BOZZUTO'S, INC.

National Labor Relations Board - Board Decisions

Dec 12, 2017

365 NLRB No. 146 (N.L.R.B. 2017)

365 NLRB No. 146
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Bozzuto’s, Inc. and United Food and Commercial
Workers Union, Local 919. Cases 01–CA–
115298 and 01–CA–120801
December 12, 2017
DECISION AND ORDER
BY CHAIRMAN MISCIMARRA AND MEMBERS PEARCE
AND MCFERRAN
On June 25, 2015, Administrative Law Judge Ray-
mond P. Green issued the attached decision. The Re-
spondent filed exceptions and supporting, answering, and
reply briefs. The General Counsel filed cross exceptions
and supporting and answering briefs.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the judge’s decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and conclu-
sions and to adopt the recommended Order as modified
and set forth in full below.2

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
There were no exceptions to the judge’s findings that the Respond-
ent violated Sec. 8(a)(1) of the Act when, on October 1, 2013, while
explicitly acknowledging its awareness of the union organizing cam-
paign, it announced and implemented wage increases, and by maintain-
ing a policy that conditioned continued employment on an agreement
by employees to refrain from talking about any discipline that they
have received or about their terms and conditions of employment.
2 In accordance with our decision in AdvoServ of New Jersey, Inc.,
363 NLRB No. 143, slip op. at 1 (2016), we shall modify the judge’s
recommended tax compensation and Social Security reporting remedy.
In accordance with our recent decision in King Soopers, Inc., 364
NLRB No. 93 (2016), enfd. in pertinent part 859 F.3d 23 (D.C. Cir.
2017), we shall also amend the remedy to require the Respondent to
compensate affected employees for their search-for-work and interim
employment expenses regardless of whether those expenses exceed
interim earnings. For the reasons stated in his separate opinion in King
Soopers, supra, slip op. at 9-16, Chairman Miscimarra would adhere to
the Board’s former approach, treating search-for-work and interim
employment expenses as an offset against interim earnings.
Last, we amend the judge’s remedy to reflect the correct date on
which McCarty’s backpay and other monetary remedies should be
tolled: May 28, 2014, the date of the last opportunity to accept the
Respondent’s reinstatement offer and the date on which McCarty re-
jected it. See Cliffstar Transportation Co., 311 NLRB 152, 154-155
(1993) (quoting Southern Household Products Co., 203 NLRB 881,
882 (1973) (“backpay is tolled on the date of actual reinstatement[;] on
This case presents several issues related to a union or-
ganizing campaign at the Respondent’s facility in Chesh-
ire, Connecticut. The issues include whether the Re-
spondent violated Section 8(a)(1) by interrogating em-
ployee Todd McCarty; whether the Respondent violated
Section 8(a)(3) and (1) by suspending and discharging
McCarty, and by disciplining and subsequently discharg-
ing employee Patrick Greichen; and whether to order the
Respondent to read our remedial notice aloud to employ-
ees on work time.
The judge found all the foregoing violations, but de-
clined to grant the General Counsel’s request to have the
Respondent read the notice aloud. We affirm the judge’s
findings, and we grant the General Counsel’s notice-
reading request.
The credited evidence establishes that, sometime in
September 2013,3 Todd McCarty contacted a representa-
tive of the Union. On September 22, McCarty, Patrick
Greichen, and two other employees met with the union
representative to discuss organization at the Respond-
ent’s facility. On Monday, September 23, McCarty and
Greichen began soliciting employees to support the Un-
ion. As the judge found, they initially tried to keep their
union activity under the radar. Despite their efforts, the
Respondent became aware of the union activity by Sep-
tember 26.4
1. Todd McCarty
As noted above, the Union’s organizing campaign be-
gan on Monday, September 23. Approximately 1 week
later, Rick Clark, the Respondent’s vice president of
warehouse, transportation and risk management, stopped
employee and union supporter Todd McCarty as he was
exiting the restroom and asked him what was going on
with “this union stuff.” McCarty replied that he was not
going to talk to Clark about it. The General Counsel
alleges, and the judge found, that this inquiry constituted
an unlawful interrogation. We agree.5

the date of rejection; or in the case of those who did not reply, on the
date of the last opportunity to accept.”)).
We shall modify the judge’s recommended Order and substitute a
new notice to reflect these remedial changes and to conform to the
Board’s standard remedial language.
3 All dates are in 2013 unless otherwise noted.
4 The record shows that sometime before October 1, an employee
told the Respondent’s vice president of warehouse, transportation and
risk management, Rick Clark, of McCarty’s involvement in the organi-
zation efforts, but, as discussed infra, McCarty, who testified that,
initially, he “was [a] little more covert [than Greichen],” did not be-
come open about his support until later.
5 Contrary to our dissenting colleague’s assumption that the interro-
gation took place on September 27, the record and the judge’s decision
as a whole indicate that it occurred about October 1. While the com-
plaint alleges that, “on or about [September 27], the Respondent inter-
rogated employees,” the judge, relying on McCarty’s testimony, stated
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
In determining whether the questioning of an employ-
ee constitutes an unlawful interrogation, the Board con-
siders the totality of the circumstances, including wheth-
er the employee is an open and active union supporter;
whether there is a history of employer antiunion hostility
or discrimination; the nature of the information sought
(especially if it could result in action against individual
employees); the position of the questioner in the compa-
ny hierarchy; and the place and method of interrogation.
See Rossmore House, 269 NLRB 1176, 1178 fn. 20
(1984), enfd. sub nom. Hotel Employees Local 11 v.
NLRB, 760 F.2d 1006 (9th Cir. 1985); Relco Locomo-
tives, 359 NLRB 1145, 1156 (2013), affd. and incorpo-
rated by reference at 361 NLRB No. 96 (2014); West-
wood Health Care Center, 330 NLRB 935, 939 (2000);
Bourne v. NLRB, 332 F.2d 47, 48 (2d Cir. 1964). The
Board also considers the timing of the interrogation and
whether other unfair labor practices were occurring or
had occurred. See Vista Del Sol Health Services, Inc.
d/b/a Vista Del Sol Healthcare, 363 NLRB No. 135, slip
op. at 17 (2016) (citing Gardner Engineering, 313 NLRB
755, 755 (1994), enfd. as modified on other grounds 115
F.3d 636 (9th Cir. 1997)); see also Seton Co., 332 NLRB
979, 982 (2000) (in finding an unlawful interrogation,
Board noted that “the interrogation occurred against a
background of numerous other unfair labor practic-
es…”); EDP Medical Computer Systems, 284 NLRB
1232, 1264–1265 (1987) (finding that two conversations,
in and of themselves, might not be considered coercive,
but when viewed in the context of the employer’s 8(a)(1)
conduct, the questioning was coercive as it reasonably
tends to color employees’ perception of the character and
reason for the inquiries); see also Greenfield Die & Mfg.
Corp., 327 NLRB 237, 237 (1998) (finding employer’s
interrogation of leading union activists unlawful where it
occurred against a background of other unfair labor prac-
tices, including the discharge of one of them several
months later, and noting that the employer’s statement to
the employees that it did not want a union was likely to
convey the message that it viewed any campaigning by
them with intense displeasure).
Applying and balancing those factors here, we agree
with the judge that Clark’s questioning of McCarty was
unlawful. Clark was a high-ranking official;6 he initiated

that the interaction occurred “the week after the campaign started.” As
noted supra, the campaign began on Monday, September 23. It goes
without saying that the week after the September 23 start date of the
campaign was the week of October 1.
6 While our colleague notes that McCarty and Clark had “a good re-
lationship,” the Board has found that a “supervisor’s statements may be
coercive regardless of his friendship with an employee and regardless
of whether the remark was well intended.” Management Consulting,
Inc., 349 NLRB 249, 250 fn. 6 (2007) (citing Trover Clinic, 280 NLRB
a conversation in which he questioned an active, but not
yet open, union supporter; McCarty, who noticed an in-
crease in management’s presence on the floor around the
same time as this inquiry, did not answer Clark’s ques-
tion;7 and the inquiry occurred at or near the same time
as the Respondent’s unlawful discrimination against un-
ion supporter Patrick Greichen, including his disciplinary
warning and discharge,8 and its unlawfully motivated pay
increase to employees.9
Our dissenting colleague maintains that McCarty was
an open union supporter who “made no effort to hide his
leading role in the organizing campaign.” However, the
record does not support the conclusion that McCarty was
an open union supporter at the time of the interroga-
tion.10 This is true regardless of whether the interroga-

6, 6 fn. 1 (1986), and finding that the “apparently friendly nature” of a
supervisor’s admonition did not negate a finding of coercion); see Acme
Bus Corp., 320 NLRB 458, 458 (1995) (finding that friendly relation-
ship between a supervisor and an employee does not necessarily dimin-
ish the coerciveness of an interrogation), enfd. mem. 198 F.3d 233 (2d
Cir. 1999). As noted supra, the proper test in these circumstances is
whether the supervisor’s comment reasonably tended to interfere with
the employee’s free exercise of Sec. 7 rights. Id. (citing Hanes Hosi-
ery, Inc., 219 NLRB 338 (1975). We find that it did. Additionally,
despite McCarty’s “good relationship” with Clark, it is telling that
McCarty did not feel comfortable telling Clark “what was going on”
with the organizing campaign.
7 See Chipotle Services LLC, 363 NLRB No. 37, slip op. at 11–12
(2015) (finding that “[t]he coerciveness of [an employee’s interrogation
was] evident from the fact that the employee did not answer [a high
ranking supervisor’s] question.”); see also Town & Country Supermar-
kets, 340 NLRB 1410, 1423–1424 (2004) (noting an employee’s eva-
sive responses to an employer’s inquiries supported a finding that in-
quiries were coercive); Regal Recycling, Inc., 329 NLRB 355, 365
(1999) (finding that employees’ denials or failure to respond to interro-
gations support a finding that an employer’s questioning was coercive).
8 See Greenfield Die & Mfg. Corp., supra (relying in part on the dis-
charge of an employee several months later to find earlier interroga-
tions unlawful); Santa Fe Tortilla Co., 360 NLRB 1139, 1140 fn.8
(2014) (“The Board has recognized that a subsequent unfair labor prac-
tice can increase the coerciveness of a preceding interrogation.”).
9 See Masland Industries, 311 NLRB 184 fn. 2 (1993) (finding an
unlawful interrogation where a high management official introduced
the topic of employees’ union involvement and the interrogation fol-
lowed an unlawful threat and was accompanied by a coercive state-
ment); compare Raytheon Co., 279 NLRB 245, 246 (1986) (finding that
employees were unlawfully interrogated even though the fact that an
employee initiated the conversation about the union reduced the poten-
tially coercive effect of the employer’s questioning).
10 In support of its argument that McCarty was an open union sup-
porter at the time of the interrogation, the dissent points to McCarty’s
testimony that “after the cat was out of the bag within—so to speak,
within that first week I was not secret about [the union campaign] at
all.” However, this testimony does not establish that McCarty was
open at the time of the interrogation and he did not disclose his in-
volvement in the organizing campaign to management until January
2014. We acknowledge that management became aware of McCarty’s
involvement from another employee early in the organizing campaign,
but we do not find that management’s awareness equates to openness
on McCarty’s part.
BOZZUTO’S INC. 3
tion occurred on or about October 1 (as the record sup-
ports) or on September 27 (as our colleague asserts).
The judge found that McCarty initially attempted to keep
a low profile when engaged in union activity and stated
that McCarty did not reveal his union activity to the Re-
spondent until sometime “during and after October
2013.” In fact, as noted supra, the record reflects that
McCarty did not disclose his union support until January
2014. We therefore disagree with our colleague’s con-
tention that Clark’s questioning of McCarty is either
comparable to or “less intrusive” than the questioning
found lawful in Rossmore House, supra, where the em-
ployee had identified himself to the employer as a mem-
ber of the in-plant organizing committee and answered
the employer’s inquiries about the union candidly and
without hesitation. See 269 NLRB at 1176, 1178.11
Our colleague also argues that the wage increase and
unlawful discipline should not be considered because
they occurred after the interrogation. However, as noted
supra, our colleague’s timeline is unsupported by the
record. Moreover, even if the interrogation predated the
unlawful wage increase and disciplinary warning by
hours or a couple of days, as our colleague contends, the
Board has found that “a question that might seem innoc-
uous in its immediate context may, in light of later
events, acquire a more ominous tone,” and the Board
may take into account “events or statements that oc-
curred before or after the particular incident in question
that may throw light on its significance.” Westwood

