Waldbaum's

National Labor Relations Board - Administrative Judge Opinions

May 27, 2009

29-CA-029008 (N.L.R.B. May. 27, 2009)

JD(NY)-19-09
Jericho,NY
Carle Place, NY
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
GREAT ATLANTIC & PACIFIC TEA CO.
d/b/a WALDBAUM’S
and CASE NOS. 29-CA-29008
29-CA-29244
LOCAL 338, RETAIL WHOLESALE
DEPARTMENT STORE UNION, UNITED
FOOD & COMMERCIAL WORKERS
Tabitha Boerschinger, Esq., for the
General Counsel
Douglas P. Catalano, Esq., (Fulbright &
Jaworski, LLP), of New York, New
York, for the Respondent
Jae Chun, Esq., (Friedman & Wolf), of New
York, New York, for the Charging
Party Union
DECISION
Statement of the Case
ELEANOR MACDONALD, Administrative Law Judge: This case was tried in
Brooklyn, New York, on March 2 and 11, 2009. The Complaint alleges that Respondent, in
violation of Section 8 (a)(1) and (5) of the Act, demanded that the Union agree to a non-
mandatory subject of bargaining as a condition of reaching a collective-bargaining agreement,
conditioned further bargaining upon agreement on pension benefits, refused to provide
information to the Union, and caused Union handbillers to leave two of its locations. The
Respondent denies that it has engaged in any violations of the Act and asserts that the
Complaint is barred by the applicable statute of limitations.1
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the parties on April 30, 2009, I make the following2
Findings of Fact
I. Jurisdiction

1 The Respondent made no further mention of its assertion concerning the 10(b) period and
it appears that this defense was made without any basis in fact or law.
2 The General Counsel’s Brief contains a Motion to Amend Transcript. The suggested
corrections are valid and I hereby grant the Motion.
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Respondent, a domestic corporation, is engaged in the ownership and operation of
various retail supermarkets including Waldbaum’s stores located in Carle Place, New York and
Jericho, New York. Annually respondent derives gross revenues in excess of $500,000 and
purchases and receives at its Carle Place and Jericho facilities goods and products valued in
excess of $5,000 directly from points outside the State of New York. Respondent admits, and I
find, that it is an employer engaged in commerce within the meaning of section 2(2), (6) and (7)
of the Act and that Local 338, retail Wholesale Department Store Union, United Food &
Commercial Workers, is a labor organization within the meaning of Section 2(5) of the Act.
II. Alleged Unfair Labor Practices
A. Background
The Union is the exclusive collective-bargaining representative of Respondent’s
employees in the following appropriate unit:
All full-time and regular part-time Supervising Pharmacists, Staff Pharmacists, Graduate
Pharmacists, and Pharmacist Interns employed at Waldbaum’s stores in New York City
and the State of New York, excluding guards and supervisors as defined in the Act.
Respondent and the Union have been parties to successive collective-bargaining
agreements, the most recent of which was effective from October 1, 2005 though April 1, 2008.
Negotiations for a successor agreement to the 2005-2008 contract commenced on March 4,
2008. Approximately 26 bargaining sessions have been held by the parties.
Most of the pharmacies in Waldbaum’s supermarkets are organized by the Union. The
Union represents pharmacists at 35 or 40 Waldbaum's stores; about 4 or 5 other stores employ
non-union pharmacists. Waldbaum’s supermarket clerks are also represented by Local 338 but
they are covered by a separate contract which is not at issue herein.
B. The Negotiations
1. The Pharmacy Benefits Proposal
Keith Halpern, Esq., the Vice President for Labor Relations of Great Atlantic and Pacific
Tea Company was the lead negotiator for the company. He was accompanied by Nick
DeGiorgio, Director of Pharmacy Robin Page, John Gigliotti and a person identified as Ali. The
Local 338 negotiating team was led by Director of Collective Bargaining Michael Pasquaretta,
who was accompanied by Contract Negotiator Carlos Sanchez, Secretary/Treasurer John
DiMartino and, alternately, Jae Chun, Esq., or Willie Anspach, Esq.
At a bargaining session on April 2, 2008, the Union presented its demands which
included the following language as a proposed amendment to Article 15 of the collective-
bargaining agreement. Article 15 provides for employer contributions, at collectively-bargained
rates, to the Health and Welfare Fund, the Pension Fund and the Benefits Fund, formerly called
the Dental & Legal Services Fund:
U 6)Article 15-Local 338 funds:
(a) Maintain current Medical, Benefits, and Retirement benefits
(b) Add the following language to the CBA: the Union reserves the right, at its sole
discretion, to adjust the contribution rates set forth above so as to raise the rates to the
Health & Welfare Fund and to lower the rates in an equal amount to the Benefits Fund,
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or so as to raise the rates to the Benefits Fund and to lower the rates in an equal amount
to the Health & Welfare Fund, so long as the aggregate amount contributed to the two
Funds remains the same.
(c) The Employer shall provide medical wrap around insurance for all Pharmacists.
Halpern testified that the Union’s proposal did not seek an increase in the current
contribution rates in order to maintain the existing employee benefits.
Prescription benefits are provided to unit employees through the Local 338 Benefits
Fund. Halpern described the operation of the prescription benefit in testimony that was
uncontradicted on the record.3 Pharmacy employees obtain prescriptions through the Local 338
Benefits Fund either at a retail pharmacy or by mail. Employees are liable for a co-pay amount
each time they fill a prescription. Normally, the co-pay amount is charged for each 30-day
prescription filled at a retail pharmacy. However, if a 90-day supply of a prescription is ordered
by mail only two co-pays will be charged instead of three. Further, at some retail pharmacies
unit employees may obtain a 90-day prescription and still be charged only two co-pays. This
reduced co-pay aspect of the prescription benefit is called “mail at retail.”
Waldbaum’s pharmacies are providers under the Local 338 Benefits Fund. Another
provider is Duane Reade, a competitor of Waldbaum’s. The two co-pay “mail at retail” price for
90-day prescriptions is available to unit employees at Duane Reade pharmacies but not at
Waldbaum’s pharmacies. When pharmacists employed by Waldbaum’s attempt to fill a 90-day
prescription at a Waldbaum’s pharmacy they are told to go to Duane Reade.
Halpern testified that there had been discussions between the company and the Union
about this situation which was viewed as inequitable by Waldbaum’s. The company had
informed both the Union and the Fund that Waldbaum’s was concerned about this arrangement
between the Fund and a competitor of Waldbaum’s.
At a negotiating session on May 22, 2008 Halpern gave a proposal to the Union which
provided:
Add the following language to Article 15(a):
In order to provide improved pharmaceutical services and prescription benefits for its
employees who are represented by the Union, including but not limited to “mail at retail”
rates, the Employer and Union agree that the Waldbaum's pharmacies shall be included
as providers for the Local 338 Health and Welfare Fund at equal pharmaceutical rates
and terms as the Fund receives from its other ninety (90) day at retail and mail order
Pharmacy providers.4
Halpern told the Union that the company’s proposal would be an improvement in
employee pharmacy benefits and would provide a job security benefit for the unit employees.

