Calhoun Foods, LLC d/b/a Key Food

National Labor Relations Board - Administrative Judge Opinions

May 8, 2012

29-CA-030861 (N.L.R.B. May. 8, 2012)

JD(NY)–13–12
South Ozone Park, NY
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
CALHOUN FOODS, LLC d/b/a KEY FOOD
and Case Nos. 29-CA-30861
29-CA-30878
LOCAL 338, RETAIL, WHOLESALE AND
DEPARTMENT STORE UNION, UNITED
FOOD AND COMMERCIAL WORKERS
Nancy Lipin, Esq., for the Acting General Counsel
Randy C. McCarthy, Esq., for the Respondent
Jae W. Chun, Esq., Friedman & Wolf, for the
Charging Party
DECISION
Statement of the Case
LAUREN ESPOSITO, Administrative Law Judge. Based upon charges filed on June 28,
2011 and on July 26, 2011 by Local 338, Retail, Wholesale and Department Store Union, United
Food and Commercial Workers (“Local 338” or “the Union”), a Consolidated Complaint and
Notice of Hearing issued on October 31, 2011, and an Amendment to the Consolidated
Complaint issued on January 13, 2012. The Consolidated Complaint, as amended, alleges that
Calhoun Foods, LLC d/b/a Key Food (“Calhoun Foods” or “Respondent”) violated Sections
8(a)(1) and (5) of the Act by refusing to recognize and bargain with Local 338 as the exclusive
representative of an appropriate bargaining unit of employees, despite its obligations as a
successor employer. The Consolidated Complaint also alleges that Respondent violated
Section 8(a)(1) by coercively interrogating and threatening employees, and by creating the
impression that its employees’ union activities were under surveillance. Respondent filed
Answers to the Consolidated Complaint and the Amendment, admitting and denying the
material allegations as discussed below. This case was tried before me on February 1 and 7,
2012, in Brooklyn, New York.
On the entire record,1 including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the Acting General Counsel (the “General Counsel”),
Respondent, and the Charging Party I make the following

1 Counsel for the Acting General Counsel’s motion to correct the transcript is granted, with
the exception of the proposed correction to page 127, line 19, which was withdrawn.
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Findings of Fact
I. Jurisdiction
Respondent is a domestic corporation with an office and place of business located at
135-46 Lefferts Boulevard, South Ozone Park, New York, and is engaged in the operation of
retail grocery stores. Respondent admits and I find that it is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
Respondent admits and I find that at all material times Local 338 has been a labor
organization within the meaning of Section 2(5) of the Act.
II. Alleged Unfair Labor Practices
A. Operation of the 135-46 Lefferts Boulevard store by PSK Supermarkets, Inc.
Prior to early May 2011,2 the grocery store at 135-46 Lefferts Boulevard was operated
by PSK Supermarkets, Inc. (“PSK”) as a Foodtown. For many years, PSK has had a collective
bargaining relationship with Local 338 covering employees at its Foodtown stores in the New
York City area. The collective bargaining agreement between PSK and Local 338, effective
from July 1, 2006 to September 30, 2011, applied to “all employees…including but not limited to
Grocery, Deli, Bakery, Porters and Front-End personnel, Store Managers, Assistant Store
Managers and excluding all guards, office and clerical employees.”
B. Purchase of the 135-46 Lefferts Boulevard store by Respondent
Calhoun Foods, LLC, purchased the 135-46 Lefferts Boulevard store as of April 28, and
the store opened for business as a Key Food on April 30 or May 1. Calhoun Foods, LLC, is
owned by Sam Hassen and his father, Abdel Hassen. Sam Hassen testified that he runs the
store’s day to day operations.
Respondent stipulated at the hearing that as of the beginning of May 2011, it was
engaged in it normal business operations at the 135-46 Lefferts Boulevard store. Respondent
stipulated that at that time, at least fifty percent of the job classifications at the store were filled,
and that the size of the bargaining unit was at least thirty percent of the ultimate complement of
employees. Respondent stipulated that an appropriate bargaining unit consists of all full-time
and regular part-time cashiers, produce, dairy, grocery, deli and frozen food employees,
excluding all butchers, office clerical employees, guards, and supervisors as defined in Section
2(11) of the Act. Respondent further stipulated that a majority of the bargaining unit employees
at that time consisted of former employees of PSK, who had been represented by Local 338.3

2 All subsequent dates are in 2011 unless otherwise indicated.
3 Respondent stated at the hearing that it admitted the Consolidated Complaint’s
allegations, except for the allegations that a demand for recognition and bargaining was made,
and that Sam Hassen made certain statements violating Section 8(a)(1) of the Act.
After the last day of the hearing, Respondent sought to withdraw from or modify these
stipulations, such that the stipulations would apply only with respect to the alleged demand for
recognition made on April 29, as described below, and not to any demand for recognition made
on April 26. I denied Respondent’s request in an Order dated February 10, 2012, and on April
8, 2012 the Board denied Respondent’s Request for Special Permission to Appeal.
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C. Evidence regarding the agency status of Mike Hassen
General Counsel contends that Mike Hassen is an agent of Respondent within the
meaning of Section 2(13) of the Act. At the hearing, Respondent declined to stipulate that Mike
Hassen was its agent.
Mike Hassen, Sam Hassen’s brother, owns a Key Food store located at 114th Street and
Lefferts Boulevard in Brooklyn (hereinafter the “Foot Hills store”). Sam Hassen manages the
Foot Hills store in addition to the store at 135-46 Lefferts Boulevard. Sam Hassen testified the
he operates the 135-46 Lefferts Boulevard store using an office in the basement of the Foot
Hills store. This office is adjacent to an office used by Mike Hassen, and the two offices share a
fax machine and e-mail address. As part of the Purchase Agreement through which
Respondent assumed the business at the 135-46 Lefferts Boulevard location, Mike Hassen
agreed to endorse a promissory note and execute a guarantee in connection with the purchase,
both individually and on behalf of the entities 700 Foothill Food Co., LLC and Seven & One
Foods, LLC. The Purchase Agreement also provides for notices to be sent to Respondent at
the Foot Hills store.
Former employee Nadira Mangal testified that Mike Hassen was directly involved with
the hiring of employees at the 135-46 Lefferts Boulevard store when Respondent purchased the
business. Mangal began working at the Foodtown at 135-46 Lefferts Boulevard in 2001 as a
cashier. Mangal testified that she learned that the store had been sold from the store manager
Dave in February. Dave told Mangal that the new owner was Key Food, and that the store
would change ownership in a short time. On a Saturday in April, at about 11:30 a.m., Mangal
noticed Mike Hassen in the store, and asked Dave whether she could speak with Hassen,
because she was unsure as to whether her employment could continue with the new business.
