Piggly Wiggly Midwest, LLC

National Labor Relations Board - Administrative Judge Opinions

May 21, 2012

30-CA-067117 (N.L.R.B. May. 21, 2012)

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Sheboygan, WI
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
PIGGLY WIGGLY MIDWEST, LLC
and Cases 30-CA-67117
30-CA-73311
UNITED FOOD & COMMERCIAL WORKERS
UNION, LOCAL 1473
Andrew S. Gollin, Esq., and Renee M. Medved, Esq.,
for the Acting General Counsel.
Mark A. Sweet, Esq., of Milwaukee, Wisconsin
for the Charging Party.
Gregory H. Andrews, Esq., of Chicago, Illinois, and
Andrew T. Frost, Esq., of Waukesha, Wisconsin
for the Respondent.
DECISION
Statement of the Case
Eric M. Fine, Administrative Law Judge. This case was tried in Milwaukee, Wisconsin on
February 22 and 23, 2012. The charge in Case 30-CA-67117 was filed on October 19, 2011,
with the first and second amended charges filed on November 7, 2011, and November 18,
2011, respectively.1 The charge in Case 30-CA-73311 was filed on January 27, 2012. All the
charges and amended charges were filed by United Food & Commercial Workers Union, Local
1473 (the Union or Local 1473) against Piggly Wiggly Midwest, LLC (Respondent). The
complaint in Case 30-CA-67117 issued on December 28. The complaint in Case 30-CA-73311
issued on February 3, 2012. The two complaints were consolidated for hearing by order dated
February 6, 2012. The consolidated complaints allege that on or about September 18,
Respondent reduced 19 full-time employees to part-time status causing them to lose their full-
time benefits, including health insurance, without prior notice to the Union, and affording the
Union an opportunity to bargain in violation of Section 8(a)(1),(3) and (5) of the Act, and that by
engaging in such conduct Respondent constructively discharged employees Jeffrey Gross,
Lauriel Hansen, Laura Hoffmann and Tina Meinhardt in violation of Section 8(a)(1) and (3) of
the Act. The consolidated complaints allege Respondent violated Section 8(a)(1) and (5) of the
Act by failing to honor information requests made by the Union on September 16, 19, 27,
October 5, and November 8. The consolidated complaints allege Respondent engaged in a
course of conduct designed to undermine the Union by posting letters on September 15 and on
September 22 on Respondent's bulletin board denigrating the Union, and by a statement made
to employees by one of Respondent's officials on September 21 in violation of Section 8(a)(1) of
the Act. The consolidated complaints allege Respondent violated Section 8(a)(1) of the Act by:
on September 23 threatening to contest an employee's claim for unemployment because the

1 All dates are in 2011 unless otherwise indicated.
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Union filed a grievance regarding the employee's reduction to part-time status; and on October
3 by threatening to force an employee to bump her sister if the Union pursued a grievance on
the employee's behalf regarding her reduction to part-time status. The consolidated complaints
allege Respondent since on or about September 21, implemented a new interpretation of its call
in policy by issuing written warnings and two day suspensions without prior notice to and
bargaining with the Union in violation of Section 8(a)(1) and (5) of the Act. The consolidated
complaints allege that on January 13, 2012, Respondent bypassed the Union and dealt directly
with an employee regarding wages, hours, and other terms and conditions of employment by
offering to rehire the constructively discharged employee with wages, hours and other terms
and conditions of employment that differed from those contained in the specified collective-
bargaining agreement; and that differed from those that existed at the time of the employee's
alleged constructive discharge in violation of Section 8(a)(1) and (5) of the Act.
On the entire record, including my observation of the witnesses' demeanor, and after
considering the briefs filed by the Acting General Counsel and Respondent, I make the
following:2
Findings of Fact
I. Jurisdiction
Respondent, a Wisconsin limited liability company, with a place of business located at
3128 S. Business Drive, Sheboygan, Wisconsin (Store 15) and a place of business located at
2215 Union Avenue, Sheboygan, Wisconsin (Respondent's corporate headquarters), has been
a wholesaler of grocery, meat and produce to franchise stores and an operator of corporate
retail grocery stores. During the past calendar year, Respondent in conducting its described
business operations derived gross revenues in excess of $500,000, and purchased and
received at its corporate headquarters products, goods, and materials valued in excess of
$5,000 directly from points outside of Wisconsin. Respondent admits and I find it is an
employer engaged in commerce under Section 2(2), (6), and (7) of the Act and the Union is a
labor organization under Section 2(5) of the Act.
II. Alleged Unfair Labor Practices
Respondent admits the following individuals maintain the titles next to their names and
are supervisors and agents of Respondent under Section 2(11) and 2(13) of the Act: Paul
Butera, owner; Mary Zenisek, manager of retail service operations; John Braunreiter, Jr., district
manager; and Daniel Holtz, store manager. Respondent became the owner of Store 15 in 2007
at which time Respondent recognized the Union as representative of its employees in two
collective-bargaining units, the clerks unit and the meat department unit. The recognition was
embodied in two separate collective-bargaining agreements, the most recent of which at the
time of the hearing had effective dates of May 7, 2009 to September 7.

2 In making the findings, I have considered the witnesses’ demeanor, the content of their
testimony, and the inherent probabilities of the record as a whole. In certain instances, I have
credited some but not all of what a witness said. See NLRB v. Universal Camera Corporation,
179 F. 2d 749, 754 (C.A. 2), reversed on other grounds 340 U.S. 474 (1951). All testimony and
evidence has been considered. If certain testimony or evidence is not mentioned it is because it
is cumulative of the credited evidence, not credited, or not essential to the findings herein.
Further discussion of specific credibility determinations is set forth below.
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Holtz began working for Respondent in October 2010 as store manager at Store 15,
which is a corporate store. At the time of the hearing there were 118 employees on Store 15's
roster, divided by full-time and part-time employees. Holtz reports to District Manager
Braunreiter. Holtz testified he is the only individual employed at Store 15 who is not a member
of the Union and he is the only supervisor at the store. He testified all the other individuals are
covered by one of the two collective-bargaining agreements. Holtz testified that under the
collective-bargaining agreements full-time employees receive certain benefits not available to
part-time employees, including: paid vacation, paid personal days, time and a half premium pay
for work performed on Sunday, and health insurance for themselves and their families.
Grant Withers is employed by the Union as secretary/treasurer, a position he has held
since 2006. Withers reports to John Eiden, the local union president. The Union represents
employees working at six of Respondent's corporate stores located in: Menasha, Sheboygan,
with two each in Racine and Kenosha. The Union represents the retail clerks and meat
department employees of each store. Withers testified in the last five years the number of
stores for which the Union has represented employees has decreased by five. The following
stores are no longer represented by the Union: Appleton No. 23; Sheboygan No. 31; Racine
Nos. 43 and 44; and Oshkosh, No. 25. Withers testified he thought Respondent has 10 or 11
former Dick's stores, which are corporately owned and are non-union. Withers testified he
thought there were 16 corporate stores in all. Withers testified Respondent also has franchise
stores, but he did not know the number.
Withers was involved in the negotiation of the expired May 7, 2009 to September 7
collective bargaining agreements for Store 15. For the Union, Withers, Eiden, Dale Seianas,
now retired, Jim Ridderbush, and bargaining unit employees participated in the negotiation of
the agreements. Eiden and Withers split the duties of lead spokesperson. For the Respondent,
Attorney Robert Simandl, Dave Koenig, Nadine Becker, Steve Marchewka, Paul Butera, and
Judy Butera were involved in the negotiations. There were separate agreements for the clerks
and meat cutters negotiated and at the time the agreements were executed they applied to
Stores 15 and 31, each located in Sheboygan.
In the Clerks Agreement under article I entitled "RECOGNITION AND MANAGEMENT
CLAUSE" there is the follow provision:
1.11. Subject to the provisions of this Agreement, the management of the business,
including the right to plan, determine, direct and control store operations and hours; the
right to study and introduce new methods, facilities and products; to determine who will
perform available work, including the right to direct and control the workforce, determine
the size and composition of the workforce; the scheduling of hours (including
unscheduled overtime and additional hours and work assignment) for departments and
shifts and the assignment of work amongst employees; the right to hire, assign, demote,
promote and transfer (including to a different store within the scope of this Agreement),
to layoff or reduce the hours of work because of lack of work; to discipline, suspend or
discharge employees for just cause; to establish and maintain reasonable rules and
regulations covering the operation of the stores (including establishing reasonable
quality and quantity of work standards); the determination and enforcement of safety,
health and protection measures, regulations and practices.
Under Article III-"Seniority" are the following provisions:
3.3. The Employer will schedule hours of work on a seniority basis. The Employer will
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schedule employees who are full-time within the meaning of this Agreement for hours
not below the full-time classification threshold unless:
(i) the employee requests a temporary reduction in hours for two more weeks
and/or
(ii) the Employer makes a permanent reduction in the full-time positions in a
classification based on business needs.
The Meat Department collective-bargaining agreement contains the same provision listed above
as article 1.11, under the article number 1.10. The Meat Department agreement does not
contain the language listed above in article 3.3.
Withers testified that during the negotiation for the most recent contracts for Store 15,
Paul Butera invited the Union officials to meet with Respondent's chief financial officer who
turned over the profit and loss statements to Eiden and Withers for review. Then the Union had
their accountant perform a full review of the documents. Withers testified the accountant was
required to sign a confidentiality agreement, but the Union officials were not. Withers testified
there was a term "business needs" incorporated in article 3.3 of the most recent collective
bargaining agreement. He testified the term business needs was an employer proposal. The
example given at the time was that if a Festival Foods (Festival) opened up across the street
there had to be a component to address the Union's concerns as far as the Employer's
unilateral right to reduce full-time employees and to address the Employer's concerns about
reduced business. He testified they agreed to the "business needs" language because it was
something tangible they could both review. Withers testified present for the meeting when this
was discussed were: the federal mediator, Simandl, Judy Butera, Keonig, Eiden and Withers.
Withers testified the issue of Festival Foods was raised by Respondent through the mediator.
Withers testified it was stated that if a Festival store opened up across the street and by
example if there was a 40% reduction in Respondent's sales that would trigger a reduction in
staffing if the Respondent was able to demonstrate the reductions were necessary relating to
the business needs language. Withers testified this addressed the Union's concerns because
they would be able to review the evidence. Withers his testified there was no percentage in the
contract that had to be triggered before business needs definition was met. He testified 40%
was the actual number they discussed but it was just used as example as the trigger number.
Withers testified there was no minimum level of business needs in which Respondent would not
have to provide the Union the evidence. Rather, he testified if they claimed business needs
they would have to demonstrate it to the Union.
Withers testified to the following: Respondent sold Sheboygan Store 31 in December
2009. Respondent and the Union met to discuss what would happen to the bargaining unit
employees at Store 31. Withers, Attorney Mark Sweet, and Seianas represented the Union and
for the Respondent Simandl and Koenig participated. These discussions took place in
November and December 2009, prior to the actual sale date. After the sale some of the
bargaining unit employees from Store 31 bumped into Store 15. For employees bumping from
Store 31 to Store 15, Respondent agreed to recognize the employees initial hire date. Some of
the existing employees at Store 15 were impacted when the employees bumped into Store 15
from Store 31.
Zenisek has worked for Respondent 17 years, and she began working with
Respondent's union stores in June 2010. Zenisek testified she attended a mediation meeting
relating to three grievances on January 6 pertaining to Store 15. Present were Don Maki, the
federal mediator, Simandl, Zenisek, Union officials Prickett and Ridderbush, along with two of
the three employees. Zenisek testified the subject of the mediation was the reduction from full-
time to part-time status in May 2010 for the three employees. The mediation was held pursuant
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to the collective-bargaining agreement in effect at the time. Zenisek testified there was no
decision made during the January 6 meeting. She testified the grievances related to three deli
department employees at Store 15 who reduced from full-time to part-time. Zenisek testified
that, after the January 6 mediation, the Union did not pursue the grievances further. Zenisek
testified employees moving to Store 15 from Store 31 had nothing to do with the reduction to
part-time status in Store 15. However, she testified the reductions took place after the
employees moved from Store 31 to Store 15.
There was a meeting at Respondent's corporate offices on January 7. Zenisek testified
present were Respondent representatives Paul Butera, Judy Butera, Suokko, Barbara Pike,
Simandl, Attorney Andrew Frost, and Union officials Eiden and Withers. Withers testified Paul
Butera called the Union to the corporate office, stating he was going to have his attorneys there,
and demanded the Union officials attend. Withers testified that, during the meeting,
Respondent's officials told him competition was coming to the Sheboygan store in that Festival
was trying to get into Sheboygan. Withers testified, in reference to Store 15, Paul Butera gave
them customer complaints that had been e-mailed in and asked the Union officials for their
assistance in getting the employees to take better care of the customers. Withers testified that
he did not recall Paul Butera say when the Festival store was coming in. Wither's testified this
was the only time that anyone from Respondent mentioned a Festival store coming to
Sheboygan.3 Withers testified there was a discussion about full-time to part-time employees
during the January 7 meeting in the context of Paul Butera complaining about attorneys fees
with Simandl and the fact that the Union was causing problems as they had just been through
an unfair labor practice trial in November. Withers testified Withers stated if you would just have
turned over the information the Union requested there would not have been all the litigation.
Withers stated some of the grievances could have been avoided if the Union had been provided
information.
On June 27, Eiden sent Paul Butera two contract reopener letters, one for the clerks and
one for the meat cutters pertaining to the Store 15 collective-bargaining units. The letters asked
Butera to contact Eiden as soon as possible with the earliest dates Respondent had available to
begin negotiations. On July 25, Simandl sent Sweet a letter stating the Sheboygan contracts
were set to expire on September 7, and Simandl requested dates when the Union was available
to bargain. Simandl asked Sweet to contact him as soon as possible. Withers testified he did
not know if Simandl's July 25 letter was responded to stating that Sweet, Hilbert, and Simandl
were scheduling negotiations.
Holtz testified he first learned that Festival was going to be opening a store in
Sheboygan in February. Concerning the mid-September reductions from full-time to part-time at
Store 15, Holtz testified the initial contact as to schedule changes at Store 15 took place around
the end of July. He testified a note came from Brian Bucaro, Respondent's vice-president of

3 Zenisek identified two articles from the Sheboygan Press which she testified were given to
Eiden and Withers by Respondent's officials during the January 7 meeting. One of the articles
is dated January 5, and contains the title "Festival Foods store coming to Sheboygan." The
article stated there was a planned opening in the fall of 2011. However, I have credited Withers
testimony that he did not see the articles at the January 7 meeting. Zenisek's recall of the
meeting was vague. As to the articles, she merely stated she pushed them across the table to
the Union officials. Thus, I have credited Withers testimony that the Union officials were
informed that a Festival Store was coming to Sheboygan on January 7, but they were given no
time table as to when this was to take place.
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retail operations, talking about a plan for the competitor coming to town.4 Based on concerns of
the Festival store planned opening, on August 26 Holtz sent Braunreiter an e-mail containing an
attachment labeled "Weekly Budget by Period-2011.xls" with the description "Period 9 & 10
tabs." The attached chart contained predictions of increased sales for the weeks ending August
27, September 3, and September 10 over the prior year. It contained predictions of a 5% drop
in sales per day for the week ending September 17; a 15% per day drop for the weeks ending
September 24 and October 1; a 13% per drop per day for the week ending October 8; and a
10% drop per day for the week ending October 15 in sales from the prior year. Holtz later sent
Braunreiter another e-mail on August 26 with an attachment labeled "Labor adjustments.xls"
showing a drop in projected labor hours with predictions in drops in labor hours per week
corresponding to the percentages he had predicted of sales drops in his prior e-mail of that
date. Holtz stated to Braunreiter "let's meet to discuss the game plan." Holtz testified he broke
the hours down by department based on his expected decrease in sales for each. On August
29, Braunreiter sent Holtz an e-mail stating, "I think Period 9 looks about right. I would prepare
for a larger hit in Period 10." Braunreiter stated that if we "take the above hits we'll be in the
16% to 26% range for (Festival's) grand opening. I would rather play things on the conservative
side." Holtz testified Period 9 started with the week ending August 27 and goes through the
week ending September 17. Holtz testified that he and Braunreiter were involved in the
decision to reduce employees at Store 15 from full-time to part-time status. He testified they
each came up with a plan pertaining to the expected sales percentage decrease. Holtz testified
they went with the plan they agreed on. Holtz testified in making the reductions they did not
consider an employee's union membership or the cost of their benefits. He testified the decision
was based on the fact that they knew their sales were going to decrease, which means there
would be less work to perform. Holtz provided a pre-hearing affidavit on November 25, in which
he stated he had a conversation with Braunreiter "about the new competition in early
September. We waited until early September because we didn't feel the need to plan that far
out." Holtz stated, "We decided to separately put our thoughts together about what we thought
would happen with the store, based on the new competition. We then met about four days later.
When we met, we made a decision. We agreed we were going to face a substantial decrease
in sales, and estimated an anticipated amount of the decrease based on our experience in the
business. We started reviewing business processes to make some adjustments based on an
anticipated 30% sales decrease from the current sales trend compared to sales we did in the
same week last year."
On September 1, Simandl sent Sweet a letter stating the Union's contracts in Sheboygan
expire on September 7, and as a result Respondent would not be legally authorized to deduct
dues from employees beginning on the first full pay-period after September 7. Simandl stated
Respondent also will not process arbitrations on matters which arise after the expiration of the
collective-bargaining agreements.5
On September 2, Bucaro, sent an e-mail to Holtz and Braunreiter, copied to Zenisek.
The e-mail encapsulated Bucaro's "thoughts regarding the opening of Festival in two weeks."
Bucaro stated they "should anticipate a 15% drop from last year sales (we have been up
recently so this may be a 20% drop from recent sales trend." Bucaro instructed that, "We Must
make adjustments to scheduling from Day 1. We can no longer spend $37 to $40K on labor.

4 Holtz testified he thought Brian Bucaro is a part owner of Respondent.
5 Withers testified the parties did not meet to bargain over successor agreements for the
Sheboygan employees prior to the agreements' September 7 expiration date. He testified the
parties never agreed that any provision of the agreements would survive the September 7
expiration date.
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Initially you should plan on spending $32 to $35K a week and MUST stay below 9.00 payroll %.
You should review your current schedules and compare to your load schedule as well as your
department sales by hour to ensure you are scheduling strictly to the needs of the business."
Bucaro stated there was to be a hiring freeze at Store 15, and that next week after the holiday
six named probationary employees were to be terminated. Bucaro stated, "You will be able to
schedule all part-time employees to the minimum 12 hours and if necessary and if deeper cuts
are needed, which is likely, then we will address layoff and status reductions. Mary Zenisek will
be in to visit during the week of 9/11 to review schedules and address issues. In using less
Part-Time hours and more Full-Time hours, your average hourly rate will rise."
On September 14, Allison Haller, a human resource specialist at Respondent's corporate
office, sent Holtz an e-mail with an attachment. The e-mail was copied to Braunreiter, Zenisek,
and Judy Butera. The e-mail came under the heading, "Full Time to Part Time Frequently
Asked Questions." Holtz identified a document dated September 16, entitled, "Presentation
Outline to Employees on Schedule Change - Sheboygan Store." Holtz testified the outline was
prepared by Respondent's corporate office and given to Holtz. The outline stated that Festival
Foods, a "large non-Union grocery store, is opening across the street from us this next week."
The outline forecast a reduction in sales at Respondent's store in the amount of 30 to 40% over
the first couple of weeks after the opening. The outline states, "For some employees, this has
meant that they will be laid off, for others it means that they will have reduced hours. However,
the Company has stayed within its rights and obligations to our employees under the collective
bargaining agreement." The outline states at item 4 that, "We have told the Union about this
upcoming opening for months and how it will affect sales and our employees, but it appears that
they have not communicated these issues to you. You should discuss your contract questions
with your Union representative."
Holtz testified that on around September 13, 14, and 15, he notified 17 Store 15
employees that they were being reduced from full-time to part-time status. In fact, during this
period, Respondent reduced 19 employees from full-time to part-time status.6 Holtz testified he
and Braunreiter met with 17 of the 19 employees in Holtz' office one at a time to notify them.
Holtz testified the other two employees were on leave at the time. Holtz testified no union
representative was present when he notified the employees of their change of status, and Holtz
did not inform anyone from the Union that he was going to be speaking with the employees.
Holtz testified he posted the work schedule to employees on September 15 containing the 19
employee reductions to part-time. The work schedule went into effect on September 18. At the
time he posted the schedule on September 15, Holtz knew the Festival store was going to open
on September 16. Holtz attended the Festival store opening on that date.
Holtz testified Store 15 suffered loss of sales the first week Festival was open. Holtz
testified he thought it was a 5% decrease for the first week as Festival was only open to
Thursday, Friday and Saturday that week. Holtz testified he anticipated a 15% sales decrease.
He testified he knew they came a little higher the first couple of weeks and a little lower the next
few and averaged a 13% decrease the first six weeks Festival was open. In fact, Respondent
submitted a chart comparing on a weekly basis sales between 2010 and 2011. The chart
showed the following for 2011: for the week ending September 17 a plus 1.37%; week ending
September 24 a minus 16.17%; for the week ending October 1 a minus 16.37%; for the week
ending October 8 a minus 2.30%; for the week ending October 15, a minus 11.19%; for the

6 On September 17, Holtz signed off on 19 "employee status notifications," with the
comment, "Work Force Adjustments because of changes in the Market," which converted the 19
named employees from full-time to part-time status.
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week ending October 22 a minus 9.96%; and for the week ending October 29 a minus 8.41%.
Thus, the average loss from the prior year for the first six full weeks that the Festival store was
open was 10.73 percent of sales per week.
Withers testified the Respondent gave the Union no notice or opportunity to bargain
concerning the reduction of the 19 employees from full-time to part-time.7 Withers testified he
first learned Respondent had reduced employees from full-time to part-time on Wednesday,
September 14 when he received a phone call from employee Pat Gruenke, a cashier, at around
4:30 to 5 p.m. Gruenke stated she had been notified she was going to be reduced from full-time
to part-time. Withers told Gruenke the schedule comes out tomorrow and there is a contractual
provision that the Union has 24 hours to file a grievance over the schedule after it issues.
Withers told Gruenke to call Withers on September 15 after she saw the schedule. Withers
spoke to Gruenke again on Thursday morning, September 15. Withers did not recall if Gruenke
had seen a draft of the schedule but she now informed him there were 10 or 15 employees
being reduced from full-time to part-time. Withers testified he was at Respondent's Menasha
store on September 15. Withers told Gruenke that either Withers or someone from the Union
would be at the Sheboygan store on September 16.8
On September 15, Zenisek sent a letter by e-mail and regular mail to Eiden. Holtz
testified that, at the direction of Zenisek, on September 15, Holtz posted a copy of the letter on a
bulletin board in the employee break room at Store 15.9 The letters states:

