Buonadonna Shoprite, LLC

National Labor Relations Board - Administrative Judge Opinions

Jun 3, 2010

29-CA-029720 (N.L.R.B. Jun. 3, 2010)

JD(NY)–17–10
Bayshore, NY
West Babylon, NY
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
BUONADONNA SHOPRITE, LLC
and Case No. 29-CA-29720
UNITED FOOD AND COMMERCIAL
WORKERS UNION, LOCAL 1500
Brent Childerhose, Esq., Brooklyn, NY
for the General Counsel
James P. Clark, Esq., (Cullen and Dykman LLP)
Garden City, NY
for the Respondent
Thomas J. Lilly, Jr., Esq., (O’Donnell,
Schwartz, Glanstein & Lilly, LLP)
Williston Park, NY
for the Charging Party
DECISION
Statement of the Case
Mindy E. Landow, Administrative Law Judge. Based upon a charge in Case No. 29-CA-
29720 filed by United Food and Commercial Workers Union, Local 1500 (the Union), on July
21, 2009,1 a complaint and notice of hearing (the complaint) issued on January 12, 2010. The
complaint alleges that Buonadonna Shoprite, LLC (the Employer or Respondent) violated
Section 8(a)(1) of the Act by denying the request of its employee Odel Clarke to be represented
by the Union during an investigatory interview which he reasonably believed would result in
disciplinary action being taken against him and thereafter suspending him for refusing to submit
to the interview. Respondent filed an answer denying that it had violated the Act as alleged and
raising certain affirmative defenses.2 This case was tried in Brooklyn, New York on March 9,
2010.
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel, the Union and the Respondent I make
the following

1 All dates hereafter are in 2009 unless otherwise indicated.
2 Respondent contends that Clarke was provided with a Union representative during his
interviews, and that the representative who was present has served, without objection from the
Union, as a representative during investigatory interviews on multiple occasions prior to the one
in question here.
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Findings of Fact
I. Jurisdiction
The Employer, a corporation, with offices and places of business located in Bayshore,
New York and West Babylon, New York is engaged in the operation of retail supermarkets.
During the past 12-month period, which is representative of its annual operations in general,
Respondent derived gross revenues in excess of $500,000 and purchased and received at its
West Babylon facility goods and materials valued in excess of $5,000 directly from suppliers
located outside the State of New York. The Employer admits and I find that it is an employer
engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.
It is admitted, and I further find that the Union is a labor organization within the meaning
of Section 2(5) of the Act
II. Alleged Unfair Labor Practices
The Employer operates two retail supermarket stores, in West Babylon and Bayshore
New York. The facilities are approximately 9 miles apart. Melissa Buonadonna is the district
manager who oversees the operations of both facilities.
Clarke has been employed by Respondent for approximately six years, and currently
works as a dairy manager at the Bayshore facility. During the period of time relevant to the
instant case, Clarke was employed at the West Babylon location where the store manager was
Jim Shaw. The shop steward at the West Babylon store is Carol Dunne, who works in the shop-
from-home and payroll departments. Dunne has served as shop steward for approximately 14
years, 6 under the Buonadonna ownership. The Union representative for both stores is Joe
Castelli. Castelli has worked for the Union for 15 years; however, he has been assigned to the
Employer’s two facilities since June 1.
On or about Monday, June 29, an employee at the West Babylon store, Amanda
Minghillo, told assistant manager Kenny Scott that Clarke had sexually harassed her. Scott
reported the claim to store manager Shaw, who in turn notified Buonadonna. She instructed
Shaw to obtain a written statement from the complaining employee and then investigate the
situation further. Minghillo was not scheduled to work for the next two days and, according to
Buonadonna, her written statement was obtained on the morning of Thursday, July 2, the next
day she reported to work.
On July 2, at approximately 10:00 am, store manager Shaw instructed Dunne to report
with Clarke to his office. At this point in time neither Clarke nor Dunne knew what Shaw wanted
to speak with them about. Shaw then reported that he had received a complaint from Minghillo,
alleging that Clarke had sexually harassed her. Shaw stated that he wanted to get Clarke’s side
of the story and asked Clarke if he had hugged Minghillo. Clarke replied that he had not hugged
his coworker.3 At this point, Shaw handed Clarke a pen and notepad and stated that he needed
a statement about what had happened on the day in question.
By way of background, it should be noted that, in her capacity as shop steward, Dunne
had previously attended an investigatory interview with another employee accused of similar

