Real Foods Co.

National Labor Relations Board - Board Decisions

Jul 23, 2007

350 N.L.R.B. 309 (N.L.R.B. 2007)

REAL FOODS CO.
350 NLRB No. 32
309
Fresh Organics, Inc., d/b/a Real Foods Company, a
Wholly-Owned Subsidiary of Nutraceutical Cor-
poration and Nutraceutical Corporation and
Adriel Ahern and Joshua Peach and Sarah
Genlot-Joslyn and United Food and Commercial
Workers Union, Local 648, United Food and
Commercial Workers International Union.
Cases 20–CA–31416–1, 20–CA–31449–1, 20–CA–
31461–1, 20–CA–31664–1, and 20–CA–31953–1
July 24, 2007
DECISION AND ORDER
BY MEMBERS SCHAUMBER, KIRSANOW, AND WALSH
On November 18, 2005, Administrative Law Judge
James M. Kennedy issued the attached decision. The
Respondents, the General Counsel, and Charging Party
Joshua Peach each filed exceptions and a supporting
brief.1 The Respondents filed answering briefs to the
exceptions of both the General Counsel and Charging
Party Peach. The General Counsel filed an answering
brief to the Respondents’ exceptions, and the Respon-
dents filed a reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,2 and conclusions
only to the extent consistent with this Decision and Or-
der.
Briefly, this case involves a nascent union organizing
campaign at one of the Respondents’ four San Fran-
cisco–area organic grocery stores, located at 24th Street
in Noe Valley. The complaint alleged that the Respon-
dents committed a series of unfair labor practices in re-
sponse to the organizing campaign, including threatening
store closure and job loss in violation of Section 8(a)(1),
implementing a service award program in violation of
Section 8(a)(1), terminating employees/Charging Parties
Adriel Ahern and Sarah Genlot-Joslyn in violation of
Section 8(a)(3), and closing the 24th Street store (dis-
charging 29 employees in the process) in violation of
Section 8(a)(3). The complaint also alleged that the Re-

1 The Respondents have requested oral argument. The request is de-
nied as the record, exceptions, and briefs adequately present the issues
and the positions of the parties.
2 The Respondents have implicitly excepted to some of the judge’s
credibility findings. The Board’s established policy is not to overrule
an administrative law judge’s credibility resolutions unless the clear
preponderance of all the relevant evidence convinces us that they are
incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd.
188 F.2d 362 (3d Cir. 1951). We have carefully examined the record
and find no basis for reversing the findings.
spondents refused to rehire former employee Kim Rohr-
bach in violation of Section 8(a)(3).
The judge found all of the alleged 8(a)(3) violations
and a violation of Section 8(a)(1) in the implementation
of the service award program, but dismissed the allega-
tions that the Respondents violated Section 8(a)(1) by
threatening store closure and job loss.3 Although it was
not alleged, the judge also found that the Respondents
violated Section 8(a)(1) by downgrading the annual
evaluation of Sonja Knaphus. The Respondents excepted
to each of the violations found; the General Counsel ex-
cepted to the 8(a)(1) dismissals; and the Respondents, the
General Counsel, and Charging Party Joshua Peach all
excepted to the judge’s proposed remedy.
We agree, for the reasons provided by the judge, that
the Respondents did not violate Section 8(a)(1) by mak-
ing threats of store closure or job loss,4 and that the Re-

3 The judge also found that Real Foods and Nutraceutical, Real
Foods’ corporate parent, were a single employer, and neither party
excepted to this finding. Nutraceutical manufactures vitamins and
nutritional supplements and markets them in health and natural food
stores. Nutraceutical acquired the four San Francisco–area organic
grocery stores between March and June 2002.
4 Member Walsh would find, contrary to the judge and his col-
leagues, that the Respondents made unlawful threats of job loss and
store closure by telling employee Kim Rohrbach that “co-workers who
are interested in forming a union might find themselves unemployed
rather than better employed” and that Respondent Nutraceutical’s chief
executive officer “would rather close stores than . . . deal with unions in
any way, shape or form.” The judge dismissed allegations that those
statements violated Sec. 8(a)(1), reasoning that the statements would
not have intimidated or coerced Rohrbach because they were made by
friendly managers who, so far as Rohrbach knew, had no direct knowl-
edge of or involvement in the Respondents’ plans in response to orga-
nizing activity. The question raised by the 8(a)(1) allegations here,
however, is not whether Rohrbach would have felt coerced by the
statements at issue; rather, the question is whether the statements had a
reasonable tendency to coerce employees in their choice whether to
engage in union activity. See, e.g., Miller Electric Pump & Plumbing,
334 NLRB 824, 824 (2001) (finding unlawful threat of plant closure
based on reasonable tendency of employer remark rather than “the
motivation behind the remark or its actual effect”); Southwire Co., 282
NLRB 916, 917–918 (1987) (finding unlawful threat of reprisal based
on reasonable tendency of low-level supervisor’s friendly suggestions).
The forecasts of job loss and store closure here—made by store de-
partment managers who, regardless of their lack of direct involvement
in the Respondents’ plans, were agents of the Respondents—
unquestionably had such a tendency and therefore violated Sec. 8(a)(1).
Members Schaumber and Kirsanow find that the cases relied on by
their dissenting colleague are distinguishable on their facts. In Miller
Electric Pump, the respondent’s owner repeatedly indicated that he
would have to close the business if forced to recognize a union. Miller
Electric Pump, supra at 824. In Southwire, a department supervisor
approached two open union supporters at work, threatening them with
reprisal for their union support and intimating that their support could
cause them to be laid off; the supervisor offered to accompany the
employees to the employee relations office if they would remove their
union badges and apologize, thus suggesting that the employees “could
evade layoffs by confessing to a change of mind.” Southwire, supra at
917–918. However, the statements involved in the present case are
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD310
spondents violated Section 8(a)(3) by terminating Ahern
and Genlot-Joslyn.5 Although we agree with the judge
that the Respondents also violated Section 8(a)(3) by
closing the 24th Street store, we rely solely on the rea-
soning set forth below. Finally, we reverse the judge’s
findings that (1) the Respondents violated Section 8(a)(1)
by implementing the service award program and by
downgrading Knaphus’ annual evaluation; and (2) the
Respondents violated Section 8(a)(3) by refusing to re-
hire Rohrbach.6 We discuss below those findings where
our analysis or result differs from the judge’s.
Service Award Program
The organizing campaign began in April 2003,7 when
Ahern, a cashier at the 24th Street store, began discuss-
ing unionization with her fellow employees. By early
May, the Respondents were aware of the campaign; a
24th Street assistant manager notified Bruce Remund,
Real Foods’ general manager and executive vice presi-
dent, of the campaign by e-mail on May 2. On May 22,
Remund held a mandatory managers’ meeting, which
included a training session on how managers should con-
duct themselves during the campaign. Employees began
holding their own weekly campaign meetings on May
26.
Also in April, Respondent Nutraceutical, Real Foods’
corporate parent, authorized Remund to extend a length-
of-service award to Real Foods’ employees; Nutraceuti-

markedly different and made in dissimilar circumstances. In one in-
stance, Rohrbach approached Department Manager Anthony Gadola
about the union organizing campaign; after indicating he felt “left out”
by both the employees and management, Gadola discussed his personal
feelings and experience with unionization, adding that his “co-workers
who are interested in forming a union might find themselves unem-
ployed rather than better employed.” In the second instance, which
occurred shortly after the store closure, Department Manager Eric Guy
called Rohrbach’s residence, which she shared with a woman Guy was
dating; discussing the closure with Rohrbach, Guy mentioned that he
had heard third-hand that Nutraceutical’s chief executive officer would
rather close stores than deal with a union. We view these statements as
the judge did—personal opinions and commiserations by low-level
supervisors not involved in the decision to close the 24th Street store.
On these facts, we find that the statements did not have a reasonable
tendency to coerce.
5 Contrary to the judge, Member Schaumber would not rely on the
statement made by Bruce Remund, Real Foods’ general manager and
executive vice president, to two supervisors (that Nutraceutical’s CEO
would close a store if it unionized) as itself establishing animus regard-
ing the discharges of Ahern and Genlot-Joslyn; rather, he would find
the evidence, at most, is relevant to finding an inference of animus. In
finding the violation, he also considers relevant the Respondents’ de-
parture from their established “employee correction system” in dealing
with the employees’ alleged performance issues.
6 Member Walsh dissents from his colleagues’ findings that the Re-
spondents did not violate Sec. 8(a)(1) by implementing a service award
program and did not violate Sec. 8(a)(3) by refusing to rehire employee
Rohrbach. See fns. 12 and 21, below.
7 All dates are 2003, unless otherwise noted.
cal had given out the award to its employees since at
least 1997. On June 18, Remund held a mandatory staff
meeting at the 24th Street store. During the meeting, he
announced that Real Foods was instituting the award,
and that two individuals employed at the 24th Street
store would receive one: Anthony Gadola, a vitamin and
beauty department manager, and K’Pu Bahimwakputa, a
vitamin department employee. Gadola and Bahimwak-
puta received gift cards of $200 and $600, respectively.8
Real Foods gave similar awards to 12 eligible individuals
at its other locations. Nutraceutical canceled the award
program on a corporatewide basis in 2004.
The judge found the service award program violated
Section 8(a)(1) because of its “timing and announced
annual nature” when the program in fact “disappeared
the following year.” The Respondents contend that the
service award program was an existing policy of
Nutraceutical, that Nutraceutical decided to extend the
award program to all of the Real Foods stores before the
Respondents were aware of any union activity, and that
the cancellation of the program the following year was a
corporatewide decision and not targeted at the 24th Street
store.
Analysis
The granting of benefits to employees in the middle of
union organizational activity “is not per se unlawful
where the employer can show that its actions were gov-
erned by factors other than the pending election.”
American Sunroof Corp., 248 NLRB 748, 748 (1980),
modified on other grounds 667 F.2d 20 (6th Cir. 1981).9
The General Counsel bears the burden of proving, by a
preponderance of the evidence, “that employees would
reasonably view the grant of benefits as an attempt to
interfere with or coerce them in their choice on union
representation.” Southgate Village Inc., 319 NLRB 916
(1995). If the General Counsel makes such a showing,
the burden shifts to the employer to demonstrate a le-
gitimate business reason for the timing of the benefit,
such as by proving that the benefit was “part of an al-
ready established Company policy and the employer did
not deviate from the policy upon the advent of the un-
ion.” American Sunroof, supra at 748; see also Dynacor
Plastics & Textiles, 218 NLRB 1404, 1404–1405 (1975)
(relying on the fact that the respondent granted an addi-
tional half-day holiday for Christmas to employees at all
of its locations in finding the grant was lawful); Nalco
Chemical Co., 163 NLRB 68, 70–71 (1967) (finding

8 The award was $200 for every 5 years of service.
9 This rule is applicable not only to benefits granted prior to an im-
pending representation election, but also to benefits conferred “during
an organization campaign but before a representation petition has been
filed.” Hampton Inn NY—JFK Airport, 348 NLRB 16, 17 (2006).
REAL FOODS CO. 311
improvements to vacation and holiday benefits did not
violate Sec. 8(a)(1) in part because improvements ap-
plied corporatewide). Contrary to the judge, we con-
clude that the General Counsel failed to meet his burden.
The General Counsel’s case relies principally on the
timing of the benefit. However, the record establishes
that the benefit stemmed from Nutraceutical’s decision in
the spring of 2003, before it was on notice of the organiz-
ing activity, to extend its existing service award benefit
to all Real Foods stores in the following quarter.10 The
General Counsel’s case is further weakened by the fact
that the Respondents only gave two awards (including
one to a department manager) at the 24th Street store,
which employed at least 28 individuals at the time.11
Additionally, the Respondents did not target the 24th
Street store—rather, the Respondents gave 12 more
awards to employees at other locations. Under these
circumstances, we find that the Respondents have proven
a legitimate business reason for the timing of the service
award, and that the General Counsel has failed to prove,
by a preponderance of the evidence, that the 24th Street
store employees would reasonably view the service
award as an attempt to coerce them in the union cam-
paign.12

10 The record also shows that Nutraceutical eliminated the benefit the
following year on a companywide basis, not just at the 24th Street
store.
11 The fact that the Respondents only gave two awards in a store that
employed at least 28 people at the time is noteworthy, as the Board may
examine, among other factors, the number of employees receiving a
benefit in determining if a benefit granted at the outset of a representa-
tion campaign would tend to unlawfully influence employees. See,
e.g., Perdue Farms, 323 NLRB 345, 352 (1997), enfd. in relevant part
144 F.3d 830 (D.C. Cir. 1998); B & D Plastics, Inc., 302 NLRB 245
(1991). Further, most employees at the 24th Street store would not
have had sufficient service to be eligible for the service award for sev-
eral years. Nalco Chemical, supra at 70.
In Member Walsh’s view, the fact that only two service awards were
presented to 24th Street store employees does not advance the major-
ity’s case. What is important is that the service award program was
introduced to all employees, and that the program constituted a favor-
able change to all employees’ terms and conditions of employment. In
any event, the fact that only 2 of the 28 store employees received
awards shows nothing more than that only 2 employees were eligible
under the terms of the award.
12 Unlike his colleagues, Member Walsh would find that the Re-
spondents’ conduct in regard to the length-of-service award program
violated Sec. 8(a)(1). The General Counsel established that the service
award program for Real Foods employees was unveiled just weeks after
employees at the 24th Street store began organizing. The Respondents’
defense—that they decided to extend this benefit to the Real Foods
employees prior to learning of their union activity—is unsupported by
documentation of any such corporate decision. Nor did the Respon-
dents offer any explanation why that “decision” was suddenly made,
over 1 year after Nutraceutical’s acquisition of Real Foods, why the
announcement was then delayed until after the employees began orga-
nizing, or why, once initiated, the benefit was rescinded the very next
year, once the Respondents were no longer faced with an organizing
Closure of the 24th Street Store
In acquiring the four grocery stores during the spring
of 2002, Nutraceutical sought to evaluate the viability of
a business that offered organic foods as well as vitamins
and supplements. To that end, Nutraceutical allowed the
stores to operate as they had while its personnel learned
the organic grocery business. Beginning in mid-2002,
Sergio Diaz, Nutraceutical’s director of marketing and
sales, was chiefly responsible for developing a new
“concept store,” which would involve remodeling one
existing store to serve as a prototype. The remodeling
was estimated to take 6 months to complete—3 months
for demolition, planning, and obtaining permits, and 3
months for construction. On April 22, Diaz completed a
demographic study of the neighborhoods served by the
four stores, undertaken in order to decide which store to
remodel. The Respondents had initially considered their
Sausalito store to be the best choice.
The Respondents learned of the organizing drive at the
24th Street store in early May. On August 7, Remund
and Diaz visited that store to meet with Store Manager
Conal Wilmot. During that meeting, which took place in
Wilmot’s office, employees Jon Burkett and Sonja
Knaphus interrupted, stating that they supported unioni-
zation and presenting Remund with a list of demands.
The next day, Wilmot called Burkett and Knaphus into
his office and accused them of sabotaging him.
On August 25, Real Foods’ two directors, Remund and
Nutraceutical Chief Financial Officer Leslie Brown, met
with Diaz and a Nutraceutical counsel and approved a
motion to close and remodel the 24th Street store. On
August 28, Remund informed Wilmot that the 24th
Street store would be closed that night. Remund and
Wilmot informed the night crew of the closure; other
employees were delivered, via an overnight delivery ser-
vice, notices of termination along with final checks and
severance pay. Six key individuals were retained, while
29 employees were discharged and told they could reap-
ply when the store reopened. There was no advance no-
tice to the landlords, nor was any notice given to any
vendors, who were either turned away or rerouted. Per-
ishable goods were thrown or given away, and nonper-
ishable goods were transferred to other stores.
Two days later, Diaz spoke with Dave Kloski, the
manager of another of the Respondents’ stores. Kloski
asked if the closure was “killing two birds with one
stone.” Diaz responded, “[y]es, the timing is good for

campaign. On that record, Member Walsh finds that the Respondents
failed to rebut the General Counsel’s case. See Sun Mart Foods, 341
NLRB 161, 162 (2004); Waste Management of Palm Beach, 329 NLRB
198, 198 (1999).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD312
that.” Kloski also asked about the terminated employees,
to which Diaz responded, “f__k ‘em.”
The judge found that the Respondents violated Section
8(a)(3) by the August closure of the 24th Street store.
The judge rejected the Respondents’ assertion that the
timing of the closing was based on the organic produce
season. From his own review of the Respondents’ pro-
duce sales records, the judge determined that closing at
the end of August did not “make[] sense” and that the
Respondents should have closed for 6 months of remod-
eling in October, when produce sales further declined,
because May seemed to him to be a better month to re-
open the store than March.13 The judge also took ac-
count of a series of the Respondents’ actions that he
found raised serious doubts about their choice of the 24th
Street store and their assertion that they made the deci-
sion in April. The judge observed the following: in
choosing the 24th Street store, the Respondents were
shutting down their only profitable store; they ordered a
new awning for the 24th Street store on July 18 and ob-
tained the requisite installation permit on August 21; they
hired 16 new employees at that store between April and
August, including 4 in August alone; they did not inform
the store manager, the employees, the vendors, the cus-
tomers, or the landlords in advance of the closing;14 and
they did not apply in advance for any permits for the
remodeling. Based on that evidence, the judge ultimately
found that the Respondents’ decision to close the 24th
Street store was not made until after Burkett and
Knaphus “began acting like a union” on August 7.15
The Respondents assert that the judge’s conclusion
was based on erroneous findings. They maintain that
their behavior was motivated by legitimate business con-
cerns and consistent with industry practice, and that their
financial statements indicate the decision to close was
well timed. In particular, the Respondents stress that the
evidence shows that union activity played no role in the
decision because Remund and Diaz allegedly decided in
April to remodel the 24th Street store—before the Re-
spondents were aware of any union activity. Regardless,

