, the evidence strongly suggests that Maffia was laid off (or
discharged) because he was suspected of engaging in a work stoppage
called by the Union. Maffia came to work for Respondent HB on No-
vember 9 and worked a full day without incident. He was absent on
November 10 and was laid off on the morning of November 11. Gilbert
Almonte believed that Maffia left without working on November 10 be-
cause the Union told him to do so. Catalano submitted a position state-
ment to the Region that stated, “Richard Maffia was hired by HB Food
Corp. for one day” and “was thereafter terminated by HB Food Corp.
….” Since nothing happened from the time Maffia worked uneventfully
on November 9 to the time he was laid off before work on November 11,
except Maffia’s absence from work on November 10 (which Gilbert at-
tributes to a work stoppage called by the Union), it follows that Maffia
was discharged because he was suspected of participating in a Union
work stoppage. This conclusion is further supported by Catalano’s com-
ments at subsequent bargaining sessions which suggested that the
Maffia was replaced by employees who were not paid at union
scale. Accordingly, the General Counsel did not establish that
Maffia was laid off because he was earning a contractual wage
or that his layoff was otherwise based upon his union affiliation.
Venus Nepay—Layoff
I have already found, above, that the Respondent violated Sec-
tion 8(a)(5) and (1) by laying off Venus Nepay on November 10.
However, I reject the General Counsel’s contention that Nepay
was laid off in violation of Section 8(a)(3) and (1).
The General Counsel asserts that Respondent HB laid off
Nepay to avoid paying her union wages. Indeed, Gilbert Al-
monte testified that one of the reasons he laid off Nepay was be-
cause her “salary was very high.” However, for reasons previ-
ously stated, I do not believe it would have been unlawful for
Respondent HB to select employees for layoff based upon their
respective contractual wage rates. Vantage Petroleum Corp.,
247 NLRB 1492 (1980); Sierra Realty Corp. v. NLRB, 82 F.3d
494 (DC Cir. 1996). Thus, for example, it would not have been
unlawful for Respondent HB, in an effort to save money, to lay
off Nepay instead of Khadisha Diaz because Nepay was a full-
time meat wrapper earning a contractual rate of $25.50 per hour
and Diaz was a part-time meat wrapper earning a contractual rate
of $9.75 per hour. Their wage rates were determined by the same
union contract and there is no basis for differentiating between
them by union affiliation. Regardless, there is little evidence that
Respondent HB preferred Diaz over Nepay on the basis of their
respective wages since Diaz was laid off just 2 days after Nepay.
Further, the General Counsel has not pointed to evidence that
either Nepay or Diaz were replaced by meat wrappers who were
paid less or were not paid union scale. Accordingly, the General
Counsel did not establish that Nepay was laid off because of her
union wage or affiliation.
Khadisha Diaz—Layoff
I have already found, above, that Respondent HB violated
Section 8(a)(5) and (1) by laying off Khadisha Diaz on
Respondents were hostile toward employees who participated in union
job actions. It is unclear to me why participation in a union work stop-
page would not constitute protected activity and a layoff or discharge on
that basis would not be a violation of Sec. 8(a)(3) and (1). Industrial
Hard Chrome, Ltd., 352 NLRB 298 (2008); Kapiolani Hosp., 231 NLRB
34, 42–43 (1977); Nanticoke Homes, Inc., 261 NLRB 736, 749 (1982).
Notably, whether Maffia actually engaged in a work stoppage is irrele-
vant since it is unlawful to sever an employee who is suspected of en-
gaging in a protected work stoppage even if that suspicion turns out to
be incorrect and the employee did not actually engaged in any protected
activity. White Electrical Construction Co., 345 NLRB 1095 (2005)
(employer “violated Section 8(a)(1) by discharging [employee]… in the
mistaken belief that he had engaged in a work stoppage,…”). See also
Wallingford’s Favorite Chicken, LLC, 359 NLRB No. 16 (2012) (not re-
ported in Board volumes); Hamilton Avnet Electronics, 240 NLRB 781,
791 (1979); Metropolitan Orthopedic Assn., 237 NLRB 427 (1978);
Cello-Foil Products, Inc., 171 NLRB 1189, 1193 (1968). However, the
General Counsel has not contended that Maffia was laid off because he
engaged in a union work stoppage and none of the parties briefed such a
theory. Accordingly, I will not make a finding to that effect and will
leave it to the General Counsel to decide whether to take exceptions and
brief the issue to the Board.
SEVEN SEAS UNION SQUARE, LLC 59
November 12. However, I reject the allegation that Diaz was
laid off in violation of Section 8(a)(3) and (1).
Diaz testified that her mother was a Union representative who
came to the store and worked with Britt in that capacity. The
record does not indicate when Diaz’s mother came to the store
or how often and does not indicate that her relationship with Britt
was poor. The record is also lacking in evidence that Britt or
A&P maintained any antiunion animus. Although the record
contains evidence that the Almontes were hostile toward em-
ployees for engaging in a job action at Cross Bay and a suspected
subsequent work stoppage, the record does not show that the Al-
montes were broadly hostile toward employees who did not par-
ticipate in union activities specifically directed at one of their
stores. Respondent HB purchased a unionized A&P store and
hired all the unit employees. Under the circumstances, I do not
believe the General Counsel made out a prima facie case that
Respondent HB laid off Diaz because her mother held a position
with the Union.
The General Counsel asserts that Respondent HB laid off Diaz
to avoid paying her a contractual wage, but this theory is una-
vailing for the reasons previously addressed above in the sections
regarding Maffia and Nepay.
Respondents Greaves Lane and Albany Avenue
The General Counsel alleges that Respondent Greaves Lane
laid off Anthony Venditti on November 30 and Respondent Al-
bany Avenue laid off Stephen Fiore on January 30, 2016 because
of their union activities. The complaint also alleges that Re-
spondent Albany Avenue violated Section 8(a)(3) and (1) by de-
moting, reduced the wage rate, and reducing the work hours of
Fiore shortly before he was laid off. I have already found, above,
these adverse employment actions to be violation of Section
8(a)(5) and (1). As discussed below, I find the Section 8(a)(3)
and (1) allegations to have merit as well.
Layoff of Anthony Venditti by Respondent Greaves Lane
The General Counsel made out a prima facie case that Re-
spondent Greaves Lane laid off Venditti because of his union ac-
tivity. Under Wright Line, 251 NLRB 1083 (1980), enfd. 662
F.2d 899 (1st Cir. 1981), cert denied 455 U.S. 989 (1982), “the
General Counsel must prove that antiunion animus was a sub-
stantial or motivating factor in the employment action. If the
General Counsel makes the required initial showing, the burden
then shifts to the employer to prove by a preponderance of the
evidence that it would have taken the same action even in the
absence of employee union activity.” Baptistas Bakery, Inc., 352
NLRB 547, 588, fn. 6 (2008).
Respondent Greaves Lane was aware of Venditti’s union ac-
tivities. The Greaves Lane supermarket transitioned to a Key
Food on November 24. Venditti was the assistant Union stew-
ard. During the first week, after Respondent Greaves Lane re-
duced unit employees’ weekly days of work from 6 to 5, Venditti
asked the store manager whether any additional changes would

44 Although Respondent Greaves Lane may have been aware of
Conti’s handbilling and retained him thereafter, I do not find that suffi-
cient to negate the General Counsel’s prima facie case. An employer
may not be in a situation to deplete its work force by severing all em-
ployee handbillers. The record established by a preponderance of the
be implemented. Venditti also questioned the store manager
about the layoffs of Abruzzese and Cammaretti. On November
29, Venditti participated in Union handbilling at the Greaves
Lane store. This was the first day the Union engaged in hand-
billing at either store owned by the Abeds. According to
Venditti, the handbills contained an objection to changes in em-
ployees’ terms and conditions of employment (the same concern
that Venditti had inquired about). Monier testified that Randy
Abed watched Venditti while he was outside handbilling and
took pictures of the handbillers. The Respondents did not call
Randy Abed as a witness to deny this testimony. Thus, the evi-
dence established that Venditti was a union steward who was
known by Respondent Greaves Lane to have engaged in Union
activities, including handbilling.
The evidence also established that Venditti’s layoff was, at
least in part, based on substantial antiunion considerations. The
timing strongly supports a finding of antiunion motivation as
Venditti was laid off 2 days after he questioned the store manager
about changes and one day after he participated in the Union’s
first day of handbilling at either Abed store. Further, Greaves
Lane employees Coughlin and Conti testified that Sam Abed
later threatened to discharge them if they went outside to join the
Union. Respondent Greaves Lane, therefore, demonstrated an
express hostility toward individuals who participated in hand-
billing and an intention to sever them on that basis.44
I also find it noteworthy and supportive of a prima facie case
that Sam Abed referenced Abondolo and negotiations with the
Union when Venditti was being laid off. Sam asked Venditti
whether he had spoken to Abondolo and stated that they would
only deal with Abondolo going forward. The fact that Respond-
ent Greaves Lane raised the Union while Venditti was being laid
off tends to suggest some connection between the two. Further,
in his capacity as steward, Venditti had questioned the store man-
ager about reductions in the schedule and the layoff of employ-
ees. Although the comment by Sam was somewhat ambiguous,
it suggests hostility toward Venditti as someone who was at-
tempting to address Union concerns with management instead of
leaving those matters to Abondolo.45
After Respondent Greaves Lane laid off Venditti, a number of
butchers were transferred to and hired by the store. Meanwhile,
Respondent Greaves Lane did not attempt to recall Venditti even
though the Respondents have taken the position that the MOA
was in effect and the MOA provides recall rights within one year
of a layoff.
Respondent Greaves Lane contends that the store was at-
tempting to cut payroll and would have laid Venditti off, a highly
paid butcher, regardless of his union activity. I reject this Wright
Line defense. First, Greaves Lane asserts that meat department
employees were laid off so the department’s payroll would be
approximately 10 percent of department sales, but did not at-
tempt to establish, through appropriate records, that payroll was
actually reduced in line with revenues. Second, Respondent
evidence that Venditti was laid off, at least in part, because of his union
activities.
45 Sam Abed had a conversation with Abondolo the previous day in
which Sam agreed to discuss a resolution of any outstanding issues with
the Union and Abondolo agreed to stop handbilling.
60 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Greaves Lane failed to credibly articulate a lawful reason for se-
lecting Venditti for layoff. Randy Abed testified that Venditti
was laid off because he had less seniority in the store than other
employees, but butchers Conti and Young both had less seniority
in the store than Venditti. Third, as noted above, Respondent
Greaves Lane hired new butchers instead of recalling Venditti
despite a provision for recall rights in the MOA. Accordingly,
based on the foregoing, Respondent HB failed to establish a
Wright Line defense that Venditti would have been laid off re-
gardless of his union activities.
Respondent Greaves Lane nevertheless contends that
Venditti’s handbilling was not protected because the handbills
asked customers not to shop at the store. However, it is well
settled that employees engage in protected activity by urging a
boycott in support of an unresolved labor dispute. Medina Super
Duper, 286 NLRB 728, 729 (1987) (employees engaged in pro-
tected activity in handing out leaflets which “ask that you please
do not shop medina super duper while employees are on strike”).
See also Rudy’s Farm Co., 245 NLRB 43 (1979); Roundy’s Inc.,
356 NLRB 126, 130 (2010). The Union was in the process of
contesting conduct it deemed unlawful and employees were pro-
tected in urging customers not to shop at Respondent HB’s stores
as a way to compel a resolution of that matter.
Demotion, Reduction of Wage Rate, Reduction of Hours, and
Lay Off of Fiore by Respondent Albany Avenue
The General Counsel has established a prima facie case that
Respondent Albany Avenue demoted, reduced the wage rate, re-
duced the hours, and laid off Fiore on the basis of his union ac-
tivities. Beginning in about early-January 2016, Fiore engaged
in handbilling in front of both Abed stores and the Abeds were
in a position to see him doing so. The record contains evidence
that Sam Abed threatened to discharge employees who engaged
in handbilling. On about January 16, 2016, not long after Fiore
began handbilling, Respondent Albany Avenue demoted him
from meat manager to butcher, reduced his pay from $31.33 to
$25, and reduced his hours from 40 to 35 hours with no Sundays.
At the time, Sam Abed told Fiore he was making too much
money. Fiore complained to store manager Mike Carlos that $25
did not reflect the contractual “A Butcher” rate. Fiore also sent
texts and left voice mail messages to Sam regarding the same
concern. Such attempts to assert rights under a collective-bar-
gaining agreement are protected by the Act.46 NLRB v. City Dis-
posal Systems, 465 U.S. 822 (1984); K-Mechanical Services, 299
NLRB 114, 117–118 (1990). Meanwhile, Fiore was replaced as
a meat manager by Lyons, who seems to have accepted the non-
contractual rate of about $25 per hour without complaint.47 On
January 30, 2016, shortly after he complained about his change
in wage rate and not long after he engaged in handbilling, Fiore

46 The Respondents had not adopted the A&P contracts and the MOA
was not in effect, but the terms and conditions of employment (including
wage rates) carried over from the Pathmark contract as a matter of stat-
ute. See Cadillac Asphalt Paving Co., 349 NLRB 6 (2007). Fiore was
entitled to request that Respondent Albany Avenue abide by those terms.
47 As discussed in previous section of this decision, it is unlawful for
an employer to discriminate against an employee because (regardless of
any protected communication regarding the issue) he/she is or was earn-
ing a contractual wage rate. See Hagar Management Corp., 313 NLRB
was laid off. Based upon the foregoing, I find that Fiore’s hand-
billing was a motivating factor in Respondent Albany Avenue’s
decision to demote him, reduce his wage rate, and reduce his
hours. Further, I find that Fiore’s handbilling and his reluctance
to work for a non-contractual wage rate were motiving factors in
the decision to lay him off.
