Bashas' Food City

National Labor Relations Board - Board Decisions

Apr 30, 2008

352 N.L.R.B. 391 (N.L.R.B. 2008)

BASHAS’
352 NLRB No. 56
391
Bashas’ Inc., d/b/a Bashas’, Food City, and AJ’s Fine
Foods and United Food and Commercial Work-
ers Union Local 99. Cases 28–CA–21048, 28–
CA–21220, and 28–CA–21319
April 30, 2008
DECISION AND ORDER
BY CHAIRMAN SCHAUMBER AND MEMBER LIEBMAN
On October 10, 2007, Administrative Law Judge Wil-
liam G. Kocol issued the attached decision. The General
Counsel filed exceptions and a supporting brief, which
the Charging Party joined. The Respondent filed an an-
swering brief, and the Charging Party filed a reply brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings,1 and conclusions2 as modified and to adopt the rec-
ommended Order as modified.3
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Bashas’
Inc., d/b/a Bashas’, Food City, and AJ’s Fine Foods,
Chandler, Arizona, its officers, agents, successors, and
assigns, shall take the action set forth in the Order as
modified.

1 The Respondent does not except to the judge’s findings that it vio-
lated Sec. 8(a)(5) and (1) of the Act by withdrawing recognition from
the Union, by unilaterally introducing the U-Scan self-service registers,
and by failing to bargain with the Union about the effects of closing
stores 125 and 68.
2 In agreeing with the judge that Sec. 10(b) barred the complaint al-
legation that the Respondent violated Sec. 8(a)(5) by unilaterally in-
creasing employee health care premiums, we find it unnecessary to pass
on whether, under Redd-I, 290 NLRB 1115 (1988), the legal theories
underlying the timely allegation concerning unlawful withdrawal of
recognition and the untimely allegation concerning unilateral changes
in the health benefits program were closely related. Instead, we agree
with the judge that the requisite factual relationship between the unilat-
eral change and the withdrawal-of-recognition allegations is lacking,
and that the defenses to the allegations are unrelated.
We also find it unnecessary to pass on the judge’s finding that the
Respondent did not violate Sec. 8(a)(5) and (1) by directly dealing with
employees over transfers. Under the particular circumstances of this
case, a finding of direct dealing would not materially alter the remedy,
as the Respondent is required to bargain over the effects of its decision
to close stores 125 and 68, which will require the Respondent to bar-
gain with the Union about the employee transfers.
3 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Chairman Schaumber and Member Liebman constitute a quorum of the
three-member group. As a quorum, they have the authority to issue
decisions and orders in unfair labor practice and representation cases.
See Sec. 3(b) of the Act.
1. Substitute the following for paragraph 2(a).
“(a) Recognize, and on request, bargain with the Union
as the exclusive representative of the employees in the
following appropriate units concerning terms and condi-
tions of employment and, if an understanding is reached,
embody the understanding in a signed agreement:
“Single-facility units of all employees employed at the
seven former ASI stores, but excluding all meat de-
partment employees and all guards and supervisors as
defined in the Act.
“Single-facility units of all meat department employees
employed at the seven former ASI stores, but excluding
all other employees and all guards and supervisors as
defined in the Act.
“All meat department employees employed at Bashas’
Store 125, located at 13005 N. Oracle Road, Oro Val-
ley, Arizona 85739 and all meat department employees
employed at Food City Store 124 located at 2800 West
16th Street, Yuma, Arizona 85364, excluding all other
employees, guards and supervisors as defined in the
Act.
“All other employees employed at Bashas’ Store 125,
located at 13005 N. Oracle Road, Oro Valley, Arizona,
85739 and all other employees employed at Food City
Store 124 located at 2800 West 16th Street, Yuma, Ari-
zona, 85364, excluding all meat department employees,
guards and supervisors as defined in the Act.”
2. Substitute the following for paragraph 2(e).
“(e) Within 14 days after service by the Region, post at
its facilities involved in this proceeding, copies of the
attached notice marked “Appendix.”12 Copies of the
notice, on forms provided by the Regional Director for
Region 28, after being signed by the Respondent’s au-
thorized representative, shall be posted by the Respon-
dent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to
employees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the no-
tices 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 facilities 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 June 1, 2006.”
3. Substitute the attached notice for that of the admin-
istrative law judge.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD392
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 vio-
lated 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 bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT withdraw recognition from United Food
and Commercial Workers Union Local 99 as the collec-
tive-bargaining representative of the unit employees.
WE WILL NOT fail to give the Union notice and an op-
portunity to bargain concerning the effects of closing
stores on unit employees.
WE WILL NOT unilaterally introduce U-scan units with-
out first giving the Union notice and an opportunity to
bargain about the introduction and its effects on unit em-
ployees.
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 RECOGNIZE, and on request, bargain with the
Union and put in writing and sign any agreement reached
on terms and conditions of employment for our employ-
ees in the bargaining unit:
Single-facility units of all employees employed at the
seven former ASI stores, but excluding all meat de-
partment employees and all guards and supervisors as
defined in the Act.
Single-facility units of all meat department employees
employed at the seven former ASI stores, but excluding
all other employees and all guards and supervisors as
defined in the Act.
All meat department employees employed at Bashas’
Store 125, located at 13005 N. Oracle Road, Oro Val-
ley, Arizona 85739 and all meat department employees
employed at Food City Store 124 located at 2800 West
16th Street, Yuma, Arizona 85364, excluding all other
employees, guards and supervisors as defined in the
Act.
All other employees employed at Bashas’ Store 125,
located at 13005 N. Oracle Road, Oro Valley, Arizona
85739 and all other employees located at Food City
Store 124 located at 2800 West 16th Street, Yuma, Ari-
zona 85364, excluding all meat department employees,
guards and supervisors as defined in the Act.
WE WILL give the Union notice and an opportunity to
bargain concerning the effects on unit employees of clos-
ing our stores.
WE WILL bargain with the Union concerning the effects
of closing stores 125 and 68 and pay the employees
transferred as a result of the closings the amounts of
money with interest according to the standard set forth in
the remedy section of the decision.
WE WILL, on request of the Union, remove the U-scan
unit and restore the status quo that existed prior to the
installation and give the Union notice and opportunity to
bargain about the matter before doing so again.
BASHAS’ INC., D/B/A BASHAS’, FOOD CITY, AND
AJ’S FINE FOODS
Sandra L. Lyons, Esq., for the General Counsel.
Steven D. Wheeless, Esq. and Alan M. Bayless Feldman, Esq.
(Steptoe & Johnson, LLP), of Phoenix, Arizona, for the Re-
spondent.
Michael C. Hughes, Esq. (Davis, Cowell, & Bowe, LLP), of San
Francisco, California, for the Union.