13 We do not rely on the judge’s business analysis. In a similar vein,
the judge rejected the Respondents’ assertion that they needed to close
the store to create blueprints for the remodeling, speculating that “any
professional designer could have easily measured the store and pre-
pared a blueprint to work from.” We find it unnecessary to rely on this
rationale either.
14 The judge commented that it was “beyond reason” that the Re-
spondents failed to give the landlord some notification, adding that,
even though the lease did not require such notice, “maintaining a good
relationship with the landlord is simply a good business practice.” We
do not pass on the merits of this observation.
15 In so finding, the judge implicitly discredited the testimony of
Remund and Diaz that they made the decision in April, after reviewing
the demographic study completed that month.
the Respondents maintain that they would have closed
the 24th Street store in the absence of any union activity,
as the demographic study and the financial statements
establish that the 24th Street store was the best choice
among the four stores to be remodeled.
Analysis
Although we reach the same conclusion as the judge,
we do so for the following reasons. Rather than looking
to the variety of business considerations discussed by the
judge (and countered by the Respondents in their excep-
tions), we instead focus on the timing and manner of the
closure in relation to the employees’ union activity.
We apply the Board’s Wright Line test16 to determine
if the Respondents’ decision to close the 24th Street store
was unlawful. Under this test, the General Counsel must
first prove, by a preponderance of the evidence, that the
decision was motivated by the employees’ protected
concerted activity. To carry his initial burden, the Gen-
eral Counsel must show that the employees had engaged
in protected activity and that the employer knew of the
activity. The General Counsel also must establish that
the activity was a substantial or motivating reason for the
employer’s action.17 If the General Counsel meets this
burden, then the burden of persuasion shifts to the em-
ployer to prove that it would have taken the same action
even in the absence of the protected conduct.
We agree that the General Counsel met his burden.
There is no dispute that employees were engaged in a
union campaign and that the Respondents were aware of
their activity as early as May 2. We also find that the
General Counsel established animus. The judge credited
evidence that Remund told two different supervisors that
Nutraceutical’s CEO would close a store if it unionized.
That evidence, considered together with the timing of the
closure in relation to Burkett’s and Knaphus’ conduct on
August 7 as well as the other contemporaneous violations
of Section 8(a)(3) in the discharges of Ahern (July 23)
and Genlot-Joslyn (June 26), is sufficient to establish

16 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982).
17 Unlawful motive may be demonstrated not only by direct evidence
but by circumstantial evidence, such as timing, disparate or inconsistent
treatment, expressed hostility toward the protected activity, departure
from past practice, and shifting or pretextual reasons being offered for
the action. See, e.g., Jewish Home for the Elderly of Fairfield County,
343 NLRB 1069, 1099 (2004), enfd. 2006 WL 898084 (2d Cir. 2006).
Regarding the Wright Line analysis, Member Schaumber notes that
the Board and circuit courts of appeals have variously described the
evidentiary elements of the General Counsel’s initial burden of proof
under Wright Line, sometimes adding as an independent fourth element
the necessity for there to be a causal nexus between the union animus
and the adverse employment action. As stated in Shearer’s Foods, 340
NLRB 1093, 1094 fn. 4 (2003), since Wright Line is a causation analy-
sis, Member Schaumber agrees with this addition to the formulation.
REAL FOODS CO. 313
animus. Thus, the burden shifts to the Respondents to
show that they would have closed the 24th Street store
for remodeling even in the absence of the union cam-
paign.
The Respondents produced a great deal of evidence
(including expert testimony and an accompanying report)
in an effort to establish that the selection, timing, and
manner of the closure were backed by legitimate busi-
ness concerns and consistent with industry practices.18
The Respondents also introduced evidence in an effort to
rebut many of the reasons the judge relied on in his deci-
sion.19 Although we do not second-guess an employer’s
business decisions, we find that the Respondents have
not met their burden.
Several factors lead us to that conclusion. First, the
Respondents offer no credible explanation for the 4-
month lag between the alleged decisionmaking in April
and the formalization of that decision in August. We
also agree with the judge concerning the significance of
the fact that the formal decision was made and an-
nounced within weeks of when Burkett and Knaphus
began “acting like a union” and presented the Respon-
dents with a list of demands. On this point, we find that
the preponderance of the evidence establishes that the
Respondents engaged in a series of escalating events
responding to the employees’ organizing campaign and
evidencing unlawful motive, beginning with the Respon-
dents’ awareness of the union campaign and employee
meetings (no later than May 2), the unlawful discharges
of Genlot-Joslyn and Ahern (June 26 and July 23, respec-
tively), the demands presented by Burkett and Knaphus
(August 7), and the closure of the store (August 28).
Finally, the “two birds with one stone” conversation be-
tween Kloski and Diaz that took place shortly after the
closure strongly suggests that the Respondents were mo-
tivated by their employees’ union activity, rather than
legitimate business reasons, when they chose to precipi-
tously close the 24th Street store. This inference is sup-

18 For instance, the profit-and-loss statement for the 24th Street store
demonstrates that figures such as gross sales, net sales, and net income
were all better for a 6-month period beginning in March than a 6-month
period beginning in May; the Respondents’ expert testified that he
would choose September to close because it marked the “trough” in
sales.
19 Regarding the awning ordered shortly before the closure, the Re-
spondents showed that the remodeling did not involve the store exte-
rior, and the existing awning at 24th Street was torn. With respect to
the Respondents’ failure to give notice to the landlord, the Respondents
demonstrated that the lease did not require them to give such notice,
and the judge so found. As for the fact that the Respondents hired four
employees at 24th Street in August, it is undisputed that Wilmot, the
24th Street manager, did not know that the store would be closed until
the night of the closure. Thus, unlike the judge, we do not rely on any
of those factors to support our decision.
ported by the credited evidence that Remund told two
supervisors on separate occasions that Nutraceutical’s
CEO would close a store if it unionized. In light of all
those considerations, we find that the Respondents have
failed to establish that they would have made the same
decision within the same timeframe in the absence of the
employees’ union activity.
Knaphus’ Evaluation
Soon after Knaphus and Burkett interrupted the man-
agement meeting on August 7, announced support for
unionization, and presented Remund a list of demands,
Wilmot gave Knaphus a performance review in which he
rated Knaphus as “poor” on interpersonal skills; Wilmot
explained that the rating was based on Knaphus’ disrup-
tion of the August 7 meeting. Although the Respon-
dents’ evaluation of Knaphus was not alleged as an inde-
pendent violation of Section 8(a)(1), the judge concluded
that the allegation was fully litigated and found the viola-
tion based on evidence elicited in connection with the
store closure allegation. The Respondents argue that the
judge erred in this regard, as the General Counsel only
introduced limited evidence and did not move to amend
the complaint.
Analysis
“It is well settled that the Board may find and remedy
a violation even in the absence of a specific allegation in
the complaint if the issue is closely connected to the sub-
ject matter of the complaint and has been fully litigated.”
Pergament United Sales, Inc., 296 NLRB 333, 334
(1989), enfd. 920 F.2d 130 (2d Cir. 1990). The “deter-
mination of whether a matter has been fully litigated
rests in part on whether . . . the respondent would have
altered the conduct of its case at the hearing, had a spe-
cific allegation been made.” Id. at 335. We find merit in
the Respondents’ exception. The record reflects that the
General Counsel asked Knaphus a minimal number of
questions regarding her appraisal and did not attempt to
introduce the appraisal as an exhibit. Furthermore, the
General Counsel made no attempt to amend the com-
plaint to allege the violation, and there is no other com-
plaint allegation that would have reasonably put the Re-
spondents on notice that this conduct was in issue. Un-
der these circumstances, we cannot conclude that the
Respondents were put on notice that Knaphus’ appraisal
was the subject of an alleged violation. Bouley, Inc., 306
NLRB 385, 386 (1992), supplemented by 308 NLRB 653
(1992), enfd. mem. 998 F.2d 1004 (3d Cir. 1993).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD314
Failure to Rehire Rohrbach
On May 6, 2004,20 Rohrbach answered the Respon-
dents’ online employment advertisement. Prior to her
termination when the 24th Street store closed, Rohrbach
had expressed unhappiness about working for a large
corporation, and at least one employee complained to
management on multiple occasions about Rohrbach’s
attitude. After the closure, she became involved with an
online group (Reform Real Foods) and she acknowl-
edged making public statements critical of the Respon-
dents, their management, and their products.
Although employed, she applied for a retail associate
position with Real Foods, sending her resume and a
cover letter by email to Kloski. Her cover letter ac-
knowledged her “vocal opposition to Nutraceutical’s
conduct in the whole 24th St affair,” she also stated that
she felt “given certain conditions, even [Remund, Diaz,
and Nutraceutical’s CEO Bill Gay] are capable of acting
in a responsible fashion,” and that Remund and Diaz
were not able to “destroy her appreciation for [her for-
mer] job.” On May 25, Rohrbach was interviewed by
Remund and Kloski. Rohrbach wore a union T-shirt and
a union button, and she was characterized as “prickly”
during her interview. Remund informed Rohrbach on
June 22 that the Respondents would keep her resume on
file, but she was not rehired. In late June, the Respon-
dents began hiring new employees through a contract
labor supplier, Aerotek Commercial Staffing, purport-
edly to mitigate their workers’ compensation risk. How-
ever, Kloski testified that, when he asked Remund if the
Respondents were using Aerotek as a way to keep Rohr-
bach out of the stores, Remund responded that Rohrbach
had “something to do with it.”
The judge found that the Respondents began working
with Aerotek shortly after the interview in order to “keep
Rohrbach out of the store,” that the Respondents pro-
vided shifting and additional reasons why Rohrbach was
not rehired, and that the Respondents had a policy of
denying rehire to former employees of the 24th Street
store because “it didn’t want union activists in its sys-
tem.” Based on those findings, the judge ultimately
found that the Respondents violated Section 8(a)(3) by
failing to rehire Rohrbach, finding that the Respondents
had not met their rebuttal burden of establishing that they
would not have rehired Rohrbach even in the absence of
her union activity. The Respondents argue that they did
not rehire Rohrbach because she made disloyal and mali-
ciously untrue statements about the Respondents and
their executives before she submitted her application for
rehire; she was not suited to the position; and she made it

20 All dates hereafter refer to 2004.
clear through her insulting cover letter and her manner in
her interview that she did not have any genuine interest
in the position.
Analysis
We reverse the judge’s finding of an 8(a)(3) violation.
The finding is based primarily on his reasoning that the
“Respondents’ policy against unionization overrides any
of [its] given reasons” for not rehiring Rohrbach, and
therefore “all [ the Respondents’] reasons” for not rehir-
ing Rohrbach, “whether factually accurate or not, simply
have no bearing” on the case. In this, the judge was
clearly in error. An employer is privileged to refuse to
hire a disrespectful applicant. Exterior Systems, Inc., 338
NLRB 677, 678 (2002). “There is no provision in the
Act or in the law developed by the Board that would re-
quire an employer to . . . [be] subjected to rude or intimi-
dating conduct.” Heiliger Electric Corp., 325 NLRB
966, 968 (1998). The record evidence—Rohrbach’s
cover letter, in particular—clearly demonstrates rude and
disrespectful behavior in a job applicant and does not
show that the Respondents seized on such behavior as a
pretext for not rehiring Rohrbach. On this limited basis,
we find that Rohrbach’s protected union activity was not
the basis for the Respondents’ refusal to rehire her, and
we reverse the judge’s finding.21
Remedial Exceptions
The Respondents excepted to the judge’s Order requir-
ing that they rehire the discharged employees directly,
rather than through a contract labor supplier. The

21 Member Walsh, dissenting, would affirm the judge’s finding that
the Respondents’ refusal to rehire Rohrbach was a violation of Sec.
8(a)(3). The Respondents’ knowledge of Rohrbach’s union activities
and support are obvious, and their animus toward the Union has been
abundantly established through their other unlawful conduct. Kloski’s
testimony that Remund admitted that a desire to keep Rohrbach out of
the store had “something to do” with the Respondents’ decision to
utilize a temporary agency to staff the store is additional evidence of
their discriminatory motivation. Thus, the General Counsel has clearly
established that antiunion considerations were a motivating factor.
Contrary to the majority’s conclusion, it is not enough for the Respon-
dents to establish, in rebuttal, that “rudeness” or “disrespect” are valid
reasons for not hiring an applicant. The Respondents must establish
that these were the actual reasons for the failure to hire Rohrbach, and
that they would have failed to hire her for those reasons even in the
absence of her protected activities. This they have failed to do. Rohr-
bach’s alleged “rudeness” and “disrespect” were in fact intertwined
with her protected activities, and the Respondents clearly harbored
animus toward those activities. In addition, Remund’s admission that
the Respondents used a temporary agency in part to avoid rehiring
Rohrbach is another clear indication that it would not have failed to
rehire her if she had not been so vocally prounion. In these circum-
stances, Member Walsh agrees with the judge that the Respondents
have failed to meet their burden and thus he would affirm the judge’s
finding that the Respondents’ failure to rehire Rohrbach violated Sec.
8(a)(3) of the Act.
REAL FOODS CO. 315
Board’s usual remedy for an unlawful discharge is resto-
ration of the employee to the position he would have
occupied had it not been for the respondent’s unlawful
action. In this case, such restoration means employment
with the Respondents, not with a contract labor supplier,
in the absence of a showing to the contrary by the Re-
spondent during the compliance process.
The Respondents also sought to limit the notice-
posting to the Respondents’ retail stores in California.
We find merit in this exception. The judge ordered that
the Respondents post notices not only at the California
stores directly implicated in this case, but also at “any
retail operation [the Respondents] may currently have
elsewhere in the United States.” But the record evidence
fails to provide a basis for such an expansive notice-
posting requirement. There is little record evidence at all
about the stores outside California, much less evidence
sufficient to demonstrate that the Respondents’ unlawful
conduct here affected employees at those stores. Accord-
ingly, consistent with the record evidence and our single-
employer finding, we have modified the remedy to re-
quire posting of the notice only at Real Foods’ retail op-
erations in California and Nutraceutical’s corporate facil-
ity in Utah.22
The General Counsel sought modification of the Order
to clarify that the Respondents are required to mail no-
tices to all employees who were discharged as a result of
the 24th Street store closing. We have modified the Or-
der in accordance with the General Counsel’s request, as
the Board routinely orders mailing of the notice to em-
ployees in the event of a facility closure. See Reigel
Electric & Central Electric Services, 341 NLRB 198,
198 fn. 2 (2004); accord: Indian Hills Care Center, 321
NLRB 144, 144 (1996).
The General Counsel also sought to have the Respon-
dents ordered to displace, if necessary, less senior em-
ployees to accommodate the 29 employees who were
discharged as a result of the 24th Street store closure.
The judge ordered that the Respondents displace more
junior employees to accommodate the two individual
discriminatees herein, Ahern and Genlot-Joslyn, but not
the 29 discriminatees associated with the 24th Street
store closure. The standard Board remedy for an unlaw-
ful termination is full reinstatement of the terminated
employee to his former position, if it exists, without
prejudice to his seniority or other rights or privileges

22 Member Kirsanow would not require notice-posting at Nutraceuti-
cal’s corporate facility in Utah for the same reason that he joins his
colleagues in declining to require posting at the Respondents’ retail
operations beyond the California stores directly implicated in this case.
The record is devoid of any evidence that employees at the Utah corpo-
rate facility were affected by the unfair labor practices found herein.
previously enjoyed. Accordingly, like the judge, we
deem it appropriate to give the 29 employees discharged
as a group a right to reinstatement if and when the 24th
Street store reopens and, if there are insufficient posi-
tions there, a preferential right of hire at the Respon-
dents’ other San Francisco area stores. Had Ahern and
Genlot-Joslyn not been unlawfully discharged, we find
that they would have been included among those em-
ployees terminated upon the unlawful store closure.
Thus, their reinstatement remedy should be no better
than that of the 29 employees discharged when that store
closed, and we reject the judge’s different treatment of
them.23
Charging Party Joshua Peach also filed several excep-
tions to the judge’s recommended Order, seeking various
extraordinary remedies as well as a bargaining order.
We find no merit in these exceptions, as the Board’s tra-
ditional remedies are sufficient to address the unfair la-
bor practices found.
AMENDED CONCLUSIONS OF LAW
1. Delete the judge’s Conclusions of Law 5, 6, and 10
and renumber the remaining paragraphs accordingly.
ORDER
The National Labor Relations Board orders that the
Respondents, Fresh Organics, Inc., d/b/a Real Foods
Company a Wholly-Owed Subsidiary of Nutraceutical
Corporation, San Francisco, California, and Nutraceuti-
cal Corporation, Park City, Utah, a single employer, their
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against
any employee for supporting United Food and Commer-
cial Workers Union, Local 648, United Food and Com-
mercial Workers International Union, or any other labor
organization.
(b) Closing a part of their business, such as one of their
retail stores, in a manner that has the necessary and fore-
seeable effect of interfering with, restraining, or coercing
their employees from freely exercising their rights under
Section 7 of the Act.
(c) In any other manner interfering with, restraining, or
coercing employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.