11 Moreover, even if McCarty was an open union supporter at the
time of the interrogation, we would still find the interrogation to be
unlawful. Openness is only one factor to take into consideration, and
we find that the other factors—the identity of the questioner, who was a
high-ranking official; the fact that the interrogation occurred around the
same time as other unfair labor practices; and McCarty’s refusal to
answer the question—weigh in favor of finding a violation. See UNF,
West, Inc., 363 NLRB No. 96 (2016) (citing President Riverboat Casi-
nos of Missouri, Inc., 329 NLRB 77, 78 (1999)). Additionally, even if
McCarty was open at the time of the interrogation, we would still find
Rossmore House, supra, distinguishable because the employer in that
case had not committed any other unfair labor practices when it ques-
tioned an employee about the union. Last, although not determinative,
as noted above, unlike McCarty, the employee in Rossmore responded
to the inquiry candidly and without hesitation.
While our colleague argues that Clark’s question was innocuous, the
Board, after examining the totality of the circumstances, has found
questions less specific than “What’s going on with this union stuff?” to
be coercive. See MDI Commercial Services, 325 NLRB 53, 69–70
(1997) (taking into consideration other unfair labor practices, unlawful
interrogation found where low-level supervisor, who stated that she was
concerned about her job, asked employee “[w]hat’s going on . . . what’s
happening?”); see also Medical Center of Ocean County, 315 NLRB
1150, 1154 (1994) (finding coercive interrogation where low-level
supervisor invited employee, who was not an open union supporter,
into a closed office and asked “[w]hat’s going on . . . what’s happen-
ing?”).
Health Care Center, supra at 940 & fn. 17; see also San-
ta Fe Tortilla Co., supra; Greenfield Die & Mfg. Corp.,
supra (relying in part on an employee’s discharge several
months later to find earlier interrogations unlawful).
Accordingly, the judge appropriately considered and
relied on the October 1 unlawful wage increase and dis-
ciplinary warning in the totality of the circumstances
analysis, and we affirm his finding that Clark’s interroga-
tion of McCarty violated Section 8(a)(1) of the Act.12
Additionally, for the reasons stated in his decision, we
affirm the judge’s finding that the Respondent violated
Section 8(a)(3) and (1) when it suspended and discharged
McCarty.13
2. Patrick Greichen
We affirm the judge’s finding that the Respondent vio-
lated Section 8(a)(1) when it issued employee and union
organizer Patrick Greichen a verbal disciplinary warning
for discussing productivity standards, which affect pay
and discipline, with his coworkers. On October 1, upon
being advised that employees were complaining about
Greichen’s conduct, Vice President Clark requested a
meeting with Greichen to address “negative comments”
Greichen was making in the workplace, including com-
plaints about long hours and needing three legs to work
there. In addition to Clark and Greichen, Manager of
Associate Relations and Development Doug Vaughn and
Bill Glass (job title unknown) attended the meet-
ing. During the meeting Clark issued Greichen a verbal
warning based on his workplace complaints, and gave
him several options, one of which was to resign if he,
Greichen, felt he needed to. On those facts, we agree
with the judge, for the reasons he gives, that this verbal
warning violated Section 8(a)(1).14

12 Our colleague further argues that Greichen’s unlawful discipli-
nary warning cannot be considered in evaluating the interrogation be-
cause the interrogation related to union activity, while Greichen’s dis-
ciplinary warning related to his complaint about production standards.
Our colleague cites no support for his argument that the unfair labor
practices must explicitly relate to the subject of the interrogation, and
we know of none. Rather, the Board considers the totality of the cir-
cumstances, including whether other unfair labor practices were occur-
ring or had occurred. In any event, we find that employees would
reasonably interpret a senior official’s inquiry into union activity to be
coercive where the Respondent unlawfully disciplined a leader of that
union activity who had voiced concerns about working conditions to his
colleagues.
13 Because we find the violation under Wright Line, 251 NLRB
1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert denied, 455 U.S.
989 (1982), we need not pass on our colleague’s alternative rationale
for finding that McCarty’s suspension and discharge violated Sec.
8(a)(3) and (1).
14 We find it unnecessary to pass on the judge’s additional findings
that Greichen’s warning and discharge, discussed below, violated Sec.
8(a)(3), as those findings would not materially affect the remedy.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
We also affirm the judge’s finding that the Respondent
violated Section 8(a)(1) by discharging Greichen for in-
subordination when he refused to attend a subsequent
meeting that was related to the unlawful October 1 warn-
ing. On October 8, Greichen raised his ongoing concerns
about the Respondent’s production standards with his
direct supervisor; in particular, Greichen believed that
the Respondent was manipulating the standards during
peak periods to the disadvantage of employees. Unsatis-
fied with his supervisor’s response, Greichen spoke to
Manager Jason Winans about the standards. Winans
asked Greichen why he continued to work for the Re-
spondent if he was miserable. Shortly thereafter, Winans
advised Clark that Greichen was complaining about pro-
duction standards. Clark testified that he advised Winans
and Vaughn to talk to Greichen and to arrange a meeting
so one of the Respondent’s industrial engineers could
explain to Greichen how the standards were created.
As instructed, Winans told Greichen about the meet-
ing. In response, Greichen referenced the October 1 un-
lawful verbal warning meeting, claimed that he was be-
ing harassed, and refused to attend the meeting. Upon
hearing that Greichen refused to attend the meeting,
Clark instructed Winans to tell Greichen that “you need
to come to a meeting when you’re on the clock being
paid…it’s not unsafe, it’s not against a work rule . . . we
want to explain [the standards] to you . . . the repercus-
sions of [not attending] is insubordination and termina-
tion.” Winans relayed Clark’s message to Greichen, but
Greichen still refused to attend the meeting.15
We agree with the judge that the Respondent’s insist-
ence that Greichen attend the October 8 meeting to dis-
cuss his ongoing concerns about the Respondent’s
productivity standards was an outgrowth of the Respond-
ent’s earlier unlawful warning to Greichen for discussing
those standards with other employees.16 We reject the

15 Our dissenting colleague asserts that Managers Winans and
Vaughn repeatedly assured Greichen that there would be no adverse
consequences if he attended the meeting and that Greichen confirmed
that he understood he would not be disciplined if he attended. But a
recording of Winans’ and Greichen’s conversation prior to the meeting
reflects only that Greichen understood that he would not be discharged
if he attended the meeting, rather than that he would not be disciplined
as he had been just a week earlier.
While our colleague notes that Greichen had willingly attended
meetings with management in the past, he fails to mention that, contra-
ry to Greichen’s previous meetings, this meeting was scheduled on the
heels of one in which his Sec. 7 rights were infringed upon. Greichen
had never before been disciplined for voicing his concerns about work-
ing conditions and this fact makes the October 8 meeting different from
all the other meetings our colleague references.
16 Our dissenting colleague argues that the impetus for the October 8
meeting was not the unlawful October 1 warning. He instead argues
that the October 1 warning was for Greichen’s complaints “about the
Respondent’s production standards,” which the Respondent had revised
Respondent’s argument that it called the meeting to pro-
vide Greichen with correct information about the produc-
tion standards. The evidence shows that the meeting was
not organized in a manner typical to those held to address
complaints about production and safety standards. Jamie
Wright, the industrial engineer Clark directed to partici-
pate in the meeting, testified that, contrary to past prac-
tice, Clark was “vague and [unspecific,] saying [he want-
ed] to have a meeting with an associate about standards.”
Wright asked for more information and Clark declined to
give him any more information, noting only that the
meeting was about standards. Wright testified that he
was not told about the nature of the complaint or given
any information to prepare for the meeting and that it
was “atypically vague” and “frustrating.”17 Moreover, as
the judge found, following Greichen’s discipline, the
Respondent did nothing to mitigate any misinformation
circulating amongst its employees as a result of
Greichen’s comments. If addressing the spread of misin-
formation in the workplace was the Respondent’s true
goal, it would have done more than simply discharge
Greichen. Accordingly, we conclude that the Respond-
ent’s stated reason for the meeting was a pretext, and that
it scheduled the meeting for the purpose of interfering
with Greichen’s protected concerted activity.
In these circumstances, we find that Greichen’s refusal
to attend the meeting, which the Respondent deemed
insubordination, was not a lawful basis for discharging
him. The Board has endorsed the “principle . . . that em-
ployers should not be permitted to take advantage of
their unlawful actions, even if employees may have en-
gaged in conduct that—in other circumstances—might
justify discipline.”18 We have applied that principle in

in July 2013, while the October 8 meeting was a response to Greichen’s
claims that “the Respondent was changing its production standards …
on purpose to cheat employees out of production-based incentive pay.”
But a complaint that production standards were too stringent or re-
quired more work is related to a complaint that the Respondent was
making its standards more difficult to meet and, therefore, that employ-
ees were not able to obtain production-based pay enhancements.
17 Our colleague notes that Wright’s subordinate, David Heatley, al-
so attended the meeting and brought a packet of material, which includ-
ed a 1-page example of Greichen’s work. Heatley did not testify, and
there is no evidence indicating why Heatley chose to include an exam-
ple of Greichen’s work in the packet of materials. In our view, these
facts do not undermine Wright’s testimony or our conclusion that the
stated reason for the meeting was a pretext.
18 Supershuttle of Orange County, Inc., 339 NLRB 1, 3 (2003) (em-
ployer could not lawfully discharge employee based on misconduct
“triggered by and elicited during” unlawfully motivated investigation,
given “clear and direct connection between … employer’s unlawful
conduct and … reason for discipline”) (emphasis in original). See also
Kolkka Tables & Finnish-American Saunas, 335 NLRB 844, 849–850
(2001) (misconduct provoked by employer’s unfair labor practice is not
grounds for discharge).
BOZZUTO’S INC. 5
cases like this one,19 and we accordingly find that the
Respondent’s discharge of Greichen violated Section
8(a)(1), given the clear and direct connection between the
unlawful warning and the purported insubordination.
AMENDED REMEDY
We find that, by disciplining and discharging the two
individuals responsible for bringing the union campaign
to the facility within 4 months of the start of the cam-
paign, the Respondent sent a message to employees that
those who supported the Union did so at their own peril.
Additionally, by unlawfully increasing the wages of eve-
ry unit employee, the Respondent sent a message to em-
ployees that they did not need a union. In light of these
serious unfair labor practices, which began as soon as the
Respondent became aware of the union organizing cam-
paign and affected every unit employee, we order the
Respondent to read aloud the notice to employees during
work time. See North Memorial Health Care, 364
NLRB No. 61, slip op. at 1 (2016) (ordering that the no-
tice be read aloud because of the public nature of the
unfair labor practices, the timing of the violations, and
the involvement of upper management); see Carey Salt
Company, 360 NLRB 201, 201–202 (2014) (finding no-
tice reading appropriate where the employer threatened
to and then withheld a wage increase, and failed and re-
fused to bargain in good faith with the Union). Moreo-
ver, because Vice President of Warehouse, Transporta-
tion and Risk Management Rick Clark committed or was
involved in the majority of the violations, we will require
that the remedial notice be read aloud to the Respond-
ent's employees by Clark (or, if he is no longer employed
by the Respondent, by an equally high-ranking responsi-
ble management official), and in the presence of a Board
agent and an agent of the Union if the Region or the Un-

19 In Metro One Loss Prevention Services Group, Inc., 356 NLRB
89, 102–105 (2010), applying Wright Line, 251 NLRB 1083 (1980),
enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982),
the Board affirmed the judge’s finding that the employer failed to prove
that it would have disciplined an employee for lateness in the absence
of the employee’s union activity. The Board affirmed the judge’s find-
ing that the employee’s subsequent discharge for insubordination,
which stemmed from the employee’s refusal to sign disciplinary warn-
ings, was also unlawful. The judge stated that disciplinary actions
“growing out of [unlawful] warnings [are] also unlawful.” Metro One,
supra at 105. The Board also affirmed the judge’s finding that:
[I]f the warnings were not issued, [the manager] would not have visit-
ed the store to give them to [the employee at issue] and would not
have become involved in a confrontation with him. In the absence of
the confrontation, [the employee] would not have allegedly become
insubordinate either to [the manager] or in the meeting which was
called…at which [the employee] was discharged.
Id. Similarly here, had the unlawful warning not been issued, it is
unlikely that the meeting would have been initiated and, consequently,
there would have been no meeting for Greichen to refuse to attend.
ion so desires, or, at the Respondent's option, by a Board
agent in Clark’s presence and, if the Union so desires, in
the presence of an agent of the Union. See 1621 Route
22 West Operating Company, LLC, d/b/a Somerset Val-
ley Rehabilitation & Nursing Center, 364 NLRB No. 43
(2016); Texas Super Foods, 303 NLRB 209, 220
(1991).20 Further, as noted, in accordance with King
Soopers, Inc., 364 NLRB No. 93 (2016), enfd. in perti-
nent part 859 F.3d 23 (D.C. Cir. 2017), we shall also
order the Respondent to compensate affected employees
for their search-for-work and interim employment ex-
penses regardless of whether those expenses exceed in-
terim earnings. Search-for-work and interim employ-
ment expenses shall be calculated separately from taxa-
ble net backpay, with interest at the rate prescribed in
New Horizons, 283 NLRB 1173 (1987), compounded
daily as prescribed in Kentucky River Medical Center,
356 NLRB 6 (2010). Last, in accordance with our deci-
sion in AdvoServ of New Jersey, Inc., 363 NLRB No.
143, slip op. at 1 (2016), we modify the judge’s recom-
mended tax compensation and Social Security reporting
remedy.
ORDER
The National Labor Relations Board orders that the
Respondent, Bozzuto’s Inc., Cheshire, Connecticut, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging, suspending, or discipline employees
because they engage in protected concerted activities.
(b) Interrogating employees about their support or ac-
tivity for United Food and Commercial Workers Union,
Local 919 or any other labor organization.
(c) Announcing or granting wage increases in order to
dissuade employees from supporting the Union.
(d) Maintaining a policy of conditioning continued
employment on an agreement by employees to refrain
from talking about any discipline that they have received
or from talking about their terms and conditions of em-
ployment.
(e) In any like or related manner interfering with, re-
straining or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.