3 As Clarke acknowledged at the hearing, this was not a truthful response.
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misconduct. That individual had provided a statement to the Employer and was subsequently
terminated. With this in mind, Dunne interjected and stated that Clarke would not be able to
provide a statement about the incident until he spoke with Castelli and received advice as to
how to proceed. Shaw replied that he would discuss the situation with Buonadonna and
instructed Clarke and Dunne to return to work.
Dunne took Clarke outside and they placed a call to Castelli. Dunne spoke with him first.
According to Castelli, Dunne stated that she felt uncomfortable and unqualified to handle this
particular type of meeting. Castelli told Dunne that he was not available to come to the facility
for a meeting on that day and would speak to Buonadonna about having a meeting on Monday.
Clarke then spoke with Castelli and told him that the allegations had no merit; that the situation
was, as he phrased it, a “two-way street” and that there were certain female coworkers at the
store who would hug and touch him.4 Castelli told Clarke to refrain from providing any
statements to the Employer until he was present. Clarke agreed, and returned to work.
At the time of this phone call, Castelli was at the Employer’s Bayshore location and had
commitments there and elsewhere for remainder of the day. As it happened, Buonadonna was
there as well. She had been informed about Shaw’s earlier meeting with Clarke and Dunne.
Buonadonna and Castelli spoke shortly thereafter. According to Buonadonna, she told Castelli
that she was going to West Babylon to investigate the situation. Castelli told Buonadonna that
he had advised Clarke not to make any statements until he was available to attend a meeting
and that he would be available after the weekend. Buonadonna asserts that she told Castelli
that the situation was “in her lap” and she would not wait the entire weekend to investigate it,
and that she might suspend Clarke. Castelli testified that he told Buonadonna to make sure she
had just cause before she took any disciplinary action against Clarke.
Later that afternoon, at approximately 3:00 pm, Dunne clocked out of work. Before
leaving the facility she went to speak with Clarke, to remind him of what Castelli had said during
their earlier phone conversation. While the two were speaking, Scott came up to them and
stated that Clarke was wanted in Shaw’s office. Clarke asked Dunne to accompany him, and
she did. Shaw and Buonadonna were sitting in Shaw’s office. Clarke entered and Dunne
stationed herself in the doorway.
Buonadonna told Clarke that she was not planning to discipline him at this time but
wanted to find out what happened. She stated that she needed to know everything, and asked if
there were witnesses to the occurrence. Clarke told Buonadonna that he had spoken with
Castelli on the phone and had been advised not to say or write anything until Castelli was
present. Buonadonna asked Clarke why he would need Castelli when Dunne was present for
the meeting.
At this point there is some variance in the testimony about what Dunne may or may not
have said. According to Clarke, Dunne stated that she “was not prepared to go down this road
again,” and told Buonadonna that even if she did not plan to reprimand Clarke at this time, once
Clarke had provided a statement, her attorney would advise her to discharge him. As Clarke
testified, the foregoing exchange occurred between Dunne and Buonadonna and, at the time,
he was unaware that Dunne was making reference to what had happened to another employee.
When questioned by the General Counsel, Dunne testified that when Buonadonna

4 As Clarke acknowledged, Dunne had previously observed this behavior and had warned
him about his interactions with certain of his female coworkers.
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asked why Clarke needed Castelli when Dunne was present, she replied that she was the shop
steward and that she and Clarke had been told by the Union representative that he had to be
present for the meeting. Although Dunne did later testify that she stated that she was not
qualified to handle the matter, such testimony was in response to a leading question from the
Union’s counsel, and Dunne did not offer specific testimony about when she might have made
such a statement. Buonadonna testified that after she advised Clarke that he was suspended,
Dunne apologized for the situation and stated that she felt uncomfortable because of what had
happened to the other employee.5
In any event, Buonadonna continued to insist that Clarke provide a statement, and he
demurred, replying that it would be disrespectful to his Union representative to go against his
wishes. Buonadonna then stated that she was Clarke’s boss, that she paid his salary and that
she needed his statement so she could conduct a proper investigation.
Clarke then asked for permission to call Castelli, and told Buonadonna that he would
provide a statement if Castelli authorized him to do so. Clarke said that he was not refusing to
cooperate in the investigation, and that he wanted to get Castelli’s confirmation as to whether he
should give a statement at this time. Dunne testified that she offered to telephone Castelli, but
Buonadonna did not permit it.6
Buonadonna asked Clarke if he was aware of what could happen if he did not give a
statement, and he replied that Dunne had advised him that he could be suspended.
Buonadonna then stated that Clarke was being suspended based upon his insubordination and
unwillingness to provide a statement at the time. He was advised that he would be suspended
for 10 days.
At approximately 3:30 pm that afternoon, Dunne called Castelli and informed him that a
meeting had been held, that Clarke had refused to participate unless Castelli was present and
had been suspended. Castelli contacted Buonadonna on Friday, July 3 and a meeting was
scheduled for July 6, the following Monday.
On that day, Buonadonna interviewed Clarke about the sexual harassment allegations.
He was then asked to leave the room. Buonadonna and Castelli discussed the suspension and
the Union was informed that the Employer was standing by its decision to suspend Clarke for
his failure to cooperate in the investigation. Clarke received no discipline relating to the sexual
harassment charge. According to Castelli, store manager Shaw subsequently told him that he
did not understand why Buonadonna could not wait until Monday, when Castelli could be
present, to question Clarke.7 In fact, Buonadonna failed to offer any specific testimony about
why it was imperative to proceed on that day, other than the fact that she now had the employee
complaint in writing and felt that she had to proceed with the investigation.
With regard to the issue of Dunne’s qualifications to serve as Clarke’s representative
during the interviews, Dunne testified that her role as shop steward is to sit in on meetings
between employees and management, to advise employees of their rights and to act as a
conduit to the Union. There are certain so-called “zero tolerance” offenses for which the