23 Although we reverse the judge’s finding of an 8(a)(3) violation re-
garding the failure to rehire Rohrbach, we note that Rohrbach is one of
the discriminatees encompassed in the remedy for the Respondents’
unlawful closure of the 24th Street store. Members Schaumber and
Kirsanow would allow the Respondents to litigate Rohrbach’s individ-
ual remedy in compliance proceedings, based on the above reversal of
the refusal to rehire her.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD316
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
Sarah Genlot-Joslyn, Adriel Ahern, and the 29 discrimi-
natees named below full reinstatement to their former
jobs or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their seniority
or any other rights or privileges previously enjoyed.
Unless and until positions are available at the 24th Street
store for all of the discriminatees, place those discrmina-
tees for whom jobs are not available on a preferential
hiring list for employment at the Respondents’ remaining
San Francisco area grocery stores as jobs become avail-
able.
Dorothy R. Adams Sonja (Simon) Knaphus
Sean B. Andrews Diana H. Kuemmel
Jonathan H. Burkett Colin R. Lapuyade
Kelly M. Cronin Greg M. Lashaw
Sharna D. Fey Michael A. Lopez
Christina D. Fisher Rita J. Morris
Zoe Friedman-Cohen Shawn M. Mowell
Charles A. Glover Ryan P. Newton
Wendy L. Granger Joshua L. Peach
Shaun M. Hannan Adam L. Rabinovitz
Adrian J. Hernandez Kimberly M. Rohrbach
Kristin D. Hornstra George W. Schulz
Sarianne Huyett Brian J. Schumacher
Shauna L. Katz Jennifer A. Stone
Dallas A. Kavanagh
(b) Make Sarah Genlot-Joslyn, Adriel Ahern, and the
29 other discriminatees named above whole for any loss
of earnings and other benefits suffered as a result of the
discrimination against them, in the manner set forth in F.
W. Woolworth Co., 90 NLRB 289 (1950), with interest
as prescribed in New Horizons for the Retarded, 283
NLRB 1172 (1987).
(c) Within 14 days from the date of this Order, remove
from their files any reference to the unlawful discharges
of Sarah Genlot-Joslyn, Adriel Ahern, and the 29 other
discriminatees named above, and within 3 days thereafter
notify the discriminatees in writing that this has been
done and that these unlawful discharges will not be used
against them in any way.
(d) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(e) Within 14 days after service by the Region, post at
their stores in California and at their facility in Park City,
Utah, copies of the attached notice marked “Appendix
A.”24 Copies of the notice, on forms provided by the
Regional Director for Region 20, after being signed by
the Respondents’ authorized representative, shall be
posted by the Respondents and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondents to ensure
that the notices are not altered, defaced, or covered by
any other material. In the event that, during the pend-
ency of these proceedings, either Respondent goes out of
business, the Respondent or Respondents shall duplicate
and mail, at their own expense, a copy of the notice to all
current employees and former employees employed by
the Respondents at any time since June 26, 2003.
(f) Within 14 days after service by the Region, dupli-
cate and mail, at their own expense, copies of the at-
tached notice marked “Appendix B”25 to all current em-
ployees and former employees employed by the Respon-
dents at their 24th Street, San Francisco, California facil-
ity at any time since June 26, 2003. Copies of the notice,
on forms provided by the Regional Director for Region
20, shall bear the signature of the Respondents’ author-
ized representative and shall be mailed to the last known
address of each of the employees.
(g) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondents have taken to
comply.
APPENDIX A
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.

24 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
25 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
REAL FOODS CO. 317
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT discharge or otherwise discriminate
against any of you for supporting United Food and
Commercial Workers, Union Local 648, United Food
and Commercial Workers International Union, or any
other labor organization.
WE WILL NOT close a part of our business, such as one
of our retail stores, in a manner that has the necessary
and foreseeable effect of interfering with, restraining, or
coercing our employees from freely exercising the rights
set forth above.
WE WILL NOT In any other manner interfere with, re-
strain, or coerce you in the exercise of the rights set forth
above.
WE WILL, within 14 days from the date of the Board’s
Order, offer Sarah Genlot-Joslyn, Adriel Ahern, and the
29 employees named below full reinstatement to their
former jobs or, if those jobs no longer exist, to substan-
tially equivalent positions, without prejudice to their sen-
iority or any other rights or privileges previously en-
joyed. Unless and until positions are available at the
24th Street store for all of the employees named here, WE
WILL place those named employees for whom jobs are
not available on a preferential hiring list for employment
at our remaining San Francisco–area grocery stores as
jobs become available.
Dorothy R. Adams Sonja (Simon) Knaphus
Sean B. Andrews Diana H. Kuemmel
Jonathan H. Burkett Colin R. Lapuyade
Kelly M. Cronin Greg M. Lashaw
Sharna D. Fey Michael A. Lopez
Christina D. Fisher Rita J. Morris
Zoe Friedman-Cohen Shawn M. Mowell
Charles A. Glover Ryan P. Newton
Wendy L. Granger Joshua L. Peach
Shaun M. Hannan Adam L. Rabinovitz
Adrian J. Hernandez Kimberly M. Rohrbach
Kristin D. Hornstra George W. Schulz
Sarianne Huyett Brian J. Schumacher
Shauna L. Katz Jennifer A. Stone
Dallas A. Kavanagh
WE WILL make Sarah Genlot-Joslyn, Adriel Ahern,
and the 29 other employees named above whole for any
loss of earnings and other benefits resulting from their
dischange, less any net interim earnings, plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful discharges of Sarah Genlot-Joslyn, Adriel Ahern, and
the 29 other employees named above, and WE WILL,
within 3 days thereafter, notify each of them in writing
that this has been done and that these unlawful dis-
charges will not be used against them in any way.
FRESH ORGANICS, INC., D/B/A REAL FOODS
COMPANY, A WHOLLY-OWNED SUBSIDIARY OF
NUTRACEUTICAL CORPORATION AND NUTRA-
CEUTICAL CORPORATION
APPENDIX B
NOTICE TO EMPLOYEES
MAILED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to mail and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT discharge or otherwise discriminate
against any of you for supporting United Food and
Commercial Workers Union, Local 648, United Food
and Commercial Workers International Union, or any
other labor organization.
WE WILL NOT close a part of our business, such as one
of our retail stores, in a manner that has the necessary
and foreseeable effect of interfering with, restraining, or
coercing our employees from freely exercising the rights
set forth above.
WE WILL NOT In any other manner interfere with, re-
strain, or coerce you in the exercise of the rights set forth
above.
WE WILL, within 14 days from the date of the Board’s
Order, offer Sarah Genlot-Joslyn, Adriel Ahern, and the
29 employees named below full reinstatement to their
former jobs or, if those jobs no longer exist, to substan-
tially equivalent positions, without prejudice to their sen-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD318
iority or any other rights or privileges previously en-
joyed. Unless and until positions are available at the
24th Street store for all of the employees named here, WE
WILL place those named employees for whom jobs are
not available on a preferential hiring list for employment
at our remaining San Francisco area grocery stores as
jobs become available.
Dorothy R. Adams Sonja (Simon) Knaphus
Sean B. Andrews Diana H. Kuemmel
Jonathan H. Burkett Colin R. Lapuyade
Kelly M. Cronin Greg M. Lashaw
Sharna D. Fey Michael A. Lopez
Christina D. Fisher Rita J. Morris
Zoe Friedman-Cohen Shawn M. Mowell
Charles A. Glover Ryan P. Newton
Wendy L. Granger Joshua L. Peach
Shaun M. Hannan Adam L. Rabinovitz
Adrian J. Hernandez Kimberly M. Rohrbach
Kristin D. Hornstra George W. Schulz
Sarianne Huyett Brian J. Schumacher
Shauna L. Katz Jennifer A. Stone
Dallas A. Kavanagh
WE WILL make Sarah Genlot-Joslyn, Adriel Ahern,
and the 29 other employees named above whole for any
loss of earnings and other benefits resulting from their
discharge, less any net interim earnings, plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful discharges of Sarah Genlot-Joslyn, Adriel Ahern, and
the 29 other employees named above, and WE WILL,
within 3 days thereafter, notify each of them in writing
that this has been done and that these unlawful dis-
charges will not be used against them in any way.
FRESH ORGANICS, INC., D/B/A REAL FOODS
COMPANY, A WHOLLY-OWNED SUBSIDIARY OF
NUTRACEUTICAL CORPORATION AND NUTRA-
CEUTICAL CORPORATION
Kathleen C. Schneider and Robert Guerra, for the General
Counsel.
Stephen J. Hirschfeld and Carmen Plaza de Jennings (Curiale,
Dellaverson, Hirschfeld & Kraemer), of San Francisco,
California, for the Respondents.
Alan C. Davis (Davis & Reno), of San Francisco, California,
for Local 648.
Caren P. Spencer and David Rosenfeld (Weinberg, Roger &
Rosenfeld), of Oakland, California, for Charging Party
Peach.
DECISION
STATEMENT OF THE CASE
JAMES M. KENNEDY, Administrative Law Judge. This case
was tried in San Francisco, California, for 8 days between
March 21 and April 22, 2005, on a consolidated complaint
issued on December 20, 2002, by the Acting Regional Director
for Region 20 of the National Labor Relations Board (the
Board). The complaint is based on an unfair labor practice
charges filed by three individuals and Local 648 of the United
Food and Commercial Workers Union (the Union). The initial
unfair labor practice charge was filed on August 11, 2003,1 and
the others followed on September 2 and 8, October 9, and De-
cember 23. Some were subsequently amended. The consoli-
dated complaint alleges that Fresh Organics, Inc., d/b/a Real
Foods Company, a wholly-owned subsidiary of Nutraceutical
Corporation has violated Section 8(a)(3) and (1) of the National
Labor Relations Act (the Act). At the hearing, I granted the
General Counsel’s motion to join Nutraceutical Corporation as
a Respondent, based on a complaint amendment alleging that
both corporations are a single employer. For the most part, I
shall refer to Fresh Organics as “Respondent,” pluralizing when
referring to both. With that in mind, Respondents deny all the
salient allegations.
Issues
The complaint alleges that in response to a nascent union or-
ganizing drive in 2003, Respondent discharged employees (and
Charging Parties) Adriel Ahern and Sarah (Mitch) Genlot-
Joslyn in violation of Section 8(a)(3). It also asserts that on
August 29 it closed one of its retail stores (24th Street) in viola-
tion of Section 8(a)(3), thereby discharging 29 other employ-
ees; later the complaint asserts, in May 2004, it refused to re-
hire 1 of the 29, Kim Rohrbach, also in violation of Section
8(a)(3). In addition, the complaint alleges that certain of Re-
spondent’s supervisors, in violation of Section 8(a)(1), inter-
fered with, restrained, and coerced employees in their Section 7
rights to engage in union organizing.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by both the General Counsel and Respondents, I make the fol-
lowing
FINDINGS OF FACT
I. JURISDICTION
Based on both the pleadings and certain testimony, Respon-
dent is a corporation headquartered in Park City, Utah. It is the
wholly-owned subsidiary of Nutraceutical Corporation
(Nutraceutical), a Delaware corporation, also having its head-
quarters at the same location in Park City, Utah. The shares of
Nutraceutical Corporation are publicly traded on the NASDAQ.
Respondent operates a small chain of retail grocery stores
specializing in organic foods, produce, and vitamins. It admits
that during 2003 its gross volume exceeded $500,000 and that it
directly received goods from outside the State of California
valued in excess of $50,000. Accordingly, it is an employer