20 In light of our conclusion that the Respondent’s claim that it dis-
charged Greichen for insubordination was pretext, the discharge was
not “for cause” within the meaning of Sec. 10(c) of the Act. Accord-
ingly, we need not address our dissenting colleague’s discussion of Sec.
10(c), and we deny the Respondent’s request that the judge’s remedy be
modified to exclude Greichen’s reinstatement. We note, however, that
the Board has rejected our colleague’s interpretation of Sec. 10(c) in
prior cases. See Total Security Management, 364 NLRB No. 106, slip
op. at 16-17 (2016); Babcock & Wilcox Construction Co., Inc., 361
NLRB No. 132 , slip op. at 12-13 (2014).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Rescind the rule conditioning continued employ-
ment on an agreement by employees to refrain from talk-
ing about any discipline that they have received or from
talking about their terms and conditions of employment,
and notify the employees in writing that this has been
done and that the rule is no longer in force.
(b) Within 14 days from the date of this Order, offer
Patrick Greichen full reinstatement to his former job or,
if that job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any other
rights or privileges previously enjoyed.
(c) Make Patrick Greichen and Todd McCarty whole
for any loss of earnings and other benefits suffered as a
result of the discrimination against them, in the manner
set forth in the remedy section of the judge’s decision as
amended in this decision.
(d) Compensate Patrick Greichen and Todd McCarty
for the adverse tax consequences, if any, of receiving
lump-sum backpay awards, and file with the Regional
Director for Region 1, within 21 days of the date the
amount of backpay is fixed, either by agreement or
Board order, a report allocating the backpay awards to
the appropriate calendar years for each employee.
(e) Compensate Patrick Greichen and Todd McCarty
for their search-for-work and interim employment ex-
penses regardless of whether those expenses exceed in-
terim earnings.
(f) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful actions
against Patrick Greichen and Todd McCarty, and within
3 days thereafter, notify the employees in writing that
this has been done and that the unlawful actions will not
be used against them in any way.
(g) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(h) Within 14 days after service by the Region, post at
its Cheshire, Connecticut facility, copies of the attached
notices marked “Appendix.”21 Copies of the notice, on

21 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted [Mailed] by Order of
the National Labor Relations Board” shall read “Posted [Mailed] Pur-
suant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board.”
forms provided by the Regional Director for Region 1,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. In addition to physical posting of paper
notices, notices shall be distributed electronically, such
as by email, posting on an intranet or an internet site,
and/or other electronic means, if the Respondent custom-
arily communicates with its employees by such means.
Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or cov-
ered by any other material. If 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 em-
ployees and former employees employed by the Re-
spondent at any time since October 1, 2013.
(i) Within 14 days after service by the Region, hold a
meeting or meetings, which shall be scheduled to ensure
the widest possible attendance of unit employees, at
which time the attached notice marked “Appendix” is to
be publicly read by Rick Clark, the Respondent’s vice
president of warehouse, transportation and risk manage-
ment (or, if he is no longer employed by the Respondent,
by a high-ranking responsible management official of the
Respondent) in the presence of a Board agent and an
agent of the Union if the Region or the Union so desires,
or, at the Respondent’s option, by a Board agent in
Clark’s presence and, if the Union so desires, the pres-
ence of an agent of the Union.
(j) Within 21 days after service by the Region, file
with the Regional Director for Region 1 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
Dated, Washington, D.C. December 12, 2017
______________________________________
Mark Gaston Pearce, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
CHAIRMAN MISCIMARRA, concurring in part and dissenting
in part.
BOZZUTO’S INC. 7
I concur with my colleagues’ finding that the Re-
spondent violated Section 8(a)(3) and (1) of the National
Labor Relations Act (NLRA or Act) when it suspended
and later discharged employee Todd McCarty.1 I also
concur with their finding that the Respondent violated
Section 8(a)(1) of the Act by issuing a written warning to
employee Patrick Greichen on October 1, 2013.2 I dis-

1 In finding that McCarty’s suspension and discharge violated Sec.
8(a)(3) and (1), the judge applied Wright Line, 251 NLRB 1083 (1980)
(subsequent history omitted), and my colleagues adopt the judge’s
finding “for the reasons stated in his decision.” I believe the appropri-
ate standard to apply is the “cat’s paw” theory of liability. See Staub v.
Proctor Hospital, 562 U.S. 411 (2011). There is no evidence that the
person who made the decision to discharge McCarty was motivated by
animus against McCarty’s union activities. However, in Staub, the
Supreme Court held that an employer is liable for employment discrim-
ination if a supervisor performs an act motivated by discriminatory
animus that is intended by the supervisor to cause an adverse employ-
ment action, and that act is a proximate cause of the ultimate employ-
ment action. Id. at 422. These elements exist here.
After October 8, 2013, McCarty was the only remaining active sup-
porter of the Union at the Respondent’s facility. The judge found that
during and after the month of October, McCarty repeatedly disclosed
his pro-union stance to supervisory personnel, and as discussed below,
his role was well known to supervisors even before October. In early
January 2014, McCarty discovered that his down time was being delet-
ed from his production records, which had the effect of depressing his
productivity score and making it appear that he was falling short of the
required production level. The judge reasonably inferred that
McCarty’s production records were being altered by a supervisor or
manager (since only supervisors and managers typically access the
computer program on which those records are maintained), and whoev-
er altered McCarty’s records must have intended to cause an adverse
employment action (since falling short of the required production level
subjects an employee to discipline or discharge). Moreover, the timing
of the alterations in relation to McCarty’s open declarations of support
for the Union and the fact that McCarty was the only remaining em-
ployee who openly supported the Union warrant an inference that who-
ever was altering McCarty’s records was motivated by animus against
his union activities or sympathies. On January 15, McCarty was sus-
pended for failing to meet production standards, and on February 18, he
was discharged for the same reason. Even if the manager or managers
who made the decision to suspend and discharge McCarty based those
decisions solely on his production records—and there is no evidence
that the decision-maker relied on anything else—the supervisor who
altered those records was motivated by discriminatory animus, and the
alteration of those records was a proximate cause of McCarty’s suspen-
sion and discharge. Accordingly, applying the test set forth in Staub, I
find that McCarty’s suspension and discharge violated the Act.
2 In finding the warning issued to Greichen violated Sec. 8(a)(1), the
judge applied a motive-based analysis. Greichen had been complaining
to his coworkers that the Respondent’s production standards were too
exacting. The judge found that those complaints constituted protected
concerted activity and that the warning was unlawfully motivated by
Greichen’s protected concerted complaints. My colleagues adopt the
judge’s rationale. I agree that the warning was unlawful, but in doing
so I find it unnecessary to reach or pass on whether Greichen’s com-
plaints to his coworkers were protected concerted activity. Rather, I
rely on the wording of the warning itself, which required Greichen to
“follow a communication process . . . to the appropriate personnel, not
making negative comments in the work force without trying to address
the issue with management.” Regardless of whether Greichen had
sent, however, from my colleagues’ finding that the Re-
spondent coercively interrogated McCarty, and I also
dissent from their finding that the Respondent violated
the Act when it suspended and subsequently discharged
Greichen. In addition, I would affirm the judge’s sound
decision that an extraordinary notice-reading remedy is
not warranted even if the Respondent committed all the
unfair labor practices the judge and my colleagues find.
1. The evidence does not establish that the Respondent
coercively interrogated employee McCarty.
Todd McCarty, a selector at the Respondent’s food
distribution facility, was an open and active union sup-
porter. From the first week of the union organizing ef-
fort, McCarty made no effort to hide his leading role in
the campaign. In the campaign’s first few days, Rick
Clark, one of the Respondent’s senior vice presidents,
approached McCarty and asked, “What’s going on with
this union stuff?” McCarty confidently responded, “I am
not going to talk about it with you[,] Mr. Clark.” Clark
put up his hands and replied, “OK.” That was it.
For an employer’s question to interfere with, restrain,
or coerce an employee in exercising the rights conferred
by NLRA Section 7 in violation of NLRA Section
8(a)(1), “either the words themselves or the context in
which they were used must suggest an element of coer-
cion or interference.” Rossmore House, 269 NLRB
1176, 1177 (1984), affd. sub nom. HERE Local 11 v.
NLRB, 760 F.2d 1006 (9th Cir. 1985). To determine
whether questioning is unlawfully coercive, the Board
applies the “totality of circumstances” test articulated in
Rossmore House, supra at 1176–1178, including the so-
called “Bourne factors,” so denominated after the Second
Circuit’s decision in Bourne v. NLRB, 332 F.2d 47 (2d
Cir. 1964), which factors the court of appeals character-
ized as “fairly severe standards,” id. at 48: (1) the back-
ground of the question, i.e., whether there was an atmos-
phere of employer hostility and discrimination toward
the union; (2) the nature of the information sought, i.e.,
whether the employer was seeking information that could
have been used to take action against individual employ-

engaged in concerted activity to that point—i.e., regardless of whether
he had been seeking to initiate, induce, or prepare for group action
(concerted activity) or had been engaging in mere griping about the
standards (not concerted activity), see Mushroom Transportation Co. v
NLRB, 330 F.2d 683 (3d Cir. 1964)—the warning issued to Greichen
required him to bring all complaints about terms and conditions of
employment to management first before speaking about them to his
fellow employees, and this unlawfully interfered with Greichen’s right
to engage in protected concerted activity going forward. See, e.g.,
Kinder-Care Learning Centers, 299 NLRB 1171, 1172 (1990) (finding
unlawful employer’s rule requiring employees to bring work-related
complaints to the employer first). On this basis, I find the October 1,
2013 warning issued to Greichen unlawful.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
ees supporting the union; (3) the identity of the question-
er, i.e., the rank of the employer representative asking the
question; (4) the place and method of the interrogation,
e.g., whether the employee was directed to leave his or
her work station and report to a manager’s office for
questioning; and (5) the truthfulness of the employee’s
reply. Id.; see Rossmore House, 269 NLRB at 1178 fn.
20.3 The Board has also considered the timing of the
employer’s inquiry and whether the questioned employee
is an open and active union supporter. See, e.g., Vista
Del Sol Health Services, Inc., 363 NLRB No. 135, slip
op. at 17 (2016). The Board has recognized, however,
that supervisors and employees will discuss union organ-
izing efforts, which prompted the Board to quote approv-
ingly the observation of the Third Circuit that “‘[t]o hold
that any instance of casual questioning concerning union
sympathies violates the Act ignores the realities of the
workplace.’” Rossmore House, 269 NLRB at 1177
(quoting Graham Architectural Products v. NLRB, 697
F.2d 534, 541 (3d Cir. 1983)).
Applying the totality-of-the-circumstances test to the
facts of this case, I believe that Clark’s isolated and brief
question was not a violation of federal law. The sole
Bourne factor that might favor an unfair labor practice
finding is number three, the identity of the questioner:
Clark is a senior vice-president (albeit someone with
whom McCarty had a good relationship).4 All of the
other factors are either neutral or point the other way.
Factor 1: At the time the question was asked, there was
no atmosphere of employer hostility toward the Union.
Indeed, there is no evidence that the Respondent had so
much as voiced opposition to the Union or to unions
generally prior to September 27, 2013,5 the date alleged
by the General Counsel as when Clark asked McCarty
his brief question. As of October 1, the date my col-
leagues say the question was asked, the Respondent had
encouraged employees not to sign union authorization
cards and stated that “we do not need a union at Boz-
zuto’s,” but the Act precludes the Board from relying on
these statements to support a finding that Clark’s ques-
tion was unlawful.6 Factor 2: Clark was not seeking

3 The Board instructed that the Bourne factors “are not to be me-
chanically applied,” stating that the applicable test is “whether under all
the circumstances the interrogation reasonably tends to restrain, coerce,
or interfere with rights guaranteed by the Act.” Rossmore House, 269
NLRB at 1178 fn. 20.
4 My colleagues say that the concededly friendly relationship be-
tween McCarty and Clark does not eliminate the possibility that the
latter’s question was coercive. I do not suggest that it does. Rather,
their friendly relationship is one factor among others supporting my
finding that Clark’s brief and isolated question was not unlawful.
5 All dates herein are 2013.
6 See NLRA Sec. 8(c) (providing that “[t]he expressing of any
views, argument, or opinion, or the dissemination thereof, whether in
information that could have been used to take action
against supporters of the Union. He merely asked,
“What’s going on with this union stuff?”7 Factor 4: The
judge found that McCarty “was approached by” Clark,
who apparently asked the question in a working area.
There is no evidence that McCarty was questioned in a
manager’s office or otherwise surreptitiously. Factor 5 is
neutral: McCarty’s answer was neither truthful nor un-
truthful. He simply refused to answer the question—but
he made no attempt to conceal his support for the Union,
and his refusal was forthright and confident.8