3 I shall credit Halpern’s testimony. Halpern answered the questions put to him fully and
directly and he was cooperative on cross-examination by opposing Counsel. He did not
hesitate to give answers that were not particularly helpful to Respondent’s case. I formed the
impression that Halpern was a truthful witness.
4 The company’s proposal incorrectly identified the Health and Welfare Fund as the provider
of pharmacy benefits. Halpern acknowledged that this was an error and that he knew the
benefits were provided by the Benefits Fund.
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Halpern testified that bargaining unit members had complained that when they tried to fill a 90-
day prescription at their own pharmacies they were told to go to a Duane Reade store. As a
matter of convenience, employees wanted to be able to fill prescriptions at their own
pharmacies at the lower “mail at retail” rates. Further, permitting Waldbaum’s to fill the 90-day
prescriptions at the lower rate would cause more prescriptions to be filled at Waldbaum’s and
would increase the amount of work available for unit employees. Halpern noted that some
Waldbaum’s pharmacies had decreased their hours due to lack of sales, and the proposal could
prevent that from happening and might also have the effect of increasing overtime. Thus, the
company’s proposal would contribute to job security for unit employees. Halpern told the Union
representatives that the prescription benefit proposal was a mandatory subject of bargaining
because it related to employee benefits.5
Halpern testified that DiMartino agreed it was onerous to oblige unit employees to fill
their prescriptions at other pharmacies and he said the Union would “work with you.” This
position was not held by the other Union negotiators.
At the negotiations on May 23, Halpern told the Union that the company’s Director of
Pharmacy had contacted the Local 338 Benefits Fund about the company’s concerns and had
gotten no response. The Union replied that it had no standing to negotiate on behalf of the
Local 338 benefits Fund and that it would not bargain over the “mail at retail” pharmacy benefit
proposal. Halpern replied that the Union had an obligation to negotiate over wages, benefits
and terms and conditions and that the pharmacy proposal was a benefit improvement for
employees. Halpern believed that the Union has standing to bargain over employee benefits.
At a bargaining session on June 5 Halpern again discussed the “mail at retail” proposal
with Chun and gave his reasons for believing that it was a mandatory subject of bargaining.
Chun maintained that it was prohibited under ERISA but Halpern did not agree with his legal
theory. On June 12, the parties again discussed the “mail at retail” proposal and DiMartino
asserted that it would only affect 2% of prescriptions. Halpern asked the Union for information
to back up this claim but he never received any such information.6
Pasquaretta and Sanchez both testified that before Halpern advanced the pharmacy
benefit proposal on May 22, 2008 Halpern had told the Union the main issues that remained to
be resolved by the parties were duration, wages and pension. Halpern denied this version of
the bargaining history. Halpern testified that on May 21 DiMartino said all that remained to be
negotiated was wages, pension and duration. Halpern recalled that he did not agree nor
disagree. It was clear to him that there were still many items proposed by both sides that had
not been removed or tentatively agreed. I note that all of the Union’s proposals bear a heading
that states: “The Union reserves the right to Modify, Add, or Delete proposals made during the
course of these negotiations.” The Waldbaum’s proposals bear a similar heading.
Pasquaretta and Sanchez stated that on June 13 when Chun asked Halpern if there
could be an agreement without resolution of the company’s “mail at retail” prescription demand
Halpern said no, it had to be part of the agreement. Sanchez testified that at every meeting
Halpern said the parties could not go forward unless they agreed on the pharmacy proposal.

5 Halpern testified that the Director of Pharmacy had informed him that it would not be lawful
for the Waldbaum’s pharmacy to waive the co-pay for its unit employees. This testimony is
uncontradicted.
6 There is no evidence in the record to show how many prescriptions would be affected by
the company’s “mail at retail” proposal.
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However, Halpern testified that he told the Union that he needed a solution and that this was an
important aspect of the bargaining. Halpern denied that he said there would be no collective-
bargaining contract without an agreement on the prescription drug proposal.
The parties met with a mediator on July 16. Halpern explained the “mail at retail”
prescription proposal to the mediator and the parties met face to face so that Halpern could
reiterate the reasoning behind the proposal.
At a bargaining session on October 22, 2008 the company gave the Union a modified
pharmacy proposal. Halpern testified that he was trying to respond to what DiMartino had said
at the table. The new proposal provided as follows:
Add the following language to Article 15(a):
In order to provide improved pharmaceutical services and prescription benefits for its
employees who are represented by the Union, including but not limited to “mail at retail”
rates, the Union agrees that it will fully recommend to the Local 338 Health and Welfare
Fund trustees that the Waldbaum's pharmacies be included as providers for the Local
338 Health and Welfare Fund at equal pharmaceutical rates and terms as the Fund
receives for its other ninety (90) day at retail and mail order Pharmacy providers.
Sanchez testified that after proposal was given to the Union Chun asked why the parties
were still discussing the company request.7 Chun told Halpern to discuss his proposal with the
Fund.
Halpern testified that he had never held the negotiations hostage to an agreement on
prescriptions. He said he needed to resolve the prescription issue and wanted to bargain over
it, but the Union did not want to negotiate. Halpern pointed out that the company discussed
other issues in the course of the many bargaining sessions and did not stop negotiating. He
said the parties had to address “mail at retail” in order to have an agreement but he did not
condition agreement on any particular proposal; he wanted a collaborative resolution for the
issue. Halpern modified the initial proposal to say “fully recommend” to meet Union objections.
He saw no reason why the Union could not recommend a provision to the Fund trustees.
On cross-examination by Counsel for Respondent, Pasquaretta testified that he does not
know if the Union can make a recommendation to the trustees of the Benefit Fund to permit
Waldbaum’s to provide prescriptions on a “mail at retail” basis.8 He has not spoken to the
trustees concerning this issue. Pasquaretta confirmed that when the Union formulated its
demands, including the demand that current benefits be maintained at the current rate of
contributions, the information about the rates necessary to maintain current benefits was
obtained by Union President John Durso who is a trustee of the Benefit Fund.

7 According to Sanchez, Halpern said the Union would not get a contract without the
company proposal. I do not credit Sanchez that Halpern made this statement. Sanchez placed
the exchange in September and the totality of his testimony led me to the conclusion that
Sanchez did not have a good recall of the event.
8 I note that Pasquaretta was not cooperative on cross-examination and gave convoluted
answers in order to avoid giving a direct answer to questions posed by Counsel for Respondent.
I formed the impression that Pasquaretta did not testify fully on cross-examination and that in
general he shaded his testimony to favor the General Counsel’s case; I shall give less credit to
his testimony for that reason.
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Sanchez testified that trustees of the Benefit Fund tell the Union what dollar amounts of
employer contributions are necessary to pay for the pharmacy benefit and the Union must then
negotiate with the employer to obtain the contributions. The Union makes a commitment in the
collective-bargaining agreement that the benefits will be maintained if the employer makes the
negotiated contributions. According to Sanchez nothing prevents the Union from discussing the
company’s pharmacy proposal with the Fund. Indeed, a Union official who is also a trustee of
the Fund could be asked to present Waldbaum’s proposal to the other trustees.
Halpern acknowledged that if the Local 338 Benefits Fund made the change requested
by the company any employee of any other employer covered by the Fund could obtain the 90-
day “mail at retail” price at a Waldbaum’s pharmacy. Halpern pointed out that the company’s
contributions to the Fund are not used solely for the benefit of Waldbaum’s employees.
The Union has continued to reject the company’s modified prescription benefit proposal
and it has never made a counter-proposal on this subject. Sanchez testified that Union has
always maintained a position that it would not discuss the “mail at retail” prescription proposal.
2. The Pension Fund Proposal
The Local 338 Pension Fund to which Waldbaum’s contributes pursuant to Article 15 of
the collective-bargaining agreement is a multi-employer defined benefit pension plan.
Waldbaum’s employees in a different bargaining unit composed of clerks are also covered by
this pension plan.
At the April 2, 2008 bargaining session Halpern told the Union that he would make a
pension fund proposal. Halpern said that the company was concerned about its mounting
withdrawal liability from the Local 338 Pension Fund. Halpern explained that the reason for the
company’s concern was that A & P participated in over a dozen defined benefit plans in various
bargaining units for which the withdrawal liability over time could amount to hundreds of millions
of dollars.9 In the past A & P had incurred costs of tens of millions when it withdrew from the
Teamsters Central States Pension Fund. Further, withdrawal liability is a major impediment to
strategic transactions, such as acquisitions, that the company may wish to pursue. Capital
lenders scrutinize withdrawal liability when deciding on a loan, thereby making it hard for the
company to obtain financing. For these reasons, the company wanted an escape hatch from
the Local 338 Pension Fund if the Fund ran into difficulties. Waldbaum’s was willing to stay in
the Fund for the present because it was well funded but the company needed a trigger
mechanism in case the funding level and withdrawal liability worsened.
At the April 4, 2008 negotiations Halpern proposed to the Union that if the Local 338
Pension Fund fell below 100% funding or exceeded $50,000 in withdrawal liability for the
company, the company could withdraw from the Local 338 Fund and carry the benefits to a
mutually agreed upon plan. Halpern emphasized that the company would continue to contribute
the same per capita to the new plan as to the Local 338 Pension Fund. DiMartino said $50,000
was “nothing”. Halpern suggested that the parties discuss this and come up with a new
proposal.
On April 8, Halpern presented a modified proposal: the company would not withdraw