1 All dates are 2003, unless otherwise indicated.
REAL FOODS CO. 319
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
II. THE UNFAIR LABOR PRACTICES
A. The Setting
Before early 2002, Jane and Kimball Allen operated a small
chain of neighborhood grocery stores in San Francisco and
Sausalito. The chain consisted of at least four stores and traded
as “Real Foods.” The stores were, and still are, rather small.
They are located in or near residential areas. None of them has
a dedicated parking lot, although street parking is available to
varying degrees depending on the neighborhood. All of the
stores had a reputation for carrying organic produce, i.e., pro-
duce grown free of chemical additives. Indeed, one of the
stores, located on Stanyan Street, is said to be the birthplace of
organic produce retailing.
That reputation came to the attention of Nutraceutical Corpo-
ration which was seeking to extend its business. Nutraceutical
is a publicly-traded manufacturer of vitamins and food supple-
ments. It sells its products directly to health food stores, prefer-
ring to avoid distributors. Apparently, sometime in 2001 it
determined that it might improve its market share by marrying
the organic food store concept with its vitamin and food sup-
plement lines. As a result, in March 2002 it acquired three of
the stores operated by the Allens. These were the Sausalito,
Noe Valley (24th Street), and The Haight (Stanyan Street)
stores. They did not acquire the store located on Polk Street.
Three months later, in June 2002, Nutraceutical acquired a
fourth store, the Thom’s (unrelated to the Allens’ Real Foods)
on Geary Boulevard. All four stores are similarly sized, about
5000 square feet. The Stanyan Street store, occupying an old
house, is divided in half by a delivery area, formerly the garage.
One side sells grocery and produce while the other side sells the
vitamins and food supplements. The other three are rectangu-
lar, consistent with the retail industry term, “small box.”
When Respondent acquired these stores, it also placed the
predecessors’ employees on its payroll and began operating
them relatively seamlessly, leaving the “Real Foods” and
“Thom’s” logos on them while adding its own “Fresh Organ-
ics” logo. All the stores have relatively small staffs. For ex-
ample, although the 24th Street store, when it closed, had over
30 employees on the payroll, because of limited schedules and
shifts, it was normally staffed with 11 or fewer employees.
Early on Sundays, for example, it operated with only two. No
doubt the others operated in a similar fashion.
As a corporate matter, Nutraceutical Corporation created
Fresh Organics on the fly, rehiring one of its former managers,
Bruce Remund, as the chain’s general manager and appointing
him as Respondent’s executive vice president. Remund lives
and works in Utah, officed at Nutraceutical’s Park City head-
quarters while residing in Salt Lake City. He reports directly to
Bill Gay, Nutraceutical’s chief executive officer. The record is
not entirely clear how frequently after the acquisition Remund
visited the stores, but it may be inferred that it was about once a
month. The stores operated reasonably well without his pres-
ence. The stores’ management and buyers were experienced
and knew their jobs. Furthermore, Remund kept in touch with
the stores by telephone and other electronic means.
Remund testified that one of Nutraceutical’s objects in ac-
quiring the stores was to create a new concept to see whether
their idea of merging organic produce with vitamins/food sup-
plements was a viable business plan. According to Remund,
the strategy was to allow the four stores to proceed for about a
year essentially in the manner in which they had been pur-
chased, allowing him and Nutraceutical management time to
learn the business while at the same time developing a concept
for its new brand, Fresh Organics. Sergio Diaz, Nutraceutical’s
director of marketing and sales, testified that the idea was to try
to present their products in neighborhood markets while dis-
playing a French country motif, something evocative of the
produce markets of Provence, yet computer-age efficient. Diaz
testified he was responsible for developing the concept. In-
deed, that model was transmitted to some of the Real Foods
holdover managers, including Gerald Burt, the erstwhile store
manager at Sausalito. Indeed, according to Remund and Diaz,
the Sausalito store was, from the beginning, believed to be the
store that would most likely become “the concept store.” Some
of Respondent’s early plans are memorialized in a so-called
operational update meeting program dated July 18, 2002,
shortly after the takeover. There, Remund discussed a wide
range of subjects with the store managers; however, the “con-
cept store” was not mentioned in the agenda, probably because
the plan had yet to crystallize. In addition, two Nutraceutical
officials made training presentations on store safety and human
resource policies which were being imposed. Some employee
incentive programs were proposed at the meeting but were
never implemented.
B. Early Evidence of Union Animus
Jeffrey Irish was one of two comanagers of the Thom’s loca-
tion when the takeover occurred. Since Remund did not want
two managers in a store, Irish initially became the assistant
manager. He was terminated in February when the assistant
manager job was eliminated and he refused to take a pay cut.
The Thom’s store, having a more spacious office, was often
used for managerial meetings. Irish testified that he attended
such a meeting there, conducted by Remund, in November
2002. He recalled that the day before the meeting a labor union
had distributed leaflets at the store. The next day the leafleting
became a topic of conversation shortly before the meeting be-
gan. Remund asked Irish if it was true that such leafleting had
occurred. When Irish responded it was, according to Irish,
Remund said: “Well, if they ever unionize, Bill Gay would
close the store.” Irish says he was shocked, and therefore had a
good memory of Remund’s comment. Remund did not deny
making such a remark to Irish.
C. The Employees at 24th Street; More Animus
According to Joshua Peach, a produce worker at the 24th
Street store, in April the employees began discussing whether
they might be better off being represented by a union. Several
of the employees were entertaining misgivings about working
for a large corporation and had been more comfortable working
in a family business atmosphere. Peach says it was not until
May that the employees began getting serious about unionizing.
He said he was initially approached about it by cashier Adriel
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD320
Ahern. Peach says she sounded him out about whether he
would be interested. He was, and attended the first employee
meeting held after work at 9 p.m., on May 26 at the Chinese
restaurant next door. Ahern testified that she had first con-
tacted a union on April 23. After the employees began meeting
regularly at the restaurant, they settled on UFCW, Local 648 as
the Union best suited to their interests; in June other employees,
including Jonathan Burkett, began soliciting authorization cards
for Local 648 from other 24th Street employees.
However, on May 2, well before the employees had even set-
tled upon Local 648, product coordinator Sara Hasson (a mana-
gerial employee), sent Remund an e-mail saying “Bruce—there
is a union drive in progress at 24th St. I just found out yester-
day and I don’t think Conal [store manager Conal Wilmot]
knows anything about it.” She offered to speak to him further
about what she knew. Remund replied the next day that he
would call Wilmot “as well as our Sr. Executive Team as to
how I should proceed.” On May 22, Remund convened a man-
agers meeting at the Thom’s store. The attendees included both
Wilmot and Dave Kloski, then the manager of the Stanyan store
but Wilmot’s predecessor at 24th Street, along with Hasson.
Kloski testified he had a separate conversation with Remund
before the meeting began. His testimony:
Q. [BY GUERRA] And what was said during that con-
versation?
A. [WITNESS KLOSKI] Well, the one thing that I re-
member clearly was, [Remund] told me that he had had a
meeting with his boss the night before, and that his boss
told him that he would rather close the store than run a un-
ion shop there.
Q. Who is his boss?
[Objection interposed.]
THE WITNESS: Bill Gay. [Nutraceutical CEO.]
Kloski later repeated what Remund had said to several oth-
ers, including Wilmot, Hasson, and one of his own department
managers, Eric Guy. Kloski said in later conversations he had
with Remund and Wilmot, they told him the union organizers
were Ahern, Burkett and cashier Lisa Fagundes.
Nevertheless, at the May 22 managers meeting, a Nutraceu-
tical staff attorney, Steven Langto, conducted a training session
regarding the proper way management should respond to union
organizing. Remund described it as a “do’s and don’ts” discus-
sion. Remund says he never did tell Wilmot that Hasson had
reported a union was targeting his store.
Sometime in mid-May, Ahern approached Genlot-Joslyn to
inquire if she was interested in union representation. She re-
plied that she was and Ahern testified that Genlot-Joslyn be-
came very excited about the Union and immediately became
very involved in the process.
During the workday on May 26, and aware of the employee
meeting scheduled for that evening, part-time cashier Jessie
Dameron had a conversation with Store Manager Wilmot. She
gave the following testimony about it:
Q. [BY SCHNEIDER]: Did you ever have a discussion
about the union with a supervisor or manager?
A. Yes.
Q. When was that conversation?
A. That conversation took place on May 26th, Memo-
rial Day.
Q. And where was that conversation?
A. It was in the front of the store at the cash register.
Q. And who was present during that conversation?
A. Just Wilmot and myself.
Q. What was said and who said it?
A. As he approached, I asked him if he was going to
the meeting later on that night. He asked me what meet-
ing? And I said to him, the union meeting. He said, “who
told you about the union meeting?” And I replied,
“Mitch,” as in Mitch Genlot.
Also, in late May, Kim Rohrbach had two separate conversa-
tions with two individuals she believed were statutory supervi-
sors. The first, on May 28, only 2 days after the first employee
meeting, was with the assistant manager at 24th Street, Ryan
Rostvold. It occurred as they were leaving a San Francisco
Giants baseball game. She asserted to him that “[s]urely he had
heard about the Union.” He responded that he had not. Subse-
quently, she says he told her he wasn’t sure that unionizing
would be the best approach with Fresh Organics. She offered
that she wasn’t sure either. The second was with Anthony
Gadola, the manager of 24th Street’s vitamin and health and
beauty aids department. Rohrbach had heard that Gadola was
upset because no one had informed him about the union orga-
nizing and he was supposedly feeling left out and alienated,
both by the employees and management. She testified that
upon observing to Gadola that she had some “divided feelings”
about unionization, particularly since Mitch Genlot-Joslyn was
heavily involved: “Anthony said to me that he felt that in his
experience such things as organizing drives brought about divi-
siveness in the workplace. I said that was a possibility. An-
thony finally said to me, as a result of organizing, my ‘co-
workers who are interested in forming a union might find them-
selves unemployed rather than better employed.’ I don’t recall
if I said anything at that point.” On cross–examination, Rohr-
bach conceded that Gadola may have simply been expressing
his opinion regarding the consequences of union organizing,
rather than saying that employees would lose their jobs if they
became represented by a union. I find that he was expressing
his personal opinion and that Rohrbach understood it as such.
A similar conversation occurred between Gadola and Genlot-
Joslyn, apparently sometime in mid-June. Genlot-Joslyn initi-
ated it near the cash register and simply assured Gadola that the
employees were not working against him and he shouldn’t take
it personally. She says he told her he was just feeling left out,
since management wasn’t keeping him informed either. She
does not say Gadola said anything more.
On June 10, Dorothy (Dot) Adams, another 24th Street cash-
ier, attended a birthday party for Kloski’s wife, Taryn, at the
Kloski’s apartment. Adams testified:
Taryn and I were in the kitchen chatting and Dave from the
other room said, you know, calling to me, “Hey Dot, what do
you know about unions?” And I said, “Well, not very much.
I know my husband is in a union.” And he said, “Well, how
do you feel about unions?” And I said, “Well, it’s working
out great for us.”
REAL FOODS CO. 321
And he said, “Well, what do you know about union
stuff at 24th Street?” And I said, “I don’t know anything,
Dave.” And at this point Taryn interrupted and said,
“Dave, if you have anything to say, be direct.” So, Dave
asked me directly what I knew about Adriel, Mitch or Kim
[Rohrbach] unionizing.
Q. And what did you say?
A. I said I didn’t know anything.
Q. And was this prior to—do you know if this was
prior to Mitch’s termination?
A. Yes, it was.
Q. And how do you know that?
A. Because I went to the store to warn them.
Kloski did not really deny Adams’s testimony, but did trun-
cate the incident: “Q. And did the union issue come up in the
conversation? A. Sort of. I asked her if she had heard any-
thing about the 24th Street store lately. She said, ‘No.’ I asked
her had she talked to Adriel lately. She said, ‘No.’ As far I can
recall that was the extent of it.”
I see no reason not to credit Adams’ testimony in its entirety;
her recall of the details was impressive. It appears, therefore,
that by June 10, Respondent knew or had good reason to be-
lieve that both Ahern and Genlot-Joslyn were two of the princi-
pal union organizers. At the same time, it also knew that
Burkett and Fagundes were involved. There was also reason to
suspect Rohrbach, although the evidence regarding her in-
volvement was then inconclusive, given her equivocation to
Rostvold.
D. The Discharges
Beginning in mid-June, a number of incidents which the
General Counsel asserts are evidence of union animus began to
occur. The first concerned the daily sweep log at 24th Street.
The store, like any, requires a swept floor for both safety and
esthetic reasons. Over the years, even before Respondent’s
takeover, a weekly log was kept, to be initialed by the employ-
ees who swept both the produce department and the remainder
of the store, showing the time of the sweep. There was no writ-
ten rule concerning the requirement, though some believed its
maintenance was OSHA-mandated. Apparently, during May
and/or early June, the store ran out of forms and the logs could
not be initialed.
On June 16, Wilmot told Ahern, serving as the lead cashier
for the day, that they needed to have a meeting. Subsequently,
during their discussion Wilmot told her that the logs needed to
be kept and it was her responsibility to see that the sweepers
did so. She says she later learned that he or Rostvold had said
something similar to fellow lead cashier Fagundes. When
Ahern and/or Fagundes told the other employees about Wil-
mot’s reemphasis over the sweep logs, Kim Rohrbach was
taken aback. She confronted Wilmot and Rostvold about it
asserting that they had more or less ignored the sweep log for
months on end and it wasn’t right to suddenly begin chastising
them; it was adding unnecessary stress to the workplace. Rost-
vold denied they had ignored the logs “for months on end.”
The record does not show Wilmot’s response, if any.
Another view of the sweep log history comes from Mitch
Genlot-Joslyn. According to her, prior to the fall of 2002 the
sweep logs had been posted on a regular basis. She remembers
that once that autumn, after she had elected part-time status, she
did a sweep but when she went to the board where the log was
normally posted she found none. She asked Wilmot about the
log sheet. She testified that he told her that they had run out of
copies and did not have a copy machine in the store.
Aside from whether the logs were being properly kept, there
is no evidence that the store was not being properly swept. At
most, it appears to be a question of whether Wilmot and/or
Rostvold or someone else in responsibility had bothered to post
fresh log forms.
Still, in June 2003, when Wilmot spoke to Ahern and, later,
Fagundes, his admonishment on its face does not appear to be
connected to any union activity. On the other hand, there is no
real showing that the log issue was a significant problem.
Wilmot did not testify; as a result, there is no evidence regard-
ing what he perceived to be the problem, if any. Were there
sufficient copies as had been the problem earlier? Was it a
question of making certain a log form was posted on the wall?
If so, who was responsible for that? Had the lead cashiers
fallen into bad habits? Had store management fallen into bad
habits? Wilmot’s failure to testify leaves these questions, and
others, unanswered. Certainly, immediately after Wilmot made
his request, employees properly initialed the log (GC Exh. 5)
and there is no showing that log-keeping was a problem there-
after. Moreover, no one has contended that the store had not
been swept timely either before or after Wilmot spoke to these
two lead cashiers.
Two days later, Remund conducted a staff meeting after
work. At this meeting he announced Respondent had instituted
a length of service award recognizing employees for their time
with the Company. According to him, Respondent was provid-
ing the same benefit to the Fresh Organics employees that was
normally given Nutraceutical employees. The only two em-
ployees who were eligible under the program were Gadola and
a 15-year vitamin department employee, K’Pu Bahimwakputa.
Employee Peach recalls that Remund seemed to be urging em-
ployees to stay with the company as long as those two had. If
they did, they would be similarly recognized for making Fresh
Organics their career. Likewise, Rohrbach asserted Remund
was asking for loyalty. Her testimony: “He said that it was up
for individual workers to decide whether they wanted to be roll
[sic] [role] players at the store or not. And to decide how long
they intended to stay with this job or was it something they
were just passing through. From there he began to talk about a
new incentive program for workers based on years of service
with the company.”
The longevity service award was a gift debit card which
could be used at a wide variety of retailers. The record does
not show its actual dollar value. The same award was also
given to longtime employees at the other three stores, although
Remund does not appear to have been involved in the Stanyan
Street meeting.
This service award program was not repeated. In 2004, no
such length of service recognition was granted. Remund ex-
plained that Nutraceutical had canceled the program.
On June 20, Wilmot complained to Ahern about the manner
in which the cooler was being stocked. The nature of this com-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD322
plaint is not entirely clear, as Ahern had been training a new
employee.
In this same timeframe, Wilmot notified Mitch Genlot-
Joslyn that her annual review was due and that he wanted to
have a meeting with her on June 26. As noted previously,
Genlot-Joslyn, formerly a full-time employee, had by then be-
come part time. She had worked on and off for the Company
since November 2000, initially being hired by Kloski. She was
a student and had left and come back in November 2001. She
testified that during her tenure she had undergone one earlier
appraisal, in December 2002, 3 months after Respondent began
operating the stores. Due to a hiatus in her employment, that
appraisal was characterized as a 6-month evaluation. When the
General Counsel subpoenaed that form, Respondent’s counsel
advised that it could not be found and was not in her personnel
jacket. I thereupon permitted Genlot-Joslyn to testify about it.
She said the performance review was conducted by Sara Has-
son, one of the product coordinators (and who, as noted above,
was the first to notify Remund of union organizing). Hasson’s
2002 appraisal resulted in Genlot-Joslyn being promoted to
assistant floral buyer and a getting a 50-cent-an-hour raise.
Respondent does not challenge her testimony.
The only blemish on her record, if it can be called that, was
an early admonishment (before the raise) concerning an inno-
cent effort to obtain some assistance on a task without asking a
manager. Kloski explained that she needed to ask a manager in
such an instance.
On June 26, without having given her the promised annual
appraisal, Wilmot discharged Genlot-Joslyn. She had been
called in early that day and met with Wilmot and Rostvold.
She said Wilmot told her that after looking at her “last review,”
the Company was going to go in another direction. He also told
her the Company was “exercising our right of at will employ-
ment.”
At the hearing Respondent adduced some evidence from
some of Genlot-Joslyn’s coworkers that she was considered
“bossy” and that she seemed to be somewhat less cooperative
than they would like. In January 2003, when she became part
time, she primarily served as a cashier, working the late shift on
Thursdays (4 to 9:30 p.m.) closing the store, and opening the
store on Sundays (8:30 a.m. to 5 p.m.).2 Before converting to
part time, she had been in charge of floral sales. When she
switched, she trained Sean Andrews, a new hire, as her succes-
sor in floral sales.
Genlot-Joslyn acknowledges that on two occasions after
training Andrews, she observed that the flower displays needed
some adjusting. Since she and Andrews no longer overlapped
shifts, she left two notes in his cubbyhole about what she had
seen. Wilmot saw at least one of the notes and asked Andrews
if it bothered him. Andrews acknowledged that he was a “little
annoyed,” but told me he would not have mentioned it if Wil-
mot hadn’t asked. Wilmot later told Genlot-Joslyn that leaving
notes was inappropriate, that she should go through him so as
not to be seen as being “bossy.” She agreed. Nonetheless, I am
not certain exactly why Wilmot sought Andrews out; it was he

2 Genlot-Joslyn was entrusted with store keys and access codes to
the safe.
who had assigned Genlot-Joslyn to train Andrews and her notes
can reasonably be seen as a continuation of her assigned duty.
Indeed, her note contained a diagram of the flower cart describ-
ing the proper flower layout.
In addition, several other employees conceded that they
made complaints about Genlot-Joslyn early in the year. At the
hearing, one, Fagundes, agreed that sometimes the employee
complaints about Mitch were unwarranted and overblown. One
of the charges against her was that she didn’t seem to respond
promptly to calls for cashiering when things got busy. Fagun-
des said sometimes employees who were called upon to help
were unable to do so because they were legitimately involved
in other duties—on the phone performing business calls, such
as ordering “and they would [explain] when they got up front.
We’d be angry a lot for no reason sometimes.” In any event,
Genlot-Joslyn agrees that Wilmot spoke to her about not re-
sponding to calls to the register quickly enough, but says after
he spoke to her she made a better effort to get there. This entire
scenario seems to have begun and ended early in 2003 or even
before. Andrews, to the extent that he was aware of the short-
coming, said that he was surprised at Mitch’s discharge because
if she deserved it, it should have come 6 months earlier. From
his vantage, he thought her performance since the beginning of
the year was much improved. Other complaints, such as Jon
Burkett’s, were fairly petty. He complained she was not wash-
ing sample dishes at the end of the shift. Since she was only
working 1 night per week and was in charge of closing the
store, it is difficult for me to conclude that this was a serious or
even real issue.
Another incident indirectly developed by Respondent is the
contention that Genlot-Joslyn somehow created a “negative
atmosphere” on Sunday mornings. Reed Rickert was a new
and relatively short-term employee who worked on Sundays.
Ahern recalls that once she observed Genlot-Joslyn speaking to
trainee Rickert regarding the benefits of unionizing the store.
Later, according to Ahern, Wilmot asserted to her that “negativ-
ity” was occurring on shifts where Ahern was serving as the
lead cashier. He told her that Rickert had quit and had said one
of the reasons was because of “negativity” on Sundays emanat-
ing from Genlot-Joslyn. Furthermore, Ahern reported that
Wilmot said that he had learned this from Rickert who had
taken an out-of-state vacation shortly after being hired and had
called to seek an extension which Wilmot denied. Respon-
dent’s argument arises from an extrapolation of some testimony
given by Ahern during the General Counsel’s direct examina-
tion relating to Ahern’s discharge.
Ahern’s testimony:
Q. [BY SCHNEIDER] Okay. Did you have any other
conversations with a supervisor about your work perform-
ance or duties?
A. [WITNESS AHERN] About within the first two
weeks of July on a date that I don’t recall, Conal [Wilmot]
called me into the office with he and Ryan and he told me
that he felt that I was negative and that it was affecting my
work. I defended myself saying that I wasn’t negative and
that what he may have been perceiving was the fact that I
didn’t feel—I didn’t really like Fresh Organics, I was feel-
REAL FOODS CO. 323
ing very anti-corporate stance at that point, and I didn’t
agree with a lot of the decisions they had been making at
the store, that I was upset about that. But, that definitely
did not affect my work, definitely did not affect my cus-
tomer service. And that’s what he was bringing up.
He, as I recall, in that meeting brought up Reed Rick-
ert having—Reed Rickert was an employee that had not
worked there for very long, had gone away on a week long
vacation, and had called from wherever he was to ask to
extend the vacation, and Conal said he was not able to do
that for him, and that he could either quit or, you know,
come back to work when he was scheduled to do so. And
Conal told me that when Rita [sic] [Reed] quit at that
point, he had said that he felt there was too much negativ-
ity in the store, that the weekends were unpleasant to work
in. And I really don’t think I had a response to that, be-
cause I didn’t feel that was accurate.
I knew that there was a lot of union talk going on out-
side of work, that we were—at that point—and I told Co-
nal at this meeting that I felt like he was bringing me up to
the office every week to punish me for something, and that
I was doing a very good job. I had upped the sweep log, I
had upped the facing, I had done everything that he asked
me to do, and he was still, you know, calling me out on
this negativity, which I didn’t see.
Of course, neither Rickert nor Wilmot3 testified about what
actually happened concerning Rickert and his supposed com-
plaint about Genlot-Joslyn. Genlot-Joslyn, naturally, has no
knowledge about any of this. Therefore, Ahern’s testimony
really has no probative force favoring Respondent on this issue
since she has no first-hand knowledge about what actually
caused Genlot-Joslyn’s discharge. To the extent Respondent is
attempting to use Ahern’s testimony as substantive support for
explaining its decision to discharge Genlot-Joslyn, it is relying
on secondhand information. Not only did Respondent not call
Wilmot to testify, it did not call his assistant, Rostvold, al-
though Rostvold likely had pertinent testimony to provide.
In any event, Respondent never delivered to Genlot-Joslyn
the appraisal form which had been prepared for discussion on
June 26 (GC Exh. 18). Indeed, rather than discussing any of
the shortcomings supposedly listed in that exhibit, Wilmot and
Rostvold simply told her Respondent was exercising its “at
will” right to discharge her. In utilizing that model, Respon-
dent avoided any dispute concerning its actual reasons for the
discharge, since it takes the position it is not obligated to give
any. Furthermore, it would not have to explain any discrepancy