DECISION
STATEMENT OF THE CASE
WILLIAM G. KOCOL, Administrative Law Judge. This case
was tried in Phoenix, Arizona, on July 24–26, 2007. The origi-
nal charge was filed October 24, 2006,1 and the order consoli-
dating cases, second consolidated complaint and notice of hear-
ing (the complaint) was issued June 29, 2007. The complaint
alleges that Bashas’, Inc., d/b/a Bashas’, Food City, and AJ’s
Fine Foods (Bashas’) violated Section 8(a)(5) and (1) of the
Act by: failing to bargain with United Food and Commercial
Workers Union Local 99 (the Union) about proposed changes
in the health benefits program for unit employees and then
unilaterally implementing changes to that program, withdraw-
ing recognition of the Union as the bargaining representative of
the unit employees, closing two of its facilities and transferring
unit employees to other facilities, removing two existing unit
employee-operated checkout stations and installing self-service
checkout stations, and bypassing the Union and dealing directly
with unit employees by offering and granting them transfers to
other facilities.
Bashas’ filed a timely answer that admits the allegations of
the complaint concerning the filing and services of the charges,
jurisdiction, that it is a successor to Arizona Supermarkets, Inc.
(ASI), and ABCO Food Group, Inc. (ABCO) at certain facili-

1 All dates are in 2006, unless otherwise indicated.
BASHAS’ 393
ties, the Union’s labor organization status, and supervisory
status. Bashas’ primarily defends its conduct in this case by
asserting that the Union had acquiesced in its pattern of treating
its union and nonunion stores alike, citing Courier-Journal I
and II, 342 NLRB 1093 (2004), and Courier Journal 342
NLRB 1148 (2004).
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel, Bashas’,2 and the Union, I make the
following
FINDINGS OF FACT
I. JURISDICTION
Bashas’, a corporation, is engaged in the retail sale of grocer-
ies, meat, and related products. Bashas’ has an office and place
of business in Chandler, Arizona, and stores in Arizona where
it annually derives gross revenues in excess of $500,000 and
purchases and receives goods valued in excess of $50,000 di-
rectly from points outside the State of Arizona. Bashas’ 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 the
Union is a labor organization within the meaning of Section
2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
Except as noted below, the material facts in this case are un-
disputed. Bashas’ operates 160 grocery stores in and near the
State of Arizona. It operates these stores under several differ-
ent names. “AJ’s Fine Foods” are gourmet, fine foods stores,
“Bashas’” are conventional supermarkets, and “Food City”
focuses on the Hispanic niche market. In about 1993, Bashas’
purchased ASI, including what were to become stores 63, 64,
65, 66, 67, 68, and 69, all located in Arizona. At the time of the
purchase the Union represented separate units of nonmeat de-
partment employees at each of the stores (the clerks units.)3
The last contract between ASI and the Union covering the
clerks units expired September 18, 1994. At all times since the
purchase, the Union has been the exclusive collective-
bargaining representative of the employees in the clerks units.
At the time of the purchase, the Union also represented separate
units of meat department employees at each of the stores (the
meat department units.)4 The last contract covering the meat
department employees also expired September 18, 1994. Like
the clerks unit, since the purchase, the Union has been the col-
lective-bargaining representative of the employees in the meat
department units. Bashas’ set the initial terms and conditions
of employment for the employees in the former ASI units by
extending Bashas’ existing wages, benefits, and policies to
those units.

2 Certain errors in the transcript are noted and corrected.
3 The parties agree that single-facility units of all employees but ex-
cluding all meat department employees and all guards and supervisors
as defined in the Act are appropriate.
4 The parties agree that single-facility units of all meat department
employees but excluding all other employees and all guards and super-
visors as defined in the Act are appropriate.
Michael Proulx is Bashas’ president and chief operating offi-
cer. Pedro Tadeo served on the Union’s board of directors;
Tadeo also worked as a meat cutter for Bashas’ at store 69; he
then transferred to a nonunion store where he continued to
work as a meat cutter until his retirement. He kept the Union
informed of events occurring at Bashas’.
Bashas’ recognized the Union as the collective-bargaining
representative for the employees in the former clerks and meat
department units. On September 10, 1993, the Union informed
the unit employees of the status of its bargaining with Bashas’
over their existing terms and conditions of employment and
commented that it was still their bargaining representative.
Bargaining then followed beginning in 1993 for collective-
bargaining agreements. However, no contract was ever reached
and the parties stopped bargaining in 2002. No bargaining
sessions have been held since then. During the bargaining pe-
riod, the Union and Bashas’ met a number of times in face-to-
face meetings, exchanged bargaining proposals and counter-
proposals, and provided each other with information. The chief
obstacles to reaching a contract were health insurance, pension,
and job classifications; the Union wanted the employees to be
covered by the plans and job classifications it had negotiated
with other employers in the industry while Bashas’ wanted the
employees to remain covered by its plans and job classifica-
tions. However, the Union and Bashas’ never presented each
other with a final offer and no one contends that bargaining was
at an impasse. As Paul Rubin, the Union’s secretary-treasurer
and executive assistant to the president explained, negotiations
took a break and the Union continued to monitor the wage in-
creases and changes that Bashas’ made to its health insurance
and pension plans to assure that they matched what the Union
was achieving in its contracts with other unionized employers
in the area.
Of course, the employees’ working conditions changed dur-
ing the years of bargaining. On February 9, 1995, Bashas’
informed the Union that:
As we had earlier discussed and agreed, this is to confirm
[that Bashas’] has placed into effect the eligibility of part-
timers for medical, dental and vision benefits as proposed in
its March 31, 1994 proposal to the union effective retroac-
tively to March 31, 1994.
On December 16, 1996, Bashas’ informed the Union by let-
ter that it had increased the wage rates of employees consistent
with the increase in minimum wage rate. It also advised the
Union that it proposed to increase the minimum additional pro-
gression rates for the courtesy clerk employees as a conse-
quence of the minimum wage rate increase for those employ-
ees. The letter continued:
Our proposals regarding wage changes in the old ASI stores
has been on the table since last February and the time is now
rolling around for the proposed increase, which [Bashas’] tra-
ditionally puts into effect shortly after the first of the year. It
just occurred to me that I should not just assume that your ear-
lier comments about putting these proposals into effect sub-
ject to whatever is finally agreed upon in negotiations applies
to this year also. If my assumption that your earlier remarks
included the proposed increases for January, please let me
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD394
know so that [Bashas’] will not get into a disagreement with
the Union over this issue.
By letter dated January 21, 1998, Bashas’ informed the Un-
ion:
To follow through on [Bashas’] past practice of several years,
here are the wage increases they propose and recently put into
effect for employees in the seven former ASI stores. It is also
[Bashas’] intent to make similar proposals based on the same
amounts and percentages for 1999 and the year 2000. A
breakdown for 1999 and 2000 will come under separate
cover.
