Michael Cetta, Inc. d/b/a Sparks Restaurant

National Labor Relations Board - Administrative Judge Opinions

Nov 18, 2016

02-CA-142626 (N.L.R.B. Nov. 18, 2016)

JD(NY)-43-16
New York, NY
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH
MICHAEL CETTA, INC. d/b/a
SPARKS RESTAURANT
and Case No. 2-CA-142626
Case No. 2-CA-144852
UNITED FOOD AND COMMERCIAL
WORKERS LOCAL 342
Rebecca A. Leaf, Esq.,
for the General Counsel.
Thomas J. Bianco, Esq., Marc B. Zimmerman,
Esq., and Regina E. Faul, Esq.,
for the Respondent.
Martin Milner, Esq.,
for the Charging Party.
DECISION
STATEMENT OF THE CASE
Lauren Esposito, Administrative Law Judge. Based upon a charge in Case 02–
CA–142626, filed on December 10, 2014, and amended on January 9, 2015, and upon
a charge in Case 2-CA-144852, filed on January 22, 2015, by United Food and
Commercial Workers Local 342 (“Local 342” or “the Union”), an Order consolidating
cases, consolidated complaint, and notice of hearing issued on May 29, 2015 (the
“complaint”). The complaint alleges that Michael Cetta, Inc. d/b/a Sparks Restaurant
(“Sparks” or “Respondent”) violated Sections 8(a)(1) and (3) of the Act by failing and
refusing to reinstate striking employees despite an unconditional offer to return to work,
denying the striking employees their right to be placed on a preferential hiring list, and
discharging the striking employees. The complaint further alleges that Sparks violated
Section 8(a)(1) by soliciting employees to withdraw their support for the Union. On
September 18, 2015, the Regional Director, Region 2 issued an Order amending
complaint and amendment to complaint stating that as part of the Remedy General
Counsel seeks an order requiring that Respondent offer reinstatement to all of the
striking employees and make them whole from the date of their discharge, despite the
fact that Respondent had previously hired permanent replacement employees. This
case was tried before me on October 7, 9, and 13 through 16, 2015, in New York, New
York.
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After the conclusion of the trial, the parties filed briefs, which I have read and
considered. Base on those briefs, and the entire record in the case, including the
testimony of the witnesses and my observation of their demeanor, I make the following
FINDINGS OF FACT5
I. JURISDICTION
Sparks is a restaurant located at 210 East 46th Street, New York, New York,
engaged in the sale of food and beverages. Sparks admits and I find that it is an 10
employer within the meaning of Section 2(2), (6), and (7) of the Act.
Sparks stipulated at the hearing and I find that Local 342 is a labor organization
within the meaning of Section 2(5) of the Act (Tr. 7).
15
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
1. Background20
Respondent operates a steakhouse restaurant at its 210 East 46th Street
location, preparing and serving food and drinks to individual customers and for private
parties arranged on its premises (Tr. 245–246, 250). The restaurant is on two floors
with some rooms for individual or “a la carte” dining and other small rooms for private 25
events (Tr. 249–250). Sparks is open Monday through Friday for both lunch and dinner,
and on Saturday for dinner only (Tr. 246). Lunch begins around 11:30 a.m. or noon,
and runs until approximately 3 p.m. (Tr. 246). Dinner begins at around 5 p.m., and
continues until the customers with the last reservation finish their meals (Tr. 246).
Sparks employs waiters and bartenders, as well as kitchen workers such as 30
cooks/chefs, dishwashers, and prep workers (Tr. 246–247). Respondent also employs
an office manager, Shailesh Desai, and an assistant to Desai (Tr. 248). Desai testified
at the hearing on behalf of Sparks.
Michael and Steven Cetta are owners of Sparks, and its president and vice 35
president, respectively. Sparks stipulated at the hearing that Michael and Steven Cetta,
as well as Maitre’d Valter Kapovic, were at all material times supervisors within the
meaning of Section 2(11) of the Act, and agents of Sparks acting on its behalf within the
meaning of Section 2(13) (Tr. 7). Steven Cetta testified at the hearing that as vice
president he is responsible for overseeing “everything” and “everybody.” (Tr. 244.) In 40
addition to Kapovic, Sparks employs managers named Abdul, Ricardo (Cordero),
Octavio, and Nick, all of whom report to Steven Cetta (Tr. 244–245). In addition, since
2009, Sparks has engaged Susan Edelstein as a human resources consultant (Tr. 287–
288). Edelstein testified in that capacity and as Custodian of Sparks’ personnel records
(Tr. 288).45
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2. Events Prior to the December 10, 2014 Strike
Local 342 was certified as the exclusive collective-bargaining representative of a
unit of waiters and bartenders at Sparks on July 11, 2013, and since then the parties
have had approximately 8 negotiating sessions but have not entered into a collective-5
bargaining agreement (Tr. 32–34, 174–175). Negotiations have been generally
attended by Director of Contracts, Louis LoIacono, his executive assistant Mary Ann
Kelly, representative Carolina Martinez, and Shop Stewards Kristofer Fuller and Valjon
Hajdini for Local 342 (Tr. 99–100, 154, 175–176). Attorneys Marc Zimmerman and
Regina Faul, Steven Cetta, and Susan Edelstein have attended negotiations for Sparks. 10
(Tr. 100, 176, 251.)
After a bargaining session on December 5, 2014, frustrated with what they
perceived of a lack of movement on the part of Sparks in negotiations, the waiters and
bartenders decided to go on strike that evening (Tr. 34). The waiters and bartenders 15
went on strike for approximately 2 hours on the evening of December 5, 2014, from
roughly 7 to 9 p.m., returning to work after making an unconditional offer (Tr. 34–35,
47, 55–56, 101–102).
Waiter Valjon Hajdini testified that the next day, December 6, 2014, Manager 20
Valter Kapovic asked to speak with him when he arrived at work. The two spoke in the
Madison Room downstairs, one of the rooms used for private parties. Hajdini testified
that Kapovic said he was concerned about the waiters and bartenders’ going on strike.
According to Hajdini, Kapovic stated that he was interested in buying the restaurant,
and had investors, but that the strike would “drag the business down” and the investors 25
would “back off.” Hajdini stated that the waiters and bartenders “were not looking to go
on strike again,” but were only looking for “a simple contract.” Hajdini stated that, “if you
don’t want us to go on strike . . . make an offer that is easy for us to accept.” Kapovic
said that he was going to talk to Steve Cetta, “and see if we can do something about
that.” Kapovic then asked “can we vote the Union out” if he and his investors bought 30
the restaurant. Hajdini responded, “I don’t see why the Union bothers you. All we want
is a simple contract—that we get treated fairly.”1 [Tr. 39–40.]
3. The December 10, 2014 Strike and Subsequent Events35
Frustrated with the lack of progress in negotiations, the waiters and bartenders
began another strike at approximately 7 p.m. on December 10, 2014 (Tr. 35–36, 102–
105, 154–155, 252). A total of 36 employees engaged in the strike, 34 waiters and 2
bartenders.2 The nonstriking employees consisted of bargaining unit employees who 40

1 Kapovic did not testify at the hearing.
2 The bartenders and waiters who engaged in the strike beginning December 10, 2014, are Gerardo
Alarcon, Fredy Albarracin, Marko Beljan, James Campanella, Ian Collins, Elvis Cutra, Arlind Demaj,
Kristofer Fuller, Adem Gjevukaj, Valjon Hajdini, Elvi Hoxhaj, Juan Iriarte, Ante Ivre, Amir Jakupi, Bardhyl
Kelmendi, Jeton Kerahoda, Milazim Kukaj, Rachid Lamniji, Valon Lokaj, Silvio Lustica, Iber Mushkolaj,
Gani Neziraj, Kenan Neziraj, Xhavit Neziraj, Adnan Nuredini, Juan Patino, Sadik Prelvukaj, Francisco
JD(NY)-43-16

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decided not to participate in the strike and 5 employees referred to by Respondent as
“seasonal” (Respondent’s posthearing br. at 34). Respondent stipulated at the hearing
and I find that the strike which began on December 10, 2014, was concerted in nature
(Tr. 7–8).
5
On December 19, 2014, the striking employees together with union
representatives Steve Boris and John decided to make an unconditional offer to return
to work. Bartender Elvi Hoxhaj testified that between 3:30 and 4:30 p.m. that day, he
and the two union representatives decided that they would go into the restaurant and
make an unconditional offer to return to work. As they entered the restaurant, they were 10
stopped in the vestibule by a security guard. Boris explained to security that Hoxhaj
was a worker and they were union representatives, and that “they wanted to talk to
management and ownership about an unconditional offer to return to work.” According
to Hoxhaj, security told the group to stay where they were, and the security guard would
go inside and convey the message. Hoxhaj then saw the security guard speak to 15
Kapovic, who was on the phone. After they spoke, one of the security guards returned
to speak with Hoxhaj and the union representatives, who stated, “we’re just trying to get
an unconditional offer to return to work.” The security guard responded, “I know, but
they don’t want you in here.” [Tr. 156–159.] Other employees were subsequently
informed by Boris that Local 342 had made an unconditional offer for the striking 20
employees to return to work, which Sparks had rejected (Tr. 59–60, 82–85).
On December 19, 2014, at 8:55 p.m., Local 342 Secretary-Treasurer sent the
following email to Marc Zimmerman:
25
Good evening. I am Lisa O’Leary, Secretary Treasurer of UFCW Local
342 and I am authorized to send you this email on behalf of Local 342.
Local 342 today has made an unconditional offer to return to work, and
that offer remains. President Abondolo shared with me his email
exchange with you earlier today. I write again to confirm that the offer to 30
return to work is unconditional, and tied to no additional action being
performed by your client. UFCW Local 342 continues its offer to bargain
prior to your January 8th date, but this continuing offer to bargain, which
has at all times been rejected by your client, is separate from Local 342’s
unconditional offer to return to work. I suspect you are aware of this, but if 35
not I am telling you so here.
* * *
The community groups, NYPD, and the local Councilman have all spoken 40
with Local 342 at various times in the last week to inquire if the Union and
your client are talking, and at least make an attempt to resolve the dispute.
We have sadly had to report that you rejected the free services of Federal
Mediation, and are in fact not interested in communication prior to January