Respondent Albany Avenue contends that the store was at-
tempting to cut payroll and would have demoted Fiore, reduced
his wage rate, reduced his hours, and laid him off regardless of
his union activities. I reject this Wright Line defense. Sam Abed
testified that Fiore was “written up” many times and vaguely tes-
tified that Fiore was laid off for “business reasons.” However,
the record contains no written discipline and Sam did not de-
scribe Fiore’s alleged misconduct. Further, the evidence does
not indicate that Respondent Albany Avenue actually reduced
meat department personnel and payroll when Fiore was demoted
and subsequently laid off. Rather, Respondent Albany Avenue
transferred Lyons back from Greaves Lane to replace Fiore as
meat manager (when Fiore was demoted) and hired Anthony
Remo (after Fiore was laid off). Respondent Albany Avenue
scheduled Lyons to work more than 40 hours per week when he
replaced Fiore, while Fiore had his weekly hours reduced to 35.
Payroll records actually indicate that meat department gross pay
increased from January to February 2016, after Fiore was laid
off. Accordingly, the Respondent Albany Avenue failed to es-
tablish a Wright Line defense that it would have taken adverse
employments actions against Fiore regardless of his union activ-
ities and affiliation. In fact, the pretextual nature of Respondent
Albany Avenue’s explanations tend to strengthen the assertion
that those adverse actions were discriminatory.
As with Venditti, the Respondents contend that Fiore engaged
in handbilling that lost the protection of the Act because the leaf-
lets urged customers not to shop at the store. I reject this defense
for the reasons stated above and find that Fiore’s handbilling was
protected by the Act. Medina Super Duper, 286 NLRB 728, 729
(1987); Rudy’s Farm Co., 245 NLRB 43 (1979); Roundy’s Inc.,
356 NLRB 126, 130 (2010).
Respondent Albany Avenue Rules
In about January 2016, Respondent Albany Avenue distrib-
uted and required employees to sign a document called Rules &
Regulations as a condition of employment. The General Counsel
contends that Respondent Albany Avenue violated Section
8(a)(1) of the Act because the following provisions in the Rules
& Regulations are overbroad and would restrict employees from
engaging in union or other protected concerted activities:
SOLICITATION
Solicitation is defined as the selling of merchandise or services,
charitable contributions petitions of any nature, illegal
438, 442 (1993). It is noteworthy that Sam Abed told Conti he was being
removed from the Sunday schedule at Greaves Lane in favor of another
employee, Musa, because Musa did not insist upon being paid overtime.
Conti also testified that he was ultimately “promoted” to the meat man-
ager position at Greaves Lane without an increase in his wage rate. These
events indicate that Respondent HB favored employees (unlike Fiore)
who did not insist upon and receive their proper pay (as reflected in the
Pathmark contract).
SEVEN SEAS UNION SQUARE, LLC 61
gambling items, etc. Employees may not directly or indirectly
solicit other associates for any purpose during scheduled work
hours while on company property, Non-Employees are not au-
thorized on company premises at any time for the purpose of
soliciting Key Food. Employees who are approached by a non-
associate soliciting on company property should immediately
report this to store management.
POLITICS:
YOUR COMPANY ENCOURAGES YOUR
PARTICIPATION IN THE POLITICAL PROCESS.
HOWEVER, SUCH ACTIVITY SHOULD BE
RESTRICTED TO YOUR OWN TIME AND BE
CONDUCTED AWAY FROM COMPANY PROPERTY.
NO POLITICAL OR LEGISLATIVE PETITIONS SHALL
BE CIRCULATED ON COMPANY PROPERTY
THERE IS TO BE NO LOITERING IN ANY SPECIFIC
DEPARTMENT AT ANY TIME. (EXAMPLE: NO
LOITERING IN THE DELI DEPARTMENT COMPANY
TIME OR OFF COMPANY TIME. NO LOITERING IN
ANY DEPARTMENT ON YOUR DAY OFF.)
IT IS IMPOSSIBLE TO COVER EVERY SINGLE ACT OR
MATTER: HOWEVER, ALL EMPLOYEES ARE
EXPECTED TO CONDUCT THEMSELVES PROPERLY
AT ALL TIME. IMPROPER CONDUCT OR MATTERS,
EVEN THOUGH NOT SPECIFICALLY MENTIONED
HEREIN, WILL SUBJECT THE EMPLOYEE TO
DISCIPLINE.
In Lutheran Heritage Village-Livonia, 343 NLRB 646, 646–
647 (2004), the Board stated as follows:
[O]ur inquiry into whether the maintenance of a challenged
rule is unlawful begins with the issue of whether the rule ex-
plicitly restricts activities protected by Section 7. If it does, we
will find the rule unlawful. If the rule does not explicitly restrict
activity protected by Section 7, the violation is dependent upon
a showing of one of the following: (1) employees would rea-
sonably construe the language to prohibit Section 7 activity; (2)
the rule was promulgated in response to union activity; or (3)
the rule has been applied to restrict the exercise of Section 7
rights.
Recently, in The Boeing Co., 365 NLRB No. 154 (2017), the
Board overturned Lutheran Heritage Village-Livonia, 343
NLRB 646 (2004), to the extent it required the finding of a vio-
lation where employees would “reasonably construe” the lan-
guage of a challenged rule to prohibit Section 7 activity. 365
NLRB No. 154 at *4. Instead, the Board will now balance the
following two factors in determining whether a neutral policy
violates the Act: (1) the nature and extent of the potential impact
on NLRA rights and (2) legitimate justifications associated with
the rule. In so ruling, the Board took particular issue with the
decision in William Beumont Hospital, 363 NLRB No. 162
(2016), where “a Board majority found that it violated federal
law for a hospital to state that nurses and doctors should foster
‘harmonious interactions and relationships,’….” 365 NLRB No.
154 at *4. The Board also determined that the new standard
should be applied retroactively. 365 NLRB No. 154 at *18.
The Board, in The Boeing Co. case, delineated three catego-
ries of employment policies under this new standard:
• Category 1 will include rules that the Board designates as
lawful to maintain, either because (i) the rule, when reasonably
interpreted, does not prohibit or interfere with the exercise of
NLRA rights; or (ii) the potential adverse impact on protected
rights is outweighed by justifications associated with the rule.
Examples of Category 1 rules are the no-camera requirement
in this case, the “harmonious interactions and relationships”
rule that was at issue in William Beaumont Hospital, and other
rules requiring employees to abide by basic standards of civil-
ity.
• Category 2 will include rules that warrant individualized
scrutiny in each case as to whether the rule would prohibit or
interfere with NLRA rights, and if so, whether any adverse im-
pact on NLRA-protected conduct is outweighed by legitimate
justifications.
• Category 3 will include rules that the Board will designate
as unlawful to maintain because they would prohibit or limit
NLRA-protected conduct, and the adverse impact on NLRA
rights is not outweighed by justifications associated with the
rule. An example of a Category 3 rule would be a rule that pro-
hibits employees from discussing wages or benefits with one
another.
Id. at *3–4.
I suspect that no-solicitation rules, with applicable case law
which is long-standing and well-settled, will be categorized by
the Board in group 3 under the new standard. No-solicitation
rules are similar to rules that prohibit employees from discussing
wages or benefits with one another. No-solicitation rules are
generally presumed overbroad and invalid if they would exclude
union solicitation during non-working times or in non-working
areas. St. John’s Hospital, 222 NLRB 1150 (1976); Brunswick
Corp., 282 NLRB 794, 795 (1987). Thus, although employers
can ban solicitation in working areas during working time, such
bans cannot extend to working areas during nonworking time.
Food Services of America, Inc., 360 NLRB 1012, 1018 (2014).
Respondent Albany Avenue’s policy was overbroad in prohibit-
ing employees from soliciting other employees for any purpose
on “company property” without excluding non-working areas as
locations where solicitation may occur. Further, the rule was
overbroad in restricting employees from soliciting other employ-
ees during “scheduled work hours” without clearly conveying
that solicitation may still occur during lunch breaks and rest pe-
riods. Laidlaw Transit, Inc., 315 NLB 79, 82 (1994); Hyundai
America Shipping Agency, 357 NLRB 860 (2011). The Board,
with court approval, has drawn a distinction between restrictions
during “working hours,” which are presumptively overbroad,
and “working time,” which are not. “Working time” is time
spent working, excluding breaks, while “working hours” is the
period, including breaks, from the beginning to the end of a shift.
Hyundai America Shipping Agency, Inc. v. NLRB., 805 F.3d 309,
315 (D.C. Cir. 2015); Our Way, Inc., 268 NLRB 394, 395
(1983).
The no-solicitation rule is also unlawful to the extent it re-
quires “employees who are approached by a non-associate
62 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
soliciting on company property should immediately report this
to store management,” since this would require employees “to
inform the Respondent of their union and other protected activ-
ity.” Verizon Wireless, 365 NLRB No. 38 (2017) citing Casino
San Pablo, 361 NLRB 1350, 1353 fn. 6 (2014). Accordingly,
Respondent Albany Avenue violated Section 8(a)(1) of the Act
by distributing and maintaining the Rules & Regulations which
included an overbroad no-solicitation policy.
While it is less clear to me in what group the Board would
place the sweeping rule against participation in the political pro-
cess on company property, including the circulation of legisla-
tive or political petitions, I find the rule to be unlawful under the
new standard. The Supreme Court has held that employees are
protected by the Act when they seek to “improve their lot as em-
ployees through channels outside the immediate employee-em-
ployer relationship….” Eastex, Inc. v. NLRB, 437 U.S. 556, 565
(1978) (upholding Section 7 protection for distribution of litera-
ture urging employees to vote for candidates supporting a federal
minimum wage increase). For example, the Board has found that
employees are engaged in protected activity when they appeal to
legislators or government agencies regarding their working con-
ditions. Riverboat Services of Indiana, Inc., 345 NLRB 1286,
1294–1297 (2005); Misericordia Hospital Center, 246 NLRB
351, 356 (1979) enfd. 623 F.2d 808 (2d Cir. 1980); Frances
House, Inc., 322 NLRB 516, 522–523 (1996). The language of
Respondent Albany Avenue’s rule on “Politics” certainly incor-
porates and prohibits such protective activity. Further, the Re-
spondent Albany Avenue has articulated no reason for the pro-
hibition, including an explanation as to why employees cannot
engaged in protected political activity on non-working time and
in nonworking areas. Thus, scrutinizing this particular rule un-
der category 2, I find it unlawful.
I do not find the rule against loitering to be unlawful. I suspect
that loitering rules will be judged by the Board under category 2
of The Boeing Co. standard. Employers have a legitimate inter-
est in preventing employees from spending time standing around
not working and potentially distracting other employees. On the
other hand, as the General Counsel correctly asserts, the Board
has long held illegal and overbroad an employer’s restriction of
access by off-duty employees to external (e.g., parking lots) and
other non-working areas. Palms Hotel & Casino, 344 NLRB
1363 (2005) citing Tri-County Medical Center, 222 NLRB 1089
(1976). See also Tecumseh Packaging Sols., Inc., 352 NLRB
694 (2008); The Continental Group, Inc., 357 NLRB 409 (2011)
affg. decision at 353 NLRB 348 (2008). Here, the loitering rule
limits loitering to specific departments, which seems to refer to
interior working areas. I am mindful that the Respondent Albany
Avenue promulgated these rules after the Union started handbill-
ing outside the stores, but the loitering rule does not prohibit such
conduct that is not in “any specific department.” Accordingly, I
find the rule on loitering to be lawful.
Finally, I do not find the catch-all disciplinary prohibition
against “improper conduct” to be unlawful under the new stand-
ard. It is necessarily vague since it is a warning to employees
against assuming that conduct is appropriate simply because it
was not anticipated and described as inappropriate in the Rules
& Regulations. This is a useful warning for employees as it likely
describes the reality of any workplace, be it a union or nonunion
setting. The desire of an employer to have employees engage in
proper conduct also appears similar to a reasonable desire that
employees maintain “harmonious interactions and relation-
ships.” Accordingly, I find the catch-all disciplinary provision to
be a category 1 rule under The Boeing Co. standard and lawful
to maintain.
Respondent Seven Seas
Refusals-to-Hire
The General Counsel contends that Respondent Seven Seas refused to hire the following A&P employees because of their union
activities or activities the Union engaged in on their behalf:
Last Name First Name Department Job Title
Colon Jose Carlos Meat Journeyman B
Diaz Juana Grocery Scanning Admin/Coordinator
Fields Keesha Bakery Bakery Manager/Dir/Dept Head
Gomez Madeline Deli Deli Clerk
Iturralde Dena Front End Cashier/Checker
Jones Tamika Floral Floral Manager/Dept Head
Maldonado Lucy Seafood Seafood Manager/Dept Head
Nunez Ricardo Grocery Dairy Manager
Ortega Maria Deli Deli Clerk
Pagan Elena Front End Cashier/Checker
Silverio Rosa Bakery Bakery Clerk
SEVEN SEAS UNION SQUARE, LLC 63
In addition to these alleged discriminatees, Respondent Seven
Seas did not hire producer clerk Francisco Delossantos, night
stock/payout clerk Troy O’Neal, front-end/customer service
clerk Sophie Henderson, and deli clerk Cesar Callendar. The rec-
ord contains no evidence that Delossantos, O’Neal, Henderson
and Callendar engaged in any union activity. However, the rec-
ord also contains no affirmative evidence that Respondent Seven
Seas hired any employees who engaged in union activities.