Mangal and another cashier and bookkeeper named Inja then met with Mike Hassen in the
storage room.
Mangal testified that she told Mike Hassen that she would like to stay on with the new
company, and asked whether she had a job with him. According to Mangal, Hassen said yes,
and Mangal asked him whether she could continue to work the same hours, with perhaps some
additional hours as well. Hassen told Mangal he would give her the same hours. Mangal asked
Hassen for the same pay rate, and Hassen agreed to that as well. Hassen then said that the
company did not have insurance coverage for the employees. Hassen also said, “Let me tell
you up front, we don’t have a union.” Mangal assented, and asked whether she would still
receive two weeks’ vacation per year. Hassan said that he would only provide one week’s
vacation, and that after Mangal worked with him for a year she would receive two weeks’
vacation time. Mangal thanked Hassen for giving her the opportunity to work with the company,
and the meeting ended.
Mangal testified that both she and Inja continued working at the 135-46 Lefferts
Boulevard store after it was sold and became a Key Food. According to Mangal, she was not
required to complete a new employment application, only a new W-2 form. Her schedule
remained the same, and her uniform changed. Mangal testified that after the store was sold she
and the other cashiers attended about 2 ½ hours of training at the Foot Hills store in order to
learn to operate the new cash registers.
Mike Hassen appeared and testified at the hearing, but did not address the hiring of
employees for the 135-46 Lefferts Boulevard store or any conversation with Mangal. Sam
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Hassen testified that he hired the employees for the 135-46 Lefferts Boulevard store, but did not
provide any details.
Documents in connection with the representation petition, discussed below, and the
investigation of the unfair labor practice charges against Respondent were sent by Region 29 to
Mike Hassen at the 135-46 Lefferts Boulevard address. These documents included the
docketed petition for an election in Case No. 29-RC-12070, and letters dismissing and/or
approving requests to withdraw the charges in Case Nos. 29-CA-30861, 29-CA-30881, 29-CA-
62405, and 29-CA-64335. Respondent’s counsel, Randy McCarthy, Esq., also provided a
carbon copy of a letter to the Region regarding relief pursuant to Section 10(j) of the Act to Mike
Hassen, and referred to Mike Hassen as one of his “clients” in this matter when requesting an
adjournment of the hearing. No effort was made prior to the hearing to clarify that Mike Hassen
was not a principal or did not otherwise hold a position of authority with Respondent.
D. Evidence Regarding the Union’s Demand for Recognition
Mike Caffey, Local 338’s Field Director, and Jeff Laub, a representative for the Union,
testified regarding visits to the 135-46 Lefferts Boulevard store in April. Laub testified that some
time late in that month, supervisor Ed Hunt of PSK informed him that the 135-46 Lefferts
Boulevard store was going to be sold to a Mr. Mike Hassen. Hunt also told Caffey which of the
employees would be moving to other PSK stores, and which would be remaining at the 135-46
Lefferts Boulevard store after the purchase. Laub testified that he knew of Mike Hassen,
because Local 338 had previously had a collective bargaining agreement covering the
employees at the Foot Hill store.
Laub testified that on April 26, he went to visit the employees at the 135-46 Lefferts
Boulevard store – at that point still Foodtown – to see whether the employees wished to transfer
to another PSK store or remain at the 135-46 Lefferts Boulevard location. Laub also went to the
Foot Hills store that day, to visit the new owners of the 135-46 Lefferts Boulevard store.
Laub testified that when he arrived at the Foot Hills store at approximately 2 p.m., he
identified himself as a Union representative to one of the employees, and stated that he wanted
to speak with Mike Hassen. The employee called Mike Hassen, and told Laub that he could
proceed to Mike Hassen’s office in the basement. Hassen was on the phone, and when he
finished his call Laub introduced himself again and gave Hassen his card. Laub testified that he
told Hassen that he had come to see Hassen because Hassen was buying the 135-46 Lefferts
Boulevard Foodtown, and he wanted to set up contract negotiations. According to Laub,
Hassen responded that “there will never be a union there,” because the company “can’t afford a
union.” Laub told Hassen that the Union had represented the employees at the 135-46 Lefferts
Boulevard location for a long period of time, and could not “just walk away.” Laub stated that
the Union and the company could negotiate a contract that works for everyone involved.
Hassen responded that he would not be available that week, because he would be busy with
the bank and the sale. Laub gave Hassen his card and cell phone number, and asked Hassen
to contact him or Caffey. Laub testified that during this conversation Hassen never stated that
he lacked authority to speak on behalf of Respondent.
Laub testified that after leaving the Foot Hills store, he called Caffey and reported the
conversation to him. Laub also made a note regarding his April 26 discussion with Hassen in
his electronic calendar.
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Mike Hassen testified that he had never seen Laub before the hearing in this case, and
never had a discussion with Laub regarding a collective bargaining agreement covering the
employees at the 135-46 Lefferts Boulevard store.
Caffey and Laub also testified regarding a visit to the 135-46 Lefferts Boulevard store on
April 29 at approximately 10 a.m. At this point, the store was being prepared for its re-opening
as a Key Food. Various vendors were replacing signs and cash register equipment, and the
store was being restocked. Caffey and Laub entered the store, and Caffey asked Dave, the
store manager, whether Mike Hassen was there. Dave said that Mike Hassen was not at the
store, but Sam Hassen was there, so Laub asked to see Sam. Caffey and Laub waited, and
after some time Sam Hassen approached them.
Caffey testified that Laub introduced him to Sam Hassen, and the conversation began
with small talk regarding competitive retail businesses and vendors. Caffey and Sam Hassen
then began discussing the employees, and Caffey told Hassen that the Union was demanding
recognition, because the majority of the store’s employees had been part of the bargaining unit
when PSK owned the business. According to Caffey, Hassen claimed that there were only
twelve employees at the store, and Caffey disputed that figure. Caffey then said that the parties
needed to sit down and negotiate a specific contract. Hassen said that the company could not
afford the Foodtown contract, and Caffey stated that the parties could negotiate a new contract
acceptable to everyone. Sam Hassen then said that he needed to speak to Mike Hassen, and
Caffey said that they could do so immediately. Sam replied that Mike Hassen wasn’t there.
Caffey responded that the Union wanted to speak to Mike Hassen sooner rather than later,
because they were receiving phone calls from employees who wanted to be working under a
union contract. Caffey gave Sam Hassen his card and cell phone number, and asked Sam to
have Mike call him as soon as possible.
Laub was present for portions of this conversation. Laub testified that he heard Caffey
tell Sam Hassen that Local 338 had always represented the employees, and that the parties
needed to negotiate a contract. Laub testified that he heard Sam Hassen respond that he
needed to speak to his brother.