5 On July 5, Dunne wrote an e-mail to Castelli about the event, and does not indicate in this
communication that she raised any concerns about her willingness to participate in Clarke’s
interview or act as his representative on this occasion.
6 This testimony is unrebutted by Respondent.
7 Shaw did not testify in these proceedings.
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contractual progressive discipline system need not be followed, and an allegation of sexual
harassment is one such offense. Dunne testified that if such a zero tolerance situation arises,
she is supposed to stop the meeting and advise the employee not to make a statement until the
Union representative is contacted. Dunne acknowledged on cross-examination that throughout
her tenure as shop steward she typically has served as the Union’s representative in meetings
involving investigations of employee misconduct and prior to the situation involving Clarke, had
never stopped an interview of an employee to await the participation of a Union representative.
Dunne has received no training in grievance processing from the Union and is not authorized to
handle grievances.8
Castelli testified generally that he participates in every disciplinary hearing. He also
stated, however, that he typically becomes involved once the company has taken action against
an employee. Castelli testified that shop stewards should not be involved in investigations,
because they are not trained to do so. While Castelli acknowledged on cross-examination that
he heard Dunne testify that she has attended investigatory meetings in her capacity as shop
steward, he further asserted that she is not qualified to do so. Castelli stated that the Union’s
practice is to advise the shop steward to end such an interview so the member can consult with
a trained Union representative. Castelli acknowledged that he did not know whether this had
actually occurred in the West Babylon facility, as he had only been the Union representative for
that store since June 1, and the Clarke situation was the first time it had come up.
The back cover of collective bargaining agreement contains, in pertinent part, the
following extra-contractual language:
In a court case known as N.L.R.B. vs. Weingarten, the U.S Supreme Court ruled you
have the right to have your Union Representative present when you are interviewed by
your employer. If you reasonably believe the interview may lead to disciplinary action.
YOUR RIGHTS UNDER WEINGARTEN ARE:
1. You have the right to request the presence of a Union Representative or Shop
Steward during any investigatory interview you reasonably believe might result in
disciplinary action.
2. You have the right not to be interviewed until your Union Representative or Shop
Steward is present.
3. Your Union Representative or Shop Steward may assist you during the interview
to organize and explain your facts.
III. Analysis and Conclusions
1. Applicable legal principles and contentions of the parties
In NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975) and a companion decision, Ladies’
Garment Workers v. Quality Manufacturing Co., 420 U.S. 276 (1975), the Supreme Court,
agreeing with the Board, ruled that employee insistence upon union representation at an
employer’s investigatory interview, which the employee reasonably believes might result in

8 The collective-bargaining agreement specifically provides that shop stewards are not
authorized to process grievances.
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disciplinary action, is concerted, protected activity.9 In its discussion of this rule, the Court
explained that the right arises out of the protections inherent in Section 7 of the Act and that it is
limited to situations where the employee requests representation. Weingarten, 420 U.S. at 256-
257. In addition, the exercise of this right may not interfere with legitimate employer
prerogatives, Id at 258. The employer may carry out its inquiry without interviewing the
employee, thus leaving to the employee “the choice of having the interview unaccompanied by
his representative, or having no interview and forgoing any benefits that might be derived from
one.” Id at 259-260. The Board has interpreted Weingarten as follows:
Under Weingarten, once an employee makes such a valid request for union
representation, the employer is permitted one of three options: (1) grant the request, (2)
discontinue the interview, or (3) offer the employee the choice between continuing the
interview unaccompanied by a union representative or having no interview at all. Under
no circumstances may the employer continue the interview without granting the
employee union representation, unless the employee voluntarily agrees to remain
unrepresented after having been presented by the employer with the choices mentioned
in option (3) above or if the employee is otherwise aware of those choices.
United States Postal Service, 241 NLRB 141, 141 (1979) (emphasis in original)(footnotes and
citations omitted).
Here, there is no dispute that Clarke was in a Weingarten situation when he was
summoned to the two meetings in question. It was apparent to all concerned that the allegation
of sexual harassment was a serious one, which clearly could lead to the imposition of discipline.
The General Counsel contends that, under Anheuser-Busch, Inc., 337 NLRB 3 (2001), enfd.
338 F.3d 267 (4th Cir. 2003), Clarke was authorized to select his representative absent
extenuating circumstances, which have not been shown here. Accordingly, the General Counsel
argues, Clarke had a right to refuse to participate in the interview conducted by Buonadonna
absent Castelli’s participation. General Counsel maintains that faced with Clarke’s refusal to be
interviewed, Respondent had several ways it could have lawfully proceeded under Weingarten:
grant Clarke’s request for his representative Castelli; afford Clarke the option of going on with
the interview unrepresented or waiving the interview; or reject Clarke’s request and end the
interview. The Charging Party asserts, similarly, that an employee such as Clarke has the right,
absent extenuating circumstances, to specify the representative who must be present before
any investigatory interview may proceed, and that the Respondent has not shown such
circumstances here.10
The General Counsel and the Union further argue that Respondent could not lawfully
rely upon Dunne’s presence to insist on interviewing Clarke. They argue that Dunne was neither
trained or otherwise capable or willing to acting as Clarke’s representative. In support of this