Respondent Seven Seas is owned by brothers Paul and Pat
Conte, who own other unionized supermarkets. The Contes pur-
chased the Food Emporium supermarket in Union Square with
the understanding that it would remain unionized. Respondent
Seven Seas was not seeking to avoid successorship or its cor-
responding bargaining obligation. Abondolo admitted saying
during negotiations that he knew the Union Square store was
“heavy” in the sense that it had a large number of full-time em-
ployees. Further, it is undisputed that, on November 7, LoIacono
called Pat Conte and “said that he knew that the store was very
heavy and if we wanted to not hire anybody to make up a list and
to send it to him.” Therefore, the General Counsel does not claim
that layoffs were economically unjustified or that the Contes har-
bored rabid antiunion animus. Rather, the General Counsel
largely attributes the discriminatory motivation in these refusal-
to-hire cases to Gowon and contends that Respondent Seven
Seas violated the Act by relying on Gowon to recommend which
employees not to employ. A hiring decision that is based upon
the tainted recommendation of an individual who harbors anti-
union animus will be found to be discriminatory. Bruce Packing
Co., Inc., 357 NLRB 1084, 1086 (2011); KRI Constructors, 290
NLRB 802, 812 (1988).
Gowon did express hostility toward union intervention on be-
half of employees when she asked employees why they con-
tacted the Union instead of her. Monier and the stewards testi-
fied that scheduling issues were the most prevalent among em-
ployee complaints. According to steward Juana Diaz, Gowon
did not like to change the schedule once she made it. Monier and
the stewards testified that Gowon would sometimes storm off af-
ter being confronted with a union complaint. The record also
reflects that Gowon angrily asked Monier, after A&P declared
bankruptcy, why she (Monier) even came to the store anymore
now that the employees did not have a Union. This remark sug-
gests that Gowon perceived the A&P bankruptcy as a mechanism
for ridding the store of the Union and excluding the Union from
employee concerns and complaints. Indeed, the record does not
contain evidence that Respondent Seven Seas hired any employ-
ees who were the subject of union complaints.
On the other hand, it must be recognized that Gowon was tol-
erant of certain union activity and Respondent Seven Seas re-
fused to hire certain employees who were not shown to have
raised complaints to the Union’s attention. Ortega handed out
materials she received at union meetings in the supermarket, and
Gowon did not attempt to stop her. When Monier came to the
store, union stewards spent considerable time walking around the
store with her and talking to employees about any concern they
may have even though the contract did not provide for such un-
ion time. Diaz was not officially selected as steward, but acted
in that capacity on an informal basis. Gowon often asked Diaz
why she was coming to her with employee issues since Diaz was
not a steward, but Gowon did reluctantly discuss these issues
with Diaz.
As alluded to above, the Board addressed the standard for a
discriminatory refusal-to-hire as follows in FES, 331 NLRB 9
(2000):
To establish a discriminatory refusal to hire, the General Coun-
sel must, under the allocation of burdens set forth i, enfd. 662
F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), first
show the following at the hearing on the merits: (1) that the
respondent was hiring, or had concrete plans to hire, at the time
of the alleged unlawful conduct; (2) that the applicants had ex-
perience or training relevant to the announced or generally
known requirements of the positions for hire, or in the alterna-
tive, that the employer has not adhered uniformly to such re-
quirements, or that the requirements were themselves pre-
textual or were applied as a pretext for discrimination; and (3)
that antiunion animus contributed to the decision not to hire the
applicants. Once this is established, the burden will shift to the
respondent to show that it would not have hired the applicants
even in the absence of their union activity or affiliation. If the
respondent asserts that the applicants were not qualified for the
positions it was filling, it is the respondent’s burden to show, at
the hearing on the merits, that they did not possess the specific
qualifications the position required or that others (who were
hired) had superior qualifications, and that it would not have
hired them for that reason even in the absence of their union
support or activity. In sum, the issue of whether the alleged dis-
criminatees would have been hired but for the discrimination
against them must be litigated at the hearing on the merits.
With regard to the element that the General Counsel must es-
tablish concrete plans to hire, the Board added:
The General Counsel may establish a discriminatory refusal to
hire even when no hiring takes place if he can show that the
employer had concrete plans to hire and then decided not to
hire because applicants for the job were known union members
or supporters. See, e.g., V.R.D. Decorating, 322 NLRB 546,
551–552 (1996) (employer held to have discriminatorily re-
fused to hire applicants where employer advertised for experi-
enced commercial/industrial painters, received applications
from known union members or supporters with experience in
commercial and industrial painting, and delayed filling the ad-
vertised jobs in order to avoid making job offers to the union
applicants).
Id. at fn. 7
The Board in FES differentiated a refusal-to-hire from a
Simpson Jerry Produce Produce Clerk
Tirado Natalie Store Bakery Bakery Clerk
64 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
refusal-to-consider-for-hire violation, describing the latter as fol-
lows:
To establish a discriminatory refusal to consider, pursuant to
Wright Line, supra, the General Counsel bears the burden of
showing the following at the hearing on the merits: (1) that the
respondent excluded applicants from a hiring process; and (2)
that antiunion animus contributed to the decision not to con-
sider the applicants for employment. Once this is established,
the burden will shift to the respondent to show that it would not
have considered the applicants even in the absence of their un-
ion activity or affiliation.
Id. at 15.
The difference between a refusal-to-hire and refusal-to-con-
sider-for-hire violation is that, in the former case, the employer
has a job available that the alleged discriminatee is qualified to
perform. Where a refusal-to-hire violation is found, the discrim-
inatee is entitled to instatement and backpay. Id. at 12. Where a
refusal-to-consider-for-hire violation is found, the discriminatee
is only entitled to nondiscriminatory consideration for future
openings. Id. at 15.
Conte indicated during the October 14 bargaining session that
Respondent Seven Seas intended to retain all of the A&P em-
ployees (including the alleged discriminatees). Thus, the Re-
spondent had concrete plans to hire. Even after Conte notified
the Union on November 8 that certain employees would not be
hired, Respondent Seven Seas retained nearly 100 A&P employ-
ees.
Respondent Seven Seas largely hired A&P employees in job
titles previously held by the alleged discriminatees, which the
discriminatees were qualified to perform. The record contains
no evidence that the job responsibilities of A&P employees
changed in any meaningful way when the store transitioned to
Key Food. It appears that A&P cashier/checker Iturralde and
scanning administrator Diaz were the only full-time employees
in their position. However, they were both qualified to perform
the work of part-timer employees who were hired into the same
positions. Bakery manager Keesha Fields was not hired and the
record does not contain evidence that a bakery manager was
hired to replace her, but it is reasonable to assume that Fields
could have performed the work of bakery clerks who were
hired.48
The remaining question is whether anti-union animus contrib-
uted to the decision of Respondent Seven Seas not to hire the
alleged discriminatees. The evidence indicates that Gowon did
not want employees to go to the Union with workplace com-
plaints and harbored antiunion animus associated with the

48 Floral Manager Tameka Jones was not hired and the record does
not indicate that she was replaced. The record also does not necessarily
indicate that she could have performed the job of another employee who
was hired by Respondent Seven Seas. Accordingly, it is arguable that
the allegations regarding Jones is more aptly classified as a refusal-to-
consider-for-hire than a refusal-to-hire, with a corresponding difference
in the remedy. However, this can be addressed in a compliance proceed-
ing, if necessary.
49 The Respondents assert in their brief that evidence of union activity
by many of the alleged discriminatees is based exclusively on hearsay. I
reject this assertion. Monier and the stewards testified that they raised
Union’s intervention on employees’ behalf. It is also supportive
of a prima facie case that Respondent Seven Seas was not shown
to have hired any employee who was the subject of union com-
plaints. Therefore, the General Counsel’s prima facie case with
regard to the alleged discriminatees turns largely on the promi-
nence of union activity in question and whether it is reasonable
to believe that, by a preponderance of the evidence, Respondent
Seven Seas refused to hire some or all of them on that basis.49
The General Counsel did not Establish a Prima Facie Case with
Regard to Lucy Maldonado, Ricardo Nunez, Jerry Simpson,
and Natalie Tirado
The General Counsel did not establish a prima facie case that
the Respondent Seven Seas refused to hire Simpson because of
union activity. Simpson raised a scheduling complaint to the
Union’s attention and Monier brought that complaint to the at-
tention of management. However, Monier’s best recollection
was that this occurred before Gowon was transferred to Union
Square. Therefore, the General Counsel failed to establish that
Gowon was aware of any activity the Union engaged in on behalf
of Simpson and recommended he not be hired on that basis.
The General Counsel did not establish a prima facie case that
Respondent Seven Seas’ refused to hire Nunez because of union
activity. Nunez raised a single payroll issue to the Union’s at-
tention when he worked at the Six Avenue store with Gowon
(then Assistant Manager of that store) in 2010. According to
Monier, Gowon was not opposed to making the payroll adjust-
ment that Nunez requested and said she would handle it (even
though she never did). Accordingly, Monier contacted human
resources and human resources made the change. This event oc-
curred five years before Respondent Seven Seas refused to hire
Nunez and does not appear to have been contentious. The Un-
ion’s activity on behalf of Nunez was minimal, isolated, and ex-
tremely remote in time. Evidence that Gowon was tolerant of
certain union activity and that Respondent Seven Seas did not
hire certain employees who engaged in no union activity (and
were not the subject of Union activity on their behalf) also un-
dermines a claim that Gowon was hostile toward any employee
who was associated with the Union and exclusively concerned
with removing such employees from the work force. Accord-
ingly, the General Counsel has not established a preliminary case
by a preponderance of the evidence that Respondent Seven Seas
refused to hire Nunez, in whole or in part, on the basis of union
activity.
The General Counsel failed to establish a prima facie case that
Respondent Seven Seas refused to hire Lucy Maldonado because
of union activity. In about early-2015, Monier advised Gowon
certain employee complaints to Gowon’s attention. Although some of
these employees did not testify, the General Counsel’s evidence is not
hearsay. Monier and the stewards have personal knowledge of and tes-
tified to the union activity they engaged in during discussions with a su-
pervisor on behalf of alleged discriminatees. It is unlawful for an em-
ployer to discriminate against an employee because a union representa-
tive raised a contractual issue on behalf of an employee even if the em-
ployee does not testify and the employer has no knowledge of the em-
ployees’ protected discussions with the Union (which gave rise to the
Union’s complaints).
SEVEN SEAS UNION SQUARE, LLC 65
that Maldonado’s vacation time was incorrect and Monier said
she would look into it. Monier followed up once with Gowon,
but Gowon had not addressed the issue. Although Monier did
contact human resources, Maldonado went out on workers com-
pensation leave and Monier did not recall how or whether Mal-
donado’s vacation issue was resolved. The event was less re-
mote in time than the issue raised on behalf of Nunez, but the
record failed to demonstrate that human resources actually con-
tacted Gowon or did anything about it. The Union’s activity on
behalf of Maldonado was minimal, isolated, and lacking in any
evidence of contentiousness with Gowon. Evidence that Gowon
was tolerant of certain union activity and that Respondent Seven
Seas did not hire certain employees who engaged in no union
activity (and were not the subject of union activity on their be-
half) also undermines a claim that Gowon was hostile toward any
employee who was associated with the Union and exclusively
concerned with removing such employees from the work force.
Under the circumstances, the General Counsel has not estab-
lished a preliminary case by a preponderance of the evidence that
Respondent Seven Seas refused to hire Maldonado, in whole or
in part, on the basis of union activity.
The General Counsel failed to establish a prima facie case that
Respondent Seven Seas refused to hire Natalie Tirado because
of union activity. When the 87th Street store closed, Monier
complained to Gowon about transferring Tirado to the Union
Square bakery department instead of a cashier’s position. Mon-
ier noted that Tirado had an accommodation to sit while working
as a casher, but could not sit while working in the bakery.
Gowon summarily rejected Monier’s request without explana-
tion. Therefore, Monier arranged with Smith (then the store
manager of Union Square) to have Tirado moved to a cashier
position and work while seated. Although we do not know ex-
actly when this occurred, it was an isolated incident that probably
occurred before 2015. Further, although Gowon seems to have
been abrupt and largely unresponsive when Monier asked why
Tirado was not transferred to a cashier position, there is no evi-
dence that Gowon had any further involvement in the matter or
that she was adversely affected by it in any way. Evidence that
Gowon was tolerant of certain union activity and that Respond-
ent Seven Seas did not hire certain employees who engaged in
no union activity (and were not the subject of union activity en-
gaged in on their behalf) also undermines a claim that Gowon
was hostile toward any employee associated with the Union and
exclusively concerned with removing such employees from the
workforce. Under the circumstances, I do not believe the Gen-
eral Counsel has established a preliminary case by a preponder-
ance of the evidence that Respondent Seven Seas refused to hire
Tirado on the basis of union activity.
The General Counsel Established a Prima Facie Case with
Regard to Jose Carlos Colon, Juana Diaz, Keesha Fields,
Madeline Gomez, Dena Itturalde, Tamika Jones, Maria Ortega,
Elena Pagan, and Rosa Silverio
The General Counsel established a prima facie case that Re-
spondent Seven Seas refused to hire Keesha Fields because of
union activity. Fields requested time off for surgery in about
April or May and Gowon actively opposed the request because
she wanted Fields at work to run the bakery. In this situation,
the Union did not just go to human resources in order to imple-
ment a request that Gowon did not oppose. Rather, the Union
went over Gowon’s head to successfully reverse a decision
Gowon made. Indeed, scheduling was the primary issue of con-
tention the Union had with Gowon when it came to matters of
contract administration and the issue involving Fields was con-
tentious. Gowon expressed hostility toward employees who so-
licited union intervention and the activity was not particularly
remote in time from the relevant hiring decisions in November.
The absence of any evidence that Respondent Seven Seas hired
employees who engaged in or were the subject of union activity
also supports a prima facie case. Under the circumstances, the
General Counsel established a preliminary case by a preponder-
ance of the evidence that union activity contributed to Respond-
ent Seven Seas’ refusal to hire Fields.