written, printed, graphic, or visual form, shall not constitute or be evi-
dence of an unfair labor practice under any of the provisions of this Act,
if such expression contains no threat of reprisal or force or promise of
benefit” (emphasis added)). Sometime on October 1, the Respondent
also unlawfully increased employees’ wages and unlawfully disciplined
Greichen. However, Greichen was not disciplined for union activity;
and while a wage increase might take the wind out of the sails of an
organizational effort, it would not create an atmosphere of employer
hostility and discrimination toward the Union. Thus, regardless of
whether Clark asked the question on September 27 or October 1, the
first Bourne factor does not weigh in favor of finding the exchange
between Clark and McCarty coercive.
7 Clark’s question was no more objectionable than the manager’s
question found lawful in Rossmore House itself (“What is this about a
union?”), and it was clearly less intrusive than the owner’s inquiry also
found lawful in Rossmore House, where the owner asked an employee
why he was “trying to get a union in here.” 269 NLRB at 1176, 1178.
My colleagues say that in MDI Commercial Services, 325 NLRB 53
(1997), enfd. in relevant part 175 F.3d 621 (8th Cir. 1999) and Medical
Center of Ocean County, 315 NLRB 1150 (1994), the Board found
questions less specific than Clark’s to be coercive. These cases are
inapposite. In Medical Center of Ocean County, the Board found that
the “studiously ambiguous” question posed—“What’s going on; what’s
happening?”—in the circumstances in which it was posed—behind
closed doors and directed to an “unsuspecting employee” who was not
an open union supporter—“related to [the supervisor’s] desire to know
about either or both [the employee’s] union sympathies or union activi-
ties in the shop.” 315 NLRB at 1154. Here, in contrast, Clark was
already aware of McCarty’s union sympathies, and the judge correctly
found Clark’s question “an offhand and somewhat innocuous com-
ment” (rendered unlawful, in the judge’s view, solely by its temporal
proximity to the wage increase and Greichen’s discipline and dis-
charge). In MDI Commercial Services, the Board found a coercive
interrogation despite the inspecificity of the question posed based on
the surrounding circumstances, including that the questioned employee
had just been unlawfully directed to “stop talking” about the union and
previously had been subjected to a plant closure threat. 325 NLRB at
69–70. There are no such circumstances here.
8 My colleagues cite Chipotle Services, LLC, 363 NLRB No. 37
(2015); Town & Country Supermarkets, 340 NLRB 1410, 1423–1424
(2004); and Regal Recycling, Inc., 329 NLRB 355, 365 (1989), as
support for their position that McCarty’s refusal to answer Clark’s
question was evidence of unlawful coercion. The cases are materially
dissimilar. In Chipotle Services, an employee and open union activist
told a coworker, Mandernach, that a third employee was making $11 an
hour. Mandernach became upset. A supervisor appeared and asked
Mandernach who told him the third employee made $11 an hour, and
“Mandernach did not reply.” 363 NLRB No. 37, slip op. at 5. Like-
wise, in Regal Recycling, supervisors asked employees which of their
co-workers had called a union and inquired whether the employees had
BOZZUTO’S INC. 9
In addition, McCarty was one of the Union’s most ac-
tive supporters. My colleagues say that McCarty was not
an open supporter of the Union at the time of his fleeting
exchange with Clark. McCarty testified to the contrary,
stating that “within that first week [i.e., the week of Sep-
tember 23] I was not secret about it [the union campaign]
at all. I’d rather have been out in the open than cower-
ing.”9 Thus, regardless of whether the exchange took
place on September 27 or October 1, McCarty by his
own account was openly supporting the Union at the
time.
Consistent with the above evidence, the judge recog-
nized that Clark’s question “might be viewed as an off-
hand and somewhat innocuous comment.” But without
evaluating the totality of the circumstances as required
under Rossmore House, the judge abruptly concluded
that the question was unlawful on the basis that it was
temporally proximate to an unlawful wage increase10 and
the “unlawful discrimination against Greichen.” My
colleagues affirm the judge’s conclusion, relying in part
on the same considerations. I am unpersuaded by the
judge’s and my colleagues’ reasoning, and I would find
that the Respondent did not coercively interrogate
McCarty.
First, even if the exchange between Clark and McCarty
occurred on October 1, the General Counsel did not es-
tablish that it occurred after the wage increase was an-
nounced or Greichen was disciplined. I do not believe
that events postdating a question can reasonably consti-
tute circumstances that support finding the question co-
ercive.11
Second, even if events postdating a union-related ques-
tion may be taken into consideration in determining
whether the question was coercive, Greichen’s October 1
warning had nothing to do with union activity. Greichen
was warned about complaining to coworkers about pro-
duction standards. Even if those complaints were pro-
tected concerted activity—and I do not reach or pass on

signed authorization cards. The employees either did not respond or
denied having signed cards. In Town & Country, an employee gave
evasive answers to a supervisor’s questions. Here, in contrast, McCarty
replied to Clark’s question and did so in a clear and forthright manner,
stating: “I am not going to talk about it with you[,] Mr. Clark.” This
confident declaration shows that McCarty was anything but coerced.
9 McCarty also testified that from the outset of the union campaign,
Greichen was openly supporting the Union to the point of “grandstand-
ing.” Thus, McCarty’s testimony contradicts the majority’s finding that
“McCarty and Greichen . . . tried to keep their union activity under the
radar.”
10 There are no exceptions to the judge’s finding that the wage in-
crease was unlawful.
11 I recognize that a Board majority held to the contrary in Medcare
Associates, Inc., 330 NLRB 935, 940 & fn. 17 (2000). I disagree with
that holding.
that issue, see supra fn. 2—they were not union activity.
I do not believe that employees would reasonably con-
nect a warning directed at nonunion activity with a ques-
tion about “this union stuff.” Moreover, Greichen’s
well-deserved reputation as (in McCarty’s words) a
“character” and a “hothead” who was prone to “rants”
and could become “agitated” makes it even less likely
that a warning issued to Greichen would have come as a
surprise to anyone, least of all McCarty.12 Besides, there
is no evidence that McCarty was even aware—either
before or after his exchange with Clark—of the wording
in Greichen’s warning that rendered it unlawful, i.e., the
requirement that Greichen bring all complaints about
terms and conditions of employment to management
before speaking about them to his fellow employees. For
these reasons as well, I believe Greichen’s October 1
warning should be accorded no weight in the Rossmore
House analysis.13 And for the reasons explained below,
Greichen was lawfully suspended and discharged on Oc-
tober 8 for insubordination, and lawful discipline cannot
reasonably constitute a circumstance that renders a ques-
tion coercive.
Accordingly, I would dismiss the allegation that
McCarty was coercively interrogated in violation of
NLRA Section 8(a)(1).

12 Indeed, McCarty testified that he discussed with the union organ-
izer how best to control Greichen in employee meetings.
13 This leaves the October 1 wage increase as the sole “background”
unfair labor practice potentially relevant to the analysis. My colleagues
cite several cases for the proposition that a background of unfair labor
practices is relevant to determining whether an interrogation that takes
place against such a background is coercive and thus unlawful. I agree
that a background of serious unfair labor practices is a relevant consid-
eration in a Rossmore House totality-of-the-circumstances analysis, see,
e.g., Sproule Construction Co., 350 NLRB 774, 774 fn. 2 (2007), but
the cases my colleagues cite featured violations far more serious than
the October 1 wage increase. Thus, the questions in Seton Co. were
posed “against a background of . . . threats of plant closure, discharge,
and more onerous working conditions.” 332 NLRB 979, 982 (2000).
In Masland Industries, the interrogation of employee-driver Freels
“followed an unlawful threat . . . to close the trucking operation . . . .”
311 NLRB 184, 184 fn. 2 (1993). In EDP Medical Computer Systems,
the violations included threats of plant closure, threats of discharge and
blacklisting, threats of futility (i.e., that the respondent would never
recognize or negotiate with the union), threats to eliminate existing
benefits, and threats to enforce workplace rules more strictly. 284
NLRB 1232, 1264-1265 (1987). These cases are simply not on a par
with the instant case. My colleagues also cite Vista Del Sol Health
Services, Inc., supra, 363 NLRB No. 135, for the proposition that
“whether other unfair labor practices were occurring or had occurred”
is relevant to determining whether questioning is coercive. In fact, the
Board in Vista Del Sol stated that the relevant consideration was
whether there was “a history of . . . discrimination against union activi-
ty.” Id., slip op. at 17. There is no such history in this case.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
2. The evidence does not establish that Greichen’s sus-
pension and discharge were unlawful.
The judge found that the Respondent violated the Act
when it suspended and discharged employee Patrick
Greichen on October 8 for insubordination, reasoning
that the suspension and discharge were “inextricably
bound up [with] the Company’s earlier unlawful warning
on October 1, which was issued because of Greichen’s
protected concerted activity.”14 My colleagues affirm the
judge’s finding, stating that “the Respondent’s insistence
that Greichen attend the October 8 meeting to discuss his
ongoing concerns about the Respondent’s productivity
standards was an outgrowth of the Respondent’s earlier
unlawful warning to Greichen for discussing those stand-
ards with other employees.”
As noted above, I agree that the warning issued to
Greichen on October 1 was unlawful, but I believe this
violation finding is warranted by the wording of the
warning. I do not agree that the conduct for which
Greichen was disciplined—complaining to coworkers
about production standards—was protected concerted
activity; in my view, Greichen was engaged in mere grip-
ing, which is not “concerted” activity by two or more
employees undertaken for the “purpose” of “mutual aid
or protection” (NLRA Sec. 7). See fn. 2, supra.
However, even if the complaints for which Greichen
was disciplined on October 1 constituted NLRA-
protected activity, I do not agree that Greichen’s October
8 discharge violated the Act. Moreover, even if the dis-
charge constituted a violation, I believe the appropriate
remedy here would be an order to cease and desist the
unlawful conduct, without an order granting reinstate-
ment and backpay.
(a) The proximate cause of the October 8 meeting was
not the October 1 warning; it was Greichen’s unsubstan-
tiated claim that the Respondent was cheating employees
out of their pay. I disagree with my colleagues that the
October 1 warning was the “but for” or proximate cause
of the October 8 meeting. The warning and the meeting
arose from very different circumstances. On October 1,
Greichen was warned for complaining to coworkers
about the Respondent’s production standards. On Octo-
ber 8, Greichen was summoned to a meeting after the
Respondent learned that Greichen was spreading
throughout the workforce the unsubstantiated claim that
the Respondent was changing its production standards on
busy days on purpose to cheat employees out of produc-

14 For ease of reference, and because the suspension and discharge
are not analytically distinct for purposes of determining their lawful-
ness, I will simply refer to these two adverse employment actions in the
singular as “discharge.”
tion-based incentive pay.15 This should go without say-
ing, but I will say it anyway: complaining that Respond-
ent’s production standards are too demanding and accus-
ing the Respondent of being a wage cheat are very dif-
ferent matters, and there is no evidence that the summons
to the October 8 meeting would not have issued absent
the prior warning.
(b) Even if the October 8 meeting would not have been
scheduled absent the October 1 warning, the proximate
cause of Greichen’s discharge was his insubordination.
Even if one accepts the speculative contention that the
October 8 meeting was an outgrowth of—i.e., would not
have taken place without—the prior warning, the fact
remains that Greichen insubordinately refused to attend
the meeting—not once, but three times, and after having
been warned that his refusal would be deemed insubordi-
nation. That conscious and deliberate choice, not the
October 1 warning, was the proximate cause of
Greichen’s discharge. And the fact that the warning was
unlawful did not give Greichen a license to commit in-
subordination, nor did it immunize him from discipline
for his misconduct.
Here is what occurred on October 8. Greichen’s su-
pervisor gave Greichen two work assignments that, like
virtually all tasks at the Respondent’s facility, were to be
completed in a certain amount of time. The Respond-
ent’s industrial engineers had calculated standard times
for specific tasks using accepted engineering methods.
Greichen complained to his supervisor that the times for
his tasks were too short. He then took his concerns to
Jason Winans, the Respondent’s grocery distribution
manager. During his discussion with Winans, Greichen
alleged that the Respondent was intentionally altering the
standard times on busy days in order to cheat employees
out of production-based compensation. Greichen also
said that he was saying the same thing to “anybody and
everybody he can,” and he threatened to “get back” at the
Respondent by initiating legal proceedings.
Given the seriousness of these charges and the fact that
Greichen was spreading them throughout the workplace
and threatening legal proceedings, Winans decided to
inform Senior Vice President Clark. Winans, of course,
could not responsibly have done otherwise. After hear-

15 No party contends that Greichen’s claim was true.
Had Greichen attended it, the October 8 meeting would have been
one more in a lengthy series of meetings—long predating the union
campaign—between Greichen and the Respondent regarding his
longstanding complaints about production standards. There is no evi-
dence that Greichen found these meetings to be threatening. Indeed, he
often received added incentive pay as a result of his complaints. Of
course, the conduct giving rise to the October 8 meeting was of a dif-
ferent order of magnitude than Greichen’s previous complaints, as
explained in the text.
BOZZUTO’S INC. 11
ing Winans’ report, Clark arranged a meeting for 3:45
p.m. that day, the purpose of which was to explain, for
Greichen’s benefit, how the standard times for various
tasks were determined. The attendees were to be
Greichen, Clark, vice president of human resources Carl
Koch, employee-management liaison Doug Vaughn, and
industrial engineers James Wright and David Heatley.16
Clark asked Winans to inform Greichen of the sched-
uled meeting. When Winans did so, Greichen replied
that he would not attend. At Clark’s direction, Winans
and Vaughn then told Greichen that the meeting was
mandatory, that he would be paid for attending, and that
an industrial engineer would explain the basis for the
standard times. Greichen again replied that he would not
attend.
At Clark’s further direction, Winans and Vaughn re-
peatedly assured Greichen that there would be no adverse
consequences if he went to the meeting,17 but they in-
formed Greichen that a refusal to attend the meeting on
paid time would be regarded as insubordination.
Greichen confirmed that he understood he would not be
disciplined if he attended and he would be discharged if
he did not attend. He also acknowledged that not attend-
ing would be insubordination and that termination was
the standard penalty for such an offense. Still, and for
the third time, he refused to obey the directive to attend.
As a result, he was suspended for insubordination on
October 8 and discharged for the same reason at a later
date.18
To establish a prima facie case that Greichen’s dis-
charge violated Section 8(a)(1), the General Counsel had
to make a showing “sufficient to support the inference
that protected conduct was a ‘motivating factor’” in the
decision to discharge Greichen.19 Yet, as the above facts
demonstrate, Greichen was discharged for his insubordi-