7 Zenisek testified it was not her decision to make the September reductions. Zenisek
testified that on Thursday, September 15 she was informed of the schedule changes that were
being put into place at Store 15. Zenisek testified the schedule posted on September 15, was
for the period Sunday, September 18 to Saturday, September 24. Zenisek testified she did not
inform the Union the schedule changes were going to be made before they were made. She
testified she did not know whether anyone else from Respondent told the Union. Zenisek
testified she stated in her pre-hearing affidavit concerning the reductions that, "The Company is
allowed to make changes to the schedule because of the management rights clause, which is in
Section 1.1 in the Clerk's Agreement. The management rights clause is in Section 1.10 of the
Meat Agreement." Zenisek testified she also stated in the affidavit that "because the contract
allows us to make changes, I did not think I was required to announce changes to the Union."
Zenisek stated in the affidavit that, because the right is reserved to Respondent under the
contract to make the changes, they did not need to notify the Union and bargain. Zenisek
testified she did not mention any other contractual provisions in her affidavit for the reasons that
Respondent had the right to make the reduction in status changes.
8 Withers testified that Sheboygan is an hour or more away from Menasha. Withers testified
he was at the Menasha store because on September 12 Respondent had distributed their last
best offer to the bargaining unit and simultaneously served it on the Union and the employees
there were very irritated. Withers testified he went to Menasha to talk to the members. Withers
testified he was at the Menasha store on September 15 from 8:30 a.m. until around 1:30 or 2:00
p.m. Withers testified he was negotiating contracts at Racine/Kenosha and the Menasha stores
at the time. Withers testified that all of the contracts with Respondent expired in 2011. Withers
testified that bargaining began for the stores on around January 10 beginning in Menasha and
continued through the last bargaining session which was Sheboygan on November 15, 2011.
9 Zenisek testified she wrote the September 15 letter due to her frustrations. She testified
negotiations were scheduled for September 12, but the Union did not show up. Zenisek testified
she knew from the past months there was a lot of back and forth, they were not meeting, and
they needed to meet. Zenisek testified she was concerned about the employees jobs and she
Continued
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As you may or may not know, the Company was forced to reduce the hours of some
employees at Store #15 in Sheboygan today in anticipation of the opening of a nearby
Festival Foods Store. The reduction in hours is required because it is anticipated that
the Festival Foods Store will absorb a sizable portion of Piggly Wiggly's sales in that
region.
Understandably, the affected employees were concerned about their reduction in
hours and reached out to the Union to voice their questions and concerns.
Unfortunately, Grant Withers informed the employees that he did not have the time to
address their concerns. Needless to say, employees were incredibly upset to hear that
the Union was too busy to help them.
Frankly, the Company is concerned with the Union's lack of support for our employees.
Rather than leaving the employees hung out to dry, the Company will be holding an
informational meeting for employees to address their questions and concerns.
If you have any further questions, please do not hesitate to call me directly.10
On Thursday, September 15, Holtz posted the schedule at Store 15 for the following
week. The schedule was the first schedule where the 19 employees were reduced to part time
status. Holtz testified schedules for the meat department are posted no later than noon on
Thursdays and schedules for the balance of the store are posted no later than 4:00 p.m. on
Thursdays.
On September 16, at 8:23 a.m., Holtz sent an e-mail to Haller. The subject of the e-mail
was, "Effected people". The e-mail named Tina Meinhardt, Dave Meinhardt, Laura Hoffman,
Shantel Edler, Kim Fisher, Laurie Hoppert, Tammy Edler, Pat Grunke, Tanya Weisfeld, Robin
Schubert, Lauriel Hanson, Sue Fliss, Brenda Thede, and Andy Sommersberger as being
converted from full-time to part-time, and who had been talked to about the conversion. It
stated that Jeff Gross, Kelly Haak, and Debbie Gerdes were also converted from full-time to
part-time status, but they were not talked to about the conversion as they were on vacation. Of
those listed, Thede and Sommersberger were listed in the Meat/Fish department on the
schedule for the week ending September 24, and I have concluded that unlike the other
employees who were covered by the clerks collective-bargaining agreement, Thede and
Sommersberger were covered by the meat department agreement.
Withers went to Store 15 on September 16. During his time at the store, Withers went to
the break room where he saw Zenisek's September 15 letter to Eiden posted on both the
Employer and Union bulletin boards. Withers testified the Employer's bulletin board is locked
with glass. Withers testified that on September 16, he was in the break room for a while before
he went up and spoke to Holtz at around 10 a.m. Withers testified he went to the front of the
store where Holtz' office is located. Present were Withers, Braunreiter, Holtz, and Haller.
Withers testified that, during the meeting, he requested from Holtz the list of employees who
_________________________
knew the competition was going to hurt Respondent. Zenisek testified she knew Withers was in
Menasha on September 15, and she learned from Holtz that Withers was not going to Store 15
on September 15. Zenisek testified she felt the Union needed to be there for the employees.
Yet, Zenisek testified Withers was never given any notice of when Festival was going to open by
Respondent, or any advance notice as to why he should be at Store 15 on September 15 by
Respondent.
10 Withers testified he first saw Zenisek's September 15 letter around 6 p.m. on September
15. Withers testified the letter was the first information he received from Respondent
concerning the reductions.
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had been reduced from full-time to part-time. He testified no one responded to his request.
Withers testified he then went to the break room. Withers testified Holtz came to the break
room around 30 to 45 minutes later and stated Zenisek said Withers should put his information
request in writing. Holtz confirmed that Withers asked Holtz for the names of the employees
affected by the reductions and that Holtz told Withers that he needed to put his request in
writing. Holtz testified it is Respondent's policy to require the Union to make all information
requests in writing.
On September 16, Withers filed with Holtz typed grievances on behalf employees
Hansen, Fischer, Shantel Edler, Tammy Edler, Dave Meinhardt, Tina Meinhardt, Gross, Gerdes,
Weisfeld, Haack, Schubert, Rowden, Hoffman, Fliss, Hoppert, Gruenke, Sommersberger, and
Thede. Each grievance cited the named employee and referenced "other similarly affected
employees." The grievances for all named employees except Sommersberger and Thede
alleged that the "Employer has violated Article II Seniority, Sections 3.1, 3.12, 3.3, 3.4.3, 3.5,
3.5.1, 3.5.2, 3.5.3, 4.5 and other articles of the Agreement. Concerning Sommersberger and
Thede the grievances alleged that the "Employer has violated Article VII Seniority, Sections 7.1,
7.8 and other Articles of the Agreement." Zenisek responded to the grievances by letters to
Withers sent on September 18 by e-mail and mail asserting for each that there was no contract
violation, and Holtz would be contacting Withers on September 19 to discuss a meeting
concerning the grievances.
On September 19, Eiden sent Zenisek a letter referencing the grievances filed on behalf
of the 18 named employees. In the letter, Eiden requested information from Respondent for
preparation for the grievance meetings, including item 3, which read, "3. Predicted store sales
total and by department for the previous twenty four (24) month period broken down on a
weekly basis."11 Eiden went on to state:
In your letter to me dated September 15, 2011, which the Company posted on the
Union bulletin board and the Company bulletin board on the same date, amid your
baseless and false claims, you mentioned that you will have a meeting with the
employees. Grant Withers spoke with Piggly Wiggly employees on September 14. All of
our phone conversations with our members are confidential, so I am not going to
elaborate on the content of those calls except to say that our members are deeply
disturbed by Piggly Wiggly's actions that reduce their hours and take-home pay. Piggly
Wiggly is solely responsible for the reduction in hours, the pay of its employees, their
health insurance, and pension benefits. Your assertion of concern for your employees in
your letter of September 15 is laughable. Your accusation that the Union does not
support our members is simply untrue. Paul Butera is destroying the lives of the people
who work for him. The Union will continue to fight Mr. Butera's attempts to drive his
workers into poverty.
The Union requests to be present at any meeting the Employer schedules with the

11 Withers testified he drafted the information request items in Eiden's September 19 letter.
Withers testified the Union requested the information because in Zenisek's September 15 letter,
she stated they made the decision to reduce some of the employees' hours based on an
anticipated reductions in sales from the opening of the Festival store. Withers testified the
Union made this request based on that statement. He testified he was hoping to determine the
anticipated impact on Store 15. The information was requested in preparation for the grievance
meetings. Pertaining to the Union's request for projected sales information, Holtz testified
Respondent only had made 4 weeks of sales projections for the weeks ending September 17,
24, and October 1, and 8.
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employees to prevent the Employer from committing any further violations of the
National Labor Relations Act. The Union requests that you provide the information
requested above as soon as possible, but not later than Friday, September 23, 2011.
Also, the Union requested verbally on September 16, 2011, a complete list of all
employees that were reduced in hours from full-time status. While the Union is not
required to meet your demand to put this request in writing, here it is. Please provide
this list within twenty four (24) hours as well as telephone contact information for each
employee.
Withers testified that the parties met on September 21 at Store 15 to discuss the
grievances over the reductions from full-time to part-time. Present for the Union were Withers
and Ridderbush; and for Respondent were Zenisek, Braunreiter, and Holtz. The employees
attended their individual meetings. Withers testified that as they went through the day they dealt
with each grievant. The meetings began at 9 a.m. and ended at around 6 p.m. Withers testified
Gruenke's was the first grievance discussed and she was present for the meeting. Withers
testified he started out by asking Respondent how they came to the decision to reduce full-time
employees to part-time. He testified Braunreiter did most of the talking for Respondent.
Withers testified it was stated that Braunreiter and Holtz used sales forecasts and comparisons
with the Howard store in the Green Bay area where a Festival store had come into competition
with one of their stores. Withers testified they used the sales impact of that store to draw a
correlation to the Sheboygan store. It was stated that they were stores of like volume and they
had a forecast of the sales decline of 30%.12 Braunreiter and Holtz said they got together and
drafted schedules. They stated these were the optimum schedules to address the customers'
needs and needs of Store 15. Withers asked Zenisek when the last time was that Respondent
had made an adjustment. Zenisek said they had adjusted the business needs in May 2010.
Withers testified this was after Store 31 merged with Store 15 in January or February 2010.
Withers testified Respondent's officials gave the union representatives the components that
went into their forecasting. Withers asked them how they were doing in terms of sales at one
point in the meeting and Braunreiter said they were down 32% from what their normal week's
sales were. Withers testified Respondent tracked sales on a daily basis. Withers testified they
met on a Wednesday so from Sunday through Wednesday, for that four day period, he was told
Respondent was down 32% from what they would normally do in a week. Withers testified he
thought Festival opened on September 16 or 17. The employees were reduced to part-time on
the schedule posted on September 15, for the week running September 18 to September 24.
Withers testified that, during the September 21 meetings, he asked Respondent's officials what
contractual provision they relied on in making their decision to reduce employees to part-time
status, and Zenisek said article 1.11, which is management rights. Withers asked if there was
any other provision and Zenisek said no.
On September 22, Withers filed a grievance on behalf of employee Abraham Gerharz
over his reduction from full-time to part-time status. He testified Gerharz was not discussed
during the September 21 grievance meetings because the Union did not know about his
reduction at the time. Withers testified he did not get Gerharz' name until he received the
answer to the Union's information request on September 22. On September 22, Zenisek sent a
letter to Withers denying the Gerharz grievance. Withers testified there was a separate first
step meeting concerning Gerharz' grievance.

12 Similarly, Zenisek testified in her pre-hearing affidavit that Braunreiter stated, during the
meeting, he was expecting to see a 30% sales decline at Store 15 as a result of Festival's
opening. (G.C. Exh. 32(d), p. 6).
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On September 22, Zenisek sent a letter to Eiden by e-mail and regular mail. The subject
line of the letter was in bold stating: "Sheboygan Stores-Need for UFCW Support". In the letter
Zenisek stated:
I am in receipt of your September 19, 2011 letter. In your letter, you state that "Piggly
Wiggly is solely responsible for the reduction in hours…." Shame on you! It is true that
the Company has the right under the contract to reduce hours, but the Union is in part to
blame for causing the Company's need to reduce hours. Since January, the Company
has warned the Union time and again that nonunion Festival Foods stores were going to
compete for Piggly Wiggly business, especially in Sheboygan.13 We have asked the
Union why it is not organizing the non-union stores to create a level playing field. Also,
why is the Union not picketing or hand billing the non-union stores telling the potential
customers to not favor the nonunion store and to shop at the Union represented Piggly
Wiggly store? I do not understand why the Union is not doing something to support the
Store and our Union employees' jobs.
Even when faced with a reduction of Union employees' hours because of non-union
grocery business, the Union continues to insult Piggly Wiggly by saying "Paul Butera is
destroying the lives of the people who work for him" and "the Union will continue to fight
Mr. Butera's attempts to drive his workers into poverty." Again, shame on you! To truly
support our employees like you claim, the Union should work with Piggly Wiggly and
take action against our non-union competition rather than blaming and insulting us. The
time is now for the Union to do its job by fighting the non-union Festival Foods and
supporting unionized Piggly Wiggly stores!
If you have any further questions or would like to discuss how to begin supporting
Piggy Wiggly and its Union employees, please do not hesitate to call me directly.
Holtz testified he posted Zenisek's September 22 letter at Store 15 in the employee
break room on the same bulletin board where he posted the September 15 letter. Holtz testified
there are three bulletin boards. He testified one is a locking bulletin board where the Company
posts things, and Holtz thought that was where he posted the letters, stating, "I don't specifically
remember." Hoppert, at the time of her testimony, was working for Respondent in the office.
Hoppert testified she saw both Zenisek's September 15 and 22 letters posted on the bulletin
board at Store 15, behind the locked glass where employees schedules are posted. Hoppert
credibly testified, "I believe they are still up at this time," stating she saw them posted the day
before her testimony which took place on February 22, 2012. Similarly, David Meinhardt
testified the last time he saw the letters posted was on February 21, 2012. Tina Meinhardt
testified she first saw Zenisek's September 15 letter to Eiden on September 15 in the break
room posted on the unlocked bulletin board. Tina Meinhardt testified she thought she saw the
September 22 letter still posted in November at the time she left Respondent's employ.14
Zenisek sent Eiden a letter on September 22 by e-mail and regular mail responding to

13 Withers testified that while the Union officials were told by Respondent on January 7, that
a Festival store was planning to come to Sheboygan, they were only told this once, not "time
and again" as depicted in Zenisek's letter.
14 Holtz testified the letters were not still posted on the day of his testimony which was
February 22, 2012, but he could not recall when they were taken down. Holtz testified, "I would
say they were up no longer than a week a piece." I find Holtz testimony on the length of time
the letters were posted to be purposely vague. I have credited the testimony of the employees
that the letters posted on their issuance date and remained posted as of the unfair labor practice
trial in this case.
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Eiden's written information request dated September 19. Zenisek stated in the letter that
Respondent does not have information pertaining to the Union's request for "Projected store
sales total and by department for the previous twenty four (24) month period broken down on a
weekly basis." As to the Union's requested for a complete list of employees reduced from full-
time to part-time, and their phone numbers, Zenisek sent the Union a list of 19 names, without
their phone numbers. Zenisek stated the Union was already in possession of their phone
numbers because all employees were required to complete a union membership application
which contained their phone numbers. She also stated Respondent also provides a monthly list
of new employees with their phone numbers. Withers testified he did not believe Zenisek's
response that Respondent did not maintain the requested information on projected store sales
because Holtz and Braunreiter stated during the September 21 grievance meetings that they
had used the forecast to determine the effect that Festival was going to have on Store 15 in
determining to reduce the employees to part-time status. As to the Union's request for the
phone numbers of the 19 employees, Withers testified employees fill at their union membership
applications when they are hired. Withers testified the reduced employees had a range of 7 to
32 years of service and it was likely the Union did not have their current phone numbers.
On September 27, Withers sent Zenisek a five item information request marked hand
delivered pertaining to the reduction in status grievances. Withers' information request read, in
pertinent part, as follows:
During the course of our grievance meetings on Wednesday, September 21, 2011 the
Company maintained that the projected sales forecast and subsequent reduction in full-
time positions for Store #15 were formulated through review of other stores with similar
sales and/or competition from Festival Foods entering the market place.
As such, the Union requests the following information:
1. Total store sales for each Piggly Wiggly store for a period of twelve (12) months
preceding the opening of a Festival Foods store and the twelve (12) months proceeding
the opening of a Festival Foods store, within a 3.5 mile radius (the distance between
Store #15 and the new Festival Foods Store in Sheboygan) of the Piggly Wiggly stores;
broken down on a weekly basis.
* * *
3. The work schedules for each department of each store identified in #1 above for the
twelve (12) months preceding and proceeding the opening of a Festival Foods store.
4. The number of full-time positions reduced or eliminated when Walmart Supercenters
opened on Sheboygan's south side.
* * *
The Union requests this information be provided on or before October 5, 2011.
Please contact the undersigned if you have any questions.15
On October 5, Zenisek responded by e-mail to Withers September 27 information
request as follows in relation to request 3 and 4:

15 Withers testified he made this request because of the issues raised in grievance meetings
on September 21 by Respondent's officials. Withers testified that, at that time, Respondent's
officials made a comparison with Store 15, and the prior opening of a Festival store in close
proximity to Respondent's Howard store as the reason they were projecting a 30% decline in
sales at Store 15. As to item 4, Withers testified that during Haack's grievance meeting on
September 21, Respondent said they had a history in reference to Walmart's opening of how it
affected their store and that was one of the considerations they used to judge the impact of
Festival's opening.
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3. Your request does not make sense. Please explain what you mean by "proceeding."
After you have clarified what you are looking for, we will make available to you a portal to
obtain the schedules for Sheboygan, for each Department, for the past twelve months.
Information on establishing the portal will be forwarded to you separately.
4. We have no information responsive to your request.
Withers testified he never clarified to Zenisek what the word "proceeding" meant in his
request for information. Withers testified "I think if you don't know the meaning of it you can look
in any dictionary and figure that out." As to Item 4, Withers testified he was not satisfied with
Respondent's response. He testified they stated in the Haack grievance meeting that they had
their history from Walmart Supercenter coming to town, so if they had that history on September
21, Withers did not understand how they lost it by October 5.
There was a meeting on November 8 at Store 15 with a federal mediator concerning the
reduction in status grievances. Withers testified when he arrived at Store 15 for the meeting, he
saw signs on the store's front doors stating they were accepting applications for part-time
employees. Withers testified that, upon entering the store on November 8, Withers saw people
from outside cashier classifications working up front, that stockers were bagging, and doing
utility clerk work. Withers testified they were working outside their classifications. Withers saw
the same thing when he came to the store for the September 21 grievance meetings.
Present for the November 8 mediation session were mediator Don Maki, Withers,
Prickett, Zenisek, Braunreiter, Holtz, with the grievants attending when their grievance was
discussed. The meeting lasted until around 6 p.m. Withers' notes show the first discussion
involved grievant Gerharz. Withers, upon review of his notes, testified that during this particular
discussion, Zenisek explained to the mediator that Respondent was exercising their rights under
1.10 of the of the management rights provision of the meat unit contract; and 1.11 under the
clerk's agreement when Respondent reduced the employees to part-time status. Withers
testified when grievant Thede, a meat wrapper, came in she brought in a note to Withers
indicating meat cutters had worked outside their classification, in fact in her classification.
Withers testified that during Thedes' meeting, Withers requested copies of Respondent's
surveillance videos for all departments back to September 17. Withers testified he requested
this because it was obvious to him employees were working outside their classifications all over
the store because Respondent was short staffed. Withers testified Zenisek responded to
Withers' information request by stating he would have to put it in writing and sign a
confidentiality agreement. Withers told Zenisek he was not putting it in writing that she had his
information request. Withers told Zenisek that he would not sign a confidentiality agreement.
Withers testified Zenisek did not say why Respondent needed a confidentiality agreement, and
Withers did not ask for Respondent's reasoning.
On November 11, Zenisek sent Withers a letter by e-mail, which read:
During our mediation meeting on November 8, 2011, you requested store number 15's
video footage for a period of time. Also, you stated you would not put this request in
writing and you insisted I make these recordings available to you. Despite your refusal,
we will make the video footage watched at the store after we receive a signed
Confidentiality Agreement. Furthermore, our camera system has a limited amount of
recording days so the full extent of the requested information may not be available if you
do not respond in a timely manner.
As to your request for information, we request that the Union provide a statement as to
the reason the requested information is necessary in the administration of
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employee/Union rights under the Collective Bargaining Agreement along with a signed
Confidentiality Agreement. If you have any questions, please do not hesitate to contract
me directly.
I have attached a draft of a Confidentiality Agreement. If you have another format for a
Confidentiality Agreement which you prefer but which meets our needs and concerns,
please forward it to me for consideration.
Withers responded to Zenisek by letter dated November 11, stating as follows:
I have received your letter of November 11 regarding the Union's request for the video
tapes of employee activities for the period 9/17/2011 forward. You stated that Piggly
Wiggly required the Union to put its request in writing and to agree to the confidentiality
agreement you sent me.
The Union will now clarify its request for information.
The Union demands the video tapes of Store 15 of employee activities for the period
9/17/2011 forward in order to represent members of the bargaining unit for purposes of
collective bargaining regarding wages, hours, and terms and conditions of employment.
The Union needs the information to evaluate whether unit employees were being rotated
to different jobs in order to cover up Piggly Wiggly's unilateral reductions of
approximately 20 full time employees to part-time status.
Piggly Wiggly has provided no reason for the confidentiality agreement. The Union
therefore will sign no such agreement. The Union notes that the exact same information
has been provided multiple times in the past without any need for discussion regarding a
confidentiality agreement.
Because Piggly Wiggly refused to provide this information, the Union will file an unfair
labor practice charge with the National Labor Relations Board seeking an order of the
Board directing that Piggly Wiggly provide the video tapes to the Union.
Because the Union will file an unfair labor practice charge with the NLRB regarding the
refusal to provide the information, the Union demands that Piggly Wiggly immediately
place a "litigation hold" on the information; that is, the Union demands that Piggly Wiggly
preserve from destruction all tape, electronic, or other surveillance recordings made at
Store 15 for the period September 17, 2011, to date.
Zenisek testified that on November 15 she attended a bargaining session in Sheboygan
the subject of which was to negotiate a new contract for Store 15. Zenisek testified the meeting
was attended by Eiden, Withers, Sweet, Prickett, the mediator, Simandl, Frost and Zenisek.
Zenisek testified Sweet started off the session by making comments regarding the status quo
that is full-time to part-time. She testified the meeting only lasted a couple of hours because the
Union had no employee negotiating committee. Zenisek testified there has not been any more
bargaining sessions regarding Store 15. Zenisek testified the Union was unwilling to meet with
Respondent regarding Sheboygan. Zenisek testified she did not know if the reason the Union
was refusing to meet was because of the unfair labor practice charges. However, Zenisek
admitted seeing a January 30, 2012 letter from Withers to Braunreiter in which Withers stated,
"As you know, the Union has continued to demand a return of the status quo ante, that is, the
condition that existed before the slashing of 19 bargaining unit employees' status from full to
part-time in September 2011. Such a return is being sought by the General Counsel of the
NLRB in a trial scheduled to commence on February 22, 2012. Until Piggly Wiggly restores the
status quo ante that existed in September 2011, good faith bargaining for a successor collective
bargaining agreement is not possible."
On December 22, Respondent Attorney Simandl wrote Union attorney Sweet as follows:
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After further review of the requested video footage for store number 15 with the
National Labor Relations Board, we will no longer require a signed confidentiality
agreement in order for the Union to view the requested information. As the file size of
the information requested is far too large to send (i.e., multiple terabytes of information)
and would also require days to convert to a file format viewable from an outside
computer, the Company is willing to allow the Union to view all of the requested security
footage at the corporate office at a mutually convenient time.
Please contact me to set up a convenient time to view the requested information.
Withers testified some video footage has been provided to the Union and Prickett has
been over to Respondent to view it. Withers testified the footage provided covered the period 2
weeks prior to November 8 through November 8. Withers testified the Union requested video
footage back dating back to September 17, and through the date of his letter. In this regard, he
testified, "I think the letter said through this date." Withers stated it is his understanding that
Respondent never said the video dating back to September 17 did not exist. Upon reviewing,
his November 11 letter, Withers then testified to the extent he demanded videotapes forward of
November 11 that he thought he expanded his request. He testified the request changed over
time. Withers testified in his initial verbal request during the November 8 meeting, he requested
videos back to September 17, and in his November 11 written request he requested videos
going forward past November 11. He testified that the written request was to review all tapes
from September 17 to today referring to the day he was testifying.
Zenisek testified there are 32 cameras at Store 15. The cameras are motion sensitive in
terms of their recording. There is a separate film from each camera. Zenisek testified that
following the reduction of people from full-time to part time, Zenisek contacted the director of
loss prevention and asked him to start saving the film onto a hard drive pertaining to the Union's
information request. Zenisek testified the store system only retains 19 days of video so if they
go to the next day, one day drops off. Zenisek testified it was astronomical in terms of
gigabytes to make copies of the recordings for the Union on a disk. The director of loss
prevention person said it would be best to do it on a hard drive.
A. The testimony and evidence pertaining to individual employees
who were reduced from full-time to part-time status effective September 18
1. Laura Hoffman
Hoffman was working for Festival as a shift manager at the time of her testimony. She
had been working there since October 2011. Hoffman had previously worked for Respondent
from November 1989 until October 2011. Hoffman worked for Respondent at Store 15 for about
six years. As of September 1, Hoffman's position at Store 15 was liquor manager and manager
on duty (MOD). Hoffman worked as a full-time employee for 40 hours a week until she was
reduced to a part-time employee on the September 15 schedule for work beginning on
September 18.
Hoffman testified she learned she was being reduced to part-time on or around
September 15 when she was called into Holtz' office with Holtz and Braunreiter in attendance.
Holtz stated because of the competition with Festival coming to town they expected a decrease
in sales and they were cutting labor. Holtz said Hoffman was one of the people being cut. Holtz
said Hoffman would have insurance until the end of November and her part-time status would
start on Sunday. Prior to her reduction from full-time, Hoffman was earning $15.45 an hour.
She received health insurance, vacation, holidays, retirement, and personal days. Hoffman
testified she received a time and a half shift differential as full-time when she worked on
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Sundays and she was scheduled to work every Sunday. Hoffman testified she lost the shift
differential when she was reduced to part-time.16
Hoffman attended a grievance meeting pertaining to her reduction to part-time status on
September 21. Present along with Hoffman were Withers, Ridderbush, Zenisek, Braunreiter,
and Holtz. Hoffman testified they discussed seniority with the possibility of her bumping into
another 40 hour full time position. She was asked if she wanted to work 40 hours and said she
did. Hoffman testified that during the grievance meeting there was a discussion about her
bumping Tammy Edler and Terri Hansen. Hoffman credibly testified she did not refuse to bump
anyone. Hoffman testified nothing was resolved at the grievance meeting because there were
other people Respondent needed to meet with that had more seniority than Hoffman. Hoffman
denied refusing a full-time position during the meeting. Hoffman testified by the end of the
meeting she had not been put back to a 40 hour position.17
Hoffman's credited testimony reveals that, prior to her September reduction to part-time
status at Respondent, Hoffman had applied for a job with Festival in June 2011 when she heard
they were coming to the area. Hoffman had a job interview at that time and met with Mike
Weiss, the eventual store director at Festival's Sheboygan store. Hoffman received an offer of
employment from Festival in July 2011. Hoffman did not accept the offer. The store had not
opened at the time Hoffman received the offer. Hoffman testified she turned down the Festival
offer at the time because of the years she had with Respondent and her benefits there.
Hoffman's testimony reveals that on September 23, Hoffman went to Festival and spoke to
Weiss. Hoffman asked Weiss if he heard what happened at Respondent. Weiss said he had
heard and Hoffman should keep Festival in mind because there was still a position for her.
Hoffman returned to see Weiss on September 27, and accepted a job offer from Festival.
Hoffman's work schedules reveal she was scheduled to work 40 hours during the week
ending September 17, dividing her time between the grocery and liquor departments, and she
was listed on the schedule as a full-time employee. For the week ending September 24,
Hoffman was listed as part-time and scheduled to work 25 hours all in the grocery department.
Hoffman's payroll records show her pay was reduced from $15.45 an hour to $14.95 an hour
during this pay period. Hoffman testified she was not scheduled to work at Respondent during
the week of September 26 because she was on vacation.18 Hoffman credibly testified she went

16 The parties stipulated that according to the contract, full-time employees receive: health
insurance for themselves and their families, paid vacation, paid personal days, pay for jury duty,
retirement contributions, and shift differentials for working on Sundays. They also received
overtime by working a sixth day, and those benefits were either reduced or eliminated when
they were reduced to part-time status. Their health insurance ended eight weeks after they
started to work part-time. The other reductions or limitations in benefits took place immediately
when they started working the part-time schedule.
17 I found Hoffman to be a credible witness with good recall. Zenisek, contrary to Hoffman,
testified Hoffman was offered a full-time position during the September 21 grievance meeting.
In this regard Zenisek testified in response to a somewhat leading question in reference to
Hoffman, "Yes, she was, and before she left she accepted." Zenisek testified that Hoffman was
offered a full-time position of CSM backup. I have credited Hoffman over Zenisek that on
September 21 the possibility of a full-time position was discussed but not offered to Hoffman.
Hoffman's testified about her situation with clear detail, while Zenisek's provided little detail and I
do not find her claim worthy of belief.
18 Hoffman's testimony is verified by her payroll records which show she was on vacation for
the week ending October 1, for 40 hours, and she was only compensated for that week at the
Continued
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to Store 15 on September 29 to shop. When she entered the store, a checker told Hoffman that
she had made the cut and was on the office schedule now. Hoffman looked at the posted
schedule and saw she was in training in the office as a full-time position. Hoffman had
previously worked in the office as a desk person, but this was a customer service manager
assistant which was a different position. Hoffman testified that no one from Respondent
contacted her to inform her that she had moved back to full-time. Hoffman testified learned she
had been returned to full-time at Respondent after she accepted the position at Festival.
Hoffman testified she notified Holtz and Braunreiter in person on October 1 that she had
accepted another position. Hoffman told them she was giving her three weeks notice. She told
them she was on the schedule for 40 hours, that she would work 40 hours, and then she had
two weeks vacation. Hoffman testified they asked for something in writing. Hoffman's payroll
records for the pay period ending October 8 show she worked 40 hours that week at the hourly
rate of $14.95 an hour. Hoffman's payroll records show she earned 40 hours vacation pay for
the week ending October 15, and 7 hours vacation pay for the week ending October 22, all at
the rate of $14.95 an hour. Hoffman began working for Festival in October 2011.
Hoffman testified she left Respondent because she was reduced in hours and benefits,
and she needed full-time work. She testified she was not scheduled to work full-time at
Respondent until after she accepted the job at Festival. While at Respondent when she was
reduced to part time, Hoffman was told her health insurance would remain in effect until the
beginning of December. She testified that she did not lose her health insurance while working
for Respondent. Hoffman testified she did work part-time at Respondent for one week after she
was reduced to part time and then she went on vacation.
Hoffman testified that on the evening of January 5, 2012, she received a phone call from
Brian, who she thought was the son or son in law of Paul Butera, Respondent's owner. Brian
said Paul Butera would like to talk to Hoffman. Brian gave Hoffman a phone number for Paul
Butera and asked Hoffman to call him the next day. Hoffman called Paul Butera, left a
message, and he returned her call. Paul Butera said he would like to talk to Hoffman and she
was to call Gary Suokko on Monday, January 9, 2012, to set up an appointment. Hoffman
called Suokko and set up the appointment to meet with Paul Butera.
Hoffman met with Respondent's officials Paul Butera, Judy Butera, and Suokko on
January 13, 2012 at Respondent's corporate office in Sheboygan. During the conversation,
Paul Butera stated the liquor department was not doing so well at Store 15, that he was not
worried about the store that it was down 3%, but the liquor department took a little bigger hit,
and Paul Butera wanted to offer Hoffman a job. He told her she would be doing a lot of what
she had been doing that she would be in charge of ordering, the displays, the pricing, and the
scheduling of the liquor department. Paul Butera told her she could work up to as many hours
as necessary initially to get it going, and then only up to 45 hours a week. Paul Butera told
Hoffman that she was being offered $15 an hour, and 2 weeks vacation. Hoffman asked if it
would be a union position, and Judy Butera stated, "At this time, yes." Hoffman said she would
consider it and get back to them. Hoffman later notified Respondent that she declined the offer.
Hoffman testified that, prior to her reduction to part time, she was earning $15.45 an
hour, that she worked 40 hours a week, and she received time and one half overtime every
Sunday because it was her day to close. Hoffman testified that other than that she very seldom
received overtime. Hoffman was receiving 4 weeks of vacation and three personal holidays.
Hoffman testified the offer Paul Butera made was half the vacation and less pay. Hoffman
_________________________
rate of $14.95 an hour.
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testified her responsibilities would have changed under Butera's offer because she would have
had to schedule people to cover the liquor registers and she had never done that before.
Hoffman testified she declined the offer because she was afraid she would be reduced again.
Hoffman testified she had health insurance at Festival at the time of her testimony. She testified
she went without insurance for a period of time, during her early employment at Festival.
2. Tina Meinhardt
Tina Meinhardt began working for Respondent on October 11, 1993, and she ceased
working for Respondent on November 5, 2011. Tina Meinhardt worked at Store 15 as a stocker
and she filled in for the assistant manager as a manager on duty (MOD). Tina Meinhardt acted
as an MOD a couple of times a month, but she was paid an extra $.50 an hour for all the hours
she worked because she served as an MOD. Tina Meinhardt's husband Dave Meinhardt
currently works for Respondent. When Tina Meinhardt stopped working for Respondent in
November 2011, she was on part-time status. Tina Meinhardt and her husband were reduced
to part-time status on the September 15 schedule.
Tina Meinhardt was notified she was being reduced to part-time status in September.
The conversation was in Holtz' office, with Braunreiter present. Holtz told Tina Meinhardt she
was being reduced to part-time. Holtz asked her is she carried health insurance, and Tina
Meinhardt said she and her husband each carried insurance. Holtz told Tina Meinhardt she
would have insurance until the end of November. Tina Meinhardt testified that at no point was
she offered her full-time hours back. Tina Meinhardt testified she stopped working for
Respondent in November 2011 because when she became part-time she lost her benefits
including medical, dental, manager on duty pay, and premium pay for Sundays.
3. Lauriel Hansen
Hansen testified she began working for Respondent on June 15, 1999 and her
employment ended on September 30, 2011. Hansen most recently worked at Store 15 as a deli
clerk. At the time Hansen stopped working for Respondent she was scheduled on average 25
hours a week of work, which was a part-time position. Hansen was reduced from full-time to
part-time in mid-September. Hansen was notified of the decision on September 15 by Holtz and
Braunreiter. Holtz told Hansen she would have health insurance through November. Hansen
testified she was never offered her full-time hours back. Hansen testified she stopped working
for Respondent because of the reduction in hours and loss of benefits. Hansen testified she
always had health insurance through her husband's employment. Hansen's husband was not
employed at Store 15. Thus, Hansen did not suffer a loss of health insurance when she
became part-time. However she did lose 15 hours of work a week
4. Jeffrey Gross
Gross testified he had worked for Respondent for 23 years and his last day of
employment was November 12. Gross was working at Store 15 at the time his employment
ended as a stocking clerk and MOD. Gross received an extra $.50 an hour because of his MOD
status. Gross testified that at the time he stopped working for Respondent he was scheduled
for 25 hours a week and was considered part-time. Gross was reduced from full-time to part-
time in September. Gross testified he lost his contractual benefits and MOD pay due to his
reduction to part-time status. He testified after he was reduced to part-time Respondent never
offered him full-time hours. Gross testified he left Respondent's employ because he wanted
health insurance. At the time of the hearing, Gross was working for another company. He
testified he applied for that job at the end of October. Gross testified he is working full-time
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there, that he has health insurance which cost him more than what he had paid at Respondent.
Gross testified he is earning just under a dollar an hour more at his new employer than he
earned at Respondent.
5. Laurie Hoppert
Hoppert was employed by Respondent at Store 15 at the time of her testimony. She
testified she had worked for Respondent for about 32 years and at Store 15 for about 3 years.
Hoppert had previously worked for Respondent in Sheboygan at Store 31. When Hoppert
transferred from Store 31 to Store 15 she maintained her seniority. Hoppert testified she works
in the office at Store 15 as a cashier. Hoppert's sister Cindy Quasius works for Respondent at
Store 15 as a full-time cashier.
At the time of her testimony, Hoppert was working on average 40 hours a week in the
office in a full-time position. She had worked part-time for a period when her hours were
reduced on September 18. On September 14, Holtz notified Hoppert she was being moved to
part-time on the September 15 schedule. Hoppert testified she had insurance through
Respondent while she was full-time. Hoppert testified when she became part-time she was told
she would be covered by the insurance through November. Hoppert went from working 40
hours the week ending September 17 to 20 hours the week ending September 24.
Hoppert attended a grievance meeting on September 21 concerning her reduction from
full-time to part-time status. Hoppert testified Respondent looked to see where Hoppert could
bump to full-time, and they said she could take the cashier's hours for Quasius. Hoppert said
she would not because Quasius was her sister. Hoppert testified Quasius is a single parent and
she needed the insurance. Hoppert testified they asked her if she wanted Terri Hansen's full-
time position in the office. Hoppert testified Hansen was pregnant at the time. Hoppert testified
she declined. Hoppert testified the meeting ended and nothing was accomplished. Hoppert
testified Respondent offered her two full-time positions but she did not want to replace those
individuals. Hoppert testified it was because they would lose health insurance that she did not
want to take their jobs. Hoppert had health insurance available through her husband.
Withers was present for the grievance discussion concerning Hoppert on September 21.
Withers testified they discussed Hoppert' opportunities for bumping a less senior employee.
Withers testified that according to Respondent, Hoppert would have the opportunity to bump
either Quasius or Hansen. Withers testified Hoppert said she did not want to bump Quasius
who is Hoppert's sister and Hansen was pregnant. Hoppert said she was going to think about it
at the end of the session. Withers testified Hoppert asked if she would be able to collect
unemployment and Zenisek said, "No, not since you filed a grievance." Withers then testified
Hoppert asked if Zenisek would contest her unemployment. He testified Zenisek said, "Well,
you filed a grievance." Then the following exchange occurred during Wither's testimony:
THE WITNESS: She asked if --she asked Mary if she was going to contest the
Unemployment.
JUDGE FINE: Mary who?
THE WITNESS: Mary Zenisek. And Mary said, "Well, you filed a grievance," meaning--
MR. ANDREWS: Objection as to what it--
JUDGE FINE: That was all she said, correct?
THE WITNESS: That's all I --
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JUDGE FINE: She didn't directly say she was going to contest it, did she?
THE WITNESS: No.19
Withers testified that on September 23 he called Zenisek. He testified he asked Zenisek
if she was going to contest Hoppert's unemployment. Zenisek said you guys filed a grievance.
Zenisek said they offered a full-time position meaning her sister or Hansen's position. Withers
testified Zenisek's remarks were to the effect that, "If you guys hadn't filed the grievance, there
wouldn't be a problem." Withers testified he informed Hoppert about the conversation he had
with Zenisek.20
Hoppert testified that a couple of days after the September 21 grievance meeting, Holtz
told Hoppert Respondent wanted it in writing that she did not want to take Quasius' hours.
Hoppert refused to sign anything at that time. Hoppert called Withers the same day she met
with Holtz and told Withers of her conversation with Holtz. Withers told Hoppert he would help
her write a response. Withers emailed her a letter, which Hoppert signed and gave to Holtz. It
is dated September 28. Hoppert stated in the letter to Holtz that, "While I relinquish my right to
bump my sister Cindy Quasius from her full time position, I do not relinquish my right to pursue
my grievance relative to maintaining my full time status." Hoppert stated in the letter that:
The Company's attempt to force me to withdraw my grievance or force me to use my
right to bump my sister is a false choice. My choice is for the Company to schedule
employees by seniority as they have in the past.
I will not put in writing that I refuse a full time position only so the Company can deny
my entitlement to unemployment or my right to file a grievance.
If you have any future correspondence or concerns, please contact my Union
Representative.
On October 3, Withers sent an e-mail to Zenisek in an effort to set up grievance
mediation meetings concerning the reduction to part-time grievances. As part of the chain of e-
mails that followed, Zenisek informed Withers on October 3 that:
Laurie Hoppert should not be on that list going to mediation. If she is on the list, we will
follow the contract and put her on the FT cashier schedule since she is able to bump by
seniority as we stated in the grievance meeting. Remember, she chose to remain PT
and has stated that to us. If you need me to put her in the FT position after she said she

19 Withers testified you can apply for unemployment if you are reduced to working part time
in Wisconsin. The above conversation was not alleged to have violated the Act in the
complaint. The conversation as reported by Withers was not corroborated by Hoppert, who
testified concerning a subsequent meeting that Respondent's officials stated they would contest
her unemployment because she refused the offer of a full-time position. Withers testimony
appears somewhat vague as to the incident.
20 The complaint in Case 30-CA-67117 paragraph 17 alleges this conversation to be
violative Section 8(a)(1) of the Act. I do not find it rises to the level of a violation. First, while
Withers testified Zenisek mentioned Hoppert filed a grievance in response to his question
concerning whether Respondent was going to contest Hoppert's request for unemployment, he
also testified Zenisek stated Hoppert had refused a full-time position. While Withers testified he
reported the conversation to Hoppert, he never testified exactly what he told her, nor did
Hoppert corroborate his testimony. Rather, Hoppert testified she understood Respondent was
going to contest her unemployment because she refused a full-time position. Accordingly,
paragraph 17 of the complaint is dismissed.
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did not want it, let me know. Once again, Laurie Hoppert said she didn't want either FT
position she has seniority to pull.21
In a follow up e-mail dated October 3, Zenisek stated to Withers, "Just a reminder: Arbitration is
not available to the Union due to the expiration of the contract. Please schedule the mediation
on November 8."
Hoppert testified she attended a second meeting concerning her grievance on
November 8. In attendance were a mediator, Zenisek, Braunreiter, Holtz, Withers, Pricket, and
Hoppert. Hoppert testified that during the meeting, Respondent said they " would refuse
unemployment for me, and I believe they said yes, because I did refuse hours that were offered
me." Hoppert testified following a leading question that it was possible this was also discussed
at the September 21 meeting stating, "I am not clear on that." When asked if during the
grievance meeting if anyone told Hoppert that she had to drop her grievance or she would be
forced to bump her sister, Hoppert testified, "I don't believe they said forced that I recall. I don't
remember." Hoppert testified that no one offered her a deal that if she dropped her grievance
she would not have to bump her sister.
Hoppert testified she never lost her health insurance through Respondent as she
became full-time in November following the second grievance meeting. Hoppert testified it just
happened that she became full-time. Hoppert testified her sister called and told Hoppert she
was back on the schedule to be in the office full-time. Hoppert testified she did not bump
anyone. Hoppert's payroll records show she worked full-time beginning the week ending
November 5. Hoppert received 40 hours vacation pay for the prior week. While she did not
lose her health insurance, Hoppert testified she lost some other benefits when she was part-
time. While part-time, Hoppert worked less than 40 hours a week so her earnings were
reduced. Hoppert testified there were no holidays during the period she worked part time, but
vacation for the following year is based on hours worked.
Zenisek testified that Hoppert was offered full-time employment during the September 21
grievance meeting. Zenisek testified she was offered two positions, the CSM backup position,
which Zenisek testified she had the right to bump into according to the contract. Zenisek
testified Hoppert also the right to bump into the cashier area. Zenisek testified she did not know
Hoppert had a sister until Hoppert announced it during the grievance meeting. Zenisek testified
the situation developed regarding Hoppert having to potentially bump her sister was pursuant to
the seniority clause of the collective bargaining agreement. Zenisek testified Respondent's
payroll department never received anything from the state stating Hoppert filed for
unemployment.