3 Assuming Ahern has accurately recited Wilmot’s thinking, Wilmot
would be making little sense. Under that version a short-term em-
ployee asked by long-distance for permission to extend his vacation and
Wilmot promptly denied it, so the employee quit. After the employee
announced his quit, Wilmot would have us (through Ahern) believe that
their conversation continued and the employee said something to the
effect that working on Sundays was a negative experience and that
Genlot-Joslyn was the cause of it. On its face that sounds improbable,
unless it is the remark of an instantly displeased employee whose
credibility on the point must be doubted due to his anger. That any
manager would accept such a complaint as valid is unlikely unless he
had an ulterior motive.
between her unproduced December 2002 evaluation which had
been sufficiently positive to warrant a raise and a promotion.
Curiously, that positive evaluation had occurred at roughly the
same time that the employee complaints, such as they were, had
been made. Instead of demonstrating rationality for discharg-
ing Genlot-Joslyn, Respondent’s behavior here seems to have
been arbitrary and with no factual support coming from Wilmot
and/or Rostvold. In fact, Respondent regularly utilizes an em-
ployee performance improvement procedure to stimulate better
performance from its employees, yet it never invoked that pro-
cedure with respect to Genlot-Joslyn. Neither did its managers
speak to Genlot-Joslyn to inform her that she needed to im-
prove herself in any specific manner. I note that the undeliv-
ered performance review form asserts that she “talks rather than
works and sets bad example for new employees. Is not a team
player.” If these were truly her shortcomings, it would have
taken little effort on management’s part to have corrected it.
Furthermore, excessive talking and not being a team player can
readily be seen as code for engaging in union organizing. Sec-
ond, such assertions would lend themselves to refutation. The
“at will” rationale evaded that risk. Frankly, Respondent coun-
sel’s explanations for Genlot-Joslyn’s discharge are so thin they
fail the test of plausibility. They are certainly unsupported by
Genlot-Joslyn’s immediate supervisors who never testified.
Four days after Respondent discharged Genlot-Joslyn, an
employee named Kristin Hornstra requested a schedule change.
In late March, she had been hired as a full-time employee for
the 24th Street store’s produce department. At the same time
she was studying to be an elementary school teacher, a position
she held at the time she testified. At the end of July Hornstra
needed to attend her college’s required 3-week intensive
teacher education program that would not fit her regular sched-
ule at 24th Street. She thought that working a part-time sched-
ule for those 3 weeks would be a good way to accommodate the
conflict. Accordingly, she asked both Produce Manager Cath-
erine (Cat) Hughes and Store Manage Wilmot if that could be
arranged. Hughes was initially receptive, but Wilmot told
Hornstra she would have to quit and reapply for the job. Horn-
stra did not understand, saying she was aware that similar ac-
commodations had been made for others.
Afterwards, Hornstra spoke to some fellow employees about
what had happened, including Adriel Ahern. On June 30,
Ahern and employee Rita Morris, together with Hornstra, met
with Wilmot and Hughes to revisit the issue. Ahern describes
her participation:
So, I walked up to the office and Kristin kind of stated her
case, and they, Conal [Wilmot] asked me why I was there,
and I explained that it if it was a change in store policy that it
affected everybody and that I was there to support Kristin, be-
cause we thought that she was a good worker, and we didn’t
understand why they weren’t facilitating her request.
And they defended themselves, saying that it was going to be
a very difficult thing to schedule and they couldn’t hire a new
person, but the couldn’t really give—without not letting that
person have the hours when Kristin came back. It was really a
scheduling issue and that was all it was about.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD324
Ahern worked in the grocery department, not produce, and
her interest in Hornstra’s problem did not appear to sit well
with Wilmot. She was exceeding her area of interest and not
following what Wilmot deemed the appropriate procedure. She
testified that as the employees were leaving, Wilmot asked her
to stay for a moment. She did so. She described what hap-
pened:
[T]hey seemed very upset that I had—they said that they were
upset because we hadn’t [sic] had a meeting with them with-
out notifying them that we were going to have a meeting, and
that it really wasn’t any of my business, and that it was really
a scheduling issue and pretty much that I should mind my
own business.
That’s what the rest of that meeting was.
As it turned out, due to other circumstances, Hornstra was
able to obtain an adjusted schedule anyway due to another em-
ployee’s situation.
Nonetheless, the General Counsel notes that Ahern’s partici-
pation in this incident was protected by Section 7 as a “mutual
aid and protection matter.”4 From the General Counsel’s per-
spective, Respondent’s displeasure directed toward Ahern here
contributed to its later decision to discharge her.
That discharge occurred 3 weeks later, on July 23. Shortly
before that date, according to Stanyan Street Store Manager
David Kloski (and Wilmot’s predecessor and mentor), Wilmot
called him to ask his advice about firing Ahern. Kloski testi-
fied: “Conal was asking me for advice, what would I do, be-
cause he felt uncomfortable terminating her. He told me he
wanted to talk to Human Resources about it, but that [General
Manager] Bruce [Remund] was forcing him to go ahead and
terminate her.” The record does not reflect what advice Kloski
gave, but Wilmot asked Ahern to work an early shift on July
23.
When she arrived, Wilmot fired her, saying, “We’re going to
use our at will rights, we feel like you’re unhappy here and that
your negativity affects the store, and we are going to let you
go.” Ahern then left the store.
A little while later, cashier Jessie Dameron, upset upon
learning of Ahern’s discharge, quit in protest. In the conversa-
tion Dameron had with Wilmot, he told her more than he had
told Ahern:
[WITNESS DAMERON] I told him that I was choosing to
give my notice because I was upset with the decisions that
had been made, and I asked him why, what was his rea-
soning for firing my co-worker.
Q. Did he respond?
A. At first he told me that it was just between the two
of them. Later on in the conversation he told me that it
had to do with her negative attitude.

4 In pertinent part, Sec. 7 of the Act states: “Employees shall have
the right to self-organization, to form, join, or assist labor organiza-
tions, to bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection.”
As noted, Wilmot did not testify and much of the evidence
relied on by Respondent in its defense comes from its examina-
tion of Ahern. There is one first-hand item, the testimony of
Remund, who said he observed Ahern being rude to a late-
arriving customer shortly before closing on June 18 for the
store meeting. He described what occurred:
We were in the process of closing the store. It was approach-
ing closing time, and I was standing near the—one of the en-
trances to the store that Adriel was preparing to lock. And a
customer hurriedly approached the door, and said, “Are you
still open?” And Adriel’s response was, “Well, we’re getting
ready to close for a store meeting, but you better hurry up and
get out of here because we need to conduct the meeting.”
Ahern, who does not have a specific recollection of the inci-
dent, nevertheless denies that any rudeness occurred that eve-
ning, though she does allow for the possibility that friendly
jocularity may have taken place which Remund misunderstood.
Her direct testimony:
Q. [BY SCHNEIDER] Do you recall a time when Bruce
Remund came to the store in June for a meeting after
work?
A. [WITNESS AHERN] There was an all store meeting
that he was in attendance in June.
Q. Would you ever have been rude to a customer in
Bruce Remund’s presence?
A. No, I would not.
Q. Would you have ever been rude to a customer, pe-
riod?
A. No, I would not.
Q. But, in particular, would you ever have been rude in
front of the Vice President of the company?
A. Absolutely not. There is no reason for me to be
rude in front of Bruce. He’s the one who pays my pay-
check. And even if he wasn’t there, there’s no reason for
me to be rude to customers. I pride myself on my cus-
tomer service. I feel like I put myself out there to do good
work and I believe that I do.
Q. Is it possible that Bruce or anyone could have mis-
construed something that you said to a customer?
A. It’s possible.
Q. Do you ever kid with customers?
A. Absolutely. We have a lot of regular customers in
that store, it’s a small community and I was on a teasing
relationship with a number of them.
On cross, she testified:
Q. Do you recall telling the customer that they needed
to hurry up and get out because the store was about to
close?
A. I would never have said that and I do not recall that.
In late October 2002, Respondent, through then 24th Street
Store Manager David Kloski, gave Ahern an annual perform-
ance appraisal. Wilmot, then the manager-to-be, also signed
the form. She was rated four of a possible five in all nine rating
categories (Kloski told her he didn’t give fives). Kloski sum-
marized the review saying, “Doing great job and meeting all
REAL FOODS CO. 325
expectations” and commented, “Keep working here for another
year.” There were no areas noted which needed improvement.
Moreover, it appears elsewhere in the record that Ahern was
the principal employee who performed training duties for new
cashiers. She was well liked by her fellows, particularly those
she had trained. Employee Sonja (Simon) Knaphus said,
“[Ahern] was far and away the most positive team leader. She
was, I would say, probably the most positive employee, always
very friendly, always had a great rapport with customers, with
the other employees. She was phenomenal.” Dot Adams said
Ahern “was one of the best employees we had. She was great.
. . . She was great at assigning tasks, following up with them,
she was great with customers. She knew what she was doing.
She was accessible . . . . The hardest part of being a supervisor5
is making other people do something they don’t want to do, and
Adriel was really good at that.” Fellow lead cashier Lisa
Fagundes said of Ahern: “In the beginning I worked with her
like three days a week almost and towards the end just one day
a week . . . . She was like the most knowledgeable employee in
the grocery department by far. She knew everything, she was
the one that we went to if we had a problem. She was really
nice and sweet and just kind of like the backbone of the grocery
department.”
E. Analysis of the Discharges of Genlot-Joslyn
and Ahern
It is quite clear that the General Counsel has made out a
prima facie case that both discharges were in violation of Sec-
tion 8(a)(3). Although it knew of the employees’ nascent union
interest in early May, Respondent had actual knowledge as of
June 10 that both Genlot-Joslyn and Ahern had become the two
main union organizers.6 That fact can be discerned from Ad-
ams’s testimony, because even Kloski at Stanyan Street was
aware that those two were involved and probably Rohrbach as
well. Moreover, Dameron had inadvertently identified Genlot-
Joslyn to Wilmot. Significantly, the individual who discharged
them, Wilmot, was not called to testify and the only evidence
which Respondent can really rely on is what the two dischar-
gees reported he said during their exit interviews. Everything
else was developed through cross-examination of the dischar-
gees and others who candidly admitted, as any employee might,
that they had shortcomings or that they were spoken to on occa-
sion to correct a perceived weakness. None of these rose to a
level where the Company’s employee correction process
needed to be invoked, although there are a number of such
forms in the record pertaining to other employees. Further-
more, both individuals had recently received positive perform-
ance appraisals. Did their performance decline so rapidly that
the correction procedure was inadequate? That seems most
unlikely. Moreover, there is Kloski’s testimony that Wilmot
told him Remund had instructed him to fire Ahern and that he
was reluctant to do so. Apparently, Wilmot well knew Ahern
was a valuable asset to his store. She was his principal trainer,
she knew the grocery inside and out, and she was well liked by
her fellow employees and customers. He simply didn’t want to

5 Meaning “lead cashier.”
6 They had also fingered Burkett and Fagundes.
get rid of her but, based on Kloski’s testimony, Remund was
ordering it anyway.
Remund’s involvement is quite noteworthy. He claimed not
to be a hands-on manager, but was clearly demanding Ahern’s
ouster at the very least. Furthermore, it was through him that a
number of statements were made constituting strong union
animus arising from the corporate parent’s level. In November
2002, Remund told Thom’s then-assistant manager, Jeffrey
Irish, that Nutraceutical’s CEO would close the store if the
store was unionized. Furthermore, Remund repeated the re-
mark to Kloski at the May 22 managers meeting.7 While not
directed to any statutory employee, it is clear that Respondent
and its parent, as institutions, considered unionization such a
significant threat that it would take the drastic measure of clo-
sure to prevent it. Closure, of course, is far more extreme than
discharge, but obviously, the discharge of a prounion employee
is subsumed by such a threat. Gay’s message was clear: Don’t
allow unionization to happen. Kloski carried Remund’s (and
Gay’s) message to the managers, including Wilmot and Has-
son.
Furthermore, there were some suspicious goings-on which
began as soon as the organizing came to Remund’s attention.
The first is the application of the Nutraceutical length of service
award program to Fresh Organic’s stores. It seems neutral on
its face, but given its timing and announced annual nature, that
neutrality must be doubted, for it disappeared the following
year.8 According to Remund, its withdrawal was due to a
Nutraceutical corporate decision. Moreover, employees rea-
sonably viewed it as an out of character appeal for loyalty at a
time when their interest had turned to union representation. In
that circumstance, I find the evidence to be strong enough to
qualify as a violation of Section 8(a)(1). Remund’s explanation
is no explanation at all and, therefore, it can only be seen as an
offer of benefit in response to employee organizing activity; it
was no longer useful after the organizing was scotched. Rea-
sonable employees could perceive that it was designed as an
appeal for loyalty in the face of union organizing. Indeed, the
test for such a violation is not whether the benefit has actual
value (most were ineligible), but whether the grant may rea-
sonably be seen as tending to interfere with the free exercise of
employee rights under the Act. I find that this offer can rea-
sonably be perceived in that manner. The employees who so
perceived it did so quite reasonably.
In any event, Wilmot told neither Genlot-Joslyn nor Ahern
why they were being fired, except for the vague accusation of
Ahern being unhappy and negative. He repeated the negativity
charge to Dameron when she demanded an explanation. Other
than that, he invoked what he (or someone advising him)
termed “our at-will rights,” apparently in the belief that the
phrase offered some protection from having to state the real

7 Remund denies making the statement in the terms Kloski de-
scribed. He says Kloski must have misunderstood what he was saying
during the meeting. He does not deny the earlier and near-identical
statement to Irish. Frankly, give the mutual corroboration of Kloski
and Irish, Remund’s alternate possibility must be rejected.
8 Remund denied that he had knowledge of union organizing at the
time he decided to grant the benefit. The evidence demonstrates that
his denial cannot be credited.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD326
reason. That circumstance entirely negates Respondent’s ar-
gument in brief that the two had engaged in misconduct of one
sort or another—in Ahern’s case the supposed failure to moni-
tor the sweep log, followed by the petty concern over the cooler
stocking;—in Genlot-Joslyn’s case, the notes to Andrews and
the absurd reliance on what Rickert supposedly told Wilmot
about her negativity on Sunday mornings. Nothing these two
employees are now charged with having committed ever arose
to the level where it had to be documented and addressed for
the purpose of remediation. Moreover, in large part what these
employees described was nothing more than a normal daily
oversight by a manager. Indeed, the managers would not even
testify to these supposedly perceived weaknesses. That cer-
tainly weighs against the claimed legitimacy of their discharge.
Another dubious factor weighing against Respondent is the
fact that both employees had received positive annual apprais-
als, belying the shortcomings which supposedly manifested
themselves after the two began organizing for the Union. In-
deed, some of those perceived shortcomings occurred prior to
the positive evaluations. Adding to that oddity is the question
of why Respondent could not find the appraisal for Genlot-
Joslyn. As the General Counsel observes, her personnel jacket
contained other items, including a security record about a
stalker incident which Genlot-Joslyn had suffered. Did some-
one remove the appraisal because it was inconsistent with the
defense Respondent wished to launch? I cannot answer those
questions definitively. I can, however, conclude that Respon-
dent has been entirely unable to mount a rebuttal, much less a
persuasive rebuttal, to the General Counsel’s case.
Rather clearly a prima facie case has been established. All
the elements of an 8(a)(3) violation are present. Respondent
had knowledge of their union organizing, there is a temporal
connection to that activity, and there is both direct and inferen-
tial evidence of Respondent’s union animus. The direct evi-
dence includes policy announcements by Remund to his super-
visory staff, including both Irish and Kloski.9 Furthermore,
Wilmot’s reaction to Ahern’s coming to Hornstra’s aid is of
some weight here. Ahern was acting as an employee represen-
tative might act and no doubt information about her approach
was passed up the ladder to Remund or higher. That was seen
as “negativity” when, in fact, it was protected by Section 7.
Moreover, Respondent’s lack of candor and its connected fail-
ure to call either Wilmot or Rostvold in its defense permits me
and the Board to infer that union animus was a factor in its
decisions. Neither I nor the Board is obligated to accept Re-
spondent’s explanations (minimal as they are) for the dis-
charges at face value. We are permitted to infer animus where
the reasons fail the test of plausibility and are supported only by
evidence of poor quality. Justak Bros. & Co. v. NLRB, 664
F.2d 1074, 1077 (7th Cir. 1981); NLRB v. Buitoni Food Corp.,
298 F.2d 169, 174 (3d Cir. 1962). See also Shattuck Denn
Mining Corp. v. NLRB, 362 F.2d 466 (9th Cir. 1966).
All the elements of a discharge in violation of Section
8(a)(3) are present in both employees’ cases and Respondent