. . . .
In looking over the letter of agreement with some of the in-
dustry stores, it was not clear to me whether it was contem-
plated that pension contributions would be made for courtesy
clerks or not. It also was not clear to me whether other indus-
try proposals varied the terms of the so-called common agree-
ments. Can you enlighten us on this? Also, what is the effec-
tive date of the $35 pension benefit for past service? Is it
January 1, 1998 for everyone? Can the $50 per year of ser-
vice pension benefit apply to 1997 if the individual had ten
years of service before January 1, 1997? Please clarify this
for me.
The reference to the agreement with some of the “industry
stores” was to the collective-bargaining agreements reached
between the Union and the major unionized retail stores in
Arizona. In fact, Bashas’ typically paid 5 cents more per hour
at the journeyman rate than those collective-bargaining agree-
ments called for. On December 29, 1999, Bashas’ informed the
Union:
This is the time of year Bashas’ usually puts into effect wage
increases, which generally track previously negotiated wage
improvements in the industry. In the past it has been jointly
agreed with the [Union] that Bashas’ can also implement
those wages and benefit improvements in the ASI Stores. . . .
I do not yet have in my hands the proposed improvements but
will forward them to you when I get them. On the assumption
that the [Union] is still willing to go along with the practice of
implementing these improvements in the ASI Stores, unless
we hear to the contrary from you we will go ahead on January
2, 2000 and implement the same improvements in the bar-
gaining unit. . . .
. . . .
Incidentally, [Bashas’] would also appreciate your sending
them an up-dated copy of the benefit booklets and the various
eligibility criteria currently in effect in the Desert State Re-
tirement Program and Plans. If the booklets have not been
updated, please supplement them with a written explanation
of changes currently in effect or about to go in effect during
the current industry agreement.
In about 2001, while contract bargaining was still occurring,
Bashas’ purchased ABCO, including what were to become
stores 124 and 125, both located in Arizona. At the time of the
purchase, the Union represented separate units of nonmeat de-
partment employees at each of the stores. The most recent
collective-bargaining agreement between ABCO and the Union
covering these employees expired October 29, 2000. At the
time of the purchase, the Union also represented separate units
of meat department employees at each of the stores. The most
recent collective-bargaining agreement between ABCO and the
Union covering these employees also expired October 29,
2000. On September 7, 2000, Bashas’ and the Union signed a
recognition agreement whereby Bashas’ recognized the Union
as the bargaining agent for the former ABCO units. At all
times since the purchase of the ABCO stores by Bashas’, the
Union has been the collective-bargaining representative of the
employees in the meat department and clerks units. The parties
agreed that the negotiation for the ABCO stores would become
part of the ongoing negotiations for the former ASI stores.
On June 13, 2001, the Union provided Bashas’ with informa-
tion on certain provisions of the Union’s most recent collective-
bargaining agreement with the unionized food industry em-
ployers in Arizona. On January 8, 2002, Bashas’ informed the
Union that it was granting wage increases to the former ASI
unit employees consistent with the practice described above;
the letter also advised that Bashas’ would be granting those
wage increases to the former ABCO unit employees as well.5
On April 10, 2002, the Union requested information for unit
employees, including wage rates, dates of hire, pension and
health and welfare information. The Union renewed that re-
quest on May 3 and on May 8, 2002, Bashas’ gave the Union
the requested information.
The wage increases and other benefit changes described in
the preceding paragraphs were made companywide and not just
for the unit employees in the nine stores the Union represented.
Bashas’ also made other changes, including to its pension plan
and disability and insurance plan. Changes in health benefits
are described below. These changes too were made company-
wide; the nine union-represented stores did not receive unique
wages and benefits or operate under different policies. Em-
ployees were notified of these changes as they occurred.
Other changes were made as well. For example, Bashas’
implemented a new system that reduced the hours worked by
bookkeepers. It added a natural choice line of products that
resulted in the creation of a new position—a natural choice
clerk. It expanded the deli department by adding a chef entrée
program; this resulted in the new position of certified chefs.
Store 69 was originally operated as a Bashas’ type supermarket.
However, when Bashas’ opened another store nearby it con-
verted store 69 into a Food City supermarket. About half the
work force from store 69 transferred to the newly opened Ba-
shas’. The transfers were arranged by Bashas’ human re-

5 I have considered Proulx’s testimony that Bashas’ based its wage
increases on what the industry was doing and that this included its
unionized competitors as well as nonunion competitors such as Wal-
Mart, Costco, and Albertsons’. I do not credit this testimony. This
testimony was given in summary fashion, no documents were provided
to support this contention, and the letters exchanged between Bashas’
and the Union tell a different story—namely, that Bashas’ generally
granted its wage increases based on what the Union had achieved in
collective-bargaining agreements with the unionized employers in
Arizona.
BASHAS’ 395
sources department whose personnel met with the employees at
store 69 and asked them of their desire to transfer to the new
store or remain at what would become a Food City supermar-
ket. Store 69 closed for a week to make the transition to Food
City. During that time, the employees who opted to remain
there worked on the remodeling that took place. Check cashing
stations were added to a number of stores, including stores 69
and 124. This change resulted in the creation of a new job
classification that in stores 69 and 124 was considered part of
the recognized unit. Some stores bake certain of their bakery
products from scratch. Bashas’ decided that stores 69 and 124
should start to do so also. As a result of this change new baker
positions were added. Some stores, including stores 69 and 124
changed from a completely self-service meat department to a
service meat department where customers could request spe-
cially cut meat items. There is no evidence that Bashas’ advised
the Union of any of these changes that affected the union-
represented stores. Similarly, there is no evidence that the Un-
ion ever requested bargaining over any of these matters or pro-
tested Bashas’ conduct.
B. Alleged Unfair Labor Practices
1. Health plan allegations
The complaint alleges that Bashas’ violated Section 8(a)(5)
by unilaterally making changes to the health benefits program
that it offered to unit employees. In that regard, Bashas’ had
never required employees to pay any portion of their health
care insurance premiums. On January 30, 2006, however, Ba-
shas’ informed all employees, including employees in the rec-
ognized units, that it was making changes to its health benefits
program effective June 1, 2006. The new program allowed
employees to select one of two plans. Under plan A, which
was the existing plan, both full-time and part-time employees
would have to pay from $10 to $30 per week, depending on the
coverage. This was the first time employees would be required
to share in the costs of their health care premiums. Under plan
B, which offered less coverage, full-time employees would not
be required to make payments, but part-time employees would.