21 The complaint in Case 30-CA-67117 alleges in paragraph 18 that this statement by
Zenisek was violative of the Act in that it threatened to force an employee to bump her sister if
the Union pursued the grievance on her behalf. However, I do not find the Acting General
Counsel has established that the e-mail standing alone served to restrain or coerce employees.
First, the e-mail was to a union official, and there was no evidence that Withers disclosed the
contents of the e-mail to Hoppert. Rather, the Union and Respondent processed Hoppert's
grievance along with the others to the next step of the grievance procedure during a meeting
held on November 8. Hoppert failed to testify that during the meeting she was told if she
continued with the grievance she would have to bump her sister. In fact, although she
continued with the grievance she was not forced to bump her sister, but was subsequently
offered full-time employment. Accordingly, paragraph 18 of the complaint is dismissed.
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6. Robin Schubert
Schubert works for Respondent in Store 15. She began working for Respondent on
March 30, 2004. She is a baker in the bakery department, a position she has held for almost 8
years. Schubert was reduced from full-time to part-time in September. She was notified of the
reduction by Holtz and Braunreiter. Holtz told her she would have insurance through the end of
November. Schubert asked if it would be possible if someone else was willing to give up their
full-time to allow Schubert to keep full-time status. They asked who, and Schubert replied
bakery employee Debbie Gerdes. Holtz said they would look into it because Gerdes was on
vacation. Schubert was then listed as part-time on the September 15 schedule.
Withers testified about the discussion at September 21 grievance meeting regarding
Schubert's reduction in status grievance. Withers testified Schubert wanted to know why they
were being reduced on such short notice, since they found out on Wednesday or Thursday, they
were going to be reduced the following week. Schubert said she was on 9 pills a day and was
concerned about her health insurance. Withers testified Zenisek stated Withers and Eiden were
told in a meeting in January that this was going to happen. Withers stated that was not true. He
testified Zenisek responded, "Yeah, we told you when we had the meeting at the corporate
office." Withers replied that it never was discussed that people were going to be reduced from
full-time to part-time. Zenisek then said, "Oh, no, you are right, it was that other meeting."
Withers stated to Zenisek that they did not have another meeting at the corporate office.22
Withers testified Schubert stated Respondent had not done this when Walmart opened. Withers
testified a Walmart Super Center had previously opened about a mile away from Store 15
around 2006. Withers testified when the Walmart opened there were no reductions from full
time to part time. Rather, there were reductions in hours from the least senior employees.
Withers testified part-time employees lost hours, but not full-time.
Schubert also testified about the September 21 grievance meeting. Schubert testified
she stated Paul Butera wanted the employees to be loyal to him, and look what he did to us.
Schubert stated he gave them three days notice before bumping them from full-time to part-
time. Schubert said he could have given them two weeks notice to get their financial affairs in
order. Zenisek stated they had talked to the Union a year before that, and Withers said no they
had not. Zenisek said well then department heads should have talked to their employees.
Schubert stated that Denise Perl had talked to them a couple of weeks prior to the reductions
and said there might be reductions. She testified Perl said that if they were reduced down to
part-time, the part-time employees would be affected before the full-time and that did not
happen. Schubert said, during the grievance meeting, that when the Super Walmart had
opened a few years ago, customers went to check out the new store, but the majority of them
came back. Schubert stated it was going to be the same with Festival, and Festival had not
even opened yet so how could they know how it was going to affect the business. Schubert
attended another grievance meeting in November. Schubert testified nothing was resolved at
that meeting concerning her part-time status.
At the time of her testimony, Schubert was working full time because the cake decorator
quit, and one of the other full-time employees became the cake decorator. Schubert testified

22 The consolidated complaint alleges this statement by Zenisek violated Section 8(a)(1) of
the Act. However, I do find it rose to the level of a violation, particularly since Schubert
confirmed that immediately during the course of the conversation Zenisek backed down from
the remark. Accordingly, the allegation in the complaint in case 30-CA-67117, paragraph 16(b)
is dismissed.
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that Debbie Gerdes let Schubert step up to full time. Gerdes had been bumped down to part-
time also, and she was next in line by seniority to obtain the full time position. However, Gerdes
allowed Schubert to bump up to full time because Schubert needed the insurance, and Gerdes'
husband had a job with insurance. Schubert's payroll records show she returned to full-time
during the week ending November 12.
7. David Meinhardt
David Meinhardt has been working for Respondent for 23 years. He works at Store 15.
David Meinhardt's wife Tina Meinhardt is a former employee of Store 15. David Meinhardt's
current position is part-time stocker. David Meinhardt reports to Holtz or Dawn Winkelhorst, the
store assistant manager. David Meinhardt was reduced from full-time to part-time status on the
September 15 schedule. While he was full-time, David Meinhardt also had the position of
manager on duty (MOD), for which he received a shift premium of $.50 an hour for all hours
worked. Tina Meinhardt was also reduced from full-time to part-time in mid-September
David Meinhardt was informed he was being reduced to part-time on September 15 by
Holtz and Braunreiter. During the conversation, Holtz stated that Holtz had already spoken to
Tina Meinhardt, and that now Tina Meinhardt and David Meinhardt were part-time employees.
David Meinhardt testified he looked at Holtz and said, "Thank you very much." David Meinhardt
said after 23 years of service are you kidding me? David Meinhardt said, "Thanks for throwing
my little girl to the street." Holtz told David Meinhardt that he was losing his health insurance as
of November 30. David Meinhardt testified he lost his shift premium when he became part-time.
David Meinhardt testified he is still part time at the time of his testimony and he has lost his
health insurance. David Meinhardt testified he and his wife applied for Badger Care, a state
subsidized program, which provides health insurance to a point. David Meinhardt testified Tina
Meinhardt quit her employment at Respondent. David Meinhardt testified he was involved in his
wife's decision to quit. David Meinhardt testified that either he was going to quit or his wife was
going to quit because they were not meeting their bills and they both lost their benefits. David
Meinhardt testified his wife was the one that quit.
B. Respondent changes it call in attendance policy on September 17
Respondent's "Restated Attendance and Discipline Policy Effective April 1, 2011,"
states, in pertinent part:
Of course, sometimes personal or family illness or injury prevents an employee from
working when scheduled or being on time. In these cases, employees unable to meet
their schedule are asked to provide a minimum of four (4) hours notice to the person in
charge of the store, if possible.
* * *
Employees unable to meet their schedule due to personal or family illness or injury are
asked to provide a minimum of four (4) hours notice to the person in charge of the store,
if possible.
The policy states, "In each occurrence. Piggly Wiggly will consider the scope of the absence,
past work history and the particular circumstances surrounding the absence when documenting
the employee record." The policy states "If an employee does not notify the store in a timely
fashion that they will not be able to work their scheduled shift, this will be considered a 'no call
no show'". The policy states "No Call No Show Without Good Cause" for the first occurrence
results in a "WL and a 2-Day Suspension w/o Pay". It states "Corrective action may be altered
for good cause."
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The prior attendance policy was contained in Respondent's employee handbook
effective May 2009. It also contains the statement, "Of course, sometimes personal or family
illness or injury prevents an employee from working when scheduled or being on time. In these
cases, employees unable to meet their schedule are asked to provide a minimum of four (4)
hours notice to the person in charge of the store, if possible." It states, "Unfortunately, disregard
for the work schedule through excessive tardiness and/or absences will be cause for
progressive discipline up to and including suspension and/or employment termination."
David Meinhardt testified that in the fall of 2010, he called in around noon, about an hour
and one half to two hours before the start of his scheduled shift. Meinhardt talked to assistant
manager Winkelhorst. Meinhardt told her he was sick and was not coming in, and she said
okay. Meinhardt did not receive any discipline or warning for that incident. Meinhardt testified
that in March 2011, he called in 20 minutes before the start of his shift and spoke to Holtz.
Meinhardt told Holtz that Meinhardt's father was having emergency surgery and Meinhardt
would not be to work. Holtz said take care of it. Meinhardt did not receive any discipline or
warning for failing to call in 4 hours before the start of his shift.
Employee Hansen testified that while working for Respondent she called in one time in
February 2011. Hansen was scheduled to work 6:00 a.m. to 2:30 p.m. that day. She testified
she called in after 6:00 a.m. stating she could not come in to work because there was a
snowstorm. Hansen testified she called into a fellow employee at the service desk. She was
not disciplined for the incident. Hansen testified she did not show up. Holtz testified there was
a blizzard during February 2011. Holtz testified there were around 10 employees that did not
make it into work. He testified those employees did not receive discipline for not coming into
work during the blizzard. When asked why, Holtz testified "I don't have a good answer for that."
On September 17, two days after Holtz notified him that he and his wife were being
reduced to part-time status, David Meinhardt was scheduled to work the 2 to 10:30 p.m. shift.
Meinhardt testified this was his last full-time shift prior to his reduction to part-time. Meinhardt
called in sick an hour before the start of the shift due to a migraine headache. Meinhardt spoke
to Winkelhorst stating he had a migraine. Winkelhorst said okay and hung up the phone.
Meinhardt returned to work on September 18, which was the first day he worked a part-time
schedule. On September 18, Winkelhorst told Meinhardt he was going to work at frozen food
that day. Meinhardt went to the freezer in the back room, but then Holtz called him to the office.
Meinhardt reported to the office and Winkelhorst was already there. Holtz handed Meinhardt a
warning letter and suspension dated September 17. Holtz told Meinhardt that he did not follow
the company policy on September 17 of giving 4 hours notice so it is a no-call/no-show, and
Meinhardt gets an automatic 2 day suspension. Meinhardt said 23 years of service and now he
was being suspended, that Meinhardt had never been suspended. Holtz said that was the
company policy. Meinhardt asked Holtz if before himself if anyone had a suspension for this
conduct, and Holtz said a few. Meinhardt said, "Yeah, right." Then he left.
On September 23, Union Representative Prickett filed a grievance over Meinhart's 2 day
suspension asserting Respondent violated Article 1, Section 1.11 and other unnamed provisions
of the collective-bargaining agreement. Zenisek responded by letter dated September 25
asserting there was no contract violation. There was a grievance meeting over the suspension
on September 27 at Store 15. Present were Braunreiter, Holtz, Prickett and Meinhardt. Prickett
testified the meeting began by her telling Braunreiter the Union's position was a no-call/no-show
meant an employee did not call in to work and did not show up for work. Braunreiter then
referenced Respondent's April 1 policy statement pertaining to the no-call/no-show portion of
the policy and said employees have to call in timely and he flipped back to the 4 hour language
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and said employees are required to call in 4 hours before the start of their shift. Prickett testified
Meinhardt stated the policy contained the language "if possible." Prickett stated to Braunreiter
the policy says employees are asked to call in 4 hours in advance, if possible. She stated that
often times it is not possible or even reasonable to expect that somebody can call in 4 hours
ahead of time. Prickett stated, as an example, Meinhardt had a migraine headache and felt he
would take a nap to see if it would go away which sometimes worked for him. When Meinhardt
woke up he still had the migraine headache so he called in sick to work. Prickett gave another
example of why an employee could not always call in 4 hours in advance. She then stated it is
not reasonable to expect if an employee worked at 6 a.m. that they would set their alarm clock
before 2 a.m. to wake up and see if they felt okay and then go back to bed. Prickett testified
Braunreiter reiterated they have to call in timely and they were required to call in 4 hours before
the start of the shift. Meinhardt testified they debated what "if possible" meant. He testified
Braunreiter kept saying, "Well, four hours."
Prickett testified that, following Meinhardt's discipline, she became aware three other
employees had been disciplined in the same manner as Meinhardt. Prickett stated at the
September 27 meeting it was her understanding there were now more employees disciplined.
She testified Holtz responded yes six last week and two this week. Prickett stated the Union
would be grieving them also. She testified that, during the meeting, Meinhardt pointed out there
were a couple of instances when his father was ill and he called in with less than four hours
notice and was never disciplined. Braunreiter responded according to our policy and past
practice that is the way it is. Prickett stated it was a past practice of two weeks. She testified
Holtz stated he had been doing it this way ever since he came to the store and he assumed
whoever was there before him did it the same way. Prickett told Holtz this was not true and she
requested information regarding all disciplines issued for violations of the attendance policy.
Prickett asked Holtz how he tracked the occurrences. Holtz stated whoever takes the call is
supposed to write it down. Prickett testified, at that point, she made an information request for
all disciplines related to violations of the attendance policy, and all documentation regarding
people calling in or the tracking sick calls. Prickett testified that prior to Meinhardt being issued
the September discipline, she was not aware of any other employees disciplined at Store 15 for
failing to call in at least 4 hours prior to the start of the shift.
On September 29, Prickett filed a grievance on behalf of three additional named
employees and "other similarly affected employees" who had received a 2 day suspension for a
violation of the no call no show policy. The three employees named in the grievance are: Taylor
Gruenke, Margaryta Cherkasova, and Tammy Hahn. Prickett also made an information request
in the letter. She testified it was the same information she requested during this September 27
meeting. Prickett testified when she made the request during the September 27 meeting, she
could not recall if Holtz and Braunreiter asked her to put it in writing or if it was almost as they
were saying it, she stated, "I will put it in writing." Prickett testified Respondent had been
requiring the Union to make its information requests in writing. The information Prickett
requested in the September 27 letter included the following:
1.) Copies of the attendance records for all employees for the past 24 months.
2.) Copies of any disciplines issued to any employees that called in absent to work within
the past 24 months.
3.) Copies of all documents used by the Employer to record employees calling in absent
or tardy for work (Date, time, etc.) for the past 24 months.
On October 4, Zenisek filed responses to the grievances on behalf of the three named
individuals, asserting that the grievance on behalf of Hahn was untimely since the event giving
rise to the grievance took place on September 18, and therefore the grievance was filed past
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the contractual limit of 7 calendar days. On October 5, Zenisek provided a written response to
Prickett's September 27 request for information. Zenisek stated:
As to your request for information, we request that the Union provide a statement as to
the reason the requested information is necessary in the administration of the
employee/Union rights under the Collective Bargaining Agreement. It is clear that your
dispute arises from the April 1, 2011 restatement of the Attendance Policy of the
Company, any dispute over which the Union has not timely grieved. Be that as it may,
please provide the Company with direction as to the need for this information. The
Company will then be in a position to further evaluate its compliance obligations under
the law and the Collective Bargaining Agreement.
Further, as the information sought by the Union is not separately maintained
information, if the information request of the Union is appropriate, we invite you to
schedule a time to come to the corporate office to review the employment records of the
employees of concern. Copies of information which you may desire will be provided to
you at our regular charge for copying. I look forward to your response to this letter. If
you have any questions, please do not hesitate to contact me directly.
Prickett testified there was a meeting concerning the Gruenke, Cherkasova, and Hahn
grievances on October 13. Present were Prickett and Holtz. During the meeting, Prickett
explained to Holtz why the Union considered the grievance on behalf of Hahn to be timely.
Prickett stated as far as the timeliness issue, because the policy was from 2008, it was the
Union's position that Respondent had changed the policy when they changed the way they were
implementing it, and that was what the Union was grieving. The grievance had asked them to
cease and desist and it was the Union's view that the grievance covered all affected employees.
Prickett stated it was the Union's position they would not have to continue to file grievances on
each individual. Prickett testified she stated the grievance covered everyone going forward as
long as Respondent implemented that way. Prickett stated, as far as the information she had
requested, it was necessary for her to have the information to process the grievance. Holtz
stated he would talk to Zenisek and she would take care of it. Prickett testified that, at the time
of her testimony, she had not received the requested information.
On November 7, Prickett wrote Zenisek pertaining to the Gruenke, Cherkasova, Hahn,
and "all other similarly affected employees" grievances. Prickett stated the Union requested to
proceed to grievance mediation under Article VII, Section 7.1.2(c) of the contract. Prickett
stated the Union has not received the information requested in the September 29 grievance
letter, that the Union again requests this information be forwarded to the Union as it is relevant
and necessary for the Union to process the grievance. Prickett suggested November 9 as the
date for the mediation, since the mediator was already scheduled to hear a grievance on the
same issue on that date. Prickett testified the grievances for Meinhardt and the other three
named individuals were taken to mediation, but Respondent refused to arbitrate them because
the contract has expired. Prickett testified the grievances are just out there and she thought
they were part of the unfair labor practice hearing.
Holtz testified he issued a September 17 discipline to Meinhardt for violating the call in
policy. Meinhardt was given a 2 day suspension for calling in at 1:05 p.m. to not report to work
for his 2 p.m. shift. Holtz testified when Meinhardt called in he spoke to Winkelhorst, who was
Holtz' assistant. Holtz testified the first step in the process is whoever takes the call fills a sheet,
which is then submitted to Holtz. Holtz testified when he gave Meinhardt the discipline,
Meinhardt explained to Holtz that he had a migraine headache as the reason he could not come
in. The September 17 write up and suspension to Meinhardt, signed by Holtz states a call was
taken at 1 p.m. for a 2 to 10:30 p.m. shift, which was a violation of the call in policy and because
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of the time of the call in relation to the shift start up time it was considered a no call no show.
The warning contained an attachment stating the reason was a headache, noting the call was
received at 1:05, that the absence was not expected in advance, and it was marked considered
by supervisor as excused. The attachment was filled out by Winkelhorst. However, Holtz
testified it is his position that employees are to provide 4 hours of notice if they are not coming
to work, regardless of the reason.
The record contained a list of individuals who were disciplined for failing to follow
Respondent's 4 hour call in policy. The list contained five individuals who were disciplined prior
to Meinhart's September 17 suspension. Patti Toston was the first to be disciplined, and her
discipline was dated May 11. The list shows she called in 11 minutes after her shift was to
begin. The actual discipline to Toston is dated May 13. The discipline, signed by Holtz, states
this was not the first time this has happened, but it was the first time it was documented. In fact,
Holtz testified Toston's absence came under the Family Medical Leave Act (FMLA) and her May
11 discipline was rescinded. The list showed that three of five individuals who were disciplined
prior to Meinhardt failed to call in at all and were shown as terminated or job abandoned. The
fourth, Jerry Yang is shown on the list as having called in an hour before the start of his shift
and receiving a two day suspension. However, Yang's actual written warning dated May 16
signed by Holtz shows that Yang did not call in. Holtz could only list one person, prior to David
Meinhart, who called in within the four hour period, that is less than four hours, who was
deemed a no call no show. Holtz named Toston, but admitted her discipline was rescinded
because she was covered by the FMLA.
C. Analysis
1. The duty to bargaining concerning the September 18 reduction of
19 full-time employees to part-time status
In NLRB v. Katz, 369 US 736, 743 (1962), the Court stated, "We hold that an employer's
unilateral change in conditions of employment under negotiation is similarly a violation of s 8(a)
(5), for it is a circumvention of the duty to negotiate which frustrates the objectives of section
8(a)(5) much as does a flat refusal. In Comau, Inc., 357 NLRB No. 185, slip op. at 3-4 (2012), it
was stated:
As to the second and third factors, we find that the nature of the violation was such
that it was likely to have a detrimental and lasting effect on employees and to cause
employee disaffection from the Union. The Respondent's unilateral change in healthcare
substantially affected all, or nearly all, unit employees and it directly impacted their
compensation. In this regard, the employees went from paying no health insurance
premium to hundreds of dollars every month in some cases.[FN9] It follows that such a
change would undermine the employees' confidence in the Union as their collective-
bargaining representative. Priority One Services, 331 NLRB 1527, 1527 (2000) (finding
that 9.5 % increase in health insurance premiums had a tendency to cause erosion of
union support, and thus tainted decertification effort, because the change “substantially
affect[s] all unit employees and directly impact[s] employee compensation, one of the
fundamental subjects concerning which employers must bargain pursuant to Section
8(d) of the Act.”); Penn Tank Lines, Inc., 336 NLRB 1066, 1067-1068 (2001) (finding that
unilateral reduction in waiting-time and lost-time pay had a tendency to undermine
employees' confidence in the union and to cause erosion of union support); Powell
Electrical Mfg. Co., 287 NLRB 969, 976 (1987), enfd. as modified 906 F.2d 1007, 1014
(5th Cir. 1990) (unilateral implementation of contract offer without valid impasse
contributed to employee disaffection and tainted petition on which withdrawal of
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recognition was predicated); Page Litho, Inc., 311 NLRB 881 (1993) (“It is well settled
that the real harm in an employer's unilateral implementation of terms and conditions of
employment is to the Union's status as bargaining representative, in effect undermining
the Union in the eyes of the employees.” (citing NLRB v. C&C Plywood Corp., 385 U.S.
421, 430 fn. 15 (1967)). Further, as the Board found in Penn Tank Lines, supra, “[w]here
unlawful employer conduct shows employees that their union is irrelevant in preserving
… their wages, the possibility of a detrimental or long-lasting effect on employee support
for the union is clear.” Id. at 1067.
Similarly, in Camelot Terrace, 357 NLRB No. 161, slip op. at 4 (2011), it was stated
that,"Unilateral changes concerning wages, hours, benefits, and other important terms and
conditions of employment, as well as direct dealings with unit employees, … would predictably
undermine both the Union's leverage in bargaining and its support among employees." In Palm
Beach Metro Transportation, LLC, 357 NLRB No. 26 (2011), the Board found the respondent
violated Section 8(a)(1) and (5) of the Act by unilaterally reducing the number of hours and days
of work of unit employees.
In Carpenters Local 1031, 321 NLRB 30, 31 (1966), the Board, in finding the respondent
violated Section 8(a)(1) and (5) of the Act, stated it is well established, with limited exceptions,
that the decision to lay off employees is a mandatory subject of bargaining; and the hours and
days of the week which employees shall be required to work are subjects well within the realm
of 'wages, hours, and other terms and conditions of employment' about which employers and
unions must bargain. The Board noted in finding a violation of the Act that, after voluntarily
recognizing the Union as its employees' bargaining representative, the respondent laid off one
employee, changed the hours of another, and then laid him off without prior notice to or
bargaining with the union. The Board went on to state:
We disavow the judge's statement in his decision that the “unconscionable delay in
commencing bargaining [for a collective-bargaining agreement] was not the fault of the
employer, but much more attributable to the dereliction of the Union.” Such a conclusion
is unsupportable from the record evidence, and, in any event, any delay in scheduling
the first negotiating session between the parties was not an issue in this case. id at 33,
fn. 323