Puente, Ermal Qelia, Nagip Resulbegu, Khalid Seddiki, Youssef Semlalo El Idrissi, Fatlum Spahija,
Andrzej Stepien, Alim Tagani, and Mergim Zeqiraj.
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8th. Because various people in the community have expressed concern
about the situation, UFCW made the unconditional offer to return to work
today as a demonstration of good faith. Your client has so far rejected the
offer. It is the Union’s position that the employees are locked out, unless
or until the employer should accept the unconditional offer to return to 5
work.
I close by telling you that since your client has rejected the free services of
a professional labor mediator, Local 342 believes we should at this time
restrict communications with you to one person at Local 342. We do this 10
with the intent of reducing opportunity for unintentional misunderstandings.
President Abondolo requested I provide you with my cell number […] in
the event your client wishes to communicate with the Union prior to
January 8th. You have my email address. Should your client wish to
accept the unconditional offer to return, I would be your contact person. 15
Should any other matter arise, I am your contact person. At this time
Local 342 will of course meet on January 8th if your client is willing to do
so. We will need to find a neutral, acceptable place to meet, so at some
point prior to the 8th of January you can let me know when that can be
discussed. We can use the Federal Mediation offices in Woodbridge New 20
Jersey for free, even if your client will not permit the assistance of a
Federal Mediator. If that is not acceptable then we will have to agree to a
hotel. Thank you for your time.
The next morning at 10:31 a.m., Zimmerman wrote to O’Leary acknowledging receipt of 25
her email, and on Monday, December 22, 2014, at 10:53 a.m. sent O’Leary the
following response:
I write in response to your e-mail Friday evening and apologize for not
getting back to you sooner.30
The e-mails I received on Friday from Janel D’Ammassa (on Rich’s behalf)
did not propose an unconditional offer to return to work of the striking
employees. Rather, Rich’s offer was conditioned on Sparks’ agreement to
“meet for a bargaining session some time between Christmas and New 35
Year’s Eve.” Nonetheless, I understand from your e-mail that the union
has since revised that position and now proposes an unconditional return
of the striking employees.
Due to serious misconduct and unprotected activity by the union, its 40
representatives and the striking employees during the two separate strikes
at Sparks between December 5 and December 19, including without
limitation, violence, threats and intimidation towards patrons and
employees, destruction of property and trespass, be advised that Sparks
must reject the union’s offer to return the striking employees to work at this 45
time. After much consideration, Sparks has determined this option best
protects the safety and security of its patrons, employees and delivery
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people from the conduct described above, and reserves all legal rights in
connection with the union’s and Sparks’ employees’ conduct.
Sparks’ decision has no bearing on its desire to continue to bargain in
good faith with the union for an initial contract, and we look forward to 5
meeting in person on January 8. Alternatively, Sparks would be able to
reschedule our next bargaining session to January 7, if the union would be
willing to push our normal start time back a bit to 11:30 a.m. Please let
me know if that date/time works for the union. Woodbridge, New Jersey is
not a convenient location for us to meet. If the union is unwilling to use 10
our offices (as has been our custom to alternate between our place and
yours), we can arrange for a “neutral” site that is more accessible to both
parties. In the interim, I fully expect to provide you with Sparks’ written
counterproposals to the union’s December 10 bargaining proposals early
this week and welcome any written response the union sees fit to make in 15
advance of our in-person bargaining session.
O’Leary responded at 11:14 a.m.:
UFCW Local 342 disagrees with your characterization of events in the 20
second and third paragraphs below. I restate: UFCW Local 342
continues to make an unconditional offer to return to work, and that our
position is that Sparks employees are locked out. I restate: UFCW Local
342 urges your client to reconsider its position regarding mediation
services. I will need to make sure January 7th is good before I confirm, but 25
will get back to you without unreasonable delay. Thank you for your
response, and I will pass it on.
[G.C. Exh. 9.]
30
The parties also discussed the return of the striking employees at the next
negotiating session, on January 8, 2015. Louis LoIacono, the union’s spokesperson at
this session, testified that much of the session consisted of the Union’s requesting
information necessary for it to formulate bargaining proposals (Tr. 176–178). LoIacono
testified that after bargaining concluded he had asked Marc Zimmerman to speak with 35
him. Zimmerman approached with Sparks attorney, Regina Faul, and LoIacono asked
Zimmerman if he was going to respond to the Union’s unconditional offer to return to
work, and return the striking employees to their jobs. Zimmerman responded that he
was protecting Sparks’ property at the time and could not do so, and suggested that
LoIacono “put it in writing.” LoIacono asked Zimmerman whether he had any “proof or 40
evidence of anything,” and Zimmerman again told him to put an information request in
writing. [Tr. 176–177; see also Tr. 36–37, 106–107, 126–127.] LoIacono and the shop
stewards informed the striking employees of the events of this negotiating session (Tr.
38–39, 107–108, 177–178).
45
Subsequently on January 9, 2015, Jhana Branker, Abondolo’s executive
assistant, sent an email on Abondolo’s behalf to Zimmerman, requesting information on
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a number of different topics (Tr. 179; G.C. Exh. 3). The email contained the following
request for information:
7. Copy of any evidence and/or videos that the employer has pertaining
as evidence to support the employer’s representative’s response to the 5
Union’s unconditional return to work. We were told in writing by the
employer representative that the employees could not return to work due
to the fact that the representative was protecting his client’s property due
to incidents that took place at Sparks which had nothing to do with the
employees or the strike or the lockout.10
G.C. Exh. 3, p. 22. On February 5, 2015, Zimmerman responded to this request for
information as follows:
Response and Objections: Sparks objects to Request 7 as it facially 15
seeks irrelevant information “which had nothing to do with the employees
or the strike or the lockout.” Subject to the foregoing objection and the
General Objections above, Sparks responds that all terms and conditions
of employment for bargaining unit employees are subjects of bargaining
presently being negotiated with the union.20
G.C. Exh. 3, p. 19. LoIacono testified that the Union never received any information
from Sparks in response to this request (Tr. 229–230).
LoIacono testified that during the negotiating sessions he attended after the 25
strike began—on January 8 and 20, and February 25, 2015—Sparks never stated that
it had prepared a list or an order for the recall of the striking employees, or that it would
return the striking employees to work at all (Tr. 181–182). On August 25, 2015,
LoIacono received a copy of a letter from Steven Cetta to striking employee Adnan
Nuredini (Tr. 182–183; G.C. Exh. 4). This letter stated that “As a result of the departure 30
of a permanent replacement employee,”3 Sparks was offering Nuredini “full
reinstatement to a position as a waiter, effective immediately, consistent with your
preferential rehire rights as an economic striker under the National Labor Relations Act”
(G.C. Exh. 4). LoIacono wrote to Cetta that same day, requesting a copy of Sparks’
preferential rehire list and information regarding its preparation, and a list of the 35
permanent replacement employees (Tr. 183; G.C. Exh. 5). LoIacono also stated,
“Notwithstanding the above demand, Local 342 considers all the employees who are
subjects of the pending NLRB case4 to have been illegally discharged and to be entitled
to reinstatement with full back pay” (G.C. Exh. 5). On September 11, 2015, Faul
responded to LoIacono’s information request, and attached a “Preferential Rehire List” 40
and a list of permanent replacements (G.C. Exh. 6). Faul sent LoIacono an amended
list of permanent replacements on October 5, 2015 (G.C. Exh. 7). LoIacono testified

3 The evidence establishes that Sparks hired and reassigned employees to replace the economic strikers.
Because so much of the evidence regarding the replacement employees is contested in various ways, it
will be discussed infra.
4 The charges in the instant case had already been filed.
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that prior to September 11, 2015, he had never seen or been told of the preferential
rehire list by Sparks (Tr. 186).
B. Discussion and Analysis
5
1. Failure to Reinstate the Striking Employees After Their
Unconditional Offer to Return to Work
The complaint alleges that since on or about December 19, 2014, Sparks has
failed and refused to reinstate any of the striking employees, despite their having made 10
an unconditional offer to return to their former or substantially equivalent positions of
employment on that date, in violation of Sections 8(a)(1) and (3) of the Act. Complaint ¶
7(a-b). It is well-settled that economic strikers are entitled to immediate reinstatement
to their former positions after making an unconditional offer to return to work, absent a
“legitimate and substantial” business justification. Laidlaw Corp., 171 NLRB 1366 15
(1968), enfd. 414 F.2d 99 (7th Cir. 1969); Jones Plastic & Engineering Co., 351 NLRB
61, 64 (2007); Supervalu, Inc., 347 NLRB 404, 405 (2006). The hiring of permanent
replacement employees in order for the employer to continue its business operations
prior to an unconditional offer to return to work constitutes a legitimate and substantial
business justification. Jones Plastic & Engineering Co., 351 NLRB at 64; Supervalu, 20
Inc., 347 NLRB at 405. The burden of proving the existence of a legitimate and
substantial business justification for failing to reinstate economic strikers lies with the
employer. Supervalu, Inc., 347 NLRB at 405, citing NLRB v. Fleetwood Trailer Co., 389
U.S. 375, 379 (1967); Peerless Pump Co., 345 NLRB 371, 375 (2005). In order to
satisfy this burden, the employer must provide “specific” proof that it reached a “mutual 25
understanding” with the replacements that they were permanent employees prior to the
unconditional offer to return to work. Jones Plastic & Engineering Co., 351 NLRB at 64;
Consolidated Delivery & Logistics, 337 NLRB 524, 526 (2002), enfd. 63 Fed Appx. 520
(D.C. Cir. 2003); Towne Ford, 327 NLRB 193, 204 (1998).
30
In addition, it is well settled that in the event that no vacancy in the striking
employees’ classifications exists, the employer is required to place them “on a
nondiscriminatory recall list until a vacancy occur[s].” Peerless Pump Co., 345 NLRB at
375. Subsequently, reinstatement is contingent upon the occurrence of a “genuine job
vacancy” or a “Laidlaw vacancy,” which is engendered when the employer expands its 35
workforce, discharges an employee, or when an employee quits or leaves the
employer.5 Pirelli Cable Corp., 331 NLRB 1538, 1540 (2000), quoting NLRB v. Delta-
Macon Brick & Tile Co., 943 F.2d 567, 572 (5th Cir. 1991). General Counsel bears the
burden of establishing that a Laidlaw vacancy exists.6 Pirelli Cable Corp., 331 NLRB at

5 Temporary transfers of employees, by contrast, do not create a Laidlaw vacancy. Pirelli Cable Corp.,
331 NLRB at 1540.
6 General Counsel contends that under Kurz-Kasch, Inc., 301 NLRB 946, 949 (1991), a decline in the
employer’s workforce below prestrike levels “creates the presumption that vacancies existed,” which can
be rebutted by proof on the employer’s part of “substantial and legitimate business reasons” for the
existing number of employees. However, that analysis was part of the decision of the Sixth Circuit
remanding the case. Kurz-Kasch, Inc., 301 NLRB at 946, 948–949; Kurz-Kasch, Inc. v. NLRB, 865 F.2d
757 (6th Cir. 1989). Thus, while the Sixth Circuit’s burden-shifting analysis constituted the law of that
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1540. When such a vacancy occurs, the striking employees are entitled to full
reinstatement, unless they have “acquired regular and substantially equivalent
employment” or the employer proves that there were legitimate and substantial
business reasons for failing to offer the striking employees reinstatement at the time.
Peerleess Pump Co., 345 NLRB at 375, quoting Laidlaw Corp., 171 NLRB at 1369–5
1370. Here, the Complaint alleges that since December 19, 2014, Sparks has denied
the striking employees their right to be placed on a preferential hiring list, and General
Counsel asserts that Sparks has failed to reinstate the striking employees to vacant
positions as they have occurred. Complaint ¶ 7(c).
10
Sparks argues that it had permanently replaced the striking employees prior to
their December 19, 2014 unconditional offer to return to work. Sparks further contends
that a downturn in its business overall obviated the need for the level of waitstaff that
had been employed prior to the December 10, 2014 strike. Additionally, Sparks claims
that it had been “overstaffed” in the past due to the striking employees’ lack of reliability, 15
which required a larger group of employees to cover during unanticipated absences.
Sparks asserts that it therefore had fewer available waitstaff and bartender positions
after the strike, and thus a legitimate business justification for refusing to reinstate the
striking employees.
20
Sparks and General Counsel base their contentions regarding the pre-strike
employee complement and existing Laidlaw vacancies after the December 19, 2014
unconditional offer on different types of records created by Sparks in the ordinary
course of its operations, and dispute the documents’ probative value accordingly.
General Counsel argues that Weekly Tip records—spreadsheets recording the weekly 25
tips of all employees—most accurately reflect Sparks’ complement of waistaff and
bartenders at any given point in time (G.C. Post-Hearing Brief at p. 23). Sparks asserts
that Daily Tip records—handwritten notes of tip calculations made on a daily basis—
more accurately depict the staffing needs of the restaurant, in that they record how
many employees worked each day (R.S. Post-Hearing Brief at p. 37). I find that the 30
Weekly Tip records more accurately reflect the overall number of Sparks’ waitstaff and
bartender employees for any particular period. The Daily Tip records only indicate the
employees working any particular day and shift, and thus do not establish the full
complement of Sparks employees.7 Because every Sparks employee does not work
every single shift, the Daily Tip records do not encompass the entire workforce. The35
Weekly Tip records, by contrast, list every waiter and bartender employed by Sparks,
regardless of the individual days they worked during the week in question.