9 I do not deem it necessary to rely on Gadola’s remark reported by
Rohrbach. On its face it seems to be opinion; moreover, even if Gadola
is a statutory supervisor, he is out of the decisionmaking loop.
has utterly failed to rebut them. See Wright Line, 251 NLRB
1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied
455 U.S. 989 (1982). Accordingly, I find Respondent violated
Section 8(a)(3) and (1) of the Act when it discharged Genlot-
Joslyn and Ahern.
F. Closure of the 24th Street Store
It is undisputed that Nutraceutical created Respondent in or-
der to provide a different marketing scheme for its core product
of vitamins and food supplements. Likewise, it is undisputed
that Respondent’s acquisition of the four stores in San Fran-
cisco allowed it to learn the business of neighborhood grocery
and organic produce retailing. Furthermore, it was certainly
reasonable for Respondent to retain the bulk of the sellers’
existing staffs and to consider a marketing strategy for the mar-
riage of the two principal businesses, neighborhood organic
foods sales and vitamin and health food supplements. Finally,
the testimony of Sergio Diaz, Nutraceutical’s director of mar-
keting and sales, to the effect that Respondent wanted to cre-
ated a marketing concept seeking to create a European or
French country motif as a foundation for its new brand of
stores, seems entirely realistic.
However, insofar as selecting the 24th Street store for clos-
ing, there are a number of facts which appear, on their face at
least, to suggest that its closure was motivated by antiunion
factors rather than due to a neutral business decision. Still,
those facts are countered strongly by Respondent.
First, it is uncontested that the store initially thought to be
most appropriate to close was the Sausalito store. Choosing it
as the store to undergo remodeling was an open secret among
the managers at least. Furthermore, Sausalito was operating at
a loss, while 24th Street was far and away the most profitable
of the stores. How then, did Respondent come to change its
mind and select 24th Street as its choice for the concept store?
And, why did it select the date it chose, August 29, which
might well be considered the height of the produce season?
Remund testified that he wanted the store to reopen in March
2004 and he thought it would take 6 months to perform the
remodel—3 for the demolition, putting the plan together and
getting the building permits approved;—and 3 for the actual
work. He asserted that March was the beginning of the organic
produce season. In support, Respondent provided its profit and
loss summaries for 24th Street (R. Exh. 9) from March 2002
through the closing at the end of August 2003. He also pro-
vided the same information for the other three stores. In reach-
ing that conclusion he pointed to 24th Street’s sales records. I
would have expected the produce sales to show a steady in-
crease over the summer of 2002, but in fact, produce sales
flopped around early that year. March: $142,000; April:
$131,000; May: $138,500; June: $153,500; July: $151,000;
August: $149,000; September: $148,000; October: $126,600;
November: $119,000; and December: $107,000. Certainly the
August and September months show that the season would not
end in August as he suggested. The expected downturn would
not occur until October. Furthermore, if 2002 is the guide,
sales would not be steadily significant again until May of each
year, since there seems to be an $11,000 expected downturn to
occur in April. March would be promising, but April only
REAL FOODS CO. 327
modest, while May would not quite match March. Indeed,
March and April of 2003 turned out to be modest months:
$122,500 and $119,800, respectively. March of any given year,
therefore, was hardly a month to target for reopening. May
seems to have been a better choice. In May 2003, for example,
produce sales were a pretty good $137,000.
That being the case, I am not quite certain why an end of
August closure was chosen. It would mean missing an ex-
pected excellent September. If the closing had been put off
until the end of September, then the 6-month period would still
be in time for the height of the season which really does not
begin until May of each year. To be sure, a good March might
be missed, but it would have already been offset by the better
previous September.
Therefore, I do not think Remund’s explanation for choosing
the end of August 2003 for closure really makes sense to the
extent that he based it on produce revenue. Some other expla-
nation seems more likely. I will make findings on that reason
below.
It will be recalled that on May 2, buyer Sara Hasson notified
Respondent’s general manager and executive vice president,
Bruce Remund, that a union organizing drive was underway at
24th Street.
Well prior to that occurrence, however, Diaz had been work-
ing on the design for the concept store. Although the Stanyan
Street store had early been ruled out due to its split-store con-
figuration, the other three were relatively congruent with one
another. They were one-story rectangles with roughly the same
number of square feet, about 5000. To be sure, doorway
placement, cash registers and built-in refrigerator-freezers were
arranged differently, but the stores’ similarity is plain to see.
Whatever interior differences the stores may have had was
unimportant because the store to be chosen was to be entirely
gutted and rearranged following the new design. The compo-
nents of the new store, according to Diaz, were to follow a “4-
foot model.” That meant all of the components were to be in-
terchangeable because they were no shorter than 4 feet or were
multiples of 4 feet. Diaz: “Everything it is a multiple of four.
Every fixture, every equipment, everything is multiple of four,
which means that when you have the space, you divide it by
fours so you know how many fixtures and things you are able
to plug into the space.” Therefore, from Diaz’ or a designer’s
standpoint, it made little difference which of the remaining
three stores was selected as the concept store. He also busied
himself with determining the appearance of the stores, from the
floors to the walls and ceilings, from the cash registers to the
coolers and the grocery aisles to the produce layouts. Nonethe-
less, following their initial presumption, all of Diaz’ models
were based on the layout of the Sausalito store. Prior to the
closure of 24th Street, no 24th Street-specific drawings were
made.10

10 At one point, Remund offered that the Allens were unable to find
earlier blueprints for that store which could be used as a starting point.
That appears to be true, but the former store manager, Kloski, had seen
them stored in the store’s office, evidently to the ignorance of everyone
else. Either way, this was a small facility and any professional designer
could have easily measured the store and prepared a blueprint to work
from. That did not happen until after the store’s closure.
In addition, Diaz was also tasked to perform a demographic
study. To accomplish this, he mined the 2000 official census
reports for each of the three neighborhoods, Sausalito, Noe
Valley, and Geary Boulevard. His report looked for potential
customers in each distinct area, though he was handicapped to
some extent because he was obligated to use the postal zip code
delineations utilized by the census bureau; these did not con-
gruently match the neighborhoods but did provide the best
available information.
Diaz delivered his demographic study to Remund on April
22. This the same time period when employees were beginning
to search for a union. Indeed, while there had been some pre-
liminary inquiries of other unions by the employees, it was on
April 23 that Ahern actually approached UFCW Local 648.
And, it was not until May 2 that Hasson sent her e-mail to Re-
mund warning him that an organizing drive was underway.
The demographic study, according to both Diaz and Re-
mund, demonstrated to them that the proper store to be closed
and remodeled as the concept store was not Sausalito, but 24th
Street. Remund also added some other factors, including finan-
cial reports and workers’ compensation claims.
Insofar as the demographic study is concerned, Remund
noted that the population density was much higher in Noe Val-
ley than in Sausalito and the total number of household units
was almost double those of Sausalito: Noe Valley: 4100; Sausa-
lito: 2500. That, he said, translates into more potential buyers
for multiple household members. And there were three times
the number of renters in Noe Valley than Sausalito, meaning
the potential for new customers was higher at 24th Street. Fi-
nally, Remund pointed to demographic findings that there were
far fewer automobiles in Noe Valley than Sausalito. Twenty
percent of the Noe Valley population did not have cars while
only 5 percent of the Sausalito residents did not have cars. This
meant a more captive customer base. Those residents could not
simply get into their cars and drive to a another market, as they
could and did in Sausalito and Mill Valley where two competi-
tors, Molly Stone’s and Whole Foods, were doing business.
These were respectively 1 and 3 miles distant from Respon-
dent’s Sausalito store. The 24th Street store did not face such
competition, though there is a supermarket nearby.
Remund testified that his review of Diaz’ study caused him
to rethink his assessment that the Sausalito store should be the
concept store. All factors he reviewed led to the conclusion
that 24th Street was the ideal location, including the fact that
24th Street was by far the most profitable. It was carrying the
entire chain. Indeed, the General Counsel makes a very salient
argument about profitability: Why would Respondent shut
down its only profitable store and use it for the concept store
experiment while the other three were performing poorly? If
the 24th Street store was carrying the chain, isn’t it contrary to
good business sense for Respondent cut off that source of reve-
nue? Yet Respondent, supported by its expert witness, argues
that profitability was not important—proving the viability of
the “concept” was.
Other connected questions also arise: If Remund decided
that 24th Street was to be the concept store in April, why did he
wait until the end of August, particularly if profits didn’t matter
very much? Why, on July 18 did he allow the 24th Street store
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD328
to order a new awning, and on August 21, slightly over a week
before the store closed, obtain the building permit to install it?11
In addition, four new employees were hired for the store in the
month before it closed.12 When the decision to close was actu-
ally implemented, why, if the decision had occurred back in
April, was it done so abruptly and without notifying its man-
ager Wilmot, the employees, the customers, the landlord (the
Allens)13 and without applying for the construction permits?
Insofar as the facts relating to the latter questions are con-
cerned, they are essentially undisputed and will be recounted
only briefly. However, in August, prior to any hint that 24th
Street was in jeopardy of closing, an incident occurred which
the General Counsel asserts contributed to Respondent’s deci-
sion to choose 24th Street over Sausalito.
On August 7, Remund and Diaz were at the store visiting
with Wilmot. Employees Jonathan Burkett (one of the authori-
zation card solicitors) and Simon Knaphus asked if they could
talk to them. Burkett began the meeting telling Remund that
this was “not a union meeting,” simultaneously saying that he
and Knaphus supported unionization of the store. Burkett then
presented Remund with a list of, depending on how one charac-
terizes them, either demands or suggestions. After going over
them briefly, Remund asked Burkett to e-mail the list to him
and said he would meet again with Burkett on August 20 to
discuss them. The material Burkett presented was the product
of employee collaboration which had occurred a day or two
earlier. Among the employees it was referred to as the “Wal-
laby paper” due to a wallaby drawing on the document.
A day later, Wilmot called both Burkett and Knaphus back to
his office. He accused them of sabotaging him by making
those demands. They did not respond.
Burkett e-mailed the list to Remund on August 17. On Au-
gust 20, Remund and Wilmot met with Burkett to tell him he
would address the list at the next store meeting. Burkett’s tes-
timony:
Bruce said that it would be very quick meeting, and then said
that we would set up a subsequent meeting [in] which the en-