23 In the present case, on June 27, Eiden sent Paul Butera contract reopener letters for the
clerks and meat cutters contracts pertaining to the Store 15 collective-bargaining units. The
letters asked Butera to contact Eiden as soon as possible with the earliest dates available to
begin negotiations. On July 25, Simandl sent Sweet a letter stating the Sheboygan contracts
were set to expire on September 7, and Simandl requested dates when the Union was available
to bargain. There were no meetings set for Store 15 contract negotiations prior to the
September 15 reduction in status of the employees at issue here. On the other hand, Withers
testimony reveals the Union had been participating in negotiations with Respondent concerning
the Racine/Kenosha and Menasha stores, and as Respondent was aware, Withers was at the
Menasha store on September 15 pertaining to those negotiations. There is no contention by
Respondent that the Union abandoned the Sheboygan unit, nor any support for such a
contention if made. I do not find the slow start to negotiations here can be attributable to either
party, as the Respondent took a month to respond to respond to the Union's initial request for
bargaining dates, and even then did not provide the Union with its requested dates. The
evidence reveals that following Respondent's reduction in status of the 19 employees, the Union
took the position that bargaining was blocked at Store 15 until Respondent restored the
employees to their prior positions as full-time employees. I do not find that any of the Union's
Continued
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In Omaha World-Herald, 357 NLRB No. 156, slip op. at 3-4 (2011), it was stated:
Under well settled Board law, “the waiver of a union's right to bargain does not outlive
the contract that contains it, absent some evidence of the parties' intentions to the
contrary.” Ironton Publications, 321 NLRB 1048, 1048 (1996). This principle applies both
to collective-bargaining agreements and to reservation of rights language embodied in
outside plan documents incorporated by reference. See E. I. du Pont De Nemours,
Louisville Works, 355 NLRB No. 176, slip op. at 2 (2010). Because there is no evidence
that the parties intended any relevant provision of the agreement to continue in force
beyond its expiration, any waiver that might be shown by the contract language or plan
documents cited by the Respondent ended when the contract expired. See Paul Mueller
Co., 332 NLRB 312, 313 (2000).[FN13]
In arguing that this change should be found lawful, our dissenting colleague concedes
that well-established precedent dictates otherwise. In the dissent's view, the reservation
of rights language here, standing alone, authorized unilateral action on the Respondent's
part both during the contract term and indefinitely thereafter. However, as the Board
recently reiterated in E.I. DuPont, a reservation of rights clause is not, in itself, a term or
condition of employment that continues in force under Section 8(a)(5) as part of the
status quo. See 355 NLRB No. 176 at 3 fn. 9 (citing Holiday Inn of Victorville, 284 NLRB
916, 916 (1987)). Rather, when incorporated by reference in a collective-bargaining
agreement,[FN14] a reservation of rights clause is a waiver of a union's statutory right to
bargain over such matters and, thus, like any waiver, expires with the contract absent
evidence of a clear and unmistakable intent to the contrary. Holiday Inn, 284 NLRB at
916. No evidence exists in this case to suggest that the parties intended the reservation
of rights language in the 401(k) plan documents to continue post-contract expiration.
In E.I. Dupont de Nemours, 355 NLRB No. 176 slip op. at 1-2 (2010), it was stated:
It is settled law that when parties are engaged in negotiations for a collective-
bargaining agreement an employer is obliged to refrain from making unilateral changes,
absent an impasse in bargaining for the agreement as a whole. (Citations omitted.)
It is undisputed that, at the time that the Respondent unilaterally implemented
changes in the Beneflex Plan, the parties were engaged in bargaining and were not at
impasse. But relying on the Board's Courier-Journal decisions, the Respondent asserts
that its unilateral actions were lawful because they were consistent with the parties' past
practice. The Respondent bears the burden of establishing this affirmative defense.
Beverly Health & Rehabilitation Services, 335 NLRB 635, 636 (2001), enfd. 317 F.3d
316 (D.C. Cir. 2003).
We find that the Respondent has not carried that burden. In the Courier-Journal
cases, a Board majority found that the employer's unilateral changes to employees'
health care premiums during a hiatus period between contracts were lawful because the
employer had established a past practice of making such changes both during periods
when a contract was in effect and during hiatus periods. The Respondent's asserted
past practice in this case, in contrast, was limited to changes that had been made when
a contract, which included the reservation of rights language, was in effect. It is apparent
_________________________
actions justifies Respondent's failure to provide the Union with timely notice and an opportunity
to bargain concerning the 19 employees' September 18 reduction in status.
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that a union's acquiescence to unilateral changes made under the authority of a
controlling management-rights clause has no bearing on whether the union would
acquiesce to additional changes made after that management-rights clause expired. The
Respondent has simply not carried its burden of showing relevant past practice under
the Courier-Journal cases—annual unilateral changes during hiatus periods. As a result,
the Respondent's prior unilateral changes do not establish a past practice justifying the
Respondent's unilateral actions during a hiatus between contracts. The Courier-Journal
decisions are plainly distinguishable on this basis, as the judge explained in a decision
we adopt today in E.I. Dupont, 355 NLRB 177 (2010), presenting a similar bargaining
issue but at a different facility of the Respondent.
This factual distinction is key because it implicates important collective-bargaining
principles. Extending the Courier-Journal decisions to the situation presented here would
conflict with settled law that a management-rights clause does not survive the expiration
of the contract embodying it, absent a clear and unmistakable expression of the parties'
intent to the contrary,[FN1] and does not constitute a term and condition of employment
that the employer must continue following contract expiration.[FN2] Those principles apply
to a broad management-rights clause as well as to more narrow contractual reservations
of managerial discretion addressing, as here, a specific subject of bargaining[FN3] and
embodied in a plan document that has been incorporated in a collective-bargaining
agreement.[FN4]24
Similarly, in Ironton Publications, 321 NLRB 1048, 1048 (1996), the Board refused to
extend a contract provision granting an employer the right to grant merit increases beyond the
term of the contract. The provision was contractual provision pertaining to merit increases with
no contention that it was bound up in a generic management's rights clause of the expired
collective-bargaining agreement. The Board stated, "Even assuming that Article V constituted a
valid waiver of the Union's statutory right to bargain over merit increases, the waiver did not
survive the May 7, 1993 expiration of the contract …". "It is well settled that the waiver of a
union's right to bargain does not outlive the contract that contains it, absent some evidence of
the parties' intentions to the contrary."
In Control Services, 303 NLRB 481, 483-484 (1991), enfd. 975 F.2d 1551 (3rd Cir.
1992), an expired collective-bargaining agreement contained a provision stating that “Nothing

24 Respondent in its brief cites language contained in Bay Area Sealers, 251 NLRB 89, 90
(1980), enfd. as modified on other grounds 665 F.2d 970 (9th Cir. 1982), stating that although
an employer's contractual obligations cease with the expiration of the contract, those terms and
conditions established by the contract and governing the employer-employee relationship, as
opposed to the employer-union relationship survive the contract and present the employer with
a continuing obligation to apply those terms and conditions, unless the employer gives timely
notice of its intention to modify a condition of employment and the union fails to timely request
bargaining, or impasse is reached during bargaining over the proposed change. However in
Indiana & Michigan Elec. Co. 284 NLRB 53, 54-55 (1987), the Board majority refused to follow
the analysis set forth in Bay Area Sealers, supra., referring to it as "dictum" and pointing out that
in its analysis there the Board did not clarify how it would classify various terms and conditions
of employment. In Indiana & Michigan Elec. Co. the Board stated, "Indeed, a court of appeals
has recently rejected an employer's attempt to rely on this very same 'ambiguous dictum' in
support of an argument that an employer may unilaterally change hiring hall procedures after
contract expiration. Southwestern Steel & Supply v. NLRB, 806 F.2d 1111, 1113 (D.C. Cir.
1986)."
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contained in this agreement shall be deemed to constitute a guarantee of any particular number
of hours, or any particular days of work per week for any employee.” The agreement contained
a provision providing for higher hourly wages for full-time than for part-time employees, and a
provision for hospitalization and major medical benefits for “regularly employed full time (40
hours or more per week)” employees, but not for other employees. The agreement also
contained a management rights clause which stated the company had the unqualified right to
schedule hours of employment, or to relieve employees of duties because of lack of work.
However, the Board rejected the respondents arguments that the former contract gave it the
right to reduce employees' hours of work, or that it had the derivative right to convert the
employees from full-time to part-time status, with accompanying wage reductions and loss of
health benefits, without bargaining with the Union. The Board stated, "the Respondent was
legally obligated to bargain with the Union over changes in the employees' working hours (and
the effects of those changes on wage rates and health benefits) unless the Union had waived,
contractually or otherwise, its right to bargain over those subjects. We find no such waiver."
While the contract stated the employees were not guaranteed any particular number of hours of
work per week, the Board held the provision could not be interpreted to mean the involved local
unions waived their statutory right to bargain over changes in the numbers of hours to be
worked by unit employees, at least insofar as such changes would automatically result in a
lowering of wage rates and a loss of medical benefits. The Board stated the contractual
management rights clause only gave the respondent the right to schedule hours, not reduce
them. The Board also held a management rights clause is not a term and condition of
employment that "outlives the contract that contains it, absent some evidence of the parties'
intentions to the contrary. Thus, any waiver of a union's bargaining rights that is bottomed on a
ment rights/ment-rights clause normally is limited to the time the contract is in force."
In Bell Atlantic Corp., 336 NLRB 1076, 1086 (2001), it was stated:
It has long been settled law that an employer that desires to make material changes in
the terms and conditions of employment of its union-represented employees has a duty
under the Act to give timely notice to the union and afford the union a meaningful
opportunity to bargain before implementing the changes. It is also well settled that, upon
receipt of such notice from an employer, a union must act with due diligence to request
bargaining, otherwise it may be found to have waived its right to bargain over the matter.
The Board has held, however, that where notice is given too short a time before
implementation, or under circumstances where it is clear that the employer has no
intention of bargaining about the subject, then a violation will be found even if the Union
has failed to request bargaining. In such cases, the Board has found that the notice is
nothing more than informing the Union of a “fait accompli.” In determining whether an
employer has presented the Union with a “fait accompli,” the Board looks for objective
evidence. (Citations omitted from quote.)
In Brannan Sand and Gravel, 314 NLRB 282 (1994), the Board found the respondent did not
satisfy its obligation to provide the union with timely notice and an opportunity to bargain over a
change in health care rather it presented the change to the union as a fait accompli. In this
regard by the time the union was apprised of the contemplated changes, the respondent had
already announced them to employees. Plus, the respondent’s own witness testified that any
discussion over the health plan changes would have been fruitless because the respondent had
no intentions of doing anything other than what it planned to do. Thus, the Board found the
respondent violated Section 8(a)(5) by unilaterally implementing the health care changes.
In the instant case, the parties had two collective-bargaining agreements at the
Sheboygan store each with effective dates of May 7, 2009 to September 7, 2011. One labeled
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the clerks agreement and the other the meat department agreement. All individuals working at
the store were covered by one of the two agreements, with the exception of Store Manager
Holtz. The parties met on January 7, 2011 at Respondent's corporate offices. During the
meeting, Respondent Owner Paul Butera told Union officials Eiden and Withers that competition
was coming to Store 15 in the form of a Festival store opening in Sheboygan. He reported
customer complaints at Store 15 to the Union officials and asked for their help in getting the
employees to better service the customers. Respondent Official Zenisek, who attended the
meeting, testified she did not recall the Union being notified of any planned reductions in staffing
at Store 15 on January 7.
Respondent began to plan for the opening of the Festival store in Sheboygan as early as
July. At that time, Holtz received a note from Bucaro concerning a plan for a competitor coming
to town. On August 26, Holtz sent Braunreiter an e-mail forecasting sales for the period of the
week ending August 27 through the week ending October 15 at Store 15. In the e-mail Holtz
predicted substantial drops in sales for the week endings September 17 through October 15
from 2010 sales covering the same period of time. That same date, Holtz wrote Braunreiter an
e-mail showing a projected drop in labor hours scheduled for the weeks ending September 17
through October 15. Braunreiter responded on August 29, stating that for the weeks ending
September 24 to October 15, he predicted a larger hit in the range of a 16% to 26% drop
informing Holtz that Braunreiter preferred to be on the conservative side in preparing for the
sales loss. In fact, Holtz gave a pre-hearing affidavit on November 25, in which he stated he
and Braunreiter met in early September and made a decision concerning future scheduling at
Store 15 based on an anticipated 30% sales decrease from the current sales compared to the
sales they did in the same week the year before.
While Holtz testified the decision to reduce the full-time to part time employees and the
scheduling of those employees was solely the decision of Braunreiter and Holtz, I do not credit
this testimony. First, it was Bucaro who contacted Holtz in July about a need for a plan for the
coming competition. Bucaro followed up with an e-mail on September 2, sent to Holtz,
Braunreiter, and Zenisek summarizing Bucaro's thoughts pertaining to Festival's opening in two
weeks. Bucaro stated they should anticipate a drop of 15 to 20% from last year's sales, and
instructed that they must make adjustments in scheduling from day 1. He instructed them to
reduce labor costs. He instructed a hiring freeze, and the termination of certain probationary
employees. He informed them that they would likely need to address status reductions. This
was all the more likely in view of Bucaro's instruction to reduce labor costs since full-time
employees received significant benefits unavailable to part-time employees. Thus, on
September 2, Burcaro informed Holtz, Braunreiter, and Zenisek to formulate a plan to begin on
day 1 of Festival's opening, with no mention of their notifying or bargaining with the Union prior
to the plan's implementation. On September 14, a human resource specialist from
Respondent's corporate office sent Holtz an e-mail, copied to Braunreiter and Zenisek, with an
attachment pertaining to frequently asked questions concerning notification to employees for a
reduction from full-time to part-time status. Holtz was also the recipient of a September 16
outline to employees from Respondent's corporate office pertaining to the status reduction,
which predicted a 30 to 40% reduction in sales at Store 15 the first couple of weeks following
Festival's September 16 opening. Thus, I have concluded that Respondent's corporate office
was instrumental in planning the reduction of the employees from full-time to part-time status,
although Holtz and Braunreiter were left to fill in the actual scheduling details pursuant to the
confines of Bucaro's September 2 directive.
Holtz testified that on September 13, 14, and 15, he and Braunreiter notified 17
employees individually in meetings they were being reduced from full-time to part-time status
effective September 18. They were notified their option for health insurance would end at the
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end of November. Their hours were reduced from 40 hours a week to for the most part 25
hours a week, which would cut into their vacation pay, as well as earnings for shift premiums,
among other benefits lost. In all, 19 employees were reduced from full-time to part-time in a
complement of about 118 employees. Two employees who were on leave were not notified at
that time. However, Holtz posted the schedule for the following week on September 15, where
all 19 employees were reduced specifically listing them on the schedule as "PT" signaling to all
employees in the unit their change in status. Holtz testified no union representative was present
when the employees were notified of their change in status and he did not inform anyone from
the Union that he was going to be speaking to the employees. Similarly, Zenisek testified she
did not inform anyone from the Union the schedule changes were going to be made before they
were made. In fact, Zenisek stated in her pre-hearing affidavit that Respondent was allowed to
make the changes pursuant to the management rights clause in section 1.1 of the clerk's
agreement and 1.10 of the meat agreement. Zenisek stated in the affidavit that because the
contract allowed Respondent to make the changes they did not need to notify and bargain with
the Union. Thus, Respondent unilaterally altered 19 employees work schedules and reduced
their hours, earnings, and benefits, including informing them they would lose health insurance
and/or the ability to obtain health insurance coverage through Respondent for themselves and
their families, without first notifying the Union or offering the Union an opportunity to bargain.
The testimony of Respondent's witnesses reveals this was done as a fait accompli obviating the
Union's need to request bargaining over Respondent's actions. See, Bell Atlantic Corp., 336
NLRB 1076, 1086 (2001); and Brannan Sand and Gravel, 314 NLRB 282 (1994).
Therefore, Respondent will be found to have violated Section 8(a)(1) and (5) of the Act
pertaining to its unilateral reductions concerning employees, unless it raises a valid affirmative
defense in support of its conduct. The Respondent bears the burden of establishing this
affirmative defense. Beverly Health & Rehabilitation Services, 335 NLRB 635, 636 (2001), enfd.
in relevant part 317 F.3d 316 (D.C. Cir. 2003). Respondent's reductions to part-time status
affected 17 employees from the clerks unit and 2 employees from the meat department unit at
Store 15. Withers credibly testified that during the initial grievance meeting on September 21
pertaining to the reduction in status grievance Zenisek informed the Union that Respondent was
privileged to make these reductions in status under the aforementioned management rights
clause in each of the collective-bargaining agreements. Both collective-bargaining agreements
contain identical management rights provisions. Withers asked Zenisek if there were any other
provisions, and she replied no. Withers testimony is confirmed by admissions in Zenisek's pre-
hearing affidavit that she thought Respondent did not need to notify and bargain with the Union
over the reductions due to the contractual management rights provisions as well as by her
testimony at the hearing. In fact, on December 5, Respondent attorney Simandl submitted a
position statement to the Regional office wherein he stated, citing the collective-bargaining
agreements management rights provision, that "Prior to the expiration of the collective
bargaining agreement ("CBA"), the Union unequivocally waived its right to bargain over the
Company's right to plan, determine, direct and control store operations and hours". Simandl
went on to state "It is the past practice of unilateral activity under the management-rights clause
of the CBA, and not the existence of the management-rights clause itself, that the Company
relied on in determining that it has the right to unilaterally adjust the Sheboygan schedules
based on the needs of the Company."
However, at the unfair labor practice trial, Respondent's counsel took a different position
as to what enabled Respondent to make the September 15 reductions in status of the
bargaining unit employees. In this regard, the following exchange occurred:
MR. ANDREWS: Correct, Your Honor. And just to correct another point of clarification
here. We are not contending that reliance upon the management rights clause is what
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allowed the Employer to do this. The opinion of certain lay witnesses may have made
reference to the management rights clause in a generic sort of sense that it is the
management's right to do so, but that is not our contention at this time.
JUDGE FINE: What -- is that going to change later or do you mean --
MR. ANDREWS: No, it is not our contention at all, that the management rights clause is
something that would give us the right to do so. We clearly understand that the
management rights clause expires with the collective bargaining agreement.
JUDGE FINE: All right, so you are not saying -- what is your position as to why Article
3.3 would survive the collective bargaining agreement when the management rights
clause does not.?
MR. ANDREWS: Because it is specifically and clearly bargained for, a specific
procedure to be followed, triggered only by particular business needs. And the fact that
the General Counsel's representative argues that that particular business need had not
been met, I think belies the fact that -- that is their concern is that perhaps the trigger
had not been set, and it is exactly right that is -- Your Honor's point -- that it is something
for a grievance or an arbitration to determine whether that trigger had been met, so we
can --
JUDGE FINE: Well, I am not saying that is my point --
MR. ANDREWS: -- we can demonstrate that it can. (Tr. 51-52)
In this regard, Respondent states in its post-hearing brief that, "it is hornbook law that a
collective bargaining agreement remains in effect post expiration except for a limited number of
clauses that expire with the contract, such as the management rights clause and no strike
provisions." (Resp. Brief at 16). Respondent continues to rely on language contained article 3.3
in its post-hearing brief as granting it the post contract expiration right to reduce the employees
status as this is the only contractual provision it cites in is brief in support of its position.
In The Chesapeake and Potomac Telephone Company v. NLRB, 687 F.2d 633, 636-637
(2nd Cir. 1982), the court stated:
However, national labor policy disfavors waivers of statutory rights by unions and thus a
union's intention to waive a right must be clear before a claim of waiver can succeed.
Waivers can occur in any of three ways: by express provision in the collective bargaining
agreement, by the conduct of the parties (including past practices, bargaining history,
and action or inaction), or by a combination of the two. The language of a collective
bargaining agreement will effectuate a waiver only if it is “clear and unmistakable” in
waiving the statutory right. The same standard applies to conduct of the parties; whether
alone or in combination with contractual language, conduct can effectuate a waiver only
if the union's intent to waive is clear and unmistakable from the evidence presented.
(Citations omitted.)
A waiver of a statutory right will not be inferred from a general contractual provision, such an
undertaking must be explicitly stated, and “the waiver must be clear and unmistakable.” See,
Metropolitan Edison Co. v. NLRB, 460 U.S. 693, 708 (1983). "To meet the ‘clear and
unmistakable’ standard, the contract language must be specific, or it must be shown that the
matter claimed to have been waived was fully discussed by the parties and that the party
alleged to have waived its rights consciously yielded its interest in the matter.” Allison Corp., 330
NLRB 1363, 1365 (2000); Georgia Power Co., 325 NLRB 420, 420-421 (1998), enfd. 176 F.3d
494 (11th Cir. 1999); St. Joseph Medical Center, 350 NLRB 808 (2007); and Philadelphia Coca-
Cola Bottling Co., 340 NLRB 349, 353 (2003), enfd. mem. 112 Fed.Appx. 65 (D.C.Cir. 2004).
In Philadelphia Coca-Cola Bottling Co., id. at 353, the following principles were set forth:
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A past practice is defined as an activity that has been “satisfactorily established” by
practice or custom; an “established practice”; an “established condition of employment;”
a “longstanding practice” (citations omitted). Exxon Shipping Co., 291 NLRB 489, 493
(1988); See, also, Golden State Warriors, 334 NLRB 651 (2001) Dow Jones & Co., Inc.,
318 NLRB 574, 578 (1995). Thus, an activity, such as the Respondent's distribution of
bonuses, becomes an established past practice, and hence, a term and condition of
employment, if it occurs with such regularity and frequency, e.g., over an extended
period of time, that employees could reasonably view the bonuses as part of their wage
structure and that they would reasonably be expected to continue. Sykel Enterprises,
324 NLRB 1123 (1997); Blue Circle Cement Co., 319 NLRB 661 (1995); Lamonts
Apparel, Inc., 317 NLRB 286, 287 (1995); Central Maine Morning Sentinel, 295 NLRB
376, 378 (1989); General Telephone Co. of Florida, 144 NLRB 311 (1963); The
American Lubricants Co., 136 NLRB 946 (1962).
In the present case, the only contractual provision Respondent relies on in support of its
otherwise unilateral action is contained in the clerk's contract and reads as follows:
3.3. The Employer will schedule hours of work on a seniority basis. The Employer will
schedule employees who are full-time within the meaning of this Agreement for hours
not below the full-time classification threshold unless:
(i) the employee requests a temporary reduction in hours for two more weeks
and/or
(ii) the Employer makes a permanent reduction in the full-time positions in a
classification based on business needs.
Respondent has cited no provision in the meat department contract although it reduced two
employees there to part-time status on September 18. Thus, Respondent has raised no
contractual defense pertaining to its reduction of meat department employees Sommersberger
and Thede on the September 15 schedule. Moreover, Respondent entered no evidence that
any meat department employees at Store 15 had been reduced from full-time to part-time status
in the past under the most recent collective-bargaining agreement, or during a prior contractual
hiatus. Accordingly, I find Respondent has failed to meet its burden of establishing a defense
as to failure to bargain with the Union concerning reduction to part-time status of
Sommersberger and Thede, and that it violated Section 8(a)(1) and (5) of the Act by reducing
them to part-time status.25