Sam Hassen testified that on April 29 he initially encountered Local 338 representative
Nelson Resto, who told him that his boss wanted to speak with him. According to Hassen,
Caffey and Laub then approached him. Hassen testified that he was familiar with Laub, who
introduced him to Caffey. Caffey then told Sam Hassen that he wanted to speak with Mike
Hassen, and Sam said that Mike was not at the store. Caffey asked Sam if he knew where
Mike was, and Sam responded that he did not. Caffey also asked Sam whether Mike was at the
Foot Hills store, and Sam replied that he was not. Caffey asked Sam to call Mike, and Sam
attempted to do so but could not reach him. When Sam reported to Caffey and Laub that he
could not reach Mike, Laub wrote his number on a business card, and gave the card to Sam.
Laub asked Sam to have Mike call him, and Laub and Caffey then left. Sam Hassen testified
that during this conversation Caffey and Laub did not claim they represented a majority of the
employees or state that they were interested in negotiating a collective bargaining agreement.
He also did not ask Caffey and Laub why they wanted to speak with Mike Hassen.
Caffey testified that approximately two weeks later he visited the 135-46 Lefferts
Boulevard store, and told the store manager, Dave, that he wanted to speak to Sam or Mike
Hassen. Dave said that Sam and Mike were not there, and after waiting for some period of time
Caffey left. Caffey testified that he also directed his organizing staff to visit the store and ask
Mike Hassen to contact him.
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It is undisputed that Sam and Mike Hassen never contacted the Union regarding
recognition or the negotiation of a contract after April 29. Sam Hassen testified that he never
informed Mike Hassen that Laub had asked him to call.
E. The Representation Petition and Other Union Activities
On June 14, the Union filed a petition for a representation election in Case No. 29-RC-
12070 in a bargaining unit of all full-time and regular part-time cashiers, produce, dairy, grocery,
deli and frozen food employees, excluding butchers, office clerical employees, guards, and
supervisors as defined in the Act. The petition does not indicate that any demand for
recognition was made on Respondent.4 A Stipulated Election Agreement was entered into on
June 22, and an Excelsior list was served on the parties on June 29. The election was
scheduled to take place on July 26.
In early May, the Union began picketing and distributing leaflets outside of the 135-46
Lefferts Boulevard store. Initially, the leaflets stated as follows:
PLEASE DO NOT PATRONIZE
KEY FOOD
THIS IS A NON-UNION STORE!
The previous store at this location,
PSK Foodtown, had a contract with
Local 338 RWDSU/UFCW but
The current supermarket, KEY FOOD, does not
Employ members of or have a contract with
Local 338 RWDSU/UFCW.
Please shop at these nearby UNION stores instead:
In September, the Union began distributing leaflets which stated as follows:
PLEASE DO NOT PATRONIZE
KEY FOOD
WE ARE PROTESTING THIS STORE’S
VIOLATION OF FEDERAL LABOR LAW
KEY FOOD IS ENGAGING IN AN
UNFAIR LABOR PRACTICE BY REFUSING
TO RECOGNIZE AND BARGAIN WITH
LOCAL 338, AND BY UNLAWFULLY
HARASSING AND TERMINATING
EMPLOYEES WHO EXERCISE THEIR U.S.
LABOR RIGHTS

4 Caffey testified that the petition was prepared by Union organizer Nelson Resto, and that
he had not told Resto about the recognition demand prior to the petition’s being filed. It is
apparently the Union’s practice in a typical organizing situation to forego demanding recognition
until after the filing of a petition and Union authorization cards.
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Please shop at these nearby UNION stores instead:
F. Evidence Regarding Statements Allegedly Violating Section 8(a)(1) of the Act
Mangal testified that on June 17, while she was working at the cash register, the
bookkeeper told her that Sam Hassen wanted to see her in the office. When Mangal went to
the office, Hassen told her that he wanted to speak to her about insurance, and said that the
company already had a health insurance plan in place. Mangal said that she had insurance
through the Samera Group, and Hassen replied that he had better insurance for the employees
through Neighborhood. Then, according to Mangal, after some “kidding around,” Hassen said
he wanted to ask her something. Hassen asked her how many union cards the other
employees had given her to fill out. Mangal responded that she did not know what Hassen was
talking about, and Hassen said “I know you’re helping the guys to fill[] out cards to get the union
back in the store.” Mangal said that she was not doing anything wrong, just working with the
company. Hassen responded that he had “an insider in the union,” who had given the company
a list of the names of employees who had already filled out the cards. Mangal responded that
her name was not on a card or on the list. Hassen said that if he sent Mangal outside to ask the
union to find her a job, the union would turn its back on her. Mangal said that she already had a
job with Respondent. Hassen then said that at the previous store there was a union, and that
when he had asked the workers whether they wanted a big check or they wanted the union to
take their $35, the workers had preferred a big paycheck. Hassen then told Mangal he could
give her more hours immediately; all she had to do was go outside and tell the union to go
away, and he could give her a big paycheck. Mangal testified that she and Hassen resumed
joking around, with Hassen asking her whether she had a boyfriend, and that when she left the
office she was laughing.
Sam Hassen testified that he did not speak with Mangal on June 17. He testified that he
had a conversation with Mangal regarding insurance when she was hired on May 1. At that
time, Mangal asked whether Respondent had insurance, and Hassen responded that the
company had either Neighborhood or Health Plus. Hassen testified that he never spoke to
Mangal regarding the union.
Mangal further testified that on June 19 she was called off of her register by Sam
Hassen, who said that he wanted to talk to her about her schedule. Hassen said that the
cashiers and bookkeeper had seen Mangal writing down schedules. Mangal stated that she
was writing down her own schedule. Hassen asked Mangal whether she had the schedule in
her possession at the moment, and Mangal said that it was at home. Hassen then directed her
to return to her register. Mangal testified that although the employees’ schedules had
previously been posted on the wall by the time clock, after this conversation they were posted
inside the office door.
Sam Hassen testified that on June 19 he approached Mangal after one of the cashiers
told him that Mangal was writing down all of the employees’ schedules. Hassen testified that he
asked Mangal whether she was writing the schedule down, and she said no. Hassen told
Mangal that she should only write down her own schedule, because other employees didn’t like
it when she recorded their schedules as well.