9 Accordingly, the discipline or discharge of an employee for refusal to cooperate in such an
investigatory interview without union representation violates Section 8(a)(1) of the Act. See
Quality Manufacturing Co., 195 NLRB 197, 198 (1972).
10 In support of their respective contentions that Respondent has failed to show extenuating
circumstances requiring that Clarke’s interview go forward on July 2, both the General Counsel
and the Union note that the allegation had been raised earlier in the week, and Respondent had
taken no action for several days. The General Counsel also points to Castelli’s unrebutted
testimony that Shaw had stated that he did not see any reason why the interview could not wait
until Castelli was present further argues that if the allegations had required imminent action,
Respondent could have lawfully suspended Clarke pending an investigation of the incident.
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contention, General Counsel relies upon Consolidation Coal, 307 NLRB 976 (1992) and GHR
Energy Corporation, 294 NLRB 1011, 1042 (1989), enfd. 924 F.2d 1055 (5th Cir. 1991), for the
proposition that the Board has found an employer violates the Act by insisting that an employee
proceed with an interview with a less experienced or capable representative when a better-
qualified representative is available and has been requested. The Union further argues that,
inasmuch as Dunne was off duty at the time, she could not be compelled to represent Clarke.
Respondent argues that this case represents an attempt by the General Counsel and
the Charging Party to expand Weingarten rights to a point beyond that previously recognized by
the Board. Respondent contends that, at all times, Clarke was accompanied and assisted by
Dunne, his shop steward. Respondent further argues that Weingarten does not require an
employer to postpone an interview because the specific union representative the employee
requests is absent, so long as another union representative is available at the time set for the
interview. Respondent notes that Dunne has historically served as the Union’s representative
during investigatory interviews and contends that even if Dunne did not want to serve as
Clarke’s representative in the matter, given Castelli’s unavailability Respondent was under no
legal obligation to provide an alternate representative for Clarke.
In support of its contention that Buonadonna was not required to postpone the interview
to comply with Clarke’s request for representation by Castelli, Respondent relies upon Coca-
Cola Bottling Co. of Los Angeles, 227 NLRB 1276 (1977). In that case, an employee requested
representation by a vacationing shop steward, while being aware that another steward was
available. The investigatory meeting occurred on a Friday afternoon, and it was understood that
the steward requested by the employee would not be available until the following Monday
morning. The employee did not request the available representative. The employer denied the
employee’s request for the vacationing steward and went forward with the interview. The Board
held that, where there was another union representative who was available, but the employee
did not request him, the employer did not violate Section 8(a)(1) of the Act by proceeding with
the interview in the absence of a representative:
In agreement with the Administrative Law Judge we find that there is nothing in the
Supreme Court’s opinion in Weingarten which indicates that an employer must postpone
interviews with its employees because a particular union representative, here the shop
steward, is unavailable either for personal or other reasons, where another
representative is available whose presence could have been requested by the employee
in the absent representative’s place.
227 NLRB at 1276 (footnote with citation omitted). In so concluding, the Board stressed the
admonition in Weingarten that the right to choose representation should not interfere with
“legitimate employer prerogatives” such as conducting investigatory interviews without delay. Id.
The Board majority also found that the employee had not been compelled to participate in the
interview. Id at fn. 6.
Members Fanning and Jenkins dissented:
Our colleagues seem to view the issue here as whether Respondent was forced to delay
its investigation of Torres’ conduct and its decision to discipline him therefore until the
day that Murphy, the representative whose assistance Torres requested, was available,
or whether it had a right to proceed without waiting for Murphy. That is not the issue. The
issue is whether, given Murphy’s absence until Monday, the next working day,
Respondent was entitled to require Torres’ participation in the investigatory interview
without the representation he asked for. As to this, Respondent could have proceeded
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without Torres’ participation; it had no right to compel his participation without
representation. For as the Supreme Court noted in Weingarten, “The employer has no
obligation to justify his refusal to allow union representation, and despite refusal, the
employer is free to carry on his inquiry without interviewing the employee, and thus leave
to the employee the choice between having an interview unaccompanied by his
representative or having no interview and forgoing any benefits that might be derived
from one.
Id at 277 (citation omitted). Thus, it appears that the analytical framework set forth by the
dissent in Coca Cola Bottling Co. is, in substance, the position taken by the General Counsel in
the instant case.
In Pacific Gas & Electric Co., 253 NLRB 1143 (1981), also relied upon by Respondent,
the Board concluded that an employee did not have the right to choose a particular union
representative. There, the employer operated two facilities, separated by 20 minutes of driving
time. During an interview at one facility, an employee requested a union representative from the
other facility, even though the requested representative did not usually represent employees at
the interview location. The employer denied this request and called for the representative the
union had designated for the facility where the interview was to take place. Under such
circumstances, relying upon Coca-Cola Bottling Co., supra, the Board found that the employer
did not violate the Act by refusing the employee’s request. In reaching its conclusions, the Board
cited the travel time between the facilities as well as the time required to locate the
representative and the potential impact of the delay on the employer’s operations. The Board
further noted that the union had designated the representative at the facility and that to grant the
employee’s request would have, in effect, nullified the union’s choice of shop steward for that
location. Id at 1144.
Subsequently, in Montgomery Ward & Co. 273 NLRB 1226, 1227 (1984), enfd. mem.
785 F.3d 316 (9th Cir. 1986), the Board, citing Coca-Cola Bottling Co., addressed the issue as
follows:
[W]hen an employee requests a representative who is unavailable, the employer can
deny the request and is not required to postpone the interview, secure an alternate
representative, or otherwise take steps to accommodate the employee’s specific
request. The Board has held that in such circumstances the employee has the right and,
indeed, the obligation to request an alternate representative in order to invoke the
Weingarten protections. (Citation omitted).
In years subsequent to the above-discussed decisions, the Board has refined its rules
regarding employee choice of union representation under Weingarten. For example, in GHR
Energy Corp., supra, the Board considered a situation where an employee requested a specific
union representative who was the international representative. The evidence showed that this
individual was available to participate in the interview. Nevertheless, the employer refused the
employee’s request and required him to accept representation from the shop steward. Under
those circumstances, the administrative law judge, affirmed by the Board held that the employer
violated the Act by denying the employee his choice of representative. See also Consolidation
Coal Co., supra where the respondent denied an employee’s request for representation by an
experienced union representative who was available at the time, requiring instead that the
employee choose representation from among a group of committeemen, none of whom had
represented an employee at an investigatory interview. Adopting the conclusions of the judge,
the Board found that the respondent had violated the Act.
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Subsequently, in New Jersey Bell Telephone Co., 308 NLRB 277 (1992), enfd. 936 F.2d
144 (3d Cir. 1991), the Board confronted a situation where the union attempted to provide an
employee with a particular representative but the employer picked another. The employer
contended that, pursuant to Weingarten, Pacific Gas & Electric Co., and Coca-Cola Bottling Co.,
it was not obligated to provide the employee with the representative selected by the union. The
administrative law judge rejected this contention, observing that a union has the right to select
its own representatives for purposes of collective bargaining. Oates Bros. Inc., 135 NLRB 1295,
1297 (1962); Arizona Portland Cement Co., 281 NLRB 304, 307 (1986). Thus, as the judge
found, in the Boards’ view, “the circumstances justifying a refusal to met with particular
representatives are, therefore, quite restricted.” Missouri Portland Cement Co., 284 NLRB 432
(1987).
The administrative law judge further reasoned that representing an employee at a
Weingarten interview is clearly one of the features of collective bargaining. Thus, the judge
concluded that in order to deny the employee’s request for a particular representative, the
employer was obliged to “establish some significant business or operational concerns, or other
reasons valid in law” to deny such a request. 308 NLRB at 307. On review, the Board
concluded that: “When two union officials are equally available to serve as a Weingarten
representative. . . the decision as to who will serve is properly decided by the union officials,
unless the employer can establish special circumstances.”11
Subsequently, in Anheuser-Busch, Inc., supra, the Board affirmed, without comment, the
findings of the administrative law judge, as follows:
Although I would agree with the Respondent in this case that Coca-Cola Bottling Co.,
supra and Pacific Gas & Electric Co,, supra, clearly support the proposition that
Weingarten does not give the employee the right to select a specific representative, that
proposition has been changed by the Board as set out above in Consolidation Coal Co.,
supra, New Jersey Bell Telephone Co., supra and GHR Energy, supra. The law appears
to me to be that in a Weingarten setting, an employee has the right to specify the
representative he or she wants, and the employer is obligated to supply that
representative absent some extenuating circumstances.
337 NLRB at 8.
In Anheuser-Busch, the judge found that the requested representative was available at
the time of the interview, and that had the employer honored the employee’s request, the
interview could have proceeded with only minimal delay, which was not sufficient to deny the
employee the representative he wanted. Id. And, as Respondent notes in its post-hearing brief,
on review the Fourth Circuit made a specific point of this issue:
An employer need not always summon a requested representative. The employer may
deny an employee’s request for a particular representative, forgo the interview process
and render a decision based on the information it has already obtained. Or, if
extenuating circumstances exist (i.e. if the requested representative is unavailable), the
employer may reject the employee’s request and proceed accordingly.