particular case, it has not been subsequently applied with any degree of uniformity. I note that the Sixth
Circuit’s analysis in Kurz-Kasch, Inc. was cited at length by the ALJ in Laidlaw Waste Systems, but the
Board did not discuss it in upholding her decision. See Laidlaw Waste Systems, 313 NLRB 680, 680–682
fns. 3, 7, and at 694 (1994).
7 The case of Sparks waiter Joanna is illustrative. Edelstein testified at the hearing that Joanna was out
of work on an extended medical leave, and her name was therefore redacted from the Daily Tip record
(Tr. 530-531; R.S. Exh. 8). However, during her testimony Edelstein also stated that Joanna was still an
employee of Sparks, regardless of her having been removed from the Daily Tip record, and her name
appears on the Weekly Tip record (Tr. 536-539; G.C. Exh. 13(b)). This evidence indicates that the Daily
Tip record does not contain a complete record of Sparks’ waiters and bartenders during the pertinent
periods.
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In addition, the Daily Tip sheets produced by Respondent and submitted into
evidence were not complete, and were not provided for critical time periods. For
example, the one week of Daily Tip sheets in September, November, and December
2014 Sparks submitted for the purposes of comparison with Weekly Tip records5
submitted by General Counsel were actually Daily Tip sheets for September,
November, and December 2013. (R.S. Exh. 25.) The December 1, 2014, through
December 6, 2014 Daily Tip sheets were included elsewhere in the record (R.S. Exh.
8), but not the Daily Tip sheets for the comparator weeks in September and November.
Therefore, it is not apparent that Sparks’ records submitted for these weeks provide a 10
comprehensive and reliable reflection of the waitstaff and bartenders employed during
the stated periods. As a result, the Weekly Tip records provide a more comprehensive
account of Sparks’ waitstaff and bartender employees overall.
Furthermore, the evidence does not support Sparks’ contention that it kept an 15
inflated roster of employees prior to the strike, which was no longer necessary because
the replacement employees were more reliable. Sparks argues in its Post-Hearing Brief
that the employees who participated in the strike called out of work and took time off “at
their discretion,” forcing Respondent to rely on “backup” workers which were no longer
necessary after the replacement employees began (R.S. Post-Hearing Brief at p. 38–20
39). Sparks therefore contends that the total number of waiters and bartenders
employed prior to the strike was artificially inflated, and is not probative with respect to
the ultimate number of Laidlaw vacancies which existed subsequently. However, the
record establishes that, as Sparks states in its Post-Hearing Brief, “Sparks daily staffing
needs fluctuate throughout the year” (R.S. Post-Hearing Brief at 40). The record 25
evidence in the form of credible employee testimony further establishes that Sparks’
practice in the past was to allow employees to take extended vacations or other forms
of time off during periods which were not as busy, as opposed to laying them off (Tr.
41–42, 117–118, 160–161). For example, waiter Valjon Hajdini credibly testified that he
began his employment with Sparks in September 2008, and worked about 42 hours per 30
week—six dinners and one lunch—until the December 10, 2014 strike (Tr. 26). During
this time he observed that while more employees were hired immediately before the
busy season, during the slower season not a single employee was terminated (Tr. 41–
42). Instead, the roster of employees simply rotated days of work, and employees took
longer vacations or time off (Tr. 41–42). Hajdini testified that more employees were 35
hired every fall only because some employees left Sparks for better jobs, became ill, or
were fired, creating a shortage of staff prior to the busier months (Tr. 42). Waiter
Kristopher Fuller similarly testified that since the inception of his employment with
Sparks in 2007 employees were kept on from the busy period into the slower period,
and the only turnover that occurred happened naturally as employees left for better jobs 40
or were fired (Tr. 120–122). Bartender Elvi Hoxhaj also testified that during the 12 years
he was employed by Sparks, employees were never laid off during the slower months
(Tr. 152). Based on his observations, Hoxhaj testified that the available work was
distributed evenly, so that each waitstaff employee worked 4 or 5 days per week rather
than 6, or the employees each took longer vacations. Hoxhaj stated that he only 45
witnessed employees leave their employment with Sparks when they were discharged
or “because of personal reasons” (Tr. 160–161). Sparks offered no explanation for its
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departure from this practice after the inception of the strike. Thus, I am not persuaded
by its contention that its prestrike employee complement was artificially enlarged, and
therefore not useful to determine the existence of Laidlaw vacancies.
Sparks’ Weekly Tip records establish that the restaurant employed a total of 46 5
waiters and bartenders immediately prior to December 10, 2014 (G.C. Exh. 13(b)).8
The payroll for the period immediately after the strike began (December 15 through 21,
2014) lists a total of 37 waiters and bartenders (G.C. Exh. 16).9 Therefore, the record
establishes that from the inception of the strike on December 10, 2014, and through the
time of the striking employees’ unconditional offer to return to work on December 19, 10
2014, there were at least 9 vacant waiter/bartender positions.
Respondent contends that it did not return the striking employees to work after
their unconditional offer to return for substantial and legitimate business reasons. First,
Sparks asserts that it hired permanent replacements for the striking employees prior to 15
their unconditional offer to return to work on December 19. Sparks further argues that a
downturn in its overall business obviated the need for the amount of waiters and
bartenders it had previously employed, thereby justifying its refusal to reinstate the
striking employees. As discussed above, the employer bears the burden of proving the
existence of a legitimate and substantial business justification for failing to reinstate 20
economic strikers following an unconditional offer to return to work. Supervalu, Inc.,
347 NLRB at 405; Peerless Pump Co., 345 NLRB at 375. For the following reasons, I
find that Sparks has failed to satisfy this standard.
In order to establish that economic strikers were not returned to work after an 25
unconditional offer because their positions had already been filled by permanent
replacements, the employer must present “specific” proof of having reached a “mutual
understanding” with the replacements to that effect. Jones Plastic & Engineering Co.,
351 NLRB at 64; Consolidated Delivery & Logistics, 337 NLRB at 526. Thus, the
employer must present evidence that the circumstances of the replacement employees’ 30
hiring show that the replacements “were regarded by themselves and [the employer] as
having received their jobs on a permanent basis.” Consolidated Delivery & Logistics,
337 NLRB at 526, quoting Target Rock Corp., 324 NLRB 373 (1997), enfd. 173 F.3d
921 (D.C. Cir. 1998). Evidence of the employer’s intent to hire the replacements on a
permanent basis is insufficient. Consolidated Delivery & Logistics, 337 NLRB at 526. 35
Furthermore, evidence of an offer of work on a permanent basis is inadequate absent a
showing that the replacement employee accepted the offer prior to the striking
employees’ unconditional offer to return to work. Choctaw Maid Farms, Inc., 308 NLRB
521, 527–528 (1992), citing Solar Turbines, 302 NLRB 14 (1991), affd. sub nom.
Machinists v. NLRB, 8 F.3d 27 (9th Cir. 1993) (employer’s statement to replacements 40

8 The payroll for this period contains only 45 waiters and bartenders, because Joanna did not work and
therefore was not paid (G.C. Exh. 13(d)).
9 There were no Weekly Tip records produced for this or any other week until the week of January 19
through 24, 2015. Information was therefore culled from both the Weekly Tip records (which constitute the
most accurate reflection of the roster of employees) and the payroll records (reflecting the wages actually
paid for a given week) to establish that there were 46 employees immediately prior to the strike and 37
immediately thereafter.
JD(NY)-43-16

12
that they “had a job” insufficient to establish hiring on a permanent basis without
evidence that replacements accepted offer).
The evidence establishes that Sparks obtained replacement employees via three
different methods. Six kitchen employees were reassigned to waitstaff positions,10 five5
purportedly “seasonal” employees hired before the strike began became replacements,
and 23 replacement employees were hired directly after the strike began. The available
evidence establishes that Sparks used similar documents when it hired or reassigned
these employees to permanent replacement positions, and Sparks contends that these
employees thereby constituted permanent replacements for the economic strikers prior 10
to the unconditional offer to return to work on December 19, 2014. In particular, the
replacement employees were provided with a letter stating as follows:
It is a pleasure to extend to you an offer of employment in a permanent
position as Waiter [Bartender], for Michael Cetta, Inc. dba Sparks Steak 15
House.
Your start date will be December 15, 2014. Your compensation will be
paid based on a weekly basis (52 pay period per year) of $8.00/hour (less
tip credit) and applicable tips.20
Eligibility for medical insurance benefits will begin following ninety (90)
days of continued employment. The Company’s employee benefits
programs are described under separate cover, and the terms of the official
plan documents govern all issues of eligibility and benefits, in the event of 25
a conflict between the contents of this letter and the terms of the plan
documents.
Based on the Company’s time-off policies, employees become eligible for
paid time off as explained fully in our employee handbook. If the Company 30
develops other benefit programs for which you may be eligible, the
Company will advise you accordingly. The Company reserves the right to
modify, supplement, and discontinue all employee benefits programs in its
sole discretion.
35
In accordance with the Immigration Reform and Control Act, we are
required to verify that you are legally entitled to work in the United States.
You will be required to complete an I-9 form on your first day of
employment, and present original documents establishing identity and
employment eligibility.40

10 These employees had been employed by Sparks in kitchen positions for some time prior to being
reassigned to waitstaff work. See G.C. Exh. 6 and 7; Tr. 264–265. Because the evidence establishes
that Sparks hired new employees to replace the kitchen workers who were transferred into waitstaff
positions, the waitstaff positions into which they transferred constituted Laidlaw vacancies. G.C. Exh. 14
and 23(B). See Pirelli Cable Corp., 331 NLRB at 1540; K-D Lamp Co., 229 NLRB 648, 650 (1977).
JD(NY)-43-16

13
This offer is not a contract for employment; your employment is “at-will”
and may be terminated at any time for any reason by you or Michael
Cetta, Inc.
Congratulations on your new position! We are very excited to have you 5
join our organization, and we are sure that you will be a valuable addition
to Sparks Steak House. Please do not hesitate to call me at 212.687.4806
should you have any questions.
Sincerely,10
Shailesh Desai
R.S. Exh. 7(a-hh). These letters were signed by both Desai and all but one were signed
by the individual employees. All of the letters contained typewritten dates across the
top preceding the text. Two of the letters were dated December 11, 2014, 26 were 15
dated December 15, and six were dated December 19.11 The letters were signed by the
replacement employees, but the signatures were not dated.
Again, it is Sparks’ burden to establish that it reached a mutual understanding
with these employees regarding their status as permanent replacements for the 20
economic strikers prior to 4 p.m. on December 19, 2014, when the unconditional offer to
return to work was made. I find that the evidence adduced by Sparks to attempt to
elucidate the understanding it reached with the replacement employees, and the time at
which the agreement regarding their employment status was arrived at, is insufficient to
do so. Sparks did not call any of the replacement employees to testify regarding the 25
process by which they were hired or reassigned, and their understanding regarding the
nature of their employment thereafter. Edelstein testified that she was responsible for
finding, interviewing, and “going through the process of hiring waiters” on December 11,
2014 (Tr. 419).12 She testified that she “contacted staffing agencies” and sought
referrals from Sparks’ current staff, and that she “did a series of many, many, many 30
interviews in the course of the day,” ultimately offering positions to prospective
employees (Tr. 419). She was not asked for and did not provide any additional
information about her interactions with candidates during the interviews. According to
Edelstein, this process began on December 11, 2014, and continued “over the course of
a few days,” but she could not recall with any more specificity how long the process 35
took, or how many replacement employees were hired (Tr. 419–420).