9 The withdrawal liability is the company share of the underfunded status of the plan as
calculated when the company closes an operation or when it ceases to participate in a fund.
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from the Fund if it were less than 100% funded so long as the funding percentage was not
declining year after year. Only if the funding percentage declined over the years would the
company be permitted to withdraw from the Fund. Halpern again explained his concern to the
Union, saying that the company would experience difficulty in obtaining financing for
transactions that would benefit the company in the long run and it needed a floor to its
withdrawal liability. Pasquaretta said the Union was not interested. He said the Fund was in
fine shape and that he did not trust the company or its fund. The Union made no counter
proposal.
At a session on April 29 Halpern presented another company proposal. If the Local 338
Pension was below 95% underfunded or the company faced a $6 million withdrawal liability,
then the company could withdraw from the Fund and move the benefits and future service
credits to either the A & P pension fund or another mutually agreed upon fund. Halpern
stressed that employees would maintain their service credits. The Union did not agree and did
not make a counter proposal.
In bargaining on April 30 Halpern offered a new pension proposal which consisted of a
possible move to the A & P pension fund and an alternative 401(k) that might appeal to younger
unit employees. The company would maintain the defined benefit unless an employee wanted
to switch to a 401(k). DiMartino rejected this proposal saying, “We’re not going any further with
this.” Halpern tried to engage the Union in discussions about the pension on May 5, 21 and 23,
but DiMartino again rejected the company proposals. Sanchez testified that the Union would
not discuss pension modifications in the negotiations. Pasquaretta confirmed that the Union
has never made a counter proposal on the subject of pensions.
On June 2 the Union told Halpern that since the company had proposed that employees
could participate in a 401(k) the company was obviously willing to match contributions. The
Union then submitted a new pension proposal, raising the original $155 per month per capita
contribution to the Local 338 Pension Fund to $372 per month. Halpern said this was a
regressive proposal.
At a meeting on September 12, the Union gave the company a set of proposals,
including wages, at 11:30 am. The Union’s wage proposal reflected agreement with the
company based on prior negotiations concerning the dollar value of eliminating certain premium
pay and converting it to wages. This was a piece of the negotiations for a wage increase. Thus,
there had been some agreement on wage issues, but the parties were still several dollars apart
on total wages. Halpern testified that the Union’s total wage demand amounted to a 9%
increase. Halpern testified that in the afternoon at 2:30 pm the company responded with a new
proposal on wages and other issues.10