11 In New Jersey Bell Telephone Co., the Board, disagreeing with the judge, found that the
requested representative had exceeded the scope of appropriate representation in a previous
interview and the employer properly had him excluded. Thus, the employer had established
special circumstances for the denial of the employee’s chosen representative.
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Anheuser-Busch, Inc. v. NLRB, 338 F.3d 267, 275 (4th Cir. 1993)
Subsequently, in Barnard College, 340 NLRB 934, 935 (2003), the Board held that:
“The selection of an employee’s representative belongs to the employee and the union, in the
absence of extenuating circumstances, and as long as the selected representative is available
at the time of the meeting” (citing Anheuser-Busch, Inc., supra and Pacific Gas & Electric Co.,
supra).12
As the above-discussed cases show, while Board law is clear that employees have a
voice in the selection of their Weingarten representatives, it is also the case that such a
selection continues to be evaluated in light of whether the requested representative is available
at the time selected by the employer for the interview.
2. Application to the instant case
In sum, for the reasons discussed below, I have concluded that Board law does not
support the General Counsel’s position on whole. Rather, I find that at the outset of Clarke’s
second interview, Respondent was not obliged to delay the interview and could lawfully require
Clarke to proceed. While the Board has held that an employee is entitled “to specify the union
representative he want[s] to assist him at the [investigatory] interview”, GHR Energy Corp.,
supra at 1042, it continues to find that that an employee may not insist on the presence of a
representative who is not “readily available.” Pacific Gas & Elec. Co., supra at 1143; Barnard
College, supra.
Notwithstanding the foregoing, I also find that the circumstances attending the interview
and Respondent’s concomitant legal obligations shifted when Clarke requested, and was
denied, the opportunity to consult telephonically with Castelli. After this occurred, and in the
absence of evidence that Castelli would have been unavailable for such consultation or that
other extenuating circumstances existed, Respondent was no longer privileged to compel
Clarke’s participation without Castelli’s representation.13
Returning to the contentions of the General Counsel and the Union, I do not find that the
record is sufficient to show that Dunne was not capable or not authorized to represent Clarke, or
that Respondent had any reason to think she would not be qualified to do so. Rather, the
evidence established she had been a shop steward for 14 years and had, admittedly, assisted
employees at other investigative interviews throughout this period of time, which included at
least one other zero-tolerance situation. Moreover she had never previously terminated an
interview to seek the intervention of a union representative. General Counsel cites to the
collective-bargaining agreement which provides, in relevant part, that shop stewards shall not
handle grievances. However, restrictions which pertain to the grievance process become