11 The alleged “seasonal employees” were given two offer letters. The first, distributed in October and
November 2014 depending upon the employee, begins, “It is a pleasure to extend you an offer of
seasonal employment as a Waiter for Michael Cetta, Inc. dba Sparks Steak House. Your start date will be
DATE. Your compensation will be paid on a weekly basis (52 pay periods a year) of $8.00/hour (less tip
credit) and applicable tips.” [R.S. Exh. 6(a-d)] There is no end date or time period for employment
specified in the letter. Furthermore, the evidence establishes that prior to the December 10, 2014 strike
Sparks had never hired employees on a seasonal basis whose employment terminated after the busiest
months. Instead, the evidence establishes that employees hired from October to December were always
maintained on the roster and allowed to take vacation or unpaid time off as business slowed.
12 Edelstein testified that she was not at Sparks on December 10, 2014, when the strike began (Tr. 418–
419).
JD(NY)-43-16

14
Edelstein was no more detailed with respect to the letters offering permanent
replacement positions, and their distribution, signature, and return. Edelstein testified
that she and Desai prepared the letters offering permanent employment13 (Tr. 421; R.S.
Exh. 7(a-hh)). She further testified that she handed the letters to replacement employee
candidates (Tr. 423–424). However, she did not witness their signatures on the letters, 5
and did not know whether the replacement employees signed the letters on the date
that, presumably, either she or Desai placed at the top of the text (Tr. 424, 534–535;
R.S. Exh. 7(a-hh)). Nor could she testify with any specificity regarding when the
individual letters were returned with the replacement employees’ signatures. Her
testimony regarding the receipt of the signed offer letters comprising Respondent’s 10
Exhibit 7 was nebulous and significantly equivocal:
Q: And do you recall the last day that you received any of these
documents returned to you?
15
A: I know that the last person – I don’t it. It was – you know, whenever it
was issued, it was within a day or so that we got them back. So whenever
the last one was issued is when I got it back. I don’t know the exact last
day. I think it was – let me just take – can I just look at something?
20
Q: Sure.
A: Thanks.
(The witness examined the document.)25
THE WITNESS: It was – I believe it was the 19th of December. The last
day that we got this one – these back.
Tr. 426.30
I simply do not find Edelstein’s testimony regarding the hiring process and the
offer letters probative. She provided virtually no information regarding her interactions
with the replacement employee candidates, which would elucidate whether and when a
mutual understanding regarding their employment status arose. Although Edelstein’s35
testimony ostensibly encompassed all of the offer letters—including those provided to
the reassigned kitchen workers and the “seasonal” employees—her narrative testimony
appeared to pertain solely to the newly hired replacement employees, and not to either
of the former groups.14 Her testimony regarding when Sparks received the offer letters
signed by the replacement employees was vague and equivocal. In particular, I note 40
that the list of permanent replacement employees provided to LoIacono on September
11, 2015, contains hiring dates for the replacement employees at odds with the dates of
the offer letters (G.C. Exh. 6; R.S. Exhs. 7(a-hh)). And because several of the offer

13 Desai testified on behalf of Sparks, but was not questioned regarding the offer letters or his involvement
in the interview and hiring process.
14 The only evidence regarding the reassignment of the kitchen employees is Steve Cetta’s testimony that
their reassignment to waitstaff positions took place after December 10, 2014 (Tr. 264–265).
JD(NY)-43-16

15
letters are dated December 19, 2014, if Sparks received them signed by the employee
“within a day or so,” it is doubtful that all of the offer letters were received with employee
signatures as of that date, as Edelstein claims (R.S. Exhs. 7(l, m, x, aa, bb, hh)).
Furthermore, the available payroll records do not illuminate the situation. For 5
example, four of the six ostensibly reassigned kitchen employees and all 23 of the
newly hired replacement employees appear on the payroll as waitstaff for the period
December 15 through 21, 2014. However, the payroll evidence does not establish the
date that the newly hired employees began working, or that the kitchen employees
began working as waitstaff, with any further specificity (G.C. Exh. 16; Tr. 300–301). 10
Furthermore, one of the former kitchen employees first appears as waitstaff on the
payroll for the period December 22 through 28, 2014, and another does not appear as
waitstaff on the payroll until the period January 5 through 11, 2015, well after the
unconditional offer to return to work (G.C. Exh. 18 and 20). In addition, Daily Tip sheets
and Weekly Tip records which would have established the precise dates that the newly 15
hired employees began working and that former kitchen employees worked as waitstaff
by virtue of their receipt of tips were not produced by Respondent. As a result, the
available documentary evidence does not establish that the former kitchen workers and
the 23 newly hired employees constituted permanent replacements for the striking
waitstaff and bar tenders prior to the unconditional offer to return to work on December 20
19, 2014.
General Counsel asserts that an adverse inference should be drawn based upon
Sparks’ failure to produce documents—in particular Weekly and Daily Tip records–
which would have shown the exact date that the kitchen workers and newly hired25
replacements began working as waitstaff and bartenders during the period from
December 15 through 19, 2014. General Counsel also asks that I draw an adverse
inference based on Sparks’ failure to call as a witness manager Ricardo Cordero, who
signed the letters offering “seasonal” employment and hired Jonathan Sturms in
February 2015. For the following reasons, I find that such adverse inferences are 30
appropriate.
Succinctly stated, the adverse inference rule consists of the principle that “when
a party has relevant evidence within his control which he fails to produce, that failure
gives rise to an inference that the evidence is unfavorable to him.” Auto Workers v. 35
NLRB, 459 F.2d 1329, 1335–1336 (D.C. Cir. 1972) (describing the adverse inference
rule as “more a product of common sense than of the common law”); see also Metro-
West Ambulance Service, Inc., 360 NLRB No. 124 at p. 2-3 and at fn. 13 (2014); SKC
Electric, 350 NLRB 857, 872 (2007). An adverse inference may be drawn based upon a
party’s failure to call a witness within its control having particular knowledge of the facts 40
pertinent to an aspect of the case. See Chipotle Services, LLC, 363 NLRB No. 37, p. 1,
fn. 1, p. 13 (2015) (adverse inference is particularly warranted where uncalled witness is
an agent of the party in question); SKC Electric, Inc., 350 NLRB at 872–873. An
adverse inference may also be drawn based upon a party’s failure to introduce into
evidence documents containing information directly bearing on a material issue. See 45
Metro-West Ambulance Service, Inc., 360 NLRB No. 124 at p. 2-3 (failure to produce
subpoenaed accident reports pertinent to the “treatment of similarly situated employees”
JD(NY)-43-16

16
warrants adverse inference that records would have established that such employees
were treated more leniently than discriminatee); Massey Energy Co., 358 NLRB 1643,
1692, fn. 63 (2012); see also Zapex Corp., 235 NLRB 1237, 1239 (1978).
The adverse inference rule does not require that the party seeking the adverse 5
inference have sought the witness testimony or documents via subpoena. Auto
Workers v. NLRB, 459 F.2d at 1338 (applicability of the adverse inference rule “in no
way depends on the existence of a subpoena compelling production of the evidence in
question”). However, where a subpoena applicable to the particular witness or
documentary evidence in question has been served, the rationale for drawing an 10
adverse inference is strengthened. Auto Workers v. NLRB, 459 F.2d at 1338 (“the
willingness of a party to defy a subpoena in order to suppress the evidence strengthens
the force of the preexisting inference”); People’s Transportation Service, Inc., 276 NLRB
169, 223 (1985). An adverse inference has been deployed as a discovery sanction in
such cases. See, e.g., McAllister Towing & Transportation Co., 341 NLRB 394, 396 15
(2004), enfd. 156 FedAppx. 386 (2d Cir. 2005).
In the instant case, Sparks failed to produce or enter into evidence either Weekly
or Daily Tip records for one of the most significant weeks in question, December 15
through 21, 2014. Such records, by establishing any shifts worked by alleged 20
replacement employees, would tend to substantiate Respondent’s claim that the striking
employees were permanently replaced prior to their unconditional offer to return on
December 19 at 4 p.m. Not only were such records subpoenaed by General Counsel,
but I denied Sparks’ petition to revoke and ordered the production of these documents
on October 1, 2015. Although Sparks subsequently produced copious documents 25
involving employee payroll and tips for 5 years dating back to January 2010, it failed to
introduce evidence with regard to this critical week. Furthermore, there was no
indication from Sparks’ witnesses that such documents had not been created or
maintained in the ordinary course of its business. Edelstein testified that Weekly Lunch
and Dinner Tip records (G.C. Exh. 13(b)) are kept for every week the restaurant is open 30
(Tr. 294, 321). She also testified that it would be impossible to determine, from the
payroll records alone, what day of any given week an employee worked (Tr. 300–303).
Cetta stated in his testimony that schedules such as the dinner schedule in evidence as
GeneralCounsel Exhibit 13(a) are kept in the ordinary course of business for every
week the restaurant is open (Tr. 266). Sparks entered into a similar stipulation with 35
respect to Weekly Tip records (G.C. Exh. 13(b)), and employee hours summaries (G.C.
Exh. 13(c)) (Tr. 284). Because there was no documentary or testimonial evidence to
elucidate the specific date that replacement employees signed and returned their offer
letters, or the date on which a mutual understanding that employees were permanent
replacements was reached, evidence establishing the specific dates of employment 40
during the period December 15 through 21 was critical. Yet Sparks failed to produce
records having a direct probative bearing on this issue, records which were admittedly
made and kept in the ordinary course of its business, despite my order denying the
Petition to Revoke and requiring that they do so. Such a course of events militates in
favor of drawing an adverse inference to the effect that if the records in question had 45
been produced, they would not have established that reassigned kitchen employees
and newly hired replacements employees were performing waitstaff and bartending
JD(NY)-43-16

17
work prior to the unconditional offer to return to work on December 19. See Zapex
Corp., 235 NLRB at 1239 (failure to produce personnel files of alleged permanent
replacement employees warrants inference that records would have tended to show
that replacements were not in fact permanent).
5
I further find it appropriate to draw an adverse inference based on Sparks’ failure
to call its Manager Ricardo Cordero as a witness.15 As discussed above, Cordero was
both the signatory to the seasonal offer letters and the manager who hired Jonathan
Sturms in February 2015. Edelstein testified that she created the “seasonal
employment offer” template used by Cordero and signed by him16 (Tr. 411–413; R.S.10
Exh. 6(a)-(d)). As a result, Cordero would most likely have had information regarding
the understanding between the “seasonal” hires and Sparks prior to their allegedly
obtaining a permanent replacement position. Edelstein testified that she only
interviewed one of the five alleged “seasonal employees,” Luis Calle, whose offer letter
was never signed and returned (Tr. 416–418). Edelstein further testified that she did not 15
recall giving the seasonal employment letters to employees Andrew Globus, Mostafa
Belabez, Luis Vasconez, or Anass Kesley (Tr. 463; R.S. Exh. 6(a)-(d)). As Cordero’s
signature was on the offer letters for these four “seasonal” employees, his testimony
would have illuminated the status of their employment. Testimony could have also been
elicited regarding his general experience in hiring for Sparks as related to positions of 20
“seasonal employment.” For example, some of the “seasonal” offer letters contain
dated signatures, indicating that this process differed from the hiring and reassignment
process for the alleged permanent replacement employees in December (R.S. Exh. 6(a,
b, d)). Thus I find it appropriate to infer that had Cordero testified, his testimony would
not have supported a finding that the “seasonal” employees’ understanding regarding 25
their status was consistent with that of a legitimate permanent replacement.
I also find it appropriate to draw an adverse inference based upon Sparks’ failure
to call Cordero given Cordero’s hiring of employee Jonathan Sturms in February 2015.
Although Edelstein testified that Cordero hired Sturms without the proper authorization, 30
her testimony was inconsistent on this point (Tr. 427). Edelstein initially contended that
Sparks changed the process for hiring after the strike, and that she explained the new
procedures, which required Steve Cetta’s specific approval for hiring staff, at a
management meeting (Tr. 473–474, 476). According to Edelstein, the managers
responded, “we need people, what do we do? What do we do?” She testified that she 35
responded by attempting to “alleviate their anxiety and stress about what was going on,”
and to “help them understand that we understand that we are short waiters or we need
people or whatever it is, we understand” (Tr. 478). However, Edelstein and Cetta then
purportedly discharged Sturms after discovering that Cordero had hired him without
consulting Cetta, in violation of this policy, because, “No one should have been hired” 40
and “We didn’t need anybody” (Tr. 502–505). When questioned further regarding why

15 Cetta testified that Ricardo Cordero was still employed by Sparks as a manager at the time of the
hearing (Tr. 244).
16 Desai testified that he signed offer letters in fall 2014 in anticipation of the busy season at Sparks, but
his signature does not appear on the “seasonal” offer letters (Tr. 649–650). This leads me to conclude
that in his testimony he was referring to offer letters he gave to the former kitchen workers, the other
newly hired replacements, or to the “seasonal” employees in mid-December 2014.
JD(NY)-43-16