11 Respondent explains that it really didn’t matter when, or if, the
awning was installed, since it affected the outside of the store and had
nothing to do with the remodel. While true, it does not explain why the
new awning would be purchased at a time when a decision had suppos-
edly been made in April to close the store for 6 months; nor does it
explain why the building permit was obtained a week before the clo-
sure. Both are inconsistent with Remund’s testimony. Eventually, of
course, the awning was installed at the Thom’s location, supposedly
because of the remodeling difficulties Respondent encountered at 24th
Street, which at the time of the hearing had yet to begin.
12 Sunny Jardine and Amelia Moore on August 11; Joshua Carman
on August 15, and Carl Weiner on August 18. These hires maintained
the store employee population at its full complement of roughly 34.
See GC Exh. 40.
13 The lease did not obligate Respondent to notify the landlords, but
it is beyond reason to fail to give a landlord some sort of “heads-up”
notification. After all, the interior of the landlord’s property was to be
completely gutted, affecting the overall value of the building, particu-
larly if, for some reason the tenant walked away after demolition and
never replaced the interior. All landlords would need that reassurance.
Besides, maintaining a good relationship with the landlord is simply a
good business practice.
tire store would participate, so following the store meeting,
and I proceeded to have concerns about voicing everything in
that meeting and the certain people said that they were afraid
to speak up because of the terminations of Mitch and Adriel.
They proceeded to say that we do not need a—it is not
a problem, we have an open door policy. If people have
problems, they can come and talk to us, and I suggested
something like a box where we could put things in there
anonymously, but they said we do not need this. It is an
open door policy, and we will just go with this meeting
about two weeks after that, or at least two weeks after that.
The store meeting was scheduled for September 10 and an-
nouncements about it were posted in the store shortly after
Remund spoke to Burkett.
However, there is a deceptive feature to all this, for Remund
acknowledged in his testimony that he never intended to con-
duct the September 10 meeting; he says he knew at the time he
promised Burkett the September 10 meeting the store would
already be closed and the employees dismissed.
In the meantime, sometime between August 8 and 18, Wil-
mot and Rostvold gave Knaphus, who had accompanied
Burkett to the August 7 meeting, a performance review.
Knaphus testified that Rostvold told her she was rated as
“poor” on interpersonal skills. Wilmot explained that the rating
was given because of the “way” she had gone into the August 7
meeting. Again, neither Wilmot or Rostvold testified and
Knaphus’s testimony on the point is undenied. Their treatment
of Knaphus violated Section 8(a)(1) as it interfered with her
Section 7 right to engage in concerted activity for the mutual
aid and protection of employees. Mammoth Mountain Ski
Area, 342 NLRB 837 (2004). It is true that this violation was
not specifically pleaded in the complaint. Nevertheless, it
would appear to have been fully litigated. See Golden State
Foods, 340 NLRB 382 (2003).
General Counsel’s Exhibit 4, dated August 25, 2003, is a
document entitled “Minutes of a Special Meeting of the Board
of Directors of Fresh Organics” and apparently recounts the
events which took place that date at this Park City meeting.
Present were Remund and Leslie M. Brown Jr., Respondent’s
only two corporate directors. Also present were Sergio Diaz
and Stan Soper, whom Remund described as “our inside coun-
sel,” meaning, I believe, a member of Nutraceutical’s house
counsel staff. Brown principally serves as the chief financial
officer of Nutraceutical; his role with Respondent was not thor-
oughly explored. Remund says Brown directed him to be the
corporate secretary for the meeting. It would appear, however,
as is typical of such meetings, that the minutes were drafted by
an attorney, probably Soper, most likely in advance. It cites
two orders of business: (1) a “general discussion and review of
the business and operational status of the company.” This is a
one line reference and contains no specifics of the nature of the
discussion. (2) Store remodel. The minutes recite that motions
were made, seconded and unanimously approved to: (a) au-
thorize the closing of the 24th Street store for a remodel and to
ratify any steps already taken “in connection therewith;” and
(b) to authorize the corporation’s officers to take whatever steps
were necessary to undertake and complete the remodel, includ-
REAL FOODS CO. 329
ing closing the store, terminating or transferring employees,
retaining architects, contractors and designers, etc.
The General Counsel observes that slightly over 4 months
had passed between the purported late April decision to close,
based on Diaz’ demographic study, and the corporate authoriza-
tion to actually close the store. Remund explained the delay as
due to the varying schedules and vacations of the participants,
even though both he and Brown work at the same location in
Park City. Diaz also works there and presumably house coun-
sel does as well. Frankly, I do not find much comfort in this
explanation. In fact, given that Respondent itself is not a pub-
licly held corporation, I question whether a special directors
meeting even needed to be held.
Nonetheless, Respondent points to this event as evidence that
the corporate minutes reflect only a business purpose behind
the closing of 24th Street.
As noted, the parties agree that the store was closed abruptly.
There was no advance notice to the employees, to the landlord
or to the vendors. Indeed, a number of vendors attempted to
deliver on the morning of August 29, only to find the store
shuttered. Some dropped off deliveries at other stores. As a
result, much of the fresh produce had to be discarded, though
some was given away. Nonperishables were later transferred to
other stores over the next week or so.
On the night before the closure, Remund took Manager
Wilmot to dinner where he informed Wilmot that the store was
to be closed that night for the remodel. They then proceeded to
the store where they advised the night crew of the shutdown. In
the meantime, Remund had had the Nutraceutical human re-
sources department prepare notices of termination for all the
employees. These were delivered to their residences by an
overnight delivery service on the morning of August 29. They
included a final check and a severance amount. The only per-
sons retained were Wilmot and a few employees designated as
“key” employees, such as department managers and vitamin
specialist K’Pu Bahimwakputa. In all, 29 employees were
discharged.
In the next few days, some oddities occurred. The first, on
August 29, closure day, was at the Board’s Regional Office.
Remund went to the office that day to give an affidavit in the
unfair labor practice charge concerning the Ahern firing. Al-
though he had closed the store the night before and was dealing
with the closure’s effects that very day, he did not mention the
store’s closing in the affidavit he gave the investigating Board
agent. When questioned about the omission, he asserted he did
tell the agent, but the information was left out. Frankly, I have
difficulty in accepting that such momentous information would
have been omitted by the investigator as irrelevant.
The second occurred the following day, a conversation at
Stanyan Street between Stanyan Manager Dave Kloski and
Sergio Diaz. Kloski testified:
Q. [BY GUERRA] Did you speak with Sergio?
A. Yes.
Q. And what was discussed?
A. The closure of the [24th Street] store and the fate of
the employees.
Q. Do you recall what was said during that conversa-
tion?
A. A couple of things I recall.
Q. What do you recall?
A. The things that stuck out to me mostly were when I
asked him if the closure of the store was killing two birds
with one stone, and he replied “yes, the timing is good for
that.” By that I meant the union problems, and I felt cer-
tain that he knew that and was responding in kind. I also
asked him some general question about the employees that
had been terminated, and his response was “f—k em.”
And that stuck in my mind.
Diaz, who is Gay’s son-in-law, never denied making the
comment. Respondent, instead, asked Remund if he had made
such a comment, though it is not clear to whom he supposedly
spoke. Remund’s “two birds” were not the Union and the con-
cept store remodel as Kloski meant, but referred to creating the
concept store and removing certain workers’ compensation
risks supposedly inherent in the 24th Street store configuration.
In large part, this is a nonsequitur, although one 24th Street
Store employee had suffered a herniated disc while working in
the outmoded cooler. Nonetheless, Kloski’s testimony about
his conversation with Diaz is hardly free of ambiguity. He
acknowledges that the Union was not specifically mentioned.
Still, Kloski was well aware of the previous threats uttered by
Remund on Gay’s behalf to the effect that Gay would close a
store before allowing a union to represent its employees. He
was, I think, correct to believe that Diaz’ response was simply a
confirmation of that oft-repeated threat. On balance, I find
Diaz knew that Kloski was referring to the Union as one of the
“two birds.” Why wasn’t Diaz asked to speak for himself?
There being no answer to that question, Remund’s attempt to
water down the ambiguity is unavailing. In any event, Diaz’
“fuck em” attitude expressed to Kloski toward the employees
evidences Respondent’s attitude and in part confirms that Gay
has no compunction about closing stores to combat union orga-
nizing. Gay treats employees fungibly, as a commodity that
can easily be replaced.
Similarly, on September 3, Eric Guy, a department manager,
had occasion to call Rohrbach’s residence which she shared
with a woman Guy was dating. According to Rohrbach (Guy
did not testify) during the conversation, Guy said:
[WITNESS ROHRBACH] We were talking about the clo-
sure, it was very much on our minds, having happened the
previous week.
Q. [BY SCHNEIDER] And so tell us exactly what you
said and what Eric said?
A. Eric said to me that he had heard from a manager,
who had been witness to a direct remark, had been a direct
witness to a remark made by Bruce Remund that Bruce
Remund had stated to him, this other manager, that Bill
Gay, who is the CEO of Nutraceuticals, and Bruce s supe-
rior, would rather close stores than to deal with unions in
any way, shape or form. And after Eric related this to me
he said, you re not hearing this from me.
While the General Counsel has alleged this statement to be
violative of Section 8(a)(1), it is also offered as proof of Re-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD330
spondent’s motive for closing the store. Insofar as the latter is
concerned, I note that Kloski was Guy’s manager and that
Kloski on May 22 had heard the comment from Remund. He
said he later passed the information to Guy and two others. In
large part, I find that in the conversation reported by Rohrbach,
Guy was simply repeating what Kloski had told him in May. In
that sense, it really adds nothing additional by way of proof
concerning the motive behind closing the store.
However, Guy at Stanyan Street and Gadola at 24th Street
are alleged to be 2(11) supervisors. As such, Respondent
would normally be responsible for any antiunion remarks they
may have made. In Gadola’s case, I earlier found that his re-
mark in late May concerning employees possibly losing their
jobs, was merely the expression of opinion by an individual
who was essentially out of the loop insofar a really knowing
what was happening. Both Rohrbach and Genlot-Joslyn had
felt it necessary to reassure him that the union activity was not
aimed at him and he agreed that management was not keeping
him informed. Therefore, the employees to whom he spoke
knew he was only expressing an opinion. That opinion cannot
rise to the level of an unfair labor practice because the employ-
ees could not reasonably expect him to be speaking for man-
agement.
Guy, similarly, has no knowledge of anything beyond what
Kloski told him. Had Kloski made that remark to a rank-and-
file employee, it would have been cognizable under Section
8(a)(1). Here, in the aftermath of the closure, Guy is simply
commiserating with Rohrbach; indeed, he is telling her that
threats of closure in this very scenario had been made earlier.
He is suggesting she should advise someone that there is evi-
dence that the closure was for antiunion reasons so they can
search for it. Guy is not in any way seeking to intimidate her
regarding the exercise of Section 7 rights. He is, in effect, say-
ing that she should seek some sort of help to rectify the situa-
tion. Accordingly, it is not necessary to determine if he is a
2(11) supervisor for respondeat superior purposes. He simply
was not interfering with Rohrbach’s rights under the Act; he
was suggesting she seek to vindicate them. This allegation, too,
will be dismissed.
Later, in October, Remund told Kloski that the firings were
“unethical” but not illegal, because the Union had not actually
demanded recognition from the Company. Kloski’s testimony:
A. [WITNESS KLOSKI] Yeah. When I got back, I got
married in September 2003, I went away for about a
month, and when I came back we had a meeting where we
discussed it.
Q. [BY GUERRA] Where were you at the time?
A. I believe we were walking between the Stanyan
Street store and the cafe‚ to get a sandwich.
Q. Approximately what time would that have been
then?
A. Lunchtime.
Q. Was it just you two?
A. Yes.
Q. And what was discussed in that conversation?
A. The thing that sticks out in my mind was the state-
ment that he made that “what we did was unethical but I
don’t believe it was illegal.”
Q. What was the context of that statement?
A. Well, I was basically telling him that I didn’t feel
good about the closure, and that I thought it was a mistake.
Q. Did he at anytime explain what that comment
meant?
A. Yeah. He told me that based on his conversations
with their counsel that because the employees in question,
or because the union didn’t actually approach them—
PLAZA DE JENNINGS: Your Honor, we’re going to
again object based on the attorney/client privilege, objec-
tion.
ADMINISTRATIVE LAW JUDGE KENNEDY: Overruled.
THE WITNESS: Because the union hadn’t formally pre-
sented them with anything, that it wasn’t actually a union
drive, or it wasn’t legally a union drive yet.
Some of the closure questions raised by the General Counsel
are addressed by the two expert witnesses called by each party.
While I found their respective testimonies to be somewhat help-
ful in determining what steps a retail business would take when
contemplating a short-term shutdown of a small store in a resi-
dential neighborhood, I found both to be somewhat extraneous,
given the question of the timing of the announcement and the
actual explanations offered by Remund and Diaz as quoted by
Kloski and others, not to mention the odd circumstances of the
closing itself. While I can understand the testimony of Re-
spondent’s expert Thomas James14 to the effect that a small
company wanting to undergo a 6-month closure might choose
to keep that decision under wraps until the last moment, I am
unimpressed with the manner Respondent handled it. It contin-
ued to hire people in the last month; it unnecessarily ordered
the awning; and it allowed Wilmot to respond to the entreaties
of employees Burkett and Knaphus a few days earlier in a hos-
tile and deceitful manner. If the decision to close had already
been made, at that point, I think Remund would have told Wil-
mot to leave those two alone and let the corporation deal with
the issues they raised. That would have still kept the closure
decision from Wilmot if Remund thought it important to do so.
And, the August shutdown meant losing the expected excellent
September produce revenue.
All its behavior during August suggests that the decision to
close 24th Street was not made until after Burkett and Knaphus
began acting like a union on August 7. The corporate decision
came only 2 weeks later, allowing for sufficient time for Re-
mund to have taken the matter up with his superior, Gay, the
one whose policy it was to close stores in the face of union
organizing. Thus, even if James’ testimony about the inno-
cence of its abrupt behavior is the business norm for small op-
erations such as 24th Street, it does not follow that Respondent
was following the norm. If it were, we would not be seeing the
purchase of the awning and pulling the building permit for

14 James was undoubtedly correct that the remodel could not be per-
formed while keeping the store open. It is simply too small. Likewise,
night work would have been too noisy and disturbing for it is closely
surrounded by residential units.
REAL FOODS CO. 331
demolition virtually contemporaneously with the closure. We
would not be seeing the hire of new employees; we would not
be seeing a corporate resolution coming only 4 days before the
closure; nor would we be hearing subsequent admissions
against interest uttered by Diaz and Remund in the aftermath.
Accordingly, I find as a matter of fact that Respondent had
not made the decision to close the 24th Street store in April, but
in fact did not make the decision to choose 24th Street until
shortly before the August 25 corporate meeting. Until then, the
only store under consideration for closing was Sausalito. Fur-
ther, I find that that the decision to close the 24th Street store
was influenced by Burkett and Knaphus’s union like demands,
which demonstrated that the Union was about to descend on it.
I further find that the motive for closing that store when it did
was to carry out the announced policy of Nutraceutical’s CEO,
Bill Gay, that the Company’s proper response to union organiz-
ing was to close the facility. This closure was a direct result of
that policy. It violated Section 8(a)(3) and (1) as alleged in the
complaint.
G. The Refusal to Rehire Kim Rohrbach
As previously noted, Rohrbach, the cheese buyer, was in-
volved early in the union organizing campaign, although Re-
spondent’s knowledge of her involvement was clouded by her
deliberate ambiguity as expressed toward 24th Street’s assistant
manager, Ryan Rostvold. Yet, she had stood up for Ahern in
the sweep log matter and Kloski seemed aware of her organiz-
ing as evidenced by his question at the June 10 birthday party.
There can be no doubt she was, at the very least, under early
suspicion of being involved with the organizing.
As with the other 24th Street employees, she was discharged
on August 29. Even before her discharge, however, she admits
she was an unhappy employee. She didn’t trust higher man-
agement, believing both Remund and Gay to be untrustworthy.
She also had expressed some unhappiness with working for a
large corporation, rather than the family operation under which
she had been more comfortable.
After the store closed she involved herself with an on-line
support group, a Yahoo Group known as Reform Real Foods.
This group consisted of about 120 persons, but it is unlikely
that it was available to the general public. One has to join such
a group to view its messages. Rohrbach eventually became one
of the group’s moderators, but not until the fall of 2004, well
after the events under scrutiny here.
In any event, Rohrbach, by then employed as a counterper-
son by the Cowgirl Creamery,15 was job hunting at various on-
line sites. In early May, she saw Respondent’s want-ad on
CraigsList seeking to fill an opening for a product specialist.
She submitted a résumé directly by e-mail to Kloski, together
with a cover letter.
Her cover letter grants the awkwardness of her application:

15 The Cowgirl Creamery is a small cheese producer in Point Reyes
Station (Marin County) specializing in artisan-style cheeses. Rohrbach
works at its San Francisco retail outlet, continuing to utilize and im-
prove upon the cheese industry knowledge she had acquired while
working for Respondent and its predecessor.
Rohrbach is well-educated, being a 1987 graduate of UCLA.
I expect that you might feel strong reservations about rehiring
me, given that my vocal opposition to Nutraceutical’s conduct
in the whole 24th St. affair has no doubt done nothing to help
my reputation in the eyes of Bruce or Sergio. And I have to
acknowledge that I wouldn’t feel comfortable about working
for Nutraceutical at this point were I not to continue to lobby,
during my free time and while off the job, for certain work-
place changes. But as strongly as I disagree with the com-
pany’s recent conduct, I do not regard Bruce, Sergio, or Bill
Gay as being substantially different from most people; i.e., I
feel that, given certain conditions, even they are capable of
acting in a responsible and reasonable fashion. I might add
that even Bruce and Sergio were not able to destroy my ap-
preciation for my job in the past, or to prevent me from com-
pletely fulfilling my workplace responsibilities. In the mean-
time, I doubt that you, Anthony, Conal, Ryan, Sara, etc., feel
pleased about recent events, yourselves, and I’m sure you’ve
had your private discussions. But despite your personal feel-
ings, you’ve all managed to retain your positions and appar-
ently conduct yourself in a suitably professional manner while
at work; and I expect that I would be able to do the same were
you to rehire me.
Respondent characterizes this cover letter as “insulting” and
I tend to agree. It is mildly disrespectful to Remund, Diaz, and
Gay and hardly characteristic of the usual mild-mannered job-
seeker. Still, she is essentially announcing that if hired she
intends to exercise her statutory right to engage in concert with
other employees for their mutual benefit. While somewhat
aggressive, she knew she had a record of being a good em-
ployee and knew that she had that record even though her
quirky personality was well known to management. She knew
they knew what they were getting. She was only being herself.
This application triggered an interview on May 25, con-
ducted not by Kloski, but by Remund, though Kloski was a
participant. In large part this interview was a charade by both
Remund/Kloski and Rohrbach. Neither was presenting them-
selves entirely honestly. Rohrbach showed up for the interview
wearing a union T-shirt16 and presented herself in a somewhat
prickly manner. It would serve no purpose to describe the re-
spective points of view. The fact is that Remund had no inter-
est in rehiring her. Kloski, while not a Rohrbach fan, stood
relatively silent on the issue, deferring it to Remund, as he
must, because Remund had inserted himself into the scenario.
Rohrbach, on the other hand, was trolling for evidence of
wrongdoing as part of her anger over the store closure. In mak-
ing this observation I am not suggesting that she was not le-
gitimately seeking a job; her approach here was not much dif-
ferent from that of a “salt,” a tactic commonly seen in construc-
tion industry organizing. Salts are protected by the Act. See
generally NLRB v. Town & Country Electric, Inc., 516 U.S. 85
(1995), and similar cases. In fact there is no legitimate belief
that she would not have done the job properly upon rehire. In
fact, despite some marginal misgivings concerning her occa-
sional verbal dustups with managers (such as her sweep log

16 Rohrbach: “I had on a t-shirt from a union local that I was doing a
lot of volunteer work with at the time, as well as my UFCW Unity
button, I was very involved with their contract dispute.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD332
discussion with Wilmot), she was considered to be one of the
better and more responsible employees at 24th Street, as dem-
onstrated by the December 2002 performance appraisal. It can
also be said that her 2003 evaluation was never performed due
to the August closing and that 2003 issues had not yet been
memorialized. There is testimony that suggests her appraisal
might not have been as positive as in previous years.
I have no difficulty in concluding that the General Counsel
has made out a prima facie case that Respondent denied her
rehire for reasons prohibited by the Act. It had no intention of
rehiring any 24th Street employees beyond the minimum to
make it appear as if the 24th Street employees were being given
a fair shake. See Kloski’s testimony in the footnote.17 Remund
agreed that 24th Street employees who had lost their jobs were
not given preferential treatment for rehire at the other stores.
In addition, Respondent created another problem for itself,
adding to that prima facie case. In late June 2003, Respondent,
began, apparently on a limited basis, to hire new employees
through an intermediary company, the Aerotek Staffing
Agency. Respondent’s counsel used the word “introduce” in
his question,18 which Remund accepted. The Aerotek contract
in evidence (GC Exh. 35) (first page only), however, is dated
June 30, 2004. I do not regard these yearly references to be
inconsistent, since the 2004 contract may simply be a successor
to an earlier, perhaps ad hoc, tryout version of the arrangement.
Although Remund characterized the use of Aerotek as “pri-
marily” aimed at mitigating workers compensation claims and
not connected to the union organizing, Kloski said there was a
different explanation. It came in connection with the Rohrbach
interview.