In a memorandum to store directors and management teams,
Bashas’ explained the changes as follows:
Market conditions now compel us to change the status quo
and on June 1st of this year we will ask all of our [employees]
that choose to participate in our current group health insur-
ance plan to begin to share those costs with us. At the same
time, however, we will introduce a new, free, more basic plan
for those hired after February 1, 2006, and for current [em-
ployees] who may want to choose it over our current plan so
their “premium-free” can continue. The newly created mem-
ber contributions [premiums] for the continuation of our cur-
rent plan, which will feature some enhancements, will range
from $10 to $30 dollars per week depending upon election.
Waiting periods to become eligible for the plans were also
changed. Bashas’ anticipated that employees would ask ques-
tions regarding the changes and it prepared answers to ques-
tions such as “Why do we have to contribute to our healthcare
after all these years of Bashas’ paying for it?” and “Isn’t there
something else Bashas’ could do to keep things as they are?”
On about May 18, the Union sent Bashas’ a letter that stated:
As you are aware, [the Union] represents the employees at
certain Bashas’ stores. The [Union] has had negotiations with
Bashas’ concerning those employees and has monitored the
terms ands conditions the employees have been under, includ-
ing changes thereto. In the past, we have either consented to
or did not object to the changes. It has come to our attention
that Bashas’ contemplates changes in the medical plan it pro-
vides to the employees represented by the [Union.] [The Un-
ion] hereby requests a meeting with Bashas’ to negotiate these
proposed changes.
Bashas’ admits that it did not bargain with the Union concern-
ing the announced changes and that on about June 1 it imple-
mented those changes to the health benefits program that it
provides to all employees, including the unit employees repre-
sented by the Union.
Over the years, Bashas’ has made a number of changes to its
health benefits program. For example, in 1994 Bashas’ made
minor technical clarifications to eligibility and participation
conditions and clarified covered and noncovered expenses. In
1995 preexisting conditions were covered up to $1000 for the
first 12 months, the copay percentage for non-PPO providers
increased from 65 to 70 percent for covered services, well-
baby, wellness/preventive, and smoking cessation benefits were
implemented, hearing impairment services were added, and
dental benefits were increased. In 1996, the schedule of cov-
ered benefits for physician services was changed. In 1999,
part-time employee eligibility was changed from an average of
260 hours worked over two calendar quarters to an average of
20 hours per week worked over a 6-month period. In 2002,
eligibility requirements for dental/vision care benefits were
reduced, coverage for routine-elective male newborn circumci-
sion was added, in-network behavioral health benefits became
subject to copay requirements, the dollar limits for prosthetics
were increased, a chronic disease management program was
added, copays for emergency room and urgent care visits were
added, a $500 lifetime maximum limit for contraceptives was
imposed, and annual dental and lifetime orthodontia limits were
increased, among other changes. In 2003, the copay for generic
and brand name drugs were increased. In 2005, specialty drug
benefits were added and a maximum copayment for these drugs
was set at $100. Also in 2005, employees who failed to main-
tain an average of 32 or more hours worked as full-time em-
ployees lost that eligibility for benefits.
Analysis
Bashas’ contends that this allegation in the complaint is time
barred under Section 10(b). It argues that the changes were
implemented on June 1, yet a specific amended charge was not
filed covering this matter until December 20, after the 6-month
limitation mandated by Section 10(b). The General Counsel
counters by pointing to the original charge filed on October 24
alleging that Bashas’ “on or about June 1, 2006, unlawfully
withdrew recognition of [the Union] as the exclusive collective-
bargaining agent of Bashas’ employees at the nine stores identi-
fied below.” In deciding whether a timely filed charge is broad
enough to cover an untimely amended charge for 10(b) pur-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD396
poses, the Board applies a three-part test to determine if the
amended charge is closely related to the original charge. Redd-
I, Inc., 290 NLRB 1115 (1988). First, the Board examines
whether the otherwise untimely allegations involve the same
legal theory as the allegations in the timely charge. Here, both
allegations involve violations of Section 8(a)(5). But the alle-
gation of the timely charge is that Bashas’ unlawfully withdrew
recognition from the Union; that legal theory is distinct and
separate from allegations of unilateral changes in health insur-
ance benefits. Second, the Board examines whether the other-
wise untimely allegations arise from the same factual situation
or sequence of events as the allegations in the timely charge.
Here, while both allegations occurred the same day, the allega-
tions of unlawful withdrawal of recognition center on state-
ments made by Bashas’ in its civil trespass lawsuit against the
Union, as more fully described below. This factual situation is
separate and distinct from the allegation concerning the
changes made in the health insurance plans. Each goes along
its separate factual path. Carney Hospital, 350 NLRB 627
(2007). Third, the Board considers whether the defenses raised
against allegations made in both the timely and untimely allega-
tions are the same or similar. Here, the defenses are markedly
different in that Bashas’ asserts it was privileged to make the
changes in health care insurance by virtue of a long history of
acquiescence by the Union, while it defends the withdrawal of
recognition allegation on the basis that it never did withdraw
recognition. The General Counsel, in his brief, makes no men-
tion of Redd-I and he does not specifically address the three-
part test contained therein. The Union does not address the
10(b) issue in its brief. Under these circumstances I am unable
to conclude that the amended charge is sufficiently related to
the timely charge so as to support the allegations in the com-
plaint. Rather, I conclude that the allegations in the complaint
concerning changes made to the health insurance plan are
barred by Section 10(b). Accordingly, I dismiss these allega-
tions.
2. Withdrawal of recognition allegation
Next, the complaint alleges that on about June 1, Bashas’
withdrew its recognition from the Union as the exclusive col-
lective-bargaining representative of the unit employees. Ba-
shas’ denies that it has withdrawn recognition from the Union.
To support this allegation the General Counsel relies on a law-
suit filed by Bashas’ on June 1, 2006, in Arizona Superior
Court against the Union. The complaint alleged that the Union,
through its agents, trespassed and engaged in other unlawful
conduct at store 64 and elsewhere. The complaint stated that
the Union “does not represent Bashas’ employees.” Of course,
as pointed out above, the Union did represent the unit employ-
ees at store 64. The Union filed a motion to dismiss that
pointed out, among other things, that the Union does represent
some of Bashas’ employees, including those at store 64. Ba-
shas’ response to the motion to dismiss included:
The Union’s Motion makes unsubstantiated and untrue alle-
gations that the Union represents employees at [Bashas’]
Store No. 64. Needless to say, the Union’s false allegations
are disputed by [Bashas’].
. . . .
The Union’s conduct reveals the insincerity of its claim that it
had some representational rights over the employees in Store
64. If the Union actually represented these employees, it
would be able to obtain the names of employees from Bashas’
via an informational request.
. . . .
As explained above, the Union is not the representative of the
employees it was attempting to contact.