18
Strums was hired if Sparks did not need additional help, Edelstein claimed that Cordero
apologized, saying he had made a mistake (Tr. 555–556). Thus, Cordero’s testimony
regarding how the hiring of Sturms came about—whether Sparks was actually “short
waiters” or whether Sturms’ hiring was a “mistake” because Respondent “didn’t need
anybody”—would have been illuminating. I thus find that Sparks’ failure to call Cordero 5
to testify regarding the hiring of Sturms warrants an adverse inference that Cordero’s
testimony would not have supported Sparks’ contentions regarding these issues.
The record evidence establishes additional Laidlaw vacancies, as identified by
General Counsel. For example, General Counsel contends that the replacement 10
employees Andreas Zenteno, Freddy Guzhnay, Carlos “Alex” Ruiz, and Maximillian
Vainshtub left Sparks sometime between December 22, 2014, and January 18, 2015,
creating Laidlaw vacancies that Sparks did not recall striking employees to fill (G.C. Br.
34–35). Edelstein confirmed this in her testimony (Tr. 328–335). General Counsel
further contends that a striking employee should have been recalled to work when 15
waiter Helene DeLillo left Sparks’ employment on or before January 4, 2015. Edelstein
confirmed in her testimony that DeLillo did not appear on or after the January 5–11,
2015 payroll (G.C. Exh. 20; Tr. 325, 327, 331). Sparks adduced no evidence as to why
DeLillo’s position or the four others identified above were not offered to striking
employees, other than general arguments regarding overstaffing and seasonality which 20
I am rejecting herein. I therefore find that departure of Zenteno, Guzhnay, Ruiz,
Vainshtub, and DeLillo created Laidlaw vacancies, to which Sparks was obligated to
respond by offering these positions to striking employees. I further find that because
there is no evidence that DeLillo was hired as a permanent replacement prior to the
unconditional offer to return to work, her position should have been made available to a 25
striking employee upon the unconditional offer to return to work on December 19, 2014.
Sparks further claims that a downturn in its business necessitated a smaller staff,
so that its failure to recall the striking employees after their unconditional offer to return
to work can be justified on this basis. The evidence adduced at the hearing, however, 30
does not satisfy Sparks’ burden to prove that strained financial circumstances obviated
the need for what had previously been a full complement of employees, either at the
time of the unconditional return to work or thereafter.
First of all, it is undisputed that December is the busiest month of the year at 35
Sparks due to holiday parties and celebrations. Financial records introduced into
evidence establish that, as is typical, December 2014 was the month of that year with
Sparks’ highest sales (Tr. 646–648, G.C. Appendix A, and R.S. Exh. 16). Thus, the
December 10, 2014 strike and December 19, 2014 unconditional offer to return to work
took place during the time that Sparks did its highest volume of business for the year. It 40
is also undisputed that Sparks transferred kitchen workers and hired employees to work
in lieu of the striking employees, both during this time and thereafter. There is no
question that Sparks did so out of necessity. As Edelstein testified, when she met with
management personnel after the strike began and told them that all new hires in the
future must be approved by Cetta, the managers responded, “we need people, what do 45
we do? What do we do?” (Tr. 478). Edelstein testified that her response attempted “to
not only alleviate their anxiety and stress about what was going on, but to help them
JD(NY)-43-16

19
understand that we understand that we are short waiters or we need people” (Tr. 478).
Furthermore, although December is the busiest month of the year for Sparks, the “slow”
season takes place over the summer, and not in January and February (Tr. 41, 115,
645–646; G.C. Appendix A). Thus, while Sparks’ financial records establish that its total
gross profit declined from December 2013/January 2014 to December 2014/January 5
2015, the restaurant was still at the height of its busy season when the strike and
unconditional offer to return to work took place, and had not yet entered its slowest
season when striking employees were not recalled to replace employees whose
employment terminated in early 2015.
10
Furthermore, the evidence establishes, as General Counsel argues, that the
decline in sales which Sparks experienced from December 2014 to January 2015 was
not as drastic as Sparks contends. The documentary evidence establishes that over
the past five years the December 2014 to January 2015 decline is actually the second
smallest decline for that period (G.C. Appendix A; R.S. Exh. 16). And, as discussed 15
above, the evidence establishes that Sparks has never before laid off waitstaff and
bartenders, even during its slow season over the summer. Instead, these employees
remained employed, taking long vacations or leaves of absence and dividing the
available work. The evidence does not support any reason for Sparks’ departure from
this practice, even during periods of larger or more dramatic declines in business from 20
December of one year to January of the next. See Kurz-Kasch, Inc., 301 NLRB 946, n.
3, 951 fn. 6 (evidence did not establish previously-existing practice of temporarily
shifting employees, which Respondent contended obviated the necessity of recalling
striking employees); Austin Powder Co., 141 NLRB 183, 186 (1963), enfd. 350 F.2d 973
(6th Cir. 1965) (Respondent’s claim that economic decline necessitated layoffs was 25
suspect, where it did not discharge employees at a different plant which suffered a
similar decline in business). I further note that there is no evidence that Sparks took
other steps to address purported issues of overstaffing caused by the decline in
business, such as transferring the former kitchen workers back to their previous
positions.17 Therefore Sparks’ attempt to justify its refusal to recall the striking 30
employees to work on this basis is not persuasive.
The cases cited by Sparks in support of its defense that a decline in its business
constituted a substantial business justification for failing to return the striking employees
to work as vacancies arose are inapposite. For example, in Providence Medical Center, 35
243 NLRB 714, 738–739 (1979), the workload in the laboratory where the striking
technologists were employed was reduced due to the simultaneous strike of a separate
bargaining unit of nurses at the Respondent hospital, and Respondent hired only one
short-term laboratory employee during the 2½ months after both strikes concluded.
Similarly, in Bushnell’s Kitchens, Inc., 222 NLRB 110, 117 (1979), the employer hired no40
replacement employees during the strike in question, employees responsible for sales
instead performed production work during the strike resulting in a decline in orders, and
an OSHA inspector ordered the employer to cease using certain production equipment.

17 This is particularly the case given that, as General Counsel argues and calculations based on payroll
records confirm, kitchen workers ultimately “cost” Sparks 4.5 times more in payroll than waitstaff and
bartenders, because Sparks is ineligible for a tip credit with respect to the kitchen workers. See R.S.
Exhs. 15, 17; G.C. Post-Hearing Brief at p. 46, fn. 33.
JD(NY)-43-16

20
In William O. McKay Co., 204 NLRB 388, 389, 393 (1973), Respondent reduced its
overall workforce by almost forty percent (from 100 to 65 employees) during the year
before the strike began. Finally, in Colour IV Corp., 202 NLRB 44, 44–45 (1973), the
Board found that the striking employee not returned to work lacked the qualifications
Respondent required for the poststrike work available. As a result, I find that these 5
cases are not analogous to the circumstances at issue here.
For all of the foregoing reasons, I find that Sparks has failed to establish that an
economic decline constituted a legitimate and substantial business justification for
failing to reinstate the striking employees. 10
Finally, I find that Sparks has offered shifting rationales for its refusal to reinstate
the striking employees after their December 19, 2014 unconditional offer to return to
work that render its various explanations suspect. In December 2014, Sparks was
contending that picket line misconduct constituted its sole reason for failing to reinstate 15
the striking employees. Zimmerman’s December 22, 2014 email declining to reinstate
the striking employees provides only this justification, asserting that they engaged in
“violence, threats,” “intimidation,” “destruction of property and trespass.” Nowhere does
Zimmerman mention that permanent replacement employees had been hired prior to
the striking employees’ unconditional offer, or that an economic downturn of some sort 20
had eliminated the need for the previous complement of waitstaff and bartender
employees. At the January 8, 2015 negotiating session Zimmerman continued to insist
that he could not return the striking employees to work because he was “protecting
Sparks property.” I further note that Sparks did not provide any information in response
to Local 342’s request for information pertaining to the incidents of, according to 25
Zimmerman, “violence, threats and intimidation . . . destruction of property and
trespass” that purportedly engendered Sparks’ decision to refuse to reinstate the
striking employees. The evidence establishes that on January 9, 2015, Local 342
requested “any evidence and/or videos…to support the employer’s representative’s
response to the Union’s unconditional return to work,” namely the assertion that 30
Zimmerman “was protecting his client’s property due to incidents that took place at
Sparks” which the Union contended were not caused by the strike or the striking
employees (G.C. Exh. 3, p. 22). It is well settled that the Board considers such
information to be necessary for a Union’s performance of its duties as bargaining
representative. See, e.g., NTN Bower Corp., 356 NLRB 1072, 1139 (2011); Page Litho, 35
Inc., 311 NLRB 881, 891 (1993). Zimmerman’s response that the requested information
was “irrelevant” based upon the Union’s contention that its activities and those of the
striking employees were not responsible for any alleged incidents is legalistic
circumlocution, as is his assertion that “all terms and conditions for bargaining unit
employees are…presently being negotiated” (G.C. Exh. 3, p. 19). Thus, the evidence 40
establishes that Sparks never provided anything to the Union in order to substantiate its
contention that “violence, threats and intimidation . . . destruction of property and
trespass” justified the its refusal to reinstate the striking employees. Now in its Post-
Hearing Brief, Sparks has abandoned its picket line misconduct argument, and
contends that the permanent replacement of the striking employees and an economic 45
downturn constitute its legitimate business justifications for declining to offer
reinstatement. I find that the shifting explanations asserted by Sparks at the time of the
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21
unconditional offer and January 2015 negotiating sessions, the hearing in this matter,
and its Post-Hearing Brief militate against crediting any one as a legitimate and
substantial business justification for failing to reinstate the striking employees.
For all of the foregoing reasons, I find that since December 19, 2014, Sparks has 5
failed and refused to reinstate the striking employees, despite their having made an
unconditional offer to return to work on that date, in violation of Sections 8(a)(1) and (3)
of the Act. I further find that Sparks violated Sections 8(a)(1) and (3) by failing to
reinstate the striking employees to vacant waitstaff and bartender positions as they
have occurred.1810
2. The Preferential Hiring List
The complaint alleges at Paragraph 7(c) that Sparks violated Sections 8(a)(1)
and (3) of the Act by failing and refusing to place the striking employees on a 15
preferential hiring list. It is well settled that economic strikers making an unconditional
offer to return to work at a time when their positions are filled by permanent
replacements remain employees, and “are entitled to full reinstatement upon the
departure of replacements unless they have in the meantime acquired regular and
substantial equivalent employment.” Laidlaw Corp., 171 NLRB at 1369–1370. To this 20
end, the employer must maintain a “non-discriminatory recall list” such that when
openings become available, “the unreinstated striker could be recalled to his or her
former or substantially equivalent position.” Peerless Pump Co., 345 NLRB at 375. The
burden of offering reinstatement in this context rests with the employer; strikers and the
union are not required to approach the employer regarding available positions. Laidlaw 25
Corp., 171 NLRB at 1369; see also Alaska Pulp Corp., 326 NLRB 522, 528 (1998)
(employer required to “seek out strikers as their prestrike or substantially equivalent
positions become available to offer reinstatement”).
The evidence here fails to establish that Sparks created or maintained a 30
preferential hiring list prior to September 11, 2015, when it provided a seniority list it was
purportedly using as a preferential hiring list to the Union in response to the Union’s
information request (G.C. Exhs. 5–7; Tr. 186). Sparks argues in its Post-Hearing Brief
that it had no obligation to inform the economic strikers or the Union that permanent
replacement employees had been hired, citing Avery Heights, 343 NLRB 1301, 1305–35
1306 (2004), vacated and remanded on other grounds, 448 F.3d 189, 195 (2nd Cir.
2006).19 That case, however, addressed an employer’s refusal to disclose its intention
or plan to hire permanent replacement employees; the employer there informed the
union that it was hiring permanent replacement employees two weeks after the hiring
began. Avery Heights, 343 NLRB at 1306–1307. Here, by contrast, Sparks declined for 40
months to inform the Union regarding its hiring of permanent replacement employees

18 The precise number of Laidlaw vacancies to which economic strikers should have been reinstated is a
matter for compliance. Chicago Tribune Co., 304 NLRB 259, 277–278 (1991); Concrete Pipe & Products
Corp., 305 NLRB 152, 154 fn. 9 (1991).
19 The Second Circuit upheld the Board’s determination that the employer in Avery Heights was not
required to inform the employees or the union prior to hiring permanent replacements, but reversed the
Board’s conclusion that its having done so did not violate the Act.
JD(NY)-43-16