10 Halpern testified, and I credit him, that his notes show the Union presented its proposal at
11:30 in the morning and he presented the company proposal at 2:30 pm. At first Halpern
answered “yes” when asked if the Union proposal was a counter offer, but while testifying in
great detail about the wage negotiations Halpern was quite clear that the Union’s proposal
reflected prior discussions and agreement about conversion of certain premium pay but was not
given in response to the company’s September 12 proposals. Halpern’s testimony on this issue
shows that after he examined the documents he had excellent recall of the specific issue and
how it was dealt with in negotiations. I find that Halpern was entirely credible concerning the
September 12 meeting.
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When questioned by Counsel for the General Counsel about the September 12 meeting,
Sanchez testified that the company did not want to talk about this most recent Union wage
demand because it was more concerned about the pharmacy and pension proposals; however,
Sanchez recalled that the company responded to the Union’s wage demand by saying that it
was out of the ball park. Sanchez appeared to recall more details when questioned later by
Counsel for the Union. Sanchez testified that the Union asked for a counter-proposal but the
company refused to provide one until they had a response on the pension and pharmacy
proposals. He testified that the company “never” responded to the Union’s wage demand and
that the Union has not received any response to the September 12 wage proposal. Sanchez
testified that the company had provided its September 12 proposals before the Union gave its
own proposals. On cross-examination, Sanchez maintained that the company’s September 12
offer was the same as previous offers. After being pressed on this issue, Sanchez said that
Halpern gave a corrected wage offer on September 12 because he had made a mistake in a
previous offer. Then, Sanchez said that Halpern had moved money around “maybe a dime.”
Finally, Sanchez admitted that the company’s September 12 wage proposal was a better one
than it had made before. I note that Sanchez’ testimony on the issue of wage proposals was
shifting and that he resisted answering questions on cross-examination. I conclude that
Sanchez shaded his testimony on this issue and I shall not credit it where it is contradicted by
reliable documentary and testimonial evidence.
On October 22 the parties met with a mediator and the company made yet another
pension proposal; it offered to create a single employer plan managed by the Union and A & P
to cover only Waldbaum’s employees. The Union rejected this proposal. The mediator and the
Union asked to discuss wages. Halpern replied that that the company had made seven wage
proposals which represented a lot of movement on wages and had submitted a wage proposal
in response to the Union’s last demand. Halpern said if the Union wanted to focus on wages it
could make a new proposal and he would discuss it. But, in the absence of a new Union
proposal he wanted to focus on the pension. Halpern pointed out that the company had made
five pension proposals and that there had been no back and forth on this issue. Pasquaretta at
first testified that he did not recall this meeting. After further questioning he recalled that
Halpern said the company had to have an agreement on the pension before he would move
forward on wages.
Pasquaretta testified that the parties met in December to go over the status of the
negotiations. At this meeting Halpern said the pension had to be done before wages could be
considered. Pasquaretta acknowledged that although Halpern has said that the parties must
agree on the pension before they could move forward on wages, he never said he would not
bargain over the wages.
The last bargaining session between the parties took place on January 13, 2009. The
Union gave the company a written proposal that maintained the same wage demands as had
been presented on September 12, 2008. Halpern stated that the company had replied to these
demands on September 12. Halpern told the Union that there were many items still to discuss
including wages, terms and conditions and pension. He did not want to foreclose discussion of
wages but he wanted to focus on the pension. Halpern pointed out to the Union that
Waldbaum’s had revised its pension proposal many times. He said there had to be a resolution
of the pension issue but he never said he would not discuss other subjects. Halpern pointed out
that he had discussed other subjects and negotiated on them all along. Pasquaretta testified
that at this meeting Halpern said he wanted to give wage increases provided the parties came
to an agreement on the pension.
On January 13, 2009 Halpern requested information from the Union concerning the
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financial condition of the Local 338 Pension Fund. The Union responded that Halpern should
ask the Fund directly. On February 12 Halpern wrote to Fund Administrator Hamilton
requesting a variety of information relevant to the negotiations. Halpern received the
information on February 27.
On March 9, 2009 Halpern sent a letter to Pasquaretta proposing that the parties
continue negotiations on March 27 and April 3 “over all aspects of the agreement, including but
not limited to wages, pension, term, etc.”
Halpern testified that the company had made several wage proposals which showed
continual movement and the company had discussed wages with the Union. Halpern stated his
position that there could be no collective-bargaining agreement without a resolution of the
pension issue, but the company could resolve the wage issue before it obtained an agreement
on pensions.
Pasquaretta stated that the company has made about 15 wage proposals and it has
modified its pension proposal three times.
3. Information Request
Pasquaretta testified that on October 8, 2008 he asked the company for wage data for
per diem pharmacists and non-Union pharmacists. Article V (g) of the collective-bargaining
agreement provides that per diem pharmacists may be called in by Waldbaum’s “when a
department cannot be covered through the utilization of the regular full time and regular part
time workforce.” Sanchez testified that unit pharmacists have trained per diem pharmacists.
As stated above, in addition to the 35 or 40 Waldbaum’s stores whose pharmacists are
represented by Local 338, there are 4 or 5 other locations that employ non-Union pharmacists.
According to Pasquaretta he heard that a non-Union pharmacist worked in a store with Local
338 unit employees.
On October 21, 2008 the Union sent the following information request to the company:
We repeat our request for wage information pertaining to A & P’s non-union and per-
diem pharmacists. We request this information because the non-union and per-diem
pharmacists perform the same kind of bargaining unit work performed by our members,
and therefore the amount they receive is relevant and useful for us to intelligently frame
a wage proposal for our members.
You have stated that the amounts paid to A & P’s non-union and per-diem pharmacists
do not take into consideration the absence of union protection and other benefits
enjoyed by our members. To that end, we also request information concerning benefits
received by A & P’s non-union and per-diem pharmacists.
Halpern testified that he did not provide the information because he believed it was not
relevant to the negotiations. However, he later provided the per diem pharmacist information.
He did not provide any information about the non-Union pharmacists because these do not work
in the same stores as the Union members and are not used as replacement personnel for unit
employees. Halpern said he heard of one instance where a non-Union pharmacist worked in
the same store as a bargaining unit employee and the situation was “immediately rectified”.
Halpern stated that he does not deal with non-Union pharmacists and he is not familiar with their
working conditions.
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On February 25, 2009 Halpern sent the Union data showing the stores where per diem
pharmacists were employed with their current hourly pay and a statement that the only benefit
provided to per diem pharmacists is “a 10% employee discount on purchases made within our
stores (‘Associate Bonus Card’).”
Sanchez testified that the company response did not satisfy the Union’s request for
information. Sanchez said he did not know where the information came from and when the
employees began getting the rates. Sanchez also said he did not believe Halpern that the only
benefit the per diem pharmacists receive is an employee discount.
C. Handbilling by Union Agents
The Union handed out flyers at the Jericho and Carle Place, Long Island, Waldbaum’s
stores in May or June, 2008.
The flyers informed the public that the Waldbaum’s pharmacists had been working
without a contract for weeks and were seeking to preserve their pension and obtain a fair salary.
The flyers asked that the public support the pharmacists by contacting Waldbaum’s.
1. Jericho Store
Sanchez testified that he handed out flyers at the Waldbaum’s in Jericho, Long Island, in
May or June 2008 with Jeff Reis.11 The Jericho store is in a strip mall and there are stores
adjoining it on either side. Waldbaum’s leases the store property from the owner. As one faces
the store there is a Dunkin Donuts shop attached on the right. On the left there are a bank, a
liquor store, a restaurant and a nail salon. All these stores are connected by a common
sidewalk. At the front of the strip mall is a parking lot. The parking lot is separated from the
roadway in front of Waldbaum’s by an island. Sanchez testified that there are benches on the
island where Waldbaum’s employees sometimes spend their break time. Sanchez and Reis
began handing out the flyers while standing on the island in front of the Waldbaum’s entrance.
After an hour or two it began to rain and they moved to the sidewalk so as to gain shelter from
the overhang on the stores. The two men stood in front of the Dunkin Donuts. Sanchez noticed
Waldbaum’s shopping carts in front of Dunkin Donuts or near Dunkin Donuts. When a customer
took a shopping cart from the parking lot and walked towards the Waldbaum’s store Sanchez
and Reis would approach and hand the customer a flyer.
At lunch time John Romanelli, the Waldbaum’s manager, came out of the store and
asked Sanchez and Reis what they were doing. He told the two that they were not allowed
there. Sanchez replied that they were not on the manager’s property but Romanelli said they
were on his property and if they did not leave he would call the police. Sanchez told the
manager to call the cops if he had to. Romanelli opened his cell phone and walked away. Later
he returned and said the two Union agents would have to leave the property. No police officers
came to the premises and Sanchez and Reis left of their own accord.
Romanelli testified that he saw the two Union agents handing out flyers 12 feet from the
Waldbaum’s entrance. The store had put items for sale on the sidewalk where the men were
standing including potting soil, mulch, fertilizer, plants and the like. There were Waldbaum’s
shopping carts placed for customer use on the far end of the sidewalk beyond the entrance to

11 Reis was a Union representative; he no longer works for the Union.
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Dunkin Donuts. Romanelli stated that when he saw Sanchez and Reis they were in front of the
Dunkin Donuts plate glass windows; these windows abut the Waldbaum’s store. Romanelli
called the strip mall landlord and asked who “owned” the property on which the Union agents
were standing; the landlord replied that Waldbaum’s owned the property. Romanelli then asked
Reis and Sanchez to leave, but they refused. Romanelli insisted and said he would call the
police if they did not depart. Then Romanelli called the landlord again and said the Union was
handing out leaflets; he asked whether he had the right to tell them to leave. The landlord
confirmed that Romanelli had the right to eject them. Romanelli did not ask the landlord to call
the police nor did he call them himself. When Romanelli again spoke to Sanchez and Reis
about leaving the property, Sanchez denied that he had the right to eject them and Romanelli
offered to call the landlord and let Sanchez speak to him. At that point Sanchez walked away
and Reis said they were leaving in five minutes anyway. Romanelli went back into the store and
had no further contact with the Union agents.
Romanelli testified that Waldbaum’s has a leasehold interest in the sidewalk in front of
Dunkin Donuts. Waldbaum’s employees maintain the sidewalk in front of the company’s store
and in front of Dunkin Donuts and the bank; they sweep, empty the garbage cans, shovel snow
and power wash the pavement.
2. Carle Place Store
Sanchez and Steve Pezenik, the Union Director of Special Projects, handed out flyers at
the Waldbaum’s store in Carle Place, Long Island, in mid-May 2008. The Carle Place facility is
a free-standing store set in a shopping mall which contains other establishments.12 Across the
road from the store is a parking lot. To reach the store, drivers come down Glen Cove Road
and turn onto Westbury Avenue which leads to the store parking lot. Both Glen Cove Road and
Westbury Avenue have sidewalks. An island separates the parking lot from the street in front of
the store. The Waldbaum’s store is an L-shaped structure with a side entrance and a main
entrance and a sidewalk that continues around the building.
Pezenick testified that on the day they distributed flyers in Carle Place, he and Sanchez
arrived at the Waldbaum’s store at about 10:30 am.13 Pezenick spent most of his time at the
side entrance while Sanchez stayed at the main entrance. At about 2 pm Pezenick went to
stand with Sanchez at the main entrance. Pezenick testified that he and Sanchez stood on the
sidewalk in front of Waldbaum’s. He said that if they had stepped off the sidewalk they would
have been standing in the street. There were items for sale on the sidewalk including water
bottles and potting soil. Pezenick acknowledged that he and Sanchez could have stood on
Glen Cove Road or on Westbury Avenue and distributed their flyers from those locations.
Sanchez testified that at first he stood on the street. While he was standing there
Waldbaum’s manager John Brown came out and took a flyer. After 2 pm, Brown came out
while Sanchez and Pezenick were standing on the sidewalk and told the two men to leave.
Sanchez protested that they were not blocking the entrance, but the manager said he would
have to call the police. Brown went back inside the store and Pezenick left the area to attend to
other matters. Sanchez testified that sometime later a police car pulled up and the officer asked
Sanchez who he was. Sanchez gave the officer his business card. The officer said he had
heard there was picketing and after Sanchez said he had not seen any picketing the officer
drove off. Sanchez stayed on the sidewalk for about ½ hour after the patrol car left. He was not