In a position statement dated August 18 and given to the
Board’s Regional Office, Bashas’ stated:
Finally, whatever recognitional claims the Union may have
are seriously undercut and undermined by Union abandon-
ment, inaction, and conduct over literally years, amounting or
tantamount to a disclaimer of interest.
In answer to the original complaint issued in this case on De-
cember 28, Bashas’ denied that the Union was the 9(a) repre-
sentative of the unit employees. It pled as affirmative defenses
that the Union has lost:
any arguable, purported status as the recognized collective
bargaining agent of any collective bargaining unit of any of
Respondent’s stores . . . by its abandonment of the employees
comprising any alleged collective bargaining unit.
and
The Union has waived and is estopped from claiming recog-
nition based upon a consistent pattern of inaction and its utter
absence of representation with respect to the employees con-
stituting any arguable collective bargaining unit purportedly
represented by the Union, such pervasive pattern of inaction
amounting to a disclaimer of interest.
In answer to the first consolidated complaint issued on March
30, 2007, Bashas’ again denied that the Union was the 9(a)
representative of the unit employees and again claimed that the
Union abandoned the bargaining unit employees and lost ma-
jority support from the bargaining unit employees. In answer to
the second consolidated complaint that issued June 27, 2007,
however, Bashas’ admitted the Union’s 9(a) status and no
longer asserted that the Union had lost the right to represent the
unit employees. The Union then filed a motion to preclude
Bashas’ from offering evidence at the trial that challenged the
Union’s status as the bargaining representative of the unit em-
ployees. In response to this motion, Bashas’ filed an amended
answer and then a second amended answer that no longer ad-
mitted the Union’s 9(a) status and affirmatively pled the Union
disclaimed recognition by its conduct of inaction. At the hear-
ing in this case Bashas’ denied that it has withdrawn recogni-
tion and instead acknowledged its continued obligation to bar-
gain with the Union as the representative of the employees in
the several units and does not argue otherwise in the brief it
submitted after the trial.
Analysis
There is no evidence in this case to justify a withdrawal of
recognition under Levitz Furniture Co., 333 NLRB 717 (2001).
BASHAS’ 397
There is no question that Bashas’ misrepresented a material fact
in its filings before the Arizona Superior Court when it twice
represented to that court that the Union did not represent em-
ployees at store 64. Bashas’ asserts that the statements in its
lawsuit against the Union did not amount to a withdrawal of
recognition.6 It argues that those statements should be viewed
in context. Citing Signal Transformer Co., 265 NLRB 272
(1982), and Glover Bottle Glass Corp., 292 NLRB 873, 885
(1989), Bashas’ argues that in context the statements in the
trespass lawsuit did not rise to the level of a withdrawal of rec-
ognition. But the cited cases dealt with statements that were
both ambiguous and isolated. Moreover, Bashas’ continued to
repeatedly deny in its pleadings in this case that the Union was
the 9(a) representative of the unit employees. Its tardy ac-
knowledgement at the hearing in this case that the Union in-
deed did represent the employees is entitled to less weight be-
cause it earlier acknowledged this fact in its answer to the sec-
ond consolidated complaint only to quickly withdraw that ac-
knowledgement and reassert its previous position. In context,
Bashas’ conduct was tantamount to a withdrawal of recogni-
tion. The Union is entitled to an unambiguous assurance from
Bashas’ that Bashas’ recognizes the Union as the collective-
bargaining representative of the unit employees and one that is
not contingent upon the preferred legal strategy of the day. By
withdrawing recognition from the Union as the collective-
bargaining representative of the unit employees, Bashas’ vio-
lated Section 8(a)(5) and (1).
3. Store closing allegations
On about December 3 and April 9, 2007, Bashas’ closed
stores 125 and 68, respectively, and transferred the unit em-
ployees working there to other facilities. In fact, Bashas’ con-
verted store 125 into an Ike’s Farmer Market, the first of its
kind store that featured organic produce, natural foods, supple-
ments, and healthy lifestyle living items. This store opened in
May 2007.7 The complaint also alleges that Bashas’ unlawfully
bypassed the Union as the exclusive collective-bargaining rep-
resentative of the transferred employees by dealing directly
with the employees concerning the transfers. The evidence
shows that Bashas’ closed these stores without giving specific
notice to the Union. Bashas’ decided to offer employees work-
ing at these stores transfers to other Bashas’ stores near the
employee’s home or in the vicinity of the store being closed.
The offers of transfer were dependent on the availability of the
position at the store the employee desired to transfer to; not all
first choices were granted. The evidence shows, and Bashas’
admits, that Bashas’ dealt directly with the employees concern-
ing their transfers to other stores. All unit employees ultimately
accepted the transfer offers made to them.
Bashas’ began informing the employees and the community
of the closing of store 125 as early as January. As part of the
gradual closedown process, about 40 employees and the store

6 Proulx testified that the assertion in Bashas’ initial filing meant
only that the Union did not represent all of Bashas’ employees. But
Bashas’ subsequent filings refute this testimony and I do not credit it.
7 There is no allegation in the complaint that Bashas’ unlawfully
failed to recognize the Union at the newly converted Ike’s Farmer
Market.
manager from store 125 transferred to a nearby Bashas’ store
when it opened around March; store 125 thereafter operated
with a much reduced staff until it closed in December. Union
Agent Lillian Flores testified that she visited store 125 from
time to time. During a visit in June a number of employees
advised Flores that the store would be closing and that the em-
ployees were not certain what would happen to them. More-
over, the appearance of the store also lent credibility to the
reports from the employees. Flores advised her superior in the
Union of this information, but the Union never made a request
to bargain with Bashas’ over effects of the closing on unit em-
ployees. Unlike store 125, Bashas’ announced the closing of
store 68 on March 21, less than 3 weeks prior to its closing.
Over the years there have been scores of voluntary transfers
out of and into the union-represented stores pursuant to Bashas’
transfer policy and there has been no objection from the Union.
Bashas’ points out that Tadeo, a member of the Union’s board
of directors, applied for a transfer out of store 69 on August 31,
2000, using Bashas’ transfer procedures.8 As the General
Counsel points out in his brief, there is no evidence that the
employees transferred as a result of the closing of stores 125
and 68 were offered additional compensation or other benefits
resulting from any inconvenience or hardship caused by the
transfers, nor is it known whether the former unit employees
worked reduced hours after the transfers.