22
and the existence of any preferential hiring list. It pursued this course despite the
Union’s reiteration of its unconditional offer to return to work at the January 8, 2015
negotiating session, the Union’s subsequent request for information regarding Sparks’
rationale for refusing to reinstate the striking employees, and subsequent bargaining
sessions (on February 25 and March 20, 2015,20 for example). Furthermore, the 5
evidence as discussed above establishes that Sparks not only hired replacement
employees, but continued to do so through February 2015 (when it hired Sturms)
without informing the Union or the striking employees. I also note that, if Sparks had
truly eliminated waitstaff and bartender positions for legitimate business reasons such
as a financial decline, the failure to notify the Union “tends to militate against 10
Respondent’s good faith in dealing with the strikers.” Transport Service Co., 302 NLRB
22, 29 (1991). As a result, the evidence establishes that Sparks failed to satisfy its
obligation to create and implement a preferential hiring list with respect to the striking
employees.
15
Sparks further argues that it discharged its duty to create and maintain a
preferential hiring list when it notified the Board Agent by letter of March 5, 2015, that
the economic strikers had been permanently replaced.21 I disagree. First of all, it is
baffling that Sparks would provide this information to the Board Agent during the course
of the investigation without providing it to the Union, with whom it was interacting at 20
least once per month for contract negotiations. Notice provided to a Board Agent during
the investigation of an unfair labor practice charge does not constitute notice to the
Union or the striking employees. Furthermore, in the March 5, 2015 letter itself, Sparks
attempts to turn the evidentiary burdens in this area on their head by complaining that
the Union had not actively sought bargaining regarding returning the striking employees 25
to work. As the above-described caselaw makes clear, the onus for creating the
preferential hiring list and making offers of reinstatement to economic strikers falls on
the employer.
For all of the foregoing reasons, I find that Sparks failed to and refused to place 30
the striking employees on a preferential hiring list in violation of Sections 8(a)(1) and (3)
of the Act.
3. The Alleged Discharge of the Strikers
The complaint further alleges at Paragraph 7(d) that Respondent violated 35
Sections 8(a)(1) and (3) of the Act by discharging the striking employees on December
22, 2014. See Tri-State Wholesale Bldg. Supplies, Inc., 362 NLRB No. 85 at p. 1, fn. 1,
p. 5 (2015) (enfd. 2016 WL 4245468 (6th Cir. 2016)); Pride Care Ambulance, 356 NLRB

20 Sparks attempted to elicit testimony from LoIacono to the effect that on or about March 20, 2015,
Abondolo told him that Zimmerman had stated that Sparks had permanently replaced the striking
employees (Tr. 208–213, 357). As Zimmerman chose not to address this issue in his testimony, I credit
LoIacono’s statement that Abondolo never did so. In any event, affirmative testimony on LoIacono’s part
would have been nonprobative hearsay.
21 Sparks attached a copy of this letter to its Post-Hearing Brief and raised this argument for the first time
therein. General Counsel subsequently moved to strike based upon Sparks’ failure to enter the evidence
into the record during the hearing. Respondent countered that the ALJ may take judicial notice of records
within the agency’s own files. I have considered the letter submitted by Sparks, but do not ultimately find
it material to my conclusions on the issue for the reasons which follow in the text.
JD(NY)-43-16

23
No. 128 at p. 1–3 (2011). General Counsel contends that on December 22, 2014,
Sparks violated Sections 8(a)(1) and (3) by discharging the striking employees via
Zimmerman’s email to O’Leary. In order to determine whether a striker has been
discharged, the Board evaluates whether the employer’s statements and actions “would
logically lead a prudent person to believe his [or her] tenure has been terminated.” 5
Pride Care Ambulance, 356 NLRB 1023, 1024, quoting Leiser Construction LLC, 349
NLRB 413, 416 (2007), petition for review denied, enfd. 281 Fed. App’x 781 (10th Cir.
2008); see also Tri-State Wholesale Bldg. Supplies, Inc., 362 NLRB No. 85, at p. 5. In
order to determine whether a prudent person would reasonably believe that their
employment had been terminated, “it is necessary to consider the entire course of 10
relevant events from the employee’s perspective.” Pride Care Ambulance, 356 NLRB
supra at 1024, quoting Leiser Construction LLC, 349 NLRB at 416. In addition, the
Board has held that any uncertainty created by the employer’s statements or actions will
be construed against it. Kolkka Tables & Finnish-American Saunas, 335 NLRB 844,
846 (2001). As the Board stated in Brunswick Hospital Center, if the employer’s 15
conduct engenders “a climate of ambiguity and confusion which reasonably caused
strikers to believe that they had been discharged or, at the very least, that their
employment status was questionable because of their strike activity, the burden of the
results of that ambiguity must fall on the employer.”22 265 NLRB 803, 810 (1982); see
also Kolkka Tables & Finnish-American Saunas, 335 NLRB at 846–847; Grosvenor 20
Resort, 336 NLRB 613, 617–618 (2001).
I find under the above standard that Zimmerman’s December 22 email on behalf
of Sparks to O’Leary constituted a discharge of the striking employees. In this email,
Zimmerman informs the Union, “be advised that Sparks must reject the union’s offer to 25
return the striking employees to work at this time,” without using the words “discharge”
or “terminate.” However, Zimmerman attributes Sparks’ refusal to return the striking
employees to work to “serious misconduct and unprotected activity by . . . the striking
employees during the two separate strikes at Sparks between December 5 and
December 19, including . . . violence, threats and intimidation towards patrons and 30
employees, destruction of property and trespass.” Zimmerman goes on to describe the
refusal to return the striking employees to work as the “option” that “best protects the
safety and security of its patrons, employees and delivery people from the [striking
employees’] conduct,” and raises the possibility of legal action by stating that Sparks
“reserves all legal rights in connection with . . . Sparks’ employees’ conduct.” I find that 35
the striking employees could reasonably interpret Zimmerman’s statements accusing
them of “violence, threats,” “intimidation,” “destruction of property and trespass,”
declining to return them to work to ensure “the safety and security of [Sparks] patrons,
employees and delivery people,” and intimating potential legal action as discharging
them from employment. Thus, in the context of the caselaw Zimmerman’s statements40
in his December 22 email, in conjunction with Respondent’s refusal to admit the
employees onto Sparks’ premises on December 19 after their unconditional offer to

22 In its Post-Hearing Brief, Sparks attempts to effectively reverse the well settled rule construing
ambiguities in this respect against the employer by contending that the conduct of the Union and the
401(k) plan administrator “inflamed” the employees and caused any confusion regarding their
employment status. R.S. Post-Hearing Brief at 21–23 and 24–25. I decline to do so.
JD(NY)-43-16

24
return to work, would lead the employees to reasonably believe that Sparks had
terminated their employment.23
In reaching this conclusion, I reject Sparks’ argument that Zimmerman’s
December 22 email should be the only piece of evidence considered in order to 5
determine whether Respondent discharged the striking employees (R.S. Post-Hearing
Brief at p. 18–20). Respondent contends that because the consolidated complaint
alleges at ¶ 7(d) that Sparks, by Zimmerman’s email, discharged the striking employees
on December 22, no other evidence regarding the status of the striking employees, or
their interactions with Sparks representatives, should be evaluated. However, Sparks, 10
having heard the evidence presented by General Counsel, had a full and fair
opportunity to adduce its own evidence relevant to the alleged discharge of the striking
employees at the hearing. Sparks tacitly acknowledges as much; at the hearing and in
its Post-Hearing Brief, Sparks stated, “neither [the December 22 e-mail] nor any other
action by Sparks could have led a reasonable person to believe Sparks had terminated 15
any economic striker” (Tr. 352–354; Post-Hearing Brief at p. 18). In its Post-Hearing
Brief Sparks goes on to address, in addition to Zimmerman’s December 22 email, the
parties’ remarks at the January 20 bargaining session, and “confusion” which may have
been caused by the striking employees’ interactions with the benefits plan administrator
(Post-Hearing Brief at 25). These arguments illustrate that, despite the wording of the 20
complaint’s allegation, Sparks had an opportunity to respond to additional evidence
presented by the General Counsel which would tend to establish a reasonable belief on
the part of the striking employees that they had been discharged.
Nor do I find persuasive the other evidence presented by Sparks in support of its 25
contention that the striking employees could not have reasonably believed that they
were discharged. Sparks argues that as of January 8, 2015, the striking employees’
personal belongings remained in the employees’ lockers at Sparks, indicating that they
were still employed. However, this fact is irrelevant when the employees had been
barred by Sparks from returning to the restaurant for any purpose in order to, according30
to Zimmerman, protect the current employees and Sparks’ property.24 Sparks’ recall of
one of the striking employees in August 2015 cannot possibly be relevant to the
employees’ reasonable belief as to their employment status during the seven
intervening months. Furthermore, the fact that termination letters, which had been
issued in the past, were not issued to the striking employees does not clarify the 35

23 I further note that some striking employees were provided with contradictory information regarding their
employment status via Sparks’ health insurance plan administrator which, at the very least, would raise
the possibility that they had been discharged. The evidence establishes that in January 2015, some
employees who participated in Sparks’ group health insurance plan received letters stating that their
coverage was being terminated based upon a qualifying event in the form of a “termination,” and notifying
them of their rights under COBRA (G.C. Exh. 8; Tr. 196). One month later, at least one employee was
sent a second COBRA letter, describing the qualifying event in question as a “reduction in hours” (R.S.
Exh. 2). The employee to whom the second COBRA letter was addressed testified that he never
received it (Tr. 200–201). Nevertheless, I find it unreasonable to place on the employees the onus for
discerning the meaning of different qualifying events under COBRA in order to dispel the confusion
regarding their employment status which these letters doubtless engendered.
24 Hajdini testified that at the time he did not know whether his belongings remained in his locker, because
he had not been allowed back on Sparks’ premises (Tr. 64).
JD(NY)-43-16

25
ambiguity in their employment status created by Sparks’ conduct. There is no evidence
that termination letters had been issued by Sparks as a long-standing practice,25 and
Edelstein admitted that sending such letters to discharged employees was a practice
only recently implemented (Tr. 472). As discussed above, it is the perspective of the
employees, and not the specific conduct of the employer, that is considered in 5
determining whether they reasonably believed that they were discharged. Given
Sparks’ refusal to permit the striking employees to enter the premises on December 19
and Zimmerman’s December 22 email, Sparks’ declining to issue termination letters is
insufficient to clarify the ambiguity created by its other conduct in the minds of the
striking employees. 10
I am also unpersuaded by Sparks’ contention that the language of the December
22 email is less explicit than the statements at issue in Tri-State Wholesale Building
Supplies, Inc. and Grosvenor Resort which were found to engender a reasonable belief
that economic strikers had been terminated. Tri-State Wholesale Building Supplies, Inc.15
involved an unequivocal statement that the economic strikers had been discharged.
362 NLRB No. 85 at p. 4 (“Please be advised you should not report for work at Tri-State
Wholesale for any future shifts as your position has been filled and your employment
terminated”). However, as discussed above, the standard requires not a definitive
statement of discharge, but only circumstances engendering a reasonable belief on the 20
part of the economic strikers that they have been terminated, with ambiguities created
by the employer’s conduct construed against them. The ambiguity created by Sparks’
conduct here—the refusal to allow the striking employees on the premises on
December 19 and Zimmerman’s December 22 email—was sufficient to create a
reasonable belief that the striking employees had been discharged. The situation at 25
issue in Grosvenor Resort, also cited by Sparks, is more analogous to the events
established by the credible evidence here. In that case, the employer’s communication
to the striking workers stated “that they had been permanently replaced . . . that they
should bring ‘all their uniforms, hotel ID/timecard, and any other [of the Respondent’s]
property’ to the Respondent’s office,” to receive “their ‘final check’ for their ‘final wages,’ 30
including any outstanding vacation pay” contractually available only upon termination.
Grosvenor Resort, 336 NLRB at 617–618. The Board concluded that the employer’s
references to a “final check” for “final wages” and “outstanding vacation pay” remittable
solely upon discharge was sufficient to create a reasonable belief that the striking
employees had been terminated. Here the references in Zimmerman’s December 22 35
email to violence, threats, destruction of property, and other unlawful conduct, together
with the implication of legal action, served a similar purpose.
The issue of the striking employees’ understanding is further complicated here by
the fact that Sparks did not inform the union or the strikers that it was hiring permanent 40
replacement employees. Of course, Sparks was not required to do so. Avery Heights,
343 NLRB at 1305–1306. However, after December 19, 2014, Sparks continued to
rebuff the striking employees’ unconditional offers to return to work at the parties’

25 Sparks introduced two letters threatening employees who were apparently absent from work for two
months with discharge if they did not return to work within a stated period of time, but both are dated
September 24, 2014 (R.S. Exhs. 10, 11).
JD(NY)-43-16