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III. Analysis and Conclusions
A. Respondent Violated Sections 8(a)(5) and (1) by Refusing to Recognize and
Bargain with the Union
The evidence overall establishes that Respondent violated Sections 8(a)(5) and (1) of
the Act by refusing to recognize and bargain with the Union, despite its obligations as a
successor employer under Fall River Dyeing & Finishing Corp., 482 U.S. 27 (1987). The record
establishes that Respondent, as a successor to PSK, was required to recognize and bargain
with the Union regarding the terms and conditions of employment for the bargaining unit
employees as of early May 2011. At that point, Respondent had hired a substantial and
representative complement of employees in an appropriate bargaining unit, the majority of
which were former employees of PSK. The evidence further demonstrates that the Union made
a valid demand that Respondent recognize it and engage in bargaining, and that Respondent
failed to do so, in violation of Sections 8(a)(1) and (5) of the Act.
1. Substantial Continuity and Majority Status
As a general matter, an employer “succeeds to the collective-bargaining obligation of a
predecessor” where there is “substantial continuity” between the business enterprises, and
where the majority of a “substantial and representative complement” of the successor entity’s
employees in an appropriate bargaining unit are former employees of the predecessor. Fall
River Dyeing & Finishing Corp., 482 U.S. 27, 41-43 (1987), quoting NLRB v. Burns Security
Services, 406 U.S. 272 (1972). In order to determine whether substantial continuity of the
business exists, the Board considers a variety of factors, including whether the business of both
employers is the same, whether the employees of the alleged successor and predecessor
perform the same jobs in the same working conditions with the same supervision, and whether
the new entity has the same production processes, products, and body of customers as did its
predecessor. Fall River Dyeing & Finishing Corp., 482 U.S. at 43; see also Grane Healthcare
Co., 357 NLRB No. 123 at p. 6 (2011), reconsideration denied, 2012 WL 313699 (February 2,
2012).
The substantial continuity component of the analysis is satisfied here. Respondent
admitted in its Answer and in its stipulations at the hearing that it continues to be engaged in the
operation of a retail supermarket, at the same location and operating in a basically unchanged
form. As a result, the record establishes that there is substantial continuity between
Respondent and its predecessor, PSK. Respondent is therefore a successor to PSK under the
relevant case law.
The Board evaluates the second criterion – whether the successor’s workforce consists
of a majority of the predecessor’s employees in an appropriate unit – based upon the
successor’s staffing as it assumes the business’s operations. Fall River Dyeing & Finishing
Corp., 482 U.S. at 46. Where the successor gradually initiates its operations and amasses the
desired staff, the Board considers majority as of the time that the successor employs a
“substantial and representative complement” of employees. Fall River Dyeing & Finishing
Corp., 482 U.S. at 40; Grane Healthcare Co., 357 NLRB No. 123 at 6. In such situations, the
Board has found that a substantial and representative complement exists where thirty percent of
the total employee complement is employed in fifty percent of the job classifications. Paramus
Ford, 351 NLRB 1019, 1026-1027 (2007); Shares, Inc., 343 NLRB 455, n. 2 (2004), enf’d, 433
F.3d 939 (7th Cir. 2006).
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Respondent stipulated at the hearing that as of early May 2011, at least fifty percent of
the job classifications at the 135-46 Lefferts Boulevard store were filled, and that the bargaining
unit consisted of at least thirty percent of the ultimate complement of employees. Respondent
further stipulated that the majority of the bargaining unit employees employed at that time in an
appropriate unit5 were former employees of PSK, covered under the collective bargaining
agreement between PSK and Local 338. As a result, the record establishes that Local 338
attained majority status at the 135-46 Lefferts Boulevard store in early May 2011.
2. The Union’s Demand for Recognition and Bargaining
It is well-settled that a valid demand for recognition and bargaining “need not be made in
any particular form…so long as the request clearly indicates a desire to negotiate and bargain”
on behalf of the bargaining unit employees regarding terms and conditions of employment.
Cadillac Asphalt Paving Co., 349 NLRB 6, 10 (2007), quoting Marysville Travelodge, 233 NLRB
527, 532 (1977); MSK Corp., 341 NLRB 43, 45 (2004). Any oral or written statement
constituting a valid demand for recognition may trigger the bargaining obligation, and there are
no “magic words” necessary to create a valid demand. See Paramus Ford, 351 NLRB at 1028
(union’s assertion that it represented employees, together with request for information regarding
the status of employees’ employment applications and successor’s reasons for declining to hire
them, constituted a valid bargaining demand); Cadillac Asphalt Paving Co., 349 NLRB at 10
(union president demanded bargaining by complaining during phone conversation that
successor was discriminating against union, requesting that successor continue to pay union
benefits, and offering to provide a copy of a the new collective bargaining agreement with
employer association); MSK Corp., 341 NLRB at 45 (union president demanded bargaining
during meeting with predecessor employees regarding business transition, by telling company
official that the union represented predecessor’s employees, and giving official a copy of the
predecessor’s collective bargaining agreement, directing official’s attention to the successor
clause). Contrary to Respondent’s contentions, there is no requirement that a union confirm an
oral demand for recognition in writing, make a written record of an oral demand, or suggest
specific dates for negotiations.
Given this standard, the statements of Laub and Caffey would clearly establish that the
Union demanded recognition and bargaining on April 26 and 29. Laub testified that on April 26
he told Mike Hassen that he wanted to arrange contract negotiations, that the Union had
represented the employees at the 135-46 Lefferts Boulevard store for a long time and could not
“just walk away,” and that the Union and the company could negotiate a contract that satisfied
the concerns of all parties involved. Caffey and Laub testified that on April 29 Caffey told Sam
Hassen that the Union was demanding recognition because the majority of the 135-46 Lefferts
Boulevard store’s employees had been part of the PSK bargaining unit, and that the parties
needed to negotiate a specific contract that worked for everyone. Such statements would be
clear demands for recognition and bargaining.
Respondent counters that the April 26 conversation between Laub and Mike Hassen did
not occur, and that in any event Mike Hassen was not an agent of Respondent. With respect to
the April 29 conversation, Respondent argues that, as Sam Hassen testified, Caffey and Laub
did not in fact demand recognition or bargaining, but only asked to speak to Mike Hassen, and

5 The bargaining unit at that time consisted of all full-time and regular part-time cashiers,
produce, dairy, grocery, deli, and frozen food employees, excluding all butchers, office clerical
employees, guards, and supervisors as defined in Section 2(11) of the Act.
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left the store when Sam Hassen was unable to get in touch with him. These arguments are not
ultimately substantiated by the record.
Overall, I find that the testimony of Caffey, Laub and Mangal regarding the critical events
was more credible and probative than that of Sam and Mike Hassen. Caffey, Laub, and Mangal
provided specific, detailed descriptions of the material events, which were generally consistent
on direct and cross examination. By contrast, Mike Hassen’s testimony consisted of a general
denial that he had ever seen Laub prior to the hearing, and Sam Hassen’s testimony was often
vague and conclusory, and at other times evasive or implausible. See, e.g., Precoat Metals,
341 NLRB 1137, 1150 (2004) (lack of specific recollection, general denials, and comparative
vagueness insufficient to rebut more detailed positive testimony). I have therefore generally
credited Caffey, Laub and Mangal in connection with the events which were the subject of their
testimony.