Analysis
As a preliminary matter, Bashas’ argues that the Union ac-
quiesced in its policy of making changes to the union-
represented employees on the same basis as it treated its non-
unit employees. While Bashas’ makes this argument primarily
in defense of the changes it made in its health benefits program,
and I have dismissed that allegation on 10(b) grounds and thus
found it unnecessary to pass on the contention in that context,
Bashas’ makes the same argument for the remaining allegations
of unilateral changes raised in the complaint. Among other
things, Bashas’ points to the fact that during negotiations it
advised the Union that it was treating the unit employees the
same as it was treating the nonunit employees, that in fact it did
so, that the Union knew or should have known that it was doing
so, and the Union never objected to this practice. However,
this argument over simplifies a more complex history. Con-
cerning wages, for example, Bashas’ indeed treated all stores—
union and nonunion—alike. But the wage changes Bashas’
made generally followed the pattern of what the Union gained
in bargaining with major union-represented employers in Ari-
zona. Thus, the practice would not allow Bashas’ to, for exam-
ple, cut wages in the union-represented stores merely because
Bashas’ did so in its nonunion stores. Bashas’ cites Courier-
Journal, 342 NLRB 1093 (2004), and Courier-Journal, 342

8 Michael Gantt, Bashas’ senior vice president for human resources,
testified that during bargaining with the Union proposals were ex-
changed relating to job training and in those proposals there was lan-
guage concerning job transfers. Gantt did not further elaborate, and the
proposals themselves were not offered into evidence. Gantt’s testi-
mony, though unrebutted, was not corroborated. Given these factors
and Gantt’s earlier inaccurate testimony on the subject of transfers, I
give this testimony little weight.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD398
NLRB 1148 (2004). In the Courier-Journal cases the respon-
dent had a past practice for many years of making changes to
the employees’ costs and benefits of its health insurance pro-
gram. The practice included making the same changes for em-
ployees represented by the union there as for nonunit employ-
ees. When the union there discovered that the respondent was
planning on again changing the costs and benefits levels of the
health insurance plan on January 1, 2002, the union objected
and indicated that it wanted to negotiate specific health insur-
ance benefits for the unit employees. The respondent nonethe-
less proceeded to make the changes as planned. The Board
dismissed the allegation that the respondent acted unlawfully
by doing so. It reasoned that a practice had developed that
allowed the respondent to make those changes and the practice
could continue until changed by bargaining. The Courier-
Journal cases do not govern the store closing allegations in this
case. Of course, Bashas’ has unilaterally closed many stores
where the employees were not represented by the Union and it
dealt directly with the employees at those stores. But this, of
course, simply stems from the fact that those were nonunion
stores. Unlike in Courier-Journal, in this case there was no
past practice of how union-represented employees would be
treated in the event of a store closure, much less any Union
acquiescence in any practice. Berkshire Nursing Home, 345
NLRB 220 fn. 2 (2005).
Some analysis is needed to determine whether the General
Counsel contends that Bashas’ unlawfully failed to bargain
with the Union concerning the decision to close stores 125 and
68 and, if so, what is the General Counsel’s theory. The com-
plaint lists the allegations that Bashas’ implemented changes in
the health insurance program, installed a self-service checkout
station and closed stores 125 and 68. The complaint then al-
leges that Bashas’ engaged in all of that conduct without af-
fording the Union an opportunity to bargain “with respect to
this conduct and the effects of this conduct.” The complaint,
therefore, appears to allege that Bashas’ closed stores 125 and
68 without first bargaining with the Union about the decision to
do so. However, one section of the General Counsel brief is
entitled “Respondent Violated Section 8(a)(1) and (5) by Fail-
ing to Notify the Union and Bargain over the Closure of Store
68.” The next section in the brief is entitled “Respondent Vio-
lated Section 8(a)(1) and (5) by Failing to Notify the Union and
Bargain over effects of Store 125’s and Store 68’s Closures.”
No explanation is given as why the complaint alleged a viola-
tion as to the decision to close both stores but in the brief only
store 68 is mentioned. Moreover, in the conclusion section of
the brief the General Counsel specifically seeks a remedy “that
would require Respondent to bargain with the Union regarding
the effects of Store 125 and Store 68 closing,” but it makes no
mention of a remedy for a decisional violation for either store.
In the proposed notice the General Counsel seeks language that:
WE WILL immediately negotiate an agreement with the Union
as to all matters relating to the reinstatement of [store 68 and
store 125] bargaining unit employees to their former positions
of employment or substantially equivalent positions of em-
ployment, without loss of seniority or other benefits, at our
[store 68 and store 125] facility.
In the section of the brief containing the argument as to how
Bashas’ was required to bargain over the decision to close store
68, the General Counsel’s argument, in its entirety, is:
The decision to close a facility and relocate operations can be
considered a mandatory subject of bargaining and something
an employer must give notice and an opportunity to bargain
over in certain circumstances. Dubuque Packing, 303 NLRB
386 (1991), holds that if the relocation of unit work is unac-
companied by a basic change in the nature of the employer’s
operations, it becomes a mandatory subject of bargaining. Id.
at 396.9
The Union only makes the identical argument in its brief. The
problem with this argument is that Dubuque Packing involved
the relocation of unit work; there is no allegation in the com-
plaint that Bashas’ relocated unit work and that matter was not
litigated. Moreover, there is no evidence in the record to show
that Bashas’ relocated unit work as opposed to transferred unit
employees. I conclude that any allegation concerning an unlaw-
ful failure to bargain over the decision to close store 125 and
store 68 should be dismissed.
Turning now to the allegations concerning effects bargain-
ing, it is undisputed that Bashas’ failed to notify the Union of
the closings of these two stores so as to give the Union a mean-
ingful opportunity to bargain concerning the effects of the clos-
ing on unit employees.10 As the Supreme Court has made clear,
a union is entitled to notice and an opportunity to bargain about
the effects of a closing even if the decision to close does not
require bargaining with the Union. First National Maintenance
Corp. v. NLRB, 452 U.S. 666, 681 (1981). The fact that no unit
employees were terminated as a result of the closing does not
excuse the failure to bargain concerning the effects of the clos-
ing on unit employees. AG Communication Systems Corp., 350
NLRB 168 (2007). By failing to give the Union notice and an
opportunity to bargain concerning the effects of closing stores
68 and 125 on unit employees, Bashas’ violated Section 8(a)(5)
and (1).
I turn next to the allegation that Bashas’ violated Section
8(a) (5) by dealing directly with employees concerning their
transfers to other stores. Generally, an employer violates the
Act when it deals directly with union-represented employees
concerning the employees’ terms and conditions of employ-
ment. Southern California Gas Co., 316 NLRB 979 (1995).
But here the evidence shows that Bashas’ has dealt directly
with unit employees for years concerning transfers made pursu-
ant to its existing transfer policy; this was done without objec-

9 That section of the brief continues by citing Freedman Die Cutters,
Inc., 340 NLRB 422 (2003), and Daniel I. Burk Enterprises, 313 NLRB
1263 (1994), but those cases do not involve decisional bargaining but
instead deal only with effects bargaining.