26
January 8, 2015 negotiating session. The evidence also establishes that at subsequent
negotiating sessions on January 20 and February 25, Sparks did not inform the union
that it had prepared a preferential hiring list or an order for the recall of the striking
employees. Sparks was within its rights when it did not disclose its intent to hire
permanent replacement employees prior to doing so. However, this does not somehow 5
remove from consideration the effect of its continued failure to provide this information
to the striking employees and the union, together with the failure to provide a
preferential hiring list, on the perception of the striking employees regarding their
employment status.
10
In this regard, I find that Sparks’ shifting explanations for its refusal to recall the
striking employees particularly pertinent. As discussed above, Zimmerman’s December
22 email provided one rationale for refusing to allow the striking employees to return to
work—picket line misconduct, including “violence, threats,” “intimidation,” “destruction of
property and trespass.” The hiring of permanent replacements—which had allegedly 15
occurred prior to that time—and a downturn in business which resulted in the need for a
smaller staff were not mentioned. At the January 8, 2015 negotiating session
Zimmerman reiterated this rationale, telling LoIacono that he could not return the
striking employees to work because he was “protecting Sparks property.” When the
Union subsequently wrote to request information regarding Zimmerman’s claim, 20
Zimmerman responded with legal sophistry, and never provided information. Now,
however, in its Post-Hearing Brief, Sparks does not even assert that some sort of picket
line misconduct constituted its legitimate business justification for refusing to return the
striking employees to work. Instead, Sparks contends that its legitimate business
justifications consist of having hired permanent replacement employees prior to the 25
striking employees’ unconditional offer to return to work, and its economic downturn.
These shifting contentions support the conclusion that Sparks’ conduct with respect to
the union and the striking employees created ambiguity regarding their status which
should be construed against Respondent.
30
Finally, Sparks contends that the striking employees could not have interpreted
the December 22 email as discharging them because the e-mail was sent to Charging
Party UFCW Local 342, and not to the employees. I find this argument unpersuasive as
well. The record indicates that UFCW Local 342 was certified as the exclusive
collective-bargaining representative of Sparks’ waitstaff and bartenders on July 11, 35
2013, and the parties have been negotiating a collective-bargaining agreement since
that time. Shop stewards and striking employees Kristofer Fuller and Valjon Hajdini
attended collective-bargaining negotiations with Local 342 representatives. In this
context, an assertion that email communications with Local 342 regarding the ongoing
strike and contract negotiations were somehow insufficient to constitute notice to the 40
striking employees is contrary to the legal status of the parties and simply defies
common sense.
For all of the foregoing reasons, I find that Sparks discharged the striking
employees on December 22, 2014, in contravention of their rights under Laidlaw and its 45
progeny, in violation of Sections 8(a)(1) and (3) of the Act.
JD(NY)-43-16

27
4. Kapovic’s Alleged Unlawful Statement Soliciting Employees to
Withdraw their Support for the Union
The complaint further alleges at Paragraph 5 that Sparks violated Section 8(a)(1) 5
when Kapovic solicited employees to withdraw their support for the union on December
6, 2014. I find that during the meeting that Kapovic initiated with shop steward and
negotiating committee member Valjon Hajdini, Kapovic solicited Hajdini and the
employees to abandon their support for Local 342. I credit Hajdini’s uncontradicted
testimony that Kapovic asked to speak with him, and expressed his opinion that another 10
strike of the waiters and bartenders would “drag the business down” and that the
investors with whom he was considering buying the restaurant would “back off” as a
result. I further credit Hajdini’s testimony that Kapovic asked him whether the
employees would “vote the Union out” if Kapovic and the other investors bought the
restaurant. 15
It is well settled that employer attempts to convince employees to abandon their
support for a union, or to convince other employees to abandon their union support or
activities, violate Section 8(a)(1). See Ozburn-Hessey Logistics LLC, 357 NLRB No.
1526, 1553 (2011) (solicitation of employee to persuade another employee to abandon 20
her support for the union violated Section 8(a)(1)). In addition, employer predictions of
adverse business consequences as a result of union representation violate Section
8(a)(1) if they are not supported by an “objective factual basis.” Tradewest Incineration,
336 NLRB 902, 907 (2001) (statement that union representation would make it “unlikely
that our parent company will view [employer] as an appropriate location to invest in 25
long-term capital” coercive); see also General Electric Co., 321 NLRB 662, fn. 5, 666–
667 (1996) (upholding ALJ finding of 8(a)(1) violation based on General Manager’s
remarks that “the company that supplies the investment dollars for our growth . . . [is]
watching what happens here” and encouraging employees to vote against the union);
Limestone Apparel Group, 255 NLRB 722, 730–731 (1981) (investor’s statement that he 30
would not commit any additional resources to the plant if the union came in violated
Section 8(a)(1)).
I find that Kapovic’s statements were unlawful given this legal context. Sparks
admitted that Kapovic was at all material times a supervisor within the meaning of 35
Section 2(11), and an agent within the meaning of Section 2(13) acting on Sparks’
behalf. Kapovic approached Hajdini doubtless aware that Hajdini was a shop steward
and a member of the union’s negotiating committee, and by asking Hajdini whether the
employees as a group would “vote the Union out” appears to have been addressing
Hajdini in his representative capacity. Kapovic and Hajdini also discussed the strike in 40
the context of the ongoing contract negotiations. When Hajdini stated to Kapovic that
the employees “were not looking to go on strike again,” only for “a simple contract,” and
that, “if you don’t want us to go on strike . . . make an offer that is easy for us to accept,”
he was addressing Kapovic as a representative of Sparks. Kapovic responded in that
capacity, stating that he would going to talk to Steve Cetta, “and see if we can do 45
something about that.” Accordingly, after Kapovic then asked Hajdini whether the
employees could “vote the Union out” if Kapovic and his investors bought the
JD(NY)-43-16

28
restaurant, Hajdini again referred to the ongoing negotiations, stating, “All we want is a
simple contract—that we get treated fairly.”
Sparks contends in its Post-Hearing Brief that the evidence does not establish a
violation, because Hajdini could not have reasonably believed that Kapovic was 5
“reflecting company policy and speaking and acting for” Sparks’ management, given
Kapovic’s comments regarding purchasing the business himself. Post-Hearing Brief at
46–47. However, Sparks admitted on the record that Kapovic was a supervisor within
the meaning of Section 2(11) of the Act and an agent within the meaning of Section
2(13) (Tr. 7). As General Counsel points out, it is well settled that “an employer is 10
bound by the acts and statements” of statutory supervisors, “whether specifically
authorized or not.” Coastal Sunbelt Produce, 362 NLRB No. 126 at p. 33 (2015); see
also Grouse Mountain Lodge, 333 NLRB 1322, 1328 fn. 7 (2001); Manhattan Hospital,
280 NLRB 113, 118 (1986). There is also authority for the proposition that an employer
is bound by the acts of supervisors that are contrary to the employer’s directions. See 15
Rosedev Hospitality, Secaucus, LP, 349 NLRB 202 fn. 3, 210–211 (2007); Dixie
Broadcasting Co., 150 NLRB 1054, 1076–1079 (1965).
By contrast, the cases discussed by Sparks in its Brief involve situations where
the individual in question was neither a statutory supervisor nor an agent of the 20
employer, and the allegations that their statements violated Section 8(a)(1) were
dismissed on that basis. See Pan-Oston Co., 336 NLRB 305, 305–307 (2001)
(employee who allegedly committed Section 8(a)(1) violations neither a statutory
supervisor nor an agent of Respondent pursuant to Section 2(13)); Waterbed World,
286 NLRB 425, 426–427 (1987) (same). While, as discussed in Pan-Oston Co., an 25
employee may function as an agent of the employer pursuant to Section 2(13) for one
purpose but not another, Sparks provides no support for the position that that principle
also applies to statutory supervisors within the meaning of Section 2(11). 336 NLRB at
305-306. The Board did apply this particular agency principle to a statutory supervisor
in Sea Mar Community Health Center, 345 NLRB 947 (2005). However, that case 30
involved a renegade supervisor who established an expanded dental lab and created a
dental lab technician position, in direct contravention of specific orders by employer’s
CEO and Deputy Director prohibiting him from doing so. Sea Mar Community Health
Center, 345 NLRB at 949–950. Characterizing the case as involving “unique
circumstances,” and an “unusual factual scenario,” the Board held that the employer did 35
not violate Section 8(a)(1) and (5) by refusing to provide the union with notice and the
opportunity to bargain regarding the closure of the “rogue” dental lab and its effects.26

26 I note that recently in United States Postal Service, 364 NLRB No. 62 (2016), the Board affirmed an
ALJ’s order finding that a statutory supervisor was acting in her personal interest, and not as an agent
within the scope of her employment, when she obtained a stalking order against a union steward. The
ALJ found, based on the supervisor’s testimony, that the supervisor obtained the stalking order as “an act
of desperation…to alleviate her own personal fears.” United States Postal Service, 364 NLRB No. 62 at
p. 18. As a result, the ALJ found that the only conduct of the supervisor imputable to the employer was
the supervisor’s enforcement of the terms of the protective order on the employer’s premises, which
interfered with the union steward’s contract administration activities. United States Postal Service, 364
NLRB No. 62 at p. 1, 18–19. However, the Board noted that there were no exceptions filed with respect
to this particular conclusion. United States Postal Service, 364 NLRB No. 62 at p. 1, fn. 2. As a result, I
do not consider the case to have precedential import on the issue.
JD(NY)-43-16

29
Sea Mar Community Health Center, 345 NLRB at 947, 949–951. As a result, I do not
find that case to be applicable here.
Instead, I find that the circumstances surrounding Kapovic’s comments to Hajdini
fall more appropriately within the scope of cases ruling that an employer is bound by the5
comments of a supervisor, even when unauthorized. Kapovic and Hajdini were on
Sparks’ premises and in a work area when Kapovic initiated the conversation. Although
Kapovic referred to his interest in buying the restaurant and potential investors, Hajdini
responded in terms of the current contract negotiations, stating that an offer from
Sparks that the employees could accept would obviate the possibility of another strike. 10
Kapovic in turn did not respond as an individual seeking to establish his own business;
instead he said that he would speak to Cetta and “see if we can do something about
that.” Therefore, it was reasonable for Hajdini to believe that Kapovic was addressing
him as a supervisor on behalf of Sparks, as well as a possible purchaser of the
business. I therefore find that Sparks is bound by Kapovic’s comments. 15
For all of the foregoing reasons, I find that Sparks violated Section 8(a)(1) when
Kapovic unlawfully solicited of employees to abandon their support for the Union on
December 6, 2014.
20
5. Remedial Issues
Under current Board law, lawful economic strikers that have been unlawfully
discharged are entitled to, “full reinstatement to their former jobs, or, if those jobs no
longer exist, to substantially equivalent positions, without prejudice to their seniority or 25
any other rights or privileges previously enjoyed, discharging, if necessary, any
replacements, and mak[ing] them whole for any loss of earnings and other benefits.” Tri-
State Wholesale Building Supplies, 362 NLRB No. 85 at p. 1 (2015). However,
remedies available to economic strikers are contingent upon whether the economic
striker was permanently replaced before or after their unlawful discharge. Detroit 30
Newspapers, 343 NLRB 1041–1042 (2004). If the strikers were permanently replaced
after the unlawful discharge, they are “entitled to immediate reinstatement and backpay
running from the date of the discharge (regardless of when, or if, [they] unconditionally
offer[] to return to work).” Detroit Newspapers, 343 NLRB at 1041–1042, citing
Hormigonera del Toa, Inc., 311 NLRB 956, 957–958, fn. 3 (1993). If the strikers were 35
lawfully permanently replaced prior to the discharge, they are entitled to reinstatement
upon the departure of the employee that permanently replaced them, with backpay
running from the date that the replacement employee leaves. Detroit Newspapers, 343
NLRB at 1041–1042.
40
Here, the economic strike began on December 10, 2014. The striking employees
made an unconditional offer to return to work on December 19, 2014, and were
subsequently discharged on December 22, 2014, in violation of Sections 8(a)(1) and (3)
of the Act. However, in this case the remedial distinction articulated in Detroit
Newspapers is irrelevant given my conclusion that Respondent has not satisfied its 45
burden to prove that it had permanently replaced the economic strikers prior to the
unconditional offer to return to work on December 19, 2014. As a result, the economic
JD(NY)-43-16