With respect to the conversation between Laub and Mike Hassen on April 26, I find that
Laub’s specific testimony, confirmed by his recording of the incident in his daily calendar,6 to be
more probative and reliable than Hassen’s assertion that he had never seen Laub prior to the
hearing. Other evidence in the record also tends to corroborate Laub’s testimony, as opposed
to Mike Hassen’s. I note for example that Sam Hassen testified that he was familiar with Laub
from Laub’s visits to the Foot Hills store (Tr. 236-237, 240). Given that Mike Hassen owns that
store and has always been Sam Hassen’s “boss” there, and that both Hassens worked out of
adjacent offices in its basement, I find it less than plausible that Mike Hassen had never seen
Laub prior to the hearing in this matter. In addition, documentary evidence establishes that as
part of the Purchase Agreement for the 135-46 Lefferts Boulevard business, Mike Hassen
agreed to endorse a promissory note and execute a guarantee, both individually and on behalf
of two corporate entities. The Purchase Agreement also provides for notices to be sent to
Respondent at the Foot Hills store, which Mike Hassen owned and operated, and where he
maintained his office. This evidence corroborates Laub’s testimony that when he spoke to Mike
Hassen on April 26, Hassen told him that he would not be available for negotiations later that
week, because he would be busy with finalizing the purchase and interacting with the bank, as
was necessary in order to complete the transaction.
For all of the foregoing reasons, the weight of the probative evidence establishes that on
April 26, at the Foot Hills store, Laub informed Mike Hassen that the Union was seeking to set
up contract negotiations, and, after Hassen responded that there “will never be a union” at the
Foodtown being purchased, told Hassen that the union had represented the Foodtown
employees for a long period of time and could not “just walk away.” After Laub stated that the
parties could negotiate a contract that works for everyone, Hassen said that he would not be
available that week because he was busy finalizing the purchase, and Laub gave Hassen his
contact information. These statements on Laub’s part constitute an effective demand for
recognition and bargaining. Cadillac Asphalt Paving Co., 349 NLRB at 10; MSK Corp., 341
NLRB at 45.
The record also establishes that Mike Hassen was an agent of Respondent within the
meaning of Section 2(13) of the Act. It is well-settled that the Board applies common law
agency principles to determine whether an employee is acting with apparent authority on behalf
of the employer when making a particular statement. Pan Oston Co., 336 NLRB 305, 305-307
(2001); see also Facchina Construction Co., 343 NLRB 886, 886-887 (2004). The Board

6 The evidence establishes that Laub kept this electronic calendar in the ordinary course of
business to record his schedule and appointments.
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evaluates whether, under the particular circumstances involved, “employees would reasonably
believe that the alleged agent was reflecting company policy and speaking and acting for
management.” Facchina Construction Co., 343 NLRB at 887. The Board also considers family
relationships relevant when determining whether the conduct of a particular individual may be
imputed to the employer. See, e.g., Scotts IGA Foodliner, 223 NLRB 394, 400-401 (1976),
enf’d, 549 F.2d 805 (7th Cir. 1977) (son of Respondent’s owner not employed by Respondent
nevertheless Respondent’s agent, where he worked in Respondent’s business regularly,
enlisting employees to assist him, and participated in unlawful conduct with an admitted
supervisor); South Shore Pontiac Co., 203 NLRB 928, 932-933 (1973) (salesperson and son of
Respondent’s owner an agent given Respondent’s funding of son’s managerial training, son’s
participation in Board procedures on Respondent’s behalf, and Regional Director’s Decision and
Direction of Election excluding son from the bargaining unit based upon the family relationship).
There is sufficient evidence in the record to establish that Mike Hassen acted as an
agent of Respondent under Section 2(13). The evidence establishes that Mike Hassen played a
direct role in hiring employees to staff the Key Food store at 135-46 Lefferts Boulevard. Mangal
credibly testified that Mike Hassen hired her and bookkeeper Inja, former Foodtown employees,
to continue working at the 135-46 Lefferts Boulevard store once it became a Key Food, and
negotiated with her regarding her hours, pay rate, health insurance, and vacation time with the
new company. Although Mike Hassen testified for Respondent at the hearing, he was not
questioned regarding this conversation with Mangal, and as such Mangal’s testimony is
unrebutted on this point.7 Mike Hassen’s role in hiring Mangal and Inja establishes that he
acted as Respondent’s agent within the meaning of Section 2(13). See Grimmway Farms, 314
NLRB 73, 73-74, n. 6, 88, n. 25 (1994), enf’d in relevant part, 85 F.3d 637 (9th Cir. 1996)
(providing information to applicants during hiring process sufficient to establish agency status);
Enterprise Aggregates Corp., 271 NLRB 978, 979-980, n. 2 (1984) (employee responsible for
hiring “at least” an agent under Section 2(13)).
The evidence also establishes that Mike Hassen was directly involved, and assumed a
financial role, in the purchase of the assets comprising the retail grocery business at 135-46
Lefferts Boulevard by his father and brother. As part of the transaction, Mike Hassen agreed to
endorse a promissory note and execute a guarantee, both individually and on behalf of two
entities which own and operate the Foot Hills store. In addition, as discussed above, under the
Purchase Agreement notices were to be sent to Respondent at the Foot Hills store, which Mike
Hassen owned and operated, and where he maintained his office. Mike Hassen’s financial
involvement in the purchase of Respondent’s business, and extant the family relationships,
militate in favor of a finding that Mike Hassen acted as Respondent’s agent. Scotts IGA
Foodliner, 223 NLRB at 400-401.
Furthermore, the evidence establishes that Respondent, its attorneys, and Sam Hassen,
treated Mike Hassen as a principal of Respondent, and that Mike Hassen considered himself as
such. When Laub approached him on April 26 in order to arrange contract negotiations, Mike
Hassen did not direct Laub to speak to Sam Hassen, or deny in any way that he had the
authority to speak for Respondent on the matter. Instead, he told Laub that, “there will never be
a union there,” because Respondent “can’t afford a union.” Similarly, when Laub and Caffey
visited the 135-46 Lefferts Boulevard store on April 29 to demand bargaining, Sam Hassen
never told them that he, as opposed to Mike Hassen, was responsible for the store’s operations.

7 Sam Hassen’s contention that he in fact hired Mangal (Tr. 233-234), devoid of any
meaningful elaboration, is not sufficient to contradict her account of her conversation with Mike
Hassen, as Respondent argues.