10 I note that Bashas’ does not argue that the Union had constructive
notice of the closings such to trigger a request to bargain even in the
absence of actual notice from Bashas’. In any event there is no evi-
dence that the Union had any constructive notice of the closing of store
68 and Bashas’ began the close down process for store 125 in about
March by transferring 40 employees to a newly opened store located
nearby and there is no evidence that the Union had constructive notice
of the closing at that time.
BASHAS’ 399
tion by the Union. Bashas’ did nothing different in this case.
Of course, I have concluded that Bashas’ unlawfully failed to
give the Union an opportunity to bargain concerning the effects
of the store closings. That bargaining could have resulted in a
different transfer policy when store closings are involved and
different considerations might come into play concerning
whether Bashas’ could still deal directly with employees on the
subject of transfers under those circumstances, but that simply
is speculative at this time. The point is that the complaint al-
leges the direct dealing as a separate violation but the evidence
shows Bashas’ simply continued to do what it had done in the
past without objection from the Union. I further note that be-
low I require Bashas’ to bargain with the Union concerning the
effects of the store closings; this requires Bashas’ to bargain
with the Union over the transfers. I shall dismiss this allegation
in the complaint.
4. U-scan allegation
On about December 14, Bashas’ removed two existing em-
ployee-operated checkout stations and installed a self-checkout
lane at store 124. The U-scan unit had four stations where cus-
tomers scanned their purchases, inserted cash or credit card,
received changed, and bagged their groceries. At the regular
checkout lanes unit employees had scanned the purchases, re-
ceived cash and returned change, and bagged the purchases.
One cashier was stationed at the U-scan unit; this cashier moni-
tored the transactions of the customers on a screen and pro-
vided assistance to the customers as needed. Cashiers received
training to these functions; because multitasking skills were
required not all cashiers became equally proficient at perform-
ing these functions and only a small number have been as-
signed to operate the U-scan unit.
U-scan units had been and were being introduced into non-
union stores as well. In explaining the introduction of the self-
checkout system Bashas’ stated that it:
[W]ill provide a new checkout method for express checkout
customers. Our customers have asked for this feature after
seeing it at other retailers, and we are excited about giving
them a chance to use it at our stores.
Although our competitors have used self-checkout to
reduce store labor cost (and eliminate jobs), Bashas’ in-
tends to do just the opposite. We view the Fast Lane as an
additional store service that will help us to exceed cus-
tomer expectations by adding an alternative checkout
method to our busy front ends. We will continue to pro-
vide exceptional one-on-one service to our customers as
they come to our stores. The Fast Lane will be monitored
by a well-trained cashier at all times and will be open 8
a.m. to 10 p.m. each day.
Bashas’ never gave the Union notice of its intention to install
the U-scan station at store 124. Proulx testified that the U-scan
unit was installed to improve customer service and not to re-
duce labor costs. Similarly, Thomas Swanson, Bashas’ vice
president and general manager for the Food City stores, testi-
fied that the U-scans were not introduced in an effort to save
labor costs and, in fact, the U-scans had not saved labor costs.
In support of that testimony Bashas’ points to evidence in the
record that the number of hours worked by cashiers in store 124
increased after the installation of the U-scan unit. However,
that evidence is of little use because hours usually increase in
the winter months as more people come to area to escape the
colder weather in other parts of the country. Rubin, moreover,
credibly testified that in his experience use of the U-Scan sta-
tions reduces the number of hours worked by cashiers.
Over the years cash registers have been added, removed, and
moved around in the stores. For example, store 63 was com-
pletely remodeled and the bistro department, which had one
cash register, was expanded to add an Italian kitchen, a cappuc-
cino machine, and a smoothie machine. Business in that de-
partment basically tripled and a second cash register was added
there. In addition, a pharmacy and a sushi bar were added;
each had its own cash register. In store 64, for example, the
older, bulkier cash registers were replaced by cash registers
with flat screen models and the check stands were reconfigured
to leave a smaller footprint at the front end of the store. In store
68 two checkout stands, each having one cash register, were
removed and replaced with a customer service stand that had its
own cash register.
Analysis
An employer violates Section 8(a)(5) when it unilaterally
changes the working conditions of employees who are repre-
sented by a union. NLRB v. Katz, 369 U.S. 736 (1962). The
changes, however, must be material, substantial, and signifi-
cant. Crittenton Hospital, 342 NLRB 686 (2004). Here, as
pointed out above, all cashiers had to undergo training to oper-
ate the U-scans and not all cashiers were equally able to per-
form the new functions. Moreover, as the General Counsel
points out in his brief, there are issues of whether the U-scan
cashiers should receive a higher rate of pay because of the dif-
ferent type of function they perform and whether there will be
consequences for the cashiers that are unable to grasp the new
skills involved in operating a U-scan unit. At a minimum, it
seems work opportunities for these cashiers will diminish. This
is especially the case if Bashas’ continues the process of con-
verting more traditional cash registers to U-scan stations. Work
schedules were also revised as a result of the installation of the
new technology. While Bashas’ portrayed the introduction of
the U-scans as unrelated to reduction in labor costs, I have
credited testimony that the long-run impact of use of the U-
scans can save labor costs and therefore result in less work for
the unit employees. After all, it is undisputed that under the
new process customers perform functions previously performed
by unit employees. And use of the U-scans has the potential of
having one cashier oversee the checkout of four customers at
one time. I conclude that the changes in working conditions
resulting from the introduction of the U-scan are significant.
Bashas’ again argues that it was privileged to introduce the
U-scan without bargaining with the Union based on its Courier-
Journal argument. But the same reasoning I described above in
rejecting that argument applies here too—there is no evidence
that Bashas’ had previously introduced this new technology in
its union-represented stores, much less any evidence that the
Union had agreed to any previous introduction. Bashas’ also
relies on the evidence, set forth in detail above, that it has made
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD400
many changes to the location of cash registers in the union-
represented stores and introduced new cash registers with more
modern technology. But none of those changes resulted in such
a dramatic break from the past as here where customers are
performing what was formerly unit work. I conclude that by
unilaterally introducing the U-scan unit without first giving the
Union notice and an opportunity to bargain about the introduc-
tion and its effects on unit employees, Bashas’ violated Section
8(a)(5) and (1).
CONCLUSIONS OF LAW
Respondent has engaged in unfair labor practices affecting
commerce within the meaning of Section 8(a)(5) and (1) and
Section 2(6) and (7) of the Act by:
1. Withdrawing recognition from the Union as the collective-
bargaining representative of the unit employees.
2. Failing to give the Union notice and an opportunity to bar-
gain concerning the effects of closing stores 68 and 125 on unit
employees.