12 In Barnard College, supra at 936, the Board concluded that the employees’ demands for
representation not by one, but by two union representatives were not protected conduct; thus,
the employer did not violate Section 8(a)(1) of the Act by suspending them for their refusal to
participate in the interview.
13 While my conclusions represent a somewhat different analytical framework than that
which has been urged by the General Counsel, they do not involve a change in the theory of the
violation alleged. Nor do my findings involve the litigation of a different set of facts which, as the
parties conceded during the hearing, are largely uncontested. See generally AKAL Security,
Inc., 354 NLRB No 11, slip op at 5 fn. 8 (2009).
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applicable when a grievance is filed and no grievance relating to Clarke was pending at the time
of the interview.
I do not credit Castelli’s testimony that shop stewards are unauthorized to represent
employees at investigatory interviews. It is inconsistent with other testimony that Castelli
typically becomes involved in a situation once an employer has taken disciplinary action against
an employee. Further, it is inherently improbable that a union would insist that a representative
with responsibilities for any number of facilities, rather than an on-site shop steward, would be
responsible for attending every investigatory interview. Moreover, there is no evidence that this
was the practice at Respondent’s facilities. Castelli’s testimony is further undermined by other
record evidence, in particular the public representations made by the Union to employees who
may find themselves confronted with a Weingarten situation. As noted above, a Weingarten
notice on the cover of the collective-bargaining agreement advises employees that they should
seek assistance from a union representative or a shop steward. 14
General Counsel has cited GHR Energy Corp., supra and Consolidation Coal Co., supra, for
the proposition that an employee has the right under Weingarten to request a more experienced
representative. What General Counsel appears to have overlooked, however, is the fact that in
those cases the requested representatives were present and ready to go forward. In
Consolidation Coal Co., the administrative law judge, citing GHR Energy Corp. and Coca-Cola
Bottling Co., specifically noted that it would not have been a violation of the Act for the
respondent to have denied the employee’s request for representation by his chosen
representative if that individual was not present and to grant the request would have forced a
postponement of the interview. 307 NLRB at 977. The judge’s order in that case, as adopted by
the Board specifically states that the respondent shall cease and desist from denying the
request of its employees for representation if the representative is “readily available” to provide
such representation. Id at 978.
The Union further argues that, inasmuch as Dunne had clocked out for the day, the
Employer could not lawfully compel her to remain behind to represent Clarke. The Union cites
no Board authority for this proposition.15 I note that Shaw did not inform Dunne about or
specifically summon her to the second interview and it appears that her attendance was merely
a consequence of the fact that she remained at the facility after her work shift to speak with
Clarke. Thus, the record demonstrates that this second meeting was scheduled without
apparent regard as to whether any Union representative would be present to assist Clarke. In
any event, the evidence shows that Dunne remained behind voluntarily, if unwillingly. I do not
find that her status as an off-duty employee rendered her unable to represent Clarke in this
matter. See e.g. Anheuser-Busch Inc., supra at 5, and at fn. 5, where the administrative law

14 The General Counsel and the Union on one hand and Respondent on the other disagree
over whether and when Dunne made it apparent to the Employer that she was unwilling to
represent Clarke. I found overall, that Clarke was a credible witness who testified in a
straightforward manner and I credit his detailed account of what Dunne told Buonadonna. I also
find it inherently plausible, under the circumstances. I note that Dunne did not specifically
corroborate Clarke’s account of events, but I found her to be, generally, a reticent witness.
More significantly, however, as discussed in further detail below, there is no dispute that it been
made clear to Respondent on two prior occasions that Castelli had been designated to handle
the matter and both Clarke and Dunne reiterated that selection when Clarke was called into the
second interview.
15 In its post-hearing brief, the Union suggests that this would be a violation of Dunne’s
constitutional rights.
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judge found that the desired representative was available for an investigatory interview
notwithstanding the fact that he would be obliged to curtail his lunch period and, further, that
both representatives testified that they had done so in the past. 16
Considering the circumstances of the instant case in light of the foregoing precedent, in
agreement with Respondent, I have concluded that at the outset of Clarke’s second interview,
Respondent was not obliged to wait until Monday for Castelli to become available and could
lawfully proceed with Clarke’s interview in the presence of another Union representative.
Montgomery Ward, supra; Pacific Gas & Electric Co, supra; Barnard College, supra. See also
LIR-USA Mfg. Co., 306 NLRB 298, 305 (1992) (noting General Counsel’s concession that by
providing the employee a union shop steward who was available, instead of a union business
agent who was not readily available, the employer fulfilled its obligation to provide the employee
with union representation.) However, for the following reasons, I find that the situation changed
when Clarke asked to be allowed to consult with Castelli by telephone and Buonadonna denied
this request.
As an initial matter, I find that when Dunne and Clarke were summoned to Shaw’s office
for the morning meeting on July 2, Dunne, acting in her capacity as the representative of the
Union at that time, made it clear that the Union was designating Castelli to handle the matter.
Pacific Gas & Electric Co., supra; New Jersey Bell Telephone, supra. As has been found, a
union representative may speak for an employee he or she represents and invoke that
employee’s rights under Weingarten. Postal Service, 303 NLRB 463, 463 fn. 1, 467 (1991);
Pacific Telephone and Telegraph Co., v. NLRB, 711 F.2d 134, 137 (9th Cir. 1983). Moreover, as
the Board has made clear, as a general matter the selection of the representative belongs to the
union and the employee. GHR Energy Corp., supra; Consolidation Coal Co., supra; New Jersey
Bell Telephone Co., supra; Anheuser-Busch, Inc., supra; Barnard College, supra.
Castelli’s designation as representative was reiterated when he spoke with Buonadonna
at the Bayshore store. Thus, even prior to Buonadonna’s attempt to obtain a statement from
Clarke, Respondent knew that Castelli would be Clarke’s representative in this matter.
I find that Clarke’s request that he be allowed to telephone Castelli to seek his guidance
as to whether to proceed with the second interview was a reasonable one, and constituted a
specific request that he be allowed to consult with his designated Union representative prior to
participating in an investigatory interview, which he reasonably believed might result in
discipline. As the Board has held, an employee has such a right under Weingarten.17 See
Climax Molybdenum Co., 227 NLRB 1189 (1977) enf. denied 584 F. 2d 360 (10th Cir. 1978),
Pacific Telephone & Telegraph Co., 262 NLRB 1048, 1049 fn. 11 (1982), enfd. 711 F.3d 134