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Sam Hassen said instead that he needed to speak to Mike Hassen regarding the issue. Finally,
when Respondent’s counsel presented its written position to Region 29 regarding relief pursuant
to Section 10(j) of the Act, he sent a copy to Mike Hassen. Respondent’s counsel also referred
to Mike Hassen as one of his “clients” in this matter when requesting that the hearing be
adjourned. In response, Respondent’s attorney contends in effect that he was misled by
Counsel for the Acting General Counsel as to the identity of his own client’s principals, a claim
not worthy of serious consideration.
For all of the foregoing reasons, the evidence establishes that Mike Hassen was an
agent of Respondent within the meaning of Section 2(13) of the Act at the time that Laub made
his demand for recognition and bargaining.
Finally, Respondent’s argument that the April 26 recognition demand was ineffective
because it had not yet begun to operate the 135-46 Lefferts Boulevard store is unavailing. It is
well-settled that demands for recognition made prior to the hiring of a substantial and
representative employee complement, and even prior to the consummation of the business
transaction creating the successor entity, are deemed to be continuing until the bargaining
obligation matures. See, e.g., MSK Corp., 341 NLRB at 44 (demand for recognition and hiring
of substantial and representative complement “need not occur in any particular order”);
Paramus Ford, 351 NLRB at 1028-1029 (valid recognition demand sent prior to sale of business
triggered bargaining obligation upon hiring of substantial and representative complement of
employees by the new entity). As a result, the Union’s April 26 demand for recognition and
bargaining was continuing, and effective when Respondent had hired a substantial and
representative complement of employees in early May.
With respect to the April 29 recognition demand, I credit the consistent testimony of
Caffey and Laub regarding their interaction with Sam Hassen at the 135-46 Lefferts Boulevard
store. Caffey and Laub provided specific detail regarding their visit to the store that day, and
both testified that Caffey told Hassen that the Union had always represented the employees,
and that the parties had to sit down and negotiate a contract. Caffey and Laub also both
testified that Sam Hassen responded that he needed to speak with Mike Hassen. Sam Hassen
also admitted that Laub and Caffey gave him contact information, and asked him to have Mike
Hassen to get in touch with them. The record therefore establishes that the Union made an
effective demand for recognition during this conversation. Cadillac Asphalt Paving Co., 349
NLRB No. 5 at p. 5; MSK Corp., 341 NLRB at 45.
I do not credit Sam Hassen’s contention that Caffey and Laub did not demand
recognition or bargaining during this discussion, and only asked that Sam call Mike Hassen.
Sam Hassen’s testimony regarding the involvement of Mike Hassen in the 135-46 Lefferts
Boulevard store was by turns vague, evasive, and flatly contradicted by other evidence in the
record. Sam Hassen’s contention that Mike Hassen was not “involved at all in the purchase” of
the business (Tr. 283) was directly contradicted by the Purchase Agreement itself, which
requires that Mike Hassen endorse a promissory note and execute a guarantee in connection
with the transaction. When asked at the hearing whether he ever spoke to Mike Hassen
regarding Caffey and Laub’s April 29 visit, Sam Hassen initially denied doing so, then stated
that he had only done so the week before the hearing, then contended that he told Mike Hassen
about Caffey and Laub’s visit in November or December (Tr. 246-247). When asked what they
discussed, Sam Hassen testified that, “I spoke to Mike or whatever about – what did we speak
about? I spoke to him about the contents of this or whatever” (Tr. 247). Asked again, Sam
Hassen continued with, “Told him that I got a letter saying that these guys came to the store or
whatever and this and that” (Tr. 247-248). Changing his testimony again to deny ever having
told Mike Hassen about Caffey and Laub’s visit, Sam Hassen stated, “No, I said that Jack and
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Jeff came to the store or whatever. It was in – I think it was in an affidavit or whatever. I was
talking to him about it” (Tr. 248). Sam Hassen’s propensity for vague and evasive testimony
regarding the critical events in this matter, and the involvement of Mike Hassen in Respondent’s
business operations, indicates that his testimony regarding these central issues in the case is
not reliable. I therefore credit Caffey and Laub’s more detailed and consistent testimony
regarding their visit to the 135-46 Lefferts Avenue store on April 29, and find that the Union
made a valid demand for recognition and bargaining on that occasion.
3. The Union’s Conduct Following its Recognition Demands
Respondent argues that, for several reasons, the Union’s activities after making the
recognition demands described above were fatally inconsistent with the demands’ ever having
been made. Some of its contentions are legally void, and the remainder are insufficient to
establish, given the evidence overall, that the Union did not in fact make a valid demand for
recognition and bargaining. Nor does the existing case law support Respondent’s claim that the
Regional Director, Region 29, erred by permitting the Union to withdraw its petition for a
representation election while pursuing a charge alleging an unlawful refusal to recognize and
bargain.
Respondent argues, for example, that the Union never reiterated its demands in writing,
and initially picketed and distributed informational leaflets which did not assert that Respondent
was unlawfully refusing to recognize it. However, Laub and Caffey’s oral demands for
recognition and bargaining on April 26 and 29 are legally sufficient to trigger a successor’s
obligations; contrary to Respondent’s contention there is no requirement that a demand for
recognition and bargaining be reiterated in writing, or that some sort of written “follow-up” to an
oral demand exist. See, e.g., Cadillac Asphalt Paving Co., 349 NLRB at 10. The first of the
leaflets referred to by Respondent, which the Union began distributing days after demanding
recognition, specifically informed the public that Respondent had no collective bargaining
agreement with the Union.8 The Union was not required to include statements that Respondent
was refusing to negotiate or that it believed that Respondent’s failure to recognize and bargain
with it was unlawful.
Respondent also claims that the Union’s having filed a petition for a representation
election without completing the portions of that form stating that a recognition and bargaining
demand had been made indicates that it never in fact demanded recognition and bargaining.
However, I credit Caffey’s testimony that the petition was prepared by a different Union
representative, who followed the Union’s typical practice of not completing the portions of the
petition form regarding a demand for recognition and bargaining. In addition, giving the
recognition demand portion of the petition form the legal import that Respondent suggests is at
odds with settled Board law permitting the simultaneous pursuit of a representation election and
an unfair labor practice charge alleging an unlawful refusal to bargain, as will be discussed
below.
Finally, Respondent asserts that the Union’s filing a petition for a representation election
and entering into a Stipulated Election Agreement was sufficiently inconsistent with having
made a recognition demand that this conduct should effectively nullify any evidence of a valid
demand for recognition. This contention, however, is at odds with well-settled law. Since its
decision in Bernel Foam Products Co., 146 NLRB 1277, 1280 (1964), the Board has held that a

8 Leaflets the Union began distributing in September explicitly contended that Respondent
had unlawfully refused to recognize it and bargain.