The General Counsel established a prima facie case that Seven
Seas’ refused to hire Madeline Gomez because of union activity.
The evidence indicated that union activity on behalf of Gomez
was quite prominent with regard to safety and scheduling com-
plaints. When Gomez first came to the Union Square store,
Monier complained to Gowon that Gomez was concerned about
using the slicer without adequate training. Gowon abruptly re-
jected this complaint, but Monier was able to go over Gowon’s
head and obtain a commitment from human resources to train
Gomez on the slicer before she would be required to work with
it. Monier also came to the store in response to other safety is-
sues raised by Gomez, including exposed wiring and a problem
with the slicer’s safety switch. According to Monier, she came
to the store regarding safety complaints raised by Gomez about
four times in 2015. On these occasions, Gowon seemed upset
and said to Gomez, “why didn’t you just speak to me about it?
Why do you have to call Margaret? I’ll take care of it.” These
comments suggest antiunion animus specifically directed at
Gomez. The absence of evidence that Respondent Seven Seas
hired employees who engaged in or were the subject of union
activity also supports a prima facie case. Under the circum-
stances, the General Counsel established a preliminary case by a
preponderance of the evidence that union activity contributed to
Respondent Seven Seas’ refusal to hire Gomez.
The General Counsel established a prima facie case that Re-
spondent Seven Seas refused to hire Elena Pagan because of un-
ion activity. Gowon rejected a union assertion that Pagan (a full-
time employee who had been reduced to part-time) was not re-
ceiving the minimum hours for a part-time employee. Schedul-
ing was the Union’s primary issue of contention with Gowon and
a constant source of friction. The Union filed a grievance re-
garding the transition of certain employees from full-time to
part-time. Monier went over Gowon’s head to human resources
with regard to Pagan’s scheduling issue and was able to have the
matter resolved in a manner contrary to Gowon’s wishes.
Gowon was hostile toward employees who were the subject of
such union intervention. The absence of evidence that Respond-
ent Seven Seas hired employees who engaged in or were the sub-
ject of union activity also supports a prima facie case. Under the
circumstances, the General Counsel established a preliminary
case by a preponderance of the evidence that union activity con-
tributed to Respondent Seven Seas’ refusal to hire Pagan.
66 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The General Counsel established a prima facie case that Re-
spondent Seven Seas refused to hire Rosa Silverio because of
union activity. Diaz talked to Gowon about a chronic seniority
related scheduling problem Silverio complained about on an on-
going and regular basis. Scheduling was the Union’s primary
issue of contention with Gowon and a constant source of friction.
Further, not long before the closing, stewards met with Gowon
because she refused to give Silverio a day off to have her home
inspected. Accordingly, the Union’s activity on behalf of Sil-
verio was quite prominent and Gowon was hostile toward em-
ployees who were the subject of such union intervention. The
absence of evidence that Respondent Seven Seas hired employ-
ees who engaged in or were the subject of union activity also
supports a prima facie case. Under the circumstances, the Gen-
eral Counsel established a preliminary case by a preponderance
of the evidence that union activity contributed to Respondent
Seven Seas’ refusal to hire Silverio.
The General Counsel established a prima facie case that Seven
Seas’ refused to hire Jose Carlos Colon because of union activity.
Jones and Monier talked to Gowon about a chronic problem Co-
lon had with scheduling “split shifts” and late shifts. Scheduling
was the Union’s primary issue of contention with Gowon and a
constant source of friction. Accordingly, the Union’s activity on
behalf of Colon was quite prominent and Gowon was hostile to-
ward employees who were the subject of such union interven-
tion. Further, although the evidence does not indicate exactly
when these issues arose, they occurred at Union Square when
Gowon was General Manager (i.e., not too long before the tran-
sitioned to Key Food). The absence of evidence that Respondent
Seven Seas hired employees who engaged in or were the subject
of union activity also supports a prima facie case. Under the cir-
cumstances, the General Counsel established a preliminary case
by a preponderance of the evidence that union activity contrib-
uted to Respondent Seven Seas’ refusal to hire Colon.
Among non-steward employees, the General Counsel estab-
lished its strongest prima facie case in connection with the re-
fusal to hire Maria Ortega because of union activity. Ortega was
known by Gowon to have attended union meetings with the
stewards and to have handed out union literature at the store.
Monier sometimes called the store to speak with Ortega regard-
ing these matters and Ortega transferred some of Monier’s call
to Gowon. Ortega also translated for employees when they
wanted to raise workplace issues with Gowon. In addition, Or-
tega was, herself, the subject of certain union complaints. Dur-
ing the winter before the sale of the store, the Union and Ortega
repeatedly complained to Gowon about the door being left open
and the cold temperature in the café’ where Ortega worked. The
Union and Ortega also repeatedly complained to Gowon about
Ortega not being assigned to work Sundays while less senior
part-time café’ employees received Sunday overtime. This cul-
minated in a contentious interaction between Gowon and Ortega
on November 6 (just 2 days before the Union was notified that
Ortega would not be hired). Ortega’s protected activities were
prominent, regular, numerous and close in time to the decision
by Respondent Seven Seas not to employ her. The absence of
evidence that Respondent Seven Seas hired employees who en-
gaged in or were the subject of union activity also supports a
prima facie case. Under the circumstances, the General Counsel
established a preliminary case by a preponderance of the evi-
dence that union activity contributed to Respondent Seven Seas’
refusal to hire Ortega.
The General Counsel established a prima facie case that Re-
spondent Seven Seas refused to hire stewards Tamika Jones,
Dena Itturalde, and Juana Diaz because of union activity. Alt-
hough Diaz acted as a steward in an informal capacity, she effec-
tively functioned as a steward and arguably had the most conten-
tious relationship with Gowon. The stewards raised employee
complaints to Gowon’s attention and participated in meetings
between Gowon and Monier. Diaz also regularly complained to
Gowon about being passed over for Sunday overtime herself in
favor of a less senior part-time employee. Among employees in
the Union Square store, these stewards engaged in union activity
that was the most prominent, regular and numerous, and Gowon
demonstrated anti-union animus toward such activity. The ab-
sence of evidence that Respondent Seven Seas hired employees
who engaged in or were the subject of union activity also sup-
ports a prima facie case. Under the circumstances, the General
Counsel established a preliminary case by a preponderance of
the evidence that union activity contributed to Respondent Seven
Seas’ refusal to hire Jones, Iturralde and Diaz.
The General Counsel Failed to establish that Respondent Seven
Seas violated the Act by Refusing to Hire Highly
Paid A&P Employees
As an alternative theory, the General Counsel contends that
Respondent Seven Seas violated Section 8(a)(3) and (1) by re-
fusing to hire highly paid A&P employees. The record in this
case does indicate that Paul Conte, at a meeting with the Union
in December, expressed unhappiness with Local 342 employees
who do not cooperate by working under the table. This statement
would go a long way toward establishing a discriminatory re-
fusal-to-hire violation if the record contained evidence that Re-
spondent Seven Seas hired employees off the street or retained
unit employees who were willing to work for lower wage rates
than those defined in the old Food Emporium contract. How-
ever, the record contains no such evidence and the General
Counsel does not contend that Respondent Seven Seas discrimi-
nated against employees on that basis. Rather, citing Sierra Re-
alty Corp., 317 NLRB 832, 833 (1995), the General Counsel
contends that Respondent Seven Seas violated the Act by select-
ing lower paid employees for hire among former A&P employ-
ees who were all paid (and continue to be paid) pursuant to the
terms of the same collective-bargaining agreement. As noted
above in previous sections of this decision, I disagree with the
General Counsel’s interpretation of the law.
Throughout negotiations, the Union maintained its position
that A&P employees should retain their current wages upon be-
ing hired by Key Food stores. The Union admitted during nego-
tiations that the Union Square store had a large number of highly
paid full-time employees and asked the Contes which employees
they did not want to hire. Under these circumstances, Respond-
ent Seven Seas was not prohibited by Section 8(a)(3) and (1) of
the Act from selecting employees for hire on the basis of their
respective wage rates as this would constitute a valid economic
decision instead of a decision based on union affiliation.
SEVEN SEAS UNION SQUARE, LLC 67
Vantage Petroleum Corp., 247 NLRB 1492 (1980); Sierra Re-
alty Corp., 82 F.3d 494 (DC Cir. 1996).
Respondent Seven Seas’ Wright Line Defense
Respondent Seven Seas did not make out a Wright Line de-
fense that Colon, Diaz, Fields, Gomez, Iturralde, Jones, Ortega,
Pagan, and Silverio would not have been hired regardless of un-
ion activity. The Conte brothers were admittedly unfamiliar with
the workforce before they took over the Union Square store.
Therefore, they relied on the recommendations of Gowon. Pat
Conte testified to that effect upon questioning by the General
Counsel and this testimony was consistent with the affidavit he
provided during the Regional investigation. I do not credit Pat’s
testimony, late in the trial, that he relied primarily on the recom-
mendations of Union Square Director of Security Mac McBrien.
Conte did not mention McBrien in his affidavit and his response
to earlier questioning by the General Counsel. Further, even af-
ter he testified about McBrien, Pat again admitted that Gowon
was involved in the hiring decisions.
Respondent Seven Seas did not call Gowon to offer any con-
trary explanation of her hiring recommendations. Respondents’
counsel represented during the trial that Gowon was no longer
employed by Respondent Seven Seas, but the record does not
contain evidence of the same and, in any event, Gowon’s sever-
ance does not explain her failure to testify. Even if she were
reluctant to testify, the parties have subpoena power. More im-
portantly, even if her failure to testify were explained, the ab-
sence of such testimony does not absolve the Respondent Seven
Seas of its burden of establishing a Wright Line defense that em-
ployees would not have been hired regardless of union activity.50
Surveillance and/or Creating the Impression of Surveillance
The General Counsel alleges that Respondent Seven Seas, by
Pat Conte, engaged in surveillance or created the impression of
surveillance by using his phone as a camera during the hearing
of this case. I reject this contention. Ortega testified that, during
a break in the trial, Pat held his phone in front of him as if to take
a “selfie.” The record contains no evidence that Pat pointed the
“camera” at an employee or witness in such a manner as to give
the subject the impression that he/she was being photographed
or recorded. Pat did take a selfie, but no employee or witness
appeared in the picture. He also credibly testified that it was not
his intention to take a picture of Ortega or anyone else. Accord-
ingly, I will dismiss the allegation that Respondent Seven Seas
engaged in surveillance of employees’ protected activity or cre-
ated the impression that such activity was under surveillance.
III. INSTATEMENT/REINSTATEMENT
The complaint alleges that Respondent HB failed to reinstate
employees who were unlawfully laid off. Catalano testified that
he told Abondolo that Respondent HB would take Quiles or Maf-
fia back as meat manager, and confirmed this offer in a letter to
the Region. Otherwise, the Respondents have not offered in-
statement or reinstatement to any employees at issue in this case.

50 Interestingly, as noted above, the General Counsel attributes the
Respondents hiring decisions in part to employees’ wage rates, which in
my opinion would constitute a valid non-discriminatory basis for such
decisions. However, Respondent Seven Seas did not assert and Pat
I do not find that Quiles and Maffia received valid offers of in-
statement or reinstatement, respectively.
The Board has found “that offers of reinstatement conveyed
to employees through the medium of their bargaining representa-
tive are valid offers of reinstatement.” Lipman Bros., Inc., 164
NLRB 850, 851 (1967), citing Art Metalcraft Plating Co., Inc.,
133 NLRB 706, 707 (1961), enfd. 303 F.2d 478 (3rd Cir. 1962).
However, an offer of reinstatement to be valid must be “firm,
clear, specific, and unconditional.” Krist Oil Co., Inc., 328
NLRB 825, 827 (1999). Here, Catalano testified that, during a
telephone call with Abondolo, he asked whether the Union
wanted employees back, but Abondolo refused the offer. Rather,
Abondolo allegedly said he would get them jobs himself. It was
not clear from Catalano’s testimony that the Union received spe-
cific jobs offers for specific stores on behalf of Quiles and/or
Maffia. Further, although Abondolo was quite open in his testi-
mony about his failure to recall a number of events, he did
demonstrate a spontaneous and adamant recollection of certain
facts. Thus, when Abondolo was asked whether Catalano of-
fered to reinstate Quiles and/or Maffia, Abondolo was credible
in his denial that Catalano ever offered anyone his/her job back.
Indeed, Catalano implied that there may have been some ambi-
guity with regard to the offers of reinstatement when he indicated
in a position statement to the Region, “to eliminate any doubt as
to the fact that HB Food Corp. had offered employment to Nel-
son Quiles and/or Richard Maffia to be its Meat Manager, HB
Food Corp, unconditionally, in this letter, offers employment to
either one of them to be Its Meat Manager.” [Emphasis added]
Finally, the General Counsel presented compelling evidence that
it was contrary to the Union’s practice and particularly impracti-
cal in November (when so many former A&P employees had
been laid off) for the Union to deny a job offer on behalf of a
union member and misrepresent that the Union would be able to
find that member a job. Based on the forgoing, I do not find that
Respondent HB made a clear, specific and valid offer of instate-
ment or reinstatement to Quiles or Maffia.
It is true that, in Catalano’s December 23 position statement
to the Region, Respondent HB made a clear and specific offer to
employ at least one of the employees, Quiles or Maffia, to the
position of meat manager. However, the Board imposes on an
employer who has unlawfully discharged employees the obliga-
tion to remedy its unlawful action “by seeking out the employees
and offering reinstatement.” Hickory’s Best, Inc., 267 NLRB
1274, 1275 (1983), quoting Southern Greyhound Lines, 169
NLRB 627, 628 (1968). Accordingly, the Board has held that an
employer may not extinguish an employee’s backpay and rein-
statement rights by communicating an offer of reinstatement to
the General Counsel, particularly where, as here, the government
has expressly disavowed any intention to communicate that offer
to the employee in question. Hickory’s Best, Inc., 267 NLRB at
1275.