30
strikers were not permanently replaced prior to their discharge on December 22, 2014.
The striking employees are therefore entitled to immediate reinstatement and backpay
running from December 19, 2014, the date of their unconditional offer to return to work.
General Counsel asks me to review and overturn the “Board’s current remedial 5
rule” as applied to unlawfully discharged economic strikers, so that the available
remedies are no longer contingent upon whether the economic strikers were
permanently replaced prior to the date of their discharge. As discussed above, such a
venture is unnecessary. In any event, as an Administrative Law Judge, I am bound to
follow existing Board law which has not been overruled by the Supreme Court. 10
Pathmark Stores, Inc., 342 NLRB 378 fn. 1 (2004); see also Gas Spring Co., 296 NLRB
84, 97–98 (1989), enfd. 908 F.2d 966 (4th Cir. 1990).
General Counsel also urges that I award search-for-work and work-related
expenses to the economic strikers who were unlawfully discharged, regardless of the 15
discharged strikers’ interim earnings and separately from taxable net backpay, with
interest. Such a component of the remedy is appropriate based upon the Board’s
recent ruling to that effect in King Soopers, Inc., 364 NLRB No. 93 at p. 8–9 (2016)
(providing for such a remedy, to be ordered on a retroactive basis). Backpay shall be
calculated in accordance with F.W. Woolworth Co., 90 NLRB 289 (1950), being 20
awarded on a quarterly basis with interest accruing as set forth in New Horizons, 283
NLRB 1173 (1987), and compounded in accordance with Kentucky River Medical
Center, 356 NLRB 6 (2010). Interest on search-for-work and work-related expenses
shall be calculated in the same manner. Respondent will also be required to absorb the
adverse tax consequences, if any, of receiving a lump-sum backpay award covering 25
periods longer than one year as set forth in Don Chavas, LLC d/b/a Tortillas Don
Chavas, 361 NLRB No. 10 (2014), and to file a report with the Social Security
Administration allocating the payments to the appropriate calendar quarters.
CONCLUSIONS OF LAW30
1. Respondent Michael Cetta, Inc. d/b/a Sparks Restaurant (“Respondent”) is an
employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
35
2. United Food and Commercial Workers (“the Union”) is a Labor Organization within
the meaning of Section 2(5) of the Act.
3. By failing and refusing to reinstate Gerardo Alarcon, Fredy Albarracin, Marko Beljan,
James Campanella, Ian Collins, Elvis Cutra, Arlind Demaj, Kristofer Fuller, Adem 40
Gjevukaj, Valjon Hajdini, Elvi Hoxhaj, Juan Iriarte, Ante Ivre, Amir Jakupi, Bardhyl
Kelmendi, Jeton Kerahoda, Milazim Kukaj, Rachid Lamniji, Valon Lokaj, Silvio
Lustica, Iber Mushkolaj, Gani Neziraj, Kenan Neziraj, Xhavit Neziraj, Adnan
Nuredini, Juan Patino, Sadik Prelvukaj, Francisco Puente, Ermal Qelia, Nagip
Resulbegu, Khalid Seddiki, Youssef Semlalo El Idrissi, Fatlum Spahija, Andrzej 45
Stepien, Alim Tagani, and Mergim Zeqiraj since their unconditional offer to return to
work on December 19, 2014, Respondent violated Sections 8(1) and (3) of the Act.
JD(NY)-43-16

31
4. By denying the employees listed above their right to be placed on a preferential
hiring list since December 19, 2014, Respondent violated Sections 8(a)(1) and (3) of
the Act.
5
5. By discharging the employees listed above on or about December 22, 2014,
Respondent violated Sections 8(a)(1) and (3) of the Act.
6. By soliciting employees to withdraw their support for the Union, Respondent violated
Section 8(a)(1) of the Act. 10
7. The above violations are unfair labor practices affecting commerce within the
meaning of Sections 2(6) and (7) of the Act.
REMEDY15
Having found that Respondent engaged in an unfair labor practice, I shall order it
to cease and desist from such conduct and to take certain affirmative action designed to
effectuate the policies of the Act.
20
Having found that the Respondent unlawfully refused to reinstate Gerardo
Alarcon, Fredy Albarracin, Marko Beljan, James Campanella, Ian Collins, Elvis Cutra,
Arlind Demaj, Kristofer Fuller, Adem Gjevukaj, Valjon Hajdini, Elvi Hoxhaj, Juan Iriarte,
Ante Ivre, Amir Jakupi, Bardhyl Kelmendi, Jeton Kerahoda, Milazim Kukaj, Rachid
Lamniji, Valon Lokaj, Silvio Lustica, Iber Mushkolaj, Gani Neziraj, Kenan Neziraj, Xhavit 25
Neziraj, Adnan Nuredini, Juan Patino, Sadik Prelvukaj, Francisco Puente, Ermal Qelia,
Nagip Resulbegu, Khalid Seddiki, Youssef Semlalo El Idrissi, Fatlum Spahija, Andrzej
Stepien, Alim Tagani, and Mergim Zeqiraj, upon their unconditional offer to return to
work, and that Respondent unlawfully discharged these employees, I shall order
Respondent to offer them full reinstatement to their former jobs, or, if those jobs no 30
longer exist, to substantially equivalent positions, without prejudice to their seniority or
any other rights or privileges previously enjoyed, discharging, if necessary, any
replacements, and make them whole for any loss of earnings and other benefits.
Backpay shall be calculated in accordance with F.W. Woolworth Co., 90 NLRB 289
(1950), with interest accruing at the rate prescribed in New Horizons, 283 NLRB 1173 35
(1987), and compounded daily as prescribed in Kentucky River Medical Center, 356
NLRB 6 (2010). In accordance with Don Chavas, LLC d/b/a Tortillas Don Chavas, 361
NLRB No. 10 (2014), Respondent shall also compensate the unlawfully discharged
employees for the adverse tax consequences, if any, of receiving lump-sum backpay
awards, and file a report with the Social Security Administration allocating backpay 40
awards to the appropriate calendar quarters for each employee. Pursuant to King
Soopers, Inc., 364 NLRB No. 93 (2016), Respondent shall further compensate the
employees named above for search-for-work and interim employment expenses,
separately from taxable net backpay and regardless of whether they exceed the
employees’ interim earnings, with interest at the rate prescribed in New Horizons, 45
compounded daily as prescribed in Kentucky River Medical Center, above.
JD(NY)-43-16

32
On these findings of fact and conclusions of law, and on the entire record herein,
I issue the following recommended27
ORDER
5
Respondent Michael Cetta, Inc. d/b/a Sparks Restaurant, New York, New York,
its officers, agents, successors and assigns, shall
1. Cease and desist from
10
(a) Discharging or otherwise discriminating against employees for engaging in
an economic strike.
(b) Denying employees engaged in an economic strike their right to be placed
on a preferential hiring list.15
(c) Failing and refusing to reinstate employees engaged in an economic strike
after their unconditional offer to return to work.
(d) Soliciting employees to withdraw their support for the Union.20
(e) In any other manner interfering with, restraining, or coercing employees in
the exercise of the rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of 25
the Act.
(a) Within 14 days from the date of the Board’s Order, offer Gerardo Alarcon,
Fredy Albarracin, Marko Beljan, James Campanella, Ian Collins, Elvis
Cutra, Arlind Demaj, Kristofer Fuller, Adem Gjevukaj, Valjon Hajdini, Elvi 30
Hoxhaj, Juan Iriarte, Ante Ivre, Amir Jakupi, Bardhyl Kelmendi, Jeton
Kerahoda, Milazim Kukaj, Rachid Lamniji, Valon Lokaj, Silvio Lustica, Iber
Mushkolaj, Gani Neziraj, Kenan Neziraj, Xhavit Neziraj, Adnan Nuredini,
Juan Patino, Sadik Prelvukaj, Francisco Puente, Ermal Qelia, Nagip
Resulbegu, Khalid Seddiki, Youssef Semlalo El Idrissi, Fatlum Spahija, 35
Andrzej Stepien, Alim Tagani, and Mergim Zeqiraj 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, and discharging if necessary any
replacements.40

27 If no exceptions are filed, as provided by Sec. 102.46 of the Board’s Rules and Regulations, the
findings, conclusions, and recommended order shall, as provided in Sec. 102.48 of the Rules, be adopted
by the Board and all objections to them shall be waived for all purposes.
JD(NY)-43-16

33
(b) Make the above employees whole for any loss of earnings and other
benefits suffered as a result of the discrimination against them, in the
manner set forth in the Remedy section of this Decision.
(c) Compensate the affected employees for the adverse tax consequences, if 5
any, of receiving lump-sum backpay awards, and file a report with the
Social Security Administration allocating the backpay awards to the
appropriate calendar quarters for each employee.
(d) Within 14 days from the date of this Order, remove from its files any 10
reference to the unlawful discharges, and within 3 days thereafter, notify
the employees in writing that this has been done and that the discharges
will not be used against them in any way.
(e) Preserve and, within 14 days of a request, or such additional time as the 15
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 electronic form, necessary to analyze the amount of 20
backpay due under the terms of this Order.
(f) Within 14 days after service by the Region, post, at its facility in New York,
New York, copies of the attached notice marked “Appendix.”28 Copies of
the notice, on forms provided by the Regional Director for Region 2, after 25
being signed by the 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, the
notices shall be distributed electronically, such as email, posting on an 30
intranet or an internet site, and/or other electronic means, if the
Respondent customarily communicates with employees by such means.
Reasonable steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other material. In the
event that, during the pendency of these proceedings, the Respondent 35
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 employed by the Respondent
at any time since December 19, 2014.
40

28 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.”
JD(NY)-43-16

34
(g) 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 the Respondent has taken to comply.
5
Dated, Washington, D.C., November 18, 2016
10
__________________________
Lauren Esposito
Administrative Law Judge
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 the National Labor
Relations Act and has ordered us to post and abide by 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 benefits and protection
Choose not to engage in any of these protected activities
WE WILL NOT discharge or otherwise discriminate against any of you for engaging in
an economic strike or other protected concerted activities.
WE WILL NOT deny you the right to be placed on a preferential hiring list when
engaged in an economic strike.
WE WILL NOT unlawfully refuse to reinstate you if you are engaged in an economic
strike and make an unconditional offer to return to work.
WE WILL NOT solicit you to withdraw your support for the Union.
WE WILL NOT in any other manner interfere with, restrain, or coerce you in your
exercise of the rights listed above.
WE WILL within 14 days of the Board’s Order, offer Gerardo Alarcon, Fredy Albarracin,
Marko Beljan, James Campanella, Ian Collins, Elvis Cutra, Arlind Demaj, Kristofer
Fuller, Adem Gjevukaj, Valjon Hajdini, Elvi Hoxhaj, Juan Iriarte, Ante Ivre, Amir Jakupi,
Bardhyl Kelmendi, Jeton Kerahoda, Milazim Kukaj, Rachid Lamniji, Valon Lokaj, Silvio
Lustica, Iber Mushkolaj, Gani Neziraj, Kenan Neziraj, Xhavit Neziraj, Adnan Nuredini,
Juan Patino, Sadik Prelvukaj, Francisco Puente, Ermal Qelia, Nagip Resulbegu, Khalid
Seddiki, Youssef Semlalo El Idrissi, Fatlum Spahija, Andrzej Stepien, Alim Tagani, and
Mergim Zeqiraj 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, and discharging if necessary any replacements.
WE WILL make those employees whole for any loss of earnings and other benefits
resulting from our failure to reinstate them after their unconditional offer to return to work
and from their discharge, less any net earnings, plus interest.
WE WILL compensate those employees for the adverse tax consequences, if any, of
receiving lump-sum backpay awards, and WE WILL file a report with the Social Security
Administration allocating the backpay awards to the appropriate calendar quarters for
each employee.
WE WILL within 14 days from the date of this Order, remove from our files any
reference to the unlawful discharge of those employees, and WE WILL within 3 days
thereafter, notify each of them in writing that this has been done and that the discharges
will not be used against them in any way.
MICHAEL CETTA, INC. d/b/a
SPARKS RESTAURANT
(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, Suite 3614
New York, NY 10278-0104
Hours: 8:45 a.m. to 5:15 p.m.
212-264-0300
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/02-CA-142626 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.
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, 212-264-0300.