16 My colleagues contend that this meeting was not organized like
most meetings concerning production standards and that Wright was
given only “vague” information. This overlooks that another engineer,
Heatley, also was asked to attend. Heatley brought a packet of materi-
al, including a page of Greichen’s production statistics, to use at the
meeting.
17 The majority asserts that Greichen was told only that he would
not be terminated if he attended the meeting. The undisputed evidence
shows, however, that Greichen was repeatedly assured that there would
be no adverse consequences if he participated.
1 8 Greichen surreptitiously recorded his various discussions with
the Respondent’s representatives on October 8. Thus, there is no dis-
pute about what was said. The recording reveals that Greichen never
gave Winans or Vaughn a reason or excuse for not attending the meet-
ing. During the hearing, Greichen testified that he did not want to hear
what the Respondent had to say and that in his view, attending the
meeting might have been at odds with a complaint he had filed with the
Wage-Hour Division of the United States Department of Labor. That
complaint was later dismissed.
19 Wright Line, supra, 251 NLRB at 1089.
nate refusal to attend the October 8 meeting. Neither the
judge nor my colleagues find that Greichen engaged in
NLRA-protected activity on October 8. Rather, they find
that Greichen made NLRA-protected complaints to his
coworkers for which he was unlawfully warned on Octo-
ber 1, and they bootstrap that unlawful warning into a
finding that the October 8 discharge was also unlawful
on the basis that the discharge was “inextricably bound
up” with the October 1 warning (according to the judge),
or that “the Respondent’s insistence that Greichen attend
the October 8 meeting to discuss his ongoing concerns
about the Respondent’s productivity standards was an
outgrowth of the Respondent’s earlier unlawful warning
to Greichen for discussing those standards with other
employees” (according to my colleagues).
As noted above, there is no evidence that the October 1
warning was the “but for” or proximate cause of the Re-
spondent’s decision to summon Greichen to a meeting on
October 8—no evidence that, in my colleagues’ organic
metaphor, the summons to the meeting was an “out-
growth” of the warning. To the contrary, the just-recited
narrative shows that the summons to the meeting resulted
directly from the Respondent’s discovery that Greichen
was spreading among his coworkers—to “anybody and
everybody” he could—the unsubstantiated claim that the
Respondent was changing production standards on busy
days to cheat employees out of production-based incen-
tive pay. But even if one were to accept the judge’s and
my colleagues’ finding to the contrary, any causal link
between the October 1 warning and Greichen’s discharge
was decisively broken by Greichen’s act of insubordina-
tion. As recounted above, the record shows that Re-
spondent gave Greichen a lawful directive to attend a
work-related meeting on paid time. The Respondent
explained the meeting’s purpose and repeated the di-
rective three times. The Respondent also placed
Greichen on notice that refusing to attend would be treat-
ed as insubordination, at the same time assuring him that
he would not be disciplined if he did attend.20 Greichen
acknowledged he understood that he would be dis-
charged if he did not attend the meeting, and then pro-
ceeded to refuse to attend a third and final time. Given
these facts, I cannot agree with my colleagues’ decision
to attribute the discharge to the prior unlawful warning
instead of to Greichen’s unfortunate but conscious and
deliberate choice to disobey a direct order.21

20 One of the Respondent’s human resources managers made an ex-
tended effort to avoid a confrontation and to tactfully persuade
Greichen to attend the meeting.
21 The cases on which the majority relies are distinguishable. In
Metro One Loss Prevention Services Group, 356 NLRB 89 (2010), an
employee was discharged for refusing to sign unlawful warnings. Id. at
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
(c) Even if Greichen would not have been discharged
absent the prior unlawful warning, Greichen was dis-
charged for “cause,” and Section 10(c) precludes the
Board from ordering reinstatement and backpay. Even
if one were to accept that Greichen would not have been
discharged were it not for the unlawful October 1 warn-
ing—and for the reasons stated above, I do not accept
this claim—my colleagues still cannot lawfully order
Greichen reinstated with backpay. Section 10(c) of the
Act precludes these remedies. Greichen was discharged
for insubordination; unquestionably, insubordination is
“cause” for discharge;22 and Section 10(c) states, in rele-
vant part, that “[n]o order of the Board shall require the
reinstatement of any individual as an employee who has
been suspended or discharged, or the payment to him of
any back pay, if such individual was suspended or dis-
charged for cause.”23 Accordingly, my colleagues are

102–106. Here, Greichen was discharged for refusing to obey a lawful
order to attend a meeting. In Supershuttle of Orange County, Inc., 339
NLRB 1 (2003), an employee was discharged for misrepresentations he
made in the course of an unlawfully motivated investigation, prompting
the Board majority to find the discharge unlawful on the basis that the
misrepresentations “did not exist independently of the unlawfully moti-
vated investigation.” Id. at 3. Here, Greichen was discharged for in-
subordination in refusing to attend a lawful meeting that did “exist
independently of” the prior unlawful warning, given the very different
actions prompting the warning (complaints about production standards)
and the meeting (claims that the Respondent is a wage cheat). (I also
agree with former Chairman Battista, who relevantly dissented in Su-
pershuttle of Orange County, that even if an investigation is discrimina-
torily motivated, that “does not give a license to an employee to lie to
his employer.” Id. at 4.) Finally, my colleagues cite Kolkka Tables &
Finnish-American Saunas, 335 NLRB 844 (2001), for the proposition
that “misconduct provoked by employer’s unfair labor practice is not
grounds for discharge.” Greichen’s insubordination was not provoked
by an unfair labor practice. Indeed, it was not provoked at all.
Greichen disobeyed a directive to attend a lawful meeting called be-
cause he was claiming that production standards were being altered to
cheat employees out of incentive pay. The fact that the Respondent had
previously issued Greichen an unlawful warning for complaining that
production standards were too stringent does not constitute evidence
that the warning “provoked” the insubordination.
22 In industrial settings like the Respondent’s facility, insubordina-
tion has long been regarded as a termination offense. Tolerating open
disobedience of lawful and reasonable orders would jeopardize good
order, production and safety. See Adolph M. Koven & Susan L. Smith,
Just Cause: The Seven Tests, 3d ed. (BNA Books 2006); John E. Duns-
ford, Arbitral Discretion: The Tests of Just Cause, Proceedings of the
42d Annual Meeting, National Academy of Arbitrators, ed. Gladys W.
Gruenberg 23-50 (BNA Books 1990) (discussing and appending copy
of Whirlpool Corp., 58 LA 421 (Daugherty, Arb., 1972)); Roger I.
Abrams & Dennis R. Nolan, Toward a Theory of “Just Cause” in
Employee Discipline Cases, 1985 Duke L.J. 594 (1985).
23 “The legislative history of [Sec. 10(c)] indicates that it was de-
signed to preclude the Board from reinstating an individual who had
been discharged because of misconduct.” Fibreboard Paper Products
Corp. v. NLRB, 379 U.S. 203, 217 (1964). Indeed, that history shows
Congress intended to preclude reinstatement and back pay for employ-
ees discharged for cause even if the grounds for termination were acts
without authority to order the Respondent to reinstate
Greichen and to pay him backpay.
My colleagues’ finding that Greichen would not have
been discharged but for the Respondent’s prior unfair
labor practice does not give rise to an exception to the
statutorily compelled rule. Consistent with Section
10(c), the Board has held that it cannot order reinstate-
ment or backpay for employees discharged for cause,
even where that cause would not have been discovered
absent the commission by the employer of an unfair la-
bor practice. Thus, in Anheuser-Busch, Inc., 351 NLRB
644 (2007), the employer violated Section 8(a)(5) by
installing hidden surveillance cameras without giving the
union prior notice and an opportunity to request bargain-
ing. Subsequently, by means of the illegally installed
cameras, the employer detected employees engaging in
illegal drug use, and the employer discharged them. Alt-
hough the drug use would not have been detected but for
the employer’s unfair labor practice, the Board found that
Section 10(c) precluded reinstatement and back pay for
the discharged employees because their illegal drug use
was “cause” for their discharge.24 Similarly, in Taracorp
Industries, 273 NLRB 221 (1984), the Board withheld a
make-whole remedy for an employee discharged for in-
subordination based on information obtained during an
investigatory interview, even though the employer ob-
tained the employee’s admission that he had refused to
obey a work-related order after unlawfully denying the
employee’s request for a Weingarten representative.25

committed in the course of protected activity. The Supreme Court in
Fibreboard quoted as follows from Sec. 10(c)’s legislative history:
The House Report states that [Sec. 10(c)] was “intended to put an end
to the belief, now widely held and certainly justified by the Board’s
decisions, that engaging in union activities carries with it a license to
loaf, wander about the plants, refuse to work, waste time, break rules,
and engage in incivilities and other disorders and misconduct.” H.R.
Rep. No. 245, 80th Cong., 1st Sess., 42 (1947). The Conference Re-
port notes that under § 10(c) “employees who are discharged or sus-
pended for interfering with other employees at work, whether or not in
order to transact union business, or for engaging in activities, whether
or not union activities, contrary to shop rules, or for Communist activi-
ties, or for other cause (interfering with war production) . . . will not be
entitled to reinstatement.” H.R. Conf. Rep. No. 510, 80th Cong., 1st
Sess., 55 (1947).
Fibreboard, 379 U.S. at 217 fn. 11.
24 The Board in Anheuser-Busch distinguished Kolkka Tables &
Finnish-American Saunas, a case on which my colleagues rely, because
it was not clear that the employees’ actions there would have constitut-
ed “cause” for discharge if the employer had not committed the unfair
labor practices. Id. at 649.
25 See NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975) (holding
that it is an unfair labor practice for an employer to conduct an investi-
gatory interview after denying an employee’s request that a union rep-
resentative be present at the interview, where the employee reasonably
believes that the interview might result in discipline).
BOZZUTO’S INC. 13
Accordingly, the Board cannot order reinstatement and
backpay for Greichen, similarly discharged for insubor-
dination, even if he would not have been discharged ab-
sent the Respondent’s prior unlawful warning.26
In sum, (i) the proximate cause of the Respondent’s
decision to convene a meeting on October 8 was not the
unlawful October 1 warning, but Greichen’s unsubstanti-
ated accusation that the Respondent was changing pro-
duction standards on busy days to cheat employees out of
incentive pay; (ii) even if the October 8 meeting would
not have been called absent the prior unlawful warning,
the proximate cause of Greichen’s discharge was not the
warning but Greichen’s insubordinate refusal to attend
the meeting; and (iii) even if Greichen would not have
been discharged absent the prior unlawful warning, he
was discharged for “cause”—insubordination—and Sec-
tion 10(c) precludes the Board from awarding him rein-
statement and backpay. Accordingly, Greichen’s dis-
charge was lawful, and even if it was not, the remedy
must be limited to an order to cease and desist, and the
Board cannot require the Respondent to reinstate
Greichen or to pay him backpay.
3. A notice-reading remedy Is unwarranted.
The judge declined the General Counsel’s request for a
notice-reading order, i.e., a remedy requiring that the
notice to employees be read aloud to the Respondent’s
assembled employees by Senior Vice President Rick
Clark in the presence of a Board agent, or by a Board
agent in Clark’s presence. My colleagues reverse the
judge’s decision and grant the General Counsel’s request
for a notice-reading remedy. I would affirm the judge in
this regard.
The Board has held that notice reading is an “extraor-
dinary remedy” that should be granted only in unusual
circumstances. See, e.g., Federated Logistics & Opera-
tions, 340 NLRB 255, 256–257 (2003), petition for re-
view denied 400 F.3d 920 (D.C. Cir. 2005). Those cir-
cumstances are cases in which the unfair labor practices
are “numerous, pervasive, and outrageous.” Id. at 256.
The judge correctly concluded that this was not such a
case. Further, the judge found that the Respondent was
not a recidivist and was unlikely to violate the Act in the