IV. THE RESPONDENTS’ JOINT EMPLOYER STATUS
The complaint alleges that Respondent Key Food is a joint
Conte did not testify that employees’ respective wages had anything to
do with hiring decisions. Accordingly, it is not a basis for a Wright Line
defense.
68 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
employer with each co-operative member-owner that is named
as a Respondent. In Hy-Brand Industrial Contractor’s, LTD.,
365 NLRB No. 156 (2017), the Board overruled the joint em-
ployer standard in Browning-Ferris Industries of California,
Inc., 362 NLRB 1599 (2015), and any allowance therein for the
finding of joint employer status based on a putative employer’s
limited, routine, indirect or reserved (but unexercised) control
over employees’ terms and conditions of employment. 365
NLRB at *1. Rather, in Hy-Brand, the Board stated that each
joint employer must be shown to have exercised “direct and im-
mediate” control over employees’ terms and conditions of em-
ployment. The Board also determined that its retraction of the
Browning-Ferris standard would not result in manifest injustice
if it is applied retroactively. 365 NLRB at *31. I find, under the
Hy-Brand standard, that the Respondents are joint employers as
alleged in the complaint in that they jointly exercised direct and
immediate control over employees’ terms and conditions of em-
ployment.The context of this case involves a bankruptcy pro-
ceeding in which Respondent Key Food orchestrated the pur-
chase of A&P stores with the overriding object of purchasing as
many stores as possible. To that end, Respondent Key Food pro-
vided members with information and organized an internal bid-
ding process to allocate A&P stores to Key Food members. Re-
spondent Key Food purchased stores itself through two newly
formed corporate member-owners and financed the purchase of
stores by loaning other member-owners 70 percent of the pur-
chase price. Respondent Key Food entered into the APA with
A&P and obtained its approval by the bankruptcy court. The
approved APA dictates to what extent the successor Key Food
stores would be required to retain former A&P employees and
the old A&P collective-bargaining agreements. To the extent the
APA did not require Key Food stores to assume the A&P collec-
tive-bargaining agreements, the APA required Key Food pur-
chasers to negotiate in good-faith for modified collective-bar-
gaining agreements and/or implement a last best offer. Indeed,
the APA, negotiations referenced therein, and the Respondents’
unilateral implementation of terms and conditions of employ-
ment are directly at issue in this unfair labor practice case.
Respondent Key Food and its member-owners banded to-
gether in order to negotiate common collective-bargaining agree-
ments that would cover all of the stores that were purchased
through the A&P liquidation. Respondent Key Food retained
Catalano as the lead labor lawyer to negotiate these contracts on
its behalf and on behalf of other member-owners. Catalano was
retained and paid by Respondent Key Food. However, the
money for Catalano’s legal services apparently came from a fee
Respondent Key Food charged the member-owners who pur-
chased A&P stores. Respondent Key Food and its member-own-
ers refused, for the most part, to negotiate independently with the
Union even though the Union requested separate negotiations
with the member-owner of each store. In fact, Catalano vigor-
ously objected to attempts by the Union to reach out directly to
owners in order to engage in individual bargaining. Negotiations
were handled primary by Catalano and Konzelman, often with-
out individual owners present.
Although the Respondents claim that Respondent Key Food
had no involvement in the personnel decisions of stores it did not
own itself, the record belies this assertion. The Union’s
objection to layoffs and offers of employment (or lack thereof)
were fielded and addressed by Catalano and Konzelman. It was
Catalano who addressed O’Leary’s complaints regarding Quiles
and Maffia, and who attempted to resolve those matters with the
Union. When the Union, on October 15, requested the specific
positions that would be filled at each store by A&P employees,
it was Konzelman who responded and declined to provide that
information. And from investigation to trial, it has been Cata-
lano who represented all the Respondents in connection with
these unfair labor practice charges.
This is truly a case in which Respondent Key Food and the
Respondent member-owners acted directly, immediately and
jointly through common representatives for purposes of address-
ing the terms and conditions of employment of unit employees.
The Respondents nevertheless contend that individual Re-
spondent member-owners were not statutory employers because
they did not employ any employees. However, in its answer to
the complaint, each of the Respondents admitted that, “at all ma-
terial times,” they have been employers within the meaning of
Section 2(2) of the Act. Accordingly, whether Respondents were
employers was not an issue to be litigated and will not be enter-
tained as a defense at this stage in the case.
I note, however, that the Respondent member-owners were
clearly employers when the vast majority of the unfair labor
practices took place. Frank Almonte made coercive statements
on about September 6, 2015, before the Howard Beach
Waldbaums transitioned to Key Food, but the Board has held
companies liable for violating the act when they coercively act
upon the employee of a different company. A. M. Steigerwald
Co., 236 NLRB 1512, 1515 (1978) (“the specific language of the
Act clearly manifests a legislative purpose to extend the statutory
protection of Section 8(a)(1) beyond the immediate employer-
employee relationship”).
REMEDY
Having found that the Respondents have engaged in certain
unfair labor practices, I find that they must be ordered to cease
and desist therefrom and to take certain affirmative action de-
signed to effectuate the policies of the Act.
The remedies of instatement and backpay are appropriate for
discriminatory refusals-to-hire, and I will order Respondents
Seven Seas and HB to provide those remedies to the extent pos-
sible. Obviously, Quiles is deceased and not subject to instate-
ment. FES, 331 NLRB 9 (2000).
The standard remedies for unilateral economic layoffs, like
discriminatory layoffs or discharges, are reinstatement and full
backpay, and I will order Respondents who engaged in such un-
lawful conduct to provide these remedies. Print Fulfillment
Servs. LLC, 361 NLRB 1243, *6–7 (2014); Eugene Iovine, 353
NLRB 400, 409 (2008). Further, to the extent the Respondents
unlawfully changed the wage rates and hours before laying em-
ployees off, backpay calculations for the layoffs shall be based
on the wage rates and hours that employees received before those
terms of employment were unlawfully altered. Thus, backpay
resulting from the layoffs of Gina Cammarano, Debra Abruzz-
ese, Michael Fischetti and Anthony Venditti will be based on
their weekly hours worked before Respondent Greaves Lane un-
lawfully reduced the work days of all employees on about
SEVEN SEAS UNION SQUARE, LLC 69
November 25. Backpay resulting from the layoff of Robert Jen-
zen will be based on his work hours before Respondent Albany
Avenue unlawfully reduced his work days in about late-Decem-
ber and further reduced his hours in mid-January 2016. Backpay
resulting from the layoff of Stephen Fiore will be based on his
wage rate and work hours before he was unlawfully demoted
with a corresponding reduction in pay rate and his weekly work
hours were reduced on about January 16, 2016.
Respondents Greaves Lane and Albany Avenue will be order
to rescind unlawful changes in the work days, work hours, and
pay rates of employees. Further, Respondent Albany Avenue
will make Fiore whole by paying him the difference in his pay
before about January 16, 2016, (when his wage rate and hours
were reduced) and his pay thereafter until he was laid off. Re-
spondent Albany Avenue will make Jenzen whole by paying him
the difference in his pay before about late-December, when his
work hours were first reduced, and his pay thereafter until he was
laid off. Respondent Greaves Lane will make whole employees
by paying them the difference between their pay before about
November 25, when their work days were reduced.
Backpay for the unlawful refusals-to-hire and layoffs shall be
calculated in accordance with F.W. Woolworth Co., 90 NLRB
289 (1950), with interest as described in New Horizons, 283
NLRB 1173 (1987), compounded daily as required in Kentucky
River Medical Center, 356 NLRB 6 (2010), enf. denied on other
grounds sub.nom. Jackson Hospital Corp. v. NLRB, 647 F.3d
1137 (D.C. Cir. 2011). In accordance with King Soopers, Inc.,
364 NLRB No. 93 (2016), the applicable Respondents shall com-
pensate employees who were unlawfully denied employment or
laid off for search-for-work and interim employment expenses
regardless of whether those expenses exceed their interim earn-
ings. Search-for-work and interim employment expenses shall
be calculated separately from taxable net backpay, with interest
at the rate prescribed in New Horizons, supra., compounded daily
as prescribed in Kentucky River Medical Center, supra.
Backpay for reductions of pay resulting from the reduction of
hours or wage rate shall be calculated in accordance with Ogle
Protection Service, 183 NLRB 682 (1970) instead of F.W. Wool-
worth Co., 90 NLRB 289 (1950), with daily compounded inter-
est. See Community Health Services, Inc., 361 NLRB 333
(2014) (that interim earnings should not be deducted in applying
the Ogle Protection Service backpay formula, when the employ-
ment of employees is not severed, falls within the bounds of the
Board’s broad remedial discretion).
In accordance with Don Chavas, LLC d/b/a Tortillas Don
Chavas, 361 NLRB 101 (2014), backpay computations shall
compensate employees for any adverse tax consequences of re-
ceiving lump sum backpay awards, and, in accordance with Ad-
voServ of New Jersey, Inc., 363 NLRB No. 143 (2016), the Re-
spondent shall, within 21 days of the date the amount of backpay
is fixed either by agreement or Board order, file with the Re-
gional Director for Region 29 a report allocating backpay to the
appropriate calendar year for each employee. The Regional

51 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended Or-
der shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all purposes.
Director will then assume responsibility for transmission of the
report to the Social Security Administration at the appropriate
time and in the appropriate manner.
All of the Respondents will be ordered to resume bargaining
with the Union for a collective-bargaining agreement.
Having found that Respondent CS2 unlawfully bypassed the
Union and dealt directly with Mariano Rosado regarding a sev-
erance agreement, I will require the Respondent to rescind that
severance agreement upon request by the Union. Presumably,
bargaining on severance and a severance agreement would be
part of overall negotiations for a contract, but the parties may
negotiate the issue of Rosado’s severance separately as long as
such bargaining is conducted in good-faith and comports with
applicable law.
ORDER51
1. The Respondents shall CEASE AND DESIST from engag-
ing in the following conduct:
A. Respondent HB, a joint employer, which consists of Key
Food Stores Co-Operative, Inc. (Key Food) of Staten Island,
New York and HB 84 Food Corp. of Howard Beach, New York,
its offers, agents, successors, and assigns, shall cease and desist
from
(1) Interrogating employees about union activities.
(2) Refusing to hire employees because of their union activi-
ties.
(3) Causing a different employer to lay off employees because
of their union activities.
(4) Failing and refusing to meet and bargain with the Union
as the exclusive representative of the bargaining unit set forth in
the collective-bargaining agreement between the Union and
Waldbaums Supermarket, Inc., which was entered into the rec-
ord of this case as General Counsel’s Exhibit 5.
(5) Unilaterally laying off unit employees without notifying
and giving the Union, United Food and Commercial Workers
Union, Local 342, AFL–CIO (the Union) an opportunity to bar-
gain.
(6) Refusing to reinstate employees who are unlawfully laid
off.
(7) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
B. Respondent Greaves Lane, a joint employer, which con-
sists of Key Food of Staten Island, New York and 100 Greaves
Lane Meat LLC of Staten Island, New York, its offers, agents,
successors, and assigns, shall cease and desist from
(1) Laying off employees because of their union activities.
(2) Failing and refusing to meet and bargain with the Union
as the exclusive representative of the bargaining unit set forth in
the collective-bargaining agreement between the Union and
Pathmark Stores, Inc., which was entered into the record of this
case as General Counsel’s Exhibit 4.
70 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(3) Unilaterally laying off unit employees without notifying
and giving the Union an opportunity to bargain.
(4) Refusing to reinstate employees who are unlawfully laid
off.
(5) Unilaterally reducing the workdays of unit employees
without notifying and giving the Union an opportunity to bar-
gain.
(6) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
C. Respondent Albany Avenue, a joint employer, which con-
sists of Key Food of Staten Island, New York and 1525 Albany
Avenue Meat LLC of Brooklyn, New York, its offers, agents,
successors, and assigns, shall cease and desist from
(1) Maintaining overly broad rules that prohibit employees
from engaging in protected solicitation and political activities on
non-working times and in nonworking areas, and require em-
ployees to report protected activities to management.
(2) Laying off or discharging employees because of their un-
ion activities.
(3) Failing and refusing to meet and bargain with the Union
as the exclusive representative of the bargaining unit set forth in
the collective-bargaining agreement between the Union and
Pathmark Stores, Inc., which was entered into the record of this
case as General Counsel’s Exhibit 4.
(4) Unilaterally laying off unit employees without notifying
and giving the Union an opportunity to bargain.
(5) Refusing to reinstate employees who are unlawfully laid
off.
(6) Demoting employees, reducing the work hours of employ-
ees, and/or reducing the wage rates of employees because of their
union activities.
(7) Unilaterally demoting, reducing the work hours, and/or
reducing the wage rate of unit employees without notifying and
giving the Union an opportunity to bargain.
(8) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
D. Respondent Seven Seas, a joint employer, which consists
of Key Food of Staten Island, New York and Seven Seas Union
Square, LLC of Manhattan, New York, its offers, agents, succes-
sors, and assigns, shall cease and desist from
(1) Refusing to hire employees because of their union activity
or because the Union engaged in activities on the employees’
behalf.
(2) Failing and refusing to meet and bargain with the Union
as the exclusive representative of the bargaining unit set forth in
the collective-bargaining agreement between the Union and
Food Emporium, which was entered into the record of this case
as GC Exh. 3.
(3) Unilaterally laying off unit employees without notifying
and giving the Union an opportunity to bargain.
(4) Refusing to reinstate employees who are unlawfully laid
off.