25 Respondent did not cited meat department contract article 7.8 as a basis for its actions
pertaining to the meat department reduction to the Union during the grievance meetings, in its
pre-hearing position statement, at the trial, or in its post-hearing brief. It is clear article 7.8 was
not followed at the time of the reduction as the two meat department employees were not
scheduled to be laid off as required by the article. Rather, I have concluded as admitted in
Zenisek's pre-hearing affidavit that at the time of the layoff Respondent's officials were relying
on the contractual management rights provisions in each of the contracts, and only after the fact
switched to a reliance on article 3.3 in the clerks agreement, when it was concluded that
reliance on the management rights articles did not create a legally sound argument under
Section 8(a)(5) of the Act. Moreover, while Zenisek testified she mentioned seniority to the
Union officials during the grievance meetings over the status reductions, I do not find her
testimony persuasive. I find seniority may have been referenced as to which employees were
selected for reduction, but Respondent, at the time, was relying solely on the contractual
management rights provisions in its decision to reduce employees without bargaining with the
Continued
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As to the reduction of the 17 clerk's department employees, Respondent as of the time
of its brief only relies on clerks agreement provision set forth in article 3.3. Withers testimony
reveals that the term "business needs" appeared for the first time May 2009 to September 2011
agreement, and that it was an employer proposal. Withers testified the parties agreed to the
"business needs" language because it was something that was tangible that they could both
review. Withers testified that present for the meeting when this was discussed were: the federal
mediator, Simandl, Judy Butera, Keonig, and Union officials Eiden and Withers. Withers
testified the issue of Festival Foods was raised by Respondent through the mediator. Withers
testified it was stated that if a Festival store opened up across the street and by example if there
was a 40% reduction that would trigger a reduction in staffing if the Respondent was able to
demonstrate the reductions were necessary relating to the business needs language. Withers
testified this addressed the Union's concerns because they would be able to review the
evidence. Withers testified Respondent had provided the Union with financial records in the
past. Withers testified there was no minimum level of business needs in which Respondent
would not have to provide the Union the evidence. Rather, he testified if they claimed business
needs they would have to demonstrate it to the Union.
I do not find the term business needs as written in article 3.3 gave the Respondent the
unilateral right to reduce employees to part-time. The term as written is ambiguous in that it
does not state business needs as determined by Respondent. Rather, Withers undisputed
testimony reveals that the parties contemplated a discussion between the parties and the
Union's review of Respondent's financial records should Respondent raise the business needs
issue to the Union in terms of a proposed reduction in status. While Withers testified no floor in
terms of business needs was established during the contract negotiations, his undisputed
testimony reveals that further discussion and negotiation between the parties would occur
should Respondent raise the issue during the life of the agreement. Thus, I have concluded
that the contract language standing alone did not provide the Respondent the unilateral right to
reduce employees to part-time status.26 Moreover, even if it did there was no evidence
submitted by Respondent that the parties discussed or agreed that the contract language would
remain in effect following the termination of the agreement. Finally, Respondent has produced
no evidence of an established past practice that would enable it to unilaterally reduce
employees. Rather, Respondent cites only one example where three employees were reduced
from full-time to part-time status in the deli-department in May 2010. The grievance over this
reduction came on the heels of employees from another Sheboygan store bumping into Store
15. The Union's failure to take the reduction to arbitration could have resulted from an
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Union in the first instance.
26 The facts in this case also do not establish that Respondent has established business
needs in support of the reduction of the 17 clerks unit employees. Respondent admits that it
made the reductions based on loss of sales forecasts premised on the opening of the new
Festival store. However, these projections were made before the store even opened. Holtz
testimony and the documentary evidence reveals these forecasts varied greatly between
Bucaro, Braunreiter and Holtz. Moreover, as of the September 21 grievance meeting, Withers
testimony reveals the Union officials were told the reduction of 19 employees was based on a
projected 30% percent loss of sales. Withers testimony is confirmed by admissions in Holtz and
Zenisek's pre-hearing affidavits. In fact, Respondent's records revealed that for the first full 6
weeks following Festival's opening there was only an average of a loss of 10.73 % of sales from
the prior year. As set forth above, regardless of the actual loss of sales, I do not find that
Respondent had the right to act unilaterally in reducing employees in the circumstances
presented here.
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accommodation of placing employees from the other store into Store 15. Regardless, a one
time event does not constitute evidence of a waiver or of an established past practice. See,
Philadelphia Coca-Cola Bottling Co., supra. Similarly, Respondent's argument that it schedules
employees' work hours does not convert to the unilateral right to reduce employees' status from
full-time to part-time with the resulting loss of pay and benefits, including access to health
insurance. See, Control Services, 303 NLRB 481, 483 (1991).27
I do not find the cases cited by Respondent require a different result. In Holiday Inn of
Victorville, 284 NLRB 916 (1987), the Board stated a management rights clause is not a term
and condition of employment to the extent it authorizes unilateral action to change matters that
are mandatory subjects of bargaining. The Board stated normally the statutory waiver created
by a management rights clause would be limited to the time during which the contract that
contains it is in effect. However, the Board stated it does not follow that work rules and
practices promulgated by virtue of the management rights clause during the term of the contract
expire with the termination of the contract. The Board stated because work rules are a
mandatory subject of bargaining in that instance a successor employer had an obligation to
bargain with the union about proposed changes to those rules, except for changes the
successor had a right to make when setting the initial terms and conditions of employment. In
the present case, Respondent promulgated no work rules independent of article 3.3 related to
that article during the term of the contract. I have also found no established past practice giving
Respondent the right to unilaterally reduce employees to part-time status. Since Respondent
has not established any past practice sufficient to survive the extant collective-bargaining
agreement, I also find Frontier Homes Corporation, 153 NLRB 1070, 1072 (1965), enfd. in part .
371 F.2d 974 (8th Cir. 1967), not applicable here.
In Beverly Health and Rehabilitation Systems v. NLRB, 297 F.3d 468 (6th Cir. 2002), also
cited by Respondent, the court affirmed the Board’s finding that a waiver of a bargaining right in
a management’s rights clause did not survive the term of the collective-bargaining agreement.
The court also found, as I find here, that the respondent there had not established evidence of a
past practice that independently survived the expiration of the collective-bargaining agreement
and the court affirmed the Board’s finding that the respondent’s unilateral changes violated
Section 8(a)(1) and (5) of the Act. Shell Oil Co., 149 NLRB 283, 287-290 (1964), cited by
Respondent, does not alter my conclusions here. There the Board held a 10 year frequently
invoked practice of contracting out occasional maintenance work on a unilateral basis
predicated upon observance and implementation of article XIV of the parties collective-
bargaining agreement had become an established employment practice and, as such, a term
and condition of employment which survived during a hiatus period between collective
bargaining agreements. The Board specifically noted it did not appear the subcontracting

27 Respondent argues the Acting General Counsel's argument of a shifting defense does not
constitute a basis to reject Respondent's contractual argument pertaining to article 3.3 raised at
the hearing arguing contract interpretation is a matter of law. However, I find that at the time
Respondent reduced the employees' status to part time it was relying solely on the contractual
management rights provisions. This was not just the opinion of lay persons such as Zenisek,
but it was incorporated in Respondent Attorney Simandl's pre-hearing position statement.
Withers testimony reveals Simandl was present for the negotiations when the "business needs"
language in article 3.3 was inserted into the clerks agreement. Simandl's failure to raise it as a
justification in his position statement, confirms Withers' testimony that the parties did not view it
as a contractual waiver at the time it was inserted, or as a carte blanche for Respondent to act
unilaterally in the reduction of employees status as happened here.
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during this hiatus period materially varied in kind or degree from what had been customary in
the past. The Board was careful to state, “we wish to make it clear that our present holding is
limited to the particular circumstances of this case and that we do not pass upon whether or not
Respondent may, in the future, lawfully expand its subcontracting practice without prior notice
and consultation with the Union.”
I find Respondent has not established that its reduction of its 17 clerks unit employees to
part-time status was in accordance with any established past practice, or that any contractual
provision gave Respondent the right to engage in such an action, in particular following the
expiration of the operative contract, or that the Union clearly and unequivocally waived its right
to bargain about such matters. Accordingly, I find Respondent violated Section 8(a)(1) and (5)
of the Act by its unilateral reduction of the 17 clerks unit employees to part-time status on the
September 15 schedule effective September 18.
2. The constructive discharges of Jeffrey Gross,
Lauriel Hansen, Laura Hoffman, and Tina Meinhardt
In Control Services, Inc., 303 NLRB 481, 485 (1991), enfd mem. 975 F.2d 1551 (3rd Cir.
1992) the respondent was found to have unlawfully unilaterally reduced the wages and hours of
employees and eliminated their health insurance. The Board found that employees who quit as
a result of the respondent's actions were constructively discharged in violation of Section 8(a)(3)
of the Act. The Board stated, "we rely on the theory of constructive discharge applicable to
employees who quit after being confronted with a choice between resignation or continued
employment conditioned on relinquishment of statutory rights.[FN27] In the instant case, the
employees were required to work under conditions that were established in derogation of the
right to bargain." See also, Schwickerts of Rochester, Inc., 343 NLRB 1044, 1057 (2004); and
Excel Fire Protection Co., 308 NLRB 241, 248 (1992).
Tina Meinhardt, Hansen and Gross' credited testimony reveals they quit Respondent's
employ as a result of their September 18 reduction in hours and benefits when they were
converted to part-time employees. Since I find they were converted to said status in derogation
of the Union's bargaining rights I find they were constructively discharged in violation of Section
8(a)(1) and (3) of the Act.
Hoffman in the beginning of September was working for Respondent as a full-time
employee splitting duties as a liquor manager and MOD. Hoffman was told on September 15 by
Holtz that she was being reduced to part-time status and her health insurance would end at the
end of November. Prior to her reduction Hoffman was earning $15.45 an hour, was receiving
health insurance and other contractual benefits available to full-time employees, including a time
and a half shift differential for her regularly scheduled Sunday work. For the week ending
September 24 at Respondent, Hoffman was listed as part-time. Her hours were reduced, and
her hourly rate was reduced to $14.95 an hour. On September 27, Hoffman accepted an offer
of employment with Festival. On September 29, Hoffman learned she had been listed on
Respondent's schedule as full-time in a new position which was in the office as a customer
service manager assistant. On October 1, Hoffman notified Respondent's officials she had
accepted a position with Festival and she was giving them her three weeks notice. Hoffman
worked one of those three weeks for Respondent, and took two of the weeks off as vacation.
For this three week period, Hoffman continued to be compensated at the rate of $14.95 per
hour. Hoffman testified she left Respondent's employ because she was reduced in hours and
benefits and she needed full-time work. She credibly testified she accepted the position at
Festival before she knew she had been restored to full-time status at Respondent. Hoffman
credibly testified that while working for Festival, she declined an offer of work from Respondent
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because she was afraid she would be reduced again. I find the reason Hoffman left
Respondent's employ was because of Respondent's unilateral reduction of her pay, hours, and
benefits. She accepted employment with another employer at the time she had been reduced
to part time status. Even though she was given a full-time position with Respondent before she
actually left Respondent's employ it was at a different position and at a reduced hourly rate than
the one she occupied prior to Respondent's unilaterally reducing her. She testified she refused
to accept future employment with Respondent out of fear that they would reduce her again. I
find Hoffman was constructively discharged by Respondent in violation of Section 8(a)(1) and
(3) of the Act as her decision to leave was a direct result of Respondent's unilateral action
visited upon her in derogation of the Union's bargaining rights. See, Control Services, Inc.,
supra.
3. Direct Dealing pertaining to Hoffman
The Board has held that an unlawfully discharged employee remains part of the
bargaining unit and is eligible to vote in a Board conducted election. Metro Transport, LLC, 351
NLRB 657, 663 (2007). In Formosa Plastics Corp., 320 NLRB 631, 632 (1996), the Board held
that an employer violates Section 8(a)(5) of the Act by adjusting an employee's grievance
without permitting the collective-bargaining representative an opportunity to be present. In that
case, the union was processing a discharge grievance on behalf of an employee. Yet the
respondent met directly with the employee to adjust the matter in part, without informing the
Union, or offering it an opportunity to be present at the meeting. The Board held the employer's
repeated counsel to the employee that the Union had given him bad advice undermined the
union's statutory authority, and that the respondent bypassed the Union and dealt directly with
its employees in violation of Section 8(a)(5) of the Act.
In the present case, Hoffman was working for Respondent as a liquor manager and
manager on duty (MOD) as a full-time employee with benefits including health insurance. She
was earning $15.45 an hour. On September 15, Hoffman was told she was going to be reduced
to part-time status, and that her health insurance would end at the end of November. The Union
filed a grievance on behalf of Hoffman's reduction in status on September 16, and she was
represented by the Union during grievance meetings on September 21 and on November 8. As
a result of her reduction Hoffman accepted employment at Festival in October, but she
continued to work for Respondent for a brief period during which her hourly rate was reduced to
$14.95 per hour and she was given a different position. As set forth above, I have concluded
Hoffman was constructively discharged by Respondent in violation of Section 8(a)(1) and (3) of
the Act as a result of its unilateral action in reducing her status. Since I have found she was
discharged in violation of the Act she had reinstatement rights with Respondent and remained a
member of the bargaining unit following her termination. Metro Transport, LLC, supra. In fact,
since I have found that Hoffman was unlawfully reduced from her full-time position on
September 15, she retained reinstatement rights to that position.
Hoffman was invited to a meeting by Respondent's officials which she attended on
January 13, 2012. In attendance were Paul Butera, Judy Butera, Suokko, and Hoffman. During
the meeting Paul Butera offered Hoffman a job in Respondent's liquor department stating she
would she would be in charge of ordering, the displays, the pricing, and the scheduling of
employees. She was told she could work up to 45 hours a week, and she would be earning $15
an hour with 2 weeks vacation. Hoffman asked if it would be a union position, and Judy Butera
stated, "At this time, yes." Thus, Respondent had offered Hoffman a position similar to the
liquor manager position from which she had been removed. The offer was at a lower pay rate,
increased overtime, reduced vacation, and with increased scheduling responsibilities. The
Union maintained an outstanding grievance over Hoffman's removal from the liquor manager
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position, and I find Respondent's meeting with Hoffman without first notifying the Union and
allowing them to attend constituted direct dealing in violation of Section 8(a)(1) and (5) of the
Act since it changed the terms and conditions of the position it offered her from the one she
occupied prior to her September 18 reduction in status. See, Formosa Plastics Corp., supra.
4. Respondent denigrated the Union to employees
On September 14, 15, and 16 Respondent's officials, without notice to the Union, met
with 17 full-time employees and informed them they were being reduced to part-time status. On
September 15, Respondent posted its weekly schedules in plain view of both bargaining units
listing a total of 19 employees who it unilaterally converted from full-time to part-time status.
The reduction to part-time status resulted in the loss of work hours, the eventual loss and/or
availability of health insurance, and the immediate loss of other benefits. Respondent failed to
notify the Union in advance that it was going to take these actions, which I have found to
constitute unlawful unilateral changes in violation of Section 8(a)(1) and (5) of the Act.
Withers was first informed of Respondent's actions when he received a phone call at
around 4:30 p.m. on September 14 from a bargaining unit employee who informed Withers she
had been notified she had been reduced to part-time. Withers gave the employee instructions
to call him on September 15 after the schedule was posted at the store, and assured her that he
had time to file a grievance after the schedule was posted. That same employee called Withers
on the morning of September 15 and informed him that 10 or 15 employees were being reduced
to part-time status. Withers told the Store 15 employee that either Withers or another Union
representative would be at Store 15 on September 16. Respondent was aware that Withers
was at another of Respondent's stores on September 15 where he spent a good portion of the
day meeting with those employees.
On September 15, Holtz, at the direction of Zenisek, posted a letter of that date from
Zenisek to Union President Eiden on Respondent's locked bulletin board in plain view next to
the work schedules showing that 19 employees had been reduced in status. The letter informed
the readers of the reduction in status of the employees. It then went on to state the affected
employees "were concerned about their reduction in hours and reached out to the Union to
voice their questions and concerns. Unfortunately, Grant Withers informed the employees that
he did not have the time to address their concerns. Needless to say, employees were incredibly
upset to hear that the Union was too busy to help them." Respondent placed no evidence that
Withers ever made any such a statement to employees. In fact, Withers credited testimony
reveals he informed the employee who contacted him that the Union would be at the store in a
timely fashion to file grievances on behalf of the affected employees. In fact, Withers showed
up at the store on September 16, grievances were filed on behalf of all known employees, and
grievance meetings were scheduled promptly and attended by the Union. Moreover,
Respondent's statements of an alleged concern pertaining to the Union's not reporting to the
store on September 15, are undermined by its failure to give the Union advanced notice of the
reduction in status, and its later delays or refusals to furnish the Union with requested
information pertaining to it. Rather, I find Respondent intentionally kept the Union in the dark,
engaged in unilateral changes severely impacting on a large number of employees, and then
posted untrue statements about the Union clearly designed to undermine the Union's support
amongst bargaining unit employees. Zenisek went on to state in her September 15 posting,
"Frankly, the Company is concerned with the Union's lack of support for our employees. Rather
than leaving the employees hung out to dry, the Company will be holding an informational
meeting for employees to address their questions and concerns. If you have any further
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questions, please do not hesitate to call me directly." Thus, while simultaneously announcing
unilateral changes which in themselves would foreseeably undermine the Union's support,
Respondent posted a message to the employees painting a false concern about the alleged
lack of support by the Union, and suggesting they could only come to the company for help with
the unilateral acts Respondent committed.
I find that by its September 15 posting to employees, Respondent violated Section
8(a)(1) of the Act by denigrating the Union to is bargaining unit members. In its posting,
Respondent falsely accused the Union of being unavailable to employees, made false
representations about statements the Union allegedly made to employees, impugned the
Union's representational abilities, and questioned the Union's good faith toward unit members.
Despite the fact that it was Respondent which initiated the unilateral changes which I have
found to be unlawful; in its message Respondent sought to convey that it, not the Union, was
trying to protect employees' interests and the employees relying on the Union would be futile.
The Respondent's denigration of the Union did not occur in a vacuum, but in the context of its
simultaneous unilateral reduction to part-time status of 19 employees. Instead of accepting
responsibility for and remedying its unlawful conduct, the Respondent sought to put the onus on
the Union for what it had done. Accordingly, I find that Respondent's published September 15
missive was part of an organized effort to denigrate and undermine the Union. See, Regency
House of Wallingford, Inc, 356 NLRB No. 86 (2011); Billion Oldsmobile-Toyota, 260 NLRB 745,
754 (1982), enfd. 700 F.2d 454 (8th Cir. 1983); Albert Einstein Medical Center, 316 NLRB 1040
(1995) (supervisor told employee union could not help a discharged employee get his job back
because it was too weak, it had no money and had a lawyer with Alzheimer's disease, and that
the employees should have listened to management and not voted for the Union); Carib Inn San
Juan, 312 NLRB 1212, 1223 (1993) (employer's statement that union did not back up
employees and should have obtained certain moneys for employees, and that no union could
defend them); and Lehigh Lumber Co., 230 NLRB 1122, 1125 (1977), enfd. 577 F.2d 727 (3rd
Cir. 1978), cert. denied 439 U.S. 928 (1978) (employer violated Sec. 8(a)(1) when it remarked
that the union was no good, was “screwing” employees, and employees ought to look for
another union).
By letter of September 19, Eiden responded to Zenisek's September 15 letter. Zenisek
responded to Eiden by letter dated September 22, which she again instructed Holtz to post on
Respondent's bulletin board to employees.28 In her letter, Zenisek cites Eiden's letter, and
states, "It is true that the Company has the right under the contract to reduce hours, but the
Union is in part to blame for causing the Company's need to reduce hours. Since January, the
Company has warned the Union time and again that nonunion Festival Foods stores were going
to compete for Piggly Wiggly business, especially in Sheboygan. We have asked the Union
why it is not organizing the non-union stores to create a level playing field." By her posted
statement Zenisek conveys to employees that the Union is in agreement that Respondent has
the contract right to reduce hours, which the Union was not. She sought to blame the Union for
the Respondent's reducing hours by another misstatement that Respondent had warned the
Union "time and again" that a Festival store was coming to Sheboygan. There was no evidence
presented that Respondent had previously asked the Union why it was not organizing the
Festival stores. Zenisek then sought to impugn the Union in the way it was representing
Respondent's employees by criticizing it concerning actions to be taken concerning another
employer. I have concluded that the posting of Zenisek's September 22 letter to bargaining unit
employees was part and parcel of Respondent's orchestrated effort to denigrate and undermine
the Union, and that in the context of Respondent's other conduct, the posting of the letter