26 To be sure, the Court in Fibreboard stated that Sec. 10(c) was not
“designed to curtail the Board’s power in fashioning remedies when the
loss of employment stems directly from an unfair labor practice.” 379
U.S. at 217. But in Fibreboard, no employee misconduct was in-
volved, and the loss of employment stemmed directly from the employ-
er’s unfair labor practice of unilaterally subcontracting bargaining-unit
work in violation of Sec. 8(a)(5). Here, Greichen’s discharge stemmed
directly from his act of insubordination, and Sec. 10(c) bars reinstate-
ment and backpay even if he would not have been discharged absent
the prior unlawful warning, as Anheuser-Busch and Taracorp Indus-
tries make clear.
future. The Respondent also demonstrated good faith in
quickly offering to reinstate Todd McCarty when it came
to light that a supervisor had deleted his break times from
the Respondent’s records, which had the effect of de-
pressing McCarty’s production score. See supra fn. 1.
Moreover, as discussed above, I believe that two of the
judge’s violation findings that my colleagues adopt
should be reversed.
But even if, as my colleagues conclude, all the judge’s
violation findings should be upheld, those violations do
not rise to the level of “numerous, pervasive, and outra-
geous” unfair labor practices required to warrant notice
reading. Those violations consist of (i) an unlawful wage
increase, (ii) a single coercive interrogation, (iii) an un-
lawful work rule, and (iv) two unlawful discharges. The
cases my colleagues cite in support of their decision to
order notice reading involved either far more numerous
and pervasive violations, see North Memorial Health
Care, 364 NLRB No. 61 (2016) (12 violations of Section
8(a)(1), (3), and (5)), granting review in part and enfd. in
part 860 F.3d 639 (D.C. Cir. 2017), or a recidivist viola-
tor of the Act with a history of committing numerous,
pervasive, and outrageous violations, see Carey Salt Co.,
360 NLRB 201 (2014) (violations of Section 8(a)(1), (4),
and (5)); Carey Salt Co., 358 NLRB 1142 (2012) (11
violations of Section 8(a)(1), (3), and (5)); enfd. in sub-
stantial part 736 F.3d 405 (5th Cir. 2013). Ordering no-
tice reading in this case lowers the bar to an unprece-
dented extent and effectively makes notice reading the
rule rather than the exception it has always been—an
extraordinary remedy reserved for extraordinary cases.
Thus, I would uphold the judge’s determination that no-
tice reading is not appropriate here.
Accordingly, to the extent and for the reasons stated
above, I respectfully dissent.
Dated, Washington, D.C. December 12, 2017
______________________________________
Philip A. Miscimarra, Chairman
NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
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 bene-
fits and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT discharge, suspend, or discipline any of
you for engaging in protected concerted activities.
WE WILL NOT interrogate you about your support or
activity for United Food and Commercial Workers Un-
ion, Local 919 or any other labor organization.
WE WILL NOT announce or grant wage increases to dis-
suade you from supporting United Food and Commercial
Workers Union, Local 919 or any other labor organiza-
tion.
WE WILL NOT maintain a policy of conditioning con-
tinued employment on an agreement by you to refrain
from talking about any disciplines you may have re-
ceived or from talking about your terms and conditions
of employment.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL, within 14 days from the date of the Board’s
Order, offer Patrick Greichen full reinstatement to his
former job or, if that job no longer exists, to a substan-
tially equivalent position, without prejudice to his senior-
ity or any other rights or privileges previously enjoyed.
WE WILL make Patrick Greichen and Todd McCarty
whole for any loss of earnings and other benefits result-
ing from the discrimination against them, less any net
interim earnings, plus interest.
WE WILL compensate Patrick Greichen and Todd
McCarty for the adverse tax consequences, if any, of
receiving lump sum backpay awards, and WE WILL file
with the Regional Director for Region 1, within 21 days
of the date the amount of backpay is fixed, either by
agreement or Board order, a report allocating the back-
pay awards to the appropriate calendar years for both
employees.
WE WILL compensate Patrick Greichen and Todd
McCarty for their search-for-work and interim employ-
ment expenses regardless of whether those expenses ex-
ceed interim earnings.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful actions against Patrick Greichen and Todd McCarty
and WE WILL within 3 days thereafter, notify them in
writing that this has been done and that the disciplines
will not be used against them in any way.
WE WILL hold a meeting or meetings during working
hours and have this notice read to you and your fellow
workers by Rick Clark, our vice president of warehouse,
transportation and risk management (or, if he is no longer
employed, by a high-ranking responsible management
official), and in the presence of a Board agent and an
agent of the Union if the Region or the Union so desires,
or by a Board agent in Clark’s presence and, if the Union
so desires, the presence of an agent of the Union.
BOZZUTO’S INC.
The Board’s decision can be found at
www.nlrb.gov/case/01-CA-115298 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations
Board, 1015 Half Street, S.E., Washington, D.C. 20570, or
by calling (202) 273-1940.
Jo Anne P. Howlett Esq., for the General Counsel.
Miguel A. Escalera Jr. Esq., and Diana Garfield Esq., counsel
for the Respondent.
J. William Gagne Jr. Esq., counsel for the Charging Party.
Michael Petela, Jr., Esq., counsel for Todd McCarty.
DECISION
STATEMENT OF THE CASE
RAYMOND P. GREEN, Administrative Law Judge. I heard this
case on January 29 and 30 and March 18 to 20, 2015. The
charges and amended charges in these cases were filed on Oc-
tober 21, December 11 and 20, 2013, and on January 16, Feb-
ruary 21, and April 1, 2015. The complaint, which was issued
on October 16, 2014, alleged as follows:
1. That on or about September 27, 2013, the Respondent in-
terrogated employees about their union activities.
2. That on or about October 1, 2013, the Respondent orally
prohibited employees from discussing the terms and conditions
of their employment with other employees.
BOZZUTO’S INC. 15
3. That on or about October 1, 2013, the Respondent an-
nounced and implemented wage increases.
4. That on or about October 1 and 8, 2013, the Respondent
issued a verbal warning and thereafter discharged Patrick
Greichen because he assisted the Union and engaged in other
protected concerted activity.
5. That on or about January 8, 2014, the Respondent, created
the impression that employee union activities were being
placed under surveillance.
6. That on or about January 15, 2014, the Respondent for
discriminatory reasons, suspended Todd McCarty.
7. That on or about February 18, 2014, the Respondent for
discriminatory reasons, discharged Todd McCarty.
8. That since October 1, 2013, the Respondent has issued
disciplinary actions that condition employment on employees
relinquishing Section 7 rights to discuss them with other em-
ployees.
The Respondent essentially denied these allegations of the
complaint. In addition, the Respondent asserts that it made an
unconditional offer to McCarty which was rejected by him. It
therefore asserts that backpay should be terminated as of the
time that McCarty rejected the offer and that reinstatement
would not be warranted as a remedy.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed, I
make the following
FINDINGS AND CONCLUSIONS
I. JURISDICTION
It is admitted and I find that the Respondent is an employer
engaged in commerce within the meaning of Section 2(1), (6),
and (7) of the Act. I also find that the Union is a labor organi-
zation within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
(a) Company Operations and the Start of the Organizing Drive
The Respondent operates a wholesale warehouse for the dis-
tribution of food products. These warehouses are located in
Cheshire and North Haven, Connecticut. Together they employ
about 450 production employees in various categories such as
loaders, selectors, and forklift operators.
The Company’s owner is Mike Bozzuto. Rick Clark is the
senior vice president of warehouse, transportation and risk
management and Carl Koch is the vice president of human
relations. Reporting to Clark is Doug Puza and a number of
persons who are not relevant to this case. In turn, John
Chetcuti and Jamie Wright are managers who report to Puza.
Jason Winans is a supervisor who reports to Chetcuti. There
are also a number of front line warehouse supervisors who
report to Winans.
In addition to the above named individuals, there is a person
named Doug Vaughan who reports to Rick Clark and whose
role is essentially to be a liaison with production employees
regarding various issues such as work related complaints that
may arise from time to time.
The two alleged discriminatees, Patrick Greichen and Todd
McCarty, were both employed as selectors at the Cheshire fac-
ulty. Their job essentially involved receiving “orders” for
products; driving a motorized vehicle to where items are stored
and loading those items onto pallets which eventually make
their way to the loading docks from which trucks deliver them
to customers. This type of job requires a substantial amount of
physical strength. Employees are rated on their performance
through a computerized system, which among other things,
measures how fast they do their jobs.
Sometime in September 2013, Todd McCarty contacted a
representative of the Union and on September 22, he and
Greichen, along with two other employees, met with a union
representative. At this meeting they were given authorization
cards and told to solicit other employees, which they com-
menced to do on September 23. At the outset, McCarty and the
others tried to keep their solicitation activity under the radar.
However, by about September 26, word began to get out and
one employee posted a note on the internet talking about the
union organizing effort.
The evidence shows that the Company became aware of the
union activity during the last week of September. This is es-
sentially conceded by company management who described
situations where union literature was found in work areas. In
this regard, McCarty testified that about the week after the
campaign started, he was approached by Rick Clark who asked
what was going on with “this union stuff” and he replied that he
was not going to talk to him about it. Also, on October 1, the
Company posted a notice explicitly acknowledging its aware-
ness of the union organizing campaign while at the same time
granting pay increases to most of its production employees.
By the last week of September 2013, the Union had obtained
84 signed authorization cards. Both McCarty and Greichen
were the most active union supporters at this time.
(b) The Wage Increases
On October 1, 2013, the Company posted a memorandum
announcing that almost all of its production employees except
for day shift selectors would be receiving an increase in pay
retroactive to September 29. On the same day, the Company
also announced that a number of its employees had told man-
agement that the Union was attempting to organize the shop.
This notice went on to state that the Company was aware that
the Union had obtained a list of the warehouse employees. It
encouraged employees to refrain from signing union authoriza-
tion cards and stated that “we do not need a union at Boz-
zuto’s.”
The evidence shows that the last time a general wage in-
crease was given was in 2010. Further, the evidence presented
by the Company shows that prior to October 1, there only was
some discussion about the possibility or advisability of granting
wage increases to certain categories of employees.1 However,
the Employer’s proffered evidence did not show that the deci-
sion to give these increases was reached at any time before the

1 R. Exh. 2 consists of notes of a supervisor discussion group meet-
ing held in August 2013. It deals with multiple issues including the
possibility of pay increases. But it states only that the Company at that
time was “currently discussing premium changes in the Freezer, Fork-
lift Loader and Shift.” It clearly does not show that any decision was
made at that time to increase wages or wage premiums to employees.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD16
Company became aware of union activity.
The notices posted simultaneously on October 1, 2013, leave
no doubt that the pay increases were motivated by the fact that
the Company became aware that the Union was engaged in
organizing activity. In the absence of a showing that these
increases were given on a regular and period basis, or that the
decision had actually been made before the Company became
aware of union organizing activity, I conclude that the Re-
spondent violated Section 8(a)(1) of the Act. Yoshi's Japanese
Restaurant & Jazz House, 330 NLRB 1339, 1344 (2000); B &
D Plastics, 302 NLRB 245 (1991); Speco Corp., 298 NLRB
439, 443 (1990).
(c) Patrick Greichen
At the same time that signatures were being solicited for the
Union, Greichen was going around and telling other employees
that in his opinion, the Company’s production standards were
too stringent. In this regard, the Company made some changes
to its production standards in July 2013, and Greichen asserted
to other employees that the standards required more work. It
should be noted that employees are evaluated based on a set of
standards established by the Company as to how long it should
take to do the various tasks to which they are assigned. If an
employee exceeds the standard, he can earn more money; but if
he fails to meet the standard, he is subject to discipline and
discharge.2
On October 1, 2013, Greichen was asked to attend a meeting
with Rick Clark, Carl Koch, Doug Vaughan, and Bill Glass. At
this meeting, Clark asserted that employees were complaining
about Greichen’s “erratic and scary behavior.” When asked to
characterize that behavior, Clark’s testimony was that Greichen
was complaining to other workers about long hours and work-
ing conditions.
Greichen received a verbal warning which stated that “his
repeated negative attitude and disrespectful behavior . . . have
become disruptive to the workforce and work environment.” In
the attached memorandum, it states inter alia:
Rick told Patrick he had met with him at least four times in
the past year to address the concerns and Patrick had agreed
he would follow a communication process in a timely fashion
and to the appropriate personnel, not making negative com-
ments in the work force without trying to address the issue
with management. Patrick agreed.
. . .
Rick told Patrick he needed to stop disrupting the work envi-
ronment by making negative comments in the aisles, such as:
being forced to work 20 hours per day or comments about
needing three legs to do the work here, in the hallway in front

2 Since each item has a machine readable tag, the Company, through
the use of scanners coupled with a computer program, can measure how
long it takes to do each and every task from the time an item enters the
warehouse until the time it leaves. It seems that these standards are
revised from time to time and purport to be an accurate means by which
average employee productivity can be used to set a standard against
which each employee, each week, is measured.
of his peers.
Rick told Patrick he fully knows how he needs to properly
address his concerns in the work place and he hoped Patrick
would follow them going forward….
On October 8, 2013, Greichen told his supervisor that the se-
lection time standard for an order he had to perform was incor-
rect. He thereafter presented his complaint to Jason Winans via
the company’s open door policy. With respect to the conversa-
tion between Greichen and Winans, the latter recounted the
conversation as follows:
On Tuesday, 10/8/13, at 2:00 p.m., Patrick Greichen came to
my office very unhappy about how much standard time the
system had given him on two specific assignments he had
done. In an attempt to calm Mr. Greichen down I went into
his PERQ screen to find out which assignments he was refer-
ring to so I could show them to him in detail in the PICQ
screen. We looked at the assignments and I didn’t see any-
thing out of the ordinary. Patrick was concerned about the
amount of cases he had to select and the amount of time he
was give.

After we looked at the orders, Patrick began telling me how
he believes
BOZZUTO’S cuts the standard time on assignments on days
when the volume is high in order to get more cases out of
people and to pay them less, in the process making them mis-
erable. Patrick then told me that he tells anybody and every-
body he can that he believes we are purposely changing the
standards on a daily basis in order to screw the associates. I
told Patrick that I didn’t believe any of this to be true and that
these were very serious accusations he was making. I went on
to say that to the best of my knowledge the company has
communicated all changes to standards in my time here.

I asked Patrick why he continued to work here if he thought
we were purposely trying to make him miserable. He said that
he would get back at the company, not physically but by us-
ing the law outside of here. He stated he had too much to lose
to do anything physical.