16 In this regard, I note that the collective-bargaining agreement between the Employer and
the Union contains the following access provision: “The Employer agrees to permit and
authorize representatives of the Union to visit any of the Employer’s places of business at any
time during normal working hours for the purpose of ascertaining whether this Agreement is
being properly observed, provided that there shall be no interruption of, or interference with, the
Employer’s business.”
17 While I have concluded that the evidence does not support the contention that Dunne was
unauthorized or unable to represent Clarke, I find that the preference that Castelli do so is
encompassed by Weingarten, supra, where it was noted that, “a knowledgeable union
representative could assist the employer by eliciting favorable facts, and save the employer
production time by getting to the bottom of the incident occasioning the interview.” 420 U.S. at
263.
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(9th Cir. 1983); Postal Service, supra at 469. In this regard, it is apparent that while Castelli was
not physically present, it is reasonable that he might well have been available by telephone to
consult with and then to assist Clarke during the interview. Moreover, Respondent has
presented no evidence as to why it could not have accommodated this request.
Of course, it is unwarranted to speculate as to whether, after consulting with Castelli,
Clarke would have proceeded with the interview or whether Castelli could have successfully
prevailed upon Buonadonna to wait until the following Monday, or whether the situation would
have resulted in the same outcome. Nevertheless, I find under the circumstances presented by
this case, Respondent was required to acknowledge Castelli’s selection as Clarke’s
representative absent his demonstrated unavailability or other “extenuating circumstances.”
Anheuser-Busch, Inc., supra; Barnard College, supra.18
At the time Clarke asked to telephone Castelli, both Clarke and Dunne had specifically
designated him as the Union representative who would be responsible for representing Clarke
in the matter, which involved a serious allegation of misconduct. Buonadonna had advised
Clarke that she was his employer and paid his salary and, in essence, demanded that Clarke
provide a statement. As Clarke testified, he was aware that a refusal to provide a statement
might, in and of itself, result in the imposition of discipline. In this regard, I find that Castelli’s
prior communications with Clarke do not obviate the significance of Clarke’s request to
telephone Castelli at this point in time. The situation had changed: Clarke had been summoned
to a second interview, and was now directly confronted with the possibility of discipline should
he refuse to cooperate.
Moreover, Respondent has failed to show that allowing Clarke to telephone Castelli
would have been futile or would cause any appreciable delay in conducting the interview.
Further, there is no evidence of extenuating circumstances under New Jersey Bell Telephone
Co., Anheuser-Busch, Inc. or Barnard College which would sanction a refusal to allow Clarke to
consult with Castelli. This is especially the case given the ease with which one now can
communicate by cellular telephone or other communications devices. 19 I conclude therefore,
that by requesting to telephone Castelli to seek his guidance as to how to proceed in the second

18 The Board has previously attributed some relevance to whether or not a union
representative is available for telephone consultation. See Meharry Medical College, 236 NLRB
1396 (1978), where the Board found it unnecessary to decide the issue of whether medical
evaluations are within Weingarten, as the employee involved telephonically consulted with the
union’s attorney before taking the examination and thus was not denied union representation.
Cf. Williams Pipeline, 315 NLRB 1, 5 (1995) where, in the absence of exceptions, the Board
adopted the conclusion of the administrative law judge that, where the employee had requested
the presence of the only steward assigned to the facility, and that steward was unavailable and
could not be reached by telephone, the employer acted unlawfully by forcing the employee to
submit to an investigatory interview with a fellow employee, who was not a union representative,
as a witness.
19 It has been noted that the Board can, and has, adapted its rules under Weingarten in
response to changing circumstances. In NLRB v. Anheuser-Busch, Inc., supra at 278, the
Fourth Circuit noted that: “Beginning in 1977 with its Coca-Cola decision, the Board has simply
modified and reformed its standards on the basis of accumulating experience” as authorized
and approved by the Court in Weingarten.” (quoting 420 U.S at 265). See 420 U.S. at 265-266
(explaining that “[t]o hold that the Board’s earlier decisions froze the development of this
important aspect of the national labor law would misconceive the nature of administrative
decisionmaking.”
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interview Clarke made a valid request for union representation. See United States Postal
Service, 241 NLRB at 141 and fn. 5 (1979) (distinguishing Coca Cola Bottling Co., supra).
Confronted with a valid request for union representation under Weingarten, Respondent
was faced with an altered set of options and obligations: it could grant Clarke’s request,
terminate the interview or afford Clarke the choice between having an interview unassisted by
his chosen representative or having no interview and forgoing any benefit that might be derived
from one. United States Postal Service, supra (and cases cited therein).
Instead, Respondent chose to continue the interview without advising Clarke of his
options and affording him the requisite choice. Accordingly, I find that Respondent’s insistence
on interviewing Clarke under these circumstances violated Section 8(a)(1) of the Act. I further
find that Respondent’s suspension of Clarke, admittedly for refusing to submit to this unlawful
interview, is violative of Section 8(a)(1) as well.20
Conclusions of Law
1. Respondent, Buonadonna Shoprite, LLC, is an employer within the meaning of
Section 2(2), (6) and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the Act.
3. Respondent has violated Section 8(a)(1) of the Act by:
(a) Refusing to allow Odel Clarke to be represented by a Union representative of his
choosing during an investigatory interview in which he had reason to believe that discipline
might be taken against him, absent a demonstration of that representative’s unavailability or
extenuating circumstances, in violation of his rights under Section 7 of the Act.
(b) Suspending Clarke because he refused to participate in an investigatory interview
under the circumstances described above in violation of his rights under Section 7 of the Act.
4. The Unfair labor practices committed by Respondent affect commerce within the
meaning of Section 2(6) and (7) of the Act.
Remedy
Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act. Having discriminatorily suspended Odel Clarke, it must make
him whole for any loss of earnings and other benefits, computed on a quarterly basis less any
net interim earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest
as computed in New Horizons for the Retarded, 283 NLRB 1173 (1987).21 I further recommend