28 There is no contention that Respondent posted Eiden's September 19 letter.
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coerced employees in violation of Section 8(a)(1) of the Act.
5. Respondent unilaterally changed its call in policy
In United Rentals, Inc., 350 NLRB 951, 952 (2007), following an election won by a union
the respondent was found to have violated Section 8(a)(1) and (5) of the Act by unilaterally
changing its call in policy, when pursuant to the change it disciplined employees for lateness
and no longer allowed employees to make up the time at the end of their shift. The Board held
there that where employees are subject to discipline for failing to comply with a unilaterally
changed policy, "such a change is material, substantial, and significant." In Holiday Inn of
Victorville, 284 NLRB 916 (1987), the Board stated that work rules and practices promulgated
by virtue of the management rights clause during the term of the contract do not expire with the
termination of the contract. The Board stated work rules are a mandatory subject of bargaining
and in that instance an employer had an obligation to bargain with the union about proposed
changes to those rules.
In the present case, Respondent's written call-in policy in effect in September read in
part, "employees unable to meet their schedule are asked to provide a minimum of four (4)
hours notice to the person in charge of the store, if possible." That statement was contained in
a restated policy effective April 1, and was also in Respondent's employee handbook effective
May 2009.
In the fall of 2010, David Meinhardt called in sick around an hour to two hours before the
start of his scheduled shift and stated he was not coming in. In March 2011, Meinhardt called in
about 20 minutes before the start of his scheduled shift and spoke to Holtz telling Holtz that
Meinhardt's father was receiving emergency surgery and Meinhardt was not coming in. Holtz
told Meinhardt to take care of it. Meinhardt received no discipline for either incident. In
February 2011, Hansen called in called in after the start of her 6 a.m. shift stating she could not
come to work due to a snow storm. Holtz testified around 10 employees did not show up for
work that day. He testified none of the employees received discipline for not showing up, and
that he could not explain the reason there was no discipline.
On September 15, Holtz and Braunreiter informed David Meinhardt that his wife Tina
Meinhardt had been reduced from full-time to part time status, and that David Meinhardt was
being similarly reduced. Holtz told David Meinhardt that he would be losing health insurance as
of November 30. David Meinhardt told Holtz that he had 23 years of service and said thanks for
throwing Meinhardt's daughter to the street. On September 16, Withers filed with Holtz
grievances on behalf of 18 employees including the David and Tina Meinhardt over their
reduction in status.
On September 17, David Meinhardt called in sick with a migraine headache and hour
before the start of his schedule shift. On September 18, after he returned to work, Holtz handed
Meinhardt a warning letter and a two day suspension dated September 17. Holtz told Meinhardt
the reason for the discipline was that he did not follow Respondent's no call no show policy of
calling in 4 hours before not reporting to work.
On September 27, a grievance meeting was held over David Meinhardt's discipline and
suspension. Meinhardt, who attended, was represented by Pricket. Holtz and Braunreiter
represented the Respondent. During the discussion, Pricket raised the call in "if possible"
language included in Respondent's policy. She gave examples, citing Meinhardt's situation with
a migraine headache, as to why it was not always possible for an employee to call in 4 hours
ahead of schedule. The credited testimony reveals that Braunreiter remained firm that an
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employee had to call in 4 hours before the start of the shift. During the meeting, it was
discussed that since Meinhardt's discipline more employees had been disciplined under the call
in policy. On September 27, Prickett filed a grievance on behalf of three named employees and
other similarly situated employees who had been disciplined under the call in policy. Holtz
testified it was his position that employees are to provide 4 hours notice if they are not coming to
work regardless of the reason. However, prior to the David Meinhardt incident, Holtz could not
name anyone who called in within 4 hours before the start of the shift who was disciplined.
I find that Respondent unilaterally changed its call in policy when it disciplined Meinhardt
and subsequently others who called in within 4 hours, but prior to the start of their shift. The
policy itself said employees were to give 4 hours notice "if possible". The past practice shows
through the testimony of David Meinhardt and admissions by Holtz that Respondent liberally
applied the "if possible" exception and allowed employees leeway when they called in if they
provided a reasonable excuse. However, statements by Braunreiter at the grievance meeting
and admissions by Holtz reveal that Respondent effectively removed the term "if possible" from
the policy when on September 17 Holtz disciplined and suspended David Meinhardt. Rather,
Respondent was now disciplining all employees who failed to call in 4 hours prior to the start of
the shift regardless of the reason they presented. Respondent's new interpretation of the policy
not only altered the plain meaning of the policy language but was in contravention of
Respondent's past practice.29 Respondent changed its interpretation of the policy and
implementation of the policy without notifying or bargaining with the Union. I find that all of
those individuals beginning with and since David Meinhardt, who called in, but who were
nonetheless disciplined and suspended, were disciplined under the altered policy, and their
disciplines and suspensions are violative of Section 8(a)(1) and (5) of the Act.30

29 Respondent argues in its brief that the good cause language inserted into the call in policy
in April 2011, altered the policy and allowed it to discipline unless they demonstrated good
cause for their failure to call in 4 hours in advance. I reject this argument. I do not view the
good cause language as altering the "if possible" language which remained in the rule.
Moreover, the credited testimony of Prickett and Meinhardt reveals that Respondent's officials
never considered whether Meinhardt's having a migraine headache constituted good cause for
his not calling in 4 hours prior to the start of the shift. Rather, Braunreiter and Holtz response
during the grievance meetings, and in Holtz testimony revealed that no reason was going to be
acceptable if an employee failed to call in 4 hours in advance. I have found Respondent's new
interpretation of the policy constituted a unilateral change.
30 I realize an argument can be made that some individuals who called in may not have had
a legitimate reason for not calling in 4 hours prior to the start of the shift. However, the
Respondent unilaterally altered the policy taking the legitimacy of the timing of the call out of the
equation. I find by its actions it created ambiguity as to what it might have done if it had not
altered the policy, and that ambiguity should be held against the wrongdoer, which in this case
is Respondent. It should be noted that David Meinhardt's suspension took place two days after
he protested his and his wife's reduction in status to Holtz, and one day after the Union filed a
grievance on behalf of the reduction in status employees. There is evidence of timing and
animus concerning Union activities on this record, but there is no Section 8(a)(3) allegation in
the complaint concerning the alteration of the call in policy so I make no finding as to whether
the policy change was also violative of Section 8(a)(3) of the Act.
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6. The requests for information
It has long been held that an employer violates Section 8(a)(5) and (1) of the Act when it
fails to provide information requested by the bargaining representative of its employees needed
for contract negotiations or administration. NLRB v. Truitt Mfg. Co., 351 U.S. 149, 152-153
(1956). Information pertaining to employees in the bargaining unit is presumptively relevant.
When information pertains to nonunit matters, the burden to show relevance is “not
exceptionally heavy.” And the Board uses a “broad discovery-type of standard” in assessing
relevance in information requests. Alcan Rolled Products, 358 NLRB No. 11, slip op. at 4
(2012). See also, National Grid USA Service Company, Inc., 348 NLRB 1235, 1242 (2006); and
Ormet Aluminum Mill Products, 335 NLRB 788, 801 (2001). An employer cannot require that
information requests be in writing. Tubari, Ltd., 299 NLRB 1223, 1229 (1990); A.W. Schlesinger
Geriatric Center, 304 NLRB 296, 297 fn.7 (1991); and Kingsbury, Inc., 355 NLRB No. 195
(2010), review denied 2010 WL 5367794 (D.C. Cir., 2010), holding that information that was
readily available should have been provided to the union within days of its oral request.
In A-Plus Roofing, Inc., 295 NLRB 967, 970 (1989), enfd. 39 F.3d 1410 (9th Cir. 1994),
the following principles were set forth pertaining to information requests:
Once the initial showing of relevance has been made, “the employer has the burden to
prove a lack of relevance ... or to provide adequate reasons as to why he cannot, in
good faith, supply such information.” San Diego Newspaper Guild, supra at 863, 867.
Where the relevance of requested information has been established, an employer can
meet its burden of showing an adequate reason for refusing to supply the information by
demonstrating a “legitimate and substantial” concern for employee confidentiality
interests which might be compromised by disclosure. Detroit Edison v. NLRB, 440 U.S.
301, 315, 318-320 [(1979)]. In resolving issues of asserted confidentiality, the Board first
determines if the employer has established any legitimate and substantial confidentiality
interest and then balances that interest against the union's need for the information.
Detroit Edison, id. at 315, 318; Minnesota Mining & Mfg. Co., 261 NLRB 27, 30 (1982);
Pfizer Inc., 268 NLRB 916 (1984). However, where the employer fails to demonstrate a
legitimate and substantial confidentiality interest, the union's right to the information is
effectively unchallenged, and the employer is under a duty to furnish the information. Oil
Workers Local 6-418 v. NLRB, 711 F.2d 348, 360 (D.C. Cir. 1983); NLRB v. Jag-gars-
Chiles-Stovall, Inc., 639 F.2d 1344, 1346-1347 (5th Cir. 1981); NLRB v. Associated
General Contractors of California, 633 F.2d 766 (9th Cir. 1980).
In the instant case, on September 15, at Zenisek's direction, Holtz posted a letter on
Respondent's bulletin Board in plain view of all bargaining unit employees falsely accusing
Withers of informing employees that he did not have the time to address their concerns, and
raising a false concern on the part of Respondent about the Union's alleged lack of support of
its employees. On September 16, Withers showed up at Respondent's facility and verbally
asked Holtz for the names of all employees whose status had been reduced from full-time to
part-time. At Zenisek's direction, Holtz told Withers he had to put the request in writing. Holtz
testified it was Respondent's policy that all of the Union's information requests had to be placed
in writing. There is no claim that the Union's request was ambiguous, and as set forth above,
an employer cannot require a Union to make its information request in writing. Withers filed a
grievance on September 16, on behalf of 18 of the 19 reduced employees. No grievance was
filed on behalf of employee Gerharz at the time because Withers was not aware he had been
reduced in status. In fact, the Union had to later file a separate grievance on his behalf
necessitating a separate grievance meeting for him from the other similarly situated employees
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thereby consuming the Union's resources. Coming in the wake of Zenisek's published verbal
assault on the bonifides of the Union, I can only conclude Respondent was purposely engaging
in obstructionist tactics of the provision of information, and I find Respondent's conditioning of a
request for the list of reduced employees on September 16, upon a written request, to constitute
an unlawful refusal to provide information in violation of Section 8(a)(1) and (5) of the Act.
On September 19, Eiden sent a letter to Zenisek requesting information, including
information pertaining to predicted store sales total and by department for the previous 24
month period broken down on a weekly basis. Eiden reiterated Withers September 16 verbal
request for a list of all of the employees who had been reduced in hours, and their telephone
contact information. Zenisek responded to Eiden by letter dated September 22, stating
Respondent did not have information pertaining to the Union's request for projected stores sales
for the prior 24 month period. However, Holtz testified Respondent had, at the time, in fact
made sales projections for the weeks ending September 17, 24, October 1, and October 8,
which were used in calculations pertaining to the reductions of status for the employees in mid-
September. Respondent provided no reason for refusing to provide this information to the
Union other than contending it did not exist. Since it admittedly did exist, and it was raised by
the Respondent as a cause of its actions in the grievance meetings for the staff reductions, I
find that Respondent violated Section 8(a)(1) and (5) of the Act by its failure to tender it to the
Union. Zenisek sent the Union a list of the names of the employees who had been reduced but
not their phone numbers stating the Union was already in possession of their phone numbers
because the employees were required to complete a membership application with their phone
numbers at the time they became Union members. As Withers testified, some of the employees
at issue were long term employees and it was predictable to Zenisek that phone numbers on the
union membership applications may have been outdated. The Union was entitled to current
phone numbers as they were maintained in Respondent's files. See, Dynatron/Bondo Corp.,
305 NLRB 574 (1991), enfd. 992 F.2d 313 (11th Cir., 1993); Valley Programs, 300 NLRB 423
(1990); and Burkart Foam, 383 NLRB 351 (1987), enfd. 848 F.2d 825 (7th Cir. 1988). I find
Respondent's refusal to provide such numbers was part of its obstructionist tactics in preventing
the Union from performing its representational functions and violative of Section 8(a)(1) and (5)
of the Act.
By letter dated September 27, Withers sent Zenisek a five item information request,
items 3 and 4 of which are dispute herein. Item 3 required the production of work schedules of
by department for each Piggly Wiggly Store within a 3.5 mile radius of a Festival Foods store for
the 12 months "preceding and proceeding" the opening of the Festival Store. Zenisek
responded by letter dated October 5, wherein she sought the meaning of the word "proceeding"
and stated once that was explained Respondent would make available schedules for
Sheboygan for the past 12 months. I do not find Respondent's response to be satisfactory.
First, the Union established the relevance of the requested information at the outset of its
request by stating that during the course of the September 21 grievance meetings Respondent
maintained the projected sales forecast and subsequent reduction in full-time positions for Store
15 were formulated from similar stores with similar sales and competition with Festival stores.
Thus, it is undisputed that Respondent had established the relevance of the information by the
arguments it raised at recent grievance meetings. Moreover, Zenisek did not raise a relevance
objection in her October 5 response. She claimed not to understand the meaning of the work
proceeding. I do not credit this claim, but rather I find she merely seized on the word in an effort
to set up road blocks to the Union access to the requested information. In the context of the
way the sentence was written it is clear when the Union used the word preceding that it was
asking for the schedules 12 months before the Festival store opened, and therefore proceeding
could only mean 12 months after the store opened. The Union's request was not limited to the
Sheboygan store, but for all stores where a Festival opened in competition with Respondent's
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stores within the specified geographical description. Moreover, regardless of any claimed
misunderstanding of the word "proceeding" there was no reason provided for not providing in a
timely manner the schedules for each of the stores covered before the rival Festival store
opened, and no reason provided for limiting the response to only the Sheboygan store. Finally,
since I have concluded that the Union's request for information was sufficiently clear on its face,
I find that Respondent has provided no reason for its delay in providing the information
requested. Rather, Respondent has demonstrated a desire to block compliance with the
Union's information requests and has done so again here. Withers testified Respondent during
one of the September 21 grievance meetings in explanation of the reduction of the full-time
employees cited their history of Walmart coming to Sheboygan. Item 4 of the Union's
information request asked for the number of reduced or eliminated full-time positions when
Walmart opened in Sheboygan. Zenisek did not challenge the relevancy of the Union's request
in her October 5 response. She merely stated, "We have no information responsive to your
request." I do not find this answer satisfactory. If no positions were reduced or eliminated, she
could have so stated, otherwise I believe it was well within Respondent's ability to provide any
alleged number of reductions or eliminations.31 Accordingly, I find Respondent violated Section
8(a)(1) and (5) of the Act by failing to provide the Union with information requested in items 3
and 4 of Withers September 27 letter.
Withers testified that during the mediation meeting on November 8, held relating to the
reduction in status grievances, Withers requested copies of Respondent's surveillance videos
dating back to September 17. Withers testified he had seen employees working out of
classification on September 21 and again on November 8. He testified that on November 8,
grievant Thede informed him that meat cutters had been performing meat wrapper work.
Withers testified he requested the information as proof that Respondent was short staffed in
support of the Union's position in the reduction in status grievances. Withers testified Zenisek
responded that Withers would have to place the request in writing and sign a confidentiality
agreement. Withers replied he would not place the request in writing and he would not sign a
confidentiality agreement.
On November 11, Zenisek wrote Withers that Respondent would provide Store 15's
video footage for a period of time, despite Withers refusal to place the request in writing.
Zenisek stated Respondent would supply the information after Respondent received a signed
confidentiality agreement. Zenisek informed Withers that Respondent's camera system had a
limited amount of recording days so the full extent of the requested information may not be
available unless Withers responded in a timely manner. Zenisek asked the Union to provide a
statement as to why the information was necessary for the administration of employee rights
under the collective-bargaining agreement. On November 11, Withers responded in writing
stating, "I have received your letter of November 11 regarding the Union's request for the video
tapes of employee activities for the period 9/17/2011 forward." In his letter, Withers stated he
would clarify the Union's reason for the request stating the information was to be used in
support of the Union's reduction in status grievances pertaining to the approximately 20 full-time
employees. Withers stated Respondent had supplied no reason for a confidentiality agreement
therefore the Union would not sign one. Withers stated the Respondent had provided such
information in the past without the Union signing a confidentiality agreement. Withers stated the
Union would file an unfair labor practice charge, and demanded Respondent place a litigation
hold on the information for "the period of September 17, to date."

31 Respondent argues in its brief that it did not keep records going as far back as when the
Walmart opened. This contention was never raised to the Union, nor established on the record.
Accordingly, I reject it.
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On December 22, Respondent attorney Simandl wrote Union Attorney Sweeney that
Respondent would no longer require a confidentiality agreement to view the video footage at
Store 15. Withers testified that the Union has since been over to review video footage from two
weeks prior to November 8. However, the Union requested footage dating back to September
17. While Withers testified his November 11 letter expanded the Union's information request
until an unnamed date going forward, the letter also only asked Respondent to put a hold on
information from September 17 to date, indicating the time period was September 17 to
November 11. In fact, Respondent complied with the ending period set forth in Withers original
November 8, request, as Withers testified the information was supplied up until November 8.32
While Zenisek testified at the hearing that the storage and provision of the video footage was
burdensome, Respondent never raised that as a timely defense to the Union in terms of the
provision of the video footage for the period of September 17 to November 8. Respondent has
also never explained to the Union or justified its condition of providing the information to the
Union with the signing of a confidentiality agreement. In fact, Respondent provided a portion of
the information without requiring the agreement to be signed. I find Respondent has not timely
raised a defense to the provision of the requested information, and Respondent has violated
Section 8(a)(1) and (5) of the Act by failing and refusing to provide the Union with copies for
viewing of surveillance tapes for the period of September 17 to November 8.
On September 23, Union Representative Pricket filed a grievance over David
Mienhardt's two day suspension concerning Respondent's call in policy. Zenisek responded to
the letter on September 25, asserting there were no contract violations. There was a grievance
meeting on September 27 over the suspension attended by Prickett, Meinhardt, Holtz and
Braunreiter. During the meeting, Prickett made a verbal request for information for all
disciplines related to a violation of Respondent's attendance policy, and all people calling in or
the tracking of sick calls. On September 29, Prickett filed a grievance with Zenisek on behalf of
three additional named employees and "other similarly affected employees" who had received a
two day suspension for a violation of the no call no show policy. Prickett also made an
information request in the letter. She testified it was the same information she requested during
this September 27 meeting. She testified she told Holtz and Braunreiter during the meeting she
would put the request in writing. The information Prickett requested in the September 27 letter
included the following:
1.) Copies of the attendance records for all employees for the past 24 months.
2.) Copies of any disciplines issued to any employees that called in absent to work within
the past 24 months.
3.) Copies of all documents used by the Employer to record employees calling in absent
or tardy for work (Date, time, etc.) for the past 24 months.
On October 4, Zenisek filed responses to the grievances filed by Prickett on September
29. On October 5, Zenisek provided a written response to Prickett's September 29 request for
information. In the response Zenisek asked Pricket to provide a statement as to why the
information was necessary in the administration of the collective bargaining agreement.
Zenisek also stated in effect there were costs involved in gathering the requested information,
and invited Prickett, if her information request was appropriate, to schedule an appointment at
Respondent's corporate office to review the records, and to pay for all copying costs at
Respondent's regular rate which was unspecified.

32 Counsel for the Acting General Counsel stated at the hearing that the complaint allegation
only covered the period of September 17 to November 8.
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Prickett attended a meeting with Holtz on October 13 concerning the September 29
grievances. During the meeting, Prickett stated, as far as the information she had requested, it
was necessary for her to have the information to process the grievances. Holtz stated he would
talk to Zenisek and she would take care of it. On November 7, Pricket wrote Zenisek
concerning the outstanding two day suspension grievances and Prickett again requested the
information sought in Prickett's September 29 letter.
I find Respondent violated Section 8(a)(1) and (5) of the Act by failing and refusing to
provide the Union with information requested in Prickett's September 29 letter. The information
relating to bargaining unit employees was presumptively relevant, and therefore there was no
requirement that the Union establish relevance. Zenisek's demand for a written statement that
the Union do so was clearly made in bad faith. Moreover, the Union's request came in a letter
where the Union was filing grievances over Respondent's call-in policy. Thus, aside from the
fact that the Union's was entitled to the information without explanation, the need for the
information was self evident in the letter containing the information request. I find Zenisek's
response was part of a pattern of conduct exhibited by Respondent to delay in the production of
information, hamper the Union's efforts to represent the bargaining unit employees, and drain
the Union's resources. In these circumstances, I do not find Respondent's request that Prickett
come to Respondent's facility and pay copying costs was made in good faith. Rather,
Respondent's request was made with the purpose of creating another impediment to the
Union's effective representation of bargaining unit employees. See, Albertsons Inc., 351 NLRB
254, 286-289 (2007).
7. The September 18 reduction of 19 employees to
part-time status is violative of Section 8(a)(1) and (3) of the Act
In Wright Line, 251 NLRB 1083, 1089 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982), the Board established an analytical framework for deciding cases
turning on employer motivation. To prove that an employee was discharged in violation of
Section 8(a)(3), the General Counsel must first persuade, by a preponderance of the evidence,
that an employee's protected conduct was a motivating factor in the employer's decision. If the
General Counsel is able to make such a showing, the burden of persuasion shifts “to the
employer to demonstrate that the same action would have taken place even in the absence of
the protected conduct.” Wright Line, supra at 1089. The elements commonly required to support
a finding of discriminatory motivation are union activity, employer knowledge, and employer
animus. Farmer Bros. Co., 303 NLRB 638, 649 (1991), enfd. mem. 988 F.2d 120 (9th Cir.
1993).
Withers credited testimony reveals that on January 7, he attended a meeting at
Respondent's corporate offices, wherein Paul Butera stated he was going to have his attorneys
there and demanded the Union officials meet with him. Withers testified there was a discussion
about full-time to part-time employees during the January 7 meeting in the context of Paul
Butera complaining about his attorneys fees with Simandl and the fact that the Union was
supposedly causing all these problems as they had just been through an unfair labor practice
trial in November.33 Withers stated if you would just turn over the information the Union