I thought this conversation and the accusations made were se-
rious enough that I should bring it to the attention of upper
management… After I told Rick Clark and Doug Vaughn
about what had happened, Rick set up a meeting to include
the three of us along with the industrial engineering team so
that they could explain the standards to Patrick….
After this meeting Winans reported his conversation and ar-
ranged for a meeting to be held with Greichen, himself, Rick
Clark, Doug Vaughn, and someone from the industrial engi-
neering department.
At around 3:45 p.m., Winans told Greichen that he had to go
to a meeting to be held at 4 p.m. with Clark, Vaughn, and the
industrial engineers so that they could explain to him how the
standards worked. Greichen said that he couldn’t attend the
BOZZUTO’S INC. 17
meeting and that he felt that he was being harassed. After con-
sulting with higher ups, Winans told Greichen that the meeting
was mandatory and that if Greichen did not attend, he would be
suspended pending termination for insubordination. Greichen
still refused to attend. And the result was that he was suspend-
ed on October 8 and ultimately discharged as a result of this
transaction.
The Company explained that the reason it insisted that
Greichen attend this meeting was because they wanted him to
get the correct information about standards instead of having
him talking to other employees and misleading them into think-
ing that the Company was somehow manipulating the standards
in order to possibly reduce incentive pay or require more work.
I note that despite this assertion as to how important it was
required for Greichen to attend this meeting; in order to prevent
him from giving inaccurate information to other employees
about standards, the Company did nothing thereafter to notify
or to educate the employees about any mistaken information
that Greichen had allegedly previously given to them.3
The Respondent’s position is that it discharged Greichen not
because he was complaining about production standards per se,
but because he refused to attend a meeting where a representa-
tive of the engineering department would be able to tell him
why his complaints were unfounded. I frankly don’t see how
one can separate these transactions.
The evidence establishes that the October 1 warning was is-
sued because the Company became aware that Greichen was
complaining to other employees about how the production
standards were established and how they were being applied to
both himself and to others. Since these standards determine not
only whether employees receive premium pay, but also whether
they can be disciplined or terminated, his discussions with his
fellow employees constitute protected concerted activity within
the meaning of Section 7 of the Act.
Moreover, as this October 1 warning was issued at virtually
the same time that the Company notified employees that they
should avoid union activity, it seems that given its awareness of
Greichen’s concerted complaints about productivity standards,
the Company’s management more than likely believed that he
was among the employees who most likely would support a
union.
Based on the above, it is my conclusion that the October 1
warning to Greichen violated Section 8(a)(1) and (3) of the Act.
I also conclude that Greichen’s discharge on October 8 was
violative of the Act. Even taking Respondent’s premise that
Greichen’s refusal to attend a meeting constituted insubordina-
tion, I still think that the discharge was unlawful. Greichen was
told to go to a meeting to discuss his complaints about produc-
tivity standards because the Company was concerned that he

3 The Company called as its witness James Wright, who is one of
the engineers. He was told of the meeting but was not given any details
as to why the meeting was to be held. He testified that the person who
asked him to come to the meeting was very vague. As to Greichen’s
failure to show up for the meeting, Wright did not think that this was a
big deal. He also testified that he was not asked to talk to any other
employees about the inaccurate information that supposedly was given
by Greichen.
was talking about them and misinforming his fellow employ-
ees. Thus, the demand that he attend this meeting was inexpli-
cably bound up to the Company’s earlier unlawful warning on
October 1, which was issued because of Greichen’s protected
concerted activity. One follows from the other and the October
8 meeting would not have taken place but for the earlier inter-
ference with Greichen’s right to talk to his coworkers about
their collective terms and conditions of employment.
There being no evidence that Greichen, while engaged in
concerted activity, conducted himself in a threatening manner, I
conclude that his discharge violated Section 8(1) and (3) of the
Act. Approved Electric Corp., 356 NLRB 238 (2010).
(d) Todd McCarty
Todd McCarty was, after Greichen left, the sole active union
supporter. And there is no dispute that the Respondent was
aware of this. Indeed, McCarty, although originally advised to
keep a low profile, was later told that being an open union sup-
porter might, in fact, give him some protection from potential
company harassment. In this regard, the evidence shows that
on several occasions during and after October 2013, he spoke
with supervisory personnel and disclosed his role as a union
activist.
McCarty was a long-term employee who had a good produc-
tion record and who often earned premium pay based on his
performance over and above standards.
In early January 2014, McCarty saw that his reported pro-
duction numbers seemed to be too low in that the computerized
reporting system failed to credit him with “down time.” In this
regard, down time is unit of time for which a supervisor, for
example, has approved an employee break. And this down
time, if counted, serves to raise an employee’s raw productivity
score. That is, if the down time is not counted, then that em-
ployee would receive a lower productivity score and be subject
to discipline if his score for the week was less than 95 percent
of the standard amount of time that is allowed for the tasks
performed by that employee. (It is not necessary to go into all
the details).
Believing that something was up, McCarty started recording
his productivity statistics. He testified that in early January he
spoke to Winans and complained that his down time had been
eliminated from his productivity figures. According to
McCarty, Winans essentially ignored him.
On January 15, 2014, McCarty spoke to Englehart and re-
peated his claims about his down time not being recorded.
Despite a statement by Englehart that McCarty shouldn’t worry
about it, McCarty received a 5-day suspension relating to his
productivity.
During the period of his suspension and an overlapping vaca-
tion, McCarty had coworkers take photographs of his produc-
tivity numbers for the weeks ending January 11 and 18. These
also showed that “down time” was deleted and therefore low-
ered McCarty’s productivity percentage scores.
On February 18, 2014, soon after he returned from vacation,
McCarty was presented with a write-up stating that his perfor-
mance for the week of January 11, 2014, was at 94 percent of
the standard and therefore that he was being terminated.
Subsequent to his discharge and during the investigation of
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD18
the unfair labor practice charge, McCarty presented to the Re-
gional Office evidence showing that the productivity figures
that were used to justify his discharge were wrong. This was
then transmitted to the Company on April 9, 2014. After mak-
ing an internal investigation, the Respondent determined that a
supervisor with access to the computer system had eliminated
McCarty’s “down time” in a way that lowered the productivity
percentage numbers that were the basis of his suspension and
discharge. And since the only persons who normally would
access the applicable computer program are managerial or su-
pervisory level people, it is probable, to a level of certainty, that
someone from management, (such as Winans or some other
supervisor at his direction), had altered McCarty’s productivity
numbers in an effort to remove him from the Company. 4
In this case, the evidence establishes that McCarty was the
leading union activist among the employees after October 8;
that the Respondent was fully aware of his union activity, and
that the ostensible reason for his suspension and discharge was
manifestly false. I therefore conclude that the General Counsel
has established, by a preponderance of the evidence, that these
actions by the Respondent violated Section 8(a)(1) and (3) of
the Act. I also conclude that the Respondent has failed to show
that it would have taken these actions apart from McCarty’s
union activity. Wright Line, 251 NLRB 1083 (1980), enfd. 662
F.2d 899 (1st Cir. 1981), cert denied, 455 U.S. 989 (1982). See
also, Metropolitan Transportation Services, 351 NLRB 657,
659 (2007), in which the Board concluded that where an em-
ployer’s various asserted reasons were shown to be pretextual
and false, it fails to meet its burden under Wright Line, even if
one of its other asserted reasons may have been legitimate.
(e) Miscellaneous allegations
The General Counsel alleges that the Respondent unlawfully
interrogated McCarty when he was asked by Clark “what’s
going on with this union stuff?”
While this single act of interrogation might be viewed as an
offhand and somewhat innocuous comment, the fact is that this
event occurred at or near the same time of the unlawfully moti-
vated pay increase and the unlawful discrimination against
Greichen. I therefore shall conclude that this interrogation, in
the circumstances, violated Section 8(a)(1) of the Act.
The General Counsel alleges that the Respondent created the
impression that the employees’ union activities were being
surveilled. In support of this allegation, McCarty, testified that
on one occasion in October, 2013, he was called to a meeting
and shown surveillance footage of him having a phone call in
the common room. The General Counsel posits that since
McCarty was known to be the active union supporter and since
he had taken many phone calls in this area without prior objec-
tion, the only reasonable assumption is that the Company was
engaging in surveillance of his union activity inside the facility.
(I don’t know if the surveillance system records are sound and

4 With respect to the falsification of McCarty’s records, the Compa-
ny’s investigation pointed toward a supervisor named Grace. But the
testimony was that this person denied that he had falsified McCarty’s
numbers and except for a 5-day suspension with pay, he was not other-
wise disciplined.
therefore I don’t know if it was possible for the Company to
eavesdrop on any conversations that McCarty had with other
employees in the plant).
The Company has maintained a surveillance system long be-
fore the advent of the Union. This was not altered when the
Union and McCarty started their organizing efforts. The evi-
dence shows that the Company’s employees are aware of the
surveillance system and this is referenced in the employee
handbook.
In my opinion, the evidence as to this allegation is not suffi-
cient to establish that the Respondent either engaged in surveil-
lance of employee union activity or, by this one instance, ille-
gally gave the impression to employees that it was spying on
their union activities. I shall therefore recommend dismissal of
this allegation of the complaint.5
As stated in her Brief, the General Counsel alleges that since
October 1, 2013, the Respondent has maintained an ongoing
practice of requiring employees, “not to be involved in any
conversations that are deemed rumor, hearsay or non-factual.”
In support of this allegation, the General Counsel offered a
group of documents relating to situations where employees
were not fired after having been suspended termination. In
these documents, there is a statement to the effect that the em-
ployee would not be terminated provided he or she agreed to
certain stipulations, one of which was:
If you agree to and sign this letter of agreement, you will be
able to return to regular duties. Going forward, if it is shown
after proper investigation that you violate any one or more or
the following stipulations within the next six months… your
employment status with the Company will be terminated.
You must:
* * *
Not be involved in any conversations that are deemed hear-
say, rumors or non-factual comments that cause any disrup-
tion in the business environment.
By inserting this statement in these documents, it is clear that
the Respondent has created a rule that restrains at least those
employees who have been given a second chance, from dis-
cussing, in an uninhibited way, the disciplinary actions taken
against them with other employees. And since discussion by
employees about the nature of, or extent of discipline, would
relate to terms and conditions of employment, it can be con-
strued as protected concerted activity within the meaning of
Section 7 of the Act.
The General Counsel cites Lutheran Heritage Village-
Livonia, 343 NLRB 646 (2004), along with Lafayette Park
Hotel, 326 NLRB 824, 828 (1998), and American Cast Iron
Pipe Co., 234 NLRB 1126 (1978), enfd. 600 F.2d 132 (8th Cir.

5 In her brief, the General Counsel noted that the complaint alleged
that this event took place in early January 2014, instead of October
2013 and that the supervisor who allegedly committed the unfair labor
practice was mistakenly identified as Dave Gardner. She therefore
moved to amend the complaint to correct the matter. In light of my
conclusion that the Respondent did not violate the Act in this manner,
there is no need to rule on the Motion.
BOZZUTO’S INC. 19
1979). For its part, the Respondent really did not address this
issue in its brief. As I think that the cases cited by the General
Counsel are dispositive, I conclude that by maintaining this
policy and requiring certain employees to acknowledge the
policy as a condition of retaining their jobs, the Respondent has
violated Section 8(a)(1) of the Act.
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.
In addition to the standard remedy for 8(a)(1) and (3) cases,
the General Counsel requests that the Respondent be required
to read the notice to the employees at a meeting held on work
time. In my opinion, this remedy is not required in this case.
From the Board’s inception, it has as part of its usual reme-
dial orders, required the offending party to post a notice de-
scribing employee rights under the Act and promising to abide
by those rights. Pennsylvania Greyhound Lines, Inc., 1 NLRB
1 (1935).
Requiring an owner or high official of a company or a union
to actually read aloud the notice to its assembled employees has
not been typically required except in unusual circumstances. In
Federated Logistics & Operations, 340 NLRB 255, 256–257
(2003), the Board described this as an “extraordinary remedy.”
This remedy, along with others, was imposed in a case where
the employer (a) unlawfully interrogated employees; (b) created
the impression of surveillance; (c) solicited grievances; (d)
promised benefits; (e) threatened employees with the loss of
existing benefits; (f) threatened to move its operations; (g)
withheld benefits; and (h) discriminatorily suspending employ-
ees for engaging in protected activity. Moreover, in that case,
the results of an election were overturned and the Board or-
dered a new election. Given these findings, in the context of a
pending election situation, a Board majority stated:
The Board may order extraordinary remedies when the Re-
spondent’s unfair labor practices are “so numerous, pervasive,
and outrageous” that such remedies are necessary “to dissi-
pate fully the coercive effects of the unfair labor practices
found.” Fieldcrest Cannon, Inc., 318 NLRB 470, 473 (1995)
(and cited cases). For example, a public reading of the notice
is an “effective but moderate way to let in a warming wind of
information, and more important, reassurance.” J.P. Stevens
& Co. v. NLRB, 417 F.2d 533, 539–540 (5th Cir. 1969). In
addition, the Board has ordered Respondents to supply up-
dated names and addresses of employees to the Union be-
cause that “will enable the Union to contact all employees
outside the [workplace] and to present its message in an at-
mosphere relatively free of restraint and coercion.” Excel
Case Ready, 334 NLRB 4, 5 (2001) (quoting Blockbuster Pa-
vilion, 331 NLRB 1274, 1275 (2000)). Further, when a re-
spondent “has engaged in such egregious or widespread mis-
conduct as to demonstrate a general disregard for the employ-
ees’ fundamental statutory rights,” the Board has issued a
broad order for the Respondent to refrain from misconduct “in
any other manner,” instead of a narrow order to refrain from
misconduct “in any like or related manner.” Hickmott Foods,
242 NLRB 1357 (1979).
Although the violations found in the present case are certain-
ly not trivial, they are not, in my opinion, numerous, pervasive
or outrageous. Nor has it been shown that the Respondent has
violated the Act in the past or that it likely will violate the Act
in the future. In these circumstances, it is my opinion that the
Board should not require the owner of the Company to stand in
front of his employees and publicly read the notice to the as-
sembled group.
There is another very tricky question in this case; namely
whether the Respondent should be required to offer reinstate-
ment to Todd McCarty and whether his backpay should be
terminated as of May 15, 2015.
On May 14, 2014, the Respondent transmitted to McCarty a
written unconditional offer of reinstatement. This offered him
full backpay and the retention of all of benefits including sen-
iority. The offer did not ask McCarty to sign any settlement
agreement or release and did not condition his acceptance of
the offer on the withdrawal of any pending complaints. This
offer gave McCarty 10 days to respond. This was later extend-
ed to May 28, 2014.
On May 19, McCarty sent an email to his lawyer and they
put together a counter offer.6 In the proposed counter offer,
McCarty demanded, as a condition for accepting reinstatement,
that the Company accept a number of demands, including the
payment of additional leave money to which he was not enti-
tled. Although this counter offer was sent, it went to the wrong
email address and was not actually received. Nevertheless, this
undelivered email does indicate that as of May 19, McCarty
was reluctant to accept the reinstatement offer and was placing
an obstacle to its acceptance. Since this email was not deliv-
ered, there was no company response.
McCarty testified that 2 days later, on May 21, he received a
phone call in which the caller ID was blocked and where the
caller said that if he did not drop his fucking lawsuit and “this
union stuff,” McCarty’s family members who worked at
BOZZUTO’S would be fired. He alleges that this caller also
said that he had better watch his son when he drops him off at
the skate park. McCarty could not identify the person who
made the call and testified that he had a New York type of ac-
cent and spoke in a “tough” voice. McCarty did not identify
this individual as being Jason Winans. Winans, by this time,
had been transferred out of the warehouse.
McCarty testified that later in the evening, he received a sec-
ond phone call from a blocked number where the caller alleged-
ly said, “you got me mother fucker.”
McCarty’s billing records from Comcast show that eight
calls were made to his phone on May 21 where the caller ID
was blocked. Unless I am reading these records wrong, they
show that four lasted for 0 seconds and apparently were hang-
ups. One call was made at 10 a.m., lasting 5 minutes, 51 sec-
onds; a second was made at 12:32 p.m., lasting 1 minute, 36
seconds; a third was made at 10:06 p.m., lasting 3 minutes, 3