17 Kloski’s testimony:
Q. [BY GUERRA] Had you ever discussed the hiring of ex-
24th Street employees with Remund?
A. [WITNESS KLOSKI] Yes.
Q. What were you told?
A. That I should hire ex-24th Street employees if I could.
Q. And what was your understanding as to why you were told
that?
A. So it wouldn’t seem like they fired everybody because of
the union drive.
Q. And what’s the basis of that understanding?
A. Conversation.
PLAZA DE JENNINGS: Objection, lack of foundation.
ADMINISTRATIVE LAW JUDGE KENNEDY: I’ll let him answer,
but you’re going to have to backfill for foundation, Counsel.
GUERRA: Okay.
Q. [BY GUERRA] What’s the basis of your understanding?
A. That’s what I just said, that they thought it would look
good if I rehired some employees.
Q. No, I meant how do you know this?
A. From conversations I had with Bruce.
Q. Do you recall approximately when those conversations
took place?
A. It happened a couple of times, definitely between late
2003, early 2004. I don’t recall exactly when but it happened a
couple of times, because when I was hiring it would come up.
18 Respondent’s counsel testified:
Q. [BY HIRSCHFELD]. . . When did you introduce Aerotek
into the company?
A. [WITNESS REMUND] In late June of ‘03. [Tr. 925.]
A. [WITNESS KLOSKI] Because she [Rohrbach] called
me and asked me, a couple weeks after the interview, what
was going on, are we going to hire her. I said, you have to
ask Bruce. And I asked Bruce myself and he said that
through conversations he had with Bill Gay, Bill asked
him do you want her or not, he said no. Bill said, then
don’t hire her.
Q. Do you recall when Fresh Organics began working
with a temp agency to fill its job vacancies?
A. Shortly after that interview with Kim Rohrbach.
Q. Did you have any problems with that?
A. Yes.
Q. Did you vocalize these complaints to anyone?
A. Yes.
Q. Do you recall approximately when?
A. Yeah. One day Bruce called a meeting with myself,
Tony Yur, who is one of the head HR people from Utah,
and a couple of representatives from the temp agency.
Q. Do you recall approximately when that meeting
was?
A. It was, I think, June 2004, somewhere in there,
June, July.
Q. And what did you say?
A. I said, I really think this is a bad idea, I don’t want
to do this, do I have to do this.
Q. And why did you think it was a bad idea?
A. Because—
PLAZA DE JENNINGS: Objection, Your Honor. What’s
the relevance?
GUERRA: I’ll withdraw.
Q. [BY GUERRA]: Did you explain why you thought it
was a bad idea?
A. Yes.
Q. And what did you say?
A. I said that in my experience the type of people that
we are looking for are people who are dedicated and
committed to natural foods and organics, and I felt that a
temp agency wasn’t going to provide us with those types
of people. I wanted people who were going to be invested
and committed to working in a store like that, and that
seemed like a temp agency was not that, going to provide
that type of person to us.
Q. Did you say anything else to Remund?
A. Yeah. I asked him if this was just a way to keep Kim
out of the store.
Q. And by Kim, who do you mean?
A. Kim Rohrbach.
Q. And what was Remund’s response?
A. He became heated and he said, yes, that has some-
thing to do with it but this is what Bill Gay wants and this
is what we have to do. [Emphasis added.]
Kloski’s recollection is most compelling. It so upset him as
a true believer in the organic food philosophy that he decided to
quit working for Respondent. Shortly thereafter, he found a job
with Whole Foods, in Austin, Texas. The incident is seared in
his memory. Indeed, he said he is not particularly enamored of
managing a unionized store, but Remund and Gay’s treatment
REAL FOODS CO. 333
of employees had become too much for him to stomach. Fur-
thermore, he is corroborated by Brian Darr, a cashier at Thom’s
who heard something similar from his produce manager,
Patricia Buzzotta, at about the same time. Remund’s denial
that he had ever said such a thing to anybody cannot be cred-
ited.
Therefore, the prima facie case is plain. Respondent did not
want to hire Rohrbach because it did not want her in the store
because of her past (and transparently current) association with
the Union. Indeed, Kloski reports that Remund, as a result of
directions from Nutraceutical CEO Bill Gay, was admitting that
the contract with Aerotek was part of a plan to keep Rohrbach
out and no doubt to serve as a barrier top keep other activists
from being employed. However one views it, Aerotek was to
serve as a layer of insulation from union organizing. Such a
tactic would be consistent with Gay’s earlier antiunion stance to
Remund as repeated to Kloski and Irish.
Normally, once a prima facie case has been made, under
Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st
Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in
NLRB v. Transportation Management Corp., 462 U.S. 393
(1983), the burden shifts to the respondent to establish by per-
suasive evidence that the employee would have been fired (or
not hired) even absent their protected conduct. See also Naomi
Knitting Plant, 328 NLRB 1279, 1281 (1999) (union animus
need only be a motivating factor to establish the prima facie
case).
The question, it would seem, is whether Respondent has pro-
vided persuasive evidence that she would not have been rehired
without reference to her union proclivities. Here, however, the
evidence demonstrates an overarching effort on Respondent’s
part to deny rehire to as many former 24th Street employees it
could get away with. Therefore, whether a given employee
might be burdened by nondiscriminatory reasons not to rehire
him or her, becomes relegated to irrelevance. Even so, there is
evidence in the record that Remund told the Board’s Regional
Office that the only reason it chose not to rehire Rohrbach was
because she was a better fit for a cheese products coordinator
job which it was considering creating, but never did. By the
time of the hearing, however, it had added a number of other
issues. Clearly, when it began adding these reasons, it risked
over-gilding the lily. Cf. Limestone Apparel Corp., 255 NLRB
722 (1981), enfd. 705 F.2d 799 (6th Cir.1982). However, in
my opinion, all this is beside the point. The fact is, Respon-
dent, as Kloski, observed, had created a policy to keep the 24th
Street employees from returning; it didn’t want union activists
in its system.
In fact, it created the artificial barrier of the intermediate em-
ployer, Aerotek, to hinder all such efforts. Even if Respondent
hired someone who later wanted representation by a union, it
could divert the employee by saying they were really the em-
ployee of Aerotek, an entity the employee could not easily find,
since his or her only knowledge about it would be as a name on
a paycheck or W-2 form. Distancing itself from its employees
in this manner is also consistent with Gay considering employ-
ees as a replaceable commodity. Therefore, all Respondent’s
reasons for not rehiring Rohrbach,19 whether factually accurate
or not, simply have no bearing on the reality it created. Its
policy against unionization overrides any of the given reasons.
In that circumstance, it cannot rebut the prima facie case.
Not only did Respondent rid itself of the 24th Street employ-
ees discriminatorily by closing the store, it did not want to al-
low any of them back beyond a select few to allow it to color
its policy with innocence. Under that policy, and for no other
reason, Rohrbach was denied rehire for reasons which violate
Section 8(a)(3) and (1) of the Act.
THE REMEDY
As noted in the introductory portion of this decision, the
General Counsel had originally named only Fresh Organics as a
Respondent. I granted the motion to amend the complaint to
include as a respondent Fresh Organics’ corporate parent,
Nutraceutical Corp., based on the contention that the two are, in
actuality, a single employer.
With regard to the single employer issue, the facts were de-
veloped over the course of the hearing. In this regard, there are
several factors which are not in dispute. The first, of course, is
the fact that they are separate corporations. The parent’s stock
is publicly traded, while the wholly-owned subsidiary is not.
However, the parent does exercise significant, if not day-to-
day, control over the subsidiary. The parent’s chief financial
officer, Les Brown, is a member, perhaps controlling member,
of the subsidiary’s two-person board of directors. It was he
who essentially ran the special meeting of the board on August
25, 2003, where the corporate instruction was made to close the
24th Street store. Furthermore, the legal advice for that deci-
sion came from Nutraceutical’s house staff attorneys and one,
Soper, was present during the meeting to offer counsel. Fresh
Organics had no legal advisers of its own. That had been dem-
onstrated to be true earlier, in May. On May 22, pursuant to a
request from the subsidiary’s general manager and executive
vice-president Remund, the parent had provided training con-
cerning how to respond to a union organizing drive. That train-
ing was provided by a member of the parent’s house counsel
staff, Attorney Langto from Park City headquarters. Later, the
landlord-tenant dispute between Fresh Organics and the Allens
over the 24th Street facility was processed by Nutraceutical
house counsel.
Indeed, it appears that all of the labor relations support pro-
vided to the subsidiary came from the parent. Until June 2004,
it provided payroll and connected support to the subsidiary as
well as providing its human resources department for personnel
issues. In fact, a number of Nutraceutical’s personnel policies
were imposed on Fresh Organics. These included the annual
appraisal formats, the employee improvement plan and advice
concerning discipline. In addition, the so-called “annual” ser-
vice award for the subsidiary’s employees was put in place by
the parent and then taken away by the parent. And, although it
was not put fully into place until June 2004, the decision to
insert Aerotek Staffing as the direct employer of the subsidi-
ary’s employees was made by Bill Gay, Nutraceutical’s chief

19 These include charges of disloyalty, product disparagement, per-
sonality conflicts.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD334
executive officer. Significantly, Gay’s policies regarding how
to respond to union organizing dominates the facts seen here.
He told the subsidiary’s general manager, Remund, that he
would close the store if the store’s employees became involved
in union organizing. That policy is what resulted in most of the
unfair labor practices found here. Clearly, the subsidiary’s
labor relations policies are centrally controlled by the parent, if
not by Gay himself. Even its principal concept designer, Sergio
Diaz came from Nutraceutical; he was, and is, Nutraceutical’s
director of marketing and sales. The subsidiary has no inde-
pendence from the parent in regard to such matters—either
labor relations or marketing. There is no arm’s length relation-
ship between the two. I find, therefore, that Respondent Fresh
Organics and Respondent Nutraceutical Corp. are a single em-
ployer under the Act. See generally Al Bryant, Inc., 711 F.2d
543, 551 (3d Cir. 1983), cert. denied 464 U.S. 1039 (1984),
which recites the criteria normally used to determine if compa-
nies are, in reality, a single employer. There the court said:
Four criteria have been used by the Board in determining
whether separate entities constitute a single employer: in-
terrelation of operations, common management, central-
ized control of labor relations, and common ownership.
Radio & Television Broadcast Technicians Local Union
1264 v. Broadcast Service of Mobile, Inc., 380 U.S. 255,
256, 85 S.Ct. 876, 877, 13 L.Ed.2d 789 (1965) (per cu-
riam); see also NLRB v. Browning-Ferris Industries of
Pennsylvania, Inc., 691 F.2d 1117, 1121–22 & 1121 n. 1
(3d Cir. 1982); Sakrete of Northern California, Inc. v.
NLRB, 332 F.2d 902, 905 n. 4 (9th Cir. 1964), cert. denied
379 U.S. 961, 85 S.Ct. 649, 13 L.Ed.2d 556 (1965); Park-
lane Hosiery Co., 203 NLRB 597, 612 (1973). The Board
finds no one factor controlling, although it has stressed the
first three factors, particularly centralized control of labor
relations, which tend to show “operational integration.”
Id.; see also NLRB v. Jordan Bus Co., 380 F.2d 219, 222
(10th Cir. 1967); Parklane Hosiery Co., 203 NLRB at
612. Ultimately, single employer status depends on all the
circumstances of the case and is characterized by absence
of an “arm’s length relationship found among unintegrated
companies.” Local No. 627 International Union of Oper-
ating Engineers v. NLRB, 518 F.2d 1040, 1045–46 (D.C.
Cir. 1975), aff’d on this issue per curiam sub nom. South
Prairie Construction Co. v. Local No. 627, International
Union of Operating Engineers, 425 U.S. 800, 96 S.Ct.
1842, 48 L.Ed.2d 382 (1976); see NLRB v. Don Burgess
Construction Corp., 596 F.2d 378, 384 (9th Cir.), cert. de-
nied 444 U.S. 940, 100 S.Ct. 293, 62 L.Ed.2d 306 (1979).
Based on the above recited facts, it is clear that Respondents
easily fall within the Al Bryant single-employer definition.
There is nothing approaching an arm’s-length relationship here.
Most importantly, the labor relations policy of the subsidiary is
totally dominated by the parent. But ownership is the same—
Remund owns nothing, it is all owned by Nutraceutical—and
operational matters, such as the store closure decision, are gov-
erned by the parent. In that regard, an executive of the parent,
Brown, was placed on the subsidiary’s board of directors to do
the parent’s bidding. In fact, Remund considers the Nutraceuti-
cal CEO, Bill Gay, to be his immediate boss. All this leads to
the inescapable conclusion that the two are a single employer
under the Act. Therefore, they are both responsible for the
unfair labor practices committed and both are obligated to rem-
edy them. Masland Industries, 311 NLRB 184, 186 (1993); Cf.
Radio & Television Broadcast Technicians v. Broadcast Ser-
vice of Mobile, 380 U.S. 255 (1965) (per curiam). “[To deter-
mine if employers may be found a single employer] [t]he con-
trolling criteria, set out and elaborated in [NLRB] decisions, are
interrelation of operations, common management, centralized
control of labor relations and common ownership.”
In addition, parent liability may also be found under the
Dews Construction20 rule where one employer obtains another
employer to commit an unfair labor practice. In this regard, see
the remand decision in Esmark, Inc., 315 NLRB 763, 767
(1994), as well as International Shipping Assn., 297 NLRB
1059 (1990). Rather clearly, Remund was following orders
emanating from Nutraceutical.
Having found that Respondents have engaged in certain un-
fair labor practices, I find that they must be ordered to cease
and desist therefrom and to take certain affirmative action de-
signed to effectuate the policies of the Act. As Respondents
discriminatorily discharged Sarah (Mitch) Genlot-Joslyn and
Adriel Ahern, they must offer them reinstatement to their pre-
vious jobs, or if they are not available, to substantially similar
jobs, and make them whole for any loss of earnings and other
benefits they may have suffered. Respondents shall take this
action without prejudice to their seniority or any other rights or
privileges they may have enjoyed. Backpay, if any, shall be
computed on a quarterly basis from the date of the discharge to
the date Respondents make a proper offer of reinstatement, less
any net interim earnings, as prescribed in F. W. Woolworth Co.,
90 NLRB 289 (1950), plus interest as computed in New Hori-
zons for the Retarded, 283 NLRB 1173 (1987). Furthermore,
Respondents shall be required to expunge from their personnel
files any reference to their illegal discharge. Sterling Sugars,
261 NLRB 472 (1982).
Likewise, they shall expunge from Sonja (Simon) Knaphus’
personnel file the annual appraisal given her in August 2003 to
the extent that it rated her negatively based on her participation
in the meeting of August 7, 2003. In each case, Respondents
will also be ordered to advise each of them in writing of the
expunction and that the discharge or negative appraisal, as ap-
plicable, will not be used against any of them in any way.
Insofar as the store closure is concerned, it should be noted
first that the General Counsel at the outset has advised that it
does not seek an order requiring the reopening of the store.
This is no doubt due to, among other things, the fact that at the
time of the hearing, some 18 months after the closure, remodel-
ing had yet to begin. This is in large part due to a landlord-
tenant dispute Respondents were having as a result of apparent
structural problems discovered when the 24th Street store was
finally gutted. As of the time of the hearing that dispute re-
mained unresolved. Therefore, there was no facility which

20 231 NLRB 182 (1977), enfd. 578 F.2d 1374 (3d Cir. 1978).
REAL FOODS CO. 335
could have been reopened, order or no order. Instead, the Gen-
eral Counsel seeks to have all of the 24th Street employees who
lost their jobs upon its unlawful closure to be placed on a pref-
erential rehire list for that store when it reopens. I concur with
that sought-for remedy, but believe it to be adequate only as far
as it goes. There is no reason at this juncture to assume that the
store will ever reopen. It may or may not. Therefore, the pref-
erential rehire list will be applicable to any store in the Fresh
Organics system, except for Sausalito which might require a
San Francisco employee a difficult commute. Furthermore,
since I have found that selection of the 24th Street store for
closure was in response to union organizing there, the closure
in reality effected nothing more than a common illegal dis-
charge for all these employees. Therefore, I see no reason not
to apply the usual backpay remedy applied in discriminatory
discharge cases. Had Respondents not made this discrimina-
tory decision, in all likelihood the Sausalito store would have
been the one chosen for the concept store remodel and the 24th
Street employees would still be employed. Masland Industries,
supra.
Moreover, I also find that the discriminatory closing of the
24th Street store had the foreseeable result of chilling union
activity at its other stores, Stanyan, Thom’s and Sausalito as
well as other stores elsewhere in the country.21 This partial
closing of its operation was an object lesson to the employees
of the remaining stores: “If you choose to unionize, there will
be serious consequences levied upon your livelihood.” Re-
spondent’s actions here are very grave and therefore the remedy
must take that gravity into account. Therefore, I will apply a
broad order here, requiring Respondents to cease and desist
from infringing in any other manner on the rights guaranteed
employees by Section 7 of the Act. Hickmott Foods, 242
NLRB 1357 (1979). Among other things, Respondents must
rehire these individuals themselves and not use the services of a
contract labor supplier such as Aerotek in order to establish the
status quo ante. Moreover, the remedial notice cannot be lim-
ited to its San Francisco area stores; it must have a broader
reach. The object lesson of closure to avoid unionization can
reasonably be assumed to have spread throughout its retail op-
erations wherever situated.
Finally, Respondents shall be directed to post a notice to em-
ployees advising them of their rights and describing the steps it
will take to remedy the unfair labor practices which have been
found.
Based upon the foregoing findings of fact, legal analysis, and
the record as a whole, I make the following

21 The record shows that it operates at least one other store, located
in Scottsdale, Arizona.
CONCLUSIONS OF LAW
1. Respondent Fresh Organics Inc. is an employer engaged in
commerce and in an industry affecting commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
2. Respondent Nutraceutical Corporation is an employer en-
gaged in commerce and in an industry affecting commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
3. Respondents Fresh Organics, Inc. and Nutraceutical Cor-
poration constitute a single employer under the Act and are
jointly and severally liable for the unfair labor practices found
herein.
4. Respondents did not violate Section 8(a)(1) as alleged in
paragraphs 6(a) and (b) of the complaint.
5. Respondents did violate Section 8(a)(1) when, about June
18, 2003, it announced and implemented a supposedly annual
employee service tenure award as it was in part motivated to
dissuade employees from seeking union representation.
6. In mid-August 2003, Respondents violated Section 8(a)(1)
by downgrading the annual appraisal for Sonja (Simon)
Knaphus because she engaged in activity protected by Section 7
of the Act.
7. On June 26, 2003, Respondents discharged its employee
Sarah Genlot-Joslyn in violation of Section 8(a)(3) and (1)
because of her union and other protected concerted activities.
8. On July 23, 2003, Respondents discharged its employee
Adriel Ahern in violation of Section 8(a)(3) and (1) because of
her union and other protected concerted activities.
9. On August 29, 2003, Respondents violated Section 8(a)(3)
and (1) when it closed its 24th Street store and terminated the
following 29 employees:
Dorothy R. Adams Sonja (Simon) Knaphus
Sean B. Andrews Diana H. Kuemmel
Jonathan H. Burkett Colin R. Lapuyade
Kelly M. Cronin Greg M. Lashaw
Sharna D. Fey Michael A. Lopez
Christina D. Fisher Rita J. Morris
Zoe Friedman-Cohen Shawn M. Mowell
Charles A. Glover Ryan P. Newton
Wendy L. Granger Joshua L. Peach
Shaun M. Hannan Adam L. Rabinovitz
Adrian J. Hernandez Kimberly M. Rohrbach
Kristin D. Hornstra George W. Schulz
Sarianne Huyett Brian J. Schumacher
Shauna L. Katz Jennifer A. Stone
Dallas A. Kavanagh
10. On or about June 22, 2004, Respondents violated Section
8(a)(3) and (1) when it refused to rehire Kimberly M. Rohrbach
for an opening at its Stanyan Street store.
[Recommended Order omitted from publication.]