3. Unilaterally introducing a U-scan unit without first giving
the Union notice and an opportunity to bargain about the intro-
duction and its effects on unit employees.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act. I have concluded that Bashas’
unlawfully failed to give the Union an opportunity to bargain
concerning the effects on unit employees of the closing of
stores 68 and 125. The General Counsel argues that a remedy
under Transmarine Navigation Corp., 170 NLRB 389 (1968),
is necessary to remedy that violation. A Transmarine remedy,
as clarified in Melody Toyota, 325 NLRB 846, 846 (1998),
requires that an employer bargain over the effects of its deci-
sion, and provide unit employees backpay at the rate of their
normal wages when last in the employer’s employ from 5 days
after the date of the Board’s decision, until the occurrence of
one of four specified conditions. Bargaining must take place
and backpay be paid until either: (1) the parties reach agree-
ment; (2) the parties reach a bona fide bargaining impasse; (3)
the union fails to request bargaining within 5 days of the
Board’s decision or to commence negotiations within 5 days of
the employer’s notice of its desire to bargain; or (4) the union
ceases to bargain in good faith. In no event, however, shall the
sum paid to these employees exceed the amount they would
have earned as wages from the date on which the employer
closed its facility, to the time they secured equivalent employ-
ment elsewhere, or the date on which the employer shall have
offered to bargain in good faith, whichever occurs sooner; pro-
vided, however, that in no event shall this sum be less than the
employees would have earned for a 2-week period at the rate of
their normal wages when last in the employer’s employ. Back
pay shall be based on earnings which the employees would
normally have received during the applicable period, less any
net interim earnings, and shall be computed in accordance with
F. W. Woolworth Co., 90 NLRB 289 (1950), with interest as
prescribed in New Horizons for the Retarded, 283 NLRB 1173
(1987).
The Board has recently confirmed that a Transmarine rem-
edy is the standard remedy in effects bargaining cases. AG
Communication, supra at 172. Bashas’ argues that this remedy
is not appropriate in this case because all unit employees ac-
cepted transfers and therefore did not become unemployed or
lose wages or other benefits as a result of the closing. But a
Transmarine remedy is not designed only to make employees
whole for loss of wages. Instead, a purpose of this remedy is to
restore to the Union the bargaining leverage it would have en-
joyed had the employer engaged in effects bargaining with the
Union. “[T]he need for a Transmarine remedy is not vitiated
by the [employer’s] offer of jobs to the unit employees at the
new facility.” Sea-Jet Trucking Corp., 327 NLRB 540 (1999).
Bashas’ relies heavily on AG Communication, supra. However,
there the Board concluded that under the “unusual circum-
stances” of that case “there appears to be little or nothing left
over which to bargain.” Id. at 173. Here, there is much left for
bargaining. As noted above, there is no evidence that the em-
ployees transferred as a result of the closing of stores 125 and
68 were offered additional compensation or other benefits re-
sulting from any inconvenience or hardship caused by the trans-
fers, nor is it known whether the former unit employees worked
reduced hours after the transfers. These are some subjects that
could have been addressed in effects bargaining. Also as noted
above, the Union could have bargained over a different transfer
procedure in instances of store closings. This might have cov-
ered matters such as preferential treatment for the employee’s
first choice of where to transfer. It could have covered prefer-
ential treatment for transfer to the Ike’s Farmer Market that
Bashas’ opened in place of store 125. Moreover, the Board in
AG Communication deemed it significant that the employees
there continued to be represented by a union, albeit a different
union than the one which originally represented them. It fol-
lows that it must be significant in this case that the employees
were transferred to nonunion stores. I conclude that the un-
usual circumstances present in AG Communication are not
present in this case. I further conclude that a Transmarine rem-
edy is necessary to restore to the Union some bargaining lever-
age so that meaningful effects bargaining will occur with Ba-
shas’.
I have also concluded that Bashas’ unlawfully introduced the
U-scan unit without first giving the Union notice and an oppor-
tunity to bargain about the introduction and its effects on unit
employees. In order to provide the Union with a meaningful
opportunity to bargain about this matter I shall require Bashas’,
upon request of the Union, to remove the U-scan unit and re-
store the status quo that existed prior to the installation.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended11

11 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended 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.
BASHAS’ 401
ORDER
The Respondent, Bashas’ Inc., d/b/a Bashas’, Food City, and
AJ’s Fine Foods, Chandler, Arizona, its officers, agents, suc-
cessors, and assigns, shall
1. Cease and desist from
(a) Withdrawing recognition from the Union as the collec-
tive-bargaining representative of the unit employees.
(b) Failing to give the Union notice and an opportunity to
bargain concerning the effects of closing stores on unit employ-
ees.
(c) Unilaterally introducing the U-scan unit without first giv-
ing the Union notice and an opportunity to bargain about the
introduction and its effects on unit employees.
(d) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Recognize, and on request, and bargain with the Union as
the exclusive representative of the employees in the following
appropriate units concerning terms and conditions of employ-
ment and, if an understanding is reached, embody the under-
standing in a signed agreement:
Single facility units of all employees employed at the seven
former ASI stores, but excluding all meat department em-
ployees and all guards and supervisors as defined in the Act.
Single-facility units of all meat department employees em-
ployed at the seven former ASI stores, but excluding all other
employees and all guards and supervisors as defined in the
Act are appropriate.
All meat department employees employed at Bashas’ Store
125, located at 13005 N. Oracle Road, Oro Valley, Arizona,
85739 and all meat department employees employed at Food
City Store 124 located at 2800 West 16th Street, Yuma, Ari-
zona, 85364, excluding all other employees, guards and su-
pervisors as defined in the Act.
All other employees employed at Bashas’ Store 125, located
at 13005 N. Oracle Road, Oro Valley, Arizona, 85739 and all
other employees employed at Food City Store 124 located at
2800 West 16th Street, Yuma, Arizona, 85364, excluding all
meat department employees, guards and supervisors as de-
fined in the Act.
(b) Bargain with the Union concerning the effects of closing
stores 125 and 68 and pay the employees transferred as a result
of the closings the amounts of money with interest according to
the standard set forth in the remedy section of this decision.
(c) On request of the Union, remove the U-scan unit and re-
store the status quo that existed prior to the installation and give
the Union notice and opportunity to bargain about the matter
before doing so again.
(d) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
(e) Within 14 days after service by the Region, post at its fa-
cilities involved in this proceeding, copies of the attached no-
tice marked “Appendix.”12 Copies of the notice, on forms pro-
vided by the Regional Director for Region 28, 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 are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not al-
tered, 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 June 1, 2006.
(f) 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.
IT IS FURTHER ORDERED that the complaint is dismissed inso-
far as it alleges violations of the Act not specifically found.

12 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.”