(5) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
E. Respondent CS2, a joint employer, which consists of Key
Food of Staten Island, New York and Key Food CS2, LLC, d/b/a
Food Universe of Bayside, New York, its offers, agents, succes-
sors, and assigns, shall cease and desist from
(1) Failing and refusing to meet and bargain with the Union
as the exclusive representative of the bargaining unit set forth in
the collective-bargaining agreement between the Union and
Waldbaums Supermarket, Inc., which was entered into the rec-
ord of this case as GC Exh. 5.
(2) Unilaterally laying off unit employees without notifying
and giving the Union an opportunity to bargain.
(3) Refusing to reinstate employees who are unilaterally laid
off.
(4) Bypassing the Union and dealing directly with unit em-
ployees regarding their wages, hours and other terms and condi-
tions of employment.
(5) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act
F. Respondent Riverdale, a joint employer, which consists of
Key Food of Staten Island, New York and Riverdale Grocers
LLC of the Bronx, New York, its offers, agents, successors, and
assigns, shall cease and desist from
(1) Failing and refusing to meet and bargain with the Union
as the exclusive representative of the bargaining unit set forth in
the collective-bargaining agreement between the Union and
Food Emporium (Retail Industry Agreement New York Divi-
sion), which was entered into the record of this case as GC Exh.
6.
(2) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act
G. Respondent Glen Oaks, a joint employer, which consists
of Key Food of Staten Island, New York and Jar 259 Food Corp.
of Glen Oaks, New York, its offers, agents, successors, and as-
signs, shall cease and desist from
(1) Failing and refusing to meet and bargain with the Union
as the exclusive representative of the bargaining unit set forth in
the collective-bargaining agreement between the Union and
Waldbaums Supermarket, Inc., which was entered into the rec-
ord of this case as GC Exh. 5.
(2) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act
H. Respondent Park Plaza, a joint employer, which consists
of Key Food of Staten Island, New York and Park Plaza Food
Corp. of Glen Head, New York, its offers, agents, successors,
and assigns, shall cease and desist from
(1) Failing and refusing to meet and bargain with the Union
as the exclusive representative of the bargaining unit set forth in
the collective-bargaining agreement between the Union and
Waldbaums Supermarket, Inc., which was entered into the rec-
ord of this case as GC Exh. 5.
(2) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act
I. Respondent Paramount, a joint employer, which consists of
Key Food of Staten Island, New York and Paramount Supermar-
kets, Inc. of Queens, New York, and Brooklyn, New York, its
SEVEN SEAS UNION SQUARE, LLC 71
offers, agents, successors, and assigns, shall cease and desist
from
(1) Failing and refusing to meet and bargain with the Union
as the exclusive representative of the bargaining unit at its
Queens, New York facility as set forth in the collective-bargain-
ing agreement between the Union and Waldbaums Supermarket,
Inc., which was entered into the record of this case as GC Exh.
5.
(2) Failing and refusing to meet and bargain with the Union
as the exclusive representative of the bargaining unit at its
Brooklyn, New York facility as set forth in the collective-bar-
gaining agreement between the Union and Great Atlantic & Pa-
cific Tea Company, Inc., which was entered into the record of
this case as GC Exh. 7.
(3) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. The Respondents shall take the following AFFIRMATIVE
ACTION necessary to effectuate the policies of the Act.
A. Respondent HB shall
(1) To reach a collective-bargaining agreement, meet and bar-
gain with the Union as the exclusive collective-bargaining rep-
resentative of employees in the bargaining unit set forth in the
collective-bargaining agreement between the Union and
Waldbaums Supermarket, Inc., which was entered into the rec-
ord of this case as General Counsel’s Exhibit 5.
(2) Before laying off bargaining unit employees for economic
reasons, notify and, upon request, bargain with the Union as the
exclusive collective-bargaining representative of employees in
the bargaining unit described above in paragraph 2(A)(1) of this
Order.
(3) Within 14 days from the date of this Order, offer Khadisha
Diaz, Richard Maffia, and Venus Nepay full reinstatement to
their former jobs or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their seniority or any
other rights or privileges previously enjoyed.
(4) Make Khadisha Diaz, Richard Maffia, and Venus Nepay
whole for any loss of earnings and other benefits suffered as a
result of their unlawful layoffs in the manner set forth in the rem-
edy section of this decision.
(5) Compensate Khadisha Diaz, Richard Maffia, and Venus
Nepay for search-for-work and interim employment expenses re-
gardless of whether those expenses exceed their interim earn-
ings.
(6) Compensate Khadisha Diaz, Richard Maffia, and Venus
Nepay for the adverse tax consequences, if any, of receiving
lump-sum backpay awards, and file a report with the Social Se-
curity Administration allocating the backpay awards to the ap-
propriate calendar quarters for each employee.
(7) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board or
its agents, all payroll records, social security payment records,
timecards, personnel records and reports, and all other records,

52 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the National
Labor Relations Board” shall read “Posted Pursuant to a Judgment of the
including an electronic copy of such records if stored in elec-
tronic form, necessary to analyze the amount of backpay due un-
der the terms of this Order.
(8) Within 14 days after service by the Region, post at its fa-
cility copies of the attached notice marked “Appendix
A.”52 Copies of the notice, on forms provided by the Regional
Director for Region 29, after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous places, in-
cluding all places where notices to employees are customarily
posted. In addition to physical posting of paper notices, notices
shall be distributed electronically, such as by email, posting on
an intranet or an internet site, and/or other electronic means, if
the Respondent customarily communicates with its employees
by such means. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or covered
by any other material. If the Respondent has gone out of business
or closed the facility involved in these proceedings, the Respond-
ent shall duplicate and mail, at its own expense, a copy of the
notice to all current employees and former employees employed
by the Respondent at any time since September 1, 2015.
(9) Within 21 days after service by the Region, file with the
Regional Director for Region 29 a sworn certification of a re-
sponsible official on a form provided by the Region attesting to
the steps that the Respondent has taken to comply.
B. Respondent Greaves Lane shall
(1) To reach a collective-bargaining agreement, meet and bar-
gain with the Union as the exclusive collective-bargaining rep-
resentative of employees in the bargaining unit set forth in the
collective-bargaining agreement between the Union and Path-
mark Stores, Inc., which was entered into the record of this case
as GC Exh. 4.
(2) Before laying off bargaining unit employees for economic
reasons or reducing their work days, notify and, upon request,
bargain with the Union as the exclusive collective-bargaining
representative of employees in the bargaining unit described
above in paragraph 2(B)(1) of this Order.
(3) Rescind the unlawful change in the work days of unit em-
ployees.
(4) Within 14 days from the date of this Order, offer Debra
Abruzzese, Gina Cammarano, Michael Fischetti, and Anthony
Venditti full reinstatement to their former positions, or, if those
positions no longer exist, to substantially equivalent positions,
without prejudice to their seniority or any other rights or privi-
leges previously enjoyed.
(5) Make Debra Abruzzese, Gina Cammarano, Michael
Fischetti, and Anthony Venditti whole for any loss of wages or
benefits suffered as a result of their unlawful layoffs in the man-
ner set forth in the remedy section of this decision.
(6) Compensate Debra Abruzzese, Gina Cammarano, Mi-
chael Fischetti, and Anthony Venditti for search-for-work and
interim employment expenses regardless of whether those ex-
penses exceed their interim earnings.
(7) Make whole unit employees for any loss of earnings and
United States Court of Appeals Enforcing an Order of the National La-
bor Relations Board.”
72 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
other benefits suffered as a result of the unlawful reduction of
their work days from 6 days to 5 days per week, with a corre-
sponding reduction in pay, in the manner set forth in the remedy
section of this decision.
(8) Compensate all employees entitled to backpay for the ad-
verse tax consequences, if any, of receiving lump-sum backpay
awards, and file a report with the Social Security Administration
allocating the backpay awards to the appropriate calendar quar-
ters for each employee.
(9) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board or
its agents, all payroll records, social security payment records,
timecards, personnel records and reports, and all other records,
including an electronic copy of such records if stored in elec-
tronic form, necessary to analyze the amount of backpay due un-
der the terms of this Order.
(10) Within 14 days after service by the Region, post at its
facility copies of the attached notice marked “Appendix
B.”53 Copies of the notice, on forms provided by the Regional
Director for Region 29, after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous places, in-
cluding all places where notices to employees are customarily
posted. In addition to physical posting of paper notices, notices
shall be distributed electronically, such as by email, posting on
an intranet or an internet site, and/or other electronic means, if
the Respondent customarily communicates with its employees
by such means. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or covered
by any other material. If the Respondent has gone out of business
or closed the facility involved in these proceedings, the Respond-
ent shall duplicate and mail, at its own expense, a copy of the
notice to all current employees and former employees employed
by the Respondent at any time since November 1, 2015.
(11) Within 21 days after service by the Region, file with the
Regional Director for Region 29 a sworn certification of a re-
sponsible official on a form provided by the Region attesting to
the steps that the Respondent has taken to comply.
C. Respondent Albany Avenue shall
(1) To reach a collective-bargaining agreement, meet and bar-
gain with the Union as the exclusive collective-bargaining rep-
resentative of employees in the bargaining unit set forth in the
collective-bargaining agreement between the Union and Path-
mark Stores, Inc., which was entered into the record of this case
as (GC Exh. 4).
(2) Before laying off bargaining unit employees for economic
reasons or reducing their workdays, work hours or wage rates,
notify and, upon request, bargain with the Union as the exclusive
collective-bargaining representative of employees in the bar-
gaining unit described above in paragraph 2(C)(1) of this Order.

53 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the National
Labor Relations Board” shall read “Posted Pursuant to a Judgment of the
United States Court of Appeals Enforcing an Order of the National La-
bor Relations Board.”
(3) Rescind the unlawful changes in the workdays, work
hours and wage rates of unit employees.
(4) Notify all employees in writing that overly broad rules on
solicitation and politics contained in the “Key Food Rules &
Regulations” are rescinded, void, of no effect and will not be en-
forced. Further, notify all employees in writing that Respondent
Albany Avenue will not prohibit employees from engaging in
solicitation and political activity in a manner protected by the
Act, and will not require employees to report such activity to
management.
(5) Within 14 days from the date of this Order, offer Joseph
Batiste, Kalvin Harris, Robert Jenzen and Stephen Fiore full re-
instatement to their former positions, or, if those positions no
longer exist, to substantially equivalent positions, without preju-
dice to their seniority or any other rights or privileges previously
enjoyed.
(6) Make Joseph Batiste, Kalvin Harris, Robert Jenzen and
Stephen Fiore whole for any loss of wages or benefits suffered
as a result of their unlawful layoffs or discharge in the manner
set forth in the remedy section of this decision.
(7) Compensate Joseph Batiste, Kalvin Harris, Robert Jenzen
and Stephen Fiore for search-for-work and interim employment
expenses following their layoffs regardless of whether those ex-
penses exceed their interim earnings.
(8) Make Robert Jenzen whole for the unlawful reductions in
his work days and work hours in the manner set forth in the rem-
edy section of this decision.
(9) Make Stephen Fiore whole for the unlawful demotion, re-
duction of wage rate, and reduction of work hours in the manner
set forth in the remedy section of this decision.
(10) Compensate all employees entitled to backpay for the
adverse tax consequences, if any, of receiving lump-sum back-
pay awards, and file a report with the Social Security Admin-
istration allocating the backpay awards to the appropriate calen-
dar quarters for each employee.
(11) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board or
its agents, all payroll records, social security payment records,
timecards, personnel records and reports, and all other records,
including an electronic copy of such records if stored in elec-
tronic form, necessary to analyze the amount of backpay due un-
der the terms of this Order.
(12) Within 14 days after service by the Region, post at its
facility copies of the attached notice marked “Appendix
C.”54 Copies of the notice, on forms provided by the Regional
Director for Region 29, after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous places, in-
cluding all places where notices to employees are customarily
posted. In addition to physical posting of paper notices, notices
shall be distributed electronically, such as by email, posting on
54 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the National
Labor Relations Board” shall read “Posted Pursuant to a Judgment of the
United States Court of Appeals Enforcing an Order of the National La-
bor Relations Board.”
SEVEN SEAS UNION SQUARE, LLC 73
an intranet or an internet site, and/or other electronic means, if
the Respondent customarily communicates with its employees
by such means. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or covered
by any other material. If the Respondent has gone out of business
or closed the facility involved in these proceedings, the Respond-
ent shall duplicate and mail, at its own expense, a copy of the
notice to all current employees and former employees employed
by the Respondent at any time since November 1, 2015.
(13) Within 21 days after service by the Region, file with the
Regional Director for Region 29 a sworn certification of a re-
sponsible official on a form provided by the Region attesting to
the steps that the Respondent has taken to comply.
D. Respondents Seven Seas shall
(1) To reach a collective-bargaining agreement, meet and bar-
gain with the Union as the exclusive collective-bargaining rep-
resentative of employees in the bargaining unit set forth in the
collective-bargaining agreement between the Union and The
Food Emporium, which was entered into the record of this case
as GC Exh. 3.
(2) Before laying off bargaining unit employees for economic
reasons, notify and, upon request, bargain with the Union as the
exclusive collective-bargaining representative of employees in
the bargaining unit described above in paragraph 2(D)(1) of this
Order.
(3) Within 14 days from the date of this Order, offer Jose Car-
los Colon, Juana Diaz, Keesha Fields, Madeline Gomez, Dena
Iturralde, Tamika Jones, Maria Ortega, Elena Pagan, and Rosa
Silverio instatement to the positions they held as employees of
The Great Atlantic & Pacific Tea Company, or, if such positions
no longer exist, to substantially equivalent positions, without
prejudice to their seniority or any other rights or privileges pre-
viously enjoyed.