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Union does not waive its right to file a charge alleging an unlawful refusal to recognize and
bargain by filing a petition for a representation election, or even by proceeding to an election.
See also Dauman Pallet, Inc., 314 NLRB 185, 207-208 (1994) (rejecting employer’s contention
that union waived any right to obtain a remedial bargaining order by proceeding to an election
despite alleged employer misconduct, citing Bernel Foam Products); Avecor, Inc., 296 NLRB
727, 749-750 (1989), enf. denied on other grounds, 931 F.2d 924 (D.C. Cir. 1991) (same);
Colson Corp. v. NLRB, 347 F.2d 128, 138-139 (8th Cir. 1965) (Board within its statutory authority
in rejecting employer’s contention that union waived any right to prosecute refusal to bargain
allegations by proceeding to an election). As a result, there is no legal support for Respondent’s
contention that the Union somehow waived its right to proceed with a refusal to bargain charge
by filing a petition for a representation election.9 Under Bernel Foam Products Co., the Union
was permitted to pursue an unfair labor practice charge alleging that Respondent unlawfully
refused to recognize it and bargain, a petition for a representation election, or both
simultaneously. Thus, the Regional Director did not err in approving the Union’s request to
withdraw that petition when it elected to proceed with the charge alone, as Respondent claims.
For all of the foregoing reasons, I find that Respondent, as a successor to PSK, was
legally obligated to recognize and bargain with the Union as the exclusive collective bargaining
representative of the employees at the 135-46 Lefferts Boulevard store, as of early May 2011.
By failing and refusing to do so, Respondent violated Sections 8(a)(1) and (5) of the Act.
B. Respondent Violated Section 8(a)(1) of the Act by Interrogating Employees and Creating the
Impression of Surveillance of the Employees’ Union Activities
The evidence establishes that Respondent, by Sam Hassen, coercively interrogated
Nadira Mangal and created the impression that employees’ Union activities were under
surveillance during their conversation on June 17. Mangal testified that on that day Hassen
called her into the office while she was working on the register. After some discussion
regarding health insurance, Hassen asked Mangal how many union cards the other employees
had given her, and told her, “I know you’re helping the guys to fill[] out cards to get the union
back in the store.” Hassen went on to state that he had “an insider in the union” who had given
the company a list of the names of employees who had filled out cards.
I credit Mangal’s testimony in this regard over that of Sam Hassen, who claimed the
entire conversation never took place. Mangal’s testimony regarding the conversation was
detailed and comprehensive, while Hassen gave no specific rationale for his purported
recollection that he did not speak to Mangal on June 17. In addition, although Sam Hassen
claimed that he only discussed insurance with Mangal on May 1, when he hired her, the record
establishes, as discussed above, that Mike Hassen in fact hired Mangal in early May and
discussed health insurance with her at that time. The evidence also does not bear out
Respondent’s contention that Mangal was paid to fabricate her testify for the Union, as she
clarified on redirect examination that she was paid for her time while picketing, as opposed to
preparing her affidavits. While Respondent’s conduct toward Mangal was the subject of several
charges which were ultimately dismissed, overall I find her testimony regarding the June 17
conversation to be more credible than Sam Hassen’s contention that it never occurred.

9 Indeed, if Respondent had complied with its legal obligation as a successor to recognize
and bargain with the Union, the Union would have been entitled to a reasonable period of
bargaining prior to the filing of a petition for an election based upon an alleged loss of majority
support. See UGL-UNICCO Service Co., 357 NLRB No. 76, at p. 9 (2011).
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Based upon Mangal’s testimony, I find that Sam Hassen coercively interrogated her on
June 17, in violation of Section 8(a)(1) of the Act. The Board determines whether questioning
regarding union activity is unlawfully coercive by considering any background of employer
hostility, the nature of the information, the status of the questioner in the employer’s hierarchy,
the place and method of questioning, and the truthfulness of the employee’s answer.
Westwood Health Care Center, 330 NLRB 935, 939 (2000). The Board also considers whether
the employee in question was an open union supporter at the time of the disputed conversation.
See, e.g., Evergreen America Corp., 348 NLRB 178, 208 (2006), enf’d, 531 F.3d 321 (4th Cir.
2008)
Here these factors overall establish that Hassen’s questioning of Mangal was
impermissibly coercive. The Board has held that questions similar to those posed by Hassen
constitute coercive interrogation. See, e.g., Green Valley Manor, 353 NLRB 905, 905, n. 1, 910
(2009) (supervisor’s statement to employee that “there was a rumor that she was recruiting
women for the union” constituted a coercive interrogation); see also U.S. Coachworks, Inc., 334
NLRB 955, 958 (2001), enf’d 53 Fed.Appx.171, 172 LRRM 3312 (2d Cir. 2002) (company
President’s statement “I know you are the one that is disbursing union cards out” created the
impression of surveillance). Although Mangal testified that at certain points during the
conversation she and Hassen joked about personal matters, there is no evidence that they had
some sort of ongoing personal friendship, and in fact Mangal was eventually discharged. See
Manor Health Services-Easton, 356 NLRB No. 39 at p. 1, n. 3, and at p. 17 (2010), enf’d, 661
F.3d 1139 (D.C. Cir. 2011) (questioning impermissible where no evidence of personal friendship
between agent and employees); compare Smithfield Packing, 344 NLRB 1, 2 (2004). Nor was
Mangal an open supporter of the Union at the time of the conversation. Hassen specifically
called Mangal into his office for the conversation; it was not a brief, casual interaction in the
work area. Manor Health Services-Easton, 356 NLRB No. 39 at p. 18 (questioning coercive
where interaction was “neither casual nor accidental”). Respondent’s refusal to recognize and
bargain with the Union, and the Union’s ongoing picketing at the time, evince a contentious,
hostile atmosphere. Hassen followed his questioning of Mangal by telling her that an “insider” in
the Union had informed him as to which employees had signed authorization cards, a remark
which, as will be seen below, unlawfully created the impression of surveillance. See Evergreen
America Corp., 348 NLRB at 208 (questioning accompanied by statements evincing hostility
toward union activities more likely to be coercive); Demco New York Corp., 337 NLRB 850, 851
(2002). Finally, Mangal was sufficiently uncomfortable with Hassen’s questioning to provide
untruthful responses, despite his repeated efforts to obtain information from her. As a result, the
evidence establishes, and I conclude, that Hassen’s questioning of Mangal on June 17 was
unlawfully coercive.
The evidence also establishes that during his June 17 conversation with Mangal,
Hassen created the impression that employees’ Union activities were under surveillance, in
violation of Section 8(a)(1). In order to determine whether an employer has created the
impression of surveillance, the Board analyzes whether employees would “reasonably believe”
from the disputed statement that their union activities were under surveillance by the employer.