12 Waldbaum’s leases the store from the owner of the shopping mall.
13 Pezenick was a cooperative and truthful witness and I shall credit his testimony.
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evicted from this position.
Brown testified that Waldbaum’s maintains the sidewalk in front of the store by
sweeping, shoveling snow and using a power washer. Brown had seen the Union agents
handbilling and he had called the company to discuss this. The Waldbaum’s district manager
directed him to ask the Union to move on. Sometime after Brown asked Sanchez and Pezenick
to leave the sidewalk he looked out of the store and he did not see either of them. Brown did
not call the police and he did not call the landlord.
III. Discussion and Conclusions
A. The Pharmacy Benefits Proposal
The General Counsel asserts that Respondent’s proposal that Waldbaum’s pharmacies
shall be providers at equal rates and terms as other mail at retail providers under the Local 338
Benefit Fund is a permissive subject of bargaining. The General Counsel urges that
Respondent’s later modification of the proposal should not bar a finding that the company
insisted to impasse on a non-mandatory subject of bargaining in view of the length of time the
company maintained its original proposal. Further, the General Counsel asserts that the crux of
both proposals is the same: “a third party is being injected into the negotiations.”
The General Counsel urges that the benefit to unit employees of being able to fill their
prescriptions at a lower cost in the location where they work is a “tangential and indirect benefit.”
The General Counsel also points to the fact that increasing the number of prescriptions filled at
the Waldbaum’s Union pharmacies is not guaranteed to increase the working hours available to
pharmacists and thus is not guaranteed to increase job security.
As noted above, I found that Halpern was a reliable and credible witness and I found that
both Pasquaretta and Sanchez gave testimony that was not reliable. I shall credit Halpern’s
version of the events wherever it is contradicted by other testimony.
I credit Halpern that he had alerted both the Union and the Benefits Fund to the issue of
mail at retail prescriptions prior to May 22, 2008, and that Halpern presented the company’s
proposal on that day after receiving no response from the Fund. I credit Halpern that bargaining
unit pharmacists had complained to the employer that they could not fill a 90-day prescription at
the pharmacy where they worked and that this was an inconvenience. I credit Halpern that
permitting Waldbaum’s pharmacies to fill 90-day mail at retail prescriptions at the lower co-pay
amount would cause more prescriptions to be filled by company pharmacists. I credit Halpern
that a greater number of prescriptions being filled at the Union-represented pharmacies could
prevent unit employees from having their hours decreased and might increase their overtime.
I credit Halpern that he told the Union he needed a solution to the pharmacy mail at retail
situation and that it was an important part of the bargaining. I credit Halpern that he did not tell
the Union there would be no collective-bargaining agreement without agreement on his
pharmacy proposal. I credit Halpern that he continued negotiating with the Union over many
issues while also seeking discussion of the pharmacy issue. I credit Halpern that he did not
condition a collective-bargaining agreement on any particular pharmacy proposal. In fact, in the
face of the Union’s refusal to bargain on the pharmacy mail at retail issue the company modified
its original proposal on October 22, 2008. After October 22 the company met with the Union
and discussed other subjects, it requested information and after the receipt of the information it
requested further bargaining.
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There is no question that pharmacy benefits are mandatory subjects of bargaining.
Indeed, the Union’s demands in collective-bargaining specifically address the Benefit Fund
which provides the pharmacy benefits at issue herein.
I find that being able to fill a prescription at lower cost at the pharmacy where they work
would indeed be a direct and substantial benefit to the Respondent’s unit employees. There
can be no question that the ability to obtain 90 days’ worth of medication at a lower rate than if
the drugs were purchased in three 30-day installments is a significant benefit. Similarly, the
ability to fill a prescription at one’s own workplace is a significant convenience. Long Island
traffic is notoriously congested; avoiding a trip to a different pharmacy is a considerable saving
in time and effort for the typical employee who must work and maintain a family. I do not agree
with Counsel for the General Counsel that saving money, time and effort is a “tangential and
indirect benefit” to an employee. In AT & T Corp., 325 NLRB 150 (1997), the Board found that
providing employees with free check-cashing services or time during working hours to cash their
paychecks is a mandatory subject of bargaining because it provides an economic benefit to
employees arising out of their employment. The benefit is substantial and significant because it
relieves employees of the burden of “cashing paychecks on their own time at their own
expense.” In the instant case, Waldbaum’s request to bargain over the issue of permitting
employees to fill 90-day mail at retail prescriptions in the pharmacies where they work would
relieve the pharmacists of the burden of traveling on their own time and at their own expense to
another pharmacy in order to fill these lower cost prescriptions. The prescription benefit which
the employees would be exercising at lower cost is an economic benefit arising out of their
employment.
Similarly, I find that increasing the number of prescriptions filled at Respondent’s
pharmacies that employ unit members is a job security benefit. I do not find it significant that
Halpern could not guarantee that working hours for unit employees would rise: it stands to
reason that if pharmacists fill prescriptions for themselves and their families where they work
instead of at a competitor this would tend to increase available work for unit members. Further,
non-employee beneficiaries of the Fund might also begin filling prescriptions at Waldbaum’s. It
is axiomatic that labor organizations generally seek to increase the amount of work available for
bargaining unit members, and many of these efforts are made on the basis of likely outcomes
and not guaranteed outcomes. The fact that a benefit given to employees may also benefit the
employer’s business does not deprive it of its mandatory status.
The fact that beneficiaries of the Local 338 Benefit Fund who do not work for
Waldbaum’s might take advantage of a 90-day mail at retail option if it were made available at
Waldbaum’s is not relevant. These non-employee beneficiaries are now free to shop for 30-day
prescriptions at Waldbaum’s and presumably they do so already. Nor does the company’s
attempt to bargain for benefits for its own employees fail because the benefit might be used by
employees of another employer. Every Waldbaum’s payment to the Local 338 Benefit Fund is
used for the general purposes of the Fund which is a multi-employer fund: Waldbaum’s
payments to the Fund are not segregated for the sole use of Waldbaum’s employees.
It is hard to fathom Counsel for the General Counsel’s argument that the company’s
proposal relating to pharmacy benefits improperly injects a third party into the negotiations. The
purported “third party”, the Benefit Fund, is already part and parcel of the collective-bargaining
agreement and the current negotiations. The most recent collective-bargaining agreement
provided for benefits to be maintained by the Benefit Fund at stated rates of employer
contributions. The Union’s demand, quoted above, provides that the employer will contribute to
the Benefit Fund at current rates to maintain the current level of benefits. Further, the Union
proposal would reserve to the Union the right to change the various contribution rates for the
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respective funds, including the Benefit Fund, so long as total contributions did not change.
From these demands it is clear that the Union has the ability to negotiate rates and the type of
benefits available to Respondent’s employees through the Benefit Fund. The Union could not
know the rates and benefits it was negotiating without having thorough discussions about them
with the Fund. Sanchez confirmed that the Union obtains information about benefits and
contribution rates from the Fund. In fact, Sanchez testified that nothing prevents the Union from
discussing the pharmacy proposal with the Fund. Further, the president of the Union, John
Durso, is a trustee of the Benefit Fund and there is no evidence to show that Durso could not
present Waldbaum’s proposal to the other trustees.14 Of course, Waldbaum’s original proposal
or its amended proposal might not be acceptable and explanations might be furnished to
support a rejection, but that is the stuff of negotiations.
The Charging Party Union’s Brief incorporates various factual assertions about the Local
338 Benefits Fund and the status of Duane Reade. The Charging Party did not call any witness
with direct knowledge of the Fund, its business or its operations or the details of Duane Reade’s
relations with the Benefit Fund; the assertions in the Brief are therefore without any factual
support in the record and I shall disregard them. I note that the Charging Party’s Brief quotes
Halpern out of context so that he seems to admit that the only purpose of the pharmacy
proposal is to increase the company’s business. In fact, Halpern’s testimony on the transcript
page cited by the Brief shows that he considered the proposal “a win/win for both sides; this
drove business through the pharmacies and also was a benefit improvement and the union
agreed.” The Union’s Brief makes certain assertions about benefits purportedly available to all
members of the public through A & P. There is no testimony on the record to support this
assertion because the Union did not call a witness with direct knowledge of the benefits. The
Union’s Brief offers citations to various websites and to various press releases, presumably
because the record herein lacks the facts that the Union wishes to rely on at this stage in the
litigation. Although Counsel for the Union was present throughout the instant hearing, the Union
did not seek to authenticate and introduce this evidence at the hearing, there is no showing that
it was not available and no motion, on notice to all parties, has been made to admit additional
evidence. I shall disregard all the references to purported facts, websites, news releases,
petitions and documents not placed into evidence at the hearing. Finally, I find that the Union’s
reliance on Mental Health Services, 300 NLRB 926 (1990), is misplaced. That case concerned
an employer’s attempt to curtail the political activities of employees and the Union vis-à-vis
governmental entities which were the primary source of the employer’s funding.
B. The Pension Fund Proposal
Counsel for the General Counsel’s Brief asserts that Respondent conditioned bargaining
over wages upon the parties reaching agreement on the company’s pension proposal. The
General Counsel maintains that Halpern repeatedly told the Union that the parties could not
discuss wages until they came to an agreement on the company’s pension proposal. This
refusal to discuss wages allegedly occurred from October 22, 2008 until March 9, 2009 when
Halpern wrote to Pasquaretta offering dates for negotiations.15