(4) Within 14 days from the date of this Order, offer Ayanna
Jordan full reinstatement to her former position, or, if that posi-
tion no longer exist, to a substantially equivalent position, with-
out prejudice to their seniority or any other rights or privileges
previously enjoyed.
(5) Make Jose Carlos Colon, Juana Diaz, Keesha Fields,
Madeline Gomez, Dena Itturalde, Tamika Jones, Maria Ortega,
Elena Pagan, and Rosa Silverio whole for any loss of wages or
benefits suffered as a result of the unlawful refusal to hire them
in the manner set forth in the remedy section of this decision.
(6) Make Ayanna Jordan whole for any loss of wages or ben-
efits suffered as a result of her unlawful layoff in the manner set
forth in the remedy section of this decision.
(7) Compensate Jose Carlos Colon, Juana Diaz, Keesha
Fields, Madeline Gomez, Dena Iturralde, Tamika Jones, Ayanna
Jordan, Maria Ortega, Elena Pagan, and Rosa Silverio for search-
for-work and interim employment expenses following their
layoffs regardless of whether those expenses exceed their interim
earnings.
(8) Compensate all employees entitled to backpay for the ad-
verse tax consequences, if any, of receiving lump-sum backpay

55 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the National
Labor Relations Board” shall read “Posted Pursuant to a Judgment of the
awards, and file a report with the Social Security Administration
allocating the backpay awards to the appropriate calendar quar-
ters for each employee.
(9) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board or
its agents, all payroll records, social security payment records,
timecards, personnel records and reports, and all other records,
including an electronic copy of such records if stored in elec-
tronic form, necessary to analyze the amount of backpay due un-
der the terms of this Order.
(10) Within 14 days after service by the Region, post at its
facility copies of the attached notice marked “Appendix
D.”55 Copies of the notice, on forms provided by the Regional
Director for Region 29, after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous places, in-
cluding all places where notices to employees are customarily
posted. In addition to physical posting of paper notices, notices
shall be distributed electronically, such as by email, posting on
an intranet or an internet site, and/or other electronic means, if
the Respondent customarily communicates with its employees
by such means. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or covered
by any other material. If the Respondent has gone out of business
or closed the facility involved in these proceedings, the Respond-
ent shall duplicate and mail, at its own expense, a copy of the
notice to all current employees and former employees employed
by the Respondent at any time since November 1, 2015.
(11) Within 21 days after service by the Region, file with the
Regional Director for Region 29 a sworn certification of a re-
sponsible official on a form provided by the Region attesting to
the steps that the Respondent has taken to comply.
E. Respondent CS2 shall
(1) To reach a collective-bargaining agreement, meet and bar-
gain with the Union as the exclusive collective-bargaining rep-
resentative of employees in the bargaining unit set forth in the
collective-bargaining agreement between the Union and
Waldbaums Supermarket, Inc., which was entered into the rec-
ord of this case as (GC Exh. 5).
(2) Before laying off bargaining unit employees for economic
reasons, notify and, upon request, bargain with the Union as the
exclusive collective-bargaining representative of employees in
the bargaining unit described above in paragraph 2(E)(1) of this
Order.
(3) Upon the Union’s request, rescind the severance agree-
ment signed by Mariano Rosado.
(4) Within 14 days from the date of this Order, offer Mariano
Rosado full reinstatement to his former job or, if that job no
longer exist, to a substantially equivalent position, without prej-
udice to his seniority or any other rights or privileges previously
enjoyed.
United States Court of Appeals Enforcing an Order of the National La-
bor Relations Board.”
74 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(5) Make Mariano Rosado whole for any loss of earnings and
other benefits suffered as a result of his unlawful layoffs in the
manner set forth in the remedy section of this decision.
(6) Compensate Mariano Rosado for search-for-work and in-
terim employment expenses regardless of whether those ex-
penses exceed their interim earnings.
(7) Compensate Mariano Rosado for the adverse tax conse-
quences, if any, of receiving a lump-sum backpay award, and file
a report with the Social Security Administration allocating the
backpay award to the appropriate calendar quarters for the em-
ployee.
(8) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board or
its agents, all payroll records, social security payment records,
timecards, personnel records and reports, and all other records,
including an electronic copy of such records if stored in elec-
tronic form, necessary to analyze the amount of backpay due un-
der the terms of this Order.
(9) Within 14 days after service by the Region, post at its fa-
cility copies of the attached notice marked “Appendix
E.”56 Copies of the notice, on forms provided by the Regional
Director for Region 29, after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous places, in-
cluding all places where notices to employees are customarily
posted. In addition to physical posting of paper notices, notices
shall be distributed electronically, such as by email, posting on
an intranet or an internet site, and/or other electronic means, if
the Respondent customarily communicates with its employees
by such means. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or covered
by any other material. If the Respondent has gone out of business
or closed the facility involved in these proceedings, the Respond-
ent shall duplicate and mail, at its own expense, a copy of the
notice to all current employees and former employees employed
by the Respondent at any time since January 1, 2016.
(10) Within 21 days after service by the Region, file with the
Regional Director for Region 29 a sworn certification of a re-
sponsible official on a form provided by the Region attesting to
the steps that the Respondent has taken to comply.
F. Respondent Riverdale shall
(1) To reach a collective-bargaining agreement, meet and bar-
gain with the Union as the exclusive collective-bargaining rep-
resentative of employees in the bargaining unit set forth in the
collective-bargaining agreement between the Union and Food
Emporium (Retail Industry Agreement New York Division),
which was entered into the record of this case as GC Exh. 6.
(2) Within 14 days after service by the Region, post at its fa-
cility copies of the attached notice marked “Appendix

56 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the National
Labor Relations Board” shall read “Posted Pursuant to a Judgment of the
United States Court of Appeals Enforcing an Order of the National La-
bor Relations Board.”
57 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the National
Labor Relations Board” shall read “Posted Pursuant to a Judgment of the
F.”57 Copies of the notice, on forms provided by the Regional
Director for Region 29, after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous places, in-
cluding all places where notices to employees are customarily
posted. In addition to physical posting of paper notices, notices
shall be distributed electronically, such as by email, posting on
an intranet or an internet site, and/or other electronic means, if
the Respondent customarily communicates with its employees
by such means. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or covered
by any other material. If the Respondent has gone out of business
or closed the facility involved in these proceedings, the Respond-
ent shall duplicate and mail, at its own expense, a copy of the
notice to all current employees and former employees employed
by the Respondent at any time since July 1, 2016.
(3) Within 21 days after service by the Region, file with the
Regional Director for Region 29 a sworn certification of a re-
sponsible official on a form provided by the Region attesting to
the steps that the Respondent has taken to comply.
(G) Respondent Glen Oaks shall
(1) To reach a collective-bargaining agreement, meet and bar-
gain with the Union as the exclusive collective-bargaining rep-
resentative of employees in the bargaining unit set forth in the
collective-bargaining agreement between the Union and
Waldbaums Supermarket, Inc., which was entered into the rec-
ord of this case as General Counsel’s Exhibit 5.
(2) Within 14 days after service by the Region, post at its fa-
cility copies of the attached notice marked “Appendix
G.”58 Copies of the notice, on forms provided by the Regional
Director for Region 29, after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous places, in-
cluding all places where notices to employees are customarily
posted. In addition to physical posting of paper notices, notices
shall be distributed electronically, such as by email, posting on
an intranet or an internet site, and/or other electronic means, if
the Respondent customarily communicates with its employees
by such means. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or covered
by any other material. If the Respondent has gone out of business
or closed the facility involved in these proceedings, the Respond-
ent shall duplicate and mail, at its own expense, a copy of the
notice to all current employees and former employees employed
by the Respondent at any time since July 1, 2016.
(3) Within 21 days after service by the Region, file with the
Regional Director for Region 29 a sworn certification of a re-
sponsible official on a form provided by the Region attesting to
the steps that the Respondent has taken to comply.
H. Respondent Park Plaza shall
United States Court of Appeals Enforcing an Order of the National La-
bor Relations Board.”
58 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the National
Labor Relations Board” shall read “Posted Pursuant to a Judgment of the
United States Court of Appeals Enforcing an Order of the National La-
bor Relations Board.”
SEVEN SEAS UNION SQUARE, LLC 75
(1) To reach a collective-bargaining agreement, meet and bar-
gain with the Union as the exclusive collective-bargaining rep-
resentative of employees in the bargaining unit set forth in the
collective-bargaining agreement between the Union and
Waldbaums Supermarket, Inc., which was entered into the rec-
ord of this case as (GC Exh. 5).
(2) Within 14 days after service by the Region, post at its fa-
cility copies of the attached notice marked “Appendix
H.”59 Copies of the notice, on forms provided by the Regional
Director for Region 29, after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous places, in-
cluding all places where notices to employees are customarily
posted. In addition to physical posting of paper notices, notices
shall be distributed electronically, such as by email, posting on
an intranet or an internet site, and/or other electronic means, if
the Respondent customarily communicates with its employees
by such means. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or covered
by any other material. If the Respondent has gone out of business
or closed the facility involved in these proceedings, the Respond-
ent shall duplicate and mail, at its own expense, a copy of the
notice to all current employees and former employees employed
by the Respondent at any time since July 1, 2016.
(3) Within 21 days after service by the Region, file with the
Regional Director for Region 29 a sworn certification of a re-
sponsible official on a form provided by the Region attesting to
the steps that the Respondent has taken to comply.
I. Respondent Paramount shall
(1) To reach a collective-bargaining agreement, meet and bar-
gain with the Union as the exclusive collective-bargaining rep-
resentative of employees in the bargaining unit at its Queens,
New York facility as set forth in the collective-bargaining agree-
ment between the Union and Waldbaums Supermarket, Inc.,
which was entered into the record of this case as (GC Exh. 5).
(2) To reach a collective-bargaining agreement, bargain with
the Union as the exclusive collective-bargaining representative
of employees in the bargaining unit at its Brooklyn, New York
facility as set forth in the collective-bargaining agreement be-
tween the Union and Great Atlantic & Pacific Tea Company,
Inc., which was entered into the record of this case as GC Exh.
7.
(3) Within 14 days after service by the Region, post at its fa-
cilities copies of the attached notice marked “Appendix
I.”60 Copies of the notice, on forms provided by the Regional
Director for Region 29, after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous places, in-
cluding all places where notices to employees are customarily
posted. In addition to physical posting of paper notices, notices
shall be distributed electronically, such as by email, posting on
an intranet or an internet site, and/or other electronic means, if

59 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the National
Labor Relations Board” shall read “Posted Pursuant to a Judgment of the
United States Court of Appeals Enforcing an Order of the National La-
bor Relations Board.”
the Respondent customarily communicates with its employees
by such means. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or covered
by any other material. If the Respondent has gone out of business
or closed one or both of the facilities involved in these proceed-
ings, the Respondent shall duplicate and mail, at its own expense,
a copy of the notice to all current employees and former employ-
ees employed by the Respondent at any time since July 1, 2016.
(4) Within 21 days after service by the Region, file with the
Regional Director for Region 29 a sworn certification of a re-
sponsible official on a form provided by the Region attesting to
the steps that the Respondent has taken to comply.
Dated, Washington, D.C. February 9, 2018
APPENDIX A
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT coercively question you about your union activ-
ities.
WE WILL NOT refuse to hire you, lay you off, cause a different
employer to lay you off or otherwise discriminate against you
because you have engaged in union activities.
WE WILL NOT lay you off or otherwise unilaterally change your
wages, hours and other terms and conditions of employment
without notifying and, upon request, bargaining with the United
Food and Commercial Workers Union, Local 342, AFL–CIO
(the Union) regarding the decision.
WE WILL NOT fail and refuse to reinstate you if you have been
unlawfully laid off.
WE WILL NOT fail and refuse to meet and bargain with the Un-
ion for a collective-bargaining agreement.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed you
by Section 7 of the Act.
WE WILL offer dates to meet and bargain with the Union for a
collective-bargaining agreement.
WE WILL, within 14 days from the date of this Order, offer full
60 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the National
Labor Relations Board” shall read “Posted Pursuant to a Judgment of the
United States Court of Appeals Enforcing an Order of the National La-
bor Relations Board.”
76 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
reinstatement to Khadisha Diaz, Richard Maffia, and Venus
Nepay to their former jobs or, if those jobs no longer exist, to
substantially equivalent positions, without prejudice to their sen-
iority or any other rights or privileges previously enjoyed.
WE WILL make Khadisha Diaz, Richard Maffia, Venus Nepay,
and Nelson Quiles whole for any loss of earnings and other ben-
efits resulting from their layoffs, less any net interim earnings,
plus interest, and WE WILL also make such employees whole for
reasonable search-for-work and interim employment expenses,
plus interest.
WE WILL compensate Khadisha Diaz, Richard Maffia, Venus
Nepay, and Nelson Quiles for the adverse tax consequences, if
any, of receiving lump-sum backpay awards, and WE WILL file
with the Regional Director for Region 29, within 21 days of the
date the amount of backpay is fixed, either by agreement or
Board order, a report allocating the backpay awards to the appro-
priate calendar years for each employee.
WE WILL, within 14 days from the date of the Board’s Order,
remove from our files any reference to the unlawful layoff of
Khadisha Diaz, Richard Maffia, and Venus Nepay, and WE WILL,
within 3 days thereafter, notify them in writing that this has been
done and that the layoffs will not be used against them in any
way.
KEY FOOD STORES CO-OPERATIVE, INC. AND HB 84
FOOD CORP., JOINT EMPLOYERS
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/29–CA–164058 or by using the QR code be-
low. Alternatively, you can obtain a copy of the decision from
the Executive Secretary, National Labor Relations Board, 1015
Half Street, S.E., Washington, D.C. 20570, or by calling (202)
273–1940.