See, e.g. U.S. Coachworks, Inc., 334 NLRB at 958. Hassen’s statement to Mangal that he had
an “insider” at the Union who had provided him with a “list” of employees who had signed union
cards easily meets this standard. See La Reina, Inc., 279 NLRB 791, 800 (1986), enf’d, 823
F.2d 1552 (9th Cir. 1987) (supervisor’s statement that “he had two employees who attended the
[union] meeting and kept him informed” created the impression of surveillance); Martech MDI,
331 NLRB 487, n. 4 (2000), enf’d 6 Fed.Appx.14 (D.C. Cir. 2001) (supervisor’s statement that
she “heard that there was a list circulating with 80 names” created the impression of
surveillance).
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The evidence does not establish, however, that Respondent created the impression of
surveillance when Hassen asked Mangal whether she had written down other employees’
schedules on June 19. Hassen admitted that this conversation with Mangal occurred, and
testified that he approached her regarding copying the schedule because other employees had
complained about it. Regardless, the creation of the impression of surveillance is only unlawful
under the Act when it applies to union and protected concerted activities. Here, there is
insufficient evidence to establish that Mangal’s copying of the work schedules constituted
activity on behalf of the Union, or protected concerted activity. As a result, Hassen’s discussion
with her regarding the issue did not create the impression that any union or protected concerted
activity of Mangal’s was under surveillance. See Jurys Boston Hotel, 356 NLRB No. 114 at p. 1,
12 (2011) (supervisor’s comment, “I know everything,” devoid of any context, inadequate to
establish unlawful creation of the impression of surveillance). I will therefore recommend that
this allegation be dismissed.
Conclusions of Law
1. At all material times, the Respondent, Calhoun Foods, LLC d/b/a Key Food, has been
an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act.
2. At all material times, the Charging Party, Local 338, Retail, Wholesale and
Department Store Union, United Food and Commercial Workers, has been a labor organization
within the meaning of Section 2(5) of the Act.
3. At all material times, the following employees have constituted an appropriate unit for
the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All full-time
and regular part-time cashiers, produce, dairy, grocery, deli, and frozen food employees,
excluding all butchers, office clerical employees, guards, and supervisors as defined in Section
2(11) of the Act.
4. Respondent violated Sections 8(a)(5) and (1) of the Act by refusing to recognize and
bargain with the Charging Party Union as the exclusive collective bargaining representative of
the bargaining unit employees since on or about May 1, 2011.
5. On or about June 17, 2011, Respondent violated Section 8(a)(1) of the Act by
coercively interrogating employees regarding their Union activities.
6. On or about June 17, 2011, Respondent violated Section 8(a)(1) of the Act by
creating the impression that its employees’ Union activities were under surveillance.
7. Respondent has not violated the Act in any other manner.
8. The above-described unfair labor practices affect commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
The Remedy
Having found that Respondent has violated the Act, I shall recommend that it cease and
desist therefrom and take certain affirmative action necessary to effectuate the Act’s purposes.
Respondent shall recognize the Union as the exclusive collective bargaining representative of
the bargaining unit of employees described above and, upon request of the Union, bargain with
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the Union in good faith regarding the employees’ terms and conditions of employment, and, if an
understanding is reached, embody that understanding in a signed agreement.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended10
ORDER
Respondent Calhoun Foods, LLC d/b/a Key Food, Brooklyn, New York, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to recognize and bargain in good faith with Local 338 as the
exclusive collective bargaining representative of the bargaining unit employees.
(b) Coercively interrogating employees regarding their Union activities.
(c) Creating the impression that employees’ Union activities are under surveillance.
(d) In any like or related manner interfering with, restraining or coercing employees in
the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act
(a) Recognize and, on request of the Union, bargain in good faith with the Union
regarding the terms and conditions of employment for the employees in the following
appropriate unit, and, if an understanding is reached, embody that understanding in a signed
agreement:
All full-time and regular part-time cashiers, produce, dairy, grocery, deli, and
frozen food employees, excluding all butchers, office clerical employees, guards,
and supervisors as defined in Section 2(11) of the Act.
(b) Within 14 days after service by the Region, post at its facility in Brooklyn, New York,
copies of the attached notice marked “Appendix.”11 Copies of the notice, on forms provided by
the Regional Director for Region 29, after being signed by Respondent’s authorized
representative, shall be posted by the Respondent and maintained for 60 consecutive days in
conspicuous places including all places where notices to employees are customarily posted. In
addition to physical posting of paper notices, notices shall be distributed electronically, such as
by e-mail, posting on an intranet or an internet site and/or other electronic means if Respondent
customarily communicates with its employees by such means. Reasonable steps shall be taken

10 If no exceptions are filed as provided by Section 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Section
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.
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 United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
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by the Respondent to ensure that the notices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these proceedings, the Respondent has
gone out of business or closed the facility involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the notice to all current employees and former
employees employed by the Respondent at any time since May 1, 2011.
(c) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that
Respondent has taken to comply.
IT IS FURTHER ORDERED that the Consolidated Complaint is dismissed insofar as it alleges
violations of the Act not specifically found.
Dated: Washington, DC May 8, 2012
__________________________
Lauren Esposito
Administrative Law Judge
JD(NY)–13–12
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post
and obey this Notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT refuse to recognize and, upon request, bargain with Local 338, RWDSU/UFCW as the
exclusive collective bargaining representative of the employees in the following unit:
All full-time and regular part-time cashiers, produce, dairy, grocery, deli, and frozen food
employees, excluding all butchers, office clerical employees, guards, and supervisors as
defined in Section 2(11) of the Act.
WE WILL NOT coercively interrogate you regarding your Union activities.
WE WILL NOT create the impression that your Union activities are under surveillance.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights
guaranteed to you by Section 7 of the Act.
WE WILL recognize and, upon request, bargain with Local 338, RSDSU/UFCW as the exclusive collective
bargaining representative of the bargaining unit employees described above regarding terms and conditions of
employment, and, if an understanding is reached, embody such understanding in a signed agreement.
CALHOUN FOODS, LLC d/b/a KEY FOOD
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor Relations Act. It
conducts secret-ballot elections to determine whether employees want union representation and it investigates and remedies unfair
labor practices by employers and unions. To find out more about your rights under the Act and how to file a charge or election petition,
you may speak confidentially to any agent with the Board’s Regional Office set forth below. You may also obtain information from the
Board’s website: www.nlrb.gov.
26 Federal Plaza, Federal Building, Room 3614
New York, New York 10278-0104
Hours: 8:45 a.m. to 5:15 p.m.
212-264-0300.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 212-264-0346