14 There is nothing in the record to show why the Union is unwilling to talk to the trustees
about a situation that favors another pharmacy over Waldbaum’s.
15 At trial the General Counsel amended the Complaint to allege that “Since October 22,
2008 until March 9, 2009, Respondent has refused to bargain over wages and other mandatory
subjects of bargaining and has conditioned further bargaining over all subjects upon the parties
reaching agreement on the subject of pension benefits.”
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I find, based on Halpern’s testimony, that beginning on April 2, 2008 and continuing on
April 4, April 8, April 29, and April 30 2008 he made various proposals relating to the company’s
desire to put a ceiling on its pension withdrawal liabilities. Halpern tried to engage the Union in
further pension discussions on May 5, 21 and 23 with no success. I find that Halpern explained
the reasons for the company’s concern and that his proposals dealt with maintaining benefits for
employees as well as providing alternatives to the Local 338 Pension Fund should the Fund run
into difficulties. I find that the Union made no counter proposals to any of the Waldbaum’s
pension proposals. Pasquaretta and DiMartino rejected the various Waldbaum’s proposals
saying that the Union “was not interested” and “we’re not going any further with this.” Sanchez
testified that the Union would not discuss pension modifications in the negotiations.
I credit Halpern that on the morning of September 12 the Union gave the company a set
of proposals including a demand for a 9% wage increase. That afternoon the company
responded with its proposals including a new wage offer. As set forth in detail above, Sanchez
admitted that on September 12 Waldbaum’s gave the Union a wage proposal that improved on
its previous offer.
I credit Halpern that on October 22 he made yet another pension proposal on behalf of
Waldbaum’s and that the Union rejected this new formulation. When the mediator and the
Union asked to discuss wages, Halpern replied that the company had responded to the Union’s
last wage demand and that if the Union made a new wage proposal he would respond to it. I
credit Halpern that he said if there was no new Union wage proposal he wanted to focus on the
pension issue.
I do not credit Pasquaretta that Halpern said in October or December that there had to
be an agreement on pension before he would move forward on wages. I credit Halpern that on
January 13, 2009 he informed the Union that the company had already replied to its current
wage demand. On this occasion, Halpern said that the parties still had to discuss wages, terms
and conditions and pension. Thereafter, Halpern requested information concerning the finances
of the Local 338 Pension Fund and, upon receipt of the information, Halpern sent a letter dated
March 9, 2009 proposing dates for continued negotiations.
I credit Halpern that although the next collective bargaining contract had to contain some
resolution of the pension issue the company could resolve the wage issue before it obtained an
agreement on pensions.
In summary, I find that the Union has never responded to the company’s last wage offer
made in the afternoon of September 12, 2008 and that it has consistently refused to consider
Waldbaum’s various amended pension proposals. I find that Halpern has always made it clear
to the Union that he had responded to its last wage demand and that he would respond to any
new wage demand it presented. In the absence of such a new proposal Halpern wanted to
discuss the pension issue.
Counsel for the General Counsel relies on Patrick & Co., 248 NLRB 390, 391-2 (1980).
In that case the employer and union held their first bargaining session in a meeting that lasted
15 minutes. The employer asked a question about the union’s wage proposal which the union
agent proceeded to explain. The employer then stated it was “absolutely firm” in refusing to pay
the wages requested by the union. The union said its request was “serious.” The union asked
to go through its demands to narrow the issues. The employer refused to discuss any other
subjects and stated that “until we settle” on the employer’s wage offer “there is no use of us
talking.” Thereupon, the employer walked out of the negotiations. The Board found that
“Respondent refused to bargain with the Union for a new collective-bargaining agreement by
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insisting that the Union accede to its position on wages before there could be any negotiation on
other issues.”
The facts in the instant case are in stark contrast to those in Patrick & Co. Waldbaum’s
has made many wage offers, has reached agreement on aspects of a wage increase and has
stated its willingness to discuss any new wage demand the Union might present in response to
the company’s last wage offer. Further, other subjects of bargaining have been discussed
throughout the negotiations. Waldbaum’s did not insist that no other discussions could take
place until the Union agreed to its pension proposal. Indeed, the company has modified its
pension proposal many times and has made it clear that it needs some relief and is willing to
discuss possible solutions to its pension liability dilemma. If the Union had come back with a
new wage proposal Waldbaum’s was prepared to discuss that while maintaining its position that
the final contract had to contain some agreement on a company pension proposal.
In Day Automotive Group, 348 NLRB 1257, 1263 (2006), cited in the Charging Party’s
Brief, the Board found that the employer violated the Act by adamantly insisting upon the
union’s acceptance of its healthcare proposal. The company’s chief negotiator conceded that
from the first his position was that the union had to accept the healthcare plan that had already
been implemented for the nonunit employees and take the same benefits and pay the same
premium. The company adamantly refused to consider the union’s alternative healthcare
proposals. The company’s negotiator told the union that he would not discuss economics until
the union agreed to the healthcare proposal. Manifestly, the facts in Day Automotive are not
apposite to the facts in the instant case. Halpern discussed wages with Local 338, agreed to
some aspects of a wage increase and was ready to discuss any new wage offer the Union
might make. Further, Halpern repeatedly modified the company’s pension proposals in an effort
to induce the Union to enter into a discussion of the Pension Fund issue.
C. Information Request
The facts relating to the Union’s October 21, 2008 information request are not in dispute.
The Waldbaum’s per diem pharmacists fill in for unit employees if no Union pharmacist is willing
to work the available hours. The per diem pharmacists work at the same locations as the Union
pharmacists and have been trained by Union pharmacists. As to non-Union pharmacists, the
record establishes that there has been at least one occasion where a non-Union pharmacist
worked in a bargaining unit store.
The October 21 Union information request seeks “wage information” pertaining to non-
union and per diem pharmacists and “information concerning benefits” received by non-union
and per diem pharmacists. Halpern admitted that he did not provide the information because he
did not deem it relevant. However, on February 25, 2009 he provided a list of stores where per
diem pharmacists were employed along with their current hourly pay and their benefit, which
consists of a 10% employee discount on purchases at Waldbaum’s.
It is axiomatic that an employer has an obligation to furnish to a union, on request,
information that is relevant and necessary to its role as the exclusive bargaining representative
of unit employees. Detroit Edison co. v. NLRB, 440 U.S. 301, 303 (1979); NLRB v. Acme
Industrial Co., 385 U.S. 432, 435-436 (1967). When a union seeks information concerning
matters outside the bargaining unit the union is required to make a showing of relevancy and
necessity. The burden of establishing relevancy and necessity is not heavy and requires only
that there is a probability that the desired information is relevant, and that it would be of use to
the union in carrying out its statutory duties and responsibilities.
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The per diem pharmacists work in the same locations as Union pharmacists, they may
work side by side with unit members and their use is regulated by the collective-bargaining
agreement. It requires no extended discussion to find that information concerning their wages
and benefits would be useful, relevant and necessary to the Union in preparing its wage
demands for contract negotiations. Indeed, Respondent’s Brief does not contest this issue. I
find that Respondent unlawfully delayed providing information about the wages and benefits of
per diem employees from October 21, 2008 to February 25, 2009. Woodland Clinic, 331 NLRB
735, 736-7 (2000).
As noted above, Sanchez testified that the information sent to the Union was not fully
responsive because he did not know where the information came from and when the per diem
employees began to receive the rates of pay. Further, he “did not believe” Halpern’s response
about the benefits. The Union’s request for information, quoted in full above, did not ask the
company to specify the source of the information nor did it request the dates when per diem
employees began to receive the current rates of pay. I note that the Union’s request did not
specify or request the underlying business records or documents. If the Union wanted this
information it should have asked for it. If the Union was not satisfied with the information it
received on February 25 then it could have submitted another more detailed request for
information. As to Sanchez’ gratuitous statement that he does not believe Halpern about the
benefits, there is no basis in the record for his belief.
The non-Union pharmacists work in other Waldbaum’s stores on Long Island. As
pharmacists they fill prescriptions as do the members of the bargaining unit. On at least one
occasion, a non-Union pharmacist was assigned to work in a store whose pharmacists are
represented by the Union. I find that information about the wages and benefits received by non-
Union pharmacists is relevant and useful and would allow the Union to bargain intelligently.
This information would allow the Union to frame its bargaining demands with due regard to the
company’s employees with the same job title who are working in the same geographical area.
The failure to provide such information was a violation of the Act. Frito-Lay, Inc., 333 NLRB
1296 (2001).