APPENDIX B
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT lay you off or otherwise discriminate against
you because you have engaged in union activities.
WE WILL NOT lay you off, reduce your work days or otherwise
unilaterally change your wages, hours and other terms and con-
ditions of employment without notifying and, upon request, bar-
gaining with the United Food and Commercial Workers Union,
Local 342, AFL–CIO (the Union) regarding the decision.
WE WILL NOT fail and refuse to reinstate you if you have been
unlawfully laid off.
WE WILL NOT fail and refuse to meet and bargain with the Un-
ion for a collective-bargaining agreement.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed you
by Section 7 of the Act.
WE WILL offer dates to meet and bargain with the Union for a
collective-bargaining agreement.
WE WILL rescind the reduction of your work days from six to
five days per week.
WE WILL, within 14 days from the date of this Order, offer full
reinstatement to Debra Abruzzese, Gina Cammarano, Michael
Fischetti, and Anthony Venditti to their former jobs or, if those
jobs no longer exist, to substantially equivalent positions, with-
out prejudice to their seniority or any other rights or privileges
previously enjoyed.
WE WILL make Debra Abruzzese, Gina Cammarano, Michael
Fischetti, and Anthony Venditti whole for any loss of earnings
and other benefits resulting from their layoffs, less any net in-
terim earnings, plus interest, and WE WILL also make such em-
ployees whole for reasonable search-for-work and interim em-
ployment expenses, plus interest.
WE WILL make whole all unit employees for any loss of earn-
ings and other benefits resulting from the reduction of their work
days.
WE WILL compensate any employee receiving a backpay
award for the adverse tax consequences, if any, of receiving
lump-sum backpay awards, and WE WILL file with the Regional
Director for Region 29, within 21 days of the date the amount of
backpay is fixed, either by agreement or Board order, a report
allocating the backpay awards to the appropriate calendar years
for each employee.
WE WILL, within 14 days from the date of the Board’s Order,
remove from our files any reference to the unlawful layoffs of
Debra Abruzzese, Gina Cammarano, Michael Fischetti, and An-
thony Venditti, and WE WILL, within 3 days thereafter, notify
them in writing that this has been done and that the layoffs will
not be used against them in any way.
KEY FOOD STORES CO-OPERATIVE, INC. AND GREAVES
LANE MEAT LLC, JOINT EMPLOYERS
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/29–CA–164058 or by using the QR code be-
low. Alternatively, you can obtain a copy of the decision from
SEVEN SEAS UNION SQUARE, LLC 77
the Executive Secretary, National Labor Relations Board, 1015
Half Street, S.E., Washington, D.C. 20570, or by calling (202)
273–1940.
APPENDIX C
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT lay you off, discharge you, reduce your days of
work, reduce your hours of work, reduce your wage rate or oth-
erwise discriminate against you because you have engaged in un-
ion activities.
WE WILL NOT lay you off, reduce your days of work, reduce
your hours of work, reduce your wage rate or otherwise unilat-
erally change your wages, hours and other terms and conditions
of employment without notifying and, upon request, bargaining
with the United Food and Commercial Workers Union, Local
342, AFL–CIO (the Union) regarding the decision.
WE WILL NOT fail and refuse to reinstate you if you have been
unlawfully laid off.
WE WILL NOT fail and refuse to meet and bargain with the Un-
ion for a collective-bargaining agreement.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed you
by Section 7 of the Act.
WE WILL, within 14 days from the date of this Order, offer full
reinstatement to Joseph Batiste, Kalvin Harris, Robert Jenzen
and Stephen Fiore to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions, without prejudice to
their seniority or any other rights or privileges previously en-
joyed.
WE WILL offer dates to meet and bargain with the Union for a
collective-bargaining agreement.
WE WILL rescind unilateral and/or discriminatory reductions
in the work days, work hours and wage rates of unit employees.
WE WILL make Joseph Batiste, Kalvin Harris, Robert Jenzen
and Stephen Fiore whole for any loss of earnings and other ben-
efits resulting from their layoffs, less any net interim earnings,
plus interest, and WE WILL also make such employees whole for
reasonable search-for-work and interim employment expenses,
plus interest.
WE WILL make Robert Jenzen and Stephen Fiore whole for any
loss of earnings and other benefits resulting from the reductions
of their work days, work hours and/or wage rates.
WE WILL compensate Joseph Batiste, Kalvin Harris, Robert
Jenzen and Stephen Fiore for the adverse tax consequences, if
any, of receiving lump-sum backpay awards, and WE WILL file
with the Regional Director for Region 29, within 21 days of the
date the amount of backpay is fixed, either by agreement or
Board order, a report allocating the backpay awards to the appro-
priate calendar years for each employee.
WE WILL, within 14 days from the date of the Board’s Order,
remove from our files any reference to the unlawful demotion of
Stephen Fiore and the unlawful layoffs of Joseph Batiste, Kalvin
Harris, Robert Jenzen and Stephen Fiore, and WE WILL, within 3
days thereafter, notify them in writing that this has been done
and that these adverse employment actions will not be used
against them in any way.
KEY FOOD STORES CO-OPERATIVE, INC. AND 1525
ALBANY AVENUE MEAT LLC, JOINT EMPLOYERS
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/29–CA–164058 or by using the QR code be-
low. Alternatively, you can obtain a copy of the decision from
the Executive Secretary, National Labor Relations Board, 1015
Half Street, S.E., Washington, D.C. 20570, or by calling (202)
273–1940.
APPENDIX D
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
78 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT refuse to hire you or otherwise discriminate
against you because you have engaged in union activities.
WE WILL NOT lay you off or otherwise unilaterally change your
wages, hours and other terms and conditions of employment
without notifying and, upon request, bargaining with the United
Food and Commercial Workers Union, Local 342, AFL–CIO
(the Union) regarding the decision.
WE WILL NOT fail and refuse to reinstate you if you have been
unlawfully laid off.
WE WILL NOT fail and refuse to meet and bargain with the Un-
ion for a collective-bargaining agreement.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed you
by Section 7 of the Act.
WE WILL offer dates to meet and bargain with the Union for a
collective-bargaining agreement.
WE WILL, within 14 days from the date of this Order, offer
instatement to Jose Carlos Colon, Juana Diaz, Keesha Fields,
Madeline Gomez, Dena Itturalde, Tamika Jones, Maria Ortega,
Elena Pagan, and Rosa Silverio to their former jobs with The
Great Atlantic & Pacific Tea Company or, if those jobs no longer
exist, to substantially equivalent positions, without prejudice to
their seniority or any other rights or privileges previously en-
joyed.
WE WILL, within 14 days from the date of this Order, offer
reinstatement to Ayanna Jordan to her former job or, if that job
no longer exist, to a substantially equivalent position, without
prejudice to her seniority or any other rights or privileges previ-
ously enjoyed.
WE WILL make Jose Carlos Colon, Juana Diaz, Keesha Fields,
Madeline Gomez, Dena Itturalde, Tamika Jones, Ayanna Jordan,
Maria Ortega, Elena Pagan, and Rosa Silverio whole for any loss
of earnings and other benefits resulting from our refusal to hire
or lay them off, less any net interim earnings, plus interest, and
WE WILL also make such employees whole for reasonable search-
for-work and interim employment expenses, plus interest.
WE WILL compensate Jose Carlos Colon, Juana Diaz, Keesha
Fields, Madeline Gomez, Dena Itturalde, Tamika Jones, Ayanna
Jordan, Maria Ortega, Elena Pagan, and Rosa Silverio for the ad-
verse tax consequences, if any, of receiving lump-sum backpay
awards, and WE WILL file with the Regional Director for Region
29, within 21 days of the date the amount of backpay is fixed,
either by agreement or Board order, a report allocating the back-
pay awards to the appropriate calendar years for each employee.
WE WILL, within 14 days from the date of the Board’s Order,
remove from our files any reference to the unlawful refusal to
hire or layoff of Jose Carlos Colon, Juana Diaz, Keesha Fields,
Madeline Gomez, Dena Iturralde, Tamika Jones, Ayanna Jordan,
Maria Ortega, Elena Pagan, and Rosa Silverio, and WE WILL,
within 3 days thereafter, notify them in writing that this has been
done and that the refusals-to-hire and layoffs will not be used
against them in any way.
KEY FOOD STORES CO-OPERATIVE, INC. AND SEVEN
SEAS UNION SQUARE, LLC, JOINT EMPLOYERS
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/29–CA–164058 or by using the QR code be-
low. Alternatively, you can obtain a copy of the decision from
the Executive Secretary, National Labor Relations Board, 1015
Half Street, S.E., Washington, D.C. 20570, or by calling (202)
273–1940.
APPENDIX E
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT lay you off or otherwise unilaterally change your
wages, hours and other terms and conditions of employment
without notifying and, upon request, bargaining with the United
Food and Commercial Workers Union, Local 342, AFL–CIO
(the Union) regarding the decision.
WE WILL NOT fail and refuse to reinstate you if you have been
unlawfully laid off.
WE WILL NOT fail and refuse to meet and bargain with the Un-
ion for a collective-bargaining agreement.
WE WILL NOT bypass the Union, your exclusive bargaining
representative, and deal directly with you regarding your wages,
hours, and other terms and conditions of employment, including
severance and the signing of a severance agreement.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed you
by Section 7 of the Act.
SEVEN SEAS UNION SQUARE, LLC 79
WE WILL offer dates to meet and bargain with the Union for a
collective-bargaining agreement.
WE WILL upon request by the Union, rescind the severance
agreement of Mariano Rosado.
WE WILL, within 14 days from the date of this Order, offer full
reinstatement to Mariano Rosado to his former job or, if that job
no longer exist, to a substantially equivalent position, without
prejudice to his seniority or any other rights or privileges previ-
ously enjoyed.
WE WILL make Mariano Rosado whole for any loss of earnings
and other benefits resulting from their layoffs, less any net in-
terim earnings, plus interest, and WE WILL also make him whole
for reasonable search-for-work and interim employment ex-
penses, plus interest.
WE WILL compensate Mariano Rosado for the adverse tax con-
sequences, if any, of receiving a lump-sum backpay award, and
WE WILL file with the Regional Director for Region 29, within 21
days of the date the amount of backpay is fixed, either by agree-
ment or Board order, a report allocating the backpay award to the
appropriate calendar years for the employee.
WE WILL, within 14 days from the date of the Board’s Order,
remove from our files any reference to the unlawful layoff of
Mariano Rosado, and WE WILL, within 3 days thereafter, notify
him in writing that this has been done and that the layoffs will
not be used against him in any way.
KEY FOOD STORES CO-OPERATIVE, INC. AND KEY
FOOD CS2, LLC D/B/A FOOD UNIVERSE, JOINT
EMPLOYERS
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/29–CA–164058 or by using the QR code be-
low. Alternatively, you can obtain a copy of the decision from
the Executive Secretary, National Labor Relations Board, 1015
Half Street, S.E., Washington, D.C. 20570, or by calling (202)
273–1940.
APPENDIX F
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT fail and refuse to meet and bargain with the
United Food and Commercial Workers Union, Local 342, AFL–
CIO (the Union) for a collective-bargaining agreement.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed you
by Section 7 of the Act.
WE WILL offer dates to meet and bargain with the Union for a
collective-bargaining agreement.
KEY FOOD STORES CO-OPERATIVE, INC. AND
RIVERDALE GROCERS LLC, JOINT EMPLOYERS
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/29–CA–164058 or by using the QR code be-
low. Alternatively, you can obtain a copy of the decision from
the Executive Secretary, National Labor Relations Board, 1015
Half Street, S.E., Washington, D.C. 20570, or by calling (202)
273–1940.
APPENDIX G
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT fail and refuse to meet and bargain with the
United Food and Commercial Workers Union, Local 342, AFL–
CIO (the Union) for a collective-bargaining agreement.
WE WILL NOT in any like or related manner interfere with,
80 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
restrain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL offer dates to meet and bargain with the Union for a
collective-bargaining agreement.
KEY FOOD STORES CO-OPERATIVE, INC. AND JAR 259
FOOD CORP., JOINT EMPLOYERS
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/29–CA–164058 or by using the QR code be-
low. Alternatively, you can obtain a copy of the decision from
the Executive Secretary, National Labor Relations Board, 1015
Half Street, S.E., Washington, D.C. 20570, or by calling (202)
273–1940.
APPENDIX H
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT fail and refuse to meet and bargain with the
United Food and Commercial Workers Union, Local 342, AFL–
CIO (the Union) for a collective-bargaining agreement.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed you
by Section 7 of the Act.
WE WILL offer dates to meet and bargain with the Union for a
collective-bargaining agreement.
KEY FOOD STORES CO-OPERATIVE, INC. AND PARK
PLAZA FOOD CORP., JOINT EMPLOYERS
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/29–CA–164058 or by using the QR code be-
low. Alternatively, you can obtain a copy of the decision from
the Executive Secretary, National Labor Relations Board, 1015
Half Street, S.E., Washington, D.C. 20570, or by calling (202)
273–1940.
APPENDIX I
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT fail and refuse to meet and bargain with the
United Food and Commercial Workers Union, Local 342, AFL–
CIO (the Union) for a collective-bargaining agreement.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed you
by Section 7 of the Act.
WE WILL offer dates to meet and bargain with the Union for a
collective-bargaining agreement.
KEY FOOD STORES CO-OPERATIVE, INC. AND
PARAMOUNT SUPERMARKETS, INC., JOINT EMPLOYERS
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/29–CA–164058 or by using the QR code be-
low. Alternatively, you can obtain a copy of the decision from
the Executive Secretary, National Labor Relations Board, 1015
Half Street, S.E., Washington, D.C. 20570, or by calling (202)
273–1940.