20 Respondent has argued that while Clarke’s suspension was nominally for 10 days he
was, in fact, only suspended for 6 working days. This matter should be addressed during the
compliance portion of these proceedings.
21 In the complaint the General Counsel seeks interest computed on a compounded
quarterly basis for monetary compensation owed to Clarke. I deny the General Counsel’s
request as that is not the current law. Cox Ohio Publishing Co., 354 NLRB No. 32, slip op. at 1,
Continued
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that the Employer be ordered to, within 14 days from the date of the Board’s Order, remove
from its files any reference to the unlawful suspension and within 3 days thereafter notify Clarke
in writing that this has been done and that the suspension will not be used against him in any
way. I further recommend that Respondent post at its West Babylon facility an appropriate
Notice to Employees.22
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended23
ORDER
The Respondent, Buonadonna Shoprite, LLC, West Babylon, New York, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Denying employees’ requests to be represented by a union representative of their
choosing during an investigatory interview, in which employees have reason to believe
disciplinary action will be taken against them, absent a showing of that representative’s
unavailability or extenuating circumstances, thereby interfering with, restraining and coercing
employees in the exercise of the rights guaranteed to them under Section 7 of the Act, in
violation of Section 8(a)(1) of the Act.
(b) Suspending employees for refusing to submit to investigatory interviews in which
employees have reason to believe disciplinary action will be taken against them, where the
employee’s request to be represented by a union representative of their choosing has been
denied, absent a showing of that representative’s unavailability or extenuating circumstances,
thereby interfering with, restraining and coercing employees in the exercise of the rights
guaranteed to them under Section 7 of the Act, in violation of Section 8(a)(1) of the Act.
(c) In any like or related manner interfering with, restraining or coercing employees in
the exercise of the rights guaranteed to them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act
(a) Make Odel Clarke whole for any loss of earnings and other benefits suffered as a
result of his unlawful suspension, in the manner set forth in the remedy portion of this decision.
(b) Within 14 days from the date of the Board’s Order, remove from its files any
_________________________
fn. 5 (2009); Glen Rock Ham, 352 NLRB 516, 516 fn. 1 (2008), citing Rogers Corp., 344 NLRB
504 (2005).
22 In the complaint the General Counsel seeks, in addition to the standard notice posting
remedy, that Respondent be required to post a notice to employees via its internet, e-mail or
other electronic procedures. Under extant law, in the absence of any evidence that Respondent
customarily utilizes such methods to communicate with its employees, the General Counsel’s
request is denied. Nordstrom, Inc., 347 NLRB 294, 294 fn. 5 (2006).
23 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.
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reference to the unlawful suspension and within 3 days thereafter notify Clarke in writing that
this has been done and that the suspension will not be used against him in any way.
(c) 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 designated by the
Board or its agents, all payroll records, social security payment records, timecards, personnel
records and reports, and all other records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay due under the terms of this
Order.
(d) Within 14 days after service by the Region, post at its facility in West Babylon, New
York copies of the attached notice marked “Appendix.”24 Copies of the notice, on forms
provided by the Regional Director for Region 29, after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent and maintained for 60
consecutive days in conspicuous places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employees employed by the Respondent
at any time since July 2, 2009.
(e) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that
the Respondent has taken to comply.
Dated, Washington, D.C., June 3, 2010.
____________________
Mindy E. Landow
Administrative Law Judge

24 If this Order is enforced by a judgment of a United States court of appeals, the words in
the notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
JD(NY)–17–10
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post
and obey this Notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT deny your request to be represented by a union representative of your choice during an
investigatory interview which you have reason to believe will result in disciplinary action being taken against
you unless that union representative is unavailable or extenuating circumstances exist.
WE WILL NOT suspend you for refusing to submit to an investigatory interview which you have reason to
believe will result in disciplinary action being taken against you because you were not allowed to be
represented by a union representative of your choice unless that union representative is unavailable or
extenuating circumstances exist.
WE WILL NOT in any like or related manner interfere with, restrain or coerce you in the exercise of the rights
guaranteed to you by Section 7 of the Act.
WE WILL Make Odel Clarke whole for any loss of earnings and other benefits suffered as result of his unlawful
suspension, and
WE WILL remove from our files any reference to Clarke’s unlawful suspension and notify Clarke in writing that
this has been done and that the suspension will not be used against him in any way.
BUONADONNA SHOPRITE, LLC
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor Relations Act. It
conducts secret-ballot elections to determine whether employees want union representation and it investigates and remedies unfair
labor practices by employers and unions. To find out more about your rights under the Act and how to file a charge or election petition,
you may speak confidentially to any agent with the Board’s Regional Office set forth below. You may also obtain information from the
Board’s website: www.nlrb.gov.
One MetroTech Center (North), Jay Street and Myrtle Avenue, 10th Floor
Brooklyn, New York 11201-4201
Hours: 9 a.m. to 5:30 p.m.
718-330-7713.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 718-330-2862