Bohemia, Inc., 272 NLRB 1128, 1129 (1984), cited by Respondent, is not controlling
herein as it concerns information requested for possible grievances and the Board specifically
stated that “there is no evidence that the Union raised the subject matter of the information
request during negotiations for a new contract.”
D. Handbilling
The General Counsel argues that Waldbaum’s did not have a property right that entitled
it to exclude individuals from the respective properties when it directed Union representatives
handing out flyers at the Jericho and Carle Place stores to leave the sidewalks in front of those
stores.
The Board discussed the applicable law in Wild Oats Community Markets, 336 NLRB
179, 180 (2001):
It is well established than an employer may properly prohibit solicitation/distribution by
nonemployee union representatives on its property if reasonable efforts by the union
through other available channels of communication will enable it to convey its message,
and if the employer’s prohibition does not discriminate against the union by permitting
others to solicit/distribute. See Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992); NLRB v.
Babcock & Wilcox Co., 351 U.S. 351 U.S. 105 (1956). This precedent, however,
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presupposes that the employer at issue possesses a property interest entitling it to
exclude other individuals from that property. Therefore, in situations involving a
purported conflict between the exercise of rights guaranteed by Section 7 of the Act and
private property rights, an employer charged with a denial of union access to its property
must meet a threshold burden of establishing that it had, at the time it expelled the union
representatives, a property interest that entitled it to exclude individuals from the
property. It if fails to do so, there is no actual conflict between private property rights and
Section 7 rights, and the employer’s actions therefore will be found violative of Section
8(a)(1) of the Act. See Indio Grocery Outlet, 323 NLRB 1138, 1141-1142 (1997), enfd.
187 F.3d 1080 (9th Cir. 1999), cert. denied 529 U.S. 1098 (2000); Food For Less, 318
NLRB 646, 649-650 (1995), enfd. in relevant part 95 F.3d 733 (8th Cir. 1996); Bristol
Farms, 311 NLRB 437, 438-439 (1993). In determining the character of an employer’s
property interest, the Board examines relevant record evidence – including the language
of a lease or other pertinent agreement – in conjunction with the law of the state in which
the property is located. See Food For Less, supra, at 649.
In Bristol Farms, Inc., supra at 311 NLRB 438, the Board explained:
[A]n employer need not be accorded any greater property interest than it actually
possesses. Thus, the analysis that applies when section 7 rights and property rights
conflict is not appropriately invoked as to an employer that possesses only a property
right that, under the law that creates and defines the employer’s property rights, would
not allow the employer to exclude the individual.
New York State courts have held that there is no First Amendment right to distribute
handbills or to demonstrate on private property. Latrieste Restaurant & Cabaret, Inc., 622
Ny.Y.S.2d 765 (1995).
1. The Jericho Store
I find, based on the testimony of manager Romanelli, that when he directed Union
agents Sanchez and Reis to leave the sidewalk where they were handing out flyers the two men
were standing in front of the Dunkin Donuts store. I credit Sanchez that he and Reis were
standing in front of Dunkin Donuts store when Romanelli told them that if they did not leave he
would call the police.
The lease for the Jericho store differentiates between the “demised premises” and the
common area of the strip mall on which the Jericho Waldbaum’s store is located. The lease
provides as follows:
2. DEMISED PREMISES AND COMMON AREA.
Landlord hereby leases to Tenant and Tenant hereby takes from Landlord the premises
outlined in red on Exhibit A and the improvements on or to be built on said premises
(said premises and the improvements on or to be built thereon being hereinafter
collectively called Demised Premises)…. Landlord hereby grants to Tenant the right to
use, in common with other tenants of the shopping Center, the portions of the shopping
Center intended to be for common use, including but not limited to parking areas, roads,
streets, drives, tunnels, passageways, landscaped areas, open and enclosed malls,
exterior ramps, walks and arcades (hereinafter collectively called Common Area).
Exhibit A attached to the lease is a diagram of the strip mall shopping center including a
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plan of the “demised premises.” The demised premises are indicated by crosshatching on the
plan. Only the space occupied by the Waldbaum’s store is crosshatched; to the right and left
the areas that are not crosshatched show the space occupied by Dunkin Donuts, the bank, the
liquor store, the restaurant and the nail salon. A continuous sidewalk is shown in front of all of
these stores. Significantly, only the part of the sidewalk in front of the Waldbaum’s door is
crosshatched. Three arrows point to this portion of the sidewalk and it is labeled “Tenant’s
Sidewalk”. It is clear that the lease identifies only the sidewalk directly in front of the
Waldbaum’s entrance as belonging to Waldbaum’s. The sidewalk area to the right in front of
Dunkin Donuts is not part of the demised premises as defined by the lease.
Thus, the lease establishes that Waldbaum’s has a tenancy in its store and the sidewalk
in front of the store, but only has a “right to use” the common areas including the sidewalk on
either side of the store.
The lease requires Waldbaum’s to maintain the common area in good repair and to keep
it clean and remove snow. However, Waldbaum’s use of the common area is restricted. It may
not impose charges for use of the common area, it may not erect signs or loudspeakers and it
may not sell or display merchandise in the common area.
I find that Waldbaum’s has not met its threshold burden of establishing that it had a
property interest that entitled it to exclude individuals from the sidewalk in front of Dunkin
Donuts. That area is defined by the lease as a common area where Waldbaum’s had no
greater rights than the public. The fact that Waldbaum’s had a duty to clear dirt and snow from
the sidewalk did not give it a right to exclude others in opposition to the clear language of the
lease. The fact that the landlord of the property erroneously informed Waldbaum’s that the
store “owned” the property and had a right to eject the Union agents is immaterial in the face of
the clear provisions of the lease.
I find that Waldbaum’s violated Section 8(a)(1) of the Act when it directed Union
handbillers to leave the sidewalk in front of Dunkin Donuts next to the Jericho store and when it
threatened Union handbillers that it would call the police if they did not leave.
2. The Carle Place Store
I credit Pezenick and Sanchez that they were handing out flyers on the sidewalk in front
of the Carle Place Waldbaum’s store when manager Brown told them to leave and said he
would call the police. I credit Brown that he did not call the police to evict the Union agents.
The lease for the Carle Place store introduced into evidence at the hearing does not
contain a diagram of the leased premises. The lease contains references to “Exhibit A” and that
may have been a diagram, but this Exhibit A was not introduced in the instant hearing. The
document in evidence consists of a 1987 Indenture of Lease together with a 1993 First
Amendment and a 1995 Memorandum of Lease.
Section 1 of the Indenture of Lease identifies the “Demised Premises” as a building to be
erected as shown on Exhibit “A”. Section 15 B (ii) of the lease requires Waldbaum’s to maintain
and repair the Demised Premises. The lease speaks of “sidewalks adjoining the Demised
Premises” but it is not clear that they are considered a part of the Demised Premises. Section
19 G of the lease requires the tenant to keep “the sidewalks adjoining the Premises” clean and
to remove garbage and snow. Section 19 H gives the tenant “the right to use the sidewalk
adjoining the building on the Premises as shown on Exhibit “A” as a cart corral and to install and
maintain the cart corral at Tenant’s sole cost and expense; provided, however, the Tenant
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covenants to use its best efforts to keep the parking and Common Areas of the shopping Center
reasonably free from Tenant’s shopping carts.” Section 21 II, (b) provides that except with
respect to the cart corral the tenant may not “use, or permit to be used the sidewalk adjacent to
… the Premises for display, sale or any other similar undertaking….”
The lease refers to the sidewalks around the Waldbaum’s store as adjoining the
Demised Premises but they are not affirmatively described as being part of the Demised
Premises. Further, the tenant’s use of the sidewalks adjoining the premises is limited to use for
a cart corral and other use is prohibited. It would seem that Waldbaum’s does not have a
possessory interest in the sidewalks adjoining its store.
I find that Respondent has not met its threshold burden of showing that it has a property
interest that entitled it to exclude individuals from the sidewalk adjoining its store. Thus,
Respondent violated Section 8(a)(1) of the Act when it directed Union handbillers to leave and
said that it would call the police. There is no proof that Respondent actually telephoned the
police.
Conclusions of Law
1. Local 338, Retail Wholesale Department Store Union, United Food & Commercial
Workers, is the exclusive collective-bargaining representative of Respondent’s employees in the
following appropriate unit:
All full-time and regular part-time Supervising Pharmacists, Staff Pharmacists, Graduate
Pharmacists, and Pharmacist Interns employed at Waldbaum’s stores in New York City
and the State of New York, excluding guards and supervisors as defined in the Act.
2. By its delay in providing to the Union relevant and useful information concerning per
diem pharmacists and by its refusal to provide relevant and useful information concerning non-
Union pharmacists, Respondent violated Section 8(a)(5) and (1) of the Act.
3. By directing Union handbillers to leave the sidewalks adjoining its stores in Jericho,
New York, and Carle Place, New York, and threatening to call the police if they did not leave,
Respondent violated section 8(a)(1) of the Act.
4. The General Counsel has not shown that the Respondent engaged in any other
violations of the Act.
Remedy
Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended16