33 On March 28, 2011, an administrative law judge issued a decision finding Respondent
refused to provide requested information, delayed in furnishing information, and failed to bargain
with the Union over the effects of its closure of two stores, one of which was located in
Sheboygan. The judge's decision was in large part affirmed by the Board in Piggly Wiggly
Continued
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requested they would not have all these issues, and all the litigation. Withers testified they had
an arbitration coming up with seven individuals. Withers testified he stated some of the
grievances could have been avoided if the Union had been provided information.
In July, Bucaro, vice president of Respondent's retail operation contacted Store 15
manager Holtz about formulating a plan for Festival Foods opening as a competitor in
Sheboygan. On September 2, Bucaro sent an e-mail to Holtz, Braunreiter, and Zenisek relating
to Festival's opening stating they must make adjustments from day 1. He instructed them to
reduce the labor costs for Store 15, which would foreseeably reduce the number of full-time vis
a vis part time employees since full-time employees received a much larger array of fringe
benefits including health insurance. Bucaro mentioned likely status reductions in his e-mail. He
said nothing about bargaining with the Union. On September 14, Holtz and Braunreiter began
to notify 19 employees on an individual basis that they were being reduced from full-time to part-
time status and they would lose their health insurance or right to health insurance by the end of
the November. The Union was not notified in advance of these meetings. On September 15,
Holtz posted the weekly schedule to all bargaining unit employees displaying that 19 of them in
a unit of 118 had been reduced from full-time to part-time status. Such a unilateral change in
terms and conditions of employment predictably would undermine the Union in the eyes of it
bargaining unit members. See, Comau, Inc., 357 NLRB No. 185 (2012); and Camelot Terrace,
357 NLRB No. 161 (2011). Respondent went much further, right next to the unilaterally
changed schedules it posted a letter by Zenisek containing clear misrepresentations about the
Union's actions, and denigrating the bonafides of the Union to the unit members. I have found
Zenisek's September 15 and 22 postings to be violative of Section 8(a)(1) of the Act, and they
clearly demonstrate animus to the Union and thereby its supporters. Shortly thereafter,
Respondent engaged in another unilateral change concerning its call-in policy which resulted in
2 day suspensions for several bargaining unit members. Finally, while publicly slamming the
Union in Zenisek's postings for purportedly not representing its members in a situation
Respondent created, Respondent engaged in a pattern of refusing to provide the Union with
requested information to pursue grievances over Respondent's conduct.
Thus, Respondent's conduct reveals its harbors strong animus towards the Union, and
its employees for engaging in union activities. The burden shifts to Respondent to prove that it
would have reduced 19 employees from full-time to part-time status on its schedule beginning
September 18, had there been no Union at Respondent's facility. I find Respondent has failed
to meet this burden. First, on September 2, Bucaro sent an instruction for Zenisek, Braunreiter
and Holtz to cut labor costs at Store 15. Second, Holtz informed Withers during the September
21 grievance meeting that they had made the reductions based on a forecast of a projected
30% decline in sales with Festival's opening. The projection used was unexplained and much
larger than Holtz original forecast as revealed in his August 26 e-mail. In fact, Respondent's
actual records following the event reveal a weekly average of less than 11% loss in sales from
the year before for the first six weeks following Festival's opening. Withers also credibly testified
that he saw employees working out of classification on September 21, and again on November
8 to cover for the loss of coverage resulting from Respondent's staffing reductions. Respondent
has put on no concrete evidence to rebut the Acting General Counsel's prima facie case as to
the number or nature of the staffing reductions, or that absent the employees' Union activity it
would have reacted in the way or to the extent that it did. Accordingly, I find Respondent
violated Section 8(a)(1) and (3) of the Act when it reduced the 19 employees from full-time to
part-time status on the schedule for the work week beginning on September 18, 2011.34
_________________________
Midwest, LLC, 357 NLRB No. 191 (2012).
34 Counsel for the Acting General Counsel filed a motion to strike an attachment to
Continued
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CONCLUSIONS OF LAW
1. Piggly Wiggly Midwest, LLC, (Respondent) is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. United Food and Commercial Workers Union, Local 1473 (the Union) is a labor
organization within the meaning of Section 2(5) of the Act.
3. The Union represents Respondent's employees in the following appropriate
bargaining units:
All employees of all present and future Employer stores located in Sheboygan County,
State of Wisconsin, including all employees in said stores who are actively engaged in
the handling or selling of merchandise excluding employees working in the meat
department, employees of other companies working in leased departments in the store,
in-store bank employees, stock auditors, specialty men and demonstrators employed by
vendors, and supervisory employees, within the meaning of the National Labor Relations
Act.
All employees of all present and future Employer stores working in the meat department
located in Sheboygan County, State of Wisconsin, including all employees in said stores
who are actively engaged in handling or selling meat as defined by the parties' collective
bargaining agreement which expired on September 7, 2011; excluding employees
working as retail clerks and one Store Manager per store, one manager trainee per
store, employees of other companies working in leased departments in the store, in-
store bank employees, stock auditors, specialty persons and demonstrators employed
by vendors and supervisory employees, within the meaning of the National Labor
Relations Act.
4. On September 18, 2011, Respondent unilaterally reduced 19 full-time employees to
part-time status, causing them to lose their full-time benefits, including the eventual loss of or
access to health insurance, without notifying or bargaining with the Union in violation of Section
8(a)(1) and (5) of the Act; and because of the employees membership in or support of the
Union, and to discourage that support in violation of Section 8(a)(1) and (3) of the Act.
5. By its actions on September 18, 2011, Respondent constructively discharged
employees Jeffrey Gross, Lauriel Hansen, Laura Hoffman, and Tina Meinhart in violation of
Section 8(a)(1) and (3) of the Act.
6. On September 16, 2011, Respondent violated Section 8(a)(1) and (5) of the Act by
_________________________
Respondent's post-hearing brief which contains a portion of the transcript to a district court
proceeding taking place on March 7, 2012. Counsel for the Acting General Counsel correctly
points out that the attachment was not the complete transcript. Moreover, representations in the
selected portion of the transcript that certain employees were returned to full-time status do not
impact on this proceeding. Even if that were to be the case, there is no indication that they were
restored to the positions they occupied prior to the September 18 unilateral change. There is no
concrete evidence on the record before me as to who was made full-time, when it took place, or
the position they were returned to. This argument would not affect the findings herein as to the
underlying unfair labor practices, but may be raised again at a compliance proceeding
concerning backpay. Accordingly, since Respondent's submission pertaining to the district
court proceeding is incomplete, and unsubstantiated on this record, the motion to strike is
granted as well as all references to the document in Respondent's post-hearing brief.
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refusing the Union's request to furnish the Union with a list of the names of employees being
reduced from full-time to part-time status unless the Union put the request in writing.
7. Since September 19, 2011, Respondent violated Section 8(a)(1) and (5) of the Act by
failing and refusing to provide the Union the telephone numbers of employees who were
reduced from full-time to part-time status on September 18; and by failing and refusing to
provide the Union requested information it maintained relating to predicted stores sales for Store
15 for the prior 24 months broken down on a weekly basis.
8. Since September 27, 2011, Respondent has violated Section 8(a)(1) and (5) of the
Act by failing and refusing to provide the Union information more fully described in items 3 and 4
in a written information request to Respondent on that date relating to work schedules for
Respondent's stores following the opening of an area Festival Food store, and the number of
full-time positions reduced or eliminated at Store 15 when a Walmart Supercenter opened on
Sheboygan's south side.
9. Since September 29, 2011, Respondent has violated Section 8(a)(1) and (5) of the
Act by failing and refusing to provide the Union information requested as more fully described in
a letter of that date relating to attendance records, disciplinary records relating to employees
calling in to be absent from work within the past 24 months, and documents used to record
employees calling in to be absent or tardy for the past 24 months.
10. Since November 8, 2011, Respondent has violated Section 8(a)(1) and (5) of the Act
by failing and refusing to provide the Union for review a complete set of requested copies of
surveillance videos at Store 15 for each department for the period of September 27 to
November 8, 2011.
11. Since September 17, 2011, Respondent has violated Section 8(a)(1) and (5) of the
Act by unilaterally changing its call in policy, and by issuing and continuing to issue warnings
and 2 day suspensions to employees as a result of the changed policy.
12. Since on September 15 and 22, 2011, Respondent violated Section 8(a)(1) of the
Act by posting and maintaining letters denigrating the Union to employees, which included
statements that the Union was at fault for the reduction of full-time employees to part-time
status, and by falsely accusing Union representatives of making statements that they did not
have time to represent the employees.
13. On January 12, 2012, Respondent violated Section 8(a)(1) and (5) of the Act by
bypassing the Union and dealing directly with an employee concerning their wages, hours, and
other terms and conditions of employment by offering to rehire an employee at different terms
and conditions of employment from that which previously existed, and different from that
provided for under the most recent collective-bargaining agreement.
14. Respondent’s unfair labor practices affect commerce within the meaning of Section
2(6) and (7) of the Act.
REMEDY
Having found Respondent has engaged in certain unfair labor practices, I find it
must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act. Respondent having unilaterally and discriminatorily
reduced 19 employees from full-time to part-time status must offer them reinstatement to
their pre September 18, 2011 reduction positions and schedules and make them whole for
any loss of earnings and other benefits from September 18, 2011, the date their reductions
were implemented to a proper offer of reinstatement to their prior positions, less any net
interim earnings.35 Concerning the four individuals who I have found to have been

35 The Respondent shall be required to remit all payments it owes to fringe benefit funds as
a result of the reductions, and to make whole the employees for any expenses they may have
incurred as a result of Respondent's failure to make such payments in the manner set forth in
Continued
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constructively discharged, since their terminations were a result of Respondent's unilateral
actions on September 18, 2011, like the other 15 employees impacted by those actions,
they should be offered reinstatement to the full-time positions and made whole based on
based on the positions they held on the schedule issued prior to September 15, 2011.36
Respondent must also make whole and remove from their records any employees who
were disciplined and/or suspended pursuant to its call in policy on or after September 17,
2011.37 Backpay for all individuals covered by this remedy shall be computed as
prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest at the rate
prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987), compounded daily
as prescribed in Kentucky River Medical Center, 356 NLRB No. 8 (2010), enf. denied on
other grounds sub.nom., Jackson Hospital Corp. v. NLRB, 647 F.3d 1137 (D.C. Cir.
2011).38
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended39
ORDER
The Respondent, Piggly Wiggly Midwest, LLC located at Sheboygan, Wisconsin, its
officers, agents, successors, and assigns, shall
1. Cease and desist from:
(a) Unilaterally reducing full-time employees to part-time status, causing them to lose
their full-time benefits, including the loss of or access to health insurance, without notifying or
bargaining with the Union.
(b) Reducing full-time employees to part-time status, causing them to lose their full-time
_________________________
Kraft Plumbing & Heating, 252 NLRB 891 (1980), enfd. mem. 661 F.2d 940 (9th Cir. 1981). See,
also Anderson Enterprise, 329 NLRB 760, 784 (1999), enfd. mem. 2 Fed.Appx. 1 (D.C. Cir.
2001); and Gaucho Food Products, Inc., 311 NLRB 1270, fn. 1 (1993).
36 As part of this remedy, no employee shall be required to leave a position which they
currently occupy against their will to return to their full-time positions occupied prior to
September 18, 2011. Rather, since they were removed from those prior positions based on an
unlawful unilateral change, their actual return to their prior position shall take place upon request
of the Union for each individual affected individual. Nevertheless, they shall be made whole in
terms of backpay and benefits until Respondent provides each a written offer to return to their
prior positions, with a copy of that offer served upon the Union.
37 Those employees in this class only include those employees who actually called in to
report an absence regardless of the time they called, whether it was before or after their
scheduled reporting times. In this regard, Respondent's policy called for 4 hours notice "if
possible" therefore any arguments after the fact must be construed against Respondent since it
created the ambiguity as to whether it would have found the reason provided justified when it
unilaterally changed the policy to accept no reason. On the other hand, Respondent has
demonstrated that it would have disciplined employees in the past who failed to call in at all, and
therefore they are not covered by the remedy provided for in this decision.
38 All changes to the above compensation remedies counsel for the Acting General Counsel
seek in their brief are deferred to the Board to the extent they are seeking changes in the
currently announced Board policy.
39 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 deemed
waived for all purposes.
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benefits, including the loss of or access to health insurance because of the employees'
membership in or support of the Union, and to discourage that support.
(c) Constructively discharging employees by causing them to quit by unilaterally
reducing them from full-time to part-time status causing them to lose their full-time benefits
without bargaining with the Union.
(d) Refusing to honor oral requests for information by the Union by informing them that
they have to put their requests in writing.
(e) Refusing to honor requests for information by the Union necessary and relevant to
the performance of its statutory functions, including requests for: the telephone numbers of
employees who were reduced from full-time to part-time status; predicted stores sales for Store
15; information pertaining to work schedules for Respondent's stores following the opening of
an area Festival Food store, and the number of full-time positions reduced or eliminated at Store
15 when a Walmart Supercenter opened in Sheboygan; information relating to attendance
records, disciplinary records relating to employees calling in to be absent from work, and
documents used to record employees calling in to be absent or tardy; and surveillance videos at
Store 15 for each department for the period of September 27 to November 8, 2011.
(f) Unilaterally changing its call in policy by issuing written warnings and two-day
suspensions to all employees that fail to provide 4 hours notice that they will not be reporting to
their scheduled shift.
(g) Denigrating the Union to its employees by posting letters containing statements such
as it was the Union's fault for the reduction of full-time employees to part-time status, and by
falsely accusing Union representatives of making statements that they did not have time to
represent the employees.
(h) Bypassing the Union and dealing directly with an employees concerning their wages,
hours, and other terms and conditions of employment by offering to rehire them at different
terms and conditions of employment from that which previously existed, and different from that
provided for under the most recent collective-bargaining agreement.
(i) In any like or related manner interfering with, restraining, or coercing employees in the
exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action to effectuate the policies of the Act.
(a) Within 14 days from the date of this Order make an offer to restore Tina Meinhardt, Dave
Meinhardt, Laura Hoffman, Shantel Edler, Kim Fisher, Laurie Hoppert, Tammy Edler, Pat
Grunke, Tanya Weisfeld, Robin Schubert, Lauriel Hanson, Sue Fliss, Brenda Thede, Andy
Sommersberger, Jeffrey Gross, Kelly Haak, Debbie Gerdes, and Abraham Gerharz to their
former full-time positions and benefits occupied prior to September 18, 2011, and make them
whole for any loss of earnings and other benefits suffered as a result of their reduction to part-
time status in the manner set forth in the remedy section of this decision, including, but not
limited to, reimbursing them for any medical expenses or costs they incurred as a result of their
losing their health insurance..
(b) Within 14 days from the date of this Order, remove from its files any reference to the
unlawful reduction to part-time status of the above 19 listed employees, and within 3 days
thereafter notify them in writing that this has been done and that their reductions will not be used
against them in any way.
(c) Provide the Union with:
1: The telephone numbers of employees who were reduced from full-time to part-time
status on September 18, 2011; and information maintained relating to predicted stores sales for
Store 15 for the prior 24 months to September 19, 2011, broken down on a weekly basis.
2. Information more fully described in items 3 and 4 of the Union's September 27, 2011,
written information request relating to work schedules for Respondent's stores following the
opening of an area Festival Food store, and the number of full-time positions reduced or
eliminated at Store 15 when a Walmart Supercenter opened on Sheboygan's south side.
3. Information more fully described in the Union's September 29, 2011, letter including
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attendance records, disciplinary records relating to employees calling in to be absent from work
within the past 24 months, and documents used to record employees calling in to be absent or
tardy for the past 24 months.
4. Make arrangements with the Union for viewing a complete set of surveillance videos
at Store 15 for each department for the period of September 27 to November 8, 2011.
(d) Apply the call in policy as it existed prior to September 17, 2011, and rescind any
discipline and suspensions and expunge them from its records for any employees disciplined
under that policy who called in at any time until the prior policy is reinstituted as directed by this
decision and order.
(e) Notify employees disciplined and suspended under the call in policy instituted on
September 17, 2011, including David Meinhardt, Justin Hernandez, Tammy Hahn, Margaryta
Cherkasova, Cheryl Warner, Taylor Gruenke, Kelli Fairbanks, and other similarly situated
employees in writing that the disciplines have been removed from their files and will not be
relied on for any reason, and make them whole for their suspensions, plus interest, in the
manner described in the remedy section of this decision.
(f) Remove the letters dated September 15, 2011 and September 22, 2011 from Manager of
Retail Operations Mary Zenisek from all bulletin boards at Store 15, and do not post them, or
any similar materials anywhere else in the store.
(g) Preserve and, within 14 days of a request, or such additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place to be 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 back pay due under the
terms of this Order.
( h) Within 14 days after service by the Region, post at its facility at Store 15 in Sheboygan,
Wisconsin copies of the attached notice marked “Appendix.”40 Copies of the notice, on forms
provided by the Regional Director for Region 30, after being signed by the Respondent's
authorized representative, shall be posted by the Respondent immediately upon receipt and
maintained for 60 consecutive days in conspicuous places including all places where notices to
employees are customarily posted at Store 15 in Sheboygan, Wisconsin. In addition to physical
posting of paper notices, notices shall be distributed electronically, such as by email, posting on
an intranet or an internet site, and/or other electronic means, if the Respondent customarily
communicates with its employees by such means. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these proceedings, the Respondent has gone
out of business or closed its operations at Sheboygan, Wisconsin, the Respondent shall
duplicate and mail, at its own expense, a copy of the notice to all current employees and former
employees employed by the Respondent at Store 15 at any time since September 14, 2011.
(i) 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.

40 If this Order is enforced by a Judgment of the United States Court of Appeals, the words
in the notice reading “POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD”
shall read “POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF
APPEALS ENFORCING AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD.”
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Dated, Washington, D.C. May 21, 2012
_______________________
Eric M. Fine
Administrative Law Judge
JD–21–12
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this Notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT refuse to bargain in good faith with the UNITED FOOD AND
COMMERICIAL WORKERS UNION LOCAL 1473 (the Union) as the exclusive representative of
our employees with respect to the terms and conditions of employment for employees in the
collective bargaining units described in our two most recent collective-bargaining agreements at
our Store 15 located in Sheboygan, Wisconsin.
WE WILL NOT unilaterally reduce full-time employees to part-time status, causing them
to lose their full-time benefits, including the eventual loss of or access to health insurance,
without notifying or bargaining with the Union, and because of the employees membership in or
support of the Union, and to discourage that support.
WE WILL NOT constructively discharge employees by causing them to quit by
unilaterally reducing them from full-time to part-time status causing them to lose their full-time
benefits without notice to and bargaining with the Union.
WE WILL NOT unilaterally change our call in policy by automatically issuing written
warnings and two-day suspensions to employees that fail to provide 4 hours notice that they will
not be reporting to their scheduled shift, without bargaining with the Union.
WE WILL NOT refuse to provide the Union with requested information necessary and
relevant to representing employees within its bargaining units at Store 15.
WE WILL NOT refuse oral information requests by the Union by asserting those
requests must be in writing.
WE WILL NOT refuse to provide the Union information by asserting that information is
confidential when that claim is not made in good faith, and with good cause shown.
WE WILL NOT bypass the Union and deal directly with employees concerning their
wages, hours, and other terms and conditions of employment by offering to rehire an employee
at different terms and conditions of employment from that which previously existed, and different
from that provided for under the most recent collective-bargaining agreement.
WE WILL NOT post letters or otherwise denigrate the Union to employees, by making
such statements as the Union was at fault for the reduction of full-time employees to part-time
status, and by falsely accusing Union representatives of making statements that they did not
have time to represent the employees.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees
in the exercise of the rights guaranteed them by Section 7 of the Act.
WE WILL within 14 days from the date of the Board's Order offer to restore Tina
Meinhardt, Dave Meinhardt, Laura Hoffman, Shantel Edler, Kim Fisher, Laurie Hoppert, Tammy
Edler, Pat Grunke, Tanya Weisfeld, Robin Schubert, Lauriel Hanson, Sue Fliss, Brenda Thede,
Andy Sommersberger, Jeffrey Gross, Kelly Haak, Debbie Gerdes, and Abraham Gerharz to
JD–21–12
their former full-time positions and benefits occupied prior to September 18, 2011, and make
them whole for any loss of earnings and other benefits suffered as a result of their reduction to
part-time status in the manner set forth in the Board's decision, including, but not limited to,
reimbursing them for any medical expenses or costs they incurred as a result of their losing their
health insurance.
WE WILL within 14 days from the date of the Board's Order, remove from our files any
reference to the unlawful reduction to part-time status of the 19 employees listed above, and
within 3 days thereafter notify them in writing this has been done and that their reductions will
not be used against them in any way.
WE WILL within 14 days from the date of the Board's Order provide the Union with the
following requested information as more fully described in the Board's Order including: the
telephone numbers of employees who were reduced from full-time to part-time status; predicted
stores sales for Store 15; information pertaining to work schedules for our stores following the
opening of an area Festival Food store, and the number of full-time positions reduced or
eliminated at Store 15 when a Walmart Supercenter opened in Sheboygan; information relating
to attendance records, disciplinary records relating to employees calling in to be absent from
work, and documents used to record employees calling in to be absent or tardy; and
surveillance videos at store 15 for each department for the period of September 27 to November
8, 2011.
WE WILL apply our call in policy as it existed prior to September 17, 2011, and rescind
any discipline and suspensions and expunge them from our records for any employees
disciplined under the policy adopted on or after September 17, 2011, who called in at any time
until the prior policy is reinstituted as directed by the Board's Order .
WE WILL notify employees disciplined and suspended under the call in policy instituted
on September 17, 2011, including David Meinhardt, Justin Hernandez, Tammy Hahn, Margaryta
Cherkasova, Cheryl Warner, Taylor Gruenke, Kelli Fairbanks, and other similarly situated
employees in writing that the disciplines have been removed from their files and will not be
relied on for any reason, and make them whole for their suspensions, plus interest, in the
manner described in the Board's Order.
WE WILL remove the letters dated September 15, 2011 and September 22, 2011 from
Manager of Retail Operations Mary Zenisek from all bulletin boards at Store 15, and not post
them anywhere else in the store.
PIGGLY WIGGLY MIDWEST, LLC
(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.
310 West Wisconsin Avenue, Federal Plaza, Suite 700Milwaukee, Wisconsin 53203-2211
Hours: 8 a.m. to 4:30 p.m. 414-297-3861.
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, 414-297-1819.
JD-21-12
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
PIGGLY WIGGLY MIDWEST, LLC
and Cases 30-CA-67117
30-CA-73311
UNITED FOOD & COMMERCIAL WORKERS
UNION, LOCAL 1473
Andrew S. Gollin, Esq., and Renee M. Medved, Esq.,
for the Acting General Counsel.
Mark A. Sweet, Esq. of Milwaukee, Wisconsin
for the Charging Party.
Gregory H. Andrews, Esq., of Chicago, Illinois, and
Andrew T. Frost, Esq., of Waukesha, Wisconsin
for the Respondent.
Table of Contents
Decision 1
Statement of the Case 1
Findings of Fact 2
I. Jurisdiction 2
II. Alleged Unfair Labor Practices 2
A. The testimony and evidence pertaining to individual employees
who were reduced from full-time status to part-time status
effective September 18 16
1. Laura Hoffman 16
2. Tina Meinhardt 19
3. Lauriel Hansen 19
4. Jeffrey Gross 19
5. Laurie Hoppert 20
6. Robin Schubert 23
7. David Meinhardt 24
B. Respondent changes it call in attendance policy
on September 17 24
C. Analysis 28
1. The duty to bargaining concerning the September 18
reduction of 19 full-time employees to part-time status 28
2. The constructive discharges of Jeffrey Gross,
Lauriel Hansen, Laura Hoffman and Tina Meinhardt 39
3. Direct dealing pertaining to Hoffman 40
4. Respondent denigrated the Union to employees 41
5. Respondent unilaterally changed its call in policy 43
6. The requests for information 45
JD-21-12
7. The September 18 reduction of 19 employees to
part-time status is violative of Section 8(a)1) and
(3) of the Ac 49
Conclusions of Law 51
Remedy 52
Order 53