6 At this time, McCarty had retained a lawyer and had filed a law-
suit against the Company that made a number of allegations including
the allegation that he had been wrongfully terminated. In June 2015, he
amended that complaint to add Jason Winans as a defendant.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD20
seconds; and a fourth was made at 10:52 p.m., lasting 32 sec-
onds.
On May 28, McCarty sent an email to the Company and re-
jected the reinstatement offer. He stated:
Due to threats I have received against myself and my
family and other factors, I Todd McCarty will not be
accepting your offer of rehire. I believe these threats
came from a representative of BOZZUTO’S manage-
ment or BOZZUTO’S management alone. Myself and
counsel deem your offer of rehire disingenuous and un-
realistic with the parameters you set forth.
On May 30, 9 days after the calls, McCarty appeared
at the local police station and filed a complaint about the
threatening phone calls on May 21. The police report
notes that McCarty came in at 4:27 p.m. and that:
Todd does not know the person that called and they blocked
their number. He stated that there have been no further calls
since then.
At this time I have no suspect or further information. The
caller did not make any direct threats and Todd just wanted
this incident documented. Todd was advised to contact his
service provider for his cellular phone to have them block all
incoming private callers.
No further police action.
McCarty claims he received another phone call on June 1,
2015, in which the caller said, “You’re through.” As to this
call, McCarty testified that the number was not blocked and
that it came from 860-758-7825. This is Jason Winans’ home
phone number. McCarty testified that he did not recognize the
voice on the phone. He also took a photograph of the caller ID
number.
On June 12, McCarty reported this phone call to the police
officer and the police report states as follows:
Todd McCarty contacted me and stated he received another
unwanted phone call. He stated that he was called on 06/01/14
at approximately 2015 hours. Todd stated that the caller stat-
ed: “You’re finished” then hung up. Todd stated that the
phone number was not blocked this time and informed me
that the name and number that his caller identification showed
were Jason Winans, 860-758-7825.
I then called Jason and spoke with him. He stated that he did
not call Todd and would have no reason to. Jason was told to
stop calling Todd and he stated that he understood.
McCarty’s billing record shows a call received from Jason
Winans at 860-758-7825 at 8:17 p.m. and lasting for seven
seconds.
On the basis of the call on June 1 which is documented as
coming from Winans, McCarty assumed, perhaps reasonably,
that the previous blocked calls on May 21 also came from him.
As such, it is argued that if McCarty was the recipient of these
threats, then he legitimately could reject the Company’s rein-
statement offer without incurring the loss of any backpay or
future reinstatement rights.
The problem is that Winans testified that he did not make
any of these calls and he produced his billing records from Cox
Communications which showed that no calls from 860-758-
7825 were made to McCarty’s phone on the dates in question.
This presents a quandary inasmuch as I have received into
evidence the billing records of two well known cable compa-
nies that contradict each other.
At the resumption of the hearing, the Employer proffered an
expert witness who was going to testify that it is possible for a
person, using internet sites, to alter his own phone bill so as to
show that phone calls were made to him when in fact no such
calls were made. I rejected this testimony because the Re-
spondent had not given the General Counsel notice of its intent
to call an expert witness, despite the fact that there was a sub-
stantial hiatus between the opening of the case and its resump-
tion. The General Counsel did not have any notice of what the
expert was going to say and did not have any report describing
his findings. Therefore, the General Counsel could not, in my
opinion, adequately cross examine this person or find an expert
of her own. National Extrusion & Mfg., 357 NLRB 127 (2011).
Nevertheless, as an attachment to its Brief, the Respondent
provided a copy of the Truth in Caller ID Act of 2009,
47.U.S.C. Section 227(e) and a copy of a related Federal Com-
munications Commission Order dated June 22, 2011. As one is
a statute and the other an official document, I will take official
notice of both. The point being argued is that there is a practice
called “Caller ID spoofing” whereby an individual can manipu-
late his caller ID. As stated in the FCC report; “Callers using
some interconnected VOIP services can easily alter their caller
ID by making a call appear to come from any number.”
To my mind, this does not sufficiently answer the question of
whether McCarty managed to alter his phone bill to show a call
that was not actually made to him. Nor does it show if Winans
managed to do the opposite; manipulate his billing records to
eliminate a call that he actually made to McCarty. What might
have helped would be some persons with expertise employed
by the respective carriers who could testify as to what was pos-
sible and what was not.
On June 19, the Company became aware of two emails com-
ing from addresses labeled winanslies@gmail.com and Ja-
sonwlies@yahoo.com. These were two lengthy and essentially
identical documents that set forth in great detail, the unnamed
author’s grievances and gripes involving Jason Winans from
2004 to the present. These documents, each totaling five single
spaced pages, describe in great detail, a variety of incidents
purporting to show the author’s harassment by Winans, who is
described as being conceited, condescending and narcissistic.
I am not concerned with the truth of the assertions made in
these two emails. Rather, I am concerned by the timing of the
emails, (soon after the alleged threats to McCarty), and the fact
that McCarty denied being the author. In this respect, McCarty
acknowledged that the contents of the emails were basically
accurate insofar as his feelings about Winans and the various
incidents described. His testimony was that they were “pretty
dead on.” And despite the fact that these narratives are so de-
BOZZUTO’S INC. 21
tailed, covered such an extended period of time, and included
photos of McCarty and his photos of the June 1 caller ID num-
ber, it is hard for me to imagine that anyone other than McCarty
could possibly have been the author. When I asked who he
thought might have written these emails, McCarty responded;
“I honestly don’t know. I have suspicions.” When asked to
give his suspicions, McCarty said he couldn’t speculate or
throw anybody under the bus.
It is impossible, based on this record to say with certainty
that anyone from management made the alleged threats de-
scribed by McCarty as having occurred on May 21. Nor can I
with certainty, determine if Winans called McCarty on June 1
and made the statement; “you’re through.”
Nevertheless it is my opinion that the evidence suggests that
McCarty had already decided by May 28 to reject the Respond-
ent’s reinstatement offer, but then tried to set up a situation
where he could blame the Company for his refusal. In this
way, by rejecting the reinstatement offer, but asserting that his
refusal was based on alleged threats, he could refuse to go back
to work while preventing his backpay from being cut off.
Based on the above, I conclude that the Respondent made an
unconditional offer of reinstatement. I also conclude that the
evidence presented by McCarty is not sufficient to warrant a
conclusion that the Respondent, by its agents, engaged in sub-
sequent threatening conduct that would vitiate the validity of
the reinstatement offer. Accordingly, I conclude that backpay
owed to McCarty should be tolled as of May 25, 2014, and that
a reinstatement order is not required.
Having determined that the Respondent unlawfully suspend-
ed McCarty on January 15, 2014, and thereafter unlawfully
discharged him on February 18, 2014, the Respondent must
make him whole for any loss of earnings and other benefits
suffered as a result of the discrimination against him until May
15, 2014.
Having concluded that the Respondent unlawfully dis-
charged Patrick Greichen on October 8, 2013, it must offer him
reinstatement and make him whole for any loss of earnings and
other benefits suffered as a result of the discrimination against
him.
Backpay shall be computed in accordance with F.W. Wool-
worth Co., 90 NLRB 289 (1950), with interest at the rate pre-
scribed in New Horizons, 283 NLRB 1173 (1987), compounded
daily as prescribed in Kentucky River Medical Center, 356
NLRB 6 (2010).
As to McCarty and Greichen, the Respondent shall be re-
quired to expunge from its files any and all references to the
unlawful suspensions and discharges and to notify these em-
ployees in writing that this has been done and that the unlawful
actions will not be used against them in any way.
The Respondent shall file a report with the Social Security
Administration allocating backpay to the appropriate calendar
quarters. The Respondent shall also compensate McCarty and
Greichen for the adverse tax consequences, if any, of receiving
one or more lump-sum backpay awards covering periods longer
than 1 year. Don Chavas, LLC d/b/a Tortillas Don Chavas,
361 NLRB No. 10 (2014).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended 7
ORDER
The Respondent, BOZZUTO’S Inc., its officers, agents, and
representatives, shall
1. Cease and desist from
(a) Discharging, suspending, or issuing warnings to employ-
ees because of their union or protected concerted activity.
(b) Interrogating employees about their support or activity
for United Food and Commercial Workers Union, Local 919 or
any other labor organization.
(c) Promising or granting wage increases in order to dissuade
employees from supporting the Union.
(d) Maintaining a policy of conditioning continued employ-
ment on an agreement by employees to refrain from talking
about any disciplines that they have received or about their
terms and conditions of employment.
(e) In any like or related manner interfering with, restraining,
or coercing employees in the rights guaranteed to them by Sec-
tion 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Make Patrick Greichen and Todd McCarty whole for any
loss of earnings and other benefits suffered as a result of the
discrimination against them, in the manner set forth in the
Remedy section of this Decision.
(b) Within 14 days from the date of this Order, offer Patrick
Greichen, full reinstatement to his former job, or if that job no
longer exists, to a substantially equivalent position, without
prejudice to his seniority or any other rights or privileges previ-
ously enjoyed.
(c) Remove from its files any reference to the unlawful ac-
tions against Patrick Greichen and Todd McCarty and within 3
days thereafter, notify them in writing, that this has been done
and that the discharges will not be used against them in any
way.
(d) Reimburse Greichen and McCarty an amount equal to the
difference in taxes owed upon receipt of a lump sum backpay
payment and taxes that would have been owed had there been
no discrimination against them.
(e) Submit the appropriate documentation to the Social Secu-
rity Administration so that when backpay is paid to Greichen
and McCarty it will be allocated to the appropriate periods.
(f) 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 rec-
ords, 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.
(g) Within 14 days after service by the Region, post its Con-

7 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 pur-
poses.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD22
necticut facilities, copies of the attached notices marked “Ap-
pendix.”8 Copies of the notices, on forms provided by the Re-
gional Director for Region 1, after being signed by the Employ-
er’s authorized representative, shall be posted by the Employer
and maintained for 60 consecutive days in conspicuous places
including all places where notices to employees are customarily
posted. In addition to physical posting of paper notices, notices
shall be distributed electronically, such as by email, posting on
an intranet or an internet site, and/or other electronic means, if
the Employer customarily communicates with its employees by
such means. Reasonable steps shall be taken by the Employer
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 Employer has gone out of business or
closed the facilities involved in these proceedings, the Employ-
er shall duplicate and mail, at their own expense, a copy of the
notice to all current employees and former employees em-
ployed by the Employer at any time since October 1, 2013.
Dated, Washington, D.C. June 25, 2015
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 no-
tice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of their
own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected con-
certed activities.

8 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 Judgment
of the United States Court of Appeals Enforcing an Order of the Na-
tional Labor Relations Board.”
WE WILL NOT discharge, suspend, or discipline employees
because of their union or protected concerted activities.
WE WILL NOT interrogate employees about their support or
activity for United Food and Commercial Workers Union, Lo-
cal 919 or any other labor organization.
WE WILL NOT promise or grant wage increases in order to
dissuade employees from supporting the Union.
WE WILL NOT maintaining a policy of conditioning continued
employment on an agreement by employees to refrain from
talking about any disciplines they may have received or about
their terms and conditions of employment.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce employees in the rights guaranteed them by
Section 7 of the Act.
WE WILL make Patrick Greichen and Todd McCarty whole
for any loss of earnings and other benefits suffered as a result
of the discrimination against them.
WE WILL offer Patrick Greichen full reinstatement to his
former job, or if that job no longer exists, to a substantially
equivalent position, without prejudice to his seniority or any
other rights or privileges previously enjoyed.
WE WILL remove from our files any reference to the unlawful
actions against Patrick Greichen and Todd McCarty and within
3 days thereafter, notify them in writing, that this has been done
and that the discharges will not be used against them in any
way.
BOZZUTO’S INC.
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/01-CA-115298 or by using the QR code be-
low. Alternatively, you can obtain a copy of the decision from the
Executive Secretary, National Labor Relations Board, 1099 14th
Street, N.W., Washington, D.C. 20570, or by calling (202) 273-
1940.