16 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.
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ORDER
The Respondent, Great Atlantic & Pacific Tea Co., d/b/a Waldbaum’s, Carle Place, New
York and Jericho, New York, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Delaying in providing to the Union relevant and useful information concerning per
diem pharmacists and refusing to provide relevant and useful information concerning non-Union
pharmacists.
(b) Directing Union handbillers to leave the sidewalks adjoining its stores in Jericho,
New York, and Carle Place, New York, and threatening to call the police if they did not leave.
(c) In any like or related manner interfering with, restraining, or coercing employees in
the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act
(a) Provide to the Union the information it requested concerning wages and benefits of
non-Union pharmacists employed by Respondent.
(b) Within 14 days after service by the Region, post at its [facility] [union office] [hiring
hall] in [city, State], copies of the attached notice marked “Appendix.”17 Copies of the notice, on
forms provided by the Regional Director for Region [number], after being signed by the
Respondent’s authorized representative, shall be posted by the Respondent and maintained for
60 consecutive days in conspicuous places including all places where notices to [employees]
[members] [employees and members] are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these proceedings, the Respondent has gone
out of business or closed the facility involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the notice to all current employees and former
employees employed by the Respondent at any time since [date of first unfair labor practice].
(c) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that
the Respondent has taken to comply.

17 If this Order is enforced by a judgment of a United States court of appeals, the words in
the notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
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IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges
violations of the Act not specifically found.
Dated, Washington, D.C., May 27, 2009.
____________________
Eleanor MacDonald
Administrative Law Judge
JD(NY)-19-09
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this Notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT delay in providing to Local 338, retail wholesale Department Store Union, United
Food & Commercial Workers, information concerning per diem pharmacists and WE WILL NOT
refuse to provide information concerning non-Union pharmacists.
WE WILL NOT direct Union handbillers to leave the sidewalks adjoining our stores in Jericho,
New York and Carle Place, New York, and threaten to call the police.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Section 7 of the Act.
WE WILL furnish to the Union the information it requested concerning the wages and benefits of
non-Union pharmacists.
Great Atlantic & Pacific Tea Co., d/b/a Waldbaum’s
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
Two MetroTech Center (North), Jay Street and Myrtle Avenue, 5th Floor
Brooklyn, New York 11201-4201
Hours: 9 a.m. to 5:30 p.m.
718-330-7713.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 718-330-2862.